OCR Settlements Show Health Care & Disabled Housing Providers Face Growing Disability Discrimination Risks

October 19, 2011

A continuing series of federal investigations and enforcement actions highlight the need for health care providers and other health industry organizations to strengthen their disability discrimination management practices to defend against rising exposures to actions by the U.S. Department of Health & Human Services Office of Civil Rights (OCR) and other agencies as well as private law suits.

As part of a broader emphasis on the enforcement of disability and other federal discrimination laws by the Obama Administration, OCR is making investigation and prosecution of suspected disability discrimination by health industry organizations a priority.  OCR recently has announced several settlement agreements and issued letters of findings as part of its ongoing efforts to ensure compliance with Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act of 1990 (ADA) as well as various other federal nondiscrimination and civil rights laws.

Defending or paying to settle a disability discrimination charge brought by a private plaintiff, OCR or another agency, or others tends to be financially, operationally and politically costly for a health care organization or public housing provider.  In addition to the expanding readiness of OCR and other agencies to pursue investigations and enforcement of disability discrimination and other laws, the failure of health care organizations to effectively maintain processes to appropriately include and care for disabled other patients or constituents with special needs also can increase negligence exposure, undermine Joint Commission and other quality ratings, undermine efforts to qualify for public or private grant, partnerships or other similar arrangements, and create negative perceptions in the community.

Federal Disability & Other Laws Prohibit Health Care Provider Discrimination

Public and private health care and housing providers may face discrimination exposures under various federal laws such as the public accommodation and other disability discrimination prohibitions of the ADA, Section 504, the Civil Rights Act and various other laws. Section 504 requires recipients of Medicare, Medicaid, HUD, Department of Education, welfare and most other federal assistance programs funds including health care, education, housing services providers, state and local governments to ensure that qualified individuals with disabilities have equal access to programs, services, or activities receiving federal financial assistance. The ADA extends the prohibition against disability discrimination to private providers and other businesses as well as state and local governments including but not limited to health care providers reimbursed by Medicare, Medicaid or various other federal programs The ADA requirements extend most federal disability discrimination prohibits to health care and other businesses even if they do not receive federal financial assistance to ensure that qualified individuals with disabilities have equal access to their programs, services or activities.  In many instances, these federal discrimination laws both prohibit discrimination and require health care and other regulated businesses to put in place reasonable accommodations needed to ensure that their services are accessible and available to persons with disabilities.  Meanwhile the Civil Rights Act and other laws prohibit discrimination based on national origin, race, sex, age, religion and various other grounds.  These federal rules impact virtually all public and private health care providers as well as a broad range housing and related service providers.

As a result of its stepped up enforcement of the ADA, Section 504 and other civil rights and nondiscrimination rules, OCR is racking up an impressive list of settlements with health care providers, housing and other businesses for violating the ADA, Section 504 or other related civil rights rules enforced by OCR.  While OCR continues to wage this enforcement battle in the programs it administers, the Departments of Justice, Housing & Urban Development, Education, Labor and other federal agencies also are waging war against what the Obama Administration perceives as illegal discrimination in other areas.  Along side their own enforcement activities, OCR and other federal agencies are maintaining a vigorous public outreach to disabled and other individuals protected by federal disabilities and other civil rights laws intended to make them aware of and to encourage them to act to enforce these rights. To be prepared to defend against the resulting risk of claims and other enforcement actions created by these activities, health care, housing and other U.S. providers and businesses need to tighten compliance and risk management procedures and take other steps to prepare themselves to respond to potential charges and investigations.

Recent Settlements Highlight Risk

Within recent settlement agreements, entities agreed to take steps to come into compliance with Section 504 and ADA, including: review and revision of policies and procedures; training staff on their non-discrimination obligations; providing a grievance procedure for patients; and other corrective actions specific to each entity’s violations.  To learn more details about these actions and settlements, see https://www.cynthiastamer.com/documents/articles/20111019%20OCR%20Disability%20Enforcement%20CMSPC.pdf.

