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Reporting HIV/AIDS
An estimated one-fourth of the approximately 1 million persons
in this country who are living with HIV do not know they are
infected (CDC, 2006). That's approximately 250,000 persons
who could be spreading HIV to their partners unknowingly.
This unwitting spread of HIV infection is part of the reason
why the Center for Disease Control and Prevention (CDC) issued
new guidelines in September, 2006 regarding HIV testing. The
Revised Recommendations for HIV Testing of Adults, Adolescents,
and Pregnant Women in Healthcare Settings (CDC, 2006)
aim to make HIV testing a routine part of medical care in
addition to expanding the gains made in diagnosing HIV infection
among pregnant women. The goal is to make HIV testing may
be a routine part of healthcare with yearly testing integrated
into physicals similar to other tests used for screening such
as cholesterol, Prosthetic Specific Antigen (PSA), and stools
for occult blood. As HIV screening becomes a more routine
aspect of medical care, more people will know they are infected
with HIV and hopefully will utilize prevention measures.
AIDS and HIV are reportable conditions in Washington State,
by statute WAC 246-101. AIDS (medically diagnosed) and symptomatic
HIV infection have been reportable conditions in Washington
since 1984 and 1993 respectively. In 1999, asymptomatic HIV
infection also became reportable.
Reporting of HIV and AIDS cases assists local and state
officials in tracking the epidemic. It also allows for effective
planning and intervention to be provided in the effort to
reduce the transmission of HIV to other people.
In the case of HIV or AIDS, providers who have made that
diagnosis on a patient, must submit a confidential case report
to the local health jurisdiction within 3 days.
Positive HIV results obtained through anonymous testing are
not reportable. However, once a patient with positive results
seeks medical care for conditions related to HIV or AIDS,
the provider is required to report the case to the local health
department.
Spousal Notification
Federal Public Law 104-146 (1996) requires that states take
action to require that a "good faith effort" be made to notify
all spouses of HIV-infected persons. A "spouse" is defined
as anyone who is or has been the marriage partner of
an HIV-infected individual within 10 years prior to the HIV
diagnosis.
Notification means that if the test result is positive,
the individual testing positive will be counseled about the
importance of notifying spouses and partners and will be given
the choice to notify his/her spouse(s), to allow the healthcare
provider to notify the spouse(s) or refer to the local health
jurisdiction for assistance in notifying the spouse(s).
Confidentiality
All medical records are confidential and must be maintained
in a manner that protects that confidentiality. There are
special requirements around HIV and AIDS, found in WAC 246-101
and RCW 70.24.105.
Confidentiality of medical information means that a person's
medical information (including HIV testing and HIV results)
may not be disclosed to anyone unless the individual signs
a release of information form. However, there are exceptions
to this. Medical information can be disclosed under certain
circumstances including:
- When it is given from one health provider to another health
care provider for related on-going medical care of the patient
- In a life or death emergency
- To a third party payor (insurance provider)
- In the case of reporting notifiable conditions to the
local health jurisdiction or the DOH
Violation of the above-mentioned laws is a misdemeanor and
may result in civil liability actions for reckless or intentional
disclosure up to $10,000 or actual damages, whichever is greater.
It is the responsibility of the county's health officer to
investigate potential breaches of confidentiality of HIV identifying
information and report those to the DOH.
Some areas of the medical record have additional confidentiality
requirements because disclosure of the information to the
wrong person or agency could mean additional harm to the patient.
It has been determined that there exists a level of prejudice,
fear and discrimination directed at people with these medical
conditions. Therefore, there is a balance between civil protection
and information access.
Disability and Discrimination
People with AIDS and HIV are also protected by federal law
under Title II of the Americans with Disability Act (ADA)
of 1990 and Section 504 of the Federal Rehabilitation Act
of 1973, as amended. In Washington State, the Washington Law
Against Discrimination (WLAD) regulates disabled status and
explicitly prohibits discrimination on the basis of HIV and
Hepatitis C Infection. RCW 49.60.l74. The WLAD is enforced
by the Washington State Human Rights Commission (WSHRC).
Persons with HIV infection and/or AIDS who feel discriminated
against on the basis of their disease may file a complaint
with the Office for Civil Rights (OCR) of the U.S. Department
of Health and Human Services, or the Washington State Human
Rights Commission.
WSHRC jurisdiction information can be found on its website,
www.hum.wa.gov.
The WSHRC does not investigate anonymous complaints, and may
have to release a complaint under the State's Public Disclosure
Act. In certain circumstances, OCR will not disclose a complainant's
identity.
HIV infection and AIDS are medical conditions that are considered
disabilities under the Washington State Law Against Discrimination
(RCW 49.60) and the federal Americans with Disability Act
of 1990 (ADA) and Section 504 of the Rehabilitation Act of
1973.
These laws means that it is illegal to discriminate against
someone who has AIDS or is HIV infected, on the basis of their
medical condition. It is also illegal to discriminate against
someone who is 'believed' to have AIDS or HIV infection, even
though that person is not, in fact, infected. The areas covered
in the law are:
- Employment;
- Rental, purchase or sale of apartment, house or real
estate;
- Places of public accommodation (restaurants, theaters,
etc.);
- Healthcare, legal services, home repairs, and other personal
services available to the general public;
- Applying for a loan or credit card, or other credit transactions;
- Certain insurance transactions.
