OCR Tackles Health Care Discrimination Experienced by Deaf and Hard of Hearing Patients | JD Supra

The Office for Civil Rights (“OCR”) of the U.S. Department of Health and Human Services (“OCR”) has entered into a Voluntary Resolution Agreement (“Agreement”) with CHI St. Vincent Hot Springs (“CHI”) to ensure that there are effective communication arrangements in a healthcare facility. facility for deaf or hard of hearing patients. The settlement resolves a complaint filed with the OCR by an individual (“complainant”) alleging that CHI discriminated against him because of his disabilities (deafness and Usher syndrome) when CHI did not provided the Complainant with the appropriate auxiliary aids during her September 1, 2019, emergency Department visit. The plaintiff alleged that this proceeding violated Section 504 of the Rehabilitation Act 1973 (“Section 504”) and Section 1557 of the Affordable Care Act 2010 (“Section 1557”).

CHI receives Federal Financial Assistance (“FFA”) and is therefore subject to Section 504 and Section 1557. Section 504 prohibits discrimination on the basis of disability in any health program or activity receiving FFA , while Section 1557 prohibits discrimination based on race. , color, national origin, sex, age, or disability in connection with any health program or activity receiving FFA. Although the agreement is only binding between OCR and CHI, it not only serves as a demonstration of the Biden administration’s commitment to equity in health care, but also as a warning to others. healthcare providers receiving FFAs. As such, healthcare providers must ensure that their policies, procedures and implementation comply with the obligations imposed on CHI.

Under the agreement, OCR obligates CHI to do the following to accommodate people who are deaf or hard of hearing¹ (“Patient”):

1. Document and perform a communication assessment as part of each initial patient assessment, any subsequent visits, and reasonably reassess the effectiveness of communication.
2. Set up a remote video interpretation service² (“VRI”) which uses qualified interpreters³ to interpret for the Patient which is free for the Patient.
3. Ask the patient if the VRI meets the patient’s communication needs and record the patient’s response.
4. If a patient cannot communicate effectively using VRI, make every reasonable effort to find a qualified interpreter on site or another aid or ancillary service that will ensure prompt and effective communication.
5. Inform the patient of the status of reasonable efforts being made to locate a qualified interpreter on site or any other auxiliary aid or service that will provide effective communication.
6. Document the concern and the steps taken to locate a qualified on-site interpreter or other ancillary help or service that will provide effective communication.

For more information on the agreement, click here.

^{1 This also includes any companion of the patient. “Companion” means a family member, friend or business associate of a Patient who, together with the Patient, is an appropriate person for the Provider to communicate with. 28 CFR § 35.104(a)(2).}

^{2 “VRI” means an interpretation service that uses videoconferencing technology over dedicated lines or wireless technology providing a high-speed, high-bandwidth video connection that provides high-quality video images. 28 CFR § 35.104.}

^{3 “Qualified Interpreter” means an interpreter who, through a VRI service or on-site appearance, adheres to generally accepted ethical principles of interpreters, including client confidentiality; and is able to interpret effectively, accurately and impartially, both receptively and expressively, using any specialist vocabulary required. Qualified interpreters include, for example, sign language interpreters, oral transliterators and cued language transliterators. 28 CFR § 35.104.}