HIV/AIDS: The Law, Minorities

HIV/AIDS has been around since the early 1980’s. The number of new cases each year has been rising, with the greatest increase being in the area of minorities and the poor. The number of new cases each year for minorities, specifically African Americans, is very disproportionate compared to the new cases among whites. The greatest disproportion number of new cases seems to be among African American females, as compared to new cases among white and even African-American males.. HIV/AIDS brings a great deal of legal issues to light. One could almost right a book by just highlighting what those issues are. The issues relating to HIV/AIDS do not just affect those who are currently infected with HIV/AIDS, they affect everyone.

This annotated bibliography focus on two major areas of concern. The first area is access to health care, including medical insurance, for people infected by HIV/AIDS, more specifically minorities. There are two Federal Statutes that attempt to deal with discrimination, through the denial of health care coverage, to individuals with HIV/AIDS, the Americans With Disability Act (ADA) and the Rehabilitative Act. Both of these Acts have the same goal, but each approaches its differently. These acts not only cover medical treatment and care, but it seems that the Courts have been willing to extend their coverage to discrimination through the denial of medical insurance. There is also discussion of how reforms to the current Medicaid system are effecting the ability of individuals to access the health care that they need.

The second area of concern are HIV Prevention programs. The area of prevention raises many issues. Some would suggest that the historical problems with HIV Prevention programs in African American communities, as well as the current problems, deals with the stigma that the African American communities place on members of their community for having HIV/AIDS. As a result, fewer individuals are willing to come forward and ask for help, or to even be tested. One article focuses on the idea that there is an "underclass", and that this is where the problems with HIV Prevention programs lay. Many of the previous programs and studies have not been able to get in touch with the members of this "underclass", and as such have not been able to meet their needs. Some feel that the best way to combat HIV/AIDS in communities of minorities is through community based intervention programs. Another problem is that when AIDS first came to the use, prevention was targeted at gay, white males while minority communities were left on their own.

There is no clear-cut answer to anything regarding the AIDS virus or HIV. In a few years we will be entering the third decade of the virus, with no cure in sight. Currently the only means that is available to stop the spread of HIV/AIDS is through prevention and giving people access to the medical care that they need. Through prevention people can learn ways of avoiding behavior that will put an individual at high risk for contracting AIDS. Through access to medical care, people with HIV/AIDS will be given the treatment they need to prolong their life; they will receive the drugs that they need to stabilize their condition; and individuals will not fear coming in and being tested for HIV/AIDS, because they will know that if they are tested positive, that they can receive the care they need.
 
 

The following articles are included in this bibliography:

Abbott v. Bragdon

AIDS Epidemic and Health Care Reform, The

AIDS in the Black/African-American Community: A Central Harlem Experience

AIDS, Medicaid and Women

Anderson v. Gus Mayer Boston Store of Delaware

Americans With Disability Act and Refusals to Provide Medical Care to Persons with HIV/AIDS

Culturally Diverse Populations: African-Americans

Glanz v. Vernick

HHS directs more fund to HIV/AIDS prevention in minorities

HIV Infection Among Women of Reproductive Age, Children, and Adolescents: AIDS and Insurance: How Private Health Coverage Relates to HIV/AIDS Infection and Public Programs

HIV Prevention and African Americans: A Difference of Class

Impact of Managed Care on Doctors Who Serve Poor and Minority Patients, The

Jairath v. Dyer

Kotev v. First Colony Life Insurance Company

Miller v. Spicer

Minority women in US need better access to potent HIV drug regimens

Prevention of Human Immunodeficiency Virus Infection Among African-American Adolescents: Cultural and Psychosocial Influences in The Development of HIV Prevention Programs

Prevention of Human Immunodeficiency Virus Infection Among African-American Women: Sex, Gender and Power and Women’s Risk for HIV

Relevant Measurement of HIV/AIDS Prevention Beliefs for African American Youth

Symposium on Race Consciousness and Legal Scholarship: Silence Equals Death: The Response to AIDS Within Communities of Color

Unequal Health

United States v. Morvant

The following web sites can be accessed through this site:

AEGiS

Business Responds to AID and Labor Responds to AIDS (BRTA/LRTA)

CDC: Division of HIV/AIDS Prevention

Johns Hopkins AIDS Services

National Minority AIDS Council

Yahoo HIV/AIDS Resources

Paula C. Johnson, Symposium on Race Consciousness and Legal Scholarship: Silence Equals Death: The Response to AIDS Within Communities of Color, 1992 U. Ill. L. Rev. 1075 (1992).

