¹ A few states, such as New York, Rhode Island, Florida and Maine have adopted HIV statutes that treat some major issues in a reasonably comprehensive fashion, Systematically researching the regulations and case law that bear on HIV legislation is beyond the scope of this article. Another classification problem is whether related legislation that makes no reference to HIV, such as statutes on sexually transmitted diseases or on prohibiting discrimination on the basis of handicap, should be included in the article. A judicial or administrative determination that HIV-positivity is a sexually transmitted disease or is a handicap would trigger the application of a whole body of pre-existing public health and antidiscrimination law. The authors did not systematically examine these related statutory schemes. Legislation that mentions the disease was the basis for inclusion.

² See generally Redfield, & Burke, , HIV Infection: The Clinical Picture, 259 SCI. AM. 90 (1988)Google Scholar.

³ Of course the flexibility of policy making by legislation can be greatly enhanced by activist, common law courts. See G. CALABRESI, A COMMON LAW FOR THE ACE OF STATUTES (1982).

⁴ In 1983, New York established the AIDS Institute. N.Y. PUB. HEALTH LAW § 2775 (Mc-Kinney 1985). In 1984, New Jersey appropriated grant money for research regarding treatment, service needs and education. NJ. STAT. ANN. § 26:5C-2 (West 1987). New Jersey also designated the University of Medicine and Dentistry of New Jersey as a resource center and provider of diagnostic procedures, medical treatment and counseling. Id. at § 26:5C-4.

⁵ CAL. HEALTH & SAFETY CODE § 1630 (West Supp. 1990).

⁶ Id. at § § 199.20,.42.

⁷ Id. at § 199.21.

⁸ Id. at § 199.38.

⁹ FLA. STAT. ANN. § 760.50 (West Supp. 1989); IOWA CODE ANN. § 601A.6(l)(d) (West Supp. 1989); ME. REV. STAT. ANN. tit. 5, § 19204-B (Supp. 1989); R.I. GEN. LAWS § 23-6-22 (1988); WASH. REV. CODE ANN. § 49.60.174 (1989).

¹⁰ The most noteworthy changes made by these second generation statutes have occurred in the area of marriage license testing and contact tracing. Both Illinois and Louisiana, the only two states to enact pre-marital testing laws, repealed them. 1989 111. Legis. Serv. 884 (West); 1988 La. Sess. Law Serv. 808 (West).

¹¹ See, e.g., CAL. HEALTH & SAFETY CODE § 1797.186 (West Supp. 1990); FLA. STAT. ANN. § 384.29 (West Supp. 1989); GA. CODE ANN. § 31-21-3 (Supp. 1989).

¹² CAL. HEALTH & SAFETY CODE § 199.25 (West Supp. 1990).

¹³ In the McCarthy era, for example, the civil liberties violations did not involve the state locking up putative communists, so much as exposing them so that private retaliation could do the work. Confidentiality serves as a preservative right, providing practical protection for rights to fair treatment that could not be otherwise effectively guaranteed.

¹⁴ The Supreme Court has ruled that there is no constitutional damage remedy when the government distributes defamatory information. Paul v. Davis, 424 U.S. 693 (1976). The Court probably did not mean to rule so broadly as to uphold any and all medical disclosures. Indeed, in Whalen v. Roe, the Court, by implication, accepted that the Constitution requires the Court to scrutinize whether information is collected with adequate protections of confidentiality. Whalen, 429 U.S. 589 (1977) (sustaining statutory scheme of procedural safeguards for maintaining computerized records of patients who use dangerous prescription drugs).

¹⁵ F. GRAD, PUBLIC HEATH LAW MANUAL (1973).

¹⁶ See generally Note, Breach of Confidentiality: An Emerging Tort, 82 COLUM. L. REV. 1426 (1982). This emerging jurisprudence is superimposed on a new and contrary legal pattern which imposes duties on professionals and private citizens to reveal confidential medical information which could help third parties defend themselves against potentially dangerous individuals. See, e.g., Brady v. Hopper, 751 F.2d 329 (10th Cir. 1984) (stating that a psychiatrist incurs a duty to warn third party when patient makes specific threat to a specific person); TarasofFv. Regents of the Univ. of Cal., 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976) (establishing a psychiatrist's duty to a third party); Berner v. Caldwell, 543 So. 2d 686 (Ala. 1989) (holding that one who knows or should reasonably know he has genital herpes is under duty to abstain from sexual contact or to warn others before having contact); B.N. v. K.K., 312 Md. 135, 538 A.2d 1175 (1988) (recognizing a duty to warn or abstain from intercourse when defendant has herpes).

¹⁷ Id.

¹⁸ Id.

¹⁹ Some states reject such duties. See, e.g., Coralluzzo v. Fass, 450 So. 2d 858 (Fla. 1984). This was an action that sought to enjoin plaintiff's treating physician from discussing her medical treatment with other physicians whom plaintiff was suing in a separate matter. The court held that no statute or common law prohibited, even by implication, a treating physician from extrajudicially disclosing information obtained from his patient without the patient's consent even if such disclosure constituted a violation of ethical standards as such standards had not been codified. The court left open the issue whether the plaintiff had a right of action against the physician for breach of fiduciary duty. But see FLA. STAT. ANN. § 455.241 (2) (West Supp. 1989) (confidentiality of private physicians’ patient records); id. at § 395.017(3) (confidentiality of hospital patient records).

²⁰ If the revelation is printed in a newspaper or widely circulated, then there are plenty of academic authorities and some cases supporting imposition of prima facie liability. The case law's support is particularly impressive when defendants have published pictures and accounts of individuals who are sick. See Hill, , Defamation and Privacy Under the First Amendment, 76 COLUM. L. REV. 1205 (1976)Google Scholar.

²¹ Prima facie liability does not mean the defendant pays damages. Rather, the issue then becomes whether or not the publication is constitutionally protected from serving as the basis of evil liability. For example, in Cox Broadcasting Corp. v. Cohn, the Supreme Court held that the news media have a first amendment right to publish the names of crime victims if they appear in public judicial records. Cox, 420 U.S. 469, 491 (1975). Similarly, public officials’ private lives are newsworthy and publication of such information may not serve as the basis of civil liability. There may be a common law privilege to warn potential employers about a thief. Such privileges sharply reduce the ambit of actual liability, but they do not defeat the principle that duties to maintain confidence exist and must be outweighed, not simply ignored. When a disclosure is not published, but is merely communicated to another person, the question of liability is problematic. The authors believe a duty should exist, again on the assumption that the disclosure reveals deeply personal medical matters potentially damaging to reputation. Perhaps such actions can be grounded in trust law. See Note, Action for Breach of Medical Secrecy Outside the Courtroom, 36 U. CINN. L. REV. 103 (1967).

²² ALA. CODE § 22-11A-22 (Supp. 1989); CAL. HEALTH & SAFETY CODE § 199.21 (West Supp. 1990); D.C. CODE ANN. § 6-2805 (1989); FLA. STAT. ANN. § 381.609(2)(f) (West Supp. 1989); GA. CODE ANN. § 29-947 (Supp. 1989); ME. REV. STAT. ANN. tit. 5, § 19203 (Supp. 1989); MASS. GEN. LAWS ANN. ch. 111, § 70F (West Supp. 1989); N.H. REV. STAT. ANN § 141- F:8 (Supp. 1989); NEV. REV. STAT. § 441.210 (1985); N.C. GEN. STAT. § 130A-143 (1989); TEX. HEALTH & SAFETY CODE ANN. § 81.103 (Vernon Supp. 1990); WASH. REV. CODE ANN. § 70.24.105 (Supp. 1989); WIS. STAT. ANN. § 146.025(5)(a) (West 1989); N.Y. PUB. HEALTH LAW § 2782 (McKinney Supp. 1990); OKLA. STAT. ANN. tit. 63, § 1-502.2 (West Supp. 1990).

²³ These more narrowly drawn safeguards most often protect the public health records created by the statutory requirements that those who treat and/or diagnose AIDS report the names of those patients to department of health registries. IND. CODE ANN. § 16-1-9.5-7(a) (West Supp. 1989); KY. REV. STAT. ANN. § 214.420(1), (2) (Michie/Bobbs-Merrill Supp. 1988); IDAHO CODE § § 39-601, 606 (Supp. 1989) (also protecting such records but only so long as the “sufferer conforms to the requirements” of the chapter); ARK. CODE ANN. § 20-15-901(a), (b) (Supp. 1989) (protecting only the test results of those tests performed under the state's free testing program).

²⁴ CAL. HEALTH & SAFETY CODE § 199.30 (West Supp. 1990) (research information); § 199.42 (public records); ILL. ANN. STAT. ch. 116, para. 207(cc) (Smith-Hurd Supp. 1989) (exempting public health records from the reach of the Freedom of Information Act); TEX. CODE CRIM. PROC. ANN. § 21.31 (Vernon 1989) (protecting the results of mandatory testing of those charged with sex offenses).

²⁵ See, e.g., MASS. GEN. LAWS ANN. ch. 111, § 70F (West 1989) (“No health care facility… and no physician or health care provider shall … disclose the results of such test to any person other than the subject thereof….“).

²⁶ See infra notes 118-20 and accompanying text.

²⁷ See infra notes 68, 238 and accompanying text.

²⁸ Judson, & Vernon, , The Impact of AIDS on State and Local Health Departments: Issues and a Few Answers, 78 AM. J. PUB. HEALTH 387, 389 (1988)Google Scholar.

²⁹ 429 U.S. 589 (1977).

³⁰ Id. at 604.

³¹ The authors have not studied current administrative policy and do not know of any single monograph that spells it out in terms of citations to statutes and implementing regulations rather than reporting the results of conversations or surveys of state public health departments.

³² 1 M. ROWE & B. BRIDGHAM, EXECUTIVE SUMMARY AND ANALYSIS: LAWS GOVERNING CONFIDENTIALITY OF HIV-RELATED INFORMATION—1983 TO 1988, at 1-7 (1989).

³³ ALA. CODE § 22-11A-I4(a) (Supp. 1989); COLO. REV. STAT. § § 25-4-1402, -1403 (1989) (HIV positive test, AIDS or HIV related illness); FLA. STAT. ANN. § 381.609(2)(f)(5) (West Supp. 1989) (HIV test result); IDAHO CODE § 39-606 (1989) (those being treated for HIV, ARC and AIDS, etc.); WIS. STAT. ANN. § 146.025(7)(b)(3) (West 1989) (presence of test result HTLV-III antibody); MICH. COMP. LAWS ANN. § 333.5114(1) (West Supp. 1989) (HIV infection); id. at § 791.267(4) (prisoners’ positive test results); MD. HEALTH-GEN. CODE ANN. § 18- 207 (Supp. 1989) (HIV); Mo. REV. STAT. § 191.653(3) (Supp. 1990) (identity of any individual “confirmed to be infected with HIV.“).

³⁴ ILL. ANN. STAT. ch. 111 1/2, para. 7354 (Smith-Hurd Supp. 1989); FLA. STAT. ANN. § 384.25 (West 1989) (physician-diagnosed cases of AIDS and ARC and reporting HIV positive test results, but reporting of the latter only if federal funding has been provided and after the health department has passed necessary regulations); KAN. STAT. ANN. § 65-6002 (1988) (suffering from or died of AIDS); CAL. HEALTH & SAFETY CODE § 1603.1(c) (West Supp. 1990) (transfusion associated AIDS); id. at § 1603.1(d) (hospitalized confirmed AIDS and transfusion associated).

³⁵ VA. CODE ANN. § 32.1-36(c) (1988).

³⁶ TENN. CODE ANN. § 68-5-102 (1989) (“Whenever any physician, … shall know or suspect that any person whom he has been called to visit, or who has been brought to him for examination (or any other suspicious information received relative thereto), is infected (or even so suspected) with any communicable disease (except venereal disease), he shall immediately notify the health authorities of the town or county wherein the diseased person or persons are found ….“). AIDS is included within the definition of communicable disease.

Kentucky not only requires reporting by physicians who are treating persons suffering from a reportable disease to the department of health, but also requires “every head of a family… [to] report any of said diseases, when known by him to exist in his family, to the local board or to some member thereof ….” KY. REV. STAT. ANN. § 214.010 (Michie/Bobbs- Merrill 1988).

³⁷ But see Lyter, , Valdiserri, , Kingsley, , Amoroso, & Rinaldo, , The HIV Antibody Test: Why Gay and Bisexual Men Want or Do Not Want to Know Their Results, 102 PUB. HEALTH REP. 468-74 (1987)Google Scholar (study showing that only one percent of subjects who chose not to learn their test results did so because of their concerns about confidentiality).

