An Overview of HIV Laws in Texas
The Texas Legislature has established a number of laws and policies associated with the transmission and treatment of HIV, including testing, reporting, and confidentiality. In combination, these laws are intended to protect persons living with HIV, promote public health, and reduce the stigma associated with HIV. This section provides a summary of the relevant Texas statutes and recent legislative action.
Testing and Reporting
Texas Health & Safety Code Chapter 81 requires the testing of pregnant women for HIV. The name of the pregnant patient is reported to the Department of State Health Services’ (DSHS) AIDS Surveillance Group (formerly known as the Texas HIV/AIDS Surveillance Registry). If the test result is positive, the person who performed the test must report both the pregnant patient’s name and the result to the DSHS. The statute specifically prohibits the release of a person’s identity from AIDS surveillance records or reports to any entity other than the DSHS. However, the Legislature passed a law in 2011 which allows the DSHS to release de-identified AIDS surveillance information to various entities for purposes of expanding and improving existing HIV prevention, care, and treatment programs. The DSHS can now send an aggregate statistical report, that does not reveal the identity of the individual or their test results, to the Texas Department of Aging and Disability Services, to the Texas Institute for Advancement of Mental Health , and to Gay and Lesbian Alliance Against Defamation. The DSHS may also release aggregate statistical information to any entity for the purpose of increasing knowledge and awareness of HIV and to reduce its stigma.
Confidentiality
Texas Health & Safety Code Section 81.103 forbids HIV-testing or counseling staff, or persons with an authorized need to know, from disclosing that an asymptomatic patient is infected unless it is necessary to provide care to the patient or to protect the person’s health and safety or the health and safety of others.
Criminalization of HIV
On January 1, 2014, a fundamental change to Texas law took effect that decriminalizes HIV positive individuals who expose others when there was no transmission of the virus to another person, and no intent to transmit the virus. Even if the potential to harm was present, the new law allows for a defense of HIV non-disclosure when an HIV positive person either: (1) has no intent to infect the other individual, and takes appropriate precautions to prevent exposure; or (2) the other person has consented to the conduct and has both knowledge of his or her HIV positive status and full knowledge of the potentially harmful effects of the reckless behavior.
Evidence
In April 2011, the Texas Legislature amended the Health and Safety Code by allowing HIV tests to be done through an "oral fluid" test method. Previously, only blood tests were permitted.
Texas Laws
• Texas Health & Safety Code Chapter 81, Communicable Disease Control
• Texas Health & Safety Code § 81.106-107 Release of Reports / AIDS Surveillance Group
Privacy and Confidentiality for Individuals with HIV
A foundational aspect of Texas HIV laws is concerned with the confidentiality and privacy of the individuals who are living with HIV. This section will illuminate the specific patient confidentiality protections that are afforded to patients diagnosed with HIV.
In general, a person may not disclose the identity of someone whom they know is HIV positive based on the fact that the person is HIV positive in order to protect the individual’s right to privacy. Not unlike other medical and health information, maintaining confidentiality is essential to the emotional and social stability of those who live with HIV. It is also consistent with HIV anti-discrimination laws in Texas. For example, § 81.101 of the Texas Health and Safety Code establishes that — "Except as otherwise provided by this subchapter, a person may not disclose to another person, including an insurer, or allow a person to have access to the fact that a person is infected with the HIV or that a person has been tested for HIV" unless one of a series of limited exceptions apply, specifically codified in §§ 81.103-105, and generally considered necessary for the broader public good (such as public health reporting of communicable diseases). Consequently, entities such as healthcare providers, laboratories, banks and other financial institutions, media outlets, insurers, employers, pharmaceutical companies, the Texas Department of Family and Protective Services, and even the Texas Department of Public Safety in certain situations must abide by these strict compliance measures, and may find themselves subject to a criminal penalty should a violation occur.
In addition to state confidentiality rules, the civil rights afforded to HIV patients under the Americans with Disabilities Act can also be triggered by illegal disclosures and breaches of confidentiality.
