“Culturally competent” health care

A recent NYT story retells the story of a patient who needed a catheter.  The patient presented as female, engaging in certain feminine gender performative behaviors.  The day of the surgery arrived and, lo and behold, the surgeon was surprised to find a biological male.  It seems the pre-operative work-up did not include sufficient discussion with the patient or a physical examination of the patient’s body into which the surgeon was soon to cut.

The real life problem is apparent.  Non-gender-normative individuals have a much more difficult time finding meaningful access to health care.  As the article depicts, this is not the first instance of or revelation about this type of problem.

Recent HHS recommendations seem to attempt to curtail this effect.  Among other things, “HHS will encourage new and existing health profession training programs, including behavioral health … programs, to include LGBT cultural competency curricula. The lack of culturally competent providers is a significant barrier to quality health care for many LGBT people, particularly those who identify as transgender.”  But, as the article notes, this proposed future action simply hasn’t cut it.  At least, not yet.

This is where the law enters the discussion.  Recommendations from Health and Human Services are just that.  Recommendations.  What is the law doing to mandate so-called “culturally competent” health care delivery?  Frankly, nothing.

Take Massachusetts as an example.  The first state to legalize gay marriage and the 16th state to pass a gender identity equality bill governs physician licensing by statute and regulation, none of which require this cultural competency.  Medical school accreditation standards similarly do not require training on this specific type of bedside manner and patient care, though a couple of standards perhaps come close (see ED-22 and ED-23).

So, it might seem that the easy solution is to legally mandate queer-friendly interpersonal skills sensitivity training for health care professionals.  The question becomes — how?  How can the law mandate good interpersonal skills, and how could such a mandate be enforced?  Should medical malpractice lawsuits be filed based on a failure to engage with patients in a respectful and meaningful way?  In the case described in the NYT article, the patient outcome wasn’t one that would typically fall into the medical malpractice category; the catheter insertion procedure went well.  Assuming this were to become the default regulation, is it feasible given the time and money required to file a suit these days?  Would such a requirement run into conflict with conscience clauses?

The question boils down to whether the law can, and should, require sensitivity to gender identity and other non-hegemonic identities or classifications in health care delivery (and potentially in other spheres of social service systems as well).  This is a real life social problem, but to date, the law has not been a player.

I look forward to your comments.

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Social media, flash mobs, and the Constitution

We’ve seen a variety of situations recently where social media tools have been used for something other than social good.  A woman in Philadelphia posted an offer to pay $1000 for someone to kill the father of her baby, who is now dead… shot in the chest.  (Read the story here.)  The rioters in London used Blackberry Messenger (BBM), Facebook, and Twitter.  (Read here, here, and here, for example.)  The Cleveland suburb of Shaker Heights saw more than just fireworks this year on the Fourth of July.  (Read here.)  Violent flash mobs have been so frequent in Philadelphia that the mayor imposed a curfew for teens.  (Read here and here.)  Bay Area Rapid Transit (BART) Police shut off underground cell phone service last week in response to an above-ground protest.  (Read here and here.)  These are just a few examples.

Proponents of efforts to curtail the use of social media to incite violence seek to protect the greater good, i.e., keep the peaceful public safe from crazed mobs.  Opponents claim that such restrictions violate First Amendment rights of free speech and association.

In response to the July 4 mob and other similar activity, the Cleveland City Council adopted an ordinance as an “emergency measure” making it a misdemeanor crime to “use social media to induce persons to” riot, fail to disperse, or unlawfully congregate.  (See the press release or go here, click on July 27, and scroll down to printed page 1289 for the full text.)  The mayor vetoed the Flash Mob Ordinance, stating that it was too broad (so it would improperly criminalize peaceful flash mobs) and that any measure taken to curtail disruptive social-media-induced mobs needs to “be an effective deterrent to wrongdoers” (perhaps saying that the Flash Mob Ordinance didn’t go quite far enough with its punishment).  The ACLU hailed the veto as the right choice, describing the Flash Mob Ordinance as an unconstitutional prohibition on free speech.

Think about it in real life:

  1. Where is the line between unconstitutional infringement on individual rights, on the one hand, and methods of protecting collective safety on the other?  I can easily think of times when initially harmless groups have grown unruly and I felt unsafe.  Do we, as a society, want to allow communication advancements to be used to purposely create unsafe situations?  London already said no.  But London isn’t subject to the U.S. First Amendment.  Then again, the First Amendment doesn’t protect hate speech.
  2. How do you write a law that is a sufficient deterrent (by carrying a harsh enough punishment to mean something) and also sufficiently narrow to get the bad guys without getting the good guys?  Put another way, what happens when you plan your birthday party as a private event that mistakenly becomes public, and you have to flee your own party because of the Facebook-induced mob?  It happened to this poor girl in Germany, who avoided the mob, two small fires, broken glass, etc. by celebrating with her grandparents.
  3. How would a such a law be enforced?  Retroactively, law enforcement could trace posts on Facebook, Twitter, and the like, but that somewhat misses the point.  Isn’t it better to get the bad guys in advance, before anything truly harmful happens?  Now, I realize that most of our criminal laws function retroactively (like robbery and murder) but some of them function proactively (like conspiracy).  Particularly in the case of social media outlets, we now have a relatively easy way of finding out about flash mobs in advance.  Will law enforcement start regularly surfing the social media channels for chatter about this?  Would such scanning infringe on the rights of law-abiding citizens?  Do you want the police scanning your Facebook posts?  Maybe your initial answer is no, but would you be willing to let the police scan your posts and Tweets if those efforts were likely to prevent violent mobs and rioting?  Now we’re back to the first question about the choices we make as a social system.
  4. Who pays for this law?  Let’s adopt the Cleveland model for a minute, meaning that someone has to monitor social media to find the crime-inducing Tweets and posts.  How much would these scanning efforts cost tax payers?  Someone has to get paid to do this.  Maybe instead of using the police, we create a law that forces Facebook and Twitter to do the monitoring in order to operate.  Then it’s the private companies paying for it instead of the public, at least at the start, until some administrative body goes in to ensure that the private companies are doing what they should be, and then it’s back on the taxpayers’ balance sheet.
  5. Against whom would the law be enforced?  Could this be another way of incentivizing profiling?  If so, who would be profiled?  Think about which people regularly access and use social media as tools.
  6. What is the difference between a teenage curfew (already enforced in Philadelphia) and a law like the Flash Mob Ordinance (vetoed in Cleveland)?

