Appellate Court Rules that Foster Parents Can Sue Against Pennsylvania County’s HIV-Infected Child Policy
The Third Circuit Court of Appeals in Philadelphia yesterday "revived" a discrimination lawsuit in which a couple with an adopted HIV-positive child sued Centre County, Pa., for a policy that bars couples in their situation from caring for HIV-negative foster children, the Philadelphia Inquirer reports. The judge said that medical evidence shows that the risk of HIV transmission from "normal sibling fighting and roughhousing" is "virtually nonexistent." The plaintiffs, known as John and Mary Doe, filed a discrimination lawsuit against the county in 1998 when their foster-parent application was denied on the grounds that their 11-year-old adopted son was born with HIV. Shortly after receiving the application, county officials devised a policy that prohibited the Does from caring for HIV-negative foster children unless they released information about their son's health and the biological parents of the foster children signed a waiver releasing the county from liability. The Does "contend[ed]" that the policy violated the Americans with Disabilities Act, but county officials cited the "direct threat exception" to liability under the disabilities law and won the case before U.S. District Judge John McClure in 1999. The three-judge appellate panel yesterday reversed McClure's decision, ruling that the ADA requires cases be reviewed individually for the "significance of the threat posed" and granted the parents the right to sue the county for discrimination before a jury. Citing state health data, U.S. Circuit Judge Julio Fuentes wrote in the decision that out of 21,000 AIDS cases in Pennsylvania, there are no reported cases of HIV transmission due to family contact or fighting. The American Civil Liberties Union and the Lamba Legal Defense and Education Fund filed briefs supporting the Does, and the AIDS Law Project of Pennsylvania, Lawyers for Children Inc. and the Youth Law Center joined Lambda's brief. The County Commissioners Association of Pennsylvania filed a brief supporting Centre County (Slobodzian, Philadelphia Inquirer, 3/6).This is part of the KHN Morning Briefing, a summary of health policy coverage from major news organizations. Sign up for an email subscription.