N.Y. Comp. Codes R. & Regs. Tit. 9 §§ 180-1.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 180-1.5 - Administration and operation of detention

(a)Administration of detention.

(1) Each county, and the City of New York, shall designate the agency responsible for administering detention on behalf of that jurisdiction, and shall so advise the New York State Division for Youth of such designation.

(2) Governmental agencies appointed as in subdivision (a) of this section may establish and operate detention facilities, pursuant to applicable statutes and regulations, and upon certification by the division.

(3) Agencies responsible for administering detention may contract with public or nonprofit child caring agencies to operate detention facilities, pursuant to applicable statutes and regulations, and upon certification by the division.

(i) Nonpublic agencies shall assure that their corporate purposes authorize operation of detention for PINS and JD's. Organizations seeking to incorporate for the purpose of operating detention facilities must comply with section 460-a of the Social Services Law.

(ii) Written contracts or agreements shall be required between agencies administering detention and persons or agencies operating detention facilities.

(iii) Contracts between agencies administering detention and persons or agencies operating detention facilities, shall be approved by the division for both programmatic and fiscal provisions.

(iv) Each county, and the City of New York, should take reasonable steps to provide conveniently accessible and adequate nonsecure detention care. Where a county does not have conveniently accessible and adequate nonsecure detention care in conformance with the requirements of section 218-a of the County Law, or where the City of New York does not have such nonsecure detention care, a formalized arrangement may be made with another county. The fiscal and programmatic provisions of this arrangement must be approved by the division.

(4) Agencies responsible for administering detention shall assure the availability of conveniently accessible adequate detention care for each day of the year. The administrative agency shall provide for adequate available detention care during periods of vacation, sickness or other emergencies, upon approval by the division.

(5) Where a county provides regional detention care, it shall be authorized to designate a maximum number of beds that shall be available to a county.

(6) Staff and volunteers of detention providers shall not engage in or condone discrimination or harassment of youth on the basis of race, creed, color, national origin, age, sex, sexual orientation, gender identity or expression, marital status, religion, or disability. Detention providers shall promote and maintain a safe environment, take reasonable steps to prevent discrimination and harassment against youth by other youth, promptly investigate incidents of discrimination and harassment by staff, volunteers and youth, and take reasonable and appropriate corrective or disciplinary action when such incidents occur. For the purposes of this section, gender identity or expression shall mean having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth. Gender identity refers to a person's internal sense of self as male, female, no gender, or another gender, and gender expression refers to the manner in which a person expresses his or her gender through clothing, appearance, behavior, speech, or other like.

(b)Prevention and remediation of child abuse.

(1) Each detention facility shall establish, subject to and consistent with any applicable collective bargaining agreement(s) and provisions of the Civil Service Law, a written procedure to review, evaluate and verify the backgrounds of and information supplied by all applicants for employment or voluntary work. This procedure shall include provisions for receiving, at a minimum, the following information from each applicant:

(i) a statement or summary of the applicant's employment history, including but not limited to any relevant child-caring experience;

(ii) the names, addresses, and where available, telephone numbers of references who can verify the applicant's employment history, work record and qualifications;

(iii) a statement or summary of the applicant's or volunteer's educational experience showing elementary school(s), if the applicant or volunteer does not have a secondary school diploma or high school equivalency diploma, secondary school(s) or college(s) attended, highest grade level or degree attained, and any additional credits earned;

(iv) the names and addresses of educational institutions that can verify the applicant's or volunteer's educational information;

(v) a listing of special skills or completed training courses which might aid in the performance of duties of the position for which he or she is applying;

(vi) the names, addresses and telephone numbers of at least two personal references, other than relatives, who can attest to the applicant's character, reputation and personal qualifications; and

(vii) a sworn statement by the applicant, indicating whether, to the best of his or her knowledge, he or she has ever been convicted of a crime in New York State or any jurisdiction and that all statements in the application are true, to the best of his or her knowledge.

