S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
OFFICE FOR CIVIL RIGHTS
Transaction Number: 12-140805
TABLE OF CONTENTS
- Parties to the Agreement;
- Purpose of the Agreement
- Facility Staff
- Having HIV/AIDS
- Qualified Individual with a Disability
- Section 504 Coordinator
- Section 504 Grievance Procedure
III. General Provisions
- Facilities Covered by Agreement
- Suspension of Administrative Actions
- Effective Date and Term of Agreement
- Failure to Comply with the Terms of Agreement
- Effect on Other Compliance Matters
- Prohibition against Retaliation and Intimidation
- OCR’s Review of Compliance with the Agreement
- Non-Waiver Provision
- Entire Agreement
- Modification of Agreement
- Publication or Release of Agreement
- Third Party Rights
- Technical Assistance
- Authority of Signer
- Successor in Interest
- Non-Discrimination Policy
- Notice of Non-Discrimination Policy
- Designation of Section 504 Coordinator
- Section 504 Grievance Policies and Procedures
This Voluntary Resolution Agreement (the “Agreement”) resolves the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) Complaint Number 12-140805, a complaint filed on behalf of an individual with HIV (the “Affected Party”). The Complainant alleges that on March 21, 2012, WP-Williamston Health Holdings, LLC, d/b/a Williamston House[i] (“the Facility”), an assisted living facility, denied admission to the Affected Party because he has HIV and thereby allegedly discriminated against him on the basis of his disability, in violation of Section 504 of the Rehabilitation Act of 1973. OCR concluded that as a result of this failure, the Facility may not be following appropriate non-discrimination policieor procedures regarding the admittance of individuals with HIV/AIDS.
A. Parties to the Agreement:
- United States Department of Health and Human Services (“HHS”), Office for Civil Rights (“OCR”); and
- WP-Williamston Health Holdings, House, LLC d/b/a Williamston House
B. Jurisdiction: The Facility participates in the Medicaid program and is subject to Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its implementing regulation at 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. Part 84 prohibits such discrimination in programs and activities receiving Federal financial assistance from HHS.
C. Purpose of the Agreement: To resolve these matters without further burden or the expense of additional review or enforcement proceedings, the Facility affirms, to the best of its knowledge, that it has complied and will continue to comply with all provisions of Section 504. The Facility agrees to the terms stipulated in this Agreement. The Facility’s willingness to enter into this Agreement with OCR in no way constitutes an admission of liability for the events that allegedly occurred in March 2012. The promises, obligations or other terms and conditions set forth in this Agreement constitute the exchange of valuable consideration between the Facility and OCR. The actions described in this Agreement fully address the issues described in the OCR complaint Number 12-140805. This Agreement shall not be construed as an admission or as evidence of any violation of any law or regulation or of any liability or wrongdoing on the part of the Facility.
For purposes of this Agreement, the terms listed below shall have the following meaning:
- Resident/Client means any individual who is seeking or receiving health care, support, or other services from the Facility or its employees and/or contractors under its supervision and control.
- Facility Staff means employees and/or contractors under the Facility’s supervision or control, including but not limited to, its Executive Director, Business Office Manager, Resident Care Manager, Memory Care Manager, Medical Technicians, Nurses, Personal Care Aides, Medication Aides, Geriatric Aides, other health care personnel, administrative personnel, and all volunteers who have or are likely to have direct contact with residents, clients and their companions as defined herein.
- Having HIV/AIDS 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 AIDS-related opportunistic infections. For purposes of this Agreement, having HIV/AIDS 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.
- 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 participation in programs or activities provided by a recipient of Federal financial assistance.
- Section 504 Coordinator means the individual designated by the Facility to coordinate and oversee its efforts to comply with and carry out the Facility’s Section 504 responsibilities.
- Section 504 Grievance Procedure means the Facility’s process for addressing complaints of disability discrimination from employees, applicants, residents, clients, companions, and other interested parties that incorporate appropriate due process standards and provide for the prompt and equitable resolution of grievances.
III. General Provisions
- Facilities Covered by Agreement: The Agreement includes all programs and services the Facility administers or provides directly or through sub-recipients or contractors throughout the Term of this Agreement.
- Suspension of Administrative Actions: Subject to the continued performance by the Facility of the stated obligations and required actions contained in this Agreement and in conformity with Section III-D, Failure to Comply with the Terms of Agreement, OCR shall suspend administrative action on OCR Complaint No. 12-140805.
- Effective Date and Term of Agreement: This Agreement shall become effective on the date it is signed by both parties (the “Effective Date”) and will remain in effect for twelve (12) months after the Effective Date, at which point if OCR determines that the Facility has substantially complied with this Agreement, then OCR’s review and monitoring of this Agreement shall terminate. Notwithstanding the Term of this Agreement, the Facility acknowledges that it will comply with Section 504 and other applicable Federal nondiscrimination statutes and their implementing regulations for as long as the Facility continues to receive Federal financial assistance.