³⁸ See Judson & Vernon, supra note 28; Fehrm, , Trial of Anonymous versus Confidential Human Immunodeficiency Virus Testing, THE LANCET, Aug. 13, 1988, at 379Google Scholar.

³⁹ See Judson & Vernon, supra note 28.

⁴⁰ Id. at 391.

⁴¹ Id.

⁴² See Fehrm, supra note 38.

⁴³ Id. at 380.

⁴⁴ HIV Reporting in the States, STATE AIDS REPORTS, Feb.-Mar. 1989, at 2 (hereinafter HIV Reporting).

⁴⁵ 42 U.S.C. § 2431 (1989).

⁴⁶ HIV Reporting, supra note 44, at 2.

⁴⁷ Id.

⁴⁸ See, e.g., ILL. ANN. STAT. ch. 111 1/2, para. 7354 (Smith-Hurd 1988).

⁴⁹ See, e.g., IOWA CODE ANN. § 139.34 (1987).

⁵⁰ See, e.g., KAN. STAT. ANN § 65-6002 (1988); Mo. REV. STAT. § 191.656 (Supp. 1990) (records are “strictly confidential“).

⁵¹ See MD. HEALTH-GEN. CODE ANN. § 18-207(b) (Supp. 1989).

⁵² NEB. REV. STAT. § 71-502.04 (Supp. 1988); MD. HEALTH-GEN. CODE ANN. § 18-207 (Supp. 1989).

⁵³ COLO. REV. STAT. § 25-4-1402 (1989); KAN. STAT. ANN § 65-2002 (1988); CAL. HEALTH & SAFETY CODE § 1603.1(c) (West 1990) (reporting of transfusion related AIDS cases); id. at § 1603.1(d) (hospitalized “confirmed AIDS carriers and transfusion related AIDS cases.“); MICH. COMP. LAWS ANN. § 333.5114(2) (West 1989). Within 7 days after obtaining a positive test result, the laboratory or person performing the test must report to the local health department, among other data, the name, address, telephone number, age, race, sex, county of residence and the probable method of transmission. However, when the test has been performed in a private physician's office or that of an HMO physician, the patient may request that her name not be provided to the local health department. The physician must comply with the request. Id. at § 333.5114(3); Mo. REV. STAT. § 191.653(3) (Supp. 1990) (“[A]ll physicians, hospitals, or other [authorized] persons … who perform … HIV blood sampling … shall report to the Department of Health the identity of any individual confirmed to be infected with HIV.“); VA. CODE ANN. § 32-l-36(c) (Supp. 1989) (requiring the reporting of the identity of HIV positive patient, but making the act of reporting permissive); WIS. STAT. ANN. § 146.025(7)(b)(3) (West 1989).

⁵⁴ FLA. STAT. ANN. § 384.25(2) (West Supp. 1989).

⁵⁵ MICH. COMP. LAWS ANN. § 333.5114(l)(a) (West 1989).

⁵⁶ DEL. CODE ANN. tit. 16, § 1203(b) (Supp. 1988) (prohibiting further disclosure by the person or agency authorized to receive test results); MD. HEALTH-GEN. CODE ANN. § 18-207 (Supp. 1989) (prohibiting its monthly statistical summary from disclosing, directly or indirectly, the identity of an individual test for HIV); VA. CODE ANN. § 32.1-38 (1988) (specifically prohibiting the commissioner and all local health directors from disclosing “to the public the name of any person reported or the name of the person making a report” pursuant to the reporting laws).

In contrast, Idaho conditions confidentiality on the patient's compliance with department regulations. IDAHO CODE § 39-606(1989) (“It is the intent of this chapter to observe all possible secrecy for the benefit of the sufferer so long as the said sufferer conforms to the requirements of this chapter.“).

⁵⁷ GA. CODE ANN. § 24-9-47(t)(8) (Supp. 1989); NEB. REV. STAT. § 71-503.01 (1986); KY. REV. STAT. ANN. § 214.020 (Michie/Bobbs-Merrill 1988).

⁵⁸ N.C. GEN. STAT. § 130A-143(6) (1989).

⁵⁹ Id.

⁶⁰ ILL. ANN. STAT. ch. 111 1/2, para. 7408(a)(3)(b) (Smith-Hurd 1988).

⁶¹ OKLA. STAT. ANN. tit. 63, § 1-502.2(A)(1) (West 1989).

⁶² CAL. HEALTH & SAFETY CODE § 199.42(b) (West 1989 & Supp. 1990); COLO. REV. STAT. § 25-4-1404(l)(b) (1988 & Supp. 1989); IDAHO CODE § 39-606 (Supp. 1989); ILL. ANN. STAT. ch. 111 1/2, para. 7309(d) (Smith-Hurd 1988 & Supp. 1989); IND. CODE ANN. § 16-1-9.5- 7(a)(3) (West 1988 & Supp. 1989); ME. REV. STAT. ANN. tit. 5, § 19203(8) (Supp. 1989); KAN. STAT. ANN. § 65-6002(c)(3) (Supp. 1988); N.C GEN. STAT. § 130A-143(8) (1989); S.C CODE ANN. § 44-29-135(c), (d) (Law. Co-op. 1988 & Supp. 1989); OKLA. STAT. ANN. tit. 63, § 1- 502.2(A)(3) (West 1989 & Supp. 1990); MICH. COMP. LAWS ANN. § 333.5131(5)(a) (West Supp. 1989). Hawaii permits release of HIV data to protect the public health only if it is made in a way in which no person can be identified. HAW. REV. STAT. § 325.101(a)(4) (1988 & Supp. 1989).

Missouri's statutory language is the broadest. It permits the disclosure of otherwise confidential “information held or maintained by any person, agency, department, or political subdivision of the state concerning an individual's HIV infection status … to fpjublic employees within the agency, department, or political subdivision … [and] public employees of other agencies, departments, or political subdivisions who need to know to perform their public duties.” Mo. REV. STAT. § 191.656(1)(1)(a), (b) (1989 & Supp. 1990).

⁶³ Gillon, , Testing for HIV Without Permission, 294 BRIT. MED. J. 821-23 (1987)CrossRefGoogle Scholar; ROSCAMABBING HDC, AIDS Testen En Privacy in AIDS: OORZAAK EN GEVOLG. NEDERLANDS GESPREKSCERPRUM 41-62 ('S-Gravenhage ed. 1988); R. BAYER, L.H. LUMEY & L. WAN, AMERICAN BRITISH AND DUTCH RESPONSE TO UNLINKED ANONYMOUS HIV SEROPREVALENCE STUDIES: AN INTERNATIONAL COMPARISON IN AIDS (in press).

⁶⁴ COLO. REV. STAT. § 25-4-1405(8)(a)(III) (1988 & Supp. 1989); HAW. REV. STAT. § 325- 101(a)(1) (1988 & Supp. 1989); ILL. ANN. STAT. ch. 111 1/2, para. 7408(a)(2) (Smith-Hurd 1988 & Supp. 1989); IND. CODE ANN. § 16-l-9.5-7(a)(l) (West 1988 & Supp. 1989); KY. REV. STAT. ANN. § 214.420(3)(b) (Michie/Bobbs-Merrill Supp. 1988); S.C. CODE ANN. § 44-29- 135(a) (Law. Co-op. 1988 & Supp. 1989); ME. REV. STAT. ANN. tit. 5, § 19203(5) (Supp. 1989) (release may be made of medical or epidemiologic information for statistical purposes in a manner in which no individual person can be identified); FLA. STAT. ANN. § 381.609(2)(f)(5), (8) (West 1988 & Supp. 1989) (disclosure to the department of health in accordance with rules for reporting and controlling the spread of disease and to “authorized medical or epidemiological researchers who may not further disclose any identifying characteristics or information“); cf. WIS. STAT. ANN. § 146.025(5)(a)(10) (West 1988 & Supp. 1989) (disclosure to a medical researcher is permitted only if the researcher is affiliated with the test subject's health care provider, has obtained permission to perform the research from an institutional review board, and provides written assurance to the person disclosing the test results that use of information requested is only for the purpose under which it is provided to the researcher, and that no further disclosure will be made without the informed consent from the test subject).

⁶⁵ HAW. REV. STAT. § 325-101(c) (1988 & Supp. 1989).

⁶⁶ The following states require written consent and do not specify that the writing take any special form: ALA. CODE § 22-llA-22 (1988 & Supp. 1989); FLA. STAT. ANN. § 381.609(2) (a) (West 1988 & Supp. 1989) (no written consent required if there is documentation in the medical record saying the test was explained and consent obtained); GA. CODE ANN. § 24-9-47(d) (1988 & Supp. 1989); HAW. REV. STAT. § 325-(10)(a)(2) (1988 & Supp. 1989); ILL. ANN. STAT. ch. 111 1/2, para. 7309(b) (Smith-Hurd 1988 & Supp. 1989) (requiring a “legally effective release“); IND. CODE ANN. § 16-l-9.5-7(a)(2) (West 1988 & Supp. 1989); KAN. STAT. ANN. § 65-6002(c)(2) (1985 & Supp. 1988); KY. REV. STAT. ANN. § 214.420(3)(c) (Michie/Bobbs-Merrill 1987 & Supp. 1988); ME. REV. STAT. ANN. tit. 5, § 19203(3) (Supp. 1989); N.H. REV. STAT. ANN. § 141-F:8-III (1988 & Supp. 1989) (disclosure may only be made in response to a written consent; request must state “the reasons for the request and shall contain only the identity of the infected person.“); N.C. GEN. STAT. § 130A- 143(2) (1989); WIS. STAT. ANN. § 146.025(3) (West 1988 & Supp. 1989); OKLA. STAT. ANN. tit. 63, § 1-502.2(A)(2) (West 1989 & Supp. 1990); KAN. STAT. ANN. § 65-6002(2) (1985 & Supp. 1988); N.C. GEN. STAT. § 130A-142(2) (1989); Mo. REV. STAT. § 191.656(2)(c) (1989 & Supp. 1990); MASS. GEN. LAWS ANN. ch. 111, § 70F (West 1989); MICH. COMP. LAWS ANN. § 333.5131(5)(d) (West 1988 & Supp. 1989). Information pertaining to an individual who has a “communicable disease or a serious communicable disease or infection” is disclosable if expressly authorized in a writing which is “specific to the communicable disease or serious communicable disease or infection.” HIV infection, ARC and AIDS are serious communicable diseases or infections. Id. at § 333.5101 (l)(g); W. VA. CODE § 16-3C-3(a)(2) (1989) (disclosure permitted to any “person who secures a specific release of test results executed by the subject of the test“).

⁶⁷ Under the California statute, each separate disclosure requires a separate written consent. CAL. HEALTH & SAFETY CODE § 199.21(g) (West 1989 & Supp. 1990).

⁶⁸ Id. (document must specify to whom release will be made); MASS. GEN. LAWS ANN. ch. 111, § 70F (West 1988 & Supp. 1989) (document must specify purpose of release and the form must be distinguishable from any other written consent form used for medical records); TEX. REV. CIV. STAT. ANN. art. 4419b-l, § 9.03(d) (Vernon Supp. 1990) (document must specify to whom release is made); WASH. REV. CODE ANN. § 70.24.105(2)(b) (1988 and Supp. 1989) (“specific release of test results must be in accord with RCW 7.70.065“). New York law requires:

N.Y. PUB. HEALTH LAW § 2780(9) (McKinney 1989 & Supp. 1990).

In addition, New York requires a special release where the information is to be disclosed to an insurance institution for purposes other than reimbursement. In that case, the authorization must be dated and must indicate “that health care providers, health facilities, insurance institutions, and other persons are authorized to disclose information about the protected individual, the nature of the information to be disclosed, the purposes for which the information will be disclosed.” The authorization must be signed by: “(1) the protected individual; (2) if the protected individual lacks the capacity to consent, such other person authorized pursuant to law to consent for such individual; or (3) if the protected individual is deceased, the beneficiary or claimant for the benefits under an insurance policy, a health services plan, or an employee welfare benefit plan … covering such protected individual.” Id. at § 2782(l)(j).

⁶⁹ Id. at § 2780(7).

⁷⁰ GA. CODE ANN. § 31-22-9.1(a)(2) (1988 & Supp. 1989).

⁷¹ Such patient hospital records are “two feet thick” with “HIV references on every page.” J. Quarrier, Assistant Counsel, New York State Dep't of Health, Remarks at the New York State Bar Ass'n Conference on HIV Confidentiality (June 9, 1989).

