Joint Agency Letter to Health–related Schools Regarding Hepatitis B Discrimina

StephenW

            Joint Agency Letter to Health–related Schools Regarding Hepatitis B Discrimination
June 13 - A historic letter on behalf of the Department of Justice, the Department of Health and Human Services, and the Department of Education has been issued regarding the participation of students with hepatitis B in health-related schools and programs. This  letter emphasizes the importance of the updated CDC Recommendations and is a reminder of the institution's nondiscrimination obligations under the Americans with Disabilities Act.

To Schools of Medicine, Schools of Dentistry, Schools of Nursing, and other
Health-Related Schools:

We write on behalf of the Department of Justice, the Department of Health
and Human Services, and the Department of Education to update you on the
latest recommendations from the Centers for Disease Control and Prevention
(CDC) regarding the participation of students with hepatitis B in medical,
dental, nursing, and other health-related programs. We also take this
opportunity to emphasize the importance of these recommendations,
especially as they relate to your institution's nondiscrimination
obligations under the Americans with Disabilities Act of 1990 (ADA),
Section 504 of the Rehabilitation Act of 1973 (Section 504), and Title VI
of the Civil Rights Act of 1964 (Title VI). Approximately 800,000 to 1.4
million people in the United States have hepatitis B. 1  In its updated
recommendations, the CDC notes several recent instances in which persons
with hepatitis B "have been threatened with dismissal or actually dismissed
from surgical practice on the basis of their [hepatitis B virus]
infection, and others have had their acceptances to medical or dental
schools rescinded or deferred because of their infection." 2   Moreover,
the Department of Justice and the Department of Health and Human Services
have received, and are currently investigating, complaints against medical
and dental schools around the country for allegedly discriminating against
students and applicants with hepatitis B in violation of the ADA. In fact,
the Department of Justice recently entered into a settlement agreement with
a medical school and a school of osteopathic medicine resolving
allegations that the schools violated the ADA by excluding previously
accepted applicants with hepatitis B from their programs. The settlement
agreement requires the schools to undertake several actions, including the
following: adopt a hepatitis B policy that is consistent with the CDC's
updated recommendations; provide ADA training to their employees; permit
the applicants to enroll in the schools; and provide the applicants with a
total of $75,000 in compensation and tuition credits. In light of this, the
Departments of Justice, Health and Human Services, and Education are
concerned that some health-related schools may be making enrollment
decisions based on an incorrect understanding of the hepatitis B virus,
resulting in unlawful discrimination. The Departments of Justice, Health
and Human Services, and Education share responsibility for protecting the
rights of students and applicants with disabilities, including those who
have hepatitis B, in medical, dental, nursing, and other health-related
education programs. Under Title III of the ADA, a private school may not
discriminate against individuals with disabilities, in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations offered by that school. 3   Similarly, Title II of the ADA
prohibits public schools, including public postsecondary institutions, from
discriminating on the basis of disability in their services, programs, or
activities. 4   Section 504 likewise prohibits education programs and
activities, including those at the postsecondary level, that receive
federal financial assistance from discriminating on the basis of disability
with respect to admission to or participation in their programs and
activities. 5  In addition, Title II and Title III of the ADA and Section
504 prohibit covered entities from using criteria or methods of
administration that have the effect of discriminating against people with
disabilities. 6   The ADA and Section 504 also require covered entities to
make reasonable modifications to their policies, practices, or procedures
when necessary to avoid discrimination on the basis of disability, unless
such modifications would fundamentally alter the nature of the program or
the services provided. 7 Although federal civil rights laws broadly
prohibit discrimination on the basis of disability, those laws do not
require schools of higher education to permit an individual with a
disability to participate in particular activities if doing so would pose a
direct threat to the health or safety of others. 8 In determining whether
an individual poses a direct threat to the health or safety of others,
schools must make an individualized assessment, based on a reasonable
judgment that relies on current medical knowledge or on the best available
objective evidence, to ascertain (1) the nature, duration, and severity of
the risk, (2) the probability that the potential injury will actually
occur, and (3) whether reasonable modifications of policies, practices, or
procedures will mitigate the risk. 9 In addition to the ADA and Section
504, the management of students and applicants with hepatitis B may also
implicate Title VI, which prohibits discrimination on the basis of race,
color, or national origin in programs and activities receiving federal
financial assistance. 10  One way in which specific policies or practices
used in the management of students with hepatitis B may result in unlawful
discrimination is if such policies have an unjustified disparate impact on
particular students. 11   This means that a policy or practice that is
neutral on its face – the policy itself does not mention race, color, or
national origin – but has a disproportionate and unjustified effect on
students of a particular race, color, or national origin, may result in
unlawful discrimination under Title VI. Statistical disparities may be
evidence that a policy or practice has an adverse discriminatory impact and
should be reviewed to ensure compliance with Title VI. It is notable that
while Asians, Native Hawaiians, and Pacific Islanders make up roughly 4.5