Disclosure Laws for People Living with HIV
In the State of Texas, though no longer a crime to expose another person to HIV, the law does impose an affirmative disclosure obligation on all persons who are aware of their HIV status. More precisely, the Texas Health and Safety Code § 81.103 states that "a person who has tested positive for human immunodeficiency virus (HIV) shall provide any health care, school, or correctional facility with: (A) the person’s name; (B) the person’s general residence address; (C) the specific name of the health care, school, or correctional facility to which the person is to be admitted or treated; (D) the person’s telephone number; (E) the name of the person’s physician, if known; and (F) the name of the person’s insurance provider, if known." (The statute also contains a federal administrative instruction violation, limited only to locations run by the United States government, that does not apply to the inquiry herein.)
The duty to disclose imposed under the Health and Safety Code does not necessarily dictate how the infected individual must make such disclosure. For instance, the statute does not indicate that the infected individual is obligated to disclose his or her HIV status to a given potential sex partner prior to engaging in sexual conduct. Such conduct, at least under the changed statute, is no longer a crime as detailed above. Given that an infected individual is under no obligation to disclose his or her status to a particular prospective sex partner, exposure to HIV, under current statute, is technically not illegal.
However, if it is later proven that such infected individual did not disclose his or her HIV status, then not only would such individual be at risk under the provisions of the Health and Safety Code for failing to make such disclosure to health care, school, and correctional facilities, but according to the Health and Safety Code, Section 81.103, such individual could be liable because he or she failed "to inform sexual partners." (Some of the other provisions of the statute, such as Section 1109.001, do still contain criminal penalties for exposure of another individual to HIV, but those provisions only apply in a very narrow set of circumstances).
Victim attitudinal research indicates that those who do not disclose their HIV status to a potential sexual partner do so for two primary reasons: 1) fear of rejection or illness; and 2) concern of assault, e.g., retaliation in the form of violence or bodily harm. Similarly, research has shown that those infected with HIV are often unlikely to disclose their status to their health care providers unless they are actively seeking treatment for – and reporting symptoms indicative of – AIDS.
Given the penalties involved with failing to disclose their status to health care, school, or correctional facilities, but knowing the hesitance of infected individuals to do so, what can medical providers, the educational environment, and correctional systems do to better encourage disclosure and protect their patients, students, or inmates? The answer may very well lie in counseling. Providing counseling regarding HIV infection is no easy task for a physician, as it requires them to maintain a careful balance of properly informing the patient of the risks and dangers associated with the disease while being sure to avoid unnecessary panicking and propagating negative stereotypes toward those afflicted. However, counseling, if done well, can help individuals properly assess the severity of their condition while providing them a safe and controlled environment in which to confide. After all, despite the fact that an HIV-infected person may not wish to share their story with the world, there is undoubtedly a reason why the CDC lists HIV as a Category 6 infectious disease: It’s a fairly terrible thing to inflict upon another individual.
Legal Penalties for Failing to Disclose HIV Status
For those who have been diagnosed with HIV, the best way to avoid legal issues is to be sure that you disclose your HIV status to anyone with whom you are required to disclose under Texas law. The Texas Public Health Code states that, barring specific exceptions, individuals infected with the human immunodeficiency virus ("HIV"), or patients diagnosed with acquired immune deficiency syndrome ("AIDS" or "HIV/AIDS") cannot engage in sexual conduct in the presence of another person without disclosing their condition. While some circumstances under the law do not require disclosure — assuming that the person with whom one is having sexual contact understands the risk of exposure to HIV — as a general rule, it is best to err on the side of caution and disclose and obtain consent.
Generally speaking, both sexual and consensual penetration not resulting in the transmission of the virus, which results in contact with the infected person’s vagina, anus, mouth or penis, or the placing of any body part of an infected person in the body part of another person, are covered by the disclosure requirement. The infection transmission or transmission risk must be proven during criminal litigation past a reasonable doubt. Cases range widely in severity from simple Class B misdemeanors to aggravated crimes felonies. Convictions for felonies can result in long prison sentences.
