Contact: Ronda B. Goldfein, Esq. ▪ Executive Director
Phone: (215) 587-9377 ▪ Fax: (215) 587-9902
goldfein@aidslawpa.org ▪ www.aidslawpa.org

HIV-positive nursing assistant settles
employment-discrimination claim

PHILADELPHIA (March 23, 2012) — A national healthcare-staffing firm must change its ways and must pay $22,000 to an HIV-positive nursing assistant, under the terms of an employment-discrimination settlement announced today by the AIDS Law Project of Pennsylvania.

The nonprofit Philadelphia-based law firm and the U.S. Equal Employment Opportunity Commission had sued Pittsburgh-based Capital Healthcare Solutions for rescinding an employment offer to plaintiff D.B. of central Pennsylvania after learning he has HIV.

The company offered D.B. a job in September 2010, but rescinded its offer less than a month later because of his HIV status. In response to a question on a required medical-exam form asking if the applicant had any communicable diseases, D.B.’s doctor noted that he was HIV-positive but could perform the job.

The federal Americans with Disabilities Act and other federal and state laws prohibit discrimination on the basis of a real or even a perceived disability, including HIV.

As part of the settlement, Capital Healthcare Solutions agrees to not engage in discriminatory employment practices on the basis of disability, real or perceived; to provide mandatory employee trainings, and to develop internal policies and procedures to prevent future discrimination.

Capital Healthcare Solutions also agrees to pay $22,000 to D.B. — $20,000 as compensatory and punitive damages and $2,000 as back pay — although it has not admitted wrongdoing or liability.

“I’m happy the company finally settled this,” D.B. said. “They’re a health-care company. They should know about HIV and how it is transmitted, not through casual contact. They should have known better.”

Despite the federal and state legal protections for people with HIV in the workplace, occupational-licensing requirements – such as those governing certified nursing assistants – have been a source of confusion to prospective employers and others. This confusion places HIV-positive applicants, seeking jobs for which state licensing is required, at great risk of discrimination.

In Pennsylvania, occupational-licensing requirements prohibit the employment of anyone with an “infectious, contagious and communicable disease,” although those terms are used inconsistently and imprecisely. Seeking to prevent discrimination in the 50 professions and occupations governed by occupational-licensing requirements, the AIDS Law Project has worked with the Pennsylvania Department of State to clarify the requirements. As a result of the AIDS Law Project’s efforts, the Department of State issued a clarification in January 2011, specifically excluding HIV as an infectious, communicable or contagious disease, “because it is not transmitted through casual contact or through the usual practice of the profession or occupation for which a license is required.”

A copy of the consent decree can be found by clicking here and the Pennsylvania Department of State Occupational Licensing Statement is available by clicking here.

D.B. was represented by Ronda B. Goldfein, Esq., and Matt Mossman (J.D. expected 2012) of the AIDS Law Project of Pennsylvania, and by Lisa H. Hernandez, Senior Trial Attorney of the EEOC.

Capital Healthcare Solutions was represented by Dinsmore & Shohl LLP.

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The AIDS Law Project of Pennsylvania is a nonprofit, public- interest law firm, serving the legal needs of those affected by HIV/AIDS and their families. Founded in 1988, and now with a staff of 12, the organization has helped more than 32,000 people free of charge. The agency also educates the public about AIDS-related legal issues, and works at local, state and national levels to achieve fair laws and policies.

In refusing to consider Abraham for enrollment based on his HIV status, we believe the school violated multiple anti-discrimination laws that protect the rights of people with HIV to remain free from unwarranted discrimination.

The school claims that Abraham is a direct threat to school because of his HIV.  The school according to public statements “believes that the risk of transmission of HIV to other students through sexual conduct meets the standard of a direct threat to the health and safety of others that cannot be mitigated through reasonable modifications to its policies, procedures and practices.’

These documents below are publicly available through PACER http://www.paed.uscourts.gov/us01001.asp services -of U.S. District Court, Eastern District of Pa. http://www.paed.uscourts.gov/.

Abraham Smith and Mother Smith’s Complaint (filed 11/30/ 2011)

Abraham Smith and Mother Smith’s
First Amended Complaint (filed 1/20/12)

Milton Hershey School’s Motion to Transfer (filed 1/28/2012)

Milton Hershey School’s Answer with Affirmative
Defenses to Amended Complaint and Counter-claim
for Declaratory Judgement (filed 2/3/2012)

Abraham Smith and Mother Smith’s Memorandum of Law
in Opposition to Defendant’s Motion to Transfer Venue to the
Middle District of Pennsylvania (filed 2/13/2012)

Abraham Smith and Mother Smith’s Answer with Affirmative Defenses to Defendant’s Counterclaim for Declaratory Judgement (filed 2/27/2012)

If you are in a Medical Assistance managed care plan and your plan adopts the 6 prescription limit, it must notify you by letter, 30 days before the change.

