LEGAL AND ETHICAL ISSUES
Legal standards are set forth in the form of written laws passed by governments. Ethical considerations are based on the principles of right and wrong and guide how laws can be obeyed. These issues include confidentiality and anonymity, informed consent, criminalization laws, disability and discrimination, and HIV reporting requirements.
Confidentiality
Washington law provides severe penalties for anyone who discloses confidential HIV information. Accidental information breaches must be immediately reported to and investigated by the Washington State Department of Health (WA DOH, 2020).
In Washington State, people who perform HIV counseling and testing in public health departments or health districts sign strict confidentiality agreements that regulate the personal information that may be revealed in counseling and testing sessions and test results.
CONFIDENTIAL TESTING
Confidential testing means that the person’s name and other identifying information will be attached to the test results, will go into the medical record, and may be shared with the person’s healthcare providers and health insurance company. Otherwise, the test results are protected by state and federal privacy laws and can only be released with the individual’s permission.
With confidential testing, when an individual tests positive for HIV, the test result and the person’s name are reported to the state or local health department to help public health officials better estimate rates of HIV infection in the state. The state health department then removes all personal information about the person and shares the remaining nonidentifying information with the CDC. The CDC does not share this information with anyone else, including insurance companies (HIV.gov, 2018).
In Washington State the following entities are permitted access to HIV test results:
- The person tested
- A person with a release of information from the tested person
- Health officials, in accordance with reporting requirements for diagnosed sexually transmitted diseases
- Facilities that collect blood, tissue, or semen
- Health officials, first responders, or victims of sexual assault who petition the court to order testing
- A person allowed access to information by a court order
- Local law enforcement if health officers have exhausted procedures to stop behaviors that present a danger to the health of the public
- Payers of health claims
- Agencies or guardians responsible for children under the age of 14 with an STD
(King Co., 2017)
ANONYMOUS TESTING
Anonymous testing means that nothing ties the test results to the person. When the person takes an anonymous HIV test, they receive a unique identifier that allows the person to obtain the test results. In Washington State, any person authorized to order or prescribe an HIV test for another individual may offer anonymous HIV testing without restriction, however anonymous tests are not available at every location that provides testing (HIV.gov, 2018; WSL, 2018).
PARTNER NOTIFICATION AND SEXUAL ASSAULT CONFIDENTIALITY
In Washington State partner notification is required, and counseling services are provided to HIV-positive people and their sex and/or injection equipment-sharing partners. This service is provided using a variety of strategies to maintain the confidentiality of both the HIV-infected individual and the partners.
HIV-infected people are contacted by either a local health officer or the principal healthcare provider to provide post-test counseling about the importance of notification. They can notify their partners themselves or have public health staff notify their partners. When public health staff notify partners, they do not identify the person who tested positive (WSL, 2019).
Informed Consent
Each state has its own laws regarding informed consent. In Washington State, informed consent specific for HIV testing is not required, making the level of consent the same as it is for testing for other serious diseases. Providers can routinely test for HIV without having to create extra documentation. Washington State also requires all patient information to be kept strictly confidential, and records must be managed and stored in a secure manner (RCW 70.02 and RCW 70.24) (CHLP, 2020a).
MINORS
Minors are persons who do not have the legal rights and responsibilities of an adult. Minors’ ability to access HIV testing and pre- and postexposure prophylaxis treatment without parental or guardian consent varies throughout the United States. In all 50 states and the District of Columbia, the CDC finds there is no jurisdiction that explicitly prohibits minors’ access to PrEP without parental/guardian consent. In Washington State minors age 14 or older can independently access STD diagnosis and information regarding prevention and both pre- and post exposure prophylaxis treatment (CDC, 2018b; WA DOH, 2018).
HIV Criminalization Laws
In the United States, close to 30 states support laws that prosecute people living with HIV. Some of these laws criminalize HIV transmission if a person does not disclose their HIV-positive status before sex, whether or not the person transmits the virus to another. The maximum sentence for violating an HIV-specific statute is a matter of state law, and some states have a maximum sentence length as high as life in prison (CDC, 2019n, Weibel, 2018).
In 2020, Washington State passed a bill that reformed the state’s HIV criminalization law. The bill reduces penalties for HIV exposure from a felony to a misdemeanor that requires specific intent to transmit HIV and for transmission to occur. The bill also removes the requirement for sex offender registration. Before this reform, the law carried a felony conviction (punishable by up to life in prison) for exposure, which required neither intent to transmit nor that transmission occurred.
If a person misrepresents their status to a sexual partner, intends to transmit, and transmission occurs, they are subject to the higher penalty level of gross misdemeanor. This reform retains the felony penalty for people living with HIV who are convicted of transmitting HIV to a child or vulnerable adult. Such a conviction still requires registration as a sex offender (CHLP, 2020b).
Disability and Discrimination
HIV infection and AIDS are medical disabilities, and people living with HIV or AIDS are protected under the federal Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 against discrimination by:
- Employers
- Places of accommodation (includes businesses that are open to the public)
- State and local government entities
Section 504 prohibits health and human service programs or organizations that receive federal funds or assistance from discriminating against HIV/AIDS patients. These entities may include:
- Hospitals
- Clinics
- Social services agencies
- Drug treatment centers
- Nursing homes
- Doctors’ offices
- Dentists’ offices
- Daycare providers
- Public pools
- Fitness gyms
The federal Fair Housing Act prohibits discrimination against people living with HIV/AIDS in many different types of dwellings (HIV.gov, 2017).
The Washington State Law Against Discrimination (RCW 49.60) prohibits both public and private employers with eight or more employees, including employment agencies and labor unions, from discriminating against those with either HIV or hepatitis C infection. Nonprofit religious or sectarian organizations are exempt from the law’s coverage (Williams, 2018).
Employees who feel they are being discriminated against should first document the discrimination, speak with their supervisor, and follow the entity’s internal process to file a discrimination charge. However, it is not necessary to file an internal grievance. If these remedies do not work, the employee should contact the federal Office for Civil Rights, U.S. Department of Health and Human Services, or the Washington State Human Rights Commission. An aggrieved person can also file directly in state court; a complaint must be filed within 180 days of the alleged discriminatory incident.
HIV Reporting Requirements
Washington State requires all HIV and AIDS cases to be reported. Providers who diagnose a person must submit a confidential case report to the local health department within three days. Positive HIV results obtained through anonymous testing are not reportable. However, once a patient with positive results seeks medical care for conditions related to HIV or AIDS, the healthcare provider must then report the case to the health department.
If a person who tests positive for HIV infection fails to return for test results, the healthcare professional must provide the local health officer with the name of the individual and any information that could help locate them. The health officer will follow up to assure that post-test counseling and partner notification assistance are provided.
Laboratories are required to report each test result, including:
- Tests confirming HIV infection
- HIV viral load results, both detectable and undetectable
- T cell lymphocyte results of any value
For each result, the lab must provide the date of collection, name of the requesting healthcare provider, and patient information.
Providers conducting clinical HIV research are exempt from reporting the identity of HIV-positive individuals participating in research projects (WSL, 2019).