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REDACTED Post-Termination Compliance Agreement

Revised May 16, 2014

Between the U.S. Department of Health and Human Services
Office for Civil Rights

and

REDACTED, M.D.
OCR Transaction No. 06-56803

DAB Docket No. C-12-544

I. Introduction

The parties to this Post-Termination Compliance Agreement (the “Agreement”) are the United States Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) and REDACTED, M.D. (“Dr. REDACTED”).  Dr. REDACTED has been licensed by the Medical Board of California as a physician and surgeon.  He specializes in neurological surgery and practices in Los Angeles County, California.  He was a recipient of Federal financial assistance through his past participation in the joint state/federal Medicaid program,i referred to in California as Medi-Cal.  This Agreement resolves OCR Transaction No. 06-56803 and HHS Departmental Appeals Board (“DAB”) Docket No. C-12-544.  In OCR Transaction No. 06-56803, a complaint was filed with OCR by an individual (the “Complainant”) who alleged that Dr. REDACTED discriminated against him on the basis of his disability (HIV disease), in violation of Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, and its implementing regulations at 45 C.F.R. Part 84 (Section 504). Specifically, the Complainant alleged that after Dr. REDACTED learned that he is HIV positive, the doctor refused to perform surgery on the Complainant’s spine.  OCR found that Dr. REDACTED denied the Complainant surgical services in violation of Section 504.  Dr. REDACTED’s compliance with Section 504, however, could not be secured voluntarily because Dr. REDACTED refused to cooperate with OCR.

Because voluntary compliance efforts failed, the HHS General Counsel filed a Section 504 enforcement action against Dr. REDACTED in the Civil Remedies Division of the DAB on April 11, 2012.  A Decision and Order were issued by the Civil Remedies Division of the DAB on August 2, 2012.  The DAB found that Dr. REDACTED discriminated against the Complainant, a qualified individual with a disability, solely because he was HIV+, thus violating Section 504 and 45 C.F.R. § 84.4.  The DAB ordered HHS to suspend and refuse to grant Dr. REDACTED further Federal financial assistance from HHS until Dr. REDACTED satisfies OCR that he has brought his practice into compliance with all applicable requirements of Section 504.  HHS subsequently informed the California Department of Health Care Services (DHCS) of the DAB order and requested that DHCS terminate Dr. REDACTED’s further participation in (and receipt of reimbursement from) Medi-Cal, with such termination to remain in effect until Dr. REDACTED satisfies HHS that he will comply with all applicable requirements of Section 504.  On June 19, 2013, the State of California DHCS terminated Dr. REDACTED’s participation in the Medicaid program.

On October 25, 2013, OCR received a letter from attorneys for Dr. REDACTED indicating an interest in entering into discussions regarding the steps HHS would require Dr. REDACTED to take in order to restore Dr. REDACTED’s ability to receive HHS Federal financial assistance and to restore his status as a Medicaid provider.

  1. Parties to the Agreement:
    1. United States Department of Health and Human Services, Office for Civil Rights; and
    2. REDACTED, M.D.  
  2. Jurisdiction:  Dr. REDACTED has previously received HHS Federal financial assistance through his participation in the Medicaid program and accordingly was subject to Section 504 of the Rehabilitation Act of 1973, as amended 29 U.S.C. § 794, and its implementing regulations, 45 C.F.R. Part 84 (“Section 504”).  Section 504 prohibits discrimination on the basis of disability in any program or activity receiving Federal financial assistance. 
  3. Purpose of the Agreement:  To resolve these matters, Dr. REDACTED agrees to the terms stipulated in this Agreement and affirms that he will comply with all provisions of Section 504.  The promises, obligations or other terms and conditions set forth in this Agreement constitute the exchange of valuable consideration between Dr. REDACTED and OCR. 