This article talks about the authors experience in dealing with AIDS in communities of color. The author puts for an analogy between the silent killer of hypertension and the silent killer of homophobia in communities of color. The issue of homophobia in communities of color has increased the difficulties of dealing with AIDS and its related issues, and it has interfered with efforts with education and prevention within communities of color. The stigma and fear of AIDS has resulted in the discrimination of medical care, housing, employment and insurance. The author discusses her experience with working with communities of color after the initial theory that AIDS was a disease that attacked gay white males, as a member of the Massachusetts AAC.

This chapter gives a basic overview of the various issues that affect African-Americans with HIV. Most African-Americans know or are aware of how HIF/AIDS is transmitted, as well as basic prevention measures. Where there is a misconception is with contamination through donating blood or being bitten by a mosquito. The chapter then goes on to discuss the stigmatization that is placed on African-Americans with HIV/AIDS, by fellow African-Americans. These stigmas can impede the effectiveness of HIV/AIDS prevention efforts. The chapter identifies six potential obstacles for African-Americans to access health care: 1) education; 2) socioeconomic status; 3) attitude of the health care provider, 4) communication; 5) client-provider relationship; and 6) difficulties in negotiation the health care system. 1

1. Sonia Baker and Emma J. Brown, Culturally Diverse Populations: African Americans, HIV NURSING AND SYMPTOM MANAGEMENT, 722 (Mary E. Ropka and Ann B. Williams eds, 1998).

This article looks at the health of the United States. The life expectancy for Americans is increasing, but the poor and certain minority groups are being left behind. There is a movement to do away with this disparity by the year 2010. The Federal Budget for 1999 includes over $220 million to help in this project. The problem is that no one knows for certain what has caused this disparity. AIDS fatalities of African-Americans and Latinos are disproportionately high. This new federal program targets six areas where the there are pronounced disparities. One of those six areas is HIV/AIDS. Over $156 million of the $220 million will go to HIV/AIDS prevention and treatment programs (particularly the access to the newest and most expensive drugs). The NMA points to several problems with federal initiative. The NMA also describes the emerging trend with physicians who treat poor or minority patients. These physicians are being cut from the rosters of certain insurance companies.

Glanz v. Vernick, 756 F. Supp. 632 (Mass. Dist. Ct., 1991)

This case demonstrates the reach of Section 504 of the Rehabilitation Act, and the denial of medical treatment based upon an individual’s HIV/AIDS status. Mr. Vadnais was diagnosed by Dr. Vernick with a perforation of his ear drum. Dr. Vernick, upon finding out that Mr. Vadnais was infected wth HIV/AIDS declined to perform surgery that would correct the problem. The court upheld the claims against Beth Isreal Hospital on discrimination against Mr. Vadnais on the grounds that Beth Isreal Hospital received federal funding (Medicaid and Medicare reimbursements), and Dr. Vernick was an employee of the hospital. The court ruled that by receiving federal funding, that under Section 504 of the Rehabilitation Act a hospital can not discriminate against an individual because they have HIV/AIDS, regardless of whether the procedure the person was presenting him/herself for was covered by those federal funds.

This case deals with Section 504 claim under the Rehabilitation Act. Mr. Miller injured his foot and sought Medical attention at the ER of Beebe Medical Center. Dr. Spicer believe Mr. Miller to be gay, asked whether Mr. Miller had tested positive for HIV. Upon finding out that the Plaintiff had been tested, but did not know the results, Dr. Spicer had the Plaintiff transferred to another facility and refused to perform the needed surgery. To determine if an individual has established a prima facia case of discrimination the court came up with four criteria that Petitioner would have to prove: 1) Petitioner is handicapped under the Act; 2) That he is otherwise qualified; 3) Federal financial assistance was received by the relevant program; and 4) That the defendant, by refusing to give medical care, discriminated against the petitioner as a result of his handicap. This case also extends liability beyond that of the physician to the hospital that the physician works with, if the hospital knows of actions of the physician and does nothing to prevent it.

