"Long-Term Care Providers Must Not Adopt Residents’ Racial Preferences"

by Laurie E. Martin, Hoover Hull LLP


Long-term care providers may violate federal anti-discrimination law if they have a policy of honoring their resident’s racial preferences in assigning health care providers. A recent opinion from the U.S. Court of Appeals for the Seventh Circuit, Chaney v. Plainfield Health Care Center, 612 F.3d 908 (7th Cir. 2010), found that a provider’s policy of acceding to the racial biases of its residents was an unlawful employment practice that, along with racial animosity from the plaintiff’s co-workers, created a hostile workplace in violation of Title VII of the Civil Rights Act of 1964.

Certain Plainfield residents refused assistance from black CNAs. Plainfield had a policy of honoring its resident’s racial preferences, citing state and federal laws granting residents the right to choose providers, to privacy, and to bodily autonomy. Accordingly, African American plaintiff Brenda Chaney’s daily assignment sheets stated in writing that one of her residents “Prefers No Black CNAs.”

Over the course of three months, co-workers referred to Chaney in derogatory racial terms on multiple occasions. She reported the comments to management, and the comments eventually stopped, but Plainfield’s racial preference policy remained in place.

Chaney was later terminated for using profanity in front of a resident, although Plainfield later claimed other reasons led to her discharge. The court cautioned that a shifting justification for an employment decision can be circumstantial evidence of an unlawful motive. Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 723-34 (7th Cir. 2005).

The Seventh Circuit reversed summary judgment for Plainfield, finding that although Plainfield had acted to stop the racial epithets, it had actually encouraged a racially charged environment through its daily written assignment sheets reminding Chaney and her co-workers that certain residents preferred no black CNAs.

Chaney, 612 F.3d at 913-15. The court explained that, unlike gender, race is never a legitimate reason – a bona fide occupational qualification – for accommodating patients’ privacy interests. “Just as the law tolerates same-sex restrooms or same-sex dressing rooms, but not white-only rooms, to accommodate privacy needs, Title VII allows an employer to respect a preference for same-sex health providers, but not same-race providers.” Id. at 913.

Finally, the court disagreed that an Indiana regulation which gives residents a right to “choose a personal attending physician and other providers of services,” (410 Ind. Admin. Code 16.2-3.1-3(n)(1)), required Plainfield to instruct its employees to accede to the racial preferences of its residents. The court suggested that the regulation may require Plainfield to allow the resident reasonable access to a white aide if she wished to employ one at her own expense, but that it did not trump Plainfield’s duty to its employees to abstain from race-based work assignments. Title VII contains no good faith defense permitting an employer to ignore federal mandates in favor of allegedly conflicting state law. Id. at 914.

The Court suggested several actions a long-term care provider could take to confront a hostile resident without exposing itself to hostile workplace liability:

• Warn residents before admission of the facility’s non-discrimination policy and secure the resident’s consent in writing.

• Attempt to reform the resident’s behavior after admission.

• Assign staff based on race-neutral criteria that minimize the risk of conflict.

• Advise employees that they can ask for protection from racially harassing residents.

Id. at 915 (citing Patrick Gavin & JoAnne Lax, When Residents and Family Harass Staff: The Tightrope between Regualtory Compliance, Risk Management and Employment Liability, LONG TERM CARE AND THE LAW 16-18 (Feb. 27, 2008) (American Health Lawyers Association, Seminar Materials.)

Employers can also seek to avoid liability under Title VII by enacting and consistently enforcing the following helpful practices:
• Establish a clear and effective anti-harassment policy

• Respond promptly to any complaints of harassment from employees.

• Provide clear and comprehensive reasons for discharge at termination.

• Seek clarification from the Indiana State Department of Health or legal counsel if a state regulation appears to require actions inconsistent with federal law.

Laurie E. Martin is an associate with Hoover Hull LLP. She represents employers, including long term care facilities and hospitals, in state and federal court and before administrative agencies on all employment and employee-benefit related matters including compliance with the Family and Medical Leave Act (FMLA), Title VII of the Civil Rights Act, the Employee Retirement Income Security Act of 1974 (ERISA), the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), wage and hour disputes, wrongful discharge and blacklisting. Visit www.hooverhull.com or contact Laurie E. Martin directly at 317-822-4400, ext. 136, to discuss your employment-related needs.

