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LIVING WITH HIV: A Legal Guide PART III SPECIAL GROUPS HEALTH CARE WORKERS Practice restrictions Public hysteria surrounding AIDS has nowhere been greater than on the issue of HIV-infected health care workers (HCWs). In Louisiana, as in most other states, this has led to reporting requirements and practice restrictions. Pursuant to Louisiana statute 37:1747, the various state health care licensing boards (the Boards of Medical Examiners, Dentistry, Chiropractic Examiners, Nursing, and Practical Nurse Examiners) have each issued regulations governing HIV-infected members of those professions. These regulations are, by law, based on guidelines issued by the federal Centers for Disease Control (CDC). Some differences exist between the regulations of the different boards. However, all except the Board of Chiropractic Examiners currently require that HIV-infected members who perform or may perform "exposure-prone" procedures to report themselves to their respective boards. Additionally, the Boards either forbid an HIV-infected HCW from performing or directly participating in an "exposure-prone" procedure or require the HCW to inform patients of his or her HIV-infection before doing so. The CDC's definition of exposure-prone, which follows, includes almost all of dentistry and surgery: Characteristics of exposure-prone procedures include digital palpitation of a needle tip in a body cavity or the simultaneous presence of the HCW's fingers and a needle or other sharp instrument or object in a poorly visualized or highly confined anatomic site. Most of the Boards have added another clause to this definition: "or any other invasive procedure in which there is a significant risk of contact between the blood or bodily fluids of the HCW and the blood or bodily fluids of the patient." Given this vague standard, it is very difficult to know whether many procedures are "exposure prone." HCW's not involved in exposure-prone procedures do not need to report themselves and they do not face any practice restrictions under these regulations. The regulations currently do not require that HCWs be tested for HIV. Failure to report oneself or failure to abstain from exposure-prone procedures could cause an infected HCW's license to be suspended or revoked. At this time, it does not appear that the HCW licensing boards are actively searching out infected HCW's. If you are investigated by your licensing board, you should immediately contact an attorney. These regulations are the subject of considerable controversy. The CDC guidelines were strongly criticized when they were published, in July of 1991. The CDC had initially planned to supplement these guidelines with a list of "exposure prone" procedures, but it abandoned this idea when all major national medical organizations refused to participate, pointing out that there is no evidence that any procedure is "exposure-prone." In an about-face, the CDC then all but publicly announced its intention to revise its guidelines, eliminating restrictions on HIV-infected workers and instead mandating universal precautions. It was prevented from doing this by political pressure from within the Bush Administration. It did, however, announce that states which did not limit the practice of HIV-infected workers, but mandated universal precautions instead, would be deemed to have met the guidelines. The CDC is currently revising these guidelines. The changes are likely to suggest fewer restrictions on HIV-infected HCWs. This would bring into question whether the state Boards' current regulations are "based on" the CDC guidelines It has been argued that practice restrictions are an unreasonable restriction on a disabled person's right to work, and thus violates the Americans with Disabilities Act and similar state statutes. However, to date courts have found otherwise, ruling for example that a hospital can deny privileges to an HIV-infected surgeon or fire an HIV-infected surgical assistant. Given the exaggerated fear of HIV transmission that still exists in medical settings, this is unlikely to change any time soon. Mandatory Testing of Health Care Workers The federal appeals court for the region that includes Louisiana has ruled that a hospital can insist its employees submit to an HIV test. This is so even if there is no risk of body fluid contact between the HCW and a patient. The court reasoned that anyone with HIV could rapidly become physically or mentally impaired and thus needed to be closely monitored to assure that he or she was providing proper patient care. Few area hospitals have followed the court's invitation to widespread mandatory testing. Workers' Compensation If you could be exposed to HIV on your job, your employer may want to know your HIV-status before you begin work. This is to protect the employer from unfounded workers' compensation claims. Some employers, aware of the concerns surrounding confidentiality, do not initially ask for an HIV test, but will want one immediately after you suffer a needle-stick or other possible exposure. In this situation, the only consequences of refusing to submit to a test should be a bar to a worker's compensation claim. IMMIGRANTS & FOREIGN VISITORS You can be denied admission to the United States if you have a communicable disease of public health significance. HIV is currently listed as such a disease. Visitors (such as tourists, students and business travelers) are not routinely asked about HIV. However, if you are visibly ill or have medication in your luggage, you may be asked about HIV and