ABA HIV/AIDS Policies
I. BE IT RESOLVED, That the American Bar Association, recognizing the special problems which the criminal justice system faces in dealing with issues related to the Human Immunodeficiency Virus (HIV) epidemic, recommends the following:
A. RECOMMENDATION CONCERNING CRIMINAL SANCTIONS
Because existing civil and criminal remedies are available to prosecute the instances in which specific criminal sanctions might apply, HIV-specific criminal sanctions should play a limited role in combating the HIV epidemic. Accordingly, a program of aggressive public education about the Human Immunodeficiency Virus (HIV) should be implemented as the most effective method of deterring behavior which poses a high risk of transmitting HIV.
B. RECOMMENDATIONS CONCERNING CRIMINAL PROCEDURE AND COURTROOM PROCEDURE
Criminal justice personnel must be educated about the medical and legal issues arising from the HIV epidemic.
Public agencies should make available victim counseling and testing programs which assist crime victims who have reason to believe they have been exposed to the virus. These programs should be offered at no cost to victims. Where appropriate, offenders should bear or share the cost for these programs.
An attorney should not refuse to represent, or limit or modify representation, because of a person's known or perceived HIV status. A person should not be denied access to counsel because of his or her known or perceived HIV status. Where the person has a right to counsel, the court shall insure that the person's access to counsel is scrupulously honored.
A criminal prosecution involving a defendant known or perceived to be infected with HIV should proceed in the same fashion as any other case. No unusual safety or security precautions should be employed, unless the defendant is violent or poses a demonstrated risk of escape.
(a) Unless a defendant's physical condition prevents him or her from attending court, a defendant's HIV status should not be the basis for denying or limiting his or her access to the courtroom, or a reason for avoiding court appearances.
(b) Where, in a jury trial, the defendant's HIV status may become an issue in the case, the court should permit or conduct a full voir dire on the issue. If the defendant's status has been publicized or is apparent, at the request of the defendant, the court should permit or conduct a full voir dire on the issue.
Where the court has determined that a defendant's HIV status is relevant in a criminal case, the court must be provided with the most current, accurate and objective medical information about a defendant's condition. Unless the defendant's HIV status is at issue in the prosecution, only those with a demonstrable need or right to know should receive medical information about a defendant's HIV status. Criminal justice personnel who receive such information must safeguard its confidentiality.
C. RECOMMENDATIONS CONCERNING CORRECTIONAL FACILITIES.
Appropriately funded training and educational programs regarding HIV should be instituted in all correctional facilities.
2. Inmates in correctional facilities should be afforded appropriate medical care for the full range of HIV infections and should be afforded appropriate counseling services.
A prisoner should not be segregated from the general population of the correctional facility or be placed in other special areas solely because of the prisoner's known or perceived HIV status. Consequently, mass HIV-antibody testing should not be done for the purpose of segregating inmates in special areas or cells.
Unless an inmate consents, information about his or her HIV status should not be disclosed except to the warden, key supervisory staff who have a legitimate need for the information, or medical staff for purposes of care and treatment. Correctional authorities should draft, promulgate, and enforce specific rules governing who may have access to such information and who is responsible for the release of the information.
A prisoner should not be denied parole or temporary release, or barred from participating in other community release programs, solely because of the prisoner's known or perceived HIV status.
(a) Where discretionary, temporary release is permitted by law, authorities may require pre-release disclosure of HIV positive test results to spouses and similarly situated persons as a condition of release.
(b) Although parole or discharge should not be conditioned upon disclosure of HIV test results, prisoners scheduled for discharge should be encouraged to disclose their HIV status to their spouses or any similarly situated persons. Where a prisoner fails to do so, correctional authorities may notify appropriate public health authorities.
[Passed in February 1989.]
II. RESOLVED, That the American Bar Association supports compassionate release of terminally ill prisoners and endorses adoption of administrative and judicial procedures for compassionate release consistent with the Administrative Model for Compassionate Release Legislation and the Judicial Model for Compassionate Release Legislation, each dated April 1996; and
FURTHER RESOLVED, That the American Bar Association supports alternatives to sentencing for non-violent terminally ill offenders in which the court, upon the consent of the defense and prosecuting attorneys, and upon a finding that the defendant is suffering from a terminal condition, disease, or syndrome and is so debilitated or incapacitated as to create a reasonable probability that he or she is physically incapable of presenting any danger to society, and upon a finding that the furtherance of justice so requires, may accept a plea of guilty to any lesser included offense of any count of the accusatory instrument, to satisfy the entire accusatory instrument and to permit the court to sentence the defendant to a non-incarceratory alternative. In making such a determination, the court must consider factors governing dismissals in the interest of justice.