An Update on Reporting of Crimes in Long Term Care Facilities

by Zach Cattell, J.D., IHCA General Counsel

On August 12th, 2011, the Centers for Medicare and Medicaid Services (“CMS”) released an update to the June 17th, 2011, Survey and Certification Memorandum 11-30-NH (the “Memorandum”) that provides guidance to State Survey Agencies (“SSA”), the Indiana State Department of Health (“ISDH”) in Indiana, regarding the reporting of reasonable suspicions of crimes in long term care facilities (“LTC”) (click here for the updated Memorandum: Updated S&C 11-30-NH).

The Memorandum was published due to the passage of the Elder Justice Act that, in part, requires certain covered individuals to report reasonable suspicions of crimes in that occur in LTCs to the ISDH and a local law enforcement agency. The revised memorandum includes a Questions and Answers document, at pages 13-18, and guidance on the content of required notice regarding anti-retaliation provisions.

In addition, on August 31st, 2011, the ISDH released guidance of its own in the form of ISDH Program Advisory LTC-2011-01 (the “ISDH Program Advisory”). This ISDH Program Advisory provides additional guidance for facilities, as well as sample forms and an implementation timeline that facilities should follow.
CMS Questions and Answers

The additional CMS guidance provides, unfortunately, only a few new pieces of information. For the most part the Questions and Answers reiterate information that was already communicated in the original Memorandum. That being said, the following are new guidance from CMS:
• Reporting a reasonable suspicion of a crime does not require “first-hand knowledge” of the events giving rise to the reasonable suspicion.

• Continuing Care Retirement Communities must comply with the reporting requirements and, specifically, notices that are required to be posted must be so posted in the SNF/NF portion of the community and not in each building or unit of the entire community.

• To promote a culture of safety, and to encourage reporting of reasonable suspicions of crimes, it is not recommended that facilities require covered individuals report to the facility when a report of a reasonable suspicion of a crime is made. Anti-retaliation provisions of the reporting requirement reinforce this premise.

     However, this guidance must be balanced with the requirement for facilities to ensure that all alleged violations involving mistreatment, abuse, neglect, injuries of unknown origin and misappropriation of resident property are immediately reported to the administrator and other officials in accordance with current law.

• The 2-hour and 24-hour reporting requirements for reports of reasonable suspicions of crimes (2-hours when events results in serious bodily injury, and 24-hours for all other reports) are based on actual (clock) time, and not business hours.

• Incidents such as falls, bruising/injuries of unknown origin, resident-on-resident abuse, and other events, may be subject to the crimes reporting requirement, but are case specific. Each of these events would be reportable as an incident, but whether there is a reasonable suspicion of a crime depends on the surrounding circumstances.

Indiana State Department of Health Guidance

The ISDH released ISDH Program Advisory LTC-2011-01, which includes several helpful attachments. The ISDH Program Advisory hits many similar points that the CMS Memorandum discusses, but gives specific guidance on the reporting process and contact information for submitting reports to the ISDH, gives recommendations for implementation of the reporting requirements, includes templates for required and recommended postings, a revised Incident Report Form, and an ISDH Q&A document.

The ISDH materials may be located on the LTC Incident Reporting website at http://www.in.gov/isdh/23638.htm (documents are at the bottom of the page under “Program Guidance and Advisory Letters”). Most notably, the ISDH recognizes that the reporting requirements is current law and is in effect. However, the ISDH sets out an implementation timetable in the form of a checklist (see Implementation Checklist for Facilities) that does provide for some additional time for facilities to get up to speed with the law.

Recommendations

LTC facilities should immediately develop policies and procedures implementing the crimes reporting requirements. According to CMS, the law is in effect and should be enforced by State and Federal Surveyors.

Training of covered individuals (owners, operators, employees, managers, agents or contractors of the facility) regarding their individual duty under the requirement is critical. Each facility will want to be sure that each covered individual understands his/her responsibility, how to make a report, how to join a group report if a group report is being made, that the individual is are not to be retaliated against for making a report to the ISDH or local law enforcement and if retaliation occurs how the individual can make a report regarding such retaliation.

LTC facilities need to reach out to their local law enforcement agency, either the county sheriff or city/town police, as applicable, regarding communication of reports. Establishing a relationship with local law enforcement for purposes of reporting reasonable suspicions and understanding what constitutes a crime in the local jurisdiction are key components to implementation.

If you have any questions about the crime reporting requirements, please contact Zach Cattell at 317-636-4341 or zcattell@ihca.org.