Dept. of Civil Rights: Michigan’s Ban on HIV-Positive Inmates Working in Food Service Violates Law

Todd Heywood

The Michigan Department of Corrections has prevented HIV-infected prisoners from working in food service positions since at least 1999. But the Michigan Department of Civil Rights argues that the policy violates non-discrimination statutes.

– The Michigan Department of Corrections, which oversees the operations
of the state’s prisons, has prevented HIV-infected prisoners from
working in food service positions since at least 1999. But legal
scholars and the Michigan Department of Civil Rights argue that the policy violates non-discrimination statutes, including the Americans With Disabilities Act.

The corrections
department contends that the policy is in place to protect the "safety
and security" of prison facilities, despite the fact that state health
officials say that HIV and AIDS can’t be transmitted through food.

"A prison holds about
1,000, 1,200 people and as those 1,000 prisoners go through for
breakfast, lunch and dinner, prisoners are scooping that food onto
their trays," said MDOC spokesman Russ Marlan. "So if a prisoner was
HIV-positive and sneezed onto a food item and then a prisoner ate that
food item and that prisoner had a lesion in their mouth they could
contract the disease."

Marlan also used the concept of a prisoner bleeding on a radish as a potential for the spread of the virus.

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"Say a prisoner cuts
himself and his blood falls on a radish and somebody eats that radish
and that he’s got an open lesion in his mouth, there’s a potential for
him to contract that disease," Marlan said. "As responsible corrections
professionals dedicated to running a safe and secure prison system, we
made the decision not to allow them (prisoners with HIV) to work in
that area of prison operations."

"We have not seen a case
of HIV transmission through food," said James McCurtis, spokesman for
the Michigan Department of Community Health, which records and monitors
all cases of confirmed HIV infections in the state.

Both the MDCH and the
Centers for Disease Control and Prevention in Atlanta, the federal
government agency responsible for tracking HIV and other diseases,
stress that HIV is not transmitted through casual contact, such as
through food or from toilet seats. HIV is transmitted when HIV-infected
body fluids, such as blood, semen, breast milk and vaginal secretions,
are exposed directly to cuts in the body through intimate activities
such as sex, or sharing needles. The virus has been spread from mother
to baby during birth and through breast feeding, studies show.

Dan Levy, chief legal
officer of the Michigan Department of Civil Rights, said the reasoning
for the policy offered by Marlan won’t stand up in court.

"That won’t cut it. As
long as that stays the reasoning they are in violation" of the
Americans with Disability Act, Levy said. He also acknowledged the
department was opening a formal investigation of the policy. "I suspect
their reasoning will change."

Bebe Anderson, HIV
project director for the national organization Lambda Legal, was
surprised when she heard about the policy. "I’m certainly troubled by
any policy that would treat people with HIV differently based on the
total misunderstanding of HIV."

She said that federal
law has been "clear" on the subject of federal anti-discrimination
laws, such as the ADA – and that correctional facilities are obligated
to follow the ADA.

"It’s also very clear those laws prohibit treating those people with HIV differently," she said.

Lance Gable, an associate professor of law at Wayne State University, agreed with Anderson’s assessment.

"To bar someone from
having a food service job because of their HIV status is clearly a
violation of the ADA. That’s clearly inappropriate," he said.

Jay Kaplan, staff
attorney for the LGBT project of the American Civil Liberties Union of
Michigan, also shared concerns about the legality of the corrections
department policy.

But Marlan said the department is confident in its policy.

"Does it surprise me
that three lawyers would say something contrary to what we believe?
No," he said. "I’ll tell you the Attorney General represents the
Department of Corrections and they don’t believe it violates the ADA."

Marlan referred Michigan
Messenger to attorney Pete Govorchin of the Office of the Attorney
General for further details. Calls to Govorchin were not returned.

While Marlan said that
HIV might be spread through sneezing and blood on food, fellow
corrections spokesman John Cordell indicated there was a slightly
different reason for the policy.

He said life in prison
runs on very different rules and it would be possible that a prisoner
might feel an HIV-positive prisoner who was preparing and serving food
was intentionally attempting to infect him. That, Cordell said, could
lead the uninfected prisoner to attack the HIV-positive prisoner in
"the big yard on Tuesday."

