Representative Harold Brubaker North Carolina BOARD OF Representative Richard Cessar Senator Doug Cruce Michigan Representative Garey Forster Louisiana Representative Brad Gorham Rhode Island Representative Augusta Hornblower Massachusetts Senator Owen Johnson New York Representative Gib Lewis Texas EX-OFFICIO MEMBER Mr. Ronald Scheberle GTE Corporation AMERICAN LEGISLATIVE EXCHANGE COUNCIL OFFICERS AND BOARD OF DIRECTORS NATIONAL CHAIRMAN SECRETARY Representative Frank Messersmith Senator William Raggio Florida Nevada FIRST VICE CHAIRMAN TREASURER Delegate Ellen Sauerbrey Representative Gwen Bronson Maryland Vermont SECOND VICE CHAIRMAN INIMEDIATE PAST CHAIRMAN Representative Fred Noye Representative David Halbrook Mississippi AT-LARGE MEMBERS OF EXECUTIVE CONEMITTEE Representative Michael Simpson Idaho DIRECTORS Representative Jean Mathews Missouri Senator James Neal Delaware Pat Nolan California Senator Ray Powers Colorado Representative Penny Pullen. Illinois Senator Don Stitt Wisconsin Honorable Paul Thiede Minnesota EXECUTIVE DIRECTOR Samuel A. Brunelli Washington, D.C. THE POLITICS OF HEALTH A STATE RESPONSE TO THE AIDS CRISIS MICHAEL TANNER and the ALEC National Working Group on State AIDS Policy LIBRW I eumflt: AFFAIRS SFWIISE MR 1? 1990 or ms ANGELES ATION zpresen orida RST zlegate aryland ECOND presen Al ;presen1 Cal lpresent lnator lchigan Jpresent fuuisiana gpresent lode Isle gpresent assachu enator 0 ew York ppresent zxas r. Ronal: 'l'E Corps The American Legislative Exchange Council (ALEC) is the nation's largest bipartisan individual membership organization serving State Legislators. ALEC is a non-profit, non-partisan, tax exempt organization founded by State Legislators and dedicated to preserving individual liberty, basic American values and institutions, productive free enterprise, private property rights and limited representative government. ALEC is classified as a Section 501 (3) organization under the Intemal Revenue Code. It is further classified as a "non--private" "public") organization under Section 509 (2) of the Code. Individuals, corporations, companies, associations, and foundations may support the work of ALEC through tax deductible gifts, the principle source of ALEC's funding. Nothing in this volume is intended to influence the passage of any legislation currently before State Legislatures. Library of Congress Catalog Card Number 89-081698. Copyright 1989 American Legislative Exchange Council. All rights reserved. Designed and Produced by Hallowell, Maine ALEC NATIONAL WORKING GROUP ON STATE AIDS POLICY Representative Richard Davis Delaware Ms. Cheryll Bissell National Institute of Justice Representative Brenda Burns Arizona Representative Theresa Esposito North Carolina Senator John Ford Tennessee Mr. Kirby Hannan Metpath, Inc. Hon. Shelby Leary West Virginia Dept of Labor Representative Susan Grimes Munsell Michigan Patrick Moore, Esq. O'Keefe. Ashenden, Lyons Ward Prof. Leonard Nelson Cumberland Law School Mr. Tom Ritter Alexander Hamilton Life Insurance Representative Lester White Alabama Representative John Wrzesenski Arizona Mr. J. Brian Munroe Hoffmann-La Roche Senator Barbara Blanton Mississippi Representative Bonnie Sue Cooper Missouri William Filante California Representative Paul Jones Ohio Delegate Martha Klima Maryland Senator Tarky Lombardi New York Ms. Lisa Morin Assistant to Congressman Bill McCol- lum (R-FL) Mr. William Myers Free Congress Foundation Center for State Policy Representative Phil Pankey Colorado Mr. Alan Bronson Smith Nationwide Insurance Senator James West Washington Delegate S. Vance Wil1dns,Jr. Virginia I s. ACKNOWLEDGEMENT Th A - . merican Legislative Exchange C011I'lCll acknowledges with artf . . . eep the generous support of its individual, C0 . rpora an oundation supporters, who make possible all that ALEC accomplishes, including this book SPECIAL ACKNOWLEDGEMENT Th' . . 1S ook would not have been possible without the months 1 ff - . on was Working Group's Chaiy 833 and ielflefs leadership 01' the men. epresentative Richard Davis of Delaware and Mr. I. - Government Affairs Manager of State Dear Legislator: Every half hour in America someone dies of Yet, despite this terrible tell, we have been unable to implement a coherent public health strategy for dealing with this modern plague. Instead, we have allowed political special interests to paralyze the legislative process and block effective public health meas- ures. This politicization of the public health process is exacting a deadly price. Constitutionally, under our federalist system of government, the states are charged with being the primary custodians of the public health. It is appropriate, therefore, for ALEC, as the nation's largest bipartisan, individual membership organization of state legislators, to take the lead in developing a prudent public health approach to the AIDS epidemic. ALEC, and its 2,300 legislative members from both political parties and all 50 states, intends to set the terms of the debate and change the agenda on AIDS policy in state capitols across America. We can no longer afford to allow an effective state AIDS policy to be held hostage to special interests. As state legislators, an awesome responsibility has been placed in your hands. ALEC stands ready to assist in developing and implementing an AIDS policy that safeguards the public health and saves lives. Sincerely, Samuel A. Brunelli Representative Frank Messersmith Executive Director Florida ALEC National Chairman TABLE OF CONTENTS Forward Representative Richard Davis and Mr. I. Brian Munroe What is Testing, Reporting and Partner Notification Model HIV Testing and Reporting Act Model HIV Partner Notification Act AIDS and Prisons Model HIV Testing of Prisoners Act AIDS and Insurance Model HIV Insurance Testing Act The Limits of Confidentiality Model Victims of Sexual Assault Protection Act Model Emergency Services Personnel Protection Act Extraordinary Situations Model HIV Assault Act Model Emergency Public Safety Measures Act Protecting the Blood Supply Model Blood Safety Act AIDS Education Model AIDS Prevention Education Act Ensuring Access to Health Care Resolution Urging Insurance Companies to Provide Coverage for Experimental Drugs Model Individual Medical Account Act Model Drug Liability Act Appendix I: Recommendations of the Presidential Commission on the Human Immunodeficiency Virus Epidemic Appendix II: A Summary of State AIDS Policies Appendix Glossary 99 107 109 117 121 133 134 137 139 147 161 FORWARD To date, nearly 105,000 Americans have contracted AIDS. More than 51,000 have died. Some projections indicate that by 1991, 270,000 people will have been stricken by the disease and 179,000 will have died. The Centers for Disease Control esti- mates that 1.5 million Americans now carry the HIV virus but have not yet contracted the disease. Other estimates range as high as 4 million, and many health researchers believe that nearly all those infected will eventually succumb to the disease. Every state has reported at least one AIDS case, and 18 states, the District of Columbia and Puerto Rico have all reported at least 1000 cases. While extensive research is ongoing, no cure is in sight. Li] AIDS is an issue of tremendous national importance. Across the country state legislators are grappling with solutions to the many complex questions posed by the spread of this deadly disease. Who should be tested? Should such testing be mandatory? Should insurers be able to test for HIV and consider such test results in issuing policies? What about confidentiality? AIDS education? Treatment and drug availability? How can we protect health care workers and others who face accidental exposure? Who will pay for the escalating cost? To help answer these and other important questions, the Ameri- can Legislative Exchange Council established the Na- tional Working Group on State AIDS Policy. Drawing on the expertise of both state legislators and the private sector, the National Working Group has spent more than six months explor- ing the myriad public policy issues surrounding this tragic epidemic. We have examined the latest scientific and political literature and heard from legal and medical experts, as well as individuals struggling to deal with the everyday consequences of AIDS infection, at public hearings in Sacramento, California and Washington, DC. i I THE POLITICS OF HEALTH We believe that in many areas the response of state government to the AIDS epidemic has been dangerously misguided. A seri- ous threat to the public health has been allowed to become a political football, trapped between rival political agendas. If the states are to develop a realistic response to the AIDS crisis, they must realize that AIDS is first and last a public health issue. Policies that protect the public health and limit the spread of the disease should be encouraged. Policies which contribute to the sprea of AIDS should be avoided. This code of model legislation is our suggestion for a sound state approach to the AIDS epidemic. We do not pretend that it will offer a complete and total solution to the problem. But, taken in its entirety, we believe that this code will offer guidance to legislators looking for information and direction in facing what may be the single biggest public health threat of our time. I would like to thank all those who took the time to provide the National Working Group with information, either through public testimony or by written presentation, particularly: Mr. Bruce Artin of the US Public Health Service; Dr. Eric Stephen Berger, former President of the American Council on Science and Health; Dr. Theresa Crenshaw, a Los Angeles sex therapist and a member of President Reagan's Commission on the Human Immu- nodeficiency Virus Epidemic; Dr. Thomas Gadacz, Chief of Surgery at the Baltimore Veterans Administration Hospital and a teaching fellow at the Johns Hopkins University School of Medi- cine; Dr. Candace Miller, Director of Operations for Metpath, Inc.'s Insurance Testing Services; Dr. Will O'Connor of the HIV Eradication Foundation; Dr. Robert Redfield, Chief of the Infec- tious Disease Unit at the Walter Reed Army Institute of Research; Ms. Norma Satler of the Visiting Nurses and Hospice Associa- tion of San Francisco; Martin Schneiderman, Esq., an