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Recent Developments in Health Law: California Limits Egg Donor Compensation in Privately-Funded Research

Published online by Cambridge University Press:  01 January 2021

Elizabeth Gerber
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JLME Column
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Journal of Law, Medicine & Ethics , Volume 35 , Issue 1 , Spring 2007 , pp. 220 - 227
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Copyright © American Society of Law, Medicine and Ethics 2007

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Footnotes

The American Journal of Law & Medicine has been tracking and contributing to the development of health law since its inception at Boston University School of Law in 1975. The Journal publishes articles authored by professors, attorneys, physicians, and other health-care professionals on subjects ranging from health law and policy to the legal, ethical, and economic aspects of medical practice, research, and education.

The Harvard Law & Health Care Society is a student-operated health law organization at Harvard University Law School. In addition to contributing to this column, the Harvard Law & Health Care Society also hosts speakers from private practice and academia, presents career panels, and promotes interdisciplinary dialogue with other Harvard University graduate schools.

References

2006 Cal. ALS 483, §125355 (2006). SB1260 also sets standards to increase the effectiveness of informed consent and to decrease potential conflicts of interest that may adversely affect donors.Google Scholar
“Ortiz Legislation to Protect Egg Donors Signed Into Law,” California Stem Cell Report, September 26, 2006, available at <http://californiastemcellreport.blogspot.com/2006/09/ortiz-legislation-toprotect-egg.html> (last visited January 4, 2007); 2006 Cal. ALS 483, §1(a).+(last+visited+January+4,+2007);+2006+Cal.+ALS+483,+§1(a).>Google Scholar
Center for Genetics and Society, The California Stem Cell Program at One Year: A Progress Report (January 2006): at 3 [hereinafter, “Progress Report”].Google Scholar
B. Tansey, “Bid to Unlock Stem Cell Funds,” October 13, 2005, at C4; Z. W. Hall, “Stem Cell Institute Pursues Public Mandate,” November 21, 2006, available at <http://www.sacbee.com/110/v-print/story/80356.html> (last visited January 4, 2007) (describing the combination of public loans and private sources that fund the early research to circumvent limitations imposed by the lawsuits).+(last+visited+January+4,+2007)+(describing+the+combination+of+public+loans+and+private+sources+that+fund+the+early+research+to+circumvent+limitations+imposed+by+the+lawsuits).>Google Scholar
Editorial, “Stem Cell Policy; Ethical Measures Strengthen State Efforts,” San Diego-Union Tribune, February 15, 2006, at B6; Cal. Health & Safety Code § 125290.35(b)(3) (2004). See also Press Release, California Institute of Regenerative Medicine, ICOC Ratifies Key Policies for CIRM-Funded Research, February 10, 2005, available at <http://www.cirm.ca.gov/pressreleases/2006/02/02-10-06.asp> (last visited January 4, 2007); for an example of the criticisms leveled against CIRM, see generally Progress Report, supra note 3.+(last+visited+January+4,+2007);+for+an+example+of+the+criticisms+leveled+against+CIRM,+see+generally+Progress+Report,+supra+note+3.>Google Scholar
Draft of Recommended Revisions to California Code of Regulations Title 17, Division 4, February 6, 2006, available at <http://www.cirm.ca.gov/meetings/pdf/2006/02/021006_item_9.pdf> (last visited January 4, 2007) [hereinafter “Draft Revisions”].+(last+visited+January+4,+2007)+[hereinafter+“Draft+Revisions”].>Google Scholar
