Volume 2, Number 1
Thomas B. Stoddard, Director of Lambda Legal Defense and Education Fund, in testimony before the hearing recounted what he considered one of OCR's most egregious incidents of "malignant neglect." The case involved the first complaint ever brought under Section 504 on the basis of discrimination because of AIDS or the perception of AIDS. His testimony is summarized below.
On July 9, 1984, North Carolina attorneys affiliated with Lambda sent a letter to the Atlanta Regional Office of OCR. The letter alleged discrimination on the part of Charlotte Memorial Hospital which had forced a registered nurse, who was diagnosed with pre-AIDS symptoms, to take a medical leave of absence because of the diagnosis. On July 25, Lambda received a letter from the Director of the Atlanta Office stating that the Office had accepted jurisdiction and that an investigation would begin within 90 days and a determination would be issued within 105 days.
On November 8, 1984, 105 days after the letter had been received, no determination was forthcoming and Lambda had no knowledge of whether an investigation had even been commenced. Lambda then sent a letter of complaint to the regional office. On August 5, 1985, the Atlanta Regional Director, Marie Cretien, responded with the statement that an investigation had been completed and a report had been issued, but the report had yet to be reviewed by OCR.
After receiving no report or determination, Lambda sent yet another letter to the Secretary of HHS. On November 18, 1985, Lambda received a response from Betty Lou Dotson, current Director of OCR, which stated that OCR would issue its findings as soon as possible. On February 26, 1986 when the client died, a determination still had not been reached.
OCR rendered its final finding of discrimination on August 5, 1986, more than two years after the initial claim had been filed and more significantly one day before the oversight hearings.
Despite the growing magnitude of the AIDS epidemic (as of June 30, 1986, there were 22,173 known cases of AIDS, and the five year projection for new cases is 196,000), and HHS labeling AIDS its primary health concern in 1984, OCR failed to adopt a policy governing AIDS complaints under Section 504. HHSI General Counsel requested that the Department of Justice prepare a legal memorandum addressing the issue of whether Section 504 of the Rehabilitation Act covers persons with AIDS. In June, Charles Cooper, Assistant Attorney General, Office of Legal Counsel, took the position that employers can discriminate against persons with AIDS if the basis of the discrimination is fear of contagion, and not the disabling effects of the disease. DOJ further asserted that asymptomatic carriers of AIDS have no "impairment" for Section 504 purposes and, therefore, are not protected by the law regardless of the nature or motivation of employer actions against such persons (For additional information, see the CIVIL RIGHTS MONIT OR, August 1986).
Review of OCR's enforcement activities reveals that not only are there both serious errors of judgment and unconscionable delays in OCR's handling of complaints and reviews, but OCR has no systematic way of preventing further problems. A Report on the hearings will be released early next year and the subcommittee and the General Accounting Office will continue to review the enforcement policies of OCR.
In a related matter, the Department has published proposed regulations for the Hill-Burton program. Bonnie Milstein of the Center for Law and Social Policy writes that "As expected, the Department is loosening the reporting requirements for hospitals, nursing homes and other health facilities that received federal Hill-Burton funds. The reporting requirements attach to health facilities' obligations to provide a specific amount of free care to qualified patients, and to serve all prospective patients in the facilities, service areas. These obligations were intended to ensure non-discriminatory provision of care, and to assure that at least some indigent patients received adequate health care."
The National Health Law Program asserts that the most important change in the proposed regulations is the method of HH9 compliance and monitoring review. "The proposed regulations eliminate HHS review of individual patient accounts to verify compliance... Facilities would be certified as in compliance after cursory review of hospital procedures for implementing the uncompensated care program and its triennial compliance report, unless the facility shows a "pattern of substantial noncompliance." For additional information contact Bonnie Milstein, Attorney at Law, Center for Law and Social Policy, 1616 P Street, N.W., Suite 350, Washington, D.C. 20036, (202) 328-5140 or Michael A. Dowell, Staff Attorney, National Health Law Program, Inc., 2025 M Street, N.W., Suite 400, Washington, D.C. 20036.