attorney with Steptoe and Iohnson and former professor of employment law at Georgetown University Law School; Mr. Ira Singer, Presi- dent of Nova HealthCare Group and a consultant to the National Foundation for Infectious Diseases; Mr. Shepherd Smith, Execu- tive Director of Americans for a Sound AIDS Policy; Mr. Phillip FORWARD 3 Sowa, Administrator of San Francisco General Hospital; and Dr. Basil Veraldzis, Clinical Director of the Whitman-Walker Clinic. We would also like to thank Dr. Richard Hom, Vice President of Roche Biomedical Laboratories for taking the National Working Group on a tour of a Roche Biomedical AIDS testing facility, and the doctors and staff of Children's Hospital in Washington, DC for their efforts to acquaint us with the unique problems of pediatric AIDS. Finally, we would like to express our appreciation to the Ameri- can Legislative Exchange Council, its Officers, and members, and particularly to those members of the ALEC Staff that made this project possible: Executive Director Samuel Brunelli, Legislative Director Michael Tanner, and Legislative Assistants Amy Hanson, Monique van Suchtelen and Nicole Olmstead. Sincerely, Representative Richard Davis Delaware I. Brian Munroe Hoffmann--La Roche Co--Chairmen, ALEC National Working Group on State AIDS Policy WHAT IS AIDS The United States Centers for Disease Control (CDC) officially 1 defines Acquired Immune Deficiency (AIDS) as "a disease at least moderately predictive of a defect in cell-medi- ated immunity, occurring in persons with no known cause for diminished resistance to disease" and "characterized by the presence of one or more specified 'indicator' diseases" such as Kaposi's sarcoma, primary brain disseminated Myco- bacterium avium-intracellulare (MAI), and certain protozoal, noncongenital virus, and fungal infections. 1 s, AIDS is a life--threatening illness damaging the body's ability to withstand infection. The types of infections which characterize AIDS are generally either quite rare or unusually aggressive, and, outside of AIDS, are normally found in individuals with hereditary immune disorders or patients taking certain immunosuppressive drugs 2 Because such infections take advantage of an individual's weak- ened immune system, they are termed "opportunistic" infec- tions. AIDS is believed to be caused by the human immunodeficiency virus (HIV), which is also known as Human Virus Type and Virus (LAV). 3 HIV belongs to a type of virus known as retro- viruses. Retroviruses carry their genetic code in ribonucleic acid (RNA). Through an enzyme known as a reverse transcriptase the retrovirus' RNA can be converted to DNA. The virus then lives and replicates itself within the host cell. HIV primarily attacks a type of white blood cell which is essential to the proper function of the human immune system. After infecting the the HIV reproduces and causes the cell to release HIV buds" into the body's circu- latory system where they can infect more 5 As the body produces more to combat the invading virus, more become infected, starting a continually repeating cycle. As the HIV belongs to a subspecies of retrovirus called cytopathic retroviruses which kill their host cells, the THE POLITICS OF HEALTH THE HUMAN IMMUNODEFICIENCY VIRUS Physical Structure RNA Reverse Transcriptase 24 18 gp 41 gp 120 Source: Retrouirus Learning Guide, Abbott Di38n?3fi?5 Educafionallservice 11 Its in the death of the host cell. The becomes "overloaded.' eventually be' coming unable to produce 1YmPh?CYte3' leaving the body helpless against new infections." . - - - he virus' One of the primary difficulties in dealing HIV 'St . latency period. belongs to known as lentiviruses. which_repl1C_ate 0W 311 . latent and chronic infections in their hogts. Sa viduals infected with HIV may not deV9_0P marl Some studies now indicate that thisperiod may average 10 years. 3 However, even while himself showing no of the disease (many individuals are not even aware that they are in ected] the individual is able to transmit the virus to others. 9 - - - toms that do not fall alized is.bei.ng_ increasingly wise individuals may include Persistent fevers>> d1?" 9'33 I?lg individu- unexplained weight loss, and extfeflle fatlgue-IDS ficl ted C0m_ als are now considered to be suffering from A a plex or ARC. WHAT IS As a result, the President's Commission on the Human Immunodeficiency Virus Epidemic was led to declare: "The term is obsolete. infection' more correctly defines the problem. The medical, public health, political, and community leadership must focus on the full course of HIV infection rather than concentrating on later stages of the disease (ARC and AIDS). Continual focus on AIDS rather than the entire spectrum of HIV dis- ease has left our nation unable to deal adequately with the epidemic." '3 WHO HAS To date, more than 105,000 Americans have contracted AIDS. More than 51,000 have died. 1' Some projections indicate that by 1991, 270,000 people will have been stricken by the disease and 179,000 will have died. 15 In 1986, the U.S. Public Health Serv- ice, using limited data, estimated more than 1.5 million Ameri- cans are currently infected with HIV. 1" Other estimates have varied widely. 17 Unfortunately, the refusal of the Public Health Service to require state reporting of HIV prevalence rather than confirmed AIDS cases -- has prevented a more accurate projection. As Shepherd Smith, Chairman of Americans for a Sound AIDS Policy (ASAP) told ALEC's National working Group on State AIDS Policy, "When you see the figures on the current number of AIDS cases, you are actually looking at the epidemic as it was seven to ten years ago." The first AIDS cases diagnosed occurred almost exclusively in male homosexuals; so much so that AIDS was originally known as GRID -- Gay Related Immune Disorder. 19 Gay or bisexual males continue to comprise the largest single category of indi- viduals with either AIDS or HIV, representing 61% of persons with AIDS. 2? However, intravenous drug users now comprise 21% of AIDS cases, and represent the fastest growing category of individuals with the disease. 2' 8 THE POLITICS OF HEALTH WHAT IS 9 ESTIMATED AIDS CASES BY YEAR OF DIAGNOSIS HIV infection is growing rapidly among minority populations. 2' AND YEAR OF - U.S. I As of 1988, blacks represented 25?/o of adult and 56% of pediat- 1932 .. 1992 ric AIDS cases reported in the United States. 23 Hispanics repre- sented an additional 13% of adult and 20% of pediatric cases. 3' NUMBER Minorities represented more than 70% of all cases of women with AIDS. 35 80,000 HOW IS AIDS 60,000-' Currently three methods of transmitting HIV have been docu- mented: sexual transmission, including male to male, male to 40'000_ female, and female to male transmission; parenteral transmis- sion, by blood and blood products or sharing intravenous drug 20 000_ paraphenalia; and parinatal transmission, either transplacen- tally or via breastmilk. 3" Although HIV exists in several bodily fluids, a person acquires 1932 1983 1934 1985 1986 1937 1988 1939 1990 1991 1992 the infection through contact with an infected individua1's Estimates include inflation by 10% in recognition of underreporting to CDC l_310'_3d 01' Semen and Possibly Vaginal 5eCreti?nS' 27 Sexual actiV' Estimates are based on May 1933 model projections ity is the most common way to transmit HIV. 2" Numerous studies have identified receptive anal intercourse among male as one of the most efficient methods of transmit-f tin the isease. 39 However, studies, as well as examination 0 AIDS CASES BY CATEGORY thegepidemiology of the disease in Africa, provide ample evi- 7% dence that the virus is transmissible via heterosexual inter- Male Homosexual, course as well. 3? Evidence also indicates that HIV is transmis- Bisexual and sible in both directions among heterosexuals, male to female Intravenous Drug Use and female to male, although male to female may be somewhat 21% more likely. 3' Intravenous Drug Use Heteroseffigl Contact HIV is also spread through direct exchange of blood or blood products. This mode of transmission occurs most often among 3% intravenous drug abusers who share injection needles, and Undetermined hemophiliacs and others who receive blood transfusions. 32 Dr. 2% Stephen Joseph, New York City Commissioner of Health, reports Hemophiliacs that HIV is spreading among drug users virtually unabated and 1% predicts that the rate of HIV infection among intravenous drug Donation users may eventually overtake the rate among homosexual ecipen men. 33 This is a particularly ominous trend, since intravenous drug users may provide a point of entry for the virus into the general population. 3' For example, one study showed that half Sourw Centers for Disease Control of intravenous drug users had heterosexual contact with a non- drug-using partner. 35 10 THE POLITICS OF HEALTH WHAT IS 11 Transfusion-associated HIV infection occurred primarily from the late 1970's until the introduction of the ELISA test for HIV antibodies in 1985. 3" However, it still occurs on occasion. 37 as much as $800 million for A1DS--related services. Nearly $160 million of that amount will be concentrated in four states: Cali-- 1 fornia, Florida, Massachusetts, and New York. Federal govem- Studies indicate that HIV can be transmitted by a wide variety of blood components or products, including packed red cells, frozen plasma, clotting factors, whole blood, and platelets. 3? Hemophiliacs have been particularly hard hit by this transmis- sion mode, with nearly 10,000 of the nation's 14,000 hemophili- acs having been infected. Finally, and tragically, HIV can be transmitted from mother to child. The risk of HIV infection for a baby born to an infected mother is approximately 50%. This transmission may occur in several ways, including: in the uterus, through maternal circula- tion; during birth, through ingestion of blood or other infected fluids; and after birth, through infected breast milk. 4' Transmis- sion to babies has now reached the point where AIDS is the ninth leading cause of death among children under the age of four. There is no evidence that HIV can be transmitted by casual contact. Some concern has been raised by recent evidence suggesting the presence of HIV in tears and saliva. 