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Legal Issues for an Aging HIV Population. Presented by Legal Action Center. Who is your trainer?. Sally Friedman, Esq. Legal Director Legal Action Center. Who is the Legal A ction C enter?. Non-profit law & policy organization Anti-discrimination & privacy work Substance Use Disorders

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Legal Issues for an Aging HIV Population


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    legal issues for an aging hiv population

    Legal Issues for an Aging HIV Population

    Legal Action Center

    Presented by Legal Action Center

    who is your trainer
    Who is your trainer?

    Sally Friedman, Esq.

    Legal Director

    Legal Action Center

    Legal Action Center

    who is the legal a ction c enter
    Who is the Legal Action Center?
    • Non-profit law & policy organization
    • Anti-discrimination & privacy work
      • Substance Use Disorders
      • HIV/AIDS
      • Criminal Records

    Legal Action Center

    how to get help
    How to get help?
    • Legal Action Center website has many resources!
      • www.lac.org
      • Free publications, free webinars and more
    • Call the Legal Action Center with questions about privacy or discrimination relating to HIV/AIDS, substance use disorders, and/or criminal records – ask for paralegal or attorney-on-call
      • (212) 243-1313
    • Refer clients (see next slide)

    Legal Action Center

    free legal services
    Free Legal Services

    Including –

    • HIV testing & confidentiality
    • Discrimination based on:
      • HIV status
      • Alcohol/drug history
      • Criminal record –
        • Rap sheet review and error correction
        • Certificates of Relief and Good Conduct
        • Job & housing discrimination

    Legal Action Center

    like us follow us
    Like us & Follow us!

    Visit LAC on Facebook:

    https://www.facebook.com/pages/Legal-Action-Center/117162234980967

    And

    Twitter: https://twitter.com/lac_news

    Legal Action Center

    why are you here
    Why are you here?
    • Majority of persons with HIV will be at least 50 by 2015
    • Unique barriers to care --
      • other diseases,
      • stigma & isolation,
      • care providers that historically have not provided care to HIV+ population -- maybe some of you!

    Legal Action Center

    today s training
    Today’s Training
    • Legal issues for older NY’ers with HIV. By the end of the training, you will be able to:
      • Explain basic purposes of living wills, health care proxies& powers of attorney.
      • State whether HIV-positive individuals can buy life insuranceand any limitations.
      • Recite basic non-discrimination rules for nursing homes & other long-term care.
      • State basic confidentiality protections for HIV-positive persons living in nursing homes or other institutional settings.

    Legal Action Center

    today s handouts
    Today’s handouts
    • This PowerPoint presentation
    • Health Care Proxies Q&A
    • Living Wills Q&A
    • Sample Health Care Proxy form
    • Sample Living Wills (two)
    • Sample Appointment of Agent to Control Disposition of Remains

    Legal Action Center

    today s hand outs
    Today’s hand-outs
    • Are You Somebody With…
    • HIV/AIDS Testing, Confidentiality & Discrimination: What You Need to Know About New York Law.
            • Also available at www.lac.org (free publications/HIV)

    Legal Action Center

    who can make health care decisions generally
    Who can make health care decisions generally?
    • From age 18, people make own health care decisions if have “capacity to consent.” Means able to:
        • Understand and appreciate nature and consequences of proposed treatment or diagnosis, including
          • benefits and risks
          • possible alternatives (including not doing it)

    AND

        • Make an informed decision about whether to consent to proposed test, procedure, or treatment.

    Legal Action Center

    who can make health care decisions generally1
    Who can make health care decisions generally?
    • But who makes health care decisions if someone does not have capacity to consent?
      • Temporary incapacitation (e.g., accident, illness, surgery) – regardless of age
      • Permanent condition (e.g, dementia, coma, persistent vegetative state)

    Legal Action Center

    who can make health care decisions generally2
    Who can make health care decisions generally?
    • Options
      • Health care proxy
      • DNR
      • Living Will
      • Surrogate decision maker
      • Court-appointed guardian
      • Power of attorney does not have health care decision making authority!

    Legal Action Center

    health care proxy
    Health care proxy
    • What is a Health Care Proxy (HCP)?
      • Form that allows you to choose someone else to make health care decisions in the event you cannot make your own (you lack capacity).
      • “Principal” – person choosing someone else to make decisions. “Agent” – person who gets decision making authority.
      • See sample form.

    Legal Action Center

    health care proxy1
    Health care proxy
    • Can agent decide everything?
      • Can give agent authority for all or some health care decisions. If not expressly limited, agent has all authority, including authority to consent to HIV test/treatment and to disclosures of HIV-related and other health information
      • But agent will not have authority to make decisions about artificial hydration and nutrition unless proxy says so.

    Legal Action Center

    health care proxy2
    Health care proxy
    • What if principal regains capacity to consent?
      • Agent loses authority.
    • Attending physician decides if principal regains capacity, but in some circumstances, must consult with a specialist.

