Deeper Than the Headlines: OCR’s Other Enforcement

When most of us hear about OCR enforcement we immediately think about HIPAA, and rightfully so. There’s no doubt that HIPAA has definitely been a big enforcement area for OCR, but remember that OCR stands for the “Office for Civil Rights” and they oversee other areas of enforcement as well.

One such example is compliance with the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act which require providers to ensure that persons who are deaf or hard of hearing are given equal access to health care.

Case in point is the December 2017 resolution agreement that the University of Vermont Medical Center (UVMMC) agreed to enter into with OCR, the U.S. Department of Justice and the U.S. Attorney’s Office for the District of Vermont (DOJ) to ensure effective communication with individuals who are deaf or hard of hearing.

An investigation by OCR arose after the Department of Justice received complaints from two different patients who are deaf. The patients alleged that UVMMC failed to provide appropriate auxiliary aids and services necessary for effective communication while they were receiving medical treatment. Both patients use American Sign Language as their primary means of communication. Because UVMMC is a recipient of HHS federal financial assistance they are required to provide appropriate auxiliary aids and services to persons with impaired sensory, manual, or speaking skills so that individuals have an equal opportunity to benefit from the services received.

The first patient was a female who received treatment at UVMMC on April 24, 2013, while the second patient who complained was a male who received treatment on Feb. 23, 2013, and in July 2013. Bother patients specifically alleged that UVMMC discriminated against them by failing to provide them with the full and equal enjoyment of UVMMC’s goods, services, facilities, privileges, advantages or accommodations and by failing to provide appropriate auxiliary aids and services when necessary for effective communication while they were receiving medical treatment at UVMMC.

The resolution agreement outlines some of the items the UVMMC agreed to resolve. For example, within ninety calendar days of the effective date of the agreement, UVMMC agreed to designate at least one UVMMC employee as a Program Administrator, who shall be available twenty-four (24) hours a day, seven (7) days a week, to answer questions and provide appropriate assistance regarding immediate access to, and proper use of, the appropriate auxiliary aids and services, including Qualified Interpreters, required by this Agreement. The Program Administrator, or any individual to whom the duties are delegated when the Program Administrator is incapacitated or unavailable, will know where auxiliary aids are stored and how to operate any auxiliary aid and will be responsible for the maintenance, repair, replacement, and distribution of any auxiliary aid. UVMMC will circulate and post broadly within the hospital the name and/or title, telephone number, function, and office location of the Program Administrator(s), including a TTY telephone number, through which the Program Administrator(s) can be contacted twenty-four (24) hours a day seven (7) days a week by UVMMC personnel, Patients, or Companions.

Another requirement of the agreement is for qualified interpreter services being made available under certain circumstances. Some examples of circumstances and types of communication when it is likely to be necessary to provide a qualified interpreter include:

  1. obtaining a Patient’s medical history or description of symptoms and medical condition;
  2. discussing or explaining a Patient’s diagnosis, current condition, prognosis, treatment options or recommendation for treatment;
  3. discussing or explaining procedures, tests, or treatments;
  4. discussing or explaining test results;
  5. discussing or explaining prescribed medications, instructions for how and when medication is to be taken, and possible side effects and interactions of medications;
  6. obtaining informed consent or permission for procedures, surgery, or other treatment options;
  7. communicating during treatment and testing;
  8. communicating during discharge or post-operative planning and instruction;
  9. providing mental health evaluations, group or individual therapy, counseling or other therapeutic activities, including, but not limited to, grief counseling and crisis intervention;
  10. providing information about blood or organ donations;
  11. explaining living wills or powers of attorney (or their availability);
  12. discussing complex financial or insurance matters;
  13. providing educational presentations, such as classes concerning birthing, nutrition, CPR, and weight management; and
  14. any other circumstance in which a qualified interpreter is necessary to ensure a Patient’s rights provided by law.

There are many more examples or requirements that can be found in the resolution agreement with is three years in duration. Beyond the resolution agreement with OCR, UVMMC also agreed to pay the each of the patients $20,500 in compensatory relief. Remember to review the other types of enforcement that OCR is responsible for beyond the all-important HIPAA enforcement.

Questions or Comments?