Note: Federal and state jurisdictions differ.
Employers may not discriminate against persons with HIV infections
or AIDS in:
- Employment
- Recruitment
- Hiring
- Transfers
- Layoffs
- Terminations
- Rate of pay
- Job assignments
- Leaves of absence, sick leave, any other leave or fringe
benefits available by virtue of employment
Note that state and federal laws do not cover all employers.
For example, state law does not cover employers with
fewer than eight employees, religiously controlled non-profits
and Indian tribes.
Employers are required to provide and maintain a working
environment free of discrimination. They must assure that
no harassment, intimidation or adverse action personnel distinction
is made in terms and conditions of employment based on HIV
status. If a worksite situation develops that poses the threat
of discrimination, it is best practice for the employer to
provide education and supervision to employees in order to
end harassment, the use of slurs and/or intimidation. An employer
should promptly investigate allegations of discrimination,
take appropriate action, and not retaliate against the person
who complained.
If someone is in a situation in which they feel they are
being discriminated against, they should first document the
discrimination, speak with their supervisor, and follow the
entity's internal process to file a discrimination charge.
However, it is not necessary to follow an internal grievance
process. If these remedies do not work, a person should contact
the Office for Civil Rights or the Washington State Human
Rights Commission. An aggrieved person can also file directly
in state court. A complaint must be filed within 180 days
of the alleged discriminatory incident.
Employers are responsible for providing reasonable worksite
accommodations which will enable a qualified, disabled employee
or job applicant to perform the essential tasks of a particular
job. Reasonable accommodation means modifications to a worksite
or job, in the context of the entire employer's operation,
such as:
- Providing special equipment
- Altering the work environment
- Allowing flex-time
- Providing frequent rest breaks
- Allowing the person to work at home (telecommute)
- Restructuring the job
An employee with a disability must self-identify and request
a reasonable accommodation. The employer must engage in an
interactive process with the requestor. The reasonable accommodation
grant may not be exactly the same one as requested by the
employee, but can be equally effective. The employer does
not have to change the essential nature of its work, or engage
in undue hardship or heavy administrative burdens. The essential
functions of the job must be accomplished, with or without
reasonable accommodations.
When a person goes for a job interview or is hired, the employer:
- It is best practice for an employer to NOT ask questions
directed at the perception or presence of HIV infection
or AIDS, unless based on a "bona fide" occupational qualification
(BFOQ) from the Washington State Human Rights Commission.
RCW 49.60.172 and WAC 246.100.204.
- It is best practice for an employer to not ask lifestyle
questions such as inquiring about an applicant's religion,
living arrangements, sexual orientation or gender identity.
Note: Chapter 49.60 RCW, the Washington Law Against Discrimination,
prohibits discrimination based on age, creed, religion,
race, color, national origin, sex, sexual orientation
and gender identity, HIV and HCV status, whistleblower
retaliation, marital status (housing and employment),
families with children (housing), or the presence of any
sensory, mental or physical disability or the use of a
trained dog guide or service.
Exceptions to this are applicants for the U.S. Military,
the Peace Corps, the Job Corps, and persons applying for U.S.
citizenship.
Behaviors Endangering the Public
Health
Washington State law (RCW 70.24) and rules (WAC 246-100 and
246-101) gives state and local health officers the authority
and responsibility to carry out certain measures to protect
the public health from the spread of sexually transmitted
disease (STD), including HIV.
The local health officer is the physician hired to direct
the operations of the local county's health department or
health district. Included in the broad responsibilities of
the health officer is the authority to:
- Interview persons infected with an STD;
- Notify sexual or needle-sharing partners of exposure
to infection;
- Order persons suspected of being infected to receive
examination, testing, counseling or treatment;
- Issue orders to cease and desist from specific conduct
that endangers the public health of others.
Court enforcement of these orders can be sought. State law
delineates the standards that must be met before action by
the health officer may be taken.
For HIV, Washington State law permits an additional step
- the detention of an HIV-infected person who continues to
endanger the health of others. After all less restrictive
measures have been exhausted, a person may be detained for
periods up to 90 days after appropriate hearings and rulings
by a court. The detention must include counseling.
By state law and rule, healthcare providers are required
to provide instruction on infection control measures to the
patient who is diagnosed with a communicable disease. They
are also required to report certain information to the local
health officer where there are either impediments to or refusal
to comply with prescribed infection control measures.
For example, healthcare providers who have knowledge that
a specific patient is failing to comply with infection control
measures (e.g., acquisition of a new STD, sex without disclosure
of HIV status prior to sexual partners, failure to disclose
HIV status to needle-sharing partners, or donating or selling
HIV-infected blood, etc.) should contact the local public
health officer to discuss the circumstances of the case and
to determine if the name of the person should be reported
for investigation and follow-up.
The health officer or other authorized representative will
investigate the case if credible evidence exists that an HIV-infected
person is engaging in conduct endangering the public health.
There are also other laws and regulations concerning behaviors
endangering and occupational exposures. These may be specific
to professions and to the jurisdictions of public health officers.
For more specific information, talk with public health officials
in your area, call the Washington State Hotline at 1-800-272-2437,
or ask a knowledgeable person to provide the information to
your group.
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