HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/Q_A.TXT

Text File | 1994-01-14 | 13KB | 312 lines

The field of HIV law covers many different issues. In this
file, we will suggest the types of questions for which there
is at least some guidance, and suggest statutes, cases and
other materials which may provide guidance. First a short
general lecture, then on to a list of the questions with
suggested reading.

One old joke goes, that when a first week law student is
asked a question about the law, they can answer, " I don't
know."  After 3 years of education upon graduation, the new
lawyer can answer with total assurance "It depends."

Those who are not trained in the law are rightfully puzzled
or angered by the fact that lawyers and Judges insist that
there are few issues for which there are definite answers.
This program is no exception. It is a curse or boon of
modern American society that we have become the most
legalistic state in the history of the world. Call a lawyer
and ask a question and in many cases he or she will have to
spend hours looking up an answer.  Although our democracy
permits each state to pass some laws that vary from those of
other states, and states permit counties and cities to pass
local laws, many HIV/AIDS issues have a maximum limit or
bottom line answer due to federal laws. Other than these
limited areas, the answer to all legal questions depends on
the jurisdiction and the facts. Even small variations in
facts can change answers. When persons ask what they think
to be simple questions, they have often not had the benefit
of a lawyer explaining to them all of the different facts
that need to be considered before the question can be
answered.

Most historians will agree that the founding fathers never
could have contemplated the degree of influence that the
present federal government has. One explanation for this is
the power of the purse. Why do all highways have maximum
speed limits of 65 and 55 in populated areas? A federal law
provides that no highway funds will be paid to a state
unless it follows these rules. Some of the issues with the
clearest answers are due to the fact that the federal
government conditions receipt of federal funds on states
following certain standards.  This leaves states free to
legislate higher speed limits, but then costs them federal
funds. If the state needs federal road building money then
they must follow the laws.

Here is an  examples of why the answer so often is, "it
depends."

Can a state authorize a needle exchange program so that drug
addicts will supposedly not transmit HIV by sharing infected
needles? The answer generally is that a state can do so.
However, if the state wants certain types of federal grants,
no part of these grants can be used for needle exchange
programs, due to a "no federal funding unless" clause. On
the other hand, the state of Washington does have a needle
exchange program despite this fact.  (See the City of
Spokane case, in the cases/public policy menu for a
discussion of needle exchange programs).

Here are some of the most common questions and answers in
the field of HIV/AIDS law--

1. Can a child with HIV be barred from school? Can a child
who is asymptotic be barred from school? Can a child with
serious behavioral problems who is HIV positive be barred
from school?

Each state's laws should be reviewed. The federal
statutes/regulations contain laws and regulations such as
the Education of the Handicapped Act, ADA and the
Rehabilitation Act. The CFR manual contains guidelines for
school admission. Case law: Martinez is the leading case;
see the "school" subcategory in the case law statutes menu;
also see CFR menu for policy guidance from the Office of
Civil Rights

2. Can an insurance company require an HIV antibody test as
a condition of the sale of health, life or other insurance?

Each state's laws must be reviewed. Many states have
comprehensive limitations on such requests.

3. Can a prisoner who is HIV positive be housed with those
who are not? Can a prisoner who is HIV positive be isolated
from the rest of the prison population?

Case law indicates that the answer to both questions is yes,
with a contrary view expressed in the Nolley case.

See: CFR- contains regulations of the Federal Bureau of
Prisons for HIV positive inmates; see "prison" sub-category
in the statutes menu

4.  Can an EMT, doctor or other health care worker obtain
information on the HIV status of a person with whom they
have been involuntarily subject to contact with blood or
other bodily fluids?

Check individual state laws. Most states have laws requiring
such disclosures. This is prompted by a federal law
providing that receipt of several different kinds aid
contingent on these laws; there is also case law to this
effect

5. What are the legal rights of a physician or other health
care worker to continue to work if they are HIV positive?

The Behr case contained on the cases/employment sub-category
is the leading case in the area; this law is very unsettled
at this time

6. Can an airline bar a person with HIV from traveling, or
require medical assurance of non-contagiousness? What if the
person has open sores or lesions?

Specific regulations are provided in the CFR menu. Generally
persons may travel without restriction, and an attendant
must be accommodated at no extra charge. In some
circumstances persons who are a bona fide risk to other
travelers may be required to abstain from traveling.

7. Can a person sue blood product providers for supplying
them with blood products contaminated with HIV, before tests
were available? After tests were available? Can the claimant
obtain the names of the blood donors to assist in proving
the negligence of the supplier?

The "Liability of blood banks" sub-category contains
numerous cases. The case law is dependent on state law, and
thus the answer varies from state to state. There are
numerous cases as to discovery as well, with a present
majority of cases favoring limited discovery.

8. Can a physician or hospital refuse to provide services to
a person with HIV?

Probably not.  This is based on the ADA (if the hospital is
owned by the state) or the Rehabilitation Act (if the
hospital receives federal funds) or state laws. The news
subcategory on the statutes menu contains a report of  a
recent settlement of such a claim.

9. Can a person be terminated from his job because he or she
is HIV positive? Must an employer offer to accommodate an
employee with HIV?

Under most circumstances, if this is the sole or major
reason, no. The employment sub-category in the
statutes/cases menu contains several cases in this area.