Employment Rights for HIV-Positive Professionals
HIV and Employment Rights
Employment laws in Texas provide a solid level of protection against discrimination based on someone’s HIV status. However, some limitations do exist. Currently, there is no state law in Texas prohibiting discrimination based on someone’s HIV status. The State of Texas penal code does have a provision which criminalizes not notifying a potential employer of HIV status during the interview. There is a federal law that prohibits discrimination based on someone’s HIV status. The Americans with Disabilities Act (ADA) makes it illegal for the following to discriminate against an individual based on his or her HIV status: Given the number of employers that fall within the scope of the ADA , this component of the law is very important for HIV-positive individuals who are denied employment or fired due to their status. Public and private employers are also prohibited from discriminating against a job applicant or an employee based on his or her HIV status under the Texas Workers’ Compensation Act. Specifically, an employer may not discharge or refuse to hire an employee or applicant based solely on the fact that he or she has a disability. According to the Centers for Disease Control and Prevention (CDC), individuals who tested HIV positive but do not yet have any symptoms are not viewed as disabled. Individuals with symptomatic HIV are covered by the Americans with Disabilities Act.
Health Care Access and HIV Resources
One of the hallmarks of responsible HIV prevention is that persons who know they are HIV positive will, under the law, generally be able to obtain appropriate medical treatment, HIV drugs, mental health assistance and other needs. When hepatitis C treatment drugs became available, their high cost was a huge barrier to many HIV-positive or HIV at-risk persons in having the drugs — producing gaps in HIV/AIDS healthcare that Texas sought to address in 2016 laws.
General medical care is available to persons with HIV under Medicaid. Older provisions of the Medicaid policy required that persons with HIV also draw Social Security benefits. That requirement is eliminated and replaced by the new law that any low income person with an HIV diagnosis is automatically eligible for Medicaid, even Harris County and Dallas County residents. The expansion of Medicaid for persons with HIV opened the door for low income persons.
Texas HIV Drug Assistance Program (TDHHS) provides HIV-related medications and diagnostic laboratory services, based on income. Many persons who are insured nevertheless have high costs for their HIV care, and are eligible for financial assistance from this program.
Any person with HIV who is a resident of Texas can also have access to HIV medical care through the Texas AIDS Drug Assistance Program (ADAP), which pays for HIV medications, laboratory tests, and other pharmaceuticals. Doctors may write prescriptions for patients as long as the patient is aware of and agrees to using ADAP funds for the purchase of the medicines.
As with other types of medical treatment, there are limitations on how much a person may possess for personal use of medications from ADAP funds. Medical professionals evaluate the need for persons living with HIV when they complete their prescription refills.
For abused children and adults, there are legal and medical protections available to persons needing these services through the Texas Department of Family and Protective Services (DFPS) and local medical facilities/clinics.
There are many resources available for HIV positive persons in Texas. Not all are governmental but can nonetheless be very helpful to Texas persons living with HIV/AIDS.
Advocacy and Legal Services for HIV-Positive Individuals
The application and enforcement of Texas HIV laws involve complex intersectionalities that demand advocacy and legal support. Various organizations, legal aid clinics, and volunteer lawyers provide services to represent the rights of the individuals who live with HIV, as well as assist them in finding solutions to legal issues short of litigation. For example, Lambda Legal serves as a national legal organization that will provide resources for people living with HIV and work towards achieving their rights and equality under law. The civil rights organization Texas Civil Rights Project fights for the human rights of all Texans and provides legal aid services. Finally, Texas Legal Services Center advocates for individuals in need, including marginalized populations, and information on legal services can be directly requested through the site.
In addition , the American Bar Association offers a site dedicated to HIV legal issues and contains an overview of state legal protections regarding disclosure, employer testing, and privacy of medical information. Up-to-date and accurate information is important for individuals living with HIV as they navigate their rights. Since HIV-related stigma remains pervasive, those who experience discrimination may not know that they are indeed protected under federal law. For example, individuals may face discrimination when trying to rent an apartment or get a job. Federal protections include the Fair Housing Act, which prohibits housing discrimination, and the Americans with Disabilities Act, which prohibits employment discrimination. Part of the Fight for the Future HIV/AIDS Act analyzes the rights of people with HIV as regards public assistance programs, also known as the Ryan White program. The Act and the Fair Housing Amendments Act of 1988 (FHAA) recognize HIV as a disability and offer legal protections.