On March 5, the U.S. Department of Justice reached a settlement with the University of Medicine and Dentistry of New Jersey under the Americans with Disabilities Act. The settlement agreement resolved allegations that UMDNJ rejected applicants to its medical school and school of osteopathic medicine because the applicants have hepatitis B. This settlement marks the first ADA enforcement action by the Justice Department on behalf of people with hepatitis B.
What Is Hepatitis B?
Hepatitis B is a contagious liver disease resulting from infection with the hepatitis B virus. It can range in severity from a mild illness lasting a few weeks to a serious, lifelong illness. A mother who is infected with hepatitis B can pass the virus to her baby at birth. It is estimated that 800,000 to 1.4 million people in the United States have chronic hepatitis B virus infection, according to a report by Heather M. Colvin and Abigail E. Mitchell titled “Hepatitis and Liver Cancer: A National Strategy for Prevention and Control of Hepatitis B and C.” Of that number, 50 percent are of Asian, Native Hawaiian and Pacific Islander descent, the report said.
According to the Centers for Disease Control and Prevention, there have been no reported transmissions of hepatitis B from a student to a patient in the past 21 years. The department believes it is important to pursue this emerging area of discrimination, particularly as it relates to higher education and the health care professions.
How Does the ADA apply?
Title II of the ADA prohibits public entities (state and local governments), including public schools of higher education like UMDNJ, from discriminating against people with disabilities. The ADA also requires public entities to make reasonable modifications in policies, practices or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the modifications would fundamentally alter the nature of the service, program or activity. A public entity may exclude a person with a disability when the individual poses a direct threat to the health or safety of others. However, the decision that an individual poses a direct threat must be based on current medical evidence and may not be based on prejudice, stereotypes or unfounded fears.
How Does the ADA Apply to This Case?
In 2011, the DOJ received complaints that UMDNJ rescinded offers of admission to two Asian-American applicants after learning that they have hepatitis B. The department, which enforces Title II of the ADA, investigated the allegations.
UMDNJ admitted that it excluded the applicants because of their hepatitis B, but initially argued that its exclusion was permissible under the ADA because the applicants posed a direct threat to the health or safety of others. Specifically, UMDNJ argued that the applicants could infect patients while performing exposure-prone invasive procedures, such as major surgeries, because of the applicants’ high viral loads of hepatitis B. The university claimed that such procedures were essential to the curricula, were required for graduation, and could not be modified to accommodate the applicants.
Through its investigation, however, the department learned that students at UMDNJ are not required to perform exposure-prone invasive procedures to graduate. The department also learned that, after treatment, the applicants’ viral loads were lowered to almost undetectable levels, significantly reducing any chance of transmitting the virus. The department determined that UMDNJ could not show that the applicants posed a direct threat — even if exposure-prone invasive procedures had been required.
The department concluded that the university’s exclusion of the applicants violated Title II of the ADA and entered into a settlement agreement with the university. Under the settlement, the university is required to adopt a hepatitis B nondiscrimination policy; to train its employees on the requirements of the ADA; to admit the applicants; and to provide a total of $75,000 in compensation and tuition credits to the two applicants.
The new hepatitis B policy that UMDNJ is required to adopt is based on the CDC’s recommendations. In July 2012, the CDC released recommendations for health-related schools regarding the education of aspiring health-care professionals who have hepatitis B (“ Updated CDC Recommendations for the Management of Hepatitis B Virus-Infected Health-Care Providers and Students”). The CDC recommendations are based on the most current scientific information, dispel many myths associated with hepatitis B, and provide guidance to health-related schools on managing students with the virus. In its recommendations, the CDC noted that hepatitis B, in itself, should not preclude the study or practice of medicine, surgery, dentistry or allied health professions. The CDC specifically found that “medical and dental students with chronic hepatitis B virus infection 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.” The CDC added that exposure-prone invasive procedures are not ordinarily required of students in order to graduate from medical or dental schools and, even if they were, students may be able to perform those procedures by maintaining a lower viral load level.
“Excluding people with disabilities from higher education based on unfounded fears or incorrect scientific information is unacceptable,” said Jocelyn Samuels, principal deputy assistant attorney general for the civil rights division of the Justice Department. “The Justice Department strongly urges health-related schools to review the CDC’s recommendations and to ensure that their policies and practices comply with federal nondiscrimination laws.”
What If I Have Questions About the ADA?
The department engages in a wide range of activities to increase understanding and voluntary compliance with the ADA. The ADA information line (1-800-514-0301/voice; 1-800-514-0383/TTY) helps callers to understand how the ADA applies to them. The ADA website at www.ada.gov provides direct access to the department’s ADA publications, briefs and settlement agreements, as well as information on how to file a complaint. •
Susana Lorenzo-Giguere, an attorney with the disability rights section of the civil rights division at the U.S. Department of Justice, has been a career attorney with the Department of Justice since 1991. Lorenzo-Giguere works on numerous disability rights issues, including the disability rights section’s hepatitis B enforcement matters. In 1994, Lorenzo-Giguere founded and chaired the department’s Asian Employees Association, DOJ Pan Asia.