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Sparrow Hospital Cultural Competency Discussion Series – LGBT CommunityA PRESENTATION MADE TO DOCTORS, NURSES, AND OTHER HEALTH CARE PROVIDERS AT CONTINUING EDUCATION PROGRAM ON MAY 14, 2015

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Sparrow Hospital Cultural Competency Continuing Education WorkshopThis presentation was made to members of the Sparrow Hospital Treatment staff on May 14, 2015. This presentation was designed to provide staff with an opportunity to discuss and better understand issues related to the effective and professional treatment of patients from a wide variety of cultural, demographic, and physical backgrounds.

This particular training session focused on assisting staff to better understand treatment needs of members of the LGBT community.

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The Legal Environment Impacting Treatment of LGBT PatientsIssues relating to the acceptance and legal and medical treatment of members of the LGBT community are many and constitute a fast evolving area of the law and related acceptance and treatment modalities of members of the Lesbian, Gay, Bisexual, and Transgender populations in our state.

Recognizing a need to address questions and training needs of professional and administrative staff, Sparrow Hospital has developed and scheduled this training and discussion opportunity for its employees.

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Howard T. Spence, PresenterDisclaimer: The views, comments, and observations contained in this presentation are solely those of the presenter, Howard T. Spence, unless otherwise indicated.

The information and comments and suggestions made in this presentation are not intended to be legal advice upon which attendees can or should rely.

The views expressed in this presentation are exclusively those of Howard T. Spence and do not necessarily represent those of other presenters on this panel, Sparrow Hospital or its administration or staff, or any organization with which the presenter may be affiliated.

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About Howard Licensed attorney, having represented and advised doctors and

nurses and other professionals in matters relating to license discipline, reinstatement, and administrative law matters

Former Administrative Law Judge hearing contested cases relating to occupational licensing and enforcement and compliance with the Michigan Health Code

Former Deputy Insurance Commissioner, State of Michigan responsible for Licensing and Enforcement

Arbitrator and Mediator on AAA, FINRA, and other ADR Panels

Board member on the Executive Oversight Board of the Michigan Institute for Continuing Legal Education at the University of Michigan Law School

Member, State Bar of Michigan ADR Council

Eaton County Commissioner from Delta Township

Juris Doctor, University of Michigan Law School 1976

MPA, Gerald R. Ford School of Public Policy, University of Michigan 1977

MBA, Michigan State University Broad Graduate School of Business Management 1980

MLIR, Michigan State University School of Labor and Industrial Relations, 1983

BA, Michigan State University Honors College in Social Science, 1970

Adjunct Professor, Thomas Cooley Law School 1978 – 80

Faculty Instructor/Facilitator, University of Phoenix MBA and Business Law program, 2005- 2009

Member ACLU and NAACP

Experienced Diversity Trainer for Executives

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Problems of Discrimination Encountered by Members of the LGBT Community in

Obtaining Health Care http://www.freep.com/story/news/local/michigan/macomb/2015/02/18/discrimination-birth/23640315/

Follow the above URL link to an online video prepared by the Detroit Free Press Newspaper highlighting the news article about a Michigan Pediatrician who made news by refusing to provide medical treatment to a new born baby because the pediatrician concluded that the two Lesbian mothers of the child were offensive to her in light of her religious beliefs and tenets…

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Who Are Some of the Players in this Discussion About LGBT Health Issues?Hospitals

Doctors

Nurses

Legislators

LBGT Community Members

State Health Code Licensing Boards

Courts

Insurance Companies & Regulators

Federal Government

American Medical Association

Gay and Lesbian Medical Association

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Issues?What are the implications of what this pediatrician has done? Immediately following are a number of questions or issues for contemplation and/or discussion relating to legal and ethical questions which have been raised in the Detroit area Pediatrician’s case where the Pediatrician refused to provide medical services to the new born child who was born to a Lesbian married couple…

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- Were the Contreras discriminated against?- If the Contreras were discriminated against, what was the basis for the discrimination?- Have any laws been violated?- Did the health care provider act in an unethical way?- If the baby was the patient, did the health care provider discriminate against the baby?- If the baby was discriminated against, what was the basis or nature of the discrimination?- Did the health care provider act in an unethical way in terms of the discrimination against the baby?

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- Did the health care provider violate the standard of care vis-à-vis the baby?- Did the health care provider violate her Duty to cause no harm?- Should a Doctor or a similarly situated health care provider be allowed to have

hospital privileges or to be in an emergency room setting if the health care provider refuses to provide medical services to all patients?