(2) Each detention facility shall develop a plan for adequate supervision of staff and volunteers, taking into consideration the population served and the type, size and physical layout of the facility, to assure appropriate care of youth and the prevention of child abuse and maltreatment. The plan shall be submitted to the division for review and approval. The plan shall include, but not be limited to, the following:

(i) staffing patterns and the rationale for such patterns;

(ii) identification of all supervisors of staff and volunteers, including the designation of onsite supervisors;

(iii) a list of the qualifications and responsibilities of the supervisors;

(iv) procedures for periodic observations by supervisors of staff and volunteer interactions with youth in program;

(v) procedures for periodic supervisory conferences for staff and volunteers;

(vi) procedures, consistent with any applicable collective bargaining agreement(s) and provisions of the Civil Service Law, for periodic written performance evaluations of staff conducted by supervisors; and

(vii) methods for distributing written supervisory procedures to employees and volunteers.

(3) Each detention facility shall develop written procedures, available onsite, for the protection of program participants when there is reason to believe an incident has occurred which would render a program participant abused or neglected as defined in section 488 of the Social Services Law. Such procedures shall include, but not be limited to, the following:

(i) Notifications. Immediate notification of suspected incidents of abuse or neglect shall be made to:

(a) the Vulnerable Persons' Central Register;

(b) local law enforcement officials, if it appears likely that a crime has been committed against a child, or confirm that such notification has already been made; and

(c) the office and the facility's administrative agency.

(ii) Investigation procedures. Immediately upon notification that a report of abuse or neglect has been made to the Vulnerable Persons' Central Register and/or local law enforcement officials, the director of the facility or his or her designee shall:

(a) preserve any relevant audio and/or visual recording;

(b) preserve any other potential evidence;

(c) obtain proper medical evaluation and/or treatment for the program participant, as needed, with documentation of any evidence of abuse or neglect; and

(d) provide necessary assistance to the Justice Center for the Protection of People with Special Needs, office and, if applicable, local law enforcement officials in their investigation thereof.

(iii) Safety procedures. Upon notification that a report of abuse or neglect has been made to the Vulnerable Persons' Central Register and/or local law enforcement officials with respect to a program participant in the detention facility, the director or his or her designee shall evaluate the situation and immediately take appropriate action to protect the health and safety of the program participant involved in the report and of any other program participants similarly situated in the facility. Additional action shall be taken whenever necessary to prevent future incidents of abuse or neglect. Any action taken should cause as little disruption as possible to the daily routines of the program participants. The following alternatives shall be considered in determining the course of action that will be taken with regard to a specific incident of alleged abuse or neglect:

(a) removal or transfer of the subject of the report, consistent with appropriate collective bargaining agreement(s) and applicable provisions of the Civil Service Law;

(b) initiation of disciplinary action against the subject of the report, consistent with appropriate collective bargaining agreement(s) and provisions of the Civil Service Law;

(c) increasing the degree of supervision of the subject of the report;

(d) provision of counseling to the subject of the report;

(e) provision of increased training to staff and volunteers pertinent to the prevention and remediation of abuse and maltreatment;

(f) removal or transfer of the program participant consistent with applicable placement procedures if it is determined that there is a risk to such program participant in remaining in that facility. The office shall be notified of any such removal or transfer; and

(g) provision of counseling to the program participant involved in the report and any other program participant, as appropriate.

(iv) Corrective action plans. Upon receipt from the Justice Center for the Protection of Persons with Special Needs (Justice Center) or the office of a substantiated report of abuse or neglect or an unsubstantiated report of abuse or neglect where the Justice Center or the office has determined that there has been a violation of the statutory, regulatory or other requirements related to the care and treatment of individuals receiving services, the director of the facility, with consideration of any appropriate recommendations received from the Justice Center or the office for preventative and remedial action, including legal action, shall:

(a) within 10 calendar days of receipt of a substantiated report of abuse or neglect, develop and implement a written plan of action to be taken with respect to an individual employee or volunteer to protect the continued health and safety of the program participant and to provide for the prevention of future acts of abuse or neglect, which plan shall include, at a minimum, those actions taken pursuant to subparagraph (iii) of this paragraph. Such plan will also describe the actions taken to address the investigation's findings. The plan shall be submitted to and approved by the office; and

(b) in the event an investigation of such a report indicates that such abuse or neglect may be attributed in whole or in part to noncompliance by the facility with provisions of article 7, article 11, or title 6 of article 6 of the Social Services Law, article 19-G of the Executive Law or the regulations of the office, develop and implement a plan of prevention and remediation which, at a minimum, shall address each area of noncompliance and indicate how the facility will come into compliance with article 7, article 11, or title 6 of article 6 of the Social Services Law, article 19-G of the Executive Law and the applicable regulations. Such plan will also describe the actions taken to address the office's findings. Such plan shall be submitted to and approved by the office and, upon approval, implemented.

