Federal Civil Rights and Privacy Enforcement by HHS’s Office for Civil Rights

Federal Civil Rights and Privacy Enforcement

by HHS’s Office for Civil Rights

Disability Rights Consortium August 24, 2011

Jerome B. MeitesChief Regional Civil Rights Counsel – Region VUnited States Department of Health and Human Services

Topics to be Covered

Structure and History of the Office for Civil Rights (OCR)

Legal Authorities Enforced by OCR

OCR Enforcement Activities and Priorities, especially in the disability sphere

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What is OCR?

A federal administrative agency It is part of the United States Department of

Health and Human Services’ (HHS) Office of the Secretary, as is the Office of the General Counsel.

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What is OCR? (cont.) OCR enforces statutes and regulations

prohibiting discrimination on the basis of race, color, national origin, disability, and age, by both public and private recipients of HHS funds (as well as by State and local governments under the ADA regardless of whether they receive HHS funds).

OCR also enforces the HIPAA Privacy and Security Rules, and the privilege and confidentiality protections of the Patient Safety Act.

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OCR’s Vision: Through investigations, voluntary dispute resolution, enforcement, technical assistance, policy development and information services, OCR will protect the civil rights of all individuals who are subject to discrimination in health and human services programs and protect the health information privacy rights of consumers.

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Your Health. Your Rights.

Headquarters in Washington, D.C.: – Policy– Administration– Case management and oversight– External relations

10 HHS regional offices:– Enforcement– Investigation– Compliance reviews– Public education and outreach– Technical assistance

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Where is OCR?

Department of Health and Human Services

Office for Civil RightsDirector

Leon Rodriguez

Deputy Director,Planning and Business

AdministrationStephanie Danes Smith

Deputy Director,Programs & Policy

Karen Walker-Bryce

Deputy Director,Enforcement and Regional

OperationsValerie Morgan-Alston

Office of General Counsel,Civil Rights Division

Edwin Woo

BostonPeter Chan,

Regional Manager

New YorkLinda Colon,

Acting Regional Manager

PhiladelphiaMarlene Rey,


AtlantaRoosevelt Freeman, Regional Manager

ChicagoCeleste Davis,


DallasRalph Rouse,

Regional Manager

DenverVelveta Howell,

Regional Manager

San FranciscoMichael Kruley,

Regional Manager

SeattleLinda Connor,

Regional Manager

Kansas CityFrank Campbell,

Regional Manager

Civil RightsDivisionVacant

Health Information Privacy Division Susan McAndrew

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How Does OCR EnforceDiscrimination Laws?

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Complaints Compliance Reviews Voluntary Compliance Education Training Technical Assistance

How Does OCR Enforce Discrimination Laws?

Complaint/Compliance Review

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Investigation

Written Non-

compliance Finding

WrittenCompliance

Finding

OCR Complaint Investigation Steps

Ascertain OCR Jurisdiction Notify Covered Entity of Complaint Collect Data - documents, medical records,

policies & procedures, etc. Interview Complainant, representatives of the

recipient & witnesses Issue Letter of Findings

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How are Discrimination Laws Enforced?

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Resolved

Voluntary Compliance Agreement

Efforts to Secure Voluntary Compliance

Unresolved

How are Discrimination Laws Enforced?

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Unresolved

Administrative

Hearing

Referral to DOJ

Termination of Funds

Federal Court Action

to Enforce Assurance of Compliance

How Does OCR Enforce Statutes and Regulations?

OCR’s principal enforcement work is by its investigation and adjudication of complaints that it receives and its conduct of compliance reviews that it initiates.

Anyone has standing to file a complaint with OCR alleging discrimination, not just the person who was allegedly subjected to the discrimination.

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How Does OCR Enforce Statutes and Regulations? (cont.)

For example, Equip for Equality could file a complaint on behalf of any individual or a group of individuals alleging the subject individual or group was discriminated against on account of disability in a program funded at least in part by HHS and covered by Section 504 of the Rehabilitation Act of 1973 (Section 504) and its implementing regulations.

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When OCR receives information which reasonably leads OCR to believe that discrimination or a violation of the Privacy Rule may be taking place, especially in a systemic way, OCR can open a “compliance review” of the entity that is allegedly engaging in the discrimination, even though OCR has not received a complaint.

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Such information can come from any source. One of the most fruitful is newspapers or television broadcasts. Three of the largest and most important compliance reviews that OCR has conducted in this region over the last decade all began as a result of media reports.

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In a compliance review, OCR defines the issue based on the preliminary information that triggered the review. OCR investigates the purported evidence of discrimination in the same way it would investigate allegations of discrimination in a complaint.

