On March 12, 1997, Representative Tom A. Coburn, (R-OK) introduced H.R. 1062,
the HIV Prevention Act of 1997. While Rep. Coburn asserts that this bill is a
comprehensive plan designed to refocus public health efforts on HIV prevention,
in fact, the bill is a series of coercive measures that have been renounced by
national public health and health care provider associations. These groups
include the Association of State and Territorial Health Officials (ASTHO), the
National Alliance of State and TerritorialAIDS Directors (NASTAD), the American
Public Health Association (APHA), and the American Nurses Association (ANA). In
addition, the National Governors' Association (NGA) has expressed strong
opposition to the bill indicating that it "places Medicaid funding at risk in
order to advance testing requirements of dubious merit".
The bill amends Title XIX of the Social Security Act, stipulating that in order
to receive federal Medicaid funds, States must demonstrate that laws or
regulations are in effect to assure compliance with the provisions of H.R. 1062.
In effect this bill would jeopardize the federal and state Medicaid partnership
which finances health care services for over 37 million low income and disabled
individuals, including 53% of the adults and 90% of the children living with
AIDS. The provisions of H.R. 1062 are unfunded mandates for States and impose
"one size fits all" solutions on state and local governments. The bill would
also undermine the partnership between state and local health departments and
communities in the development of tailored approaches which respond to the
characteristics of the epidemic at the local level.
National Mandatory Names Reporting
H.R. 1062 is not about HIV prevention; it is about testing people to identify
their HIV status. Identification of people who are HIV positive does not in of
itself prevent others from becoming infected. A comprehensive strategy that uses
multiple approaches, tailored to the needs of different populations is needed to
prevent HIV infection in the first place. These approaches include the
widespread and consistent provision of information which helps people to learn
what behaviors place them at risk and how they can modify those behaviors to
reduce their risk of HIV infection. The provisions in the HIV Prevention Act of
1997 would lead to the elimination of anonymous HIV testing and the newly
approved HIV home sample collection kits.
Under the pretense of improved measurement of the HIV epidemic, Rep. Coburn
calls for States to report the identities of HIV positive persons. This
provision would create an unnecessary burden on the States, and tax their
already scarce HIV prevention resources. In order to comply, States would be
forced to divert a huge proportion of these resources away from community based
HIV behavioral interventions which have been proven to be effective and to
invest them in HIV testing, names reporting, contact tracing and partner
HIV names reporting is only one method used to track the course of the HIV
epidemic, and States are already employing other, less costly methods such as
anonymous HIV reporting, and seroprevalence studies to achieve the same goals.
Mandatory names reporting may in fact discourage people from coming forward to
be tested. While confidentiality laws are in effect and discrimination on the
basis of HIV status is prohibited, the potential for discrimination still
exists. Many people still fear breaches in confidentiality and others have
experienced HIV discrimination in the form of denial of insurance, housing, and
employment, despite existing laws.
A national survey on people's willingness to get tested found that a large
percentage of individuals with risk factors for HIV would get tested "if no one
could find out the results". The adoption of Coburn's proposals would serve as a
deterrent for many people with confidentiality concerns to get tested.
Representative Coburn's bill claims to protect partners of people with HIV by
mandating that States implement partner notification programs which can be used
by the CDC to set up a national partner notification program. The CDC has never
called for such a system. In fact, States and localities must currently have in
place partner notification programs as a condition of receipt of funds through
the CDC's HIV prevention cooperative agreement, . In order to receive funding
under the Ryan White CARE Act, States must certify to the CDC that they have
partner notification programs in place. Mandating a uniform, nationally based
system will only undermine local efforts already in place and do nothing to
actually decrease HIV transmission.
The bill also requires States to seek and recall any individual who tests
positive for HIVand does not seek the results of the test. Mandating States to
follow up with every such person and to notify every individual who may have
been exposed to HIV infection is unnecessary and extremely burdensome. Such
notification is very labor intensive and expensive. Partner notification, in of
itself, is not a panacea. Even in those areas of public health, such as syphilis
and gonorrhea, where aggressive partner notification and contact tracing have
been used, these sexually transmitted diseases have not been totally eliminated.