(4) Training.

(i) Staff training. Subject to the amounts appropriated therefor, abuse and neglect prevention training shall be provided to all administrators, employees, and volunteers of the facility on a regular basis, but at least annually. Priority shall be given to the training of administrators, employees, consultants, and volunteers who have the potential for regular and substantial contact with the program participant in residential care.

(a) The purpose of such training shall be to increase participant's level of awareness, encourage positive attitudes and enhance knowledge and skill development in at least the following areas:

(1) abuse, neglect and significant incident prevention and identification;

(2) safety and security procedures;

(3) principles of child development;

(4) characteristics of youth in care;

(5) techniques of group and child management, including crisis intervention;

(6) laws, regulations and procedures governing the protection of children from abuse, neglect, and significant incidents, including reporting responsibilities; and

(7) relevant information which shall be provided on a regular basis by the division.

(b) Administrators may be exempted by the office from such training requirements upon demonstration of substantially equivalent knowledge or experience.

(ii) Instruction of program participant. Subject to the amounts appropriated therefor, instruction shall be provided to all program participants in techniques and procedures which will enable such program participants to protect themselves from abuse and neglect.

(a) Such instruction shall be:

(1) appropriate for the age, individual needs and particular circumstances of the youth, including the existence of mental, physical, emotional or sensory disabilities, as well as the needs and circumstances within the residential facility;

(2) provided at the time of admission in a manner which will ensure that all youth receive such instruction; and

(3) provided by individuals who possess appropriate knowledge and training, documentation of which must be retained by the facility.

(c)

(1) AIDS testing and confidentiality of HIV-related information.

Requirements regarding testing, confidentiality and precautions concerning the human immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS).

(i) Background and intent.

(a) The purpose of this section is to establish standards for the proper disclosure of HIV-related information within detention facilities certified or operated by the Division for Youth, including family boarding homes.

(b) The purpose of this section is to establish standards which limit the risk of discrimination and harm to a child's privacy which unauthorized disclosure of HIV information can cause.

(c) The purpose of this section is to establish standards which seek to enhance the safety of employees and children at detention facilities or detention programs certified or operated by the Division for Youth.

(ii) Legal basis.

(a) Sections 500 and 510-a of the Executive Law grant the director of the Division for Youth (director) the power and responsibility to adopt regulations that are necessary and proper to implement matters under his or her jurisdiction, and to set standards of quality and adequacy of facilities, equipment, personnel, services, records and programs for the rendition of services for youth.

(b) Section 2786 of the Public Health Law requires the director to promulgate regulations which provide safeguards against discrimination, abuse and other adverse actions directed toward protected individuals; provide for the proper disclosure of HIV-related information; protect individuals in contact with protected individuals when such contact creates a significant risk of contracting or transmitting HIV infection and establish criteria for determining when it is reasonably necessary for a provider of a health or social service or a State agency or a local government agency to have or use confidential HIV-related information for supervision, monitoring, investigation or administration.

(iii) Applicability. This section applies to any Division for Youth operated or certified detention facility, including family boarding homes.

(iv) Definitions pertaining to this section.

(a)HIV infection means infection with the human immunodeficiency virus or any other related virus identified as a probable causative agent of AIDS.

(b)HIV-related illness means any illness that may result from or be associated with HIV infection.

(c)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 HIV infection.

(d)Capacity to consent means an individual's ability, determined without regard to such individual's age, to understand and appreciate the nature and consequences of a proposed health care service, treatment or procedure, and to make an informed decision concerning such service, treatment or procedure.

(e)Protected individual means a person who is the subject of an HIV-related test or who has been diagnosed as having HIV infection, AIDS or HIV-related illness.

(f)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 contact;.