Enforcement of Discrimination & Other Civil Rights Laws Obama Administration Priority Putting Public & Private Providers At Risk

These and other enforcement actions by OCR and other agencies demonstrate the significant increased federal emphasis on the enforcement of federal discrimination laws against private and public health care and housing providers, state and local governments and other businesses under the Obama Administration. In keeping with this renewed emphasis, the DCF settlement is the latest in a series of federal disability, national origin and other discrimination charges and settlements OCR, has brought over the past year against physicians, public and private hospitals, insurers, federally financed housing providers and other parties providing services financed under programs administered by OCR. As the Department of Housing and Urban Development (HUD), the Equal Employment Opportunity Commission (EEOC) and other federal agencies also similarly have increased emphasis in federal discrimination law enforcement during this period, health care providers and other federal program service providers need to be prepared to defend their programs and practices to withstand federal discrimination charges or other investigations by federal agencies, private plaintiffs or both. 

As for employment discrimination, violators of these and other federal discrimination prohibitions applicable to the offering and delivery of services and products also face exposure to large civil damage awards to private plaintiffs as well as federal program disqualification, penalties and other federal agency enforcement. Unfortunately, while most businesses and governmental leaders generally are sensitive to the need to maintain effective compliance programs to prevent and redress employment discrimination, the awareness of the applicability and non-employment related disability and other discrimination risk management and compliance lags far behind.

Many private health care organizations assume that OCR’s enforcement actions are mostly a problem for state and local government agencies because state and local agencies and service providers frequently have been the target of OCR discrimination charges.  However the record shows OCR enforcement risks are high for both public and private providers. 

OCR can and does investigate and brings actions against a wide variety of public and private physicians, hospitals, insurers and other private health care and other federal program participants. In October, 2009,  for instance, OCR announced that an Austin, Texas orthopedic surgeon whose practice group sees an average of 200 patients per week, had entered into a settlement agreement to resolve OCR charges that he violated Section 504 of the Rehabilitation Act by denying medically appropriate treatment from patients solely because they are HIV-positive.

Invest in Prevention To Minimize Liability Risks

In light of the expanding readiness of OCR to investigate and take action against health care providers for potential violations of the ADA, Section 504 and other federal discrimination and civil rights laws, health care organizations and their leaders should review and tighten their policies, practices, training, documentation, investigation, redress, discipline and other nondiscrimination policies and procedures. In carrying out these activities, organizations and their leaders should keep in mind the critical role of training and oversight of staff and contractors plays in promoting and maintaining required operational compliance with these requirements.  Reported settlements reflect that the liability trigger often is discriminatory conduct by staff, contractors, or landlords in violation of both the law and the organization’s own policies.

To achieve and maintain the necessary operational compliance with these requirements, organizations should both adopt and policies against prohibited discrimination and take the necessary steps to institutionalize compliance with these policies by providing ongoing staff and vendor training and oversight, contracting for and monitoring vendor compliance and other actions.  Organizations also should take advantage of opportunities to identify and resolve potential compliance concerns by revising patient and other processes and procedures to enhance the ability of the organization to learn about and redress potential charges without government intervention.

For More Information Or Assistance

If you need assistance reviewing or tightening your policies and procedures, conducting training or audits, responding to or defending an investigation or other enforcement action or with other health care related risk management, compliance, training, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Her experience includes advising hospitals, nursing home, home health, rehabilitation and other health care providers and health industry clients to establish and administer compliance and risk management policies; prevent, conduct and investigate, and respond to peer review and other quality concerns; and to respond to Board of Medicine, Department of Aging & Disability, Drug Enforcement Agency, OCR Privacy and Civil Rights, HHS, DOD and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns.

A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns. Her presentations and programs include How to Ensure That Your Organization Is In Compliance With Regulations Governing Discrimination, as well as a wide range of other workshops, programs and publications on discrimination and cultural diversity, as well as a broad range of compliance, operational and risk management, and other health industry matters.

Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.  You can get more information about her health industry experience here. If you need assistance responding to concerns about the matters discussed in this publication or other health care concerns, wish to obtain information about arranging for training or presentations by Ms. Stamer, wish to suggest a topic for a future program or update, or wish to request other information or materials, please contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

If you or someone else you know would like to receive future updates about developments on these and other concerns from Ms. Stamer, see  here. About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, compensation, data security and privacy, health care, insurance, and other key compliance, risk management, internal controls and other key operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here. 

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©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


“Health Care Compliance Spooks & Goblins: Honing Your Compliance Ghost-Busting Skills” Topic of 10/19 NTHCPA Meeting

October 18, 2011

 

NORTH TEXAS HEALTHCARE COMPLIANCE PROFESSIONAL ASSOCIATION

Invites Members and Guests to Our Next Study Group & Complimentary Halloween Month Luncheon

“Health Care Compliance Spooks & Goblins:  Honing Your Compliance Ghost-Busting Skills”

Moderated By

Texas Health Resources Regional Director Compliance & Privacy Tauna Shelton, FACHE, CHC,MHSM,MS

Wednesday, October 19, 2011
11:30 a.m. to 1:00 p.m.
Dallas Ft Worth Hospital Council

250 Decker Drive, Irving, TX 75062-2706

RSVP here

 

Recent high profile enforcement actions against prominent health care organizations in Dallas are a stark reminder of just a few of the many spooks and goblins the keep up health care compliance professionals and their organizations up at night.

Reload your compliance ghost busting skills by joining the North Texas Healthcare Compliance Professional Association (NTHCPA) on Wednesday, October 19, 2011 from 11:30 a.m. to 1:00 p.m. at the for a complimentary lunch and a lively round table discussion with other health care compliance professionals of risk management compliance processes, practices and other ideas for managing their organization’s health care compliance spooks and goblins.  This discussion of “Health Care Compliance Spooks & Goblins:  Honing Your Compliance Ghost-Busting Skills” moderated by Texas Health Resources Regional Director Compliance & Privacy Tauna Shelton, FACHE, CHC,MHSM,MS will focus on processes and other tips to help manage intractable risks and uncertainties inherent in identifying, balancing, managing and mitigating compliance amid operational, financial, time, lack of clarity, competing obligations and responsibilities, and other practical limits on your resources and controls.

In celebration of Halloween, a complimentary light lunch will be provided by Cynthia Marcotte Stamer, P.C. for those who R.S.V.P. for the meeting here by 8:00 a.m. on Wednesday, October 19.

NTHCPA meetings are open to all NTHCPA members and other interested health care compliance professionals. Participation in the meeting is complimentary. Participants are responsible for any parking charges incurred. 

RSVP & Register For Invites & Updates

To help us to notify you about upcoming meetings and to arrange for adequate space for this and other meetings, interested persons are encouraged to forward their current contact information including e-mail to Vice-President Cynthia Marcotte Stamer at R.S.V.P. for the meeting here or by e-mail here by 8:00 a.m. on Wednesday, October 19.  .  Stay on top of information about upcoming meetings and share and dialogue with other NTHCPA members about health care compliance challenges and developments by joining our Linked In Group herePlease feel free to share this invitation with others who may be interested. 

About the NTHCPA & Involvement

NTHCPA exists to champion ethical practice and compliance standards and to provide the necessary resources for ethics and compliance Professionals and others in North Texas who share these principles.  The vision of NTHCPA is to be a pre-eminent compliance and ethics group promoting lasting success and integrity of organizations within North Texas.  To register or update your registration or to receive notice of future meetings, e-mail here.

