360-8.1 Confidentiality of HIV and AIDS related information.
(a) Definitions.
(1) "AIDS" means acquired immune
deficiency syndrome, as may be defined from time to time by the Centers for Disease
Control of the United States Public Health Service.
(2) "HIV infection" means infection
with the human immunodeficiency virus or any other related virus identified as a probable
causative agent of AIDS.
(3) "HIV related illness" means any
illness that may result from or may be associated with HIV infection.
(4) "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.
(5) "Confidential HIV related
information" means any information, in the possession of a person who provides one or
more health or social services or who obtains the information pursuant to a release of
confidential HIV related 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.
(6) "Health or social service" means
any public or private care, treatment, clinical laboratory test, counseling or educational
service for adults or children, and acute, chronic, custodial, residential, outpatient,
home or other health care provided pursuant to the Public Health Law or the Social
Services Law; public assistance or care as defined in article one of the Social Services
Law; employment-related services, housing services, foster care, shelter, protective
services, day care, or preventive services provided pursuant to the Social Services Law;
services for the mentally disabled as defined in article one of the Mental Hygiene Law;
probation services, provided pursuant to article twelve of the Executive Law; parole
services, provided pursuant to article twelve-B of the Executive Law; correctional
services, provided pursuant to the Correction Law; and detention and rehabilitative
services provided pursuant to article nineteen-G of the Executive Law.
(7) "Person" includes any natural
persons, partnership, association, joint venture, trust, public or private corporation, or
State or local government agency.
(8) Capacity to consent means an individual's
ability, determined without regard to the individual's age, to understand and appreciate
the nature and consequences of a proposed health care service, treatment or procedure, or
of a proposed disclosure of confidential HIV-related information, as the case may be, and
to make an informed decision concerning the service, treatment, procedure or disclosure.
(b) Applicability. This section applies to any person who obtains or
receives confidential HIV related information in the course of administering the medical
assistance program (MA) and implements Article 27-F of the Public Health Law. Any use or
disclosure of such confidential HIV related information made on or after February 1, 1989
is subject to the terms of this section.
(c) Standard of use and disclosure. Confidential HIV related
information can be used or disclosed only for a purpose which is directly connected with
the administration of the MA program and consistent with the limitations of section 2782
of the Public Health Law relating to persons to whom or entities to which confidential HIV
related information may be disclosed. As applied to this section, such a purpose may
include supervision, monitoring, administration or provision of MA care, services and
supplies. Any adverse case action taken against an applicant for or recipient of MA must
be based solely upon the terms and conditions of eligibility and the furnishing of care,
services and supplies as established by the Social Services Law and this Title. All social
services district officials, employees and their agents are responsible for ensuring that
no discrimination or abuse occurs against an applicant for or recipient of MA about whom
confidential HIV related information is maintained.
(d) Access to confidential HIV related information. No social services
district official, employee or agent will have access to confidential HIV related
information except as necessary for the fulfillment of a purpose which is related to an
official duty of such official, employee or agent and is directly connected with the
administration of the MA program.
(e) Redisclosure of confidential HIV related information. No social
services district official, employee or agent to whom confidential HIV related information
has been disclosed can disclose such information to any other person except as authorized
under paragraphs (c) and (d) of this section.
(f) Disclosure of confidential HIV related information under legal
process. Confidential HIV related information must be disclosed for purposes of judicial
administration only upon service of a court order for disclosure made pursuant to section
2785 of the Public Health Law.
(g) Disclosure of confidential HIV related information pursuant to a
release.
(1) Confidential HIV related information may be
disclosed pursuant to a release. A release is a written authorization for disclosure of
confidential HIV related information which satisfies the following conditions. The
release:
(i) is signed by the
person who is the subject of the confidential HIV related information or, if such person
lacks capacity to consent, a person authorized pursuant to law to consent to health care
for the person lacking capacity;
(ii) is dated and
specifies the time period during which the release is to be effective; and
(iii) specifies to whom
disclosure is authorized and the purpose for such disclosure.
(2) A general authorization for release of
medical or other information does not satisfy the requirements of this subdivision and
confidential HIV related information cannot be disclosed in response to a general release.
(h) Statement accompanying disclosure.
(1) Any written disclosure of confidential HIV
related information must be accompanied by a statement in writing which includes the
following or substantially similar language: "This information has been disclosed to
you from confidential records which are protected by State law. State law prohibits you
from making any further disclosure of this information without the 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."
(2) Any oral disclosure of confidential HIV
related information must be accompanied or followed as soon as possible, but no later than
10 days, by the statement in writing required by paragraph (1) of this subdivision.
(3) The statement in writing provided for in
paragraph (1) of this subdivision is not required to accompany or follow a disclosure of
confidential HIV related information made to the person who is the subject of the
confidential HIV related information or, if such person lacks capacity to consent, a
person authorized pursuant to law to consent to health care for the person lacking
capacity.
(i) Policy and procedures for maintaining confidentiality. The
department and social services districts must develop and implement policies and
procedures to maintain the confidentiality of confidential HIV related information. Such
policies and procedures must be effectively communicated to social services officials,
employees and agents and must include, but not be limited to, the following:
(1) responsibilities of staff to safeguard
confidential HIV related information;
(2) procedures for secure record maintenance of
confidential HIV related information, including electronically stored records; and
(3) procedures for accessing and disclosure of
confidential HIV related information to assure that only authorized persons gain access to
such information for permissible purposes.