Module 13

1. Module 13 The Legal Implications of Treating HIV-Positive Patients

2. The Legal Implications of Treating HIV-Positive Patients Helene Bednarsh, BS, RDH, MPH Director, HIV Dental Ombudsperson Program Boston Public Health Commission Please Note: This presentation is not legal advice and does not necessarily simplify complex legal issues. It is important to consult a lawyer for information or advice on specific issues. The intent of this presentation is to provide an overview of pertinent legal issues to consider in your dental practice from both a state and federal perspective.

3. The Discussion Will Focus On: • Laws: State and Federal • Ethics • Prudent Behavior • HIV/HBV in Infected HCWs NOTE: State laws use Massachusetts as an example

4. State Law:Public Accommodation, Laws on Public Accomodation prohibits discrimination based on a person’s disability in access to or treatment in a place of public accommodation. State statutes usually define a “public accommodation”in more general terms than federal law, such as any business or service establishment that is open to the public and accepts public patronage.

5. State Law:Privacy of Patient Information and Medical Records Courts have recognized that privacy concerns are of paramount importance for people with HIV. Privacy protections are evolving. Healthcare workers must be careful to ensure that medical information and records are adequately protected and not revealed to other providers, friends, or family of the patients, and even to employees who are not directly involved in patient care, without the patient’s written informed consent.

6. Legal Sources of Privacy Protection Most states have laws which protect a patient’s right to privacy in the review and release of medical information. These laws provide that a physician, healthcare provider, or healthcare facility may not, for example, do the following without first obtaining a person’s written informed consent: A. Test a person for HIV; B. Reveal to third-parties that a person took an HIV test; or C. Disclose to third-parties the results of a person’s HIV test.

7. Protection of HIV Information • Consent for an HIV test or the release of the results of an HIV test must be written, not oral, and must be HIV-specific, not general. • This statute covers the release of any information or records indicating a patient’s HIV status, not just the actual HIV test result. • A release for HIV-related information must state the purpose for which the information is being requested. • There are no exceptions to the requirement of specific written informed consent, for an HIV test or the release of HIV-related information, including an emergency or an occupational exposure to a patient’s blood. Please note:

8. Draft Written Information Consent Please note: 1. Consent for an HIV test or the release of the results of an HIV test must be written, not oral, and must be HIV-specific, not general. 2. This covers the release of any information or records indicating a patient’s HIV status, not just the actual HIV test results. 3. A release for HIV-related information must state the purpose for which the information is being request, for whom, and to whom. 4. There are not exceptions to the requirement of specific written informed consent for an HIV test or the release of HIV-related information, including in an emergency or in the the event of an occupational exposure to a patient’s blood. 5. The form must be signed and dated. A witness signature may be prudent. 6. There must be an opportunity to withdraw the consent at any time without penalty. This should be written into the consent.

9. Example I _______ [patient name] authorize you________ [dentist] to release information pertaining to my HIV status to my primary care provider _______ [provider name] solely for the purpose of providing oral health services as agreed upon. This authorization is granted on the condition that due care must be exercised with respect to my rights to privacy and confidentiality. My consent is valid so long as dental care is received from the above-named dentist or his/her associates. I understand that I may revoke this authorization in writing at any time without penalty. Date____________ Signature ______________________ Witnessed ______________________ Please send to:

10. Example I _______ [patient name] authorize ________ [provider] to release information pertaining to my HIV status and HIV-related treatment to my dentist _______ [dentist] solely for the purpose of providing oral health services as agreed upon. This authorization is granted on the condition that due care must be exercised with respect to my rights to privacy and confidentiality. My consent is valid so long as dental care is received from the above-named dentist or his/her associates and while I remain under your care. I understand that I may revoke this authorization in writing at any time without penalty. Date____________ Signature ______________________ Witnessed ______________________ Please send to:

11. Legal Sources of Privacy Protection(continued) These laws provide that “a person shall have a right against unreasonable, substantial or serious interference with his privacy.” Courts have tried to determine if there is any legitimate business reason for a disclosure; and if so, courts will balance the legitimate reason against the nature and substantiality of the intrusion into privacy.This law applies to employees as well as patients.

12. Legal Sources of Privacy Protection(continued) 3. Miscellaneous Additional Protections for Patients As a matter of common law, courts have determined that disclosure of medical records violates a patient’s right to privacy. Patients have the right to inspect and copy records. Most states have a “Patient’s Bill of Rights” laws provide that patients have a right to privacy during medical treatment in any hospital or clinic licensed by the Department of Public Health.

13. Legal Sources of Privacy Protection(continued) 4. Strategies to Reduce the Risk of Liability for Privacy Violations A. Train all staff and employees on privacy law. B. If possible, segregate sensitive information from general medical information and limit access. C. Create your own medical records or information release form. Make sure every record which goes out is inspected. D. Be wary of subpoenas. Consult an attorney, consult your patient, get permission to talk to your patient’s attorney. Prudent to err on the side of requesting an HIV-specific release.