    Legal Action Cenrr

    health care proxy3
    Health care proxy
    • Who signs proxy?
      • Signed by principal and two witnesses (agent cannot be witness). Doesn’t need to be notarized.
      • How know if principal is competent to sign?
        • Adults are presumed “competent” to appoint a health care agent unless adjudged incompetent or the court appointed a guardian.

    Legal Action Center

    health care proxy4
    Health care proxy
    • Who can/should be an agent?
      • Anyone over age 18.
      • Do not need to name spouse. If name spouse, agency ends if divorce or separation.
      • Can choose a doctor if not your treating physician.
      • May also choose alternate.
      • Doesn’t have to live in NY, but good idea to name someone nearby.

    Legal Action Center

    health care proxy5
    Health care proxy

    Is it forever? Can you take it all back?

    • Good forever unless revoked or change by operation of law (e.g., divorce/spouse is agent).
    • Can change or cancel directives any time.
      • Destroying a document cancels it.
      • Executing a new document cancels the first one.
    • Good to review every 5years or after major life event (divorce, death or incapacity of an agent).
    • Always tell people about changes. Best to get documents back.

    Legal Action Center

    health care proxy6
    Health care proxy
    • How will your doctor know about your health care proxy if you don’t remember or can’t communicate?
    • Make copies and give to –
      • All medical care providers (will put in medical record).
      • Agent
      • Attorney
      • Friends/family
    • Keep the original in a safe place, anywhere but in a safe deposit box where no one will find it.

    Legal Action Center

    health care proxy7
    Health care proxy
    • What about HCPs done in other states?
    • Doctors in NYS should honor it as long as it complies with NY law.

    Legal Action Center

    do not resuscitate orders dnr
    Do Not Resuscitate Orders (DNR)
    • What is a DNR?
      • Document, usually put in medical chart, that instructs medical professionals to not perform CPR, emergency treatment, in the event breathing stops.
      • Applies to mouth-to-mouth resuscitation, chest compression, electric shock, insertion of tube into your airway, injection of medication or the opening of your chest.

    Legal Action Center

    do not resuscitate orders dnr1
    Do Not Resuscitate Orders (DNR)
    • Capacity presumed. Like HCPs, patients are presumed to have capacity to decide about DNR orders. Determinations to the contrary must be “to a reasonable degree of medical certainty.”
    • Signature/witnesses - Competent adult may consent (i) orally before 2 witnesses (one being physician from hospital), or (ii) in writing witnessed by two people 18 years or older.
    • Revocation – May revoke consent any time by oral or written declaration to physician or nursing staff, or by other act evidencing specific intent to revoke (e.g., purposefully removing DNR bracelet in front of doctor or nurse). Doctor must then immediately record revocation in medical record.

    Legal Action Center

    living wills
    Living Wills
    • What is a living will?
      • Document with your instructions for health care interventions you do and do not want when/if you no longer have capacity.
      • Provides “clear and convincing evidence” of your intent, as required by case law. Not a creature of statute.
      • Good to have living will to guide agent designated in health care proxy.

    Legal Action Center

    living wills1
    Living Wills
    • Why need a living will if have HCP?
        • Good to have living will to guide agent designated in health care proxy.
    • Why need a HCP if have living will?
      • Gray areas likely will emerge. Good to have a person you trust to make those hard calls.

    Legal Action Center

    living wills2
    Living Wills
    • See samples (two) in hand-outs.
    • Compare Legal Action Center form – different options depending on person’s condition - with streamlined form from courts.
    • See Q&As in hand-outs.
    • Can refuse any type of treatment.
    • Should discuss with a doctor.

    Legal Action Center

    living wills3
    Living Wills
    • Revocable?
      • Yes, as with HCP. Can tear it up, write a new one. But remember to tell your agent.
      • Give a copy to agent if have an HCP.
      • Give copy to doctor.
    • Need lawyer?
      • No. Just two witnesses 18 or older who can say you were of sound mind when signed.

    Legal Action Center

    organ tissue donation
    Organ/tissue donation
    • Can you include organ/tissue donation in a living will?
      • Yes. Form from courts includes it.
    • HCP also can authorize organ/tissue donation.

    Legal Action Center

    cremation burial
    Cremation & burial
    • Can be in a will (not living will) – but wills may not be discovered immediately after death.
    • May permit agent to control dispositions of remains. (Public Health Law § 4201)
    • See sample form (Appointment of Agent to Control Disposition of Remains) in hand-outs or at…

    https://www.health.ny.gov/professionals/funeral_director/docs/control_disposition_of_remains.pdf

    Legal Action Center

    surrogate decision maker
    Surrogate decision maker

    Family Health Care Decisions Act (FHCDA)

    • If mentally incapacitated in hospital or residential care facility… (includes nursing home)
    • Health care decisions can be made by “surrogate.”
    • Attending physician decides if patient lacks capacity (in some circumstances, may need to consult with another medical professional)
    • Must document.

