State House to consider changes to HIV testing law

LANSING — Under legislation being considered Tuesday in the state House, when a patient signs into a medical facility for treatment, the paperwork will now contain a consent for HIV testing.

Supporters of the legislation, which include the Michigan Department of Community Health, Spectrum Health System in Grand Rapids, and the American Civil Liberties Union of Michigan, say the law will routinize HIV testing and bring Michigan into line with the Centers for Disease Control and Prevention guidelines. Those guidelines state that all U.S. residents, 13-64, should be tested for the virus annually. And, they say, it changes nothing.

“The legislation does not change anything. It was an attempt to remove informed consent,” says Shelli Weisberg, legislative director of the ACLU of Michigan. “We saved a tree here. We got everything back we were at risk of losing.”

Weisberg says the legislation merely allows the doctor’s office to insert consent for HIV-testing into general medical consent forms. She says that patients will still receive information about the test and what a positive result could mean — just like under current law.

However, under current law, doctors ordering an HIV test are required to provide pre-test counseling to patients which explains in-depth how the virus is transmitted, what the patient’s risk factors are, and what a possible positive test result can mean. Once a doctor has provided that conversation, the physician is required to have the patient sign a state provided “Important Health Information” form, which is an in-depth informed consent document.

The new legislation only requires a physician to provide information which was mandated as part of the counseling process in the past.

Opponents say the current law is not broken.

“It doesn’t make sense to me. I am very disappointed. I am very disappointed,” says Kaye McDuffie, a health educator and certified HIV test counselor. “And if it does pass — and for some reason draconian laws do pass — I hope that somebody, whether it’s MI POZ (Michigan Positive Action Coalition, an activist group for people with HIV) or APM (AIDS Partnership Michigan), would insist they add a component that the people administering the test themselves are required to get minimal training with doing risk assessment, risk reduction and referral assistance for those patients. For me that is that would be a bottom line. I would like a whole lot more to make it into a Mercedes Benz or a Rolls Royce but I think without those things they are providing a disservice to their clients and patients.”

Josh Moore, a victim advocate from Triangle Foundation, says the advocacy group will only support the legislation if it contains an amendment mandating counseling and informed consent.

“I am very concerned about anyone testing without informed consent and counseling. It’s dangerous and irresponsible,” says Moore.

The legislation was introduced by Rep. Roy Schmidt (D-Grand Rapids) at the behest of Spectrum Health Systems in Grand Rapids. Spectrum spokesman Bruce Rossman told Michigan Messenger in April of last year the legislation was necessary because the health care provider found that getting informed consent from patients for an HIV test was an obstacle. However, Rossman said Spectrum had never attempted to implement the current law as standard practice.

“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.

Activists from Michigan Positive Action Coaltion say that hospitals in Detroit regularly perform the current law’s mandated informed consent testing process, to the tune of thousands of tests a year, without any issues.

“I feel it is really, really wrong to change a law at the behest of a corporate entity that hasn’t even tried to implement what exists, to say that it is too onerous,” says McDuffie.

She says she understands the desire to fulfill the CDC guidelines and routinize testing, but says the new legislation will eliminate several very important parts of the process that help patients cope with a positive diagnosis, help them find the resources to live a healthy life, comply with the law and protect their privacy.

“You can’t do that without training the medical providers and personnel, because whether people want to believe it or not, HIV and AIDS is not like other diseases — in terms of stigma, in terms of discrimination, in terms of feelings of hopelessness that many people feel when they are initially diagnosed,” says McDuffie. “Until it happens — in the general public — how do you know where to go? You don’t even know that resources exist.”

Potential insurance problems

The proposed bill will impact insurance coverage, and does little to address the emotional crisis that an HIV-positive diagnosis can cause in an individual. Opponents also argue that the consent can be “buried” in a pile of paperwork patients sign every time they show up at the doctor’s office, and patients may be completely unaware they have given consent for the test. This, opponents say, could lead to people being diagnosed with the virus that causes AIDS without ever knowing that they were tested.

