The human immunodeficiency virus (HIV) is an infectious agent that causes damage to a person’s immune system. HIV infection interferes with a body’s ability to fight infection and disease. If a person is infected with HIV and it is not treated, the person develops.
Acquired Immune Deficiency Syndrome (AIDS). Infection with HIV is a condition that cannot at present be cured, but treatment and strategies can prevent a person with HIV infection from transmitting the virus to others. It would also prevent the infection from developing into AIDS.
HIV is transmitted through contact with bodily fluids. Typically, it is a sexually transmitted infection (STI). Or, it is often spread by contact with infected blood, perhaps from the use of needles to inject drugs and needle sharing. A mother can also transmit HIV to her child during pregnancy, childbirth, or breastfeeding.
What Are My Rights With Respect to Health Care Providers?
A person who has HIV or AIDS is protected against discrimination based on their HIV status under several federal laws, i.e., the Rehabilitation Act of 1973 (RA), the Americans with Disabilities Act of 1990 (ADA), and a section of the Affordable Care Act (ACA).
The effect of these laws is that a person with HIV cannot be denied the opportunity to participate in a service that is offered to others because they have HIV. They cannot be denied a benefit because of their HIV-positive status. So, a person who is HIV positive could not be denied health insurance.
The ADA prohibits discrimination by employers, public places, and state and local governments and their agencies. The RA prohibits discrimination against a person because they have HIV or AIDS on the part of health and human service providers as well as organizations that receive federal funds. The ACA prohibits discrimination based on a person’s HIV or AIDS status in certain health programs or activities.
Hospitals, clinics, social service agencies, drug treatment centers, nursing homes, doctors, and dentists are all covered by the ADA and are prohibited from discriminating against people on the basis of their HIV- or AIDS-positive status.
Can a Health Care Provider Disclose My HIV Status to Anyone?
In general, a person has the right to privacy for their personal medical records. This would include such information as a person’s HIV status. A number of federal laws, such as the Health Insurance Portability and Accountability Act of 1996 (HIPAA), are designed to protect a person’s health information.
However, HIPPA does allow doctors to share a person’s personal health information with other healthcare providers if it is necessary for the treatment activities of that provider. A doctor does not need the patient’s consent or authorization for such a disclosure.
HIPAA defines “treatment” as giving, coordinating, or managing a person’s health care and related services. This includes the coordinating or managing of a person’s health care by their healthcare provider with another party who is involved in the care. It could also include consultation between providers on behalf of a patient or referring a patient to another provider for care.
In addition, states may have laws that offer protections similar to those provided by federal law specifically aimed at HIV status. However, it is important to recognize that there are limitations to the privacy offered by the law. For example, HIPAA only protects health information given by patients to healthcare providers. Any other source or information would not come within the protection offered by HIPPA.
State laws may offer more protection than federal healthcare confidentiality laws in cases of HIV. Or, a person may not be entitled to medical confidentiality in these states in all situations. In fact, they could be legally obligated to inform others of their HIV status in certain circumstances.
Also, some states have laws that make exposing a person to HIV a crime, and a person may have to adhere to these laws. States generally have 4 categories of laws relating to HIV exposure as follows:
- Laws designed to control behaviors that are considered to lead to HIV exposure or which make it a crime to expose a person to HIV specifically;
- Laws designed to control behaviors relating to exposing people to sexually transmitted diseases (STDs) or infectious diseases, which may include HIV;
- Laws that enhance the punishment for the conviction of a person with STDs or HIV specifically;
- A lack of specific laws that make HIV exposure a criminal offense.
A single state may have laws that fit into more than one category. Also, some general statutes, such as laws that criminalize reckless endangerment, may be used to make HIV exposure a criminal offense.
For example, in Texas, people who are positive for HIV have been prosecuted for allegedly exposing others to HIV under laws that address attempted murder and aggravated assault. In Texas, the crime of aggravated assault is classified as a 2nd-degree felony. Aggravated assault is causing serious bodily injury to another or using a deadly weapon in an assault.
In Texas, a 2nd-degree felony is punished by a term of imprisonment for 2 to 20 years and payment of a fine of up to $10,000. The important point is that Texas courts have ruled that the bodily fluids of a person who is HIV positive may be a deadly weapon for the purposes of conviction for aggravated assault.
In New York, people who know they have a transmissible venereal disease may be charged with a misdemeanor if they have sex with another person.
California does not have a law that makes it a criminal offense to expose another person to HIV or to transmit it to another. However, if a person is convicted of a crime involving sexual assault, their sentence may be enhanced if they are HIV positive.
Reportedly, the following nine states have eliminated laws that make HIV exposure a crime, or they have updated these laws. These states are the following:
- California;
- Colorado;
- Illinois;
- Iowa;
- Michigan;
- Missouri;
- Nevada;
- North Carolina;
- Virginia.
Recent changes to these laws may have eliminated making a person’s HIV status a crime except in specific circumstances, such as intentionally transmitting HIV to another person. Not all states offer anonymous HIV testing, but some do. In states with anonymous testing, a person is tested without associating the results with the person’s name or personal information.
Anonymous testing may be offered at specific locations only, so if a person seeks testing, they may want to check whether the facility offers anonymous testing before undergoing the test.
Can Health Care Providers Refuse to Treat a Patient With HIV?
Under the ADA, healthcare providers are prohibited from discriminating in any way against people with HIV. Under state and local laws, doctors or dentists cannot refuse to treat people with HIV.
However, all healthcare providers are not required to treat HIV patients. If a person seeks medical treatment that is outside a health provider’s specialty, the health provider can refuse the patient and refer them to another doctor or health provider who is experienced in the specialty the patient requires.
Should I Consult an Attorney Concerning My Rights as an HIV Patient?
If you feel your rights as an HIV patient have been violated or that you have been the victim of discrimination, then you may want to consult an experienced insurance lawyer.
Your attorney can advise you of your rights and how you can assert them in various situations. Your lawyer can review the facts of your case and tell you if you may be entitled to money damages in a lawsuit against the health care provider or medical facility.