45 However, there has been no confirmation that HIV can be transmitted in this way. In fact, the evidence argues persuasively against casual transmission. In one study, 619 household contacts of AIDS victims were investigated to determine whether the infec- tion was transmissible through the casual contacts of daily family life. In all cases there were no special precautions or protections. Glasses, utensils and food were shared. Not one member among the 619 contacts became infected with HIV. 47 It should be pointed out, however, that while HIV itself is not transmissible through casual contact, many of the opportunistic infections associated with AIDS or ARC, such as tuberculosis, are, and may require additional precautions. 4" AIDS AND THE STATES As the level of government charged with being the chief guard- ian of the public health, the states have been on the front lines in to control the epidemic. *9 This year states will spend ment expenditures are estimated" to top $723 million. These figures include only funding for such services as counseling, teaching, patient care, and administrative costs. 5? Of the majority of state expenditures, more than $500 million, comes from allocation of Medicaid funds, but $200-$300 million will come from general revenues. The state spending the most state-only money on AIDS-related services are: California ($76.9 million); New York ($52.9 million); Florida ($17.8 million); Massachusetts ($14.8 million); New Jersey ($13 million); Con- necticut million); Illinois million); Washington million) and Michigan million). At the other end of the scale, Idaho, Iowa, Montana, North Dakota, South Dakota, Ver- mont, West Virginia, and Wyoming are spending no state-only funds on AIDS services. 5' STATE HIV-RELATED EXPENDITURES FY 1989 State State Only Funds - Per Capita Colorado $290,000.00 $0.09 Connecticut $6,861,471.00 $2-12 Delaware $2 78,323.00 $0-42 Florida $1 7,765,244.00 $1.44 Georgia $4,840,215.00 $0-75 12 THE POLITICS OF HEALTH State State Only Funds Per Capita Massachusetts $14,754,308.00 $2 .5 1 Michigan $5,239,300.00 $0.57 Minnesota $2 ,997,000.00 $0.70 Mississippi $500,000.00 $0.19 Missouri $1,509,763.00 $0.29 New Mexico $462,489.00 $0.31 New York $52,884,926.00 $2.95 North Carolina $400,000.00 $0.06 North Dakota $0.00 $0.00 Ohio $2,103,300.00 $0.19 South Dakota 3 Tennessee $308,900.00 $0.06 Texas $2,336,572.00 $0.14 Utah $273,400.00 $0.16 Vermont $0.00 $0.00 Note: Washington, DC spent $6,113,000; a per capita average of $9.91. (Source: Intergovernmental Health Policy Project) WHAT IS 13 States have also been active on HIV-related public health legisla- tion. Since 1983, when a handful of states passed the first AIDS- related legislation, state concern and legislative activity has multi- plied each year. 52 In 1989, state legislatures considered nearly 500 pieces of AIDS-related legislation and passed 75. 53 Every state and the District of Columbia has considered some type of AIDS- related legislation. 5' More than 200 AIDS-related state laws have been enacted. 55 Every state has reported at least one AIDS case, and 18 states, the Distirct of Columbia and Puerto Rico have all reported more than 1000 cases. 5" AIDS CASES AND ANNUAL INCIDENCE RATES PER 100,000 POPULATION. BY STATE, REPORTED SEPTEMBER 1987 THROUGH AUGUST 1988 AND SEPTEMBER THROUGH AUGUST 1989, AND CUMULATIVE TOTALS, BY STATE AND AGE GROUP. THROUGH AUGUST 1989. September 1987- September 1988- Cumulative Totals August 1988 August 1989 State of Adults/ Children residence Number Rate Number Rate adolescents 13 years old Total Colorado 324 9.6 322 9.3 1,062 6 1,068 Connecticut 426 13.2 417 12.9 1,264 45 1,309 Delaware 71 11.1 70 10.8 196 4 200 District of Columbia 544 87.4 555 89.5 1,836 25 1,861 Florida 2,373 19.4 3,148 25.1 8,458 230 8,688 Iowa 36 1.3 52 1.8 141 3 144 Kansas 84 3.4 94 3.7 263 3 266 Kentucky 87 2.3 102 2.7 271 5 276 Louisiana 451 9.8 470 10.1 1,395 22 1,417 Maine 37 3.1 47 3.9 132 2 134 14 THE POLITICS OF HEALTH September 1987- September 1988- Cumulative Totals August 1988 August 1989 State of Adults! Children residence Number Rate Number Rate adolescents 13 years old Total Missouri 383 7.5 392 7.6 1,062 9 1,071 Montana 15 1.8 14 1.6 34 34 Nebraska 38 2.3 45 2.8 119 1 120 Nevada 149 14.8 157 15.2 394 3 397 New Hampshire 39 3.7 51 4.8 120 4 124 Ohio 492 4.6 464 4.3 1,413 22 1,435 Oklahoma 144 4.2 153 4.5 435 9 444 Oregon 202 7.4 195 7.1 607 3 610 871 7.4 1,025 8.7 2,889 52 2,941 Rhode Island 88 8.9 83 8.4 257 6 263 Vermont Virginia 318 5.4 442 7.4 1,223 23 1,246 Washington 429 9.4 513 11.1 1,426 10 1,436 West Virginia ~Wisconsin 114 2.4 127 2.6 379 1 380 Wyoming 4 0.8 15 2.9 25 25 U.S. Total 29,473 12.0 32,290 13.0 101,503 1,703 103,206 Total 30,452 12.2 33,690 13.4 104,210 1,780 105,990 I Source: Centers for Disease Control WHAT IS 15 In the comi-ng years, AIDS will impose sharp demands on all American political and social institutions. To meet them effec- tively, not only public health officials, but the broader public and, particularly, legislators, must have a full understanding and appre- ciation of the issues involved. Such an understanding will be critical if the challenges of a maturing epidemic are to be met forcefully. 57 NOTES 1 Centers for Disease Control, Revision of the CDC Surveillance Case Definition for Acquired Immune Deficiency M. M. W. R., Supplement, August 14, 1987. 2 Mayer, The Clinical Spectrum of I-HV Infections: Implications for Public Policy in THE AIDS EPIDEMIC: PRIVATE RIGHTS AND THE PUBLIC INTEREST (O'Ma1ley ed. 1989). 3 A. Hughes, I. Martin, and P. Franks, AIDS HOME CARE AND HOSPICE MANUAL (1988). 4 Id. 5 Allain, Hetrovirus Learning Guide, (Abbott Diagnostics Educational Services: 1988). 6 Carey, Clinical Spectrum of AIDS in AIDS: A HEALTH CARE MANAGEMENT RESPONSE (Blanchet ed. 1989). 7 Mayer supra note 2. 8 Testimony of Dr. Robert Redfield, Chief, Division of Infectious Diseases, Walter Reed Army Institute of Research, to ALEC National Working Group on State AIDS Policy, April 29, 1989; See also Gibofsky and Lawrence, AIDS: Current Medical and Scientific Aspects I. Leg. Med. (Dec 1988). 9 Chavigny, Turner and Kibrick, Epidemiology and Health Policy Imperatives for AIDS, in THE AIDS EPIDEMIC: PRIVATE RIGHTS AND THE PUBLIC INTEREST (O'Malley ed. 1989). 10 Mayer supra note 2. 16 THE POLITICS OF HEALTH 11 Hughs, Martin and Frank supra note 3. 12 Id. 13 Report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic (1988). 14 Centers for Disease Control, AIDS Cases by Age Group, Exposure Category, and Sex, Surveillence Report (September 1989). 15 Testimony of Mr. Bruce Artin, U.S. Public Health Service to the ALEC National Working Group on State AIDS Policy, April 29. 1989. 16 Quarterly Report to the Domestic Policy Council on the Prevalence and Rate of Spread of HIV and AHDS in the United States, I.A.M.A. (May 13, 1989). 17 See e.g. U.S. General Accounting Office, AIDS Forcasting: Undercounting of Cases and Lack of Key Data Weaken Existing Estimates (June 1989); Furmento, The Incredible Shrinking AIDS Epidemic, American Spectator, May, 1989. 18 Testimony of W. Shepherd Smith, Executive Director, Americans for a Sound AIDS Policy, to the ALEC National Working Group on State AIDS Policy, April 29, 1989. 19 See R. Shilts, AND THE BAND PLAYED ON (1987). 20 Peterman and Curran, Sexual Transmission of Human Immunodeficiency Virus, (Oct. 21, 1986). 21 See National Research Council, AIDS: SEXUAL AND INTRAVENOUS DRUG (1989); L. Siegel, ed., AIDS AND SUBSTANCE ABUSE (1988). 22 Artin supra note 14. 23 Curran, Iaffe, et. al., Epidemiology of HIV Infection and AIDS in the United States, Science, February 5, 1988. WHAT IS 1 7 24 Id. 25 Guinan and Hardy, Epidemiology of AIDS in Women in the United States, 1981-86, I.A.M.A. (April 17, 1987). 26 Redfield and Burke, Shadow on the Land: The Epidemiology of HIV Infection, Viral Immunology (Spring 1987). 27 Surgeon General's Report on Acquired Immune Deficiency (1988). 28 Green, The Transmission of AIDS, in AIDS AND THE LAW (1987). 29 Institute of Medicine, National Academy of Sciences, CONFRONTING AIDS: DIRECTIONS FOR PUBLIC HEALTH, HEALTH CARE, AND RESEARCH (1986). 30 Allain supra note 5. 31 Green supra note 28. 32 Id. 33 Written statement of Dr. Stephen Joseph, New York City Commissioner of Health, to the ALEC National Working Group on State AIDS Policy, submitted April 29, 1989. 34 National Research Council, AIDS: SEXUAL BEHAVIOR AND INTRAVENOUS DRUG (1989) 35 Murphy, Heterosexual Contacts of Intravenous Drug Abusers: Implications for the Next Spread of the AIDS Epidemic in AIDS AND SUBSTANCE ABUSE (Siegel ed. 1987). 36 Institue of Medicine supra note 29. 37 Testimony of Dr. Theresa Crenshaw to the ALEC National Working Group on State AIDS Policy, March 13, 1989. 38 Institute of Medicine supra note 29. 18 THE POLITICS OF HEALTH 39 Janowitz, Safety of the Blood Supply -- Liability for Transfusion-Associated AIDS, ].Leg. Med. (Dec 1988). 40 Allain supra note 5. 41 Id. 42 National Foundation for Infectious Diseases, AIDS Is Ninth Leading Cause of Childhood Death, The Double Helix (March/ April 1989). 43 Redfield and Burke supra note 26. 44 Groopman, Salahuddin, et.al., in Saliva of People with AIDS-Related Complex and Healthy Homosexual Men at Risk for AIDS, Science (1984); Blood in Saliva Can Transmit AIDS, International Health Watch Report (Ianuary 1989), Passionate Kissing and Microlesions of the Oral Mucosa: Possible Role in AIDS Transmission, I.A.M.A. (January 13, 1989). 45 Fujikawa, Palestine et. al., Isolation of Human Virus Type IH from the Tears of a Patient with the Acquired Immune Dejficiency Lancet (1985). 46 Gibofsky and Laurence, AIDS: Current Medical and Scientific Aspects, I. Leg. Med. (Dec 1988). 47 Allain supra note 5. 48 Smith supra note 18. 49 See U.S. Public Health Service, AIDS: A Public Health Challenge - State Issues, Policies and Programs (1987). 