1
Presented by Legal Action Center
2015
Legal Action Center
LEGAL ISSUES FOR AN
AGING HIV POPULATION
WHO IS YOUR TRAINER?
Legal Action Center
Sally Friedman, Esq.
Legal Director
Legal Action Center
2
WHO IS THE LEGAL ACTION CENTER?
Non-profit law & policy organization

Anti-discrimination & privacy work
Legal Action Center

Substance Use Disorders
 HIV/AIDS
 Criminal Records

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HOW TO GET HELP?

Legal Action Center website has many
resources!
Legal Action Center
www.lac.org
 Free publications, free webinars and more


Call the Legal Action Center with questions
about privacy or discrimination relating to
HIV/AIDS, substance use disorders, and/or
criminal records – ask for paralegal or attorneyon-call


(212) 243-1313
Refer clients (see next slide)
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FREE LEGAL SERVICES
Including –
 HIV testing & confidentiality
Legal Action Center

Discrimination based on:
 HIV status
 Alcohol/drug history
 Criminal record –
 Rap sheet review and error correction
 Certificates of Relief and Good Conduct
 Job & housing discrimination
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LIKE US & FOLLOW US!
Legal Action Center
Visit LAC on Facebook:
https://www.facebook.com/pages/Legal-Action-Center/117162234980967
And
Twitter: https://twitter.com/lac_news
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WHY ARE YOU HERE?

Legal Action Center

Majority of persons with HIV will be at least 50
by 2015
Unique barriers to care - other diseases,
 stigma & isolation,
 care providers that historically have not
provided care to HIV+ population -- maybe
some of you!
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TODAY’S TRAINING

Legal issues for older NY’ers with HIV. By
the end of the training, you will be able to:
Legal Action Center
Explain basic purposes of living wills, health
care proxies & powers of attorney.
 State whether HIV-positive individuals can
buy life insurance and any limitations.
 Recite basic non-discrimination rules for
nursing homes & other long-term care.

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TODAY’S HANDOUTS

This PowerPoint presentation
Legal Action Center
Health Care Proxies Q&A
 Living Wills Q&A
 Sample Health Care Proxy form
 Sample Living Wills (two)
 Sample Appointment of Agent to Control
Disposition of Remains

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TODAY’S HAND-OUTS


Are You Somebody With…
Letter from NYS DOH re: PReP (7/24/2014)
HIV/AIDS Testing, Confidentiality &
Discrimination: What You Need to Know
About New York Law.
Legal Action Center

•Also available at www.lac.org (free
publications/HIV)
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WHO CAN MAKE DECISIONS
WHEN YOU CAN’T?
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Legal Action Center
1. ADVANCED DIRECTIVES –
MEET THOMAS & LIZ
Legal Action Center
Thomas:
 60 years old. Diagnosed with HIV 20 years ago.
 Generally has full cognitive abilities, but occasionally
gets forgetful.
 Hospitalized on occasion but generally healthy.
Liz:
 75 years old. Diagnosed with HIV 20 years ago.
 Occasional dementia. Failing health.
Who will make health care decisions for Thomas
& Liz as they age? Thomas and Liz themselves??
Someone else?
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WHO CAN MAKE HEALTH CARE
DECISIONS GENERALLY?

From age 18, people make own health care decisions
if have “capacity to consent.” Means able to:
Legal Action Center
Understand and appreciate nature and
consequences of proposed treatment or diagnosis,
including
 benefits and risks
 possible alternatives (including not doing it)
AND
 Make an informed decision about whether to
consent to proposed test, procedure, or
treatment.

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WHO CAN MAKE HEALTH CARE
DECISIONS GENERALLY?
But who makes health care decisions if someone
does not have capacity to consent?

Temporary incapacitation (e.g., accident,
illness, surgery) – regardless of age

Permanent condition (e.g, dementia, coma,
persistent vegetative state)
Legal Action Center

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WHO CAN MAKE HEALTH CARE
DECISIONS GENERALLY?

