BISON 1---These edited proceedings of a comr----munity forum held by the District r----of Columbia Advisory Committee to r----the US. Commission of Civil Rights f---were prepared for the information f---and consideration of the Commisf---sion. Statements and viewpoints in r----the proceedings should not be at>---tributed to the Commission or to ~-the Advisory Committee, but only >-----to individuals participating in the r---community forum where the inforr----mation was gathered. HANDICAP PRotECTION FOR AIDS VICTIMS IN WASHINGTON, D.C. DISTRIO'OF COWMBIA ADV50RYCO~TTEE]O THE U.S. COMMISSION ON CIVIL RIGHTS A SUMMARY R E P 0 R T M A Y 1 9 8 9 'lliE UNITED STAT.ES c>lice, :I::>E:!.parbnent•.•••..•.••••••••..•••.......••••.......35 Dr. Reginald Jenkins, Chief Medical Officer, D.C. Deparbnent of Oorrections................................37 Dr. Reed '1\lckson, Conunissioner, D.C. Pllblic Hea.lth SeJ:V'ice...............................39 Appendices Appendix A-D.C. Code Arm. § 6-121 (SUpp. 1987), Persons believed to be carriers of canmmicable diseases -Examination; diagnosis; detention for quarantine; discharge; public hearing••••••••••..••..56 Appendix B-D.C. Code Arm. §§ 6-2801 to 6-2806 (SUpp. 1987), AIOO Hea.lth ca.re••...••..•••.•••............•....•.•••.............57 SUMMARY 'Ihe District of COlmnbia Adviso:ry camnittee held a canmnmity forum on handicap protection of acquired i.nmrune deficiency syrxlrc.:lne (.A:Irn) victims on July 23, 1987. 'lhe Ccmnittee's lon;JStan::ling interest in handicap discrimination led to discussions about a swelling local controversy caused by public fear of .A:Irn. On two occasions, news reports featured Metropolitan Police officers making arrests, using heavy rubber gloves and face masks as protective equipment against potential AIOO infection. The reports said the officers believed they risked getting AIOO because some persons arrested might be hcm:>sexual. 'lhe Orief of Police eliminated the practice as urmecessacy, reiterating the D.C. Public Health Ser:vice explanation that AIOO does not result from casual contact with infected persons. Along with these controversial events, the Connnittee noted the enacbnent of the AIOO Health-care Response Act of 1986, D.C. Code Ann. §§ 6-2801 to 6-2806 (SUpp. 1987). 'lhe legislation requires local agencies to provide a general strategy to address the issues, problems, and lOOllilting needs associated with AIOO. 'Ihese local developments prompted the Connnittee to convene a conununity forum on handicap protection for AIOO victims. District law grants a wider range of civil rights protection on this issue than Federal laws require, thereby raising the question, how does the District car.ry out its legislation on AIOO? 'lhe Ccmnittee invited speakers representing key District agencies to address questions of local AIOO policy. 'lhe Conunittee, however, recognized a need to first examine divergent opinions concerning the civil rights implications of AIOO. 'lherefore, the Connnittee initially consulted with three experts on AIOO policy, joined by COngressman William E. I:Ennemeyer (R-califomia). 'Ibis panel provided backgrourd on the subject as a prelude to local issues. 'Ihe first panelists disagreed with one another on AIOO contagion, risk population, and public health policy. '!heir opinions ranged from views that the possibility of respiratory transmission of the AIOO virus is cause for general concern to views that public health policy should focus on high-risk behavior. A portion of the panel viewed homosexuality as a significant aspect of the AIOO problem. Other panelists highlighted a prevalence of blacks and chug abusers among victims, regardless of sexual practice. 'Ihe panelists agreed that persons disabled by AIOO have the protection of handicap discrimination laws. '!hey held conflicting views on whether the laws grant protection against discrimination based on the fearful perception others have of AIOO victims. 'Ihe committee then turned its attention to the panel of local officials. 'Ihe speakers represented the D.C. Office of Human Rights (OHR), the D.C. Metropolitan Police, the D.C. Department of Corrections (rxx:::), and the D.C. Public Health Service (PHS). Each agency has its own policy on AIOO and programs for public education and errployee training in the area. 'Ihe rxx::: reported a CLmll.llative total of 12 deaths involving AIOO in all rxx::: facilities between 1985, the first year of testing, and the fo:nnn.l D.rring the 31-month period, the rxx::: did 375 AIOO tests on inmates and found 187 persons who had been exposed to the virus. D.rring 1987 until the date of the fonnn, the JX)C had done tests on 100 inmates and approximately 48 were sero-positive. 'Ihese data show a ratio of about 2 to 1 of AIOO tests to sero-positive findings. 'Ihe commissioner of Public Health reported that 744 persons in the District have been diagnosed with the disease and 434 have died. He noted that among military recruits in the District, ages 18 to 30, 1 in 100 has tested sero-positive for AIOO. He said the word "educate" sununarizes his view of lnr. Jenkins verified these data as accurate for the entire population of persons in custody from 1985 until the fo:nnn. He added that there have been 3 more deaths since those reported qt the fo:nnn, bringing the total to 15, at present. He reported also that 24 persons have been fully diagnosed with AIOO. Reginald Jenkins, MD, Assistant Director for Health Services, D.C. Department of Corrections, telephone interview, Jan. 30, 1989. the best approach for controlling AILS arrl protecting civil rights. More specifically, the Commissioner errlorsed cordom use for adults. He also advocated readily accessible, confidential, arrl voluntal:y AIOO tests. a::NGRESSMAN IlANNEMEYER: It is my pleasure to have this opportunity to be here this morning arxi share my thoughts with the distinguished members of the Connnittee. As a beginning point, I suppose we can start with what Congress adopted back in 1973, the Rehabilitation Act, which proscribed discrimination against handicapped individuals. What Congress has meant by the tenn "handicapped individuals" has been an interesting exercise in the process of the courts arxi Congress itself since that tenn appeared in the law in 1973. The Atto:rney General in the carter Administration advised that the definition of "handicapped person," as used by the act of Congress, included drug addicts arxi alholics. Congress, in 1978, questioned that opinion arxi, by a subsequent act, made clear that a "handicapped person" did not mean a drug addict or an alholic. That was the status of the law, until the U.s. SUpreme Court recently handed down its opinion in School Board of Nassau County v. Arline [480 U.S. 273 (1987)]. The SUpreme Court, interpreting the same tenn "handicapped individual," concluded that Congress intended to include persons with communicable diseases under the definition of a handicapped person. In that instance, the plaintiff had tuberculosis arxi alleged the protection of the law proscribing certain discrimination against handicapped persons. 'lhe Court rernand.ed the matter to the trial court to determine whether the definition of "handicapped person," included Mrs. Arline. As a member of Congress, I disagree with the Court's interpretation that the definition of "handicapped person" includes a person with a communicable disease. I do not believe that was ever the intent of 2 Congress. One reason for making that observation is that with respect to clarifying the law and the meaning of that tenn, Congress took the action by saying expressly that it did not include a dnlg addict or an alcoholic. If Congress could vote again on that issue, I think it would say that it did not intend to include persons with cx:mnunicable disease. If we were to use the tenn "handicapped individual" to include persons with a communicable disease, we would be at cross-purposes with ourselves. For example, under Federal immigration law today, a person with certain designated infectious diseases cannot be admitted into the country. Among them are such curable communicable diseases such as syphilis or gonorrhea, leprosy, active tuberculosis, chancroid, granuloma, or lynphogranuloma. If you have any of those, you cannot come in the United states under the immigration law. Note the paradox: You cannot come into the United states when you have one of those conununicable diseases, yet we interpret the tenn "handicapped individual" to include within its ambit a person with a conununicable disease. While the Federal Govennnent is saying, "You can't come in here if you have a communicable disease," at the same time we say that you are goipg to be the beneficiary of a law protecting handicapped individuals if you do have a cormnunicable disease. The situation becomes absurd when we address the question of affirmative action. Is our law in such a posture today that when an employer has affirmative action obligations under a contract with the Federal Government, that employer is to go out into the prospective work force and find people with cormnunicable diseases to be in their work force to satisfy the requirements of affirmative action? I am not sure whether the SUpreme Court even contemplated that absurdity when it rendered its decision. I am not sure any of us knows what the answer to that question is, but I have stated it as one of the reasons for my conclusion that I do not believe it was the intention of Congress to include a person with a communicable disease under the definition of a handicapped individual. Some persons in America tcxiay claim that the Arline decision has applicability to the Aiffi epidemic in America. I am not sure that it does. For instance, take the three stages of that disease: those with the virus 3 who can be asyrnptorna.tic, those with AII:S related complex (ARC}, and those with fully developed AIDS. If a person has a case of fully developed AIDS, I think, they are clearly handicapped within the meaning of the law in the sense of satisfying the strict definition. '!hey are sick people, but because they are sick they are not othen~ise qualified. So I do not think they can fit within the definition. '!bat is a person with AIDS. '!hose persons with the virus who are asymptomatic --because they are asyrnptorna.tic, they are not suffering any irrpai:rment at all, physical or mental. '!hey do not, therefore, fit within the typical definition of "handicapped." Certainly, they are otherwise qualified because they are fully able to work. So I do not believe that those with the virus for AIDS, or those with ARC, or those with AIDS are going to have any relief with respect to the Arline decision in tenns of proscribing discrimination against persons who are handicapped, as that term is used by the act of Congress in 1973. SA.C MEMBER GALIBER: I would like to ask the Congressman if you have with you your definition of what you consider to be a handicap. ~I::lANNEMEYER: Within the meaning of the Act of 1973, there are, I think, five conditions: first, the jndividual must be handicapped, as defined in the act. '!hat means he or she has a physical or mental irrpai:rment which substantially limits one or more major life activities, or has a history of such irrpai:rment, or is regarded as having such an irrpai:rment. '!hat is a narrow definition of a handicapped person. '!hat is the first criterion. Secondly, the individual must be othen~ise qualified; in other words, notwithstanding having that handicap, the individual must be othen~ise qualified to perfonn the job. 