2006 Cal. ALS 483, §125355. SB1260 had originally included a prohibition on reimbursement of lost wages, a prohibition designed to protect against inequities between low- and high-income donors. (See “Ortiz Measure Stripped of Ban on Reimbursement of Lost Wages,” California Stem Cell Report, July 22, 2006, available at <http://californiastemcellreport.blogspot.com/2006/07/ortiz-measurestripped-of-ban-on.html> (last visited January 4, 2007). With the removal of the explicit mention of wages, SB1260 has the potential to be interpreted to permit reimbursement of lost wages just as CIRM-funded research has been. See “The Wages of Eggs,” California Stem Cell Report, February 26, 2006, available at <http://californiastemcellreport.blogspot.com/2006/02/wages-of-eggs.html> (last visited January 4, 2007).+(last+visited+January+4,+2007).+With+the+removal+of+the+explicit+mention+of+wages,+SB1260+has+the+potential+to+be+interpreted+to+permit+reimbursement+of+lost+wages+just+as+CIRM-funded+research+has+been.+See+“The+Wages+of+Eggs,”+California+Stem+Cell+Report,+February+26,+2006,+available+at++(last+visited+January+4,+2007).>Google Scholar
2006 Cal. ALS 483, §125350.Google Scholar
J. Hallye, Press Release, “Governor Signs Ortiz-Runner Bill to Protect Women Who Donate Eggs for Stem Cell Research,” September 26, 2006, available at <http://democrats.sen.ca.gov/templates/SDCTemplate.asp?a=6187&z=149&cp=PressRelease&pg=article&fpg=senpressreleases&sln=Ortiz&sdn=06> (last visited January 10, 2007 ).+(last+visited+January+10,+2007+).>Google Scholar
105 CMR 960.006(a); C.G.S.A. § 19a- 32d(c)(3); IC 35-46-5-3; Md. Ann. Code art. 83A, § 5-2B-12; Committee on Guidelines for Human Embryonic Stem Cell Research, National Research Council, Guidelines for Human Embryonic Stem Cell Research 85 (2005).Google Scholar
International Society for Stem Cell Research, Draft Guidelines for the Conduct of Human Embryonic Stem Cell Research(June 30, 2006): at 13, available at <http://www.isscr.org/StaticContent/StaticPages/ISSCRTaskForceGuidelinesDRAFT6-30-06.pdf> (last visited January 4, 2007).+(last+visited+January+4,+2007).>Google Scholar
K. Kaplan, “New Stem Cell Ethics Issue Emerges,” Los Angeles Times, September 13, 2006, at A1.Google Scholar
K. A. Dolan, “Despite Bush Veto, Stem Cell Research Abounds,” Forbes.com, available at <http://www.forbes.com/technology/2006/07/21/stem-cell-research-cz_kd_0721stemcell.html> (last visited January 4, 2007).+(last+visited+January+4,+2007).>Google Scholar
Reproductive Health and Research: Analysis of SB1260 Before the 2005-2006 Senate Floor (2006), available at <http://www.leginfo.ca.gov/pub/0506/bill/sen/sb_1251-1300/sb_1260_cfa_20060829_085557_sen_floor.html> (last visited January 10, 2007). The bill was also supported by the pro-life California Family Council on the ground that it would impede embryonic stem cell research, which they oppose because it destroys human embryos. Id.+(last+visited+January+10,+2007).+The+bill+was+also+supported+by+the+pro-life+California+Family+Council+on+the+ground+that+it+would+impede+embryonic+stem+cell+research,+which+they+oppose+because+it+destroys+human+embryos.+Id.>Google Scholar
Senate Third Reading: Analysis of Sb1260 Before the 2005-2006 Assembly Floor (2006), available at http://www.leginfo.ca.gov/pub/05-06/bill/sen/sb_1251-1300/sb_1260_cfa_20060822_200916_asm_floor.html (last visited January 4, 2007). Such has been a criticism leveled against IVF compensation practices, which recruit undergraduate women faced with large loans to undergo ovarian stimulation in exchange for several thousand dollars. See, e.g., A. T. Papadimos and T. J. Papadimos, “The Student and the Ovum: The Lack of Autonomy and Informed Consent in Trading Genes for Tuition,” Reproductive Biology and Endocrinology 2 (2004): 56.Google Scholar
See Reproductive Health and Research, supra note 14.Google Scholar
L. Romney, “New Battle Lines Are Drawn Over Egg Donation,” Los Angeles Times, September 13, 2006, at A27. The conservative California Family Council is an exception to this rule: it “has backed the bill on the grounds that a ban on payments would probably slow down embryonic stem cell research.” Id.Google Scholar
Ethics Committee, American Society for Reproductive Medicine, “Ethics Committee Report: Financial Incentives in Recruitment of Oocyte Donors,” Fertility and Sterility 74 (2000): 216-220, at 218.Google Scholar
