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Does One of Your Employees Suffer from a Chronic Illness or Medical Condition? Consider the ADA When Assessing Their Request for Additional Medical Leave

March 19, 2013 by  
Filed under Compliance

American with Disabilities Act -- ADA

(March 19, 2013):  It’s a fact of life – essentially all us will likely fall ill or develop a chronic medical condition at some point during our employment.  Employees working in physician offices, home health agencies and for Durable Medical Equipment (DME) suppliers are no exception.  When this occurs, owners and managers cannot forget their obligations under the American Disabilities Act (ADA) and its amendments under the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).

I.  A Recent Decision by the EEOC Shows How Important ADA / ADAAA Compliance Can Be:

A recent decision in a Maryland case against a large physician practice illustrates the importance of considering each request for medical leave in a reasonable fashion.  In this case, an employee who suffered from Crohn’s Disease worked as an assistant for the practice, answering phones, scheduling appointments and conducting other administrative duties.  While undergoing treatment for her Crohn’s, she required two weeks of medical leave.  During this period, she went to the emergency room twice and was hospitalized at least once.  When she contacted the company to ask for an additional day (of unpaid leave), she was fired.  The fired employee filed a complaint with EEOC and the case ultimately resulted in a disability discrimination lawsuit being filed against the employer for alleged violations of the ADA Ultimately, the case was settled and the fired individual recovered $92,500.

II.  What Lessons Can You Learn from This ADA Case Settlement?

When assessing this case, the EEOC argued that the employer’s failure to provide a “reasonable accommodation” to the employee was a violation of the ADA.  As the EEOC specifically commented, the employer’s:

“. . . lateness and attendance policy violated the Americans with Disabilities Act, as amended (ADA), because it did not provide for exceptions or modifications to the attendance policy as a reasonable accommodation for individuals with disabilities.”

When it was unable to settle the case prior to filing suit, the EEOC brought an action against the employer for violations of the ADA and the ADAA.  When the case was subsequently settled, the District Director of EEOC’s Philadelphia District Office stated:

“It is not only a good business practice to provide reasonable and inexpensive accommodations that allow employees with disabilities to remain employed, it is required by federal law.”

In addition to the $92,500 settlement, the agreement reached requires that the employer modify its policies to permit the “reasonable accommodation for employees with disabilities.”  Additionally, the medical practice was also required to train all of its supervisory, managerial and human resources personnel on the ADA and post a notice regarding the resolution of the lawsuit at its facilities.  Ultimately, health care providers can avoid these problems entirely if they approach these situations in a reasonable fashion and recognize their obligations under the ADA.

III.   Conclusion.

Compliance with the ADA and other applicable statutes designed to prohibit and prevent employment discrimination of all of types should be an integral part of your Compliance Plan.  These obligations cannot be delegated or dispensed with contractually.  Therefore, we strongly recommend that you examine your personnel practice to help ensure that you are fully complying with the letter and the spirit of the law in this regard.

Robert W. Liles is a health care attorney experienced in handling prepayment reviews and audits.Robert W. Liles is the Managing Member at Liles Parker.  He has extensive experience working on health care employment issues, in both a unionized and a non-unionized environment.  Should you have questions in this regard, please feel free to call Robert for a free consultation.  He can be reached at: 1 (800) 475-1906.

 

Your Child’s Rights Under Section 504 and the ADA.

October 25, 2011 by  
Filed under Education Law

(October 25, 2011): Section 504 and Title II of the ADA are broad civil rights statutes designed to promote equal access to and participation in programs and services. The regulations implementing these laws require that students with disabilities receive benefits and services comparable to those given their non-disabled peers. Specifically, these laws make it illegal for schools to discriminate on the basis of disability by:

• Denying a student the opportunity to participate in or benefit from a benefit or service,
• Providing an opportunity to participate or benefit that is unequal to that provided others,
• Providing a benefit or service that is not as effective as that provided to others,
• Providing lower quality benefits, services or programs than those provided others, or
• Providing different or separate benefits or services, unless it is necessary to provide benefits or services that are as effective as those provided to others.

For benefits or services provided to be “Equally Effective,” they must afford students with disabilities an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement as other students.

I.  What is Required Under Section 504?

Section 504 regulations mandate that school systems receiving federal funds provide a free appropriate public education to children with disabilities in accordance with the Section 504 requirements regarding least restrictive setting, evaluation and placement, and procedural safeguards. Furthermore, under Section 504, the education provided to students with disabilities must meet those students’ needs as adequately as the needs of non-disabled students are met.

II. Criteria and Methods of Administration:

It is illegal under the Section 504 and ADA regulations for school systems to use policies and practices that, intentionally or not, result in discrimination.  The regulations for both Section 504 and ADA use the term “criteria and methods of administration.” “Criteria” are written or formal policies. “Methods of Administration” are the school system’s actual practices and procedures. The ban on discriminatory policies, practices, and procedures includes those that:

• Have the effect of discriminating against students with disabilities, or
• Have the effect of defeating or impairing accomplishment of the objectives of the education program (or school reform initiative) in regard to students with disabilities.

III.  Reasonable Accommodations Requirements Under Section 504:

School systems must make accommodations and modifications to address the needs of students with disabilities to meet the responsibilities to students with disabilities under Section 504 and Title II of the ADA,  Making accommodations and modifications means changing the way things are usually done in order to take into account a child’s disability-related needs. Examples of accommodations and modifications include modifying rules, policies or practices; removing architectural or communication barriers; or providing aids, services, or assistive technology.

IV.  Maximum Feasible Integration Under Section 504:

Under Section 504, children with disabilities must be educated with their non-disabled peers “to the maximum extent appropriate,” and “removal . . . from the regular educational environment” occurs “only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.”

The ADA regulations similarly provide that a public entity, such as a school system, “shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”  Schools have the burden of demonstrating that any removal from regular education is appropriate.

Ashley Morgan, J.D., represents students and their families in connection with Section 504 matters.  For a complimentary consultation, please call Ashley at:  1 (800) 475-1906.