(g)Health or social service means any public or private care; treatment, clinical laboratory test, counseling or educational service for children, and acute, chronic, custodial, residential, outpatient, home or other health care; public assistance; employment-related services, housing services, foster care, shelter, protective services, day care, or preventive services; services for the mentally disabled; probation services; parole services; correctional services; and detention and rehabilitative services, all as defined in section 2780 (8) of the Public Health Law.

(h)Health facility means a hospital as defined in section 2801 of the Public Health Law, blood bank, blood center, sperm bank, organ or tissue bank, clinical laboratory, or facility providing care or treatment to persons with a mental disability.

(i)Health care provider means any physician, nurse, provider of services for the mentally disabled or other person involved in providing medical, nursing, counseling, or other health care or mental health service including those associated with, or under contract to, a health maintenance organization or medical services plan.

(j)Contact means an identified spouse or sex partner of the protected individual or a person identified as having shared hypodermic needles or syringes with the protected individual.

(k)Person includes any natural person, partnership, association, joint venture, trust, public or private corporation or State or local government agency.

(l)Division means the New York State Division for Youth.

(m)Child means any person between the ages of 7 and 18 years (inclusive) who has been remanded to any detention facility certified by the Division for Youth, including family boarding homes.

(n)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.

(v) Prevention of discrimination and abuse.

(a) No child or staff will be subjected to discrimination because that child is or is thought to be HIV infected. All children shall be appropriately served by detention programs certified by the division according to the needs of the child.

(b) All detention facilities shall provide for training to all direct care personnel which shall include, at a minimum:

(1) initial employee and annual in-service training regarding the symptoms, causes and transmission of AIDS or AIDS-related complex, and universal infection control procedures; and

(2) initial employee training and annual in-service training regarding legal prohibitions against unauthorized disclosure of confidential HIV-related information.

(c) A list of all employees who have had such training shall be maintained by the detention facility together with a list of those employees authorized to access confidential HIV-related information. Such lists shall be updated annually.

(d) Each facility certified by the division shall establish and promulgate policies ensuring:

(1) maintenance of records containing confidential HIV-related information in a secure manner, limiting access to only those individuals permitted access pursuant to this subparagraph (iv) of this paragraph; and

(2) procedures for handling requests by other parties for confidential HIV-related information.

(vi) HIV-related testing.

(a) Except as noted in subclause (b)(2) of this subparagraph, no physician or other person authorized pursuant to law may order an HIV-related test without obtaining written informed consent.

(1) Informed consent shall consist of providing to the child to be tested or, if such child lacks capacity to consent, as defined in subparagraph (iv) of this paragraph to the person lawfully authorized to consent to health care for such person, pre-testing counseling that includes:

(i) explanations regarding the nature of HIV infection and HIV-related illness, benefits of the test and its results, an explanation of the HIV-related test and results, the accuracy of the HIV-related test, the significance and benefits of the test and its result; and the benefits of taking the test, including early diagnosis and medical intervention;

(ii) information regarding discrimination problems which might occur as a result of unauthorized disclosure of HIV-related information and legal protections prohibiting such disclosures;

(iii) information on preventing exposure or transmission of HIV infection, including behavior which poses a risk of HIV transmission; and

(iv) an explanation that the test is voluntary and that consent may be withdrawn at any time; information on the availability of anonymous HIV testing, including the location and telephone numbers of anonymous test sites.

(b)

(1) Written informed consent must be executed on a form developed or approved by the Department of Health, pursuant to that department's regulations found at 10 NYCRR section 63.4(a).

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

(i) for court ordered testing pursuant to Civil Practice Law and Rules section 3121;

(ii) if otherwise authorized or required by State or Federal law;

(iii) for testing related to procuring, processing, distributing or use of human body or human body part, including organs, tissue, 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 person, post-test counseling is required;

(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; and

(v) for testing of a deceased to determine cause of death or for epidemiological purposes.

(c) Post-testing counseling, and referrals with respect to a positive or negative test result, shall be provided to the person who consented to the test. Such post-test counseling and referrals must address:

(1) coping emotionally with the test results;

(2) discrimination issues;

(3) information on the ability to release or revoke the release of confidential HIV-related information;

(4) information on preventing exposure to or transmission of HIV infection and the availability of medical treatment; and

(5) the need to notify contacts; to prevent transmission, including information on State or county assistance in voluntary contact notification, if appropriate.

