HHS Issues New Rule Prohibiting Discrimination Based on Sex and Requiring Interpreters

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by Pia Dean, Holland & Hart LLP

On September 3, 2015, the Department of Health and Human Services (HHS) issued a proposed rule intended to advance health equity and reduce disparities in health care. Section 1557 of the Patient Protection and Affordable Care Act (ACA) is the first federal civil rights law to prohibit discrimination, including denial of health services or health coverage, on the basis of race, color, national origin, age, disability, or sex. The proposed rule, Nondiscrimination in Health Programs and Activities, codifies and expounds on the these protections. The proposed rule applies to any health program or activity which receives funding from HHS, such as providers that accept Medicare or Medicaid patients. In addition, it applies to individuals enrolled in coverage through the Health Insurance Marketplaces (commonly referred to as “Exchanges”) and to all health plans offered by insurers that operate in Exchanges. Read more

Providing Auxiliary Aids to Hearing or Visually Impaired Persons

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by Kim Stanger, Holland & Hart LLP

We are often asked whether healthcare providers must provide interpreters or other auxiliary aids to persons who are hearing or visually impaired.  The Americans with Disability Act (“ADA”) prohibits places of public accommodation (including private physician offices and hospitals) from discriminating against persons with disabilities.  Healthcare providers must provide auxiliary aids to patients or companions of the patient (e.g., parents, spouses, or personal representatives) if doing so is necessary to ensure effective communication unless doing so would cause undue hardship or fundamentally alter the nature of the provider’s services—standards that are very difficult to prove.  The fact that an appropriate auxiliary aid costs more than reimbursement for the provider’s service is not “undue hardship.”  Appropriate auxiliary aids may include interpreters, video remote interpreting (“VRI”), written materials, exchange of written notes, assistive listening devices, etc.  The provider should consult with the patient, but the ultimate decision as to what measures to take rests with the provider so long as the measures ensure effective communication.  For simple communications involving hearing impaired persons, lip reading or using a pen and note pad may be sufficient; for communications involving complex information (e.g., discussions about significant medical issues, treatment options, or instructions), the Department of Justice (“DOJ”) has suggested that ASL interpreters may be required.

ADA regulations confirm that providers may not charge the patient for the cost of the auxiliary aids, nor may providers require the patient to bring their own interpreter or supply other auxiliary aids.  Providers may not rely on adults accompanying the patient to interpret unless it is an emergency and there is no other interpreter available, or the patient requests that the adult interpret and the provider believes reliance on the adult is appropriate.  Providers may not rely on minors to interpret unless it is an emergency and there is no other interpreter available.  Providers may not coerce, threaten, intimidate or retaliate against a patient or their companion for requesting auxiliary aids or exercising their rights.

For more information, see the ADA regulations at 28 CFR part 36; the OCR’s website, www.hhs.gov/ocr/civilrights; or the DOJ’s ADA website, www.ada.gov.  Among other things, the DOJ’s website contains information about its ongoing Barrier-Free Health Care Initiative.

Kim Stanger is the Chairman of Holland & Hart LLP’s Health Law Group.  He can be reached at kcstanger@hollandhart.com or (208) 383-3913.  To subscribe to Holland & Hart’s free e-newsletter or blog concerning health law issues, please e-mail Mr. Stanger.

This publication is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal or financial advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the author. This publication is not intended to create an attorney-client relationship between you and Holland & Hart LLP. Substantive changes in the law subsequent to the date of this publication might affect the analysis or commentary. Similarly, the analysis may differ depending on the jurisdiction or circumstances. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.

Hospital Faces Religious Discrimination Claims for Firing Vegan Employee Who Refused a Flu Shot

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by Kim Stanger, Holland & Hart LLP

Cincinnati Children’s Hospital, like many others around the nation, has adopted a policy requiring employees to get a flu shot. A federal court in Ohio just decided that the religious discrimination lawsuit brought by a vegan employee should go forward, at least for now. The ruling allows former employee, Sakile Chenzira, to proceed with her case against the Hospital alleging that the Hospital discriminated against her based on her religious beliefs when it discharged her for refusing a flu vaccination. Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., No. 1:11-CV-00917 (S.D. Ohio Dec. 27, 2012).

Refusing vaccine leads to termination. Chenzira had worked as a customer service representative for the Hospital for more than ten years. As a practicing vegan, Chenzira does not ingest any animal or animal by-products. Chenzira claims that prior to 2010, the Hospital accommodated her request not to receive flu vaccinations because they contained animal by-products. In December of 2010, however, the Hospital terminated Chenzira for refusing the flu vaccine.

Vegan Files Lawsuit Alleging Religious Discrimination and Wrongful Discharge. Chenzira alleges that the Hospital discharged her based on her religious and philosophical convictions as a vegan. She filed a lawsuit in federal court in Ohio asserting three claims, including religious discrimination in violation of Title VII of the Civil Rights Act of 1964.

Hospital Argues Veganism is Not a Protected Religion. The Hospital asked the Court to dismiss Chenzira’s claims in their entirety. As to the religious discrimination claims, the Hospital argued that veganism is not a religion and therefore, cannot be the basis for a discrimination claim. In the Hospital’s view, veganism is a dietary preference or social philosophy. In fact, it found no other cases in which veganism was the basis for a religious discrimination claim. Chenzira, however, argued that her vegan practice constituted a moral and ethical belief that she sincerely held with the strength of traditional religious views. On a motion to dismiss, Chenzira was not required to “prove” her case, but only allege a claim that was plausible on its face. The Court ruled that it was plausible that Chenzira could believe in veganism to the extent necessary to equate to a traditional religious belief. The Court denied the Hospital’s request to throw out the religious discrimination claims.

Defense of Religious Discrimination Claims Will Proceed. The Hospital may have lost the first battle on the religious discrimination claims but it hasn’t lost the war. Chenzira must actually establish that her belief in vegan practices rises to the level of a traditional religious belief. In addition, as the Court pointed out, the Hospital may justify its termination of Chenzira based on patient safety or other overriding reasons. The Court’s ruling, however, keeps Chenzira’s religious discrimination claims based on her veganism alive – at least for now.Hospitals and other health care employers have regularly defeated employee lawsuits challenging mandatory immunization policies, primarily because the employers have carefully crafted those policies to recognize religious and disability-based exceptions. We will continue to watch the Cincinnati Children’s case and let you know if veganism gets a shot in the arm from this federal court.

For questions regarding this update, please contact:
Kim C. Stanger
Holland & Hart, 800 W Main Street, Suite 1750, Boise, ID 83702
email: kcstanger@hollandhart.com, phone: 208-383-3913

This publication is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal or financial advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the author. This publication is not intended to create an attorney-client relationship between you and Holland & Hart LLP. Substantive changes in the law subsequent to the date of this publication might affect the analysis or commentary. Similarly, the analysis may differ depending on the jurisdiction or circumstances. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.