Download civil rights/disability laws

Principles of Oral Health
Management for the HIV/AIDS
Patient
A Course of Training for the Oral
Health Professional
Made possible from a grant to the New York State Department of
Health AIDS Institute from the HIV/AIDS Bureau, Division of
Community Based Programs, Health Resources and Services
Administration, DHHS
Dental Care
for People with
HIV Infection: Legal Issues
Mark Rubin, LLD
The legal information contained in this
section is current as of September 1999.
June 2000
2
Are The Lives Of
Prison Inmates In Alabama
More Valuable Than
The Lives Of Dental Workers
In Maine???
June 2000
3
PRIMARY LEGAL
CONSIDERATIONS
• CIVIL RIGHTS/DISABILITY
• “MALPRACTICE”
June 2000
4
COMMON THREADS
• HIV-infected patients can be safely treated in the
private dental office
• Infection control works; universal precautions are
efficacious
• Dentists are (probably) treating HIV-infected
patients whether they know it or not
June 2000
5
LEGALLY “SAFEST”
APPROACH
• TREAT
• TREAT RIGHT
June 2000
6
RISK MANAGEMENT
APPROACH
• Treat HIV-infected individuals like
other patients
• Like patients with other infectious
diseases or chronic conditions
• DOCUMENT
June 2000
7
CIVIL RIGHTS/DISABILITY
LAWS
June 2000
8
BRAGDON V. ABBOTT
FIRST UNITED STATES SUPREME COURT CASE ON:
• The Americans with Disabilities Act
• HIV/AIDS
June 2000
9
CIVIL RIGHTS/DISABILITY
LAWS
• FEDERAL LAWS
• STATE AND LOCAL LAWS
June 2000
10
CIVIL RIGHTS/DISABILITY
LAWS
• FEDERAL LAWS
-- Americans with
Disabilities Act
-- Rehabilitation Act
• STATE and LOCAL
LAWS
June 2000
• Civil Penalties
• Injunctive Relief
• Attorneys Fees ($$$)
• Similar, plus exclusion from
program participation
• Similar, plus monetary
damages
11
“…If you feel you have been
discriminated against in the
provision of dental care because
of your HIV and/or AIDS status
you should call the Department of
Justice in Washington, D.C. at
1-800-514-0301.”
June 2000
12
NOT TO MENTION
June 2000
13
DEFINITION OF “DISABILITY”
• Actual Disability
– "a physical or mental impairment that
substantially limits one or more of the major
life activities of such individual.”
• Record of Actual Disability
• Regarded As Having A Disability
• This can include other
infectious diseases (HIV/Hepatitis/TB…)
June 2000
14
THE SUPREME COURT ON
“DISABILITY”
• Individualized determination
– substantial limitation, not utter inabilities
• “Correctable disabilities"
– disability determined with reference to
mitigating measures
• Safest bet today: treat HIV as a disability
– some impairments may invariably cause a
substantial limitation of a major life activity
June 2000
15
DISCRIMINATION
“No individual shall be discriminated against
on the basis of disability in the full and
equal enjoyment of the goods, services,
facilities, privileges, advantages or
accommodations of any place of public
accommodation…”
June 2000
16
DISCRIMINATION (con't)
• Denial of participation, participation
in unequal benefit, provision of
separate benefit…
• Integrated settings
• “Associational” discrimination
June 2000
17
PLACES OF PUBLIC
ACCOMMODATION
“…Professional Office of a
Health Care Provider…”
June 2000
18
SOME COMMONLY
ASKED QUESTIONS
ABOUT HIV AND
CIVIL RIGHTS/DISABILITY LAW
June 2000
19
CAN RISK OF TRANSMISSION
JUSTIFY A REFUSAL TO
TREAT?
• What is the risk?
