Recent developments in health law

Journal of Law, Medicine and Ethics

Volumn 35, Issue 1, 2007, Pages 220-227

  Gerber, Elizabeth ^a   Schalman Bergen, Sarah ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ALTRUISM; DONOR; ECONOMICS; FEMALE; FERTILIZATION IN VITRO; HUMAN; LEGAL ASPECT; OOCYTE DONATION; RESEARCH; REVIEW; STEM CELL; UNITED STATES; WOMEN'S HEALTH;

ALTRUISM; CALIFORNIA; FEMALE; FERTILIZATION IN VITRO; HUMANS; OOCYTE DONATION; RESEARCH; STEM CELLS; TISSUE DONORS; WOMEN'S HEALTH;

EID: 33847410266     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2007.00127.x     Document Type: Review

References (67)

1. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, "Revised Recommendations for HIV Testing of Adults, Adolescents, and Pregnant Women in Health care Settings," Morbidity Mortality Weekly Report 55, no. RR -14 (2006): 1-17.
2. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, "Revised Guidelines for HIV Counseling, Testing and Referral and Revised Recommendations for HIV Screening of Pregnant Women," Morbidity Mortality Weekly Report 50, no. RR -19 (2001): 59-86.
3. See Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, supra note 1, at 7.
4. Id. at 1.
5. Id.
6. Id. at 7. The guidelines provide that the oral or written description of the test should include "an explanation of HIV infection and the meanings of positive and negative test results, and the patient should be offered an opportunity to ask questions and decline testing."
7. Id. at 7-8.The guidelines "strongly encourage" prevention counseling for persons at high risk for HIV, but the counseling "should not have to be linked to HIV testing."
8. Id. at 8.
9. Id. at 2. Despite these articulated objectives, the guidelines recommend against prevention counseling and do not address how patients will be linked to either clinical or prevention services.
10. Id. at 5.
11. See J. S. Montaner et al., "Viewpoint: The Case For Expanding Access to Highly Active Antiretroviral Therapy to Curb the Growth of the HIV Epidemic," Lancet 368 (2006): 531-536 (citing studies that find between a 50 and 86 percent reduction in HIV transmission for patients on highly active antiretroviral therapy (HAART), and arguing for expanded access to antiretroviral medication).
12. Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, "Pneumocystis Pneumonia-Los Angeles," Morbidity Mortality Weekly Report 30, no. 21 (1981): 1-3.
13. See G. M. Herek, "Thinking about AIDS and Stigma: A Psychologist's Perspective," Journal of Law Medicine & Ethics 30 (2002): 594-607, at 595-597 (discussing the origins and causes of AIDS related stigma).
14. See Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, "Current Trends Update: Acquired Immunodeficiency Syndrome-United States," Morbidity Mortality Weekly Report 35, no. 2 (1986): 17-21 (noting that 94% of AIDS patients can be classified as gay or bisexual men, injection drug users, or hemophiliacs).
15. See J. G. Hodge, Washington D.C.: Center for Law and the Public's Health, "Advancing HIV Prevention Initiative: A Limited Legal Analysis of State HIV Statutes" (2004). As of 2004, 40 states had statutes regulating who can offer HIV testing, 24 states required pre-test counseling and the provision of specific information before testing, and 27 states required informed consent before testing. Id. at 15-16.
16. See Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, supra note 1, at 3.
17. After protease inhibitors, a new class of antiretroviral drugs, were approved by the Food and Drug Administration in 1995, the media published reports of HIV patients "with no measurable trace of the virus" in their blood, and Newsweek magazine featured a cover story entitled, "The End of AIDS?" Though scientists later determined that the virus cannot be fully eradicated and that controlling HIV requires lifetime use of medications with dangerous side effects, HAART changed the course of the disease. See kaisernetwork. org, Kaiser Daily HIV/AIDS Reports, "The 20th Anniversary" (June 8, 2001), available at 〈http://www. kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=5073〉 (last visited January 8, 2007).
18. Accurate HIV screening and prevention counseling requires all clinicians to engage in candid, and sometimes uncomfortable, discussions about drug use and sexual behavior with patients who may not traditionally seem "at risk."
19. Id. at 4.
20. Id. at 2.
21. Id.
22. Id.
23. A dispute has arisen as to how much input the CDC actually solicited from community groups. At least 30 AIDS service organizations have alleged that the CDC sidestepped the typical posting process that allows 60 or more days for public comment, instead allowing just 15 working days for selected interested parties to register their opinions. Lambda Legal, Press Release, "Federal HIV Testing Initiatives Can Only Succeed with Expanded Healthcare, Patient and Provider Education" (September 21, 2006), available at 〈http://www.lambdalegal.org/binarydata/LAMBDA_PDF/pdf/717.pdf〉 (last visited January 8, 2007).
