Volume 2 Number 4
HOUSE COMMITEE CITES HHS FOR LAX CIVIL RIGHTS ENFORCEMENT
In a report issued on April 15, 1987 the House Committee on Government Operations found serious problems with the Office for Civil Rights' enforcement procedures. The Committee suggests that HHS's failure to enforce the Hill-Burton Act may have resulted in the death of a three-year-old child (see page 10). The report (Investigation of the Office for Civil Rights in the Department of Health and Human Services) is based on investigatory hearings held last August by the Human Resources and Intergovernmental Relations Subcommittee, and a review of OCR case files, internal memoranda, correspondence, and other data.
A number of the problems uncovered through the investigation were reported in the October 1986 and the January 1987 CIVIL RIGHTS MONITORS. Below, we report excerpts from the findings of the committee with examples from OCR case files.
OCR has responsibility under several statutes for ensuring nondiscrimination in federally assisted programs. They include Title VI of the Civil Rights Act of 1964 (race), Section 504 of the Rehabilitation Act of 1973 (disability), and the Age Discrimination Act of 1975. OCR is also responsible for compliance with the Hill-Burton Act which requires health care providers receiving federal funds to make their services "available and accessible" to their communities.
The House Committee's Findings
"OCR HAS UNNECESSARILY DELAYED CASE PROCESSING, ALLOWING DISCRIMINATION TO CONTINUE WITHOUT FEDERAL INTERVENTION" Between July 22, 1981 and January 3, 1986, 61 cases were referred to OCR headquarters by HHS regional offices. As of March 18, 1986, the cases ranged in age up to 2,762 days and in some cases had languished in headquarters for as long as 1,700 days... Much of the delay was due to administrative sloppiness, with OCR staff reporting that case files were lost, or had sat on the Director's desk for many weeks without action. The Office of the General Counsel (OGC), where cases were apparently sent for legal analysis, also caused long delays.
A serious example of headquarters delay is found in OCR's handling of a complaint involving the State of Michigan's Department of Mental Health. On October 1, 1980, a Section 504 complaint was filed with OCR against that agency, alleging the State's failure to provide services to mentally handicapped persons. The complaint was later amended to include discrimination on the basis of race. As of I-larch 18, 1986, this case was five years and 169 days old, yet still unresolved and in headquarters, where it had been for nearly three years.
"OCR's VOLUNTARY COMPLIANCE AGREEMENTS IN DISCRIMINATION CASES ARE INSUFFICIENT TO ACHIEVE COMPLIANCE WITH FEDERAL CIVIL RIGHTS LAWS AND DO NOT SECURE ADEQUATE REMEDIES FOR INJURED PARTIES. IN ADDITION, THEY ARE NOT MONITORED TO ASSURE THAT RECIPIENTS ADHERE TO THE REQUIREMENTS OF THE AGREEMENT"
OCR's Investigative Procedures Manual requires that all proposed non compliance letters of findings (LOF's) must be forwarded to headquarters in draft form for review and approval before being sent to a recipient that has been found in violation of the law. Because of the inordinate case delays in headquarters, regional office staff attempt to circumvent the headquarters logjam by negotiating voluntary compliance agreements in cases where serious violations have occurred. These agreements, in many cases, did not determine (1) that steps would be taken to overcome the effects of the discrimination, (2) that the discrimination had ceased, and (3) that steps had been taken to prevent the recurrence of the discriminatory behavior.
A Title VI complaint gives a[n] ... illustration of an inadequate settlement by OCR. The complaint alleged that a staff physician at Roosevelt Memorial Hospital in Culbertson, Montana, had refused emergency treatment to Native Americans because of their race and had, among other abuses, let a Native American child die by denying him services. The hospital refused to cooperate with OCR and denied access to their records for nearly a year. The case was three years old in March of 1986, before the problem of denial of access to information was resolved or the investigation was completed.
After the investigation, the regional manager directed the staff to draft a voluntary compliance agreement rather than a letter of findings citing a violation of Title VI - even though information in the case file demonstrates that (1) the hospital had refused to provide requested information to OCR for a year, and (2) there was gross negligence and stereotyping of indigent Native Americans that had resulted in serious injuries to that population.
Such a voluntary compliance agreement [with the Roosevelt Memorial Hospital], in lieu of a letter of findings indicating a violation or an enforcement action to gain access to recipient data, is unsatisfactory in all cases. In this case, beneficiaries were subjected to life-threatening discriminatory treatment. In cases such as the Roosevelt Memorial Hospital complaint, where Native Americans or other protected populations are being refused critical emergency care, OCR's investigation and findings have minimal value when OCR's apparent proclivity is to spare the recipient embarrassment. It raises questions about whether the agreement can be enforced in a court of law.
This practice also has the effect of muddying the compliance status of the recipient and therefore its eligibility to receive HHS funds. As soon as OCR's investigation reveals a violation and until adequate correction of the violation is obtained via a compliance agreement, the recipient is technically ineligible to receive HHS funds. When OCR makes such a finding but does not formally declare it, the recipient retains eligibility. Then, when the compliance agreement is not monitored, the recipient may continue to engage in the discriminatory practice while receiving HHS funds.