HIV/AIDS infected individuals presented themselves to the defendant for dental treatment. Dr. Morvant refused to treat them and referred them to another general dentist due to their HIV/AIDS status. The United States brought suit against Dr. Morvant under the ADA (Americans with Disabilities Act), alleging defendant discriminated against individuals because of a disability, in violation of the ADA. The Court was ruling a Summary Judgment motion by both the Petitioner and the Defendant. When examining a claim under the ADA, the petitioner has the initial burden to prove three things: 1) That the individual(s) injured where person’s with a disability; 2) Defendant owns or operates a place of public accommodation; and 3) Defendant discriminated against the injured individual(s) by denying them full and equal enjoyment of medical treatment because of their disability. 1 The burden is then shifted to the Defendant to prove that the injured party(ies) were not denied medical covered, or that such denial was not unlawful. The burden then shifts back to the Petitioner to rebut the Defendant’s claims. Here the Court granted the United States motion for Summary Judgement, due the obvious nature of Morvant’s conduct.

Ms. Abbott presented herself to the office of the Mr. Bragdon for a dental check up. She filed out the necessary patient card and indicated that she was infected with HIV. During the cleaning Mr. Bragdon found a cavity in one of the Ms. Abbotts teeth. He informed here, that as a result of his office’s policy regarding infectious diseases, that he could not fix her cavity in the office, but he would do it in the local hospital. The only additional charge to Ms. Abbott would be the fee the hospital charged for use of its facilities. Ms. Abbott filed a claim under Title III of the ADA, claiming that Mr. Bragdon was discriminating against her because of her disability. On Summary Judgement the Court ruled in favor of Ms. Abbott stating that based on current medical knowledge that Mr. Bragdon’s risks of contracting HIV from his patient does not rise to what would be considered a direct threat. The court took notice stating that Mr. Bragdon’s defense is legitimate, but not as immanent a threat he claims under current knowledge.

This case adds a forth prong to what a Petitioner in an ADA claim must prove, before the burden shifts to the defendant. This fourth element is that under the circumstances, that there can be an inference raised that the denial of medical treatment was the individual’s disability. Jairath filed an ADA claim against Dyer for refusing to do a Gore-Tex implant procedure. Jairath claimed that the reason Dyer did not perform the procedure was because Dyer new he was infected with HIV/AIDS. This case was on Summary Judgment, with it being granted in favor of the defendant.

This case presents the problem of the denial of health insurance to an individual HIV/AIDS. The Anderson’s son was employed by Defendant, and had health coverage under their original plan. Due to their son’s illness with cancer and later diagnosis with HIV/AIDS, the Defendant’s rates were raised and numerous fellow employees asked for Defendant to obtain lower rates. Defendant, knowing that Mr. Anderson would be denied coverage under the new carrier, went ahead with the change without making any arrangements for the Plaintiff. The Court ruled that unless Gus Mayer could prove undue hardship, that its denial of health insurance to Anderson was a violation of the ADA. The Court, in making its determination took an in depth analysis of the statute.

Kotev v. First Colony Life Insurance Co., 927 F. Supp. 1316 (C.D.Cal.1996)

This case deals with a spouse being denied insurance coverage due to his wife’s positive HIV test results. Mr. Kotev applied for insurance through Defendant. As part of his application he was required to take an HIV test. Mr. Kotev’s test results came back negative (once in 1991 and once in 1995). On both attempts of Mr. Kotev to obtain health insurance from Defendant, he was denied, due to his wife’s positive HIV test results. Mr. Kotev filed several causes of action, but it is the third count, which deals with the ADA. With regards to the ADA the Court sounded like it was favoring the idea that an insurance carrier could not deny coverage based upon an individual’s HIV test results. Such a denial would violate Title III of the ADA.

This article talks about the findings of a study evaluating the predictors of combination antiretroviral use. The study was conducted in three large metropolitan areas in the US. The data used started in January of 1996, after the protease inhibitors and more potent antiretroviral regimens were introduced. The study found that white women, compared to racial minority groups, were 1.5 times more likely to be given antiretroviral drugs. Those less likely to be taking advance medications were women of African American or Hispanic origins.

