Health and Human Services Discrimination: Persons with HIV Infection or AIDS

Getting a diagnosis of HIV or AIDS brings not only difficult health challenges but can also trigger acts of discrimination in employment, housing, and other aspects of one's life. It is especially disturbing to experience discrimination in the procurement of health and human services, since maintaining your physical and mental health is crucial when you have a disease such as HIV or AIDS. The federal government has enacted anti-discrimination laws to protect individuals with disabilities, including patients with Human Immunodeficiency Virus (HIV) or Acquired Immune Deficiency Syndrome (AIDS).

These federal protections include the following:

• Section 504 of the Rehabilitation Act of 1973 (Section 504)
• Title II of the Americans with Disabilities Act (ADA)
• Section 1557 of the Patient Protection and Affordable Care Act (ACA)
• Genetic Information Nondiscrimination Act (GINA)

HIV Is Considered a Disability

The laws listed above protect individuals with HIV or AIDS due to its status as a disability. Under the law, a disability is a physical or mental impairment that substantially limits major life activities. HIV qualifies because it substantially limits immune function.

Protection under Section 504/ADA

Rights under both Section 504 and the ADA are essentially identical, but apply to different entities. Both laws protect qualified individuals with disabilities (including HIV) from discrimination by health care and human service providers. But while Section 504 applies to the federal government, federal contractors, and recipients of federal financial assistance, the ADA applies to state, local, and most private entities. Under these laws, the applicable entities must make their programs and services available and accessible to persons with disabilities. Because an entity can receive both federal and state funding, both Section 504 and the ADA could be applicable.

Generally, hospitals, nursing homes, and other covered entities cannot exclude qualified persons from program benefits and services as long as the person meets the requirements of the benefit or the service. For example, if Hospital A has a wellness group that you otherwise qualify for, but the hospital is excluding you because you are HIV positive, then this would likely be a violation.

Protection under Section 1557 of the Affordable Care Act (ACA)

Section 1557, the nondiscrimination provision of the ACA, prohibits discrimination on the basis of disability, race, color, sex, age, and national origin in certain health care activities and programs consisting of:

• Any health program, institution, or activity that receives funding from the Department of Human Health & Services (i.e. Medicaid);
• Any program administrated by HHS; or
• Any health insurance policies under the ACA marketplaces and insurers that participate in the marketplace

Section 1557 also requires effective communication and accessibility to individuals with disabilities. This means that the organization or business must make efforts that allow communication with disabled persons that is just as effective as communication with persons who are not disabled.

Protections Under the Genetic Information Nondiscrimination Act (GINA)

Title I of the Genetic Information Nondiscrimination Act prohibits discrimination based on genetic information in health care. Under GINA, it is illegal for insurers to request, require, or use genetic information to make decisions about:

• Your eligibility for health insurance, or
• Your health insurance premium, contribution amounts, or coverage terms.

In addition to protection from denial of health care based on genetic test results or family health history, GINA also makes it illegal for insurers to:

• Consider family history or a genetic test result a pre-existing condition;
• Ask or require you to have a genetic test; or
• Use any genetic information they do have to discriminate against you, even if they did not mean to collect it.

Talk to an Attorney Now About Your Discrimination Claim

Was your medical treatment delayed? Were you denied acceptance into a program because of your status? If you think you have suffered discrimination because you have HIV or AIDS, then you should talk to an attorney right away. If you have a valid discrimination claim, an attorney experienced with discrimination matters can help.