possibly denied entry into the United States. If your HIV-status is discovered, you may be admitted under a waiver. Applicants for permanent residence in the U.S. will be tested for HIV antibodies and, if positive, will have their applications denied unless they are eligible for a waiver. You may get a waiver if a member of your immediate family is a U.S. citizen or permanent resident or if you have been granted asylum or have other legal status. If you are undocumented you will not qualify for public benefits, such as SSI and Medicaid, should you become too ill to work. If you do receive public benefits within five years of entry to the U.S. for causes which did not arise since the entry, you may be found deportable. You may also be denied admission to the country if it is determined that you are likely to become unable to support yourself and to require government assistance. If you do find yourself in deportation proceedings, there are forms of relief available to eligible persons. If you have been in the U.S. for at least seven years, you may have your deportation suspended if you can show that you are receiving medical treatment which is not available in your country of origin. If you are granted voluntary departure and commanded to leave the country by a certain date, you may seek extension of that date from the Immigration and Naturalization Service (INS) based on your medical situation. When dealing with INS in any way, it is important that you consult with an attorney experienced in immigration law, as you may make a mistake which can result in your being forced to leave the United States. PRISONERS Prisoners may not be tested for HIV unless they have given their consent. If you have reason to believe you are HIV-infected and need treatment, you may wish to inform the medical staff and request to be tested. If you are infected, you can get early treatment to delay the progression of the disease. However, be aware that prisons are notorious for leaking HIV test results. Not only the medical staff, but very likely the entire prison staff and population will soon learn that you are infected. This may subject you to segregation from other prisoners and/or mistreatment from others. If you feel there have been breaches of your confidentiality or your right to privacy, or if you are mistreated because you have or may have HIV disease, use the prisoner's grievance procedure. You may also contact a lawyer or a concerned friend who can report violations to the Department of Corrections and seek some relief. Relief from the courts will be granted for only the most serious of violations from within the prison system. Prisoners have a right to adequate medical care. If you are sick, the prison must treat you. HIV-positive inmates should receive standard treatment, which includes having their blood values monitored and being put on anti-retroviral medication if their immune systems are impaired. However, there is no requirement that prisons provide the best care available. You will not be given reduced work detail or special care just because you are HIV-infected, nor does the prison have to provide you with any experimental treatments. If you feel that you are not receiving the proper care for your condition, talk to the medical staff, a prison social worker, or a lawyer. Again, complaints about the medical care you are receiving will not get you relief from the courts unless they rise to the level of very serious violations. Medical furloughs are available to prisoners who are terminally ill, permanently incapacitated and pose no threat to society. You must be extremely ill to be granted a medical furlough. A furlough would permit your release to the home of a family member or some other residence. The recommendation must originate with the medical director of the prison and must be approved by the Secretary of the Department of Public Safety and Corrections. Condoms and clean needles will significantly reduce the risk of HIV transmission. You should take these precautions in order to avoid exposing other inmates and to protect yourself from being reinfected with the virus. If you are having sex without a condom, ask if you are allowed to receive them. Have a friend supply you with some. If you are using I.V. drugs, ask for household bleach and disinfect needles after every use. MILITARY PERSONNEL If you are HIV-infected, you will not be allowed to join any branch of the armed forces. All new recruits are required to submit to an HIV test. If you are already in the military, you may have to submit to periodic HIV testing. You will not be dismissed merely for being HIV-infected: Congress has enacted laws that prohibit the use of HIV tests results for adverse personnel action. However, homosexual activity and I.V. drug use are still grounds for dis-ciplinary action and for discharge. (Although the armed services have stopped routinely asking new recruits about sexual orientation, this policy does not apply when there is "cause" to believe someone is homosexual, and being HIV-infected may constitute such cause.) Since you cannot get a dis-ability retirement if you have a disciplinary charge against you, be cautious of making admissions about homosexual behavior or I.V. drug use. Additionally, if you have any symptoms, the military may attempt to exaggerate the severity of your condition and give you a disability discharge, even though you are well enough to perform your duties. If you believe that your HIV-status has resulted in adverse personnel action, consult a lawyer. 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