[Passed in August 1996.]
ADMINISTRATIVE MODEL FOR COMPASSIONATE RELEASE LEGISLATION
[April 1996]
(a) Authorization: The [appropriate existing administrative agency] shall be authorized to grant parole [release] of a[ny] prisoner, [at any time,] [irrespective of whether he or she is presently eligible for parole,] whose medical condition is terminal within the meaning of paragraph (b), below. [This section applies to any prisoner except...]
(b) Standard: If the [appropriate existing administrative agency] finds from the evidence that the prisoner is likely to die within one year or less, the [agency] shall release the prisoner upon [medical parole] [conditional release] unless it finds by a preponderance of the evidence that the prisoner poses a danger of committing additional crimes, that the prisoner will not receive adequate care upon his or her release, or that [medical parole] [conditional release] would denigrate the seriousness of the offense.
(c) Application process: In order to apply for such relief, the prisoner or a medical officer of the Department of Corrections shall file an application for [medical parole] [conditional release] with the [appropriate existing administrative agency]. In the case of an application filed by a medical officer, the application shall be accompanied by an affidavit of the medical officer attesting to the nature of the prisoner's illness, the treatment he or she is receiving, the prognosis, and the extent of the prisoner's incapacitation from the illness. A copy of each such application shall be served on the prosecutor.
(d) Medical Report: Within [72 hours] after the filing of any application by a prisoner, the [appropriate existing administrative agency] shall refer the application to the medical unit of the Department of Corrections for a report concerning the nature of the prisoner >s condition, the treatment he or she is receiving, and the prognosis. Within [five days], the medical unit shall forward the medical report to the [agency]. These time lines are meant to ensure speedy review and must be adhered to. However, the prisoner's application should not fail simply because, due to extraordinary circumstances, the review time frames were not adhered to.
(e) Summary disposition of unmeritorious applications: Within [seven days] of receiving the medical report or affidavit, as the case may be, the [appropriate existing administrative agency] shall determine whether the application, on its face, demonstrates that relief may be warranted. If the face of the application clearly demonstrates that relief is unwarranted, the [agency] may deny the application without a hearing or further proceedings, and within [seven days] shall notify the prisoner in writing of its decision to deny the application, setting forth its factual findings and a brief statement of the reasons for denying release.
(f) Procedure for hearing:
(1) If the application demonstrates that the prisoner may be entitled to relief, the [appropriate existing administrative agency] shall set the case forhearing, which shall be held within the next [seven days] (unless the prisoner requests additional time).
(2) Notice of the hearing shall be sent to the prosecutor and the victim(s), if any, of the offense(s) for which the prisoner is incarcerated, and the prosecutor and the victim(s) shall have the right to be heard at the hearing or in writing or both.
(3) At the hearing, the prisoner shall be entitled to be represented by an attorney (at the prisoner's cost if there is any cost) or other representative. Rules of evidence shall not apply, and the evidence may be taken in the form of affidavit.
(g) Decision: Within [seven] days of the hearing, the [appropriate existing administrative agency] shall issue a written decision granting or denying [medical parole] [conditional release] and explaining the reasons therefore. If the [agency] determines that [medical parole] [conditional release] is warranted, it shall impose as conditions of [parole] [release] at least the following:
(1) that the prisoner not commit another crime;
(2) that the prisoner maintain his or her residence;
(3) that the prisoner maintain established reporting requirements with his or her parole officer;
and such other conditions as the [agency] concludes are necessary or appropriate in the particular case, including the requirement that the prisoner undergo periodic re-examination of his or her medical condition.
(h) Review: If the [appropriate existing administrative agency] determines that [medical parole] [conditional release] is not warranted, the prisoner shall have the right to seek review of the decision in the court in which he or she was convicted; such review shall be limited to the question whether the [agency] abused its discretion. The appeal shall be expedited and not subject to further review.
