By Chris Palamountain

In the past three weeks, the U.S. Department of Justice (DOJ) has announced settlements with three different health-service providers (of dentistry, pain management, eating-disorder treatment, and addiction treatment) concerning access to services for persons with HIV.  The DOJ pursued each settlement under its Barrier-Free Health Care Initiative, designed to enforce health care providers’ and facilities’ compliance with Title III of the Americans with Disabilities Act (ADA).  The Barrier-Free Health Care Initiative involves a partnership between the DOJ and 40 different U.S. Attorneys’ offices across the nation.  These partnerships significantly expand the DOJ’s ability to leverage its ADA enforcement activity.

Each of the underlying charges involve a health care provider’s alleged refusal to treat a patient with HIV under the same conditions that other patients were served.  For example, the Virginia dentist agreed to treat the complainant who had HIV, but required that he schedule future visits for the last appointment of the day.  Similarly, the pain center accepted a referral and made an appointment for the HIV-infected complainant, but the treating physician declined to treat the patient after discussing her back pain and prescription history.  The eating-disorder treatment center put the complainant on a waiting list for services, but then further delayed admitting her to the program while a payment agreement was worked out.  There was conflicting evidence of whether or not the patient’s mere status as an HIV-infected individual, as opposed to more specific concerns about the facility’s ability to provide medically-appropriate care, was the reason for the delay.  Moreover, at one point the complainant was told she could join the program so long as she traveled to a hospital for blood draws.  Ultimately, the complainant was offered “immediate admission” to the program without the hospital blood draw requirement.  She declined then filed her charge.

The settlement agreements require each provider to:

  • Prepare a DOJ-approved policy stating that the provider does not discriminate in the provision of services to persons with disabilities, including persons who have HIV;
  • Post the approved policy in the facility waiting area and on the provider’s webpage;
  • Provide DOJ-approved training to all employees on Title III, including training about HIV discrimination and the ADA;
  • Document compliance; and,
  • Submit to DOJ oversight of compliance with the settlement agreement for terms ranging between 3 and 4 years.

The settlement agreements also require that each provider pay the complaining parties damages ranging from $7,000 – $115,000, and civil penalties to the DOJ ranging from $3,000 – $25,000.

These settlements dodge the unnerving question of how to distinguish between a legitimate treatment decision and an unlawful failure to accommodate.  As noted in the “Findings” section of the eating-disorders treatment center settlement, the staff believed that the complainant “would receive more appropriate care in an in-patient facility due to her HIV.”  The settlement agreement does not explain if or how the DOJ determined that the care provider’s conclusion was pretextual and that appropriate care could be provided on an outpatient basis.  Providers making treatment decisions regarding HIV patients should, if those decisions vary from how patients without HIV are typically treated, think carefully about any medical basis for such variations.

The charges underlying these settlements are Woodlawn Family Dentistry, DJ No. 202-79-262 (Woodlawn Settlement); Castlewood Treatment Center, LLC, DJ No. 202-42-139 (Castlewood Settlement); Fayetteville Pain Center, DJ No. 202-54-141 (Pain Center Settlement); and, Glenbeigh, DJ No. 202-57-164 (Glenbeigh Settlement).