June 19, 2007
LAST-MINUTE EARTHQUAKE
 |
Is 'opt-out' consent on its way to New York? |
CORRECTION: Senator Tom Duane did not introduce this legislation and it should not have been stated that he did. The Update regrets this error.
Assembly Health Committee Chair Richard Gottfried (D-Manhattan) Friday introduced legislation to implement a large-scale overhaul of HIV testing and consent laws in New York.
The measure was approved by a near-unanimous vote in a Monday-night Health Committee meeting in Albany (Assembly Member Nettie Mayersohn was the lone 'no' vote), but it’s not currently scheduled for consideration in the Senate.
Gottfried developed the bill with input from New York City health officials and AIDS advocacy and service groups; it includes:
- A requirement for a "universal offer" of HIV tests in most health care settings;
- Provisions to allow consent for HIV testing to be included as part of general medical consent forms with 'opt-out' informed consent for an initial HIV test at each health care provider;
- 'Durable' written consent that would allow subsequent offers and acceptance of tests from the same provider to be made orally;
- Notation in the medical chart of oral offers and acceptances for each HIV test;
- Pre- and post-test counseling for all HIV tests; and
- Fast referral to medical care for all who test positive for HIV.
Housing Works will not support the bill as it is currently drafted, for several reasons:
- "Opt-out" consent forms are less likely to ensure real informed consent for HIV testing than "opt-in" forms which require an affirmative signature or check-box consenting to a test;
- "Opt-out" HIV testing is a less effective means of achieving new diagnoses of HIV infection than targeted testing initiatives (with full written consent) in high-impact locations like homeless shelters, jails and prisons, and treatment centers for chemical dependency or mental illness, according to an important new study from the Johns Hopkins Bloomberg School of Public Health;
- "Opt-out" testing is far less cost effective, according to the same study, and is likely to result in fewer prevented HIV infections than targeted-testing initiatives.
We strongly support efforts to achieve more HIV testing with informed consent, and we've encouraged Gottfried, Senator Tom Duane (D- Manhattan), the City and others to consider "universal offer" legislation as part of a possible pathway towards that goal.
But the legislation as drafted fails to assure real informed consent — it would be too easy for a doctor or other medical provider to leave out the pre-test counseling and still get their patient's signature on a general medical consent form that would allow an HIV test to be performed.
"Opt-in" forms would include the additional requirement of a checked box or a second signature to OK the HIV test — a small but necessary protection that would be more likely to assure informed consent.
It's important to note that the majority of testimony in the six public hearings held in New York on this issue over the last 18 months was strongly in favor of retaining full written informed consent for HIV testing, and against the proposition that simple postcard-size consent forms are a significant barrier to more HIV tests.
It's possible to retain "opt-in" consent and still expand HIV testing — and it's a sign of real respect for patients to do so.
We'll have more coverage on the measure in this week's Update.