LANSING – The Ingham County Health Department reportedly has been telling newly-diagnosed HIV-positive people they "need" to sign a contract with the department. And that contract is under fire by leading HIV legal advocates who reviewed it and said the contract is in violation of state law.
The contract states the newly-infected person will notify past sexual partners within four weeks, and also acknowledges the person knows about the felony HIV disclosure law in Michigan.
"There is no requirement in the Michigan statute regarding HIV testing, requiring persons being tested to sign an agreement that they will inform their partners of their HIV status," said Jay Kaplan of the American Civil Liberties Union of Michigan's Gay, Lesbian, Bisexual and Transgender Project. "Any policy or practice telling people that they have to sign this agreement once they test positive is wrong and raises serious concerns."
In a written response to 19 questions posed by BTL, ICHD Deputy Health Officer Renee Branch Canady confirmed that the department maintains the contracts, which she says are kept with each individual's HIV counseling chart. She also stated that, "the ICHD does not collect or maintain a roster of persons with HIV."
Canady stated that ICHD has been using this document for the past 17 years, following the passage of Public Act 489 in 1988, which says, "As part of the interview process, local health departments are required to inform the test subject that he/she has a legal obligation to inform each of his/her sexual partners about their HIV status prior to engaging in sexual relations, and may be subject to criminal sanctions for failure to do so."
When asked how this reconciles with the Community Health Code which specifically prohibits local health departments from collecting a roster of names of HIV infected persons, ICHD repeated that "it does not collect or maintain a roster of names of HIV infected people."
BTL asked ICHD if this contract in any way violated the constitutional rights of HIV positive people, or violated the spirit or letter of the law regarding confidentiality.
ICHD wrote, "Since 2001, the practices of our health department have been reviewed by state accrediting agencies and the Michigan Department of Community Health HIV/AIDS Prevention and Intervention section. Their reviews have found our HIV control practices, including the contract document, to be sound and in compliance with the law."
One HIV-positive individual told BTL that upon contact with Ingham County health department officials, the person was presented with the contract and told s/he "needed" to sign it. The person signed, thinking s/he were being cooperative. BTL does not disclose the HIV status of people without their consent, and in this case, BTL has agreed not to identify the gender, location or age of the person.
"Because it is concerning, particularly if it is misused, it seems prudent to look at this conservatively. It is written confirmation that a person knows they are HIV-positive and they know the health department has their information," said Kendra Kleber of Kendra S. Kleber & Associates PLLC, a HIV/AIDS legal firm based in Royal Oak. Kleber has been working with HIV law in Michigan for 10 years. "The only time that is going to be useful is if they are being prosecuted under the felony exposure law – the part of the criminal code which says that if you are HIV-positive and don't disclose your status, you have committed a felony."
Another concern Kleber expressed is that the department is keeping files on HIV-positive persons that identify them. She said the law provides for the department to keep numerical files of test results on persons, but not their names. Because the contract is signed by the HIV-positive person, if it is kept in that file, it is a violation of the law.
"This is not about keeping files of anything they want. This is one of the weaknesses in this law. It appears to give permission for one thing without prohibiting something else, and they are using that," she said.
In speaking with some ICHD employees last week, BTL was told that these contracts had been turned over to the prosecutor's office in the past. Canady wrote that the ICHD is "unaware of any instance when the contract has been turned over to the prosecutor's office," and that they had turned this questions over to Ingham county's legal counsel for further elaboration.
Ingham County prosecutor's office denied ever having received any contracts in a phone call with BTL Monday.
Both Kaplan and Kleber agree the contract is a threat to civil liberties.
"Sharing this information from the consent form with the prosecuting attorney (and, in addition, without informing the person signing the statement,) raises some serious constitutional concerns" including self-incrimination, said Kaplan.
Kleber added, "This could be so easily misused to create a felony under state law. The courts are so conservative, a prosecution will be more damaging than a federal law, litigation. A person could be charged with a felony exposure law and be in jail next week. I don't know if it's being used that way, but it sure could be."
Both attorneys also expressed great concern that the contract is driving the issue further underground.
"The presence of this policy and practice will have the effect of discouraging people to get tested for HIV or, if they do get tested, they won't come in to get their test results and access needed medical care," said Kaplan.
And, Kleber noted, "If this is public health working with public law enforcement, (it) is going to push this epidemic underground. And anyone who says that is not going to happen is delusional."
A copy of the ICHD contract can be found at pridesource.com
along with links to Michigan law with regard to HIV/AIDS
Do you need legal help:
Are you one of the people who signed the HIV contract with Ingham County or any other Michigan county? Do you want to know what your rights are regarding this contract? The following attorneys have agreed to answer your questions:
Jay Kaplan
Staff Attorney for the ACLU of Michigan LBGT Project
313-578-5812
[email protected]
Kendra Kleber
Kendra S. Kleber and Associates PLLC
248-591-0301
[email protected]