• Efficacy of Universal Precautions
June 2000
20
“DIRECT THREAT”
“…a significant risk to the health and
safety of others that cannot be
eliminated by a modification of policies,
practices, or procedures or by the
provision of auxiliary aids or services…”
NOTE: Burden of proof
June 2000
21
“DIRECT THREAT”
(con't)
• General rule: No direct threat
• (for routine care of HIV patients)
• No case law yet for complex cases and/or
AIDS care
June 2000
22
“DIRECT THREAT”
(con't)
"We thus hold that when transmitting a disease inevitably entails
death, the evidence supports a finding of 'significant risk' if it
shows both (1) that a certain event can occur and (2) that
according to reliable medical opinion the event can transmit the
disease. This is not an 'any risk' standard: the asserted danger
of the transfer must be rooted in sound medical opinion and not
be speculative or fanciful. But this is not a 'somebody has to die
first' standard either: evidence of actual transmission of the fatal
disease is not necessary to a finding of significant risk."
June 2000
23
INFECTED PROVIDERS
•The Legal Wildcard?
•Early Case Law
•A pending case against
a hygienist
June 2000
24
LIABILITY FOR STAFF
REFUSALS
• Front desk “mistakes”
• The unwilling team member
–equal services?
–employment law questions
• Note: personal liability
June 2000
25
PATIENT CARE ISSUES
•
•
•
•
Inquiring about a patient’s HIV status
Mandatory patient testing
Extra precautions
Special scheduling
Common theme:
• professional judgment or pretext?
June 2000
26
REFERRALS
• Oral health professional does not have a duty to
treat beyond area of expertise
• Same referral for non-HIV positive patients with
similar conditions?
• Beware the referral for “specialty” HIV dental
care
-- dental basis or pretext?
-- what is the “specialty”?
-is
this
a
referral
or
a
refusal?
27
June 2000
THE NON-COMPLIANT PATIENT
• Compliance
• Patients who “lie” about their sero-status
• Patients who miss appointments
Common Themes:
Generally applied policies?
Reasonable modifications of policies, practices and
procedures?
June 2000
28
“MALPRACTICE”
June 2000
29
PRACTICAL CONSIDERATIONS
• Damages like any other malpractice case?
• “Then” and “now” -- combination therapies,
protease inhibitors, etc.
June 2000
30
ABANDONMENT
Refusal to treat
is more than a discrimination issue
June 2000
31
CONFIDENTIALITY
• Same protections afforded to all patients
• Plus specific state protections re HIV status
Common Concerns:
• Staff
• Record keeping
• Consulting with physicians
• Other third parties (e.g., insurance carriers)
June 2000
32
DIAGNOSIS
• Malpractice risk
– failure to timely diagnosis or refer to a physician
– scope of practice issues (oral versus systemic)
– misdiagnosis
• Risk management considerations
– take good histories
– always look for malignancies/infections, etc.
• Stay within the scope of dental practice
June 2000
33
COORDINATE WITH
PRIMARY CARE TEAM
• There exists a malpractice risk if you fail to do
so, when needed
• Do so for patient care--not to discriminate or
delay treatment
• Follow state law, e.g. consent
June 2000
34
TREATMENT
• Most oral care can be provided by any
competent dentist
• Malpractice Risk
– Refusing to treat for inappropriate medical
reason
– Providing treatment that patient cannot tolerate
June 2000
35
TREATMENT (con't)
•
Some Risk Management Considerations
– Follow recommended guidelines (CDC/ADA)
– Provide care based on medical/dental status
– Coordinate care with physician if/when appropriate
– Analogy to other medically compromised patients
– Refer (for “specialty” care) only on a scientific basis
– Document rigorously
June 2000
36
THE INTERFACE BETWEEN
MALPRACTICE AND
DISABILITY LAW
• For malpractice purposes, treat and treat
properly
• Note discrimination risk with any other
assumption
June 2000
37
“SAFEST” LEGAL MODEL
• Treat HIV-infected individuals like other patients
• Treat like patients with other infectious diseases or
chronic conditions
• Good, science-based practice is best for you and your
patients
• Document
• Keep abreast of scientific and legal developments
June 2000
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