9 NYCRR Part 8011 - Executive Department

Title 9 is open to everyone.

Ask LawEngine about the NYCRR →Create a free account →All 23 titles. No credit card required.

Source versions current through May 15, 2022 - Oct 31, 2022 across sections

Sections in this Part carry different compiled dates; each section shows its own.

9 NYCRR 8011.1 - Purpose

Source version current through May 15, 2022

Later State Register activity may affect this section.

Top

Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

It is the responsibility and the intent of the division to adopt regulations pursuant to the HIV- and AIDS-Related Information Act (Public Health Law, article 27-F). All officers, employees, and agents of the division shall at all times maintain the confidentiality of any HIV-related information in their possession, in accordance with the requirements of the statute and this Part.

9 NYCRR 8011.2 - Definitions

Source version current through May 15, 2022

Later State Register activity may affect this section.

Top

Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

When used in this Part:

(a)AIDS means acquired immune deficiency syndrome, as may be defined from time to time by the centers for disease control (CDC) of the United States Public Health Service.

(b)HIV infection means infection with the human immunodeficiency virus or any other related virus identified as a probable causative agent of AIDS.

(c)HIV-related illness means any illness that may result from or may be associated with HIV infection.

(d)HIV-related test means any laboratory test or series of tests for any virus, antibody, antigen or etiologic agent whatsoever thought to cause or to indicate the presence of AIDS.

(e)Protected individual means a person who is the subject of an HIV-related test or who has been diagnosed as having HIV infection, AIDS or HIV-related illness.

(f)Confidential HIV-related information means any information concerning whether an individual has been the subject of an HIV-related test, or has HIV infection, HIV-related illness or AIDS, or information which identifies or reasonably could identify an individual as having one or more of such conditions, including information pertaining to such individual's contacts, when such information is in the possession of a provider of one or more health or social services or has been obtained pursuant to a release of confidential HIV-related information. Parole services provided by the division are health or social services pursuant to Public Health Law, section 2780(8). When such information is in the possession of an authorized officer, employee or agent of the division, the provisions of these regulations apply regardless of whether the information has been obtained by consent, by authorized disclosure pursuant to the provisions of the HIV- and AIDS-Related Information Act (Public Health Law, article 27-F), or in any other manner, including from unofficial sources or through unofficial communications.

(g)Authorized officer or employee means an officer or employee of the division who is permitted to have access to confidential HIV information; such individuals, described more specifically in section 8011.4 of this Part, are those officers and employees who, in the performance of their duties for the division, need to have access to records or information relating to the care of, treatment of, or administration or provision of parole services to, protected individuals.

(h)Authorized agent means:

(1)an entity that has contracted with the division to provide treatment or parole services to parolees, or an employee of such entity, provided that the entity, or the employee, needs to know confidential HIV-related information in order to provide the contracted for service; and

(2)attorneys providing legal services to the division, its officers, or employees provided that access occurs in the ordinary course of providing legal services and is reasonably necessary for the provision of legal services.

(i)Need to know means that knowledge of confidential HIV-related information is reasonably necessary in order to provide appropriate treatment or parole services to recipients of such services, or to audit, monitor or supervise the provision of such services, or to administer or plan the provision of such services on an individual, regional or statewide planning basis.

(j)Treatment or parole services means services provided to inmates or releasees by officers, employees or agents of the division pursuant to article 12-B of the Executive Law, officers or employees of the United States Parole Commission, or parole officers of another state pursuant to article 12-B of the Executive Law.

(k)Release of confidential HIV-related information means a written authorization for disclosure of confidential HIV-related information which complies with the requirements of PHL, section 2780(9). Any such release obtained from a protected individual by any officer or employee of the division shall be obtained only by using Department of Health approved form (see subdivision [r] of this section)—Division of Parole form 4136.

(l)Contact means an identified spouse or sex partner of the protected individual or a person identified as having shared hypodermic needles or syringes with the protected individual.

