This category involves access to programs and services generally open and available to the public, e.g., nursing homes, gyms, nail salons, health care services.
COMPLAINT: EXCLUSION FROM A PUBLIC ACCOMMODATION ON THE BASIS OF HIV STATUS, FROM EQUIP FOR EQUALITY.
Doe (a pseudonym), an HIV positive adult with a developmental disability, sought admission to Lambs Farm?s residential facility and vocational services. Doe initially received a positive response to his application, but when Lambs Farm learned that Doe was HIV positive they terminated the application process and rejected his application. Doe went to court, filing claims under Section 504 of the Rehabilitation Act of 1973, Section 804 of the Fair Housing Amendments Act, and Title III of the Americans with Disabilities Act for his exclusion from a public accommodation on the basis of his disability. In his complaint, Doe sought an injunction ordering Lambs Farm to admit him to its residential program and vocational services; he also requested compensatory damages, punitive damages, attorneys fees, and other appropriate injunctive relief.
This five-count complaint brought in state court under the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990 and various Wisconsin state law claims alleges that defendants refused medical treatment to plaintiff because of his HIV-positive status. Defendants are an orthopedic practice and an orthopedist who refused to perform plaintiffs spinal fusion surgery. Plaintiff was asked and agreed to be tested for HIV, an independent group of surgeons approved him as appropriate for the surgery and the surgery itself was prompted by the fact that plaintiff was in constant and excruciating pain. Plaintiff, who did not know he was HIV-positive until defendants cancelled his surgery, also sued them under state law for the indignity they caused him for the callous manner in which he was informed of his status and their refusal to counsel or refer him for further medical services.
An HIV-positive man sued his dentist under the New Jersey Law Against Discrimination (LAD) and the AIDS Assistance Act, for the dentists illegal and discriminatory refusal to provide routine dental care because of his HIV status. The dentist also disclosed, for reasons unrelated to his medical care, the plaintiffs HIV-status to a person outside the office. As an excuse for denying plaintiff treatment, the dentist claimed that his staff felt unsafe and that he believed that, in order to treat an HIV-positive person, the dentist would need to have special equipment and cleaning practices. The complaint highlights the fallacy of the dentists arguments by reiterating the American Dental Associations position that standard practices are completely adequate to protect dentists and dental workers from risk of HIV infection by patient contact, and that it is medically and scientifically unwarranted and unethical for dentists to refuse to treat individuals solely because of HIV status.
With widespread use of antiretroviral therapy, Kaiser Permanente researchers suggest that HIV-positive patients can safely undergo a wide range of surgical procedures. While the risk of some post-operative complications is higher than seen in HIV-negative patients, that appears to occur mostly in patients with moderately high viral loads and very low CD4 cell counts. In short, most HIV+ surgical patients have no increased risk of surgical complications compared to their HIV-negative counterparts; HIV should not be a reason for avoiding surgery.
This is Tim Horn's synopsis of the Horberg/KP study on the impact of HIV infection on the surgical safety. Thanks to the widespread availability and use of antiretroviral therapy, Kaiser Permanente researchers suggest that HIV-positive patients can safely undergo a wide range of surgical procedures. The new study, published in the December 18 issue of Archives of Surgery, indicates that the risk of some post-operative complications is higher than that seen in HIV-negative patients, but mostly in HIV-positive patients with moderately high viral loads and very low CD4 (T4) cell counts.
This settlement agreement resolving Smiths complaint in response to emergency medical services personnels refusal to touch or lift him because of his HIV status illustrates possible non-monetary remedies for such conduct, and also how one persons lawsuit can change the way a public institution behaves towards people living with HIV. In addition to monetary compensation, the agreement requires the city to implement a mandatory paramedic/EMT training program on HIV and infectious diseases on a periodic, on-going basis.
Medical organizations brought an article 78 proceeding to compel the Commissioner of Health and State Public Council (Commissioner) to add HIV infection to lists of communicable and sexually transmissible diseases (list). The lower court dismissed the petition and the Appellate Division affirmed, holding that the determination of the Commissioner not to add HIV infection to the list, based on concern that mandatory testing and contact tracing would prevent infected persons from cooperating with public health officials, had rational basis.