(I) Revocation of [medical parole] [conditional release]:
(1) Violation of conditions of [medical parole] [conditional release]: If the prisoner violates any condition of [medical parole] [conditional release], his or her [medical parole] [conditional release] may be revoked in the same manner as for other violations of [parole] [conditional release], and the prisoner returned to prison to serve his or her sentence. Credit for time spent on [medical parole] [conditional release] shall not be counted toward service of the sentence.
(2) Prisoner no longer terminal: If after release the prisoner is determined not to be likely to die within one year, [medical parole] [conditional release] shall be revoked, and the prisoner shall be returned to prison to serve his or her sentence. Credit for time spent on [medical parole] [conditional release] shall be counted toward service of the sentence.
(j) Reapplication: Denial of relief under this section shall not preclude the prisoner from reapplying for relief if there is a change in his physical condition or other pertinent circumstances.
(k) Reporting requirements: The [appropriate existing administrative agency] shall maintain statistics regarding: the number of requests made for [medical parole] [conditional release], the number of such requests that were granted, the number of such requests that were denied and the grounds upon which each such petition was denied, and the date on which the prisoner died, if applicable. Within three months of the end of the [fiscal] [calendar] year, the [agency] shall compile these statistics in an annual report that shall be made available to the public.
JUDICIAL MODEL FOR COMPASSIONATE RELEASE LEGISLATION
[April 1996]
(a) Authorization: At any time after the defendant is sentenced, the court, on motion of the defendant or the Department of Corrections or on its own motion, and after notice to the prosecutor, may reduce a sentence of imprisonment to time served, or substitute for the unserved balance of a sentence of imprisonment a sentence of home confinement, probation, or supervised release, upon proof that the defendant has a medical condition that is critical. The court may reduce any sentence, whether or not the defendant has served any imposed minimum sentence, [except in the following cases...].
(b) Standard: If the court finds from the evidence that the defendant is likely to die within one year, the court shall reduce the prison sentence to time served, or substitute home confinement, probation, or supervised release, for the unserved balance of the prison sentence, unless it finds by a preponderance of the evidence that the defendant poses a danger of committing additional crimes, that the defendant will not receive adequate care upon his or her release, or that release would denigrate the seriousness of the offense.
(c) Motion: In the case of a motion filed by the defendant, the motion shall be accompanied by an affidavit of the medical officer attesting to the nature of the defendant's illness, the treatment he or she is receiving, the prognosis, and the extent of the defendant's incapacitation from the illness. A copy of each such application shall be served on the prosecutor.
(d) Summary disposition of unmeritorious motions: Within five days, the court shall determine whether a hearing on the motion is necessary. If the court determines that the motion clearly fails to establish grounds for relief, it may deny the motion without further proceedings and issue a written decision explaining the reasons therefore.
(e) Procedure for hearing:
(1) If the court determines that the defendant may be entitled to relief, the court shall set the motion for hearing in the next 10 calendar days, unless the defendant requests additional time.
(2) Notice of the hearing shall be sent to the prosecutor and the victim(s), if any, of the offense(s) for which the prisoner is incarcerated, and the victim(s) shall have the right to be heard at the hearing or in writing or both.
(3) Evidence may be taken in the form of affidavit.
(f) Decision: Within [10] days of the hearing, the court shall issue a written decision granting or denying the motion, setting forth its factual findings and explaining the reasons for its decision. If the court determines that relief is warranted, the court shall determine whether to reduce the prison sentence to time served, or instead to substitute a period of home confinement, probation, or supervised release. If the court chooses to substitute a period of probation or supervised release, the court shall impose as conditions of probation or release at least the following:
(1) that the defendant not commit another crime;
(2) that the defendant maintain his or her residence;
(3) that the defendant maintain established reporting requirements with his or her probation officer;
and such other conditions as the court concludes are necessary or appropriate in the particular case.
(g) Review: If the court denies the motion, the defendant shall have the right to appeal, limited solely to the question whether the trial court, in denying the motion, abused its discretion.
(h) Revocation of release:
(1) Violation of conditions of release: If the defendant violates any condition of release, his or her release may be revoked in the same manner as for other violations of probation or supervised release, and the defendant returned to prison to serve his or her sentence. Credit for time spent on release shall not be counted toward service of the sentence.