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In a complaint investigation, OCR generally interviews the complainant or affected person, if the complaint was filed by someone else, a representative of the covered entity, and any other relevant individuals. OCR also requests relevant documents from anyone who may have them.

OCR follows a similar process with compliance reviews.

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In either a complaint investigation or compliance review, if OCR determines that discrimination did occur, OCR generally seeks to bring about voluntary compliance by the covered entity with the civil rights law and regulations, or the Privacy or Security Rule, as the case may be.

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In cases involving individuals, such as a hearing-impaired complainant who was denied access to a sign language interpreter by her internist, voluntary compliance is often documented through an exchange of letters between OCR and the covered entity with the covered entity agreeing to accommodate the complainant’s need for an interpreter and changing its policies and practices to prevent a recurrence of the problem in the future.

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In a systemic case, voluntary compliance is often documented through a formal “Resolution Agreement” and a “Corrective Action Plan” (CAP) which collectively are similar to a consent degree in class action litigation or a settlement agreement in private litigation.

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A Resolution Agreement and CAP are usually very detailed in describing what the covered entity must do to come into compliance, how the covered entity will document its ongoing compliance, change its policies and procedures, provide training for its personnel, monitor compliance, and the like.

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In recent years, OCR in Region V (Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin) has produced a number of important Resolution Agreements and CAPs in both civil rights and privacy cases.

These have included:

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(1) A Resolution Agreement and CAP executed by both the Ohio and Hamilton County (Cincinnati) Departments of Job and Family Services addressing systemic racial discrimination in the Ohio public adoption program.

(2) Simultaneous resolution agreements involving the lack of adequate interpreter services by a major health care provider for both hearing-impaired and limited English proficient patients

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(3) A Resolution Agreement with the State of Wisconsin regarding its administration of the Wisconsin TANF program to end discrimination in the administration of the program against disabled participants and those of limited English proficiency (LEP).

(4) Resolution Agreements with the CVS Pharmacy and Rite Aid Pharmacy chains regarding their safeguarding and disposal of their customers’ protected health information (PHI) to protect against improper uses and disclosures.

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If OCR determines that voluntary compliance is not possible in a case in which OCR finds that discrimination occurred, OCR will issue a violation “letter of findings” which is roughly akin to a judgment and supporting opinion.

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If the covered entity is unwilling to come into compliance after a violation letter of findings is issued, the next step would be an administrative hearing. With respect to civil rights cases, OCR would likely seek to terminate the entity’s financial participation in the HHS program and to obtain remedies for the complainant arising out of the discrimination.

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It should be noted that roughly 75% of the complaints that OCR receives are summarily dismissed by OCR on jurisdictional grounds. The main reasons for dismissal are:

1. The entity against whom the complaint has been filed does not receive funds from HHS and so is not covered by the HHS civil rights regulations;

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2. The entity does receive federal funds, but from a department other than HHS. So, for example, a complaint alleging discrimination by a school district in the administration of a special education program would be dismissed by OCR, but transferred to OCR- Education for its consideration.

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3. The complaint fails to state a claim of discrimination. A common situation is when a complainant alleges that his or her doctor provided a poor quality of care or committed medical malpractice. Unless there is an allegation that the malpractice arose from discriminatory motivations, OCR would have no jurisdiction to investigate and adjudicate the allegations.

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Laws Enforced by OCR

Title VI of 1964 Civil Rights Act Title IX of 1972 Education Amendments Section 504 of 1973 Rehabilitation Act Title II of the Americans with Disabilities Act of

1990 Privacy Rule and Security Rule of the Health

Insurance Portability and Accountability Act of 1996 (HIPAA)

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Laws Enforced by OCR (cont.)

Community Service Assurance of the Hill Burton Act

Age Discrimination Act of 1975 Multiethnic Placement Act of 1994 and Section

1808 of the Small Business Job Protection Act of 1996 (MEPA) (adoption and foster care)

Privilege and Confidentiality protections of the Patient Safety and Quality Improvements Act of 2005

32

Brief History of HHS and OCR

1953 Department of Health, Education and Welfare established as a

cabinet level Department

1954 Brown v. Board of Education

1954-1964 Massive resistance to Brown and racial integration

generally in southern states

1964 Civil Rights Act passed

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Brief History of HHS and OCR

1972 Title IX of the Education Amendments

1973 Sect 504 of the Rehabilitation Act

1975 Age Discrimination Act

1979 OCR assumes responsibility for Community Service Assurance of Hill Burton Act

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A New Department and Even More Statutory Authority

1980 HHS is created as HEW’s education function is spun off to form the new Department of Education

1981 Non- discrimination provisions of block grants through Omnibus Budget Reconciliation Act

1988 Section 504 is expanded to cover federally conducted programs

1990 The Americans with Disabilities Act passes

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A New Department and Even More Statutory Authority (cont.)

