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Sunday, July 14, 2024 | Back issues
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Appellate Face-Off on Denying Schizophrenic Blood Donor

DENVER (CN) - A plasma-donation company battled in the 10th Circuit on Wednesday over its decision to turn away a man diagnosed with schizophrenia.

Octapharma Plasma, a global plasma donation company that manufactures human proteins from donated blood, has claimed that it feared Brent Levorsen would have a schizophrenic episode during the blood-donation process.

If Levorsen ripped the needle out of his arm during such an episode, he could hurt himself or the attending staff, Octapharma claimed.

Though Levorsen supplied Octapharma with two recommendations from therapist that found him healthy enough to give plasma safely, Octapharma kept Levorsen on the "National Donor Deferral Registry" - banning him from donating plasma at all plasma-donation centers nationwide.

Levorsen's federal lawsuit in Utah hinged on "public accommodation" rules for businesses like Laundromats, restaurants, theaters and libraries, all of which must provide access and services to disabled people to comply with the Americans with Disabilities Act.

U.S. Magistrate Judge Dustin Pead ruled, however, that Octapharma did not exist under any of the 12 categories Congress listed as constituting "public accommodations." As such the company could continue deny Levorsen's plasma without legally discriminating against him, the court found.

A three-judge panel of the 10th Circuit met Wednesday to decide whether Octapharma belongs among the 12 categories Congress laid out as ADA-covered.

The U.S. Attorney General's Office has joined Levorsen in urging reversal, and Justice Department attorney Tovah Calderon argued for Levorsen at the hearing.

"The members of the public come in and they receive a benefit," Calderon said.

Whether a person is doing it for a blood screening, for charity or simply the cash payout, Calderon said there are various reasons why people donate plasma.

A typical plasma donation can earn the donator between $30 and $60.

Judge Jerome Holmes took up this point, noting that Octopharma did "provide equipment," for the purpose of donating plasma, that could be used for multiple reasons.

Judge Nancy Moritz agreed as well. "I bet people go there for altruistic purposes," she said.

Octapharma Plasma's attorney meanwhile continually returned to the list Congress set for accommodations, and the reasoning behind Magistrate Pead's decision.

"Look at Congress' definition of public accommodation," said Carey Davis with the firm Robinson, Bradshaw and Hinson. "There are 12 categories. ... We're something different. The FDA regulations define us as manufacturers."

Calderon countered that Octapharma is technically a public accommodation since it is a business that catered to and relied upon the public to work.

"Octapharma would not exist without the public," Calderon said. "In order to incentivize the public, they must offer benefits."

Those benefits should be available to people with disabilities, Calderon added.

The hearing concluded with Octapharma standing firm that it does not fall under the 12 public-accommodation categories set by Congress.

"We don't see that they fit what we do," Davis said. "They would have to create a new category."

Judge Mary Briscoe rounded out the panel.

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