It took some doing, but we finally got a chance to talk to an aide in Davis' office about the bill and share our concerns. Our understanding is that Rep. Davis will introduce a committee substitute, but the only addition is to clarify reporting requirements for test results.
The bill is deceptively simple, as we discussed earlier. It simply changes "may" to "shall" or "must," applies to both state prisons and state jails, and applies to prisoners about to be released from the institutions. The fiscal note for the bill says that it won't impact the state's budget.
On one hand, the Network would like to support the bill.
- The incidence of HIV is about 7 times higher in the Texas criminal justice system than it is in the general population. The state releases a little more than 100 HIV-positive prisoners each month, according to the Texas State Epidemiologic Profile, 2005. The actual number of HIV-positive prisoners may be higher.
- Upon release, ex-prisoners often seek to do those things that they were not allowed to do while in prison. This may include behaviors that can lead to the transmission of HIV or other infectious diseases.
- The over-representation of African Americans in the Texas prison system, coupled with their over-representation in current HIV surveillance reports, suggests that there might be some net benefit to prevention, especially for that community, if some policy like what is being proposed in HB 43 is implemented.
On the other hand, we have some concerns about the bill.
- The Network bases its advocacy on a set of policy principles that provide a framework for progressive public policy for HIV/AIDS education, prevention, and treatment. Principle 9 says:
"There are no scientifically valid grounds for the mandatory HIV testing of specific groups of persons. Public health policy regarding HIV testing should be firmly grounded in current scientific evidence regarding risk of HIV transmission and should take into account the social and economic impact of HIV testing."
- The Network would rather see the testing protocol be "routine" rather than "mandatory." This would allow a prisoner to opt out of the test if he/she really objected to being tested. Our justification for this is simply a matter of human rights, allowing the individual to make an informed decision regarding his/her own health.
- That matter of "informed decision" is also a concern. Any HIV test administered in the state of Texas is supposed to be accompanied by pre-test counseling which allows the individual to have the information needed to make a decision regarding testing. If testing becomes mandatory in Texas prisons, there appears to be no concomitant requirement that any sort of counseling or education precede the test.
- In the case of a positive test result, Texas law also requires post-test counseling regarding prevention and treatment. This law is often disregarded, so we think it would be worthwhile to reference the relevant part of the statute to make sure that this counseling occurs.
- When this counseling occurs is also important. A positive test result is not like saying, "Beef! It's what's for dinner!" This is a life-altering moment. This is news that pretty much shuts out the world and all that it might have to say while the individual processes the fact that he/she has a life-threatening disease that is more than a little socially unacceptable. (Not only are you going to die, people won't like you anymore!) HB 43 makes no provision for timing of the test--and therefore does not allow time for an individual to adjust to a positive test result or make arrangements for living with HIV after release. Just as important from the perspective of the bill as a prevention bill, there needs to be some time allowed for the individual to be able to receive and understand the prevention information that he/she now needs in order to protect future sexual partners.
- The bill makes no reference to after care. There is some indication that after care is now a concern at the Texas Department of Criminal Justice, but there is also anecdotal evidence that what is said to happen doesn't always happen. The Network would prefer an explicit reference in the bill to TDCJ's responsibility to provide referrals and assistance in making connection with local community HIV services and, when appropriate, the Texas HIV Medication Program. For community services, this might include introduction to a case manager, even if only by telephone, and setting up an appointment to begin services, preferably within 30 days of release.
We'll see how it goes.
[Edited to correct embarrassing error in the number of prisoners released each month.]