1999 – 2002 A series of Supreme Court decisions are viewed by many as

weakening the ADA’s scope and effect

2008 The ADA Amendments Act (ADAA) is passed largely to overturn the Sutton trilogy and the Toyota holding

2010 The Department of Justice promulgates implementing regulations for Title II of the ADAA 36

Title VI of the 1964 Civil Rights Act

Prohibits programs and activities receiving Federal Financial Assistance (FFA) from discriminating against individuals based on:- Race- Color- National Origin

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45 CFR § 80

Title VI of the 1964 Civil Rights Act (cont.)

Both Section 504 and its implementing regulations, 45 C.F.R. Part 84, were modeled after Title VI and its implementing regulations. In fact, the Title VI regulations that describe the hearing and enforcement process, 45 C.F.R. Part 81, are simply incorporated by reference into the Section 504 regulations. There are no independent Section 504 enforcement regulations.

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Consequently, understanding how the Title VI regulations operate is very important for disability rights advocates pursuing administrative claims through a federal agency.

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Note that every federal department and many independent federal agencies, such as the Environmental Protection Agency, have their own Title VI regulations. But all of those regulations closely follow the HHS model Title VI regulations which are codified at 45 C.F.R. Parts 80 and 81.

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Who is Covered under Title VI? All public and private entities receiving FFA are “covered

entities” under Title VI. Each federal department has jurisdiction over the entities to which it provides funding, but no others. The same is true for Section 504.

Consequently, OCR’s jurisdiction is only over programs receiving FFA from an HHS agency.

Examples: Medicaid and Medicare Part A Providers, Head Start Programs, TANF Programs, Adoption and Foster Care Agencies.

FFA can also include grants and monetary loans.

4145 CFR §

80.2

Title VI Regulations

Adopted by HHS in 1964 to “effectuate the provisions of Title VI of the Civil Rights Act of 1964.”

Part 80 regulations address the types of discrimination covered (45 C.F.R. Part 80).

Part 81 regulations describes the enforcement/hearing process. (45 C.F.R. Part 81).

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Title VI and Limited English Proficiency

Title VI’s prohibition against national origin discrimination covers LEP individuals.

Covered entities must provide language assistance to LEP persons to ensure them meaningful access to the programs and services for which they are eligible

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Title VI and Limited English Proficiency (cont.)

In recent years, OCR has noticed an increase in situations in which both national origin and disability discrimination may take place simultaneously.

For example, if a Spanish-speaking individual is also hearing-impaired and the hospital fails to provide any interpreter, the hospital could be violating both Title VI and Section 504 at the same time.

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Who is Limited English Proficient

An LEP individual is a person who does not speak English as his or her primary language and who has a limited ability to read, write, speak or understand English.

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What Must Covered Entities Do?

Under Title VI and its implementing regulations, covered entities must take reasonable steps to ensure meaningful access to their programs, activities and services for LEP persons.

Essentially, the same reasonableness standard applies under Section 504 with respect to covered entities’ obligations to provide services to disabled persons.

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Language Interpreter Competency If a language interpreter is used for LEP individuals (or a

sign language interpreter under Section 504 or Title II of the ADA), the covered entity should take reasonable steps to assess that the interpreter is able to:

Demonstrate proficiency in both English and in the other language.

Demonstrate knowledge of specialized terms or concepts appropriate to the need.

Demonstrate an understanding of the need for confidentiality and impartiality.

Understand the role of interpreter without deviating to other roles.

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Age Discrimination Act of 1975

Prohibits discrimination in the provision of federally funded services on the basis of the recipient’s age. It is conceivable that a legally viable claim of age discrimination in services could be raised because of age differences in the nature of services provided to similarly disabled individuals.

General provisions are modeled after Title VI. Protects persons of all ages.

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Age Discrimination Act Exceptions (cont.)

Example of different treatment based on age being deemed necessary: age limitation for enrollment in Head Start.

