AMERICANS WITH
DISABILITIES ACT AND MANAGED CARE
The Americans
with Disabilities Act interacts with health care organizations in its effect on the
ability of a managed care organization to change the level of benefits upon renewal of its
health plan with its members, and in the ability of health care organizations to affect
its employment relationship with its physicians.
1. Reduction in Level of Benefits
The following is an actual example found in our practice on the effect the Americans
with Disabilities Act ("ADA") has on managed care.
A managed care plan reduces the level of benefits for physical therapy. The patient, who
was crippled in an accident and requires ongoing physical therapy, files suit under the
ADA on the grounds that the reduction in benefits discriminates against patients like her
who are physically disabled. The ADA says that it is unlawful for an employer to
discriminate on the basis of a disability against a qualified individual in regard to
employment, including the privileges of employment such as benefits. If a managed care
plan "conspires" with the employer to reduce benefits to the employee, such a
reduction may violate the ADA.
Reduction in benefits may violate the ADA if they are specifically aimed at persons with a
particular disability like such as muscular dystrophy or kidney disease, but do not
violate the ADA if the reduction in benefits applies to a number of different disabilities
or persons without disabilities. For example, reducing benefits for physical therapy
affects all persons, not just persons with any particular disability.
Even if the reduction in benefits is aimed at persons with a particular disability, it may
not violate the ADA if the plan can show a good faith underwriting reason for reducing the
level of benefits available.
2. ADA and Human Resources
The more common effect of the ADA on health care organizations is in the area of human
resources. Health care organizations, like any other business, cannot discriminate against
their disabled employees. Managed care plans must provide "reasonable
accommodations" to disabled employees unless it poses an "undue hardship"
to the employer, the employee would still be unable to perform essential job functions
even with the accommodations, or the individual poses a direct threat to the health or
safety of others.
However, the effect of this general ADA rule is significant and unusual as it applies to
health care organizations. In one Florida case, a neurologist who suffered from a bipolar
mental disorder wanted to not be on call at night because disruption of her sleep patterns
might trigger a manic phase, filed suit for discrimination because the other neurologists
thought it was unfair for her to not have to be on call at night when the rest of them had
to take call.
The ADA also affects the ability of health care organizations to credential physicians for
its plan. Health care organizations cannot require medical examinations, ask questions
about disabilities on an application, or conduct investigations about disabilities. They
cannot ask about their disabilities. They can ask them about their abilities.
Health care organizations can ask them:
Are you able to perform all of the procedures for which you have requested privileges,
with or without reasonable accommodation, according to accepted standards of professional
performance, and without posing a direct threat to patients?
If
the physician is given a bona fide job offer, health care organizations can make the
privileges contingent upon a successful completion of a medical inquiry of all applicants
to make sure the physician is capable of performing the procedures, with or without
reasonable accommodation, and without posing a direct threats to patient care.
Inquiry about the ability to perform the work should be done at each renewal of
privileges. If a physician is currently disabled with a psychiatric disorder and poses a
direct threat to patient care, the health care organization may seek a medical inquiry and
examination under the ADA. In Pennsylvania, a managed care organization forced a surgeon
to notify all of his past and future patients of his positive HIV status. A federal court
approved of this requirement on the ground that the physician's disability posed a direct
threat to his patients that could not be eliminated by reasonable accommodation.
Physicians currently using illegal drugs are not protected by the ADA. However, recovering
drug addicts who successfully complete a supervised drug rehab program, participate in a
supervised rehab program and are clean, are protected by the ADA. Health care
organizations may ask applicants if they use illegal drugs, but they cannot ask them about
past drug use.
A reasonable accommodation for recovering alcoholics includes supervised rehab and
recovery treatment programs. In New York, a physician who was chief of internal medicine
and of rheumatology was required to undergo alcohol rehab. Upon his return, he became
chief of rheumatology but was denied the position of chief of internal medicine because
the hospital wanted to have that chief supervise him. A federal court found this to be a
reasonable accommodation.