II. Definitions

For purposes of this Agreement, the terms listed below shall have the following meaning:

  1. “Patient” means: any individual who is seeking or receiving health care services from Dr. REDACTED or the employees and/or contractors under his supervision or control.
  2. “Dr. REDACTED and/or his staff” means: Dr. REDACTED and/or any of the employees and/or contractors under Dr. REDACTED’s supervision or control.
  3. Having “HIV disease” means: (1) having tested positive for antibodies to the Human Immunodeficiency Virus (HIV); (2) being infected with HIV; (3) having Acquired Immune Deficiency Syndrome (AIDS); or (4) having any AIDS-related opportunistic infection. For purposes of this Agreement, having HIV disease also means having a record of being in one of the four categories listed above; or being perceived or regarded as being in one of the four categories listed above.
  4. “Universal Precautions” mean: the consistent use, in health care settings, of blood and certain body fluid precautions for all patients regardless of their blood borne infection status.  Under universal precautions, blood and certain body fluids of all patients are considered potentially infectious for HIV; and health care workers use protective barriers to reduce the risk of infection.  Examples of protective barriers include (but are not limited to) gloves, shoe covers, gowns, masks, protective eyewear, and head covers.
  5. “Qualified individual with a disability” means: an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a recipient of Federal financial assistance.

III. General Provisions

  1. Recipient Covered by the Agreement:  This Agreement covers Dr. REDACTED, a licensed physician and surgeon practicing in Los Angeles County, California under California license number A39652.
  2. Reinstatement of HHS Federal Financial Assistance:  Upon receiving and verifying proof of completed performance by Dr. REDACTED of the stated obligations and required actions, as contained in Sections IV(A-E.2.) and V(A-C) of this Agreement, HHS shall reinstate Dr. REDACTED’s eligibility to receive HHS Federal financial assistance and so inform the California DHCS.  Any action by HHS to reinstate Dr. REDACTED’s eligibility is conditioned upon Dr. REDACTED’s compliance with all of the terms of this Agreement.  If at any point OCR determines that Dr. REDACTED has failed to comply with this Agreement, it may at its discretion inform the California DHCS of such noncompliance, resulting ineligibility to receive Federal financial assistance.
  3. Effective Date and Term of the Agreement:  This Agreement shall become effective on the date it is signed by all parties (the “Effective Date”) and will remain in effect for twelve (12) months after the Effective Date, at which point if OCR determines that Dr. REDACTED has substantially complied with this Agreement, then OCR’s review and monitoring of this Agreement shall terminate.  Notwithstanding the Term of this Agreement, Dr. REDACTED acknowledges that he will comply with Section 504 and other applicable Federal nondiscrimination statutes and their implementing regulations, for so long as he continues to receive Federal financial assistance.
  4. Failure to Comply with the Terms of Agreement:  If OCR determines that Dr. REDACTED has failed to comply with any provision of this Agreement, OCR may exercise all rights available under Section 504, including, but not limited to initiating necessary enforcement proceedings before the DAB.
  5. Effect on Other Compliance Matters:  The terms of this Agreement do not apply to any other issues, reviews, investigations or complaints of discrimination that are unrelated to the subject matter of this Agreement and that may be pending before OCR or any other federal agency.  Any unrelated compliance matter arising from subsequent reviews or investigations shall be addressed and resolved separately.  Nothing in this Agreement will be construed to limit or restrict OCR’s statutory and regulatory authority to conduct future complaint investigations and compliance reviews related to Dr. REDACTED and the subject matter of this Agreement.  This Agreement does not address or resolve issues involved in any other complaint investigation, compliance review, or administrative action under federal laws by other federal agencies, including any action or investigation under Section 504.
  6. Prohibition Against Retaliation and Intimidation:  Dr. REDACTED shall not retaliate, intimidate, threaten, coerce or discriminate against any person who has filed a complaint or who has assisted or participated in the investigation of any matter addressed in this Agreement.
  7. OCR’s Review and Monitoring of Dr. REDACTED’s Compliance with the Agreement:  OCR may review and monitor Dr. REDACTED’s compliance with this Agreement at any time while the Agreement is in effect.  As part of such review and monitoring, OCR may require written reports, access to witnesses, copies of documents, and/or inspection of Dr. REDACTED’s offices.  Throughout the duration of this Agreement, Dr. REDACTED agrees to retain the records required by OCR to assess his compliance.  OCR will maintain the confidentiality of all documents, files and records received from Dr. REDACTED; and will not disclose their contents except where necessary in formal enforcement proceedings or where otherwise required by law. 
  8. Non-Waiver Provision:  Failure by OCR to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision shall not be construed as a waiver of OCR’s right to enforce other deadlines or any provisions of this Agreement.
  9. Entire Agreement:  This Agreement constitutes the entire understanding between Dr. REDACTED and OCR in resolution of OCR Transaction No. 06-56803 and DAB Docket No. C-12-544.  Any statement, promise or agreement not contained herein shall not be enforceable through this Agreement.
  10. Modification of Agreement:  This Agreement may be modified by mutual agreement of the parties in writing.
  11. Publication or Release of Agreement:  OCR places no restrictions on the publication of this Agreement or its terms.  In addition, OCR may be required to release this Agreement and all related materials to any person upon request, consistent with the requirements of the Freedom of Information Act, 5 U.S.C. § 522, and its implementing regulation, 45 C.F.R. Part 5.
  12. Third Party Rights:  This Agreement can be enforced only by the parties specified in this Agreement, their legal representatives and assigns.  This Agreement shall be unenforceable by third parties and shall not be construed to create third party beneficiary rights.
  13. Technical Assistance:  OCR will provide appropriate technical assistance to Dr. REDACTED regarding compliance with this Agreement, as requested and as reasonably necessary.
  14. Miscellaneous:  When OCR verifies that Dr. REDACTED has completed all actions contained in this Agreement, OCR shall consider all matters related to this investigation resolved and so notify Dr. REDACTED in writing.