Options for Thomas & Liz





Health care proxy
DNR
Living Will
Surrogate decision maker
Court-appointed guardian
Legal Action Center

Power of attorney does not have health care
decision making authority!
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HEALTH CARE PROXY

What is a Health Care Proxy (HCP)?
Form that allows you to choose someone else to
make health care decisions in the event you
cannot make your own (you lack capacity).

“Principal” – person choosing someone else to
make decisions. (That would be Thomas or
Liz) “Agent” – person who gets decision
making authority.

See sample form.
Legal Action Center

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HEALTH CARE PROXY

Can agent decide everything?
Can give agent authority for all or some health
care decisions. If not expressly limited, agent
has all authority, including authority to
consent to HIV test/treatment and to
disclosures of HIV-related and other health
information

But agent will not have authority to make
decisions about artificial hydration and
nutrition unless proxy says so.
Legal Action Center

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HEALTH CARE PROXY
What if principal regains capacity to
consent?


Agent loses authority.
Legal Action Cenrr

Attending physician decides if principal
regains capacity, but in some circumstances,
must consult with a specialist.
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HEALTH CARE PROXY

Who signs proxy?
Signed by principal and two witnesses (agent
cannot be witness). Doesn’t need to be
notarized.

How know if principal is competent to sign?

Adults are presumed “competent” to appoint
a health care agent unless adjudged
incompetent or the court appointed a
guardian.
Legal Action Center

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HEALTH CARE PROXY

Who can/should be agent?
Thomas wants to appoint his 55 year old
partner to be his agent. They live together.

Liz wants to appoint her 70 year old sister to
be her agent. She lives in Maryland.
Legal Action Center

Can they? Should they?
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HEALTH CARE PROXY

Who can/should be an agent?
Legal Action Center
Anyone over age 18.
 Do not need to name spouse. If name spouse,
agency ends if divorce or separation.
 Can choose a doctor if not your treating
physician.
 May also choose alternate.
 Doesn’t have to live in NY, but good idea to
name someone nearby.

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HEALTH CARE PROXY

Thomas’ and Liz’s Choices
Can Thomas appoint his partner?
 Yes.

Can Liz appoint her sister?
 Yes, but because she lives in Maryland,
might not be the best idea.
Legal Action Center

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HEALTH CARE PROXY


Thomas & his partner had a chat. Thomas isn’t 100%
sure his partner could make the difficult choices
consistent with Thomas’ wishes.
Liz hasn’t yet spoken to her sister about the types of
decisions she’d want her to make.

Principal should talk to potential agent about
wishes -- before appointment & after

Choose an agent who will honor your wishes.
Legal Action Center

Should Thomas & Liz appoint these agents?
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HEALTH CARE PROXY
Is it forever? Can you take it all back?
Destroying a document cancels it.
 Executing a new document cancels the first one.
Legal Action Center
Good forever unless revoked or change by
operation of law (e.g., divorce/spouse is agent).
 Can change or cancel directives any time.


Good to review every 5years or after major life
event (divorce, death or incapacity of an agent).
 Always tell people about changes. Best to get
documents back.

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HEALTH CARE PROXY
How will your doctor know about your
health care proxy if you don’t remember or
can’t communicate?
 Make copies and give to –
 All medical care providers (will put in medical
record).
 Agent
 Attorney
 Friends/family
 Keep the original in a safe place, anywhere but in
a safe deposit box where no one will find it.

Legal Action Center
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HEALTH CARE PROXY

What about HCPs done in other states?
Legal Action Center

Doctors in NYS should honor it as long as it
complies with NY law.
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DO NOT RESUSCITATE ORDERS (DNR)

What is a DNR?
Document, usually put in medical chart, that
instructs medical professionals to not perform
CPR, emergency treatment, in the event
breathing stops.

