Discrimination

Discrimination in Employment

http://www.glad.org/

Does Connecticut have laws protecting HIV-positive people from discrimination?

Yes. People who are HIV-positive or who have AIDS are protected from employment discrimination under both the Connecticut Human Rights Law (CGSA §46a-60) and the federal Americans with Disabilities Act (ADA).  Both of these statutes prohibit discrimination in employment on the basis of a person’s disability.

Do these laws apply to all employers?

The Connecticut law covers employers with three or more employees; the ADA covers employers with fifteen or more employees.

Who is protected?

Persons with AIDS or who are HIV-positive, even if they are asymptomatic and have no outward or manifest signs of illness.  Under the ADA, but not Connecticut law, persons who are regarded or perceived as having HIV.  Under the ADA, but not Connecticut law, a person who does not have HIV, but who “associates” with a person with HIV - such as friends, lovers, spouses, roommates, business associates, advocates, and caregivers of person with HIV.

What claims can be brought against employers under disability laws?

There are two types of claims which may be brought against employers under disability discrimination laws.

1.  Treating an Applicant or Employee Differently Based on HIV Status  An employer may not take adverse action against an applicant or employee simply on the basis that the person is HIV-positive or has AIDS.  This means that an employer may not terminate, refuse to hire, rehire, or promote, or otherwise discriminate in the terms or conditions of employment, based on the fact that a person is HIV-positive or has AIDS.  The focus here is whether a person with AIDS or HIV was treated differently than other applicants or employees in similar situations.

Examples of unlawful discrimination:

· An employer may not refuse to hire a person with HIV based on fear that HIV will be transmitted to other employees or to customers.

· An employer may not refuse to hire or make an employment decision based on the possibility, or even probability, that a person will become sick and will not be able to do the job in the future.

· An employer cannot refuse to hire a person because it will increase health or workers’ compensation insurance premiums.

2. An Employer’s Failure to Provide a “Reasonable Accommodation” to a Person with HIV or AIDS  NOTE:  An employer is only obligated to provide a “reasonable accommodation” under federal law (ADA) and not under Connecticut state law.  Therefore, this protection does not apply to employers with fewer than 15 employees.

What is a “reasonable accommodation”?

Persons with disabilities, such as HIV/AIDS, may experience health-related problems which make it difficult to meet some job requirements or duties.  For example, a person may be exhausted or fatigued and find it difficult to work a full-time schedule.

In certain circumstances, the employer has an obligation to modify or adjust job requirements or workplace policies in order to enable a person with AIDS to perform the job duties.  This is known as a “reasonable accommodation.”

Examples of reasonable accommodations include:
 

• modifying or changing job tasks or responsibilities;

• establishing a part-time or modified work schedule;

• permitting time off during regular work hours for medical appointments;

• reassigning an employee to a vacant job; or

• making modifications to the physical layout of a job site or acquiring devices such has a telephone amplifier to allow, for example, a person with a hearing impairment to do the job.

There is no fixed set of accommodations which an employee may request.  The nature of a requested accommodation will depend on the particular needs of an individual employee’s circumstances.

It is, with rare exception, the employee’s responsibility to initiate the request for an accommodation.  In addition, an employer may request that an employee provide some information about the nature of the disability.  Employees with concerns about disclosing HIV/AIDS status to a supervisor should contact the AIDS Law Project’s Legal Information Hotline in order to strategize about ways to meet any such requirements.

Does an employer have to grant a request for a reasonable accommodation?

An employer is not obligated to grant each and every request for an accommodation.  An employer does not have to grant a reasonable accommodation which will create an “undue burden” (i.e. significant difficulty or expense for the employer’s operation).  In addition, the employer does not have to provide a reasonable accommodation if the employee cannot perform the job function even with the reasonable accommodation.

When is a “reasonable accommodation” for an employee an “undue burden” for an employer?

In determining whether a requested accommodation creates an undue burden or hardship for an employer, courts examine a number of factors which include:

• the employer’s size, and budget and financial constraints;

• the costs of implementing the requested accommodation; and

• how the accommodation affects or disrupts the employer’s business.

Again, each situation is examined on a case-by-case basis.