- Should a limited license designation be required for health care providers who refuse to treat all patients?

- If health care providers are allowed to refuse to treat patients for personal reasons (such as religious beliefs or tenets), should they be required to notify the public in advance of that refusal to provide service to selected groups?

- Does a hospital have liability risk or exposure if it contracts with or extends hospital privileges to a health care provider who refuses to treat all presenting patients?

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- Would a health care provider who refuses to treat all patients be allowed to transfer their medical or nursing license to a jurisdiction where there were legal prohibitions against such discrimination?

- What are the implications for malpractice insurance rates and coverage for a health care provider or hospital that refuses to provide treatment or services based upon a religious belief?

- If a health care provider acts in a way that jeopardizes a hospital or practice relationship with the federal government based upon religious beliefs, is that a breach of employment contract or basis for the hospital to terminate the employee?

- Are there particular practice issues realized when treating LGBT people that would justify discriminating against them (other than religious or personal beliefs or disliking LGBT people)?

- What are the possibilities of impacting this (or other types of) discrimination by Executive order or administrative regulations at the federal level?

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- If religious beliefs or preferences justify refusing to treat or discriminating against a group of people based upon LGBT status, would religious beliefs or preferences also justify refusing to treat people of different races, or persons who might have attempted suicide?

- A number of jurisdictions have enacted ordinances or statutes that prohibit discrimination against LGBT people… How do those laws play in with a practitioner or hospital that wants to discriminate against LGBT people based upon religious beliefs?

- What do you do if one patient protests being in the same room in the hospital with an LGBT patient?

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What is this Religion thing, and How Does it Impact Discrimination?And What about this Religious Freedom Restoration Act that is being considered in Michigan and other states to allow people to exercise their religious beliefs by discriminating against others? How religion shapes discriminatory attitudes relating to LGBT and racial minorities.

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- What constitutes a Religion or a Religious Belief?- How has Religion impacted on discrimination in the US Historically?- Some religions in the US have historically taught that Black people are inferior and it is sinful to have

miscegenation … Should health care practitioners or hospitals be allowed to refuse to treat Black people? Loving v Virginia, US Supreme Court 1967)

- Should a Catholic health care provider be allowed to discriminate against or refuse to treat a Baptist patient because of religious beliefs or preferences?

- What about the church of the “get high?” Should prisoners be allowed to demand medical marijuana because they claim it is a sacrament of their religion?

- Should “religions” such as demonic religions or the Manson Helter skelter religion be allowed to practice without government limitations?

- Should a religion that believes in human sacrifice be allowed to practice as an expression of religious freedom?

- A Pew Report released this week shows that there has been a drastic reduction in the number of Millenniums who identify as being conservative Christians…

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The Religious Freedom Restoration ActA number of states have adopted a recent “model law” that purports to allow individuals to discriminate against people and practices that are inconsistent with what a person believes as a part of their religious system

The results have not been well received where this law has been adopted, and there has been tremendous backlash against the conservative politicians who enacted these laws – many of which are obviously quickly enacted without discussion or thought in an effort to demonize LGBT people and allow “regular Christian people” to discriminate against them in public activity

Michigan Governor Snyder has indicated he would veto such a law if enacted.

There has been a bill introduced in the Michigan legislature that would prohibit cities and townships from enacting any law to grant protections against discrimination at the local level to LGBT people.

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How Do Hospitals Fit Into this Discussion?The discriminatory actions of health care providers can not only jeopardize the license status and ethical credibility of the health care professionals who discriminate, but those actions can also present significant but avoidable liability and risk management exposure to the hospitals and practices which hire them or present them with hospital privileges…

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Hospitals’ Roles in LGBT Discrimination or Abuse Prevention…

- Control and Direct staff who are employees or who have hospital staff admission rights

- Set policies for admission and local treatment standards and procedures

- Establish culture and climate of acceptance

- Avoid being impacted by decisions of staff which bring on unwelcome and potentially very significant liability

- Train Staff on “Best Practices” for Diversity and Inclusion of both patients and other staff members

- Examples of Best Practices are available from the American Medical Association and also on industry occupational association websites such as the HRC and AMLA websites

- Compliance with state regulatory standards for hospital care

- Compliance with federal executive orders, regulations, and laws to assure continued eligibility for Medicare and Medicaid payments for the hospital and providers

- Maintain good human relations among both employees and patients receiving both outpatient and admitted treatment

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The Human Rights Campaign Has Developed an Equality Rating Index for HospitalsThere has been a sharp increase in the number of hospitals in our nation which have earned HRC designations as “Leaders in LGBT health care equality in 2013.

http://www.hrc.org/files/assets/resources/HEI_2013_final.pdf

As of 2013, the only Michigan Hospital to earn that Equality Rating – other than the VA hospitals in Michigan – was the Henry Ford Health Systems.

