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Eric Friedman
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Kathryn Inman
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City Bar Proposes Mandatory Offer of HIV Testing in New York Health Facilities with Patient Ability to Opt Out

New York , February 24, 2010 – In a recently issued report studying various legislative proposals meant to increase HIV testing in New York, the New York City Bar Association concluded that HIV testing should be offered to all patients receiving care from New York health facilities, with the ability for patients to opt out of testing. The City Bar’s proposal takes into account many countervailing concerns, balancing the need for increased testing and detection of HIV-positive statuses with concerns for efficient health practices and a patient’s right to informed consent. Nationwide, one quarter of individuals who are HIV positive continue to live unaware of their status.

There are three two-house bills currently pending in the legislature addressing the issue of HIV testing: A.7610/S.3293, proposed by Senator Duane and Assembly Member Gottfried; A.7757-A/S.4484-A, proposed by Senator Huntley and Assembly Member Robinson; and A.7892-A/S.5660, proposed by Senator Monserrate and Assembly Member Towns. All bills seek to increase HIV testing to reduce risk factors. A mandatory offer of testing, along with the ability to opt out, is at the core of all the proposals. However, the bills differ when it comes to defining what would qualify as a patient’s informed consent to the test. The City Bar’s report recommends the following:

  • First, there should be pre-test counseling sufficient to provide the patient with knowledge and understanding that HIV testing is planned, such as the counseling set forth in the Duane-Gottfried bill. This can be done orally or in writing, and the patient should have meaningful opportunity to ask questions. Even if written consent is not required, pre-test counseling should not be reduced beyond the Duane-Gottfried plan.
  • Second, the test should be offered on an opt-out basis.
  • Third, separate written consent to testing is not necessary; however, where the doctor uses a general form for patient consent to services, that form should have a place for a patient to opt out of HIV testing. If there is no consent form usually used, the provider can mark the patient’s consent or non-consent on the patient’s chart.
  • Fourth, if there is a positive test result, counseling and referral must be provided.
  • Fifth, information about HIV transmission and risks should be provided in all cases, even if there is a negative result, and this can be provided prior to testing. This can include information on avoiding high-risk behavior and that the test may not show the presence of HIV for several weeks after the patient’s initial infection.
  • Finally, the City Bar also proposes that enhanced follow-up protocols be instituted for the treatment of HIV positive patients, something it finds “critical to stemming the spread of HIV regardless of which approach to testing the Legislature ultimately adopts.” Additionally, it calls for reviews of the new policy’s effectiveness. “The legislature should use the results…to determine whether further legislative action is needed,” states the report, “including potentially increased resources to enforce existing laws providing for confidentiality of patient records and prohibiting discrimination against infected persons.”

Many factors still discourage individuals from getting tested for HIV. Access is one problem, which can be addressed by increasing the availability and reducing the cost of available HIV tests. Other deterrents are more complex, including prevailing stigma against HIV positive patients, misinformation or ignorance on HIV transmission and risks, or concerns about privacy. The City Bar believes a universal offer of testing would help reduce these deterrents.

"The City Bar recommendation attempts to strike a workable balance so that patients are not discouraged from testing, but are given sufficient information to knowingly consent to the test or opt out," said Maria Cilenti, the City Bar's Legislative Director. “We hope that our report will help move the debate forward.”

Read the City Bar’s proposal for a mandatory offer of HIV testing in New York health facilities here: http://bit.ly/auRXa4

About the Association

The New York City Bar Association (www.nycbar.org) was founded in 1870, and since then has been dedicated to maintaining the high ethical standards of the profession, promoting reform of the law, and providing service to the profession and the public. The Association continues to work for political, legal and social reform, while implementing innovative means to help the disadvantaged. Protecting the public’s welfare remains one of the Association’s highest priorities.