Slide Presentation for Summit on Opportunities for Improving HIV Diagnosis, Prevention, & Access to Care in the U.S., Nov. 29-30, 2006; addressed areas of potential legal liability raised by implementation of September, 2006 CDC Guidelines on HIV testing.
A list and synopsis of key federal cases on access to, and quality of, medical care in correctional settings. The list is organized by federal circuit.
Citations and cases synopses for five useful federal court decisions on the refusal to provide appropriate care to transgender prisoners as a violation of prison officials 8th Amendment obligation to attend to the serious medical needs of those in their custody.
Prepared by the U.S. Department of Justice in September, 2005, and updated in February, 2006, this guide provides a basic overview of federal laws that offer antidiscrimination protections to people with disabilities, including those with HIV/AIDS. Links and contact information for the federal agencies and organizations charged with enforcement of these laws, and statutory citations, is included. Laws covered include the Americans with Disabilities Act (ADA), Telecommunications Act, Fair Housing Act, Air Carrier Access Act, Voting Accessibility for the Elderly and Handicapped Act, National Voter Registration Act, Civil Rights of Institutionalized Persons Act (CRIPA), Individuals with Disabilities Education Act (IDEA), Rehabilitation Act of 1973 (Rehab Act), and the Architectural Barriers Act.
Settlement between the U.S. Dept. of Justice and the NYC Department of Corrections (concerning Rikers Island correctional facility), requiring the city to ensure compliance with the Americans with Disabilities Act (ADA), in part through creation of a new full-time position, a Disability Rights Coordinator for Inmates.
Amended class action complaint, filed in New Jersey, seeking monetary and injunctive relief for all state prisoners with Hepatitis C who were denied diagnostic and treatment sercies for their medical condition. The complaint, filed in 2003, provides a good outline of potential claims under the Americans with Disabilities Act, and the U.S. constitution, for failure to provide adequate protection and medical care for prisoners with or at risk of hepatitis or HIV.
Critics of U.S. penal policies contend that incarceration has exacerbated the HIV epidemic among blacks, who are disproportionately represented in the prison population, accounting for 40% of inmates. This New England Journal of Medicine article examines the facts, perceptions, and some proposed solutions to the HIV epidemic -- and the behaviors and policies that drive it -- occurring behind bars.
As this article discusses, both the World Health Organization (WHO) and the Joint United Nations Program on HIV/AIDS (UNAIDS) have recommended for more than a decade that condoms be made available to prisoners and that measures for clean needles be implemented. Several Western European countries, as well as Canada, Australia, Indonesia, and Iran, have adopted some or all of these harm reduction approaches and have seen no increase in drug use or new cases of HIV infection. The prohibition of condom availability, absence of needle exchange programs, and inadequacy of HIV diagnosis, treatment and programs for reducing high-risk behavior before and after release have resulted in continued rising rates of HIV infection in the U.S. prison system. Theodore M. Hammett of Abt Associates, a Massachusetts-based policy research and consulting firm, is with the Domestic Health, Health Policy, and Clinical Research Division. According to Hammett, adoption of HIV-prevention measures is long overdue. Condoms ought to be widely available in prisonsFrom a public health standpoint, I think theres little question that that should be done. Methadone, also all kinds of drug [abuse] treatment should be much more widely available in correctional settings. As Robert Fullilove of Columbia Universitys Mailman School of Public Health puts it, The issue has never been, do we understand what has to happen to reduce the risks? Its always been, do we have the political will necessary to put what we know is effective into operation?
In this article from the Journal of Urban Health: Bulletin of the New York Academy of Medicine (provided by Abt Associates,Inc.), Ted Hammett, a long-time expert on HIV in corrections and a vice-president at Abt Associates, elaborates on what he considers the three essential points to effective advocacy for health care services in prisons and jails: that correctional facilities are important settings for health care interventions because there populations typically bear a disproportionately heavy disease burden; that successful health interventions are possible among inmate populations; and that successful interventions benefit not only inmates, their families and partners, but the public at large, particularly the urban communities from which most inmates come.
The Center for HIV Law and Policys (CHLP) legal and policy outline for advocating for sexual health and HIV prevention programming for youth in state custody. Youth in the state welfare and juvenile justice systems, especially lesbian, gay, bisexual, transgendered and questioning youth, are at alarmingly high risk of becoming HIV-infected. There is a critical need to address discriminatory treatment and the lack of policies, staff training and services that endanger and stigmatize these youth. Targeting advocacy in this direction has a potentially significant impact for the health of at-risk youth and the communities to which they return. The outline highlights various strategies for addressing the states failures; for example, policy and regulations reforms and using existing state laws governing adolescents autonomy and sexual orientation discrimination, as well as state and federal privacy, equal protection, substantive de process and first amendment guarantees to gain legal inroads to securing statesponsored sexual health care services for detained youth.
This paper, jointly authored by the WHO, UNAIDS, and the UN Office on Drugs and Crime, discusses the reality of life in correctional settings and asserts that distribution of condoms is necessary to help stop the sexual transmission of HIV in those settings. According to the paper, “various countries have introduced HIV programmes in prisons. However, many of them are small in scale, restricted to a few prisons, or exclude necessary interventions for which evidence of effectiveness exists. There is an urgent need to introduce comprehensive programmes, (including information and education, particularly through peers; needle and syringe programmes; drug dependence treatment, in particular opioid substitution therapy with methadone and/or buprenorphine; voluntary counselling and HIV testing; and HIV care and support, including provision of antiretroviral treatment) and to scale them up rapidly. As part of these programmes, prison systems should make condoms accessible to prisoners.” The paper has an international focus, but the concepts are broadly applicable in U.S.