(m)Health care provider means any physician, nurse, provider of services for the mentally disabled as defined in article one of the Mental Hygiene Law, or other person involved in providing medical, nursing, counseling or other health care or mental health service, including those associated with, or under contract to, a health maintenance organization or medical services plan. As used in this Part, the term includes the medical director of a State correctional facility, and also includes any physician providing any officer, employee or agent of the division with a confirmed diagnosis of AIDS, HIV infection or HIV-related illness.

(n)Capacity to consent means an individual's ability, determined without regard to such individual's age, to understand and appreciate the nature and consequences of a proposed health care service, treatment or procedure, and to make an informed decision concerning such service, treatment, or procedure.

(o)Significant risk of transmitting or contracting HIV infection or significant risk means the circumstances set forth in regulations promulgated by the Department of Health at 10 NYCRR section 63.9. Those provisions are summarized as follows. The following body fluids and substances are currently considered to be significant risk body substances: blood, semen, vaginal secretions, breast milk, tissue, cerebrospinal fluid, amniotic fluid, peritoneal fluid, synovial fluid, pericardial fluid, and plueral fluid. The following circumstances constitute significant risk of transmitting or contracting HIV infection:

(1)sexual contact which exposes a mucous membrane or broken skin to blood, semen or vaginal secretions of an infected individual;

(2)sharing of needles or other paraphernalia used for preparing and injecting drugs between infected and noninfected individuals;

(3)the gestation, birthing or breast feeding of an infant when the mother is infected with HIV;

(4)transfusion or transplantation of blood, organs, or other tissues obtained from an infected individual to an uninfected individual, provided that such products have not tested negatively for antibody or antigen and have not been rendered noninfective by heat or chemical treatment; and

(5)other circumstances, not identified in paragraphs (1) through (4) of this subdivision, during which a significant risk body substance (other than breast milk) of an infected person contacts mucous membranes (e.g., eyes, nose, mouth) or nonintact skin (e.g., open wound, dermatitis, abraded areas) or the vascular system of a non-infected person.¹

(p)Confirmed diagnosis means confirmation provided by an authorized laboratory that an individual has AIDS, HIV-related illness, or HIV infection.

(q)Universal precautions means the use of scientifically accepted protective barriers and preventive practices in circumstances which involve, or may involve, exposure to significant risk body substances or potentially contaminated implements which may cause puncture wounds.

(r)Form 4136—authorization for release of confidential HIV-related information.

Authorization for Release of Confidential HIV^* Related Information

Confidential HIV-Related Information is any information indicating that a person had an HIV-related test, or has HIV infection, HIV-related illness, or AIDS, or any information which could indicate that a person has been potentially exposed to HIV.

Under New York State Law, except for certain people, confidential HIV-related information can only be given to persons you allow to have it by signing a release. You can ask for a list of people who can be given confidential HIV-related information without a release form.

If you sign this form, HIV-related information can be given to the people listed on the form, and for the reason(s) listed on the form. You do not have to sign the form, and you can change your mind at any time.

If you experience discrimination because of release of HIV related information, you may contact the New York State Division of Human Rights at (212) 870-8624 or the New York City Commission of Human Rights at (212) 566-5493. These agencies are responsible for protecting your rights.

Name of person whose HIV-related information will be released:

Name and address of person signing this form (of other than above):

Relationship to person whose HIV information will be released:

Reason for release of HIV-related information:

Time during which release is authorized:

From:

To:

My questions about this form have been answered. I know that I do not have to allow release of HIV- related information, and that I can change my mind at any time.

Date Signature

Division of Parole

Form 4136

9 NYCRR 8011.3 - Antidiscrimination

Source version current through May 15, 2022

Later State Register activity may affect this section.

Top

Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)It is the policy of the division that the division and its officers, employees and agents shall not discriminate against any individual by virtue of his or her being identified as, or suspected of, having AIDS, HIV infection, or HIV-related illness.

