An attorney for Disability Rights Oregon has called on the Oregon Medical Board to start over on its proposed rule to address discrimination in medical settings, arguing the latest version “is likely to engender confusion and impair the rights of people with disabilities.”
The Aug. 23 letter from Thomas Stenson, the advocacy group’s deputy legal director, comes after the board already revised the rule once, showing the challenges the state regulatory board faces as it responds to a national effort to confront racism in health care.
The board — which regulates Oregon’s doctors, physician assistants, acupuncturists and podiatric physicians — began updating its definition of unprofessional conduct earlier this year to include discrimination.
Over the summer, the board reopened public comment in response to concerns raised by providers through the Oregon Medical Association, a professional association for physicians and physician assistants that the initial version of the rule was too vague and could result in licensees facing disciplinary proceedings without a clear legal standard. The earlier version would have required doctors and other licensees to report health care professionals for discrimination, which would have included implicit bias and microaggressions — subtle displays of prejudice that can be intentional or unintentional.
Now the new version proposed by board staff “appears more clearly focused on the concept of unfair discrimination in health care,” wrote Mark Bonanno, the Oregon Medical Association’s general counsel and vice president of health policy, in an Aug. 26 letter.
However, the advocacy group’s attorney, Stenson, questioned the new version as unacceptable.
“We do not need platitudes designed to appease upset parties temporarily. We want real, meaningful change. Our lives depend on it.”
'We do not need platitudes'
The new proposed rule is a “meaningless, unenforceable provision that muddies, instead of clarifies, what the OMB considers to be discrimination,” Stenson wrote in his letter, obtained under Oregon Public Records Law.
“If the OMB truly wishes to articulate a robust, enforceable standard to define discrimination, it must go back to the drawing board. Oregonians grow tired of vague bureaucratic responses that promise much and deliver nothing,” Stenson wrote in his letter. “We do not need platitudes designed to appease upset parties temporarily. We want real, meaningful change. Our lives depend on it.”
The revised version of the proposed board rule defines discrimination in the practice of medicine, podiatry or acupuncture as “differences in the quality of healthcare delivered that is not due to access-related factors or clinical needs, preferences, and appropriateness of intervention.”
Stenson wrote that “access-related factors” are undefined and could be interpreted to permit discrimination against people who are physically unable to access a medical facility or its equipment. Similarly, he wrote that “preferences” is also undefined and a provider could exploit that to justify not providing a sign language interpreter to a deaf patient or refusing to allow a patient to bring a service dog into an exam room.
Additionally, Stenson wrote that “appropriateness of intervention” could provide cover to physicians who provide less care to patients because of their disability. He added that based on the experience of Disability Rights Oregon and its constituents, there is “a substantial minority of physicians and other providers” who show a “strong prejudice against people with disabilities and devalue the lives of people with disabilities.”
People with mental illness or developmental disabilities already have a harder time finding OB/GYNs, gastroenterologists and other providers who will accommodate them, Stenson wrote. He cited what he said were two examples of more severe medical discrimination against people with disabilities: one involving a hospital physician who pressured a patient with an intellectual disability into signing a do-not-resuscitate order during the early days of the COVID-19 pandemic.
The other involved a patient with mental illness who died last year after emergency department staff assumed he was faking his symptoms, Stenson wrote. Staff did not check the patient for medical problems and insisted police take him into custody. The patient died while in transport of an overdose related to a preexisting condition.
“Medical prejudice against people with disabilities, medical judgment that their lives are not worth living, and medical callousness towards the value of their lives are killing people with disabilities,” wrote Stenson.
Elizabeth Ross, the board’s legislative and policy analyst, told The Lund Report in an email that the board’s administrative affairs committee will review public comments and a hearing officer’s report on the rule at its Sept. 11 meeting. The board may adopt the rule at its Oct. 3 meeting.
Jayme Barnes, the Oregon Medical Association’s spokesperson, told The Lund Report in an email that the rule, like others, “may still need further work down the road depending upon how it is implemented and enforced.”
“We will track that and keep an open line of communication with the Board like we normally do,” she wrote.
