Legal & Ethical Issues

Reporting HIV and AIDS

By statute WAC 246-101, AIDS (medically diagnosed) and symptomatic HIV are reportable conditions and have been since 1984 and 1993 respectively. Asymptomatic HIV became reportable as well in 1999. It was then that the World Health Organization (WHO) announced that HIV/AIDS had become the number one killer in Africa and the fourth biggest killer worldwide.

Reporting these cases allow local and state officials to track the epidemic. It assists in providing effective planning, intervention, and efforts to reduce the transmission of HIV to other people.

Another important reason for reporting cases is that it helps assure that people living with HIV are receiving treatments as early as possible. Also, that exposed partners to the virus receive HIV testing. Case counts determine federal funding for HIV prevention. For Washington State to most benefit and help in the cause, a surveillance of complete and accurate data is done semi-annually. Visit the Department of Health website at: http://www.doh.wa.gov/ForPublicHealthandHealthcareProviders/NotifiableConditions/ListofNotifiableConditions

 

Reportable HIV & AIDS Requirements

Providers who diagnose a person with HIV and AIDS are responsible to report these “confidential” cases to the local health jurisdiction and do so in a timely manner (see chart below for time requirements). Cases not reportable are positive HIV results obtained through anonymous testing, but a positive test obtained from someone who seeks medical care for conditions related to HIV or AIDS is required to report.

“Good Faith Effort” for Notifying Spouses

In 1996, Federal Public Law made a requirement for each state to make a “good faith effort” to notify all spouses of HIV-infected persons. Anyone who is or has been a marriage partner of an HIV-infected person within ten years of the HIV diagnosis is considered a spouse.

This notification involves counseling the individual who tested positive about the importance of notifying their spouses or partners. They will be given the choice to do it themselves, allow the health care provider to do it for them, or he/she can be referred to the local health jurisdiction for assistance in notifying the spouse(s).

Reporting Requirements of HIV/AIDS for Washington State Healthcare Professionals

(Washington State HIV Surveillance Semi-Annual Report, Dec 2015)

Reporting	Item to Report	Timeline	To Whom
Health Care Provider	HIV or AIDS diagnosis	3 working days	Local Health Department
Health Care Facilities	HIV or AIDS diagnosis	3 working days	HIV to Local Health Department, AIDS to State Health Dept.
Laboratories	Any test result indicating HIV infection including a positive Western blot	2 working days	Inside King Co.—PublicHealth, Seattle & King Co. (PHSKC) /Outside King Co.—State Health Department
Laboratories	All CD4 results (absolute & %); all HIV viral load results	Monthly	Inside King Co.—PHSKC / Outside King Co.—State Health Dept.
Local Health Depts.	HIV and AIDS	Within 7 days of completion of 21 days of notification	State Health Department

Confidentiality

Confidentiality is a strong element when it comes to HIV and AIDS. All medical records must be maintained in a manner that protects the infected person. Confidential testing involves the individual giving their real name and the results of the HIV antibody test can only be known by that individual and the health care provider performing the test. Positive results become reportable to local public health.

Health care providers have special guidelines to abide by. Medical information can only be disclosed under strict circumstances. Confidentiality entails all medical information, including HIV testing and HIV results. Information must not be disclosed to anyone without an authorized signature on a release form signed by the HIV-infected person. The only exceptions include:

1. Information exchanged from one health care provider to another health care provider for on-going medical care of the patient.
2. A life or death emergency exists
3. A third party payer—insurance providers for medical payment
4. Reportable and notifiable conditions legally set under the local health jurisdiction or the Washington State Department of Health.

Violations outside of these exceptions may be cause for fees that could cost as much as $10,000 or actual damages, whichever is greater. Violating any of the mentioned above is considered a misdemeanor and civil liability actions for reckless or intentional disclosure is punishable by law.

Any potential breaches of confidentiality is the responsibility of state and county health officers to investigate. All HIV identifying information should be reported to the Washington State Department of Health.

Additional Confidentiality Protections

Due to a level of prejudice, fear, and discrimination directed at people with these conditions, additional protection exists for HIV and AIDS individuals, as it is with other selected diagnoses like mental health and substance abuse. This means that certain areas of the medical record have other confidentiality requirements to protect against disclosure of information to a wrong person or agency, which could further harm the diagnosed person.

Disability and Discrimination Laws

Federal law under The Americans with Disability Act (ADA) of 1990 and The Federal Rehabilitation Act of 1973 protects HIV and AIDS persons from any acts of discrimination. Not only is it illegal to discriminate against people who have AIDS or are HIV infected due to their medical condition, it is also unlawful to discriminate against someone who is only believed to have AIDS or HIV infection.

Any person with HIV infection and/or AIDS who feels he/she have been discriminated against on the basis of their disease are able to file a complaint with the OCR (Office for Civil Rights) of the U.S. Department of Health and Human Services, or the Washington State Human Rights Commission.

The Washington Law Against Discrimination (WLAD), enforced by the Washington State Human Rights Commission (WSHRH), clearly prohibits discrimination for those with HIV and Hepatitis C infection and assures regulation of “disabled” status. To learn more about WSHRC jurisdiction, visit www.hum.wa.gov

Anonymous complaints are not investigated by WSHRC and should be referred to the State’s Public Disclosure ACT to release a complaint. Certain circumstances will allow the Office for Civil Rights to withhold the complainant’s identity.