This is a very in depth article on HIV/AIDS and health insurance. The article discusses, in general, private insurance – in the context of both individual policies and group policies. The article also discusses the impact that HIV/AIDS has on the insurance industry, relating to both individual and group policies. Discussion is given to denial of coverage based upon being infected with HIV/AIDS. It discusses HIV/AIDS treatment and what insurance will cover of it. Without public intervention, individuals feared to be at high risk for HIV/AIDS will find it increasingly difficult to obtain individual health coverage.

This article is very in depth on HIV/AIDS and the health insurance industry. It should answer or point you in the right direction for almost any question someone might have regarding HIV/AIDS and insurance.

Jack P. DeSario and James D. Slack, The Americans With Disability Act and Refusals to Provide Medical Care to Persons with HIV/AIDS, 27 J. Marshall L. Rev. 347 (1994)

This article starts with a short introduction to HIV/AIDS and the fears that people have about catching the virus. The article then goes into a discussion relating to the ADA, and the Miller v. Spicer case. Individuals have a right to have medical care in the United States. This concept goes back to before the ADA was enacted, to the Rehabilitation Act of 1973. The authors feel that the Miller decision places a legal obligation on medical care providers to actively dismantle discriminatory treatment plans. The ADA differs from the Rehabilitation Act in two ways. The ADA applies to all employers, where the Rehabilitation Act only applies to those organizations receiving federal funding. HIV/AIDS patients are afforded protection from discrimination under Title II and III of the ADA. Lastly the articles discuses the various fears that result in physicians refusing medical care to HIV/AIDS patients.

This article does not directly deal with HIV/AIDS, but it discusses access to the Health Care system with the current shift towards a Managed Care system. With the shift to a managed care system, minority physicians (and physicians who treat minorities and poor) are being excluded from HMO’s due to their higher cost in treating patients. These physicians, that are being excluded, are the primary means for many minorities and poor to access health care. These physicians have knowledge and skills in treating disease that are mainly within the minority and poor communities. They know the language, culture, and life styles of those that they treat. With the exclussion of more and more of these physicians, minorities and the poor are being forced to change t heir current physicians, or have to go out of their way or be inconvenienced to receive medical care. This shift, if left fairly unregulated will cause many problems in access to health care as well as problems for those physicians that are being excluded.

William A. Bradford, Jr., Michael A. Zavos, and the American Bar Association AIDS Coordinating Committee, The Aids Epidemic and Health Care Reform, 27 J. Marshall L. Rev. 279 (1994).

This article is a survey of the various issues relating to HIV/AIDS and access to health care. The face of AIDS has changed since it first emerged in the 1980’s. When the first cases of AIDS were reported, the disease was thought to attack male homosexuals, mainly within the white communities. Currently AIDS is affecting disproportionately people of minorities. Individuals with the greatest difficulty in accessing health care are that are infected with AIDS are the low income, either from being there before being infected with HIV or as a result of the costs of funding the treatment for HIV. Another problem is the fact that women are increasingly showing the largest numbers of new HIV cases. Much of this results from the fact that low income women do not have the access they need to medical care and HIV testing, as well as the fact that the CDC does not currently include in its definition of AIDS gynecological symptoms. A large number of women reported with HIV/AIDS are women of color who live in impoverished urban areas and lack access to health care.

There are other difficulties, besides financial, in obtaining health care. People infected with HIV/AIDS are often denied medical treatment that they need due to their illness. There are two Federal Statutes which attempt to remedy this, the American’s with Disability Act, and Section 504 of the Rehabilitation Act. Another problem is the fear that the confidentiality of the HIV/AIDS test would be breached. The article finishes with a discussion of private insurance and how private insurance companies deal with HIV/AIDS. Lastly, the article finishes up, by discussing the impact of the Medicaid system that HIV/AIDS has, regarding people who are unable to pay for their treatment.

