PART 3: URGENT AND IMPORTANT CCDC INVESTIGATION OF CSL PLASMA

Please see Part 1  and Part 2 for other important related information.

THE FOLLOWING PROVIDES AND EXPLANATION OF THE LEGAL BACKGROUND REGARDING DISABILITY DISCRIMINATION THAT MAY OCCUR BY PLASMA CENTERS, INCLUDING CSL PLASMA:

According to their website, CSL Plasma states the following with respect to “Who Can Donate?”

Anyone in good health, 18 or older, who weighs at least 110 lbs, have had no tattoos or piercings within the last 12 months, meets our eligibility and screening requirements, has valid identification and a permanent address is eligible to donate plasma.

To maintain high health standards, a member of our medical staff gives every potential donor a screening examination, and gathers medical history information. This is for the donor’s safety as well as the quality of the product that will be made from plasma, and we assure the utmost respect to donor privacy.

Both the requirements regarding “good health” and the required “screening examination” may very well discriminate against people with disabilities, even though they may have been put in place with the best of intentions. These phrases often serve as buzzwords for disability discrimination. For example, what does “good health” mean and who gets to decide? Also, as explained below, “screening examinations” may screen out letting people with disabilities donate plasma even when an individual’s disability has nothing to do with the ability to provide a plasma donation safely.

Plasma centers like CSL Plasma are places of public accommodation under the Americans with Disabilities Act (“ADA”) and the Colorado Anti-Discrimination Act (“CADA”) and are not permitted to discriminate on the basis of disability.[1] As such, CSL Plasma cannot refuse to allow you (if you are an individual with the disability) to donate and receive payment for doing so on the basis of disability except under very limited circumstances. If you have already contacted a CSL Plasma center in the past and have been denied the ability to donate plasma based solely on the basis of your disability or if you call now to try to make a donation, here are some key things to remember:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who ow/ns, leases (or leases to), or operates a place of public accommodation.[2]

Both Title III of the ADA and the CADA apply to the owners of public accommodations and/or businesses that lease a place of public accommodation or operate a place of public accommodation, although the CADA refers to “any person” who discriminates whereas the ADA only applies to entities that discriminate, not persons.[3] You should also be aware that Title III of the ADA prohibits an entity from engaging in contractual, licensing or other arrangements that result in discrimination on the basis of disability as well.[4] The CADA is intended to apply all of the same standards and defenses as the ADA.[5] As a result, it is possible, for example, that the CADA incorporates standards pertaining to contractual licensing and other arrangements that result in discrimination. Title III of the ADA prohibits many forms of discrimination some of which are very direct and others are much more subtle.

And now for some minutia or “getting in the weeds” of ADA Title III and CADA claims:

An individual or class of individuals on the basis of disability cannot be denied the equal opportunity to participate in plasma donation; nor can an individual or entity like CSL Plasma use “standards or criteria or methods of administration” that have the effect of discriminating on the basis of disability or perpetuate the discrimination of others (for example, a standard that prohibited all people who are blind or deaf or who have any other form of disability that is not specifically related to the individual’s ability to donate plasma).[6] Title III also prohibits imposing “application of eligibility criteria ” that screen out or tend to screen out an individual with the disability or any class of individual with disabilities from participating in plasma donation and prohibits failing to “make reasonable modifications in policies, practices or procedures” when such modifications are necessary to afford an individual with disabilities and equal opportunity to participate in plasma donation or due to a failure to “provide appropriate auxiliary aids and services” (like sign language interpreters if necessary for effective indication) in order to participate in plasma donation.[7] Modifications of policies, practices and procedures under Title III of the ADA may also include requiring that a plasma center not discriminate against an individual with the disability who uses a service animal.[8] Under the CADA, an individual with a disability has the right to be accompanied by a service animal and even a trainer of a or an individual with the disability accompanied by an animal that is being trained to be a service animal is permitted to have the service animal in or service animal in training in any place of public accommodation.[9]

In addition, plasma centers are required to be fully accessible to people with disabilities if they are newly constructed facilities under the ADA if they have been altered or renovated in a significant way, and they must remove architectural and communication barriers when doing so is readily achievable which means without difficulty or expense (like installing accessible parking spaces and ensuring that equipment and rooms are made accessible when doing so is not complicated or expensive).[10] The CADA also addresses design and construction issues with respect to the requirements that it be construed to apply the same standards and defenses available under the ADA reference above and also in its remedial provisions.[11]

For people with mobility disabilities, there is specific guidance issued jointly by the United States Department of Justice, Civil Rights Division, Disability Rights Section and the United States Department of Health and Human Services Office for Civil Rights (“Joint Guidance”). This guidance addresses requirements related to the accessibility of medical equipment and also the need to accommodate individuals with such disabilities. See “Americans with Disabilities Act: Access To Ethical Care for Individuals With Mobility Disabilities.” Here are just some examples that relate directly to this guidance as well as prohibitions set forth in the policies of plasma clinics regarding transferring individuals with mobility disabilities:

• • Question: I don’t want to discriminate against patients with disabilities, but I don’t want my staff to injure their backs by lifting people who use wheelchairs onto exam tables. If my nurse has a bad back, then she doesn’t have to help lift a patient, does she?

Staff should be protected from injury, but that doesn’t justify refusing to provide equal medical services to individuals with disabilities. The medical provider can protect his or her staff from injury by providing accessible equipment, such as an adjustable exam table and/or a ceiling or floor based patient lift, and training on proper patient handling techniques as necessary to provide equal medical services to a patient with a disability. (See Part 4 [of the document] for more information on this equipment.)

