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I recently received a call from a family in Southern California whose mother was being discharged from the hospital and needed to be placed into a skilled nursing facility. The problem was that she had a diagnosis of HIV, and because of that, she was refused admission by a skilled nursing facility. Is that legal?

Let me state unequivocally that healthcare facilities are, by law, not allowed to discriminate against anyone because of their HIV status. Not only is that against the law, but keep in mind that most nursing homes are Federal contractors. 75-80% of their income comes from Medicare and Medicaid – in California, it’s Medi-Cal.

In this case, the woman’s family was rebuffed by a large nursing home chain. There were some internal notes by the hospital discharge planner and case manager that the reason the facilities refused to take her was that she was HIV positive. It was a clear case of discrimination.

The ACLU of Nebraska documented a similar case of a man with HIV who was denied admission to six nursing homes because he was HIV positive.Those facilities used such excuses as “their air system wasn’t right,” or because he needed a single-bed room and none were available.

In our case, we were able to find another skilled nursing facility where she got the care that she needed, and eventually she was able to return home. There was technically no harm caused to her since she did finally receive care at another institution, so the tough question I had to ask the client and her family was whether she wanted to pursue a lawsuit against the nursing home chain that discriminated against her.

Cases like this one make me angry, and I am appalled that such things are allowed to happen. Discrimination against someone because of gender, race, ethnicity, age, marital status or some sort of medical condition is always wrong, and there are clear laws in place, both in California and at the Federal level, to address cases like this.

The problem is that when people file lawsuits alleging discrimination they are usually in for a bruising battle, mostly because institutions will argue that no actual financial or medical harm was done. They say: the HIV positive patient got treatment somewhere else, she didn’t suffer financial hardship, she didn’t die, so what’s the big deal? Judges and juries may agree that discrimination is reprehensible, but they generally can’t punish corporations with anything that amounts to more than a light slap on the wrist.

The appropriate remedy in cases like this is to take them to the Federal Office for Civil Rights which, because such facilities are CMS (Center for Medicare & Medicaid Services)and Federal contractors, are in a position to crack down on discriminators. An individual lawsuit against a nursing home chain for discrimination is typically seen by such institutions as a nuisance, but a Federal investigation by the Federal Office for Civil Rights or CMS is a threat to their existence. If Federal funding of an institution is cut off, which is completely within the power of such agencies to do, a nursing home chain can go out of business. The Federal Office of Civil Rights can and will get their attention, and they will require compliance with the law using tools that are not available to individuals or even the court system.

If you have experienced discrimination by a nursing home or skilled nursing facility for whatever reason, call the York Law Firm at (916) 643-2200. If we can’t help you directly, we will put you in touch with the appropriate agencies to address the issue.