On September 12, The U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) announced the issuance of a Letter of Finding and Notice of Violation against the San Juan Capestrano Hospital (the Hospital) in Puerto Rico for violating civil rights laws when it failed to provide a patient with a sign language interpreter, under Section 504 of the Rehabilitation Act (Section 504) and Section 1557 of the Affordable Care Act (Section 1557), laws which prohibit discrimination on the basis of disability.
Section 504 prohibits discrimination based on disability in any program or activity receiving federal financial assistance from HHS, while Section 1557 does the same with respect to HHS subsidized health programs and activities. Together, Section 504 and Section 1557 prohibit any entity that receives Federal financial assistance from discriminating against qualified individuals with disabilities and requires an entity to take steps to ensure that communication with individuals with disabilities through the use of appropriate auxiliary aids and services (such as sign language interpreters) is as effective as communication with others.
In 2024, OCR finalized important regulatory updates and changes to the rules implementing Section 504 and Section 1557. These updates are now federal law.
According to OCR Director Melanie Fontes Rainer:
“Effective communication during mental health evaluations is critical to ensure appropriate care and treatment for every patient. Patients who are deaf or hard-of-hearing must receive the same level of communication as patients without auditory disabilities. OCR will continue to rigorously enforce the laws and regulations in strengthening access to health services for individuals with disabilities to ensure equity and nondiscrimination in health care and human services.”
The Hospital offers acute inpatient services for adults and adolescents struggling with a range of mental health illnesses and substance abuse concerns. The Hospital has been in operation for 26 years and offers various treatment services in its outpatient clinics in eleven different locations throughout the island. On its website, the Hospital describes itself as the leading organization in mental health services in Puerto Rico, the Caribbean, and Latin America.
The Hospital is owned and operated by Acadia Healthcare (Acadia). Acadia provides behavioral health services in inpatient psychiatric hospitals, specialty treatment facilities, residential treatment centers, outpatient clinics, and therapeutic school-based programs. As of June 30, 2022, Acadia operates 250 behavioral healthcare facilities in 39 states and Puerto Rico.
OCR received a complaint alleging the Hospital discriminated against a patient on the basis of disability by failing to provide a sign language interpreter for a court-ordered psychiatric evaluation at the Hospital. The failure to provide a sign language interpreter denied the patient an equal opportunity to participate in or benefit from the Hospital’s programs and services because of the disability, said OCR.
The patient’s health insurance carrier contacted the Hospital to arrange for evaluation and ambulance service and informed the Hospital that the patient was deaf and needed a sign language interpreter. Immediately after arrival at the Hospital, a receptionist was told that the patient required a sign language interpreter. A nurse told the patient that the Hospital was working on providing an interpreter.
However, during the patient’s meetings with staff, no sign language interpreter was present. Indeed, OCR found that the Hospital never provided the patient with the requested interpreter. However, the Hospital asserted that staff were able to communicate effectively without an interpreter and that they fully understood what the patient told them.
The Hospital’s claim that the patient did not request an interpreter was inconsistent with its own intake form, which states that the patient wanted to communicate with sign language. Statements to OCR by a nurse and physician that the patient did not know sign language and did not request a sign language interpreter are contradicted by the discharge papers where the psychiatrist and the clinical physician acknowledged that the patient was deaf.
Further investigation by OCR revealed significant problems with the Hospital’s staff training and policies. For example, OCR learned that during interviews conducted after additional effective communication trainings were provided to Hospital employees, Hospital staff demonstrated a lack of understanding of the Hospital’s legal requirement to provide deaf people with requested sign language interpreters. Staff provided inconsistent responses on who is responsible for determining whether a patient requires an auxiliary aid or service. Clinical staff also stated that they heavily rely on the patient’s family members or companions to determine a patient’s needs.
Notices posted by the Hospital do not inform patients of the availability of free sign language interpreter services and do not describe a disability discrimination complaint process or name a Grievance Officer.
As a result of its investigation, OCR determined that:
- The patient was a qualified individual with a disability who used sign language as her primary form of communication;
- The patient needed a sign language interpreter to communicate effectively with others;
- The Hospital’s use of handwritten notes, gestures, and lip reading was insufficient given the complexity of the communications required to perform a psychiatric evaluation and the centrality of communication to such an evaluation;
- The Hospital failed to take appropriate steps to ensure that communication with the patient was as effective as communication with persons who are not deaf or hard-of-hearing; and
- The Hospital failed to provide auxiliary aids and services where necessary to provide effective communication and afford the patient an equal opportunity to participate in and benefit from the Hospital’s services.
According to OCR:
“The Hospital’s failure to provide the auxiliary aid requested (i.e., a sign language interpreter) violated Section 504 and Section 1557.
The Hospital has thirty (30) calendar days from the date of this letter to respond and sixty (60) calendar days from the date of this letter to negotiate a Settlement Agreement with OCR. To that end, we have enclosed a proposed Settlement Agreement for your consideration. If compliance has not been secured by the end of the 60-day negotiation period, OCR may initiate formal enforcement action by commencing administrative proceedings, or by other means authorized by law. These proceedings could result in the termination of Federal financial assistance to the covered entity.
OCR’s determination advises the Hospital to contact OCR within thirty days and enter into a Settlement Agreement within sixty days. The Settlement Agreement outlines the actions that the Hospital must take to remedy the violations. If compliance has not been secured through a Settlement Agreement negotiation, the HHS division that has disbursed federal funding to the Hospital may take potential action. This action may ultimately result in limitations on continued receipt of HHS funds.”
Loss of funding is the ultimate big stick for a federal agency to enforce compliance with federal civil rights requirements. Indeed, behind the scenes and out of the public eye, I have seen situations like this many times. I have been involved with federal funding recipients losing more than $500,000,000 pending resolution of various discrimination allegations.
OCR’s actions against the Hospital clearly indicate that the civil rights office takes federal civil rights compliance very seriously, especially with the new Section 1557 regulations now in place.
© Bruce L. Adelson 2024. All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney. Mr. Adelson is a faculty member at the Georgetown University School of Medicine and University of Pittsburgh School of Law where he teaches organizational culture, implicit bias, cultural and civil rights awareness.
Mr. Adelson’s blogs are a Bromberg exclusive.