(2) Defendant no longer late-stage terminal: If after release the defendant is determined not to be likely to die within one year, his or her release shall be revoked, and the defendant shall be returned to prison to serve his or her sentence. Credit for time spent on release shall be counted toward service of the sentence.
(i) New motion based on changed circumstances: Denial of relief under this section shall not preclude the defendant from filing a subsequent motion for relief if there is a change in his physical condition or other pertinent circumstances.
(j) Reporting requirements: The Department of Corrections shall maintain statistics regarding the number of requests made for conditional release, the number of such requests that were granted, the number of such requests that were denied, and the date the defendant died, if applicable. Within three months of the end of the [fiscal] [calendar] year, the Department of Corrections shall compile them in an annual report that shall be made available to the public. In order to facilitate the collection of relevant data, the court shall send to the Department of Corrections a copy of every motion for conditional release and of the decision on each such motion.
BE IT RESOLVED, That the American Bar Association supports the enactment of federal legislation such as S.1575 and H.R.3071 which:
1) promotes an increased level of voluntary counseling and testing for AIDS;
2) mandates that identifying information obtained as a result of such counseling or testing may not be disclosed without the consent of the individual except where such information is required to be provided by the state or federal law and such law provides for the protection of the confidentiality of the identity of the individual; notwithstanding the foregoing, any contact tracing of sexual contacts provided by law must be conducted without disclosing information identifying the infected individual; and
3) prohibits discrimination against an otherwise qualified individual? as defined by such legislation in employment, housing, public accommodations, or governmental services, solely by reason of the fact that such individual is, or is regarded as being, infected by the HIV virus or having AIDS or an AIDS related condition.
[Passed in February 1988.]
BE IT RESOLVED, That the American Bar Association urges that federal, state, and local law, and the policies of private entities concerning the Human Immunodeficiency Virus (HIV) should be consistent with the following principles.
A. ACCESS TO THE LEGAL SYSTEM AND THE ADMINISTRATION OF JUSTICE
A.1. The judiciary and the organized bar should encourage attorneys and judges to become knowledgeable about HIV and related legal issues, and should provide appropriate education and training in these areas.
A.2. The judiciary and the organized bar should support the allocation of additional private and public resources, including the further development of pro bono activities, for the delivery of legal services to individuals affected by HIV.
A.3. An attorney should not refuse to represent or limit or modify representation, because of an individual's known or perceived HIV status.
A.4. A judicial or administrative proceeding involving a participant known or perceived to be HIV-infected should be conducted in the same fashion as any other such proceeding. Extraordinary safety or security precautions should not be undertaken based solely upon the participant's known or perceived HIV status.
B. CONFIDENTIALITY
B.1. Specific confidentiality protections should be afforded to HIV-related information under state and federal statutes and judicial and administrative procedures.
C. PUBLIC HEALTH LAW
C.1. HIV reporting to public health agencies for epidemiological purposes should be limited to that information which is necessary for such purposes. If state law requires HIV reporting with identifiers to public health agencies for preventive purposes, including partner notification, confidentiality protections should be afforded to such identifying information under state and federal law.
C.2. HIV-related disease reports made to public agencies should be exempt from public record laws and should be afforded statutory confidentiality protections under state and federal law, including protection from disclosure without court order.
C.3. If partner notification (i.e. contact tracing) is undertaken, state and local law should require the following:
Counseling. Partner notification should include counseling protocols that:
Encourage HIV-infected individuals to either directly notify their partners that they may have been exposed to HIV, or provide the names of partners to the public health department or health care provider so that the department or provider can inform said partners of their possible exposure to HIV in accordance with the confidentiality protections provided for below; and
Inform individuals prior to undergoing an HIV test of the scope of confidentiality protections and standards for disclosure under the privilege to disclose provided for below.
Voluntary participation. An HIV-infected individual's disclosure of the name of partners should be voluntary. An HIV-infected individual's access to counseling, referral, and support services should not depend on disclosure of the names of partners.
Confidentiality. Identifying information pertaining to HIV-infected individuals should not be disclosed to anyone, including partners notified through the partner notification program, except as provided below. Such information, as well as identifying information regarding notified partners, should be afforded confidentiality protections.
Immunity. Health care providers and public health officials who are authorized by law to decide whether to disclose confidential HIV-related information should be immune from liability for such decision made in good faith.