    Legal Action Center

    surrogate decision maker1
    Surrogate decision maker
    • Who can be a surrogate?
      • Use the order on this list (depending on availability):
        • Guardian authorized by court to make such decisions
        • Spouse (if not legally separated) or domestic partner
        • Son or daughter (18 years or over)
        • Parent
        • Sibling (18 years or over)
        • Close friend
      • Person whose relationship is highest can designate someone at any other level if no one higher objects (e.g., spouse can designate sibling).

    Legal Action Center

    surrogate decision maker2
    Surrogate decision maker
    • What if no one on the list is available?
      • FHCDA allows (doesn’t mandate) physicians to make any type of health care decision without going to court.
      • Law sets out different procedures depending on whether the medical treatment is routine or major, or involves withholding/withdrawing life-sustaining treatment.

    Legal Action Center

    surrogate decision maker3
    Surrogate decision maker
    • Surrogate must make decisions in accordance with patient’s wishes.
    • Surrogate can make any type of health care decision, including whether to withhold or withdraw life-sustaining treatment.
    • More information on FHCDA & HIV from DOH:

    http://www.health.ny.gov/diseases/aids/providers/regulations/fhcda/ai_fact_sheet.htm

    Legal Action Center

    court appointed guardian
    Court-appointed guardian

    Article 81 of the NYS Mental Hygiene Law

    • Court may appoint a guardian if
      • necessary to provide for personal needs and/or manage property & financial affairs, and
      • person agrees or is incapacitated.
    • Based on concept of the least restrictive alternative -
      • appropriate to satisfy needs of incapacitated person, but also
      • Tailored/limited to activities needing assistance.

    Legal Action Center

    powers of attorney
    Powers of attorney
    • “Principal” gives “agent” (at least one) authority to make decisions non-medical decisions.
      • Powers can include banking & real estate transactions, taxes, personal & family matters and more.
      • See sample. http://www.nyc.gov/html/dhs/downloads/pdf/poa_ny_short_form1_%20082010.pdf
    • “Durable” POA -- authority survives principal’s incapacity. (Otherwise, it won’t.) Durable POAs expire upon death of grantor, unless revoked earlier.

    Legal Action Center

    powers of attorney1
    Powers of attorney

    BE CAREFUL!!!

    • Appoint someone you trust.
    • Authority commences as soon as POA is signed by principal and agent (need notary). Agent can empty your bank account if you give that authority.
    • Agent does not need to ask principal first.
    • Principal does not lose authority.
    • Can execute but leave it with attorney or some other person, with instructions to turn it over to agent at an appropriate time.

    Legal Action Center

    powers of attorney2
    Powers of attorney

    Details…

    • To use the POA, agent should take original & copies to place where power will be used (e.g., bank).
    • To revoke -- deliver written revocation to agency. Also serve revocation on financial institutions with which agent has interacted.

    Legal Action Center

    slide40

    HEALTH INSURANCE

    Legal Action Center

    health insurance hiv aids
    Health Insurance: HIV/AIDS

    HIV/AIDS

    • People in the U.S. cannot be denied health insurance simply because they have HIV /AIDS (or any other illness).
    • People in the U.S. cannot be charged a higher health insurance premium simply because they have HIV or AIDS (or any other illness).
    • Rights per Affordable Care Act (were in NYS law already)

    Legal Action Center

    health insurance substance use disorders
    Health Insurance: Substance Use Disorders

    Mental Health Parity & Addiction Equity Act (“Parity Law”)

    • Applies to employer-sponsored health insurance plans with 50+ employees.
    • Plans are not required to offer mental health or addiction benefits, but if they do, must offer them at “parity” with medical/surgical benefits
    • What does this mean?
      • Same co-pays, deductibles, annual & lifetime caps
      • Cannot medically manage mental health/addiction benefits more stringently than medical/surgical
      • If medical/surgical has out-of-network benefits, mental health/addiction must too

    Legal Action Center

    health insurance substance use disorders1
    Health Insurance: Substance Use Disorders

    “Parity Law”, cont…

    • For more information, see Parity Implementation Coalition website:
      • http://parityispersonal.org/
      • Can report violations of the Parity Law to this coalition
    • Also see SAMHSA’s parity website:
      • http://beta.samhsa.gov/health-reform/parity?from=carousel&position=1&date=10282013
    • This law is in effect now!

