Vague state laws keep enforcement sketchy
Whose needs come first: the provider or patient?
Should a health care worker with a communicable disease be subject to special restrictions on his or her practice and privacy no matter how low the risk of transmission to patients?
Since 1991, following the report of six cases of HIV transmission from a Florida dentist to his patients,1 U.S. health care workers infected with HIV or hepatitis B virus (HBV) are legally required to be reviewed by an expert panel to determine whether they can continue to practice "exposure-prone procedures." If the panel determines the worker can continue exposure-prone procedures, they must inform patients of their status before performing such procedures.
However, due to variations in state laws and vague definitions of key criteria, enforcement of the regulations, which are administered by the Centers for Disease Control and Prevention (CDC) in Atlanta, is sketchy.
Now, Georgetown University law professor Lawrence Gostin, JD, LLD, co-director of the Georgetown/Johns Hopkins University Program in Law and Public Health, is arguing that the policy is outdated. Gostin argues that the policy does little to protect the public from harm, while at the same time, poses significant and unfair hardships for infected health care providers.
Following the release of the CDC guidelines in 1991, Congress later that same year required states to adopt the guidelines or their "equivalent" as a condition of receiving public health service funds.
But, "considerable evidence has emerged since 1991 suggesting that Congress and the CDC should reform national policy," Gostin writes in the Oct. 18 issue of the Journal of the American Medical Association (JAMA).2 "The data demonstrate that risks of transmission of bloodborne pathogens in the health care setting are exceedingly low. At the same time, implementation of the policy at the local level poses significant human rights burdens on health care workers."
Transmission rare since early ’90s
In 1990, at the time of the Florida cluster, little information was available on the actual risk of transmission of HIV and HBV in the health care setting, continues Gostin. Since that time, data from reported cases, retrospective investigations, and national HIV/AIDS surveillance have shown the risk to be extremely low.
In addition to the Florida cases, in which the mode of transmission was never determined, only one other case was reported in 1997, and that involved an orthopedic surgeon in France with advanced symptomatic but undiagnosed disease, Gostin writes. In 2000, one possible case of nurse-to-patient transmission in France was reported. Comprehensive retrospective investigations involving HIV-positive U.S. physicians performing invasive procedures have identified no additional cases.
As of July 1999, the CDC analyzed HIV test results for more than 22,000 patients of 63 different HIV-infected health care workers with no documented case of transmission. State health department follow-up of reported cases of HIV and AIDS also haven’t turned up additional cases. Health care worker transmission of HBV, while higher than that of HIV, also has been extremely rare since the early 1990s.
The U.S. Supreme Court has qualified HIV infection and AIDS as disabilities protected under the Americans with Disabilities Act. Persons with a qualified disability may not be denied employment unless their disability poses a "significant risk" to the health and safety of others that cannot be resolved with "reasonable accommodations" by the employer.
The low-risk of transmission does not meet the standard of "significant risk" set by the court, Gostin claims. Using standard hospital infection control precautions, the risk of transmission already is low. Given that new HIV therapies also may reduce an infected person’s viral counts to below detectable levels, the risk is even more remote.
In addition, Gostin states, the doctrine of "informed consent" requires the disclosure of "material risks" to patients, not remote risks.
"Health care workers ordinarily are not required to inform patients about their personal health status or disability [whether temporary or permanent]," Gostin continues. "For example, health care workers who have depression, have had insufficient sleep, or have had alcoholic beverages at a social occasion in the hours preceding a patient encounter are not ordinarily required to disclose these factors to patients."
The above situations pose a risk to the patient that is at least as great, if not greater than, the risk of HIV transmission, Gostin argues. But, the burden on infected health care workers is much greater. The CDC guidelines have been used to support court decisions restricting the practice of health care workers even beyond the measures recommended by the center.
In addition, the existence of the policy has encouraged judges to allow hospitals to institute policies requiring health care workers to be tested for HIV as a condition of employment.
Under the current guidelines, providers may decide not to seek a diagnosis or treatment for their condition because they fear discrimination, loss of their livelihood, professional status, and self-image. This is not only bad for the worker, but may pose even more of a public health threat, he states.
The focus of national policy and CDC guidelines should be on ensuring that protocols for preventing the transmission of bloodborne pathogens are appropriately instituted and enforced, Gostin argues. The blanket restrictions on practice of HIV- and HBV-positive providers should be removed.
"A new national policy, focused on management of the workplace environment and injury prevention, would achieve high levels of patient safety, without discrimination and invasion of provider privacy," he writes.
Policies not enforced
Gostin makes excellent points in the JAMA article, but the current policy’s main flaw is that it is essentially unenforceable in a uniform manner, believes Mitchell Katine, JD, adjunct professor of HIV and the Law at South Texas College of Law in Houston.
"The practical application of the law is only there to be used to protect the public’s sense of security when someone who is HIV-positive goes public and would endanger the safety feeling that the public has," Katine says.
