Chapter 1 ADA DISCRIMINATION AND THE NEVADA PHYSICIAN
INTRODUCTION
THE APPLICABLE FEDERAL LAW
Americans With Disabilities Act
Rehabilitation Act
PHYSICIAN EMPLOYERS
PATIENTS RIGHTS
NEVADA LAW
CONCLUSION
The Americans With Disabilities Act ("ADA"), 42 U.S.C. 12101, and the (Federal) Rehabilitation Act, 29 U.S.C. 701, prohibit discrimination against individuals who have (qualifying) disabilities, individuals who have had such past disabilities, or individuals who are deemed, but in actuality don't, have such disabilities. Discrimination against these individuals in the workplace, in public accommodations, and with regard to state or federal governmental services is prohibited. Both of these federal statutes apply to physicians and hospitals in Nevada. The intent of the federal legislation is to ensure that employees and patients alike are neither discriminated against, nor denied benefits or opportunities based on their physical or mental disabilities.
Nevada physicians need to be aware of these laws prohibiting discrimination in the workplace from the standpoint of an employer, as well as that of an employee. Medical care facilities, including physicians' offices, have been deemed places of public accommodation thus protecting patients with disabilities from discrimination in those facilities.
The Americans With Disabilities Act and the (Federal) Rehabilitation Act both address discrimination against disabled Americans. Though there is some crossover, each addresses specific areas of the law. The ADA primarily addresses disability based employment discrimination, discrimination in public accommodations, public transportation or telecommunications, and discrimination in state and federal government services. The (Federal) Rehabilitation Act, on the other hand, addresses discrimination by individuals or organizations participating in government funded programs.
Americans With Disabilities Act (ADA)
The ADA protects persons that meet
the three criteria outlined in 42 U.S.C. section 12102. Under the ADA, a person
is disabled, and thus protected by the Act, if the person has:
a physical or mental impairment that substantially limits one or more of the
major life activities of such individual;
| b. | a record of such an impairment; or |
| 1. | been regarded as having such an impairment. |
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42 U.S.C. 12102(2). |
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It is interesting to note that a "record" of impairment is sufficient to qualify a person as "disabled," regardless of the person's actual condition. Under the Code of Federal Regulations, 29 C.F.R. section 1630.2, a "physical or mental impairment" is defined as:
| Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito?urinary, hemic and lymphatic, skin, and endocrine; or . . . [a]ny mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. |
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29 C.F.R. 1630.2(h). |
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The definitions of protected persons includes those who are HIV-positive. Bragadon v. Abbot, 141 L.Ed.2d 540 (1998) (U.S. Supreme Court). The definition does not include persons with the following afflictions, which are not considered disabilities:
| 2. | homosexuality and bisexuality; |
| b. | transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; |
| 3. | compulsive gambling, kleptomania, or pyromania; or |
| d. | psychoactive substance use disorders resulting from current illegal use of drugs. |
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42 U.S.C. 12211. |
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With regard to drug use, the ADA does not prohibit discrimination against an individual if the individual is a current drug user. However, if a person has successfully completed a supervised drug rehabilitation program, is no longer using drugs, or has been erroneously identified as using drugs, he may not be discriminated against by a physician (or other persons) whether in employment or as a patient. 42 U.S.C. 12114(b).
Individuals that pose a "direct threat," which is defined a person who presents a "significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation," do not have to been given employment or be treated by a physician, if the person endangers other employees or patients. Presumably, the physician's assessment of an individual as a threat will be based on objective evidence contained in medical records, employment records, or other tangible proof.
Individuals (physicians), as well as companies or organizations, may be liable for discriminatory practices. 42 U.S.C. section 12182. Liability for discrimination may occur under either the "public accommodations" prong of the Act, or under the "employment" prong of the Act. Under the "public accommodations" section of the ADA, individuals that own, lease, or operate places of public accommodation, including physicians with a private practice, may be liable to patients for violations of the ADA.
Physicians may be liable as employers. Under 42 U.S.C. section 12111, an employer is "a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." Physicians maintaining an office with fewer than 15 employees, as defined, are not liable as employers for disability discrimination under the ADA.
An individual discriminated against because of a disability may sue for injunctive relief, as well as monetary damages under the ADA, including being sued for punitive damages. Punitive damages are not available if an individual sues for discrimination in a public accommodation. 42 U.S.C. section 12188. Under 42 U.S.C. section 12205, reasonable attorney's fees can be awarded to the prevailing party in a civil action.
In addition to the protections afforded under the ADA, the Rehabilitation Act prohibits discrimination by individuals receiving federal funds or financial assistance. This is especially significant to physicians involved in federally funded programs such as Medicare and Medicaid.
