Health Care Providers: It’s Not Just Employee Discrimination Claims — Patients Can Have Discrimination Claims Too
Hospitals, outpatient clinics, and telehealth practices know they need policies and training on their employee equal employment and anti-harassment policies. These health care providers know that when supervisors are not properly trained, costly employment claims can arise.
Equally as important, health care providers need policies and training on their patient antidiscrimination policies. The U.S. Department of Health and Human Services (HHS) — the federal agency that enforces laws against discrimination by certain health care providers based on race, color, national origin, disability, age, religion, and sex (including pregnancy, sexual orientation, and gender identity) — recently issued reminders about anti-discrimination laws in the age of COVID-19.
Specifically, HHS discussed in the FAQs that patients with disabilities are protected by several federal laws, including the anti-discrimination provision (Section 1557) of the Affordable Care Act. With respect to patients with disabilities, the FAQs instruct:
When these laws apply, they also apply to state Crisis Standards of Care plans and procedures for triaging scarce resources that hospitals are required to follow, and to hospitals adopting and implementing standards, whether by choice or because they are required.
When allocating scarce resources or care in a public health emergency, covered entities must analyze the specific patient’s ability to benefit from the treatment sought, free from stereotypes and biases about disability, including prejudicial preconceptions and assessments of quality of life or judgments about a person’s relative “worth” based on the presence or absence of disabilities.
Some people have disabilities preventing them from providing their medical history or understanding medical decisions or directions. Permitting a patient with a disability to use a support person to have an equal opportunity to obtain and benefit from health care services is a reasonable modification that generally must be provided unless it would fundamentally alter the nature of the service, program, or activity or impose an undue financial and administrative burden.
Providers should be equally mindful of patient antidiscrimination obligations as employee anti-discrimination obligations. Periodic compliance review and up-to-date trainings for relevant employees are a must in order to keep up with and comply with these laws. Doing so can help prevent and defend against patient discrimination claims.