Some Legal Issues Related to HIV-Disease (November 2001)

Introduction

Governmental Obligations

Testing

Privacy

Right to Know

Discrimination

Prisoners

Life Decisions

 

 Students need to know the terms in blue.

 

Introduction

There are many legal issues associated with HIV-disease. This is meant to be only a thumbnail sketch of some of the basic ideas.

Sweden was the first country (3/8/1983) to mandate the reporting of confirmed and suspected cases of AIDS. They added to that by promulgating recommendations for infection control in March of 1985. The US statement on Universal Precautions was recommended by the Centers for Disease Control in 1985, but was not mandated until the 1991 OSHA Bloodborne Pathogens Standard, which applied to all health care settings.

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Governmental Obligations

The most efficient mode of transmission is the transfusion of tainted blood or blood products. Courts have ruled that organizations/companies that distribute blood are providers of a service and hence subject to all the tort laws affecting liability. Negligence needs to be proved. When there is a need for knowing the identity of a donor, courts have favored disclosure.

Individuals who knowingly partake in activities that can transmit the virus have been charged with attempted murder, assault with a dangerous or deadly weapon, or reckless endangerment. In addition to the usual sexual acts, there have been convictions for biting, spitting, and stabbing with a syringe. The defendant must have been aware of her/his HIV status by way of testing, exhibiting symptoms of infection, or having knowledge of a previous sexual partner who is HIV+.

A false diagnosis of HIV infection can be grieved, but most courts impose a requirement of actual physical injury, rather than just emotional distress. Similarly, a failure to diagnose HIV infection is actionable.

Plaintiffs claiming fear of exposure to the virus as a reason for an action are usually required to prove that their mental distress is a result of circumstances posing an actual risk of transmission. People charged with DWI cannot reject a request for a blood test due to fear of exposure. A surgeon who transfused donor blood when an autologous transfusion was available was found liable.

Employers have a duty to protect their employees, but following the CDC's Universal Precautions is sufficient to deflect liability.

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Testing

Some courts have authorized the testing of sexual offenders, those with unauthorized syringes, and commercial sex workers. The Ninth Circuit Court has ruled that compulsory testing requires a search warrant. Furthermore, the results of a victim's HIV test need not be disclosed to the defendant.

Current law in Connecticut prohibits HIV testing without the informed specific consent of the patient. Violations can lead to charges of assault or unlawful touching. Many states give minors the right to be tested and treated for sexually transmitted diseases without the need for parental notification. Test results are protected under confidentiality laws and cannot be disseminated without the patient's informed written consent.

All states and DC require health care providers to report cases of AIDS. HIV reporting is required in 38 states. 28 of these 38 states further require the patient's name, gender, age, and race/ethnicity. 19 of these states ask for mode of transmission; 6 ask for clinical status; and 3 ask for CD4 counts. By 1/97 only 11 states classified HIV as a sexually transmitted disease and 12 authorized physicians to inform sexual partners of HIV patients of their status. Early in June of 1998, New York State classified HIV as a sexually transmitted disease and required partner notification. This was done in an attempt to stem the spread of the disease. Data from 1996 indicate that the state had 13,000 new cases of HIV reported but only 350 people were notified they had been exposed.

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Privacy

Disclosure of testing results has been a contentious issue. Current case law (Connecticut Public Act 89-246) indicates that disclosure is allowed under only the following circumstances and to the following persons:

Courts have determined that a person living with AIDS (PLWA) has a reduced privacy interest. Nevertheless, publishing of false information is defamatory. If the false information is disclosed in a judicial hearing and reported, then no liability can befall the publisher.

Unauthorized disclosure is another question. Intentional disclosure is actionable as is the failure to protect confidential records. There can be a judicial order of disclosure, but with restrictions.

Connecticut requires counseling before and after testing. Partner notification is encouraged, but not mandated. A physician may only notify a partner directly if s/he is caring for both partners involved. Partner notification may only be made by the Connecticut Department of Health Services or a physician if:

(a)   there is a significant risk of transmission to a partner;

(b)   the infected person has been counseled and has indicated s/he will not notify her/his partner;

(c)    the infected person has been advised of the intent to notify a partner;

(d)   the name of the infected person is not revealed. A health worker who has had a significant occupational exposure to a patient's blood and wants to know that patient's HIV status must file a report with her/his employer within 48 hours of exposure and get a baseline HIV test within 72 hours. Then s/he must refer to her/his employer or the Department of Health Services for other criteria that must be met to permit testing or disclosure without consent.

The federal HIV Partner Protection Act of 1998 (introduced into Congress in 1998, but not enacted) would have required physicians to confidentially report to the local public health officer all HIV+ test results and any information deemed necessary for conducting partner notification. No penalties would result from a refusal to disclose names of sex partners. Contact with named sex partners would be done without revealing the original patient's identity and all partners would be offered testing and counseling. Insurers would be prohibited from discriminating against any undergoing testing. This proposal would have extended the current federal statutes that mandate spousal notification, i.e., if a married person tests positive, the physician must make a "good-faith effort" to notify the spouse. This provision is more honored in the breach than the observance.