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Section 504 of the Rehabilitation Act of 1973

Origin and purpose:- Arose as a spin off of the 1964 Civil Rights Act- A result of the disability rights movement

of the late 1960s and early 1970s- An attempt to provide the same type ofprotections contained in Title VI to the disabled

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Section 504 of the Rehabilitation Act of 1973 (2)

Prohibits discrimination on the basis of disabling condition in programs and activities that receive FFA

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45 CFR § 84

Section 504 - Key Concepts

Section 504 requires Integration of persons with disabilities into the

community whenever possible and desired by the individual

Equal and effective services Accommodations or program modifications

where reasonable Program access for the disabled

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Integration of Persons with Disabilities

Section 504 requires that recipients Shall not provide a different or separate aid,

benefit or service Shall not limit the enjoyment of any right,

privilege, or opportunity

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45 CFR §§ 84.4 & 84.52

The Americans with Disabilities Act Enacted in 1990 Comprehensive law which largely attempts to

apply Section 504 prohibitions to the private sector as well as state and local governments

However, Title II, the section which OCR enforces, only applies to state and local government agencies

Contains five titles and is enforced by a variety of federal agencies

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The Americans with Disabilities Act (2)Title I Employment Enforcement agency – Equal Employment

Opportunity CommissionTitle II Activities of state and local governments HHS has jurisdiction over all health and social service

programs of state and local governments, regardless of whether the agency receives FFA

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The Americans with Disabilities Act (3)

Title III Areas of public accommodation Lead enforcement agency – US Department of JusticeTitle IV Telecommunications Enforcement agency – Federal Communications

CommissionTitle V Miscellaneous provisions– ATBCB to issue accessibility standards – Statements of what “conditions” are not disabilities

(e.g. Current illegal drug use)

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Title II of the ADA

“[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

42 U.S. C. § 12132

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Title II of the ADA (con’t)

Definitions under Title II track those under Section 504. In addition, the ADAA amended Section 504, as necessary, to make the definitions consistent.

Unlike Section 504, Title II also provides definitions of what is NOT a disability

examples: current illegal drug use, compulsive gambling

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Title II of the ADA (con’t)

Employs the same concepts as used in Section 504: Integration Equal and effective Accommodation Program accessibility

ADA expands the statutory definition of integration

5928 CFR § 35.130

Olmstead v. L.C.

Plaintiffs: L.C. and L.W., individuals with mental disabilities confined in a Georgia state –run psychiatric hospital.

Defendants: Georgia officials responsible for Georgia’s mental health/developmental disabilities system.

Claim: L.C. and L.W. asserted that the State's failure to discharge them from the hospital and provide them services in a community-based program, once their treating professionals determined that such placement was appropriate, violated Title II of the ADA.

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Unjustified Institutionalization Violates the ADA

Olmstead’s central holding is that the ADA prohibits states from unnecessarily institutionalizing persons with disabilities and from failing to serve them in the most integrated setting.

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Olmstead Enforcement - a Top Priority

DOJ is involved in litigation in federal courts in more than 20 states to enforce Olmstead.

OCR is investigating over 30 Olmstead complaints and several statewide compliance reviews in its ten regional offices.

Investigations and cases involve all disability groups, public and private congregate care settings, and community services and programs

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OCR’s Olmstead Implementation

OCR has actively sought to implement the Olmstead mandate since the case was decided in 1999

Immediately after the decision was rendered, OCR met with representatives of the Medicaid agency for most states to discuss the development of a state plan to implement Olmstead and community placement mandate

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Olmstead Enforcement Nationally

• Since the Olmstead decision was issued in 1999, OCR has resolved 850 Olmstead-style claims

• Of these, 269 or 32% were resolved immediately upon filing and intake, without any investigation

• Of these, 356 cases or 42% were resolved with the covered entity taking corrective action after OCR had conducted an investigation

Olmstead Enforcement Nationally (cont.)

• OCR found no violation of Title II of the ADA and/or Section 504 in 225 cases or 26% of the total


• State of Georgia• Allegations: OCR received complaints from several

disability advocacy organizations alleging that individuals with mental illness and developmental disabilities were not being served in the most integrated setting.

• Disposition: OCR entered into a settlement agreement with the State under which the State agreed to provide an opportunity to 10,000 individuals to live in their home communities with appropriate supports and services.


• However, the State of Georgia did not comply with the terms of the Settlement Agreement so OCR issued a letter of non-compliance.

• At the same time, DOJ filed suit against the State of Georgia to enforce Title II of the ADA.

• DOJ and the State reached a settlement of the litigation in October 2010. The settlement is quite comprehensive (and is on the OCR website under “Olmstead Success Stories”).