IV. Obligations

  1. Non-Discrimination Policy:  Pursuant to Section 504, no qualified individual with a disability shall, on the basis of disability, be excluded from participation in, or be denied the benefits of, the services, programs, or activities of Dr. REDACTED, or otherwise be subjected to discrimination by Dr. REDACTED.  Dr. REDACTED shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless Dr. REDACTED can demonstrate that making the modifications would fundamentally alter the nature of the service, program or activity, or would result in undue financial and administrative burdens.  Dr. REDACTED shall ensure that each member of his staff complies with Section 504 and this Non-Discrimination Policy.
  2. Policy on the Treatment of Patients with HIV Disease:  Dr. REDACTED shall not deny or withhold medically appropriate treatment (as determined by reasonable medical judgment given the current state of medical knowledge) on the basis of a patient’s HIV disease status.  If Dr. REDACTED has a question whether surgery or another medical procedure would benefit a patient with HIV disease, and if the procedure would be indicated in the absence of such condition, he shall consult with an infectious disease specialist or other appropriate specialist as time and circumstances permit, before making a final decision or recommendation to the patient.  Dr. REDACTED shall ensure that each member of his staff complies with this Policy on the Treatment of Patients with HIV Disease.
  3. Universal Precautions:  Dr. REDACTED shall adhere to “universal precautions,” as outlined in the guidelines for the prevention and management of exposures to blood and certain body fluids published by the Centers for Disease Control and Prevention (CDC).ii  Dr. REDACTED shall ensure that each member of his clinicaliii staff adheres to universal precautions, which are designed to address real or perceived risks of surgery or other medical procedures for patients with HIV or other infectious diseases.
  4. Notice:  Within fifteen (15) calendar days of the Effective Date of this Agreement, Dr. REDACTED shall prominently display the Notice of Nondiscrimination, attached as Appendix A, in his waiting room; and meet with each member of his staff to personally provide each with an executed copy of this Agreement, including Appendix A Within thirty (30) calendar days of the Effective Date of this Agreement, Dr. REDACTED shall:  (1) mail a cover letter and the Notice of Nondiscrimination to the Los Angeles County Medical Association, 707 Wilshire Boulevard, Suite 3800, Los Angeles, California 90017; (2) mail a cover letter and the Notice of Nondiscrimination to the health care providers listed in Appendix B; and (3) publish the Notice of Nondiscrimination on his website, pamphlets, brochures and/or other promotional literature, and in all future journal, periodical or newspaper advertising purchased during the term of this Agreement. 
  5. Training: 
    1. Dr. REDACTED shall make arrangements for him and his clinical3 staff to complete six hours of comprehensive training provided by a certified continuing education provider.iv  Dr. REDACTED shall notify OCR of the date and contents of such proposed training along with the proposed training provider’s name, address and telephone number, and shall obtain OCR’s approval of the training course prior to Dr. REDACTED and his staff attending such training.  If OCR has any concerns or objections regarding the proposed training agenda or provider, OCR shall so notify Dr. REDACTED no later than fifteen (15) calendar days after OCR’s receipt of the proposed training course agenda and the proposed training provider’s name, address and telephone number. 