Would you like to get more involved?  We encourage persons interested in serving on the steering committee, sponsoring refreshments for an upcoming meeting, wish to suggesting topics or speakers, or seeking more information about membership or involvement with the NTHCPA to contact:

NTHCPA President Erma Lee at (817) 927-1232 or by e-mail here or

Vice-President Cynthia Marcotte Stamer at (469) 767-8872 or by e-mail here

This communication may be considered a marketing communication for certain purposes.  If you wish to update your e-mail for purposes of or would prefer not to receive future e-mail concerning meetings or other activities of the North Texas Healthcare Compliance Professionals Association or other marketing and promotional mailings from it, please send an email with the word “unsubscribe” in its subject heading here.

 

Please share this invitation with others who might be interested in this topic or other NTHCPA events!


Physician’s Suspension Shows Complying With Medical Board Orders Critical

October 16, 2011

A recent Texas Medical Board order suspending a Houston physician shows the serious consequences that can result if a physician subject to an order fails to comply.

Board’s Suspension of Dr. Theresa Cachuela Rice

In September, 2011, the Board automatically suspended the license of Houston doctor Theresa Cachuela Rice, M.D., requiring Dr. Rice, 79, to immediately cease practicing medicine in Texas after Dr. Rice failed to complete Continuing Medical Education and to take and pass the Texas Medical Jurisprudence Exam as stipulated by a previous March 2010 Order.

In March 2010, the Board and Dr. Rice entered into an Agreed Order requiring Dr. Rice to: pass, within one year from the date of the entry of the Order, the Texas Medical Jurisprudence Examination within three attempts; complete 24 hours of CME within one year; and pay an administrative penalty of $1,500 within 60 days of the date of the entry of the Order.

The 2010 Order was based on the Board’s finding that Dr. Rice: failed to meet the standard of care; aided and abetted the practice of medicine by a person not licensed by the Board; and failed to supervise adequately the activities of those acting under her supervision.

In its 2010 decision, the Board considered as a mitigating circumstance that Dr. Rice was one of several doctors duped by a Nigerian businessman who had a history of fraudulent activity. At that time, the Board elected not to suspend Dr. Rice subject to her completion of continuing medical eduction (CME) and fulfillment of other terms.

The Board’s announcement of the suspension of Dr. Rice does not provide any information about the reasons or circumstances underlying the alleged failure by Dr. Rice to fulfill the terms of the Board’s order.  According to the announcement, however, Dr. Rice will have the opportunity to appeal her automatic suspension.

Physicians Should Take Seriously Board Charges & Orders

While most physicians that become subject to a disciplinary order of the Board generally comply, from time to time, some physicians do not.  Because of the potential severity of the consequences for failing to comply with a Board order, physicians facing discipline need to fully understand the charges leveled against them, the expectations of the Board regarding the past behavior of the physician, and the Board’s expectations about the physician’s action and future conduct as soon as possible after charges are first leveled to the Board.  While many physicians agreeing or subjected to discipline by the Board or another disciplinary body often do not fully agree with the discipline, most understand the need to comply with the order and adjust their behavior to ensure their ability to demonstration that compliance to the Board.

Frequently, physicians under disciplinary investigation by the Board may feel the charges leveled against them are unjustified or otherwise disagree with criticisms regarding the physician’s behavior.  When this is the case, before deciding how to respond to the charges in question, it is important that the physician carefully and objectively review the conduct underlying the charges with qualified counsel in light of board rules and other standards of care to assess the likelihood that the Board can be persuaded to agree with the physician’s perspective or if not, what other response the Board is likely to have to the conduct under review.  When making these evaluations, it is critical that the physician exercise caution to ensure the objectiveness of this analysis.

Whether negotiating a voluntary consent order or considering whether and how to discipline a physician following a hearing where the Board finds fault with the conduct under review, the Board’s perception about the culpability of the actions of the physician, the physician’s acceptance of the need for changes in conduct and the likelihood that the physician will make the required change and comply with the Board ordered corrective action and other Board rules going forward play heavily into the decision of what discipline is ordered. 

When it feels the inappropriateness of the conduct to be relatively clear, the Board is likely to view the persistence of a physician in contesting the charges as reflecting the physician’s failure to accept responsibility for his or her misconduct as well as an indicator that the physician is unlikely to comply with the Board’s expectations in the future.  For this reason legal counsel for a physician often might recommend that the physician consider seeking to negotiate a voluntary consent order with the Board when the legal counsel is concerned that the Board might find fault with the conduct of the physician.

