American Civil Liberties Union

The Honorable Robert C. Scott
Chair, Subcommittee on Crime, Terrorism, and Homeland Security
House Judiciary Committee
Washington, D.C. 20515

The Honorable J. Randy Forbes
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security
House Judiciary Committee
Washington, D.C. 20515

Re: H.R. 1943, the Stop AIDS in Prison Act of 2007, which lacks important protections for Persons with HIV/AIDS.

Dear Chairman Scott and Ranking Member Forbes,

On behalf of the American Civil Liberties Union, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nationwide, we write to express our serious concerns about H.R.1943, the Stop AIDS in Prison Act of 2007 (“Stop AIDS in Prison Act”) and encourage you not to move forward with a mark up of the bill until these concerns are addressed. The ACLU strongly supports efforts to make routine HIV testing and effective HIV/AIDS programming available in federal prisons.  While this legislation attempts to establish a routine testing systems for incarcerated persons in the Federal Bureau of Prisons, it actually could result in prisoners being tested involuntarily and test results not being kept confidential. 

The Bill Does Not Specify Which Inmates Are Tested and Could Severely Endanger the Health of Short-Term Prisoners and their Partners

The bill does not specify which inmates are subject to its testing provisions, and could end up endangering the health of short-term prisoners and their partners.  When Congress enacted the Corrections Officers Health and Safety Act of 1998, 18 U.S.C.A. 4014, it limited its provisions to persons "sentenced to incarceration for a period of 6 months or more."   By contrast, the new bill deletes the six-months sentence provision from the Corrections Officers Health and Safety Act and then creates an entirely new additional testing scheme without specifying to whom it applies.

As a result, the bill would impose on the Bureau of Prisons testing, counseling, and treatment requirements on presumably all persons in its custody, which could include persons under arrest but not charged, persons charged but not sentenced, persons serving sentences as short as a few days, federal prisoners incarcerated in state facilities, and state prisoners incarcerated in federal facilities.  In addition to the obvious impact on BOP medical services, the lack of specification on who must be tested will mean that HIV prevention and treatment resources will not be focused on those most in need of help.

The bill could also have a severe impact on public health.  The legislation requires the routine testing of all inmates and pharmaceutical care--including a 30-day post-release supply of pharmaceuticals--to anyone testing HIV-positive.  The ACLU urges the Subcommittee to obtain the advice of public health officials on the public health impact of providing short-term pharmaceuticals to short-term inmates.  Our understanding of current HIV medicine is that, placing an HIV-positive person on short-term use of pharmaceuticals creates a significant risk of the person developing drug-resistant HIV, which may be passed on to a partner.  The potentially enormous public health consequences of short-term use of pharmaceuticals was one of the reasons that Congress limited the provisions of the Corrections Officers Health and Safety Act of 1998 to persons serving federal sentences of at least six months.

“Routine” Testing That Does Not Require Written Informed Consent Could Result in Prisoners Being Tested Involuntarily.

Written informed consent represents an important aspect of patient autonomy. The only method to ensure that “routine” testing can be informed and consensual is by providing prisoners an opportunity to give written consent to testing. Written informed consent is even more important in light of the growing prison population and the prevalence of HIV/AIDS within the prison system.  

Written informed consent also ensures prisoners are informed of the limits to their medical privacy.  Obtaining written consent before administering a HIV test encourages a patient to ask questions and to have a dialogue with his or her health provider about the nature of HIV/AIDS, how the disease was transmitted, and how to effectively avoid acquiring the disease. In addition without a signed informed consent form, it is difficult for medical personnel to prove that a patient actually consented to HIV testing.

The Legislation Does Not Adequately Protect Confidentiality of Test Results.