Applies to mouth-to-mouth resuscitation, chest
compression, electric shock, insertion of tube
into your airway, injection of medication or the
opening of your chest.
Legal Action Center
‘

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DO NOT RESUSCITATE ORDERS (DNR)

Legal Action Center

‘

Capacity presumed. Like HCPs, patients are
presumed to have capacity to decide about DNR
orders. Determinations to the contrary must be “to a
reasonable degree of medical certainty.”
Signature/witnesses - Competent adult may
consent (i) orally before 2 witnesses (one being
physician from hospital), or (ii) in writing witnessed
by two people 18 years or older.
Revocation – May revoke consent any time by oral
or written declaration to physician or nursing
staff, or by other act evidencing specific intent to
revoke (e.g., purposefully removing DNR bracelet in
front of doctor or nurse). Doctor must then
immediately record revocation in medical record.
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LIVING WILLS

What is a living will?
Document with your instructions for health care
interventions you do and do not want when/if you no
longer have capacity.

Provides “clear and convincing evidence” of your
intent, as required by case law. Not a creature of
statute.

Good to have living will to guide agent designated in
health care proxy.
Legal Action Center
‘

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LIVING WILLS

Why need a living will if have HCP?

Legal Action Center
‘

Good to have living will to guide agent
designated in health care proxy.
Why need a HCP if have living will?

Gray areas likely will emerge. Good to have a
person you trust to make those hard calls.
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LIVING WILLS

See samples (two) in hand-outs.
Legal Action Center
‘

Compare Legal Action Center form – different
options depending on person’s condition - with
streamlined form from courts.

See Q&As in hand-outs.

Can refuse any type of treatment.

Should discuss with a doctor.
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LIVING WILLS

Revocable?



Legal Action Center
‘

Yes, as with HCP. Can tear it up, write a new
one. But remember to tell your agent.
Give a copy to agent if have an HCP.
Give copy to doctor.
Need lawyer?
 No. Just two witnesses 18 or older who can
say you were of sound mind when signed.
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ORGAN/TISSUE DONATION
Can you include organ/tissue donation in
a living will?


Yes. Form from courts includes it.
Legal Action Center

HCP also can authorize organ/tissue
donation.
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CREMATION & BURIAL
Can be in a will (not living will) – but wills
may not be discovered immediately after
death.

May permit agent to control dispositions of
remains. (Public Health Law § 4201)

See sample form (Appointment of Agent to
Control Disposition of Remains) in hand-outs
or at…
https://www.health.ny.gov/professionals/funeral_director/docs/cont
rol_disposition_of_remains.pdf
Legal Action Center

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SURROGATE DECISION MAKER
What if Thomas and Liz don’t do any
advanced directives?
No health care proxy

No living will

No DNRs
Legal Action Center

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SURROGATE DECISION MAKER
Family Health Care Decisions Act (FHCDA)
If mentally incapacitated in hospital or
residential care facility… (includes nursing
home)

Health care decisions can be made by
“surrogate.”

Attending physician decides if patient lacks
capacity (in some circumstances, may need to
consult with another medical professional)

Must document.
Legal Action Center

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SURROGATE DECISION MAKER

Who can be a surrogate?
Use the order on this list (depending on availability):
Guardian authorized by court to make such decisions
 Spouse (if not legally separated) or domestic partner
 Son or daughter (18 years or over)
 Parent
 Sibling (18 years or over)
 Close friend


Person whose relationship is highest can designate
someone at any other level if no one higher objects
(e.g., spouse can designate sibling).
Legal Action Center

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SURROGATE DECISION MAKER

What if no one on the list is available?
FHCDA allows (doesn’t mandate) physicians to
make any type of health care decision without
going to court.

Law sets out different procedures depending
on whether the medical treatment is routine or
major, or involves withholding/withdrawing
life-sustaining treatment.
Legal Action Center

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SURROGATE DECISION MAKER
Surrogate must make decisions in accordance
with patient’s wishes.