'lhird, the individual must prove he or she has suffered discrimination as a result of having that handicap. 'lhe individual must shCM that his or her employer is getting Federal money, the "Federal hook," so to speak. '!he last condition, the employer rnay not be put to an undue hardship as a result of acx::onnnodating that person in the work force. That is the technical definition of the law; that is the definition that I would render. Whatever you define the law, sometimes it is easier to understand the law if you apply it to a certain factual situation, 4 establish a factual situation for a person you have in mind arrl then see how the law applies. It is the definition that I have adopted in coming to the conclusion that I did. SAC MEMBER 'lOPPING: 'lb extend Mrs. Galiber's question, the person with AIOO, as you view the law, is not in a protected class as the Cormnission on Civil Rights would be interested in? CXHiRESSMAN IlANNEMEYER: I think persons with AIOO, fully developed AIOO, under the narrow definition that our medical frierrls have established, are sick, very sick. '!hey are harrlicapped within the meaning of the law because they are experiencing a physical or mental impainnent which substantially limits one or more life activities. I do not question that. I do not think such a person can satisfy another requirement of the law, in tenns of the definition of a handicapped person because, in that status, I do not think they are otha:wise qualified to perform the job because of their sickness. I do not know how a person manifesting that degree of sickness can possibly perfonn a job. MR. 'lOPPING: But if that person could perform that job, whatever the qualifications of the job, then that person falls within the protected group or protected class by that public law of 1973? aJNGRESSMAN ~=I concede that. If that person with AIOO could pass muster in te:r:ms of being otha:wise qualified to perform that job, I think he or she would be able to pass muster as fitting within the definition of that law. But, I do not concede the point that a person with a communicable disease fits within the definition of what Congress intended to include within "harrlicapped individual." MR. 'lOPPING: But not excluding AIOO, when a person is clearly sick? aJNGRESSMAN DANNEMEYER.: I think the better way I would put it is that it was not the intention of Congress to include within the definition of "handicapped person" a person with a communicable disease, no matter of what variety. In America, in my state of califomia, anyway, we report 58 connnunicable diseases. I think most states are the same. Most of those diseases are bad news for any of us. I don't think it was the intention of 5 Congress to include a person with any of those 58 canununicable diseases within the category of "handicapped individual." MR. 'IDPPING: But, Congressman, I gather that there would be two aspects that would be critical to a job-specific situation. One would be, presumably, the actual physical strength or physical capacity of the individual to handle the given job, to establish they are otherwise qualified there, whether one is talking about AIOO, tuberculosis, or a variety of other diseases. I gather the other consideration would be, essentially, the transmission of that particular canununicable disease as related to the particular job and, therefore, the likelihood that somehow there would be transmission resulting therefrom. That ends up being a factual detennination that would presumably be job-specific depending on the nature of the disease and work circumstances. If it were tuberculosis in an active state, obviously that would be a problem. In the case of another disease, it may be that, in a given setting, if a person physically had the strength to be able to perfonn, one may have a different balance. Would that be your conclusion? rning, as well as from the District of COlumbia representatives this afternoon, will prove telling with respect to the COngressman's remarks. My name is John COnnelly. I am the superviso:ry attorney at the Infonnation, Protection ani Advocacy Center for Handicapped Individuals. My boss, the executive director of the Infonnation Center, is sitting to your right, Mrs. Yetta Galiber. 'Ihe Infonnation Center is a nonprofit, 12 public interest, advocacy organization that has for the past 17 years or so represented the rights, and rights to seJ:Vices, of irxlividuals with handicapping conditions. We have operated on a number of different levels, not just legal and not even primarily legal, although I certainly have my hands full with court cases. We have 21 people, arrl IOC>St of them are lay advocates. We have successfully protected the rights of individuals and their rights to seJ:Vices for a long time. We are involved in the AILS issue because of law, not politics. CUrrently the law, both the Federal law and a majority of the human rights statutes in various jurisdictions, have posited AILS as a handicapping condition. In fact, the Federal law is so broad that one need not be handicapped to be, in a sense, part of the protected class. '!he perception that one is handicapped is, in and of itself, enough to pennit such an individual to be protected under the Federal handicapped discrimination law. '!hat is also true, by the way, of the D.C. Human Rights Act, the local human rights statute. '!he purpose of this meeting, as I understand it, is to look at the AILS problem, especially as it affects or as it impinges upon the civil rights of those who are afflicted. I want to spend a little time telling you some IXJints about the condition. I am not a doctor, but I think it is important to keep these points in mind. I then would like to talk to you about the constitutional underpinnings. What you heard from the Congressman was merely an analysis of the Federal statute, the Rehabilitation Act, which is but one chip in the game. '!here is constitutional protection under the 1st and 5th and 14th amendments that directly bear on AILS in particular situations. I will discuss just a few of those situations for illustrative purposes. Finally, I just want to end with a comment on some of the Congressman's points. First of all, AILS is a disease. It is a deficiency of the human immune system. It is caused by a virus which depresses that immune system and permits individuals who are afflicted to catch infections and diseases they would not catch othen~ise. So, for excurple, the connnon cold to an . 13 AIOO sufferer becomes a potentially lethal event. 'nlere is no cure for AIOO. Not everyone 'Who has the AIOO v.inls, as established through the current testing mechanisms that exist, will get AIOO, and that is an inportant point. I will speak a little bit more about that later. '!here is a ve:ry inportant distinction to be kept in mind between three categories of individuals. First, those individuals with AIOO. 'Ihe centers for Disease Control in Atlanta define AIOO as the opporttmistic disease that one catches by virtue of having a depressed inunune system. '!here is a second category, AilE-Related Conplex, those individuals with ARC. 'Ihese are a group, defined by individuals 'Who have some signs and symptoms but not a full-blown opporttmistic disease. Finally, there is the group that tests sero-positive, those 'Who test positive on the antibody test. One word about the test, or the tests. 'nlere are two of them, the Eliza Test and the Western Blot Test. 'nlese tests were originally designed to screen blcxxl back in the late seventies. 'nley do not test for AIOO; they test for the presence of antibodies that the inunune system develops as a response to the AIOO v.inls. 'nlat is an inportant distinction to keep in mind. AIOO is a contagious disease. I think the Congressnan used the word "connmmicable." One needs to draw the distinction, that was drawn at least in some of the briefs in the Arline case, between infectiousness and contagiousness, it is a distinction that goes a little bit like this: If we are all in a room and someone coughs, I may indeed get the cold that he or she has. Infection contemplates ready conununicability. AIOO is not --the only gcxxl thing about it is that it is not -.casually transmitted. 'nle scientific evidence does establish that there is not casual transmission. One gets AIOO 'When one mixes infected blcxxl with blcxxl, 'When vaginal secretions or semen enter the blcxxl stream of an individual. 'Iherefore, such high risk activities as sexual relations, use of contaminated needles, and transfusion of infected blcxxl are the statistically overwhelming three causes of the condition. 'lb argue that some causes, the etiology of some conditions, remain unknown is not to 14 suggest that there is casual transmission. '!he logic simply does not hold there. AIDS is, finally, a health problem, a public health problem. Why? Because there is no cure for it. I mean it is virtually a death sentence at this point. It is also a problem not merely for a select group of individuals. For the District of Coltnnbia, for example, it is an extreme problem for intravenous drug abusers of which we have a very large ntnnber. There is a rapid increase in incidence of AIDS. 