State health policy raises red flags for HIV activists

A 2006 policy guidance from the Michigan Department of Community Health that places some HIV-positive people on a statewide list without recourse for being removed from the list has advocates raising concerns about its legality.

The document — Recalcitrant Behaviors Among HIV/AIDS Infected Populations: Guidance for Local Health Department Response to Health Threat To Others Situation — outlines policy actions local health departments can take under the state’s Public Health Code to prevent the transmission of HIV. Under this policy guidance, local health departments are directed to investigate allegations against HIV-positive persons that they have engaged in behavior which might spread the virus.

The policy defines those covered by it as those who fail to disclose an HIV-positive status to sex partners or intravenous drug using partners. The policy says those who know they are HIV-positive have a legal responsibility to disclose that status, but Michigan law only mandates HIV-positive individuals disclose prior to sexual penetration “however slight” and does not cover the sharing of needles.

Once an investigation has determined that a person is recalcitrant, or not disclosing his or her status, the policy says local health officials are required to issue a warning letter to the person. That letter, called a Warning Notice, requires the person to cease activities. It can also mandate a person submit him or herself to a local health authority for counseling, additional infectious disease testing and more.

The notice is sent by registered, return receipt mail or delivered in person by a health official.

A person who fails to respond to a Warning Notice can be brought into circuit court, where a judge need only determine by a preponderance of the evidence, a lower standard of proof than required in any other criminal proceeding, that a person is a health threat to others. Once that determination has been made, a judge can issue court orders including up to six months detention for a person who is determined to be a health threat.

In extreme cases, a local heatlh department can actually detain a person it has determined is a heath threat to others. The detention can last up to 72 hours, and is followed with a court hearing in circuit court.

Once a Warning Notice has been issued, a health officer can file information with the MDCH to have the case registered in a central database. The guidance indicates the referral should include the name, home address, employer, employer address, educational institution the person may attend and more.

“Historically, MDCH’s Guidance to Address Recalcitrant Behaviors, offer lph [local public health] assistance to effectively work with clients who are identified as a health threat under Michigan law. Local public health officers have a great deal of autonomy in responding to health threat to other situations,” wrote MDCH spokesperson James McCurtis in an email to Michigan Messenger. “For those that choose to respond, it is helpful to have standards in place which promote consistency and insightful thought in the application of Michigan’s HTTO statute. The recalcitrant client case file is simply a resource tool to promote these elements by local public health. The file is used internally, and has been in place for the past 15 or more years.”

McCurtis says that currently there are 21 Michigan residents on the list. He also says, in spite of the language in the policy that the names of persons who are determined to be an HTTO [Health Threat to Others] are kept indefinitely, the names are removed once a person is deemed in compliance.

“Troubling” civil liberties implications

Advocates for gay rights and the HIV-positive argue that this policy violates rights and undermines the goal it purports to achieve.

“The public health challenge posed by HIV and AIDS is best addressed by education, counseling and prevention rather than detracting from these efforts by creating a complex pseudo-punitive system such as Michigan’s policy,” says Nusrat Ventimiglia, director of victim services at Equality Michigan. ”Furthermore, the policy’s serious civil liberties implications, including seeming threats to due process rights, is troubling at the very least.”

Ventimiglia says the policy raises serious concerns about Constitutional rights for HIV-positive persons. She says under the policy guidance a person has no ability to challenge the allegations against him or her before a Warning Notice is authorized. Additionally, she said, there appears to be no way for a person to get his or her name removed from the central database once it is entered in the central Health Threat to Others database at the MDCH.

“The department’s policy should not be dictated by a political response to some contemplated egregious cases of reckless behavior,” says Ventimiglia. “The HTTO policy not only unnecessarily costs the state precious resources, but it has the potential to further discourage individuals from getting tested and it creates possibilities for abuse of individual rights through an over-broad policy with seemingly no mechanism for redress where mistakes are made.”

Catherine Hanssens, executive director of the Center for HIV Law and Policy in New York City, says she too is troubled by the policy guidance.

“The fact that one winds up permanently on such a list based on reports of what a partner is reported to have said is just more evidence of the way that some health officials continue to single out HIV for special, and especially bad, treatment — telling communities it’s just like diabetes, a chronic manageable illness, no big deal, when working to increase numbers tested without counseling or informed consent, then reverting to a characterization of HIV as deadly, dangerous, toxic highly infectious and the person living with it as wholly responsible for prevention once the test turns up positive,” says Hanssens.

“The guidance is not rooted in sound public health or policy, but in political considerations reflected in Michigan legislation,” Hanssens says. “Health risk is defined by what one does or doesn’t tell a partner, not by the behavior in which a partner and an index patient engage. The same behavior that transmits HIV is not at issue as long as both parties are aware that they are endangering their health.”

Others say those concerns are overblown.

Jay Kaplan from the ACLU of Michigan’s Lesbian, Gay, Bisexual and Transgender Project says the policy is very limited in scope, and does not appear to have serious implications for those living with HIV.

“With regards to civil rights implications, I think that once again, this is a very limited situation and scenario and is not a general policy for which all persons living with HIV will be subjected to,” Kaplan says. “I think that as long as the Department has confidentiality control mechanisms on the data base, limits access to this information, and will close the file when information suggests that the allegations were false or that the individual will comply with prevention efforts, civil rights concerns should be satisfied.”

The policy, however, allows health departments to initiate an HTTO investigation when an HIV-positive person is diagnosed with any other sexually transmitted infection. That infection itself is taken as evidence of being a threat to others the policy says.

And while the policy allows the state to create a list of persons with HIV who have been determined to be an HTTO, Kaplan says it does not violate a Michigan law which prohibits health departments from creating and keeping a roster of names of persons with HIV.

The policy is not the reality on the ground

It also appears that local health departments are reluctant to go as far as state law would allow. Messenger contacted two local health departments — Ingham and Kent — to ask about how the policy is implemented locally.

Ingham County Deputy Health Officer Renee Canady says that the county has never submitted any names or information to the state HTTO database.

“When we have a person we have determined is a health threat to others, we use that as an opportunity to educate, rather than as punitive,” Canady says.

Denise Bryan, who runs Kent County’s HIV programs, says the county refers between two and five cases a year to the central database. But those cases are only referred after a thorough investigation that determines a person is a threat. She says that includes allowing a person accused in such scenarios of having a chance to talk about his or her situation with counselors.

“As public health you can’t coming riding into some one’s life and say we’re taking over,” says Bryan. She says failing to disclose an HIV-positive status is complicated by a host of social issues including substance abuse, stigma, domestic abuse and more.

“It is used very judiciously,” says Bryan.