HIV testing in state correctional systems.

Author:Pope, James Lee
  1. INTRODUCTION II. TESTING METHODS A. Mandatory Testing B. Voluntary Testing C. Testing Under Other Circumstances III. HIV TESTING POLICY ADOPTION IV. RELATED ISSUES A. Testing of Sexual Offenders B. Housing, Segregation, and Medical Isolation C. Pre-Test and Post-Test Counseling D. Medical Treatment and Care E. Post-Release Treatmen F. HIV Education V. QUICK REFERENCE CHART VI. STATE SUMMARIES VII. PUBLIC HEALTH ORGANIZATION TESTING RECOMMENDATIONS A. The Centers for Disease Control and Prevention (CDC) B. WHO, UNODC and UNAIDS C. The Council for AIDS Action D. National Commission on Correctional Health Care OVCCHC) VIII. MODEL STATE TESTING POLICIES APPENDIX A I. INTRODUCTION

    In recent years, reports have surfaced that the prevalence of acquired immunodeficiency syndrome (AIDS) and human immunodeficiency virus (HIV) within U.S. prison systems is three to five times higher than that of the general population. (1) These reports, combined with the release of new HIV testing guidelines by the Centers for Disease Control (CDC) in 2006, have caused many states to change their laws and policies regarding HIV testing in state correctional facilities.

    This report briefly discusses some of the issues related to HIV testing within state correctional facilities. This report also discusses the methods of HIV testing currently used in state correctional systems as well as provides an overview of the laws governing HIV testing within each U.S. correctional system. Lastly, this report concludes with a survey of recommendations from various health organizations.

    This report focuses on HIV testing methods as inmates enter prison and as they are released from prison. The summaries contained in this report are based on current state statutes, codes, rules, and regulations, as well as applicable reports and department of corrections policies, where available. (2) It does not cover other state detention facilities, such as city or county jails.


    A majority of U.S. prisons perform either voluntary or mandatory HIV tests upon entry and/or prior to release from state correctional facilities. In addition, many correctional facilities also perform HIV tests upon inmate request, upon physician request, or under other circumstances, such as when an inmate has a high risk of HIV infection or has been involved in an incident where there may have been possible exposure to HIV.

    1. Mandatory Testing

      Mandatory testing refers to an HIV test that is performed regardless of inmate consent. Although most public health organizations strongly discourage mandatory testing, it appears that twenty-four state correctional systems currently require mandatory HIV tests at intake and/or prior to release. In addition, most prisons also require mandatory testing upon the happening of some event, such as when an inmate becomes exposed to another person's blood or bodily fluids.

      States are increasingly adopting policies of mandatory testing at intake and/or prior to release. (3) It is difficult to speculate why a state would favor mandatory testing, but it may be easier to implement because it does not require individual HIV risk assessments or written consent forms. Additionally, if every inmate is tested, the correctional system would have more data on the inmate population and may be in a better position to prevent HIV transmission within the prison system. However, most public health organizations not only believe that mandatory testing is unethical, but also suggest that is not an effective way to reduce the transmission of HIV.

    2. Voluntary Testing

      Voluntary testing refers to performing an HIV test only after receiving informed consent. Most correctional facilities that require informed consent prior to performing an HIV test will only test upon inmate request. However, for correctional facilities that do provide voluntary testing upon entry and/or prior to release, the two predominantly implemented methods of testing are "opt-in" testing and "opt-out" testing. Under the "opt-in" approach, inmates are provided with pre-test counseling and will receive an HIV test only after they have provided specific consent to an HIV test. Under the "opt-out" approach, also referred to as routine screening, inmates are provided with pre-test counseling and are informed that an HIV test will be performed unless they refuse.