(b)The policy set forth in subdivision (a) of this section shall not be construed to prevent differential treatment of inmates or releasees on account of HIV status or current medical condition, provided that such differential treatment is necessary in order to provide adequate and appropriate treatment or parole services for individuals identified as having AIDS, HIV infection or HIV-related illness.

(c)The division will take appropriate steps to make its authorized officers, employees and agents aware of the division's policy as set forth in this section. All officers, employees and agents of the division shall act in a manner consistent with this policy when performing their official duties for the division.

9 NYCRR 8011.4 - Access to confidential HIV-related information

Source version current through May 15, 2022

Later State Register activity may affect this section.

Top

Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

The following employees of the division are considered authorized employees who may have access to confidential HIV-related information on a need to know basis, as set forth in this section.

(a)Any parole officer assigned to, or any other employee providing treatment or parole services for, a particular case, and any parole officer who is covering a case for the regularly assigned parole officer and who needs access to the parole file in order to perform whatever duties are necessary to cover the case, may have access to any confidential HIV-related information contained in the parole file for that case;

(b)Other staff who make entries in case folders or electronic records may have access to confidential HIV-related information, but only to the extent that they actually make entries relating to the provision of treatment or parole services;

(c)The direct line casework supervisor (this will ordinarily be the senior parole officer, but may be any other individual performing that function, regardless of actual title) may have access, on a need to know basis, to confidential HIV-related information contained in the parole file for any case for which that direct line supervisor performs any supervisory duties.

(d)All supervisors in the direct line of supervision, and any officer or employee performing a planning, monitoring, administrative oversight, litigation or casework assistance function, may have access to any confidential HIV-related information contained in a particular parole file, provided that access to the parole file is reasonably necessary in order to carry out an appropriate supervisory, planning, monitoring, administrative oversight, litigation or casework assistance function. The direct line of supervision will ordinarily include the area supervisor, deputy regional director, regional director and the director of operations, or any other officer or employee designated to perform an equivalent supervisory function, regardless of actual title. Access to the parole file, and to any confidential HIV-related information contained in the file, will be on a need to know basis.

(e)Members of the Board of Parole.

9 NYCRR 8011.5 - Confidentiality

Source version current through Oct 31, 2022

Later State Register activity may affect this section.

Top

Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Oct 31, 2022

(a)No authorized officer or employee or agent of the division who obtains confidential HIV- related information in the course of performing his or her duties as an officer, employee or agent of the division may disclose such information except in accordance with the provisions of the HIV- and AIDS-Related Information Act (Public Health Law, article 27-F) and the provisions of these regulations.

(b)It is the policy of the division that disclosure of confidential HIV-related information should, whenever possible, be made pursuant to the consent of the protected individual, and all reasonable steps, including appropriate counseling, should be taken to obtain consent. Once consent has been obtained, a release form that complies with the requirements of PHL, article 27-F is to be executed, and disclosure may then be made in accordance with that release. Only Department of Health approved form 4138 is to be used as a release form for disclosure of confidential HIV-related information. The provisions of this subdivision shall not apply to disclosures made for the purpose of defending litigation against the division, its officers or employees.

(c)In the absence of consent, disclosure may be made only to the following, and, except for disclosure pursuant to paragraph (1) of this subdivision, disclosure by parole officers and senior parole officers may be made only with the written approval of the area supervisor or designee or a parole services program specialist, such written approval to be placed in the parolee's file:

(1)an authorized officer or employee of the division, as defined in section 8011.2(g) of this Part;

(2)an authorized agent of the division, as defined in section 8011.2(h) of this Part, if disclosure is necessary to permit the agent to carry out his, her or its functions for the division;

(3)officers or employees of parole authorities of another state, or the United States Parole Commission, when such officers or employees are providing treatment or parole services pursuant to article 12-B of the Executive Law;

(4)a health care provider, but only when knowledge of the HIV-related information is necessary to provide care or treatment to the protected individual; for purposes of these regulations, disclosure to the medical director of the appropriate state correctional facility, or appropriate medical staff at a Division for Youth facility, is deemed to be necessary for any parole violator returned to the custody of the State Department of Correctional Services or the State Division for Youth;

(5)the medical director of a local correctional facility whenever a parole violator is being lodged at that correctional facility;

(6)any person to whom disclosure is ordered by a court of competent jurisdiction; and

(7)any person not listed in this subdivision, to whom disclosure is authorized pursuant to PHL, section 2782.1(a) through (o).