• Among other things, the Settlement Agreement provides:

• (1) Georgia would cease all admissions of individuals with developmental disabilities to its state hospitals by July 1, 2011

• (2) Georgia will transfer all individuals with developmental disabilities already in its state hospitals to community settings by July 1, 2015


• (3) Georgia will create 1150 home and community based waivers for individuals with developmental disabilities by July 2015

• (4) Georgia will provide family supports to 2350 families of individuals with developmental disabilities by July 2015 to help those families to continue to care for the individual at home


• (5) Georgia will serve in community settings by July 2015, 9000 individuals with serious and persistent mental illness who currently are served in the State Hospitals, frequently readmitted to the State Hospitals, frequently seen in an Emergency Room for their condition, chronically homeless, and/or being released from jails or prisons


• (6) By July 2013, Georgia will have 22 Assertive Community Treatment (“ACT”) teams in place that operate in accordance with the Dartmouth ACT Model

• (7) By July 2014, Georgia is to have eight Community Support Teams in place that will provide services to individuals in their own homes and ensure that adequate community resources are made available


• San Francisco County and City, Laguna Honda Hospital and Rehabilitation Center (LHH)

• Allegations: OCR and DOJ jointly investigated allegations that LHH failed to adequately inform residents of the opportunities for community placement or adequately assess the individuals or engage in appropriate discharge planning


• Disposition: LHH entered into a Settlement Agreement with OCR and DOJ that:

• (1) Required LHH to establish and maintain interdisciplinary teams of qualified professions to assess the affected individuals, including those with developmental disabiliites, mental illness, and those at risk for homelessness.


• (2) LHH is also required to develop and implement individual transition plans and post-placement quality assurance and monitoring, with each individual being served in the most integrated setting appropriate for that individual.

• (3) Each individual is to be provided adequate and appropriate care, treatment, support and services to meet his or her individualized needs, consistent with generally accepted professional standards.

OCR Olmstead Enforcement Successes in Illinois

Laden Township, State Department on Aging, and [State] Family Senior Services

Allegation: The complainant, who is blind, alleged that he needed additional services to remain at home and avoid institutionalization. – Disposition: As a result of OCR intervention and

assistance, the complainant was provided with additional reader/senior companion services and such practical assistance as a taxi cab coupon book, case manager services and assistance in applying for waiver services.

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OCR Olmstead Enforcement Successes in Illinois (cont.)

State Department on Aging Allegation: The complaint alleged that the State

failed to provide the complainant with additional hours of home based on his disability and age – Disposition: As a result of OCR intervention and

assistance, the complainant, after a brief hospitalization, was re-enrolled in the Community Care Program and granted 45 hours of service per month. The complainant was satisfied with the number of service hours a month and homemaker services provided by the State.

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State Department of Human Services, Eligibility Assessment Agency, Olympia Fields

Allegation: The complainant, a man with a developmental disability, had lived in an Intermediate Care Facility for the Developmentally Disabled for approximately 13 years. The complainant alleged that the State failed to provide him with a placement in the least restrictive environment in violation of ADA and the Olmstead decision.

Disposition: After working closely with the State for six months, OCR secured the placement of the complainant into a Community Integrated Living Arrangement home.

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State Department of Human Services, Eligibility Assessment Agency, Northbrook

Allegation: The complainant alleged that the State failed to provide him with a one-to-one assistant he needed to avoid unnecessary institutionalization. – Disposition: Working closely with various components of

the State, OCR secured a reassessment of the complainant, an agreement from the State to increase the one-to-one assistant care funding for the complainant from 11 hours for a 5-day week to 35 hours for a 7-day week, which permitted the complainant to remain in the community.

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State Department of Human Services Allegation: This complaint was filed to enable a person diagnosed with

autism to make an appropriate transition from the state educational system for children to adult community services. The complainant alleged that the State failed to provide funds for adult day care services, and that without those services the complainant was in danger of being unnecessarily institutionalized. – Disposition: Working with the State for a year, OCR helped secure an agreement

that included a State-approved family Community Integrated Living Arrangement (CILA) award in excess of $50,000, something the complainant had been trying to obtain for two years prior to OCR's involvement. The receipt of this award permitted the complainant to obtain ten hours of direct support services and fifteen hours of respite on a weekly basis. In addition, he received forty hours of professional staff service per week. Moreover, the State is providing 208 hours per year in individual support to the complainant.

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State Department of Human Services Allegation: This complaint was filed on behalf of a woman with

quadriplegia who had been placed in a nursing home instead of being referred to community services when she lost her housing. The complainant alleged that the State failed to provide her with the independent living resources which would allow her to leave the institution and live in a less restrictive community setting. – Disposition: Working with the State for a year, OCR ensured that the

complainant received the necessary community integration resources including a Determination of Need assessment, a housing voucher, and a vocational rehabilitation evaluation. The complainant was able to move into the community.

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State Department of Human Services Allegation: The complaint alleged that because the

State failed to find an appropriate community placement, a person with a disability was forced to live in a nursing home rather than receive services in a less restrictive setting. – Disposition: As a result of OCR intervention and assistance,

the complainant was able to move from a nursing home to a community residence. The State further changed the complainant's Medicaid status so that he can access Medicaid services in the community.