⁷² The following states permit other persons to authorize disclosure. CAL. HEALTH & SAFETY CODE § 199.2(g) (West 1990) (“person responsible for care and treatment“); GA. CODE ANN. § 24-9-47(d) (1988 & Supp. 1989) (parent or legal guardian if subject is a minor or incompetent); IDAHO CODE § 39-606 (“person or guardian or as otherwise authorized by law“); ILL. ANN. STAT. ch. 111 1/2, para. 7309(b) (Smith-Hurd 1988 & Supp. 1989) (“legally authorized representative“); IOWA CODE ANN. § 1351.3(a) (person or guardian); TEX. REV. CIV. STAT. ANN. art. 4419b-l, § 9.03(d) (Vernon 1990) (“person legally authorized to consent to the subject's being tested“); WASH. REV. CODE ANN. § 70.24.105(2)(a) (1988 & Supp. 1989) (subject's legal representative for health care decisions); W. VA. CODE § 16-3C-4 (1988 & Supp. 1989) (specifying a hierarchy of permissible substitutions for the patient: a person holding a “durable power of attorney for health care decisions;” the person's appointed legal guardian; the patient's next of kin in the following order of preference: spouse, parent, adult child, sibling, uncle or aunt, grandparent. The statute mandates that the person's inability to consent “shall not be permitted to result in prolonged delay or denial of necessary medical treatment.“). Neither Alabama nor Massachusetts provide for written consent to be given by another person.

⁷³ IOWA CODE ANN. § 141.22(6) (West 1989) (requiring that minors be informed prior to undergoing voluntary HIV testing that their legal guardian will be informed of a positive test result).

⁷⁴ California allows a parent or legal guardian to give consent for HIV testing if the subject is under 12 years of age. The person who provides such consent is then authorized to receive the results of the test. CAL. HEALTH & SAFETY CODE § 199.27(a)(1) (West Supp. 1990); GA. CODE ANN. § 24-9-47(c) (Supp. 1989) (“AIDS confidential information may be disclosed …, if that person is a minor or incompetent person, to that person's parent or legal guardian.“); N.H. REV. STAT. ANN. § 141-F:7-III (Supp. 1989) (permitting disclosure to a parent or legal guardian if the seropositive person under 18 years old tests positive or is mentally incapable of understanding the ramifications of a positive test; ALA. CODE § 22-11A-19 (Supp. 1989) (test or treatment provider may, “but shall not be obligated to, inform the parent, parents or guardian ….“); COLO. REV. STAT. § 25-4-1405(6) (1989) (if the minor is under sixteen and not emancipated, the health care provider may be informed of the minor's consultation, examination or treatment); Mo. REV. STAT. § 191.6562(l)(f), (2) (Supp. 1990) (permitting disclosure to the parents and legal guardians but imposes no duty of disclosure upon the holder of the results); see also COLO. REV. STAT. § 25-4-1405(6) (1989) (regarding the prohibition against the unconsented to release of information concerning emancipated minors and those over sixteen years of age.

⁷⁵ MICH. COMP. LAWS ANN. § 333.5127(2) (West 1989).

⁷⁶ COLO. REV. STAT. § 25-4-1405(6) (1989).

⁷⁷ WASH. REV. CODE ANN. § 70.24.105(2)(a), (b) (1989).

⁷⁸ KAN. STAT. ANN. § 65-6002(c)(5) (1988).

⁷⁹ R.I. GEN. LAWS § 23-6-17(b)(i), (ii) (1989).

⁸⁰ ME. REV. STAT. ANN. tit. 5, § 19203(9) (1989); W. VA. CODE § 16-3C-3(a)(4) (West Supp. 1989).

⁸¹ MO. REV. STAT. § 191.656(2)(4) (1990). Missouri provides no specific statutory protection for medical records beyond testimonial privilege for physicians and surgeons. Id. at § 491.060.

⁸² N.Y. PUB. HEALTH LAW § 2782(8) (McKinney Supp. 1990).

⁸³ See, e.g., LA. REV. STAT. ANN. § § 1299.142(B)(2), 1099(B) (West 1989); N.H. REV. STAT. ANN. § 141-F:8-IV (Supp. 1989); IOWA CODE ANN. § 141.23(d) (West 1989).

⁸⁴ LA. REV. STAT. ANN. § § 1299.142(B)(2), 1099(B) (West 1989).

⁸⁵ Id.

⁸⁶ N.H. REV. STAT. ANN. § 141-F:8-IV (Supp. 1989).

⁸⁷ ME. REV. STAT. ANN. tit. 5, § 19203.2 (1989).

⁸⁸ IOWA CODE ANN. § 141.23(l)(d) (West 1989).

⁸⁹ While the Georgia statute limits distribution to health care providers, GA. CODE ANN. § 24-9-47(i)(2) (Supp. 1989), the statutory definition of health care provider goes far beyond strictly medical personnel. It includes, for example, social workers and marriage and family therapists. Id. at § 31-22-9.1(N).

⁹⁰ Id. at § 24-9-47(i)(2). The authors wonder under what circumstances a health care provider or facility which had been, but was no longer, treating the patient would have a legitimate need for the information in order to provide health service to that former patient.

⁹¹ Id. at § 24-9-47.

⁹² MICH. COMP. LAWS ANN. § 333.5131(5)(a)(iii) (West 1989) (emphasis added).

⁹³ id.

⁹⁴ N.C. GEN. STAT. § 130A-143(3) (1989).

⁹⁵ WIS. STAT. ANN. § 146.025(5)(a)(2) (West 1989).

⁹⁶ KY. REV. STAT. ANN. § 214.420(3)(a), (e) (Michie/Bobbs-Merrill Supp. 1988). Other states also permit emergency treatment. See infra note 125 and accompanying text.

⁹⁷ See, e.g., CAL. HEALTH & SAFETY CODE § 199.33 (West Supp. 1990) (where patient is a research subject, disclosure without prior consent is allowed to medical personnel to the extent it is necessary to meet a bona fide medical emergency of the research subject).

Florida and Hawaii permit disclosure in a medical emergency but only to the extent necessary to protect the health or life of the named party. FLA. STAT. ANN. § 384.29(1 )(d) (West Supp. 1989); HAW. REV. STAT. § 325-3 (1988). Under the Florida statute, disclosure may only be made by the Department of Human Resource Services. If a hospital has the information, but the Department does not, the hospital may not disclose it.

New Hampshire permits testing and disclosure of the test results without the person's consent when the person is incapable of giving consent and the results of the test are immediately necessary to protect the health of the person. See also DEL. CODE ANN. § 1203(a) (Supp. 1988) (disclosure permitted to health care providers treating the patient when knowledge of the test results is necessary to provide appropriate emergency care or treatment).

Kansas permits disclosure of health department confidential information “if a medical emergency exists and the disclosure is to medical personnel qualified to treat AIDS, except that any information disclosed pursuant to this paragraph shall be disclosed only to the extent necessary to protect the health or life of a named party ….” KAN. STAT. ANN. § 65-2002(4) (1988).

⁹⁸ FLA. STAT. ANN. § 381.609(2)(f) (West Supp. 1989).

⁹⁹ Ill. ANN. STAT. ch. 111 1/2, para. 7309(c) (Smith-Hurd 1988).

¹⁰⁰ FLA. STAT. ANN. § 381.609(2)(f) (West Supp. 1989); ILL. ANN. STAT. ch. 111 1/2, para. 7309(c) (Smith-Hurd 1988).

¹⁰¹ See pp. 182-85.

¹⁰² MO. REV. STAT. § 191.656(5) (Supp. 1989).

¹⁰³ Prior to receiving any health care services from a physician or dentist, a “person who is found to have … HIV infection shall, prior to receiving any health care services of a physician or dentist, advise such physician or dentist that the person has HIV infection.” ARK. CODE. ANN. § 20-15-903(a), (b) (Supp. 1989).

¹⁰⁴ N.Y. PUB. HEALTH LAW § 2782(l)(c) (McKinney Supp. 1990); WIS. STAT. ANN. § 146.025(5)(a)(3) (West 1989).

¹⁰⁵ DEL. CODE ANN. tit. 16, § 1203(c) (Supp. 1988); N.Y. PUB. HEALTH LAW § 2782(l)(i) (McKinney Supp. 1990); WASH. REV. CODE ANN. § 70.24.105(2)(i) (Supp. 1989). New York permits disclosure to third party reimbursers or their agents, but only to the extent necessary to reimburse health care providers for health services. The statute also requires that authorization for such disclosure be secured by the provider when necessary and otherwise appropriate. New York permits insurance institutions to receive confidential information for purposes other than reimbursement:

N.Y. PUB. HEALTH LAW § 2782(l)(j) (McKinney Supp. 1990).

¹⁰⁶ DEL. CODE ANN. tit. 16, § 1203(7) (Supp. 1988); FLA. STAT. ANN. § 381.609(2)(f)(7) (West Supp. 1989); ILL. ANN. STAT. ch. 111 1/2, para. 7309(f) (Smith-Hurd Supp. 1989); N.Y. PUB. HEALTH LAW § 2782(l)(f) (McKinney Supp. 1990); WIS. STAT. ANN. § 146.025(5)(a)(8) (West 1989). The New York statute contains limitations on the committee's ability to further disclose the confidential HIV-related information:

N.Y. PUB. HEALTH LAW § 2782(l)(f), (6) (McKinney Supp. 1990).

¹⁰⁷ See, e.g., TEX. REV. CIV. STAT. ANN. art. 4419b-l, § 9.03(b)(5) (Vernon Supp. 1990); KAN. STAT. ANN. § 65-6004(a) (Supp. 1988); S.C. CODE ANN. § 44-29-230 (Law. Co-op. 1989).

¹⁰⁸ TEX. REV. CIV. STAT. ANN. art. 4419b-l, § 9.03(b)(5) (Vernon Supp. 1990) (permitting disclosure to physicians, nurses or other health care providers who have a legitimate need to know the test results “in order to provide for their protection and to provide for the patient's health and welfare.“); GA. CODE ANN. § 24-9-47(i)(l), (w)(2) (Supp. 1989) (allowing disclosure to any health care provider or facility providing treatment to the subject and as a result of the provision of that service the provider or facility “has personnel or patients who may be persons at risk of being infected with HIV by that patient … and such disclosure is reasonably necessary to protect such personnel or patients from that risk …. “).

¹⁰⁹ Id. Again, the authors wonder what circumstances would give rise to the need to disclose information — in advance of exposure — in order to protect other patients.

¹¹⁰ KAN. STAT. ANN. § 65-6004(a) (Supp. 1988).

¹¹¹ FLA. STAT. ANN. § 381.609(2)(f) (West Supp. 1989); WIS. STAT. ANN. § 146.025 (5)(a)(3) (West 1989).

¹¹² FLA. STAT. ANN. § 381.609(2)(f)3 (West Supp. 1989); ILL. ANN. STAT. ch. 111 1/2, para. 7309(c) (Smilh-Hurd Supp. 1989); WIS. STAT. ANN. § 146.025(5)(a)(3) (West 1989).

¹¹³ Hilts, Drug Said to Help AIDS Cases with Virus but No Symptoms, N.Y. Times, Aug. 18, 1981, at Al.

¹¹⁴ WIS. STAT. ANN. § 146.025(5m)(c) (West 1988).

¹¹⁵ LA. REV. STAT. ANN. § R.S.40:1299.40(D) (West Supp. 1989).

¹¹⁶ S.C. CODE ANN. § 44-29-230 (Law. Co-op. Supp. 1989).

¹¹⁷ ILL. ANN. STAT. ch. 111 1/2, paras. 7309(h), 7307(b) (Smith-Hurd Supp. 1989).

¹¹⁸ R.I. GEN. LAWS § 23-6-14 (1989).

¹¹⁹ Id.

¹²⁰ Id.

¹²¹ Id.

¹²² Id. at § 23-6-14(d)(iii). This statute also permits non-health care providers to seek testing and disclosure. The statute, however, does not specify to whom this request should be made when the applicant is not a health care provider.

¹²³ ME. REV. STAT. ANN. tit. 5, § 19203-C(5) (West 1988 & Supp. 1989).

¹²⁴ Id. at § 19203-C(4)(c).

¹²⁵ See supra note 97. In the states that do not provide general authorization for disclosure to emergency health care workers, such persons may nonetheless be able to claim relief for a compelling need before a judge.

This, however, is not true in New York. The New York statute requires that there be a “clear and imminent danger to an individual whose life or health may unknowingly be at significant risk as a result of contact with the individual to whom the information pertains” before disclosure can be made. It is unclear to the authors what “unknowingly” means in this context. N.Y. PUB. HEALTH LAW § 2785(2)(b) (McKinney Supp. 1990).