    Legal Action Center

    health insurance generally
    Health insurance: Generally

    Before 2014

    Since Jan. 1, 2014

    • Plans could refuse to accept, or charge higher premiums to, people/employers with higher health costs
    • Plans must accept everyone, regardless of health status
    • Policy can only be cancelled for failure to pay premiums

    Legal Action Center

    health insurance generally1
    Health insurance: Generally

    Before 2014

    Jan. 1, 2014

    • Insurer could refuse to cover a person with a pre-existing condition (“P.E.C.”), or refuse to cover costs related to P.E.C.
    • Insurers cannot deny coverage based on pre-exiting condition
    • Insurer cannot refuse to pay for treatment for a particular condition simply because person had the condition before joining the plan

    Legal Action Center

    health insurance generally2
    Health insurance: Generally

    Before 2014

    Since Jan. 1, 2014

    • Insurers could charge higher premiums based on health status, health care utilization, and more (called “rating”)
    • Insurers may not charge higher premiums based on health status, health care utilization, or gender
    • May charge higher premiums based on age, geographic area, and tobacco use

    Legal Action Center

    health insurance generally3
    Health insurance: Generally

    Before 2014

    Since Jan. 1, 2014

    • Employer-based health plans were not required to cover specific types of benefits (e.g., mental health and substance use disorder)
    • All small employer plans must provide “essential health benefits” (EHB) including mental health & substance use and chronic disease management
    • Parity Law applies
    • EHB cannot be designed in way that discriminates based on disability, life expectancy, or age

    Legal Action Center

    health insurance generally4
    Health insurance: Generally

    Before 2014

    Since Jan. 1, 2014

    • Very few anti-discrimination or other protections in individual and small group insurance market
    • Health insurance “exchanges” set up
    • Plans sold on exchanges must have adequate networks
    • Networks must include “essential community providers” (includes Ryan White grantees, federally qualified health centers, etc.)

    Legal Action Center

    health insurance generally5
    Health insurance: Generally
    • For information on upcoming changes under health care reform:
      • Federal government’s website on health care reform:

    http://www.healthcare.gov/

      • NY State’s website on health care reform:

    http://www.healthcarereform.ny.gov/

      • Coalition for Whole Health (focus on mental health and substance use disorders):

    http://www.coalitionforwholehealth.org/

    Legal Action Center

    health insurance generally6
    Health insurance: Generally
    • To buy health insurance on the New York exchange:

    Official Health Plan Marketplace website: https://nystateofhealth.ny.gov/

    Legal Action Center

    insurance issues
    Insurance issues

    LIFE INSURANCE

    &

    DISABILITY INSURANCE

    Legal Action Center

    life disability insurance
    Life & Disability Insurance

    Life & Disability Insurance Companies May:

    • Require applicants to be tested for HIV, but must:
      • Tell applicants they will be tested
      • Provide applicants with general information
      • Have applicant sign a consent form

    Legal Action Center

    Cont….

    life disability insurance1
    Life & Disability Insurance

    Life & Disability Insurance Companies May:

    (cont….)

    • Ask applicants about illnesses with which they have been diagnosed, including HIV.
    • Deny coverage or charge higher premiums for people with certain illnesses, such as HIV.
    • Require people with certain illnesses, such as HIV, to go through a waiting period before coverage begins.

    Legal Action Center

    life insurance
    Life insurance

    Can someone with HIV obtain life insurance?

    • Sometimes.
      • A few life insurance companies will issue limited amounts of life insurance to HIV+ individuals.
      • Typical benefits range from $5,000 to $15,000.
      • “Guaranteed life insurance” companies” -- offer insurance that is not medically underwritten” -- no medical exam required.

    Legal Action Center

    life insurance1
    Life insurance
    • Possible sources of life insurance without medical underwriting:
      • New York Life through AARP for individuals eligible for AARP, up to $15,000
      • Mutual of Omaha - up to $10,000
      • Physician's Life - up to $10,000
      • Gerber Life - limited amounts ($5,000 - $10,000)
      • Farmers
      • Guaranteed Trust Life Insurance Company

    Legal Action Center

    life insurance2
    Life insurance
    • Viatical settlements.
      • Can sell your life insurance for an amount much less than the death benefit.
    • Accelerated benefits.
      • If very sick & likely to die within short time, get a smaller amount than death benefit.

    Legal Action Center

    life insurance3
    Life insurance
    • Employer plans
      • Many employer plans include an automatic life insurance policy up to a certain percentage of an employee's wages on a group basis without underwriting or any qualifying process.
    • Social security survivor benefits

    Legal Action Center

    life disability insurance2
    Life & Disability Insurance

    For more information:

    • New York State Insurance Department at

    1-800-342-3736

    • www.thebody.com (insurance and much more)

    Legal Action Center

    burial insurance
    Burial insurance
    • Life insurance can be used to pay for burial/funeral expenses, or
    • Can buy burial insurance: burial & funeral expenses only.
    • Can buy through broker or ask NYS Insurance Department for list.
    • Usually costs more for same benefit a life insurance.
    • Sometimes ask health-related questions, sometimes don’t. Can affect cost or length of coverage.

    Legal Action Center

    3 discrimination
    3. Discrimination

    Legal Action Center

    what is discrimination
    What is Discrimination?

    Treating a person less favorably/differently because of his or her STATUS…

    … when the law does not permit it.