An employer only has an obligation to grant the reasonable accommodation if, as a result of the accommodation, the employee is then qualified to perform the essential job duties.  An employer does not have to hire or retain an employee who cannot perform the essential functions of the job, even with a reasonable accommodation.

Inquiries About Health

Can a potential employer ask about my health?

Under the ADA, prior to employment an employer cannot ask questions which are aimed at determining whether an employee has a disability.  Examples of prohibited pre-employment questions are:

• Have you ever been hospitalized or under the care of a physician?

• Do you have any health problems which would make it difficult for you to do this job?

• What medications do you take?

After an employer has made an offer of employment, s/he may require a physical examination solely for the purpose of determining if an employee can perform the essential job functions with reasonable accommodation.  There are strict confidentiality requirements on the storage of this information.

Becoming Your Own Advocate in The Workplace

While it is useful to consult with a lawyer, the following steps can be helpful in beginning to consider and assess a potential employment discrimination problem on your own.

1) Consider the difference between unfairness and illegal discrimination. The bottom line of employment law is that an employee can be fired for a good reason, bad reason, or no reason at all.  A person can be legally fired for a lot of reasons, including a bad “personality match.”  A person cannot, however, be fired for a discriminatory reason specifically outlawed by a statute.

2) In order to prove a discrimination claim (i.e., that you were fired, demoted, etc. because of discrimination and not because of some legitimate reason), you must be able to show the following:

• the employer knew or figured out that you are HIV-positive or have AIDS.

• you were qualified to perform the essential functions of the job with reasonable accommodation.

• adverse action was taken against you because of your HIV or AIDS status and the pretextual reason given by the employer for the adverse action is false.

3) If your employer knows that you have HIV or AIDS, identify exactly who knows, how they know, and when they found out.  If you have not told your employer, is there any other way the employer would know or suspect your HIV status?

4) Consider the reasons why you believe that you are being treated differently because of HIV status, including the following areas:

• Have other employees in similar situations been treated differently or the same?

• Has your employer followed its personnel policies?

• Did the adverse treatment begin shortly after the employer learned of your HIV status?

• Have you been out of work due to illness for any period of time and did the adverse treatment begin upon your return to work?

• What will your employer’s version of events be?  How will you prove that the employer’s version is false?

5) Do you have any difficulty fulfilling the duties of your job because of any HIV-related health or medical issue?  Does your condition prevent full-time work, or require time off for medical appointments, lighter duties or a less stressful position?  You might want to try brainstorming to create a reasonable accommodation that you can propose to your employer.  Here are some points to consider:

• How does the company operate and how would the accommodation work in practice?
  Put yourself in the supervisor’s shoes.  What objections might be raised to the requested reasonable accommodation?  For example, if you need to leave at a certain time for medical appointments, who would cover your duties?

Legal Rights of Health Care Workers With HIV

Both the courts and public health authorities have struggled to define the rights of health care workers with HIV who perform invasive procedures, such as surgeons and dentists.

In cases where hospitals have sought to restrict or terminate the privileges of HIV-positive health care workers who perform invasive procedures, courts have reacted with tremendous fear and have insisted on an impossible "zero risk" standard. As a result, the small number of courts which have addressed this issue under the ADA have upheld such terminations.

Are health care workers covered by the Americans with Disabilities Act?

The employment provisions in the ADA provide that an employee is not qualified to perform the job if he or she poses a "direct threat to the health and safety of others."  To determine whether an employee poses a "direct threat," a court analyzes similar factors as in the context of discrimination by a place of public accommodation:

• the nature, duration and severity of the risk;

• the probability of the risk; and

• whether the risk can be eliminated by reasonable accommodation.

However, unlike in "refusal to treat" cases, in the case of HIV-positive health care workers, courts have ignored the extremely remote probability of the risk and focused on the nature, duration and severity of the risk. The following excerpt from a recent case is typical of courts' approach:

We hold that Dr. Doe does pose a significant risk to the health and safety of his patients that cannot be eliminated by reasonable accommodation.  Although there may presently be no documented case of surgeon-to-patient transmission, such transmission clearly is possible.  And, the risk of percutaneous injury can never be eliminated through reasonable accommodation...Thus, even if Dr. Doe takes extra precautions...some measure of risk will always exist...