• • Question: What should I do if my staff do not know how to help a person with a disability transfer or know what the ADA requires my office to do? Also, I am unsure how to examine someone with spasticity or paralysis.[12]

To provide medical services in an accessible manner, the medical provider and staff will likely need to receive training. This training will need to address how to operate the accessible equipment, how to assist with transfers and positioning of individuals with disabilities, and how not to discriminate against individuals with disabilities. Local or national disability organizations may be able to provide training for your staff.[13]

Therefore, it might very well be considered discrimination on the basis of disability if a plasma clinic has a policy or standard that requires an individual who uses a wheelchair who wishes to donate plasma to be able to transfer herself to a device such as an examination table or chair used for plasma donation independently and without any assistance from the staff working at the plasma center.

Furthermore, it is very important that plasma centers do not discriminate on the basis of myths, fears, and stereotypes associated with disabilities as often occurs with respect to people with cognitive or psychiatric disabilities.[14] Therefore, if a plasma center prevented someone during its screening process from donating plasma because of fears or stereotypes related to the individual due to a condition that causes muscle spasms, seizures or psychiatric disorders, all of these actions may constitute discrimination under Title III. Likewise, if a plasma center refused to allow someone to be a plasma donor because the individual had a psychiatric disability based on a fear that the individual might attempt to donate plasma without having taken his or her medications might very well constitute discrimination on the basis of disability.

There are exceptions to all of the forms of discrimination that are prohibited under Title III of the ADA set forth above, but they are very limited. For example, if allowing the individual to donate plasma would cause an “undue burden to the plasma center, or if the individual somehow constituted a direct threat to the health or safety of others even if the behavior that caused that direct threat was related to disability and could not be accommodated reasonably, the plasma center may refuse to allow the individual to donate plasma. Even when a plasma center falls under the ADA provisions addressing newly designed and constructed facilities, there might be an exception for full and complete accessibility if it is structurally impracticable to make the facility accessible and in compliance with the requirements for the Standards for Accessible Design. There may be other disability-related reasons why an individual might not be able to donate plasma (for example, if an individual had some blood-related disease that would interfere with providing plasma, this might constitute an exception). Nevertheless, as said, the exceptions are very limited. As an example of the limitations on the exceptions, making a  determination as to whether allowing an individual with a disability to donate plasma constitutes an undue burden for the facility at issue, many considerations must be made like determining resources and capabilities of any parent company involved with the facility in question. Another example relates to the structural impracticability defense related to designing instruction. A public accommodation like a plasma center would have to prove that the conditions under which the facility was built made it almost nearly impossible to build it in for compliance with the ADA if it falls under the newly designed and constructed facilities provisions.

Therefore, as set forth in Part 1 of this Alert, please let us know if you have experienced discrimination on the basis of your disability by CSL Plasma, or, as set forth in Part 2 of this Alert if you wish to contact CSL Plasma and donate plasma, and you experience discrimination on the basis of disability as a result, please do contact Kara Gillon at the email address or telephone number listed in Part 1 of this Alert.

[1] 42 U.S.C. § 12181(7)(f) (defines “public accommodation” to include the office of a healthcare provider or other service establishment); Colo. Rev. Stat. § 24-34-601(1)(defines “place of public accommodation” to mean a place of business engaged in sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering sales to the public or public facility of any kind whether indoor or outdoor); Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227, 1234 (10th Cir. 2016) (holding that a similar plasma donation center is a public accommodation under the ADA).

[2] 42 U.S.C. § 12182(a); Colo. Rev. Stat. § 24-34-601(2)(a) (referencing the prohibition of discrimination on the basis of disability by any “person” defined elsewhere in the statute, Colo. Rev. Stat. § 24-34-301(5)(a), as including limited liability companies, partnerships, associations, corporations and other entities similar to those identified in Title III of the ADA).

[3] Id.

[4] 42 U.S.C. § 12182(1)(A)(i)-(iii).

[5] Colo. Rev. Stat. § 24-34-802(4); Colo. Code Regs. § 708-1:60.

[6] Id. §§ (b)(1)(A)(1) & (b)(1)(D).

[7] Id. §§ (b)(2)(A)(i)-(iii).

[8] 28 C.F.R. § 36 302(c)(1).

[9] Colo. Rev. Stat. §§ 24-34-803(1)(a) & (2)(a) & 24-34-804(1). Both the ADA and the CADA place some limitations on the use of a service animal (and/or under the CADA a service animal in training). 28 C.F.R. §§ 36.302(c)(2), (4), (5) (the animal must be in the control of its handler, the animal must be housebroken and public accommodations are not responsible for the care or supervision of service animals); Colo. Rev. Stat. § 24-34-803(4)(requiring that a service animal or a service animal in training must be under the custody or control of the individual wh the disability or the trainer).

[10] 42 U.S.C. §§ 12183 (applicable to new construction and alterations) & 12182(b)(2)(A)(iv) (applicable to the requirement of existing facilities — those designed and constructed before the enactment of the ADA — to remove structural and communication barriers when doing so is readily achievable).

[11] Colo. Rev. Stat. §§ 24-34-802(b)-(c).

[12] A similar analysis would be applied to a blood donation center or plasma donation center.

[13] The guidance provides direct contact information for the ADA Website and the US Department of Justice as well.

[14] 28 C.F.R. pt. 36, app. C at 706 (a person who is not allowed into a public accommodation because of the myths, fears, and stereotypes associated with disabilities would be protected under the ADA as would an individual who was denied services because the public accommodation feared a psychological condition constituting a disability might result in problems if the individual was not medicated properly).

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