50 Rowe and Keintz, National Survey of State Spending for AIDS, Intergovernmental Health Policy Project (1989); Aids Impact on State Coffers Varies, Washington Times, August 31, 1989; Cost of State AIDS Services Continues to Mount, From the State Capitals: Public Health (September 18, 1989WHAT IS 19 Lewis, Acquired Immunodeficiency State Legislative Activity, I.A.M.A. (Nov. 6, 1987). American Legislative Exchange Council Survey. Intergovernmental Health Policy Project, A Synopsis of State AIDS Laws Enacted During the 1983-1987 Legislative Sessions (1988); Intergovernmental Health Policy Project, A Summary of AIDS Laws From the 1988 Legislative Session (1989); American Legislative Exchange Council Survey. Id. Ahulwalia, The Epidemiology of AIDS in AIDS: A CARE MANAGEMENT RESPONSE (Blanchet ed. 1989). See R. Bayer, PRIVATE Acrs, SOCIAL CONSEQUENCES: AIDS AND THE PoL1T1cs or PUBLIC HEALTH (1989). EXTRAORDINARY SITUATIONS Despite all the education and counseling available, there remains disturbing evidence that a small minority of HIV infected indi-' viduals are continuing to practice behavior that places others at risk of infection either out of a deliberate intent to infect others, or simply because they do not care enough to change their sexual behavior. 1 Shortly before he died, Geatan Dugas, the Canadian flight atten- dant believed to be one of the principle introducers of HIV into the United States, met with Selma Dritz, a San Francisco public health official, who urged him to stop spreading the disease. Dugas, who has been linked by the Centers for Disease Control to dozens of AIDS cases, refused, saying, "It's my right to do what I want with my body." 2 TORT LAW The question of how to deal with negligent or intentional trans- mission of a 1' threatening disease is a complex one for state governments For consentual sexual activity, the law has tradi- tionally held that one assumes the risk of contracting a venereal disease when one consents to sexual intercourse. 3 However, this rule rests on an assumption that the sexual partners are equally positioned to judge the risks of engaging in sex and the desirabil- - ity of precautionary measuresj' Eherefore, the courts have re- laxed the doctrine of assumption of risk in cases of sexual trans- mission of diseases to the extent that in many jurisdictions one is not held responsible for having assumed the risk of venereal disease unless one knew, or should have known, that his or her partner was infected} hus, the courts have increasingly held that there is a duty on part of an I-IIV-infected individual to inform his sexual partners of his infection. Certainly, an individual would be liable for "fraudulent misrepresentation," that is denying hi infected status, while knowing that he was, in fact, infectedfi Whether simple nondisclosure would hold the same degree of 86 THE POLITICS OF HEALTH liability is still evolving, for, while as a general rule a tort claim can not be based on tacit nondisclosure, the courts have estab- lished a number of exceptions, including one in cases where the parties have a confidential relationship with each other, such as a husband and wife. 3 This exception probably extends to unmar- ried sexual partners. At least some courts have recognized that "{p}artners to the sexual intercourse, if only for a brief time. share a trust and intimacy that elevates their relationship from the level of mere friend or acquaintance. Their confidential rela- tionship should invoke a heightened duty, requiring disclosure of specific facts as circumstances dictate: the risk of contracting an incurable disease demands disclosure even to one with whom intimacy has only briefly been shared." 9 Despite the growing use of tort law in negligent or intentional HIV transmission cases, the American Bar Association notes several problems with a purely civil approach to this problem: First, the availability of a cause of action may be meaningless, as a practical matter, because the potential defendant may be impoverished or dead, and his estate may be depleted by medical bills. Second, many actions may be barred by statutes of limitations because of the period that HIV may lie dormant before it produces detectable antibodies. and because of the additional latency period between infection and the onset of Third, the latency aspects of HIV infection also complicate proof of causation and damages. 1? CRIMINAL LAW With tort remedies being problematical, states have increasingly sought to deal with the question of negligent or intentional transmission of HIV through the criminal justice system. Extending criminal liability to individuals who knowingly engage in behavior which is likely to transmit is consistent with the criminal justice system's concern for punishing harmful acts and holding individuals responsible for actions outside the law's parameters of acceptable behavior. 1' EXTRAORDINARY SITUATIONS 87 Many states have attempted to adapt existing criminal codes to deal with HIV transmission cases. However, current state laws are likely to be inadequate to the task. 13 For example, while many states have laws making the transmission of communi- cable disease a crime, most of these laws are limited to specific diseases such as syphilis, gonorrhea, and even tuberculosis, but not AIDS. 1' Even when state laws do cover all communicable diseases, they usually require an actual "transmission" of the disease. *5 Again because of the latency periods involved, such transmission may be difficult to prove. 1? In one California case, sentencing was postponed for a year to see whether the victim would test positive for HIV. Then questions were raised about whether the antibodies came from this or some other incident. 17 Likewise, attempts to prosecute HIV transmission under assault or attempted murder statutes are likely to be difficult. 1" These offenses require proof that the defendant acted with a specific state of mind, which may present serious proof problems. 19 Even when proof of state of mind exists, additional problems may develop in attempting to prove that the defendant's actions caused the victim's injuries. 3? Prosecutions for the offense of reckless endangerment, an offense that occurs when an individual "recklessly engages in conduct that places or may place another person in danger of death or serious bodily injury, may not encounter the same difficulties. 3' However, problems still remain. A panel of New York City prosecutors was asked if charges of reckless endangerment could be brought against an addict with AIDS who stuck two police officers with a used when they were arresting her. They doubted that such a charge would stand up in court, because the chances of being infected from such a needle stick were esti- mated at only 1 in 500, too low to support such a charge. 22 And, even if conviction for reckless endangerment can be obtained, the penalties would likely be too lenient for such a serious action. 23 As a result some states have drafted statutes dealing specifically with the criminal transmission of HIV. These statutes generally follow one of three types: 1) statutes mandating disclosure of HIV status; 2) statutes proscribing certain actions; and 3) statutes enhancing penalties for actions which are already illegal -- such as prostitution -- when committed by an HIV carrier. 2' 88 THE POLITICS OF HEALTH Florida and Louisiana, for example, have enacted the first type of law, placing an affirmative duty on HIV-infected individuals to disclose their infection status to their sexual partners. 25 The second type of legislation, prohibiting "the purposeful, willful or knowing exposure" of another person to HIV, has been enacted in Alabama and Idaho. The principle problem with this approach is that prohibitions on consentual sexual activity between adults has been traditionally difficult to enforce, as witness sodomy laws. 27 Finally, Florida and Nevada have man- dated additional sentences for prostitutes who continue to practice their trade after being diagnosed as being HIV infected. 2" QUARANTINE Such statutes, however, deal only with an individual after he has committed an act that endangers others. Additional questions are posed when states seek the power to regulate the behavior of an individual before he acts, on the basis that such an individual 15 likely to endanger individuals in the future. 29 Take, for example, the case of Getean Dugas cited earlier, or a case reported by Washington, DC Dr. Lise Van Susteren. One of her patient's was "a deeply disturbed bisexual AIDS victim" that she believed was "deliberately trying to infect other people with his disease." 3? "At first when I found out I had he told her, decided not to have sex with anyone, and then I just got angry and said 'Let's conquer the world."' He admitted that he was still having sex and was not using condoms or taking any other precautions." Enlsuch instances, where it can be established that there is a danger to public health because an individual is known to be infected with HIV and is demonstrably incorrigible and uncon- trollable, unwilling or unable to restrict activities appropriately, isolation or quarantine may be appropriatefjz Quarantine was once widely used for controlling communicable diseases, particularly venereal diseases, and most states have quarantine statutes still on the books. 33 However, as modern EXTRAORDINARY SITUATIONS 89 disease control techniques, such as antibiotics and sanitation, have been developed, quarantine has been used with ever greater infrequency. 34 At the same time, the legal standards for imposing quarantine have become more stringent} At one time, there was extremely limited legal review of quarantine orders and the courts required nothing more than "reasonable cause" to uphold such orders. 35 (However, in more recent years, quarantine orders have come under much tighter judicial scrutiny, and now require a tight fit between the measure and the attainment of public health bene- fitfl uarantine measures are also now regarded as requiring the same procedural safeguards as involuntary civil commitment to mental hospitals, including written notice, representation by counsel, hearing, presentation of evidence, cross-examination, clear and convincing roof, lack of less restrictive alternatives, and limited duration 7 Eraditionally, quarantine measures can be based either on status such as all known HIV carriers or on behavior. 3" Since HIV is clearly not transmissible by casual contact, there can be no justification for the isolation or quarantine of all infected indi- viduals. 