In March 2013, the U.S. Department of Justice (“DOJ”) settled the first lawsuit of its kind with a New Jersey medical school over claims that it violated the Americans with Disabilities Act (“ADA”) by excluding two Hepatitis B-positive applicants. The DOJ settlement was largely based on new guidelines issued by the Centers for Disease Control and Prevention (“CDC”) in 2012, which brought the existing 21-year-old policies in line with current medicine, and affirmed that HBV infection should not be cause for stopping or excluding providers from training or practicing in health care professions. The new CDC guidelines, in conjunction with the Justice Department settlement, have provided HBV-positive health professionals with a pair of powerful tools to combat discrimination.
"It gives us so much more leverage. We no longer have to wring our hands," said Joan Block, executive director and co-founder of the Hepatitis B Foundation, a nonprofit in Doylestown, Pa. (See Associated Press, “FEDS: Hepatitis B No Barrier to Health Practice”, May 5, 2013.)
The updated CDC guidelines make clear that “HBV infection alone should not disqualify infected persons from the practice or study of surgery, dentistry, medicine, or allied health field”; eliminates the requirement under the old policy to prenotify patients of a healthcare provider or student’s HBV status; clarifies what constitutes “exposure prone”; and leaves students off the hook completely. Practice may only be restricted if the provider has an HBV DNA titer above a safe practice threshold (which is determined by an expert panel) and performs exposure-prone invasive procedures (which includes, but is not limited to, abdominal surgery, orthopedic surgery, obstetrics, neurosurgery, catheter-based interventions, scope-based interventions, and most dentistry).
Relying heavily on the updated guidelines, the DOJ settlement represents the first case in which the Justice Department made clear that it considered chronic HBV infection a disability and would prosecute allegations of discrimination. In so doing, the DOJ has provided health care providers who have experienced HBV-related discrimination in the community, school, or the workplace a framework under which to seek recourse.
In light of these recent developments, there are very limited circumstances that warrant restrictions on HBV infected providers. In order to avoid potential ADA claims and allegations of discrimination, hospitals, facilities and other employers should develop appropriate policies to evaluate privilege and credential such providers accordingly.