C.4. Privilege to Disclose. If an HIV-infected individual discloses the identity of at-risk partners during counseling, but does not request the health care provider or public health official to inform said partners of their possible exposure to HIV, or the provider or official otherwise learns of the identity of at-risk partners, the provider or official nevertheless may disclose non-identifying information concerning exposure to said partners if, and only if, the official or provider:
Urged the HIV-infected individual to notify the at-risk partner and the individual has refused, or has agreed, but after a reasonable opportunity, the official or provider has reason to believe that the individual has not done so; and
Reasonably believes that the partner is at significant risk of HIV infection and that the partner is unaware of the risk.
If, however, a health care provider has independent knowledge of a current partner or partners through his/her professional relationship with the infected individual or said partner(s) and the provider meets the two-pronged test described above, the provider should disclose information concerning the risk of exposure and may disclose information concerning the HIV-infected individual to said partner(s).
C.6. Personal control measures necessarily implicate the most fundamental constitutionally protected liberty interests and should never be imposed based on status or group characteristics.
C.7. Isolation for public health purposes is a particularly serious infringement of liberty and is not generally appropriate for controlling the spread of HIV infection. However, if such isolation of an individual is sought, it should be ordered by a court only if it has found by clear and convincing evidence that:
The individual is HIV-infected; poses a direct threat to public health as evidenced by a recent overt act endangering another person; and after notice, counseling and appropriate training will not restrict his/her own behavior to avoid a direct threat to public health; and
The proposed isolation is necessary to protect public health and is the least restrictive alternative.
In any proceeding in which the isolation of an individual is proposed or under review, stringent procedural protections should be afforded, including rights to:
Notice, representation by counsel, subpoena and present evidence, cross-examination, a verbatim transcript, and appeal;
Judicial review after 30 days and thereafter no less frequently than every six months; and
Appropriate treatment, habilitation and education directed toward changing the behavior that resulted in isolation.
C.8. A court may grant an emergency non-renewable isolation order for a period of 72 hours or less upon application of a public health official who has filed with the appropriate court an affidavit establishing reasonable cause to believe that the facts and circumstances necessary for the imposition of isolation exist (see Recommendation C.5 above), and that there is an imminent, direct threat to public health.
D. ACCESS TO HEALTH CARE
D.1. Health care providers should not refuse to treat or limit treatment of an individual, because of the individual's actual or perceived HIV status.
D.2. Access to outpatient facilities should not be limited by zoning or other governmental actions that discriminate based on an individual's actual or perceived HIV status.
D.3. Government programs that cover HIV-related health care should incorporate flexible mechanisms for payment, including expediting the Medicaid waiver review process, to allow more treatment alternatives for HIV.
D.4. Public and private entities should expeditiously develop and implement HIV-related programs targeted to serve minority communities.
E. HIV TESTING AND COUNSELING
E.1. States should provide for accessible anonymous or confidential testing and counseling sites coupled with confidentiality and non-discrimination protections, in order to promote voluntary testing for HIV.
E.2. A voluntary HIV test should be conducted only after informed consent, specific to the HIV test, have been obtained and documented.
E.3. Health care facilities should not routinely require an HIV test as a condition for admission or treatment.
F. INSURANCE
F.1. An insurer should not base an adverse underwriting decision solely on information derived from data banks such as the Medical Information Bureau (MIB).
F.2. State laws should prohibit insurance discrimination based on sexual orientation.
F.3. Insurers should not use information about an applicant's lifestyle to attempt to determine an applicant's sexual orientation.
F.4. Consistent with the National Association of Insurance Commissioners Guidelines on Medical/Lifestyle Questions, state insurance regulatory authorities should prohibit underwriting based on sexual orientation of lifestyle.
F.5. Any HIV Test required by an insurer that may be the basis for an adverse underwriting action should conform to generally accepted public health protocols.
F.6. An insurer should be prohibited from asking applicants whether they have taken an HIV test or sought counseling regarding HIV.
F.7. An insurer may disclose positive HIV results to a health care provider named by the applicant for that purpose, or to the applicant upon specific request. Disclosure to the applicant should be accompanied by appropriate counseling or referral for counseling.
