On July 18th, the U.S. Department of Health and Human Services announced that a California surgeon who refused to treat a patient based solely on the patient’s condition as HIV positive would lose Medicaid funding.  The surgeon had refused to perform necessary back injury and a resulting investigation by the HHS Office of Civil Rights found the surgeon had discriminated against the patient in violation of federal laws.  The violation ultimately resulted in an action to ensure compliance with federal civil rights laws and eventually the surgeon’s loss of the federal funding.

The determination underscores the need for health care providers to make best efforts to ensure patients and prospective patients who fall within protected classes receive the same treatment and standards of care as any other patient.  Failing to do so can jeopardize federal funding and also expose the provider to a range of potential claims for violations of federal and state workplace laws.

The fundamental steps to help avoid claims and liability are:

●             Have effective policies:  Providers should have written policies prohibiting discrimination and harassment.  Having an effective policy notifies all employees that discrimination and harassment will not be tolerated, and helps set a tone for conduct in the workplace.

●             Train up supervisors and staff:  All supervisors and staff should be fully aware of workplace discrimination and harassment laws and how to respond to potential problems.  Training helps prevent claims, allows problems to be identified and addressed early on, and provides vital potential evidence that the employer took reasonable steps to prevent improper behavior.

●             Familiarize yourself and staff with Medicaid rules:  Washington State Medicaid provider requirements obligate participating providers to provide all services without discriminating on the grounds of “race, creed, color, age, sex, sexual orientation, religion, national origin, marital status, the presence of any sensory, mental or physical handicap, or the use of a trained dog guide or service animal by a person with a disability.”  In addition, WA Medicaid allows termination of a provider relationship for discriminating in furnishing health care services as prohibited by federal statute.

For more information regarding avoiding such liability please contact Patrick Pearce.