The CDC guidelines do not require testing of health care workers for HIV and/or HBV, so enforcement of the expert review panel and disclosure to patient requirements is incumbent upon infected health care workers publicly revealing their status or revealing it to their employers.
In the case of Bradley vs. University of Texas MD Anderson Cancer Center,3 the first test case of a health care worker reassigned due to his HIV status, Brian Bradley, a surgical technician, sued his employer after he was called before an expert review panel and reassigned to a nonpatient care job only after revealing his status in an article published in the Houston Chronicle, Katine explains.
"Brian Bradley was a friend of mine; he has since died, and he will tell you that the only reason [the hospital] did this was because he went public in the Chronicle," Katine relates.
Several of Katine’s law students researched this topic for articles in numerous law journals and have not found the policy to be enforced at many hospitals, at least in the Houston area, he adds.
"Very few, if any, hospitals in the Houston area have any type of procedure, they don’t even have an established expert review committee," he continues. "It is, in reality, a don’t ask, don’t tell situation. They aren’t asking and no one is telling."
That may be because the CDC, in certifying state policies "equivalent" to the guidelines, allowed states wide latitude in deciding when to convene an expert review panel and how they could define "exposure-prone procedures." Many states have policies that call for evaluation of the situation on a case-by-case basis.2
In Pennsylvania, for example, hospitals are required to assemble an expert review panel after discovering an employee’s status. The panel must then decide what constitutes an "exposure-prone procedure" for that health care workers’ practice, and should then decide whether the worker could continue to practice as before, should be restricted to non-exposure-prone procedures, and whether disclosure to patients should be required.4
In Texas, the hospital must specify a list of designated exposure-prone procedures, Katine states. Until a hospital has designated a procedure "exposure-prone," it does not fall under the regulation, no matter how invasive the procedure is.
"You could argue that there are no exposure-prone procedures because they have not been identified," he explains. "Our statute follows the CDC recommendations and says that health care professionals who are HIV-positive should not perform exposure-prone procedures, without going to an expert review panel and then getting the consent of the patient. But, that assumes that the restricted procedures have been identified. If they haven’t been identified, then, technically there is nothing that an HIV-positive health care worker could not do."
If hospitals were truly concerned that allowing HIV- and HBV-positive health care workers to practice, they would more aggressively seek to test all employees who perform invasive procedures, Katine believes. That most are not doing so indicates the policy is now more about public relations than protection, he indicates.
CDC is revising guidelines
The CDC currently is in the process of reviewing its guidelines on management of infected health care workers, but it is too early to predict whether the guidelines will withdraw the recommendations for expert review panels and disclosure, says Kitty Bina, a CDC spokeswoman in the National Center for STD, HIV, and TB Prevention, also located in Atlanta.
"As more scientific data have become available, we have taken that into consideration in examining the guidelines, but, at this point, we couldn’t comment on whether there will be a change," she says.
Regardless of any changes in the guidelines, most hospitals would, and should, be reluctant to completely abandon policies allowing them to restrict the practice of health care workers with infectious diseases as serious and life-threatening as HIV, counters Bob Wilson, JD. Wilson is chair of the North Carolina Bar Association’s health law section, which works with the medical community to develop medical and legal guidelines, and has published educational brochures about HIV and the law.
"This whole argument of a new national policy on health care workers is a difficult question," he says. "It really boils down to competing interests of the patient vs. the health care worker. In my own view, having represented hospitals and physicians in the context of their business, I would still very much be concerned about even a minimal risk to the patients."
In talking to a co-worker who also is a health care professional, that person indicated to Wilson that she feels health care workers would feel an ethical obligation to inform patients of their status if they were performing invasive procedures when there was even a minimal chance of transmission of a fatal illness, he says.
"Even a risk as low as it has been documented in this article, there still is a risk," he says. "I would not want to be defending that hospital or health care worker in a lawsuit involving a patient who felt he or she should have known but was not told. If you follow the guidelines as they are now, you are putting patients’ needs first and health care workers second. And, in the business of health care that is what you do."
References
1. Centers for Disease Control and Prevention. Update: transmission of HIV during invasive dental procedures: Florida. MMWR Morb Mortal Wkly Rep 1991; 40:377-381.
2. Gostin LO. A proposed national policy on health care workers living with HIV/AIDS and other bloodborne pathogens. JAMA 2000; 284:1,965-1,970.
3. Bradley v. University of Texas MD Anderson Cancer Center. 3 F.3d 922, 924 (5th Cir. 1993).
4. Pennsylvania Department of Health Bureau of Epidemiology and Bureau of HIV/AIDS. Guidelines for Preventing Transmission of HIV and Hepatitis B from Infected Healthcare Workers to Patients. Harrisburg, PA; 1993.
Sources
• Mitchell Katine, South Texas College of Law, 1303 San Jacinto St., Houston, TX 77002.
• Bob Wilson, Chair, Health care practice, Smith, Helms, Mulliss & Moore, LLP, 2800 Two Hanover St., Raleigh, NC 27601.
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content