These are just a few questions to get you thinking.  There are plenty more.  (As always, comments are welcome.)  I suspect that at some point, some group of lawyers or politicians will figure out a sufficiently deterring/harsh and sufficiently narrow way of writing a law that criminalizes the use of social media (and maybe even text messaging?) to create violent/unruly flash mobs.  At least, it will be sufficient to get the thing passed, and then we’ll see what the courts do with it.

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Mandatory sick leave in Seattle

This past week, a committee of the Seattle City Council approved an ordinance that, if approved by the full Council, will require businesses in the city to provide compensated sick leave to their employees.  Local news coverage of the developing story is available here, here, and here.  Some think of this effort as an important public health measure, designed to encourage sick employees to stay home.  Others think of it as an unnecessary increase in business operating costs.

First, let’s take a look at a few of the specifics in the ordinance.  Paid sick leave accrues at varying rates depending on the size of the employer (1 hour of leave for every 30-50 hours worked), and the rates increase with the size of the employer.  Similarly, the maximum amount of sick leave that an employee might accrue depends on the size of the employer (40-72 hours per year), and the limits increase with the size of the employer.  Unused sick time from one year rolls over to the next.  Sick leave may be used for a variety of reasons, including an employee’s personal illness (mental or physical), to get preventive health care (such as an annual check-up), to care for a sick family member, and numerous reasons associated with domestic violence, sexual assault, or stalking (including legal proceedings).  Employers may not retaliate against employees for using their sick leave.  New businesses are exempt from compliance for 2 years.

Then take a look at the details of how employees will access their sick leave.  All requests for sick leave should include the expected duration.  If possible, the request must be submitted in writing at least 10 days in advance.  Documentation (such as a doctor’s note or, in the case of domestic violence, a police report) may be required, if an employer so chooses, for leave lasting more than 3 consecutive days.

Finally, take a look at how the sick leave mandate will be enforced.  A claim by one or more employees that an employer violated the ordinance must be submitted in writing to the Seattle Office of Civil Rights within 6 months of the violation.  The Seattle OCR will investigate the claim and determine its validity.  If the claim is determined to be valid, then the parties can settle it (probably meaning that the employer pays the employee some sum of money) or the claim can go forward for additional prosecution either by the employee(s), in court, or by the Seattle City Attorney, before the Seattle Office of the Hearing Examiner.  If a hearing starts with the Office of the Hearing Examiner, then the employee(s) lose their right to proceed in court.  There is no time limit for OCR to issue its determination; the ordinance simply says that the determination must be issued “promptly.”  That determination is a precursor for any further proceedings.  In other words, an employee cannot sue in court without the OCR decision.

A few thoughts and questions about this law and real life:

  • Who is served here?  Employers?  Employees?  Customers?
  • Smaller employers may be concerned about increased operations costs, but are the costs worth the benefits?  One or two days off to recover from a cold, for example, may be better than a week’s worth of decreased productivity on the job and the risk of getting other employees sick.
  • What about the proof?  How many employees will be able to get a doctor’s note if they have the flu and it takes a week to get over it?  What about employees seeking paid sick leave because of domestic violence — is it reasonable to require that these survivors submit police reports and other documentation of abuse to their employers?
  • What about the records?  Employers are supposed to keep the proof separate from the personnel files when the proof contains medical diagnoses.  Is it reasonable to mandate that smaller employers do this?  How would employees find out about violations?
  • Employers are not allowed to fire employees for taking sick leave, but they can fire at-will employees for a variety of other legitimate business purposes, and if they can show that those other reasons exist, then the employees are probably out of luck.
  • It might take a really long time to process a claim… is a decision for the employee, issued 3 years after the violation, worth much once it finally arrives?
  • A few years back, President Obama backed the Healthy Families Act (stuck in committee since 2009), which included a similar sick leave provision.  (Read a bit about it here.)  Is it better to go national with this kind of law?  Would it ever pass?  Consider similar efforts at the local level in Milwaukee, San Francisco, Denver, Washington D.C., Philadelphia, and New York City.  Also consider efforts at the state level in Connecticut, Massachusetts, and California.  If it’s a local issue, would businesses move out of the area to avoid compliance?

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