Outlining the Case for Physicians to Approve Workplace Accommodations for Patients with Long Covid

The Berman Institute’s Zackary Berger and Seton Hall Law Professor Doron Dorfman have published “Approving Workplace Accommodations for Patients with Long Covid — Advice for Clinicians” in the new edition of The New England Journal of Medicine.

The article is geared toward medical professionals faced with issues regarding specific diagnosis for long Covid (also known as post-acute sequelae of Covid-19) often requisite for employer work accommodation forms and disability claims. The implications for employers, HR professionals, attorneys and employees are, however, significant – especially given the estimated prevalence of the condition.

The authors point out that, “As of January 2023, the estimated prevalence of long Covid among people in the United States who had had acute infection was 11%.”

To put this in perspective, as of February 28, 2023, more than a than a hundred million COVID-19 cases (103,268,408)had been reported in the U.S., meaning that the incidence of long Covid among the population of the United States could well be in excess of 11 million.

Of interest to employers and medical professionals, the authors further note:

“According to guidance released in August 2021 by the Department of Health and Human Services and the Department of Justice, long Covid can be considered a protected disability under the Americans with Disabilities Act (ADA) and under other disability-antidiscrimination mandates (such as Section 504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act). Persons with long Covid whose symptoms “substantially limit” their ability to perform one or more ‘major life activities’ such as doing manual tasks or working, or even performing mundane actions such as breathing or standing, are considered to have a disability. That classification renders persons with long Covid eligible for reasonable workplace accommodations. Accommodations under the ADA include modifications to policies to allow disabled workers to complete their jobs, such as giving them additional breaks, the opportunity to sit down while working, or a more flexible work schedule.”

 “Although the pandemic itself has been officially declared ‘over,’ its impact – debilitating for millions – will be an issue in the workplace, the economy and the daily lives of many for years if not decades to come,” said Dorfman, who specializes in health care law, disability law and employment law. “The sheer volume of those estimated to be impacted by long Covid and the potential ramifications under the law for those effected essentially mandates that employers and attorneys as well as medical clinicians familiarize themselves with the administrative and legal protocols and strictures pertaining to long Covid.”

The authors contend that although debilitating, long Covid “has joined the ranks of such conditions as fibromyalgia, myalgic encephalomyelitis (or chronic fatigue syndrome), and post-traumatic stress disorder, which lack unique molecular ‘signatures’ — no biomarkers or other abnormal laboratory or imaging tests have been identified to support their diagnosis. These diagnoses are therefore contentious, and government agencies, employers, and many physicians do not accept these conditions as real.”

“The problem with that is that long Covid is real, and can be really debilitating,” said Berger, a medical doctor and associate professor at Johns Hopkins School of Medicine. “A legitimate diagnostic code for Long covid exists under the International Classification of Diseases and is available for clinicians to use in documenting this condition, but evidence shows it is being underutilized – especially in low-income and marginalized neighborhoods.”

The authors note that another potential reason for underutilization of the diagnostic code for Long covid is timing: “the code was first introduced in October 2021, well into the pandemic and after clinicians had grown accustomed to using various other codes for long Covid symptoms.”

The authors conclude: “We believe it’s time for clinicians to use the code regularly, when appropriate. Its common usage would increase the legitimacy of long Covid as an independent diagnosis within the medical community.”

The diagnostic code is not the only way to document long Covid, however:

“Alternatively, clinicians can document the experience of patients whose symptoms render them unable to work without accommodations, focusing on functional impairment rather than diagnostic testing. Such a clinical approach is in keeping with ADA regulations that broadly define a ‘major life activity’ in terms of ‘the operation of a major bodily function.’ According to the expansive construction of disability in regulations created since the passage of the ADA Amendments Act of 2008, impairments will ‘virtually always be found to impose a substantial limitation on a major life activity,’ meaning on bodily functions.”

“Covid has wreaked historic devastation upon the world and killed more than a million people so far in just the United States,” said Berger. “Long after a positive result, patients are presenting now with significant respiratory deficiencies, exhaustion, chest pain and a host of other maladies that were not a part of their lives prior to their infection with Covid-19. If the estimates hold true, there are approximately 11 million people suffering under these conditions. We don’t want to kill off another million of them just because we don’t want to offer them additional breaks, the opportunity to sit down while working, or a more flexible work schedule.”

Rebecca Seltzer elected to American Academy of Pediatrics Council on Foster Care, Adoption, and Kinship Care Executive Committee

Berman Institute associate faculty member Rebecca Seltzer, an Assistant Professor of Pediatrics at the Johns Hopkins School of Medicine, has been elected to the American Academy of Pediatrics Council on Foster Care, Adoption, and Kinship Care Executive Committee.