39 However, equally, clearly, when narrowly applied to individuals displaying culpable conduct that poses an obvious danger of transmission, such measures are appropriatfj 4? Wliile traditional state quarantine laws may or may not be appli- cable to HIV, 4' several states have either amended their state quarantine statutes to make the applicable to HIV Connecti- cut) or enacted new laws providing for the quarantine of uncon- trollable individuals with HIV (Colorado, Idaho, CONCLUSION ALEC believes that it is possible to respond compassionately to people with AIDS without countenancing the dangerous behav- ior of a small antisocial minority who refuse to act responsibly and assist in controlling the spread of this terrible disease. Indi- viduals who deliberately spread their infection to their sexual or needle-sharing partners, or who fail to warn their partners of their infected status, should be subject to criminal penalties. Additionally, as a last resort, states should have the availability 90 THE POLITICS OF HEALTH of measures to isolate or quarantine those individuals who are unable or unwilling to act responsiblyfi NOTES 1 Besharov, AIDS and the Criminal Law: Needed Reforms, The State Factor, American Legislative Exchange Council, Vol. 13, No. 8 (Dec. 1987). See also Many Men May be Reverting to Risky Sex, Washington B1ade,]une 16, 1989. 2 R. Shilts, AND THE BAND PLAYED ON (1987). 3 Besharov, AIDS and the Criminal Law: Needed Reforms, The State Factor, American Legislative Exchange Council, Vol. 13, No. 8 (Dec. 1987); The Restatement (Second) of Torts Sec. (1965) states that one who "fully understands a risk of harm . . .and who voluntarily chooses to enter or remain . . . within that area of risk . . . is not entitled to recover for harm within that risk" (emphasis added). 4 Hermann, Torts: Private Lawsuits about Aids, in AIDS AND THE LAW (1987). 5 Besharov, AIDS and the Criminal Law: Needed Reforms, The State Factor, American Legislative Exchange Council, Vol. 13, No. 8 (Dec. 1987). 6 Hermann supra note 4. 7 Id. 8 Id. 9 Note, Kathleen K. V. Robert B.: A Cause of Action for Genital Herpes Transmission, 34 Case West. Reserve L. Rev. 488, 522 (1984). 10 AIDS: THE LEGAL Issues, A.B.A. AIDS Coordinating Committee (1989) (hereinafter ABA Report). 11 Besharov supra note 5. EXTRAORDINARY SITUATIONS 91 12 Report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic (1988) (hereinafter President's Commission). 13 Id. 14 Besharov supra note Hollowell and Eldridge, AIDS and the Criminal Iustice System, J. Leg. Med. (March 1989) 19 ABA Report supra note 10. 20 Id. 21 Id. 22 Prosecutors Grapple With Questions of AIDS, New York Times, April 16. 1989. 23 President's Commission supra note 12. 24 ABA Report supra note 10. 25 See e.g. 1987 La. Acts 663; Fla. Stat. Ann. Sec. 384.24. 26 ?SSe6%.g. 1987 Ala. Acts 575; Id. Health 8: Safety Code Sec. - 1. 27 ABA Report supra note 10. 28 See e.g. 1987 Nev. Stat. 574; Fla. Stat. Ann. Sec. 796.08. 29 Corsino, Involuntary Confinement: Some AIDS Patients May Need Protection, Washington Post, April 2, 1989. 30 Simon, On Defusing an AIDS Time Bomb, Sacramento Bee, March 12, 1989. 32 Gregory, AIDS -- The Leprosy of the 19803. l- 133- Med- THE POLITICS OF HEALTH 31 Id. (Dec. 1988). In public health parlance, "isolation" is the separation of infected persons from others during theperiod of comniunicability, while "quarantine" isthe detention of individuals who have been exposed to a disease for the duration of the longest incubation period of the disease. . While the term isolation may be more technically correct in the HIV context, the term quarantine 18 more common in legal circles and more recognizable to the general public. and therefore, be used for purposes of this discussion. Falk, ADS Public Health Law, Leg. Med. (Dec. 1988). Section 1. Section 2. 33 Falk, AIDS Public Health Law, I. Leg. Med. (Dec. 1988). 34 Id. 35 Id. 36 Gostin, Traditional Public Health Strategies, in AIDS AND THE LAW (1987). 37 Falk supra note 33. 38 Gregory, AIDS -- The Leprosy of the 1980's, I. Leg. Med. (Dec. 1988). 39 President's Commission supra note 12. 40 Falk supra note 33. 41 Conn. Gen. Stat. Ann. Secs. 19a-221. Section 3. Section 4. EXTRAORDINARY SITUATIONS 93 THE HIV ASSAULT ACT (Title, enacting clause, etc.) This Act may be cited as the HIV Assault Act. (A) A male or female commits the crime of HIV Assault if, knowing that he or she is infected with the Human Immunodeficiency Virus (HIV), he or she: (1) engages in intimate contact with another; (2) transfers, donates, or provides his or her blood, tissue, semen, organs, or other potentially infectious body fluids for transfusion, transplantation, insemination, or other administration to another; or (3) dispenses, delivers, exchanges, sells, or in any other way transfers to another any non sterile intravenous or intramuscular drug paraphernalia used by said person. (B) HIV Assault is a Felony and shall be punishable by a fine of not more than $20,000, or imprisonment in a State Correctional Institution for not less than one year nor more than seven years, or both. (C) Nothing in this Section shall be construed to require that an infection with HIV has occurred in order for a person to have committed HIV Assault. Any individual who commits the crime of HIV Assault under Section 2 of this Act shall be civilly liable for damages if another individual becomes infected with the Human Immunodeficiency Virus as a result of such violation. It shall be an affirmative defense that the person exposed knew that the infected person was infected with HIV, knew that the action could result in 94 THE POLITICS OF HEALTH Section 5. Section 6. Section 7. Section 8. infection with HIV, and consented to the action with that knowledge. EXTRAORDINARY SITUATIONS 95 EIWERGENCY PUBLIC SAFETY MEASURES ACT (Title, enacting clause, etc) For purposes of this Act: Section 1. (A) means the Human Virus (HIV) or any other identified causative agent of Acquired Immune Deficiency (AIDS). (B) "Intimate contact" means the exposure of the body of one person to the bodily fluid_of another person in a manner which can transmit the HIV virus. (C) "Intravenous or intramuscular drug paraphernalia" means any equipment. products. 01' material of any kind which peculiar to and used for injecting a controlled substance into the human body. (Severability Clause.) (Repealer Clause.) (Effective Date.) Section 3. Section 2. (A) The State Department of Health may seek in its own name in a court of competent jurisdiction a court order directing an individual to undergo testing for evidence of infection with the Human Immunodeficiency Virus (HIV) without the right of refusal after reasonable efforts have been made to obtain written, informed consent to HIV testing. The court shall grant such order whenever there is prob- able cause to believe that an individual has HIV infection and there is clear and convincing evidence of a serious and present health threat posed to others by the individual infected. (B) The record of any action brought under Subsection (A) of this Section shall be closed to the public and, at the request of the individual, any hearing shall be held in camera. The State Department of Health may petition a court of competent jurisdiction to order an individual to be hospitalized, place in another health care or residential facility, or isolated from the general public in his own or another's residence, or a place to be quaranteened and made off-limits to the public as the result of the probable spread of a sexually transmitted disease, including, but not limited to, the Human Immunodeficiency Virus (HIV), until such time as the condition can be corrected or the threat to the public's health eliminated or reduced in such a manner that a substantial threat to the public's health no longer exists. No individual may be ordered to be hospitalized, placed in another health care or residential facility, or isolated from the general public in his own or another's residence, or a place to be quaranteened and made off--limits to the public, except upon the order of a court of competent jurisdiction and upon proof: 96 THE POLITICS OF HEALTH Section 4. Section 5. (A) By clear and convincing evidence that the public's health and welfare are significantly endangered by an individual with a sexually transmitted disease; and (B) That the individual with the sexually transmitted disease has been counseled about the disease, about the significant threat the disease poses to other members of the public, and about methods to minimize the risk to the public, and that, despite such counseling, the individual with the sexually transmitted disease evidences a disregard for the health of the public and refuses to conduct himself in such a manner as not to place others at risk; and (C) That all other reasonable means of correcting the problem have been exhausted and no less restrictive alternative exists. No individual may be ordered to be hospitalized, placed in another health care or residential facility, or isolated from the general public in his own or another's residence, or a place to be quaranteened and made off--limits to the public, unless: (A) A hearing has been held of which the individual has received at least 72 hours prior written notification, and unless that person has received a list of the proposed actions to be taken and the reasons for each action. (B) The individual has the right to attend the hearing, to cross-examine witnesses, and to present evidence. (C) The individual has the right to an attorney to represent him, and to have an attorney appointed on his behalf if he cannot afford one. An order for hospitalization, placement in another health care or residential facility, or isolation from Section 6. Section 7. Section 8. Section 9. EXTRAORDINARY SITUATIONS 97 the general public in his own or another's residence, if issued, will be valid for no more than 120 days, or for a shorter period of time if the State Department of Health, or the court upon petition, determines that the individual no longer poses a threat to the community. Orders for hospitalization, placement in another health care or residential facility, or isolation from the general public in his own or another's residence may contain additional requirements for adherence to a treatment plan or participation in counseling or education programs as appropriate. Such orders may not be renewed with out affording