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Right to Know

Courts have ruled that it is a duty of HIV+ health care professionals to disclose their serostatus. It is also the duty of an aware HIV+ person to disclose her/his status. There is a duty to disclose to transfusion recipients whenever it is determined that the blood they received was ascertained to be positive.

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Discrimination

Section 504 of The Rehabilitation Act of 1973, 29 U.S.C. Section 794 covers discrimination on the basis of handicap. That section says

No otherwise qualified individual with handicaps ... shall, solely by reason of her or his handicap, be excluded from the participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal assistance ...

An individual with handicaps is any person who has a physical or mental impairment which substantially limits one or more of the person's major life activities. 29 U.S.C. Sec. 706(8) also protects any person who has a record of having such physical or mental impairment or who merely is regarded as having such an impairment. 

A physical or mental impairment is any physical condition or disorder that affects a major system of the body. The term physical impairment includes: hearing, orthopedic, speech, or visual impairments, cancer, cerebral palsy, diabetes, epilepsy, heart disease, multiple sclerosis, and muscular dystrophy. A mental impairment includes mental retardation, emotional or mental illness, and specific learning disabilities. 

The term substantially limits is left to the interpretation of the courts. 

A major life activity is any function such as caring for one's self, performing manual tasks, breathing, hearing, learning seeing, walking, and working. Someone has a record of having an impairment if the person has history of, or has been formally classified as having, a physical or mental impairment which substantially limits one or more major life activities. Someone is protected by Section 504 as a handicapped individual, even if the person has no handicap, if the person is perceived and treated by others as a person with a physical or mental impairment. 

An otherwise qualified handicapped person is a person who, with reasonable accommodation, is able to perform the essential functions of the job in question. A reasonable accommodation can include accessibility issues, restructuring jobs to eliminate duties that are peripheral to the position in question but eliminate handicapped persons, permitting part-time or flexible work schedules, purchasing specially modified equipment, etc. An accommodation is reasonable if it does not cause undue hardship to the employer.

Regulations do not permit an institution to make a pre-employment inquiry as to whether a person is handicapped, including a medical examination. But it may describe the requirements of the position and ask the applicant if she/he is able to perform those functions. An employer may condition an offer of employment on the results of a medical examination after an offer has been made and before the first day of work only if (a) such an exam is administered to all incoming employees, (b) the results are used in accordance with the laws on handicapped discrimination, and (c) all results are confidential.

The 1986 amendment to the Rehabilitation Act said that an individual with handicaps does not include someone who currently has a contagious disease, and who, by reason of such disease or infection, would constitute a direct threat to the health and safety of other individuals or who, by reason of the currently contagious disease or infection, is unable to perform the duties of the job. In Chalk v. U.S. District Court, 840 F.2d 701 (9th Circuit 1988) a federal appeals court ruled that AIDS was a handicap covered under the act. 

School Board of Nassau County v. Arline, 480 U.S. 273, 287 (1987) ruled that when evaluating whether someone with HIV infection is otherwise qualified, a two-step analysis is required. First an institution must decide if there is significant risk; second it must determine if reasonable accommodation would eliminate the risk. An accommodation is not reasonable if it either (a) poses undue financial hardship and administrative burdens on the institution, or (b) requires a fundamental alteration in the nature of the institution's programs.

The Americans with Disabilities Act of 1990, 42, U.S.C. Section 12101 et seq. extends the Rehabilitation Act to cover all private employers with 15 or more employees. Section 12112 says

No covered entity shall discriminate against a qualified individual with disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

Disability replaces handicap and is interpreted the same way. The term direct threat from the amended Rehabilitation Act is now interpreted to mean a significant risk to the health and safety of others that cannot be eliminated by reasonable accommodation.

On June 25, 1998, the Supreme Court handed down a decision in Bragdon v. Abbott which said that HIV disease is a disability and covered by the ADA. A health care provider with the necessary expertise cannot refuse to treat an HIV+ person. [On September 16, 1994, Sidney Abbott (HIV+ since 1986 but still asymptomatic) had gone to Randon Bragdon, a Bangor Maine dentist, for treatment of a cavity. She had been open about her serostatus on the patient registration form. Seeing that the cavity was at the gum line, he said he would do the work, but because of the possibility of bleeding, he would not do it in his office and insisted the procedure be done in a hospital, the added costs for which Abbott would have to pay. She sued.] The matter was remanded to the lower court where the decision favored the plaintiff Sidney Abbott. Abbott had approached the court initially claiming that the major life activity in which she was limited was reproduction. Her lawyers argued that since she was HIV+, having a child was limited because of the likelihood of her delivering a baby who was also positive. Neither her age nor her reproductive status seems to have been part of any court record.

