New State HIV Laws In Effect
by Judson N. Kempson
On March 30, a series of state laws about the Human Immunodeficiency Virus (HIV), the generally believed cause of Acquired Immunodeficiency Syndrome (AIDS), went into effect. The laws, passed in a 48-hour marathon session at the end of the legislative term in Lansing last December, represent Michigan's most comprehensive strategy to tackle the AIDS epidemic. Since their implementation, officials from the Public Health Department (PHD) have been giving talks, AIDS organizations such as Wellness Networks - Detroit have been holding workshops for their volunteers, and civil rights attorneys have been conducting seminars to decipher the laws and determine their impact.
HIV is the agent of AIDS. Once infected, a person is infected for life. Transmitted either through sharing needies or sexual intercourse, the virus destroys T4 cells which orchestrate the immune system's response to infection. Once T4 cells are sufficiently depleted, the body can no longer stave off life-threatening opportunistic infections. These infections constitute the final stages of HIV infection, known as AIDS.
There have been over 97,000 cases of AIDS reported in the United States. In Michigan, 1,200 cases have been reported, 46 in Washtenaw county. Estimates of the seroprevalence, the actual number of individuals infected with HIV, are up to 100,000 in the state and 2,500 in the county. Michigan ranks 16th in the nation. In Michigan, 95% of the AIDS cases are men, 45% are Black.
(see HIV LAWS, page 10)
HIV LAWS
(from page one)
The majority of cases in Michigan are in Detroit and its surrounding areas.
Universal reporting of both confidential and anonymous HIV antibody tests is now required. In anonymous testing, an individual uses a pseudonym or number, but true identity is not revealed. With confidential testing, the individual's name is known and the test and its result become a permanent part of the person's medical record. The PHD has conducted both anonymous and confidential testing for HIV and has always kept a record of the results. Now, private physicians and HMOs will also need to send test results to the department. The name, address and telephone number of the patient will be sent as well, unless the patient requests otherwise. Although the prospect of reporting may sound frightening, this is the way the state can get an accurate picture of seroprevalence and the incidence of infection. It is suggested that everyone who decides to get tested do so anonymously.
The department will also commence partner notification for HIV, as it does with any other sexually transmitted disease (STD). Persons identified to the health department as partners will be notified that they might have been exposed to an infectious agent. The name of the HIV-infected person will remain anonymous. In the case of anonymous testing, partner notification is assumed.
The one aspect of the new laws that will affect the greatest number of people is the marriage license stipulation. The AIDS Hotline operated by Wellness Network has received a flood of calis about it. All marriage license applicants must now obtain a certificate indicating that they have been "counseled by a physician or local health officer or designee on the transmission and prevention of venereal disease and HIV infection." Health care providers estimate that it will take at least 45 minutes to an hour to provide sufficient pre-test counseling. Given a shortage of personnel to administer such counseling, some officials predict that auditoriums of prospective brides and grooms will be counseled at the same time. Testing is not mandatory. If the individuals do decide to get tested, both partners must be informed of the results.
In this instance, Michigan learned a lesson from its neighbor. In Illinois, where last year state legislators implemented mandatory testing for state residents obtaining a marriage license, great numbers of residents who lived near the border simply got married in Wisconsin to avoid the requirement The mandatory testing law also proved to be highly cost ineffective. For each positive result, approximately $750,000 to $1 million were spent.
An initial pre-natal care examination must now include tests for HIV and hepatitis B, unless the woman does not give consent. A minor does not need to obtain parental consent in order to be tested. In an interesting twist, however, the physician who administers the test can inform the parents of the results without the consent of the minor for "medical reasons."
Perhaps the new law that will generate the most litigation concerns "health threat to others." The very definition of such an entity gives civil rights activists cause to worry. A "carrier" is someone "who harbors or who the department reasonably believes to harbor a specific infectious agent or a serious communicable disease or infection, whether or not there is present discernible disease." Such a carrier is considered a "health threat to others" if the individual has "demonstrated an inability or unwillingness to conduct himself or herself in such a manner as to not place others at risk or exposure to a serious communicable disease or infection."
It is now a felony for an infected person to engage in sexual penetration without informing the partner of seropositivity. The language of the law, which is based on the rape law, defines sexual penetration as "sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required."
According to the the law, then, an infected person who is the receptive partner in anal or vaginal intercourse is not required to inform their partner of their seropositivity, even though such activity is an effective means to transmit the virus. A physician or nurse, on the other hand, who is infected and administering a pap smear will be committing a felonious act if they do not inform their patient that they are HIV-positive.
If an individual is determined to be a health threat lo others, by whatever criteria, the health department is required to release available test data. A warning will be issued to the individual requiring that s/he seek counseling, education or treatment. If the health department does not feel as though the individual has complied with the warning, it may petitÃon the court. The court may force the individual to be tested and may hold the individual in an "appropriate facility" for up to six months. If an individual is determined by the court to be an "immediate threat," the person may be held up to 72 hours without any other process or review.
The laws also stipulate that people arrested for crimes during which HIV might be transmitted - IV drug use, prostitution and other "sex crimes" - must be informed and provided materials about HIV. If the individual is convicted, the HIV test is mandatory. The results are confidential but provided to the defendant, the court, the Department of Corrections and the victim.
All prisoners are now tested for HIV. If a prisoner refuses to be tested, they are assumed to be seropositive. If a prisoner is seropositive and engages in behaviors that transmit HIV - IV drug use, sexual behavior or "assaultive or predatory" behavior - they will be segregated. For no apparent reason, no seropositive prisoner can work in any capacity in the health care facilities of the prison. This policy applies only to prisoners and not to any other health care provider.
Any physician or health facility that administers an HIV test must receive informed, written consent from the patient as well as provide pre- and post-test counseling. Informed consent means the patient has received sufficient counseling to understand the purpose of the test, its limitations and the meaning of the results. The patient must also understand the right to confidentiality and the right to obtain an anonymous test. Informed consent is not required if a patient is tested for HIV after a health care worker has been exposed to the blood or other bodily fluids of the patient. In such a case, however, written consent is still necessary. Written consent differs from informed consent in that the patient is not counseled. Instead, s/he
(see HIV LAWS, next page)
HIV LAWS
(from previous page)
signs a form, usually upon admittance to the hospital, granting the facility the right to test. Anyone who is tested must receive post-test counseling to understand the significance of the test results.
First responders - police, ambulance drivers. emergency room attendants - who assist, aid or treat a patient who is subsequently found to be seropositive must be informed that they have potentially been exposed to an infectious agent. They are only informed that the agent is HIV upon request. There is no release of the name of the infected individual. Thus, for instance, an ambulance driver who never actually came into contact with an infected individual would be informed that s/he may have been exposed an infectious disease
Finally, on July 1, a law will go into effect that requires the testing of blood, organ, tissue, semen and breast milk used for donation purposes. Anything found to be infected will be discarded. The only exception to this law is if there is not time to test. In that case, both physician and patient must provide written consent.