¹²⁶ Rhode Island, however, goes beyond disclosure provisions and permits involuntary testing of the patient. R.I. GEN. LAWS § 23-6-14(d) (1989).

¹²⁷ WASH. REV. CODE ANN. § 70.24.105(2)(h) (Supp. 1989) (“Law enforcement officer[s], fire fighter[s], health care provider[s] or health care facility staff person[s], or other persons as defined by the board [of public health] … who [have] requested a test of a person whose bodily fluids he or she has been substantially exposed to ….“); MASS. GEN. LAWS. ANN. ch. 111, § 111C (West Supp. 1989) (“Any person, including without limitation, a police officer, fire fighter, emergency medical technician, corrections officer, ambulance operator or attendant who, while acting in his or her professional capacity attends, assists, or transports a person ….“); CAL. HEALTH & SAFETY CODE § 1797.188 (West Supp. 1990) (includes paid or unpaid emergency medical technicians, paramedics, life guards, fire fighters and peace officers); ILL. ANN. STAT. ch. 111 1/2, para. 147.08, § 6.08 (Smith-Hurd 1988) (paramedics and ambulance personnel) id. at § 7307(b) (Supp. 1989) (fire fighter, EMT-A or AAMT-I); N.D. CENT. CODE § 23-07.3-02 (Supp. 1989) (emergency medical service providers); LA. REV. STAT. ANN. § 40:1099(A) (West Supp. 1989) (emergency medical technicians, paramedics, fire fighters or “other person who is employed by or voluntarily working with a firm, agency, or organization which provides emergency treatment or transportation.“); S.C CODE ANN. § 44-29-230 (Law. Co-op. Supp. 1989) (limits disclosure to health care workers); GA. CODE ANN. § 24-9- 47(t)(l)(C) (Supp. 1989) (allows public safety agencies and the Department of Human Resources to seek a court order for disclosure if an employee has, “in the course of that employment, come in contact with the body fluids of the person identified by the AIDS confidential information … in such a manner reasonably likely to cause that employee to become an HIV infected person and provided the disclosure is necessary for the health and safety of [the] employee.“); MD. HEALTH-GEN. CODE ANN. § 18-213 (Supp. 1989) (specifically enumerates law enforcement officers, paid or volunteer fire fighters, emergency medical technicians, rescue squadmen); MICH. COMP. LAWS ANN. § 333.20191(1) (West Supp. 1989) (police officer, fire fighter, ambulance attendant, emergency medical technician, emergency medical technician specialist or licensed advanced emergency medical technician); Miss. CODE ANN. § 41-23- 41 (Supp. 1989) (emergency medical technician, fire fighter or other provider of emergency rescue services); FLA. STAT. ANN. § 796.08(7) (West Supp. 1989) (“law enforcement or correctional officer, or a firefighter or paramedic acting within the scope of employment.“); Mo. REV. STAT. § 191.656(8)(l)(a) (Supp. 1990) (stating that “[e]mergency medical persons [means] any person trained and authorized by law or rule to render emergency medical assistance or treatment such as but not exclusively limited to emergency first responders, ambulance attendants and attendant drivers, emergency medical technicians, mobile emergency medical technicians, emergency medical technicians-paramedics, registered nurses, or physicians.“).

¹²⁸ LA. REV. STAT. ANN. § 40:1099(A) (West Supp. 1989); WIS. STAT. ANN. § 146.025 (5)(a)(ll) (West 1989) (person who renders emergency or accident emergency care).

¹²⁹ R.I. GEN. LAWS § 23-6-14(d) (1989).

¹³⁰ VA. CODE ANN. § 32.1-116.3 (Supp. 1989).

¹³¹ Id.

¹³² N.D. CENT. CODE § 23-07.3-02 (Supp. 1989). The authors have recently learned that this statutory provision was repealed a short time ago and replaced. Under the current law, care provider is required to substantiate exposure to a physician in order to have test results disclosed. H.R. 1079 (July 1, 1989). The authors refer to the old law in order to present a legislative option and to show the ephemerality of legislation.

¹³³ MICH. COMP. LAWS ANN. § 333.20191(l)(a) (West Supp. 1989) (requiring that the health facility provide the test results to the emergency care provider upon receipt of a written request from the care provider. The statute does not specify what information the request must contain.).

¹³⁴ Id. The authors wonder whether the testing of emergency patients will soon become a routine aspect of their care.

¹³⁵ MASS. GEN. LAWS ANN. ch. 111, § 111C (West Supp. 1989).

¹³⁶ Id.; see also CAL. HEALTH & SAFETY CODE § 1797.188 (West Supp. 1990) (permitting anonymous disclosure of test results to emergency care providers after they determine they have been “exposed” and have given their names and addresses to the health care facility. The health care facility, in turn, provides this information to the health department. While such attempts at retaining confidentiality are laudatory, it is doubtful that the care provider will not remember the identity of the person by whom he or she was significantly exposed.); Miss. CODE ANN. § 41-23-41 (Supp. 1989) (If care provider is “exposed by direct contact to the patient's blood or other internal body fluids, … [he or she] or his/her employer, shall notify the licensed facility to which the patient is transported of the blood and/or body fluid exposure. If the patient is subsequently diagnosed as having an infectious disease …, the licensed facility shall notify the emergency service provider.” The statute does not appear to require that the patient be tested based upon a report of exposure.); ILL. ANN. STAT. ch. 111 1/2, para. 147.08, § 6.08(c) (Smith-Hurd 1988) (requiring that the hospital send a letter confirming the diagnosis of AIDS to emergency care providers, if they have indicated on the “ambulance run sheet that a reasonable possibility exists that they have had blood or body fluid contact with the patient, or if hospital personnel providing the notification have reason to know of a possible exposure.“).

¹³⁷ ILL. ANN. STAT. ch. 111 1/2, para. 7307, § (7)(b) (Smith-Hurd 1988 & Supp. 1989).

¹³⁸ FLA. STAT. ANN. § 796.08(7) (West Supp. 1989).

¹³⁹ Id.

¹⁴⁰ WIS. STAT. ANN. § 146.025(5)(11) (West 1989).

¹⁴¹ ILL. ANN. STAT. ch. 111 1/2, para. 7303, § 7(b) (Smith-Hurd 1988 & Supp. 1989).

¹⁴² S.C. CODE ANN. § 444-29-230 (Law. Co-op. Supp. 1989).

¹⁴³ WASH. REV. CODE ANN. § 70.24.340(4) (Supp. 1989) (requests by Samaritans for testing and for the disclosure of the results must be accompanied by substantial proof that exposure presents a possible risk of transmission if patient refuses testing).

¹⁴⁴ GA. CODE ANN. § 24-9-47(0(1) (Supp. 1989).

¹⁴⁵ In Massachusetts, for example, emergency care providers must claim that they have sustained an “unprotected exposure.” This term is defined as one which is “capable of transmitting an infectious disease dangerous to the public health …”, and “shall include, but not be limited to, instances of direct mouth-to-mouth resuscitation, or the co-mingling of the blood of the patient and the person who has transported the patient to the health care facility.” MASS. GEN. LAWS ANN. ch. 111, § 111C (West Supp. 1989). California emergency care providers must claim that they have been exposed. “Exposed” is defined as “at risk for contracting the disease ….” CAL. HEALTH & SAFETY CODE § 1797.188(3) (West Supp. 1990). North Dakota has no exposure requirement. N.D. CENT. CODE § 23-07-02.1 (Supp. 1989); but see note 132. Illinois requires an “accidental direct skin or mucous membrane contact with the blood or bodily fluids of an individual which is of a nature that may transmit HIV, as determined by a physician in his medical judgment.” ILL. ANN. STAT. ch. 111 1/2, para. 7309(h) (Smith-Hurd 1988 & Supp. 1989). Louisiana requires “contact with the blood or body fluid” of a patient infected with AIDS. LA. REV. STAT. ANN. § 40:1099(A)(1) (West Supp. 1989). The Wisconsin statute requires “significant” exposure to the victim by one or more of the following:

WIS. STAT. ANN. § 146.025(l)(em) (West 1989). The Missouri statute does not define exposure. The statute simply requires a facility that receives a patient who is subsequently diagnosed as being HIV positive to notify the employer of the emergency care provider that the care provider was exposed to such patient during the performance of her official duties. The notice is to be given in a manner that protects the confidentiality of both the patient and the care provider. Mo. REV. STAT. § 191.656(8)(2) (Supp. 1990).

¹⁴⁶ California, Florida, New York, Washington, Texas, New Hampshire, Idaho, South Carolina, Missouri, Michigan, Georgia and Rhode Island.

¹⁴⁷ See, e.g.. ILL. ANN. STAT. ch. 111 1/2, para. 7405 (Smith-Hurd 1989).

¹⁴⁸ See, e.g., ALA. CODE § 22-11 A-13 (1988).

¹⁴⁹ California, Florida, New York, Washington, Texas, New Hampshire, Idaho, South Carolina, Missouri, Michigan and Rhode Island.

¹⁵⁰ California, Florida, New York, Washington, Texas and New Hampshire.

¹⁵¹ Idaho, South Carolina, Missouri and Michigan (except for private patients).

¹⁵² Georgia.

¹⁵³ Rhode Island.

¹⁵⁴ IDAHO CODE § 39-610 (Supp. 1989); see also S.C. CODE ANN. § 44-29-146 (Law. Co-op. Supp. 1989) (spouse or “known contact.” Contact is denned as the “exchange of body products or body fluids by sexual acts or percutaneous transmission.“); R.I. GEN. LAWS § 23-6- 17(b)(v) (1989) (“Third parties with whom an AIDS-infected patient is in close and continuous contact, including but not limited to a spouse; if the nature of the contact, in the physician's opinion, poses a clear and present danger of AIDS transmission to the third party….“); WASH. REV. CODE ANN. § 70.24.017(13) (Supp. 1989) (“[a]ll persons who, in accordance with standards adopted by the board by rule, are reasonably believed to be infected with [a sexually transmissible disease] for the purpose of investigating the source and spread of the diseases and for the purpose of ordering a person to submit to examination, counseling, or treatment as necessary for the protection of the public health and safety….“). HIV and AIDS have been designated sexually transmissible diseases in Washington. Id.; MICH. COMP. LAWS ANN. § § 333.5131(5)(b),.5101(g) (West Supp. 1989) (permitting a physician to disclose confidential information to a contact of the individual if the physician perceives that there is a reasonably foreseeable risk of transmission of the disease to the third party and disclosure is necessary to prevent transmission). Michigan also has a statutory part ner notification program operated by local health departments. Partners are defined as “sexual or hypodermic needle-sharing partners.” Id. at § 333.5114a(4).

Georgia law has modified its definition of spouse. The term spouse now includes a person with whom the patient has likely had sexual or other relations within the past seven years which are likely to have resulted in transmission. GA. CODE ANN. § 24-9-47(h)(3)(C) (Supp. 1989).

¹⁵⁵ FLA. STAT. ANN. § 4555.2416(1) (West Supp. 1989) (permitting notice to spouse if subject has disclosed his or her identity to the healthcare provider and if the physician believes disclosure is appropriate according to a “perceived civil duty or the ethical guidelines of the profession“); MO. REV. STAT. § 191.656 (2)(l)(d) (Supp. 1990) (permitting disclosure to the spouse).

¹⁵⁶ CAL. HEALTH & SAFETY CODE § 199.25 (West Supp. 1990) (person reasonably believed to be a spouse, sexual partner or a person with whom the patient has shared the use of hypodermic needles); N.Y. PUB. HEALTH LAW § 2780(10) (McKinney Supp. 1990) (defining contact as “an identified spouse or sex partner of the protected individual or a person identified as having shared hypodermic needles or syringes with the protected individual“).

¹⁵⁷ GA. CODE ANN. § 24-9-47(g) (Supp. 1989).

¹⁵⁸ IDAHO CODE § 39-608 (Supp. 1988); R.I. GEN. LAWS § 23-6-17(b)(v) (1989).

¹⁵⁹ WIS. STAT. ANN. § 146.025(5)(a)(14) (West 1989).

¹⁶⁰ Id. at § 146.022(2)(a); R.I. GEN. LAWS § 23-6-17 (1989).

¹⁶¹ See, e.g., CAL. HEALTH & SAFETY CODE § 199.25(b) (West Supp. 1990) (requiring that the physician attempt to obtain the patient's voluntary consent for disclosure).