'Ihe paper I have submitted in advance indicates that 1 to 1.5 million people in the United states would test positive if they were tested. Finally, AIDS is a handicapping condition, and that is what the Supreme Court said in the Arline case and what the State human rights statutes have been saying prior to that. I will not address discrimination, statutory discrimination, because I think it is going to be the thrust of a lot of what we will be talking about, both in the morning and the afternoon. I.et me just share three particular areas: institutions, mandatory testing, and the issue of segregation or quarantine. Institutions, the problems that exist in institutions: We deal a lot with mental retardation and mental health facilities. The typical example might be the prison system. There you have a captive population. There you have the rather free exchange of urine, blocxi, and feces, and you have fights and you have sexual interactions, a ripe environment for, one would think, the government having some legitimate interest in effecting individual civil rights, privacy, and confidentiality. The issue in these cases is, admittedly, a tough one, and another issue, there, of course, would be mandatory testing. The situations are complicated, and there are certainly views on both sides. The District of Coltnnbia should be conunended for having a very progressive policy with regard to the D.C. prison population. This is a policy which is in your packets: it promotes education, promotes the development of capabilities, to take care of individual persons with AIDS which includes those three groups, and also promotes the development of coherent policies. 15 currently, my understanding of the system, the prison system in D.C., is that individuals who are tested am test positive are not at all segregated from the prison population. '!hey are told of their positive test result, am they are retunled to the general prison population. Those individuals who have AIOO-Related Complex, who have some sickness or some residual illness, are treated as other patients are at the D.C. infirmary, the prison infirmary. Finally, those with AIOO are actually put in a separate wing of D.C. Gen~ Hospital. With respect to the issue of mandatory testing, which can certainly arise in the prison context, it is all over the papers. You probably know that there are currently proposed regulations for the testing of inunigrants to this country, which are in their proposed :rulemaking stage. '!he testing issue is also a difficult issue. ret me make our position clear. We support voluntary testing, confidential testing, am even, preferably, anonymous testing. The idea of mandatory testing is not a good one, for several reasons. First, testing will not halt the spread of this disease. Second, testing will probably drive underground those people who should be tested. 'lhird, besides being counterproductive in that respect, testing costs a lot of money. Various states established policies for their prison systems. I think there are about five States that actually established mandatory testing policies, am they discontinued those policies precisely because of the factors I just mentioned: too expensive, what to do with the results, and not therapeutic. So, the testing issue has, at least with respect to that population, resolved itself. We have the specter of testing arising in other contexts, am I think that will beccme an increasing problem in the very near future. Now, on the issue of conpil.sory reporting, which is to say reporting by physicians of medical knowledge about their patients. This has been around for a long time am affinned by the SUpreme Court as early as 1887. It is counter-balanced against, of course, the privacy am liberty interest that one has in his reputation am honesty am integrity. 16 '!he difficulty with reporting, the down side of it, is that there is concen1 about the guarantees for unauthorized disclosure, ooncen1 about the purposes for which the testing occurs, and whether the reporting will be used for purposes not associated with the epidemiology of the disease. Just a word about segregation or quarantine, quarantine being the extreme fonn of segregation. If this class of inlividuals is not a suspect class that deserves heightened scrutiny under the Equal Protection Clause of the United states Constitution, an issue not yet decided, I admit I will be very surprised. I am sure you are familiar that such heightened scrutiny for a class such as race, national origin or alienage demands that one look at how that class is treated by society, how the characteristics of that class, your skin color, for example, affects your ability to sit in other portions of the bus than the back. I am sure, as a oonstitutional issue, this will arise with respect to persons with AII:S. '!here are other problems, of oourse, that relate to that, and heightened scrutiny is necessitated for analysis of whether a particular regulation should be oonstitutionally upheld. You have the whole issue of narrowly tailoring the means to achieve the statutory purpose. Should one segregate all gay men because they are potentially AII:S carriers? I think that is obviously overinclusive. Or all intravenous dl:ug abusers? It would not pass oonstitutional nruster, precisely because it is overinclusive. It is also underinclusive because not everyone who has AII:S or is a carrier is white or gay. '!he evolution of the definition of "handicapped" is, of oourse, something that the oourts are very ooncenled with. It is certainly the proper posture for legislators to protect the public, but it is, ultimately, the task of the courts to detennine whether legislators have perfonned oorrectly when individual rights are infringed. '!he Congressman is wrong with respect to dl:ug addicts and alooholics and their coverage under the Rehabilitation Act. '!he Congressman is wrong to think that certain handicaps, because they are deemed willful and not of natural causes, should be treated differently. 17 In 1985 --this is from the Congressional Record --the Congressman, who is acknowledged in a footnote to a Harvard raw Review article, as a leading proponent of AIOO-control legislation, stated on the House floor that God's plan for man was Adam and Eve, not Adam and Steve. My point is that Steve has just as nru.ch right to constitutional protection, regardless of his sexual preference, or the color of his eyes or anything else. '!hat, really, is what the AIOO issue is all about. The Arline case speaks in great detail about the legislative history and the stigma and prejudice and misinfonnation that too often accompany handicapping conditions. It is precisely that which is really the issue in this AIOO crisis. ~WASHI:NGIOO": We now have Bnlce McDonald, advisory board member of the AIOO Education Bureau. He will be speaking under the aegis of the bureau and not the D.C. Bar. MR. ~= I am a local attorney, a member of the Bar, and I organized a conference under the auspices of the D.C. Bar labor Relations section earlier this year having to do with AIOO. However, I am not a representative of the bar. '!hat is what I wanted to make clear today that the bar itself has no position on any issue having to do with AIOO. ~WASHINGim: That is so only because it is an order of the court. It has nothing to do with your presentation. Now, go ahead. MR. ~= That is correct. In any event, I am going to skip over some of the remarks that I prepared to give on the issue of discrimination, since it ties in with the handicap question, and it is being nru.ch discussed. I would like to say that I think the debate now needs to move away from whether AIOO is a handicap. Even though the SUpreme Court has left 3Mr. McDonald is a practicing attorney with the law finn of Robbins and laramie, Washington, D.c. 18 open the question of whether mere sero-positivity is a handicap, I feel confident that the courts will decide that it is. 'Ihe question is not whether it is a handicap; the question is what does this mean for the handicapped person? How does this affect his rights? What it means is that the employer will have a burden to show that the handicapped person is not qualified for a position before rejecting him or otherwise taking adverse action. As we have noted here, the law states that you not only have to be handicapped, but you also have to be otherwise qualified for the particular position, or you could be otherwise qualified with reasonable acconnnodation from the employer. For exarrple, it has been decided by the courts that AIIlS carriers are not qualified to serve in the Foreign Service in overseas posts or in the military. other issues of employment the courts will decide are: In what other areas is an AIIlS carrier not qualified? And what does it mean to be protected as a handicapped person if the employer can just turn around and say that you are not qualified? SUppose you are a surgeon who is HIV-positive; in the regular course of your business, it ma.y be conunon for you to cut yourself and bleed onto or into a patient. Does this mean you are unqualified to practice surgery? Consider the food service worker. '!here ma.y be an ample amount of evidence that the virus cannot spread from a food service worker to a patron in a food establishment, but there are also statutes and regulations dealing with cormnunicable diseases that govern practices in the food se:rvice industry. Is AIIlS a cormnunicable disease? Yes. Does a person's HIV status entitle him to protection as a handicapped person if the same medical condition disqualifies him from employment by reason of another statute or regulation? 'Ihese are all issues that will be litigated and are coming up on the horizon. But one thing is clear: the fact that one ma.y be considered a handicapped individual does not mean that he is inmrune from adverse employment decisions. It sinply means that there is a burden on the employer to show that the person is not qualified for the particular employment because he represents a risk to the health and safety of others, 19 or because of some other legitimate reason. 