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Sunday, February 24, 2013

HIV/AIDS discrimination still occurs in employment, housing and educational institutions

The Unites States Department of Justice Department settled with a school for discrimination against child who has HIV. The United States Department of Justice brought a suit against Milton Hershey School of Hershey, Pa., in 2011. The suit alleged  that the Milton Hershey School  violated the Americans with Disabilities Act by the school’s refusal  to consider a child for enrollment due to the fact that the child has HIV.

The  federal lawsuit was filed in November 2011, Civil Action No. 11-cv-7391 (E.D. Pa.) (“Lawsuit”), and the mother of a child with HIV alleged through a Complaint that the School violated title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181, et seq., and its implementing regulation, 28 C.F.R. Part 36. The suit also alleged that the school committed common law torts.
 
The Unites States Department of Justice settled with a school on Sept. 12, 2012. The settlement agreement  resolves the mother’s allegations that the school violated the Americans with Disabilities Act by refusing to consider the child for enrollment due to the fact that he has HIV.
 
 Note: when reading this settlement agreement, and documents related to this  case, keep in mind that “Abraham Smith”  is not the child’s real name but is a pseudonym.“Mother Smith” is also a pseudonym. Because the child is a minor, the child's real name is kept private and the pseudonym "Abraham Smith" ( rather than the child's actual name ) is used instead. Likewise references to the mother do not use her real name but refer to her as “Mother Smith” . Under the terms of the settlement agreement, the Milton Hershey School of Hershey, Pa. is required to pay $700,000 to the child and his mother, and to institute and enforce a school policy which prohibits discrimination and provides equal opportunity for students with HIV and other disabilities, in the school's educational and extracurricular programs and related services. The school is also required to educate and provide training to staff and administrators on compliance with the school’s requirements with the ADA. 
 
Under the terms of settlement agreement, in addition to the school’s paying $700,000 to the child with HIV and his mother, the school must additionally pay $15,000 in a civil penalty to the United States.
 
As stated in the settlement agreement, in  April 2011, the child applied for admission to Milton Hershey School eighth grade class, which was to start in the fall of 2011. The school requires various documentation as part of its application process. The information provided to the school on behalf of the child, based on that required documentation, included documents disclosing that the child has HIV. 
 
As was described in the settlement agreement between the parties,
 
“15. On June 30, 2011, the School sent the child’s mother a letter stating that the child “will not be considered for possible enrollment,” and “[a]fter a review of the information, it has been determined that [the child’s] documented needs are beyond the scope of the Milton Hershey School programs.  Specifically we are unable to meet his needs in our residential setting.”
 
16.On August 5, 2011, the AIDS Law Project of Pennsylvania (“ALPP”), counsel to [ the child and his mother ]contacted the School on their behalf to request that [the child ]be considered for admission to the School.
 
17.In response to this request, the School contends that it conducted a further review of its initial decision.  The School acknowledged to ALPP that it had discontinued processing [the child’s]application because he has HIV.  The School asserted various defenses under the ADA and did not change its decision.
 
18.On November 30, 2011, the Lawsuit was filed.”
 
The United States Department of Justice issued a Press Release in this matter which states in part:
 
“Children should not be denied educational opportunities simply because they have HIV,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.  “This settlement sends a clear message that unlawful discrimination against persons with HIV or AIDS will not be tolerated.”
 
 “This is a very significant case, affirming the rights of persons with HIV, and we applaud the school for working so cooperatively to amend its position on this matter,” said Zane David Memeger, U.S. Attorney for the Eastern District of Pennsylvania."
 
Note: The name “Abraham Smith” is a pseudonym and not the real name of the child. Likewise,  references to the mother do not use her real name but refer to her as “Mother Smith”.  
 
The school’s training of its staff to prevent future discrimination against children who are HIV positive or who have AIDS or other disabilities was major part of the settlement agreement. The settlement agreement between the parties states that among the  school’s requirements to provide education and training to staff and administrators on compliance with the school's  requirements with the ADA are requirements as follows:
 
“On or before April 1, 2013, the School shall develop and provide training on title III of the ADA (“Staff/Administrator Training”), with a focus on HIV-related discrimination, and such training shall also be provided in school years 2013-14, 2014-15, and 2015-16, to persons affiliated with the School (whether employees, independent contractors, volunteers, or otherwise) whose responsibilities fall in the following areas: 
 
all persons who provide any educational instruction (including, but not limited to, pre-K through high school instruction, vocational instruction, and tutoring) to School enrollees;
 
all persons (including, but not limited to, houseparents and relief houseparents) who provide care to School enrollees in student homes;
 
all persons whose official job responsibilities involve providing medical, dental, psychological, behavioral, or social work-related care to School enrollees; 
 
all persons involved in the admissions process (including, but not limited to, recruitment activities, interface with the public on behalf of the School, direct handling of applications, academic/admissions/medical consultation, and the processing or gathering of any information on applicants); and 
 
all School administrators and officers.
 
For persons who must receive the Staff/Administrator Training under the terms of this Agreement but who begin their affiliation with the School, or whose affiliation with the School becomes active (e.g., after their return from leave status), after the annual training session has occurred, the School shall provide the training specified herein within sixty (60) days after the individual’s commencement or reactivation of status with the School. 
 
On or before April 1, 2013, the School shall review and, if necessary, revise its current training on Universal Precautions (“Universal Precautions Training”). This training shall be provided on or before April 1, 2013, and again in school years 2013-14, 2014-15, and 2015-16, to persons affiliated with the School (whether employees, independent contractors, volunteers, or otherwise) whose responsibilities fall in the following areas: 
 
1. all persons who provide any educational instruction (including, but not limited to, pre-K through high school instruction, vocational instruction, and tutoring) to School enrollees;
 
2. all persons (including, but not limited to, houseparents and relief houseparents) who provide care to School enrollees in student homes; and
 
3. all persons whose official job responsibilities involve providing medical, dental, psychological, behavioral, or social work-related care to School enrollees.
 
For persons who must receive the Universal Precautions Training under the terms of this Agreement, but who begin their affiliation with the School or whose affiliation with the School becomes active (e.g., after their return from leave status) after the annual training session has occurred, the School shall provide the training specified herein within sixty (60) days after the individual’s commencement or reactivation of status with the School.
 
The content of the Staff/Administrator Training, together with the text of all training manuals or written materials used in the Staff/Administrator Training, shall be consistent with the provisions of this Agreement. The School shall provide a copy of the content of the Staff/Administrator training to counsel for the United States and ALPP for review and comment no later than December 15, 2012. Within fifteen (15) days of receipt of comments by the United States, the School shall submit any revisions to counsel for the United States for approval. The United States will provide the School with its final comments and revisions (which, if accepted, shall constitute the United States’ approval of the Staff/Administrator Training) by no later than February 1, 2013. The School shall maintain attendance records of all Staff/Administrator Training and Universal Precautions Training conducted pursuant to this Agreement, which shall include the names and respective job titles of the attendees, as well as the date, time and location of the training sessions. During each academic year for the Term of this Agreement, the School shall provide instruction to all of its students (“Student Instruction”) on (1) the importance of treating individuals with disabilities in a respectful and courteous way; (2) the School’s refusal to tolerate harassment or bullying on the basis of disability; and (3) the practice of age-appropriate universal precautions.”

 

Contact Hope A. Lang, Attorney at Law, today for a free consultation. 


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