Dr. Seltzer’s research involves improving care for children with medical complexity, with a particular focus on those in the child welfare system. She is exploring the ethical and policy challenges that arise when caring for this vulnerable population, including challenges related to medical decision-making, conducting research with children in foster care, and gaps in community supports and placement options for children with medical complexity. She is an attending physician at the Harriet Lane Primary Care clinic, where she oversees pediatric residents and medical students.

“This election is an honor and I am excited to take on more of a leadership role in foster care advocacy and policy,” said Dr. Seltzer.

The Council on Foster Care, Adoption, and Kinship Care promotes the health and development of children and youth who are at risk for or have experienced family disruption. The Council accomplishes this by developing policy guidelines for comprehensive and trauma-informed care, advocating for child and youth to thrive, and providing education and support to the members of the American Academy of Pediatrics, other health professionals, and the child welfare community.

Dr. Seltzer is a former Hecht-Levi Fellow at the Berman Institute. She received her BA from the University of Virginia as an Echols Scholar, received her MD from the Perelman School of Medicine at the University of Pennsylvania, completed pediatric residency training at the Children’s Hospital of Philadelphia, completed fellowship training in Academic General Pediatrics and ethics at Johns Hopkins, and received an MHS from the Johns Hopkins Bloomberg School of Public Health.

Professor Cynda Rushton to Receive AACN Award for Distinguished Career

The American Association of Critical-Care Nurses (AACN) has honored Cynda Hylton Rushton, PhD, RN, FAAN, with its 2022 Marguerite Rodgers Kinney Award for a Distinguished Career.

Rushton will receive the award for her exceptional contributions that enhance the care of critically ill patients and their families and the nurses who care for them during the 2022 National Teaching Institute & Critical Care Exposition in Houston, May 16-18.

An international leader in bioethics and nursing, Rushton is the Anne and George L. Bunting Professor of Clinical Ethics at the Johns Hopkins University Berman Institute of Bioethics and the School of Nursing. She co-chairs Johns Hopkins Hospital’s Ethics Committee and Consultation Service. A founding member of the Berman Institute, she co-led the first National Nursing Ethics Summit that produced a Blueprint for 21st Century Nursing Ethics.

In 2016, she co-led a national collaborative, State of the Science Initiative: Transforming Moral Distress into Moral Resilience in Nursing and co-chaired the American Nurses Association’s professional issues panel that created “A Call to Action: Exploring Moral Resilience Toward a Culture of Ethical Practice.” She was a member of the National Academies of Medicine, Science and Engineering Committee that produced the report “Taking Action Against Clinician Burnout: A Systems Approach to Professional Well-Being.”

“Dr. Rushton is an internationally recognized leader in nursing ethics, moral resilience and workforce issues and a longtime contributor to groundbreaking work on these topics,” said AACN President Beth Wathen. “Her work has influenced nursing practice, health policy and patient care.”

A member of AACN since 1979, Rushton is a frequent presenter at NTI and regularly contributes to AACN’s clinical journals.

She is a member of the American Nurses Association’s Center for Ethics and Human Rights Ethics Advisory Board and the American Nurses Foundation’s Well-Being Initiative Advisory Board.

Rushton is the chief synergy strategist for Maryland’s R3 Resilient Nurses Initiative, a statewide initiative to build resilience and ethical practice in nursing students and novice nurses.

She is a Hastings Center fellow, chair of the Hastings Center Fellows Council and a fellow of the American Academy of Nursing.

She is the editor and author of Moral Resilience: Transforming Moral Suffering in Healthcare, the first book to explore the emerging concept of moral resilience from a variety of perspectives including nursing, bioethics, philosophy, psychology, neuroscience and contemplative practice.

She earned her bachelor’s degree in nursing at the University of Kentucky, followed by a master’s degree in nursing at the Medical University of South Carolina and a PhD from Catholic University of America in Washington, D.C.

 

 

Gail Geller Joins New Project as part of GLIDE Collaborative

Assessing ethical implications of uncertainty for clinical practice during a pandemic: the case of Since the outbreak of the Covid-19 pandemic, an impressive amount of information has been produced and disseminated about potential interventions to prevent or mitigate the effects of disease. Grounded mainly on clinical and epidemiological studies, a series of recommendations regarding Covid-19 prevention and treatment strategies were issued by national and international health organizations. Despite that, innumerable important questions remain unanswered. Uncertainty is the order of the day.

Insofar as uncertainty is intrinsic to healthcare, the competence to make decisions without solid evidence is of paramount importance to practitioners. Even though we now have quite consistent evidence for some interventions, many physicians continue treating patients with substances that, according to the best scientific information available, lack evidence of efficacy. Those physicians are using their professional prerogative to prescribe off-label.

Especially in the course of a public health emergency of international concern, when it comes to professional practice, which factors impact the decision-making process? What counts as evidence for these practicing physicians? What should be the limits of off-label prescribing, and what are the ethical implications of this practice?