    Examples: race, age, disability, gender, religion, sexual orientation, marital status.

    Legal Action Center

    discrimination is
    Discrimination is….
    • Examples of discrimination:
      • Adult day care program has a policy of not admitting people who are HIV+.
      • Doctor’s office refuses to treat a man for his broken leg because he has a history of drug addiction.
      • Landlord will not rent to woman because she is in recovery from alcoholism.

    Legal Action Center

    discrimination is not
    Discrimination is not…
    • Anti-discrimination laws require employers & others to:
      • Look at each person individually, on a case-by-case basis.
      • Not make generalizations and rely on stereotypes and about a person based on his/her status (e.g., based solely on the fact that the person has a disability).

    Legal Action Center

    discrimination is not1
    Discrimination is not…

    Treating a person less favorably/differently because of his or her CONDUCT.

    Legal Action Center

    discrimination is not2
    Discrimination is not…
    • Examples of non-discriminatory action:
      • Employer fires employee who caused workplace accident because he was under the influence of alcohol or drugs.
      • Group residence discharges/evicts someone because of continuous rule violations -- even if the individual has disability.

    Legal Action Center

    today s presentation discussion
    Today’s Presentation/Discussion

    Focuses on discrimination in …

    • Places of public accommodation:
      • Health care providers/facilities
      • Nursing homes
      • Long term care facilities
    • Housing -- included assisted living & seniors’ residences

    Legal Action Center

    today s presentation discussion1
    Today’s Presentation/Discussion

    Focuses on discrimination because of …

      • HIV/AIDS
      • Substance Use Disorder
      • Viral Hepatitis
    • But… some of the same laws prohibit discrimination due to sexual orientation.
    • For more info on LGBTQ discrimination:
      • LGBT Aging Center, http://www.lgbtagingcenter.org
      • Lambda Legal, http://www.lambdalegal.org/

    Legal Action Center

    laws prohibiting discrimination
    Laws prohibiting discrimination…

    FEDERAL LAWS

    • Americans with Disabilities Act (“ADA”)
    • Rehabilitation Act of 1973 (“Rehab Act”)
    • Fair Housing Act
    • Workforce Investment Act
    • Family and Medical Leave Act

    STATE & CITY LAWS

    • New York State Human Rights Law
    • New York City Human Rights Law

    Legal Action Center

    laws prohibiting discrimination1
    Laws prohibiting discrimination…

    What do these federal, state, and city laws do?

    • Together, prohibit discrimination by at least:
      • Private employers with 4 or more employees
      • State and local government agencies
      • Workforce development programs funded by the federal government
      • Places of public accommodation:
        • Doctors’ offices & other health care providers and facilities
        • Social service facilities (e.g., homeless shelter, adult day care)
      • Residential facilities (including group homes) and all other forms of housing

    Legal Action Center

    laws prohibiting discrimination2
    laws prohibiting discrimination…

    WHO IS PROTECTED BY THESE LAWS?

    Legal Action Center

    who is protected by these laws
    Who is protected by These laws…
    • An individual who--
      • Has a “disability,”
      • Has a history/record of a disability, or
      • Is regarded as having a disability.
    • Generally includes people with:
      • HIV/AIDS
      • Hepatitis
      • Past alcoholism/drug addiction
      • Current alcohol addiction
      • But not people who currently use drugs illegally when the discrimination is because of that use.

    Legal Action Center

    who is protected by these laws1
    Who is protected by these laws?
    • Case-by-case determination
    • Remember: perceived status of having hepatitis/HIV is also a covered by the law:
      • Example: Adult day care patient is gay so provider employer assumes he must also have HIV or hepatitis.

    Legal Action Center

    who is protected by these laws2
    Who is protected by these laws?

    CASE STUDY

    • Jay is 55 years old. Has been in recovery from an opiate addiction for 15 years during which time he has been in a methadone maintenance program. All urine tests have been negative except for a short relapse 10 years ago. He applies for admission to an adult day care program but is denied because he is in a methadone maintenance program.
    • Is Jay protected by anti-discrimination laws? Probably. (Record of/regarded as)

    Legal Action Center

    what rights do these laws give
    What rights do these laws give?

    Shall not be discriminated against because of disability

    Legal Action Center

    what rights do these laws give1
    What rights do these laws give?

    What does that mean?

    • Can’t be treated differently because of disability.
    • Entitled to a reasonable accommodation.

    Legal Action Center

    case study differential treatment
    Case study - differential treatment
    • Jane is 60 years old. Goes to Downtown Eye Clinic for an eye problem.
    • Discloses HIV status on the medical history.
    • Clinic tells her that because she is HIV+, she should go to hospital’s infectious disease clinic instead.
    • Clinic does not call hospital for her, but gives her the general phone number for infectious disease program.

    Discrimination?