Surrogate can make any type of health care
decision, including whether to withhold or
withdraw life-sustaining treatment.

More information on FHCDA & HIV from
DOH:
http://www.health.ny.gov/diseases/aids/provide
rs/regulations/fhcda/ai_fact_sheet.htm
Legal Action Center

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COURT-APPOINTED GUARDIAN
Article 81 of the NYS Mental Hygiene Law

Court may appoint a guardian if
 necessary to provide for personal needs and/or
manage property & financial affairs, and
 person agrees or is incapacitated.
Based on concept of the least restrictive alternative  appropriate to satisfy needs of incapacitated person,
but also
 Tailored/limited to activities needing assistance.
Legal Action Center

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POWERS OF ATTORNEY

Powers can include banking & real estate transactions,
taxes, personal & family matters and more.
 See sample.
http://www.nyc.gov/html/dhs/downloads/pdf/poa_ny_short_f
orm1_%20082010.pdf


“Durable” POA -- authority survives principal’s
incapacity. (Otherwise, it won’t.) Durable POAs
expire upon death of grantor, unless revoked earlier.
Legal Action Center
“Principal” gives “agent” (at least one) authority to
make decisions non-medical decisions.
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POWERS OF ATTORNEY
Legal Action Center
BE CAREFUL!!!
 Appoint someone you trust.
 Authority commences as soon as POA is signed
by principal and agent (need notary). Agent
can empty your bank account if you give that
authority.
 Agent does not need to ask principal first.
 Principal does not lose authority.
 Can execute but leave it with attorney or some
other person, with instructions to turn it over
to agent at an appropriate time.
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POWERS OF ATTORNEY
Details…
To use the POA, agent should take original &
copies to place where power will be used (e.g.,
bank).

To revoke -- deliver written revocation to
agency. Also serve revocation on financial
institutions with which agent has interacted.
Legal Action Center

43
INSURANCE ISSUES
44
Legal Action Center
2. A BRIEF OVERVIEW OF SOME
INSURANCE ISSUES
Legal Action Center
HEALTH INSURANCE
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HEALTH INSURANCE: HIV/AIDS


People in New York State cannot be denied
health insurance simply because they have HIV
or AIDS
Legal Action Center
HIV/AIDS
People in New York State cannot be charged a
higher health insurance premium simply because
they have HIV or AIDS
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HEALTH INSURANCE: SUBSTANCE USE
DISORDERS


Same co-pays, deductibles, annual & lifetime caps
 Cannot medically manage mental health/addiction benefits
more stringently than medical/surgical
 If medical/surgical has out-of-network benefits, mental
health/addiction must too
 …and more!
Legal Action Center

Mental Health Parity & Addiction Equity Act
(“Parity Law”):
Covers most private & public health insurers,
including Medicaid Managed Care (but not Medicare)
Insurance plans that offer substance use & mental
health benefits must offer them equally (at “parity”)
with other medical/surgical benefits
What does this mean?

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HEALTH INSURANCE: SUBSTANCE USE
DISORDERS
Parity Law, cont…
For more information on parity, check out:
LAC webinar:
http://www.lac.org/index.php/lac/149%23Accessing%20Insu
rance%20Coverage%20for%20Substance%20Use%20&%20
Mental%20Health%20Treatment:%20The%20Federal%20P
arity%20Laws
 SAMHSA’s parity website:
http://www.samhsa.gov/health-financing/implementationmental-health-parity-addiction-equity-act
 Coalition for Whole Health:
http://www.coalitionforwholehealth.org/
 Parity Implementation Coalition:
http://parityispersonal.org/

