If the mother declines the test and is overruled by a mandatory policy, the initiation of a good doctor/patient interaction over the long and complex regimen of drugs and monitoring will be difficult. Yet without such a treatment regimen, the test itself is pointless unless the state is prepared to take every child away from parental custody. In addition, he made several legal, financing, and policy observations. He stated that none of the positions of the medical organizations carries the force of law, except for the PHS guidelines, which are required of recipients of certain federal funds under Title II of the Ryan White Comprehensive AIDS Resources Emergency (CARE) Act. He noted that the PHS guidelines, by virtue of establishing a standard of care, also may have legal consequences: physicians, even those in private practice and thus not technically covered by the guidelines, who fail to offer counseling and testing may be subject to malpractice under certain circumstances. He expressed his concern over the inadequacy of counseling, testing, and treatment practices and evaluation in Medicaid managed care plans, whose enrollment is burgeoning. He also expressed concern that discrimination against asymptomatic HIV-infected people may surge if the Supreme Court decides this term that the Americans with Disabilities Act does not extend protections to HIV-infected, yet asymptomatic, individuals until they progress to AIDS. Finally, he observed that support for mandatory testing provides a false sense of accomplishment for policy makers, because it may absolve them of responsibility to address the more complicated issues of financing research, treatment, and other forms of patient care.
Preliminary results were summarized from a survey of state laws and policies to implement the PHS guidelines or prevent perinatal transmission through other measures. The results, presented by Zita Lazzarini of the Harvard School of Public Health, were available from 43 states and 2 territories, with at least 7 others expected (Gostin et al., in press).
The survey found that most states have moved quickly to implement the PHS guidelines. Eighty-seven percent had policies on counseling and testing of pregnant women, the vast majority of which require voluntary testing with informed consent. Several states have routine testing with the right of refusal. No states require mandatory testing of pregnant women. Several states indicated that approximately 90% to 95% of pregnant women are willing to be tested when testing is offered, but not all pregnant women (50% to 75%) were actually offered testing. Seventy-seven percent of states had policies on treatment, none mandatory, and 44% had policies on testing of newborns. New York is the only state that mandates newborn testing. In general, states responded mostly with policies rather than laws or regulations, and policies were mostly voluntary. In light of