Medical Students, Residents and Fellows Should Report Their Disabilities

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Many do not realize it, but universities, medical schools, graduate medical education (GME) programs and most other educational programs have offices established to assist students who have disabilities. This includes, in most cases, evaluating them, assisting in coordinating treatment, recommending therapists and providing access to psychotherapists for their current students and residents. It is important that students, residents, fellows and their advocates be knowledgeable about their rights and responsibilities.

Although protections exist, the student, resident or fellow, has the responsibility of notifying the institution of a disability and requesting accommodations which may be necessary to compensate for it. For students, residents and fellows with disabilities, you must know your rights and exercise them.

Learning Medicine With a Learning Disability.

As the number of medical students and residents with disabilities has grown, so has the pressure on medical schools and universities to ensure that they are complying with federal laws and regulations prohibiting discrimination based on disabilities. To treat medical students and those participating in graduate medical education (GME) with learning disabilities equally, medical schools and GME programs need to advise students and residents of their rights and available resources. Some universities and medical schools require students to sign a statement during enrollment saying they have read and understood the requirements and what is expected of them if they have a disability.

It is Crucial to Notify the Institution of a Disability and to Request Reasonable Accommodation.

Many involved in medical education programs refrain from reporting their known disabilities out of a misplaced fear of being stigmatized, ostracized or discriminated against. Actually reporting such conditions early can have an opposite effect.

If you have a known medical condition, learning disorder or other problem, placing the institution on notice can help avoid future problems. In the absence of such notice to the institution, professors, instructors, attendings and academic officials may incorrectly blame the student for:

• Poor academic performance;
• Being lazy;
• Being disruptive;
• Being too slow;
• Inattention;
• Failing to heed constructive criticism;
• Tardiness;
• Being too emotional;
• Failing to follow instructions;
• Lying or being deceptive;
• Inability to communicate;
and many others.

These can all be attributable to a mental or physical disability, that is easily explained, susceptible to treatment and, by law, which must be reasonably accommodated.

In many cases, undiagnosed physical conditions may be to blame, such as diabetes, hypothyroidism, a chemical imbalance, or even a brain tumor.

Biggest Problem: Waiting Too Late to Do Anything.

However, in our clients we often have cases where the student has waited far too late to report the disability or request reasonable accommodation for it. We have had many clients who have failed to acknowledge or report their disabilities until after they are being terminated from a program, suspended from a program or disciplined by their institution.

At The Health Law Firm, our attorneys are experienced at representing clients who have failed to report their disabilities. To learn more about this area of our practice, click here.

Recent Case: Nursing Student Suing University Over Failure to Accommodate Disability.

In a lawsuit against Misericordia University in 2015, a nursing student sued the university claiming that the teachers did not do enough to help her succeed in the nursing program. The student, who suffered from anxiety, depression and stress, took the nursing exam last year and failed. When she returned this year, school officials promised her a distraction-free environment to take the test. She thought that she would be in the same building as her peers and would be able to communicate with the professor at all times, as in the past. However, on the day of the exam, the student was placed in a separate building and was given a cellphone number to call the professor if she needed assistance.

The nursing student’s attorney is using Section 504 of the Rehabilitation Act, which “prohibits programs that receive federal funds from discriminating against people with disabilities,” as the primary legal argument. The nurse’s attorney also stated that his client was seeing the school’s psychologist for her anxiety, depression and poor concentration since 2011, and that the school and professors were aware that she needed special treatment. The school is not commenting on the lawsuit.

What is Section 504 of the Rehabilitation Act?

The Rehabilitation Act is a federal law that protects qualified individuals from discrimination based on their disability. It also forbids organizations and employers from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. The Act defines the rights of individuals with disabilities to participate in and have access to program benefits and services. To read Section 504 of the Rehabilitation Act, click here.

If You Have a Disability, to Protect Yourself, You Must Take the Proper Steps Immediately.

There are powerful federal laws and, in most states, state laws that protect students, residents and fellows from discrimination based on their disabilities. These include the Rehabilitation Act (cited above) and the Americans with Disabilities Act. Click here for copy.