percent of the U.S. population, they represent 50 percent of the persons
with hepatitis B in the United States. 12   With this in mind, institutions
of higher education should be aware that Title VI applies to the extent
that specific policies, practices, or procedures regarding hepatitis B
discriminate, or have the effect of discriminating, against students or
applicants of a particular race, color, or national origin. 13 On July 6,
2012, the Centers for Disease Control and Prevention (CDC) published the
Updated CDC Recommendations for the Management of Hepatitis B
Virus-Infected Health-Care Providers and Students. 14 With respect to
students with hepatitis B, CDC's updated recommendations aim to promote
patient safety while providing risk management and practice guidance to
students and health-care providers with hepatitis B. Among other things,
the CDC provides the following new recommendations for the management of
students who have hepatitis B: Chronic hepatitis B virus infection, in
itself, should not preclude the study or practice of medicine, surgery,
dentistry, or allied health professions. Practices that restrict students
from the study of medicine, dentistry, or surgery – such as
prenotification to patients of the hepatitis B status of their health-care
provider – should be discouraged. Medical and dental students with
chronic hepatitis B virus infection (i.e., those who are HBsAg-positive)
who do not perform exposure-prone invasive procedures but who practice non-
or minimally invasive procedures should not be subject to any restrictions
of their activities or study. While medical and dental students with
chronic hepatitis B virus infection may have restrictions imposed on their
participation in exposure-prone invasive procedures, 15 exposure-prone
invasive procedures are not ordinarily performed by students fulfilling the
essential functions of a medical or dental school education. Standard
precautions should be rigorously adhered to in all health-care settings.
The CDC recommends that DNA serum levels be relied on, rather than
hepatitis B e-antigen status, to monitor infectivity and states that
individuals with hepatitis B can conduct exposure-prone invasive procedures
if a low or undetectable hepatitis B viral load is documented by regular
testing at least every six months. The CDC also recommends that a hepatitis
B viral level of 1,000 IU/ml (5,000 GE/ml) or its equivalent is an
appropriate viral load threshold for a review panel to adopt. The CDC
stresses that for most students with chronic hepatitis B "who conform to
current standards for infection control, [hepatitis B virus] infection
status alone does not require any curtailing of their . . . supervised
learning experiences" because those experiences generally do not include
exposure-prone invasive procedures. In fact, the CDC noted that since its
last update in 1991, there have been no reports of hepatitis B transmission
in the United States or other developed countries from "medical or dental
students . . . or any others who would not normally perform exposure-prone
invasive procedures". 16 The CDC's updated recommendations provide current
medical information about managing students in health-related schools who
have hepatitis B. Consistent with Supreme Court decisions, the Departments
of Justice, Education, and Health and Human Services place considerable
weight on such guidance when analyzing whether there has been a violation
of the ADA, Section 504, or Title VI 17 .  While such guidance is not
conclusive with respect to determining an entity's civil rights
obligations, an entity must have a valid justification for deviating from
the guidance, or the entity risks a finding that it has violated its
obligations. 18  We strongly urge you to review your policies, practices,
and procedures regarding students and applicants with hepatitis B in light
of the CDC's updated recommendations and to ensure that your institution is
complying with its nondiscrimination obligations under the ADA, Section
504, and Title VI. We would like to work with you to ensure full compliance
with these federal laws. The Department of Justice operates a toll-free,
technical assistance line to answer questions about the requirements of the
ADA. For technical assistance, please call (800) 514-0301 (voice) or (800)
514-0383 (TTY). Specialists are available Monday through Friday from 9:30
a.m. until 5:30 p.m. (Eastern Time) except Thursday, when the hours of
operation are 12:30 p.m. to 5:30 p.m. All calls are confidential. The
Office for Civil Rights in the Department of Health and Human Services
provides technical assistance about the requirements of Section 504 and
Title VI in programs and activities to which it provides federal financial
assistance and about the requirements of Title II of the ADA relating to
the provision of health care and social services, including schools of
medicine, dentistry, nursing, and other health-related schools. For
technical assistance, contact information is available at www.hhs.gov/ocr;
you may also call toll-free: (800) 368-1019 (voice) or (800) 537-7697
(TDD). The Office for Civil Rights in the Department of Education provides
technical assistance about the requirements of Section 504 and Title VI in
programs and activities to which it provides federal financial assistance.
For technical assistance, you may contact the regional office serving your
state. You may locate that office at
<http://wdcrobcolp01.ed.gov/CFAPPS/OCR/contactus.cfm,> by e-mailing
[email protected], or by calling 800-421-3481 or 800-877-8339 (TDD). We appreciate
your attention to this important civil rights issue and look forward to
working with you to ensure that our nation's health-related schools afford
all students and applicants with disabilities, including those with
hepatitis B, the opportunity to apply, enroll, and fully participate in the
schools' programs without discrimination on the basis of disability in a
manner that is consistent with the advice provided above. Sincerely,

Jocelyn Samuels
Principal Deputy Assistant Attorney General
Civil Rights Division
U.S. Department of Justice
Seth Galanter
Acting Assistant Secretary
Office for Civil Rights
U.S. Department of Education
Leon Rodriguez
Director
Office for Civil Rights
U.S. Department of Health and Human Services