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State Department of Human Services Allegation: The complaint alleged that the State failed

to find a community placement for a person with mobility impairments, although the complainant could be appropriately served in the community. As a result, the complaint alleged that the complainant had no choice other than to reside in a nursing home. – Disposition: Working with the State, OCR helped secure

the complainant's removal from the nursing home to a community residence.

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State Department of Human Services Allegation: The complainant, a woman with multiple

sclerosis and quadriplegia, alleged that the State failed to provide her with sufficient service hours to remain in her home. As a result, the complainant alleged, she was forced to move to a nursing home. – Disposition: As a result of OCR's intervention and

assistance, the complainant was discharged from the nursing home to an apartment of her own. The move was made possible from funds made available by the State's Community Reintegration Grant.

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State Department of Human Services Allegation: The complainant, a woman with mental

and neurological impairments, alleged that the State failed to provide community housing options and therefore that she was forced to live in a nursing home. – Disposition: Working with the State, OCR helped secure the

complainant's discharge from the nursing home and move to a community residence. The State changed the complainant's Medicaid status so that she can access Medicaid services in the community.

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State Department of Human Services Allegation: This complaint was filed on behalf of a person with a

developmental disability after her guardian and an advocacy organization had given up trying to move her from a 10-bed facility to a more independent and integrated community-based living arrangement that would foster skills to enable her to live more independently. The complainant alleged that the State failed to provide funds for the more integrated placement, thus making her remain in a more restrictive environment. – Disposition: Working with the State for close to a year, OCR secured a

placement in a more integrated living arrangement approved by the guardian.

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Title II of the ADAMost Integrated Setting

Issue whether relief for complainant can be “reasonably accommodated” is very complex.

Factors to be considered include:– The cost of providing community-based care– Resources available to the State or local govt.– The range of services provided to others with

disabilities – The obligation to mete out those services in an

equitable manner.86

Title II of the ADAMost Integrated Setting

Results of the reasonable accommodation analysis may vary, based on the individual facts and circumstances of each case

Other issues include:– Is there a “comprehensive, effectively working

plan?”– Is there a wait list that moves at a “reasonable

pace”?

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Section 504 and Auxiliary Aids

A Recipient “shall provide appropriate auxiliary aids to persons with impaired sensory, manual or speaking skills, where necessary to afford such persons an equal opportunity to benefit from the service in question.”

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45 CFR § 84.52(d)

ADA Title II and Auxiliary AidsA public entity shall: Take appropriate steps to ensure communications

with disabled persons are as effective as with others Furnish appropriate auxiliary aids and services to

afford a disabled individual an equal opportunity to benefit from services

When deciding what type of auxiliary aid is necessary, give primary consideration to the requests of the disabled individual

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28 CFR § 35.160

Examples of Auxiliary Aids

Sign Language Interpreters Computer Assisted Real-time Transcription TTD/TTY machines Documents in large print type Materials in Braille Video Remote Interpreting (VRI)

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Auxiliary Aids Claims

Analysis focuses on whether the auxiliary aids that were provided facilitated effective communication

Sensory impaired family members of hearing patients and clients are also entitled to appropriate auxiliary aids to enable them to participate in family member’s treatment

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Auxiliary Aids Claims

In evaluating whether communication waseffective, consider: Was the individual able to understand what

happened during the visit and the information conveyed to him/her?

Did the individual receive the services or benefits for which he or she was eligible?

Was the individual able to convey the relevant circumstances of his or her situation?

Was the individual able to ask and respond to questions?

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OCR Auxiliary Aid Enforcement Actions

• Orthopedic Institute of Pennsylvania (OIP)• Allegations: Deaf individual alleged that OIP

denied his request for a sing language interpreter when he called for an appointment with a medical doctor.

• Disposition: OIP entered into a Settlement Agreement with OCR. The terms of the agreement included:

OCR Auxiliary Aid Enforcement Actions (cont.)

• (1) OIP will provide all deaf and hearing-impaired patients with a sign language interpreter or other auxiliary aid as necessary to provide effective communication between OIP professionals and OIP’s patients.

• (2) OIP would consult with all of its deaf and hearing-impaired patients as to the auxiliary aids and services they required for effective communication.


• University of Utah Hospitals (UUHC)• Compliance Review: OCR conducted a compliance

review under Section 504 to determine if UUHC was providing appropriate screenings to patients with hearing, vision or speech disabilities and providing them with necessary auxiliary aids and services, including sign language interpreters. UUHC is located in five different counties and serves more than 850,000 patients a year.


• Disposition: UUHC entered into a Resolution Agreement with OCR. Among other things, the Agreement provided:

• (1) UUHC agreed that it was governed by Section 504.