the individual all rights confered in Sections 3 and 4. No order for hospitalization, placement in another health care or residential facility may require the placement of an individual under the age of 18 years in a unit of a facility where adults reside, are hospitalized, or have been placed. (Severability Clause.) (Repealer Clause.) (Effective Date.) 146 THE POLITICS OF HEALTH bution to the World Health Organization and the Global Programme on AIDS. The Commission believes that if the recommendations in this report are fully implemented, we will have achieved the delicate balance between the complex needs and responsibilities encoun- tered throughout our society when responding to the HIV epi- demic. APPENDIX II 148 THE POLITICS OF HEALTH A SUMMARY OF CURRENT STATE AIDS POLICIES ALABAMA: Alabama mandates HIV testing for individuals treated at sexually transmitted disease (STD) clinics and for prisoners. Prisoners infected with HIV are segregated from the general prison population. However, this policy is currently being challenged in court. Identity-linked reporting of individu- als with HIV is authorized. (1987 Ala. Acts 574) Emergency services personnel may be notified of exposure to HIV with the consent of the source-patient. (1988 Ala. Acts 983) Knowing transmission of HIV is a criminal act. The state has a passive partner notification program. ALASKA: Alaska has very broad laws giving the Department of Public Health authority to implement policy. The Department has not included HIV on its list of reportable diseases and there are no mandatory testing requirements. However there is a pas- sive partner notification program. ARIZONA: Arizona primarily deals with HIV under existing STD statutes and policies. There are no mandatory testing re- quirements. Identity-linked reporting is authorized. Segregation of prisoners with HIV, once required, has been stopped. Using existing STD programs, the state does maintain a passive partner notification program. Governor Rose Moffett recently vetoed legislation allowing for the notification of emergency services personnel exposed to HIV and allowing victims of sexual assault to know the HIV--status of their attacker. The Governor's Task Force on AIDS is expected to issue recommendations in 1990. ARKANSAS: Arkansas has no mandatory testing requirements, but does maintain a passive partner notificaiton program. (1988 Ark. Acts 614). Identity-linked reporting is authorized. HIV- infected individuals must warn physicians before treatment. CALIFORNIA: California has no mandatory testing require- ments, but does have a passive partner notification program. Victims of sexual assault may obtain a court order requiring defendants to undergo HIV testing and may be notified of results. (Proposition 96) Emergency services personnel may be notified of exposure to HIV with consent of the source--patient. (1986 Cal. APPENDIX II 149 Stat. 999). Identity-linked reporting is not required, but the state will accept identity-linked data under certain circumstances. (1985 Cal. Stat. 23) The state has extremely protective confiden- tiality and anti-discrimination statutes. This year, California passed legislation establishing a risk-pool for health insurance. COLORADO: Colorado was the first state to require that the names of individuals with positive tests for HIV antibodies be reported to public health officials. Anonymous testing is prohib- ited. Testing is mandated for individuals convicted of drug- related offenses. Individuals accused of sexual assault may be required to undergo HIV testing after a preliminary hearing and the victim may be notified of the results. Emergency services personnel may be notified of exposure to HIV. The state has an active and successful partner notification program. There is extensive legislation regarding the confidentiality of AIDS medi- cal records. (Colo. Rev. Stat. 25-4-14) The state's Medicaid pro- gram provides reimbursement for home and hospice care. CONNECTICUT: Connecticut has no mandatory testing require- ments, but does have a passive partner notification program. Emergency services personnel may be notified of exposure to HIV without consent of the source-patient. (1989 Conn. Pub. Acts 246). Under threat of an ACLU lawsuit, Connecticut re- cently agreed to end its policy of segregating HIV infected pris- oners. A confidentiality law was passed this year. Connecticut has a health insurance risk-pool. DELAWARE: Delaware has no mandatory testing requirements, but the state maintains a passive partner notification program. Identity-linked reporting is not authorized. To "ensure confiden- tiality" the Department of Health is attempting to disassociate the reporting process from the partner notification process. Emer- gency services personnel may be notified of exposure to HIV. (1988 Del. Laws. 336) Blood centers must be licensed by the state. FLORIDA: Florida requires HIV testing of prostitutes and prison inmates who demonstrate "high risk behavior". (Fla. Stat. 945.35, 951.27) Identity-linked reporting is not authorized. The state has a strong confidentiality law, but physicians are allowed to notify the spouse of an infected individual. (Fla. Stat. 455.2416) Emer- gency services personnel may be notified of exposure to HIV. 150 THE POLITICS OF HEALTH Victims of sexual assault may be informed of their attacker's HIV status before trial if the infected individual consents. If the individual refuses consent, the victim may seek a court order requiring notification. (Fla. Stat. Additional penalties are specified for prostitution and certain sexual of- fenses if defendant is HIV infected. Florida has a health insur- ance risk-pool. GEORGIA: As a result of comprehensive AIDS legislation passed in 1988, Georgia mandates HIV testing for individuals convicted of sexual offenses, prostitution, drug-related offenses, and all prison inmates. Prison inmates infected with HIV are segregated from the general population. Emergency services personnel may be notified of exposure to HIV. If the source-patient refuses consent a court order may be sought to require the patient to undergo testing. Identity linked reporting is authorized and Georgia maintains an active partner notification program. (1988 Ga. Laws 1440) Georgia has established a health insurance risk- pool, but its implementation awaits funding by the legislature. HAWAII: Hawaii has no mandatory testing requirements and does not allow identity-linked reporting. (1.988 Haw. Sess. Laws 290) It does, however, maintain a passive partner notification program. The state has strict confidentiality (1986 Haw. Sess. Laws 161) and anti-discrimination requirements. (1987 Haw. Sess. Laws 370). Counseling must be offered to all individuals tested for HIV. IDAHO: Idaho was one of the first states to implement an active partner notification program. (Idaho Code Sec. 39.609) The state mandates HIV testing for all prison inmates. (Idaho Code Sec 39.604) Emergency services personnel may be notified of expo- sure to HIV. (Idaho Code Sec. 39.609) Victims of sexual assault are entitled to know the HIV status of their attacker. (Idaho Code Sec. 39.43033). Knowing transmission of HIV is a criminal act (Idaho Code Sec. 39.608). Identity-linked reporting is not re- quired but identity-linked information is accepted. The state has passed legislation ensuring confidentiality of AIDS medical records (Idaho Code Sec. 39.609). ILLINOIS: Emergency services personnel may be notified of exposure to HIV. The source--patient may be tested without con- sent. (1986 I11. Laws 84-1341). Illinois allows physicians to order HIV tests without additional informed consent as part of routine APPENDIX II 1 5 1 diagnostic procedures. It is a criminal act for an infected individ- ual to put another person at risk of infection without alerting the endangered party. Blood centers must be licensed by the state. This year, Govemor James Thompson vetoed legislation that would have required HIV testing for prisoners and would have allowed victims of sexual assault to know the HIV status of their attacker. The Governor also vetoed legislation requiring HIV testing of individuals being treated at STD clinics. HIV testing for marriage licenses, passed in 1987, was repealed this year. Illinois has a health insurance risk-pool. INDIANA: Indiana mandates HIV testing for individuals con- victed of sexual offenses, prostitution, and drug--related offenses. Emergency services personnel and victims of sexual assault-may be notified of exposure to HIV. (1985 Ind. Acts 935) Knowing transmission is a criminal act. Identity-linked reporting is prohibited. (1988 Ind. Acts 123). The state has strict legislation regarding confidentiality of AIDS medical records. (185 Ind. Acts 93 5) Blood centers must be licensed by the state. Indiana has a health insurance risk-pool. IOWA: Iowa has no mandatory testing requirements, but does have a passive partner notification program. The state has strict confidentiality requirements for AIDS medical records, but does permit an exception for spousal notification. Identity-linked reporting is not authorized, but identity-linked information may be accepted with the consent of the infected individual. (Iowa Code Ch. 141) Iowa has a health insurance risk-pool. KANSAS: Kansas mandates testing of individuals convicted of sexual offenses. (Kan. Crim. Proc. Code Sec. 22-2913c) Emer- gency services personnel may be notified of exposure to HIV before but not after taking action on a patient. (Kan. Stat. Sec. 65- 6004). Victims of sexual assault may be notified of HIV status of their attacker after conviction. (Kan. Crim. Proc. Code Sec. 22- 2913) Identity-linked reporting is not required, but identity- linked information is accepted. There are confidentiality and anti-discrimination statutes. (Kan. Stat. Sec. 55-6002-2). KENTUCKY: Kentucky has no mandatory testing requirements, but there is a passive partner notification program. (Ky. Admin Reg. Identity-linked reporting is not authorized. Confidentiality of AIDS medical records is protected (1988 Ky. 152 THE POLITICS OF HEALTH Acts 294). Kentucky's Medicaid program reimburses for home care. (Ky. Rev. Stat. Ann. 205.560) LOUISIANA: Louisiana has no mandatory testing requirements. Testing for marriage licences, passed in 1987, was