In fact, today, the United States still faces a serious epidemic of sexually
transmitted diseases. Therefore, these methods should not be imposed on States
who have chosen to pursue HIV prevention activities that are proven more
effective in their communities. Instead of mandating a national partner
notification program, greater HIV prevention resources should be provided to the
States and localities to implement strategies that work for their communities
which focus on controlling the spread of HIV infection through tailored
behavioral change interventions; encouraging voluntary partner notification, and
providing assistance for those who request it in notifying their
HIV Testing for Sexual Offenders
Rep. Coburn claims that his bill will protect the victims of sexual assault by
requiring HIV testing for the alleged offender. The Omnibus Crime Control Act of
1994 already provides for a victim to request a court order to have the alleged
perpetrator, in federal sexual assault cases, tested for HIV. In addition,
states are free to pass such laws if they deem fit, and many have done so.
This provision is of great concern because testing an alleged sexual offender
does not give reliable information about the HIV status of the offender nor the
victim. There is a window period of up to four to five months during which the
infected person may not test HIV positive because antibodies have not been
produced. In addition, an HIV positive person will not necessarily transmit HIV
to another individual.
This provision takes control from the victim to determine whether or not testing
occurs and imposes a mandate on the States to do so. Furthermore, the provision
requires that the HIV test results of the defendant be made available to the
prosecuting attorneys, the attorneys of the victim and defendant, the presiding
judge, and the principal public health official of the local jurisdiction. These
provisions do not consider and severely undermine the victim's confidentiality
rights. This so called "protective" measure may in fact create further distress
and trauma for the victim.
The best way to help and protect a survivor of sexual assault is to provide
counseling, free anonymous HIV testing, health care and psycho-social support
services to the survivor. This bill focuses on HIV testing of the alleged sexual
offender, yet it does nothing to provide services and assistance for the victim.
It provides a false sense of security, unnecessary stress and a hollow promise
of protection and assistance to the victims of sexual offenses.
Protection of Medical Providers From HIV Infection
The HIV Prevention Act of 1997 allows health care professionals to refuse to
performmedical procedures on a patient unless the patient undergoes a test for
HIV infection and the health care professionals are notified of the results.
This constitutes non-consensual HIV testing of patients by health care
providers. More important, the bill raises grave concerns regarding the
treatment of trauma victims and patients in emergency situations. In such
situations? a patient's life may be placed in jeopardy if the health care
professional opts to have the patient tested for HIV and to get the results
before performing a necessary medical procedure.
Furthermore, this provision is ineffective in protecting health care
professionals from HIV infection because an HIV negative antibody test result
will not necessarily reveal whether the patient is actually infected. There is a
window period during which an infected person may not test HIV positive because
antibodies have not been produced. Furthermore the provision is unnecessary
since the best way to protect health care professionals from exposure to HIV is
to practice universal precautions as outlined in the CDC and OSHA guidelines,
which have been endorsed by the health care provider community including the
American Medical Association.
The HIV Prevention Act of 1997 has several other questionable and burdensome
provisions regarding funeral service practitioners, health insurers and adoption
agencies. In addition, the HIV Prevention Act of 1997 expresses the "sense of
Congress" that States should criminalize the intentional transmission of HIV and
that strict confidentiality must be observed at all times in carrying out this
Act. The fact is, every State and the District of Columbia already have laws on
the books that would allow the criminal prosecution of people with HIV or AIDS
who knowingly attempt to infect another person. In addition, the entire bill
contradicts the sense of Congress regarding confidentiality. The bill's
provisions mandating HIV names reporting and a national system of partner
notification would force many States to undermine and weaken their existing laws
and regulations ensuring the confidentiality of a person's HIV status.
In summary, the HIV Prevention Act of 1997 is a collection of thinly veiled
unfunded mandates which impose questionable HIV testing and reporting
requirements on States and make compliance a condition for receipt of federal
Medicaid dollars. State health officials and AIDS directors estimate that
implementation of the legislation would require at least 265 statutory or
regulatory changes nationwide and cost about $420 million per year. This
legislation would divert precious funds away from locally planned, tailored and
aggressive prevention efforts that have been demonstrated to work, in order to
support these federally imposed measures. Tremendous strides have been made in
the science and state of the art of HIV prevention over the past 15 years. We
cannot afford to move backwards now. We must move forward and support, not
undermine, the partnership of state and local governments with communities to
the HIV epidemic. Oppose H.R. 1062.
For further information, contact:
AIDS Action Council
1875 Connecticut Avenue NW #700
Washington DC 20009
202-986-1300, extension 3053