'Ihe employer would then have the burden to show that these shortcomings cannot be rectified by some reasonable acconnnodation. In other words, the fact that a person is handicapped does not unalterably shift the balance of power from one party to the other. It simply means that the person is entitled to his day in court and puts an ·onus on the employer to come up with some reason. I do not have a problem with that being the state of the law. I think it is time that we move on to the other issues, which I tend to identify as confidentiality, insurance, occupational health and safety, and testing. On confidentiality, I would say that it goes right along with the handicap discrimination question. '!here are a number of bills pending in Congress now that aim to deal with these issues collectively. The question is: To what extent does the need for confidentiality limit the goals that might othen~ise be achieved by having the info:rmation concerning an individual's HIV status? For example, if a hospital is in possession of ·HIV info:rmation, the hospital has an obligation of confidentiality. But does this obligation extend so far as to prohibit the hospital from requiring the info:rmation in the first place? What about the conflicting obligations that a doctor or hospital might have to disclose a patient's AIOO status to third persons known to be at risk? What about the patient, who is HIV-positive, and who exhibits an intention to continue having unprotected sexual relations with unsuspecting third persons? This is one of the legal questions that is at the forefront of internal debate at the Centers for Disease Control right now. Insurance: The question of insurance has to do with the bottom line, i.e., -,'Who is going to pay for AIOO?" So far, no State in the countJ:y has gone as far as the District of Coll.mlbia, which prohibits an insurance company from requiring an individual to disclose his HIV status. As a result, many of the companies who were writing insurance policies in the District have stopped doing so. It seems to me that insurance companies, being in the business of risk, are basically unable to operate in a rational fashion if they are not pennitted to inquire about a medical fact as inp:>rtant as an individual's HIV status. However, whether this means that there is a "market solution" 20 to the problem of supplying health care to AIL'S patients is an open question. Occupational health and safety: One of the IOC>St difficult issues concerns the health and safety measures that may be necessary in certain occupational settings. There is a hearing taking place today in the House Goverrnnent Operations Conunittee dealing with occupational health and safety standards in the hospitals. Some unions have petitioned OSHA for a rulemaking, and there is a lot of discussion going on about this. The primacy guidelines in effect at this ti.Ioo, for both hospitals and the focxl service industry in general, are those published by the Centers for Disease Control in November 1985, which have been subsequently updated, but there is a growing feeling that these guidelines are too lax. Finally, the issue of testing: When we use the tenn "mandatory testing, " we tend to conjure up images of a Goverrnnent official coming to our front door and forcibly subjecting us to an antibody test. Under the fourth amendment to the Constitution, however, which protects against unreasonable searches and seizures, the Goverrnnent would have to have probable cause to suspect that we were guilty of a crime before doing this. Being sick or being infected with the virus is obviously not a crime. So I cannot see anything like this happening. But what about testing in the military or the Foreign Sel:Vice, which is already taking place? '!his is mandatory testing, as is the testing that is conducted by the Red Cross before it introduces blocxl into the Nation's blocxl supplies. How about testing in prison or in the case of aliens seeking entry into the U.S.? These are all fonns of mandatory testing which are either taking place or will soon be taking place. So there is a sernantical problem here, and I submit that if we stopped calling it "mandatory testing" and started calling it "free testing," a lot of people would think it was a great idea and would come to get some of it. The real issue is whether we should start routine testing for marriage license applicants, hospital admissions, persons seeking treabnent at sexually transmitted disease clinics, and others. What is the value of having this infonnation? There is no doubt in my mind that there is great value in having this infonnation for a number of reasons. First, our infonnation about the prevalence of HIV infection is 21 extremely poor. We have been hearing the figure of 1.5 million Americans since Jtme 1986 at the Coolfont Planning Conunission. We also hear that the prevalence of infection is continually increasing, even exponentially, although we do not know how fast. If the number of Americans infected doubles every 12 months, and it was 1.5 million in Jtme 1986, does this mean that there are now 3 million presently infected? Even assuming 1.5 million infected, we are already looking at health care costs of $10 to $20 billion a year in the 1990s. What if we are wrong about the numbers involved? IX> we not need to know the size of the problem in order to have a realistic plan for coping with it? And what about the value of epidemiolCXJic data in general? Is it not helpful to know whether the city in which you are living has a significant prevalence of AIOO? How important is it to know that the AIOO population in New York derives mainly from needle users as opposed to the AIOO population in San Francisco? What kirrls of questions would we ask ourselves if testing revealed an tmexpected outbreak of new cases in a suburb of Cleveland or a rural community in Kansas? With limited dollars to spend on educational efforts, I think it is essential to target those areas in which the prevalence of HIV infection is the highest, and to aim those educational efforts at the relevant demographic group. Finally, does anybody doubt that each individual has the obligation to know whether he or she carries the infection and to respond appropriately? I believe that the majority of Americans share this belief. I also believe there are millions of Americans who would welcome the opporttmity to take the antibody test but who are afraid to do so andjor lack the initiative to see a doctor for that exclusive purpose. 'Iherefore, I think we should stop talking about mandatory testing and start talking about free testing that is available and routine in as many situations as possible. In the final analysis, routine antibody testing is a profound and ultimate fonn of education itself. For one thing, it drives the point home. In any event, these issues are all parts of a complex problem. '!he debate has tended to be dominated by a combination of public health experts and gay rights activists. Each of these groups has its institutional biases, as does any constituency. Gay rights representatives may fear 22 discrimination on the basis of sexual orientation arrl may feel a need for confidentiality in AIIS-related info:rmation that is not shared by the majority of heterosexuals. Public health officials may disfavor a wider approach to antibody testing because of the i.mnense burden that it will involve. I am talking about fiscal, bureaucratic arrl psychological burdens, to name a feM. For this reason, there has tended to be a consensus at the Centers for Disease Control arrl in the public health profession that testing is generally a bad thing. '!his is a consensus that I do not believe is shared, or ought to be shared by the majority of Americans. I conclude with the observation that there are enonrous political and institutional biases that are operating in this area, arrl I think we ought to identify these problems and move the debate into the general public. aJAIRMAN WASIIING:Im: I would now like to introduce Paul CUshing, Regional Director, Region 'Ihree, Office for Civil Rights, U.S. Department of Health and Human Services. PRESEN.rATICti OF PAUL C1EHIKi Ml\W\GER, REGICfi '1HREE OFFICE FOR CIVIT. RIGIIS, HHS MR. aJSHING: '!hank you, Mr. Chai:rman. I serve as Regional Manager for the Department of Health and Human Se:rvices' Office for Civil Rights in Region 'Ihree. OUr geographic jurisdiction includes five mid-Atlantic States, plus the District of Columbia. We are responsible for ensuring corrpliance with Federal civil rights statutes by recipients of Federal dollars from the Department. As an employee of Health and Human Services, I feel somewhat corrpelled to defend some of my coworkers in the Centers for Disease Control and Public Health Se:rvice. AIIS is l::x:>th a public health issue and civil rights issue. I think some of the comments and the ideas of leading us to quarantining individuals has not been a traditional way of dealing with 23 sexually transmitted diseases in the field of public health. I think we can reasonably classify AIOO arxl its transmissibility in that kind of catego:ry. Quarantining is not the way that we would approach it, either historically or currently, under current public health control practice. Secondly, CDC will not come out tomorrow or next year arxl say to us, "Golly, folks, we were wrong. AIOO can be transmitted casually." There is just too much evidence up to this point to demonstrate that it has not been. There have been intensive studies done both in New York City arxl in San Francisco, in homes arxl in settings where people live who have AIOO, who share common utensils, toothbrushes arxl bathrooms, arxl there has been no evidence of transmission in that area. People are looking for 100 percent certainty. No medical professional is going to starxl up arxl give you that kind of certainty. But you have a far greater risk of death or inju:ry to yourselves by getting into your cars this afternoon arxl driving yourselves home than you will ever have from getting AIOO through casual transmission. let me address some of the civil rights aspects. '!here has been some question, discussed by previous speakers, concerning that AIOO is a handicapping condition and that persons who have AIOO are covered by the Rehabilitation Act of 1973. By way of a little bit of background, in March of 1986 the Department requested some guidance from the Department of Justice (roJ) on whether a person suffering from AIOO, which is a syndrome arxl not a disease unto itself, whether a person suffering from the debilitating effects of AIOO, was protected by the law. Justice responded by saying that section 504 would offer protection to persons suffering from the debilitating effects of the syndrome, but those who were contagious would not be afforded the same protection. ro:r went on to state that individuals, out of fear of contagion, could discriminate against persons who are HIV-positive. In essence, section 504 would not apply where an individual is excluded from a program or an activity based on either a real or perceived ability of the individual to spread contagion. In March of 1987, the Supreme Court ruled, in School Board of Nassau County v. Arline, that an individual with a physical impainnent, resulting 24 from a contagious disease or tuberculosis, may be considered handicapped under section 504. While the Court noted specifically that it was not deciding the issue of a person carrying the HIV virus, I think same of the Court's statements in its ruling are illustrative. For example, the Court said, "Congress acknowledged that society has accumulated myths arrl fears, about disability arrl disease that are as handicapping as are the physical limitations that flow from actual inpainnent. Few aspects of a handicap give rise to the same level of public fear arrl misapprehension as contagiousness. '!he Act is carefully structured to replace such reflexive actions to actual or perceived handicaps to actions that are based on reason and medically sound judgments." By excluding individuals who would be perceived as being contagious or a threat to others, as was suggested by the OOJ opinion, there would be no opportunity to have that individual's condition evaluated. 