Levy, from MDCR, said Cordell’s explanation would pass legal muster in a court challenge.

"It’s not a food service
issue per se, which is already decided in the public sector, you cannot
deny somebody a job in food service because they are HIV positive
because you believe they can spread the virus. It is more an imaginary
problem than real. In a prison setting, the courts believe the
imaginary is good enough (such as a potential reaction of prisoners
fearing exposure to the virus from food)."

And while the policy
prohibits HIV positive prisoners from working in food service, it
allows for those prisoners infected with Hepatitis B or C to work in
food service. Prisoners with any of the three viruses are barred from
working in health care.

Marlan said prisoners with Hepatitis B and C are subject to some restrictions when working in food service.

"Hepatitis B and C
prisoners are not allowed to work in food service if they have such
conditions as cuts, sores, uncontrolled cough, runny nose, poor hygiene
– so there are some provisions on them working in food service," Marlan

The CDC says between
800,000 and 1.4 million Americans have chronic Hepatitis B infections.
This is what the CDC has to say about the spread of the virus:

How is hepatitis B spread?

Hepatitis B is spread when blood, semen, or other body fluid infected
with the hepatitis B virus enters the body of a person who is not
infected. People can become infected with the virus during activities
such as:

Birth (spread from an infected mother to her baby during birth)
Sex with an infected partner
Sharing needles, syringes, or other drug-injection equipment
Sharing items such as razors or toothbrushes with an infected person
Direct contact with the blood or open sores of an infected person
Exposure to blood from needlesticks or other sharp instruments

The government agency also says it has documented some cases of food related transmission of Hepatitis B:

Can hepatitis B be spread through food?

Unlike Hepatitis A, it is not spread routinely through food or water.
However, there have been instances in which Hepatitis B has been spread
to babies when they have received food pre-chewed by an infected person.

The CDC says an
estimated 3.2 million Americans are suffering from chronic Hepatitis C
infection. Here’s what the CDC says about Hepatitis C transmission:

How is hepatitis C spread?

Hepatitis C is spread when blood from a person infected with the
hepatitis C virus enters the body of someone who is not infected.
Today, most people become infected with the hepatitis C virus by
sharing needles or other equipment to inject drugs. Before 1992, when
widespread screening of the blood supply began in the United States,
hepatitis C was also commonly spread through blood transfusions and
organ transplants.

People can become infected with the hepatitis C virus during such activities as

Sharing needles, syringes, or other equipment to inject drugs
Needlestick injuries in healthcare settings
Being born to a mother who has hepatitis C
Less commonly, a person can also get hepatitis C virus infection through
Sharing personal care items that may have come in contact with another person’s blood, such as razors or toothbrushes
Having sexual contact with a person infected with the hepatitis C virus

Can hepatitis C be spread within a household?

but this does not occur very often. If hepatitis C virus is spread
within a household, it is most likely a result of direct,
through-the-skin exposure to the blood of an infected household member.

Marlan said the department had no plans to revisit the policy anytime soon.

The policy, which was
revised last in 1999 – when Jennifer Granholm was attorney general –
has the full blessing of the governor.

"I suppose you are
always going to find people who disagree with a policy," Granholm
spokeswoman Liz Boyd said. "But they have a policy in place they are
confident with and we support that policy."

News Sexual Health

San Francisco’s Approach to HIV Is Working

Martha Kempner

San Francisco's multi-pronged approach to treating and preventing HIV has led to a dramatic change in that city, which was once a hotbed of the national HIV and AIDS epidemic.

The World Health Organization (WHO) last month issued new treatment and prevention guidelines for HIV that suggest all patients who test positive for the virus be put on antiretroviral drugs right away and that those at high risk for the virus be offered preventive drug therapy.

San Francisco provides a great example of how this approach can work, as the New York Times reported Monday. San Francisco, which was once a hotbed of the national HIV and AIDS epidemic—the city saw 1,641 die from AIDS in 1992—saw just 302 new HIV infections last year and 177 HIV-positive San Franciscans died (some from unrelated causes). A multi-prong approach that gets patients into treatment immediately, offers pre-exposure prophylaxis for those at most risk, and helps people find and keep health insurance is responsible for the city’s success.