New York, on the other hand, allows disclosure only after the physician counsels the subject regarding the need to notify the contact and reasonably believes that the subject will not inform the contact. The physician must then inform the subject of his or her intent to disclose the information to the contact and give the subject “the opportunity to express a preference as to whether disclosure should be made by the physician directly or to a public health officer for the purpose of said disclosure.” N.Y. PUB. HEALTH LAW § 2783(4)(a)(3), (4) (McKinney Supp. 1990).

Rhode Island permits notification of third parties if “the physician has reason to believe that the patient, despite the physician's strong encouragement, has not and will not warn the third party ….” R.I. GEN. LAWS § 23-6-17(b)(v) (1989).

¹⁶² N.Y. PUB. HEALTH LAW § 2782(4)(b) (McKinney Supp. 1990); N.H. REV. STAT. ANN. § 141-F:9(III) (Supp. 1989); CAL. HEALTH & SAFETY CODE § 199.25(a), (d) (West Supp. 1990) (prohibiting disclosure of identifying information regarding either the subject, when disclosure was made by the health department, or about the physician making the report. Subsection (e) of the statute further requires that the health officer keep confidential “the identity and the seropositivity status of the individual tested ….” It is difficult to imagine how the health officer's notification can make much of an impact on the contact if the HIV status of the subject must be kept confidential.); WASH. REV. CODE ANN. § 70.24.022 (Supp. 1989) (“All information gathered in the course of contact investigation … shall be considered confidential.“); but see id. at § 70.24.105(2) (permitting the release of the identity of the infected person under certain circumstances).

¹⁶³ IDAHO CODE § 39-610(3) (Supp. 1989); FLA. STAT. ANN. § 455.2416 (West Supp. 1989).

¹⁶⁴ See supra notes 22-28.

¹⁶⁵ WASH. REV. CODE ANN. § 70.24.105(2)(g) (Supp. 1989).

¹⁶⁶ Id.

¹⁶⁷ MICH. COMP. LAWS ANN. § 333.5114a(7) (West Supp. 1989).

¹⁶⁸ CAL. HEALTH & SAFETY CODE § 199.25(d) (West Supp. 1990).

¹⁶⁹ Judson & Vernon, supra note 28, at 392.

¹⁷⁰ GA. CODE ANN. § 24-9-47(g) (Supp. 1989).

¹⁷¹ CAL. HEALTH & SAFETY CODE § 199.25(c) (West Supp. 1990) (disclosure by a physician is “permissive“); id. at § 199.25(d) (“[t]he county health officer may alert ….“) (emphasis added); GA. CODE ANN. § 24-9-47(g) (Supp. 1989) (disclosure allowed if physician reasonably believes the third party is at risk); N.H. REV. STAT. ANN. § 141-F:9(II) (Supp. 1989) (authorizing the director of the Department of Health and Human Services to, “if possible, … do contact referral“); FLA. STAT. ANN. § 455.2416(2) (West Supp. 1989) (failure to disclose does not create any civil or criminal liability); IDAHO CODE § 39-610(2) (Supp. 1989) (contact notification discretionary); N.Y. PUB. HEALTH LAW § 2782(4)(c) (McKinney Supp. 1990) (physician “shall have no obligation to identify or locate any contact.“); R.I. GEN. LAWS § 23-6-17(b)(v) (1989) (a physician “may inform third-parties ….“); S.C. CODE ANN. § 44-29-146 (Law. Coop. Supp. 1989) (no statutory language requiring notification); WASH. REV. CODE ANN. § 70.24.022(1) (Supp. 1989) (state and local public health officers and their authorized representatives “may interview, or cause to be interviewed …. “ ).

¹⁷² CAL. HEALTH & SAFETY CODE § 199.25 (West Supp. 1990); N.Y. PUB. HEALTH LAW § 2782(4)(a)(3), (4) (McKinney Supp. 1990). The statute requires that the physician must advise the subject to inform his or her contacts and must reasonably believe that he or she will not make such notification. The physician, however, must give the subject the choice of having his or her contacts notified by the health department or by the physician. If the subject chooses the health department, then the physician must notify the health department with the relevant information. Id.

Georgia permits its Department of Human Resources to determine if additional reporting and contacting is required. If the Department determines that such reporting is necessary, it may then disclose the name and address of persons infected with HIV to the county board of health if “reasonably necessary to protect the health and safety of that person or other person who may have come in contact with the body fluids of the HIV infected person.” The county board of health may then request that the subject give information regarding his or her contacts and may then contact “any other persons reasonably believed to be … at risk of being infected with HIV, as well as the spouse as limited by the statute.” GA. CODE ANN. § 24-9-47(h)(3) (Supp. 1989).

¹⁷³ Tarasoff v. Regents of the Univ. of Cal., 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976).

¹⁷⁴ CAL. HEALTH & SAFETY CODE § 199.25 (West Supp. 1990); FLA. STAT. ANN. § 455.2416 (West Supp. 1989); GA. CODE ANN. § 24-9-47(h)(3) (Supp. 1989); MICH. COMP. LAWS ANN. § 333.5114(a) (West Supp. 1989); N.Y. PUB. HEALTH LAW § 2780(7) (McKinney Supp. 1990); R.I. GEN. LAWS § 23-6-17 (1989); S.C. CODE ANN. § 44-29-146 (Law. Co-op. Supp. 1989); WASH. REV. CODE ANN. § 70.24.105 (Supp. 1989).

¹⁷⁵ IDAHO CODE § 39-610(2) (Supp. 1988).

¹⁷⁶ Telephone interview with David Hennings, Illinois Department of Health, AIDS Division (Apr. 1989).

¹⁷⁷ ILL. ANN. STAT. ch. 111 1/2, para. 7405 (Smith-Hurd 1989).

¹⁷⁸ Although the statute may be drafted broadly, the regulations require a confirmed HIV positive finding before the subject will be asked to refer partners. Telephone interview with Partner Notification Section of Illinois’ Division of Infectious Disease (Apr. 1989).

¹⁷⁹ Furman v. Georgia, 408 U.S. 238 (1972).

¹⁸⁰ DEL. CODE ANN. tit. 16, § 1203(c)(6) (Supp. 1989) (testing may be compelled if relevant to ultimate issue of culpability or liability); TEX. CRIM. PROC. CODE ANN. § 21.31 (Vernon 1989) (Persons indicted for either sexual assault or aggravated sexual assault must undergo HIV testing. The results shall be made available to the local health authority who shall make them available to the victim.); MICH. COMP. LAWS ANN. § 333.5129(3), (4) (West Supp. 1989) (requiring that with the consent of the victim or person with whom the defendant engaged in sexual penetration during the course of the crimes, the victim's name and address will be released to the testing agency, and the results released to the victim. Such testing and disclosure may be done upon conviction of the defendant.); CAL. HEALTH & SAFETY CODE § 26 (West Supp. 1990); CAL. PENAL CODE § 1524.1 (West Supp. 1990) (When a defendant has been charged with a crime or a minor is the subject of a juvenile court proceeding alleging the commission of a crime, the court, at the request of the victim, may order that the accused's blood be tested for HIV once the court finds that there is probable cause to believe that blood, semen or any other body fluid identified as capable of transmitting HIV has been transferred from the accused to the victim. The results of the blood test may not be used in any criminal proceedings as evidence of either guilt or innocence.); COLO. REV. STAT. § 18-3-415 (Supp. 1989) (requiring pre-trial testing of all defendants charged with sexual assault. The results are made available to the court who may then disclose the results to “any victim of the sexual offense who requests such disclosure.” The defendant's voluntary submission to the blood test is admissible in mitigation of sentence. The results of the test are confidential.).

¹⁸¹ South Carolina requires the testing of any person convicted of a crime involving sexual battery, sexual conduct, prostitution, buggery or committing or attempting a lewd act upon a child under fourteen, if the conduct resulted in the exposure of the victim to blood or vaginal or seminal fluids of the convicted offender. The test results are disclosed to the defendant, to the victim and to the Department of Health and Environmental Control. S.C. CODE ANN. § § 16-3-740, 16-15-255 (Law. Co-op. Supp. 1989).

Georgia requires the testing of adults convicted of and minors adjudged to have committed an act constituting an “AIDS transmitting crime.” Positive results of such test on the minor are considered confidential. GA. CODE ANN. § 15-11-35.1(d) (Supp. 1989). Both the adult's and minor's test results are reported to the Department of Human Resources which “may disclose the name of the [person/child] if necessary to provide and shall provide counseling to each victim of that [person's/child's] AIDS transmitting crime or to any parent or guardian of any victim who is a minor or incompetent person if the Department … believes the crime posed a reasonable risk of transmitting HIV to the victim … ;” to the court which ordered the HIV test; and to those in charge of any facility to which the person/child has been confined by order of the court. Id. at § § 15-11-35.1(b), (d), 17-10-15(e). In the case of an adult, the court which ordered the HIV test shall make the results a part of the person's criminal record and may be authorized to consider it in imposing sentencing. The court must, moreover, seal the report. Id. at § 17-10-15(e). A district attorney or public safety agency, however, may obtain the results of tests ordered on either an adult or a minor even though the records have been sealed. Id. at § 24-9-47(q); see also id. at § 24-9-47(r) (those persons whose identities are learned from the information provided by the test subject, and those granted disclosure through a court order.).

¹⁸² INSTITUTE OF MEDICINE, NATIONAL ACADEMY OF SCIENCES, CONFRONTING AIDS 114 (1986).

¹⁸³ See GA. CODE ANN. § 42-5-52.1(b) (Supp. 1989); COLO. REV. STAT. § 25-4-1405(8)(a)(iv) (1989) (all those in the custody of the state department of corrections and those confined to a minimum or maximum security ward of the state); IDAHO CODE § 39-604 (Supp. 1989) (all those committed to state custody, committed to county custody, those whom the jailer believes to have been exposed to HIV and all charged with a sex or drug offense); R.I. GEN. LAWS § 42-56-37 (1989) (after conviction, every person committed to the adult correctional institution for any criminal offense); MO. REV. STAT. § 191.659 (Supp. 1990) (“All individuals who are delivered to the department of corrections and human resources and all individuals who are released or discharged from any institution operated by the department of corrections and human resources ….“).

Illinois requires both sex offenders and those charged with crimes involving the use of hypodermic syringes to be tested. The results are to be “personally delivered in a sealed envelope” to the judge who presided over the conviction for an in camera inspection. When the charge is a sex offense, the judge, “[a]cting in accordance with the best interests of the victim and the public,” may determine to whom, if anyone, the results may be revealed. Where a hypodermic syringe was involved, the judge evaluates disclosure in accordance with the best interests of the public. ILL. ANN. STAT. ch. 38, para. 1005-5-3(g), (h) (Smith-Hurd Supp. 1989).

Indiana also requires that convicted sexual offenders be tested. If the initial screening test indicates that the offender is HIV positive, the court must order a confirmatory test. If the positive test results are confirmed, the state board of health must notify the victim. IND. CODE ANN. § 35-38-1-10.6 (West Supp. 1989).

Kansas allows the testing of those convicted of crimes which the court has determined “involved” or “were likely to have involved” the transmission of body fluids. Such testing is mandatory if the victim requests it. The results are disclosed to a health care provider designated by the victim. If the tests are negative, “the court shall order the convicted person to submit to another AIDS test six months after the first test was administered.” While this provision solves the problem caused by the virus’ long incubation period, it may allow a victim to be alarmed about an infection transmitted well after the crime occurred. KAN. STAT. ANN. § 22-2913 (1988).

¹⁸⁴ See WASH. REV. CODE ANN. § 70.24.340 (Supp. 1989) (requiring testing of those convicted of sex offenses, prostitution and drug charges involving a hypodermic needle); MICH. COMP. LAWS ANN. § 791.267 (West Supp. 1989) (all defendants sentenced to terms of imprisonment).

Florida requires the testing not only of those convicted of prostitution, but also of those convicted of “procuring another to commit prostitution with himself.” FLA. STAT. ANN. § 796.08(3) (West Supp. 1989). The test results must be made available to the Department of Health and Rehabilitative Services, to medical personnel and to appropriate state agencies. Id.

