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Protecting Your Rights
As Someone Who Is HIV Positive -
The Law Working For You

You probably know that your rights as an HIV positive person are protected in the workplace by the Americans with Disabilities Act (ADA) that was passed by Congress in 1990. But, did you also know that the ADA goes beyond the workplace to protect you from discrimination in other places?

The ADA guarantees equal opportunity for individuals with disabilities—including persons with HIV —in public accommodations, employment, transportation, State and local government services, and telecommunications. So it reaches beyond employment to protect your rights.

In the nearly 26 years since the passage of the Americans with Disabilities Act (ADA), signed into law on July 26th, 1990, the Justice Department has vigorously enforced this landmark legislation to protect and advance the right of people with HIV to live free from discrimination.

In a statement released December 2nd of last year by the U.S. Department of Justice, Attorney General Loretta E. Lynch stated, "The Department of Justice is firmly committed to eradicating discrimination against people living with HIV/AIDS.  Such discrimination compromises our defining values, violates our founding ideals, and has a profound and deeply unfair impact on individuals who need and deserve our support.  That is why the Department of Justice is using every tool at our disposal and working collaboratively with partners across the federal government to make the ADA’s promise of equal access and equal treatment a reality for all Americans.”

The statement went on to say, for the roughly one million Americans living with HIV/AIDS, painful stigma and discrimination continue to permeate their daily lives.  We have an opportunity to celebrate the advances that allow people with HIV to live long and productive lives, to solidify our support for those living with HIV and to renew our fight against the spread of unfounded stereotypes and misinformation about this disease.

As proof that the Department of Justice (DOJ) is moving against companies and concerns that have discriminated against people who are HIV positive and not just giving lip service, the DOJ reached several meaningful settlements last year. Here are a few examples:

In one case, the DOJ reached a settlement with Genesis Healthcare System to resolve claims that Genesis discriminated against a woman with HIV in violation of the Americans with Disabilities Act (ADA).  Genesis operates a healthcare system that includes a hospital, a network of more than 300 physicians, and multiple outpatient health care centers throughout southeastern Ohio. 

Following an investigation, the department found that Genesis discriminated against a woman with HIV when one of its primary care physicians refused to accept her as a new patient because of her HIV status.  Genesis refused to accept her as a patient despite the fact that she was only seeking a general practitioner for medical care unrelated to HIV.  As a result, the woman had to seek medical treatment at the local emergency room for non-emergent health issues.  The department’s investigation revealed that it was this doctor’s practice to refer any patients with HIV seeking a primary care physician to an HIV specialist.

Under the settlement, Genesis Healthcare System agreed to pay $25,000 to the victim of discrimination, and $9,000 as a civil penalty.  In addition, it must train its staff on the ADA, develop and implement a non-discrimination policy, and report to the DOJ every time a person with HIV (or who is suspected of having HIV) is denied or discharged as a patient, with a written justification for the decision.

In a second case, the DOJ reached a settlement agreement last year with Dentex Dental Mobile, Inc. (DDMI) that it discriminated against a man because of his HIV status.

As part of its business, DDMI owns and operates several dental clinics, both fixed and mobile, throughout the Philadelphia area. DDMI provides support services to contracting dentists who pay a percentage of their fee for the support services.  The evaluation of each patient and all treatment decisions are the exclusive responsibility of each contracting dentist.

As a result of its investigation, the DOJ determined that on October 12, 2012, a man had an appointment at a DDMI mobile clinic stationed in Chester, PA.  He disclosed his HIV status in the patient paperwork, and he proceeded to have his teeth cleaned and five cavities filled by the contracting dentist on duty that day without incident.
On July 17, 2013, the man arrived for an appointment at the Chester Clinic in order to have a tooth extracted.  He experienced such pain in the tooth that he had previously visited a hospital emergency room on two occasions to be treated for the pain.

After disclosing his HIV status in the patient paperwork at the Chester Clinic, he was informed by the office manager that the extraction could not be performed.  The man was never evaluated or examined by the contracting dentist on duty that day.  After informing him that the contracting dentist could not extract his tooth due to his HIV status, the office manager gave him a piece of paper with a referral to an AIDS clinic for further assistance.  It was a matter of dispute whether the contracting dentist on duty that day refused to treat him or whether the office manager turned him away on his own.

Later that day, the general manager of DDMI called the man to apologize for what happened and suggested that he visit the Moyamensing Clinic the following day.

The following day, July 18, 2013, he went to the Moyamensing Clinic, and the contracting dentist on duty that day performed the tooth extraction without incident.
After receipt of the man's grievance, DDMI requested that the contracting dentist working on July 17, 2013 at the Chester Clinic prepare a statement of facts concerning what happened with regard to Complainant.  The dentist, although initially cooperative, eventually refused to prepare the statement of facts.  Therefore, DDMI and the dentist terminated their relationship.

The ADA protects someone with HIV in that a healthcare provider cannot refer a patient with HIV or AIDS to another provider simply because the patient has HIV or AIDS.  The referral must be based on the fact that the treatment the patient is seeking is outside the expertise of the provider, not the patient's HIV status alone.  

The DOJ determined that DDMI discriminated against the man on July 17, 2013 by initially denying him the services of DDMI on the basis of his HIV status.  However, DDMI did attempt to immediately remedy the violation by apologizing to the man and by treating him for his medical emergency the following day on July 18, 2013 at a DDMI-related facility.

Under the resulting settlement, the DOJ didn't institute any civil action but did order DDMI employees and contractors to not discriminate for HIV or any disability, ordered DDMI to develop a non-discrimination policy to be approved by the DOJ and make changes to their contracts with employees and independent contractors that “agrees to insure full compliance with the American with Disabilities Act by rendering dental services to the public without discriminating, in any manner, against any individual on the basis of any disability, including, but not limited to, infectious diseases such as AIDS, HIV, or any form of hepatitis.”  

These are just a couple of examples of how the law can work for you if you are HIV positive. If you feel that you’ve been a victim of discrimination because of your HIV status, don’t take it lying down and don’t wait too long to act, many discrimination issues have statutes of limitations and you could lose your rights.

If you need a place to start, begin with your local AIDS Service Organization (ASO). ASOs have a wealth of information, contacts and services to help you. Also try the U.S. Department of Justice’s ADA website at www.ada.gov and The American Civil Liberties Union (ACLU) at www.aclu.org. Search under “HIV discrimination.” 

If you consult an attorney make sure he or she has an HIV-related background. It’s best to get a referral from your ASO.


 

Copyright 2016, Positive Health Publications, Inc.

This magazine is intended to enhance your relationship with your doctor - not replace it! Medical treatments and products should always be discussed with a licensed physician who has experience treating HIV and AIDS!