The Coburn HIV Prevention Act of 1997

The HIV Prevention Act of 1997 (H.R. 1062), introduced by Representative Tom Coburn (R-OK), has little to do with preventing HIV transmission. This bill seeks to federally mandate costly and ineffective testing-related measures that undermine proven community-based prevention strategies already being implemented across the country. Instead of allowing states and communities to effectively respond to the specific demographics of the HIV epidemic in their jurisdiction, this legislation represents one-size fits all solutions from Washington that tie the hands of these communities. In fact, states and local communities already have the flexibility to implement provisions of the Coburn bill as part of their prevention strategies, and have, through state law or regulation, as deemed appropriate.

States would be required to implement all of the bill's provisions as a condition of receiving federal Medicaid funds, thereby jeopardizing the source of health care for more than half of all people living with AIDS. No new funding is provided, despite the fact that the Association of State and Territorial Health Officers (ASTHO) estimates that implementation of this legislation would require at least 265 statutory or regulatory changes nationwide, and cost approximately $420 million a year. In fact, among the laws and regulations states would be required to change in order to comply with these new unfunded federal mandates are laws and regulations they enacted to comply with conditions of the federal Ryan White Care Act. At the same time, this legislation does nothing to support community-based prevention efforts that have been proven to be highly effective in changing risk behaviors and significantly reducing the transmission of HIV.

I. National Partner Notification

The HIV Prevention Act would mandate that states report the identities of all people testing positive for HIV, as well as the identities of their sexual and needle sharing partners, to the federal government. These lists would be used by the CDC to establish a national partner notification system, and a state's list would be shared with other states so that individuals could be tracked down and informed that they may have been exposed to HIV by a current or past partner. Additionally, all states would be required to implement mandatory names reporting systems for their own surveillance purposes, even those states that have already implemented unique identifier systems or that measure the number of cases of HIV infection by collecting anonymous demographic information.

• No other disease is required to be reported by federal mandate, and the CDC has not requested that Congress create such an unprecedented mandate for HIV. For all other diseases, appropriate surveillance has been accomplished by consensus in the public health community. For example, all state public health departments reached consensus on the voluntary reporting of AIDS cases to the CDC. No federal mandate was needed.
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• Mandatory names reporting is not the only or even the best way to do surveillance to measure cases of HIV infection. Other methods, such as using unique identifiers and sentinel studies, provide accurate information about the incidence of HIV infection. State health departments design surveillance programs appropriate to their populations, taking into account that surveillance methods that discourage people from being tested in the first place are counterproductive. States are free to implement mandatory names reporting if they feel it is appropriate, and a number of states have done so. State flexibility is key, however; even some states that have confidential name reporting choose to keep anonymous test sites available as an option as well.

• A federal mandate requiring states to report the identities of everyone testing positive for HIV would eliminate anonymous testing options, including newly-approved HIV home sample collection kits. States and local communities have adopted a broad range of testing options to encourage people to come forward to be tested without fear of loss of privacy. A 1996 study of 2000 individuals tested at anonymous test sites in California found that 80% said they would not have consented to be tested if their names were to be "confidentially" reported to the state health department. And when Oregon state switched from "confidential" names reporting to anonymous testing, the number of individuals seeking testing increased significantly. Studies have documented higher rates of testing and higher rates of positive test results at anonymous testing sites.

• Creating a "national" partner notification program is also an unnecessary waste of resources. Neither the CDC nor states have called for such as system.

• States and localities are already required to have partner notification programs as a condition of receiving funds from the Centers for Disease Control for HIV prevention and Control. The Ryan White CARE Act Amendments of 1996 also requires states to notify a spouse of a known HIV-infected patient that he or she may have been exposed to the human immunodeficiency virus and should seek testing.

• Partner notification programs are only useful as part of an overall prevention strategy geared to the specific demographics of the AIDS epidemic in a local community. The federal mandates in this legislation would constrain local public health officials from adopting programs most suited to their jurisdictions. Because partner notification activities are labor intensive, they are expensive and would be likely to divert resources from more effective means of HIV infection control.

• States must be given the flexibility to design and implement partner notification programs that reflect the level of infection in given communities. As the AMA has stated, "We recognize that no single type of contact tracing program can be designed for every state and local health department...reliance on the discretion of the public health officer provides necessary flexibility.... Financial resources, community seroprevalence rates, awareness levels in at-risk populations, differing transmission rates among infected populations and how recently the partners of index patients were exposed to HIV are all factors which must be considered by public health authorities in designing their contact tracing programs".

• Partner notification has proven to be ineffective in stemming recent surges in diseases such as syphilis and gonorrhea. The Centers for Disease Control (CDC) reported that since 1989 the rates of primary and secondary syphilis have increased by at least 40 percent and up to 293 percent in urban areas across the United States.

• Mandatory partner notification programs are a poor use of resources. Most "at risk" populations already know they are at risk; if not, targeted prevention education to such populations is a far more effective use of resources than partner notification. Identifying those with HIV and sharing this information between states does nothing in terms of preventing transmission of HIV. Moreover, a recent California study of HIV-infected drug users found that 63 percent of those interviewed said they, if asked, would not reveal the correct names and addresses of their partners due to social stigma and rejection or for other reasons. Thus, these programs are ineffective as a means of HIV prevention because their success relies on the voluntary cooperation of the infected person.

• Mandatory partner notification programs may actually discourage women from seeking testing, and have been shown to trigger incidents of domestic violence. In a recent study of health care providers in Baltimore who work with women infected with HIV, 24% of the providers had at least one female patient who experienced physical violence following disclosure of her HIV status to a partner.