'lhus, the Court states, "'!hey would be vulnerable to discrimination on the basis of mythology," precisely the type of injury Congress sought to prevent. '!he Arline opinion renders the OOJ memorandum at this point inoperable. It now becomes a major point of reference in discussing the civil rights protection that are afforded to :persons with Aiffi under Federal statutes. Of course, the i.Irplications of this ruling can be overwhelming for our Department. In view of the public health projection of 1.5 million persons infected with the virus, we are beginning to brace ourselves for what we expect to be dramatic increases in the m.nnber of corrplaints that are filed both by individuals and organizations. Already, the mnnber of ~in our Department nationwide, is 50. While most of these cases fall into the area of denial of services, we can reasonably expect that, over time, we will branch heavily into the area of employment. In consideration of what are really life arrl death circumstances around some of these cases, the Director of our agency, Audrey Morton, has ordered the staff to develop and i.Irplement an expedited corrplaint process that will reduce the administrative time involved in investigating these corrplaints. I expect this process to be in place by September 1st. 25 '!he Department, as a whole, is en::leavoring to develop a comprehensive policy on AIOO that will incorporate all aspects of our activities: education, prevention, treatment, research, arrl civil rights protection. '!here has been a variety of drafts prepared by the Public Health Service and the Assistant Secretary for Health that are circulating through the Department for corranent at this time. Presently, OCR is accepting arrl investigating complaints filed by persons or groups who believe they have been discriminated against because of AIOO. In addition, under certain circumstances, we will also investigate complaints where there is a denial of emergency treatment in hospital settings, based on the COmmunity Service Provisions in the HillBurton Act. 'lhese are found at 42 CFR, Section 124. '!here are a couple of assumptions here. One, the hospital in question has to be a recipient of Hill-Burton funds arrl, secondly, the individual, in order to have starrling in such a case, must be a resident or work in the service area of a hospital. We have not yet assessed the Title VI implications of the AIOO issue. Looming large before us is the fact that while blacks represent 12 percent of our nation's population, they account for 25 percent of individuals within the AIOO group. One last note I would like to present to the Connnittee as a challenge, if nothing else. '!he real cause of discrimination in the arena that we call AIOO is fear, arrl we have to begin to dispel that fear. We have to join with our coworkers in the public health field to educate the public about AIOO. Education, as we all know, at the present time is the only weapon that we have to combat the disease. It is the only weapon that we have to combat the spread of discrimination. If we allow the misinformation and the :nnnors that persist about the syndrome to continue arrl spread throughout our conununities, we are doing a great disservice to ourselves and a great disservice in an attempt to control this dreaded syndrome. SAC MEMBER 'IDl'Pl:K;: '!his is a factual question for any of the panel members who might be familiar with this. I think the witnesses here arrl Congressman Dannemeyer as well referred essentially to three gradations of potential conditions. 26 One would be that of someone who has tested sero-positive for the virus. Another one would be someone having essentially, a kind of AIOOrelated complex, and the third would be the actual AIOO itself. Now, in any of the work that COC has done in trying to trace both through sexual transmissibility and also through drugs ani I presume also passage through the blood stream, has there been any ability to establish statistical!y where the actual transmission of AIOO has actually come? Has it come primarily from people in the sero-positive category, or in the ARC category, or in the AIOO category? Where is the actual transmissibility primarily within the process? I have not seen that in public discussion, and that is going to be an important factual situation, at least as far as public health, if not as far as the civil rights, strategies are concerned. MR. M::IXNAID: Maybe I could just mention that one thing they have been able to explain is that intravenous dru.g users who contract the disease seem to exhibit a certain fonn of pnetnnOnia whereas gay nales who contract the disease seem to have a predilection towards Kaposi sarcoma. As far as whether a person who is sero-positive is more or less contagious than a person who has full-blown AIOO or ARC, I would think we would all be kind of shooting from the hip. 'lhe virus is contained in the T-4 lymphocyte, and a person with full-blown AIOO is pretty much out of those. So you could actually make a gcxxl argument that a person with fullblown AIOO is less contagious than a person who is merely sero-positive, although the virus probably has not multiplied sufficiently to fell the person who is merely sero-positive but asymptomatic. So it is possible that the person who is somewhere in between there, on kind of a bell CUIVe, nay be the most infectious. But nol:x:x:ly knows. MR. aJSHING: There are so nany variables. If you had full-blown AIOO, you would get a negative blood test because your inunune system is totally destroyed, and you are not going to pick up the antibodies. I agree with Bnlce, and I think if there was anyone here from coc, they would also agree that the point of transition from a sero-positive to ARC to AIOO, the point where they are most contagious would be very difficult to tell. 27 I think you even have to look at i.rxlividuals, once they have tested sero-positive, what their extended life becomes. Some i.rxlividuals die within 6 months; some i.rxtividuals last 5 years. Tilere are so many variables in each i.rxlividual's physical makeup including heM well they take care of themselves and many other factors that it is very difficult to say where it happens. Tilere is also an element of the efficiency of the transfer. Certain types of intimate contact are more efficient than others, regardless of the person's ability to transmit the disease. Needle-sticks. Tilere have been a couple of studies done of health care workers, the number is about 600 nCM through a COC-sponsored study, who have volunteered to be stuck with needles that contain the virus, or contain blood that is carrying the virus, and have not become infected. A figure of 1 or 2 out of that 600 have been affected. When you get a needle-stick, it may go into the top of the skin or into the vein. If you go into the top of the skin, it is not an efficient way to transmit the disease. When you mainline it into the vein, you are getting right into the blood system. When people ingest it, the hydrochloric acid in their stomach will kill it, if they do not have any other open sores within the tract or within their mouth. So there is a whole question of the efficiency of the transmission, which they just do not have a good handle on yet, aside from knowing that there are some ways that are more efficient than others. roL1.'.12\N R>LICE IEPARIMENl' INSPECIOR ABREXlii': I am the Director of Planning for the D.C. Metropolitan Police Department and have been assigned by the Chief of Police to fulfill the function of AIOO coordinator for the Department. Thank you for the opportunity to discuss our police department's response to the AIOO handicapped individuals. 36 Like most large police departments throughout the country, the D.C. Metropolitan Police Department has been dealin] with the impact of AILS on our operations for some time. '!he primary co:nc:en1 has been to protect our personnel from the possibility of contractin] the disease through contact with the bloc:x:i or body fluids of infected irrlividuals. As we developed policy in this area, the overridin] principle Chief Turner enunciated was that we would not discriminate in providin] police seJ:Vice to any person on acx::ount of his havin] this disease. '!his guiding principle grew out of the long histo:cy of this Department as the leader in the field of civil rights and conununity relations. Sensitivity and responsiveness to community concerns have been important values to this agency for many years, and it has been in that context that our policy has evolved. We have been greatly helped in this regard by our active conununity relations effort with the city's large gay community over the last 6 years. Startin] in 1981, well ahead of practically any other department in the country, when Chief 'l\lrner first appointed a liaison to the gay conununity, our outreach efforts have continually expanded, so that we now have a captain in each of our seven police districts designated as a liaison with the gay community. In addition, a gay community representative sits on the Chief of Police's Adviso:cy Council, and the Department actively recruits openly gay and lesbian persons as officers. This previously established reseJ:Voir of goc:x:i will and trust proved to be ve:cy valuable to us when the fear of AILS among our officers caused them to offend the organized gay community by wearing gloves and nasks in two incidents involving gay persons. We were able to work, through our existing channels of conununication, to assure the community of our continuing support and to obtain their cooperation in the preparation of a comprehensive policy on the wearing of protective equipment, which will be published ve:cy shortly. The police department of this city will continue its long histo:cy of nondiscrimination and aggressive community relations under the challenge of responding to the needs of persons with AILS. No one will be denied police seJ:Vice on account of his havin] AILS. 37 When persons with AIOO come into our custody, they are treated as any other person with a serious illness would be. If they require medical care, it will be provided for them; if they do not, they are treated as any other