- Failure to Comply with the Terms of Agreement: If OCR determines that the Facility has failed to comply with any provision of this Agreement, the parties will confer and attempt to reach agreement as to what steps may be necessary to resolve the compliance issues to both parties’ satisfaction. If an agreement is not reached, OCR may terminate this Agreement with thirty (30) calendar days’ notice and take appropriate measures to effectuate the Facility’s compliance with Section 504. Such measures may include OCR reopening its investigation of the Facility’s compliance with Section 504. OCR may incorporate into its reopened investigation any relevant evidence of noncompliance with the Agreement and any relevant evidence obtained by OCR prior to the signing of the Agreement. OCR also may exercise all rights available under Section 504, including, but not limited to issuing noncompliance findings and initiating necessary enforcement proceedings.
- 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 shall be construed to limit or restrict OCR's statutory and regulatory authority to conduct future complaint investigations and compliance reviews related to the Facility and the subject matter of this Agreement. This Agreement does not address or resolve issues involved in any other investigation, compliance review, or civil, criminal, or administrative action under Federal laws by other Federal Agencies, including any action or investigation under Section 504.
- Prohibition Against Retaliation and Intimidation: The Facility 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.
- OCR’s Review of Compliance with the Agreement: OCR may review the Facility’s compliance with this Agreement. As part of such review, OCR may require written reports, access to witnesses, copies of documents, and/or inspection of the Facility. Throughout the duration of this Agreement, the Facility agrees to retain the records required by OCR to assess its compliance.
- 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.
- Entire Agreement: This Agreement constitutes the entire understanding between the Facility and OCR in resolution of OCR Complaint No. 12-140805. Any statement, promise, or agreement not contained herein shall not be enforceable through this Agreement.
- Modification of Agreement: This Agreement may be modified by mutual agreement of the parties in writing.
- 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 at 45 C.F.R. Part 5.
- 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.
- Technical Assistance: OCR will provide appropriate technical assistance to the Facility regarding compliance with this Agreement, as requested and as reasonably necessary.
- Miscellaneous: When OCR verifies that the Facility has completed all actions contained in this Agreement, OCR shall consider all matters related to this investigation resolved and shall so notify the Facility in writing
- Authority of Signer. The individual who signs this Agreement on behalf of the Facility represent that he or she is authorized to bind the Facility to the Agreement.
- Severability. In the event that a court of competent jurisdiction determines that any provision of this Agreement is unenforceable, such provision shall be severed from the Agreement and all other provisions shall remain valid and enforceable; provided, however, that if the severance of any such provision materially alters the rights or obligation of the Parties, they shall, through reasonable, good faith negotiations, agree upon such other amendments hereto as may be necessary to restore the Parties as closely as possible to the relative rights and obligation initially intended to them hereunder.
- Successor in Interest. This Agreement is binding on the Parties, and their successors in interest, and the Facility shall have a duty to so notify all such successors in interest of the existence and terms of this Agreement.
- Non-Discrimination Policy: The Facility shall not discriminate against any individual on the basis of disability, including but not limited to HIV/AIDS. The Facility shall not refuse to admit or serve any resident/client on the grounds that he or she poses a direct threat to the health or safety of others due to a disability, without first conducting an individualized assessment of that individual. The individualized assessment must be based on current medical knowledge or on the best available objective evidence to ascertain the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and, whether reasonable modifications of policies, practices, or procedures will mitigate the risk.
Within thirty (30) calendar days of the Effective Date of this Agreement, the Facility shall ensure that it adopts the Non-Discrimination Policy set forth in Appendix A. The Facility shall ensure that its staff complies with the Non-Discrimination Policy and Section 504.
- Notice of Non-Discrimination Policy: Within thirty (30) calendar days of the Effective Date of this Agreement, the Facility shall ensure that it prominently displays the Non-Discrimination Policy, attached as Appendix A, in the Facility’s waiting area and/or lobby. The Facility shall ensure that it reaffirms its obligations to comply with the requirements of Section 504 and reaffirms its adherence to the Non-Discrimination Policy set forth in Appendix A. Such evidence may include documentation that the Facility provided training or held meetings regarding its obligation to provide notice of the Non-Discrimination Policy prior to the Effective Date.