Doe v. University of Maryland Medical System Corporation, United States Court of Appeals for the Fourth Circuit, April 3, 1995.

Courts justify the differing conclusions in the refusal to treat cases and the employment cases based on the 1991 CDC Recommendations which leave room for health care institutions to restrict the activities of health care workers who perform "exposure-prone invasive procedures;" and the legal principle that health care workers have a special fiduciary duty to patients which makes even a theoretical risk unacceptable.

It is important to note that only a small number of courts have addressed the rights of HIV-positive health care workers.  Because of the unsettled nature of the law in this area, a health care worker who is confronted with potential employment discrimination should consult a lawyer or public health advocate.

HIV-related Housing Discrimination

Can people refuse to rent or sell housing to me because of my HIV status?

It is illegal under both Connecticut law, CGSA §46a-64c, and the National Fair Housing Amendments of 1989, to discriminate in the sale or rental of housing on the basis of HIV status.  A person cannot be evicted from an apartment because of his or her HIV or AIDS status, or because he or she is regarded as having HIV or AIDS.

An exception to this law exists under Connecticut law for the rental of a portion of a single-family dwelling if the owner maintains and occupies part of the living quarters as his or her residence, or for the rental of a unit in a two-family dwelling if the owner occupies one unit.  In addition, the Fair Housing Act exempts, in some circumstances, ownership-occupied buildings with no more than four units, single-family housing sold or rented without the use of a broker and housing operated by organizations and private clubs that limit occupancy to members.

Public Accommodations Discrimination

Can I be excluded from a public place because of my HIV status?

Under both Connecticut law, CGSA §46a-64, and the ADA, it is unlawful to exclude a person with HIV from a public place (what the law refers to as a “public accommodation”) or to provide unequal or restricted services to a person with HIV in a public place.  Under both statutes, the term “public accommodation” includes any establishment or business that offers services to the public.

Therefore, people with HIV are protected from discrimination in virtually every public place or business, including bars, restaurants, hotels, stores, schools, vocational or other educational programs, taxi cabs, buses, airplanes, and other modes of transportation, health clubs, hospitals, and medical and dental offices - as long as these facilities are generally open to the public and are not private membership clubs.

Discrimination in Medical and Dental Care

Can health care workers refuse to treat me because of my HIV status?

No. Though persons with HIV continue to face discrimination by hospitals, doctors, dentists, and other health care providers, these practices are illegal.  Discrimination can take the form of an outright refusal to provide medical services or an illegal referral because of a patient’s HIV status.  Both an outright refusal to provide medical treatment and unnecessary referrals on the basis of a person’s disability are unlawful under Rhode Island law and the ADA.

What if my doctor says:

1.  “Treating People with HIV is Dangerous.” Doctors and dentists may claim that a refusal to treat a patient with HIV is legitimate because they fear they might contract HIV themselves through needlesticks or other exposures to blood.  However, studies of health care workers have concluded that risk of contracting HIV from occupational exposure is minuscule, especially with the use of universal precautions.

For this reason, in 1998, the United States Supreme Court ruled in the case Bragdon v. Abbott that health care providers cannot refuse to treat people with HIV based on concerns or fears about HIV transmission.

In addition to the legal perspective, both the American Medical Association and the American Dental Association have issued policies that it is unethical to refuse treatment to a person with HIV.

2. “I Am Not Qualified to Treat an HIV-Positive Patient.” A slightly more subtle form of discrimination occurs when doctors or dentists claim that they are not qualified or equipped to treat the patient and refer that patient elsewhere.  In these cases, the merits of a discrimination claim depend upon whether, based on objective medical evidence, the services or treatment needed by the patient require a referral to a specialist or are within the scope of services and competence of the provider.

In United States v. Morvant, the Court rejected a dentist’s claim that patients with HIV require a specialist for routine dental care.  The court agreed with the testimony of experts who said that no special training or expertise, other than that possessed by a general dentist, is required to provide dental treatment to people with HIV.  The Court specifically rejected the dentist’s arguments that he was unqualified because he had not kept up with the literature and training necessary to treat patients with HIV.  While this case arose in the context of dental care, it is applicable to other medical settings as well.

