Healthcare provider institutions including hospitals, clinics, medical practices, nursing homes and home health care providers (here, “Institutions”) are occasionally called upon to balance the preferences of Consumers against the interests or possible rights of their employee Care Providers. This may occur when Consumer complaints target assigned direct Care Providers – nurses, nurse aides, home health care workers, physicians, specialists, or others. Sometimes a consumer may refuse services from a Care Provider. These issues also surface in other contexts. For example, staffing services that employ and assign these “Care Providers” on a locum tenens, leased, or other arrangement, to the Institution or directly to the Consumer, must also be responsive to Consumer complaints.

The Patient’s “Right to Choose” The Care Provider

Any number of commentators discuss the phrase, “patient right to choose providers.” This purported “right” is based on three primary sources:

• Court decisions establishing the right of all patients to “control” treatment, including the provider of that treatment;

• Medicare and Medicaid statutes establishing covered patients’ rights to choose providers;

• The Balanced Budget Act of 1997.

In addition, some states have adopted so-called “right to choose” statutes or regulations. For example, under Indiana regulations governing long-term care facilities, residents have a right to “choose a personal attending physician and other providers of services.” 410 IND. ADMIN. CODE 16.2-3.1-3(n)(1).

Consumer Choice or Complaints Implicating a “Protected Characteristic”

Consumer complaints, and to a lesser extent provider requests, may be a “red flag.” Possible reporting obligations, Consumer and Care Provider privacy rights, and of course, consumer satisfaction, receive close attention in these situations. However, statutorily-protected employment non-discrimination rights of the Care Providers can occasionally be overlooked. This is an area where those worker rights may be – or may appear to be – in conflict with the related right of the Consumer to select her or his Care Provider. Confusion concerning conflicting principles is not helped by the outmoded and anecdotal application of “BFOQ” (bona fide occupational qualification) concepts and/or historical rulings.

The Right to Choose vs Protected Characteristics

So, what happens when a sincerely-held Consumer belief or preference implicates a “protected characteristic” of the Care Provider, such as his or her race, ethnicity, perceived or apparent religious affiliation or, most problematic, gender?

Courts that have faced the question have drawn the line between Consumers’ gender preferences, and other preferences, especially racial preferences.

Taken together, [prior cases] hold that gender may be a legitimate criterion…for accommodating patients’ privacy interests. It does not follow, however, that patients’ privacy interests excuse disparate treatment based on race…The privacy interest that is offended when one undresses in front of a doctor or nurse of the opposite sex does not apply to race. Just as the law tolerates same-sex restrooms or same-sex dressing rooms, but not white-only rooms, to accommodate privacy needs, [the Civil Rights Act] allows an employer to respect a preference for same-sex health providers, but not same-race providers.

The court specifically rejected the contention that Medicare, Medicaid, or state law allowed or required accommodation of Consumer preferences based on race.

Note, that there may be a different outcome in “private” or “direct pay” situations. One court has stated that, “[i]f a racially-biased resident wishes to employ at her own expense a white aide [state] law may require [the care institution] to allow the resident reasonable access to that aide.”

Protected Characteristics – Expanding Scope

The concept that workers’ personal attributes or affiliations are entitled to legal protection was essentially unknown at common law. Not until the civil rights movement of the 1960s did society and  lawmakers come to believe that anti-discrimination laws served a societal goal.

The Civil Rights Act of 1964 originally prohibited discrimination based on “race, color, religion, sex (gender), or national origin.” Prohibitions against discrimination based on age and disability were later passed. The concept of “protected characteristics,” once clearly defined, has expanded through court and administrative actions. For example, statutory protection against “sex” discrimination has come to include, “same sex” preference. The Equal Employment Opportunity Commission (EEOC) takes the position that this protection also includes “gender identification” and “transgender” status. Additionally, state law may protect other “characteristics” such as being a smoker (Nevada, Kentucky), sexual orientation and gender identity (Nevada), height, weight and marital status (Michigan).

Recommendations

Institutional and other employers of Care Providers must be cognizant of the potential for Consumer complaints that are motivated by impermissible discriminatory intent. A sound written policy stating the employer’s commitment to non-discrimination is appropriate. Additionally, the institution should have policies in place to ensure that no Care Provider assignment inadvertently implicates a “protected characteristic.”