Are there laws in New York State that protect the confidentiality of people with HIV and AIDS?
Yes. Public Health Law, Article 27-F is the section of New York State Public Health Law that protects the confidentiality and privacy of anyone who has:
- been tested for HIV;
- been exposed to HIV;
- HIV infection or HIV/AIDS-related illness; or
- been treated for HIV/AIDS-related illness.
In addition, the law requires that anyone who takes a voluntary HIV test must first sign a consent form. This means the person understands what the test means and agrees to take it. The law also requires that information about a person's HIV status can only be disclosed (shared with others) if the person signs an HIV release form or if the form is signed by the person's legally appointed guardian or health care proxy. The law applies to individuals and facilities that directly provide health or social services and to anyone who receives HIV-related information about a person pursuant to a properly executed HIV release form. Also, the law requires that any individual or facility whose work is covered by Article 27-F and who receives HIV-related information MUST keep that information confidential as required by law. Under certain circumstances, the law does allow for the release of HIV information. These special circumstances are explained on the Informed Consent form for testing so that a person fully understands the exceptions before consenting to an HIV test.
Anyone who feels that HIV-related information has been released without their consent can call the New York State Department of Health Confidentiality Hotline at 1-800-962-5065 and request a "breach of confidentiality" form. Penalties for unauthorized disclosure of confidential HIV-related information by health care workers or social service workers include fines and/or time in jail.
Will testing positive for HIV affect an immigrant's ability to stay in the United States?
Not necessarily. Although HIV testing is not required for entry into the United States, having HIV/AIDS is a reason for being denied entry into the U.S. Individuals who are excluded on that basis may seek a waiver. To get a waiver, they must:
- prove that they will not become depended on government-funded health care (this can usually be proven if they have their own health insurance policy or have insurance through their employer);
- show that they are aware of the nature and severity of their condition;
- show a willingness to attend educational and counseling sessions; and
- show that they know how to avoid passing HIV to other people and make a commitment to avoid spreading the virus to others.
Can an employer require that a job applicant be tested for HIV?
No. Under the federal nondiscrimination laws, an employer cannot require a job applicant to tell his or her HIV status or to have an HIV test to get or keep a job.
Can job activities be limited or changed, or can a person be fired, because he or she has HIV or AIDS?
No. It is a violation of the New York State Human Rights Law to restrict employees' duties or fire them solely because of HIV infection or AIDS. In addition, the federal Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation to the known physical or mental limitations of employees with disabilities, including HIV infection or illness.
Can hospital employees or emergency medical workers refuse to care for a person with HIV infection or AIDS?
No. Hospitals and emergency medical services workers have a legal responsibility to care for the sick and to employ staff capable of carrying out that mission. Health care workers who refuse to care for a person with HIV infection or AIDS may be fired or disciplined. Ongoing education is required for all health care workers to ensure that they understand the ways in which HIV is spread and follow recommended safety precautions.
Can people with HIV infection or AIDS be denied health, disability, or life insurance?
No. In New York State, health insurance - including hospital, medical, and surgical coverage - cannot be denied and a higher premium cannot be charged simply because the applicant has HIV. However, disability insurance and life insurance companies are allowed to ask applicants if they have been diagnosed or treated for AIDS or HIV-related illnesses; they can deny coverage or charge higher premiums for the policy if the person is infected. Insurance companies can also require and HIV test before issuing a policy. A person with HIV can be determined to have a pre-existing condition and may have to go through a waiting period before their coverage begins. After the waiting period (usually 12 months), all HIV-related expenses should be covered. For more information, call the New York State Insurance Department at 1-800-342-3736.
Do confidential HIV test results have to be included in a person's individual medical record?
Yes. New York State Code, Rules and Regulations, Title X, Part 63 requires that confidential HIV-related information be recorded in the medical record and be easily accessible to provide proper care and treatment.