What exactly does the law forbid?

Under Title III of the ADA (codified as Title 42 of the United States Code, Sections 12181-12188), and similar provisions of Connecticut law, it is illegal for a health care provider to:

a) Deny an HIV-positive patient the “full and equal enjoyment” of medical services or to deny an HIV-positive patient the “opportunity to benefit” from medical services in the same manner as other patients.

b) Establish “eligibility criteria” for the privilege of receiving medical services which tend to screen out patients who have tested positive for HIV.

c) Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the “most integrated setting.”

d) Deny equal medical services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend.

Applying these specific provisions of the ADA to the practice of health care, the following practices are illegal:

• A health care provider cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the physician simply does not feel comfortable treating a person with HIV.

• A health care provider cannot agree to treat a patient only in a treatment setting outside the physician’s regular office, such as a special hospital clinic, simply because the person is HIV-positive.

• A health care provider cannot refer an HIV-positive patient to another clinic or specialist, unless the required treatment is outside the scope of the physician’s usual practice or specialty.  The ADA requires that referrals of HIV-positive patients be made on the same basis as referrals of other patients.  It is, however, permissible to refer a patient to specialized care if the patient has HIV-related medical conditions which are outside the realm of competence or scope of services of the provider.

• A health care provider cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and CDC infection control procedures.  Under certain circumstances, it may be an ADA violation to even use unnecessary additional precautions which tend to stigmatize a patient simply on the basis of HIV status.

• A health care provider cannot limit the scheduled times for treating HIV-positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

Privacy and Confidentiality

Privacy / Confidentiality of HIV-related Information

Can I be tested for HIV without my consent?

No. “HIV-related test[s]” may not be conducted without either: 1) written consent or; 2) oral consent which has been documented in a medical record.  Connecticut General Statutes Annotated (CGSA) §19a-582.  The term “HIV-related test” includes a test for any agent “thought to cause or indicate the presence of HIV infection.” CGSA §19a-581 (6).  Thus, HIV-specific consent is required for an antibody test, a viral load test, or any other test, regardless of its purpose, which indicates the presence of HIV.

A provider ordering an HIV-related test must certify that informed consent has been received or that the test is being ordered without consent pursuant to an exception under Connecticut law.  The certification must be provided to the laboratory in order to perform the HIV-related test.

What if a person needs repeated tests for medical monitoring?

If there has been a prior confirmed positive HIV test result given with informed consent, a patient may decline the requirement of specific informed consent for subsequent tests which are “part of a series of repeated testing for purposes of medical monitoring and treatment.”  CGSA §19a-582 (10).  A notation of this waiver of the informed consent requirement must be made in the medical record.

Can minors (people age 18 and under) consent to their own HIV-related testing and counseling?

Connecticut law explicitly provides that the “consent of a parent or guardian shall not be a prerequisite to testing of a minor.”  §19a-582 (a).  At the time a minor receives the test result, if he or she was tested without parental consent, the provider must give the minor counseling or referrals to “work towards” involving the minor’s parents in decision-making about medical care.  In addition, the minor must receive actual counseling about the need to notify partners.  §19a-582 (d).

What information must be provided prior to an HIV test?

Connecticut law specifies a detailed list of explanations and information which must be provided both before an HIV-related test is conducted and at the time of disclosing the test result.  CGSA §19a-582 (b)-(d). These should include:

• Information about the nature of HIV, risk behaviors, the purpose and meaning of HIV test results, and the benefits of early diagnosis and medical intervention.
• A statement that a provider may not condition medical care on consent to an HIV test, but that refusal to consent may affect the ability to diagnose and treat the patient.
• The voluntary nature of an HIV test and availability of anonymous testing.
• An explanation of confidentiality protections for HIV-related information under Connecticut laws and the circumstances under which involuntary disclosure is permitted, including that partners may be warned (see § II-C, below) and that HIV/AIDS information may be recorded in medical records.

What information must be given at the time of the test result?

Counseling or referrals for counseling must be provided for the emotional consequences of learning an HIV test result, potential discrimination issues, modification of behavior to prevent transmission, available medical treatments, and notification of partners.  CGSA §19a-582 (d).

