Comments on Veterans Affairs Proposed Rule -- RIN 2900-AN20, Elimination of Requirements for Prior Signature Consent and Pre- and Post-Test Counseling for HIV Testing (2009)

These comments on the December 2008 Department of Veterans Affairs’ Proposed Rule amending HIV testing patient protections were submitted on behalf of Lambda Legal, the American Civil Liberties Union, the Center for HIV Law and Policy, and the AIDS Foundation of Chicago -- and the many individuals with HIV whom they represent both inside and outside the VA system of health care.

As the comments point out, “When a government entity proposes to eliminate a patient protection that also can be characterized as a civil and human right, the burden is on the agency to show that the elimination is necessary.” The evidence, including that relied upon by the VA, continues to indicate that it is care providers’ failure to offer the test, not patient protections such as documenting informed consent prior to testing, that is the overwhelming cause of lower-than-acceptable HIV testing rates.

Section I of the comments addresses general principles related to HIV testing that provide some background for the more detailed discussions that follow. Section II refutes the premise that pre- and post-test counseling and written consent requirements are serious barriers to expanded testing and earlier diagnosis of people infected with HIV. Section III discusses the VA’s current requirements for pre-test counseling and relates those to the requirement for informed consent, the benefits of providing pre-test information, and the recent Congressional action related to HIV testing in VA facilities. Section IV and V, respectively, discuss the benefits of continuing to require post-test counseling for those who test negative, and the value of written documentation of consent for HIV testing.