As of this writing (3/1/12), United Healthcare implemented prescription limits on 3/1/12 and UPMC for You has a target implementation on 5/1/12. Keystone, Amerihealth, and Gateway will implement the limits but do not yet have target dates.  Aetna, Coventry Cares, and Health Partners still don’t have plans to implement the limit.

Drugs to treat HIV/AIDS are not subject to this 6 prescription limit because they are covered by an “automatic exception.”  Many other types of drugs are also covered by automatic exceptions. (Please see the Pennsylvania Health Law Project’s Fact Sheet for the complete list). This means that, if possible, you should try to have prescriptions that are not covered by automatic exceptions filled early in the month and prescriptions that are covered by automatic exceptions filled later in the month.

If you are unable to fill a prescription because of this limit, you can ask your doctor to request an exception for that prescription.  Your pharmacist can also provide a 5 day emergency supply.

For more information, click here for the Pennsylvania Health Law Project’s Fact Sheet or here for the Department of Public Welfare’s Bulletin on the Pharmacy Benefit Package Change.

Last year, the AIDS Law Project of Pennsylvania scored a huge victory for the client: After a two-day public hearing, the Pennsylvania Human Relations Commission (PHRC) issued a decision awarding our client $50,000 plus interest, and ordered the personal care home to implement a non-discrimination policy. The personal care home remained adamant they had done nothing wrong and appealed the decision.

Now, the Commonwealth Court of Pennsylvania has issued an opinion affirming the PHRC’s decision in all respects.

In a forceful, published opinion, the Commonwealth Court also awarded delay damages and attorneys fees assessed against both the defendant and their counsel. Specifically, the Court held that the appeal had no basis in fact or law and was taken only to delay payment to our client.

Sarah Schalman-Bergen, of counsel to the AIDS Law Project and associate at Berger & Montague, P.C., was co-counsel on this case.

For more, see stories on the ruling in The Morning Call newspaper here:
http://www.mcall.com/news/local/mc-northampton-hiv-canal-side-appeal-20111024,0,1020972.story

And in the Pennsylvania Law Weekly here:
http://www.aidslawpa.org/wp-content/uploads/2011/11/
Legal-Inteliigencer-article.pdf

The opinion can be read here:
http://www.courts.state.pa.us/OpPosting/Cwealth/out/2459CD10_10-20-11.pdf

Harnessing the support of then-Gov. Ed Rendell, the AIDS Law Project was able to get a decades-old policy statement updated in January to specifically exclude HIV as a disease that would bar people from being employed or accepted for job training.

Nearly 30 state licensing boards had been bound by language that could create roadblocks for people with “infectious,” “contagious” and “communicable” diseases.

“The state regulations were using those terms interchangeably, without definition and without recognizing that HIV is not transmitted in a workplace,” said Executive Director Ronda B. Goldfein, Esq. “The new statement clarifies that those terms are not to be applied to people with HIV, thereby protecting them from job discrimination.”

The licensing policy covers dozens of jobs and professions in Pennsylvania, including: barbers, cosmetologists, pharmacists, nurses, nursing assistants, physical therapists, podiatrists and optometrists.

The AIDS Law Project’s effort to clarify the policy stemmed from a 2006 case in which an HIV-positive client had been denied admission to a cosmetology school that interpreted the state’s rules as barring him from taking a licensing exam. As part of the successful resolution of that case, the state cosmetology board issued a statement that its licensing requirements should not exclude people with HIV.

A recent case in which a nursing assistant faced a similar roadblock, prompted the AIDS Law Project to push to clarify the state’s umbrella policy governing all licensing boards.

Rendell supported the policy update after Goldfein conferred with then-Commonwealth Secretary Basil Merenda in a meeting arranged by Michael Marsico, then-deputy director of the governor’s office. Former AIDS Law Project staffer Patrick J. Egan, now assistant professor of politics and public policy at New York University, served as an adviser to Goldfein during the process.

“The new policy makes Pennsylvania consistent with federal law,” said Merenda. “Now, people who have an HIV disability can pursue the professions they want to work in, that they have the experience and qualifications to be licensed in.

“They can be productive members of society and help people, as well as achieve their own dreams.”

The new policy statement posted on the website of the state’s Bureau of Professional and Occupational Affairs, now spells out that the “the Bureau, in accordance with the ADA and the guidance from the United States Department of Justice, has determined that, for the purposes of administering the professional and occupational licensing laws over which it or any of its 29 licensing Boards have jurisdiction, the terms  ‘infectious disease,’ ‘communicable disease’ or ‘contagious disease’ do not include diseases, such as HIV, that are not transmitted through casual contact or through the usual practice of the profession or occupation for which a license is required.”

The Bureau’s full statement can be on the Department of State’s website. http://www.dos.state.pa.us/portal/server.pt/community/licensing/12483