Are there exceptions to the requirement of voluntary informed consent?

Connecticut law permits involuntary HIV testing, without the need for informed consent, in several situations, the most important of which are described below.

1.  Occupational Exposure – Significant Exposure Required Connecticut law permits a nonconsensual “HIV-related test” of the source (e.g., a patient or other person) of a “significant exposure”   to HIV which occurs during a person’s occupational duties.  CGSA §19a-582 (e)(5).

If a person has been potetially exposed to HIV in the workplace what do they need to demonstrate in order to obtain a nonconsensual HIV test?

In order to obtain a nonconsensual HIV test of a source, the employee who has been subject of the exposure must:

a) document the occurrence of a significant occupational exposure and complete an incident report within 48 hours;

b) have a negative baseline HIV test within 72 hours;

c) through a physician, have attempted to obtain and been refused, voluntary consent from the source;

d) “be able to take meaningful immediate action...which could not otherwise be taken” (such as beginning a prophylactic drug regimen or making decisions regarding pregnancy or breastfeeding); and

e) have an “exposure evaluation group” determine that the above criteria are met.

If the source is a patient in a health, correctional, or other facility, an available sample of blood may be tested or a blood sample may be drawn from the source and tested.  If the source is not in such a facility and a physician certifies that there has been a significant exposure, the worker may seek a court order for testing.  The employer must pay the cost of the HIV test.

What about people who are unable to consent to an HIV test?

2. People Unable to Consent  A licensed health care provider may order a nonconsensual HIV test when the subject is unable to consent or lacks capacity to give or refuse consent and the test is necessary for “diagnostic purposes to provide appropriate urgent care.”  CGSA §19a-582 (e)(1).

3. Prisoners The Department of Correction may perform involuntary HIV testing on an inmate either because it is necessary for the diagnosis or treatment of an illness, or if the inmate’s behavior poses a significant risk of transmission to another inmate or has resulted in a significant exposure to another inmate.   CGSA §19a-582 (6), (7).  In both situations, there must be no reasonable alternative to testing available to achieve the same goal.

4.  By Court Order  Connecticut law contains a broad provision permitting a court to order an HIV test when the court determines that there is a “clear and imminent danger to the public health or the health of a person and that the person has demonstrated a compelling need for the HIV-related test result which cannot be accommodated by other means.”  CGSA §19a-582 (8).  In its assessment, the court must weigh the need for the test result against both the “privacy interests of the test subject and the public interest which may be disserved by involuntary testing.”  CGSA §19a-582 (8).

Does an insurance company have to get consent from a person before conducting an HIV test?

In order to take any HIV-related test of an insurance applicant, the insurer must obtain informed written consent.  CGSA §19a-586.  The Commissioner of Insurance has developed a required format for such consent contained at §19a-586-3 of the state’s Insurance Department Regulations.  An insurer may use an alternative form which must be filed with the Insurance Commissioner.

Do insurance companies have to keep HIV-related information private?

Life and health insurers and health centers are not prohibited from disclosing a positive HIV-related test result to an organization that collects information about insurance applicants for the purpose of detecting fraud or misrepresentation, but such disclosure must be in the form of a code that includes many other test results and could not therefore be used to reasonably identify an applicant’s test result as an HIV-related test.  CGSA §19a-587.

What are the laws regarding pregnant women and HIV testing?

Any health care provider giving prenatal care to a pregnant woman must explain to her that HIV testing is a part of routine prenatal care and inform her of the health benefits to herself and her newborn of being tested for HIV infection.  The counseling requirements outlined in §19a-582 must be met.  HIV testing for pregnant women is not, however, mandatory; rather, it is subject to the laws of informed consent described above.  CGSA §19a-593 (a).

If a pregnant woman is admitted for delivery and there is no documentation of HIV-related testing in her medical record, the health care provider must inform her of the health benefits to herself and her newborn of being tested for HIV infection either before delivery or within 24 hours after delivery.

At this point, the law regarding informed consent changes.  Instead of depending on the affirmative provision of informed consent, a health care provider shall administer an HIV test unless there is a specific written objection from the patient.  CGSA §19a-593 (b).

Is there mandatory newborn screening for HIV?