The city adopted the test-and-treat part of the model in 2010. That increased the availability of testing services and created a program called Rapid, which connects patients who test positive with doctors who can see them right away. Those who don’t have health insurance can meet with a social worker who helps them apply for public health coverage. The program will even provide car fare if necessary.

This strategy was met with some resistance from doctors who thought the side effects of the drugs were too harsh for people whose immune system were not yet compromised and worried that people who still felt healthy would be unlikely to stick to a demanding drug regimen.

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“We were accused of medicalizing HIV,” Dr. Grant Colfax, who was the city’s director of HIV services in 2010, told the New York Times. “Which I found ironic.”

Getting people who test positive immediate treatment is not just about their own health, it’s about preventing them from spreading the disease. When taken regularly, antiretroviral drugs can reduce the level of virus in a person to the point that he or she is no longer contagious.

Such patients are said to be virally suppressed. In San Francisco, 82 percent of residents with HIV are in care and 72 percent are suppressed. This far outstrips performance nationally. As of 2012, the Centers for Disease Control and Prevention estimated that 39 percent of HIV-positive Americans were in treatment and only 30 percent were taking their drugs frequently enough to be considered suppressed.

In 2013, after the Food and Drug Administration (FDA) approved Truvada—a pill that combines two HIV drugs—for use as pre-exposure prophylaxis (PrEP), San Francisco added that to its approach. PrEP has been found to be highly successful. A study of 657 Kaiser Permanente patients on Truvada found that none of them contracted HIV over a two-year period, as Rewire recently reported.

The method has its critics, however, because condom use among these men went down and about half of them contracted another sexually transmitted infection (STI) such as gonorrhea or chlamydia. Nonetheless, Dr. Susan Boochbinder, head of HIV research for the city’s health department, says it would be ridiculous not to offer PrEP for fear that patients will get other STIs.

“Denying PrEP to our patients because they might have unsafe sex makes about as much sense as our colleagues who treat high cholesterol denying their patients statins because they might eat more ice cream,” Boochbinder told the New York Times.

San Francisco’s model includes intensive follow-up to ensure that patients—especially those at most risk, such as the homeless—stay in treatment.

This model cannot be replicated in low-income areas, especially in the developing world where donor contributions for AIDS has been flat since 2009.

San Francisco is a wealthy city. The lack of affordable housing in the city has forced low-income people out, meaning many residents with HIV have higher incomes and access to health insurance. The tech boom means that the city has a large budget that allows it to fill in HIV-funding funding gaps where state and federal budgets fall short.

Still, there is a lot to be learned from this program.

“I love the San Francisco model. If it keeps doing what it’s doing, I have a strong feeling that they will be successful at ending the epidemic as we know it,” Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, told the New York Times. “Not every last case—we’ll never get there—but the overall epidemic. And then there’s no excuse for everyone not doing it.”

Commentary Sexual Health

No, Teens Did Not Create a Working Condom That Changes Colors if You Have an STI, and Maybe They Shouldn’t

Martha Kempner

Last week, the media went wild discussing a condom that could change colors if it came in contact with an STI. Not only is this condom chameleon just an idea at this point, it might not be the best idea.

Last week, the story broke about teens who had invented a new condom that could detect sexually transmitted infections (STIs) and alert a partner by changing colors. Media outlets blared: “High School Students Come Up With Brilliant Way To Detect Sexually Transmitted Infections;” “Revolutionary Color Changing Condom Detects STDs;” and “Roses are red, condoms are blue … if you have syphilis;” just to name a few. 

Despite the attention-grabbing nature of these headlines, don’t be fooled: They—and sometimes the pieces they accompanied—do not carry entirely accurate implications. This condom-and-STI-test-wrapped-in-one is not coming soon to a pharmacy near you. It’s an interesting idea, but that’s all it is: just an idea. It’s a thought with theory behind it on how it might work. It has not gotten past the concept stage. There is no operational prototype.

That does not mean we shouldn’t celebrate potential innovation—and the young people who dreamt it up. But in the process of doing so, most media outlets didn’t bother to question whether it was scientifically possible to mass produce such an item or whether it was actually the best way to test for STIs. Nor did they bother to point out that until an option like this can actually be purchased, people need to continue going to their clinic or doctor for STI screening and treatment. As a sexuality educator focused on preventing STIs, I feel this leaves a pretty gaping hole in the commentary.