Stigma, Discrimination and Criminalization

According to the Global AIDS Update 2016, UNAIDS, ignorance and misunderstanding is among the greatest challenges being faced as they work toward the goal to end AIDS by 2030. UNAIDS highlights the effects of stigma, discrimination, and criminalization of people living with HIV and has found in 2016 that 72 countries have laws criminalizing HIV. The United States is not included among that group, though more than thirty states continue to include statutes criminalizing HIV. In recent years, the U.S. Department of Justice has called for modernizing HIV criminal laws.

For more details on HIV-related laws, guidelines for healthcare workers, and testing and treatment information in different states, visit The Center for HIV Law and Policy, an online national resource and advocacy organization that works to advance the rights of people affected by HIV. The website can be found at http://hivlawandpolicy.org/

Areas Covered by Protection Laws:

1. Employment
2. Rental, purchase or sale of apartment, house or real estate
3. Places of public accommodation (restaurants, theaters, etc.)
4. Health care, legal services, home repairs, and other personal services available to the general public
5. Applying for a loan or credit card, or other credit transaction
6. Certain insurance transactions

* Federal and state jurisdictions differ.

Laws Governing Employment:

Employers may not discriminate against persons with HIV infections or AIDS when it comes to employment, recruitment, hiring, transfers, layoffs, terminations, rate of pay, job assignments, or leave of absences from sickness and any other leaves that are designated as a benefit of employment by the employer.

Federal laws may differ from state to state, some not covering all employers. There are some state laws that will cover employers only if they have eight or more employees. Religiously controlled non-profits and Indian tribes may also have stipulations.

Employers are required to provide a working environment free of discrimination. Harassment, intimidation or adverse action personnel distinction is prohibited.

When a threat of discrimination is posed in the workplace, the responsibility is on the employer to provide appropriate education and supervision to employees in order to end it. Any allegations of discrimination should be taken care of promptly with no retaliation against the person who complained.

Any person believing they have been discriminated against should first document the discrimination, speak with their supervisor, and follow the employer protocol for filing the discrimination charge.

When these steps fail, the person should contact the Office for Civil Rights or the Washington State Human Rights Commission. A complaint can also be filed directly in the state court. An aggrieved person has 180 days from the alleged discriminatory incident to file.

The following are reasonable accommodations that employers are responsible for providing on the worksite for qualified disabled employees or job applicants so that they can perform the essential tasks for the job they are designated to work:

It is the responsibility of the “disabled” employee to self-identify and request a reasonable accommodation, and the employer has a responsibility in meeting that need by interacting with the person to seek the best available solution. The result should be equally effective, providing the employee the ability to function at his/her job. This should be without the employer having to change the essential nature of its work, nor involve hardship or administrative burdens for the employer.

Appropriate Non-Prejudicial Practices:

An employer should not ask questions if the job applicant is perceived as having the presence of HIV infection or AIDS unless the employer has obtained a “bona fide occupational qualification” (BFOQ) from the Washington State Human Rights Commission.

An employer should not ask lifestyle questions. These include questions like inquiring about:

1. An applicant’s religion
2. Living arrangements
3. Sexual orientation
4. Gender identity

Exceptions under federal law, superseding state law:

• Applicants for the U.S. military
• Applicants for the US Peace Corps
• Applicants for the US Job Corps
• Persons applying for U.S. citizenship

Laws to Protect the Public:

To protect the public from the spread of sexually transmitted disease (STI), including HIV, Washington State has established laws and rules giving state and local health officers the authority and responsibility to carry out certain measures when necessary.

The responsible party for enforcing public health authority within a jurisdiction is the local health officer—the physician who often also directs the operations of the local county's health department or health district. These local health officers have the ability to delegate their authority to employees they direct, as provided by law.

What health officers have the authority to do:

• interview persons infected with an STI
• notify sexual or needle-sharing partners of exposure to disease
• 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 can be sought by these health officers, providing they adhere to standards described by their state law before action can take place.

Washington State law permits an additional step for HIV cases. An HIV-infected person who continues to endanger the health of others can be brought in for detention. This is after all less restrictive measures have failed. After appropriate hearings and rulings by a court, an infected HIV person can be detained for periods up to 90 days. Counseling of the person detained is also a requirement.

Non-Compliance Reporting

Prescribed infection control measures must be initiated by all health care providers for patients who are diagnosed with a communicable disease. By state law, instruction for prevention methods is mandatory, as well as reporting certain information where impediments to or refusal to comply with these prescribed infection control measures are being violated.

Failing to comply with prescribed infection control measures (e.g., acquisition of a new STI, 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.) is cause for reporting. Local public health officers should confidentially discuss the circumstances of the case to determine if the name of the person should be reported for further investigation.

Case investigations are done by health officers or other authorized representative to determine if the evidence is credible and conduct proves endangering to public health.

Other laws and regulations concerning endangering behaviors and occupational exposures exist—some specific to professions and health provider jurisdictions. Consult your local public health official or the Washington State Department of Health for more specific information.