Pain Management or Primary Care Doctor Denial of Services to Patient based on Patient Disability

——– Original message ——–
Date: 07/23/2015
Subject: Re: OMS TA – Pain Management or Primary Care Doctor Denial of Services to Patient based on Patient Disability

Dear :

Thank you once again for your quick and thorough response!  I need to digest what you have included and will let you know of any questions.  I am in your debt…

Sent from my iPad

> On Jul 21, 2015,
> Good Day
> The professional office of a healthcare provider is a “public accommodation” covered under Title III of the Americans with Disabilities Act (ADA). 42 U.S.C. § 12182 (7)(F); 28 C.F.R. § 36.104.  Accordingly, doctors are obligated to comply with the requirements of title III of the ADA.  28 C.F.R.§ 36.104.
> Under title III of the ADA, no person who owns or operates a place of public accommodation may discriminate against an individual on the basis of disability in the full and equal enjoyment of goods, services, privileges, advantages, or accommodations, and must provide auxiliary aids and services when necessary to ensure effective communication.  42 U.S.C. §§ 12182(a), 12182(b)(1)(A)(ii), 12182(b)(2)(A)(iii); 28 C.F.R. §§ 36.201(a), 36.202, 36.303. Ensuring that medical care providers do not discriminate on the basis of disability is an issue of general public importance.  The U.S. Department of Justice is authorized to investigate alleged violations of title III of the ADA and to bring a civil action in federal court in any case that involves a pattern or practice of discrimination or that raises issues of general public importance.
> The facts you articulated indicate that the doctors open to receive patients that you contacted to become your Primary Care Provider (PCP) and to help you with disability-related pain management and treatment failed to consult with you, the patient, to legitimately determine whether or not any of these doctors could provide the treatment that you sought. In failing to meet and consult with you these doctors denied a full and equal opportunity to participate in and benefit from the goods, services, facilities, privileges, advantages, or accommodations offered by these medical practices within the meaning of 42 U.S.C. §§ 12182(a), 12182(b)(1)(A)(ii), 12182(b)(2)(A)(iii) and 28 C.F.R. §§ 36.202;36.303. Essentially, you stated that once these doctors learned that you received pain management treatment, and that they would be referring you to other specialists regarding your disability-related pain, they immediately denied service or refused to take you in as a patient without any explanation.
> The ADA also provides “defenses” to public accommodations when the business, or in this case the doctors, determine that they are unable to provide services or that they must refuse services to a prospective or current patient based on an individual’s disability. For example, the doctors would have had to show that treating you would have posed a “direct threat” to the health or safety of others (see 42 U.S.C. § 12182(b)(3).  A determination that an individual poses a direct threat to the health or safety of others must be made through an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, not on generalization or stereotypes. 42 U.S.C. §12182(b)(3); 28 C.F.R. § 36.208(b). However, since your condition is neither contagious nor of the type that poses a direct threat to others should a doctor elect to provide treatment, the direct threat defense does not apply in your case.
> Essentially, the doctors you speak of appear to be denying services based on your disability which necessitates that you be prescribed pain medication in accordance to medical evaluation and as consistent with any treatment deemed necessary by a given doctor or specialist. Whatever the reasons for these refusals to treat, doctors are liable under Title III of the ADA for failing to provide their services to patients based on any stigma or stereotype associated with anyone who has a condition that imposes chronic pain. Moreover, a doctor is likely violating ethical codes by refusing to treat a given patient when the doctor is licensed appropriately to treat as a general practitioner and/or specialist in a given area. Hence, they may decline to treat patients that require medical services from a different practice area. But they may not decline to treat patients inside their scope of practice and/or they may not decline to provide a helpful referral even if the condition is outside their area of practice.
> I would recommend that you forward them this response and seek to obtain treatment so as to avoid filing complaints against these doctors under the ADA and other applicable laws. I attached a sample US DOJ Settlement Agreement that you should also forward.
> I am available for questions.
> Regards,
> Southwest ADA Center
> TIRR Memorial Hermann
> 1333 Moursund St.
> Research Center 2nd Flr. Suite 212
> Houston, Texas 77030
> Toll Free: (800) 949-4232
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One Response

  1. The learned counsel from Houston has studied the statute in great depth. It would take a truly talented and imaginative sociopath, to concoct an argument against this position.

    However, I differ with the learned counsel on his advice.

    The second-most-powerful weapon in the ADA legal arsenal, is the right of private action. Any citizen harmed by anyone, through that person’s ADA violation, has the right to sue for it.

    The very most powerful weapon in the ADA legal arsenal, is the right to collect one’s legal fees from a defendant, if one sues that defendant in court, to obtain an order of the court setting forth one’s rights as a disabled person. This provision applies, even when the defendant is a state or state agency.

    The Montana doctors who are being persecuted by the assistant AG, are powerless against him…but their patients have the right, under ADA, to sue his boss (the AG), and demand the right to be treated for pain. Moreover, they also have the right to demand payment from Montana, of their legal fees and costs, of asserting that right.

    Yes, it’s true. The US Justice Department has an ADA office with the power, theoretically, to act. The difficulty anyone in that office will have, in bringing a case, is that the DEA constitutes a large percentage of the Justice Department’s payroll and budget. It’s going to be quite a trick, for the ADA lawyers to keep their jobs at the Justice Department, if they go up against the entrenched forces of the DEA and the Drug War lobby. This is a clear conflict of interest. Accordingly, anybody at the ADA office willing to help pain patients, needs all the help we patients can provide.

    Ideally, that would mean one or more lawyers in private practice, with personal experience dealing with chronic pain. A patient or group of patients would hire the lawyers and sue. The ADA office lawyer at the Justice Department would intervene in the suit. At that point, the DEA is outmaneuvered! The AG has to stay in the case as intervenor.

    Which is precisely where we begin educating the US AG about the dreadful disease called arachnoiditis, that people are getting from too many needle sticks in their spines, delivering too much Depo-Medrol. At that point, the facts are self-explanatory. The arachnoiditis industry pretends to exist, to take heroic steps for pain control, to save patients from having to use opioids. And the reality is, that arachnoiditis sufferers get no relief from Depo-Medrol and must receive stronger opioids to fix the new pain they’ve gained. Every nickel ever paid out to the spine pokers who inject people with Depo-Medrol for pain, is a nickel that was obtained by fraud. Very often, obtained from the Government by fraud. The steroid injections do not relieve pain. The steroid injections make pain worse. After spending money on the injections, the patient needs more-expensive opioids for pain. Which cost more money. If that patient is on Medicare or SSDI or is a federal employee, the funds so obtained, were taken from the Government by fraud…and some taxpayers got dinged for the cost.

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