The case Sutton v. United Airlines (1999) said that corrective measures must be taken into consideration when determining whether an impairment substantially limits major life activities for the purposes of ADA. Nevertheless, eyesight correctable with glasses is not covered.

Persons receiving Social Security supplemental payments or other disability payments are not per se qualified. Any person posing a significant health risk to others that reasonable accommodations cannot eliminate is not qualified under the law.

Cleveland v. Policy Management Systems (1999) ruled that persons who apply for Social Security disability benefits are not precluded from continuing disability discrimination lawsuits against former employers.

HIV+ people must be treated fairly and without undue restrictions in housing matters.

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Prisoners    

Those incarcerated have filed numerous suits dealing with HIV infections. First, inadequate treatment in a prison is deemed cruel and unusual punishment, hence unconstitutional on its face. Prisoners cannot be screened and segregated except for security reasons. All steps should be taken to protect both guards and prisoners from infection. The meaning of "security reasons" was expanded in a Supreme Court decision handed down on January 19, 2000. A case originating in Alabama had made its way through the court system. HIV+ inmates had been barred from more than 70 recreational, religious, and educational programs that were available to all other inmates. The prisoners brought suit on the basis of the Rehabilitation Act of 1973. In 1999 the federal appeals court ruled 8-3 against the inmates and the Supreme Court rejected he case without comment or dissent. This effectively legitimizes prison segregation of HIV+ and HIV- inmates.

Currently there are court cases contesting the testing and treatment (or lack thereof) that prisoners receive for HIV-disease and hepatitis B and C.

Further details can be downloaded from the AIDS Litigation Project, whose report can be read at

www.ama-assn.org/special/hiv/library/readroom/other98/alp1.htm

 

 

Life Decisions

People with HIV disease have been confronted with many decisions that most of us never need make. Those with life insurance policies designed to pay a death benefit can obtain either accelerated death benefits (ADB) or a viatical settlement. The accelerated death benefit allows a person to collect a fraction of their death benefit while still living. Not all insurance policies allow this. Sometimes an additional rider must be taken out. The viatical settlement allows one to obtain a discounted cash settlement for the policy by selling it to a company dealing in such transactions. Usually these companies require a maximum expected survival time of two years. From the settlement, which can range from 40% to 70% of insured value, a broker's fee must be paid, if a broker is used, and the full settlement is taxable income. Additionally, such settlements disqualify recipients from any mean-based entitlements such as Medicaid, ConnectAid, or Supplementary Security Income. Such a payment is essentially a gamble by the company buying the policy that the insured will die within a sufficiently short time to make the purchase profitable. Although this may sound a bit macabre, it provides the insured with cash for current expenses that may not be covered under other insurances. Deciding whether to accept such a settlement is a very personal decision that varies with the circumstances of each individual. For further details see the Federal Trade Commission site:

http://www.ftc.gov/bcp/conline/pubs/services/viatical.htm

 

Although many patients will have worked most of their lives and may be covered under their employer's health policies, some insurers have lifetime limits that can be easily exhausted over the time span HIV disease takes to progress. The only alternative is government support, which is getting harder to receive. November of 1998 saw Medicaid post a notice of intent to not pay for any ultra-sensitive viral load tests. For those who are managing their illness using such measures, this could have a drastic effect. Knowing your viral load is below 400 copies/mL is nowhere near as critical as knowing it is below 40 copies/mL.

Someone with HIV disease (and all other people for whom death is the only option for shuffling off this mortal coil) should plan for their eventual demise. Everyone should have a will designating their heirs, the distribution of their property, the care of any dependents, etc. Other appropriate measures include the establishment of Advanced Directives: a Living Will describing whether you want procedures or treatments, such as life-support systems, to keep you alive if you have a terminal illness; designation of a Health Care Agent to protect your health care wishes; and completion of Durable Power of Attorney for Health Care Decisions so that a proxy may make health care decisions for you, other than withdrawal of life support, food, fluids, or treatment designed solely to maintain physical comfort.

Once an AIDS patient has expired, the heirs of the estate must cope with the added expense associated with a funeral. Many morticians add a hefty surcharge (from $300 to over $1000) to their fees to accommodate for the added burden associated with the disinfection and disposal of "contaminated" materials. This may become more important (and costly) since on January 29, 2000 there was a report of a mortician contracting tuberculosis from a cadaver on which he was working. A definitive connection of the disease to the cadaver was made via DNA analysis of the causative mycobacterium.

 

Objectives: Know: privacy rights of people with HIV, legal rights inre testing. The Rehabilitation Act of 1973, Americans with Disabilities Act of 1990, and their provisions and how courts have interpreted them. In particular, know the details of Bragdon v. Abbott. Necessary end-of-life legal documents.

 

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