Id. at 219. The ASRM revisited the subject of compensation in 2006 and again concluded that $5,000 is an appropriate sum. See Press Release, Highlights from the 62nd Annual Meeting, October 24, 2006, available at <http://www.asrm.org/Media/Press/policyeggdonation.html> (last visited January 4, 2007).+(last+visited+January+4,+2007).>Google Scholar
See Senate Third Reading, supra note 15.Google Scholar
See Kaplan, supra note 12.Google Scholar
See Check, “Ethicists and Biologists Ponder the Price of Eggs,” Nature 442 (2006): 606-07, at 606.CrossRefGoogle Scholar
Center for Genetics and Society, “SB1260: Standards for Egg Retrieval Fact Sheet,” available at <http://www.genetics-andsociety.org/policies/california/1260.html> (last visited January 4, 2007).+(last+visited+January+4,+2007).>Google Scholar
See Check, supra note 22, at 606.Google Scholar
2006 Cal. ALS 483, §125355; Draft Revisions, supra note 6.Google Scholar
In a meeting to explore the hazards of egg donation for research, medical experts concluded that the risks are not high enough to warrant halting all egg donation; the panel will be publishing its findings in late 2006 or early 2007 in time for the first round of Proposition 71-funded research. See C. T. Hall, “Stem Cell Panel Ponders Hazards of Egg Donation,” San Francisco Chronicle, September 29, 2006, at B1.Google Scholar
See generally Department of Health, New York State, “Becoming an Egg Donor,” available at <http://www.health.state.ny.us/nysdoh/infertility/eggdonor.htm#process> (last visited January 4, 2007).+(last+visited+January+4,+2007).>Google Scholar
Pearson, H., “Health Effects of Egg Donation May Take Decades to Emerge,” Nature 442 (2006): 607-08, at 607. See also D. Beeson, “Egg Harvesting for Stem Cell Research: Medical Risks, Ethical Problems,” Reproductive BioMedicine Online 13 (2006): 573-79, at 574 (citing a 10-20% risk of ovarian hyperstimulation and summarizing other short- and long-term risks).CrossRefGoogle Scholar
See Pearson, supra note 28, at 607-08; Beeson, supra note 28, at 574.Google Scholar
See Beeson, supra note 28, at 574.Google Scholar
Id., at 578, questioning the autonomy argument “in the context of uncertainties (to the women and experts alike) about heath effects of the procedures and the speculative nature of any beneficial outcomes.”Google Scholar
Steinbock, B., “Payment for Egg Donation and Surrogacy,” The Mount Sinai Journal of Medicine 71 (2004): 255-65, at 262.Google ScholarPubMed
R. Korobkin, “Buying and Selling Human Tissues for Stem Cell Research,” Arizona Law Review (2007): at 3 (forthcoming, article on file with author).Google Scholar
J. Daar and R. Korobkin, “Selling Eggs Isn’t Selling Our Souls,” Los Angeles Times, August 30, 2006, at B13.Google Scholar
Progress Report, supra note 3, at 17.Google Scholar
See Kaplan, supra note 12; Progress Report, supra note 3, at 11.Google Scholar
Human Fertilisation and Embryology Authority, “Donating Eggs for Research: Safeguarding Donors,” 3 (2006), available at <http://www.hfea.gov.uk/cps/rde/xbcr/SID-3F57D79B-67B92B23/hfea/donating_eggs_for_research_safeguarding_donors_consultation_FINAL.pdf> (last visited January 4, 2007); Craft, I., “An Ethical Dilemma: Should Egg Donors be Paid? An Inconvenience Allowance Would Solve the Egg Shortage,” British Medical Journal 314 (1997): 1400-001, at 1400.Google Scholar
See J. Daar, supra note 34.Google Scholar
See Progress Report, supra note 3, at 218.Google Scholar
See Steinbock, supra note 32, at 258. See supra note 7 for clarification regarding reimbursement for lost wages.Google Scholar
See Daar, supra note 34.Google Scholar
See Kaplan, supra note 12.Google Scholar
Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, “Revised Recommendations for HIV Testing of Adults, Adolescents, and Pregnant Women in Health care Settings,” Morbidity Mortality Weekly Report 55, no. RR −14 (2006): 1–17.Google Scholar
Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, “Revised Guidelines for HIV Counseling, Testing and Referral and Revised Recommendations for HIV Screening of Pregnant Women,” Morbidity Mortality Weekly Report 50, no. RR-19 (2001): 59–86.Google Scholar
See Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, supra note 1, at 7.Google Scholar
Id. at 1.Google Scholar
Id.Google Scholar
Id. at 7. The guidelines provide that the oral or written description of the test should include “an explanation of HIV infection and the meanings of positive and negative test results, and the patient should be offered an opportunity to ask questions and decline testing.” Id. at 7–8. The guidelines “strongly encourage” prevention counseling for persons at high risk for HIV, but the counseling “should not have to be linked to HIV testing.” Id. at 8.Google Scholar
Id. at 2. Despite these articulated objectives, the guidelines recommend against prevention counseling and do not address how patients will be linked to either clinical or prevention services.Google Scholar
Id. at 5.Google Scholar
See Montaner, J. S. et al., “Viewpoint: The Case For Expanding Access to Highly Active Antiretroviral Therapy to Curb the Growth of the HIV Epidemic,” Lancet 368 (2006): 531–536 (citing studies that find between a 50 and 86 percent reduction in HIV transmission for patients on highly active antiretroviral therapy (HAART), and arguing for expanded access to antiretroviral medication).CrossRefGoogle Scholar
Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, “Pneumocystis Pneumonia–Los Angeles,” Morbidity Mortality Weekly Report 30, no. 21 (1981): 1–3.Google Scholar
See Herek, G. M., “Thinking about AIDS and Stigma: A Psychologist's Perspective,” Journal of Law Medicine & Ethics 30 (2002): 594–607, at 595–597 (discussing the origins and causes of AIDS related stigma).CrossRefGoogle Scholar
See Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, “Current Trends Update: Acquired Immunodeficiency Syndrome-United States,” Morbidity Mortality Weekly Report 35, no. 2 (1986): 17–21 (noting that 94% of AIDS patients can be classified as gay or bisexual men, injection drug users, or hemophiliacs).Google Scholar
See Hodge, J. G., Washington D.C.: Center for Law and the Public's Health, “Advancing HIV Prevention Initiative: A Limited Legal Analysis of State HIV Statutes” (2004). As of 2004, 40 states had statutes regulating who can offer HIV testing, 24 states required pre-test counseling and the provision of specific information before testing, and 27 states required informed consent before testing. Id. at 15–16.Google Scholar
See Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, supra note 1, at 3.Google Scholar
After protease inhibitors, a new class of antiretroviral drugs, were approved by the Food and Drug Administration in 1995, the media published reports of HIV patients “with no measurable trace of the virus” in their blood, and Newsweek magazine featured a cover story entitled, “The End of AIDS?” Though scientists later determined that the virus cannot be fully eradicated and that controlling HIV requires lifetime use of medications with dangerous side effects, HAART changed the course of the disease. See http://kaisernetwork.org, Kaiser Daily HIV/AIDS Reports, “The 20th Anniversary” (June 8, 2001), available at <http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID=5073> (last visited January 8, 2007).+(last+visited+January+8,+2007).>Google Scholar
Accurate HIV screening and prevention counseling requires all clinicians to engage in candid, and sometimes uncomfortable, discussions about drug use and sexual behavior with patients who may not traditionally seem “at risk.”17. Id. at 4.Google Scholar
Id. at 2.Google Scholar
Id.Google Scholar
Id.Google Scholar
A dispute has arisen as to how much input the CDC actually solicited from community groups. At least 30 AIDS service organizations have alleged that the CDC sidestepped the typical posting process that allows 60 or more days for public comment, instead allowing just 15 working days for selected interested parties to register their opinions. Lambda Legal, Press Release, “Federal HIV Testing Initiatives Can Only Succeed with Expanded Healthcare, Patient and Provider Education” (September 21, 2006), available at <http://www.lambdalegal.org/binary-data/LAMBDA_PDF/pdf/717.pdf> (last visited January 8, 2007).+(last+visited+January+8,+2007).>Google Scholar
