March 2010

Increasing Opportunities for HIV Testing in Healthcare Settings

By 2007, the state of New York had recorded over 180,000 HIV/AIDS cases, the most of any state, according to the Centers for Disease Control and Prevention. Of those cases, over 2,300 were children under the age of 13. New York also had the second highest raw number of new AIDS cases in the United States. Nationwide, one quarter of individuals who are HIV positive continue to live unaware of their status.

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.  

Over the last decade, New York has redoubled its efforts to increase HIV testing, increasing funding of community HIV testing projects, and creating a universal offer of HIV testing to pregnant women seeking prenatal care. Several bills introduced before the legislature call for a mandatory offer of HIV testing in New York hospitals and community health care facilities alongside all other regularly conducted tests.  

Proposals in Albany
There are three main legislative proposals 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 the core of all the proposals.  

The Duane-Gottfried bill proposes pre-test counseling, written consent from the patient, and post-test counseling regardless of result.  The Huntley-Robinson bill proposes that written consent forms not be required for patients receiving the test. Rather, a notification that the test is expected (along with a description of its purpose and means), followed by the patient’s verbal consent or non-consent suffices; and post-test counseling only for a positive result.  Finally, the Monserrate-Towns bill requires streamlined pre-test counseling, oral or written consent (or opt-out) to testing, and no counseling for a negative result.

The City Bar Proposal
The City Bar’s proposal for increasing HIV testing takes into account many countervailing concerns. 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.”  

"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.

Read the City Bar’s report on HIV testing legislation here.

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