HIV/AIDS: State of Washington Mandatory 4 Hour Training

Part 5. Ethical and Legal Issues


Introduction

Part 1. Etiology and Epidemiology of HIV and AIDS

Part 5. Ethical and Legal Issues

Conclusion

Glossary

Resources

References

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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.

Key differences in the revised Recommendations for patients in all healthcare settings are (CDC, 2006e; Branson, et al., 2006):

  • HIV testing for patients, aged 13-64, in all healthcare settings after the patient is notified that testing will be performed unless the patient declines (opt-out screening).
  • All patients initiating treatment for TB should be screened routinely for HIV infection.
  • All patients seeking treatment for STDs, including all patients attending STD clinics, should be screened routinely for HIV during each visit for a new complaint, regardless of whether the patient is known or suspected to have specific behavior risks for HIV infection.
  • HIV testing of people at high risk for HIV infection at least once a year.
  • Screening should be incorporated into the general consent for medical care; separate written consent is not recommended.
  • Prevention counseling should not be required with HIV diagnostic testing or as part of HIV screening programs in healthcare settings.

Additional key differences in the Recommendations for pregnant women in healthcare settings are (CDC, 2006):

  • Including HIV screening in the routine panel of prenatal screening tests for all pregnant women, unless the patient declines (opt-out screening).
  • Repeat screening in the third trimester in certain jurisdictions with elevated rates of HIV infection among pregnant women.

The Recommendations emphasize the importance of voluntary testing. Some may have concerns that eliminating the recommendation for separate informed consent for an HIV test could result in some patients being tested for HIV without their knowledge. Others have asserted that requiring separate, written informed consent is a barrier that makes HIV screening difficult to conduct in healthcare settings, and that removing this requirement would make widespread HIV screening feasible (CDC, 2006).

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.

Continue to Part 6. Psychosocial Issues