When a medical facility runs into trouble regarding the Patients’ Bill of Rights, more than likely it is the patient’s rights that are at issue, whether it be a question of privacy protection or access to a caregiver of the patient’s choice.

Less common are scenarios when a patient tries to wield the bill of rights in a way that infringes on the rights of the medical facility and its caregivers.

But two scenarios in the Healthcare Auditing Strategies companion e-newsletter, Compliance Monitor, shows that these cases do come up. And just as a medical facility must be aware of its responsibilities to patients, it has legal responsibilities to its employees as well. In some cases, these responsibilities may appear to conflict.

For example, a patient at a Florida care center reportedly requested treatment only from white staff members. The manager complied with the request. When asked to explain herself, the manager said she was following the Patients’ Bill of Rights.

Although the Patients’ Bill of Rights allows patients to select their care provider, it does not supersede Title VII of the Civil Rights Act of 1964. Patients cannot require an organization to willfully discriminate. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. But the Florida scenario suggests that even though the proper course of action may be obvious to some, it may not be clear to others.

Hospitals and other medical care facilities need to be aware of the potential for misinterpretation and have a process in place for handling it, says Christine Bachrach, senior vice president and chief compliance officer at HealthSouth Corporation in Birmingham, AL.

Bachrach sent the sample situation to others as a talking point.

“I think it certainly started some thought-provoking conversations around here,” Bachrach says.

Robert A. Wade, Esq., a partner at Baker & Daniels in South Bend, IN, handled a similar situation at a hospital several years ago.

Shortly after being admitted, a patient put a sign outside the hospital room that said “White nurses only,” Wade says. The hospital told the patient it would not honor the patient’s request and that the sign had to come down.

The hospital offered to transfer the patient to another hospital if the patient could not accept the hospital policy. The family relented and took the sign down.

“I think the proper course of action is clear every time” in a situation as blatant as that one, says Wade. However, the course of action in other situations might not be as obvious.

Protect against subtle abuses

For example, a situation might come up for an anesthesiologist concerning patient consent forms if a patient has heard that the anesthesiologist has had some bad patient outcomes, Wade says.

Under the Patients’ Bill of Rights, a patient would have the right to exclude a physician if the patient’s concerns were based on medical competency, Wade says, adding that there would have to be some factual basis for the patient’s concern.

“The patient has to have more than a suspicion. If the patient is exercising his or her rights because of the perception that the medical outcome might be compromised, it can be used to exclude a certain physician.

If the patient is using the Patients’ Bill of Rights as a proxy to discriminate, that’s not acceptable,” says Wade.

Another example is a heavy patient requesting a young nurse for fear that an older nurse wouldn’t be able to lift or turn them over.

A situation such as this might be best handled through a hospital’s job description, ensuring that any nurse put into such a situation would be able to handle the physical requirement of the job.

HealthSouth hasn’t faced anything as overt as the Florida situation, Bachrach says, but “we do run into occasional patient concerns. A female patient may be uncomfortable having a male nurse.”

Further, some facilities face difficulties concerning patient access to translators because the costs of providing translation services may exceed the payment for treatment.

Section 504 of the Rehabilitation Act of 1973 and the American Dental Association prohibit entities (e.g., Medicare) that receive federal money from discriminating against persons with disabilities, Bachrach says. The government states that facilities must provide translators regardless of the cost.

Train beyond antidiscrimination

Bachrach says its important to train new staff members who never dealt with such a situation and, therefore, might not know how to proceed.

Compliance is of top concern. Appropriate behavior in such situations should be second nature.

Staff members should know that “if a patient says ‘X’ to you, you should respond with ‘Y,’ ” says Bachrach.

In other words, a training program must present employees with examples of scenarios that might come up and how to handle them.

It isn’t enough to say a situation is discriminatory, says Bachrach.

Employees must recognize that discrimination can arise in many guises and be able to admit when they are unclear on how to deal with a particular situation.

“That’s why developing a training program can be somewhat of an art form,” Bachrach says. It involves trying to translate training into everyday, real-life scenarios.

With new concerns arising all the time, a training program has to be flexible enough to adapt, Bachrach notes.

“Every healthcare organization must protect patient rights” from accreditation and legal standpoints, says Bachrach.

And the legal repercussions can be serious, says Wade.

Accommodating a request such as the Florida patient’s could be viewed as creating an atmosphere of discrimination and the basis for legal action against a hospital.

Establish facility protocols and procedures

Every medical care facility should have a process for handling complaints and accreditation from the Office of Civil Rights, says Bachrach.

HealthSouth’s Web site has an extensive list of patient rights and responsibilities, including statements concerning civil rights: “Any treatment determination based on a person’s physical status or diagnosis will be made on the basis of medical evidence and not on the basis of fear or prejudice.”

Deciding how to handle patient requests that might result in civil rights or other legal complications should be done on a case-by-case basis and is best done in a direct manner, Bachrach says.

“We say, ‘We can’t accommodate that request’ right up front,” she says. “Being honest can go a long way with a patient.”