ATrain Education

 

Continuing Education for Health Professionals

KY: HIV/AIDS

Module 9

Legal Issues with HIV/AIDS

In 1990 Kentucky enacted legislation to address the AIDS epidemic, and the legislation has been regularly amended and updated since then. The Kentucky Omnibus AIDS Act originally stipulated that all licensed healthcare providers, as well as athletic trainers, lab personnel, social workers, and all employees of health facilities who are not otherwise covered by professional licensure, were required to take a course on the transmission, control, treatment, and prevention of HIV/AIDS every 2 to 3 years. In 2000 the frequency requirement was changed to every 10 years.

State legislation also mandates education for anyone treated for HIV/AIDs at any licensed hospital or health facility, in secondary and post secondary schools; for all inmates of the Department of Corrections; and for law enforcement and correctional officers. The original 1990 legislation and subsequent revisions address rules for testing, informed consent, confidentiality, reporting requirements, state programs, and discrimination.

Kentucky Cabinet for Health and Family Services

Kentucky legislation has established the responsibilities of the Cabinet for Health and Family Services (CHFS) for HIV/AIDS surveillance, prevention, and services. Surveillance activities are conducted in accordance with Kentucky Communicable Disease Reporting regulations. The program provides forms and guidelines for interviewing clients and filing reports. Semi-annual statistical reports are prepared and made available on the CHFS HIV/AIDS website.

The Cabinet for Health and Family Services prevention responsibilities includes coordinating the planning, implementing, and evaluating of programs targeted for all at-risk groups. This includes counseling, testing, referral, and partner notification programs conducted by contract with community-based organizations and certain health departments. Testing sites are required to be located in every county across the state.

The services program encompasses the Kentucky HIV/AIDS Care Coordinator Program (KHCCP), which is expected to facilitate “quality care and services to HIV-infected individuals and their families” and is the umbrella organization for Kentucky’s health insurance continuation, outpatient healthcare support services, and financial and drug assistance programs, all of which are dependent on state and federal funding.

In 2000 the Cabinet was given the authority to create an HIV and AIDS Planning and Advisory Council. The council is broadly representative of both those affected by HIV/AIDS and those providing services for them. It is charged with advising and assisting the Cabinet for Health and Family Services by monitoring its activities, exploring options for centers for excellence, assessing current resources and services, and making annual reports to the state legislature (KY Legislature, 2014).

Consent to Test

Many members of the public are deterred from seeking testing because they misunderstand the nature of the test or fear that test results will be disclosed without their consent. To address these concerns, Kentucky law finds that “informed, voluntary, and confidential” testing for HIV infection is in the interests of public health and consent is required before a test to identify HIV, or its antigen or antibody, is performed by anyone in the state. A patient who has signed a general consent form for medical treatment is “not required to also sign or be presented with a specific consent form” relating to HIV during the period covered by the general consent form. In other words, HIV testing can be included in general medical consent. However, the general form must specifically state that HIV-related testing is covered (KY Legislature, 2014).

In an emergency, where prior informed consent cannot reasonably be obtained before providing services, a healthcare provider is not required to obtain such consent. In addition to emergencies, other situations where Kentucky law may allow testing without consent include:

  • Following conviction of a sexual offense (adults and juveniles)
  • Following conviction of prostitution or procuring another to commit prostitution
  • For juveniles charged with certain sexual offenses
  • For inmates known to have been exposed to HIV/AIDS, to have engaged in high-risk behaviors, and/or to have endangered the well-being of correctional employees
  • Testing of blood, organ, and human tissue donations
  • For healthcare facility residents after exposure
  • Post-test counseling is required with HIV-positive test results (NCCC, 2014)

Confidentiality

The Kentucky Cabinet for Health and Family Services has established a system for reporting all individuals who test positive for HIV infection. The reporting includes the CD4 count and viral load, as well as other information necessary to comply with the confidentiality and reporting requirements of the most recent edition of the CDC’s Guidelines for National Human Immunodeficiency Virus Case Surveillance (KY Legislature, 2014).

While confidential testing following CDC guidelines is recommended, Kentucky law stipulates that anonymous testing must also be available (and, by default, oral consent). Minors do not need parental consent for STI testing and physicians are not required to inform the parents of a minor’s HIV test or results.

In general, breach of confidentiality by deliberate release of the name of a person receiving an HIV test is a class A misdemeanor (KRS 214.995); however, there are circumstances under which test results and related information may be released to certain individuals or entities. For example, physicians are not prevented from giving information to a minor’s parent or legal guardian, and they are protected from liability under certain conditions specified by law when informing a co-habiting partner of the other partner’s positive test result. Healthcare providers should become familiar with all regulations that pertain to their field and follow all guidelines of their employer with regard to confidentiality requirements.

HIV/AIDS Reporting Requirements in Kentucky

The Centers for Disease Control and Prevention (CDC) recommends reporting of all HIV-related test results, including CD4+ T-lymphocyte (CD4) results and all viral load test results. Consistent with the terms of the CDC’s HIV surveillance cooperative agreement with state and local health departments, CDC requires entry of all HIV-related laboratory test results for individuals diagnosed with HIV into the state or local database for submission to CDC for inclusion in national analyses (HHS, 2013).