repealed in 1988. The state maintains a passive partner notification program. Emergency services personnel may be notified of exposure to HIV, but the source-patient may not be tested without consent. (1988 La. Acts 805) Victims of sexual assault may seek court order to learn HIV status of their attacker, but there is no formal legislation in this regard. HIV is not considered a reportable dis- ease by the Department of Health. MAINE: Maine has no mandatory testing requirements, but does have an informal passive partner notification program. Identity- linked reporting is not authorized. Emergency services personnel may be notified of exposure to HIV. Maine has statutes concern- ing confidentiality of AIDS medical records and anti-discrimina- tion legislation. (1988 Me. Acts 811) Maine has a health insur- ance risk-pool. MARYLAND: Maryland, which passed Omnibus AIDS legisla- tion this year, has no mandatory testing requirements, but does have a passive partner notification program. (Md. Health-Gen Code Ann. Sec 18-336). Emergency services personnel may be notified of exposure to HIV. (Md. Health-Gen Code Ann. Sec 18- 335) HIV disease and ARC are considered report- able diseases by the Department of Health, but laboratory results indicating HIV-infection are not reportable. Failure to notify sexual partners of HIV status is a criminal act. (Md. Health-Gen Code Ann. Sec 18-501.1) Individuals with AIDS are considered to be protected from discrimination by state's "handicapped" anti-discrimination statute. Health care providers are specifically prohibited from refusing treatment to AIDS sufferers. MASSACHUSETTS: Massachusetts has no mandatory testing re- quirements and testing without "informed consent" is prohibited under state law. (Mass. Gen. Laws Ch 111 Sec. 70f). The state has no program for partner notification. Emergency services person- nel may be notified of exposure to HIV upon the subsequent diagnosis of the source-patient. (Mass. Gen. Laws ch 111) Iden- tity-linked reporting is forbidden and there are strict laws con- cerning confidentiality of AIDS medical records. Individuals APPENDIX II 1 5 3 with AIDS are considered to be protected from discrimination by state's "handicapped" anti-discrimination statute. MICHIGAN: Michigan undertook a major revision of its AIDS- related laws in 1988 and now mandates HIV testing for individu- als convicted of sexual offenses, prostitution, and drug-related offenses, at the "discretion of local health officials." (1988 Mich. Pub. Acts 471) All prisoners are required to be tested for HIV and infected prisoners are segregated from the general population. (1988 Mich. Pub. Acts 510) Identity-linked reporting of HIV infection is required, but law does not apply to private physi- cians. (1988 Mich. Pub. Acts 489) The state has an active partner notification program. (1988 Mich. Pub. Acts 489) Emergency services personnel may be notified of exposure to HIV, but source-patient may not be tested without consent. (1988 Mich. Pub. Acts 490). Victims of sexual assault may be notified of the HIV status of their attacker. (1988 Mich. Pub. Acts 471) Physi- cians have an "affirmative duty" to notify the spouse of an HIV- infected individual. (1988 Mich. Pub. Acts 488). Knowing trans- mission of HIV is a criminal act (1988 Mich. Pub. Acts 490) In- dividuals with AIDS are considered to be protected from dis- crimination by state's "handicapped" anti-discrimination statute. Michigan is currently experimenting with a plan to pay the insurance premiums of individuals with AIDS. MINNESOTA: Minnesota has no mandatory testing require- ments, but does have a passive partner notification program under direction of the Department of Health. HIV is "assumed" to be reportable under requirements to report "carrier state" of communicable diseases. Emergency services personnel may be notified of exposure to HIV, but source-patient may not be tested without consent unless patient is a prisoner. Individuals with AIDS are considered to be protected from discrimination by state's "handicapped" anti-discrimination statute. Legislation to strengthen the confidentiality of AIDS medical records was defeated this year. Minnesota has a health insurance risk-pool. MISSISSIPPI: HIV testing is mandated for prisoners, under the discretion of the Department of Corrections. Prisoners with HIV infection are segregated from the general population under an administrative policy. The state has a passive partner notifica- tion program under the direction of the state Board of Health. Emergency services personnel may be notified of exposure to 154 THE POLITICS OF HEALTH HIV. (1988 Miss. Laws 557) Identity-linked reporting is required. (1988 Miss. Laws 557). MISSOURI: Missouri requires identity-linked reporting for HIV infection. However, the state does maintain four anonymous testing sites. The state maintains an active partner notification program administered by the Bureau of Sexually Transmitted Diseases within the Department of Health. Testing is mandated for all prisoners. Knowingly infecting an individual with HIV is a criminal act. (Mo. Rev. Stat. Secs This year, the legislature repealed the sunset provision of existing AIDS law, making the measures permanent. A federal court decision this year forced the state's Medicaid program to reimburse for AZT. MONTANA: Montana has no mandatory testing requirements, but does have a passive partner notification program. Emergency service personnel may be notified of exposure to HIV. Identity- linked reporting is prohibited. AIDS medical records are pro- tected under state's Uniform Health Care Information Act. Mon- tana has an anti-discrimination statute and a statute specifically forbidding health care providers from refusing services to people with AIDS. There is a health insurance risk-pool. NEBRASKA: Nebraska has no mandatory testing requirements, although prisoners are tested under administrative order. The state maintains a passive partner notification program. (1988 Neb. Laws 71-502-04). Emergency services personnel may be no- tified of exposure to HIV under legislation passed this year (LB 157). Identity-linked reporting is not authorized. The state has legislation protecting the confidentiality of AIDS medical rec- ords. (1988 Sess. Laws 84-712-05) Anti-discrimination legisla- tion is currently being debated. Nebraska has a health insurance risk-pool. The state's Medicaid program reimburses for home and hospice care. NEVADA: Nevada mandates testing for prisoners upon entrance to the prison system and prior to release. (1987 Nev. Stat. 622) HIV Testing is also required for legally registered prostitutes. There is a passive partner notification program. Emergency services personnel may be notified of exposure to HIV. Victims of sexual assault are entitled to know the HIV status of their attacker. HIV is reportable by sex, age and county of residence, APPENDIX II 1 5 5 although health authorities are seeking identity-linked reporting. State has "weak" confidentiality statute. (Nev. Rev. Stat. Sec. 441) NEW HAMPSHIRE: New Hampshire allows for HIV testing of prisoners under certain "informed consent exceptions." (1988 N.H. Laws 262) The state has a passive partner notification program. Emergency services personnel may be notified of exposure to HIV. HIV is not considered a reportable disease by the Department of Health, although voluntary reporting is "en- couraged," provided the reporting is not identity-linked. This year, the legislature passed a prohibition on housing discrimina- tion against people with AIDS. NEW IERSEY: Although New Iersey has the fourth highest number of AIDS cases of any state, it has no significant statutory law on HIV. The state's Department of Health does maintain a passive partner notification program. The Department of Health does not consider HIV a reportable disease, but ARC is required to be reported. The Department is currently reviewing its re- quirements and is expected to recommend reporting of HIV. New Jersey has a health insurance risk-pool. NEW MEXICO: New Mexico has no mandatory testing require- ments. Identity-linked reporting is prohibited. (1989 N.M. Laws 227) The state does, however maintain a passive partner notifica- tion program. Despite a considerable amount of legislative activ- ity, very little AIDS-related legislation has passed the legislature. New Mexico has a health insurance risk-pool. NEW YORK: New York has no mandatory testing requirements, but the state does maintain a passive partner notification pro- gram. (N.Y. Pub. Health Law Art. 27f Secs. 2780-2787) New York has one of the nation's tightest confidentiality laws for AIDS medical records, but does permit spousal notification. (N.Y. Civ. Prac. L. R. Sec. 4005; N.Y. Pub. Health Law Art. 27f] Victims of sexual assault may petition the court for an order allowing them to know the HIV status of their attacker. However, in practice such orders are seldom granted. The Department of Health does not consider HIV a reportable disease, although anonymous reporting is accepted. The state has passed legislation prohibit- ing insurance companies from testing for HIV (N.Y. Pub. Health Law Art. 27f Sec. 2785), but this is under court challenge. New 156 THE POLITICS OF HEALTH York also has strict anti-discrimination legislation (N.Y. Exec. Law Secs. 290-300) New York's Medicaid program reimburses for home and hospice care. NORTH CAROLINA: North Carolina mandates HIV testing for all individuals indicted or bound over for trial of sexual offenses. (N.C. Admin. Code 7A.0209) The state has a passive partner notification program. (N.C. Gen. Stat. Secs. 130a-143). Emer- gency services personnel may be notified of exposure to HIV. Victims of sexual assault are entitled to know the HIV status of their attacker. (N.C. Admin. Code. 7A.0209) The state has strict confidentiality laws (1987 N.C. Sess. Laws 782) and physicians are forbidden to notify the spouse of an infected individual without the individual's consent. (N.C. Gen. Stat. Sec 130A-144). The legislature has recently passed legislation requiring identity- linked reporting. However, the law does not take effect until 1990 and contains exceptions for designated confidential testing sites. NORTH DAKOTA: North Dakota requires HIV testing for indi- viduals convicted of