24. Howard University Hospital became the first hospital in the nation to offer universal, routine HIV testing. "It's my hope this becomes like a cholesterol test - just a standard routine (given) by your doctor," noted the director of the Hospital's Center for Infectious Disease Management and Research. Christine Dell'Amore, "First Hospital Makes HIV Test Routine," United Press International, October 23, 2006.
25. See, e.g., L. O. Gostin, Commentary, "HIV Screening in Health Care Settings: Public Health and Civil Liberties in Conflict?" JAMA 296 (2006): 2023-2025;
26. R. Bayer and A. L. Fairchild, "Perspective: Changing the Paradigm for HIV Testing: The End of Exceptionalism?" New England Journal of Medicine 355 (2006): 647-49.
27. See, e.g., Lambda Legal, supra note 21;
28. American Civil Liberties Union, "ACLU Says that New CDC HIV Testing Recommendations Raise Health and Civil Liberties Concerns," Press Release (September 21, 2006), available at 〈http://www.aclu.org/hiv/testing/ 26819prs20060921.html〉 (last visited January 8, 2007);
29. National Association of People With AIDS, Press Release, "National Association of People with AIDS Supports Routinely Offered and Voluntary HIV Counseling, Testing and Referral Services" (September 21, 2006), available at 〈http://www.napwa.org/documents/ routine_testing_counseling.pdf〉 (last visited January 8, 2007) (calling for written informed consent, counseling, and meaningful access to health care).
30. See D. J. Casarett and J. D. Lantos, "Have We Treated AIDS Too Well? Rationing and the Future of AIDS Exceptionalism," Annals of Internal Medicine 128 (1998): 756-59 (tracing the history of HIV policies and arguing against AIDS exceptionalism);
31. but see A. L. Fairchild, J. Colgrove, and R. Bayer, "The Myth of Exceptionalism: The History of Venereal Disease Reporting in the Twentieth Century," Journal of Law, Medicine & Ethics 31 (2003): 624-637 (noting the similarity between HIV/AIDS policy and venereal disease policy to demonstrate that AIDS policy has not been treated so differently from all other diseases).
32. See Gostin, supra note 23, at 2023.
33. See supra note 24.
34. Id.
35. Those who call for an end to AIDS exceptionalism argue that HIV tests and cancer screens should be treated identically, because both are medical problems that can be treated; people with HIV do not suffer significant social consequences, and therefore, do not need to be informed of such consequences through special, written informed consent procedures. Civil libertarians argue that people with HIV suffer unique stigma not faced by people with cancer, which are not adequately mitigated by current antidiscrimination laws, and therefore, the extra consent and counseling requirements remain justified.
36. 42 U.S.C. §12101-213 (2000). The ADA prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications. Id.
37. 524 U.S. 624, 637 (1998).
38. Id. at 641-42. The Court held that the plaintiff was disabled because her HIV substantially limited her major life activity of reproduction. They found that the plaintiff's decision not to have children was motivated by her HIV diagnosis.
39. Id. Given that many gay men with HIV have never considered having children, and current therapies make the risk of mother to child transmission negligible, the protections extended in Bragdon are far from comprehensive.
40. See, e.g., E.E.O.C. v. Lee's Log Cabin, 436 F.Supp.2d 992 (W.D.Wisc. 2006) (finding no evidence that the plaintiff's major life activities were impacted by her HIV infection);
41. Cruz Carillo v. AMR Eagle, 148 F.Supp.2d 142 (D.Puerto Rico 2001) (finding that the plaintiff was not disabled because he provided no evidence that HIV substantially limits a man's ability to reproduce);
42. Gutwaks v. American Airlines, 1999 WL 1611328 (N.D.Tex. 1999) (granting summary judgment to the defendant based on determination that the gay plaintiff's decision not to have children was "a personal one, not caused by his HIV status").
43. See generally J. M. Metnick, "Evolving to Asymptomatic HIV as a Disability Per Se: Closing the Loophole in Judicial Precedent," DePaul Journal of Health Care Law 7 (2003): 69-104, at 71-86 (discussing the failure of Bradgon to provide comprehensive ADA protection for people living with HIV).
44. See National Immigration Project, National Lawyers Guild, and San Francisco AIDS Foundation, Manual, "HIV and Immigrants: A Manual for Service Providers" (2004), at 18, available at 〈http://www. nationalimmigrationproject.org/HIV/2004HIVManual/HIVManual.pdf〉 (last visited January 8, 2007).
45. L. O. Gostin, C. Feldblum, and D. W. Webber, "Disability Discrimination in America: HIV/AIDS and Other Health Conditions," JAMA 281 (1999): 745-752.
46. National HIV/AIDS Clinicians' Consultation Center, "Updated State HIV Testing Laws" (September 26, 2006), at 13-14, available at 〈http://www.ucsf.edu/hivcntr/PDFs/WEB2006State%20Laws.pdf〉 (last visited January 8, 2007).
