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January 1, 2001 Newsletter

I would like to wish you a happy and healthy New Year and to thank all of you that have replied and offered suggestions to my new web site. As the snail mail newsletters come out quarterly and so much happens between, I thought it important to bring recent news to you by Internet. My web site has changes either twice a month or monthly depending on the amount of news in three new subsections: news, legal news, and legislative news. When you go to the web site please add your name to the subscriber list. This will allow me to notify you when there are updates to the site and to send this letter by E-mail.

I would like to offer a special thank you to the chief of staffs that have utilized my services in the past year for the potential hospital-medical staff conflict of interest problems as well as the general questions. This is also true for you individual physicians and groups that utilized my services for your business and peer review issues.

American Disability Act/ Discrimination

This letter will be devoted to the ADA and discrimination in medicine. The federal ADA of 1990 42 USC §§ 12101 et seq. prohibits discrimination as it applies to medicine due to a disability in employment and public accommodation. Those protected under the law are required to have four conditions: (1) has, has a record of having, or is regarded as having, even if this is an erroneous conception (2) a physical or mental impairment as defined as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of several body systems or any mental or psychological disorder that (3) substantially permanently limits, as evaluated on its own merits, one or more of the person’s (4) major life activities. This includes most chronic diseases including chronic obesity and deafness.

The US Supreme Court stated that one is not disabled if the problem may be corrected or correctable by glasses, medication or prosthesis. The court also added to the protected class an asymptomatic HIV positive female since the virus may influence her decision as to reproduce or not.

The ADA does not apply to sexual behavior disorders, gambling, current use of illegal drugs including alcohol or homosexuality. It also excludes those individuals that pose a direct threat to the health and safety of others. This recently excluded as disabled an alcoholic physician who would not undergo treatment, since she could not be reasonably accommodated and was an immediate direct threat to patients.

Accommodation for hardships include the nature and cost, the resources of the facility involved, the resources of the parent agency, and the type of operation of the facility or its parent. This could include a private physician’s office even if leased as it has been deemed a place of public accommodation. A medical staff in one case has been also deemed a public accommodation. This means that the medical staff and hospital may have to make accommodations for a physician or other provider who can not write but could dictate notes. This is possibly true even in California where physicians may not be employed by a medical staff but may be applicable to a hospital in their dealings with a medical staff member.

It is acceptable for insurance companies not taking certain individuals as a whole but are barred after learning about a disability, HIV, from limiting the maximum amount payable.

If found guilty of violating the ADA appropriate injunctive relief as well as damages may be obtained. The offending person or institution may also be fined up to $50,000 for the first infraction and $100,000 for any subsequent one. The losing party may also have to pay reasonable attorney fees.

One may not discriminate by listing a job or qualifications that would limit the person’s opportunities. One may not discriminate by contracting to discriminate. One may not have standards etc. that has the effect of discriminating on the basis of disability. One can not exclude jobs without making a reasonable accommodation to a qualified person because the person has a disability or a relationship with a disabled person.

A reasonable accommodation is one requested by the individual and will allow performance of essential job duties. The actual accommodation is chosen by the employer and effectively removes barriers to employment. If there are choices, the one chosen by the employer does not need to be the more expensive or harder to provide choice as long as it is effective. The employer does not need to lower standards to accommodate the employee or allow changes in uniformly applied rules of conduct. The employer does not have to make accommodations that would create an undue hardship on the business, either financially or disruptively. The employer may not disclose to others that an employee is receiving a reasonable accommodation, as this is an unauthorized release of medical information.

Employers, including medial staffs, may not ask if the person has a disability in the pre-offer stage (think about the medical staff questionnaire and whether it asks about conditions or whether the person has the ability to perform all aspects of their position with or without reasonable accommodation). Once an offer of employment has been made a medical exam may be a condition of employment if it is required uniformly and only used to evaluate the ability to perform the job. Later in the employment if significant absenteeism occurs, one may ask for a fitness for duty medical examination.

If asked or asking for letters of reference about an individual one should know that it is a violation to ask or give information regarding a disability that could not be gotten by asking the person directly.

