New York State law prevents new CDC testing recommendations from being implemented

Oct 5 2006

A New York state law passed in the 1980s prevents the state from implementing CDC's revised recommendations on HIV testing in the U.S. that say HIV tests should become a routine part of medical care for residents ages 13 to 64 and that requirements for written consent and pretest counseling should be dropped, the New York Times reports (Perez-Pena, New York Times).

The recommendations, published in the Sept. 22 edition of CDC's Morbidity and Mortality Weekly Report, say health care providers should continue routine HIV testing unless they establish that less than one of every 1,000 patients tested is HIV-positive, "at which point such screening is no longer warranted." Providers do not have to require patients to sign written consent forms or undergo counseling before receiving an HIV test, but physicians must allow patients to opt out of the test, according to the guidelines. The recommendations -- which states can choose to adopt and modify -- also say that all pregnant women should be tested for the virus unless they opt out and that women who inject illicit drugs, are commercial sex workers or who live in a higher prevalence region should be tested again in the third trimester of pregnancy (Kaiser Daily HIV/AIDS Report).

New York Law

The law New York state passed in the 1980s aimed to protect the rights of people living with HIV/AIDS and requires a physician or anyone ordering an HIV test to have the individual receiving the test read and sign an informed consent form. The form -- which is separate from the general consent form usually used to authorize a wide range of medical tests -- explains the test and patients' rights. The law also requires that before the form is signed, the care provider ordering the test must provide an "explanation of the nature of AIDS- and HIV-related illness, information about discrimination problems that disclosure of the test result could cause and legal protections against such discrimination, and information about behavior known to pose risks for transmission and contraction of HIV infection." Under the law, if an individual tests positive, the person giving the test results is required to provide "counseling or referrals for counseling" on the emotional effects associated with an HIV diagnosis, possible discrimination, sexual behaviors and other areas. New York City Health Commissioner Thomas Frieden since December 2005 has attempted to change the state law, but he has made "little" progress, according to the Times. The administration of Gov. George Pataki (R) has not expressed an opinion on the issue. In addition, advocacy groups and lawmakers who oppose attempts to change the state law have said that statements and recommendations from Frieden and CDC have not changed their views on the issue. According to Frieden and others who support changing the law, doctors cannot or will not allocate the time needed to perform all the steps required by state law to conduct HIV tests among their patients. Those who oppose changing the law have said that informed consent procedures do not pose a significant challenge to testing, especially because the New York State Department of Health released a simplified version last year. According to those opposing changes to the state law, doctors are not comfortable raising the issue with patients, which is another sign of the stigma associated with HIV/AIDS, the Times reports (New York Times).