On February 11, 2019, the United States Department of Health & Human Services Office for Civil Rights (HHS OCR) announced that it has resolved yet another complaint for disability discrimination in healthcare using its Early Complaint Resolution (ECR) process. This process, according to HHS OCR, seeks to achieve a successful resolution of a complaint through a facilitated negotiation between the parties and OCR. The goal of the ECR process is to provide a quick remedy to the individual who has allegedly been discriminated against as well as to secure additional measures that can be implemented to reduce the likelihood of future incidents of alleged discrimination.
In this instance, an individual with intellectual disabilities filed a complaint in September 2018 to HHS OCR, alleging that a health system in North Carolina had unlawfully denied the individual an opportunity to be placed on the United Network for Organ Sharing list based on the individual’s disability. The individual alleged that a doctor on staff with the system had determined that the individual would not be a good candidate for an organ transplant because of the individual’s learning disabilities, and because the individual did not live independently.
In response, the health system agreed that the individual’s medical records would be clarified to state that the individual is eligible for placement on the organ transplant list, and that the system would cooperate with HHS OCR in developing a transplant eligibility policy. In his announcement, HHS OCR Director Roger Severino commended the health system for its “quick action in responding to this complaint and resolving this discriminatory and potentially life-threatening issue.”
This announcement demonstrates that proactive resolution of complaints of discrimination may prevent the need to pay damages to claimants or civil penalties to HHS. Health systems should also consider whether the ECR process is suitable for resolution of any HHS OCR-led investigation into an allegation of discrimination in its provision of healthcare.