This article looks at the medical care and treatment women receive, specifically those that are infected with HIV/AIDS, and the mechanisms used to cover the cost of treatment for HIV/AIDS. The first part of the article discusses the current standard of care for HIV/AIDS infected persons. Currently, an HIV positive person requires medication to slow the onset of AIDS. On average, the costs of this treatment can be as much as $10,000 a year. On top of drugs, early diagnosis and monitoring of HIV+ people are required to slow the onset of AIDS. Next, the article discusses the Medicaid and Medicare system. Medicaid is a cooperative program between Federal and State governments. To qualify for Medicaid, an individual must be an impoverished person, a person who has become severely disabled, or a person who fits into one of the specially defined eligible groups. The disadvantage of Medicaid is that it does not cover the cost of prescription drugs. The article then goes on to discuss the various ways of being eligible for Medicaid, and where individuals, specially women, who are infected with HIV/AIDS fit into the Medicaid system, and the various services that are provided by Medicaid. Poor women can often get preventive HIV treatment and medical care under Medicaid, but they first must know if they are eligible and where and how to apply for Medicaid. Lastly, the article discusses Medicaid Managed Care.

HHS directs more funds to HIV/AIDS prevention in minorities, Reuters Health Information, HIV/AIDS Information Center: The Journal of the American Medical Association, Sept. 21, 1998.

This article talks about the US Department of Health and Human Services press release which announced that an addition $4.9 million will be allocated specifically to racial and minority communities for prevention and outreach services for HIV/AIDS. The CDC will be contributing $3 million to be used for 30 community-based organizations, in the African American and Hispanic communities, that will provide HIV prevention services.

This article focus HIV/AIDS risks to African-American women. The prevalent theme through out this article is the idea that African-American women are at a higher risk for HIV/AIDS due to their lack of bargaining power in their relationships. As a result of power inequities in the relationship, the women is unable to negotiate with her male partner for the use of condoms, especially where the woman is already in a physically abusive relationship. African-American women, compared to their white counterparts, generally will earn less than $10,000 a year and were significantly less educated. The authors also discuss prevention theories, and their effectiveness on prevention and education for women within the African-American community. With regards to social psychological theories, most of them fail to take into consideration the social contextual issues of gender, class, and ethnicity, which might exert influence on key theoretical constraints. 1 The author feels that gender specific theories are useful in identifying and understanding why economically disadvantaged women have an increased risk for HIV/AIDS, but are limited in their ability to provide methods for promoting and maintaining behavior. 2 In order to control the HIV epidemic among women of African-American origin will require the design of intervention programs that take into consideration the larger social contextual issues that characterize the hardships and gender specific risks for African-American women. 3

1. Gina M. Wingood and Ralph J. DiClemente, Prevention of Human Immunodeficiency Virus Infection Among African-American Women: Sex, Gender and Power and Women’s Risk for HIV, CONFRONTING THE AIDS EPIDEMIC: CROSS-CULTURAL PERSPECTIVES ON HIV/AIDS EDUCATION 124 (Davidson C. Umeh ed., 1997).

2. Id. at 127.

3. Id. at 131.

Benjamin P. Bowser, HIV Prevention and African Americans: A Difference of Class, AIDS PREVENTION AND SERVICES: COMMUNITY BASED RESEARCH 93-108 (Johannes P. Van Vugt ed., 1994)

This article explores the differences of the African American class structure and risks of HIV/AIDS infection, and prevention strategies for the African American community. This article attempts to do four things: 1) Propose explanations for why the African American community has not mobilized to gain more adequate AIDS prevention services; 2) An in depth review of the risks of AIDS as a result of social class, specifically the underclass; 3) A look at the failures and successes of MIRA, a university and community based AIDS prevention effort; and 4) Recommendations on how future efforts might be improved. 1 AIDS risks are increased based upon the social class of African Americans. There have been identified four different social classes within the African American community. It is what is coined as the "underclass" that is at the highest risk of being infected with AIDS. The underclass is a subclass of the lower class, a step below what is the lower class. The underclass is made up of "people who have effectively dropped out of the economy, who have no apparent means of income and no official address, and who are alienated and mistrust the mainstream". 2

MIRA (Multi-cultural Inquiry and Research on AIDS) is a program that was developed with cooperation between Bayview Hunter’s Point Foundation for Community Improvement and the University of California at San Francisco’s Center for AIDS Prevention Studies. The cooperative effort allowed for the integration of research into HIV/AIDS and the "underclass" of the African American culture. Previous studies that have been conducted were unable to obtain information from the underclass, because of their lack of trust. MIRA brought in those persons in the underclass and gained their trusts, by training members of their community to help in the research. MIRA did have its problems though, conflicts between the needs of the university and the needs of community based program. 

