HIV testing consent bill could cause insurance companies to deny coverage

LANSING — A bill proposed last month in the state House could remove a mandate that requires persons seeking a test for HIV to sign a consent form to receive the test. Those in favor of the legislation say it will remove a barrier many health care providers find cumbersome and allow them to detect and treat the infection early. But HIV advocates say the move will violate privacy rights and could open the door for insurance companies to deny coverage to HIV-positive patients.
H.B. 4583, proposed by Rep. Roy Schmidt, a Grand Rapids Democrat, would strike mentions of informed consent testing mandates and replace them provisions that would permit health care providers to conduct the test without informed consent.

Grand Rapids-based Spectrum Health requested the legislation, spokesman Bruce Rossman confirmed.

According to a statement from Spectrum:

Current state law mandates written approval from patients prior to performing a Human Immunodeficiency Virus (HIV) test. Michigan is one of only a few states that require specific informed consent for HIV testingIn our experience, this law creates a barrier to diagnosis and treatment that is inconsistent with recommendations from the Centers for Disease Control [and Prevention]. This barrier can needlessly cause HIV to go undetected and untreated, and can contribute to the transmission of the virus.

The CDC recommended opt-out testing in 2006. Michigan continues to provide opt-in testing, meaning a patient has to agree to the test prior to it being administered. In a 2007 interview with Michigan Messenger, the Michigan Department of Community Health said it opposed changing the law.

“We feel [the CDC recommendations] can be implemented successfully in the state without changing the law,” said Debra Szwedja, acting director of the MDCH’s Division of Health, Wellness and Disease Control.

And while Rossman said Spectrum Health asked for the legislation, he said the facility had not adopted or implemented a policy of wide spread HIV testing for all patients 13 to 64, as is advised by the CDC.

“We have not [implemented the CDC guidelines] under the current law because, unfortunately, a lot of our current physicians feel that it [informed consent] is a hurdle,” he said.

Rossman also said there was a particular urgency for his organization to see the law change to prevent mother-to-child transmission of the virus.

State statistics show that between January 2008 and January 2009, Kent County, home to Grand Rapids and a total population of around 600,000 people, reported no new perinatal transmissions of HIV. The number of such cases remained stable at seven.

James McCurtis, a MDCH spokesman, said this week the department was reviewing the legislation and did not have a policy stance on it one way or another.

But HIV advocates are condemning the move.

“We want to make the test more available,” said Jay Kaplan, American Civil Liberties Union of Michigan‘s LGBT project staff attorney. “But we want to see people signing informed consent for the tests.”

Kaplan said ACLU is working with Schmidt’s office to address the civil rights organization’s concerns about the legislation.

Kendra Kleber, a Royal Oak attorney specializing in representing HIV positive people, said she is very concerned about the bill. She said she worries it is a move to undermine a series of laws enacted during the same time period and addressing HIV, including the right to confidentiality.

Additionally, Kleber said as currently drafted, the legislation would have a significant impact on anonymous testing.

“The whole idea of anonymous testing is that you can control when you are tested and what happens to your results. Everything about this bill, except that little section [on anonymous testing], says you have no control over when you are tested and what happens to your results. You have no control,” Kleber said. “But the fact of the matter is that if you went to your normal doctor and had a physical last week and even if you doctor didn’t say anything to you about HIV, he could have tested you and so your results could already be in the record. Which means they are already knowable to an insurance company.”

Life and health insurance companies can decline coverage for those who are HIV positive, and by making it so that HIV status is accessible to insurers it makes it likely a person who tests positive for HIV can be declined those services, Kleber said.

“So your ability to make decisions as a reasonable, rational adult has been taken away from you by this amendment to this one statute. I find it very very, very problematic,” she said.

Schmidt spokesman Ed Kettle said a hearing on the bill could come as soon as May. He also said that the lawmaker was preparing to work with the ACLU and health care advocates to address concerns in the legislation.