    Legal Action Center

    case study differential treatment1
    Case study - differential treatment
    • Depends….need to know more:
      • Clinic is a place of public accommodation, so must comply with anti-discrimination laws (ADA, NYS and NYC Human Rights Laws)
      • But why did Clinic deny Jane services?
      • If denied services because feared HIV infection, then discrimination!

    Legal Action Center

    case study differential treatment2
    Case study - differential treatment

    Could clinic use “direct threat” defense?

    • Public accommodations may deny services if person with disability poses “direct threat” to health and safety of others:
      • Significant risk based on best available objective evidence, current medical knowledge. Can’t be mitigated through reasonable modifications of policies, practices, procedures.
      • Can’t be speculative, remote or based on anecdotal experience or myth.

    Legal Action Center

    case study differential treatment3
    Case study - differential treatment
    • In determining whether someone poses a “direct threat,” should consider 4 factors:

    1) duration of the risk

    2) nature and severity of the potential harm

    3) likelihood that potential harm will occur

    4) imminence of the potential harm

    Legal Action Center

    case study differential treatment4
    Case study - differential treatment

    “Direct threat”

    • HIV+ patient does not pose direct threat in health care settings. Must use universal precautions for everyone.
    • Abbott v Bragdon-- U.S. Supreme Court case.
    • Similar for hepatitis. U.S. Dept. of Justice settled case against dentist for refusing to treat woman with hepatitis C.

    Legal Action Center

    case study differential treatment5
    Case study - differential treatment

    Was referral medically justified?

    • If referral was medically justified -- doctor did not have skill level/expertise to treat Jane’s eye problem, no discrimination.
    • In some circumstances, HIV/AIDS may present medical complications that could warrant a referral. But absent medically justifiable reason, it’s discrimination.

    Legal Action Center

    case study differential treatment6
    Case study - differential treatment

    Other examples of discrimination

    • Requiring HIV-positive patient to come to last appointment of day (DOJ settlement against Woodlawn Family Dentistry)
    • Isolation & unwarranted “precautions”: Dubin v. Marcus Garvey Nursing Home. Violated NYS Human Rights Law by placing resident in strict isolation because of HIV status & not allowing him to use public phone.

    Legal Action Center

    case study reasonable accommodation
    Case study - Reasonable accommodation
    • Tomis in recovery from addiction to prescription pain medication. Getting treatment with suboxone (controlled substance approved for treatment of opiate addiction).
    • Denied admission to Eastside Seniors Residence because of policy: no controlled substances on site.

    Discrimination?

    Legal Action Center

    case study reasonable accommodation1
    Case study - Reasonable accommodation

    It may.

    • Unlawful discrimination also includes refusing or failing to make reasonable accommodations for people with disabilities, when needed.

    Legal Action Center

    case study reasonable accommodation2
    Case study - Reasonable accommodation

    Possible reasonable accommodations (in lieu of policy patients treated with suboxone from seniors residence):

    • Arranging for patient to store MAT medication in lock box in house, etc.

    Legal Action Center

    questions about disabilities
    Questions about disabilities
    • Back to Jane -- patient at Downtown Eye Clinic.
    • Was it legal for Clinic to ask Jane about HIV status on medical history form?
    • Yes. Anti-discrimination laws limit what employers may ask about disabilities, but do not limit what places of public accommodation may ask.
    • BUT Clinic may not discriminate with that information.

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    questions about disabilities1
    Questions about disabilities

    What about housing?

    • May assisted living facility ask applicant if HIV positive? Has viral hepatitis? Has ever been in alcohol/drug treatment?
    • Depends. FHA generally prohibits inquiring about disability but not if ask all applicants and:
      • Inquiring to determine eligibility for dwelling available only to individuals with disabilities or particular type or to dwelling that gives priority to individuals with disabilities (or particular type)…

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    questions about disabilities2
    Questions about disabilities

    (continued)

    • Asking if “current illegal abuser or addict of a controlled substance”
    • Asking if convicted of illegal manufacture or distribution of controlled substance.
    • Note: FHA applies to assisted living facilities, senior residences, but maybe not nursing homes (could be public accommodations instead).

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    remedies
    remedies

    What to do if you face discrimination?

    • Contact a lawyer. Options include Legal Action Center; also see lawhelp.org: http://www.lawhelp.org/.
    • File a complaint with agency(ies) that enforce the law (can do without a lawyer).
    • File a lawsuit in state or federal court.
      • Having a lawyer is usually critical to success.

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    remedies1
    remedies

    What can people get from successful

    complaint or lawsuit?

    • Money (sometimes) for mental anguish, other losses
    • Changed policies
    • Order requiring discriminating entity to admit/treat you/stop discriminating.

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    remedies2
    remedies

    Where to get more information on agency complaints?