1. Benjamin P. Bowser, HIV Prevention and African Americans: A Difference of Class, AIDS PREVENTION AND SERVICES: COMMUNITY BASED RESEARCH 93-94 (Johannes P. Van Vugt ed., 1994).

2. Id at 98

This article looks at the development of HIV prevention programs for African American adolescents. The number of cases of HIV infected adolescents is low, but they engage in many HIV high risk behaviors, such as; inconsistent condom use, multiple sex partners, and injection drug use. African American adolescents are five times more likely to be infected with HIV than white adolescents. African American males were five times more likely than white males, while African American females were 11 times more likely than white females. In examining African American adolescents for the threat HIV, you must understand not only the context of adolescents but also cultural and psychosocial factors that exert influence on behavior. The authors look to risk behavior in the terms of culmination of complex social and interpersonal interactions. The authors discuss a number of barriers, which have been identified as affecting the willingness to modify behaviors that are high risk by African Americans. Lastly, the article looks at HIV prevention strategies. Few prevention strategies have been aimed at adolescents, but those that have been are in the area of community based intervention.

This article talks about an HIV/AIDS education program that was conducted by the Harlem Hospital Center(HHC)/Columbia University Perinatal HIV/AIDS Reduction and Education Demonstration Activity (PHREDA). PHREDA target three groups of women: 1) Those who had delivered at HHC without prenatal care; 2) Those who attended Harlem Hospitals Special Prenatal Clinic (HHSPC); and 3) Those in four methadone treatment programs run by Addiction Research and Treatment Corporation (ARTC). The objectives of PHREDA were related to more than just HIV education and prevention, it also made an attempt at family/pregnancy planning and education. With regards to HIV education and prevention the project had four goals.

Recruitment for the program was done from patients at HHC who were either: 1) part of the HHSPC – these individuals were members of the second target group, and 2) from patients who were admitted to HHC for delivery, but attended less than four prenatal visits – these individuals were the members of the first target group. The last target group was comprised of patients choose from ARTC. The first target group was interviewed and followed after the birth of the child. The other groups were educated and tested during prenatal care. The results found that the women were more receptive to this type of education and prevention.

This article discusses the measurement, in light of Wyatt’s request for informed research and intervention, of the beliefs of African-Americans in AIDS prevention. Wyatt feels that research needs to be done in three phases: 1) a general examination of sexuality; 2) focus on the environmental factors which lead to risk taking; and 3) development and evaluation of interventions. The article also discusses the theories of Reasoned Action and Planned Behavior in looking at the beliefs and attitudes regarding HIV/AIDS prevention. The study conducted two experiments. The first attempted to link Wyatt’s informed research with the theory of Reasoned Action. This was done to determine if the Beliefs About Preventing AIDS Scale would hold up to statistical analysis for an African-American adolescent population. The second experiment was conducted to examine, using the revised scale, beliefs about prevention and selected psychosocial variables that influence boys and girls about safe sex.

While researching this annotated bibliography, I found many sites on the web that were very useful and informative. Below is a short list of sites, as well as what you can find there. Many of these sites have links to other sites that might be of interest to you.

This is the CDC’s most up to date information regarding HIV/AIDS. It contains information about the disease in general, prevention, treatment, funding, and testing. The CDC maintains a list of publications, which you can access and order on-line.

This site is a valuable resource for large and small businesses, labor unions and trade unions. It contains information about HIV/AIDS in the workplace, and the legal rights of HIV/AIDS employees in the employment environment.

This is a database for HIV/AIDS. You can find current news, past news, publications and legal documents pertaining to HIV/AIDS.

This site is more medical related. Although it does contain information regarding HIV and Medicaid, and the Ryan White Care Act. It covers education, prevention, resources and treatment.

This site is hosted by the NMAC. It gives information about AIDS conferences, treatment, education and public policy, as well as a chance to ask the experts.

This site does not contain information regarding HIV/AIDS, but contains multiple links to HIV/AIDS web sites. This will have the most current and up to date links to HIV/AIDS sites on the web.