Testing Law, Information, and Consent
Medical Care Criteria Committee January 2013
The requirement to offer testing applies to persons receiving inpatient or emergency department services at hospitals; persons receiving primary care services through hospital outpatient clinics and diagnostic and treatment centers; and persons receiving primary care services from physicians, physician assistants, nurse practitioners and midwives regardless of setting.
Provide the patient with the following key points of information regarding HIV testing:
- HIV is the virus that causes AIDS. It can be spread through unprotected sex (vaginal, anal, or oral sex); contact with HIV-infected blood by sharing needles (piercing, tattooing, drug equipment, including needles); by HIV-infected pregnant women to their infants during pregnancy or delivery, or by breastfeeding.
- There are treatments for HIV/AIDS that can help a person stay healthy.
- People with HIV/AIDS can use safe practices to protect others from becoming infected.
- Testing is voluntary and can be done without giving your name at a public testing center (anonymous testing).
- By law, HIV test results and other related information are kept confidential (private).
- Discrimination based on a person’s HIV status is illegal. People who are discriminated against can get help.
- Consent for HIV-related testing remains in effect until it is withdrawn verbally or in writing. If the consent was given for a specific period of time, the consent applies to that time period only. Persons may withdraw their consent at any time.
- Consider patient’s ability, regardless of age, to comprehend the potential outcomes of HIV testing. If the patient does not have the ability to understand these outcomes, defer testing or discuss with person who has legal authority to consent to HIV testing for the patient.
- If domestic violence (DV) concerns are raised, make referrals as appropriate (see Resources).
- Oral consent can be given for rapid testing; consent must be documented in patient chart.
- Written consent is needed for non-rapid testing. Model forms for written consent are available at NYSDOH Required HIV Related Consent and Authorization Forms.
- Consent is valid for repeat testing but patient must be orally informed of each test.
- Consent may be revoked at any time by the patient, either orally or in writing.
Providing Test Results
Providing a Negative (Non-Reactive) Test Result
- A negative HIV test result may be provided in-person, by mail, by email, or by telephone as long as patient confidentiality is protected.
- Explain that a negative result almost always means that the person is not infected with HIV.
- Indicate that there is a possibility of recent infection if the person engaged in risk behaviors in the three months prior to the test and may need to be re-tested.
- Discuss the importance of avoiding future risky behaviors.
Note: If acute HIV is suspected, a negative antibody test would be expected and follow-up with viral load testing may be indicated.
Providing a Positive (Reactive) Test Result
When a patient has a reactive result on the rapid HIV screening, a second, confirmatory test must be conducted by a certified laboratory. If the second test is also positive, it is considered a positive test result that needs to be provided to the patient.
Post-Testing Counseling, Notification, and Domestic Violence Screening
Topics: Post-test counseling should cover the following topics:
- Coping with the consequences of learning the test result
- The potential for discrimination
- Preventing the transmission of HIV to others through risk behaviors and/or perinatally
- HIV reporting is required by law (see information about DOH-4189 Form below)
- The availability of treatment and their right to have a follow-up appointment made for HIV medical care
- How to access prevention and supportive services. Outside of New York City, the New York State Department of Health (NYSDOH) Partner Services staff can also assist in providing post-test counseling.
Partner notification: Discuss the provider’s responsibility to report name(s) of known partner(s)/spouse to NYSDOH
- Review options for patient to notify his or her partners, and actively link the patient to the Partner Services (PS) program. For more information on PS, see What Health Care Providers Need to Know about Partner Services
Domestic violence screening: Conduct domestic violence (DV) screening for each partner, following these steps:
- Discuss domestic violence (DV) before eliciting partner names.
- Screen for risk of DV for each partner to be notified.
- Provide referral(s) for DV services and discuss release form.
- Make determination(s) regarding HIV Partner Services.
- Discuss and implement Partner Services option(s). For any partner where the provider defers notification based on DV risk, Partner Services staff will contact the provider in 30 to 120 days to discuss DV risk and steps in place to address it.
- Collaborate with the local department for Partner Services.
- Revisit Partner Services and DV risk throughout the continuum of care. For more information on the Required Domestic Violence Screening Process, please see NYSDOH Protocol – Domestic Violence Screening in Relation to HIV Counseling, Testing, Referral & Partner Notification.
|DOMESTIC VIOLENCE SCREENING RESOURCES|
Documentation and follow-up: Complete the Medical Provider HIV/AIDS and Partner/Contact Report Form (DOH-4189) within 14 days. Send one copy (yellow) to NYSDOH; keep one copy (white) for patient’s record if appropriate (call 518-474-4284 to obtain forms).
Provide or schedule a follow-up appointment for HIV medical care. If you do not provide HIV medical care, the patient’s medical record should reflect the name of the provider/facility where the appointment was made.
For ALL patients:
- Document the provision of post-test counseling, including the test results.
- For HIV positive patients, also document results of DV screening and arrangements for partner services.
- Wadsworth Laboratory (518-485-5378): To register as a limited test site to offer rapid HIV testing.
- New York State Department of Health: Lists information for HIV/AIDS programs, services, laws, regulations, training, materials, etc.
- To order Medical Provider HIV/AIDS and Partner/Contact Forms (DOH #4189/4189A), call 518-474-4284.
- NYSDOH Partner Services (1-800-541-2437): Referrals for free, confidential help in notifying exposed partners/spouse, outside of NYC area.
- New York City Department of Health and Mental Hygiene, Contact Notification Assistance Program (CNAP) (212-693-1419)
- NYS HIV/AIDS Hotline (English: 1-800-541-2437; Spanish: 1-800-233-7432): General information and referral to HIV counseling and testing, including anonymous HIV counseling and testing sites, prevention programs and health care and support services for people living with HV/AIDS.
- NYS HIV TDD Information Line (1-800-369-2437): Voice callers can use the New York Relay System: 711 or 1-800-421-1220 and ask the operator to dial 1-800-541 2437.
- ADAP Plus (1-800-542-2437): Free medications and care for uninsured HIV-infected persons.
- NYSDOH HIV Confidentiality Hotline (1-800-962-5065): General information, “Breach of Confidentiality” forms, and referrals for further assistance.
- NYS Division of Human Rights (718-741-8400)
- NYC Commission on Human Rights (212-306-7500)
- NYS Domestic Violence Hotline (English: 1-800-942-6906; Spanish: 1-800-942-6908)
- NYC Domestic Violence Hotline (Safe Horizons) (1-800-621-4673; Hearing Impaired: 1-800-604-5350)
- NY/NJ AIDS Education & Training Center (212-304-5530)