10. Can child custody be terminated, or visitation limited
or terminated if a parent is HIV positive?

Unless a parent is known to sexually abuse the children the
cases deny a change for this reason alone; see the
cases/family law sub-category on the cases category of
statutes

11. Can an employer alter its health insurance plan to limit
benefits for HIV to a small amount, and retain coverage for
other illnesses?

Under ERISA, such changes are allowed (see McGann, on the
employment subcategory); recent guidelines under the
Rehabilitation Act forbids such discrimination; a news item
regarding a recent lawsuit indicates that the Courts are
willing to enforce these guidelines

12. Does health insurance have to cover benefits for
"experimental" treatments?

This depends on the insurance contract; one opinion, the
Bradley case, contained on the public policy sub-category in
the statutes/cases menu required an insurer to cover a
treatment which was claimed to be experimental

13. Can a person obtain an anonymous test for HIV anti-
bodies? Are anonymous tests prohibited? If a person is
tested, must health departments, past sexual partners or
spouses be notified? Can the health department notify them
on its own?

The answer to all of these questions depends on state law.
In some states anonymous testing is encouraged. Other states
make it a crime for a doctor or laboratory to perform a test
for HIV antibodies unless the results are reported to the
state.

Many states require that spouses be informed, and that a
person testing positive for HIV antibodies inform past
sexual partners. Some of these states permit doctors or
public health officials to inform former sexual partners if
they believe that the person will not.

14. Can a person who is HIV positive and refuses to agree to
"safe sex" practices be quarantined? Can a person who is
insane and HIV positive who is a risk to transmit the
disease be quarantine?

Virtually all states have laws permitting quarantine of
persons who are willfully spreading HIV. The Stilinovich
opinion on the Public Policy/Cases sub-menu discusses this
question

15. Can a spouse of a person, or past sexual partners obtain
HIV test information?

This is dependent on each state's law; in the proposed
federal regulations for Veterans confidentiality (see
proposed federal statutes sub-category) spouses are
permitted to obtain such information

16. Can the press publish the names of those charged with
HIV crimes (such as engaging in prostitution when known to
be infected with HIV)?

Although most states have strict laws forbidding disclosure
of HIV test results, several opinions have permitted
disclosure of the names of those charged with HIV crimes in
the court system; see the cases/privacy sub-category
privacy, In Re KDSK, Tri-State, Van Stratten cases

17. What are the constitutional rights of the homeless who
are HIV positive to shelter?

See Mixon v. Grinker in the cases/public policy sub-menu

18. Can a person who is HIV positive, or suffering from ARC,
obtain social security disability payments? How ill must
they be? Can the social security administration require an
appeal which will take years be taken when a person's life
expectancy is low and the need for benefits high?

The Social Security administration recently totally revised
their handicap guidelines to provide specific guidance as to
disability caused by ARC; see these guidelines in the CFR
sub-menu; These guidelines provide that any combination of
diseases or ARC itself can qualify as a disability; The
Anderson v. Sullivan case, contained on the cases/public
policy sub-menu provides precedent that if the life
expectancy of a claimant is short that direct access to the
Courts is possible if the internal appeal will probably not
be decided until after the person's death

19. Does a person who is HIV positive have any legal right
to privacy?

The cases/public policy sub-menu provides many cases
concerning this issue, such as Doe v. Town of Plymouth,
which finds a constitutional right of privacy; the
cases/privacy sub-menu contains many cases in this regard;
finally, each state's statute is an important source of
rights

20. What are the rights of employees who may be exposed to
blood or other bodily fluids?

The CFR menu contains detailed regulations for those who may
be exposed to blood borne pathogens in general; the
cases/public policy sub-menu contains several cases such as
Ordway which discuss this question

21. What are the rights of military members who are HIV
positive?

The CFR menu contains detailed regulations concerning
military personnel as well as some civilian employees; The
cases/military category contains several HIV exposure cases
and considers the validity of orders controlling member's
sexual contents

22. What must an employer do to accommodate employees who
are HIV positive?

The ADA, the Rehabilitation act and related regulations
address these issues, as do state laws. These laws require
"reasonable accommodations" be made for employees with
disabilities. On the cases/employment menu, virtually every
case considers these issues. In particular see Cain v. Hyatt
and Buckingham v. United States

RECOMMENDED GENERAL USE OF THE PROGRAM

This program contains a huge amount of information. To
obtain the most benefit, we suggest the following sequence
of use of the program. Please take a few minutes and review
the manual and the define.txt, intro.txt files which are on
the root directory of the CD-ROM.

A. Read the state law for states that you are concerned
about in full. State laws widely vary. Some states have
comprehensive laws prohibiting discrimination against those
with HIV, permitting anonymous testing and providing special
state benefits to those with HIV.

Several states have NO HIV laws, such as Wyoming. (The state
according to CDC information has less than 10 cases of HIV.)

Other states have numerous scattered laws, in other words, a
line here or a line there mentions HIV.

B. Consider applicable federal statutes and regulations.
Review the laws listed on the statutes/CFR sub-menus and the
statutes/federal sub-menu. The statutes/CFR names are
descriptive of their contents.

C. Then, move to the statutes/cases menu. The cases are
separated into self-explanatory sub-categories. Since the
field of HIV law is relatively new, reading all of the cases
in an area is worth the time.