The Court of Appeals affirmed the decision for multiple reasons. First, nowhere in the relevant state law did the language suggest that all diseases had to be included in the list, and the presence of the words may designate allows for the Commissioner to exercise discretion. Secondly, the Commissioner has the authority to exclude HIV infection from the list provided that his discretion has a rational basis. The court notes several facts that support the rational basis of the Commissioners decision to not include HIV infection on the list: isolation and quarantine, which are allowed for diseases on the list, would not be appropriate for HIV infection since it is not spread casually; isolation and quarantine would not lead to control and prevention because many persons infected with HIV are asymptomatic for long periods of time and are not tested until symptoms appear; mandatory testing, as allowed for by adding a disease to the list, would be inconsistent with New York State legislation that provides for confidentiality and informed consent with HIV testing; and The Institute of Medicine, and the National Academy of Sciences has concluded that mandatory testing is inappropriate, at this stage, to deal with the spread of HIV infection.
The court concluded that the Commissioners decision to not designate HIV infection to the list was therefore rationally based, within reasonable discretion, and within his authority.
Prepared by the U.S. Department of Justice in September, 2005, and updated in February, 2006, this guide provides a basic overview of federal laws that offer antidiscrimination protections to people with disabilities, including those with HIV/AIDS. Links and contact information for the federal agencies and organizations charged with enforcement of these laws, and statutory citations, is included. Laws covered include the Americans with Disabilities Act (ADA), Telecommunications Act, Fair Housing Act, Air Carrier Access Act, Voting Accessibility for the Elderly and Handicapped Act, National Voter Registration Act, Civil Rights of Institutionalized Persons Act (CRIPA), Individuals with Disabilities Education Act (IDEA), Rehabilitation Act of 1973 (Rehab Act), and the Architectural Barriers Act.
The following synopsis is condensed from NY Law School Professor Art Leonards excellent discussion on Leonard Link, http://newyorklawschool.typepad.com/leonardlink/:
A unanimous panel of the California 2nd District Court of Appeal has revived a lawsuit against a pharmacist who is charged with discriminating against a person with AIDS in a dispute over filling a prescription.
The plaintiff had just been discharged from the hospital, with instructions to get certain prescriptions filled immediately. He and his wife went to a Walgreen pharmacy, and he gave the prescriptions to the pharmacist. One was for an AIDS med. Plaintiff alleges that "without giving any reason or justification," the pharmacist "refused to fill the prescription," and when plaintiff insisted it had to be filled right away, the pharmacist again refused and asked in a loud and hostile tone (and in the presence of other customers) whether plaintiff had AIDS or cancer, a question plaintiff declined to answer because he felt "embarrassed and shocked" by having this question loudly asked in the presence of other customers. Eventually, convinced it was the only way he would get service, plaintiff responded that he had AIDS "and needed the antibiotics to live." Plaintiff claims that the pharmacist made no similar inquiries of other customers before filling their prescriptions. Plaintiff is an African-American man.
The pharmacist claims that the prescription in question was for a medication whose coverage under the Medi-Cal insurance program is restricted to those with a diagnosis of cancer or AIDS, and that he was asking the questions to be sure that plaintiff, who was using Medi-Cal for payment, was eligible for the medication. This requires documentation, not just the patient's say-so, in the form of information in writing from the prescribing doctor confirming the diagnosis; a simple prescription form won't do.
According to the pharmacist, the plaintiff returned later that evening when other customers were not around, and the pharmacist explained the documentation requirements under Medi-Cal. Pharmacist denies raising his voice either time. Ultimately plaintiff "cancelled" his order and took his prescription elsewhere, subsequently filing suit.
Plaintiff's complaint alleged violation of civil rights under the Unruh Act (California's public accommodations law), alleging race, disability and (perceived) sexual orientation discrimination. He also alleged infliction of emotional distress, violation of medical confidentiality law, fraud and negligence. The trial judge, Melvin Sandvig of LA County Superior Court, had dismissed all claims on motion by the defendant.
On appeal, the court disagreed, finding that plaintiff's factual allegations were sufficient to bring the Unruh Act into play. The court pointed out that the relatively simple pleading requirements were met by stating that plaintiff was an African-American man living with AIDS, had been denied services at a time when they were provided to others, and was entitled to the service. However, the appellate court agreed with the trial court that the factual allegations did not state a violation of the medical confidentiality law, or support tort claims of negligence or fraud.
