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To Disclose or Not to Disclose? Seven Things to Know About Medical Forms and HIV

October 5, 2015

Medical Form

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If you are a person living with HIV/AIDS (PLWHA) or a physician treating PLWHAs, you may face a dilemma when completing medical forms -- the type required for employment, school, camp, guardianship, and other activities. Should you disclose HIV/AIDS information? Must you? What if patient and doctor do not agree? This article provides guidance so that you -- patient or doctor -- can make decisions thoughtfully. On one hand, disclosing HIV-related information can lead to discrimination and stigma. On the other hand, it may be necessary to determine medical fitness for the job, educational or sports program, or other opportunity. The following seven points should help you decide whether and how to disclose this sensitive information.


1: Is Disclosing HIV Status Medically Necessary?

The discussion should start here. Employers and others that require medical forms generally do so to assess fitness for the job or other opportunity -- with or without a reasonable accommodation. Read more about reasonable accommodation requirements in Are You Somebody With HIV/AIDS?

Therefore, the patient and doctor should discuss whether there is a legitimate medical reason to share HIV-related information. For example, an employer may not need to know the HIV status of an applicant who is medically fit and does not need a reasonable accommodation. Likewise, a school may not need HIV-related information about a child who does not require medical attention during the school day. But a sleepaway camp might need to know a camper's HIV status to dispense medication.


The risk of HIV transmission in a job, school, and most other settings is remote. It almost never justifies disclosing HIV information.

2: Is Preventing HIV Transmission a Reason to Disclose?

The risk of HIV transmission in a job, school, or most other settings is remote. It almost never justifies disclosing HIV information. Medical and public health authorities endorse the full participation of PLWHAs in almost every form of employment, sports, and schooling if their physicians deem them medically fit. If there is exposure to blood and certain bodily fluids, the authorities recommend using Universal Precautions, such as rubber gloves to prevent transmission of blood borne diseases such as HIV. Such precautions are standard practice and are not limited to cases of known HIV infection.


3: Do You -- the Patient -- Want to Disclose Your HIV Status?

Maybe you prefer to limit disclosure of your HIV status because of pervasive stigma and discrimination. Or maybe you are comfortable disclosing it. Discuss your wishes with your doctor. For information about HIV confidentiality in the workplace, read our HIV/AIDS FAQs.


4: Does the Form Require HIV/AIDS Disclosure? Read It Carefully!

Medical forms may not always seek HIV-related information. Read the form carefully!

These questions may require disclosure. Even so, check to make sure the question is legal (read #7):

  • "List all medications." "All" means "all." If the patient is taking HIV medications, they must be listed.
  • "List all diagnoses." HIV and AIDS are diagnoses, so they must be disclosed. But if you, the physician, believe that your patient's HIV/AIDS does not impair his/her fitness for the job or other activity at issue, you could write something like "none that impair his ability to perform the job of [fill in type of job]." The employer might request more specifics, and you may then need to disclose. But be careful: writing only "none" -- without the qualification -- could be considered untruthful. Read #5, below.

These questions may not require disclosure:

  • "List any communicable, infectious or sexually transmitted diseases." HIV is not classified as a "communicable," "infectious," or "sexually transmitted disease" in New York's health regulations (10 N.Y.C.R.R. § 2.1 and 23.1). Other states may be similar. In such a state, someone with HIV/AIDS could truthfully answer "no" to these questions.
  • "Describe conditions that impair your ability to. ..." Some medical forms do not explicitly ask about HIV/AIDS. Instead, they seek information about medical conditions that would impair an individual's ability to successfully perform the job, participate in camp or school, successfully be a foster parent, etc. Physicians should decide whether HIV/AIDS is relevant to the patient's fitness. If not, the answer truthfully can be "none."


Using HIV information to deny you a job or admission to school can sometimes be illegal discrimination.

5: Do Not Give False Answers. Do Not Leave Out Legally Required Information.

Medical forms must be completed truthfully. False information -- especially in response to legal questions -- can result in disqualification. For example, if a person checks "no" next to a box about "HIV or AIDS?" and the employer later learns that is untrue, the employer can legally deny employment because of the inaccurate information. The same is true in most other contexts. In contrast, using HIV information to deny you a job or admission to school can sometimes be illegal discrimination. For more information, read Are You Somebody With HIV/AIDS?


6: Get Consent for the Disclosure When You Need It

Doctors generally need a patient's written consent to disclose HIV-related information to employers and others requiring medical forms. These consent requirements are in HIPAA and many state laws, including New York's. You may download New York's authorization form here.


Employers may not ask about HIV ... until after making an offer conditioned on passing a medical exam or completing a medical form.

7: Is It Legal to Ask About HIV/AIDS?

It depends on who is asking and when. Under the Americans with Disabilities Act, employers may not ask about HIV or any other "disability" until after making an offer conditioned on passing a medical exam or completing a medical form. Even then, there are limits. The rules for schools and other contexts vary. But even if the question is legal, excluding someone because of HIV/AIDS may be illegal discrimination.

To learn more about when employers may ask about HIV/AIDS, or what to do about illegal questions, read Are You Somebody With HIV/AIDS? or HIV/AIDS FAQs. New Yorkers also may call the Legal Action Center (LAC) at (212) 243-1313. For questions other than employment, call your local State or City human rights agency. In New York, you may call LAC at (212) 243-1313.

Still have questions about HIV disclosure or other questions about HIV confidentiality or HIV discrimination in any setting? People living in New York may call the Legal Action Center at 212-243-1313. Outside of New York, please consult the resources noted above.


Related Stories

TheBody.com's Just Diagnosed Resource Center
Telling Others You're HIV Positive
More on U.S. Laws/News Regarding HIV Disclosure


This article was provided by Legal Action Center. Visit Legal Action Center's website to find out more about their activities, publications and services.
 

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