(d) A physician or other person authorized pursuant to law to order an HIV-related test shall certify on a laboratory requisition form that informed consent has been obtained.

(vii) Confidentiality and disclosure.

(a) Access to a child's confidential HIV-related information shall be strictly limited. No flags or other markings on charts, lists on walls, or similar public displays shall be used to indicate childs' HIV status. Nothing in these regulations shall be construed to limit or enlarge access to that portion of a child's file not containing confidential HIV-related information.

(b) No person who obtains confidential HIV-related information in the course of providing any health or social service or pursuant to a release of confidential HIV-related information may disclose or be compelled to disclose such information, except to the following:

(1) the protected individual or, when the protected individual lacks capacity to consent, a person authorized pursuant to law to consent to health care for the individual;

(2) any person to whom disclosure is authorized pursuant to a release of confidential HIV-related information in accordance with the regulations of the Department of Health set forth at 10 NYCRR section 63.4(a);

(3) an agent or employee of a health facility or health care provider if:

(i) the agent or employee is authorized to access medical records;

(ii) the health facility or health care provider itself is authorized to obtain the HIV-related information; and

(iii) the agent or employee provides health care to the protected individual, or maintains or processes medical records for billing or reimbursement;

(4) a health care provider or health facility when knowledge of the HIV-related information is necessary to provide appropriate care or treatment to the protected child or offspring of that child;

(5) a health facility or health care provider, in relation to the procurement, processing, distributing or use of a human body or a human body part, including organs, tissues, eyes, bones, arteries, blood, semen, or other body fluids, for use in medical education, research, therapy, or for transplantation to individuals;

(6) health facility staff committees, or accreditation or oversight review organizations authorized to access medical records, provided that such committees or organizations may only disclose confidential HIV-related information:

(i) back to the facility or provider of a health or social services;

(ii) to carry out the monitoring, evaluation, or service review for which it was obtained; or

(iii) to a Federal, State or local government agency for the purposes of and subject to the conditions provided in subclause (19) of this clause;

(7) a Federal, State, county or local health officer when such disclosure is mandated by Federal or State law;

(8) authorized agencies certified as detention facilities by the Division for Youth. Such agency shall be authorized to redisclose such information only pursuant to the provisions of article 27-F of the Public Health Law or in accordance with the provisions of section 373-A of the Social Services Law;

(9) third-party reimbursers or their agents to the extent necessary to reimburse health care providers, including health facilities, for health services, provided that, where necessary, an otherwise appropriate authorization for such disclosure has been secured by the provider;

(10) an insurance institution, for other than the purpose set forth in subclause (9) of this clause, provided the insurance institution secures a dated and written authorization that indicates that health care providers, health facilities, insurance institutions, and other persons are authorized to disclose information about the protected individual, the nature of the information to be disclosed, the purposes for which the information is to be disclosed and which is signed by:

(i) the protected individual;

(ii) if the protected individual lacks the capacity to consent, such other person authorized pursuant to law to consent for such individual; or

(iii) if the protected individual is deceased, the beneficiary or claimant for benefits under an insurance policy, a health services plan, or an employee welfare benefit plan as authorized in article 27-F of the Public Health Law;

(11) any person to whom disclosure is ordered by a court of competent jurisdiction pursuant to section 2785 of the Public Health Law;

(12) an employee or agent of the Division of Parole, Division of Probation or Commission of Correction, in accordance with regulations promulgated by those agencies;

(13) a medical director of a local correctional facility in accordance with regulations promulgated by the facility operator. Redisclosure by the medical director is prohibited except as permitted under Public Health Law, article 27-F and its implementing regulations;

(14) a physician may disclose the confidential HIV-related information during contact notification pursuant to Public Health Law, article 27-F;

(15) a physician may, upon the informed consent of a child or, if the child lacks the capacity to consent, other person qualified to give consent on behalf of the child, disclose confidential HIV-related information to a State, county, or local health officer for the purpose of reviewing the medical history of a child to determine the fitness of the child to attend school;

