Last year, Sutter Health, a family of nonprofit hospitals and physician organizations serving more than 100 communities throughout Northern California, entered into what is being hailed by disability rights advocates as a “landmark settlement” of a class-action lawsuit for its alleged institutional discrimination against the disabled, in so far as many of their physical facilities and their policies and procedures did not accommodate the disabled.
In addition to temporary and permanent injunctive relief, consisting of a judicially monitored comprehensive assessment and corrective plan over 10 years, imposition of a civil penalty, and payment of compensatory damages to the class members, the court also awarded plaintiffs’ their attorneys fees, which exceeded $600,000. Sutter Health’s class-action lawsuit is only one of a number of recent discrimination private lawsuits, and civil enforcement actions for discrimination by federal and state regulatory authorities, against health insurers, health plans, health systems, health facilities and healthcare providers.
“Compliance with all applicable federal, state, and local laws and regulations,” is a ubiquitous, fairly innocuous requirement for most contracting parties, and is contained in seemingly all contract “boilerplate” provisions. That requirement has, however, greater significance for dialysis facilities as it is a Medicare Condition for Coverage (42 C.F.R. §405.2135). Some of the “applicable federal laws” that dialysis facilities must comply with include the U.S. Food and Drug Administration’s medical device reporting requirements, the Occupational Safety and Health Administration’s environmental and training requirements, and the Department of Health & Human Services, Office of Civil Rights (OCR) anti-discrimination requirements.
Given the chronic condition of most dialysis patients and the tenure of their relationship with a dialysis facility, it can be argued that dialysis facilities address, or are in a better position to address, the needs of their disabled and limited English proficient patients better than most other healthcare facilities or providers that provide acute care. However, in light of the Sutter Health settlement and other like litigation, and the fact that dialysis facilities can be excluded from participation in Medicare for deliberate or gross violations of the OCR’s anti-discrimination requirements, it is important for dialysis facilities to revisit their obligations under Section 504 of the Rehabilitation Act of 1973 (the Rehabilitation Act), Title III of the Americans with Disabilities Act (the ADA) and Executive Order 13166 (EO 13166) to ensure compliance.