(d)Any disclosure, except disclosures pursuant to paragraph (c)(1) of this section, must be accompanied or followed by a written statement prohibiting further disclosure. Form 4137, a copy of which appears in subdivision (i) of this section, is to be used for this purpose.

(e)All disclosures, except disclosures pursuant to paragraph (c)(1) of this section, are to be appropriately documented in the case folder of the protected individual, who shall be informed of such disclosures upon request.

(f)No flags on case folders, lists on walls, or other similar public displays shall be used to indicate clients with HIV infection. This shall not be construed to prevent the existence of specialized caseloads.

(g)Confidential HIV-related information shall not be disclosed in response to a request under the Freedom of Information Law (Public Officers Law, article 6) or in response to a subpoena. A court order issued pursuant to Public Health Law, section 2785 is required.

(h)The division will take appropriate steps to make all authorized officers, employees and agents aware of the provisions of the HIV- and AIDS-Related Information Act (PHL, article 27-F) concerning confidentiality of HIV-related information and the division's rules regarding confidentiality of records. All authorized officers, employees and agents of the division shall at all times maintain the confidentiality of any confidential HIV-related information in their possession.

(i)Form 4137—HIV information disclosure form.

NEW YORK STATE

DIVISION OF PAROLE

This information has been disclosed to you from confidential records which are protected by state law. State law prohibits you from making any further disclosures of this information without specific written consent of the person to whom it pertains, or as otherwise permitted by law. Any unauthorized further disclosure in violation of state law may result in a fine or jail sentence or both. A general authorization for the release of medical or other information is not sufficient authorization for further disclosure.

9 NYCRR 8011.6 - Records control

Source version current through May 15, 2022

Later State Register activity may affect this section.

Top

Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)The division will ensure the security of files which may contain confidential HIV-related information. All officers, employees and agents of the division in possession of, or having access to, confidential HIV-related information shall at all times maintain the security of all records that contain confidential HIV- related information.

(b)The division will ensure that any secondary reports, presentations or statistical compilations that include or refer to confidential HIV-related information will, to the extent possible, minimize the use of names of, or other information tending to identify, protected individuals. With respect to documents that must identify a releasee by name, the division will ensure that confidential HIV-related information is included in such a document only if, and to the extent, necessary.

9 NYCRR 8011.7 - Provision of confidential HIV-related information to authorized officers and employees of the division

Source version current through May 15, 2022

Later State Register activity may affect this section.

Top

Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)The Department of Correctional Services, and the medical directors of its correctional facilities, in accordance with the provisions of Executive Law, section 259-1 and Public Health Law, section 2782(1)(l), may provide confidential HIV-related information to the authorized officers and employees of the division described in section 8011.4 of this Part, without the consent of the protected individual. Any such confidential HIV-related information will be subject to the limitations on disclosure imposed by PHL, article 27-F and this Part.

(b)The medical director of a local correctional facility, in accordance with the provisions of Public Health Law, section 2782(1)(l), may provide confidential HIV-related information to the authorized officers and employees of the division described in section 8011.4 of this Part, without the consent of the protected individual. Any such confidential HIV-related information will be subject to the limitations on disclosure imposed by PHL, article 27-F and these regulations.

(c)The Division for Youth, in accordance with the provisions of Public Health Law, section 2782.1(1), may provide confidential HIV-related information with respect to juvenile offenders to the authorized officers and employees of the division described in section 8011.4 of of this Part, without the consent of the protected individual. Any such confidential HIV-related information will be subject to the limitations on disclosure imposed by PHL, article 27-F and these regulations.