      Most public health organizations currently recommend that state correctional systems provide routine voluntary testing upon entry. (4) In particular, it appears that most public health organizations support voluntary opt-out testing upon entry. According to the CDC, opt-out testing is more beneficial than opt-in testing because the rates of HIV testing are higher in settings that provide opt-out testing, and opt-out testing may be more cost effective than opt-in testing. (5)

      Most public health organizations also recommend that all HIV testing should be performed only with an inmate's consent. Beyond the fact that testing without consent is considered unethical, public health organizations also suggest that most people will agree to voluntary testing if it is offered; therefore, it can be just as effective as mandatory testing. It is also worth noting that there are certain issues with informed consent in the correctional healthcare setting that do not arise in other healthcare settings. First, there are concerns that inmates may be intimidated or coerced into HIV testing. Second, informed consent within the correctional setting may require providing inmates more information because an inmate's HIV status may have certain repercussions, such as segregation or restricted access to other correctional programs. It appears that many correctional systems now have policies prohibiting segregation or other forms of discrimination based on an inmates HIV status. Thus, these concerns may not be as prevalent as they once were. Nonetheless, discrimination against inmates who are HIV positive still occurs in prisons, as it does in the larger community, in spite of such prohibitions.

    3. Testing Under Other Circumstances

      In addition to mandatory or voluntary testing upon entry and/or prior to release, many states also require or authorize HIV tests under special circumstances. The most common circumstances under which an inmate may be tested for HIV are when an inmate shows clinical indications of HIV infection, where an inmate has a "high risk" of HIV infection, (6) or where an inmate has been involved in an incident during which there was possible exposure to HIV, i.e., an exposure incident. (7)

      Many states that test for HIV upon entry have incorporated these circumstances into their testing policies. Tennessee, for example, requires the mandatory testing of all prisoners under the age of 21 upon entry. However, voluntary testing is offered upon entry to prisoners over 21 that have a high-risk of infection or that have clinical indications of infection.

      Often, state occupational exposure statutes also require or authorize HIV tests if an inmate has been involved in an incident where there was a possibility of HIV exposure. Occupational exposure statues generally allow a corrections officer or corrections employee to request that a prisoner be tested for HIV if the officer or employee was exposed to the prisoner's blood or bodily fluids. (8) Some occupational exposure statutes require a court order before an inmate may be tested. Others require immediate mandatory testing once an officer or employee has filed a request that the inmate be tested.


    Most prison HIV testing policies were created through the legislative process. Therefore, most states have statutes, codes, or other legislative regulations that govern HIV testing within the state correctional system. There are, however, states where the legislature has not directly dealt with the issue or has merely delegated the decision to a state administrative agency, such as the department of corrections or department of health.

    In states where the legislature or general assembly has responded to the issue of HIV testing in the correctional system, a particular statute or code section will typically require or authorize some form of voluntary or mandatory HIV testing. The specificity of the laws regarding HIV testing is unique to each state and varies greatly among states. For example, in both California and Illinois, an entire chapter of codified law has been devoted specifically to how and when inmates will be tested for HIV. However, in other states, inmate testing is mentioned only briefly within the provisions of another interrelated statute. (9)

    In states where the legislature has delegated the prison HIV testing issue to an administrative agency, such as the department of corrections or department of health, administrative regulations promulgated by those agencies typically will govern the method of testing in the state correctional system. In some states, however, an administrative agency may have re-delegated the issue to a correctional facility's head physician or facility director. Thus, different methods of testing may be implemented in different correctional facilities.

    In states where the legislature has not responded to the issue at all, it is very difficult to ascertain what method of HIV testing is implemented within the state correctional system. In other states, however, an administrative agency may have adopted a particular method of HIV testing pursuant to some general grant of authority (e.g., the department of correction's authority to manage prisoners or the department of health's authority to prevent the spread of HIV).



      Almost every state as well as the District of Columbia and the Federal Bureau of Prisons require or authorize the testing of sexual offenders for HIV. This testing is usually conducted pursuant to a court order after a person has been charged with or convicted of a...

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