II. HIV Testing of Sexual Offenders

The HIV Prevention Act requires that states test accused sexual offenders for HIV within 48 hours of the filing of an information or indictment, whether the victim requests it or not, and that the results be disclosed "as soon thereafter as practicable" to "the victim; the defendant; the attorneys of the victim; the prosecuting attorneys; the judge presiding at the trial, if any; and the principal public health official for the local jurisdiction in which the crime is alleged to have occurred" --seriously compromising the confidentiality of the victim.

• The federal Omnibus Crime Act of 1994 already provides for HIV testing of accused sexual offenders at the request of the victim, and protects the victim by limiting disclosure of the results to the victim and the person tested. In addition, at least 44 states and the District of Columbia have laws explicitly providing for HIV tests in sexual offense cases.

• Testing of sexual offenders does not necessarily provide accurate information regarding the HIV status of the victim, due to the window period in which a person could be infected and not test positive for the disease. Even if the defendant does test positive, the possibility exists that the virus was not transmitted to the victim. Relying on the HIV-status of the offender could result in a false sense of security for the victim or create unnecessary panic, further victimizing the survivor.

• Focusing on the perpetrator and further victimizing the survivor by discounting her needs, not allowing her to decide whether or not testing of the offender occurs, and revealing her exposure to HIV to anyone associated with the court proceedings, is hardly good policy. Instead, the survivor of the crime should be offered counseling, testing, and services to address her needs and above all, protect her confidentiality. Rape crisis counselors believe that the best way to help survivors of sexual assault is to provide necessary health care and counseling services directly to them. Sexual assault survivors need support to regain a sense of control over their lives. Concentrating on the HIV status of their assailant undermines the ability of survivors to reclaim their sense of control over their health and safety. They need proper counseling immediately by trained professionals who can assess and convey the risks of transmission. Only by being tested themselves over a period of time will they know their own status.

• The test of the defendant, when used in court, may cause problems for the survivor. If the defendant tests positive, it could be presumed that the survivor will be positive as well. The survivor may face the same discrimination and problems that HIV infected persons face.

III. HIV Testing of Patients

The HIV Prevention Act allows medical professionals to refuse treatment to a patient unless the patient is tested for HIV.

• Adherence to universal precautions for infection control is the accepted public health approach to protecting health care workers from accidental exposure to HIV and other blood-borne infections, such as hepatitis B.

• Testing does not establish the current HIV status of the patient because of the window period between infection and development of antibodies. The best approach to preventing HIV transmission from patient to health care worker or vice versa is through adherence to universal precautions. The American Hospital Association and the American Nurse's Association both oppose blanket screening because it does not provide meaningful protection for health care workers.

• States have rejected the idea of testing hospital patients because it is ineffective and prohibitively expensive. Since the beginning of the epidemic, CDC has documented 46 cases of occupational exposure to HIV. The American Hospital Association estimates that testing hospital patients would cost $1.65 billion a year and would have no real impact on the spread of HIV.

• Delaying a medical procedure while awaiting test results that may not even provide accurate information on a patient's HIV status, could cost that individual his or her life, while doing nothing to actually prevent the spread of HIV.

IV. Sense of Congress Provisions

The HIV Prevention Act expresses the sense of the Congress that States should criminalize irresponsible behaviors by those who are infected.

• There is no question that deliberately attempting to infect another person with HIV is a heinous criminal act. However, every state and the District of Columbia addresses this concern by having laws that allow the criminal prosecution of such an act. For example, there are some laws that address assault with a deadly weapon or assault with intent to kill, which could be used to prosecute a person who knowingly attempts to infect another with HIV. Since 1986, 24 states have adopted criminal laws making it a felony, misdemeanor, or both to knowingly expose or transmit HIV to another person.

• Criminal laws against knowingly exposing or transmitting a disease to another person are hardly new. Even before the HIV/AIDS epidemic, many states imposed criminal or civil penalties on individuals who knowingly exposed another to a sexually transmitted or communicable disease. While many legal experts consider these laws sufficiently broad to cover cases involving HIV and AIDS, several states have amended these laws to specifically include HIV/AIDS or have enacted separate HIV/AIDS-specific laws.

The HIV Prevention Act expresses the sense of Congress that strict confidentiality "should" be maintained in carrying out the provisions of this Act.

• A "Sense of Congress" provision is not legally binding, and does nothing to deter or penalize breaches of confidentiality. People living with HIV/AIDS are subject to discrimination in housing, health care, and employment. For people living with HIV/AIDS, maintaining confidentiality is essential to preventing discrimination. Studies have shown that the very fear of breach of confidentiality may deter people from being tested for HIV, and that people who suspect that they may be HIV-positive delay early detection and treatment to avoid the potential negative consequences which flow from confidentiality breaches. Strict legal protections accompanied by meaningful, enforceable sanctions are the only way to protect against breaches of confidentiality.

V. Other Provisions

The HIV Prevention Act of 1997 includes a hodge-podge of other provisions regarding funeral service practitioners, adoption agencies, and health insurers, all of which are as burdensome and ill-conceived as the provisions highlighted above. Enormous strides have been made in addressing the HIV epidemic on the federal and state level. This Act is a collection of counter-productive unfunded federal mandates that will only divert resources from real prevention efforts and further stigmatize and frighten people living with and at risk for HIV. For all these reasons, AIDS Action Council strongly opposes the Coburn HIV Prevention Act of 1997.

For more information, contact:

AIDS Action Council
1875 Connecticut Avenue NW #700
Washington DC 20009
202-986-1300, extension 3053
202-986-1345 (fax)
202-332-9614 (tty)
E-Mail: aidsaction@aidsaction.org