Legal Action Center

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HEALTH INSURANCE: SUBSTANCE USE
DISORDERS


NYS law requires Medicaid Managed Care plans
in the state to cover court-ordered treatment (if
the plan would otherwise cover that type of
treatment)
Legal Action Center
Insurance Coverage of
Court-Ordered Treatment:
This law is found at New York Social Services
Law section 364-j(4)(r)
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HEALTH INSURANCE: GENERALLY
Before Jan. 1, 2014…
Plans could refuse to
accept, or charge
higher premiums to,
people/employers with
higher health costs
Plans must accept
everyone, regardless
of health status
 Policy can only be
cancelled for failure to
pay premiums

Legal Action Center

Now…
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HEALTH INSURANCE: GENERALLY
Before Jan. 1, 2014…


Insurer could refuse to
cover a person with a
pre-existing condition
(“P.E.C.”), or refuse to
cover costs related to
P.E.C.
BUT, if maintain
insurance, insurer
couldn’t deny based on
P.E.C.
If do not maintain
insurance, insurer could
only look back 6 mos.
Insurers cannot deny
coverage based on preexiting condition
 Insurer cannot refuse
to pay for treatment
for a particular
condition simply
because person had
the condition before
joining the plan

Legal Action Center

Now…
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HEALTH INSURANCE: GENERALLY
Before Jan. 1, 2014…
Insurers could charge
higher premiums
based on health
status, health care
utilization, and more
(called “rating”)
Insurers cannot
charge higher
premiums based on
health status, health
care utilization, or
gender
 Can charge higher
premiums based on
age, geographic area,
and tobacco use

Legal Action Center

Now…
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HEALTH INSURANCE: GENERALLY
Before Jan. 1, 2014…
Employer-based
health plans were not
required to cover
specific types of
benefits (e.g., mental
health and substance
use disorder)



All small employer
plans must provide
“essential health
benefits” (EHB)
including mental health
& substance use and
chronic disease
management
Parity Law applies
EHB cannot be designed
in way that
discriminates based on
disability, life
expectancy, or age
Legal Action Center

Now…
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HEALTH INSURANCE: GENERALLY
Before Jan. 1, 2014…
Very few antidiscrimination or
other protections in
individual and small
group insurance
market



Health insurance
“exchanges” set up
Plans sold on exchanges
must have adequate
networks
Networks must include
“essential community
providers” (includes
Ryan White grantees,
federally qualified
health centers, etc.)
Legal Action Center

Now…
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HEALTH INSURANCE: GENERALLY

For more information on recent and upcoming
changes under health care reform:
Federal government’s website on health care reform:
http://www.healthcare.gov/

Legal Action Center

Coalition for Whole Health (focus on mental health
and substance use disorders):
http://www.coalitionforwholehealth.org/
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HEALTH INSURANCE: GENERALLY

To buy health insurance on the New York
exchange:
Legal Action Center
Official Health Plan Marketplace website:
https://nystateofhealth.ny.gov/
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INSURANCE ISSUES
Legal Action Center
LIFE INSURANCE
&
DISABILITY INSURANCE
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LIFE & DISABILITY INSURANCE
Life & Disability Insurance Companies May:
Require applicants to be tested for HIV, but
must:

Tell applicants they will be tested

Provide applicants with general information

Have applicant sign a consent form
Cont….
Legal Action Center

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LIFE & DISABILITY INSURANCE
Life & Disability Insurance Companies May:
(cont….)


Ask applicants about illnesses with which they
have been diagnosed, including HIV.
Legal Action Center

Deny coverage or charge higher premiums for
people with certain illnesses, such as HIV.
Require people with certain illnesses, such as
HIV, to go through a waiting period before
coverage begins.
59
LIFE INSURANCE
Can someone with HIV obtain life insurance?
Sometimes.



