AEGiS-WSJ: Law: AIDS-Related Bias Can End Funding, U.S. Tells Hospital

Important note: Information in this article was accurate in 1992. The state of the art may have changed since the publication date.

Law: AIDS-Related Bias Can End Funding, U.S. Tells Hospital

The Wall Street Journal - 22 Apr 1992
Wade Lambert, Staff Reporter of The Wall Street Journal

In the first HIV-discrimination case brought by the federal government, an administrative-law judge ruled that a hospital can't restrict the work of a pharmacist infected with the virus that causes acquired immune deficiency syndrome.

And, applying the heaviest sanctions under the law, the judge ruled that hospitals that do discriminate against employees infected with the human immunodeficiency virus face a cutoff of all federal funding, including Medicaid and Medicare reimbursements.

Attorneys for the government and AIDS-rights activists said the decision was a strong signal to hospitals dealing with the controversial issue of HIV-infected health-care workers. The bottom line of the decision is that unless there is medical evidence that a worker poses a risk to patients, the employer can't fire or re-assign the worker.

"The risk for transmission of HIV from an infected health-care worker to a patient associated even with exposure-prone invasive procedures is so small as not to be measurable," said Steven Kessel, the Health and Human Services administrative law judge who decided the case.

The judge said that instead of restricting the work of an employee who has tested positive for HIV, hospitals should require so-called universal precautions, such as wearing gloves and taking other steps to avoid needle pricks and other possible contact with blood or blood products. HIV is transmitted through sex and blood-to-blood contact.

The case involved Westchester County Medical Center, a major public hospital serving seven counties north of New York City. Because the hospital receives about $107 million a year in federal funds, or about 40% of its total budget, the sanctions in the case could be devastating.

Barry Bowman, a spokesman for the hospital, said no decision has been made on whether to appeal, but he added that the hospital disagrees with the judge's findings.

Mr. Bowman said the hospital had restricted the work of the pharmacist under a policy of barring health-care workers with infectious diseases from coming in contact with patients in a way that might transmit the disease. "This a matter of patients' rights, not civil rights," he said.

But Michael J. Astrue, general counsel of the Health and Human Services Department said that discrimination against HIV-infected people is barred under a law that prohibits discrimination against disabled people.

"This case sends a signal that the federal government recognizes HIV as a handicap," Mr. Astrue said. People who are HIV positive "are entitled to the same type of protection that others are entitled to," he said.

Mr. Astrue compared the hospital's policy toward HIV-infected workers to cases involving racial or sexual discrimination. "We wouldn't send federal funds to a hospital that had separate black and white water fountains," he said.

Evan Wolfson, an attorney with Lambda Legal Defense and Education Fund, a gay and HIV-rights legal group, said the decision will be helpful in fighting other cases of alleged discrimination against people infected with HIV. "To make this a case of civil rights versus patients' rights is bogus," he said. He said that policies calling for universal precautions at hospitals protect both patients and workers from HIV infection.

If appealed, the case would be heard by the Civil Rights Review Board of the Health and Human Services Department, after which it could be appealed to a federal district court.

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