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

1. Federal Civil Rights and Privacy Enforcementby 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

2. 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

3. 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.

4. 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.

5. 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.

6. Where is OCR? • 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

7. Department of Health and Human Services Office for Civil Rights Director Leon Rodriguez Office of General Counsel, Civil Rights Division Edwin Woo Philadelphia Marlene Rey, Acting Regional Manager New York Linda Colon, Acting Regional Manager Boston Peter Chan, Regional Manager Chicago Celeste Davis, Acting Regional Manager Kansas City Frank Campbell, Regional Manager Atlanta Roosevelt Freeman, Regional Manager Deputy Director, Planning and Business Administration Stephanie Danes Smith Deputy Director, Programs & Policy Karen Walker-Bryce Deputy Director, Enforcement and Regional Operations Valerie Morgan-Alston Civil Rights Division Vacant Health Information Privacy Division Susan McAndrew Denver Velveta Howell, Regional Manager Dallas Ralph Rouse, Regional Manager San Francisco Michael Kruley, Regional Manager Seattle Linda Connor, Regional Manager

8. How Does OCR EnforceDiscrimination Laws? • Complaints • Compliance Reviews • Voluntary Compliance • Education • Training • Technical Assistance

9. How Does OCR Enforce Discrimination Laws? Investigation Written Non-compliance Finding Written Compliance Finding Complaint/Compliance Review

10. 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

11. How are Discrimination Laws Enforced? Efforts to Secure Voluntary Compliance Resolved Unresolved Voluntary Compliance Agreement

12. How are Discrimination Laws Enforced? Unresolved Administrative Hearing Referral to DOJ Federal Court Action to Enforce Assurance of Compliance Termination of Funds

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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:

24. 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 hearing-impaired and limited English proficient patients

25. 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.

26. 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.

27. 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.

28. 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;

29. 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 OCR- Education for its consideration.

30. 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.

31. 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)

32. 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

33. 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

34. 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

35. 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

36. 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

37. Title VI of the 1964 Civil Rights Act 45 CFR § 80 Prohibits programs and activities receiving Federal Financial Assistance (FFA) from discriminating against individuals based on: - Race - Color - National Origin

38. 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.

39. 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.

40. 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.

41. Who is Covered under Title VI? 45 CFR § 80.2 • 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.

42. 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).

43. 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

44. 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.

45. 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.

46. 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.

47. 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.

48. 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.

49. Age Discrimination Act Exceptions (cont.) • Example of different treatment based on age being deemed necessary: age limitation for enrollment in Head Start.

50. 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