In 29 U.S.C. section 794, the Act provides that "no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The courts have interpreted this statute to include payment of Medicare and Medicaid funds to physicians. Bernard B. v. Blue Cross and Blue Shield of Greater New York, 528 F. Supp 125 (S.D.N.Y. 1981). The federal Rehabilitation Act applies to discriminatory practices in the workplace, as well as to programs receiving federal funds through grants and similar programs. Clearly, any physician who treats patients covered under Medicare of Medicaid will be in violation of this law if he discriminates against patients who are disabled, or if he discriminates in his employment practices where the physician employs more than 50 employees.
The penalties for violating Title 29 of the U.S. Code are similar to those under the ADA. In addition to injunctive relief, victims of discrimination can receive monetary damages, punitive damages (in some cases), back pay and benefits from an employer, and also be required to pay the plaintiff's attorney's fees.
As noted above, an employer under the ADA is any person or organization who employs fifteen or more people, for a specified period of time, in an industry or business that affects commerce. The acts that are prohibited under the law include:
| 4. | limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant because of a disability; | |
| b. | participating in a contractual or other arrangement that has the effect of subjecting a covered entity's qualified applicant or employee with a disability to the discrimination prohibited by this subchapter; | |
| 5. | utilizing standards, criteria, or methods of administration-- | |
| (1) | that have the effect of discrimination on the basis of disability; or | |
| (2) | that perpetuate the discrimination of others who are subject to common administrative control; | |
| 6. | excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association; | |
| e. |
(1) |
not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business; or |
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(2) |
denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant; | |
| 7. | using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity; and | |
| g. | failing to select and administer tests concerning employment in the most effective manner to ensure that, when such test is administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such test results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure). | |
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42 U.S.C. section 12112. |
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If a physician-employer has any doubt as to whether his or her current
employment practices comply with the ADA, he or she should consult local legal
counsel skilled in employment law.
"Qualified individuals with a disability" are protected under the ADA
employment discrimination prong. A "qualified individual with a
disability" is one who satisfies the prerequisites and requirements for the
job or position and can perform the "essential functions" of the job,
with or without accommodations. 42 U.S.C. section 12111(8). If a person does not
meet both of these criteria, the person is not protected under the ADA. The term
"essential job functions" is a somewhat vague term. It likely includes
such considerations as the degree of skill required to do the job, the degree to
which employees are actually required to do the function, whether the function
is critical to the basic elements of the job, and the belief by the employer
that the function is critical. If it is an "essential job function,"
and a disabled employee can perform the job without, or with
"reasonable" accommodations (as defined in the Code), the employer
cannot discriminate against that employee.
"Reasonable accommodations" are those that an employer can be expected or required to make available so that disabled employees and applicants can compete fairly for jobs, promotions, and opportunities. 43 U.S.C. section 12111. These accommodations include accessible facilities, employer-provided transportation, modified equipment, interpreters, and assistants. Employers can be found liable if they refuse to make reasonable accommodations for disabled employees. However, employers do have the option, in most instances, to choose between two options for accommodations, if both meet the needs of the employee.
The list of actions that an employer can or cannot take in connection with the employment of disabled individuals is fairly lengthy and detailed. Employers must be aware of these restrictions and must ensure compliance by the company and its agents. Briefly, employers, including employers who are physicians:
| 8. | Cannot discriminate against employees who have successfully completed drug rehabilitation programs and are no longer using illegal drugs; |
| b. | Can prohibit the use of illegal drugs and require compliance with the Federal Drug Free Workplace Act; |
| 9. | Can require an individual to whom an offer of employment has been made to undergo a medical examination, with certain restrictions and caveats; |
| d. | Can require employees to undergo medical examinations, in some instances, if the job requires validation of their ability to perform the work. |
The law attempts to strike a balance between the needs and rights of the
employees, and those of the employer. Careful attention to the requirements and
the intent behind the statutes and regulations is critical to a successful
relationship between an employer and a disabled employee. Failure to comply with
these laws may result in an injunction against the physician as well as monetary
penalties in the form of back pay and compensatory damages.
PATIENTS' RIGHTS
In addition to the requirements imposed on physicians as employers, the ADA and Rehabilitation Act provide guidelines and requirements for persons, including physicians, who own or operate public accommodations. It is illegal for persons who own or operate public accommodations to discriminate against persons with a disability, with regard to providing services, goods, or accommodations. 42 U.S.C. 12182. Discriminatory acts include:
| 10. | the imposition or application of eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered; |
| b. | a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations; |
| 11. | a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden; |
| d. | a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities, and transportation barriers in existing vehicles and rail passenger cars used by an establishment for transporting individuals (not including barriers that can only be removed through the retrofitting of vehicles or rail passenger cars by the installation of a hydraulic or other lift), where such removal is readily achievable; and |
| 12. | where an entity can demonstrate that the removal of a barrier under clause (iv) is not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or accommodations available through alternative methods if such methods are readily achievable. |
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42 U.S.C. section 12182 |
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Only if a physician or other provider of public accommodations can show that provision of the accommodation would be unreasonable because it would create an "undue burden" can the physician or provider of public accommodation be relieved of the requirement to make accommodations for the disabled. The ADA defines "undue burden" as an effort that is so expensive and difficult as to make the accommodation impractical or impossible. The responsibility to show the accommodation would create an "undue burden" falls upon the provider of the services. Careful review of the needs of the disabled (all patients as well as employees if the physician employees more than fifteen employees), to include such things as sign language interpreters, facilities upgrades, removal of barriers, and facilitating access to the office and bathrooms must be considered, and weighed against the cost of the accommodation before it can be claimed to be an "undue burden." For example, if a deaf patient needs (requests or demands) a sign language interpreter for a medical examination, the physician must provide (and bear the expense for providing) the sign language interpreter. Of course, if the physician can prove that providing a sign language interpreter would create an "undue burden" on the physician (very unlikely, and very costly), the physician can avoid making such a provision.
