Civil Rights Settlement Highlights Health Industry Discrimination Risks As OCR Prepares To Broaden Requirements

Doctors’ Center Hospital, Inc.  (DCI) in the latest health care providers nailed in a U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) enforcement action for allegedly violating Section 504 of the Rehabilitation Act of 1973 (Section 504) by failing to provide auxiliary aids and services for deaf and hard of hearing patients under OCR’s ongoing aggressive campaigned on enforcing federal discrimination laws against health care providers and others covered by its regulations.  OCR’s announcement of the Voluntary Compliance Resolution Agreement with DCI (Agreement) announced today (October 27, 2015) comes with the November 6, 2015 deadline for health care providers and other concerned parties to comment on proposed OCR regulations on Nondiscrimination in Health Programs and Activities, implementing the federal prohibition against sex discrimination in health programs and activities enacted under Section 1557 of the Patient Protection and Affordable Care Act (ACA) and tightening other nondiscrimination requirements that generally apply to health care providers and others covered by OCR’s civil rights rules (covered entities) and various other programs and activities administered by OCR. Health care providers and others covered by these rules should provide meaningful input on the proposed rules even as they work to tighten their compliance and risk management practices to mitigate their exposures.

Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act (ADA) and Section 1557 of the Patient Protection and Affordable Care Act (ACA) (collectively the “Civil Rights Laws”) together require hospitals, health care providers, clinics, medical practices and other entities who receive Federal financial assistance to provide services to persons with disabilities in a non-discriminatory manner.  As construed by OCR with respect to deaf and hearing impaired individuals and their caregivers, these laws require health care providers offer services or aids need to ensure effective communication in light of the abilities of the individual who is deaf or hard of hearing, the primary method used by the individual to communicate and the complexity and nature of the information being conveyed. Failure to ensure effective communication in such health care settings may lead to misinformation, inappropriate diagnosis and/or delayed or improper medical treatments.

DCI  Discrimination Charge Settlement

The latest in a growing series of Civil Rights Law enforcement actions of these laws against health care providers by OCR, the Agreement announced October 27, 2015 resolves OCR charges stemming from a discrimination complaint made to OCR by an family that charged that one DCI facility, Doctors’ Center Hospital San Juan, Inc. violated Section 504 by failing to provide a sign language interpreter necessary to ensure effective communication during their 10 month old child’s five day hospitalization. OCR investigated the complaint under Section 504, which prohibits covered entities that receive Federal financial assistance from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services.

While the complaint that resulted in the OCR charges only specifically named its Doctors’ Center Hospital San Juan, Inc., at DCI’s request, the Agreement includes all of DCI facilities in Puerto Rico, which collectively serve an estimated 109,000 patients a year in the San Juan area as well as the northern part of the island of Puerto Rico.  Under the Agreement, DCI, Doctors’ Center Hospital San Juan, Inc. and the Doctors’ Center Hospital Bayamón, Inc. to resolve the complaint agree to take several actions to improve access to appropriate communication services for deaf and hard of hearing individuals including revising its policies and procedures, performing an assessment of the communication needs for deaf and hard of hearing patients and their companions, providing appropriate auxiliary aids and services at no cost, adopting and posting a Notice of Nondiscrimination, creating a Section 504 Grievance Procedure, appointing a Section 504 Coordinator and training all staff on the revised policies and procedures. Read the full Agreement here.

Health Industry’s Already High Civil Rights Enforcement Risks Set To Rise

The DCI Agreement highlights the already significant exposure that health care providers face under OCR’s current Civil Rights Law enforcement practices and comes as OCR is preparing to broaden and expand its existing Civil Rights regulations by adopting proposed changes to its regulations on Nondiscrimination in Health Programs and Activities. The deadline for comment on those proposed regulations is November 6, 2015.

Even before it adopts these proposed changes, health care providers already face significant Civil Rights discrimination risks.  OCR already aggressively investigates and enforces federal Civil Rights Law prohibitions against discrimination based on race, color, national origin, disability, age and sex against covered entities as part of the Obama Administration’s broader civil rights agenda. See. e.g., Health Care Employer’s Discrimination Triggers Medicare, EEOC Prosecutions; Genesis Healthcare Disability HHS OCR Discrimination Settlement Reminder To Use Interpreters, Other Needed Accommodations For Disabled; OCR Settlements Show Health Care & Disabled Housing Providers Face Growing Disability Discrimination Risks. Given the often multimillion dollar penalties and other heavy sanctions that OCR already regularly imposes against a long and ever-growing list of state and other health care, child care, elder care, insurance and other entities for violating its Civil Rights Laws, health care providers and other providers, Medicare and Medicaid Advantage and other insurers, and other covered entities generally will want both to carefully review and comment as appropriate on the proposed rules, as well as review and tighten as advisable their existing practices to reduce the risk of being sanctioned, excluded or both for violation of these nondiscrimination and other civil rights requirements by OCR. In this respect, covered entities will want both to evaluate their risks and responsibilities under the specific rules about Section 1557’s sex discrimination prohibits, as well as changes that more broadly affect the interpretation and enforcement of the nondiscrimination rules enforced by OCR generally.