• (2) UUHC agreed to issue and post policies requiring the provision of auxiliary aids, including sign language interpreter services or video interpretation services within two hours of the arrival at a UUHC facility of a hearing-impaired, vision-impaired, or speech-impaired patient.


• (3) Establish and post non-discrimination policies.

• (4) Establish and implement a Section 504 grievance procedure.

• (5) Train physicians, employees and contractors on procedures to ensure effective communication with patients.

• (6) Place TTY lines throughout the UUHC facilities.


• (7) Maintain a centralized telecommunication phone number 24/7 for sign language interpreter requests.

• (8) Provide comprehensive compliance reports to OCR.


• Florida Department of Children and Families• Disposition: Florida entered into a Settlement

Agreement with OCR after OCR had issued a violation letter of findings, determining that Florida had failed to provide sign language interpreters and other appropriate auxiliary aids to deaf individuals in critical situations, such as during child protective services investigations and during treatment in state mental hospitals.


• Under the agreement, Florida will provide appropriate auxiliary aids. It will also appoint an independent monitor and identify aid-essential programs.

• Florida will also designate an “ADA Coordinator” in each of over 100 direct services offices around the State.

Health Reform Implementation

HHS is playing a very active role in the promulgation of proposed regulations to implement the Patient Protection and Affordable Care Act (PPACA) that was enacted by Congress in March 2010.

The need to protect the interest of individuals with disabilities as well as those of limited English proficiency has been an important part of the regulatory agenda.

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Health Reform Implementation (cont.)

An excellent illustration of efforts in this arena is the proposed regulations pertaining to the establishment of state health care exchanges. The proposed regulations were published in the Federal Register on July 15, 2011. 76 F.R. 41866.

PPACA requires each state to have in place by January 1, 2014 “Affordable Insurance Exchanges,” generally referred to as “Exchanges.”

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The purpose of the Exchanges is to enable individuals and small businesses to combine their economic power in order to purchase private health insurance in a competitive marketplace. The economic assumption is that the Exchanges will result in a substantial reduction in the cost of health insurance for individuals and small business, who are not currently able to compete for meaningful group rates, as are large businesses.

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The Exchange regulations describe the functions of the Exchanges and their duties. The regulations are the joint product of HHS, the Department of Labor, and the Department of the Treasury.

There are at least four such provisions in the proposed regulations, all of which are slated for codification in the Code of Federal Regulations at 45 C.F.R. Part 155.

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The Exchange regulations include a section requiring each Exchange to maintain “non-discrimination standards.” The regulation provides that States in carrying out their obligations to establish the Exchanges and the Exchanges in their operations must:

(1) Comply with applicable non-discrimination statutes; and

(2) Not discriminate based on race, color, national origin, disability, age, sex, gender identity or sexual orientation. (Proposed 45 C.F.R. 155.120.)

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The proposed regulations also require each Exchange to “regularly consult” with various stakeholders. The list of “stakeholders” includes, “Advocates for enrolling hard to reach populations, which include individuals with a mental health or substance abuse disorder.” (Proposed 45 C.F.R. 155.130(c).)

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The proposed Exchange regulations also require that the Exchanges maintain “consumer assistance tools,” including a “call center” and “an up-to-date Internet Web site.” The Web site must be:

“[A]ccessible to people with disabilities in accordance with the [ADA] and section 504…and provide meaningful access for persons with limited English proficiency.” (Proposed 45 C.F.R. 155.205(b)(2).)

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The Exchange regulations also require that all notices to applicants and enrollees must be in writing “in plain language and provided in a manner that: (1) Provides meaningful access to limited English proficient individuals; and (2) Ensure effective communication for people with disabilities.” (Proposed 45 C.F.R. 155.230(b).)

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The comment period for the Exchange regulations will remain open until September 28, 2011.

Comments may be submitted electronically to http://www.regulations.gov. They can also be sent by mail to Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-9989-p, P.O. Box 8010, Baltimore, MD 21244-8010.

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http://www.regulations.gov/


Some regulations implementing PPACA have already been finalized but a number are still in process and will be submitted for notice and comment between now and 2013.

HHS welcomes comments on all of the proposed regulations. If individuals with disabilities see ways of improving the proposed regulations, they should certainly submit their comments before the respective deadlines.

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HIPAA

Congress enacted the Health Insurance Portability and Accountability Act (HIPAA) in 1996

Major purpose of HIPAA was to enable employees to carry insurance with them to new employer

Another important purpose was to standardize codes used by health insurance carriers

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HIPAA (cont.)

