AIDS and the Law, Fourth Edition
Chapter 2: HIV and Public Health
David W. Webber
§ 2.01 Introduction
[A] Alternative Legal and Policy Responses
[B] New York State Society of Surgeons v. Axelrod
§ 2.02 Legal Restrictions to Prevent Transmission
[A] Mandatory Testing
[1] Practical Considerations
[2] Case Study: Marriage License Testing
[B] Restricting Sexually Oriented Commercial Activities
[1] Health and Safety Closures of Public Sex Venues
[2]Video Booth “Open Door” Requirements
[3] Hours of Operation Restrictions
[4] Licensure Requirements
[5] Prohibitions on Physical Contact
[C] Quarantine and Other Restrictions on Individual Liberty
[1] Practical Considerations
[2] Federal Constitutional Standards on Civil Detention
[3] Confinement Pursuant to Sexually Violent Predator Statutes
§ 2.03 Information Access, Censorship, and Education
[A] Access to Information and Censorship
[1] Challenges to Governmental Restrictions
[2] Internet Information Control
[a] Communications Decency Act of 1996
[b] Child Online Protection Act
[c] Children’s Internet Protection Act of 2000
[B] School-Based HIV/AIDS Education and Prevention Programs
[1] School Curriculum Issues
[2] Condom Distribution Programs in Schools
[3] “Abstinence-Only” Sex Education
§ 2.04 Access to Health Care and Other Services
[A] Ryan White Comprehensive AIDS Resources Emergency Act
[1] Funding Structure
[2] Funding Distribution Provisions
[3] Testing of Pregnant Women and Newborns
[4] Funding Restrictions and Miscellaneous Provisions
[a] Emergency Response Employee Notification
[b] Spousal Notification Requirement
[B] Regulation of Medicinal Marijuana
[1] Federal Legislation
[2] Medical Necessity Defense to Criminal Prosecution
[3] State-Level Medical Marijuana Developments
[a] Alaska
[b] California
[c] Oregon
[C] Legal Access to Sterile Syringes and Related Services
[1] Federal Policies and Congressional Funding Restrictions
[2] Federal and State Criminal Laws
[a] Medical Necessity Defense
[b] Police Harrassment of Syringe Exchange Participants
[3] State and Local Public Health Responses
[a] California
[b] Connecticut
[c] Illinois
[d] Massachusetts
[e] New Jersey
[f] Washington
[g] Maine
§ 2.05 Regulation of HIV Testing and Confidentiality of HIV Information
[A] Federal Constitutional Issues
[1] Due Process and Disclosure of HIV Information
[2] Qualified Immunity Defenses
[3] Waiver of Privacy Rights
[4] Fourth Amendment Search and Seizure Issues
[B] Federal Statutory and Administrative Provisions
[1] Privacy Act
[2] Health Insurance Portability and Accountability Act
[3] Ryan White CARE Act
[4] Occupational Safety and Health Administration Standards
[5] Correction Officers Health and Safety Act
[6] CDC Recommendations
[C] State Law Regulation of HIV Testing and Confidentiality
[1] Common Law Claims for Invasion of Privacy
[2] Analytical Framework for State HIV Test Consent Statutes
[a] Consent for Testing
[b] Testing of Source Patients Following Occupational Exposure
[c] Court-Ordered Testing
[3] Analytical Framework for State Confidentiality Statutes
[a] Entities Covered by Duty of Confidentiality
[b] Scope of Protected Information
[c] Consent for Release of HIV Information
[d] Mandatory Disclosure Requirements
[e] Duty to Warn Third Parties
[f] Mandatory Reporting Standards
[g] Court-Ordered Disclosure
[h] Other Exceptions to Confidentiality
[4] Remedies for State Statutory Violations
[D] HIV Information in the Litigation Process
[1] Maintaining Confidentiality of Plaintiff’s HIV Information
[2] Civil Discovery of HIV Status of Litigant
[3] Claims for Wrongful Disclosure in Litigation
[4] Litigants’ Confidentiality Duty to Third Parties
[5] Admissibility of Plaintiff’s HIV Status as Limiting Defendant’s Liability
[6] Confidentiality of HIV Information Pertaining to Crime Victim/Witness