A few life insurance companies will issue limited
amounts of life insurance to HIV+ individuals.
Legal Action Center

Typical benefits range from $5,000 to $15,000.
“Guaranteed life insurance” companies” -- offer
insurance that is not medically underwritten” -no medical exam required.
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LIFE INSURANCE

Possible sources of life insurance without medical
underwriting:





New York Life through AARP for individuals eligible
for AARP, up to $15,000
Mutual of Omaha - up to $10,000
Physician's Life - up to $10,000
Gerber Life - limited amounts ($5,000 - $10,000)
Farmers
Guaranteed Trust Life Insurance Company
Legal Action Center

61
LIFE INSURANCE

Viatical settlements.

Can sell your life insurance for an amount much less
than the death benefit.
Accelerated benefits.

Legal Action Center

If very sick & likely to die within short time, get a
smaller amount than death benefit.
62
LIFE INSURANCE

Employer plans

Many employer plans include an automatic life
insurance policy up to a certain percentage of an
employee's wages on a group basis without
underwriting or any qualifying process.
Legal Action Center

Social security survivor benefits
63
LIFE & DISABILITY INSURANCE


New York State Insurance Department at
1-800-342-3736
Legal Action Center
For more information:
www.thebody.com (insurance and much more)
64
BURIAL INSURANCE




Can buy burial insurance: burial & funeral expenses
only.
Can buy through broker or ask NYS Insurance
Department for list.
Legal Action Center

Life insurance can be used to pay for burial/funeral
expenses, or
Usually costs more for same benefit a life insurance.
Sometimes ask health-related questions, sometimes
don’t. Can affect cost or length of coverage.
65
66
Legal Action Center
3. DISCRIMINATION
WHAT IS DISCRIMINATION?
… when the law does not permit it.
Legal Action Center
Treating a person less favorably/differently
because of his or her STATUS…
Examples: race, age, disability,
gender, religion, sexual orientation,
marital status.
67
DISCRIMINATION IS….

Examples of discrimination:


Adult day care program has a policy of not
admitting people who are HIV+.
Doctor’s office refuses to treat a man for his
broken leg because he has a history of drug
addiction.
Landlord will not rent to woman because she
is in recovery from alcoholism.
Legal Action Center

68
DISCRIMINATION IS NOT…

Anti-discrimination laws require employers &
others to:
Look at each person individually, on a case-bycase basis.

Not make generalizations and rely on
stereotypes and about a person based on
his/her status (e.g., based solely on the fact
that the person has a disability).
Legal Action Center

69
DISCRIMINATION IS NOT…
Legal Action Center
Treating a person less favorably/differently because
of his or her CONDUCT.
70
DISCRIMINATION IS NOT…

Examples of non-discriminatory action:
Employer fires employee who caused
workplace accident because he was under the
influence of alcohol or drugs.

Group residence discharges/evicts someone
because of continuous rule violations -- even if
the individual has disability.
Legal Action Center

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TODAY’S PRESENTATION/DISCUSSION
 Places
of public accommodation:
Health care providers/facilities
 Nursing homes
 Long term care facilities

-- included assisted living &
seniors’ residences
Legal Action Center
Focuses on discrimination in …
 Housing
72
TODAY’S PRESENTATION/DISCUSSION


Legal Action Center
Focuses on discrimination because of …
 HIV/AIDS
 Substance Use Disorder
 Viral Hepatitis
But… some of the same laws prohibit
discrimination due to sexual orientation.
For more info on LGBTQ discrimination:
LGBT Aging Center, http://www.lgbtagingcenter.org
 Lambda Legal, http://www.lambdalegal.org/

73
LAWS PROHIBITING DISCRIMINATION…
FEDERAL LAWS
Legal Action Center
Americans with Disabilities Act (“ADA”)
 Rehabilitation Act of 1973 (“Rehab Act”)
 Fair Housing Act
 Workforce Investment Act
 Family and Medical Leave Act

STATE & CITY LAWS
New York State Human Rights Law
 New York City Human Rights Law

74
LAWS PROHIBITING DISCRIMINATION…
What do these federal, state, and city laws do?
Together, prohibit discrimination by at least:
Legal Action Center

Private employers with 4 or more employees
 State and local government agencies
 Workforce development programs funded by the
federal government
 Places of public accommodation:

Doctors’ offices & other health care providers and facilities
 Social service facilities (e.g., homeless shelter, adult day
care)


Residential facilities (including group homes) and
all other forms of housing
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LAWS PROHIBITING DISCRIMINATION…
Legal Action Center
WHO IS PROTECTED BY THESE LAWS?
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WHO IS PROTECTED BY THESE LAWS…

An individual who-Has a “disability,”
 Has a history/record of a disability, or
 Is regarded as having a disability.