Howard University Hospital became the first hospital in the nation to offer universal, routine HIV testing. “It's my hope this becomes like a cholesterol test – just a standard routine (given) by your doctor,” noted the director of the Hospital's Center for Infectious Disease Management and Research. Christine Dell'Amore, “First Hospital Makes HIV Test Routine,” United Press International, October 23, 2006.Google Scholar
See, e.g., Gostin, L. O., Commentary, “HIV Screening in Health Care Settings: Public Health and Civil Liberties in Conflict?” JAMA 296 (2006): 2023–2025; Bayer, R., Fairchild, A. L., “Perspective: Changing the Paradigm for HIV Testing: The End of Exceptionalism?” New England Journal of Medicine 355 (2006): 647–49.CrossRefGoogle Scholar
See, e.g., Legal, Lambda supra note 21; American Civil Liberties Union, “ACLU Says that New CDC HIV Testing Recommendations Raise Health and Civil Liberties Concerns,” Press Release (September 21, 2006), available at <http://www.aclu.org/hiv/testing/26819prs20060921.html> (last visited January 8, 2007); National Association of People With AIDS, Press Release, “National Association of People with AIDS Supports Routinely Offered and Voluntary HIV Counseling, Testing and Referral Services” (September 21, 2006), available at <http://www.napwa.org/documents/routine_testing_counseling.pdf> (last visited January 8, 2007) (calling for written informed consent, counseling, and meaningful access to health care).+(last+visited+January+8,+2007);+National+Association+of+People+With+AIDS,+Press+Release,+“National+Association+of+People+with+AIDS+Supports+Routinely+Offered+and+Voluntary+HIV+Counseling,+Testing+and+Referral+Services”+(September+21,+2006),+available+at++(last+visited+January+8,+2007)+(calling+for+written+informed+consent,+counseling,+and+meaningful+access+to+health+care).>Google Scholar
See Casarett, D. J. and Lantos, J. D., “Have We Treated AIDS Too Well? Rationing and the Future of AIDS Exceptionalism,” Annals of Internal Medicine 128 (1998): 756–59 (tracing the history of HIV policies and arguing against AIDS exceptionalism); but see Fairchild, A. L., Colgrove, J. and Bayer, R., “The Myth of Exceptionalism: The History of Venereal Disease Reporting in the Twentieth Century,” Journal of Law, Medicine & Ethics 31 (2003): 624–637 (noting the similarity between HIV/AIDS policy and venereal disease policy to demonstrate that AIDS policy has not been treated so differently from all other diseases).CrossRefGoogle Scholar
See Gostin, supra note 23, at 2023.Google Scholar
See supra note 24.Google Scholar
Id.Google Scholar
Those who call for an end to AIDS exceptionalism argue that HIV tests and cancer screens should be treated identically, because both are medical problems that can be treated; people with HIV do not suffer significant social consequences, and therefore, do not need to be informed of such consequences through special, written informed consent procedures. Civil libertarians argue that people with HIV suffer unique stigma not faced by people with cancer, which are not adequately mitigated by current antidiscrimination laws, and therefore, the extra consent and counseling requirements remain justified.Google Scholar
42 U.S.C. §12101–213 (2000). The ADA prohibits discrimination on the basis of disability in employment, state and local government, public accommodations, commercial facilities, transportation, and telecommunications. Id.Google Scholar
524 U.S. 624, 637 (1998).Google Scholar
Id. at 641–42. The Court held that the plaintiff was disabled because her HIV substantially limited her major life activity of reproduction. They found that the plaintiff's decision not to have children was motivated by her HIV diagnosis. Id. Given that many gay men with HIV have never considered having children, and current therapies make the risk of mother to child transmission negligible, the protections extended in Bragdon are far from comprehensive.Google Scholar