    2. Within thirty (30) calendar days of the Effective Date of this Agreement, Dr. REDACTED and his staff shall complete the comprehensive training.  Evidence of this training may include documentation indicating that Dr. REDACTED and/or his staff members completed such training prior to the Effective Date of this Agreement.  Dr. REDACTED shall ensure that he and each staff member completes six hour training.  The comprehensive training shall include, but not be limited to:  (a) a general overview of HIV disease; (b) the physician’s ethical obligation to provide health care to patients with HIV disease;v  (c) prevention of HIV transmission, during surgery and other medical procedures, from the patient to the physician or staff member and prevention of HIV transmission from the physician or staff member to the patient; (d) infection control procedures, including but not limited to the appropriate disposal of contaminated materials and the sterilization of equipment; (e) universal precautions, including but not limited to, the appropriate use of gloves, shoe covers, gowns, masks, protective eyewear, head covers, and other personal protective equipment; and (f) the use of post exposure prophylaxis.
    3. Within eleven (11) months of the Effective Date of this Agreement, Dr. REDACTED shall provide comprehensive training for any member of his staff who was unable to attend an earlier comprehensive training due to illness or other exigent circumstances.  If Dr. REDACTED hires any staff subsequent to the Effective Date of this Agreement, such staff member(s) shall attend training within three (3) months of the date of hire.

V. Reporting Requirements

Prior to the Effective Date of this Agreement, Dr. REDACTED has provided OCR with the following:

  1. advance copies of:
    1. Dr. REDACTED’s revised website, pamphlets, brochures, other promotional literature and/or purchased advertising displaying the Notice of Nondiscrimination; and
    2. a list of each member of Dr. REDACTED’s staff, by name and title.

Dr. REDACTED also shall provide OCR with the following:

  1. No later than thirty (30) calendar days after the Effective Date of this Agreement, documentation of (1) the cover letter and Notice of Nondiscrimination mailed to the Los Angeles County Medical Association, pursuant to Section IV(D), above; (2) the individuals, by name and title, who have:  (a) received an executed copy of this Agreement and Appendix A, pursuant to Section IV(D), above; and (b) attended the comprehensive training provided by the OCR-approved certified continuing education provider, pursuant to Section IV(E), above; and (3) the cover letter and Notice of Nondiscrimination mailed to the health care providers listed in Appendix B, pursuant to Section IV(D).
  2. At thirty (30) calendar days after the Effective Date of this Agreement, letters describing: 
    1. the number and type of grievances filed by, or on behalf of, individuals with disabilities, including but not limited to HIV disease, against Dr. REDACTED and/or a member of his staff;
    2. the status and/or outcome of each such grievance;
    3. the number and type of grievances and complaints filed by, or on behalf of, individuals with disabilities, including but not limited to HIV disease, against Dr. REDACTED and/or a member of his staff, with any federal, state or local agency, medical board or licensing entity;
    4. the status and/or outcome of each such grievance/complaint; and
    5. copies of:  (a) the Notice of Nondiscrimination printed as displayed in Dr. REDACTED’s waiting room; (b) Dr. REDACTED’s website, pamphlets, brochures and/or other promotional literature; and (c) Dr. REDACTED’s purchased advertising, pursuant to Section IV(D), above.
  3. At eleven (11) months after the Effective Date of this Agreement, letters describing Items V(C)(1)-(5) above.