The report is useful for any advocate seeking information on the issues surrounding the rights and health care of all persons detained by the government. This report describes the failure of the United States Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) to provide basic health care services to HIV-positive immigrants living in detention facilities. Due to the passage of new laws that expand mandatory detention and deportation of immigrants – including legal permanent residents – the number of immigrants detained by the United States and the duration of detention has expanded significantly over the past few years. This report describes the failure of the DHS to collect basic information to monitor the health of immigrant detainees with HIV, and the implementation of substandard policies and procedures to ensure appropriate care and services. As the report details, many detainees are deprived of their medication and denied access to medical services until the neglect results in health problems that require serious intervention and even prolonged hospitalization. Moreover, the medical treatment that is provided compromises the confidentiality and safety of HIV-positive detainees. The report outlines recommendations for the DHS, ICE, the Division of Immigration Health Services, and the United States Congress to address these serious concerns.
This SSA manual excerpt discusses the appropriate methods of providing SSI underpayments to prisoners, alternative methods for paying underpayments while the prisoner is incarcerated, and the procedures for redeeming SSI benefit checks that are received at correctional institutions.
Generally, prisoners are not eligible for SSI during their incarceration (for more information see SSAs fact sheet What Prisoners Should Know About Social Security at http://www.socialsecurity.gov/pubs/10133.pdf). SSA must pay underpayments to prisoners incurred during their period of eligible. As a matter of policy, SSA exhausts every alternate method of payment before issuing a paper check to an incarcerated person at an institution because such payments cause severe public relations problems. Instead, SSA will request that the prisoner have the checked issued to a bank account or obtain a temporary mailing address for the prisoner other than the institution. The prisoner has to agree to these alternatives -- if not, SSA must issue the underpayment to the recipient at the correctional institution. This sheet also addresses the steps an institution should take if an inmate is receiving benefits. While the institution should contact the SSA, it should not intercept the check.
In response to a CDC request for comments, 35 organizations endorsed comments submitted to CDC regarding its draft implementation guidance for HIV testing expansion in correctional settings. The Center for HIV Law and Policy, Lambda Legal, and the AIDS Foundation of Chicago drafted the comments following consultation with individuals familiar with the healthcare and HIV/AIDS-related needs of incarcerated populations.
The International Covenant on Civil and Political Rights (the “ICCPR”) represents one-third of what is informally referred to as the “International Bill of Rights.” The other two thirds consist of the International Covenant on Economic, Social and Cultural Rights (the “ICESCR”) and the Universal Declaration of Human Rights.
The ICCPR outlines universal civil and political rights; particularly relevant for HIV/AIDS issues are: the right to marry and found a family (Article 23); the right to privacy (Article 17); freedom of expression and information (Article 19); freedom of assembly and association (Article 22); freedom of movement (Article 12); the right to liberty and security of person (Article 9); and freedom from cruel, inhuman or degrading treatment or punishment (Article 7). State parties to the convention must also guarantee that any person whose rights under the convention are violated shall have an effective remedy and shall have her right to such a remedy determined by a competent authority provided by the legal system of the state, and that the state will develop the possibilities of judicial remedy specifically.
As a convention, the ICCPR is binding on all parties that ratify it; those who sign but do not ratify it are obligated not to act contrary to the purpose of the convention under Article 18 of the Vienna Convention. Article 40 of the covenant requires state parties to submit reports on the national human rights situation every five years, which are studied and commented on by the United Nations Human Rights Committee. Article 41 establishes an optional procedure by which states grant other states the right to bring a complaint against them before the Committee alleging a violation of human rights; the result is an attempt at a “friendly solution.”
There is also an optional protocol, available separately in the Resource Bank, to allow individuals who are victims of violations of ICCPR to present complaints before the Committee against a state that has ratified the convention and violates its obligations.
The United States is a party to the ICCPR, but not to the optional protocol, and has made several “reservations” – a declaration that purports to exclude or modify the meaning of certain provisions of the treaty. However, the validity of some of these reservations is subject to debate; many states objected to the reservations as contrary to the object and purpose of the ICCPR, and as impermissibly citing domestic law to dodge obligations under the Convention.
A revised and consolidated version of the original guidelines published in 1996, the purpose of the Guidelines is “to assist States in creating a positive, rights-based response to HIV that is effective in reducing the transmission and impact of HIV and AIDS and is consistent with human rights and fundamental freedoms.” The Guidelines are a joint project of the United Nations Office of the High Commissioner for Human Rights and UNAIDS. The consolidated guidelines include the revised Guideline 6, which reflects the human rights dimensions of access to HIV prevention, treatment, care, and support. The document consists of three parts: 1) twelve guidelines for state action; 2) recommendations for dissemination and implementation of the Guidelines; and 3) a description of the human rights principles underlying a positive response to HIV. The primary users are intended to be states, but it is also meant to inform intergovernmental organizations, non-governmental organizations, networks of people living with HIV, community-based organizations, networks on ethics, law, human rights, and HIV, and AIDS service organizations. It is also useful for any person looking for interested in a rights-based approach to HIV/AIDS and specific steps needed to implement such an approach.