California has its own anti-discrimination laws. The Fair Employment & Housing Act (FEHA). This law under Government Code §§ 12900 et seq. prohibits, as does the ADA, employment discrimination for a disability. The definitions for disability are essentially the same as for the federal rule. It also has an exception for those that are a direct threat to others. This rule only applies to employers with five or more employees. It is a little more lax as to what one can ask an applicant for a position, but the employer must go with the more stringent rule. FEHA also protects those discriminated for race, creed, color, or national or ethic origin. The B&P Code §125.6 also provides that physicians not withhold services on a discriminatory basis. Other California laws that protect the patient are the Unruh Act, Civil Code §54.1-2, Government Code §11135 and Civil Code §51.5. The last code prohibits discrimination by business establishments which has been interpreted as including a health plan that terminated a physician for prior drug use.

In regard to the providing of health care serves the public accommodation (physician office) section of the ADA is the most important. This has three sides: (1) nondiscrimination that includes the provision of aids such as interpreters for the deaf, (2) barrier removal and (3) new construction and alterations.

In the discrimination area the ADA prohibits either intentional acts that discriminate or those which have the effect of discriminating against the disabled. One may not use eligibility criteria that either is intended to or that actually screen out the disabled from equal enjoyment of goods and services. It is also discriminatory not to make reasonable modifications in policies or procedures that would allow the disabled the same enjoyment of goods and services as the non-disabled, unless that modification would fundamentally alter the nature of the goods or services. This would include the use of leashed and tagged service dogs in the office but not necessarily into the examination rooms. Lastly it is discriminatory to not ensure the disabled are provided with auxiliary aids unless this would fundamentally alter the goods or services or would be an undue burden.

An undue burden is a significant difficulty or expense. When considering this, the court will look to the monetary capability of the entire organization.

Auxiliary aids may include qualified interpreters including all languages that are prevalent in the community and sign language. The law looks at each case individually. If a physician needs to get a true informed consent or relay or receive accurate medical information he/she may have to pay for an interpreter. The same is true for the hospital. If the patient is deaf the physician may be able, depending on the physician patient rapport and the amount of information needed, to use a notepad for communications. It use of an interpreter would be necessary if surgery or other invasive procedures are contemplated. These services may also be needed for lesser situations that require "effective communications". If an interpreter is required, it does not need to be the one the patient chooses. There have been cases where patient advocates target physician offices and hospitals demanding interpreters, especially in American Sign Language. As an aside, for foreign language interpreters, a telephone company has qualified interpreters on their staff that will perform the function. The duty to provide an interpreter may also extend to the patient’s spouse. Although it does not seem fair most, if not all, insurance companies will not help pay for these costs and the costs can not be passed on to the patient. There was a Texas case that ruled HMOs are considered a place of "public accommodation" and therefore all aspects of the laws apply to them. Using this case Zamora-Quezada v. HealthTexas may be helpful in receiving some reimbursement from HMOs. I doubt the money necessary to fight the insurer would be worth it and in every case the physician should provide the service and then attempt to get the reimbursement.

Hospitals under H&S Code §1259 must have a policy and review it annually regarding the use of interpreters including their availability up to 24 hours a day. This policy is to sent to the state annually. The hospitals must conspicuously post signs informing patients of the availability of interpreters. The minimum posting for these notices are the ED, admitting, entrance and outpatient areas. Interestingly, hospitals may be reimbursed for these services under the DRG or ASC programs.

Recently genetic testing has begun to come of age. It is against California law to discriminate against patients for genetic tests by health care service plans. They must offer the same plans and the same price for the plans to the genetically tested individual and their offspring. They also can not disclose any result of genetic testing. The penalties are high for violations of these rules.

In terms of physician office barrier removal and new construction the law states that the offices will remove any barriers such as furniture, equipment and other things that may impede access. The removal should be easily accomplished and done without much difficulty or expense as determined on a case by case basis. If interested see If barrier removal can not be done all at once it should be prioritized. If you lease your office both the landlord and you are responsible for barrier removal. Of course, all new construction must comply with the ADA requirements.

I will discuss the physician’s rights on patient selection in the next edition along with patient abandonment

I hope this overview of the subject was helpful or at least instituted thoughtful discussions by your medical staff and hospital. Again, I wish to encourage you to go to my web site  
for up to date information on a variety of subjects as well as signing up for this newsletter via E-mail. If you are no longer chief of staff, please pass this newsletter on. If you would like to stay on the mailing list, please sign up for the E-mail letter. If I may be of help to you or your medical staff individually or collectively for independent legal counsel, as recommended by the AMA, please let me know.

DISCLAIMER: Although this article is updated periodically, it reflects the author's point of view at the time of publication. Nothing in this article constitutes legal advice. Readers should consult with their own legal counsel before acting on any of the information presented.