HIV Testing and Counseling of VA Patients

VA HIV testing and counseling for patients is voluntary and confidential and requires written informed consent from the patient. HIV testing in the VA system is not universal (meaning all patients should not be tested) and depends on the identification of risk factors by the provider or veteran or a veteran's request for testing. As stated in VA Circular 10-88-151 and Circular 10-88-151, Supplement No. 1, the VA makes confidential HIV testing and counseling available to all patients who request it.

For clarification purposes confidential and anonymous testing are defined below:

• Confidential HIV testing: The person being tested for HIV will be asked to provide their name for testing purposes. The person providing HIV testing and counseling as well as other health and social service providers at the facility who are entitled to review medical records or who are providing care to the patient will have access to the test result. Confidentiality laws and regulations protect this information.
• Anonymous HIV testing: The person being tested for HIV does not provide their name to the testing counselor and facility/center whom is testing them. The person is assigned a unique identifier that they will use to get their test results. The person being tested and the testing counselor are the only ones to know the test result. Anonymous HIV testing is offered by some public health departments and community-based clinics.

While the VA does not offer anonymous HIV testing and counseling to its patients, VA health care practitioners are encouraged to refer patients wanting such a test to a nearby anonymous testing site. To refer someone to an anonymous testing site in their geographic area, contact the CDC National STD and AIDS Hotlines 24 hours a day, 365 days a year at 1-800-342-AIDS (1-800-342-2437), 1-800-AIDS-TTY (1-800-243-7889) TTY, 1-800-344-SIDA (1-800-344-7432) Spanish, or go to http://www.hivtest.org/ to locate a testing site.

The VA is clear that written informed consent prior to HIV testing is required. Current 38 Code of Federal Regulations Section 17.32 states, "Testing for . . . HIV must be voluntary and must be conducted only with the prior informed and (written) signature consent of the patient or surrogate. Patients who consent to testing for HIV must sign VA form 10-012, 'Consent for HIV Antibody Testing.' This form must be filed in the patient's medical record. Testing must be accompanied by pre-test and post-test counseling."

It is important to review the consent form (VA Form 10-012) with the patient in order to evaluate whether they have any questions, any difficulty reading or the form, or any difficulty understanding the items. Examples of patients unable to provide informed consent are:

• a patient who is psychologically unable to cope with the results,
• a patient who is under the influence of a substance or medication that prevents his/her comprehension,
• a patient who has been coerced, and/or
• a patient who cannot communicate with the clinician because of a significant language barrier.(2)

If you suspect your patient has limited comprehension of the significance, meaning and ramification of an HIV test, you should purposely ask the client to repeat his/her understanding of selected concepts you discussed for a broader assessment. You can also ask standard mental status questions to make sure that the patient is well oriented to time and place, such as:

• Tell me where you are?
• Who is the current president?
• Can you tell me today's date?

Should you deem the patient at risk for HIV and unable to provide informed consent, you may want to contact the patient's guardian (if one has been designated) or durable power of attorney. You can discuss your concerns with the guardian and if requested by them, HIV testing and counseling can be performed on the patient after the guardian provides the necessary informed consent. If the patient does not have a legal guardian or a durable power of attorney for health care, then it may be necessary, in limited circumstances, for a court to appoint a guardian.

You will need to assess the urgency of HIV testing. In a patient who is incapacitated and comatose following head trauma, the "need to know" may stem from occupational injury to a health care worker or to aid in the diagnosis or treatment of a condition such as pneumonia.

It is possible that the patient's inability to comprehend the information may be temporary. In some instances, the patient may be stabilized with medication and return for HIV testing and counseling at a later date. If a patient comes to the appointment intoxicated, it is best to reschedule as this person would not be able to provide informed consent.

At this time, the types of HIV testing methods available at VA facilities vary. This is because the VA does not mandate that all types of FDA-approved HIV tests be made available at each VA facility that offers HIV testing and counseling. As such, facilities may use the regular blood test, the rapid blood test, and/or the oral test. The only VA policy guidance on type of testing method to use involves occupational exposures. IL 10-2001-011 states that the most advanced and rapid HIV detection technologies should be made available in the event of an occupational exposure at a VA facility.

