(a) Except as noted in paragraph (3) of this subdivision, no physician or other person authorized pursuant to law may order an HIV-related test without obtaining written informed consent.

1. (1) Informed consent shall consist of providing to the person to be tested or, if such person lacks capacity to consent, to the person lawfully authorized to consent to health care for such person. In situations in which a person other than the test subject consents to the test, pretest counseling shall also be provided to the subject to the extent that the person ordering the test deems that the test subject will benefit from counseling. Pretest counseling shall include:

   1. (i) explanations regarding the nature of HIV infection and HIV-related illness, an explanation of the HIV-related test including a description of the procedure to be followed, meaning of the test results, and the benefits of taking the test, including early diagnosis and medical intervention;
   2. (ii) information regarding discrimination problems which might occur as a result of unauthorized disclosure of HIV-related information and legal protections prohibiting such disclosures;
   3. (iii) information on preventing exposure or transmission of HIV infection, including behavior which poses a risk of HIV transmission; and
   4. (iv) an explanation that the test is voluntary, that consent may be withdrawn at any time, and that anonymous testing is available, including the location and telephone numbers of anonymous test sites, and that anonymous testing is not available to persons proposed for insurance coverage.
2. (2) Written informed consent must be executed on a form developed by the Department of Health or on another form approved specifically by the Department of Health.

3. (3) Informed consent is not required in the following situations:

   1. (i) for court-ordered testing pursuant to Civil Practice Law and Rules, section 3121;
   2. (ii) if otherwise authorized or required by State of Federal law;
   3. (iii) for testing related to procuring, processing, distributing or use of a human body or human body part, including organs, tissues, eyes, bones, arteries, blood, semen or other body fluids for use in medical research or therapy, or for transplantation to persons, provided that if the test results are communicated to the tested persons, post-test counseling is required;
   4. (iv) for research if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher; or
   5. (v) for testing of a deceased to determine cause of death or for epidemiological purposes.

(b) In addition to an explanation of the test result, the person who orders the test shall be responsible for ensuring that post-test counseling or referrals as appropriate with respect to a positive or negative test result shall be provided to the person who consented to the test. In situations in which a person other than the test subject consents for the test, post-test counseling and referrals should also be provided to the test subject, to the extent the person ordering the test deems that the test subject will benefit from counseling. Such post-test counseling and referrals must include specific referral information and must address:

1. (1) coping emotionally with the test results;
2. (2) discrimination issues;
3. (3) information on the ability to release or revoke the release of confidential HIV-related information;
4. (4) information on preventing exposure to or transmission of HIV infection and the availability of medical treatment; and
5. (5) the need to notify contacts to prevent transmission, including information on State or county assistance in voluntary contact notification, if appropriate.