HHS OCR Jurisdiction and Enforcement

Report
Federal Civil Rights
and Privacy Enforcement
by HHS’s Office for Civil Rights
Disability Rights Consortium
August 24, 2011
Jerome B. Meites
Chief Regional Civil Rights Counsel – Region V
United 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
2
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.
3
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.
4
Your Health. Your Rights.
 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.
5
Where is OCR?
 Headquarters in Washington, D.C.:
–
–
–
–
Policy
Administration
Case management and oversight
External relations
 10 HHS regional offices:
–
–
–
–
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Enforcement
Investigation
Compliance reviews
Public education and outreach
Technical assistance
6
Department of Health and Human Services
Office for Civil Rights
Director
Leon Rodriguez
Office of General Counsel,
Civil Rights Division
Edwin Woo
Deputy Director,
Programs & Policy
Karen
Walker-Bryce
Civil Rights
Division
Vacant
Boston
Peter Chan,
Regional Manager
Dallas
Ralph Rouse,
Regional Manager
Deputy Director,
Enforcement and Regional
Operations
Valerie Morgan-Alston
Deputy Director,
Planning and Business
Administration
Stephanie Danes Smith
Health Information
Privacy Division
Susan McAndrew
New York
Linda Colon, Acting
Regional Manager
Kansas City
Frank Campbell,
Regional Manager
Philadelphia
Marlene Rey,
Acting Regional
Manager
Denver
Velveta Howell,
Regional Manager
Atlanta
Roosevelt Freeman,
Regional Manager
San Francisco
Michael Kruley,
Regional Manager
Chicago
Celeste Davis, Acting
Regional Manager
Seattle
Linda Connor,
Regional Manager
7
How Does OCR Enforce
Discrimination Laws?