¹⁸⁵ See WIS. STAT. ANN. § 146.025(5)(a)(13) (West 1989); FLA. STAT. ANN. § 951.27 (West Supp. 1989) (permitting disclosure to those who need to know in order to assign the AIDS prisoner a private cell); ME. REV. STAT. ANN. tit. 5, § 19203(7) (1989) (allowing disclosures to employees responsible for the treatment and care of the subject of the test); but see MICH. COMP. LAWS ANN. § 791.267 (West Supp. 1989) (requiring testing of all prisoners immediately upon their arrival, and permitting disclosure of positive test results to “persons who demonstrate to the department [of corrections] a need to know the test results” and to the department of public health.). In Michigan, there is no requirement that this information be reported in a manner that will protect identification. In addition, unincarcerated defendants convicted of crimes involving prostitution or intravenous use of a controlled substance must be tested and the results forwarded to the court. After the defendant is sentenced, these results are made part of the court record. The results are to be kept confidential and may be disclosed only to the defendant, the local health department, the corrections department or the victim, upon written authorization of the defendant, or except as otherwise provided by law. Id. at § 333.5129(5).

Georgia permits the parole board to obtain from any penal institution the HIV test results of any prisoner applying to be eligible for clemency, pardon, parole or other relief from a sentence. The board may also require any such applicant to undergo HIV testing in conjunction with his or her application. GA. CODE ANN. § 42-9-42.1(b) (Supp. 1989).

New Hampshire permits the testing without obtaining written consent of all individuals convicted and confined to a correctional facility, or committed to a “New Hampshire hospital” when the results of the tests are necessary for the “placement and management of such individuals in the facility.” N.H. REV. STAT. ANN. § 141-F:5(IV) (Supp. 1989).

New York permits disclosure to “a medical director of a local correctional facility … to the extent the medical director is authorized to access records containing such information in order to carry out his or her functions, powers and duties with respect to the protected individual“; similarly, to “an employee … of the commission of correction … to the extent the employee … is authorized to access records containing such information in order to carry out the commission's functions, powers and duties with respect to the protected individual.” N.Y. PUB. HEALTH LAW § 2782(l)(n), (o) (McKinney Supp. 1990).

California permits disclosure to law enforcement personnel when they have had direct contact with the bodily fluids of “inmates or persons charged or in custody.” CAL. PENAL CODE LAW § 7522 (West Supp. 1990). Only confirmed positive test results may be released. Id. at § 7531.

¹⁸⁶ See also N.H. REV. STAT. ANN. § 141-F:7(IV) (Supp. 1989) If an HIV positive person is “confined to a facility pursuant to an order of a court, or committed to a mental health facility, the results of the tests shall be disclosed … to the medical director … of such facility … [who] shall provide to the administrator in charge of the facility whatever medical data is necessary to properly assign, treat, or manage the affected individual.” Id.

¹⁸⁷ GA. CODE ANN. § 24-9-47(q) (Supp. 1989).

¹⁸⁸ N.Y. PUB. HEALTH LAW § 2782(1), (m) (McKinney Supp. 1990).

¹⁸⁹ CAL. PENAL LAW § 7520 (West Supp. 1990).

¹⁹⁰ Id. § 7521(a).

¹⁹¹ Id. § 7521(b).

¹⁹² ME. REV. STAT. ANN. tit. 5, § 19203(7) (1989).

¹⁹³ TEX. HEALTH & SAFETY CODE ANN. § 81.102(a)(3)(i) (Vernon 1990).

¹⁹⁴ OKLA. STAT. ANN. tit. 43A, § 3-425.1(2) (West 1988); Mo. REV. STAT. § 191.662(1) (Supp. 1990).

¹⁹⁵ A. KIRP & L. DAVID, LEARNING BY HEART: AIDS AND SCHOOLCHILDREN IN AMERICA's COMMUNITIES (1989).

¹⁹⁶ In Illinois, the Department of Public Health notifies the principal of the school in which the child is enrolled and if the child is enrolled in a public school, the principal discloses the child's identity to the superintendent of the school district in which the child resides. The principal may, “as necessary disclose the identity of the infected child to: the school nurse … classroom teachers in whose classes the child is enrolled … [and] those persons who, pursuant to federal or state law, are required to decide the placement or educational program of the child.” ILL. ANN. STAT. ch. 111 1/2, para. 22.12a (Smith-Hurd Supp. 1989).

Michigan provides disclosure by the health department to an “employee of a school district,” if the health department representative determines that the disclosure is necessary to prevent a reasonably foreseeable risk of transmission of the communicable disease or serious communicable disease or infection to pupils in the school district. MICH. COMP. LAWS ANN. § 333.5131(5)(c) (West Supp. 1989). However, the disclosure shall not identify the pupil unless “the identifying information is determined by the person making the disclosure to be reasonably necessary to prevent a foreseeable risk of transmission of the communicable disease or serious communicable disease or infection.” Id. at § 333.5131(7).

¹⁹⁷ S.C. CODE ANN. § 44-29-135(e) (Law. Co-op. Supp. 1989) (“If a minor has … AIDS or is infected with … HIV … and is attending the public schools, the superintendent of the school district and the nurse or other health professional assigned to the school the minor attends must be notified.“).

¹⁹⁸ MO. REV. STAT. § 191.689(1) (Supp. 1990).

¹⁹⁹ Id. at § 191.689(2)(b).

²⁰⁰ OKLA. STAT. ANN. tit. 63, § 1-502.2(B) (West Supp. 1990).

²⁰¹ Id.

²⁰² N.Y. PUB. HEALTH LAW § 2782(4)(d) (McKinney Supp. 1990).

²⁰³ Id. § 2781(l)(h). Missouri has a similar, but broader provision. It permits disclosure of HIV status to non-public employees “who are entrusted with the regular care of those under the care and custody of a state agency, including but not limited to operators of day care facilities, group homes, residential care facilities and adoptive or foster parents.” Mo. REV. STAT. § 191.656 (l)((l))(c) (Supp. 1990).

²⁰⁴ N.Y. PUB. HEALTH LAW § 2782(7) (McKinney Supp. 1990).

²⁰⁵ W. VA. CODE § 16-3C-6(b) (Supp. 1989).

²⁰⁶ id.

²⁰⁷ Child v. Spillane, 875 F.2d 314 (4th Cir. 1989).

²⁰⁸ District 27 Comm. School Bd. v. New York Bd. of Educ, 130 Misc. 2d 398 (1986).

²⁰⁹ ILL. ANN. STAT. ch. 111 1/2, para. 22.04 (Smith-Hurd 1989); TENN. CODE ANN. § 68-5-102 (1987); IND. CODE ANN. § 16-1-9.5-9 (West Supp. 1989); LA. REV. STAT. ANN. § § 1299.142(B)(4), 33.1562(c) (West Supp. 1989); MICH. COMP. LAWS ANN. § 333.2843b (West Supp. 1989); WIS. STAT. ANN. § 146.025(7), (12) (West 1989); Mo. REV. STAT. § 191.656(8)(2)(b) (Supp. 1990); Miss. CODE ANN. § 41-39-13 (Supp. 1989); S.C. CODE ANN. § 44-20-20 (Law. Co-op. Supp. 1989); GA. CODE ANN. 31-21-3(a), (b) (Supp. 1989).

²¹⁰ ILL. ANN. STAT. ch. 111 1/2, para. 22.04 (Smith-Hurd 1989); TENN. CODE ANN. § 68-5-102 (1989) (requiring that the physician notify “the person to whom the body is delivered of the known or suspected communicable, contagious or infectious disease, including acquired immune deficiency syndrome ….“).

²¹¹ IND. CODE ANN. § 16-1-9.5-9 (West Supp. 1989) (known HTLA-3, AIDS or ARC); LA. REV. STAT. ANN. § § 1299.142(B)(4), 1562(C) (West Supp. 1989); MICH. COMP. LAWS ANN. § 333.2843b (West Supp. 1989); Mo. REV. STAT. § 191.656(8)(2)(b) (Supp. 1990); MISS. CODE ANN. § 41-39-13 (Supp. 1989); S.C. CODE ANN. § 44-29-20 (Law. Co-op. Supp. 1989); WIS. STAT. ANN. § 146.025(5)(a)(7) (West 1989) (funeral director); id. at § 146.025(5)(a) (12) (coroner if the possible HIV infected status is relevant to the cause of death or if the coroner is significantly exposed to a person whose death is under direct investigation and if a physician certifies in writing that the coroner has been significantly exposed and the certificate accompanies the request for disclosure); GA. CODE ANN. § 31-21-3(a)(4), (b)(1) (Supp. 1989) (including AIDS in the statute's definition of infectious or communicable diseases that require that the attending physician provide “written notification describing such disease to accompany the body when it is picked up for disposition“).

²¹² See, e.g., S.C. CODE ANN. § 44-29-20 (Law. Co-op. Supp. 1989); ILL. ANN. STAT. ch. 111 1/2, para. 32.04 (Smith-Hurd 1989). 213 Miss. CODE ANN. § 41-39-13 (Supp. 1989).

²¹⁴ ILL. ANN. STAT. ch. 111 1/2, para. 22.04 (Smith-Hurd 1989); IND. CODE ANN. § 16-1- 9.5-9 (West Supp. 1989).

²¹⁵ See, e.g., Miss. CODE ANN. § 41-39-13 (Supp. 1989).

²¹⁶ GA. CODE ANN. § 31-21-3(c) (Supp. 1989).

²¹⁷ MICH. COMP. LAWS ANN. § 333.2843b (West Supp. 1989); WIS. STAT. ANN. § 146.025 (5)(a)(7) (West 1989); S.C. CODE ANN. § 44-29-20 (Law. Co-op. Supp. 1989); LA. REV. STAT. ANN. § 1229.14(B)(4) (West Supp. 1989); TENN. CODE ANN. § 68-5-102 (1989). The New Jersey law states that:

1988 N.J. Sess. Law Serv. 125, § 1.

²¹⁸ ME. REV. STAT. ANN. § 2482-A (1989).

²¹⁹ WIS. STAT. ANN. § 146.023(l)(m) (West 1989); CAL. HEALTH & SAFETY CODE § 1603.3 (West Supp. 1990).

²²⁰ ILL. ANN. STAT. ch. 111 1/2, para. 620-3.1(a) (Smith-Hurd 1989); WIS. STAT. ANN. § 146.025(5)(a)(4)(b) (West 1989); CAL. HEALTH & SAFETY CODE § 1603.3(c)(1) (West Supp. 1990) (donor notified “[o]nly if a further test confirms the conclusion of [an earlier] test.“); FLA. STAT. ANN. § 381.6105(5) (West Supp. 1989); 1987 Ariz. Legis. Serv. 176 (West); MD. HEALTH-GEN. CODE ANN. § 18-234(c) (1989); MICH. COMP. LAWS ANN. § 333.9123(6) (West 1989); N.C GEN. STAT. § 130A-148(g) (1989); OKLA. STAT. ANN. tit. 63, § 2151.1(2) (West Supp. 1990).

²²¹ CAL. HEALTH & SAFETY CODE § 1603.3(2) (West Supp. 1990) (“donors found to have serological evidence of the antibodies shall be placed on a confidential statewide Blood Donor Deferral Register without a listing of the reason for being included on the register.“). Texas permits similar reporting to other blood banks. TEX. REV. CIV. STAT. ANN. art. 4419b-1.5(d) (Vernon 1989). It is the authors’ understanding that reporting to deferral lists is common even without statutes. Such disclosure is presumably based on regulation or consent contained in the donation form. Reporting statutes that require laboratories to report HIV infection would also have to report HIV infection in donated blood.

²²² Tarrant County Hosp. Dist. v. Hughes, 734 S.W.2d 675 (Tex. Ct. App. 1987), cert, denied, 484 U.S. 1065 (1988).

²²³ TEX REV. CIV. STAT. ANN. art. 4419b-1.5(3)(a) (Vernon 1989) (repealed).

²²⁴ Uniform Anatomical Gift Act 2(d) (“A gift … authorizes any examination to assure medical acceptability of the gift for the purposes intended.“).

²²⁵ WASH. REV. CODE ANN. § 70.24.105(2) (West Supp. 1989); WIS. STAT. ANN. § 146.025 (West 1989); LA. REV. STAT. ANN. § 40:1299.142(B)(3) (West 1989); FLA. STAT. ANN. § 381.609(2) (West Supp. 1989); but see GA. CODE ANN. § 44-5-151(c) (Supp. 1989) (requiring that live and locatable donors be confidentially notified if their test results show them to be HIV positive). When the donor is deceased, the statute requires that any known physician of the donor be notified of the deceased's HIV positive status. That physician shall then have “the sole discretion” regarding notification of the person who executed the gift of the body part. Id.

Illinois permits the donee of an anatomical gift to disclose the results of an HIV test done on the gift to the physician of the deceased donor. The donor's physician shall then “determine whether the person who executed the gift shall be notified of the confirmed positive blood test. ILL. ANN. STAT. ch. 110 1/2, para. 308 (Smith-Hurd Supp. 1989).