arrestee. I will be glad to amplify on any aspect of our policy that may be of interest to the Committee. ClJA1:Re1AN 'WASHINGIOO': Very well. You're not using gloves? IN.S~.ABREX:HI': No, not any more. ClJA1:Re1AN WASHINGim: All right. I would like to call on Mr. Reginald Jenkins, representing Hallen H. Williams, Director of the D.C. Deparbnent of Corrections. PRESENIM'!Cfi OF m. REITINAID JENKINS, m. JENKINS: I am Dr. Reginald Jenkins, the Chief Medical Officer for the D.C. Deparbnent of Corrections. '!he D.C. Department of Corrections, like many correctional facilities across the Nation, has had to meet the many challenges that AIOO presents to every facet of government. In 1986 our deparbnent fonnulated its first deparbnental order on AIOO. This deparbnental order addresses two main areas of concern, testing and housing, and is consistent with AIOO policies of the majority of correctional facilities across the United States. In addition, education for residents and staff has become of paramount importance in stemming the rising tide of hysteria surrounding this disease. OUr policy on testing prohibits mass screening of irnnates for the HIV virus. Testing is done within the established risk groups and at the discretion of the attending physician. '!his policy developed secondary to concerns with the difficulty of maintaining the confidentiality of the test results in a small prison community, as well as concerns with discrimination and other detrimental effects on irrlividuals' lives if results are divulged. OUr policy on housing states that persons who are asymptomatic seropositive will be housed in the general population. Irnnates who are 38 symptomatic sero-positive, that is those residents with AIIS-Related Complex, are housed in the infinnary where they can receive more intense medical attention, but are returned to the general population after their acute medical problem is corrected. Residents who meet the Centers for Disease Control definition of AIIS are housed in the locked ward of D.C. General Hospital where they can receive the level of IOOdical attention required. · With the exception of AIIS patients at D.C. General Hospital, our policy protects residents from being identified as would occur if they were to be segregated. It also recognizes the fact that small correctional facilities are unable to adequately provide separate but equal programming for irnnates who are identified as having AIIS. Many new problems have been presented since the original departmental order was written, and the Department is currently engaged in exchange with other governmental agencies to resolve them. '!he Department is conunitted to refinement of its p::>licies on AIIS and will continue to address issues affecting our resident population. CEAIRMAN WASHI:NG!m: We now have Dr. Reed Tuckson, the distinguished Corrnnissioner of D.C. Public Health Service, who is appearing for himself. PRESENIWI.'ICW OF m. REED 'IUCI(S(E, ~lONER, D.C. :mm:J:C IJEATIIB SERVICE IR. 'IUCIrtance that the open debate be, number one, an infonned debate but, number two, that it be a well-reasoned and active debate. ~WASHING!m: You have given the Committee and the people assembled here a very goc:x:l perspective in tenns of education --I remember one citizen who was right on target with you, she was talking about education and traini:rg, and you glorify the two dimensions and initiatives. We appreciate the words of all of the panelists that came representi:rg different programs and efforts of the District government. We are pleased to know that the District goverrnnent is not only aware but is movi:rg in a positive way to develop a program that will treat the very difficult problems presented by AIOO. MR. 'lOPPING: The concern I have is how the resources, that will be designated for combatti:rg this serious problem, will and should be distributed, and what forces will detennine distribution. In the early stages of the civil rights movement, our main task was to educate --it was very general. We had to educate, everybody had to be educated. Then it began to narrow down, and the question became who would 42 be responsible? How do we get to focus the resources to get the biggest retmn for the buck? That then led to such things as getting civil rights enforcement machinery. We got to the place where we actually began to set up case files and to give money to send people out to see what was happening. Finally, we got to affinnative action, which gave some active rather than passive linpetus from the managers, like yourselves. You aptly identified the dilemna in this area of the public health aspect, the aspect of protecting and ensuring the civil rights of all citizens. I see the discrepancies and gaps, the varying rates of prevalence among different groups in the connnunity, but I see no indication of where the funds were going, except the claim that we have got to have more funds. Everybody has got to have a bigger budget. Somebody mentioned this morning that in developing educational materials now, it is greatly biased in the direction of a gay connnunity problem, primarily because they were the most articulate in the early stages, the most affluent, and the most educated, so that you got a tremendous amount of very gocxi material on that part of the problem from a private source. later statistics, however, show the huge preponderance of this problem among minorities, among women, and you go down the usual line of victimization. My question is this. Could you give us any indication on how you see these developments and how in your program you are going to go from the general to the specifics? IR. 'l'UCKSCN: We are caught in a very difficult catch-22 here. When we first noticed the beginning of this disease, persons from Haiti were singled out as being a major source of plague in this connnunity. There was a very real and very dangerous sort of discrimination against persons of Haitian descent. This initial suspicion turned out to be incorrect and unfounded. I think that people of color are particularly concerned about being labeled as the cause of this disease. People of color, we have noticed, : have been very, very sensitive about some of these issues, especially as the focus, from an epidemiological perspective, iseem to indicate some origins on the Continent of Africa. People of color are particularly sensitive about being labeled in a negative way about this disease. So we 43 find that the black conununity, in particular, has been concerned about how this issue is addressed, and would prefer that it go away. We also \.U'lderstand that when this disease was first noted, it was so oveJ:Whelmingly manifested in the homosexual and gay conununity, it was not thought to be a problem for the black conununity. It was thought to be a problem of gay white males, in particular. For that reason, it probably did not involve the black community. Unfortunately, that is not the case, and this disease is spread tantamount throughout our society. It is only recently that the major leadership in the black community has focused in on the issue. In my opinion, we have not had, until recently, the kind of demonstration of interest and concern by the major leadership in the black conununity about this disease. We have not focused in on it as an issue for the major civil rights leaders in this country. Now I am happy to say that it is, in fact, on the agenda of the NAACP, the Southern Clrristian leadership Conference, and the National Urban Coalition. We are happy about that. As regards how public funds are expended, you are right that the gay community was a much better organized political community, at least in this tovm, regarding this disease. '!hey certainly were very thoughtful about their approach and willing to organize themselves into voluntary public/private partnership efforts. '!hey raised a lot of money, and were thoughtful about systems of care delivery and how they could supplement what the government was doing. It is clear that N drug abusers are not well-organized in the sense of being able to provide and advocate for their constituency. '!hey may be well-organized in tenus of distribution systems for illegal contraband, but that is about as far as it goes. It seems that black clergy is reluctant to speak about this issue from the pulpit and in the envirornnent of the church. Probably for this reason, some of the traditional institutions available to the black conununity have not come fo:rward, heretofore, to organize themselves. '!he final answer to your question, then, is in tenns of our education efforts. From a marketing perspective, we are sophisticated enough to know that you market anything by \.U'lderstanding the ilnportance of the subsegments of markets. You do not speak to the Hispanic community without 44 understanding the importance of the image of the macho male as a role model. You do not market to the black connm.mity with the same message that you would have for the gay connm.mity because we know' that the black community is an overwhelmingly religious cormnunity am they don't want to hear certain things presented unless it is presented very, very carefully and in certain ways. Given the demographics of D.C. being 75 percent black am minority, think that the money that we spend for education for the city ultimately becomes, by definition, education to the black cormnunity. The gay connnunity, I think, has done a fantastic job on its own am with the government's support. our efforts are going to be targeted much more directly now towards the larger connnunity, am also be very specific. Although I appreciate the role of advocacy, the city government does not feel that it needs to be reminded of the need to watch the distribution of money am to make sure that it goes to all the segments of the connnunity that need it. Since the numbers of people that are going to have this disease are people who are from the IV drug abuse connnunity am the underground of our city, it becomes just so hard to organize that system. ~WASH1NGIOO': let me ask you, IX>ctor, have you had occasion to make this speech in any of the churches? rn. 'IUCKSCN: I have been encouraged. We have spoken to, and had the opportunity to address several hundred clergy. ~WASH1NGIOO': Baptist churches am clergy? rn. 'IUCKSCN: Yes, Baptist ministers. Not within the pulpit, but in the back room. I am encouraged by the response. ~WASH1NGIOO': I mean on Sunday morning at 11:00 o'clock. rn. 