The author of this article, Cynthia Marcotte Stamer is a practicing attorney and Managing Shareholder of Cynthia Marcotte Stamer, P.C., an attorney practicing as the co-managing member of Stamer│Chadwick │Soefje PLLC, author, pubic speaker, health policy advocate and industry thought leader, has focused on helping health industry and other organizations and their management understand and use the law and process to manage people, process, compliance, operations and risk including significant work with compliance with OCR and other regulatory requirements.

Scribe responsible for leading the American Bar Association (ABA) Joint Committee on Employee Benefits (JCEB) annual agency meeting with HHS Office of Civil Rights for five years, Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section, Board Certified in Labor & Employment Law, and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 28 years’ experience advising health industry clients about these and other matters.

Ms. Stamer’s experience includes advising and defending hospitals, nursing home, home health, physicians and other health care professionals, rehabilitation and other health care providers and health industry clients to establish and administer compliance and risk management policies and programs in response under CMS, OCR, HHS, FDA, IRS, DOJ, DEA, NIH, licensing, and other regulations; prevent, conduct and investigate, and respond to Board of Medicine, OIG, DOJ, DEA, DOD, DOL, Department of Health, Department of Aging & Disability, IRS, Department of Insurance, and other federal and state regulators; ERISA and private insurance, prompt pay and other reimbursement and contracting; peer review and other quality concerns; and other health care industry investigation, and enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns.

Ms. Stamer also is widely recognized for her regulatory and public policy advocacy, publications, and public speaking on privacy and other compliance, risk management concerns. Her insights on privacy, data security, and other matters have appeared in The Wall Street Journal, Business Insurance, the Dallas Morning News, Spencer Publications, and a host of other publications. She speaks and has conducted privacy training for the Association of State & Territorial Health Plans (ASTHO), the Los Angeles Health Department, the American Bar Association, the Health Care Compliance Association, a multitude of health industry, health plan, insurance and financial services, education, employer employee benefit and other clients, trade and professional associations and others.

Highly valued for her rare ability to find pragmatic client-centric solutions by combining her detailed legal and operational knowledge and experience with her talent for creative problem-solving, Ms. Stamer supports her clients both on a real time, “on demand” basis and with longer term basis to deal with daily performance management and operations, emerging crises, strategic planning, process improvement and change management, investigations, defending litigation, audits, investigations or other enforcement challenges, government affairs and public policy.

Ms. Stamer also is active in the leadership of a broad range of other professional and civic organizations. For instance, Ms. Stamer serves on the steering committee and as a faculty member of the Southern California ISSA-HIMMS Annual Security Summit and Chaired its 2015 3rd Annual Health Care Privacy Summit.  Ms. Stamer presently serves on an American Bar Association (ABA) Joint Committee on Employee Benefits Council representative; Vice President of the North Texas Healthcare Compliance Professionals Association; Immediate Past Chair of the ABA RPTE Employee Benefits & Other Compensation Committee, its current Welfare Benefit Plans Committee Co-Chair, on its Substantive Groups & Committee and its incoming Defined Contribution Plan Committee Chair and Practice Management Vice Chair; Past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group and a current member of its Healthcare Coordinating Council; current Vice Chair of the ABA TIPS Employee Benefit Committee; the former Coordinator and a Vice-Chair of the Gulf Coast TEGE Council TE Division; on the Advisory Boards of InsuranceThoughtLeadership.com, HR.com, Employee Benefit News, and many other publications.  She also previously served as a founding Board Member and President of the Alliance for Healthcare Excellence, as a Board Member and Board Compliance Committee Chair for the National Kidney Foundation of North Texas; the Board President of the early childhood development intervention agency, The Richardson Development Center for Children; Chair of the Dallas Bar Association Employee Benefits & Executive Compensation Committee; a member of the Board of Directors of the Southwest Benefits Association. For additional information about Ms. Stamer, see here, or the website Stamer ׀ Chadwick ׀ Soefje PLLC.  To contact Ms. Stamer, e-mail her here or telephone (469) 767-8872.

About Solutions Law Press, Inc.™

Solutions Law Press, Inc.™  provides human resources and employee benefit and other business risk management, legal compliance, management effectiveness and other coaching, tools and other resources, training and education on leadership, governance, human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of Ms. Stamer’s publications our other Solutions Law Press, Inc.™ resources such as:

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