(16) confidential HIV-related information may be disclosed to a governmental agency or to authorized employers or agents of a governmental agency when the person providing health services is regulated by the governmental agency or when the governmental agency administers a health or social services program and when such employees or agents have access to records in the ordinary course of business and when access is reasonably necessary for supervision, monitoring, administration or provision of services. Such authorized employees or agents may include attorneys authorized by a government agency when access occurs in the ordinary course of providing legal services and is reasonably necessary for supervision, monitoring, administration or provision of services;

(17) confidential HIV-related information may be disclosed to authorized employees or agents of a person providing health services when such person is either regulated by a governmental agency or when a governmental agency administers a health or social services program, and when such employees or agents have access to records in the ordinary course of business and when access is reasonably necessary for supervision, monitoring, administration or provision of services and when such employee or agent has been authorized by the detention facility or program pursuant to these regulations. Such authorized employees or agents may include attorneys authorized by persons providing health services when access occurs in the ordinary course of providing legal services and is reasonably necessary for supervision, monitoring, administration or provision of services;

(18) no person to whom confidential HIV-related information has been disclosed shall disclose the information to another person except as authorized by this section; provided, however, that the provisions of this section shall not apply to the protected child or a natural person who is authorized pursuant to law to consent to health care for the protected individual;

(19) nothing in this section shall limit a person's or agency's responsibility or authority to report, investigate, or redisclose, child protective and adult protective services information in accordance with title 6 of article 6 and titles 1 and 2 of article 9-B of the Social Services Law, or to provide or monitor the provision of child and adult protective or preventive services;

(20) confidential HIV-related information shall not be disclosed to a health care provider or health care facility if the sole purpose of disclosure is infection control when such provider or facility is regulated under the Public Health Law and required to implement infection control procedures pursuant to Department of Health regulations;

(21) confidential HIV information shall not be released pursuant to a subpoena. A court order pursuant to Public Health Law, section 2785 is required;

(22) where confidential HIV-related information has been obtained from an alternate anonymous testing site, sexually transmitted disease clinic or the child's private physician, the child may choose not to disclose any information to detention staff. The test results will not be disclosed to any other person unless the child, or other person authorized to give consent, gives prior written consent, pursuant to this subdivision or unless disclosed pursuant to subclause (23) of this clause. Children must also be informed that once a positive test result is disclosed, it will be shared confidentially with a limited number of people directly involved with the child's care and planning for care, as set forth below. These people will be limited to the following:

(i) the facility's medical staff caring for the child (i.e.,physician's assistant, nurse and the supervising physician of the physician's assistant or primary care physician serving the child where the facility lacks other medical staff);

(ii) the facility director or, as applicable, the family boarding home parents and the family boarding home supervisor responsible for the child's case;

(iii) the chief administrative officers of the county administering agency;

(iv) for division-operated detention facilities, the division's Office of Counsel and the New York State Attorney General's office, where such access is necessary in furtherance of that office's duties;

(23) if, in the judgment of the facility health staff and facility director or, as applicable, the family boarding home supervisor responsible for the child's case, the results must be disclosed to additional party(ies) including the child's parent(s) or guardian(s), the facility director or family boarding home supervisor shall consult with the chief administrative officer of the county administrative agency. The chief administrative officer of the county administrative agency must concur with the facility director or family boarding home supervisor, if the information is to be disclosed to others not approved by the child. In such cases the criterion used for overriding the child's objections shall be that further disclosure of the information is critically important for the child's physical or mental well-being, and that such benefit may not otherwise be obtained. At no time will confidential HIV-related information be disclosed in violation of Public Health Law, article 27-F. Any decision or action taken pursuant to this paragraph and the basis for such decision or action shall be recorded in the child's medical record; and

(24) where a child who has acquired HIV-related information through a detention employed physician or physician's assistant or through a physician maintained to serve detention children, either on a contract or fee-for-service basis, the child must be advised that such information will be disclosed as set forth in subclauses (22) and (23) of this clause.

(viii) Disclosure and release.

(a) No confidential HIV-related information shall be disclosed pursuant to a general release or subpoena without a court order, pursuant to Public Health Law, section 2785, unless such release is to another health care provider. Disclsoure is permitted for HIV-related information pursuant to a specific release form which has been developed or approved by the Department of Health. The release must be signed by the protected individual, or if the protected individual lacks capacity to consent pursuant to clause (vi)(d) of this paragraph, by a person authorized pursuant to law to consent to health care for the individual.

