Patients Can Claim Discrimination
Employers often focus on avoiding discrimination charges from employees. But healthcare organizations must remember patients also can allege discriminatory conduct. The consequences can be significant.
Federal and state laws prevent discrimination against patients, notes John S. Lord, Jr., JD, partner with Foley & Lardner in Miami. Some federal anti-discrimination laws regarding public accommodations will apply to healthcare facilities, and others will apply to any healthcare organization receiving federal funds.
The Department of Health and Human Services (HHS) Office for Civil Rights enforces laws against discrimination by healthcare providers based on race, color, national origin, disability, age, religion, and sex, including pregnancy, sexual orientation, and gender identity. The agency recently issued reminders about anti-discrimination laws during the pandemic.1 HHS explained patients with disabilities are protected by several federal laws, including the anti-discrimination provision (Section 1557) of the Affordable Care Act.
“Many patients have disabilities, of course, but you cannot discriminate on the basis of a disability and weed people out,” Lord explains. “One example is rationing care, which became an issue when ventilators were in high demand. It would be unlawful to make decisions on whether someone got a ventilator based on their disability, such as saying that someone with Down syndrome is not eligible for a ventilator because you don’t have enough.”
Discrimination allegations in healthcare are less likely to involve race and gender, which are more common in employment claims, and are more likely to involve mental health issues and other disabilities, Lord says. Patients can file a claim with the HHS Office for Civil Rights and also sue for compensatory damages or a court order requiring treatment.
“I’ve seen claims for people who are addicted to opioids and facilities refuse them care, saying they don’t have ability to care for a large number of opioid-addicted patients,” Lord notes.
As with best practices for avoiding employment discrimination claims, healthcare organizations should create policies and procedures along with training for frontline staff and administrators. Anyone who is making decisions about patient care and admissions should be familiar with the law and receive that training.
“Also, they should know that patients may make statements that don’t sound like an obvious discrimination claim, but they say what you’re doing is not fair or you can’t turn them away for this reason. Any claim like that should be vetted to determine if it is a discrimination claim even if those magic words were not used,” Lord says. “Not every claim will be valid, but receiving a complaint and not even investigating it is a big problem.”
The Joint Commission (TJC) encourages patients to report discrimination with its Speak Up Against Discrimination campaign.2 It focuses on patients’ rights and how they can seek help if they feel they are facing discrimination and receiving substandard care, says Ana Pujols McKee, MD, executive vice president; chief medical officer; and chief diversity, equity, and inclusion officer with TJC.
“Our goal is for every patient to get the right care at the right time and have the best outcome,” McKee says. “The relationship between the patient and the physician or other caregiver is a partnership. If the patients are well informed and engaged in that interaction, the outcomes are likely to be better. The Speak Up campaign is intended to help patients be better at interacting and knowing their rights.”
TJC reports almost 5,000 healthcare organizations nationwide are using the campaign materials in their facilities and communicating the information to their patients.
REFERENCES
- Department of Health and Human Services. FAQs for healthcare providers during the COVID-19 public health emergency: Federal civil rights protections for individuals with disabilities under Section 504 and Section 1557. Updated Feb. 4, 2022.
- The Joint Commission. Speak Up Against Discrimination.
SOURCES
- John S. Lord, Jr., JD, Partner, Foley & Lardner, Miami. Phone: (305) 482-8420. Email: [email protected].
- Ana Pujols McKee, MD, Executive Vice President, Chief Medical Officer, Chief Diversity, Equity, and Inclusion Officer, The Joint Commission, Oakbrook Terrace, IL. Phone: (630) 792-5800.
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