Friday, April 28, 2017

7 Things to Know about the Ongoing HIV Law Amendment

Some preliminary matters:
The Senate, through the Senate Health Committee, has already issued a committee report. It already filed Senate Bill (SB) 1390, which consolidated the bills of Sens. Hontiveros, Legarda, Trillanes IV, Angara, Poe and Binay. Before SB 1390, these six senators individually filed their versions of a substitute bill to 1998 HIV/AIDS Law. All six versions were tackled, resulting in SB 1390.

At the House of Representatives, the House Committee on Health has already consolidated the versions of each lawmaker into one House Bill. But as of this writing, that consolidated bill has not yet been filed. On May 10, 2017, the Committee will convene to discuss the consolidated bill for final amendments. It is expected that they will release a committee report with the final House Bill, akin to SB 1390.

What are inside the two separate bills:
1. The two chambers are at odds with the issue of PLHIVs as regards HMOs
Senate: SB 1390 expressly included HMOs as an institution which cannot deny or deprive a PLHIV for coverage without any qualification. That is provided under paragraph 2, Section 39 of SB 1390, reading:

"No person living with HIV shall be denied or deprived of private health insurance under a Health Maintenance Organization (HMO) and private life insurance coverage under a life insurance company on the basis of person's HIV status."

House: The lower chamber's version — also in paragraph 2, Section 39 — did not expressly write HMO. It provided that, "No person living with HIV shall be denied or deprived of private health and life insurance coverage on the basis of the person’s HIV status x x x." This sentence was qualified by a phrase, "following the company’s reasonable underwriting policies.

Interestingly, under Article VII, Section 46 (Discriminatory Acts and Practices), it is worthy to note an odd addendum to that phrase stated above. Paragraph (f) — "Exclusion from Credit and Insurance Services" — provided that it is a discriminatory act if a "loan or insurance (facility)" excluded a PLHIV despite having undergone the company's "reasonable underwriting processes and pricing policies." This animal of "and pricing policies" suddenly appeared. Again, no explicit mention of HMOs.

What's the implication to this?
1. Since the House bill did not expressly include HMO, the HMOs may claim that they can deny coverage to PLHIVs, on the ground that they are not insurance companies. At present, there are conflicting views as to HMOs not being insurance companies. Even the Supreme Court in Philippine Healthcare Providers, Inc. v. Commissioner of Internal Revenue (G.R. No. 167330) ruled that HMOs are not engaged in the insurance business. Suffice to say, it can be argued by the HMOs that they are totally a different animal compared to insurance companies, and that their exclusion in the law will permit them to deny PLHIVs access to health coverage.

2. In law, specifically in the interpretation of law (we call it "statutory construction"), when there are conflicting provisions, some rules on statutory construction will be relied upon. If this House version goes to court and the court has the opportunity to rule upon this difference, it may apply the "rule of later provision." What's that? Simply put, provision which comes later in the law is deemed to be the true intent of the lawmakers. Hence, in this scenario, we can presume that since "pricing policies" appears in Section 46 as against its absence in Section 39, it will be Section 46, which carries the second qualification of pricing policy, which will prevail. Meaning, a PLHIV is under the mercy of the underwriting policy of the insurance company and its pricing policy, which is we all know how they arrive to that is kept under the rug.

2. Both bills instruct redress mechanism to protect the human rights of PLHIVs
Senate and House: The SB 1390 and the unnumbered House bill carry a provision on "Protection of Human Rights." Worthy to note is the last sentence of paragraph 2 of Section 10.

Senate: The Senate Bill tasks DOJ as the lead implementing agency in crafting the redress mechanism, "to ensure that their (PLHIVs) civil, political, economic, and social rights are protected." Joining DOJ are the Philippine National AIDS Council (PNAC) and Commission on Human Rights (CHR) in crafting the mechanism.

House: The House Bills tasked DOH and CHR as the lead implementing agencies. It instructs PNAC to coordinate with DOH and CHR.

Our take as PLHIVs?
Add the Department of Labor and Employment (DOLE) in the picture. On pain of repetition, make explicit "labor rights" because time and again we are faced with discrimination as regards security of tenure and/or employment simply because of this condition. It is about time that we call for a law that asks DOLE to intervene for our labor rights.