'IUCKSCN: We are at the stage where the clergy have been spoken with, and are convinced of the need to have this happen. I have not personally spoken at 11:00 o'clock, but I do see that corning, and I do see that the ministers are feeling their responsibility now. I want to be clear; I am extremely encouraged by the responsiveness of the black church, in particular. SAC MEMBER BANRS: Inspector, how does an officer detennine, when he or she is making an arrest, whether the arrestee has AIOO. 45 INSJ.lECRlR ABREX:Hl': Generally, the officer does not kr'l<:M rmless the person tells the officer. No:rmally, we c:x:xne to kr'l<:M when an irxtividual, for whatever reason, thinking perhaps that we would release the person or for whatever reason, tells the officer. '!hat is about the only way that an officer comes to kr'l<:M. MR. Bl\NRS: In the incidents that ooc:urred with regard to the use of gloves and masks, were those persons identified as AIIl3 victims before the arrests were made? ~ABREX:Hl': '!here really were two incidents, as you are probably aware. '!here was an incident where we were corrlucting a raid on an illegal after-hours ABC establi.shnEnt, Alcoholic Beverage Control establishment, where there was no kr'l<:Mledge on the part of the officers involved that there were any AIIl3 patients there. '!hey essentially acted because they knew that the place was patronized primarily by members of the gay community. 'lhe second incident, of course, was in front of the White House when there was a demonstration during the National Conference on AIIl3 at the Hilton. We were told that sane of the demonstrators, who were asking to be arrested, did have AIIl3, not a large percentage of them, but sooe of them. We were not told which ones; so that was the dilennna that the officers felt that they were confronted with at that tine. MR. Bl\NRS: Dr. Jenkins, you irxticated that there were three, I think, categories given to persons with AIOO in the Corrections Deparbnent, one for those who are identified as AIIl3 victims in the hospital, one for those who are suspected of having the vinls, and one for those that obviously have the vinls but have some illness that is treated in the infinnacy. m. JmKINS: Y~. MR. Bl\NRS: You did not irxlicate how many of your population fall within those categories. Is that infonnation available? m. JmKINS: '!he Departnett of Corrections has a total population of about 7,000 irnnates. At present, we have two AIOO patients who are housed at D.C. General Hospital. Since 1985, we have had a total, to date, of 12 deaths secondary to AIOO. We keep a nnming COW'lt on the number of people per year who are sero-positive, and for the current year, of about 100 46 people tested, approximately 48 of them are sero-positive, or are carrying the vinls. To date, IIK>St of those people are healthy. MR. BANRS: How do you detennine risk groups? m. JENKINS: If they give a histo:ry of N drug abuse, homosexual activity or having been transfused, if they have a sexual contact who is known to be sero-positive or known to have AIOO. MR. BANRS: Dr. Tuckson, my question to you is somewhat general. You made a strong point that discrimination against a person with AIOO would deter persons who had the possibility or had symptoms from identifying themselves or even taking tests because they would be fearful of being discriminated against. In tenns of public policy, a position against discrimination carries with it, I presume, either a medically defined limit or some infonnation that is generally acx::epted in the medical conununity that there are no dangers or few dangers to the general population in the nonnal contact with AIOO patients. m. ~= Yes. Basic scientific evidence that underlies the answer to your question is that, again, this disease is transmitted only in ve:ry direct and extremely intimate ways. While this is a ve:ry lethal viniS, it is one that you have to go out of your way to an extraordina:ry way to encounter. So a person who is a positive for the viniS or who has the disease is not a threat to his fellow human beings unless one is intimate with them. The only caveat to that is a special kind of intimacy that comes with the work of persons who are in contact with blocx:i and bodily fluid such as our emergency ambulance workers or, in some cases, the police deparbnent and, of course, hospital personnel. Even there, it is only if they are in extreme direct contact, have contact with the blocx:i of that individual. Thus, it is extraordinarily rare, aliiK>St unheard of, for a health care worker to be exposed to this viniS in the course of what they do. Therefore, the point is that --you are right -it is inappropriate to discriminate against a person with the vinls, even with the disease, in the general population. MR. BANRS: That, of course, means that the education challenge is more difficult, because if the disease is transmitted only through the most 47 intimate contact, it is the description of the intimate contacts that is controversial and some wish to avoid to talk about in public. m. ~= Precisely one element of the dilemma. OUr sw:vival hinges on our ability not to be queasy about real life. ~-GALIBER.: Dr. Jenkins, I have been reading a paper given by Mr. Williams, the head of the Department of Corrections. He mentioned that at the D.C. Detention Facility, 375 tests were perfonned and 187 out 375 were positive. I am just worrlering if your figures might be drastically off since you had a captive audience and did not corrluct similar studies at other facilities. 'Ihe other thing I wanted to ask you is, ''what is the position of the Department now, as it relates to what Dr. Tuckson said, in giving out condoms?'' m. .JENKINS: That sounds like a loaded question. As for the first part, the total number of people tested in the Department since the test was licensed is roughly 300 and some people. We have that documented by records. I am not aware that 187 of those are positive; I am not sure. rrectional system, keeping the sero data about saneone confidential is sometimes difficult. aJAIRMAN WASHnClt'tl: Has anyone made any effort to relate overcrowding to the problem of this or any disease factor? It just occurred to me, as you were talking, that is your big problem. m.. .JmKINS: overcrowding is going to tax all of the systems, including the medical system, including the medical SUl'.Veillance. So my answer to that would be yes, it does impact on this disease as well. rmection with .AIOO. If you had the authority to do so and more money, what would you, based upon your experience, do to inp:rove or change what you are presently doing, if anything. Any of you. Mr. Hart. MR. BARr: What I would do is what we have all been talking about, it is to educate. Spend the money on finling whatever IOOChanisms to reach the specific cultural groups 'Which we are missing currently. I would focus the funding on that, education, because it is education that will lead to a cbange of behavior, the behavior as opposed to the groups. Unfortunately, in the beginning, we were focusing on this group and that group and the other group, and that has placed, I think, a pri.Inary barrier to our education, because now we have got to educate people beyond the group thinking to behavior thinking, and then we have got to educate them further on t:cying to change that behavior. '!hat is the focus that I would take. aJAIRMAN WASIJilClm: I take it that is something that all three of you would relate to, education and trainirg. If you had more money, more resources, you would have more education, more trained people to deal with the problem. INSPFX!'IOR .ABREX:Br: Certainly, education is ve:cy important in the police department. Part of the problem that we do have is officers who have great fear of the possibility of contracting this disease from the 53 many kinds of often difficult people that we deal with, and the officers are very fearful of that, and legitimately so. I think providing them with good education is necessary, which the Connnission on Public Health has been doing for us. But they have a very small staff and they are not able to do it as nn.1ch as we would like or they would like. Providing good education to our officers is certainly a very important part of this, and that would be one thing we would have to spend money on. '!he other thing, of course, would be protective equipment for the officers when they do encounter blood or body fluids at the scenes of accidents and things of that nature. '!he Chief has made money available for that, so we really do not need any additional funds for that, to my knowledge. m.. .JENKINS: At the Deparbnent of Corrections, we have been doing our own AILS education in the medical field initially, and the need to have an expanded educational program, involving govennnent contractors such as KOB.l\. Associates and the Whibnan-Walk.er Clinic, became important. '!hey have been giving seminars to the residents and have conducted AILS training courses with our staff members. I cannot stress enough the importance of educating both residents and staff about this disease, so that there is more rational thinking about it and less hysteria. MS. GALIBER: Is that training going on behind the walls, too? m.. .JENKINS: Yes, and we are presently m:wing to augment that program, because we want to get the message out to everyone. MR. CDNNEUX: I want to supplement what was said before relating to the incidence of the occurrence of AILS in hospitals. Besides the underreporting and the fact that it is illegal behavior, the fact that prisoners come and go further complicates the matter. '!here is no real handle on to what extent, within prison walls, AILS is spread. '!here is only one study that I know of, and only one, that was done by the state of Maryland, involving 137 long-tenn irnnates, longer tenn than the AILS crisis has been. I believe out of the 137 individuals, under 10 became sero-positive which is, admittedly, a small population but, nevertheless, is a disturbing result. 