VA Circular 10-88-151, Supplement No. 1 states that "[t]he [VA] AIDS Program Office has not identified a single profession to perform counseling but emphasizes the health care professional designation (e.g., one whose profession requires formal academic preparation, standards of practice, and a code of ethics such as nurses, social workers, psychologists) and suggests that individual[s] participate in the national training program."(3) Currently, health care providers who have gone through training and are deemed "HIV counselors" and health providers available to do HIV counseling are allowed to conduct HIV pre- and post-test counseling in VA facilities.

Opening the discussion of HIV testing: In order to help the patient feel at ease, the health care provider should make it clear that the patient is not being singled out for HIV testing. This can be done in a variety of ways, using statements such as the following:

• All Patients:

  "Because of the growing epidemic in our area, all physicians are talking with their patients about HIV and AIDS. I'd like to talk with you about it too. Would it be all right to do that now?"

• New Patients:

  "In order to provide the most complete medical picture we can get on all of our patients, I'd like to talk with you about a number of things, including HIV and AIDS. This will help me to provide the best medical care I can for you. Are you familiar with HIV or AIDS? I'd like to give you some information about it. Where should we start?"

• Continuing Patients:

  "You have been a patient her for some time. Because of new medical guidelines, I am starting to talk with all of my patients about HIV and AIDS. Have you ever considered the possibility of taking the HIV antibody test?"

• Patient with medical indication or risk profile:

  "Based upon your current medical profile and some of the information you have shared with me, I think we should consider the HIV antibody test at this time. I would like to know your HIV status in order to provide the best medical care for you."

• Pregnant patient or one considering pregnancy:

  "In light of recent medical development, all physicians are talking with their patients about HIV/AIDS prevention. Can we talk about this now?"

(From HIV & Primary Care: Putting Prevention into Practice, by the AIDS Institute, New York State Department of Health, 1998. Used with permission.)

The VA pre-test counseling requirements were first set forth in VA Circular 10-88-151. That circular established both the counseling requirements and the appropriate documentation of those counseling efforts. Specifically, the 1988 Circular provides that pre-test counseling should include, but not be limited to, the following information:

• the meaning, sensitivity, and specificity of the HIV test;
• the potential social ramifications of a positive test result;
• policies and guidelines for confidentiality of the test results;
• policy on nondiscrimination in health care services for patients with HIV infection and the health care services available in the VA;
• policy and guidelines on disclosure to public health authorities;
• policy on disclosure to spouse and/or sexual partner;
• measures to be taken for prevention of HIV transmission; and
• information relative to authorized disclosures, either with or without consent, of HIV test or treatment records.(3)

In addition to the counseling requirements set forth above, VA Circular 10-88-151 states that all elements of the counseling process should be documented on the progress notes of the medical chart. More specifically, pre-test documentation should include, but not be limited to, the following elements:

• the fact that pre-test counseling was conducted;
• the date and time written consent was given;
• a brief description of the content covered in counseling;
• the patient's response to and participation in the counseling sessions;
• the patient's mental status at the time of counseling;
• a brief assessment of the patient's comprehension of the significance, meaning, and ramifications of the test; and
• the fact that the patient freely consented to testing.(3)

It is important to evaluate whether the patient will need ongoing support while waiting for an HIV test result as this can be a very difficult time. Patients should be provided with a telephone number of a test counselor or provider whom they can contact if they have questions during the time that they are waiting for their HIV test result. Finally, it is very important to counsel the patient that while waiting for their test result they should practice risk reduction activities such as safer sex and/or not sharing needles or works.

VA Circular 10-88-151 states that post-test counseling should be adapted to both the test result and the particular needs of the individual patient.

1. Counseling for a negative result should include, but not be limited to, the validity of the negative result if the patient is in a group at high risk for HIV infection, possible retesting, and reinforcement of risk reduction behaviors.