See, e.g., E.E.O.C. v. Lee's Log Cabin, 436 F. Supp.2d 992 (W.D.Wisc. 2006) (finding no evidence that the plaintiff's major life activities were impacted by her HIV infection); Cruz Carillo v. AMR Eagle, 148 F.Supp.2d 142 (D.Puerto Rico 2001) (finding that the plaintiff was not disabled because he provided no evidence that HIV substantially limits a man's ability to reproduce); Gutwaks v. American Airlines, 1999 WL 1611328 (N.D.Tex. 1999) (granting summary judgment to the defendant based on determination that the gay plaintiff's decision not to have children was “a personal one, not caused by his HIV status”). See generally Metnick, J. M., “Evolving to Asymptomatic HIV as a Disability Per Se: Closing the Loophole in Judicial Precedent,” DePaul Journal of Health Care Law 7 (2003): 69–104, at 71–86 (discussing the failure of Bradgon to provide comprehensive ADA protection for people living with HIV).Google Scholar
See National Immigration Project, National Lawyers Guild, and San Francisco AIDS Foundation, Manual, “HIV and Immigrants: A Manual for Service Providers” (2004), at 18, available at <http://www.nationalimmigrationproject.org/HIV/2004HIVManual/HIVManual.pdf> (last visited January 8, 2007).+(last+visited+January+8,+2007).>Google Scholar
Gostin, L. O., Feldblum, C. and Webber, D. W., “Disability Discrimination in America: HIV/AIDS and Other Health Conditions,” JAMA 281 (1999): 745–752.CrossRefGoogle Scholar
National HIV/AIDS Clinicians' Consultation Center, “Updated State HIV Testing Laws” (September 26, 2006), at 13–14, available at <http://www.ucsf.edu/hivcntr/PDFs/WEB2006State%20Laws.pdf> (last visited January 8, 2007). (last visited January 8, 2007).' href=https://scholar.google.com/scholar?q=National+HIV/AIDS+Clinicians'+Consultation+Center,+“Updated+State+HIV+Testing+Laws”+(September+26,+2006),+at+13–14,+available+at++(last+visited+January+8,+2007).>Google Scholar
See Gallety, C. L. and Pinkerton, S. D., “Conflicting Messages: How Criminal HIV Disclosure Laws Undermine Public Health Efforts to Control the Spread of HIV,” AIDS & Behavior 10 (2006):451–461 (noting that few of the laws require that actual exposure occurs and none requires transmission, and arguing that the HIV criminalization laws generally undermine public health efforts); American Civil Liberties Union, AIDS Project, “State Criminal Statutes on HIV Transmission – 2004” (March 18, 2005), available at <http://www.aclu.org/FilesPDFs/hivcriminalization.pdf> (last visited January 8, 2007); Lazzarini, Z., Bray, S. and Burris, S., “Evaluating the Impact of Criminal Laws on HIV Risk Behavior,” Journal of Law, Medicine & Ethics 30 (2002): 239–253 (examining prosecutions of individuals based on HIV exposure and transmission criminalization laws, and concluding that such laws are not likely to help prevention efforts).CrossRefGoogle Scholar
See Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, supra note 1, at 6.Google Scholar
See Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, supra note 1, at 6; Rusch, M. L. et al., “Sexual Risk Behaviors Among Injection Drug Users Before Availability of Highly Active Antiretroviral Therapy,” AIDS & Behavior 9 (2005): 289–299 (finding that increased exposure to HIV counseling and testing was not associated with significant changes in high risk condom use practices in HIV positive injection drug users).CrossRefGoogle Scholar
See Kaiser Family Foundation, HIV/AIDS Policy Fact Sheet, “Medicaid and HIV/AIDS” (October 2006), available at <http://www.kff.org/hivaids/upload/7172-03.pdf> (last visited January 8, 2007) (citing a study that found that 44 percent of people with HIV/AIDS were enrolled in Medicaid, and 20 percent were uninsured).+(last+visited+January+8,+2007)+(citing+a+study+that+found+that+44+percent+of+people+with+HIV/AIDS+were+enrolled+in+Medicaid,+and+20+percent+were+uninsured).>Google Scholar
Most people with HIV qualify for Medicaid because they are Supplementary Security Income (SSI) beneficiaries: Both disabled and low-income. The SSI income standard is 74 percent of the Federal Poverty Level, which was $7,252 annually for an individual in 2006. Id.Google Scholar
Id.Google Scholar
Id.Google Scholar
