saying, "This is as far as we can go in the absence of legislative action." Mayersohn announced she would reintroduce her bill in January 1996. Pataki, supporting Mayersohn, said he would sign the bill if it crossed his desk.
Over a period of five months, the state health department worked with the governor's office to develop rules and an implementation plan for what was being called the "Consented Newborn HIV Testing Program." As implemented on May 1, 1996, the regulations required that women in labor must sign a written consent form, and if neither consent nor refusal is present a physician may order the HIV test. If the woman provided written consent, she would receive the results of her newborn's HIV test, would consent to follow-up testing of the baby after discharge to determine if the baby was truly infected, and would authorize the disclosure of the baby's test result to appropriate programs and the state health department to ensure that the baby received follow-up and specialty medical care. The facility providing maternity services would be responsible for identifying a physician to receive the HIV test results, preferably the baby's pediatrician. Post-test counseling would be provided at the time the woman was notified of the test results, and the pediatrician was required to order a polymerase chain reaction (PCR) test on the newborn to determine if the infant was HIV infected or was only manifesting the mother's antibodies. If the state newborn screening program did not receive the PCR specimen within five to six weeks after birth, it would contact the hospital designee or pediatrician for further follow-up.
Women could refuse notification of results, in which case the screening would remain anonymous and be used for epidemiologic purposes only. If a woman in the newborn setting did not provide written consent or refusal, her physician could act in the absence of parental consent "when a medical emergency exists for the infant." According to state health department officials, over the nine-month period of the Consented Newborn HIV Testing Program, this emergency provision was exercised only four times—in two cases the babies had been separated from their mothers, and in one case the mother was comatose.
Notwithstanding the compromise reached over the lawsuit, in the months surrounding the implementation of the Consented Testing Program the mandatory testing legislation reintroduced by Mayersohn and Velella gained considerable momentum. In late April, House and Senate negotiators came to an agreement over mandatory testing as part of the Ryan White CARE Act reauthorization. House Republicans agreed to support the position of the Senate conference committee, the American Medical Association, and the National Governor's Association calling for a five-year trial period of voluntary testing before instituting mandatory newborn testing. As signed in June, the Ryan White CARE Reauthorization Act required states to demonstrate that they had satisfied one of the following criteria, or face the loss of their Title II funding: either (1) a 50% reduction in AIDS cases from perinatal transmission compared with 1993 data; (2) HIV testing of at least 95% of pregnant women who had received at least two