Also, when it gets down to it, the DOJ has no oversight over labor arbiters. It only has oversight over prosecutors. Should a PLHIV file a labor case before the National Labor Relations Commission, it will be labor arbiters who will handle the case. And who is the big boss of labor arbiters? The DOLE. So put DOJ and DOLE side by side to create a redress mechanism that will be followed should a court case proceeds as regards discrimination against PLHIVs.

3. "Contact tracing" is changed to "partner notification"
The 1998 HIV/AIDS Law defined contract tracing as "the method of finding and counselling the sexual partner(s) of a person who has been diagnosed as having sexually transmitted disease."

Senate and House bill defines "partner notification as "the process by which the 'index client', 'source' or 'patient', who has a sexually transmitted infection (STI) including HIV, is given support in order to notify and advise the partners that have been exposed to infection. Support includes giving the index client a mechanism to encourage the client’s partner to attend counseling, testing and other prevention and treatment services. Confidentiality shall be observed in the entire process."

4. Private sectors also asked to create a grievance system as regards discrimination
Senate and House: Both chambers created a new provision, captioned as "Duty of employers, heads of government, heads of public and private schools or training institutions, and local chief instructive."

I quote in full:

SEC. 45. Duty of Employers, Heads of Government Offices, Heads of Public and Private Schools or Training Institutions, and Local Chief Executives. – It shall be the duty of private employers, heads of government offices, heads of public and private schools or training institutions, and local chief executives over all private establishments within their territorial jurisdiction to prevent or deter acts of discrimination against persons living with HIV, and to provide procedures for the resolution, settlement, or prosecution of acts of discrimination. Towards this end, the employer, head of office, or local chief executive shall:
(a) Promulgate rules and regulations prescribing the procedure for the investigation of discrimination cases and the administrative sanctions thereof; and
(b) Create a permanent committee on the investigation of discrimination cases. The committee shall conduct meetings to increase the members’ knowledge and understanding of HIV and AIDS, and to prevent incidents of discrimination. It shall also conduct the administrative investigation of alleged cases of discrimination. 

What's good in this provision?
Finally, the provision empowers, if not mandates, the private sectors to resolve, settle and prosecute acts of discrimination. The two qualifying enumerations — paragraphs (a) and (b) — give the private sector the capacity to investigate and to enforce penalties for any acts of discrimination.

A bit of law and procedure?
To my mind, this may become an "administrative remedy" which will be a condition sine qua non before filing a court case as regards discrimination. Simply put: If Person A files a case before the court without undergoing this administrative or investigative procedure, the court may validly dismiss the case for the meantime (let's call it, "without prejudice") and ask Person A to submit himself before this "permanent committee" and allow such permanent committee to rule first on his issue. Such that if no resolution was reached between Person A and the other party, that will only be the time when Person A can file a case and for the court to say that it has capacity to hear the case.

Our take?
This is a good step to get the participation of private sectors in helping address discrimination in the workplace and in school by placing a procedure as to how to lodge a complaint or grievance. While both public and private sectors are instructed to "provide procedures for the resolution, settlement, or prosecution of acts of discrimination," the PLHIV community should look forward to this because it clearly included "employers" without distinguishing if it is public or private.

5. Harm reduction provision is not in sync between the Senate and House versions
Senate: Section 23 of SB 1390 is captioned as "Harm Reduction Strategies"
House: The unnumbered HB is more narrowed in its Section 23, read as "Comprehensive Drug Intervention for People who Inject Drugs"

There is a huge misconception that when one speaks of "harm reduction" in HIV, it only refers to use of injectible drugs--which is a mode of transmitting HIV. Harm reduction is more than that. It is more than syringe or needle and drug. Harm reduction should be broad enough to include reduction of the transmission of HIV and its harmful consequences. Yes, there is harm reduction policies and programs as to injectible drugs. But also, there could also be harm reduction strategies tailored fit for sex workers. The lawmakers, in their bicameral meeting, have to resolve which between the provisions to use. Then again, what is clear is, harm reduction is not simply drug use.

6. Two representations in PNAC
Senate and House: We will be having two representations before the PNAC.

Fast facts?
What is PNAC or the Philippine National AIDS Council, by the way? It is, among many others, the advisory, planning and policy-making body of the country as regards our address in fighting HIV and AIDS. PNAC is composed of government representatives, civil society organizations and PLHIV community. Back in the 1998 HIV/AIDS Law, out of the 26 members of PNAC, the PLHIV community is only represented by one person.