While genuine contrition and a commitment to work to improve compliance going forward may help mitigate Board discipline exposures at the time expressed, a physician pursuing this strategy must be prepared to in fact comply with the orders of the Board and adjust his or her behavior accordingly.  As reflected by the Board’s action against Dr. Rice, the Board rarely is sympathetic or lenient when it determines that a physician fails to comply with a Board order.  Consequently, physicians entering into a voluntary consent order with the Board or subject to an order imposed by the Board should make every effort to understand and fully comply.  If legitimate circumstances beyond the control of the physician subsequently prevent or undermine the ability of the physician to comply with the order, the physician immediately should consult with counsel regarding the potential to modify the order or other actions that are required or advisable to mitigate the potential sanctions from the Board for failing to comply.

Physician Personal Misconduct Topic of Stamer’s 9/27 HCMS CME Program

While the Board’s announcement about the suspension of Dr. Rice does not indicate any facts or circumstances at this time surrounding her noncompliance, a review of published Board actions reveals that in many instances, physicians that incur follow up discipline for failing to comply with Board orders often are impacted by a physical or mental condition, substance abuse or other circumstance impairs the ability of the physician to appreciate the need to comply or his or her ability the conform behavior to the required expectation.

Cynthia Marcotte Stamer will discuss licensing board, peer review, tort and other exposures arising out of sexual, substance abuse, or other personal misconduct issues affecting physician and other health care providers in a program entitled “Sex, Drugs & Rock ‘n Role” for the Harris County Medical Society Central Branch on October 27, 2011.  To register or for other details, see here.

 

For More Information Or Assistance

If you need assistance conducting or reviewing or responding to a medical licensing board, peer review or other health care quality investigation or concern or with other health care related risk management, compliance, enforcement or management concerns, the author of this update, attorney Cynthia Marcotte Stamer, may be able to help. Vice President of the North Texas Health Care Compliance Professionals Association, Past Chair of the ABA Health Law Section Managed Care & Insurance Section and the former Board Compliance Chair of the National Kidney Foundation of North Texas, Ms. Stamer has more than 24 years experience advising health industry clients about these and other matters. Her experience includes advising hospitals, nursing home, home health, rehabilitation and other health care providers and health industry clients to establish and administer compliance and risk management policies; prevent, conduct and investigate, and respond to peer review and other quality concerns;  and to respond to Board of Medicine, Department of Aging & Disability, Drug Enforcement Agency and other health care industry investigation, enforcement and other compliance, public policy, regulatory, staffing, and other operations and risk management concerns.

A popular lecturer and widely published author on health industry concerns, Ms. Stamer continuously advises health industry clients about compliance and internal controls, workforce and medical staff performance, quality, governance, reimbursement, and other risk management and operational matters. Ms. Stamer also publishes and speaks extensively on health and managed care industry regulatory, staffing and human resources, compensation and benefits, technology, public policy, reimbursement and other operations and risk management concerns including a number of programs and publications on OCR Civil Rights rules and enforcement actions.

Her insights on these and other related matters appear in the Health Care Compliance Association, Atlantic Information Service, Bureau of National Affairs, World At Work, The Wall Street Journal, Business Insurance, the Dallas Morning News, Modern Health Care, Managed Healthcare, Health Leaders, and a many other national and local publications.  You can get more information about her health industry experience here. If you need assistance with these or other compliance concerns, wish to inquire about arranging for compliance audit or training, or need legal representation on other matters please contact Ms. Stamer at (469) 767-8872 or via e-mail here

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here. If you do not wish to receive these updates in the future, send an e-mail with the word “Remove” in the Subject to here.

©2011 Cynthia Marcotte Stamer, P.C.  Limited non-exclusive license to republish granted to Solutions Law Press.  All other rights reserved.


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