Within ninety (90) calendar days of the Effective Date of this Agreement, the Facility shall publish the Non-Discrimination Policy on its website and in each of the Facility’s pamphlets, brochures, website and/or other existing promotional materials, and in all future promotional materials, including journal, periodical or newspaper advertising purchased during the term of this Agreement.[ii]
1. Training of the Section 504 Coordinator: Within thirty (30) calendar days of the Effective Date of this Agreement, the Facility shall provide evidence that the Section 504 Coordinator receives training on their responsibilities under this Agreement and the requirements of Section 504. This training shall include, but is not limited to Section 504’s prohibition on retaliation; the obligation to provide reasonable accommodations and program modifications; requirements regarding the Facility’s obligation to not deny services or other opportunities to any individual because of a disability, including, but not limited to HIV/AIDS; and, the proper handling of Section 504 grievances. Evidence of such training may include documentation that the Facility provided such training prior to the Effective Date. In the event a new Section 504 Coordinator is identified, the Facility shall provide this training within thirty (30) days of the designation.
2. Training of Facility Staff: The Facility shall submit a copy of the staff training materials to OCR for review within ninety (90) calendar days of the Effective Date of this Agreement. If OCR has any concerns regarding the proposed staff training materials, OCR shall so notify the Facility no later than fifteen (15) calendar days after OCR’s receipt of the proposed training materials. Within one hundred twenty (120) calendar days of the Effective Date of this Agreement, the Facility shall ensure that staff receive comprehensive training on the Non-Discrimination Policy, specifically the Facility’s responsibility to provide disabled individuals, including, but not limited to, those with HIV/AIDS, with full and equal enjoyment of the services, privileges, facilities, accommodations, and benefits of the Facility. The Facility shall provide comprehensive training for any staff member who was unable to attend the comprehensive training program due to illness or other exigent circumstances within thirty (30) calendar days of the training, or for employees who were hired subsequent to the date that the initial comprehensive training was held, within thirty (30) calendar days of hire.[iii]
D. Designation of Section 504 Coordinator: Within fifteen (15) calendar days of the Effective Date of this Agreement, the Facility shall ensure that one individual is designated to be responsible for coordination of its efforts to comply with Section 504. The Facility shall publish, in an appropriate forum, the name, title, function, physical address, and telephone number of the Section 504 Coordinator. The Section 504 Coordinator shall be available to answer questions and provide appropriate assistance to the Facility’s staff and the public, regarding its obligation to provide equal services, accommodations, or other opportunities to any individual with a disability. Additionally, the Section 504 Coordinator will be responsible for processing any Section 504 complaints received at the Facility.
E. Section 504 Grievance Policies and Procedures: Within fifteen (15) calendar days of the Effective Date of this Agreement, the Facility shall implement the Section 504 Grievance Procedure for addressing complaints of disability discrimination found in Appendix B. The Facility shall take steps to notify each of its staff, residents, clients, and interested persons of the information contained in the Section 504 Grievance Procedure. This information shall be communicated as follows:
- The Facility shall post copies of the Section 504 Grievance Procedure of conspicuous size and print in visible locations throughout the Facility. This document shall include the title and contact information for the Facility’s Section 504 Coordinator.
- The Facility shall publish the Section 504 Grievance Procedure in its Admissions Kits and on its website. This document shall direct individuals to contact the covered Facility’s Section 504 Coordinator at a specified telephone number, physical address, or unique email address or, alternatively, to contact the Facility’s administrator.
- The Facility’s Section 504 Coordinator shall be responsible for maintaining and providing copies of the Section 504 Grievance Procedure, in alternate formats if necessary, to interested persons when required.
V. Reporting Requirements
The Facility shall provide OCR with the following:
- No later than forty-five (45) calendar days after the Effective Date of this Agreement, written confirmation that the Non-Discrimination Policy and the Section 504 Grievance Procedure have been printed and displayed in the waiting area and/or lobby of the Facility, as described in Section IV.B. and E.
- No later than one hundred fifty (150) calendar days after the Effective Date of this Agreement, copies of:
- the Non-Discrimination Policy and Section 504 Grievance Procedure, as published in the Facility’s pamphlets, brochures, website and/or other existing promotional materials, including journals, periodicals, or newspaper advertising; and
- a list of individuals, by name and title, who have attended the training program.
- At twelve (12) months after the Effective Date of this Agreement, letters describing:
- the number and type of grievances filed by, or on behalf of, individuals with HIV/AIDS against the Facility or any staff member of the Facility, including the status and/or outcome of each such grievance/complaint; and
- the number of individuals with HIV/AIDS who were referred for admission and were accepted, and the number of individuals with HIV/AIDS who were denied admission and the reasons for the denial.
The individuals signing represent that they are authorized to execute this Agreement and legally bind the parties to this Agreement.
Charles E. Trefzger, Jr. Date
WP-Williamston Health Holdings, LLC
d/b/a Williamston House
Timothy Noonan Date
Regional Manager, Region IV
U.S. Department of Health & Human Services
Office for Civil Rights
Appendix A: Sample Non-Discrimination Policy
____________________, does not discriminate against any person on the basis of race, color, national origin, age, or disability (including but not limited to HIV/AIDS), in admission, treatment, or participation in its programs, services and activities, or on the basis of sex in its health programs and activities or in employment.
