Reprinted with the permission of Aspen Publishers, from AIDS and the Law, Fourth Edition, 2008-2010, www.aspenpublishers.com

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] Maine

[e] Massachusetts

[f] New Jersey

[g] Texas

[h] Washington

§ 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