American With Disabilities Act

The U.S. Department of Justice reached a January 31, 2019 settlement of an American with Disabilities Act (“ADA”) Title III complaint against health care provider Selma Medical Associates relating to provision of medical services to an individual with opioid use disorder (“OUD”).  The settlement is notable for health care providers and employers as it makes clear that DOJ considers OUD as a disability under the ADA thereby triggering the full panoply of ADA rights for those with OUD.

The DOJ complaint was premised on the alleged refusal of Selma Medical to schedule a new patient family practice appointment after the patient disclosed he takes Suboxone.  Suboxone is a prescription medication approved by the Food and Drug Administration for treating OUD.  The complaint further alleged that Selma refused to treat patients with narcotic controlled substances, including Suboxone, thus imposing “eligibility criteria that screen out or tend to screen out individuals with OUD.”  The compliant also alleged a failure to make reasonable accommodations to policies, practices or procedures when necessary “to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.”

Under the settlement, Selma agreed to:

  1. Not discriminate or deny services on the basis of disability, including OUD;
  2. Not use eligibility standards, criteria or methods of administration that tend to deny benefits on the basis of disability including OUD;
  3. To modify its policies as necessary;
  4. To draft and submit within 30 days for DOJ approval a non-discrimination policy and to remove any inappropriate existing policies;
  5. After DOJ approval, to adopt and disseminate to all employees the new non-discrimination policy;
  6. To train all management and employees within 60 days and annually for three years as to the new policy and ADA compliance with the initial training conducted live, with a Q&A opportunity, and by a trainer to be approved by DOJ;
  7. Submit compliance reports to DOJ for three years; and
  8. To pay compliant $30,000 in damages and a civil penalty to the U.S. of $10,000.

The DOJ-Selma Medical settlement is highly significant in an environment where in 2015, OUD affected 2 million people aged 12 and over (Drug and Alcohol Dependence, Vol. 169, Dec. 2016, pp. 117-127) and .6 million persons aged 12 or over had heroin use disorder (id.) and the lifetime percentage of individuals with Diagnostic and Statistical Manual-IV prescription OUD among adults 18 and over had more than doubled from 1.4% in 2001-2002 to 2.9% in 2012-2013 (id.), and likely higher today.  And, of course, this does not include those who are OUD for reasons other than prescriptions.  This means that health care providers are highly likely to encounter significant numbers of potentially challenging OUD patients.  DOJ has now made clear that providing the full range of care and services to such patients is required under the ADA – and that any failure to do so can lead to litigation, costly settlements and adverse publicity.

All employers, not just health care providers, should take note of this settlement as it clearly means that employers will also need to reasonably accommodate employees who seek time off for treatment or other accommodations unless the employer cannot show the requested accommodations would be an undue hardship.

The Selma Medical settlement is also a reminder that health care providers should make sure they have appropriate non-discrimination policies in place as required pursuant to Health and Human Services regulations for compliance under Title III of the ADA, the Rehabilitation Act of 1973, and the non-discrimination requirements of Section 1557 of the Affordable Care Act.  We can assist with any questions regarding the required policies and other issues as to compliance with the ADA, the Rehab Act and Section 1557.

 

Written by: Kara M. Maciel and Adam C. Solander

While some employers may have been disappointed with the U.S. Supreme Court’s recent decision affirming the constitutionality of the Patient Protection and Affordable Care Act (“PPACA”), there may be a silver lining to the seemingly dark cloud.  By virtue of upholding PPACA, the Supreme Court also upheld Section 2705 of PPACA, the provision of the law that will allow employers to provide their employees incentives, up to 30 percent of their premiums, in return for participation in an employer-sponsored wellness program.  Wellness programs benefit employers because they can reduce health care costs and increase productivity among healthy employees.  However, employers also risk claims of discrimination by certain employees if incentives are based on specified health factors and participation in the program.  The benefits that wellness programs provide could quickly diminish in light of recent class action litigation that has been brought against employers based on claims of discrimination.

Earlier this year, a class action complaint was filed against the Oregon Department of Corrections, the Oregon State Police, and the Oregon Department of Administrative Services (“Defendants”) resulting from their use of an incentive to encourage participation in an employer-provided wellness program.  Like many employers, the Defendants adopted a voluntary wellness program that utilized a Health Risk Assessment (“HRA”) to identify employee health risk factors.  Covered employees who did not participate in the program were assessed a fee of $20 to $35 per month.  The lawsuit alleges that the wellness program is discriminatory based on a disability and violates the employees’ right to be free from searches and seizures by unlawfully compelling disclosure of medical information through penalizing employees who do not participate in the wellness program.

A similar wellness program was challenged last year in Broward County, Florida.  In that case, the wellness program sponsored by Broward County consisted of an HRA and a biometric screening to diagnose employee glucose and cholesterol levels.  Employees who chose not to participate were allowed to enroll in coverage, but were assessed a $20 penalty each bi-weekly pay period.  The plaintiff’s complaint alleged that the employer violated the Americans with Disabilities Act (“ADA”) by requiring employees, by virtue of providing a penalty, to undergo a medical examination and making medical inquires of its employees.  The court granted summary judgment in favor of the defendants and held that the program fell under the insurance safe-harbor provision of the ADA.

Although not included in the class action complaints thus far, the Genetic Information Nondiscrimination Act (“GINA”) prohibits the provision of incentives for “genetic information” and could be used as a basis to challenge wellness incentives in the future.  In the context of a HRA, if an employer offers an incentive to induce participation in a wellness program, the HRA must be bifurcated and the incentive offered only in connection with the portion of the HRA that does not solicit genetic information.

While the likelihood that these legal challenges will be successful in court remains to be seen, the concern remains that these suits could become more prevalent, thereby exposing employers to increased litigation costs that outweigh the costs saved by a wellness program.  Yet, as it stands, wellness programs are one of the only tools employers have to bring their health care costs under control.  Therefore, employers should carefully weigh these considerations in deciding whether to implement a wellness program and how to structure that program.  If the employer chooses to establish a wellness program, it should be thoroughly reviewed by legal counsel before implementation to ensure its initiatives will not create a discriminatory impact.  Finally, employers should continue to monitor these types of class action cases to evaluate future exposure and liability.  Wellness programs constitute an essential tool employers can use in moderating health care costs, but for this tool to be effective, employers must take into account the legal implications of the program’s initiatives.