A new study reveals that more than two-thirds of states, including Colorado, are not in compliance with new federal guidelines on HIV testing.Researchers at the University of California at San Francisco reported in a new study published last week that 35 states’ privacy laws conflict with a recommendation by the Centers for Disease Control (CDC) to eliminate patient consent requirements for HIV testing and pretest counseling.
The new guidelines announced in September 2006 are a radical departure from previous testing recommendations. The CDC now urges routine HIV testing for all Americans between 13 and 64 as a routine part of their health care with a test performed unless the patient specifically refuses.
A quarter of a million Americans have undiagnosed HIV infections. The CDC estimates that two-thirds of the approximately 40,000 new cases each year in the U.S. occur in people who are unaware of their infection.
The study found “significant legal barriers” in implementing the CDC’s advice:
Because of state requirements for specific consent to HIV testing, written consent to testing, and disclosure of specific information during pretest counseling or the informed consent process, the majority of states would need to amend their laws to permit routine HIV testing. For example, states that require disclosures would need either to eliminate those disclosures or make them recommendations, rather than requirements. However, our findings show that legislatures have not made the legal changes necessary to facilitate more routine HIV testing, despite strong public health recommendations to do so. In fact, the trend in states that have amended their laws since 2004 has been to reaffirm requirements for pretest counseling and consent, even, in some instances, while acknowledging the recommendations for more routine testing.
Even states without HIV testing statutes may face legal barriers to implementing the CDC’s recommendations for routine HIV testing. Based on case law, many states use a “reasonable patient” standard for informed consent to medical treatment; physicians must disclose what a patient with ordinary reason and intelligence would want to know in making a medical decision. Because policy has recommended specific consent to HIV testing after pretest counseling and due to continued stigma surrounding HIV, it is likely that the “reasonable patient” standard would require more information about HIV testing than is currently contemplated under the CDC’s recommendations. It may take time-and education efforts-to change public perceptions and to make routine testing acceptable.
According to the researchers, HIV/AIDS advocates raised concerns that mandatory testing without pretest counseling and written consent would reduce opportunities to educate patients about the disease and its risk factors. As well, people with HIV continue to experience discrimination, social isolation, and stigma which affects patients’ willingness to undergo testing.
The study concludes that while increasing HIV testing is an important goal, the CDC’s new recommendations may actually hinder future testing by at-risk individuals and those who have never had a test because of the de-emphasis on pretest counseling and disclosures which have been clinically proven to decrease both high-risk behaviors and the incidence of sexually transmitted diseases.
Besides Colorado, the following states were identified by the public health researcher and lawyer Leslie Wolfe at the Center for AIDS Prevention Studies at UC San Francisco as being at odds with the CDC’s proposal:
AL, AZ, CA, CO, CT, DE, FL, GA, HI, IL, IN, KY, LA, ME, MD, MA, MI, MS, MT, NE, NH, NM, NY, NC, ND, OH, OK, OR, PA, RI, TX, VA, WA, WV, WI.
Wolfe cautions that the non-compliant states are a “moving target” since some are currently reviewing their consent and information disclosure laws in an attempt to align with the non-binding CDC recommendations.
Colorado policies on HIV testing:
Compiled by the National HIV/AIDS Clinicians’ Consultation Center.
Other states’ laws can be found at the National HIV/AIDS Clinicians’ Consultation Center.