See Kaiser Family Foundation, HIV/AIDS Policy Issue Brief, “Financing HIV/AIDS Care: A Quilt with Many Holes” (May 2004), at 7, available at <http://www.kff.org/hivaids/upload/Financing-HIV-AIDS-Care-A-Quilt-with-Many-Holes.pdf> (last visited January 8, 2007) (noting that while Massachusetts, Maine and the District of Columbia have received federal approval to expand coverage to pre-disabled people with HIV, only the Massachusetts program is currently operational).+(last+visited+January+8,+2007)+(noting+that+while+Massachusetts,+Maine+and+the+District+of+Columbia+have+received+federal+approval+to+expand+coverage+to+pre-disabled+people+with+HIV,+only+the+Massachusetts+program+is+currently+operational).>Google Scholar
See Treatment Access Expansion Project, “ETHA Fact Sheet,” available at <http://www.taepusa.org/images/etha_fact_sheet.pdf> (last visited January 8, 2007). ETHA is modeled after the successful Breast and Cervical Cancer Prevention and Treatment Act of 2000 which allows states to provide early intervention access to women with breast and cervical cancer. Id. A study assessing the potential effectiveness of ETHA found that, over a ten year period, ETHA would reduce the death rate for persons living with HIV on Medicaid by 50% and decrease federal spending on Medicaid by nearly $32 million. J. Rodgers, R. Yip, and Pricewaterhouse Coopers, “An Analysis of the Early Treatment for HIV Act” (May 27, 2003), available at <http://www.taepusa.org/documents/PWC%20Report%20-%20Final%20PDF.pdf> (last visited January 8, 2007).+(last+visited+January+8,+2007).+ETHA+is+modeled+after+the+successful+Breast+and+Cervical+Cancer+Prevention+and+Treatment+Act+of+2000+which+allows+states+to+provide+early+intervention+access+to+women+with+breast+and+cervical+cancer.+Id.+A+study+assessing+the+potential+effectiveness+of+ETHA+found+that,+over+a+ten+year+period,+ETHA+would+reduce+the+death+rate+for+persons+living+with+HIV+on+Medicaid+by+50%+and+decrease+federal+spending+on+Medicaid+by+nearly+$32+million.+J.+Rodgers,+R.+Yip,+and+Pricewaterhouse+Coopers,+“An+Analysis+of+the+Early+Treatment+for+HIV+Act”+(May+27,+2003),+available+at++(last+visited+January+8,+2007).>Google Scholar
See, e.g., Wolf, L. E., Lo, B. and Gostin, L. O., “Legal Barriers to Implementing Recommendations for Universal, Routine Prenatal HIV Testing,” Journal of Law, Medicine & Ethics 32 (2004): 137–147, at 137 (noting that states adopted new prenatal HIV testing policies as a result of CDC guidelines). The Supreme Court has held that CDC guidelines have “special weight and authority” though the CDC's views are not conclusive in establishing medical or public health consensus. Bragdon v. Abbott, 524 U.S. 624, 650 (1998).CrossRefGoogle Scholar
See Gostin, supra note 23, at 2024 (suggesting that states may fear loss of CDC funding if they do not comply with national guidelines).Google Scholar
Smith, S., “State Requires Doctors to Identify HIV Patients,” Boston Globe, November 15, 2006. The debate over whether states are required to report cases of HIV by full names rather than by codes is another aspect of the argument over “AIDS exceptionalism,” with proponents claiming that name based reporting is essential for epidemiological purposes, and critics claiming that the practice is unnecessary and dissuades some people from being tested out of concern for their confidentiality. Id.Google Scholar
See National HIV/AIDS Clinicians' Consultation Center, supra note 36; Hodge, supra note 13.Google Scholar
The new guidelines recommend that, where state statutes or regulations conflict with the guidelines, “jurisdictions should consider strategies to best implement these recommendations within current parameters and consider steps to resolve conflicts with these recommendations.” Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, supra note 1, at 13.Google Scholar
See Hodge, J. G., “The Role of New Federalism and Public Health Law,” Journal of Law and Health 12 (1998): 309–357, at 323–31 (discussing the long history of public health regulation as a power reserved to the states).Google Scholar