The designation is based upon adopting a set of “best practices” for equality in treatment services.

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A Great Resource relating to Health Care Protections for the LGBT Community is the GLMA WebsiteDedicated to assuring equality for patients from the LGBT community.

A source of resources and referrals for health care providers who are dedicated to assuring equality in health care

http://www.glma.org/

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Applicable Laws and OpinionsSOME OF THE LAWS WHICH PROVIDE GUIDANCE REGARDING THE DUTY OF CARE TO MEMBERS OF LGBT COMMUNITY AND DUTY NOT TO DISCRIMINATE AGAINST LGBT COMMUNITY MEMBERS…

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- A regulation published November 17, 2010, by the Federal Department of Health and Human Services requires any hospital that receives Medicare and Medicaid funding to allow patients the right to decide who visits them. The regulation also prohibits discrimination against visitors based on their gender identity or sexual orientation. Hospitals must now inform all patients of their right to select visitors.

- There is NO federal law to prevent discrimination against the LGBT community and there is no law in Michigan (at the state level) which prohibits such discrimination. There is a gap between what people believe is right and what they believe is real and what is actually reality.

- The Elliott-Larsen Civil Rights Act is Michigan’s law to prohibit discrimination. It includes protections for religion, race, color, national origin, age, sex, height, weight, family status, and marital status. Michigan does NOT protect LGBT residents from being refused business or medical services.

- Some 38 cities and townships in Michigan, including Lansing, East Lansing, and Delta Township, have enacted ordinances which make it illegal to discriminate against LGBT persons in many areas, but those ordinances do not specifically address providing medical services to LGBT people.

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- A new bill called the Religious Freedom Restoration Act (RFRA) has passed through the Michigan House of Representatives, prohibiting the government from intervening if health care workers, such as EMTs and pharmacists, and other business people refuse service on the grounds of protecting personal religious beliefs

- The Affordable Care Act (ACA or ObamaCare) put into place new patient protections that keep insurers from discriminating against LGBT people on the basis of health status. The law also bars health insurance companies from discriminating against patients based on their sexual orientation or gender identity. Insurers cannot drop a patient for having HIV or cap their lifetime medical costs to wriggle out of covering expensive anti-retroviral medications.

- The American Medical Association’s Code of Ethics states that doctors cannot refuse to treat patients based on race, gender, sexual orientation or gender identity.

- The Michigan Health Code provides licensing standards for health care professionals including requirements that health care providers comply with the state community standard of care and comply with ethical considerations.

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Panel of Presenters at First Sparrow Cultural Competency Series Discussion May 14, 2015Allan Fincus, RN; Howard T. Spence, Attorney; Lori Adams Simon, Moderator and Sparrow Diversity Training Specialist; Chris Swope, City of Lansing Clerk; Madeleine Townsend, Community Advocate

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Thanks to Sparrow Health Systems for Sponsoring the 2015 Cultural Competency Discussion Series for its Health Care Providers and for Inviting me to Participate in this important Discussion.

Thanks to Lawrence Wilhite, General Counsel and Board member at Sparrow Health Systems for Developing this training program for Health Systems Staff and for Attending and Participating in this Interaction.

Thanks to Jacqueline Thomas-Hall, Director of Diversity/Inclusion & Pastoral Care at Sparrow Health System and her assistant, Lori Adams Simon, MPA, Diversity/Inclusion Community Advocate at Sparrow Health Systems for coordinating and facilitating this training program for Sparrow Associated health care providers.

Thanks to Alan Fincus, RN at Sparrow; Chris Swope, Lansing City Clerk; and Madeleine Townsend, Community member and Activist for Interacting with me as Panel members.

Thanks to the 50+ Sparrow Associates who attended this initial training session on the “Intersections of Culture, Care, and Safety –Navigating Health Care with the Lesbian, Gay, Bisexual and Transgender Community.”

And Thanks to Jay Kaplan, Senior Attorney at the Michigan American Civils Liberty Union (ACLU) office who provided helpful hints and guidelines and access to resources related to the topics of this symposium.