VI.  Dr. REDACTED’s Continuing Obligations

Nothing in this Agreement is intended to relieve Dr. REDACTED of his continuing obligation to comply with other applicable federal nondiscrimination statutes and their implementing regulations, including Section 504 and its implementing regulation at 45 C.F.R. Part 84.

VII.  Signatures

The individuals signing represent that they are authorized to execute this Agreement and legally bind the parties to this Agreement.

_______________________________________                              _____________________

REDACTED, M.D.                                                           Date

_______________________________________                              _____________________

Michael Leoz, Regional Manager                                                       Date
Office for Civil Rights, Region IX
U.S. Department of Health and Human Services

 

Appendix A - Notice of Nondiscrimination

REDACTED, M.D.* does not exclude, deny benefits to, or otherwise discriminate against any person on the basis of race, color, national origin, age, or disability (including but not limited to HIV disease), in admission to, participation in, or receipt of services or benefits under any of his programs or activities.  This statement is in accordance with the provisions of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975, Section 504 of the Rehabilitation Act of 1973, and Regulations of the U.S. Department of Health and Human Services issued pursuant to these statutes at 45 C.F.R. Parts 80, 91, and 84.

If you believe that you have been discriminated against on the basis of race, color, national origin, age, or disability (including but not limited to HIV disease), you may file a grievance against Dr. REDACTED and/or a member of his staff with:

REDACTED, M.D.
500 N. Garfield Ave., Suite 102
Monterey Park, CA  91754
Voice:   626-458-1207
Fax:   626-292-1384
State Relay Operator (English):   1-888-877-5379
State Relay Operator (Spanish):   1-888-877-5381
(from standard telephone to TTY)
State Relay Operator (English):   1-877-735-2929
State Relay Operator (Spanish):   1-888-877-5381
(from TTY to standard telephone)

Filing a grievance with Dr. REDACTED will not prevent you from filing a discrimination complaint with the:

Office for Civil Rights, Region IX
U.S. Department of Health and Human Services
90 7th Street, Suite 4-100
San Francisco, CA 94103
Voice:   415-437-8310
Fax:   415-437-8329
TDD:   415-437-8311

* In this Notice, the reference to “REDACTED, M.D.,” shall include Dr. REDACTED, himself, and any employee and/or contractor under his supervision or control.

