Three federal agencies recently publicized a joint agency letter that was sent to schools of medicine, dentistry, and nursing and other health-related schools about what the agencies perceive as potential discrimination against students and applicants with hepatitis B. The Department of Justice (DOJ), the Department of Health and Human Services (HHS), and the Centers for Disease Control and Prevention (CDC) said in the letter that such discrimination violates the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act (Section 504), and Title VI of the Civil Rights Act of 1964 (Title VI).
This letter should serve as a reminder to educational institutions with medical, dental, or other health-related programs that they should review and consider updating their policies concerning management of students and applicants who are infected with hepatitis B.
According to the agencies, the CDC has become aware of several recent instances in which individuals with hepatitis B have been threatened with dismissal or actually dismissed from surgical practice on the basis of their infection, as well as those who have had their acceptances to medical or dental schools rescinded or deferred for the same reason. In addition, both DOJ and HHS have received and are investigating complaints against medical and dental schools for alleged discrimination against students and applicants with hepatitis B.
The agencies also note that a recent settlement agreement between DOJ and a medical school and school of osteopathic medicine resolved allegations that the schools violated the ADA by rescinding the acceptances of infected applicants. The agreement requires the schools to take several steps to ensure ADA compliance, including adoption of a policy that is consistent with the CDC’s recently updated Recommendations for the Management of Hepatitis B Virus-Infected Health-Care Providers and Students (CDC Recommendations).
The agencies seek to clarify the responsibilities of schools with health care programs under the ADA, Section 504, and Title VI by making clear that hepatitis B is a disability and that both private and public schools may not discriminate against individuals with the infection. The agencies further noted that hepatitis B disproportionately affects some ethnic groups. As a result, discrimination under Title VI—which prohibits race, color, and national origin discrimination in programs and activities receiving federal financial assistance—may occur through facially neutral policies that have a disproportionate impact on ethnic groups.
To prevent any such discrimination, the agencies recommend that schools adopt the CDC Recommendations, which include the following:
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— including pre-notification 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 who do not perform exposure-prone invasive procedures, but who practice non-invasive 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 be restricted from participating in exposure-prone invasive procedures, such procedures are not performed ordinarily 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 Recommendations also suggest that DNA serum levels, rather than hepatitis B e-antigen status, be used to monitor infectivity, and 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.
These and other provisions of the CDC Recommendations regarding hepatitis B monitoring are particularly important. As noted in the agency letter, courts and federal agencies that enforce the ADA (including DOJ and HHS) place considerable weight on CDC recommendations and conclusions to determine if an institution has met its obligations under the statute. In DOJ’s recent settlement agreement, the agency conceded that the schools had acted in good faith but nonetheless found that they unlawfully discriminated against two applicants, noting that the schools’ analyses of the applicants’ infectivity and the risks posed to potential patients did not track the CDC Recommendations.
Given the information in the agencies’ letter, educational institutions with medical, dental, or other health-related programs should review the CDC Recommendations and use them to ensure that their own policies satisfy their obligations under the ADA, Section 504, and Title VI.