The legislation’s confidentiality provisions are not strong enough and at a minimum, the privacy provisions of the Corrections Officers Health and Safety Act, 18 USC 4014(e), should be included in the bill. Individuals who test positive for HIV while incarcerated face additional negative consequences that merit increased confidentiality. HIV-positive prisoners whose status is not kept confidential may face discrimination and threats from guards and other prisoners, may be segregated from other prisoners and may be denied access to prison and jail jobs and activities. Many proponents of mandatory testing underestimate the stigma and harms that continue to afflict the HIV-positive population. A 2005 study of HIV screening in the Annals of Internal Medicine described the persistence of stigma and discrimination experienced by people who are HIV-positive:

Positive HIV test results are associated with important harms, including fears of rejection, abandonment, verbal abuse and physical assault. A substantial proportion of Americans (20% to 25%) continue to agree with stigmatizing statements about HIV. Four percent of 142 patients recently diagnosed with HIV infection reported losing a job because of their status, 1% had been asked to move, and 1% had been assaulted.

A 2006 Kaiser Family Foundation Survey of Americans on HIV/AIDS concluded that a great deal of misinformation still exists about HIV/AIDS.  The study found 37% of Americans believe that HIV is transmissible through a kiss; 22% believe that it is transmissible by sharing a drinking glass, and 16% believe that it is transmissible by touching a toilet seat.

Moreover, getting an HIV test is not the same as getting a cholesterol test. When a patient finds out that he or she is HIV positive, it is a life-altering event, as HIV treatment generally requires a commitment to a life-long and complicated treatment regime. Moreover, families and friends unfortunately are sometimes unsupportive when a patient learns that he or she is HIV positive. Thus having robust confidentiality provisions that protects the privacy of prisoners who are HIV positive is vital to their safety and well-being.

Requiring Testing after “Exposure Incidents” Undermines the Concept of Routine HIV/AIDS Testing.

The current proposed legislation, which authorizes forcible testing when an inmate is involved in an exposure incident, undermines the entire concept of routine testing. This provision of the bill is inconsistent with the Centers for Disease Control and Prevention (CDC) September 2006 Guidelines[1], which emphasize that all HIV testing must be voluntary. The CDC does not recommend administering HIV tests against the person’s will.

The World Health Organization has concluded that mandatory testing policies are often inefficient uses of prison resources, diverting funding and staff from other, more effective prevention efforts.[2] Other requirements of H.R. 1943 such as pre-test counseling, education about HIV transmission and risk reduction, and counseling about the consequences of a positive test result are essential for ensuring that prisoners will understand their health care treatment options.  Institutional consequences often result from a positive HIV test result, such as segregation in some states, loss of access to programs, visitation, and jobs. Instituting mandatory HIV testing after a possible exposure incident could deter prisoners from coming forward for needed health services.

Other Provisions of the Bill Endanger Health or Confidentiality

Previous sections of this letter highlight the most significant problems with the bill.  However, there are other problems that should be corrected before being reported out of Subcommittee, including:

In paragraph 3(1)(A), it is unclear whether the provision requires all inmates to receive a comprehensive medical examination that includes an optional HIV test, or whether it merely requires an HIV test to be offered if there happens to be a comprehensive medical examination.

 Paragraphs 3(3)(A) and 3(3)(B) should both include a requirement that the programs or materials be "fully consistent with CDC HIV preventions guidelines" and "present scientifically accurate information in a clear and understandable manner" (which does not appear in 3(3)(B)).

Subsection 4(a) should be revised to strike 18 USCA 4014(a) in its entirety.  The new bill sets up an entirely new testing scheme for all inmates and should fully replace the entry testing provisions.  The revisions made in subsection 4(a) will mean that inmates in BOP custody would be subject to entry HIV tests under both the 1998 law and this new bill. 

Any legislative change to the HIV testing policy must maintain the important patient protections that safeguard individual liberty and autonomy. Although we have serious concerns with this legislation in its current form, we look forward to working with you to improve the bill and provide additional protections for HIV positive prisoners.

Sincerely,

Caroline Fredrickson
Director                                                                                    

Jesselyn McCurdy
Legislative Counsel

Cc:  Members of House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security

Endnotes
[1] CDC Revised Recommendations for HIV Testing of Adults, Adolescents, and Pregnant Women in Health-Care Settings (September 2006).
[2] World Health Organization, HIV in Prisons, 2001, at 53.