(b) All written disclosures of confidential HIV information must be accompanied by a statement prohibiting redisclosure. The statement shall include the following language 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 content 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. Disclosure of confidential HIV information that occurs as the result of a general authorization for the release of medical or other information will be in violation of the State law and may result in a fine or jail sentence or both."

(c) If oral disclosures are necessary, they must be accompanied or followed as soon as possible, but no later than 10 days, by the statement required in clause (b) of this subparagraph. All disclosures, oral or written, shall be recorded in the child's official record.

(d) The statement required by clauses (a) and (b) of this subparagraph is not required for release to the protected person or to his or her legal representative, for releases made by a physician or public health officer to a contact, or for releases made by a physician to a person authorized pursuant to law to consent to the health care of the protected person when the person has been counseled and the disclosure is medically necessary pursuant to Public Health Law, section 2782(4)(e). For disclosure of confidential HIV-related information from the youth's medical files to persons who are permitted access pursuant to subclauses (vii)(b)(3)-(4), (6)-(7), (9)-(10) and (16)-(17) of this paragraph, it shall be sufficient for the statement required by clauses (b) and (c) of this subparagraph to appear in the child's medical record.

(ix) Protection of others at significant risk of infection.

(a) Staff and child protection. Since medical history and examination cannot reliably identify all children infected with HIV or other blood-borne pathogens, blood and body-fluid precautions shall be consistently used for all children. This approach, referred to as "universal blood and body-fluid precautions" or "universal precautions," or "universal infection control procedures" shall be used during job-related activities which involve or may involve exposure to significant risk body substances as defined in Department of Health regulations at 10 NYCRR, section 63.9.

(b) Facilities and programs shall abide by any additional regulations regarding protective barriers or procedures as may be promulgated by the division.

(c) Staff will educate children regarding behaviors which pose a risk for HIV transmission.

(d) Each detention facility shall:

(1) implement and enforce a plan for the prevention of circumstances which could result in another employee or individual becoming exposed to blood or body fluids which could put them at risk for HIV infection, during the provision of services. Such a plan shall include:

(i) use of generally accepted protective barriers during the job-related activities which involve, or may involve, exposure to blood or body fluids. Such preventive action shall be taken by the employee with each youth and shall constitute an essential element for the prevention of bi-directional spread of HIV;

(ii) use of generally accepted preventive practices during job-related activities which involve the use of contaminated instruments or equipment which may cause puncture injuries;

(iii) training at the time of employment and yearly staff development programs on the use of protective equipment, preventive practices, and circumstances which represent a risk for all employees whose job-related tasks involve, or may involve, exposure to blood or body fluids;

(iv) provision of personal protective equipment for employees which is appropriate to the tasks being performed; and

(v) a system for monitoring preventive programs to assure compliance and safety; and

(2) implement and enforce a plan for the management of individuals who are exposed to blood or body fluids. The plan shall include:

(i) a system for voluntary reporting of all exposures thought to represent a circumstance for significant risk;

(ii) availability of services for evaluating the circumstance of a reported exposure and providing appropriate follow-up of the exposed individual which includes:

(A) medical and epidemiological assessment of the individual who is the source of the exposure, where that individual is known and available;

(B) if epidemiologically indicated, HIV counseling and testing of the source individual as permitted under Public Health Law, article 27-F. Where the HIV status is not known to the exposed individual, disclosure can be made only with the express written consent of the protected individual or pursuant to a Supreme Court order; and

(C) appropriate medical follow-up of the exposed individual; and

(iii) assurances for protection of confidentiality for those involved in reported exposures.

(x) Monitoring. Employees and agents of the division responsible for monitoring, inspecting, supervising, and investigating programs certified by the division shall have access to confidential HIV information to the extent necessary to discharge those responsibilities.

N.Y. Comp. Codes R. & Regs. Tit. 9 §§ 180-1.5

Amended New York State Register December 23, 2015/Volume XXXVII, Issue 51, eff. 12/23/2015

Renumbered from 180.5 New York State Register July 25, 2018/Volume XL, Issue 30, eff. 7/25/2018