DOJ Announces First Settlement of an ADA Case Involving Hepatitis B

The University of Medicine and Dentistry of New Jersey has agreed to adopt a disability rights policy that is based on CDC's Hepatitis B recommendations and to enroll two applicants in the UMDNJ New Jersey Medical School and the UMDNJ School of Osteopathic Medicine.

The U.S. Department of Justice has announced its first-ever settlement of an Americans with Disabilities Act case involving people with hepatitis B. The two individuals involved had applied in 2011 and were accepted, one to the University of Medicine and Dentistry of New Jersey School of Osteopathic Medicine and the other to the UMDNJ New Jersey Medical School, but the schools later revoked their acceptances. The Justice Department argued the schools had no lawful basis for excluding the applicants, both because students at the schools are not required to perform invasive surgical procedures and because excluding them contradicts current CDC guidance on HBV. In July 2012, CDC's "Updated Recommendations for Preventing Transmission and Medical Management of Hepatitis B Virus (HBV) -- Infected Health Care Workers and Students," said no transmission of HBV has been reported in the United States from primary care providers, clinicians, medical or dental students, residents, nurses, or other health care providers to patients since 1991, according to DOJ.

The department's March 5 news release said both of the applicants are from the Asian American Pacific Islander community, and that CDC reports Asian American Pacific Islanders (AAPIs) make up less than 5 percent of the U.S. population but more than 50 percent of Americans living with chronic HBV. "Nearly 70 percent of AAPIs living in the United States were born, or have parents who were born, in countries where hepatitis B is common. Most AAPIs with Hepatitis B contracted Hepatitis B during childbirth," according to the release.

UMDNJ has more than 6,000 students enrolled on five campuses. These include three medical schools, the state's only dental school and only school of public health, a graduate school of biomedical sciences, a school of health-related professions, and a school of nursing. Jeffrey Tolvin, UMDNJ’s media relations and communications director, provided the university’s statement about the ADA case:

"The University of Medicine and Dentistry of New Jersey today explained why two of its medical school applicants, who had been highly infectious with the Hepatitis B virus, had their initial acceptances rescinded, but were subsequently admitted and are matriculating or will be matriculating in 2013. The decision to rescind the acceptances was grounded in the University's priority to avoid admitting students who pose safety risks to patients, as these students infected with HBV did at the time of their initial acceptance. Both students had viral loads of 6,400 times greater than the limits recommended by the Society for Healthcare Epidemiology of America (SHEA). However, after the students followed a treatment process recommended by the University, their levels of infectivity decreased dramatically and it was determined that they fit within accepted guidelines for accepting students with HBV.

"One of the two applicants was initially accepted to UMDNJ's New Jersey Medical School (NJMS), the other initially accepted to UMDNJ’s School of Osteopathic Medicine (SOM), each for the Class of 2015. Thereafter, through health screening procedures mandated for all accepted students, the schools became aware of the HBV status of these two applicants.

"Following then-current CDC and SHEA guidelines, a standing committee of medical experts, including infectious disease specialists, University administrators and occupational health experts, initially determined that because these two students were highly infectious, their admissions should be rescinded because their functioning as medical students, including any participation in exposure-prone invasive procedures that they may encounter in their clinical education, would pose significant safety risks to patients.

"Exposure-prone invasive procedures are defined by the CDC as those known or likely to pose an increased risk of percutaneous injury to a health care provider that could result in provider-to-patient blood exposure. Examples of EPPs include various forms of abdominal, gynecological, cardiothoracic, oral and orthopedic surgeries. While neither student would be required to participate in such procedures as mandated by the curriculum, it is typical for students in the health sciences to participate in exposure-prone procedures because of the invaluable hands-on learning experiences they provide. It was also determined that neither applicant had ever been treated for HBV.

"Following an extensive internal review, it was agreed that given new developments and improvements in HBV treatments and medications to lower a carrier’s infectivity and control the risk of infecting others, these students might respond favorably to treatment and, if so, they may fit within the University policy that tracked CDC and SHEA guidelines for admitting students infected with the HBV. The students were informed that their admissions would be deferred for one year to allow them to receive appropriate medical treatment. Both students responded favorably to the treatment, and their levels of infectivity decreased dramatically."

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