Texas Department of Health Considers Including Patient Names in Confidential HIV Case Reports

By Elaine A. Lisko, Health Law & Policy Institute

Confidentiality is key to protecting a person’s interest in his or her medical records. This is especially so where those records disclose that the person is HIV+ or has AIDS. Even with heightened awareness of the limited means of transmission of the virus, discrimination and the potential for discrimination abounds.

Texas law recognizes the need for confidentiality in HIV cases. Section 81.103(a) of the Texas Health and Safety Code provides that, "[a] test result is confidential." A "test result" is defined as "any statement that indicates that an identifiable individual has or has not been tested for AIDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS, including a statement or assertion that the individual is positive, negative, at risk, or has or does not have a certain level of antigen or antibody." Tex. Health & Safety Code § 81.101(5).

In spite of the cloak of confidentiality around one’s HIV status, Texas law allows release of test results to certain entities, including the Texas Department of Health (TDH). Tex. Health & Safety Code § 81.103(b)(1). Since March 1994, TDH has utilized a unique identifier (UI) reporting system to gather data on the incidence of HIV+ cases in Texas. The UI consists of four pieces of information:

• the last four digits of the person’s social security number;

• the month, day and year of the person’s birth;

• a numeric code for sex; and

• a numeric code for race/ethnicity.

January 1998 TDH Bureau of HIV and STD Prevention Report on Recommendations on HIV Infection Reporting—found at www.tdh.state.tx.us/hivstd/stats.htm. The name of a person who tests positive for HIV is not included, except where the person is a child aged 12 years or younger.

TDH has found its UI reporting system to be lacking. As a result, it is proposing a change in the system to include the name of the HIV+ person. This is not the first time TDH has made such a proposal. In 1992, it considered a named reporting system but opted for the UI system after certain communities raised confidentiality concerns. TDH is holding public meetings on the proposed change over a two week period in February across the state. A hearing was held in Houston on Thursday, February 12, at the West End Multi-Purpose Center.

If Texas goes to a name-based reporting system, it will join the majority of states. At present, 28 states require that a person’s HIV+ status be reported by name: Alabama, Arizona, Arkansas, Colorado, Florida, Idaho, Indiana, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, Wisconsin and Wyoming. Importantly, the two states with the highest numbers of HIV cases, California and New York, do not require such reporting. Like Texas, Oregon and Connecticut currently require only HIV+ children be reported by name.

Confidentiality concerns may be addressed through the construction of sufficient barriers around TDH’s use of the information and the class of persons to whom it may disclose such information. Another alternative may be to obtain the HIV+ person’s informed consent before releasing the information to others.