Sidney Abbott, who is HIV-positive, sought dental care (filling a cavity) from Randon Bragdon, a dentist in Maine. After Abbott disclosed her HIV status on a registration form, Bragdon refused to treat her in his office, instead offering to treat her at a local hospital where, he asserted, they would be better equipped to minimize the risk of HIV exposure. Abbott declined the alternative arrangements and brought suit against Bragdon, alleging violation of Title III of the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability in places of public accommodation. Abbott asserted that her HIV infection substantially limited her ability to bear children, which qualified her as a person with a disability for purposes of ADA coverage. The District Court found in favor of Abbott, ruling that her HIV infection satisfied the statutory definition of disability, and that her HIV status did not pose a direct threat to Bragdon.
On appeal, the First Circuit affirmed, holding that Abbott’s HIV infection qualified as a disability under the ADA, even though she was asymptomatic at the time, and that treating Abbott in a dental office would not have posed a direct threat to the health and safety of others. The Supreme Court affirmed. Writing for the court, Justice Kennedy, relying on the first prong of the ADA definition of disability, found that (1) HIV infection, whether symptomatic or asymptomatic, qualifies as an impairment, (2) reproduction is a major life activity, and (3) the impairment of HIV infection substantially limits the major life activity of reproduction. According to the court, “the [ADA] addresses substantial limitations on major life activities, not utter inabilities.” The court explicitly did not address the question of whether or not HIV infection is a per se disability under the ADA. The court also found that Bragdon did not present any “objective, medical evidence” indicating that it would be safer to treat Abbott in a hospital as opposed to his office. However, concerned that the First Circuit’s reliance on certain agency guidelines to support their position was misplaced, the court remanded the case on this issue.
The Supreme Court, faced with a charge of discrimination against a dentist who refused to fill a cavity for an HIV-positive patient, found that HIV is an impairment under the Americans with Disabilities Act (ADA) and that discrimination on the basis of HIV is actionable under the ADA.
In this opinion, Justice Stevens, along with Justice Breyer, concurred in the court’s decision to affirm on the disability determination, but would have affirmed the case outright.
The Supreme Court, faced with a charge of discrimination against a dentist who refused to fill a cavity for an HIV-positive patient, found that HIV is an impairment under the Americans with Disabilities Act (ADA) and that discrimination on the basis of HIV is actionable under the ADA.
In this opinion, Justice Rehnquist, with whom Justices Scalia and Thomas agreed, dissented, asserting that the ADA requires the disability determination to be individual, not general. Therefore, if HIV infection did not substantially limit Abbott’s decision about whether or not to bear children, then Abbott herself does not qualify as disabled under the ADA (even if another person in her position would). Abbott had, in fact, claimed that she had not planned to have children. Justice Rehnquist conceded that HIV infection is an impairment, but did not agree that reproduction is a major life activity, equal in import to walking, talking, breathing, and eating. The activity must be more than important, it must be “repetitively performed and essential in the day-to-day existence of a normally functioning individual.” Further, Justice Rehnquist asserted that even if reproduction is a major life activity, HIV infection does not substantially limit it because Abbott still has the ability to reproduce, even if she has good reasons not to. Justice Rehnquist further found that Bragdon had asserted enough evidence to avoid summary judgment on the question of whether Abbott posed a direct threat to the health and safety of others.
The Supreme Court, faced with a charge of discrimination against a dentist who refused to fill a cavity for an HIV-positive patient, found that HIV is an impairment under the Americans with Disabilities Act (ADA) and that discrimination on the basis of HIV is actionable under the ADA.
In this opinion, Justice O’Connor agreed with the dissenters that Abbott’s claim should have been evaluated on an individual basis. She also agreed that remand on the issue of direct threat was appropriate.
The Supreme Court, faced with a charge of discrimination against a dentist who refused to fill a cavity for an HIV-positive patient, found that HIV is an impairment under the Americans with Disabilities Act (ADA) and that discrimination on the basis of HIV is actionable under the ADA.
In this opinion, Justice Ginsburg concurred in the entire decision, including the remand on the direct threat issue, stating that “it is wise to remand, erring, if at all, on the side of caution.”