2. If the test results are positive, post-test counseling should include, but not be limited to, reinforcement of the availability of heath care services within the VA and community and public health resources; the advantages of notification of spouse or other sexual partners of possible exposure to the HIV and reinforcement of preventative HIV transmission measures to be taken by the patient.(3)

Post-test documentation should include, but not be limited to:

• the results of the test;
• a brief discussion of the content covered in the counseling;
• an assessment of the patient's emotional/mental status; and
• referrals made, if any, and plans for future services.(3)

It is important to realize that discussions of HIV prevention strategies during post-test counseling may not be fully absorbed by the patient. During HIV post-testing counseling, the HIV-negative person may be solely focused on the relief of not testing positive and the HIV-positive person may be trying to process their test result.

Partner or domestic violence is not gender specific and consists of physical, sexual, psychological, and economic abuse occurring in sexual and nonsexual relationships.(2)

There may be times when a patient may appear to be fearful for their safety upon learning of a positive HIV test result. In those cases, or if you have suspected potential abuse, screening for partner or domestic violence should be considered during HIV post-test counseling. It is possible that the patient may be at risk for domestic violence if their partner(s) learns they received HIV testing and counseling and/or the patient tested positive.

Should a patient appear at risk for domestic violence, it is important to have a specific plan about what you can do to support them. It is important to talk with them to assess the level of threat to the patient and any children or other vulnerable individuals who live in the home.

If the patient acknowledges current abuse or partner violence, communicate belief, support, and confidentiality. Help the patient assess the current level of danger by asking, "Do you feel safe going home?" Also, assess any indices of lethality such as weapons available and drug or alcohol abuse.

Offer the patient telephone numbers such as local shelters, legal advocacy, and the police. Help the patient make an emergency plan, offer follow-up visits or phone contact, and document in the chart.

If you suspect abuse and the patient denies any abuse, tell the patient that you are concerned about their safety and tell them about community resources that they can use if they ever need them. Do not confront or challenge the patient, but offer follow-up and document your concerns.*

If you provide HIV pre- and post-testing counseling to VA patients, it is possible that patients who test positive may ask for your advice or assistance with partner notification (also known as partner counseling and referral services [PCRS]). This could involve you giving the patient guidance on disclosure of their HIV status or the patient asking if he/she can have their spouse or sex partner(s) come to the facility and you are present while the partner is told.

Regarding PCRS, patients may need to be coached on:

• the best way to inform each partner,
• how to deal with the psychological and social impact of disclosing one's HIV status to others,
• how to respond to a partner's reaction, including the possibility of personal violence directed toward the client or others, and
• how and where each partner can access HIV prevention counseling and testing.(4)

The VA defines a partner as the spouse of the patient and/or an individual who has been identified by the patient as a sexual partner during the course of professional counseling or testing. Disclosures may be made where the individual who was tested has provided a specific written consent (VA Form 10-5345) for such disclosure. Should the person being tested die, a disclosure may be made on the request of the next of kin, executor, or personal representative if such disclosure is needed by the survivor to obtain benefits.

Disclosure of a VA patient's HIV-positive test result or status can be made without the patient's consent, under specific circumstances. Current 38 U.S.C. Section 7332 provides that disclosure without the specific consent of the HIV tested patient may be made under the following circumstances:

1. To medical personnel to the extent necessary to meet a bona fide medical emergency.

2. To qualified personnel for the purpose of conducting scientific research, management audits, financial audits, or program evaluation; however, redisclosure of such data is subject to further restrictions.

3. In response to an appropriate request from a proper federal, state, or local public health authority charged with the protection of the public health and to which federal or state law appropriately requires disclosure of such information, if a qualified representative of such authority has made a written request for that record.

4. Where authorized by an appropriate court order.

5. To the appropriate component of the Armed Forces which is providing health care to the veteran.

In addition to the circumstances set forth above, one more notable exception to the disclosure rule is set forth in 38 U.S.C. Section 7332. More specifically, that section provides that a physician or "professional counselor" may disclose, under certain conditions, without the patient's consent, only under the following conditions:

1. the physician or counselor has made a reasonable effort to counsel and encourage the patient to voluntarily provide this information to the spouse or sexual partner,

2. the physician or counselor reasonably believes the patient will not provide the information to the spouse or sexual partner, and

3. disclosure is necessary to protect the health of the spouse or sexual partner.