Appendix B - Health Care Providers Located in Los Angeles County

  1. AltaMed ADHC – East Los Angeles
    6210 Whittier Blvd.
    Los Angeles, CA  90022-4506
    323-888-2887
  1. AltaMed Daniel Lara HIV Clinic
    5427 Whittier Blvd.
    Los Angeles, CA 90022-4101
    323-869-5448
  1. AltaMed Medical Group
    5427 Whittier Blvd.
    Los Angeles, CA 90022-4101
    323-869-1900
  1. AltaMed Medical & Dental Group
    2219 E. 1st St.
    Los Angeles, CA  90033-3901
    323-269-0421
  1. AltaMed Medical & Dental Group
    3945 Whittier Blvd.
    Los Angeles, CA  90023-2440
    323-265-1998
  1. AltaMed Medical Group
    3232 Estrada St.
    Los Angeles, CA  90023-3534
    323-981-9816
  1. AltaMed Medical Group
    2321 W. Whittier Blvd.
    Montebello, CA  90640-3006
    323-724-5232
  1. AltaMed Medical Group
    2830 Lancaster Ave.
    Los Angeles, CA  90033-1521
    323-226-0623
  1. AltaMed PACE
    5425 Pomona Blvd.
    Los Angeles, CA 90022-1716
    323-728-0411
  1. Arroya Vista Family Health Center
    4815 Valley Blvd., Suite C
    Los Angeles, CA  90032-3300
    323-222-1134, x. 0
  1. Arroya Vista Family Health Center
    2411 N. Broadway
    Los Angeles, CA  90031-2218
    323-987-2000, x. 0
  1. Bienvenidos Community Health Center
    507 S. Atlantic Blvd.
    Los Angeles, CA  90022-2621
    323-268-9191
  1. Clinica Romero – NE
    2032 Marengo St.
    Los Angeles, CA  90033-1319
    213-989-7700 or 323-987-1030
  1. Complete Care Community Health Center
    2928 E. Cesar Chavez Ave.
    Los Angeles, CA  90033-3110
  1. CSC Community Health Center
    320 S. Garfield Ave., Suite 118
    Alhambra, CA  91801-3887
    213-808-1700
  1. Garfield Health Center
    210 N. Garfield Ave., Suite 203
    Monterey Park, CA  91754-1746
  1. Gateway Percy Village
    3455 Percy St.
    Los Angeles, CA  90023-1716
    213-893-1930
  1. Herald Christian Health Center
    923 S. San Gabriel Blvd.
    San Gabriel, CA  91776-2743
  1. JWCH Medical Clinic @ Bell Shelter
    5600 Rickenbacker Rd., Bldg 1E
    Bell, CA  90201-6437
    323-263-8840
  1. Pico Aliso Community Clinic
    1625 E. 4th St.
    Los Angeles, CA  90033-4201
    323-268-8391
  1. Pueblo del Sol Community Service Center
    1300 Plaza del Sol St.
    Los Angeles, CA   90033-2775
    323-980-8100
  1. Queenscare Family Clinics
    4560 E. Cesar Chavez Ave.
    Los Angeles, CA  90022-1117
    323-780-4510
  1. Queenscare Family Clinic
    133 N. Sunol Dr.
    Los Angeles, CA  90063-1429
    323-981-1660
  1. Southern California Medical Center
    8825 Whittier Blvd.
    Pico Rivera, CA  90660-2657

 


i The Medicaid program was established by Title XIX of the Social Security Act of 1965, 42 U.S.C. § 1396 et seq.

ii Recommendations for prevention of HIV transmission in health-care settings. MMWR Morb Mortal Wkly Rep 1987:36 Suppl 2:1S-18S http://www.cdc.gov/mmwr/preview/mmwrhtml/00023587.htm ; Update: universal precautions for prevention of transmission of human immunodeficiency virus, hepatitis B virus, and other bloodborne pathogens in health-care settings. MMWR Morb Mortal Wkly Rep 1988:37:377-382, 387-378 http://www.cdc.gov/mmwr/preview/mmwrhtml/00000039.htm ; Updated U.S. Public Health Service Guidelines for the Management of Occupational Exposures to HBV, HCV, and HIV and Recommendations for Postexposure Prophylaxis. MMWR Recomm Rep 2001:50:1-52 http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5011a1.htm ; and Panlilio AL, Cardo DM, Grohskopf LA, Heneine W, Ross CS: Updated U.S. Public Health Service guidelines for the management of occupational exposures to HIV and recommendations for postexposure prophylaxis. MMWR Recomm Rep 2005:54:1-17 http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5409a1.htm .

iii  Defined as “of or relating to the observation and treatment of actual patients.”

iv This training may be provided by the AIDS Education and Training Centers (AETC) Program, funded by HHS’ Health Resources and Services Administration (HRSA).  A directory of the AIDS Education and Training Centers is located at http://www.aidsetc.org/aidsetc?page=ab-00-00.

v American Academy of Orthopaedic Surgeons:  Information Statement:  Preventing the Transmission of Bloodborne Pathogens 2008 http://www.aaos.org/about/papers/advistmt/1018.asp.