Congress proposed a bill on October 10, 2008, to repeal the federal law regarding HIV testing by the U.S. Department of Veterans Affairs (VA). The proposal would change the VA’s requirement of informed patient consent from written to oral. The proposed rule was published online December 29, 2008, at the Federal Register, where it will remain for a 30-day comment period open to the public before it becomes official.
The bipartisan proposal was sponsored by Rep. Mike Doyle (D–Pa.) and Rep. Charlie Dent (R–Pa.). The policies they seek to change are based on the 1988 Veterans Benefits and Services Act. 

The VA health care system is the country’s largest provider of HIV-related care. The Federal Register reports that the VA treats more than 23,000 HIV-positive veterans. Current HIV testing procedures, however, leave countless more vets unaware of their HIV status.

To date, 40 percent of known HIV-positive vets accessed the VA’s health care system an average of six times before they received diagnoses. According to the Federal Register, half of these vets failed to receive these diagnoses until they’d “already suffered significant damage to their immune systems.”

On average, these patients received 3.7 years of VA care before diagnosis, indicating “significant missed opportunities to make a diagnosis at a stage when HIV treatment” could have prevented “many of the complications experienced by these patients,” according to the Federal Register.

Rep. Doyle’s proposal focuses on early diagnosis. “The old law requiring pre-test counseling and a signature consent created barriers and a stigma about getting tested for HIV,” he said. “Fifty-five percent of veterans diagnosed with HIV had AIDS at the time of diagnosis. Too many veterans were leaving VA care without knowing they were HIV-positive.”

According to the Federal Register, the Centers for Disease Control and Prevention (CDC) in 2006 recommended that “separate written consent for HIV testing should not be required,” but that “general consent for medical care should be considered sufficient to encompass consent for HIV testing.” However, the VA currently tests only patients who request an HIV test, who are receiving care for “intravenous drug abuse or diseases associated with HIV” or are “otherwise at high risk for HIV infection.”

The discrepancy between HIV-testing practices recommended for the general population and those used by the VA is especially alarming given that the HIV-positive rate in veterans is greater than that in the general population. A study conducted by the VA’s Quality Enhancement Research Initiatives found that “the prevalence of HIV in VA patients is 3.7 percent, a substantially higher rate than the CDC threshold of less than 0.1 percent.”

The study also discovered that “53 percent of VA patients suffered a high risk factor of greater than 1 percent, while only 35 percent of that population are being tested.” Ronald Valdiserri, MD, MPH, chief consultant at the VA, suggests this higher prevalence might be due to conditions experienced by vets during combat.

“Part of the way to address the VA’s issue of late diagnosis is to make the testing process easier for both patient and advisor,” Valdiserri said. “[The VA] wants to remove the stigmatization that surrounds risk-based testing, in which a patient might not be comfortable in revealing his situation, or even in a case where that patient might not be aware of his status.”

Valdiserri also noted that “it’s important to remember we’re not just talking about the initial diagnosis. The VA has a commitment to ongoing prevention for veterans, which also goes for the general population, so we have to be sure that we’re consistently counseling people on safe-sex behavior.”

Even with the proposed legislation, informed consent procedures for VA HIV-testing would still be more rigorous than those generally found in the private sector. According to the Federal Register, VA providers would be required to: inform patients that an HIV test has been ordered; provide patients with written materials explaining HIV infection and the ramifications of both positive and negative test results; offer patients the opportunity to ask questions and to consent to or decline testing with the understanding that a patient’s refusal of HIV testing “would not affect a patient’s eligibility for any other care at a VA facility”; document the patient’s informed consent in the patient’s electronic health record; communicate confidentially the patient’s HIV-positive test results through personal contact; and promptly refer HIV-infected patients to the necessary “clinical care, counseling, support and prevention services.”

“The Bush administration has decided to leave the writing of these regulations to the incoming Obama administration, which frankly, I believe will produce regulations more attuned to the needs and concerns of the VA’s patients,” Doyle said. “I hope and expect that the final regulations will take effect within a year.”

Click here to submit to the federal government your comments about this proposal and click here for more information on the VA’s policy and procedures regarding HIV testing.