Generally includes people with:





HIV/AIDS
Hepatitis
Past alcoholism/drug addiction
Current alcohol addiction
But not people who currently use drugs illegally
when the discrimination is because of that use.
Legal Action Center

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WHO IS PROTECTED BY THESE LAWS?

Remember: perceived status of having
hepatitis/HIV is also a covered by the law:

Legal Action Center

Case-by-case determination
Example: Adult day care patient is gay so provider
employer assumes he must also have HIV or
hepatitis.
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WHO IS PROTECTED BY THESE LAWS?
CASE STUDY

Jay is 55 years old. Has been in recovery from an
opiate addiction for 15 years during which time
he has been in a methadone maintenance
program. All urine tests have been negative
except for a short relapse 10 years ago. He
applies for admission to an adult day care
program but is denied because he is in a
methadone maintenance program.
Is Jay protected by anti-discrimination
laws? Probably. (Record of/regarded as)
Legal Action Center

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WHAT RIGHTS DO THESE LAWS GIVE?
Legal Action Center
Shall not be discriminated against
because of disability
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WHAT RIGHTS DO THESE LAWS GIVE?
What does that mean?

Can’t be treated differently because of
disability.
Entitled to a reasonable accommodation.
Legal Action Center

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CASE STUDY DIFFERENTIAL TREATMENT
Jane is 60 years old. Goes to Downtown Eye
Clinic for an eye problem.
 Discloses HIV status on the medical history.
 Clinic tells her that because she is HIV+, she
should go to hospital’s infectious disease clinic
instead.
 Clinic does not call hospital for her, but gives her
the general phone number for infectious disease
program.

Legal Action Center
Discrimination?
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CASE STUDY DIFFERENTIAL TREATMENT

Depends….need to know more:
Clinic is a place of public accommodation, so must
comply with anti-discrimination laws (ADA, NYS and
NYC Human Rights Laws)

But why did Clinic deny Jane services?

If denied services because feared HIV infection, then
discrimination!
Legal Action Center

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CASE STUDY DIFFERENTIAL TREATMENT
Could might try to raise “direct threat” defense.
Public accommodations may deny services if
person with disability poses “direct threat” to
health and safety of others:


Legal Action Center

Significant risk based on best available
objective evidence, current medical knowledge.
Can’t be mitigated through reasonable
modifications of policies, practices, procedures.
Can’t be speculative, remote or based on
anecdotal experience or myth.
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CASE STUDY DIFFERENTIAL TREATMENT

In determining whether someone poses a “direct
threat,” should consider 4 factors:
2) nature and severity of the potential harm
Legal Action Center
1) duration of the risk
3) likelihood that potential harm will occur
4) imminence of the potential harm
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CASE STUDY DIFFERENTIAL TREATMENT
“Direct threat”


HIV+ patient does not pose direct threat in
health care settings. Must use universal
precautions for everyone.
Legal Action Center

Abbott v Bragdon -- U.S. Supreme Court
case.
Similar for hepatitis. U.S. Dept. of Justice
settled case against dentist for refusing to
treat woman with hepatitis C.
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CASE STUDY DIFFERENTIAL TREATMENT
Was referral medically justified?
If referral was medically justified -- doctor did
not have skill level/expertise to treat Jane’s
eye problem, no discrimination.