In response to a complaint filed by an HIV-positive individual alleging that she was denied services by a medical weight loss clinic, the U.S. Department of Justice (DOJ) intervened and negotiated this settlement agreement. The complaint alleged that the plaintiff was denied services on the basis of her disability (HIV infection) in violation of Title III of the Americans with Disabilities Act (ADA). The agreement provides for both individual and injunctive relief, including a requirement that the clinic not implement eligibility criteria intended to screen out individuals with disabilities. The clinic must also adopt and publicly post a non-discrimination policy at all of its locations throughout the state, and provide training for all of its employees on the ADA and its requirements, including as it pertains to individuals with HIV. Lastly, the clinic will submit a letter to DOJ on an annual basis confirming its compliance with the terms of the agreement.
HIV-positive women need access not only to appropriate health care and antiretroviral medications, but also to HIV treatment support. This paper discusses the unique barriers women face to Access to Care, Treatment, and Support (ACTS). Issues include the limitations of health centers as points of access, the lack of research on the effects of antiretrovirals that is specific to women, and the stigma and discrimination that keep women from obtaining the care and support they need. The paper argues that HIV-positive women are in the best position to understand these issues, and that they therefore should be involved in attempts to identify and address these barriers. The paper could be useful for HIV-positive women and their advocates, as well as health-care providers, who seek to understand and reduce gender inequalities and obstacles to HIV treatment. Produced by the International Community of Women Living With HIV/AIDS.
This policy vision paper outlines the key priorities for women with HIV as identified by a group of young HIV positive women from across Eastern and Southern Africa who met in Durban in April 2004. The meeting was a dialogue organized by the International Community of Women Living with HIV/AIDS (ICW) in partnership with Youth Against AIDS Network (YAAN) and Gender AIDS Forum (GAF). Three primary priorities are identified: 1) Access to sexual and reproductive rights, 2) Access to screening, treatment, and prevention, and 3) meaningful participation and action of women with HIV in decision-making at the community, national, and regional levels. Within these three priorities, several specific issues and examples are identified, citing experiences of real women with HIV. The vision paper then provides a call to action, identifying specific steps that must be taken to remedy these shortcomings. The paper provides a useful starting-point for HIV-positive women and advocates seeking to identify, address, and mobilize around HIV issues specific to women, or anyone seeking to understand the unique obstacles facing HIV-positive women. While many of the issues are identified by women around the world, the themes of disenfranchisement, marginalization, and stigma are universal. Produced by the International Community of Women Living with HIV/AIDS.
Passed by Congress in 1990, the Americans with Disabilities Act (ADA) was intended to ensure that people living with disabilities have access to all of the same opportunities as those without disabilities. The ADA extended coverage provided by the Rehabilitation Act of 1973 to employees and participants in federal agencies and federally-funded programs by applying its requirements to the private sector as well as to state entities. The ADA defines disability as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment." As a result of the ADA being enacted, thousands of people have benefited not only from its prohibitions on discrimination in employment, transportation, and public accommodations, but also from its requirements that facilities and public spaces be made more accessible to people with physical disabilities. In 1998, the U.S. Supreme Court issued its first decision addressing the ADA as it relates to HIV infection as a disability (see Bragdon v. Abbott, 524 U.S. 624 (1998)). Since then, the Court has interpreted the language of the ADA in ways that have severely limited its scope of coverage (see Sutton v. United Airlines, 527 U.S. 471 (1999) and Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002)). In response, Congress is considering a bill that would reinstate some of the original intent of the ADA and specifically reject the Supreme Court's reasoning in Sutton and Toyota, while seeking to reaffirm the court's reasoning in School Board of Nassau County v. Arline (480 U.S. 273 (1987)), which broadly interpreted the definition of disability in the Rehabilitation Act of 1973.
Part 36 of Title 28 of the Code of Federal Regulations was issued by the Department of Justice pursuant to the Americans with Disabilities Act (ADA) in order to implement the requirements contained within Title III of the Act, which applies to places of public accommodation. To check for updates to this part, consult the Government Printing Office web site at http://www.gpoaccess.gov/cfr/index.html.
To help entities that are considered places of public accommodation comply with Title III of the Americans with Disabilities Act (ADA), the U.S. Department of Justice issued this guidance document, which explains each section of Title III and offers practical illustrations to demonstrate how the law applies in various situations.