First, the true story. Three young teenagers who attend the Isaac Newton Academy in London had an idea for a condom that would not just protect against STIs but detect them as well. Inspired by the high rates of STIs in the United Kingdom, the teens theorized that they could make a condom that would include a layer of antibodies that would recognize a virus or bacteria—such as chlamydia—and cause the condom to change color. They cleverly called the concept the S.T. EYE; entered it into the TeenTech Awards, which encourages teenagers to explore science, engineering, and technology; and won £1,000 (or $1,568). In October, they will go to Buckingham Palace to be honored along with the other teen winners. The students told MTV that they hoped to have a working prototype by then.

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In the interview with MTV, one of the teens explained more about how this condom could work. In a typical HIV test, he explained, “Antigens are attached to a dish—blood or seminal fluid is added and if HIV antibodies are present, they attach to the antigen.”

“With our concept,” he continued, “You would have to have the antibodies already attached to the latex of the condom, so once you add the fluid onto the latex, it would then trigger the reaction and cause a color change similar to the HIV test.”

In other words, in order for their idea to work, the teens would have to figure out a way to attach the antibodies to latex. It’s unclear whether this is feasible, but certainly no one has done it yet. William Smith, executive director of the National Coalition of STD Directors (NCSD), told Rewire, “While I can applaud these smart young people’s ingenuity in approaching a serious sexual health issue, this is but a concept and one where I think the science would be elusive in making it happen.”

It’s also unclear how expensive such a device would be. Ward Cates, a researcher who has been studying condoms for years, applauded the idea as a way to promote testing among young people, but told CNN: “It would be quite sophisticated and my guess is quite costly.” He added that testing for more than one STI at a time might be cost-prohibitive. One of the benefits of condoms as a method of STI protection and pregnancy prevention has always been that they’re very inexpensive, and thus, widely available.

Even this condom were to be possible and affordable, I have some other practical concerns about the concept. It’s meant to detect STIs in both the male wearer and his partner, but that can’t happen until it comes in contact with blood, semen, or vaginal or cervical secretions. In most cases, this would mean the condom wouldn’t change colors until well into the sexual act—likely too late to provide added protection for that encounter.

After-the-fact knowledge isn’t entirely useless—the condom’s wearer or his partner would know moving forward that he or she had an STI, which could prompt them to seek treatment and also prevent the spread to any further partners. It is always good for people to be aware of their STI status, and we should keep thinking of innovative ideas to get people tested.

But I don’t think the heat of the moment is the best time to find out whether you or your partner has an STI. It’s a very vulnerable time to give or receive that kind of news, especially unexpectedly. At a minimum it could be painfully embarrassing; in the worst-case scenario, I fear it could provoke a potentially violent reaction.

In his interview with Rewire, Smith agreed that the timing would be all wrong. “STD testing should be a normal routine for sexually active people, not something that occurs after penile penetration. Does someone really want to discover their partner has an STD after sex begins? Frankly, I couldn’t think of a more ill-timed occasion for finding out your partner has gonorrhea or syphilis.”

These are things that I hope the teens who came up with this idea and anyone who wants to help them make it a reality would consider when moving forward with the concept. Perhaps it would be better to put the time and effort into creating an instant, at-home test kit that can test for a variety of STIs and can be used when you’re alone and haven’t yet initiated sexual activity. At-home kits exist, but most need to be sent to a lab for analysis. Instant results would be a huge step forward.

In the meantime, I think it’s important to remember that despite last week’s hype, we do not yet have a condom chameleon—but we do have good options for both condoms and STI testing.

Today’s condoms have been shown to provide protection against the very STIs we’re talking about, such as chlamydia, gonorrhea, and HIV. As Smith noted, “The point of condoms are to prevent disease transmission, which they do incredibly well, not to test for it.”

As for the testing we already have, it’s really not that bad. Many organizations help to cover the cost nowadays in cases when insurance doesn’t. It can involve peeing in a cup, being dabbed with a cotton swab, or giving blood. Smith noted, “In their rush to discuss this new idea, too many media reports got STI testing itself wrong, describing it as overly invasive and a dreadful experience. It’s not. It’s easy, highly accessible, and utterly noninvasive in almost all cases.”

And best of all, you don’t get the results when you’re already naked, potentially in someone else’s bed.


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