“This becomes a part of your medical record, which becomes part of what your what your insurance company can access, I have real problems with that,” says McDuffie, who notes that insurance carriers can refuse to provide coverage for HIV because it is a pre-existing condition. It could also lead to insurance companies denying other insurance coverage, as Michigan Messenger reported last year.

Doctors unprepared for aftermath of positive diagnosis

The new legislation also will leave diagnosing a person with HIV in the hands of physicians ill-equipped to handle the situation without adequate training, opponents say.

McDuffies says in her 13-years as a test-counselor she has dealt with situations where patients at a doctor’s office have been diagnosed with HIV, but provided with no referrals for counseling, services such as substance abuse treatment or even a referral to an infectious disease specialist. This, she says, is “devastating” for a patient.

Patient could face potential criminal problems

In addition to not providing adequate referrals, an HIV-positive diagnosis carries with it the potential of being charged with a felony if an infected person fails to disclose his or her infection to a sexual partner. The legislation does not require the physician to inform patients who test positive about this, opening the door, McDuffie says, to creating an unknown risk for criminal sanctions.

McDuffie says giving good information about the legal requirements is crucial. She described situations where a client would bring in their partner for HIV testing, but during a test counseling session, it will come out that the HIV-positive person has not disclosed his or her infection to their partner.

McDuffie is prevented by law from informing that person of the client’s HIV status, but the situation can often be remedied through counseling with the HIV-positive client.

“I’ll say you do know that you are required to disclose this It could be a felony if you don’t. They say nope I just moved here from such and such state, don’t have to disclose. Initially I thought they were lying, but not every state requires disclosure. So that’s a problem.”

The law only requires that health department officials inform individuals of the criminal law, not physicians.

Referrals crucial to future health of patients

MI POZ and McDuffie say those who test positive have to be referred to an infectious disease specialist.

“We have known for over 15 years that people diagnosed with HIV/AIDS have a better health outcome, longer life and better quality of life if they are dealing with an HIV specialist,” says McDuffie. “Doctors who have seen one case, or even three, have no clue. And those patients have horrible outcomes.”

But ACLU’s Weisberg says that is off topic in relation to the change in the law.

“Nothing like that (referring a person to an infectious disease specialist) was mandated before,” she said. “I can’t even imagine a mandate like that in the law.”

Privacy issues also pose a problem

Opponents also express concern about privacy issues. There are extensive laws in Michigan regarding how HIV/AIDS related treatment information is to be maintained and protected in a health care facility or physician’s office. In August of 2009 the Michigan Department of Community Health released a guidance memo on confidentiality. That 10-page memo addresses everything from legal sanctions for those who disclose a person’s HIV status without permission, to e-mail communications, to keeping HIV information in locked filing cabinets.

Physicians who diagnose a patient with HIV would be required to follow the laws just like local health departments and community based organizations, yet nothing in the current legislation acknowledges the legal restrictions placed on records relating to an HIV diagnosis.

In addition, all HIV-positive test results are required to be reported to the state. But under the law, physicians can report the results anonymously. McDuffie says many physicians are unaware of this.

“My experience has been that medical providers are not educated to know that they can report a positive test anonymously, so they immediately report it confidentially, even if the patient requests the anonymous option,” she said. An anonymous report means that a person’s identity is not revealed, whereas a confidential report contains the person’s name, age, address and other contact information.

Once reported, the state coordinates with the local health department to contact the individual. This in turn results in letters and or phone calls to the person from health officials, placing the confidentiality of their status at risk.

The privacy issue raises concerns because the Triangle Foundation’s Moore says his organization will report next month that Michigan saw a 55 percent increase in discrimination based on someone’s HIV positive status in 2009.

State Rep. Marc Corriveau (D-Northville), chair of the House Health Policy Committee, says he expects the Tuesday morning hearing to bring out those issues.

“It sounds like we really need to know if the current law is working or not,” he said. “I expect we will listen to testimony and go from there.”

Corriveau said he did expect the legislation to pass the policy committee, where it would move the House floor for a full vote. It would then have to be reconciled with similar legislation that passed the state Senate late last year.