47. See C. L. Gallety and S. D. Pinkerton, "Conflicting Messages: How Criminal HIV Disclosure Laws Undermine Public Health Efforts to Control the Spread of HIV," AIDS & Behavior 10 (2006):451-461 (noting that few of the laws require that actual exposure occurs and none requires transmission, and arguing that the HIV criminalization laws generally undermine public health efforts);
48. American Civil Liberties Union, AIDS Project, "State Criminal Statutes on HIV Transmission - 2004" (March 18, 2005), available at 〈http://www.aclu.org/FilesPDFs/hivcriminalization.pdf〉 (last visited January 8, 2007);
49. Z. Lazzarini, S. Bray, and S. Burris, "Evaluating the Impact of Criminal Laws on HIV Risk Behavior," Journal of Law, Medicine & Ethics 30 (2002): 239-253 (examining prosecutions of individuals based on HIV exposure and transmission criminalization laws, and concluding that such laws are not likely to help prevention efforts).
50. See Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, supra note 1, at 6.
51. See Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, supra note 1, at 6;
52. M. L. Rusch et al., "Sexual Risk Behaviors Among Injection Drug Users Before Availability of Highly Active Antiretroviral Therapy," AIDS & Behavior 9 (2005): 289-299 (finding that increased exposure to HIV counseling and testing was not associated with significant changes in high risk condom use practices in HIV positive injection drug users).
53. See Kaiser Family Foundation, HIV/AIDS Policy Fact Sheet, "Medicaid and HIV/AIDS" (October 2006), available at 〈http://www.kff.org/ hivaids/upload/7172-03.pdf〉 (last visited January 8, 2007) (citing a study that found that 44 percent of people with HIV/AIDS were enrolled in Medicaid, and 20 percent were uninsured).
54. Most people with HIV qualify for Medicaid because they are Supplementary Security Income (SSI) beneficiaries: both disabled and low-income. The SSI income standard is 74 percent of the Federal Poverty Level, which was $7,252 annually for an individual in 2006. Id.
55. Id.
56. Id.
57. See Kaiser Family Foundation, HIV/AIDS Policy Issue Brief, "Financing HIV/AIDS Care: A Quilt with Many Holes" (May 2004), at 7, available at 〈http://www.kff.org/hivaids/upload/Financing-HIVAIDS- Care-A-Quilt-with-Many-Holes.pdf〉 (last visited January 8, 2007) (noting that while Massachusetts, Maine and the District of Columbia have received federal approval to expand coverage to pre-disabled people with HIV, only the Massachusetts program is currently operational).
58. See Treatment Access Expansion Project, "ETHA Fact Sheet," available at "http://www.taepusa.org/images/etha_fact_sheet. pdf〉 (last visited January 8, 2007). ETHA is modeled after the successful Breast and Cervical Cancer Prevention and Treatment Act of 2000 which allows states to provide early intervention access to women with breast and cervical cancer.
59. Id. A study assessing the potential effectiveness of ETHA found that, over a ten year period, ETHA would reduce the death rate for persons living with HIV on Medicaid by 50% and decrease federal spending on Medicaid by nearly $32 million. J. Rodgers, R. Yip, and Pricewaterhouse Coopers, "An Analysis of the Early Treatment for HIV Act" (May 27, 2003), available at 〈http://www.taepusa.org/documents/PWC%20Report%20- %20Final%20PDF.pdf〉 (last visited January 8, 2007).
60. See, e.g., L. E. Wolf, B. Lo and L. O. Gostin, "Legal Barriers to Implementing Recommendations for Universal, Routine Prenatal HIV Testing," Journal of Law, Medicine & Ethics 32 (2004): 137-147, at 137 (noting that states adopted new prenatal HIV testing policies as a result of CDC guidelines). The Supreme Court has held that CDC guidelines have "special weight and authority" though the CDC's views are not conclusive in establishing medical or public health consensus.
61. Bragdon v. Abbott, 524 U.S. 624, 650 (1998).
62. See Gostin, supra note 23, at 2024 (suggesting that states may fear loss of CDC funding if they do not comply with national guidelines).
63. S. Smith, "State Requires Doctors to Identify HIV Patients," Boston Globe, November 15, 2006. The debate over whether states are required to report cases of HIV by full names rather than by codes is another aspect of the argument over "AIDS exceptionalism," with proponents claiming that name based reporting is essential for epidemiological purposes, and critics claiming that the practice is unnecessary and dissuades some people from being tested out of concern for their confidentiality. Id.
64. See National HIV/AIDS Clinicians' Consultation Center, supra note 36;
65. Hodge, supra note 13.
66. The new guidelines recommend that, where state statutes or regulations conflict with the guidelines, "jurisdictions should consider strategies to best implement these recommendations within current parameters and consider steps to resolve conflicts with these recommendations." Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, supra note 1, at 13.
67. See J. G. Hodge, "The Role of New Federalism and Public Health Law," Journal of Law and Health 12 (1998): 309-357, at 323-31 (discussing the long history of public health regulation as a power reserved to the states).