In addition, many states have state constitution provisions or state laws that protect those with disabilities.

I know of no medical school, university, teaching hospital or GME program that does not have procedures for notifying the institution when the student has a disability and for requesting a reasonable accommodation. The biggest problem we see in this area of the law is that the student, resident or fellow has failed to give the proper written notice required by the institute policies, handbook or catalogue. You have important rights; use them.

To avoid giving them up, you should immediately notify your institution in writing, upon admission or as soon as the disability is diagnosed. You must then follow-up. Do not get frustrated. Do not think that you will be discriminated against because you have exercised your rights. Do not give up. Provide all documentation and information requested. Then, if your institution fails to provide reasonable accommodations to you, or if instructors discriminate against you because of issues caused by your disability, file a written complaint immediately.

File your written complaint with the office responsible for receiving such complaints at your institution (usually it is called the “Equal Opportunity Office” or something similar). Also, file a complaint with the U.S. Department of Education and the U.S. Department of Justice.


Comments?

What are your thoughts on the guidelines universities and medical schools need to follow for students and residents with learning disabilities? Do you think the university violated Section 504 of the Rehabilitation Act? Do you think that the student was accommodated appropriately in the case above? Please leave any thoughtful comments below.

Contact a Health Care Attorney that is Experienced in the Representation of Medical Students, Interns, Residents and Applicants.

The Health Law Firm and its attorneys represent medical school students in disputes with their medical schools, internship supervisors and in dismissal hearings. We have represented residents, interns and fellows in various disputes regarding their academic and clinical performance, allegations of substance abuse, failure to complete integral parts training, alleged false or incomplete statements on applications, allegations of impairment (because of abuse or addiction to drugs or alcohol or because of mental or physical issues), because of discrimination due to race, sex, national origin, sexual orientation and any other matters.

To contact The Health Law Firm please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Sources:

Montgomery, Garrett. The Spread It. “Jennifer Burbella Sues School: Failed Nursing Student Sues University.” (May 15,2015). From: http://www.thespreadit.com/jennifer-burbella-sues-school-failed-nursing-student-55772/

Strunk, Brianna. PA Homepage. “Attorneys: Former Student Who Sued Misericordia University Might Have a Good Case.” (May 14,2015). From: http://www.pahomepage.com/story/d/story/attorneys-former-student-who-sued-misericordia-uni/36276/oAPNIfeaakWVwmMOVLOv1Q

Leuchovius, Deborah. Pacer Center. “ADA Q & A: Section 504 & Postsecondary Education.” (May 15, 2015). From: http://www.pacer.org/publications/adaqa/504.asp

U.S. Department of Health and Human Services. “Your Rights Under Section 504 of the Rehabilitation Act.” (May 14, 2015). From: http://www.hhs.gov/ocr/civilrights/resources/factsheets/504.pdf

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: ADA, American Disabilities Act, Rehabilitation Act, attorney, medical student lawyer, learning disabilities, graduate medical education (GME) defense lawyer, defense counsel, defense attorney, medical student attorney, discrimination, lawsuit, mental issues, statutory right to accommodations, disabilities, disorder, exam, nursing school, nurse, graduate medical education attorney, lawyer for medical students, education law attorney, resident attorney, litigation, filing suit against medical school, defense attorney, defense lawyer, health care lawyer, health care attorney, health care, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law Firm. All rights reserved.

Baker Act Basics

6 Indest-2008-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

We are frequently consulted by family members of individuals who are erroneously confined under Florida’s Baker Act, Section 394.451, Florida Statutes. An erroneous confinement under the Baker Act can occur for a number of different reasons. However, the result is that an independent citizen is confined in violation of his constitutional rights to liberty and privacy.

The Baker Act contains a wide range of provisions ranging from screening, to appointment of legal guardians. But, what the Act is most known for are the involuntary evaluation and confinement provisions.

What is Involuntary Evaluation?

Being Baker Acted essentially means that a person has exhibited some behavior that makes them appear to have a mental illness. Going without care or treatment may result in neglect or harm to themselves or to others.