F.8. States should adopt confidentiality statutes or regulations consistent with the National Association of Insurance Commissioners Insurance Information and Privacy Protection Model Act.
F.9. All health insurance policies and health plans that cover a comprehensive range of medical conditions should cover AIDS, ARC and HIV to the same extent as other serious medical conditions.
F.10. Insurers should be encouraged to cover care in the home, nursing homes, hospices, or outpatient facilities to the extent that such alternative are cost-effective.
F.11. Insurers should be encouraged to apply case management techniques to HIV-related care.
F.12. Insurers should be encouraged to include coverage of drugs which have been approved by the FDA under a Treatment mechanism.
F.13. The period of exclusion for HIV-related conditions should be no longer than for other pre-exiting conditions.
F.14. Insurers should not cancel or refuse to renew or increase premiums on an individual insurance policy because of the individual's HIV-related claims or a change in health status.
F.15. Public and private entities should share responsibility for financing health care for medically uninsured individuals, including individuals with HIV-related conditions.
G. DRUG DEVELOPMENT
G.1. The Food and Drug Administration should continue and expand its efforts to accelerate review, approval and dissemination of HIV-related drugs, vaccines and medical devices.
G.2. Public and private entities should support forms of community-based drug trials as a mechanism to make experimental therapies available to the widest range of individuals with HIV.
G.3. The Food and Drug Administration should continue to require a demonstration of drug efficacy by well-controlled studies so long as potentially effective drugs are available for clinical studies among the widest range of individuals with HIV.
G.4. The Secretary of Health and Human Services should require all state Medicaid programs to reimburse for HIV-related drugs that have been approved by the Food and Drug Administration for marketing or made available under a Treatment mechanism.
G.5. The federal government should evaluate and address the financial, legal and other obstacles limiting access to HIV-related drugs.
H. EMPLOYMENT
H.1. Employers should not test employees for HIV except in those extraordinarily rare instances in which an employee's HIV status is relevant to his or her job performance.
H.2. Consistent with existing standards governing refusals to work, and after appropriate HIV education and notice regarding possible sanctions, employers may discipline any employee or group of employees who refuse to have work-related contact with an individual who is known or perceived to have HIV.
H.3. Employees should retain the right to refuse to work if:
An employer fails to comply with CDC recommendation or other governmentally required HIV safeguards, and such failure results in an unsafe work environment; or
Consistent with OSHA protections, the employee's refusal to work is based on reasonable belief that: there is an imminent danger of HIV infection in the workplace; and alternatives to a refusal to work are inadequate to eliminate the imminent danger.
I. DISCRIMINATION
I.1. State and local government should enact and enforce legislation which prohibits discrimination against an otherwise qualified individual? as defined by such legislation in employment, housing public accommodations, or governmental services solely by reasons of the fact that such individual is, or is regarded as being, infected with HIV or having AIDS or an AIDS-related condition.
I.2. Public and private entities should take appropriate steps to ensure that people in minority communities receive equal access to HIV-related treatment, prevention and research programs.
I.3. The Fair Housing Amendments Act prohibiting discrimination because of disability, including actual or perceived HIV status, should be effectively and speedily implemented and enforced.
J. PUBLIC SCHOOL EDUCATION
J.1. A student should not excluded from school because of known or perceived HIV status.
J.2. A student should not be separated from his or her classmates because of known or perceived HIV status unless:
The student has presented behaviors which under current medical knowledge present a substantial and genuine risk of HIV transmission;
School authorities have made reasonable efforts to provide counseling and training directed toward preventing risk behaviors or have determined that such efforts are unlikely to succeed;
Appropriate consideration has been given to the psychological and educational effects of the separation on the individual student;
The particular form of separation is the least restrictive means of effectively reducing the risk of HIV transmission;
School authorities periodically evaluate all relevant factors regarding the continuing need for separating the student from his/her classmates; and
A program is designed to train the student to join the general school population.
J.3. All school systems should adopt appropriate policies and curricula regarding the education of all students, staff and parents regarding HIV.
J.4. School authorities should afford maximum confidentiality to a student's HIV status.
K. CHILD WELFARE
K.1. Foster care and adopting agencies should not routinely test children for HIV. Agency decision to test a child should be made on a case-by-case basis and should be governed by written criteria that are consistent with generally accepted public health recommendations.
