The changing landscape of state legislation and expanded HIV testing.

The Centers for Disease Control and Prevention (CDC) recommendations for routine human immunodeficiency virus (HIV) screening in clinical settings were released in September 2006.1 Although they were the end of one lengthy process of review and development for physicians in practice, they represented the beginning of another, perhaps even more challenging process: implementation. It was clear to me that our emergency department (ED) needed to build an HIV screening program, for we serve Washington, D.C., which has the highest rate of HIV in the nation. As we prepared to implement our program consistent with the new CDC recommendations, I searched for any legislation that could affect the program. I came up empty-handed. There seemed to be no statutes in the District of Columbia (DC) that would affect the way that routine opt-out HIV screening could be conducted. I remained troubled that there were indeed legal requirements, but that I was simply unable to find them. I need not have been concerned, however, for it turned out that apart from some old legislation affecting those getting an HIV test for insurance purposes, DC had nothing in its statutes that addressed informed consent, counseling, notification, or any of the other issues that can impact HIV screening. In DC, you just needed to ask a patient if he or she wanted an HIV test, and if they agreed, the test could be done. It was that simple. Two years later, I met with some colleagues from Maryland who were keen to start their own ED testing program based on the successful program we had been running. The first issue we needed to address was the legislation in our neighboring state that might affect the way the program could be structured, and things could not have been more different from DC. Maryland state law at that time required the health-care provider to discuss no fewer than 35 separate issues.2 This contrast between the historical legislation in two neighboring areas—both with frighteningly high rates of HIV—exemplifies the very disparate ways in which states have addressed HIV testing. For many years, these differences could be viewed as reflecting local concerns and biases, but this way of looking at laws that affect HIV screening has changed since CDC published its revised recommendations for HIV testing in health-care settings, including EDs, in 2006.1 CDC addressed standards that should be followed in obtaining consent, and recommended that consent for HIV screening should be incorporated into the patient's general informed consent for medical care on the same basis as other screening or diagnostic tests. A separate consent form for HIV testing was not recommended. With this small step, CDC had encountered the difficult and contentious issue of how jurisdictions should legislate around HIV testing. In January 2007, the National Alliance of State and Territorial AIDS Directors (NASTAD) held a meeting in Miami where representatives of local and state health departments, EDs, CDC, and experts in infectious diseases met to discuss the implications of CDC's recommendations. It became apparent that the matter of how states should legislate around routine opt-out HIV screening is one of the most contentious issues facing those involved in the interface of HIV screening and public health. Some argued for detailed legislation regulating precisely how an HIV test can be requested, and what a patient must learn about and sign before such a test is administered. They claimed that despite great strides forward in the medical treatment of HIV infection, prejudice and discrimination still abound, and patients should not have an HIV test unless these issues are discussed fully. Others in the field argued—based on the same data—that the age of exceptionalism in HIV testing was over, and that HIV infection can and should be treated as just another infectious disease. Indeed, they argued that less legislation is the way forward and would result in more patients being aware of their HIV status. Both camps have the patients' best interests in mind, and yet have conclusions that may be diametrically opposed. In all of this, what is the emergency physician to do when considering undertaking any aspect of ED HIV screening? There is a great deal of interest in, and increasing federal support of, the implementation of CDC's recommendations. For example, CDC is sponsoring a number of workshops across the U.S. that bring together those with expertise in ED HIV screening with those who wish to implement the process in their own ED.3 Federal money is also being targeted to support expanded ED HIV testing. In September 2007, CDC awarded $35 million to support increased HIV testing, and much of this money will be used to finance EDs that offer testing to high-risk populations.4 To implement these recommendations, a large number of logistical and financial barriers need to be addressed and overcome.5 Among the most important steps to consider are the specific state laws that impact the feasibility of any ED HIV screening program. Following is a look at these areas of legislation, as well as important recent changes made in several states.