    • NYS Division of Human Rightshttp://www.dhr.ny.gov/
    • NYC Commission on Human Rights http://www.nyc.gov/html/cchr
    • U.S. Department of Justice (ADA) http://www.ada.gov/filing_complaint.htm
    • U.S. Department of Housing & Urban Development (FHA) http://portal.hud.gov/hudportal/HUD?src=/program_offices/fair_housing_equal_opp/disabilities

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    remedies3
    Remedies

    REMEMBER:

    It is VERY important to stay mindful of deadlines for filing complaints and lawsuits!

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    why is confidentiality so important
    Why is confidentiality so important?

    STIGMA

    Fear of disclosure of HIV information can --

    • Lead people to avoid getting care.
    • Cause anxiety & depression.
    • Disclosure is sometimes necessary -- to health care providers, social service agencies, government agencies that provide benefits, sexual partners, and others.

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    slide95

    What are confidentiality protections for

    • HIV?
    • Substance use treatment information?
    • Other medical information?

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    what are the privacy laws
    What are the privacy laws?
    • HIV: Art. 27-F, NYS Public Health Law
    • Health information generally: HIPAA (federal) & NY Public Health Law
    • Alcohol/drug treatment: federal regulations, 42 C.F.R. Part 2
    • Mental health: HIPAA and NYS Mental Hygiene Law

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    hiv confidentiality
    HIV confidentiality
    • Today’s training -- Art. 27-F -- special confidentiality issues for an aging HIV+ population.
    • For basic overview, take HIV/AIDS Confidentiality Law Overview,

    Available 24/7 at http://www.hivtrainingny.org/ (can get CEU!).

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    article 27 f who must follow this law
    Article 27-F Who must follow this law?
    • Most “health or social services” providers
          • Most agencies that serve people with HIV (nursing homes, adult day care, home care, all health care providers).
        • Anyone who receives HIV information pursuant to a proper written release.
    • NY state and local governmental agencies that provide, supervise or monitor health or social services

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    article 27 f who must follow this law1
    Article 27-F Who must follow this law?

    Does not apply to

    • Friends, relatives
    • Landlords (unless they are health/social service provider, e.g., supportive housing, nursing home)

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    hipaa what is it
    HIPAA: What is it?
    • Federal law, minimum safeguards to protect privacy of “protected health information.”
    • Applies to “covered entities” -- health care providers, health plans, health care clearinghouses

    IF they transmit protected health info. electronically to process payment or make eligibility determinations.

    • Most NY health care providers must comply with HIPAA & Art. 27-F.
    • Conflict?
      • Apply more “stringent” law-usually Art. 27-F.

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    article 27 f the general rule
    Article 27-F:The general rule
    • NO DISCLOSURE: A provider may not disclose any –
      • HIV-related information obtained while providing health or social serviceor through a release.
      • Includes: HIV+, HIV-, had HIV test, contact

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    exceptions to the general rule when disclosure is permitted
    “Exceptions” to the General Rule: When Disclosure is Permitted

    Despite general non-disclosure rule:

    • Both HIPAA & Article 27-F have “exceptions” that permit sharing HIV information.
      • Won’t discuss most of them today.

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    main article 27 f exceptions permitting disclosure
    Main Article 27-F exceptions permitting disclosure

    Exceptions covered by this presentation:

    • Written Release
    • Disclosures to health care providers
    • Estates

    Note: Follow Article 27-F rules governing these exceptions. They are more protective (“stringent”) than HIPAA.

    Legal Action Center

    exception 1 written release c ase study
    Exception #1 -- Written releaseCase Study
    • Edward has AIDS & occasional dementia.
    • Hospital social worker trying to arrange new housing prior to discharge.
    • Eligibility is based on HIV status, so needs to disclose Edward’s status to housing provider.
    • Social worker disclosed Edward HIV status to housing provider without written release form.

    Legal?

    Legal Action Center

    exception 1 written release case study cont
    Exception #1: Written ReleaseCase Study (cont.)

    No. Social worker needed release.

    • Must use DOH-approved releases – there are 2! OR
      • Form that’s consistent with them.
      • DOH forms are in hand-outs.

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    exception 1 written release
    Exception #1: Written Release
    • Who signs if individual lacks capacity to consent (i.e., has dementia)?
      • Remember Part one today -- who makes health care decisions for individuals who lack capacity?
      • That person has authority to sign HIV release form.
        • Could be agent per HCP, Surrogate, Court-appointed guardian.
      • But if individual has intermittent capacity, can seek signature then.

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    exception 2 disclosures to health care providers
    Exception #2: Disclosures to Health Care Providers

    Case Study – Referral to Specialist

    • Jan has seen primary care doctor since HIV diagnosis three years ago.
    • Primary care doctor now plans to refer her to a specialist.

    Does doctor’s office need HIV release form to disclose Jan’s HIV status to specialist?

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    disclosures to health care providers cont
    Disclosures to Health Care Providers (cont.)

