Ingham County Health Department changes HIV document

By Todd A. Heywood

Capitol Correspondent

LANSING--The Ingham County Health Department on Thursday announced it was changing the title of a controversial document it was asking HIV positive persons sign. The document will no longer be called a "Contract for Partner Notification," and instead will be called "Legal Requirement for Partner Notification."

"In response to controversy over the word 'contract,' the ICHD has amended the title of the document by deleting the word 'contract' and substituting the words 'legal requirement,'" wrote Renee Canady deputy health officer for ICHD in a letter to the Lansing State Journal provided by ICHD.

"Did it need to be a sign-off form? No. Probably the counselor could have put it into a note," said county attorney David Stoker of Cole, Stoker, Goskey, McGlinchey of Lansing. "I am going to assume that is the rationale of that. It should more appropriately have been a notification rather than a contract. We are just notifying them of the statutory obligations. I interpret it as looking at it as being a notification."

The Michigan Department of Community Health, which oversees the activities of all local health departments, has called the document "unnecessary."

A spokesperson for the Governor's office told BTL that Bulcohlz's public statements reflected the position of the Granholm administration.

The changes were made August 22, according to the file extensions on the document provided by ICHD. Between The Lines first reported the story on its website on August 22, but had been in contact with ICHD officials since Thursday August 15.

But the body of the document will remain the same--something attorneys said keeps the document just as questionable and troubling for HIV positive individuals in the county.

"It troubles me they are doing this. Just provide people with proper information in post test counseling," said Jay Kaplan of the ACLU Michigan Lesbian, Bisexual, Gay Transgender Project. "The idea of putting this in writing or with four week requirement. It's just bad public policy. It's going to frighten people from getting tested or getting their results."

"To the extent that it is likely to be visually less intimidating, you could make an argument that there is a difference between contract and legal requirement," said Royal Oak Attorney Kendra Kleber, who has been working with HIV law in Michigan for 10 years. "It is still coming from a government official and if there is not a good conversation, it's still pretty coercive. And, of course, it does not begin to address the problems with the body of document."

The document has HIV positive individuals "agree" to inform past and current sexual and needle sharing partners within four weeks of the signing date and "agree" to follow the state HIV disclosure law. The Disclosure law makes it a felony to engage in penetrative acts without disclosing an HIV positive status.

Kleber points out that under Michigan law, there is no time limit fixed to partner notification, and the ICHD's use of all past sexual partners is also in violation of the law. She said the law says an unmarried person testing positive for the virus has to contact sexual and needle sharing partners from the past year, while a married person testing positive for the virus must contact partners from the last 10 years.

"It is very troubling when a government decides what is wants to do and creates law. But it is more important and troubling when they do it with out a law," Kleber said. "This whole episode means they are perfectly willing to make requirements. They could make a rule that HIV positive persons are required to wear a red baseball cap so the rest of us could identify them on sight. The legislature and MDCH have proven quite capable in passing laws but it didn't think these things are helpful or necessary. It is burdensome and completely obnoxious to the constitution."

Canady told the Lansing State Journal ICHD requires HIV infected persons to inform all past and present sexual partners.

"This implies you must notify everyone back to the beginning of time. Which is not accurate, or realistic," Kleber said.

The ICHD counters no one is forced to sign the document.

"The ICHD requests that HIV infected individuals sign the document; however, people have a right to refuse and there is no penalty associated with such a refusal," wrote Canady in the letter to the State Journal. "When HIV infected individuals refuse to sign the document, the counselor providing services makes a note to this effect."

However, contrary to this statement, BTL has spoken with HIV positive individuals who were presented the document as something they "needed" to sign. BTL does not disclose the names of persons with HIV without their consent.

Stoker said there might be an issue in the way the document is presented.

"The better language would be to request (a person to sign)," said Stoker. "I don't think there is anything questionable about this. What is of significance is if some one says no and the counselor tells them they have to sign it. The better terminology would be something not construed as a demand. I believe some staff have used language that was not ideal."

Kaplan said the ACLU of Michigan is carefully monitoring the situation, but has not made a decision to intervene legally at this point. He said the ICHD should simply stop using the document, and fall in line with the law. Kaplan said he was unaware of any calls to the ACLU of Michigan from HIV positive persons who had signed the contract.

Kleber said she had received calls from more than one Ingham County resident who signed the contract and said they were "pissed." She refused to say how many calls she had received citing attorney client privilege.

But Kleber feels the situation is moving quickly towards litigation. "It almost certainly will end up in litigation. That's unfortunate because that is a solid waste of the court's resources. It will happen though because it is wrong. They can look into this, and say we revisited it and we are going to drop this. We're going to take it out of any place it shouldn't be kept. We are going to shred it and make sure we aren't keeping it inappropriately. We're not going to do anything else with it anymore."

She also said if she were advising the county, she would tell them to take ever file, seal it and hand it over to legal counsel. "But of course I am not representing them nor have I been asked to advise them." She said if the county started shredding the documents now, it would look "terrible" in court.

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