Summary

The DOJ has concluded that two medical schools had no lawful basis for excluding applicants who had active cases of Hepatitis B because they could not show that these individuals posed a direct threat to the health and safety of others. The decision may have significant ramifications for higher education institutions, hospitals and other medical providers.

When the U.S. Department of Justice announced its recent ADA settlement with the University of Medicine and Dentistry of New Jersey (UMDNJ) it wanted to send a message to public and private Higher Ed institutions that "excluding people with disabilities from higher education based on unfounded fears or incorrect scientific information is unacceptable." The DOJ could easily have directed this message to all heath care providers, because this settlement involving two applicants with Hepatitis B is just the latest case, many involving health care providers, where DOJ has pursued claims on behalf of individuals who have been denied access to services because they were HIV-positive or had other medical conditions.

This March 5, 2013 settlement is particularly important to Higher Ed institutions, hospitals and other medical providers for two other reasons: (1) this is the first ADA settlement ever reached by DOJ on behalf of people with Hepatitis B (HBV) and (2) this appears to be the first time DOJ has said that covered entities can legally limit participation of health care practitioners with bloodbourne illnesses (HBV) in certain types of medical procedures, based upon viral load, if you follow current guidance from public health officials. The lessons from this settlement apply as well to any public entity covered under ADA Title II and to places of public accommodation covered under ADA Title III.

What Happened

What is known about the facts and the defenses is what is in the Settlement Agreement and DOJ's press release. In 2011, two individuals applied to, were offered and accepted admission to the UMDNJ School of Osteopathic Medicine, and one of them was also accepted to the UMDNJ School of Medicine. Both individuals submitted required medical and immunization forms that showed they had HBV. UMDNJ later rescinded both offers, but gave both applicants a one-year deferral option.

DOJ noted in its press release that both of the applicants came from the Asian American Pacific Islander community which, according to the CDC, makes up less than five percent of the total population in the United States, but accounts for more than 50 percent of Americans living with chronic HBV. Most of those individuals contracted HBV during childbirth.

UMDNJ said that it convened its standing HBV committee of medical experts to consider if the two applicants could, in light of their extremely high viral loads, safely perform the essential functions of a medical student without posing a direct threat to others. That committee concluded that the applicants would pose a direct threat to others. UMDNJ conceded during the investigation that this decision was based on the erroneous impression that students in both schools were required to perform "exposure-prone invasive procedures" as those terms were used in then-current guidelines of the Centers for Disease Control and Prevention (CDC). UMDNJ says it offered deferral in the hope that with medical treatment the applicants' viral loads of HBV would reduce below the level of a direct threat.

The "direct threat" defense has a long history that dates to case law under the Rehabilitation Act. The burden is on the entity raising this defense to show that there is a significant probability of serious harm to others that cannot be reduced through reasonable accommodations. Factors to be considered include the imminence, likelihood and severity of the risk. The determination of a direct threat must be made based upon objective medical evidence, and significant weight is accorded to the conclusions of public health officials.

DOJ's Findings

The DOJ concluded that the two schools had no lawful basis for excluding the applicants and could not show that these individuals posed a direct threat to the health and safety of others. The first reason, which UMDNJ admitted, is that the students at these schools were not required to perform invasive surgical procedures. Therefore, even under the older guidance that UMDNJ was using, the applicants should have been admitted.

The other reason DOJ gave in its press release is that the exclusion of these applicants contradicted the CDC's July 2012 "Updated Recommendations for Preventing Transmission and Medical Management of Hepatitis B Virus (HBV) – Infected Health Care Workers and Students." Among the CDC's findings was that no transmission of HBV from primary care providers, clinicians, medical or dental students, residents, nurses, or other health care providers to patients has been reported in the United States since 1991.

Higher Ed institutions, medical providers and other covered entities should note that the CDC's 2012 guidance was issued a year after the challenged admissions decisions. DOJ and the courts have placed a heavy burden on covered entities to show that individuals pose a direct threat. In cases involvingHBV, HIV and other communicable diseases, one important factor is whether there is evidence of a significant number of cases of transmission in a particular setting. With bloodbourne illnesses, covered entities must also address why Universal Precautions are not sufficient to address the risk. It appears that DOJ concluded the CDC's July 2012 guidelines reflected what was already accepted medical science.

Remedies

UMDNJ took action to mitigate the claims during the DOJ's investigation, so by the time of the settlement both applicants had been offered admission and one had been enrolled since August 2012. UMDNJ was ordered to pay each $20,000 and provide $17,500 in tuition credits to each of the applicants. DOJ did not impose any civil penalties on UMDNJ. While no explanation was given, this typically occurs when DOJ finds that a covered entity acted in good faith during the investigation, and acted in good faith and reasonably (even if in error) in its original decision.

Non-Discrimination and Viral Load

UMDNJ was ordered not to discriminate on the basis of disabilities, including HBV, in admission or other activities. The Settlement Agreement provides, however, that UMDNJ students with HBV viral loads of more than 5,000 genome equivalents per milliliter of blood can be legally prohibited from participating in any "Category I procedures" as defined by the new CDC guidelines. If UMDNJ decides to impose such restrictions, those students cannot face any resulting adverse action on their grades or evaluations of academic or clinical performance.

DOJ's Message to Higher Education Institutions

DOJ has limited resources. Each year numerous ADA complaints are sent to mediation (usually involving physical barriers at a single site) or not pursued. When DOJ chooses to investigate or pursue a claim, it is usually because the issue is on its priorities list or DOJ wants to send a message to a particular industry. In the DOJ's press release, Thomas E. Perez, Assistant Attorney General for the Civil Rights Division, sent the clear message that, "Excluding people with disabilities from higher education based on unfounded fears or incorrect scientific information is unacceptable." The U.S. Attorney for the District of New Jersey, Paul Fishman, added, "It is especially important that a public institution of higher learning – especially one with a mission to prepare future generations of medical professionals – strictly follow the laws Congress has enacted to protect from discrimination those people who have health issues."

Claims of Denial of Services Are a DOJ Priority

One of DOJ's current priorities is cases involving denial of services, especially involving HIV and now HBV. Last year DOJ settled a highly publicized case involving admission of a student with HIV to the private Milton Hershey School. (Saul Ewing defended the school in that case). Earlier in March, DOJ settled a case with an Alexandria, VA dentistry practice involving a decision to only treat a patient with HIV at the end of the day. Any complaint that a person has been denied admission to or access to the goods or services of a public or private entity, based solely on a medical condition, is likely to be made a priority case by DOJ for investigation.

Lessons for Hospitals, Health Care Providers and Others on Direct Threat

Another lesson from this and recent settlements is that DOJ will not defer to the judgment of medical providers on what is a direct threat to health and safety, especially when the conclusion is contrary to the most current literature and guidance of the CDC or other public health authorities. Covered entities that rely on older guidance do so at their own risk. On the other hand, where CDC and other authorities have found that there is a significant risk of transmission in certain settings, DOJ will defer to those conclusions under the direct threat standard. For more information regarding compliance with ADA Title II and III, Section 504 or similar laws prohibiting disability discrimination for any type of business, institution, association or public entity, or to learn about Saul Ewing's Higher Education Practice, contact Robert Duston at rduston@saul.com.