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AIDS advocates concerned about Kalamazoo County HIV disclosures

In spite of a 2009 change to controversial Client Acknowledgement forms used to inform HIV-positive patients of their legal responsibilities in Kalamazoo County, HIV advocates remain seriously concerned about the documents and their use in the county.

The Client Acknowledgement forms came under fire in February when a Michigan Messenger investigation found that the documents in use throughout the state misrepresented the state’s HIV disclosure law, and had been linked to criminal prosecutions.

In April, the Michigan Department of Community Health sent a letter to local health departments informing them the documents were neither “endorsed or encouraged” by MDCH. The letter went on to say the documents could be seen as stigmatizing HIV positive persons and risk behaviors for HIV transmission.

Macomb county has since changed its document, while the Michigan Department of Corrections has said it will not be changing its document.

Kalamazoo was one of the counties identified as using a document which misrepresented Michigan law. But in a sit down interview with Michelle Thorne, clinical services director for the Kalamazoo County Health Department, said the document had been changed by early 2009 as part of an annual review by the MDCH HIV/AIDS Prevention and Intervention Section. Local health departments and AIDS Service Organizations are subject to review and accreditation by the state every three years.

The old document has now been replaced with a generic document which reads:

“I (print client’s name) understand what safe behaviors are as explained to me by the Health and Community Services Department staff I need to follow to prevent further transmission of (blank). I have had all my questions regarding safe behaviors answered to my satisfaction. I understand what actions Kalamazoo County Health and Community Services may have to take should I not follow these instructions including any actions under the Michigan Public Health Code sec. 333.5201.”

“It’s a generic form and we use it for TB, other communicable diseases and HIV,” Thorne said.

Thorne said that KCHD only institutes an investigation if some one comes to the county and claims a person did not disclose their HIV status prior to sexual activity. If the department determines the claim to be unreliable, including anonymous complaints, the investigation goes no further. However, if the department determines failure to disclose happened, it triggers a Health Threat To Others (HTTO) investigation.

The HTTO program has also been criticized by advocates.

The department does not refer investigations to police or criminal justice. They may refer those filing complaints to law enforcement. Thorne said the department will disclose files on HIV positive people to law enforcement, but only if a subpoena has been issued.

“We understand that there are going to be legitimate complaints on this and there are going to be not so legitimate complaints,” Thorne said. “We get a lot of he said/she said anonymous complaints.”

She said the department fields two or three complaints of failure to disclose every month. But Thorne says the department is not able to offer legal advice to HIV positive people on how to develop evidence to support that they did disclose their HIV status to a sex partner.

“Would I, personally, advise a person with HIV to get their partners to sign a document? I might. But would they follow it? I don’t know,” Thorne said.

But Catherine Hanssens, executive director of the Center for HIV Law and Policy in New York City, said she is not happy with Thorne’s explanation.

“Since Michigan has decided that having people sign forms documenting that they have consented to HIV testing is too burdensome, forcing them to acknowledge potential criminal liability is something they should never be required to do. Even if the law requires the state to inform newly-diagnosed people of their obligation to disclose, that does not obligate the newly-diagnosed to put in writing something that can and has been used against them in a criminal proceeding. Everyone asked to sign such a form should be informed of that possibility before signing,” Hanssens said. “And everyone offered an HIV test should be advised before testing that Kalamazoo health officials have and will continue to hand over their HIV testing records to law enforcement officials…If these records are not confidential and protected from disclosure from law enforcement, people contemplating testing should know this in advance so that they can consider whether to test elsewhere or anonymously.”

But Thorne says her agency’s goal is to help those who test HIV-positive, not to incriminate them. “We’re not using that to try to put some one in jail,” she said. “That is not our intention.”

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