(d)A provider of a health or social service (including but not limited to those entities that provide treatment or parole services to releasees, whether by contract with the division or otherwise) which provides health or social services to releasees, may provide confidential HIV-related information to the authorized officers and employees of the division described in section 8011.4 of this Part, without the consent of the protected individual. Any such confidential HIV-related information will be subject to the limitations on disclosure imposed by PHL, article 27-F and this Part.

9 NYCRR 8011.8 - Protecting contacts when there is a significant risk of contracting or transmitting HIV infection

Source version current through May 15, 2022

Later State Register activity may affect this section.

Top

Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)The division will seek to protect individuals in contact with protected individuals, when such contact creates a significant risk of contracting or transmitting HIV infection through the exchange of significant risk body substances, as defined by the Department of Health and in section 8011.2(o) of this Part.

(b)The following procedures will be adopted with respect to employees:

(1)Employees will be instructed to use universal precautions in situations where there is the potential for exchange of significant risk body substances as defined by the Department of Heath and in section 8011.2(o) of this Part.

(2)Appropriate protective clothing and equipment will be kept at an identified location at each work site.

(3)Each work site is to develop its own protocol, which is to be posted in areas accessible to all employees, for obtaining medical assistance for emergency situations.

(4)In the event of a work related potential exposure reported to the division (e.g., a needle stick), an employee involved in the potential exposure is to be referred to the employee health service for counseling and appropriate medical treatment.

(5)The division will promulgate risk reduction guidelines specific to the parole context and will ensure that all employees receive a copy of the guidelines and training with respect to the guidelines.

(c)The following procedures will be adopted with respect to members of the public who are potential contacts of releasees.

(1)The families and/or individuals with whom a post-release residence is proposed, of all releasees, will be provided with information which will enable such individuals to make informed decisions regarding behavior that may limit the risk of contracting or transmitting AIDS. Such information will be made available to the families, or persons with whom a residence is proposed, of all releasees, regardless of the division's knowledge of the releasee's HIV status, and recipients of information will be advised that information packets are being provided to all families, regardless of a particular releasee's HIV status. Such information will consist of literature available to the division for distribution, whether of a general informational nature, or specifically tailored to the parole context.

(2)All releasees will be counseled to behave in ways that minimize the risk of contracting or transmitting HIV infection. Those releasees known to have a confirmed diagnosis of AIDS, HIV-related illness or HIV infection will be counseled with a view to encourage them to inform their families, or persons with whom a residence is proposed, and any contacts as defined in section 8011.2(l) of this Part, of their HIV status for the purposes of limiting infection. A releasee who has told parole staff that he or she plans to notify a contact will also be encouraged to execute a release of confidential HIV-related information permitting disclosure to contact(s) so that authorized employees of the division may participate in any discussions with the protected individual and his or her contacts that may occur in the course of parole supervision and that may involve confidential HIV-related information.

(3)In the event that a releasee known to have a confirmed diagnosis of AIDS, HIV-related illness or HIV infection has been counseled in accordance with paragraph (2) of this subdivision, and the releasee refuses to execute a consent for release of confidential HIV-related information to contacts, and the parole officer or other employee providing treatment or parole services has an articulable factual basis for believing that there is a known contact at significant risk of contracting HIV infection from the releasee and that the releasee will not inform the said contact of the releasee's HIV status, then the parole officer may, in accordance with policies and procedures of the division, request that an application be made for a court order permitting disclosure of confidential HIV-related information pursuant to Public Health Law, section 2785.

9 NYCRR 8011.9 - Severability

Source version current through May 15, 2022

Later State Register activity may affect this section.

Top

Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

If any provision of this Part or the application thereof to any person or circumstance is judged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of this Part or the application thereof to other persons and circumstances.

LawEngine makes the New York Codes, Rules and Regulations easier to find, read, and research.