²²⁶ The Western Blot test involves the identification of antibodies against specific protein molecules. The test is believed to be more specific than the ELISA test in detecting antibodies to HIV in blood samples; it is also more difficult to perform and considerably more expensive. INSTITUTE OF MEDICINE, supra note 182, at 359.

²²⁷ Maine, Delaware, Georgia, New York, Vermont, West Virginia and Illinois.

²²⁸ ME. REV. STAT. ANN. tit. 5, § 19203-C (1989); see supra notes 122, 123 and accompanying text.

²²⁹ See, e.g., DEL. CODE ANN. til. 16, § 1203(a)(10)(b) (Supp. 1988); GA. CODE ANN. § 24- 9-47 (Supp. 1989).

²³⁰ DEL. CODE ANN. tit. 16, § 1203(a)(10)(b) (Supp. 1988); GA. CODE ANN. § 24-9-47 (Supp. 1989); N.Y. PUB. HEALTH LAW § 2786(3) (McKinney Supp. 1990); IOWA CODE ANN. § 135I.3(g)(2)-(4) (West 1988); VT. STAT. ANN. tit. 12, § 1705 (Supp. 1989); W. VA. CODE § 16-3C-3(8)(iii) (Supp. 1989); see also ILL. ANN. STAT. ch. 111 1/2, para. 7309(g)(i) (Smith- Hurd 1988).

²³¹ N.Y. PUB. HEALTH LAW § 2786(2) (McKinney Supp. 1990); W. VA. CODE § 16-3C-3(8)(iii) (Supp. 1989).

²³² N.Y. PUB. HEALTH LAW § 2786(2) (McKinney Supp. 1990).

²³³ GA. CODE ANN. § 24-9-47(t)(2) (Supp. 1989).

²³⁴ ME. REV. STAT. ANN. tit. 5, § 19203-C(4) (1989).

²³⁵ Wash. Rev. Code. Ann. § 70.24.105(2)(f) (Supp. 1989).

²³⁶ ILL. ANN. STAT. ch. 111 1/2, para. 7309(g)(i) (Smith-Hurd 1988); IOWA CODE ANN. § 1351.3(g)(1) (West 1989); DEL. CODE ANN. tit. 16, § 1203(a)(10)(a) (Supp. 1988); GA. CODE ANN. § 24-9-47(s)(2), (t)(2) (Supp. 1989); W. VA. CODE § 16-3C-3(8)(i) (Supp. 1989) (petitioner must “demonstrate a compelling need for treatment which cannot be accommodated by other means“); FLA. STAT. ANN. § 381.609(2)(f)(9)(a) (West Supp. 1989); VT. STAT. ANN. tit. 12, § 1705(a) (Supp. 1989).

New York requires that the order be based upon a showing of “(a) a compelling need for the adjudication of a criminal or civil proceeding; (b) a clear and imminent danger to an individual whose life or health may unknowingly be at significant risk as a result of contact with the individual to whom the information pertains; (c) or upon the application of a state, county or local heath officer, a clear and imminent danger to the public health ….” N.Y. PUB. HEALTH LAW § 2785(2) (McKinney Supp. 1990). Subsection (b) is difficult to interpret. It requires that the applicant unknowingly be at significant risk. If ignorant of the risk, how would the applicant know to request disclosure. Perhaps, unknowingly should mean a person who did not voluntarily accept the risk.

²³⁷ WASH. REV. CODE ANN. § 70.24.105(2)(f) (Supp. 1989) (“In assessing good cause, the court “shall weigh the public interest and the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services.“); IOWA CODE ANN. § 1351.3(g)(1) (West 1988) (“In assessing compelling need, the court shall weigh the need for disclosure against the private interest of the test subject and the public interest that may be disserved by disclosure” due to its deterrent effect on future testing or due to its effect in leading to discrimination.); DEL. CODE ANN. tit. 16, § 1203(a)(10)(a) (Supp. 1988); ILL. ANN. STAT. ch. 111 1/2, para. 7309(g)(i) (Smith-Hurd 1988 and Supp. 1989) (“In assessing compelling need, the court shall weigh the need for disclosure against the privacy interest of the test subject and the public interest which may be disserved by disclosure which deters blood, organ and semen donation and future HIV related testing.“); W. VA. CODE § 16-3C-3(a)(8)(i) (Supp. 1989); WIS. STAT. ANN. § 146.025(5)(a)(9) (West 1989) (requiring disclosure is to be provided under a lawful order of a court of record except as provided under section 901.05; FLA. STAT. ANN. § 381.609(2)(f)(9)(a) (West Supp. 1989) (“In assessing compelling need, the court shall weigh the need for disclosure against the privacy interest of the test subject and the public interest which may be disserved by disclosure which deters blood, organ, and semen donation and future human immunodeficiency virus-related testing or which may lead to discrimination. This paragraph shall not apply to blood bank donor records.“); N.Y. PUB. HEALTH LAW § 2785(5) (McKinney Supp. 1990) (requiring the court in assessing compelling need and clear and imminent danger to provide “written findings of fact, including scientific or medical findings, citing specific evidence in the record which supports each finding, and shall weigh the need for disclosure against the privacy interest of the protected individual and the public interest which may be disserved by disclosure which deters future testing or treatment or which may lead to discrimination.“); MICH. COMP. LAWS ANN. § 333.5131(3)(a) (West Supp. 1989) (regarding court ordered disclosure of information about “communicable disease or a serious communicable disease or infection,” the court must find “[t]hat the public interest and need for the disclosure outweigh the potential for injury to the patient.” The court must also find “[t]hat other ways of obtaining the information are not available or would not be effective.“).

²³⁸ WASH. REV. CODE ANN. § 70.24.105(5) (Supp. 1989); W. VA. CODE § 16-3C-3(c) (Supp. 1989); IOWA CODE ANN. § 141.23 (1988).

²³⁹ W. VA. CODE § 16-3C-3 (Supp. 1989) (does not address the question of oral disclosures).

²⁴⁰ N.Y. PUB. HEALTH LAW § 2782(5)(a) (McKinney Supp. 1990).

²⁴¹ Id. at § 2785(6).

²⁴² Id.

²⁴³ iLL. ANN. STAT. ch. 111 1/2, para. 7309(g)(i) (Smith-Hurd 1988 & Supp. 1989); DEL. CODE ANN. tit. 16, § 1203(a)(10)(e) (Supp. 1988) (safeguards shall include specification of the persons permitted access, the purpose for which the information is to be used and “appropriate prohibitions on future disclosures“); GA. CODE ANN. § 24-9-47(s), (t) (Supp. 1989); MICH. COMP. LAWS ANN. § 333.5131(3)(b) (West Supp. 1989) (court shall limit disclosure to (i) necessary parts of the patient's record essential “to fulfill the objective of the order,” and to (ii) necessary persons. In addition, the court shall fashion such other protective measures as it deems necessary).

²⁴⁴ See, e.g. Doe v. Roe, 93 Misc. 2d 201, 400 N.Y.S.2d 668 (1977).

²⁴⁵ The authors found no broad legislation of this kind nor any suggestion of its existence in any of the reported HIV litigation. However, there may be circumstances in which misuse of medical records may be punished, either by direct prohibition or pursuant to professional licensing statutes. Such misuse, in turn, might trigger private rights of action. Study of such circumstances was beyond the scope of this article.

²⁴⁶ See, e,g,, CAL. HEALTH & SAFETY CODE § 199.21 (West Supp. 1990); WIS. STAT. ANN. § 146.025(9) (West 1989); IDAHO CODE § 39-606 (Supp. 1989).

²⁴⁷ CAL. HEALTH & SAFETY CODE § 199.21 (West Supp. 1990) (blood test results); WIS. STAT. ANN. § 146.025(9) (West 1989) (blood test results); IDAHO CODE § 39-606 (Supp. 1989) (confidential public health record relating to existence of AIDS or HIV); FLA. STAT. ANN. § 381.609(5) (West Supp. 1989) (blood test results); COLO. REV. STAT. § 25-4-1409(2) (1989) (reports to the department of public health of diagnoses); LA. REV. STAT. ANN. § § 1299.145, 1299.142(B) (West Supp. 1989) (blood test results); but see N.H. REV. STAT. ANN. § 141-F:II (Supp. 1989) (records of the identity of the person tested for HIV, and all records and any other information pertaining to a person's testing for HIV that are maintained by the department of health, the health care provider, health or social service agencies, businesses, schools, or any other entity public or private); R.I. GEN. LAWS § 23-6-19 (1989) (blood test results and records of health care providers, “public health officials, and any other person who maintains records containing information on AIDS test results of individuals“); N.Y. PUB. HEALTH LAW § § 2783(2), 2780(7) (McKinney Supp. 1990) (confidential HIV related information which is defined as:

TEX. HEALTH & SAFETY CODE ANN. § 81.030 (Vernon Supp. 1990) (“test result or other information“).

Other states have created criminal sanctions for the improper disclosure of records pertaining to sexually transmissible disease of which HIV or AIDS may be designated. Among them are: ALA. CODE § 22-llA-22 (Supp. 1989) (“All information, reports and medical records“); ILL ANN. STAT. ch. 111 1/2, para. 7312 (Smith-Hurd 1988) (identity of person tested or test results); IND. CODE ANN. § 16-l-9.5-7(b) (West Supp. 1989) (medical or epidemiological information collected by the board of health); OKLA. STAT. ANN. tit. 63, § 1-502.2(C) (West Supp. 1990) (medical or epidemiological information collected by the Department of Health); NEB. REV. STAT. § 71-506 (1988); D.C. CODE ANN. § 6-126 (1989) (public health records).

Michigan has criminalized unauthorized disclosures of information pertaining to an individual who has a serious communicable disease or infection by government employees or employees of those under contract to a governmental entity. It is “a felony punishable by imprisonment for not more than three years, a fine of not more than $5,000, or both.” MICH. COMP. LAWS ANN. § 333.5131(10) (West Supp. 1989). This is the only felony provision.

²⁴⁸ CAL. HEALTH & SAFETY CODE § 199.21 (West Supp. 1990).

²⁴⁹ WIS. STAT. ANN. § 146.025(9) (West 1990).

²⁵⁰ ALA. CODE § 22-11A-22 (Supp. 1989); ILL. ANN. STAT. ch. 111 1/2, para. 7408 (Smith-Hurd 1988); IND. CODE ANN. § 16-l-9.5-7(b) (1988); OKLA. STAT. ANN. tit. 63, § 1-502.2(C) (West Supp. 1990); IDAHO CODE § 39-606 (Supp. 1989) (punishable by up to one thousand dollar fine, by imprisonment in a county jail for not more than 30 days or both).

²⁵¹ See R.I. GEN. LAWS § 5-37.3-9(b) (1989) (a fine of not more than one thousand dollars and/or not more than six months incarceration); COLO. REV. STAT. § 25-4-1409(2) (1989) (a fine of not less than five hundred dollars and not more than five thousand dollars and/or six to 24 months incarceration); N.Y. PUB. HEALTH LAW § § 2783(2), 12-b(2) (McKinney Supp. 1990) (a fine of not more than two thousand dollars and/or one year's imprisonment); LA. REV. STAT. ANN. § 1299.145 (West Supp. 1989) (a fine of up to two thousand dollars, but no imprisonment); WIS. STAT. ANN. § 146.025(9) (West 1989) (a fine of up to ten thousand dollars and/or nine months incarceration); CAL. HEALTH & SAFETY CODE § 199.21 (West Supp. 1989) (a fine of up to ten thousand dollars and/or one year incarceration or both).

²⁵² California, New Hampshire, New York, Rhode Island, Texas and Wisconsin.

²⁵³ Delaware, Hawaii, Illinois, Iowa and Missouri.

²⁵⁴ See supra pp. 207-09.

²⁵⁵ CAL HEALTH & SAFETY CODE § 199.21 (West Supp. 1989); DEL. CODE ANN. tit. 16, § 1204(a)(1) (Supp. 1989); HAW. REV. STAT. § 325-16(d) (1988); IOWA CODE ANN. § 141.23 (West 1989); ILL. ANN. STAT. ch. 111 1/2, para. 7313 (Smith-Hurd 1988); but see N.H. REV. STAT. ANN. § 141-F:11 (1989) (records of the identity of the person tested for HIV and all records and any other information pertaining to a person's testing for HIV that are maintained by the department of health, the health care provider, health or social service agencies, businesses, schools or any other entity public or private); R.I. GEN. LAWS § 23-6-19 (1989) (blood test results and records of health care providers, public health officials and any person who maintains records containing information on AIDS test results of individuals); N.Y. PUB. HEALTH LAW § 2783(2) (McKinney Supp. 1990) (confidential HIV related information which is defined as:

TEX. REV. CIV. STAT. ANN. art. 4419b-l, § 9.02(a)(1) (Vernon Supp. 1990) (“test result or other information“).

