Latino Commission on AIDS

PERSPECTIVE: Advancing Public Health - And Not
By: DENNIS DELEON
06/19/2008 - Op Ed from Gay City News

For the June 3 Version of New York Testing Legislation click here.

The legislation is pending and is expected to be voted on this Monday.

For the past three years, high on New York City Health Commissioner Thomas Frieden's list of Albany "asks" was legislation to make HIV testing more "routine." The commissioner wants to address the twin problems of a spreading epidemic in minority communities and the difficulty of getting people into HIV/AIDS care as soon as possible.

The contention that HIV testing results in safer sex practices is, in my opinion, sketchy, but the assertion that testing early in the disease progression is beneficial is good science. The sooner after infection a person is connected to medical care and treatment, the fewer years will be deducted from his or her life expectancy.

The health department's 2006 HIV/AIDS data shows that 52.1 percent of blacks and 32.9 percent of Latinos first learned they had HIV infection at the time they had already progressed to AIDS and needed medical attention - compared to just 12.9 percent of whites. Some researchers have estimated the rate of decline in life expectancy due to a later and later HIV diagnosis, but my purpose here is not to scare anyone.

Frieden saw delayed testing as a real problem that could steal years from a person's life and also create risk since that person could unknowingly transmit the virus, particularly at times of high infectivity.

The commissioner perceived the issue primarily as a matter of public health rather than a social or civil rights concern. When he held public hearing after public hearing all over the city, the civil rights and AIDS service provider communities met him with catcalls and general rancor. But the man who battled smokers and trans fat eaters stepped forward as a blazing white knight who would overhaul HIV testing laws that he said present obstacles to medical providers carrying out more tests.

Commissioner Frieden felt that Article 27F of the state Public Health Law, outlining disclosure requirements for those administering tests, needed changing. Professor Nancy Dubler, a prominent ethicist from Columbia University, told me that Article 27F was written at a time in the epidemic when there was no treatment. With all its mandated counseling and cautions about discrimination and how horrible the disease could become, the law was intended to discourage people from getting tested.

Enter New York State Department of Health Commissioner Richard Daines, with compromise legislation, A. 11461, likely to pass next week. Daines had private conversations with Frieden, and those representing medical associations, non-profits, hospitals, and other groups with specific agendas. He did so quietly, behind closed doors, bringing in legislators and those interests that are the best organized and funded. In short. he did it the old-fashioned way. What will his changes to Article 27F do?

First, the Daines bill would require all Article 28 clinics and clinics and emergency rooms attached to hospitals to offer HIV testing to every patient between the ages of 18 and 64. The patients can refuse but, with few exceptions, they have to be given the opportunity.

This could be a major step forward that will begin to integrate testing into care. It's unfortunate that there is an age range restriction, given the recent data on rising rates of infection among young men, many in their mid-teens, who have sex with other males. Score one-half point for Tom Frieden and all New Yorkers.

Second, Daines' legislation would exclude any "health care practitioner" - read "private health insurance doctors" - from having to offer the HIV test to all patients. The requirement that hospital and public clinics offer testing will improve testing rates among people of color in this city since they are disproportionately represented in the population that accesses the emergency rooms and the public clinics. But we are less likely to learn the status of the private health care population.

This is a shame especially for women given their climbing numbers in the HIV-positive population, since too many of them have no suspicion of their HIV vulnerability. Score one cynical point for the forces representing doctors and for Commissioner Daines in knowing how to make a deal.

Finally, the new law would preserve what is coming to be the fiction of pre-test counseling. It was already reduced to a written form and now would likely be even less useful for those facing their first HIV test results. By working to diminish the burden on health care providers in offering the test, the drama of the last three years, in many ways, is reducible to one thing - paperwork. At least that is what I hear from most private doctors. Score one cynical point for Commissioners Frieden and Daines.

What is the lesson? Politics are messy. The debates over HIV/ AIDS are shaped by altruistic individuals and organizations as well as financial interests. Frieden's experience demonstrates the need to push first on those people who hold power - the Legislature, the state health department, and, yes, financial interests, such as those representing physicians. Before going public, it makes sense for any advocate to work those levers of power first.

Or maybe just march on Albany with a legion of people living with HIV and AIDS. I would like to believe that both road leads would lead to the same end.