In some circumstances, HIV/AIDS may
present medical complications that could
warrant a referral. But absent medically
justifiable reason, it’s discrimination.
Legal Action Center

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CASE STUDY DIFFERENTIAL TREATMENT
Other examples of discrimination
Requiring HIV-positive patient to come to last
appointment of day (DOJ settlement against
Woodlawn Family Dentistry)

Isolation & unwarranted “precautions”: Dubin v.
Marcus Garvey Nursing Home. Violated NYS
Human Rights Law by placing resident in strict
isolation because of HIV status & not allowing him to
use public phone.
Legal Action Center

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CASE STUDY REASONABLE ACCOMMODATION
Tom is in recovery from addiction to prescription
pain medication. Getting treatment with suboxone
(controlled substance approved for treatment of
opiate addiction).

Legal Action Center
Denied admission to Eastside Seniors Residence
because of policy: no controlled substances on site.

Discrimination?
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CASE STUDY REASONABLE ACCOMMODATION
It may.
Unlawful discrimination also includes refusing or
failing to make reasonable accommodations for
people with disabilities, when needed.
Legal Action Center

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CASE STUDY REASONABLE ACCOMMODATION

Arranging for patient to store MAT medication
in lock box in house, etc.
Legal Action Center
Possible reasonable accommodations (in lieu
of policy patients treated with suboxone from
seniors residence):
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QUESTIONS ABOUT DISABILITIES

Back to Jane -- patient at Downtown Eye Clinic.
Yes.
Anti-discrimination laws limit what
employers may ask about disabilities, but do not
limit what places of public accommodation may
ask.
Clinic may not discriminate with that
information.
Legal Action Center
Was it legal for Clinic to ask Jane about HIV
status on medical history form?

BUT
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QUESTIONS ABOUT DISABILITIES
What about housing?
Legal Action Center
May assisted living facility ask applicant if HIV
positive? Has viral hepatitis? Has ever been in
alcohol/drug treatment?

Depends.
FHA generally prohibits inquiring
about disability but not if ask all applicants and:
Inquiring
to determine eligibility for dwelling
available only to individuals with disabilities or
particular type or to dwelling that gives priority to
individuals with disabilities (or particular type)…
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QUESTIONS ABOUT DISABILITIES
(continued)


Asking if “current illegal abuser or addict of a
controlled substance”
Asking if convicted of illegal manufacture or
distribution of controlled substance.
Legal Action Center

Note: FHA applies to assisted living facilities,
senior residences, but maybe not nursing homes
(could be public accommodations instead).
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REMEDIES
What to do if you face discrimination?


Contact a lawyer. Options include Legal Action
Center; also see lawhelp.org:
http://www.lawhelp.org/.
Legal Action Center

File a complaint with agency(ies) that
enforce the law (can do without a lawyer).
File a lawsuit in state or federal court.

Having a lawyer is usually critical to success.
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REMEDIES



Money (sometimes) for mental anguish, other
losses
Legal Action Center
What can people get from successful
complaint or lawsuit?
Changed policies
Order requiring discriminating entity to
admit/treat you/stop discriminating.
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REMEDIES




NYS Division of Human Rights
http://www.dhr.ny.gov/
NYC Commission on Human Rights
http://www.nyc.gov/html/cchr
U.S. Department of Justice (ADA)
http://www.ada.gov/filing_complaint.htm
U.S. Department of Housing & Urban Development
(FHA)
http://portal.hud.gov/hudportal/HUD?src=/program_of
fices/fair_housing_equal_opp/disabilities
Legal Action Center
Where to get more information on agency
complaints?
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REMEDIES
REMEMBER:
Legal Action Center
It is VERY important to stay mindful of deadlines
for filing complaints and lawsuits!
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HAVE QUESTIONS?
Legal Action Center
 ask for “attorney on call”
 212-243-1313 or 800-223-4044
Legal Action Center

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Legal Action Center
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