All newborns shall be administered an HIV-related test as soon after birth as medically appropriate, unless the infant’s parents object to the test as being in conflict with their “religious practice.”  This mandate does not apply if the mother was tested pursuant to the laws described above.  CGSA §19a-55. The Department of Public Health may establish a registry of data on infants who have been exposed to HIV or AIDS medication in order to study the potential long-term effects of such medication on infants.

Are AIDS vaccine researchers immune from liability from results of clinical trials?

When a drug is developed and tested to determine its success as a vaccine against HIV/AIDS, a manufacturer, research institution, or researcher will not be held liable for civil damages resulting from clinical trials where the drug is administered to research subjects.  This immunity from liability must be presented to the research subject in writing and that person (or his or her parent or guardian in the case of a minor) must provide informed written consent to act as a research subject.  CGSA §19a-591.

Laws Regarding the Confidentiality of HIV test results

Does the state of Connecticut ban disclosure of HIV test results?

Connecticut law contains a broad prohibition against the disclosure by any person, without a release, of “confidential HIV-related information.”  CGSA §19a-583 (a).

What are the remedies for a violation of the testing and confidentiality provisions?

Connecticut law provides that a person can recover compensatory damages for any injury suffered from a “willful” violation of the informed consent and confidentiality requirements.  CGSA §19a-590.

The phrase “willful” violation has been interpreted by the Supreme Court of Connecticut to mean simply that the disclosure of HIV-related information must be knowingly made.  It need not be intended to produce injury.  See Doe v. Marselle, 675 A.2d 835, 236 Conn. 845 (1996).

Are there any exceptions to the confidentiality law?

The key exceptions to this prohibition on disclosure include:

a) To a health care provider or facility when necessary to provide “appropriate care or treatment.”  CGSA §19a-583.

b) To a health care worker or other employee where there has been a “significant occupational exposure” and the requirements articulated above in Section I(B)(1) of this memo are met.

c) To employees of hospitals for mental illness operated by the Department of Mental Health and Addiction Services if the infection control committee determines the patient’s behavior poses a significant risk of transmission to another patient.  CGSA §19a-583 (8).  Disclosure may only occur if it is likely to prevent or reduce the risk of transmission and no reasonable alternative, such as counseling, is available to achieve the same goal.

d) To employees of facilities operated by the Department of Correction to provide services related to HIV-infection or if the medical director and chief administrator determine that the inmate’s behavior poses a significant risk of transmission to another inmate or has resulted in a significant exposure to another inmate at the facility.  CGSA §19a-583 (9).

e) To life and health insurers in connection with underwriting and claims activity for life, health, and disability benefits.  CGSA §19a-583 (11).

f) To any person allowed access to such information by a court order, as described above in Section I(B)(1) of this memo.  There are safeguards to protect the privacy of the source in any such court proceeding and subsequent disclosure of HIV-related information.  CGSA §19a-583.

Partner Notification Issues

Can physicians or public health officers inform my partners of my HIV-status?

Connecticut law permits both public health officers and physicians, under certain circumstances, to inform or warn partners that they may have been exposed to HIV.  CGSA §19a-584.  The term “partner” means an “identified spouse or sex partner of the protected individual or a person identified as having shared hypodermic needles or syringes with the protected individual.”  §19a-581 (10).  The requirements for such a disclosure by a public health officer are that:

• There is a reasonable belief of a significant risk of transmission to the partner;
• The public health officer has counseled the individual regarding the need to notify a partner and reasonably believes that the individual will not disclose to the partner; and
• The public health officer has informed the protected individual of his or her intent to make the disclosure.

A physician may only warn or inform a known partner if both the partner and the individual with HIV are under the physician’s care.  A physician may also disclose confidential HIV related information to a public health officer for the purpose of warning partners, if the physician takes the same steps with respect to his or her patient as public health officers must take above.

In making such a warning, the physician or public health official shall not disclose the identity of the HIV-infected individual and, where practicable, shall make such disclosure in person.

Can psychologists or mental health professionals inform my partners about my HIV-status?

A psychologist or mental health professional may learn that a client is engaging in unsafe sex without having disclosed his or her HIV-positive status to the partner.  Many people have asked whether there is a legal basis to breach client or patient confidentiality under these circumstances in order to warn a third party.

