MDOC says it will continue to use controversial HIV form

LANSING — While advocates hailed an announcement last week by the Michigan Department Community Health to direct local health departments and agencies to review their “Client Acknowledgement” for HIV-positive persons, the Michigan Department of Corrections says it has no intention of changing its form.

“We are aware of the policy, and believe our current policy works well, given MDCH guidelines and the special circumstances in our prisons,” said Dr. Jeffrey Stieve, Chief Medical Officer at the Bureau of Health Care Services at MDOC. “There are no plans to change at this time, but I will review the ‘necessity’ of such documentation.”

Client Acknowledgement forms came under fire in February when advocates noted that they misstated the state’s HIV-disclosure law. The MDCH concurred with those criticisms, and at the beginning of the month sent a letter to local health authorities directing them to promptly review their documents — which MDCH said were not required under Michigan law. The letter also noted the documents served to stigmatize HIV and associated risk behavior, undermining public health goals.

Stieve’s comments were echoed by Richard Stapleton, administrator of the Office of Affairs for MDOC.

“Our ‘HIV Positive Post-Test Counseling Verification’ form (CHJ-465) is an appropriate acknowledgment form for use with prisoners. The intent of the DCH memorandum to local health officers does not apply to the MDOC,” Stapleton said. “Note that DCH does not ‘endorse or encourage the use of ‘client acknowledgment forms’ because their use ‘may contribute to stigmatizing HIV or associated risk behaviors as this may serve as a deterrent to individuals seeking testing to learn their HIV status, or from seeking care, if they know they are HIV-infected.’ However, this is not case with prisoners committed to the Department. We have separate requirements in the Corrections Code for confinement, testing, and counseling prisoners related to HIV (MCL 791.267). Prisoners are not deterred from testing, they are required to submit.”

MDOC was the only entity queried by Michigan Messenger that uses some form of the documents to respond. Messenger also sought comment from Kalamazoo County Health Department, Cass-Van Buren Health Department and the Macomb County Health Department, but did not receive any responses from any of those departments.

MDOC spokesman John Cordell and Stieve did not respond to follow up questions about what “special circumstances” exist in the prison system requiring the use of the documents. MDOC’s client acknowledgement form tells prisoners that if they are found in violation of administrative rules in the prison for intravenous drug use, sexual behavior or assaultive behavior which can transmit the virus, they will be placed in “Administrative Segregation.”

As Stapleton noted, all prisoners are required to be tested for HIV upon entry into the custody of the department. They are also required to undergo an extensive peer-led education program about HIV. That program was cited by the MDOC in 2010 when the department changed a controversial policy which prohibited HIV-positive prisoners from working at food service positions in the prison. The policy came under fire in 2009.

Cordell told Michigan Messenger that prisoners — just like civilians testing positive at a local health department — are not required to sign the document.

In at least three cases that Michigan Messenger is aware of, the MDOC documents have been used to prosecute HIV-positive people after they have left prison under Michigan’s felony disclosure law. Cases in Mecosta, Kent and Bay counties have all used the MDOC document as evidence of knowledge of the accused perpetrator’s HIV-positive status.

The apparent recalcitrance of the MDOC medical officials raised concerns for advocates who have condemned the use of the documents.

“We believe that there are other methods of record keeping to demonstrate that post-test counseling has been provided without having to use a Client Acknowledgment form,” says Jay Kaplan, staff attorney of the ALCU of Michigan’s Lesbian, Gay, Bisexual Transgender Project. “We also believe that there is a duty to inform any person before signing the form, for what purposes this form will be used, including under what circumstances this information will be shared.”

Rene Bennett-Carlson, managing attorney of the Center for HIV Law and Policy, was also troubled by the MDOC statements.

“The Michigan Department of Corrections maintains that its current policy ‘works well’ but in what way does this policy work well? As it stands now, MDOC’s continued use of its acknowledgment form does nothing to protect the rights of people living with HIV as it brands HIV positive persons from the moment that they enter incarceration and follows them after they leave incarceration,” says Carlson. “The MDCH recognizes that these forms discriminate and stigmatize against the HIV community. It is incomprehensible that MDOC doesn’t see that – or doesn’t care.”

Equality Michigan, a statewide LGBT advocacy group also weighed in on the MDOC statements.

“The criminalization of HIV does not become justifiable when an individual enters the gates of Michigan’s prisons. The Michigan Department of Community Health asserted that HIV disclosure documents are altogether unnecessary and cannot be treated as a contract and misleading disclosure documents will not be tolerated. This clarification applies to all of Michigan,” says Emily Dievendorf, policy director of Equality Michigan. “In light of the use of the offending documents in prosecutions, it is still a serious concern that the inaccurate and unnecessary documents remain in the health files of individuals in many counties. Our county health departments and the Michigan Department of Corrections must comply with recent clarifications by amending past practice and correcting mistakes.”