HHS Office for Civil Rights Enforces Section 504 and the ADA

HHS Office for Civil Rights Enforces Section 504 and the ADA

The U.S. Department of Health and Human Services, Office for Civil Rights (OCR) has entered into 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).

Section 504 prohibits disability-based discrimination by all health care and human services providers that receive federal financial assistance and Title II of the ADA prohibits discrimination on the basis of disability by state and local governments.  Taken together, these laws provide protection against discrimination for a group of individuals who routinely experience exclusion and segregation.

“People with disabilities should have an equal opportunity to benefit from programs funded by federal dollars and to participate and live in their communities,” said OCR Director Leon Rodriguez. “Laws such as Section 504 and the ADA exist to ensure that these rights are not violated and that individuals do not face discrimination.”

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.

Examples of OCR’s recent enforcement actions include settlement agreements in two cases, Citizen’s Medical Center and Bertrand Chaffee Hospital, and a letter of findings sent to Georgia’s Medicaid agency:

Citizen’s Medical Center
OCR entered into a settlement agreement with CMC in Victoria, Texas, after finding violations of Section 504 and the ADA, when it rejected a child with autism for enrollment in a program based on its concern that the child would need one-on-one care as a reasonable modification.  The evidence was insufficient to support the conclusion that the child needed one-on-one care. OCR determined that even if the child did need one-on-one care, CMC had not demonstrated that providing such a reasonable modification would fundamentally alter the nature of the program or pose a direct threat to the health or safety of other children in the program. OCR found that CMC’s blanket policies of excluding children with “special needs” and excluding children who need one-to-one care, discriminates against children with disabilities.

Bertrand Chaffee Hospital
OCR entered into a Settlement Agreement with Bertrand Chaffee Hospital in Springville, New York to correct potential compliance issues with Section 504 and the ADA. The Agreement follows a complaint alleging that the Hospital engaged in unlawful discrimination on the basis of disability by failing to provide a patient who was deaf with a sign language interpreter while she was treated at the Hospital. The complainant further alleged that there was no TTY service available to her while she was receiving treatment. Section 504 and the ADA require that covered entities provide auxiliary aids and services, including sign language interpreters, to people with disabilities, when necessary for effective communication.

Georgia Department of Community Health
In a letter of findings to the Georgia Department of Community Health, OCR found the entity failed to assist the complainant in moving out of a nursing home and back into the community as required by the Olmstead decision. In Olmstead, the Supreme Court held that the ADA requires public entities to provide community-based services to persons with disabilities when such services are appropriate; the affected persons do not oppose community-based treatment; and community-based services can be reasonably accommodated.  This complainant has lived in a nursing home for 17 years and has been very clear about her desire to move to the community.  She has been determined by her doctor to be appropriate for community placement and the state has made no showing that such services cannot be reasonably accommodated.

People who believe that an entity receiving federal financial assistance has discriminated against them (or someone else) on the basis of disability, may file a complaint with OCR at:  http://www.hhs.gov/ocr/civilrights/complaints/index.html.

Summaries of each of these enforcement efforts can be found on OCR’s website: www.hhs.gov/ocr/civilrights/activities/agreements/. For more information on community living and Olmstead please visit: http://www.hhs.gov/ocr/civilrights/understanding/disability/serviceolmstead/index.html.

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Serving People with Disabilities in the Most Integrated Setting: Community Living and Olmstead

President Obama launched the “Year of Community Living,” on June 22, 2009, in commemoration of the 10^th Anniversary of the Supreme Court’s landmark decision in Olmstead v. L.C, 527 U.S. 581 (1999) [Olmstead].  InOlmstead, the Court held that the unjustified institutionalization of people with disabilities is a form of unlawful discrimination under the Americans with Disabilities Act (ADA).  The President celebrated the anniversary by launching “The Year of Community Living,” to reaffirm the Administration’s commitment to “vigorous enforcement of the civil rights for Americans with Disabilities and to ensuring the fullest inclusion of all people in the life of our nation.”The Department of Health and Human Services will play a key role in carrying out the President’s directive.  Among other activities, HHS Secretary Sebelius will be working with Secretary Donovan of the Department of Housing and Urban Development to identify ways to improve access to housing, community supports and independent living arrangements.

In recognition of the importance of the Olmstead decision and to implement community living initiative at HHS, Secretary Sebelius has created an HHS Coordinating Council, led by the Office on Disability.The Office for Civil Rights is a member of the Coordinating Council, along with the Administration for Children and Families, Administration on Aging, the Centers for Medicare & Medicaid Services, the Health Resources and Services Administration, the Office of the Assistant Secretary for Planning and Evaluation, the Office of Public Health and Science, and the Substance Abuse and Mental Health Services Administration. These agencies are tasked with aggressively addressing the barriers that prevent some individuals with disabilities from enjoying a meaningful life in their community.  The Office for Civil Rights is also partnering with the Department of Justice to promote “vigorous enforcement of the Americans with Disabilities Act and the Olmstead decision and to maximize the effectiveness of federal leadership in promoting civil rights and setting forth the Administration’s position in the federal courts.”

In addition to partnering with other HHS agencies and the Department of Justice, OCR works to promote community living through its enforcement program.  OCR investigates complaints alleging a violation of the Americans with Disabilities Act (ADA’s) “integration regulation,” which requires that individuals with disabilities receive public services in the most integrated setting appropriate to their needs.  This regulation was at issue in the Supreme Court’s Olmstead decision. The Court held that states are required to provide community-based services for people with disabilities who would otherwise be entitled to institutional services when: (a) such placement is appropriate; (b) the affected person does not oppose such treatment; and (c) the placement can be reasonably accommodated, taking into account the resources available to the state and the needs of other individuals with disabilities.

OCR’s response to Olmstead complaints has had a significant impact in facilitating the community integration of individuals with disabilities. OCR has received complaints filed by or on behalf of a wide range of individuals, including individuals with physical, psychiatric, developmental and cognitive impairments, and individuals of all ages, including children, young and middle-aged adults, and elderly persons. As a result of OCR’s efforts, many individuals have been able to move from an institution to the community, and many individuals have avoided unnecessary institutionalization. For example:

• Community services are being provided to individuals who had been institutionalized for decades.
• Community services are being provided or restored to individuals who lost their housing and/or community-based supportive services when they entered institutions due to an acute health care problem.
• Community services are being provided to individuals with disabilities through “waiver” programs.
• Increased hours of personal care and assistance are being provided to individuals who need them to stay in the community.
• Individuals with disabilities are having greater control over their community-based care and services.
• Individuals are provided reasonable accommodations where they reside, rather than having to move to a more restrictive setting

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* The above story is adapted from materials provided by USA Department of Health and Human Services (HHS)
** More information at USA Department of Health and Human Services (HHS)