This project is part of the Berman Institute’s Global Infectious Disease Ethics Collaborative (GLIDE) in conjunction with the Wellcome Trust and the University of Oxford. Its primary aim is to understand how physicians make decisions when evidence is inconclusive. Secondarily, the team intends to analyze how physicians interpret scientific evidence, how they respond to it and why they might not adhere to it. Finally, they will also discuss the ethical and practical implications of prescribing treatments off-label during a pandemic.

PROJECT TEAM

  • Gail GellerBerman Institute of Bioethics and School of Medicine, Johns Hopkins University, USA
  • Irani Gerab, Escola Paulista de Enfermagem, Federal University of Sao Paulo, Brazil
  • Angeliki Kerasidou, Ethox Centre, Nuffield Department of Population Health, University of Oxford, UK
  • Rachel Riera, Escola Paulista de Medicina, Federal University of Sao Paulo, Brazil
  • Aluisio Serodio, Escola Paulista de Medicina, Federal University of Sao Paulo, Brazil
  • Beatriz Thome, Escola Paulista de Medicina, Federal University of Sao Paulo, Brazi

Analysis of Medical Records Finds Physicians Are More Likely to Doubt Black Patients

With the implementation of the 21st Century Cures Act on April 5, healthcare providers are now required to give their patients free access to all the health information in their electronic medical records. Black patients are much more likely than white patients to discover language in those records that indicates they are not believed by their physicians, according to a new study by Johns Hopkins faculty published in the Journal of General Internal Medicine.

“We set out to see if we could identify linguistic mechanisms through which physicians communicate disbelief of patients in medical records and, if so, to explore racial and gender differences in the use of such language,” said Mary Catherine Beach, a faculty member in JHU’s schools of medicine and public health, and its bioethics institute. “Our analysis of medical record language suggests Black patients are less likely to be believed by physicians. The bias reflected in those medical records may in turn affect care from future clinicians.”

Beach and her Hopkins Medicine colleague Somnath Saha first noticed in the medical records of patients with sickle cell disease that doctors and nurses were signaling disbelief in their patients’ reports of pain. They began examining additional records to see if this phenomenon extended to patients receiving treatment for other conditions. Working with a linguist and a computer scientist they identified three aspects of language in clinic notes by which physicians communicate disbelief of patients:

  • Quotation marks around patients’ words (e.g., had a “reaction” to the medication)
  • Specific “judgment” words that suggest doubt (e.g., ‘claims’ or ‘insists’)
  • Evidentials, a sentence construction in which patients’ symptoms or experience is reported as hearsay.

“We evaluated the prevalence of these features in over 9000 notes in one clinic, then tested differences by race and gender. We found all 3 of these forms of language more often in the records of Black patients than white patients. Women’s records were somewhat more likely than men’s to have quotes, but not judgment words or evidentials,” said Saha. “Some of this language reflects how clinicians are taught to document things, and there are reasons to use quotes and evidentials that don’t necessarily cast doubt on what patients are saying. But if it’s just benign word use, why would we see a difference in their application by patients’ race and gender? That’s what makes such language so insidious.”

Beach and Saha note that the prevalence of electronic medical records means that one clinician’s notes will follow a patient wherever they go in the healthcare system and could adversely impact the patient’s care moving forward. According to Beach, Hopkins Medicine has been extremely receptive to addressing the impact of biased language on patient care, asking her to speak at Grand Rounds, to residents, and to all current medical students about her and Saha’s research.

“Clinicians know that patients are sometimes mistaken or even deceptive,” said Beach. “But if we also know there is racial bias in the way patients’ credibility gets assessed, we must revisit the certainty we have in our own impressions. We have to question ourselves before we question the statements of others.”

Recapping the Berman Institute at ASBH 2020

ASBH Conference Logo

The Berman Institute will be well represented at the 22nd annual meeting of the American Society for Bioethics and Humanities (ASBH), with a group of faculty, fellows, and students scheduled to present online.

View the full schedule and summaries of all Berman Institute presentations.

You can also follow us on Twitter: #ASBH19, featuring our @bermaninstitute, @aregenberg@kahnethx@tnrethx@DiStefano_MJ, and more.

Special Events

Portrait Photo of Henrietta Lacks

Plenary: Social Justice and Bioethics through the Lens of the Story of Henrietta Lacks
October 15, 2020
1:15-2:30 p.m.

Join Jeff Kahn, Ruth Faden, Jeri Lacks (granddaughter of Henrietta Lacks), and Patricia King for a panel discussion examining social justice and bioethics through the lens of issues and challenges raised by the story of Henrietta Lacks and the HeLa cell line derived from her cells.

Zoom performance of Antigone in Ferguson

Antigone in Ferguson: Free Online Zoom Performance
October 17, 2020
6- 8:30 p.m.

A groundbreaking project that fuses dramatic readings by acclaimed actors of Sophocles’ Antigone with live choral music culminating in a powerful, healing discussion that will foreground the perspectives of people in Baltimore whose lives have been impacted by racialized police violence and health inequity