Discrimination on the Basis of Disability is Prohibited under the Americans with Disabilities Act (ADA)
Date: January 11, 2012
DAL: NH 12-01
Subject: Discrimination on the Basis of Disability is Prohibited under the Americans with Disabilities Act (ADA)
Dear Nursing Home Administrator:
The purpose of this letter is to remind nursing homes that discrimination on the basis of disability is prohibited under the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, New York State Social Services Regulations , 18 NYCRR § 515.2(13), and NYS Public Health Law Regulations,10 NYCRR § 415.3(b)(5).
The ADA protects qualified persons with disabilities from discrimination with regard to federally-funded benefits, programs and services. Title II of the ADA also extends the protections against discrimination set forth in section 504 of the Rehabilitation Act, as amended, to all activities of State and local governments and other public entities. The ADA also requires nursing homes to provide services to people with disabilities in a non-discriminatory manner.
Nursing homes must be fully aware of the amendments to the ADA pertaining to discrimination based on disability. The ADA was amended by the ADA Amendments Act of 2008 (ADAAA), which became effective January 1, 2009. The ADAAA retains the ADA's basic definition of "disability" as an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. The intent of these changes was to make it easier for persons with one or more disabilities seeking protection under the ADA to establish that he or she has a disability within the meaning of the ADA.
New York State regulations prohibit discrimination based on disability against individuals entitled to Medicaid benefits. NYS Public Health Law Regulations, 10 NYCRR § 415.3(b)(5). It is an unacceptable practice to discriminate in the furnishing of medical care, services or supplies based upon a person's disability. The NYS Department of Health has the authority to impose sanctions upon a determination that a person or entity has engaged in an unacceptable practice.
Additionally, nursing homes must adhere to 10 NYCRR § 415.26 (e)(xii) which requires providers to maintain a centralized log on the receipt and disposition by the facility of persons referred for admission. For the purposes of this subdivision, receipt by the facility of a completed hospital/community patient review instrument (H/C PRI) for a person needing nursing home care shall constitute a patient referral. The log must contain for each referral a patient identifier, and indicate the race, sex, color, national origin of the referral, the date of referral, referring hospital or agency, and date and type of disposition of referral by the facility. Records of such log shall be retained for 18 months from date of entry.
Due to the broad definition of disability, nursing homes must become more vigilant and aware of what constitutes an appropriate reason for denial in the admissions application process. The entity's policies and procedures for screening applicants for nursing home admission must be in full compliance with the ADA. It is the responsibility of the entity to fully educate and monitor the effectiveness of all policies and practices related to nursing home admissions.
We have also become aware recently that some nursing homes are denying patients who have HIV/AIDS admission on the basis of the cost of their medication or other anticipated costs attributable to co-existing medical conditions. Please be advised that if a Medicaid recipient is Medicare Part D or Medicaid only, the nursing home is not responsible for any out-of-pocket medication costs and therefore are not at any financial risk for HIV/AIDS medication. Be further advised that denying admission to such patients based on the cost of their medication could be viewed as discrimination that is prohibited under Federal and State law and regulations.
The Department of Health remains committed to ensuring a health care system in which all New Yorkers receive care in a nondiscriminatory manner. I appreciate your assistance in assuring effective implementation of this policy. If you have any questions, please do not hesitate to contact our office at (518) 408-1267.
Jacqueline O. Pappalardi, Director
Division of Nursing Home and ICF Surveillance