Most state public health departments have a PCRS program in place. It is the professional and ethical responsibility of a VA provider to make use of PCRS by contacting the state or local health department in such instances in order to protect the health of the spouse or known sexual partner of a veteran with HIV (see Appendix E for a list of PCRS contact information for select states).

HIV case reporting is a statistical activity intended to provide for the ongoing systematic collection of HIV information for use in public health practice. Through the reporting of new HIV cases, risk factors, and or outcome specific data, it is possible for the states to provide an ongoing snapshot of the local epidemiology of HIV and assess the efficacy of prevention activities and assist with planning and treatment allocation. Case reporting is not partner counseling and referral services activities, which are intended to identify individuals who can benefit from early intervention in the disease process.

As presented in IL 10-2001-002, the VA General Council is of the opinion that the VA is under no legal obligation to comply with a state mandatory reporting law to report patients' HIV results to state or local health departments, yet supports cooperation. The IL conclusion states:

"VA's Office of General Counsel Advisory Opinions hold that VA providers are not under legal obligation to comply with a state mandatory HIV reporting law. However, in the spirit of cooperation with state and local health authorities, VA providers are allowed and encouraged to comply with those official requests provided appropriate authorities make written requests, and VA regulations concerning release of medical information are followed."(5)

As pointed out earlier, HIV testing is only one example of an HIV prevention activity. When considering interventions to reduce patients' risk for HIV, it is important to consider other referrals that may address behaviors that increase risk for HIV. For example, substance abuse treatment is a highly effective form of HIV prevention as it reduces the incidence of drug-related behaviors that are associated with transmission of HIV.(6)

Referrals to mental health services may help prevent HIV transmission by addressing disinhibition, poor social skills and judgment, hypersexuality, hopelessness, and associated substance use. Mental health referrals are also helpful in treatment of depression and other psychological factors that may contribute to poor adherence with antiretroviral regimens. Dietary or nutritional referrals may also help with nutritional support necessary to address one's general health and adherence to medication.

Ongoing case management, which can be offered by a variety of VA providers, is also highly effective in providing HIV-positive patients or those at risk with the ongoing support needed to develop and maintain behaviors that will reduce their risk for HIV.

Finally, it is important to remember that even the best risk reduction counseling and support may not be effective until more critical underlying conditions such as mental illness, domestic or partner violence, and other acute or chronic conditions can begin to be addressed. Any attempt to reduce risk for a patient who is at high risk for HIV needs to assess and take into consideration all the psychosocial conditions and stressors of a patient as they relate to his or her ability to protect themselves.

1. Centers for Disease Control and Prevention. (2000). Adoption of protective behaviors among person with recent HIV infection and Diagnosis --- Alabama, New Jersey, and Tennessee, 1997--1998. Morbidity and Mortality Weekly Report, 49 (23), 512-515.

2. AIDS Institute, New York State Department of Health (1998). HIV & Primary Care: Putting Prevention into Practice [Manual].

3. Department of Veterans Affairs. (1988). VA DM&S Circular 10-88-151: Public law 100-322, section 124: Testing for HIV (human immunodeficiency virus) and informed consent. Washington, DC: Author.

4. Centers for Disease Control and Prevention. (1998, December). HIV partner notification and referral services: Guidance [Electronic version]. Retrieved June 29, 2001.

5. Department of Veterans Affairs. (2001, February). Information Letter 10-2001-002: Case reporting of human immunodeficiency virus (HIV) to state and local health authorities by VA facilities and providers.

6. Des Jarlais, D. C., Guydish, J., Friedman, S. R., & Hagan, H. (2000). HIV/AIDS prevention for drug users in natural settings. In J. L. Peterson & R. J. DiClemente (Eds.), Handbook of HIV prevention (pp. 159-177). New York, NY: Kluwer Academic/Plenum Publishers.