The initial determination can be made by one of three types of people:

(1) A court can issue an order stating the person appears to meet the criteria and can direct that person to be transported to a facility for an involuntary evaluation;

(2) A law enforcement officer can take a person who appears to meet the criteria into custody and transport him/her to a facility for an involuntary evaluation;

(3) A physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and family therapist or clinical social worker may execute a certificate stating that he/she has evaluated the person within the last 48 hours and the person appears to meet the criteria for involuntary evaluation.

When a person is the subject of an involuntary examination, they can be held in a facility for a maximum of 72 hours. During this period of time, physicians and counselors will examine and interview the patient to determine his/her mental state. This in turn determines the type and duration of further treatment that may be needed including further involuntary confinement.

The facility must, within the 72 hours, do one of the following things:

(1) Release the patient without condition;

(2) Release the patient for voluntary outpatient treatment;

(3) Request that the patient give consent to being admitted for voluntary inpatient treatment;

(4) File a petition for involuntary placement with the appropriate circuit court when outpatient or inpatient treatment is necessary but the patient refuses to consent.

How to Get Out.

The facility isn’t the only one with the ability to get the court system involved. A patient or the patient’s guardian advocate can file a petition for writ of habeas corpus requesting a hearing regarding release from involuntary confinement.

Before you file a petition, a friend or family member, with the help of legal counsel, may be able to help to obtain a patient’s release during the 72-hour window. The predominant factor is whether the person being held is a danger to themselves or others. This means that a family’s plans to address the facility’s concerns through voluntary treatment or the active participation of family can be very effective.

One of the best ways to let the facility know that you are serious about getting someone released is to hire an attorney. The mere presence of an attorney along with family members lets the facility know that there is a support system in place.

The Baker Act specifically states that confinement is not appropriate when any apparent harm “may be avoided through the help of willing family members or friends” Section 394.463(1)(b)(1), Florida Statutes.


The Hearing Process.

If you are unable to obtain a person’s release prior to the facility filing a petition for involuntary confinement, here are some strategies to prepare for the hearing.

(1) Meet with the patient to try to explain the situation and try to prepare them for the hearing by explaining the purpose of the hearing and what questions to expect.

(2) Meet with the facility’s director to try and gauge the institution’s position on further treatment and involuntary confinement. Depending on the plans put in place by the confined person’s family, you may be able to convince the facility to withdraw the petition and discharge the patient.

(3) Meet with the counselors and nurses caring for the patient to discuss their opinions. These people are likely to be key witnesses during the hearing.

(4) Meet with the physician who examined the patient and try to determine why he/she is recommending further treatment. Also, try to discuss alternative treatment plans that would be acceptable so that those arrangements can be made prior to the hearing.

(5) If possible, meet with the assistant state attorney who will be representing the government in the hearing to discuss options. If you can get the treating physician on your side, you may be able to get the government to support a discharge.

Many of these tips require knowledge of the legal system and the medical field. You or your family member stand the best chance of being discharged from a Baker Act confinement if you have experienced legal counsel or a patient advocate to assist. To learn even more about the Baker Act, click here to read one of our past blogs.

Comments?

Have you had any experience with a family member or friend being involuntarily confined under the Baker Act? How did you handle the situation? How did the victim react to being confined? Please leave any thoughtful comments below.

Contact Health Law Attorneys Experienced in Handling Victims of Involuntary Confinement Through the Baker Act and Marchman Act.

The Health Law Firm represents individuals, families and friends in challenges to and hearings related to the Florida Baker Act and Marchman Act, when the basic criteria for confinement are not met and there is no medical necessity for further confinement.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.

KeyWords: Baker Act, Florida Baker Act, Florida Mental Health Act, Baker Act cases, Baker Act defense, Involuntary Baker Act Confinement, Involuntary Confinement in hospital, Confinement in Baker Act facility, mental health confinement, petition for Writ of Habeas Corpus, Baker Act attorney, Baker Act lawyer, Florida Baker Act, Florida Marchman Act, Baker Act defense attorney, Baker Act defense lawyer, Baker Act law, Baker Act forms, Marchman Act, health law, health law firm, The Health Law Firm

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law firm. All rights reserved.