_____________________, does not deny admission to its facility, continued residence in its facility or medically appropriate treatment (as determined by the current state of medical knowledge) on the basis of an applicant’s or resident’s HIV/AIDS status. If _____________ staff have a question of whether admission, continued residence, or a medical procedure would benefit an applicant or resident with HIV/AIDS, and if the admission, continued residence, or medical procedure would be indicated in the absence of such condition, ____________ staff shall consult with an infectious disease specialist or other appropriate specialist as time and circumstances permit before making a final decision regarding or recommendation to the applicant or resident.
____________________________ shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability (including but not limited to HIV/AIDS) unless ________________ 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.
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, Regulations of the U.S. Department of Health and Human Services issued pursuant to these statutes at 45 C.F.R. Parts 80, 84, and 91, and Section 1557 of the Patient Protection and Affordable Care Act of 2010.
If you believe that you have been discriminated against on the basis of race, color, national origin, age, sex, or disability (including but not limited to HIV/AIDS), you may file a grievance against ________________ and/or a member of its staff with the:
Section 504 Coordinator
Filing a grievance with _______ will not prevent you from filing a discrimination complaint with the:
Office for Civil Rights
U.S. Department of Health & Human Services
200 Independence Ave., S.W.
Room 509F HHS Bldg.
Washington, D.C. 20201
Appendix B: Sample Section 504 Grievance Procedure
It is the policy of ____________________ not to discriminate on the basis of disability. _________________ has adopted an internal grievance procedure providing for prompt and equitable resolution of complaints alleging any action prohibited by Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) of the U.S. Department of Health and Human Services regulations implementing the Act. Section 504 prohibits discrimination on the basis of disability in any program or activity receiving Federal financial assistance. The Law and Regulations may be examined in the office of (insert name, title, tel. no. of Section 504Coordinator), who has been designated to coordinate the efforts of ____________________ to comply with Section 504.
Any person who believes she or he has been subjected to discrimination on the basis of disability may file a grievance under this procedure. It is against the law for (insert name of facility/agency) to retaliate against anyone who files a grievance or cooperates in the investigation of a grievance.
- Grievances must be submitted to the Section 504 Coordinator within (insert timeframe) of the date the person filing the grievance becomes aware of the alleged discriminatory action.
- A complaint must be in writing, containing the name and address of the person filing it. The complaint must state the problem or action alleged to be discriminatory and the remedy or relief sought.
- The Section 504 Coordinator (or her/his designee) shall conduct an investigation of the complaint. This investigation may be informal, but it must be thorough, affording all interested persons an opportunity to submit evidence relevant to the complaint. The Section 504 Coordinator will maintain the files and records of (insert name of facility/agency) relating to such grievances.
- The Section 504 Coordinator will issue a written decision on the grievance no later than 30 days after its filing.
- The person filing the grievance may appeal the decision of the Section 504 Coordinator by writing to the (Administrator/Chief Executive Officer/Board of Directors/etc.) within 15 days of receiving the Section 504 Coordinator’s decision. The (Administrator/Chief Executive Officer/Board of Directors/etc.) shall issue a written decision in response to the appeal no later than 30 days after its filing.
- The availability and use of this grievance procedure does not prevent a person from filing a complaint of discrimination on the basis of disability with the U. S. Department of Health and Human Services, Office for Civil Rights.
__________________ will make appropriate arrangements to ensure that disabled persons are provided other accommodations, if needed, to participate in this grievance process. Such arrangements may include, but are not limited to, providing interpreters for the deaf, providing taped cassettes of material for the blind, or assuring a barrier-free location for the proceedings. The Section 504 Coordinator will be responsible for such arrangements.
[ii] For pamphlets, brochures, and purchased advertising where space is limited, the Facility may use the following short-form Non-Discrimination Policy:
____________________ does not discriminate against any person on the basis of race, color, national origin, age, or disability (including but not limited to HIV/AIDS), in admission, treatment, or participation in its programs, services and activities, or on the basis of sex in its health programs and activities or in employment. For further information about this policy, contact the Section 504 Coordinator at ___-___-____ (voice), ___-___-____ (fax), ___-___-____ (TDD), or ______________@___ (email).
[iii] For the Facility’s health professionals, including but not limited to doctors, nurses, physicians’ assistants, and pharmacists, this training may be provided by the AIDS Education and Training Centers (AETC) Program, funded by HHS’s Health Resources and Services Administration (HRSA). A directory of the AIDS Education and Training Centers is located at www.aidsetc.org/aidsetc?page=ab-00-00