Nevada has embraced the tenets and focus of the ADA through the implementation of several statutes. Although federal law serves to control most, if not all, of the actions of employers and those owning or operating public accommodations, Nevada has further addressed discrimination against disabled persons both in employment and health care.
NRS 233.010 addresses the public policy of the state regarding discrimination, including discrimination based on disability, as follows:
| It is hereby declared to be the public policy of the State of Nevada to protect the welfare, prosperity, health and peace of all the people of the state, and to foster the right of all persons reasonably to seek, obtain, and hold employment and housing accommodations, and reasonably to seek and be granted services in places of public accommodation without discrimination, distinction or restriction because of race, religious creed, color, age, sex, disability, national origin or ancestry. |
In order to forward the policies of the above statute, the Nevada Equal Rights Commission was chartered to foster respect, study problems, and secure cooperation from the various ethnic and other minorities, including disabled persons. NRS 233.140. State actions, including those regarding housing, appointments, and employment must be based on merit, and there can to be no discrimination based on disability. NRS 281.370. Disability is defined as a physical or mental impairment that substantially limits one or more major life activity, a record of such an impairment, or being regarded as so impaired. This definition parallels that of the ADA and the Rehabilitation Act.
Prevention of employment discrimination is codified in NRS 613.330. It is unlawful to discriminate on the basis of a disability with regard to employment, compensation, training, or involvement in labor organizations. In addressing accommodations, the statute makes it unlawful for an employer to interfere with the use of audio or visual aids, including guide dogs or dogs that assist hearing-impaired persons. NRS 613.330.
Chapter 422 of the Nevada Revised Statutes deals with the administration of the state's welfare programs. NRS 422.396 requires the state department of human resources to "establish and administer a program to provide community-based services necessary to enable a person with a physical disability to remain in his home or with his family and avoid placement in a facility for long-term care." Under this program, individuals with physical disabilities receive in-home care, specifically:
| 13. | Respite care; |
| b. | Habilitation; |
| 14. | Residential habilitation; |
| d. | Environmental modifications; |
| 15. | Supported living; |
| f. | Supported living habilitation; |
| 16. | Supported personal care; and |
| h. | Any other community-based services approved by the Secretary of Health and Human Services. |
In this way, individuals with physical disabilities can receive the same type and quality of services and benefits as those without disabilities. The statute calls for the department to solicit the comments and recommendations of individuals with disabilities and their families, as the state attempts to adopt regulations to implement the plan. NRS 422.396.
Under Nevada law, organizations for managed health care are specifically prohibited from discriminating against providers of health care with regard to participation in the organization's plans, based on, among other things, disabilities. NRS 616B.515(3). This statute provides protection to those health care providers who are disabled, ensuring that those disabled physicians have equal access to the managed care system.
Equal patient access to quality health care is the driving force behind NRS 629.091. Under this section of the chapter on Healing Arts, disabled patients may be provided the services of a personal assistant whose responsibilities include medical, nursing or home health services. The assistant is not required to be licensed, so long as the services provided meet certain criteria. Essentially, the services must be simple, those tasks that a person without physical disabilities would be able to perform without assistance. The health care provider authorizing the care must ensure the stability of the disabled patient, the qualifications of the personal assistant, and the ground rules under which the personal assistant must seek the assistance of the health care provider. The statute is a compromise between the needs of the disabled patient and the requirement of non-discrimination against the disabled in the provision of quality health care.
The federal statutes prohibiting discrimination against disabled individuals, including patients and employees of physician, provide detailed guidelines to employers and owner or operators of public accommodations. Reasonable steps must be taken to ensure that disabled employees have equal access to employment, promotion, and opportunity, and that disabled patients have equal access to medical services. Significant accommodations may be required, as long as the accommodations do not impose an undue burden on the physician or his business.
The spirit and philosophy of the federal statutes is codified in the Nevada
Revised Statutes. Though not as detailed as the federal law, the Nevada statutes
compliment federal guidelines by prohibiting discriminatory actions on the part
of employers (to include physicians), and those providing "public
accommodations." Physicians must ensure that disabled patients' needs are
addressed, disabled employees are treated fairly and as equals, and disabled
physicians are not discriminated against in the work place.
STATUTES AND REGULATIONS
Chapter 2 
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