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Patricia Jehlen and Calvin Cohen

Outdated laws block earlier detection, treatment of HIV

By Patricia Jehlen and Calvin Cohen
October 6, 2009

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The Commonwealth of Massachusetts is known the world over for its cutting-edge medical expertise. But when it comes to HIV/AIDS, some life-saving diagnoses are just not being made.

Massachusetts is one of only eight states that still require separate written consent between patients and health care providers to authorize a HIV test. Unlike cholesterol counts or cancer screening, which fall under the “general consent’’ form for all other blood tests, a doctor in Massachusetts cannot legally test for HIV without separate, specific written consent from a patient.

The time has come for Massachusetts to modernize its HIV testing laws. Amid a rising HIV epidemic among the undiagnosed, it is simply irresponsible not to take easy steps to make sure people with the virus receive medical care.

The current Massachusetts law was developed in the early 1980s, when there were no treatment options and a diagnosis equaled a death sentence. Today, because of medical advances, HIV is a far more manageable disease with profoundly improved life expectancy outcomes. The Centers for Disease Control and Prevention, the American Medical Association, the American College of Emergency Physicians, and other leading national health organizations now agree that the existing consent policy for HIV testing serves as a real and unnecessary barrier between individuals who are unknowingly HIV-positive and the information and care that they need.

Ignoring the health needs of the undiagnosed is a life-threatening proposition. By some estimates, about 25,000 people in Massachusetts have HIV/AIDS, but 5,000 of them do not know their status and may in turn infect others. Up to 70 percent of new HIV infections stem from “unknown carriers’’who are not aware they are HIV positive. Additionally, US infection rates have not fallen in over a decade, and it was recently discovered that the United States has been underestimating HIV infections by more than 40 percent.

Complacency is not a remedy. In 2006 the CDC recommended that HIV tests be made more common and routine, prompting 15 states to update their laws. Massachusetts has yet to do so.

Routine testing and earlier detection enables individuals to extend their lives by obtaining care in the initial stages of the disease and to alter behaviors that might infect others. And fewer HIV transmissions would lessen the financial stress on an already overburdened health care system. Studies by scientists at CDC and elsewhere have already shown that, when the hurdle of additional written consent for HIV testing is removed, more cases are identified earlier, and those who test positive can people are able to react to their diagnosis in a more timely, informed, and health-effective manner.

To remedy this situation, we need legislative action. Senate Bill 821, which was introduced earlier this year and comes up for a hearing on Beacon Hill today, will fully implement the CDC’s recommendation on HIV/AIDS testing and remove the outdated barriers that have discouraged patients from accessing the full host of health benefits available to them. The bill maintains the strong existing privacy protections around the disclosure of an individual’s health status. Anyone who tests positive for HIV would be guaranteed access to post-test counseling, as well as referrals to support services. The bill will not lead to people being tested against their will or without their knowledge, as a patient’s general consent for medical care is still required to conduct an HIV test.

Over the past two decades, the Commonwealth has earned a reputation as an unparalleled medical leader in the care and treatment of individuals living with HIV/AIDS. Yet that record of success is compromised by an outdated law that puts us behind many other states when it comes to diagnosing these serious diseases in the first place. We hope to do better.

Patricia Jehlen, lead sponsor of Senate Bill 821, represents the Second Middlesex District in the Massachusetts Senate. Dr. Calvin Cohen is clinical research director at the Community Research Initiative of New England and Harvard Vanguard Medical Associates.

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