14. Legal Sources of Privacy Protection (continued) Even if a dentist does not have a patient’s actual HIV test result, there is still a legal obligation to protect confidential HIV-related patient information.

15. Federal Law:Disability Discrimination Laws People with HIV are protected under federal laws: 1. The Americans with Disabilities Act (AwDA) of 1990 2. The Rehabilitation Act of 1973

16. Definition of a Disability A disability is defined as having the following: 1. A physical or mental impairment that substantially limits one or more of the major life activities of such individual 2. A record of such impairment 3. Being regarded as having such impairment. The “regarded as” prong of the definition of a disability covers individuals with HIV even if they are not limited in any major life activity, but are excluded from services based on the negative perceptions or reactions of others to their physical impairment.

17. The Federal Rehabilitation Act of 1973 In 1987 a clarifying position was added to Section 504. Section 504 prohibits discrimination against people with disabilities from agencies or programs who receive federal funds, including private dental or medical offices and hospitals that accept Medicare or Medicaid. Only applies to places which receive federal funds. If any program in an institution receives federal funds (even federal research monies), then all programs and employees are covered by the Rehabilitation Act.

18. The Federal Rehabilitation Act of 1973:Enforcement Provisions • Enforcement Provisions are stronger than the AwDA. • Plaintiffs may obtain injunctive relief, emotional distress, and other compensatory damages. • Punitive damages may be awarded in the jury’s discretion to “deter egregious discriminatory conduct.”

19. The Americans with Disabilities Act of July 26, 1990 • Is a comprehensive federal law aimed at eliminating discrimination against people with disabilities, including people with HIV. • Extended disability discrimination protection to private places of public accommodation. • “Is perhaps the most sweeping civil rights legislation passed since the enactment of the Civil Rights Act of 1965.” • Provides “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and picks up where Section 504 left off.

20. AwDA Titles I, II, III The AwDA prohibits discrimination against people with disabilities under: Title I: Employers Title II: State and local governments Title III: Privately owned businesses referred to as “places of public accommodation”

21. AwDA Title III 1. Deny an HIV-positive person the “full and equal enjoyment” of dental services or to deny an HIV-positive person the “opportunity to benefit” from dental services in the same manner as other patients. 2. Establish “eligibility criteria” for the privilege of receiving dental services. These criteria tend to screen out persons who have tested positive for HIV. 3. Provide “different or separate” services to patients who are HIV-positive or fail to provide services to patients in the most “integrated setting.” 4. Deny equal services to a person who is known to have a “relationship” or “association” to a person with HIV, such as a spouse, partner, child, or friend. As it applies to dentistry, it is illegal to:

22. 1. A dentist cannot decline to treat a person with HIV based on a perceived risk of HIV transmission or because the dentist simply does not feel comfortable treating a person with HIV. 2. A dentist cannot agree to treat a patient only in a treatment setting outside the dentist’s regular office, such as a special hospital dental clinic. 3. A dentist cannot require that a patient take an HIV test prior to providing dental treatment. In applying these specific provisions of the AwDA to dentistry, be mindful that the following practices are illegal:

23. 4. A dentist cannot refer an HIV-positive patient to another clinic or dentist, unless the required dental treatment is outside the scope of the dentist’s usual practice or specialty. The AwDA requires that referrals of HIV-positive patients be made on the same basis as are referrals for other patients. 5. A dentist cannot increase the cost of services to an HIV-positive patient in order to use additional precautions beyond the mandated OSHA and recommended CDC infection control procedures. Under certain circumstances, it may well be an AwDA violation even to use unnecessary additional precautions which tend to stigmatize a patient simply on the basis of HIV status. 6. A dentist cannot limit the scheduled times for treating HIV-positive patients, such as insisting that an HIV-positive patient come in at the end of the day.

24. Direct Threat A direct threat is defined as a “significant risk to the health and safety of others that cannot be eliminated by a modification of policies, practices, or procedures.” Assessment of a direct threat is made on the basis of reasonable judgment that relies on current medical knowledge or on the best available objective evidence to ascertain: 1. The nature, duration, and severity of the risk 2. The probability that the potential injury will occur; and 3. Whether reasonable modifications to policies, practices, and procedures will mitigate the risk.

25. Employment Discrimination Title I of the Americans with Disabilities Act prohibits employment discrimination. The AwDA protects persons who are HIV-positive or who have AIDS from employment discrimination for employers with at least 15 employees. Employment decisions must be based on current medical fitness to perform the job duties and not on the possibility that a person will become ill and unable to do the job in the future. State laws may cover employers with less than 15 employees; and some states will not allow an employer to require that an employee submit to an HIV test as a condition of employment.

