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Macomb County responds to state health dept., amends HIV document

In response to guidance from the Michigan Department of Community Health, the Macomb County Health Department has changed the client acknowledgment forms they use — but some advocates say they haven’t gone far enough yet.

Dr. Kevin Lokar, medical director of the Macomb County Health Department, tells Michigan Messenger in an email that the department made the changes in February.

“We revised our form in February 2011. There is no longer any statement requiring the use of condoms,” Lokar wrote. “However, condom use is recommended. Disclosure is the only thing required. Clients are asked to sign the form but this also is not required. Forms will continue to be confidentially maintained by the Department.”

The documents came under fire in February after a Michigan Messenger investigation showed the documents were legally inaccurate. Many of the documents obtained by Messenger improperly stated the state’s HIV disclosure law; some counties like the Cass Van Buren County department improperly included sharing needles as part of the law, while Macomb and Kalamazoo county documents directed HIV-positive individual to use condoms or other barriers for the rest of their lives. Those documents have been tied to criminal prosecutions against HIV-positive persons in Mecosta, Kent, Kalamazoo, Calhoun and Bay counties in Michigan.

The MDCH sent a letter to all local health departments earlier this month directing them to have attorneys review the documents, and noting the documents are neither “endorsed” or “approved” by the state department. Additionally, the state said the use of the documents could, in fact, increase stigma against those with HIV.

Advocates said the requirement to use condoms for the rest of the HIV-positive person’s life violated an individual’s reproductive rights of those people.

“Barrier sex was previously required because of our interpretation of the ‘Health Treat to Others’ law,” Lokar wrote in his email about the old document. “This law allows a local health department to consider a person a ‘Health Threat to Others’ if they display an unwillingness to conduct themselves in such a manner as to not place others at risk of transmission of an infectious agent. We believed that not using a barrier method met this definition if a person was HIV positive. We changed the form in February after discussion with MDCH.”

That belief was based on a legal opinion penned by MDCH attorney Denise Chrysler.

“From our conversation, it sounds like an individual would always be a health threat, even if the individual’s partner is also HIV-positive. An HIV-infected individual is not relieved of all responsibility to prevent transmission simply because he/she has warned their sex partner of HIV-infection,” wrote Chrysler in an April 29, 2008 e-mail to staff at the MDCH HIV/AIDS Prevention and Intervention Section (HAPIS) regarding the documents in question. HAPIS staff raised legal concerns about the barrier sex requirements. “The form does NOT state the individual with HIV must cease having sex; it says that the individual must stop having unprotected sex.”

Kelly Nieber, spokesperson for MDCH, issued a statement saying Chrysler’s opinion was not an official legal assessment.

“Apparently Denise Chrysler’s e-mail was in response to a telephone conversation as she indicated in her e-mail,” said Niebel. “Her opinion was not intended to be formal legal advice to any health department, including Macomb County, nor was it intended to present a legal position or interpretation of the department.”

The Health Threat to Others law has also come under fire by advocates for those with HIV.

Regardless of the changes, not all state advocates are happy with the steps taken by Macomb County.

“The County Health Department appears to be missing the essential problem with this form, which is that it exists at all, and particularly that it is given to people who already are dealing with the news of being newly-diagnosed with HIV,” says Catherine Hanssens, executive director of the Center for HIV Law and Policy in New York City. “It is a particularly strange point of focus for a health department in prioritizing information that should be provided and documented for the newly-diagnosed. Is there a form that explains that person’s right to be free of discrimination? What to do if they are denied employment, access to basic services, or health care and insurance? Assurances that the health department’s priority is that person’s health and welfare? The use of the form is, at the least, insensitive and, at worst, an inappropriate involvement of a public health agency in the potential criminal prosecution of people living with HIV.”

“Macomb County took a proactive step forward by amending their forms to make them an accurate reflection of Michigan law. I do have concerns with the fact that, even while HIV positive individuals are not required to sign the new form, it remains formatted like a contract with a signature line,” says Emily Dievendorf, policy director for Equality Michigan.

“The Michigan Department of Community Health announced that no disclosure form of any kind is even required by Michigan much less a form requesting a name on a dotted line. Equality Michigan is sensitive to misleading forms because disclosure forms have been used to prosecute HIV positive individuals,” Dievendorf continued. “We would prefer that the revised versions created by our counties not be presented with a signature line or designed in any way that suggests that the forms acts as a contract.”

“Our counties have an opportunity to do a great service to the public health by revisiting their disclosure forms and revising them to be the best and fairest possible working documents,” she concluded. “To Equality Michigan this means that we leave no room for misinterpretation – and thus no signature line.”

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