54 To retum to corrlams, as you probably know, Dr. Jenkins, the city of New York arrl the state of Vennont have policies supportin;J the dissemination of co:rrlams in prisons. The city of New York makes the co:rrlom available to, I guess, irrlividuals in high risk groups who seek it or are advised to use it through the medical counselin;J process. I am worrlerin;J if that type of mechanism, like the one instituted by the city of New York, might be the way to go. '!bat is to say, it is nade available to those irrlividuals in high risk groups who asked for or were given the option to use rather than to each arrl every prisoner who wants to pick up a few. Is that possibility a way out of this dilenuna? IR. JmKINS: When the issue of co:rrlams came up, I discussed the issue of co:rrlams with both Vennont arrl New York City. Their deroographics are different. '!heir population is just different from our population. '!he size of the facilities are different. For instance, I think Vennont had 600 irnnates, we have 7,ooo. They have scmethin;J like three or four sere-positives in their population. So the populations are really different. In these jurisdictions, they have laws which prohibit homosexual activities in the prisons, arrl I asked them, "How do you reconcile having laws on the books arrl bein;J a correctional facility, whose purpose is to prepare people for the outside, arrl give them co:rrlams? There would be no other reason for condoms other than sexual activity." The only thin;J they could come up with is that it was the best medical judgment. I agree; it is the best medical judgment, but you have to keep in mi:rrl that there are other ways to prevent contractin;J this virus than giving out co:rrlorns. I think the irnnate population have changed their behavior because they know that there is a risk of contracting this disease by engaging in sexual activity. I have seen this reflected in their behavior, so there is behavioral change. Whether we give out co:rrlams or not, we should still ask the question, "Are they going to be used?" The other thin;J to consider is that there are other ways to practice safe sex than usin;J condoms, arrl we could go into the concept of frottage and sexual practices other than penetration, which do not place them at high risk. 55 I think that is a point that hinges aroun:i whether or not we give out condoms. But there are other ways to avoid getting AIIl3 and follow the laws that we have set down. SAC MEMBm axlm: I think we have been inuneasurably aided today by the panel and the earlier panel in getting a broad picture of the AIIl3 question. It has helped us, I think, to separate out that which is very significant, very grave in the whole AIIl3 picture: what is a responsibility of the civil rights community which is our responsibility; that AIIl3 education is important, but it is not our direct responsibility; that medical treatment, health prevention, and other aspects of handling the AIIl3 question can and should be identified, though they are not our responsibility. I think it will help us, in the long run, to be able to focus on when is it that a person who suffers from AIIl3 is deprived of his rights or her rights. I think we have to, sooner or later, came to detennine what our responsibility is as an Advisory Committee to the United States Commission on Civil Rights: not public health education, not any other education, but civil rights and the deprivation of rights. ~WASIIINCID:E: '!here were varying points of view here, varying approaches. I think the thing that stands out is that education and training appeared to be the great area for the solution of the problem, generally. Obviously, it has a medical base, as well. But in tenns of approaching it and controlling it, the educational feature seemed to come through from both panels as prevailing and as a point of view that must be disseminated throughout the entire community. Thank you very nru.ch, gentlemen and ladies. We appreciate your contributions. 56 ~A-D.C. OJde Arm. § 6-121, (S\lR>. 1987) Persals believed to be carriers of oamuni.cable diseases -Examination; diagrvJsis; detention for quarant.i.oo; di.sc:ilarge; plblic hearin}. § 6-121. Same -Examination; diagnosis; detention for quarantine; discharge; public hearing. It shall be the duty ofthe Director ofthe Department of Human Services to make or cause to be made by a physician such examination or examinations of such person as may be necessary to determine the existence or nonexistence of such communicable disease in such person or whether such person is a: carrier of communicable disease. The diagnosis resulting from such examination or examinations shall be reduced to writing and signed by such examining phy sician within 10 days after the removal ofsuch person to such place or institu tion and a copy thereof shall be filed in the office of the person in charge of such place or institution and a copy in the office of the Director ofthe Depart ment of Human Services. Ifsuch diagnosis does not disclose that such person is affected with such communicable disease or that such person is a carrier of communicable disease, such person shall be discharged from such place or institution forthwith. Ifthe diagnosis does disclose that such person is affected with such communicable disease or that such person is a carrier of communi cable disease, the person in charge of the place or institution to which the infected person has been removed shall, subject to the provisi9ns of§ 6-120 detain such person for such reasonable time as may be fixed by rule or regula tion under the authority of§§ 6-117 to 6-130 as is deemed necessary in the interest of public health and safety for the isolation, quarantine, and restric tion of movement of persons affected by the particular communicable disease or of persons found to be carriers of the particular communicable disease, unless sooner discharged by the Director of the Department of Human Ser vices or the Superior Court ofthe District ofColumbia. A person so detained, however, may apply at any time to the person in charge of such place or institution for his discharge, and the person in charge of such place or institu tion shall deliver the application for discharge to the Director of the Depart ment of Human Services, who shall give to such person an opportunity to be heard before the Director ofthe Department of Human Services. Ifafter hear ing held by the Director ofthe Department ofHuman Services, the Director of the Department of Human Services be of the opinion that such person is not affected with such communicable disease and that such person is not a carrier of communicable disease, then such person shall be discharged. Ifdenied his discharge such detained person may apply to the Superior Court of the Dis trict ofColumbia for such discharge and the hearing on such application shall be in or out of the presence of the detai~ed person, in the discretion of the Court. Only such persons as have a dJect interest in the case and their representatives shall be admitted to any hearing held pursuant to this section or§ 6-120: Provided, that ifthe detained person shall request a public hear ing then the general public shall be admitted thereto. (Aug. 11, 1939, ch. 691, § 5; Aug. 8, 1946, 60 Stat. 920, ch. 871, § 2; Aug. 1, 1950, 64 Stat. 393, ch. 513, § 1; July 8, 1963, 77 Stat. 77, Pub. L. 88-60, § 1; July 29, 1970, 84 Stat. 570, Pub. L. 91-358, title I,§ 155(a); 1973 Ed.,§ 6-119c; Feb. 21, 1986, D.C. Law 6-83, § 3(c), 32 DCR 7276.) Section references. serted "rule or" near the middle of the fourth 'Ibis aec:tion is referred to in I§ 6-117, 6-118, sentence. 6-126 and 31-2406. Legislative history ofLaw 6-83-See note Effect ofamendment. -D.C. Law 6-83 in· to § 6-117. 57 AJ::perXl.ix B--D.C. Q:de Arm. §§ 6-2801 to 6-2806 (8\JR>. 1987) ,Aim Health care. CHAPI'ER 28. AIDS HEALTH CARE. Sec. 6-2801. Definitions. 6-2804. AIDS Program Coordination Office. Sec. 6-2802. Comprehensive AIDS Health-Care Re6-2805. Confidentiality of medical records and sponse Plan. information. 6-2803. Residential health-care facility. 6-2806. Rules. § 6-2801. Definitions. For the purpose of this chapter, the term: (1) "AIDS" means acquired immune deficiency syndrome or any AIDSrelated condition. (2) "Council" means the Council of the District of Columbia. (3) "Director'' means the Director of the Department ofHuman Services, established by Reorganization Plan No. 2 of 1979, approved February 21, 1980. (4) "Families" means persons who are related by blood, legal custody, marriage, having a child in common, or who share or have shared for at least 1 year a mutual residence and who maintain or have maintained an intimate relationship rendering the application of this chapter appropriate. (5) "Mayor" means the Mayor ofthe District ofColumbia. (Mar. 25, 1986, D.C. Law 6-102, § 2, 33 DCR 796; June 10, 1986, D.C. Law 6-121, § 2, 33 DCR 2451.) Temporary addition of chapter. -D.C. Law 6-102 enacted§§ 6-2801 through 6-2806, comprising chapter 28 ofTitle 6. Section 8(b) of D.C. Law 6-102 provided that the act shall expire on the 180th day after its having taken effect. Emergency act amendment.-For temporary addition of section, see § 2 of the AIDS Health-Care Response Emergency Act of 1985 !D.C. Act 6-123, December 30, 1985, 33 D.C.R. 320). Legislative history of Law 6-102. -Law 6-102 was introduced in Council and assigned Bill No. 6-358, which was retained by council. The Bill was adopted on first and second readings on December 17, 1985, and January 14, 1986, respectively. Signed by the Mayor on January 28, 1986, it was JlSSigned Act No. 6-130 and transmitted to both Houses of Congresa for its review. Legislative history of Law 6-121. -Law 6-121 was introduced in Council and assigned Bill No. 6-306, which was referred to the Committee on Human Services. The Bill was adopted on finJt and second readings on Man:h 11, 1986 and March 25, 1986, respectively. Signed by the Mayor on April 15, 1986, it was assigned Act No. 6-156 and transmitted to both Houses of Congress for its review. Short title. -The f1111t section of D.C. Law 6-121 provided: "That this act may be cited as the 'AIDS Health-Care Response Act of 1986'." Supersedure of Law 6-102. -Section 8 of D.C. Law 6-121 provided that the act shall supersede the AIDS Health-Care Response Temporary Act of 1985. 58 § 6-2802. Comprehensive AIDS Health-Care Response Plan. (a) Within 6 months of December 30, 1985, the Mayor shall develop and present to the Council for its review and comment a comprehensive AIDS Health-Care Response Plan for the District of Columbia. The plan shall include, but not be limited to, the development of short-term and long-term goals and schemes for administrative coordination by District government agencies, educational programs, prevention methods and programs, a compilation of private sector services available to AIDS patients, medical research and information gathering, outpatient and inpatient health-care services delivery, social services delivery, exploration of the feasibility of establishing a separate compensation rate for District employees working in the health-care treatment facility or facilities contemplated in § 6-2803, housing, and identifying other general services needs. (b) The Mayor shall update annually the comprehensive plan mandated by subsection (a) of this section. (Mar. 25, 1986, D.C. Law 6-102, § 3, 33 DCR 796; June 10, 1986, D.C. Law 6-121, § 3, 33 DCR 2451.) Cross reference. -As to Mayor's issuance