Michigan has created a right of action against a “person who is not a governmental entity or employed by or under contract to a governmental entity and who violates this section by disclosing information pertaining to an individual who has a serious communicable disease.” MICH. COMP. LAWS ANN. § 333.5131(9) (West Supp. 1989); OKLA. STAT. ANN. tit. 63, § 1- 502.2(D) (West 1989) (medical or epidemiological information collected by the Department of Health).

²⁵⁶ Damages for negligent breach are for actual damages. Mo. REV. STAT. § 191.656(6) (1) (Supp. 1990). Actual damages or one thousand dollars, whichever is greater, is allowed. ILL. ANN. STAT. ch. 111 1/2, para. 7313(1) (Smith-Hurd 1988); DEL. CODE ANN. tit. 16, § 1204(a)(1) (Supp. 1989). Actual damages plus exemplary damages of up to one thousand dollars are allowed by the statute. WIS. STAT. ANN. § 146.025(8) (West 1989). The statute provides for actual damages or a civil penalty of not more than one thousand dollars. TEX. REV. CIV. STAT. ANN. art. 4419b-l, § 9.02(2) (Vernon Supp. 1990). California allows not more than one thousand dollars, but where the negligent disclosure is the proximate cause of “economic, bodily or psychological harm” then actual damages are allowed. CAL. HEALTH & SAFETY CODE § 199.21(b) (West Supp. 1990).

Similar options have been enacted for willful or intentional violations. In Illinois, actual damages or five thousand dollars, whichever is greater, are allowed. ILL. ANN. STAT. ch. 111 1/2, para. 7313(1) (Smith-Hurd 1988); see also DEL. CODE ANN. tit. 16, § 1204(a)(1) (Supp. 1989); N.H. REV. STAT. ANN. § 141-F: 11 (1989) (“anyone who purposely violates,” but no private right of action for negligent disclosures); TEX. REV. CIV. STAT. ANN. art. 4419b-l, § 9.04(d) (Vernon Supp. 1990) (one thousand to five thousand dollars); WIS. STAT. ANN. § 146.025(8) (West 1989) (actual damages plus exemplary damages of up to five thousand dollars); CAL. HEALTH & SAFETY CODE § 199.21(d) (West Supp. 1990) (one thousand to five thousand dollars or actual damages if the breach is the proximate cause of “economic, bodily or psychological harm“). Iowa has created a private right of action with no limit on damages. IOWA CODE ANN. § 141.24 (West 1989). Missouri provides for actual and exemplary damages. Mo. REV. STAT. § 191.656(6)(2) (Supp. 1990).

²⁵⁷ WIS. STAT. ANN. § 146.025(8) (West 1989).

²⁵⁸ See, e.g., IOWA CODE ANN. § 601A.2(11) (West 1989); WASH. REV. CODE ANN. § 49.60.172(1) (1989) (actual or perceived HIV infection); FLA. STAT. ANN. § 760.50(1) (West 1988) (“Any person with Acquired Immune Deficiency Syndrome, Acquired Immune Deficiency Syndrome Related Complex, or Human Immunodeficiency Virus shall have every protection made available to handicapped persons under … [the] … Fair Housing Act, and … the [Federal] Rehabilitation Act of 1973“); R.I. GEN. LAWS § 23-6-22 (1989) (prohibits discrimination on the basis of “a positive AIDS test result, or perception of same, in housing employment, the granting of credit, public accommodation, or delivery of services ….“); Mo. REV. STAT. § 191.665 (Supp. 1990) (State Human Rights Act, Chapter 213 “shall apply to individuals with HIV infection, [AIDS] and [ARC]; provided that such protection shall not include an individual who has a currently contagious disease or infection, and who, by reason of such disease or infection, would constitute a direct threat to the health or safety of other individuals or who, by reason of the currently contagious disease or infection, is unable to perform the duties of their employment.“).

²⁵⁹ According to a survey done by the National Gay Rights Advocates during the winter of 1988-89, 30 of 51 jurisdictions in the U.S. fully protect persons with AIDS and those perceived to be infected with HIV from discrimination in employment, housing and public accommodations. All fifty one jurisdictions prohibit handicap related employment discrimination, all but twelve prohibit housing discrimination and all but eleven prohibit discrimination in public accommodations. Discrimination based on a perceived handicap was prohibited in all but twelve jurisdictions.

Only Tennessee responded that it did not interpret its handicap discrimination law to specifically prohibit discrimination against person with AIDS and/or ARC. Fifteen jurisdictions responded that their laws were unclear regarding discrimination based on ARC. Regarding asymptomatic infection, Tennessee again responded negatively. Sixteen other states were uncertain. Twenty-eight states responded that perceived HIV infection was considered a handicap, nineteen states said their law was uncertain, and four — Arizona, Kansas, South Carolina, and Texas — stated that perceived HIV infection was not condidered a handicap. Survey Finds Spotty Record In State Handicap Statutes, 4 AIDS Policy & Law (BNA) No. 11, at 3 (June 14, 1989).

²⁶⁰ NEB. REV. STAT. 20-167 (1988).

²⁶¹ Id.

²⁶² CAL. HEALTH & SAFETY CODE § 199.21(f) (West Supp. 1990); FLA. STAT. ANN. § 381.606(5) (West 1989); MASS. GEN. LAWS ANN. ch. 111, § 70F (West 1989).

²⁶³ IOWA CODE ANN. § 601A.6(l)(d) (West 1988 & Supp. 1989); WIS. STAT. ANN. § 103.15-2 (West 1988 & Supp. 1989); TEX. REV. CIV. STAT. ANN. art. 4419b-l, § 9.02(a)(1) (Vernon 1987); WASH. REV. CODE ANN. § 49.60.172(1) (Supp. 1989); ME. REV. STAT. ANN. tit 5, § 19204-B(1) (1988 & Supp 1989) (prohibiting the “affect[ing] or chang[ing]*’ of any health care facility employee's employment status based on a refusal to be tested or because of the result of any HIV test taken.); FLA. STAT. ANN. § 760.50(2)(a) (West Supp. 1988); Vr. STAT. ANN. tit. 21, § 495(a)(6)-(7) (Supp. 1989); R.I. GEN. LAWS § 23-6-22 (1989) (prohibiting AIDS testing as a condition of employment, “except… [w]here nondiscrimination can be shown, on the testimony of competent medical authorities, to constitute a clear and present danger of AIDS virus transmission to others; or … [w]here… laws of the state of Rhode Island may otherwise specifically authorize such exceptions“).

²⁶⁴ In Florida, the employer must prove that the HIV test is “necessary to ascertain whether an employee is currently able to perform in a reasonable manner the duties of the particular job or whether an employee will present a significant risk of transmitting [HIV] infection to other persons in the course of normal work activities; and [that] there exists no means of reasonable accommodation short of requiring the test.” FLA. STAT. ANN. § 760.50 (2)(c) (West 1988).

²⁶⁵ IOWA CODE ANN. § 601A.6(l)(d) (West 1988 & Supp. 1989).

²⁶⁶ TEX. REV. CIV. STAT. ANN. art. 4419b-l, § 9.02(2) (Vernon 1989); WASH. REV. CODE. ANN. § 349.60.172 (Supp. 1989).

²⁶⁷ ME. REV. STAT. ANN. tit. 5, § 19203-A(3) (1989); VT. STAT. ANN. tit. 18, § 1128(a) (West Supp. 1989).

²⁶⁸ ME. REV. STAT. ANN. tit. 5, § 19203-A(3) (1989); W. VA. CODE § 16-3C-6(a) (1988).

²⁶⁹ W. VA. CODE 16-3C-6(a) (Supp. 1989).

²⁷⁰ VA. CODE ANN. § 32.1-116.3 (West 1989) (The statute expressly includes HIV within its definition of communicable disease.).

²⁷¹ IOWA CODE ANN. § 135C23(2)(d) (West 1988).

²⁷² u.

²⁷³ FLA. STAT. ANN. § 641.3007 (West Supp. 1989). Missouri has also legislated protections for HMO subscribers. It prohibits denials of renewal of coverage based on a diagnosis of HIV. It also prohibits HMOs from excluding coverage of a HIV related treatment. Mo. REV. STAT. § 191.671(2) (Supp. 1990).

²⁷⁴ FLA. STAT. ANN. § 641.3007(1) (West Supp. 1989).

²⁷⁵ Id. at § 641.3007(4)(d).

²⁷⁶ Id. at § 641.3007(4)(e) (emphasis added).

²⁷⁷ Id. at § 641.3007(4)(b).

²⁷⁸ Id. at § 641.3007(4)(f).

²⁷⁹ Id. at § 641.3109(5)(a), (b).

²⁸⁰ WASH. REV. CODE ANN. § 49.60.174(2) (Supp. 1989).

²⁸¹ W. VA. CODE § § 33-15-13, 33-16-9 (1988); see also Mo. REV. STAT. § 191.671(2) (Supp. 1990).

²⁸² ILL. ANN. STAT. ch. 111 1/2, para. 5403 (Smith-Hurd 1988); IOWA CODE ANN. § 505.16 (West 1988).

²⁸³ ME. REV. STAT. ANN. tit. 5, § 19203-A(2) (1988).

²⁸⁴ WIS. STAT. ANN. § 631.90 (West 1988 & Supp. 1989).

²⁸⁵ R.I. GEN. LAWS § 23-6-24(a) (Supp. 1989).

²⁸⁶ Id. at § 23-6-24(b)(i).

²⁸⁷ Id. at § 23-6-24(b)(ii).

²⁸⁸ A late entrant is defined as one who does not enroll in the health plan when first eligible to do so but who later seeks coverage under the group plan. Id. at § 23-6-24(b)(iii). 289 Id. at § 23-6-24(b)(iv).

²⁹⁰ Id. at § 23-6-24(a), (b).

²⁹¹ Id

²⁹² CAL. INS. CODE § 799.02 (West Supp. 1990).

²⁹³ Id. at § 799.04.

²⁹⁴ Id. at § 799.03(a)(2).

²⁹⁵ Id. at § 799.09.

²⁹⁶ Id. at § 799.05.

²⁹⁷ Id. at § 799.08.

²⁹⁸ Id. at § 799.07.

²⁹⁹ FLA. STAT. ANN. § 627.429(4)(d) (West Supp. 1989).

³⁰⁰ Id.

³⁰¹ Id. at § 627.429(4)(e).

³⁰² Id.

³⁰³ Id. at 627.429(4)(f).

³⁰⁴ Id.

³⁰⁵ id. at § 627.429(5)(a).

³⁰⁶ id. at § 627.429(5)(b).

³⁰⁷ Id. at § 627.429(5) (c).

³⁰⁸ Id. at § 627.429(5)(d).

³⁰⁹ Id. at § 627.429(5)(d)(l), (2), (3).

³¹⁰ Id. at § 627.429(5)(d)(4).

³¹¹ Id. at § § 627.6265,.6646.

³¹² MICH. COMP. LAWS ANN. § 333.2843(b)(1) (West Supp. 1989).

³¹³ KY. REV. STAT. ANN. § 213.110(1) (Michie/Bobbs-Merrill Supp. 1988).

³¹⁴ DEL. CODE ANN. tit. 16, § 1203(c) (1988); N.Y. PUB. HEALTH LAW § 2783(8) (McKinney Supp. 1990).

³¹⁵ TriState Newspapers v. City of Port Jervis, 138 Misc. 2d 147, 523 N.Y.S.2d 954 (Sup. Ct. 1988).

³¹⁶ N.Y. PUB. HEALTH LAW § 2782(8) (McKinney Supp. 1990) (“under no circumstances shall confidential HIV related information be disclosable pursuant to article six of the public officers law.“).

³¹⁷ See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978).

³¹⁸ See Roe v. Wade, 410 U.S. 113 (1973).

³¹⁹ See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972).

³²⁰ See Parham v. J.R., 442 U.S. 584 (1979).

³²¹ See Whalen v. Roe, 429 U.S. 589 (1977).

³²² Cruzan v. Harmon, 760 S.W.2d 408 (Mo. 1988), cert granted, 109 S. Ct. 3240 (1989).

³²³ See supra pp. 196-99.

³²⁴ Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988).