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 criminalization laws, confidentiality and anonymity, informed consent, criminalization laws, disability and discrimination, and HIV reporting requirements.

Criminalization Laws

As of 2022, 35 states have laws that criminalize HIV exposure. The CDC has grouped such laws into four categories:

HIV-specific laws that criminalize or control actions that can potentially expose another person to HIV
Sexually transmitted disease (STD), communicable, contagious, infectious disease laws that criminalize or control actions that can potentially expose another person to STDs/communicable/infectious disease (which might include HIV)
Sentence enhancement laws specific to HIV or STDs that do not criminalize a behavior but increase the sentence length when a person with HIV commits certain crimes
No specific criminalization laws
(CDC, 2023g)

At least 12 states, including Washington, have modernized or repealed their HIV criminal laws. Changes include moving HIV prevention issues from the criminal code to disease control regulations; requiring intent to transmit and actual HIV transmission; and providing defenses for taking measures to prevent transmission, including viral suppression or being noninfectious, condom use, and partner pre-exposure prophylaxis use (CDC, 2023g).

Washington State criminalization law RCW 9A.36.011 states, “A person is guilty of assault in the first degree if he or she, with intent to inflict great bodily harm, transmits HIV to a child or vulnerable adult,” which is a class A felony (WSL, 2020b).

Confidentiality

Some states have laws that protect a person’s right to anonymous testing for HIV in particular. Under these laws, a person may get tested for HIV without their name or other personally identifying information being attached to the result.

Confidential testing differs from anonymous testing and is not truly anonymous. The person’s name and other identifying information is attached to the test results and entered into the person’s medical record, which can be viewed by both doctors and health insurance companies. A confidential test released to the state or local health department will have the person’s name attached, and the state department then removes the identifying information and sends the results to the CDC for the purposes of national HIV estimates (Johnson, 2022).

Washington State law prohibits disclosure of a HIV test result without the specific written consent of the person to whom it pertains, or as otherwise permitted by state law. A general authorization for the release of medical or other information is not sufficient for this purpose. Permitted recipients of HIV test results are limited to:

The subject of the test
A person with a “release of information” from the tested person
Health officials, in accordance with reporting requirements for diagnosed sexually transmitted disease
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 public health
Exposed persons who are notified because releasing the identity of the infected person is necessary
Payers of health claims
Agencies or guardians responsible for children under age 14 with an STD
(Johnson, 2022)

Partner Notification

Some states have laws requiring those who are HIV positive to inform sexual partners or those they share injection paraphernalia with of their HIV status. Knowingly withholding their status from a partner may result in legal action. Some states also have “duty to warn” laws that require healthcare staff to notify a third party, such as a sexual partner, if they know a person is HIV positive (CDC, 2022g).

Washington State law requires someone living with HIV to disclose their HIV status to certain people, such as sexual partners; however, there is no obligation to tell others, such as employers. Counseling service is also provided using a variety of strategies to maintain confidentiality (UW Medicine, 2023).

Informed Consent

Informed consent is an ethical construct first and a legal construct second. Informed consent laws protect the right to privacy and vary by state and circumstances. Some forms of consent require a signed document and others require only a verbal agreement. In either instance, it is essential that healthcare providers keep some record of the process of obtaining consent from a patient (Cleveland Clinic, 2022).

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 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) (WSL, 2021).

Laws Pertaining to Minors

As of 2022, all jurisdictions have laws that explicitly allow a minor of a particular age (as defined by each state) to give informed consent to receive STD diagnosis and treatment services. In some states, a minor might be legally allowed to give informed consent to receive specific STD or HIV treatment, including PrEP, even if the law does not specifically refer to those disease-related services.

In Washington State minors who are age 14 and older can access STD diagnosis and treatment without parental consent. Minors age 14 and older are also able to obtain HIV prophylaxis (CDC, 2022h).

Disability and Discrimination

HIV infection and AIDS are medical disabilities, and people living with HIV or AIDS are protected under Section 504 of the federal Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and Section 1557 of the Affordable Care Act against discrimination by:

Employers
Places of public 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
Daycares
Public pools
Fitness gyms

Section 504 also prohibits discrimination against people living with HIV/AIDS in many different types of dwellings (HIV.gov, 2023h).

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 (WSL, n.d.).

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 (WSL, n.d.).

HIV Reporting Requirements

All states, the District of Columbia, Puerto Rico, and the U.S. Virgin Island have enacted laws or regulations requiring laboratory reporting. Not all jurisdictions, however, require reporting of viral load, CD4 count, and molecular data. Nor do all states with complete reporting laws have complete reporting of laboratory data to the CDC.

Washington State requires all HIV and AIDS cases to be reported within three working 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
CD4 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, including name, sex, date of birth, address, and telephone number. Laboratories and providers are not required to report anonymous tests (Johnson, 2022).