certain sexual offenses, prostitution, and drug-related offenses. (N.D. Cent. Code Ch. 23 Sec. 23-06.1) In addition, the state requires testing of all prison inmates. (N.D. Cent. Code Ch. 23 Sec. 23-07) Emergency services personnel may be notified of exposure to HIV, but source-patient may not be tested without his consent. (1987 N.D. Laws 298) Victims of sexual assault have the right to know the HIV status of their attacker. The state has legislation concerning confidentiality of AIDS medical records, but has explicit statutory language allow- ing physicians to notify spouse of infected individual. (N.D. Cent. Code Ch. 23 Sec. 07-02.2) State has law concerning crimi- nal transmission of HIV. (N.D. Cent. Code Ch. 12 Sec. 20-17) Identity-linked reporting is authorized. (N.D. Cent. Code Ch. 23 Sec. 07-02.1) There is a state anti-discrimination statute (N.D. Cent. Code Ch. 14 Sec. 02.4-02) North Dakota has a health insur- ance risk-pool. OHIO: Ohio mandates HIV testing for all individuals convicted of a sexual offense. The state has an active partner notification program. Emergency services personnel may be notified of exposure to HIV. Victims of sexual assault have the right to know the HIV status of their attacker. Under Ohio law, it is a misdemeanor for an HIV-infected individual to have sexual APPENDIX II 1 5 7 contact with. another person without informing that person of the infected individual's status. Under legislation passed this year (S 2), HIV becomes a reportable disease. Identity-linked report- mg is authorized, but anonymous reporting will continue as well._ The state confidentiality and anti-discrimination provisions. (Ohio Rev. Code Secs. 3701.07, 3701.24, 3701.99, . Most of Oklahoma's AIDS policies extend from existing STD laws and administrative policy. The Department of Corrections administratively requires HIV testing of prisoners. The state Board of Health administers a passive partner notifica- tionprograin. Identity-linked reporting is authorized. Emergency services personnel may be notified of exposure to HIV. Know- ingly infecting another is a criminal act. (Okla. Stat. Tit. 63 Sec. 1-502.1) Oklahoma's strong nursing home lobby has blocked attempts to provide Medicaid reimbursement for home and hospice care. OREGON: Oregon mandates HIV testing for individuals con- victed of rape. (Or. Rev. Stat. Ch. 568) There is no uniform standard on partner notification. Therefore the policy varies from county to county. Emergency services personnel may be notified of exposure to HIV. The source-patient may be tested without his consent. (Or. Rev. Stat. Ch. 878) Under legislation passed this year, victims of sexual assault may be notified of their attacker's HIV status after conviction. (HB 2471) HIV is reportable under general communicable disease statutes. The same statutes allow for anonymous reporting. Oregon was one of the first states to adopt legislation regarding the confidentiality of AIDS medical records. (Or. Rev. Stat. Ch. 600) There is a health insurance risk-pool. Although is number seven in AIDS cases reported among the states, there is very little HIV- related legislation on the books. There are no mandatory testing requirements and HIV is not considered a reportable disease by the Department of_Health. Identity-linked data is not accepted. The state does maintain a passive partner notification program. Three bills are currently pending which would affect the confi- dentiality of AIDS medical records. 158 THE POLITICS OF HEALTH RHODE ISLAND: Rhode Island requires H_IV.testing of newborn infants and all individuals convicted of criminal offenses. Pris- oners with AIDS are segregated. (1988 R.I. Pub. Laws 405) The state has an active partner notification program. Pub. Laws 382) Emergency services personnel may be notified of exposure of HIV. (1988 R.I. Pub. Laws 382) The state has confi- dentiality and anti-discrimination statutes. (1988 R.I. Pub. Laws 405) SOUTH CAROLINA: South Carolina mandates HIV testing of in- dividuals convicted of sexual offenses. Victims of sexual assault are notified of the HIV status of their attacker after conviction. (S.C. Code Art. 7 Ch. 3 Tit. 16 Sec. 740) Identity-linked reporting of HIV-infection is authorized and the state maintains an active partner notification program. Immunity is granted_to physicians who notify an infected individual's spouse. Knowing transmis- sion is a criminal act. (S.C. Code Art. 7 Ch. 29 Secs. 4429-1_0_, 4429-230) Discrimination is covered under statutes prohibiting discrimination on the basis of "handicap." South Carolina has a health insurance risk-pool. SOUTH DAKOTA: This year, the legislature provided for confi- dentiality of communicable disease reports collected by the De- partment of Health (SB 58). The law contains an exception_ allowing physicians to notify the spouse of an infected individ- ual. The legislation also gave the Department of Health the discretion to draft administrative procedures for the notification of other at--risk parties, including emergency services personnel. The Department is in the process of drafting these regulations. TENNESSEE: Tennessee has no mandatory testing requirements. However, the Tennessee Department _of Corrections does test some incoming prisoners under administrative order'. The state has an active partner notification program. With 34 31135 throughout the state to provide counseling and partner notifica- tion assistance. The state is in the process of developing a uni- form policy concerning notification of emergency services per- sonnel exposed to HIV. The state does not consider HIV a report- able disease. Tennessee is the only state to specifically exclude AIDS from its "handicapped" anti-discrimination statutes. . Legislation to repeal this exclusion has passed the House and is being considered by the Senate. Tennessee has a health insur- ance risk-pool. The state's Medicaid program will f0T APPENDIX II 1 5 9 home and hospice care, but has an extremely restrictive formula for reimbursement of pharmaceuticals. TEXAS: The Texas Department of Corrections has statutory au- thority to test prisoners at its discretion. (1987 Tex. Gen. Laws 543) Prisoners with AIDS are segregated from the general popu- lation under administrative policy. Courts have the power to order HIV testing for individuals convicted of sexual offenses. (1987 Tex. Gen. Laws 543) Victims of sexual assault have the right to learn the HIV status of their attacker upon indictment. (1987 Tex. Gen. Laws 55). Physicians may notify spouse of infected individual, but are "under no duty to disclose." (1987 Tex. Gen. Laws 543) Emergency services personnel may be notified of exposure to HIV. Identity-linked reporting is prohib- ited. The Texas Medicaid program will reimburse for no more than three prescriptions per month. There is a health insurance risk-pool. UTAH: Utah requires HIV testing for all prisoners and those pris- oners who are HIV-infected are segregated from the general population. (Utah Code Ann. Sec. 64-13-36) Identity-linked reporting is authorized and the state has an active partner notifi- cation program. (Utah Code Ann. 26-6-3) Physicians may notify the spouse of infected individual under communicable disease rules. Victims of sexual assault may seek a court order to learn the HIV status of their attacker. Emergency services personnel may be notified of exposure to HIV. (Utah Code Ann. 26-6a-1) Knowing transmission is a criminal act. (Utah Code Ann. 26-6- 20.5) There are confidentiality requirements for AIDS medical records. VERMONT: Vermont has no mandatory testing requirements, but does maintain a passive partner notification program under the administration of the Department of Health. The Department of Health does not consider HIV to be a reportable disease. Vermont has one of the nation's strongest anti-discrimination statutes. (Vt. Stat. Ann. Ch. 21 Subch. 3 Secs. 1127-1128) VIRGINIA: Virginia has a passive partner notification program, enacted this year. (HB 1974) There are no mandatory testing requirements. Emergency services personnel may be notified of exposure to HIV. (1988 Va. Acts 789) Physicians may notify the spouse of an infected individual, but are under no obligation to 160 THE POLITICS OF HEALTH do so. Identity--linked reporting is authorized. The 1989 legisla- tion provided for confidentiality of AIDS medical records. WASHINGTON: Washington mandates HIV testing for individu- als convicted of sexual offenses, prostitution, and intravenous drug offenses. State maintains a passive partner notification program. Emergency services personnel may be notified of exposure to HIV. If source-patient refuses consent, a court order may be sought to compel disclosure. (Wash. Rev. Code Ch. 206 Secs. 70.24.340,360,3 70) Victims of sexual assault may be noti- fied of their attackers HIV status after conviction. (Was. Rev. Code Ch. 206 Sec. 70.24.105) HIV is a reportable disease, but anonymity is required. (Was. Rev. Code Ch. 206 Sec. 70.24.105) The state has an anti-discrimination statute, but allows an excep- tion if the absence of HIV infection is a bonafide qualification for employment. Washington has a health insurance risk-pool. WEST VIRGINIA: West Virginia allows for required HIV testing of individuals convicted of sexual offenses, prostitution and drug offenses, when there is reason to believe that they may pose a risk to others. The state maintains a passive partner notifica- APPENDIX In tion program. Incoming prisoners are screened for HIV as a matter of corrections policy. HIV is a reportable disease, without name-identifiers. However, information on sex, age, and address are accepted. The West Virginia Human Rights Commission has ruled that AIDS is a protected handicap under state anti-dis- crimination statutes. WISCONSIN: Wisconsin has no mandatory testing requirements and requires informed consent before any HIV test may be given. The state does, however, have a passive partner notification program. (1987 Wis. Laws 27, 70) Insurance companies are restricted from testing for HIV. (Wis. Stat. Sec. 146.025) Wiscon- sin has a health insurance risk-pool. WYOMING: Effective June 30, 1989, Wyoming began requiring HIV testing of all prisoners. (Wyo. Stat. Secs. 35-4-134). The state has an active partner notification program. Identity--linl