Connecticut law provides that a psychologist may disclose client communications if the psychologist “believes in good faith that there is a risk of imminent personal injury to the person or to other individuals or risk of imminent injury to the property of other individuals.”  CGSA §52-146c.  In addition, the law permits the nonconsensual disclosure of patient information by a psychiatrist who “determines that there is a substantial risk of imminent physical injury by the patient to himself or others.”  CGSA §52-146f.

In addition to statutes, such as those quoted above, a court can find a legal duty to warn as a matter of common law.  For example, a California court in the case of Tarasoff v. Regents of the University of California found that a psychotherapist owes a duty to warn third parties if a patient makes a threat of death or serious bodily injury.  In the Tarasoff case, a patient in therapy made explicit threats toward his girlfriend and ultimately killed her.  The parents sued for negligence, claiming that the therapist had an obligation to warn of the danger.  The Court ruled that a therapist treating a mentally ill person owes a duty to warn threatened persons against foreseeable danger created by the patient’s condition.  Under Tarasoff, the intended victim must be reasonably identifiable and the counselor must have reason to believe that the threat is serious and real.

Connecticut has not unequivocally adopted a common law Tarasoff standard.  In Fraser v. United States of America, however, the Court hinted that it may well be ready to create such a duty in cases where the victim is identifiable.

Notwithstanding the two statutes cited above, and even if Connecticut formally adopts the Tarasoff standard in the future, that does not mean that psychotherapists and mental health counselors will be able to disclose HIV-related information to prevent potential transmission to identifiable partners.  CGSA § 19a-583(a) contains a broad prohibition on the disclosure of confidential HIV-related information by any person.  The exceptions to this prohibition do not include warning partners.  Moreover, the Connecticut legislature specifically provided for warning by physicians and public health officers.  CGSA §19a-581(10).  There is a strong argument that the legislature has addressed the issue of warning about HIV status and decided not to permit providers other than physicians and health officers to warn.

Nevertheless, the issue of duty to warn is an evolving and unclear area of law.  Mental health professionals must consult an attorney or supervisor for advice if he or she believes that a client’s communications justify breaching client confidentiality and disclosing a client’s HIV status to a third person.

What requirements must be met for disclosure of HIV-related information?

Whenever confidential HIV-related information is disclosed, the disclosure must be accompanied by the following statement, or a statement using substantially similar language:

“This information has been disclosed to you from records whose confidentiality is protected by state law.  State law prohibits you from making any further disclosure of it without the specific written consent of the person to whom it pertains, or as otherwise permitted by said law.  A general authorization for the release of medical or other information is NOT sufficient for this purpose.”

Such a statement must be made in writing whenever possible.  CGSA §19a-585 (a).

Notation of any disclosure must be made in the subject’s medical records, except for disclosures made:

• to federal or state authorities;
• in the course of ordinary medical review; or
• to life and health insurers and government payers in connection with claims for life, health, and disability benefits.

CGSA §19a-585 (b).

Constitutional Privacy Rights

Does the constitution protect one's right to privacy?

Many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status.  Courts have based this right on the Due Process Clause of the U.S. Constitution which creates a privacy interest in avoiding disclosure of certain types of personal information.

The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor -- e.g., police, prison officials, doctors at a state hospital.

To determine whether there has been a violation of this right to privacy, courts balance the nature of the intrusion into a person’s privacy against the weight to be given the government’s legitimate reasons for a policy or practice which results in disclosure.
 

Connecticut HIV Reporting Laws 

Does Connecticut do state-wide HIV surveillance?

Under certain circumstances, Connecticut law permits the disclosure of HIV status to the Department of Public Health.  Current regulations provide that a diagnosis of: 1) AIDS, or; 2) a diagnosis of HIV infection in combination with a positive test for TB, or; 3) any diagnosis of HIV infection in a child under the age of 13, must be reported by name to the state Department of Public Health.  All other diagnoses of HIV infection in individuals 13 years of age or older must be reported to the Department of Public Health without names and street addresses.  The Commissioner of Public Health revises its list of reportable diseases annually, so concerned individuals should check with the Department of Public Health to verify the list.