For example, prior to the passage of HIPAA, Aetna, Blue Cross and Humana might each had had a different code for a broken leg. HIPAA allowed such codes to be standardized which was deemed to be easier for both the health care providers, such as hospitals and the insurers

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HIPAA (cont.)

In the process of dealing with the code issue, members of Congress, almost as an afterthought, decided to provide for the privacy of medical data because of the increased transmission of data electronically and fear of hacking

Consequently, Congress provided both civil and criminal penalties for improper uses and disclosure of an individual’s health care information (PHI)

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HIPAA (cont.)

Congress also provided that it would write more specific statutory requirements for privacy, but that if it did not do so by 1999, HHS would be required to write them in the form of federal regulations.

Congress did not write them and so HHS did. The Privacy Rule was originally issued in December 2000. It was modified in April 2002 and took effect in April 2003.

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HIPAA (cont.)

In a nutshell, the Privacy Rule:(1) Prohibits the use or disclosure of an individual’s PHI, without the individual’s prior authorization, except for treatment, payment, and health care operations; and(2) Except for a variety of designated purposes such as a public health emergency, law enforcement needs, and judicial and administrative proceedings

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HIPAA (cont.)

The Privacy Rule also provides individuals with a panoply of rights, the most significant of which is the right of nearly unlimited access to one’s own medical records

A major exception to this right of access is that access to psychiatric notes is generally not provided

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HIPAA (cont.)

The Privacy Rule is located at 45 C.F.R. Parts 160 and 164. It is extremely complex and detailed. This is only the briefest thumbnail description of its scope and purpose.

There are a couple of ways in which the Privacy Rule may have particular relevance to disabled individuals which bear mention.

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HIPAA (cont.)

(1) Disclosures to “personal representatives” – The Privacy Rule permits an individual’s PHI to be disclosed to that individual’s “personal representative.” A “personal representative” is some who “under applicable law” is a person “with authority to act on behalf of an individual who is an adult…in making decisions related to health care…” 45 C.F.R. 164.502(g).

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HIPAA (cont.)

The phrase “applicable law” in the Privacy Rule usually applies to state law. Disputes can arise as to whether an individual has actually authorized someone to act on his or her behalf in making health care decisions and, therefore, authorized a representative to access the individual’s PHI.

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HIPAA (cont.)

Generally speaking, if the individual signed a power of attorney for health care and there is no written evidence of revocation, the covered entity is deemed to be acting appropriately when it discloses an individual’s PHI to the holder of the power of attorney.

These cases are very fact-specific, but do arise with some regularity involving individuals who are or may be disabled.

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HIPAA (cont.)

(2) Abuse of Access to PHI by Employees of Health Care Providers – Employees of health care providers often have access to physical and electronic medical records that they do not require in order to do their jobs. This can cause serious violations of the Privacy Rule to occur.

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HIPAA (cont.)

A classic example is when an employee is in the midst of a bitter divorce/child custody battle. The employee knows that his or her spouse has had psychiatric care at the facility where the employee works. The employee downloads his spouse’s psychiatric records, without a subpoena or court order, and gives them to his or her divorce lawyer who uses them in the custody case.

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HIPAA (cont.)

This is a clear violation of the Privacy Rule because the employee’s act is attributed to his or her employer, the covered entity. In this scenario, OCR would likely find that the covered entity violated the safeguards requirements of the Privacy Rule by failing to have safeguards in place for its computerized medical records that would block employees from accessing records unless they had an employment need to do so.

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HIPAA (cont.)

OCR would require the covered entity to take corrective action to prevent such “disclosures” from recurring in the future. OCR would also require the covered entity to “sanction” the employee which could be anything from re-training on the Privacy Rule up to termination from employment.

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HIPAA (cont.)

Another form of employee abuse is when employees access the medical records of a celebrity patient. OCR recently announced that the University of California Los Angeles Health System (UCLAHS) had entered into a Resolution Agreement and Corrective Action Plan with OCR arising out of thousands of allegations that various UCLAHS employees had improperly accessed and disclosed the PHI of two celebrity patients.

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HIPAA (cont.)

UCLAHS agreed to pay a resolution amount of $800,000. UCLAHS also revised its policies and procedures regarding employee access to and safeguarding of its patients’ PHI and engaged in massive retraining of its employees on the new policy. Pursuant to the agreement, UCLAHS is also in the process of nominating an independent third party to serve as a monitor for three years, subject to OCR’s approval.

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OCR Website

For more information on any of these issues see:www.hhs.gov/ocr

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Federal Civil Rights and Privacy Enforcement by HHS’s Office for Civil Rights

Documents

Transcript of Federal Civil Rights and Privacy Enforcement by HHS’s Office for Civil Rights