The New York State Department of Health (NYSDOH) received a total of 38 comments, which all expressed support for the proposed amendments to Sections 23.1 and 23.2 of Title 10 of the Official Compilation of Codes, Rules and Regulations of the State of New York.

Comments were received from health care providers that provide treatment to patients who are HIV-positive, community-based organizations and government agencies.

Comment:

The vast majority of the comments were similar in their content and support for the proposed regulation, but also suggested adding “care coordination services as needed” to the list of services that are required to be provided by clinics and local health departments.

Response:

The intent of this regulation was to add HIV to the existing group B in Section 23.1. NYSDOH did not propose to create any new local mandate for the diagnosis and treatment of patients in group B, and therefore the suggested new language will not be added at this time.

Comment:

One commenter supported the proposed regulation but suggested revisions to clarify the impact of the proposed regulations, if any, on conditions and procedures for State aid under 10 NYCRR Part 40.

Response:

No changes have been made to the regulations in response to these comments, but NYSDOH will clarify the impact of the regulations on State aid reimbursement in guidance as needed.

Comment:

One commenter supported the proposed regulation but also requested revisions to include more explicit language to ensure minors can access HIV prevention and treatment services, and this commenter suggested amendments to 10 NYCRR § 23.4.

Response:

The intent of this regulation was to add HIV to group B in Section 23.1, which will permit minors to consent to HIV treatment. NYSDOH did not propose to make any changes to the regulation regarding minor consent, generally. No changes have been made to the regulations in response to this comment, but NYSDOH will continue to provide guidance regarding situations in which minors may consent to care as permitted by law.

Comment:

Some commenters expressed concern that the proposed regulation could have the effect of making it a misdemeanor under PHL § 2307 for HIV-positive individuals to have sexual intercourse in some circumstances.

Response:

NYSDOH is not aware of any instance of an individual being charged with a misdemeanor under PHL § 2307. Notably, PHL § 2307 was added in 1943 to prevent the spread of diseases such as syphilis and gonorrhea to members of the military during World War II. According to the legislative history, the law was amended in 1946 to apply where someone “knowingly exposed [another] person to a venereal infection.” Legislative Memorandum, 1946 New York State Legislative Annual, p. 191. Thus, to the extent that this section of law is enforceable, NYSDOH interprets it as inapplicable to individuals who have sexual intercourse where they either (1) do not know they are infected, or (2) do know they are infected and reveal that information to their consenting partners. Further, the Department interprets the law as only applying to individuals who knowingly expose another individual to an acute, bacterial venereal disease such as syphilis or gonorrhea. No changes have been made to the regulations in response to these comments.