According to Kentucky state regulations, health professionals licensed under KRS chapters 311 through 314, health facilities licensed under KRS chapter 216B, and laboratories licensed under KRS chapter 333 are required to report HIV and AIDS cases to the Kentucky Department for Public Health or the Louisville Metro Department for Public Health and Wellness within five business days of diagnosis.

A positive test result must be confirmed by corroborating tests before informing the patient of the result, and the physician ordering the test (or the attending physician) must inform the patient of the result and provide information and counseling or referral to such counseling as specified by law. Kentucky law specifically allows a physician to inform a patient of a positive result from a rapid test in situations with proper counseling or where such knowledge addresses an urgent need for treatment.

Kentucky Disease Surveillance for HIV/AIDS

Section 7. Human Immunodeficiency Virus (HIV) and Acquired Immunodeficiency Syndrome (AIDS) Surveillance.

  1. Physicians and Medical Laboratories shall report:
    1. 1.   A positive test result for HIV infection including a result from:
        • Elisa;
        • Western Blot;
        • PCR;
        • HIV antigen; or
        • HIV culture;
      1. CD4+ assay including absolute CD4+ cell counts and CD4+%;
      2. HIV detectable Viral Load Assay; and
      3. A positive serologic test result for HIV infection; or
    2. A diagnosis of AIDS that meets the definition of AIDS established within the Centers for Disease Control and Prevention (CDC) guidelines and reported in the:
      1. “Adult HIV/AIDS Confidential Case Report Form,” or
      2. “Pediatric HIV/AIDS Confidential Case Report Form.”
  2. An HIV infection or AIDS diagnosis shall be reported within five (5) business days and, if possible, on the “Adult HIV/AIDS Confidential Case Report form” or the “Pediatric HIV/AIDS Confidential Case Report form.”
    1. A report for a resident of Jefferson, Henry, Oldham, Bullitt, Shelby, Spencer, and Trimble Counties shall be submitted to the HIV/AIDS Surveillance Program of the Louisville-Metro Health Department.
    2. A report for a resident of the remaining Kentucky counties shall be submitted to the HIV/AIDS Surveillance Program of the Kentucky Department for Public Health, or as directed by the HIV/AIDS project coordinator.
  3. A report for a person with HIV infection without a diagnosis of AIDS shall include the following information:
    1. The patient’s full name;
    2. Date of birth, using the format MMDDYY;
    3. Gender;
    4. Race;
    5. Risk factor, as identified by CDC;
    6. County of residence;
    7. Name of facility submitting report;
    8. Date and type of HIV test performed;
    9. Results of CD4+ cell counts and CD4+%;
    10. Results of viral load testing;
    11. PCR, HIV culture, HIV antigen, if performed;
    12. Results of TB testing, if available; and
    13. HIV status of the person’s partner, spouse or children.
  4. Reports of AIDS cases shall include the information in subsections (1) through (3) of this section; and
    1. The patient’s complete address;
    2. Opportunistic infections diagnosed; and
    3. Date of onset of illness.
  5. (a)  Reports of AIDS shall be made whether or not the patient has been previously reported as having HIV infection.
    1. If the patient has not been previously reported as having HIV infection, the AIDS report shall also serve as the report of HIV infection. (Kentucky Legislature, 2014)

For reports from Jefferson, Henry, Oldham, Bullitt, Spencer, Shelby and Trimble counties contact Fay Davis at (502) 574-6574. Case reports can be mailed to:
   Louisville Metro Health Department
   400 E. Gray St., Room 317
   Louisville, KY 40202
   Attn: Fay Davis

For all other county reports contact Medina Tipton, Surveillance Coordinator or Julie Nakayima, Surveillance Technician at (866) 510-0008. Case reports can be mailed to:
   Kentucky Department for Public Health
   275 E. Main St., HS2E-C
   Frankfort, KY 40621
   Attn: Medina Tipton

The Americans with Disability Act (ADA)

The Americans with Disabilities Act (ADA) gives federal civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. It guarantees equal opportunity for individuals with disabilities in public accommodations, employment, transportation, state and local government services, and telecommunications (USDOJ, 2012).

An individual has a “disability” under the ADA if he or she has a physical or mental impairment that substantially limits one or more major life activities, including major bodily functions such as the functions of the immune system; has a record of such an impairment; or has an actual or perceived mental or physical impairment that is not transitory and minor and is subjected to an action prohibited under the ADA. Individuals with HIV, both symptomatic and asymptomatic, have physical impairments that substantially limit one or more major life activities or major bodily functions and are, therefore, protected by the law (USDOJ, 2012).

Individuals who are discriminated against because they are regarded as having HIV are also protected. For example, a person who was fired on the basis of a rumor that he had AIDS, even if he did not, would be protected by the law. Moreover, the ADA protects individuals who are discriminated against because they have a known association or relationship with an individual who has HIV. For example, the ADA would protect a woman (who does not have HIV) who was denied a job because her roommate had AIDS (USDOJ, 2012).

In addition to being subject to the provisions of the federal Americans with Disabilities Act (ADA), Kentucky legislation specifically states that the results of any serologic test performed under the auspices of the Cabinet for Health and Family Services may not be used to determine eligibility for disability, health, or life insurance—or used to make decisions regarding employment suitability or discharge (KRS 214.181).

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