K.2. The HIV status of adoptive or foster children should be afforded maximum confidentiality protection, but should be disclosed to foster care or adoptive parents.
K.3. Foster care and adoption agencies should provide HIV-related services to children under their jurisdiction consistent with the goal of providing appropriate services in the least restrictive setting.
K.4. Foster care and adoption agencies shall consider the HIV status of foster care or adoptive parents only to the same extent as other medical conditions are considered.
L. FAMILY LAW
L.1. HIV status generally should be not deemed admissible evidence in a family law proceeding. Such evidence may be considered only if:
There is a preliminary independent showing which supports the relevancy of such evidence; and
HIV status is probative of the issue in question.
L.2. HIV status should be considered only in the same manner as other medical conditions in:
Awarding alimony where a party's health is at issue; or
Determining child custody and visitation.
L.3. HIV status should not be deemed admissible evidence for the purpose of proving a party's sexual orientation.
M. DRUG ABUSE
M.1. States and localities should address the HIV epidemic among drug abusers and their partners as a significant public health problem and should support appropriate public health education and medical interventions.
N. IMMIGRATION
N.1. Legalization pursuant to the Immigration Reform and Control Act should not be denied to otherwise-qualified aliens solely because of HIV status.
N.2. Non-immigrant visitors to the United States should not be barred solely because of HIV status.
N.3. Otherwise-qualified political asylees and refugees should not be barred from the United States solely because of HIV status.
N.4. The Attorney General should have the authority to waive exclusions based on HIV status for immigrants on a case-by-case basis.
O. EDUCATING THE PUBLIC
O.1. Accurate, effective education of the public regarding HIV, consistent with generally accepted public health recommendations, should be supported by public and private entities as essential to any informed response to legal issues arising from the HIV epidemic.
[Passed in August 1989.]
[As amended in February 1990.]
BE IT RESOLVED, That the American Bar Association endorses the global strategy of the World Health Organization (WHO) for the worldwide prevention and control of AIDS;
BE IT FURTHER RESOLVED, That the American Bar Association urges (a) the Government of the United States to strengthen its support for the WHO global program on AIDS (WHO/GPA), including AIDS program activities implemented by the Pan American Health Organization (PAHO), and for bilateral programs of research, prevention and control; (b) the effective coordination of international AIDS programs conducted by the WHO/GPA, PAHO, and other global, regional, bilateral arrangements, and private voluntary organizations.
[Passed in August 1989.]
RESOLVED, That the American Bar Association urges the Government of the United States to implement legislation, policies, programs, and international agreements that address or are relevant to the HIV/AIDS pandemic in a manner consistent with international human rights law and science-based prevention, care, support, and treatment objectives.
FURTHER RESOLVED, That the American Bar Association endorses and urges the timely accomplishment of human rights and other achievement targets set forth in the United Nations Declaration of Commitment on HIV/AIDS, dated June 2001.
[Passed in February 2004]
BE IT RESOLVED, That the American Bar Association supports action by federal, state, local, and territorial governments to create legal mechanisms that allow people with HIV, AIDS or other debilitating, chronic, fatal illnesses to better plan for long-term care for themselves and their families, including standby guardianships, advance medical directives, and viatical settlements.
BE IT FURTHER RESOLVED, That the American Bar Association supports educational activities and other efforts designed to encourage implementation of appropriate legislation on standby guardianships, advance medical directives, and viatical settlements.
BE IT FURTHER RESOLVED, That where legislation is implemented concerning standby guardianships, advance medical directives, or viatical settlements, such legislation should contain appropriate consumer safeguards.
[Passed in August 1995.]
BE IT RESOLVED, That in order to further scientifically based public health objectives to reduce HIV infection and other blood-borne diseases, and in support of our long-standing opposition to substance abuse, the American Bar Association supports the removal of legal barriers to the establishment and operation of approved needle exchange programs that include a component of drug counseling and drug treatment referrals.
[Passed in August 1997]
BE IT RESOLVED, That the American Bar Association urges enactment of state legislation providing that the fact or suspicion that an owner or occupant was infected with HIV, diagnosed with AIDS, or diagnosed with any other disease determined by medical evidence not to be transmittable through occupancy of improvements located on such property is not a material fact requiring disclosure in real estate transactions.
[Passed in August 1992.]