How we arrive to 2 seats?
During the Technical Working Group at the House of Representatives last March 13, 2017, the PLHIV community stood pat that we already have to have 2 representatives at the very least on board PNAC. This is because of the changing milieu of the virus. The community was met with opposition from PNAC itself, from Philippine Information Agency and from Rep. Sol Aragones of Laguna. Probably, we can call that confrontation as one of the fiercer debates during the TWG because while the PLHIV community has allies in the CSOs and in the National Youth Commission, it also has oppositors from other sectors. Rep. Joet Garcia of Bataan gave each voice their fare share of time to air their concern. The "seat contention" in the end was noted and will be deliberated upon. For the House to give the PLHIV community representatives before the PNAC, after the debate is their recognition of our importance in changing the landscape of HIV response.

7. Disclosure of HIV status to sexual partners
Myth: Keeping your HIV status a secret to your sexual partner carries jail time.
Fact: There has never been jail time as regards non-disclosure to partners — EVER!

Do not be of the illusion that Section 34 of RA 8504 carries a jail term. And I quote:

Section 34. Disclosure to sexual partners. – Any person with HIV is obliged to disclose his/her HIV status and health condition to his/her spouse or sexual partner at the earliest opportune time.

When you go down to Section 42 of the RA 8504, the penalty only applies to discriminatory acts under Article V. Section 34 is under Article IV. I have read tweets and comments stating that if a PLHIV does not disclose his status to his sexual partner, he will be placed behind bars. That is not true. It's a misreading of the law. Section 34 of RA 8504 is a "conscience clause." It does not carry a penal provision.

And that does not change in the Senate or House bills. Under RA 8504, the wording of the law is a PLHIV "is obliged" to disclose his status to his partner. In the two bills, the wording of the law is "is strongly encouraged." These two bills and even the 1998 HIV/AIDS Law do not impose a criminal offense to non-disclosure. Let's iron that one out.

What to expect from here?
1. Both Committees on Health in the Senate and House, acting on their own, will pass the final bill for transmittal to the plenary. (This will be the venue where the aye's and the naye's will be heard) All lawmakers will be copy furnished with the text of the bill.
2. The bill will be scheduled as an agenda during plenary hearings. Here we can lobby to support our authors: at the Senate, it is Sen Risa Hontiveros; at the House, it will likely be Rep Kaka Bag-ao of Dinagat Islands. Expect debates. Debates may be intense because of the sticky context that this bill may impress in the minds of conservative lawmakers.
3. The bill must pass three readings. If the House and the Senate, acting on their own, pass each of their version beyond the third reading, a bicameral meeting will be held to streamline the bills separately coming from the House and Senate.
3. After the bicameral convenes, it will create the final version of the bill, ready for signature at the MalacaƱang. Hopefully by then the President signs it into law.

Last fast facts: 
Who are the individual authors of HIV Amendment Law at the House? Here's a list:

  1. Rep. Kaka Bag-ao (Dinagat Islands, Lone District)
  2. Rep. Harry Roque (Party List - KABAYAN)
  3. Rep. Victor Yap (Tarlac, 2nd District)
  4. Rep. Pia Cayetano (Taguig City-Pateros, 2nd District)
  5. Rep. Teddy Brawner Baguilat, Jr. (Ifugao, Lone District)
  6. Rep. Sandra Eriguel, M.D. (La Union, 2nd District)
  7. Rep. Estrellita Suansing (Nueva Ecija, 1st District)
  8. Rep. Horacio Suansing, Jr. (Sultan Kudarat, 2nd District)
  9. Rep. Imelda Marcos (Ilocos Norte, 2nd District)
  10. Rep. Bellaflor Angara-Castillo (Aurora, Lone District)
  11. Rep. Angelina “Helen” Tan, M.D. (Quezon, 4th District)
  12. Rep. Gary Alejano (Party List - MAGDALO)
  13. Rep. Gus Tambunting (ParaƱaque City, 2nd District)
  14. Rep. Sharon Garin (Party List - AAMBIS-OWA)
  15. Rep. Tom Villarin (Party List - AKBAYAN)
  16. Rep. Ron Salo (Party List - KABAYAN)
  17. Rep. Raymond Democrito Mendoza (Party List - TUCP)

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