26. Employee as a Direct Threat The analysis of this is similar to that for places of public accommodation: 1. The nature, duration, and severity of the risk; 2. The probability of the risk; and 3. Whether the risk can be eliminated by reasonable accommodation. Focus is more on nature, duration, and severity; less on possibility of risk.

27. Courts Justify This Based On: 1. The 1991 CDC recommendations on HIV/HBV-infected HCWs, which leave room for healthcare institutions to restrict activities of HCWs who perform “exposure-prone invasive procedures;” and 2. The legal principle that HCWs have a special fiduciary duty to patients which makes even a theoretical risk unacceptable.

28. Illegal Referrals and/or Refusals to Treat In terms of referral, regulations by the United States DOJ state that a healthcare provider may refer a patient with a disability only if: 1. The treatment being sought is outside the referring provider’s area of specialization. 2. In the normal course of operations, the referring provider would make a similar referral for an individual without a disability who seeks or requires the same treatment or services.

29. Review of Significant Cases The court ruled that a general dentist violated the AwDA when he referred a patient with HIV to another dentist because of the false belief that routine dental care for a patient with HIV requires a specialist. They agreed with dental experts that no special training, other than that possessed by a general dentist, is required to provide general dental care to patients with HIV. No such specialty is recognized by the dental profession. The court specifically rejected the dentist’s argument that he had not kept up with the literature and training necessary to treat patients with HIV. The court specifically noted the extensive educational materials available to dentists and said that Dr. Morvant “chose to ignore the information and in doing so ran afoul of the law as it now stands.” United States v. Drew B. Morvant D.M.D.: United States District Court for the Eastern District of Louisiana, March 23, 1995

30. D.B. v. Howard Bloom, D.D.S.: United States District Court for the District of New Jersey, August 15, 1995 A federal court in New Jersey ruled that a dentist violated the AwDA and New Jersey state law by refusing to treat a patient with HIV and referring him to a “special clinic for HIV,” someone “better suited to take care of [his] needs.” The court ruled the referral “a pretext for discrimination because no specialized skills are required to treat patients who are HIV-positive.” The court also found that as general dentists, the defendants “had sufficient expertise and training to provide general dental care to persons with HIV/AIDS .” In addition, the court found the defendant’s actions to be “particularly offensive in light of [the dentists] status as licensed healthcare providers who ought to be aware of and practice universal precautions.” Financial damages were awarded as well as a signage requirement for the waiting room.

31. Was settled with a consent decree to pay compensatory damages for refusal to treat an HIV-positive patient. The agreement included staff training and sending monitoring reports to the DOJ. Castle Dental - Houston East Hartford - CT In settling a complaint against a dentist for allegedly refusing to treat a patient with AIDS, the dentists agreed to implement a policy that they would not discriminate on the basis of HIV/AIDS. There were civil penalties.

32. In a 1992 decision, the Minnesota Supreme Court upheld a finding by the Minnesota Human Rights Commission that a dentist had illegally discriminated against an asymptomatic HIV-positive patient by refusing treatment and referring the patient to the University of Minnesota dental clinic. The court noted that the intended dental procedure was within the dentist’s area of expertise and that the dentist would not have made the referral for a person who was not HIV-infected. State of Minnesota v. Clausen (1992) G.S. v. Karin Baksh, Illinois Human Rights Commission July 1994 In this case a dentist referred a patient to Northeastern University dental clinic, and in so doing violated his rights under provisions of the Illinois Human Rights Commission. They ruled the dentist acted out of “fear and ignorance.”

33. Ethics In 1988, the American Dental Association Council on Ethics, Bylaws and Judicial Affairs declared: Adentist has the general obligation to provide care to those in need. A decision not to provide treatment because the individual has AIDS or is HIV-seropositive, based solely on that fact, is unethical. Ref: ADA Principles of Ethics and Code of Professional Conduct, Section 1-A

34. The American Dental Association Policies are that: 1. HIV-[positive] individuals should be treated with compassion and dignity, 2. There is little risk of transmission of HIV through dental treatment if recommended infection control procedures are routinely followed, 3. Patients with HIV may be safely treated in private dental offices when appropriate infection control procedures are employed, 4. Such infection control procedures provide protection both for patients and dental personnel, and 5. A decision not to provide treatment to an individual because the individual has AIDS or is HIV-seropositive, based solely on that fact, is unethical.

35. 6. Based on current scientific and epidemiological data, universal precautions continue to be an effective means of reducing blood contacts that can result in disease transmission, minimizing even further the already low risk of bloodborne disease transmission in the dental office, 7. Given the data, patients with bloodborne diseases may be treated in the private dental office with no significant risk of disease transmission, provided appropriate infection control procedures are employed and 8. In Association communications on this issue, members be reminded that a patient’s HIV/AIDS status is not a justification for refusal of treatment. (1996: 734-735) Efficacy of Universal Precautions and Policy Statement on HIV/AIDS as an Infectious and Communicable Disease (Ref. 6-8)