26-E-2. Segregation of Prisoners with Infectious Diseases
(a) Mandatory Segregation
(i) Mandatory Segregation of Prisoners with TB
Prisons may want to segregate (separate) prisoners with infectious diseases from other prisoners to prevent the disease's spread. This type of segregation is often mandatory and involves separate housing. New York law allows prison officials to separate prisoners if a "contagious disease" becomes widespread.107 But, New York law also states that all who are "sick shall receive all necessary care and medical assistance," and that all such prisoners should be transferred back to the general population as soon as possible.108
Because TB can be spread through the air, the law often treats people with TB differently. Prisons can usually isolate prisoners who are suffering from TB to prevent the spread of a "contagious disease."109 New York City law even allows non-incarcerated persons infected with TB to be detained in a hospital in certain circumstances.110 DOCCS TB policy requires prisoners with contagious TB to be placed in respiratory isolation. While in respiratory isolation, you are only allowed to leave the area for certain medical treatment and you will have to wear a surgical mask.111
(ii) Mandatory Segregation of Prisoners with HIV
Because HIV does not spread as easily as TB, New York state prisons112 and federal prisons113 do not determine housing or program assignments based upon HIV status alone. New York prisons are not allowed to automatically segregate HIV-positive prisoners. New York state courts have found that mandatory segregation violates your right to privacy-specifically, your right to medical confidentiality-because housing in an AIDS unit tells other prisoners and staff that you are HIV-positive.114 If you are a federal prisoner who has HIV or AIDS, the prison can only separate you if prison officials have reasonable evidence that you pose a health risk.115 For more information on confidentiality issues, see Part F of this Chapter, and for information regarding discriminatory treatment based on your health status, see Part H of this Chapter.
Although New York prisons may not automatically segregate HIV-positive prisoners, some states require that all HIV-infected prisoners live separately. Many courts outside of New York have upheld prisons' decisions to segregate HIV-positive prisoners. Courts generally view segregation as a reasonable means to limit other prisoner's exposure to HIV, and courts consider preventing the spread of HIV to be a legitimate interest of prisons.116 Additionally, at least one federal court of appeals found that there is a high risk of transmitting HIV in prison. The prison in question did not present evidence of actual HIV transmission, but the court thought that the mere presence of high-risk behavior-like intravenous drug use, sex, and violent exchanges-was enough to establish a significant risk of transmitting HIV.117 The court also rejected the prisoners' suggestions to either hire more corrections officers or to identify prisoners who were both HIV-positive and also likely to engage in high-risk conduct. The court found that these two suggestions were unreasonable and created an "undue hardship" on the prison facility.118 The...