Complaints
Compliance Reviews
Voluntary Compliance
Education
Training
Technical Assistance
8
How Does OCR Enforce Discrimination
Laws?
Complaint/Compliance Review
Investigation
Written
Non-compliance
Finding
Written
Compliance
Finding
9
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
10
How are Discrimination Laws Enforced?
Efforts to Secure Voluntary Compliance
Resolved
Unresolved
Voluntary Compliance Agreement
11
How are Discrimination Laws Enforced?
Unresolved
Administrative
Hearing
Termination of Funds
Referral to
DOJ
Federal Court Action
to Enforce Assurance
of Compliance
12
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.
13
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.
14
How Does OCR Enforce Statutes and
Regulations? (cont.)
 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.
15
How Does OCR Enforce Statutes and
Regulations? (cont.)
 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.
16
How Does OCR Enforce Statutes and
Regulations? (cont.)
 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.
17
How Does OCR Enforce Statutes and
Regulations? (cont.)
 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.
18
How Does OCR Enforce Statutes and
Regulations? (cont.)
 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.
19
How Does OCR Enforce Statutes and
Regulations? (cont.)
 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.
20
How Does OCR Enforce Statutes and
Regulations? (cont.)
 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.
21
How Does OCR Enforce Statutes and
Regulations? (cont.)
 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.
22
How Does OCR Enforce Statutes and
Regulations? (cont.)
 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:
23
How Does OCR Enforce Statutes and
Regulations? (cont.)
(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 hearingimpaired and limited English proficient patients
24
How Does OCR Enforce Statutes and
Regulations? (cont.)
(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.
25
How Does OCR Enforce Statutes and
Regulations? (cont.)
 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.
26
How Does OCR Enforce Statutes and
Regulations? (cont.)
 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.
27
How Does OCR Enforce Statutes and
Regulations? (cont.)
 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;
28
How Does OCR Enforce Statutes and
Regulations? (cont.)
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 OCREducation for its consideration.
29
How Does OCR Enforce Statutes and
Regulations? (cont.)
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.
30
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)
31
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
33
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
34
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
35
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
45 CFR § 80
37
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.
38
Title VI of the 1964 Civil Rights Act (cont.)
 Consequently, understanding how the Title VI
regulations operate is very important for
disability rights advocates pursuing
administrative claims through a federal
agency.
39
Title VI of the 1964 Civil Rights Act (cont.)
 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.
40
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.
45 CFR § 80.2
41
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).
42
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
43
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.
44
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.
45
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.
46
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.
47
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.
48
Age Discrimination Act Exceptions (cont.)
 Example of different treatment based on age
being deemed necessary: age limitation for
enrollment in Head Start.
49
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 of
protections contained in Title VI to the
disabled
50
Section 504 of the
Rehabilitation Act of 1973 (2)
 Prohibits discrimination on the basis of
disabling condition in programs and
activities that receive FFA
45 CFR § 84
51
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
52
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
45 CFR §§ 84.4 & 84.52
53
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
54
The Americans with Disabilities Act (2)
Title I
 Employment
 Enforcement agency – Equal Employment
Opportunity Commission
Title 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
55
The Americans with Disabilities Act (3)
Title III
 Areas of public accommodation
 Lead enforcement agency – US Department of Justice
Title IV
 Telecommunications
 Enforcement agency – Federal Communications
Commission
Title V
 Miscellaneous provisions
– ATBCB to issue accessibility standards
– Statements of what “conditions” are not disabilities
(e.g. Current illegal drug use)
56
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
57
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
58
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
28 CFR § 35.130
59
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.
60
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.
61
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
62
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
63
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
Olmstead Enforcement Nationally
(cont.)
• 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.
Olmstead Enforcement Nationally
(cont.)
• 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”).
Olmstead Enforcement Nationally
(cont.)
• 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
Olmstead Enforcement Nationally
(cont.)
• (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
Olmstead Enforcement Nationally
(cont.)
• (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
Olmstead Enforcement Nationally
(cont.)
• (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
Olmstead Enforcement Nationally
(cont.)
• 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
Olmstead Enforcement Nationally
(cont.)
• 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.
Olmstead Enforcement Nationally
(cont.)
• (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.
75
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.
76
OCR Olmstead Enforcement Successes
in Illinois (cont.)
 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.
77
OCR Olmstead Enforcement Successes
in Illinois (cont.)
 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.
78
OCR Olmstead Enforcement Successes
in Illinois (cont.)
 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.
79
OCR Olmstead Enforcement Successes
in Illinois (cont.)
 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.
80
OCR Olmstead Enforcement Successes
in Illinois (cont.)
 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.
81
OCR Olmstead Enforcement Successes
in Illinois (cont.)
 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.
82
OCR Olmstead Enforcement Successes
in Illinois (cont.)
 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.
83
OCR Olmstead Enforcement Successes
in Illinois (cont.)
 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.
84
OCR Olmstead Enforcement Successes
in Illinois (cont.)
 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.
85
Title II of the ADA
Most 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 ADA
Most 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”?
87
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.”
45 CFR § 84.52(d)
88
ADA Title II and Auxiliary Aids
A 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
28 CFR § 35.160
89
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)
90
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
91
Auxiliary Aids Claims
In evaluating whether communication was
effective, 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?
92
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 hearingimpaired 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.
OCR Auxiliary Aid Enforcement Actions
(cont.)
• 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.
OCR Auxiliary Aid Enforcement Actions
(cont.)
• 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.
OCR Auxiliary Aid Enforcement Actions
(cont.)
• (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.
OCR Auxiliary Aid Enforcement Actions
(cont.)
• (7) Maintain a centralized telecommunication
phone number 24/7 for sign language
interpreter requests.
• (8) Provide comprehensive compliance
reports to OCR.
OCR Auxiliary Aid Enforcement Actions
(cont.)
• 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.
OCR Auxiliary Aid Enforcement Actions
(cont.)
• Under the agreement, Florida will provide
appropriate auxiliary aids. It will also appoint
an independent monitor and identify aidessential 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.
101
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.”
102
Health Reform Implementation (cont.)
 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.
103
Health Reform Implementation (cont.)
 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.
104
Health Reform Implementation (cont.)
 The Exchange regulations include a section
requiring each Exchange to maintain “nondiscrimination 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.)
105
Health Reform Implementation (cont.)
 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).)
106
Health Reform Implementation (cont.)
 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).)
107
Health Reform Implementation (cont.)
 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).)
108
Health Reform Implementation (cont.)
 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.
109
Health Reform Implementation (cont.)
 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.
110
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
111
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
112
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)
113
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.
114
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
115
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
116
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.
117
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).
118
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.
119
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.
120
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.
121
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.
122
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.
123
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.
124
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.
125
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.
126
OCR Website
For more information on any of these issues
see:
www.hhs.gov/ocr
127

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