    Answer:No

    • May disclose HIV related information – without release – to outside health care provider/facility when necessary for that health care provider/facility to know the HIV informationin order to provide appropriate care or treatment to:

    1. The protected individual, or

    2. His or her child, or

    3. His or her contact (spouse, sex or needle-sharing partner).

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    disclosures to health care providers cont1
    Disclosures to Health Care Providers (cont.)

    Answer (cont.). Here –

    • Knowing Jan’s HIV status is necessary for specialist to give her appropriate care.
    • Some agency policies require a written release anyway because they consider it good practice.
    • Must document the disclosure.

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    disclosures to health care providers cont2
    Disclosures to Health Care Providers (cont.)

    What if…

    • Primary care doctor just made initial diagnosis.
    • Arranging with another health care provider for follow-up medical care. Need Jan’s consent?
      • No written release need, but do need oral consent.

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    disclosures to health care providers cont3
    Disclosures to Health Care Providers (cont.)

    Answer (cont.). Here –

    • If community-based organization (not health care provider) discloses HIV-related information to health care provider:
      • DOH suggests using release if not an emergency.

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    disclosures to health care providers cont4
    Disclosures to Health Care Providers (cont.)

    Case study – EMS

    • Jan (HIV+) falls unconscious at HIV case management office, hits head and bleeds.
    • Agency calls EMS.
    • EMS asks about medications.

    May agency tell EMS Jan’s HIV

    medications? Her HIV status?

    Legal Action Center

    disclosures to health care providers cont5
    Disclosures to Health Care Providers (cont.)

    Answer:

    • OK to tell EMS about medications and HIV status so EMS can provide appropriate care to Jan en route & convey the information to the hospital.
    • If Jan were conscious, agency could permit her to make own disclosure.

    Legal Action Center

    exception 3 estates case study
    Exception #3: estatesCase study
    • Ted, age 67, died of AIDS-related complications in nursing home.
    • Ted did not have a health care proxy.
    • Sister shows up for the first time, after Ted’s death.
    • Nurse says -- I’m so sorry. There was nothing we could do to prevent his death from AIDS.

    Did nurse violate Ted’s confidentiality?

    Legal Action Center

    exception 3 estates
    Exception #3: estates

    Depends.

    • Art. 27-F does apply after death (per DOH).
    • But permits disclosures to executor or administrator of estate to fulfill related responsibilities.
    • Was Tom’s sister the executrix or administratix of his estate? If not, disclosure was illegal.

    Legal Action Center

    exception 3 estates1
    Exception #3: estates

    What about the death certificate?

    • HIV-related info. may be listed in death certificate & related documents identifying cause of death.
    • Who has access to death certificate? Spouse, children, parents, or lawful representative of the deceased individual, persons who can document a medical need or who need the document to establish a legal right or claim. Not subject to Freedom of Information Law requests.
    • SeeN.Y. Pub. Health Law § 4174(1) for full list.

    Legal Action Center

    other exceptions permitting disclosure under article 27 f
    Other “exceptions” permitting disclosure under Article 27-F

    Other exceptions:

    • Internal communications
    • Partner notification
    • HIV/AIDS case reporting
    • Physicians & minors
    • Foster care/child abuse & neglect
    • Occupational exposure
    • Insurance
    • Court orders
    • Program evaluation
    • Newborns

    Legal Action Center

    other exceptions permitting disclosure cont
    Other “exceptions” permitting disclosure (cont.)

    Detailed explanation of all “exceptions”:

    • HIV/AIDS Testing, Confidentiality & Discrimination: What You Need to Know About New York Law
      • Available at Legal Action Center website, www.lac.org
      • Click on free publications/HIV

    Legal Action Center

    enforcement options
    Enforcement options

    File complaints with gov’t agencies who can require policy changes & training and impose fines:

    NYS Department of Health-AIDS Institute, Special Investigation Unit, (800) 962-5065

    Hospitals: Centralized Hospital Intake Program 433 River Street, Suite 303 Troy, New York 12180

    HIPAA: Office of Civil Rights (U.S. Dept. of Health & Human Services), www.ocr.gov

    Legal Action Center

    enforcement
    Enforcement

    Options: Lawsuit –

    For violation of Article 27-F, can seek:

    • Money for harm suffered
    • Change in policies
    • Training

    Legal Action Center

    enforcement1
    Enforcement

    Options: Lawsuit –

    • But may not sue to enforce rights under HIPAA
    • Filing complaint with Federal Office of Civil Rights is only option.

    Legal Action Center

    enforcement2
    Enforcement

    Options:

    For help, individuals may call –

    • Legal Action Center: 212-243-1313 or 800-223-4044, or
    • Another HIV legal service provider.

    Legal Action Center

    have questions
    Have questions?
    • NYS Department of Health Confidentiality Hotline: 800-962-5065, or
    • Legal Action Center
      • ask for “attorney on call”
      • 212-243-1313 or 800-223-4044

    Legal Action Center

    that s it thank you
    That’s it.Thank you!

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    Please complete the evaluation!

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