On August 12, 2019, the Office for Civil Rights at the Department of Health and Human Services (“HHS OCR”) announced that it has entered into a Voluntary Resolution Agreement with Michigan State University pursuant to Section 1557 of the Patient Protection and Affordable Care Act and Title IX of the Education Amendments of 1972. This Agreement relates to HHS OCR’s investigation into the sexual abuse of gymnasts and others by Larry Nassar while employed by the University, and it covers multiple Michigan State University entities, including its multi-specialty medical practice, which employs 260 physicians and advanced-practice providers.

HHS OCR’s press release concerning the Agreement can be found here.

According to the Agreement, the Michigan State University entities have agreed to:

• Revise their non-discrimination notices and sexual misconduct policies to clarify Title IX’s and Section 1557’s prohibitions on sex discrimination;
• Improve their processes for investigating and resolving Title IX and Section 1557 complaints (including for students, non-student patients, faculty and staff);
• Designate a responsible official to coordinate the acceptance, investigation and resolution of Title IX and Section 1557 complaints;
• Institute a new chaperone policy requiring authorized members of the health care team to be present at sensitive medical examinations and allowing patients to request chaperones of the sex of their choosing;
• When conducting sensitive examinations, provide the patient with an appropriate gown, privacy for undressing and dressing, and sensitive draping to maximize physical privacy; and
• Conduct all-staff training and provide bi-annual reports to HHS OCR during the three year term of the agreement.

The Director of HHS OCR was quoted in the press release as saying that “the institutional reforms that MSU has agreed to undertake will help ensure that no patient is ever victimized like this again.”

Analysis: Health systems must take steps to protect patients from harm or harassment by individual providers or staff

This Voluntary Resolution Agreement demonstrates an as-of-yet unappreciated aspect of Section 1557’s novel application of Title IX to the healthcare industry and the expansion of potential healthcare-discrimination liability that has come with it. Health systems should therefore take note of the critical importance of putting institutional safeguards in place to protect patients and their companions from unlawful sexual harassment or abuse. As highlighted above, these steps should include developing and implementing a chaperone policy, and promptly investigating and resolving any complaints of sexual harassment or abuse by patients or their companions. See Rumble v. Fairview Health Servs., No. 14-CV-2037 SRN/FLN, 2015 WL 1197415, at *21-22 (D. Minn. Mar. 16, 2015) (applying Title IX’s deliberate-indifference standard for imposition of direct liability to health system based on allegation of sex-discrimination by individual provider). Moreover, because this a new and emerging area of concern for health systems, training is likely required for executives, administrators, providers, and staff to build awareness of this new potential liability and how to prevent it.

Health systems should also be sure to monitor this area of the law for critical legal developments related to the scope of sex discrimination in healthcare, such as whether Section 1557 of the ACA prohibits discrimination on the basis of gender identity or sexual orientation. See, e.g., Prescott v. Rady Children’s Hosp.-San Diego, 265 F. Supp. 3d 1090, 1099–1100 (S.D. Cal. 2017) (ruling that Section 1557 of the ACA prohibits discrimination in healthcare on the basis of gender identity); Rumble v. Fairview Health Servs., No. 14-CV-2037 SRN/FLN, 2015 WL 1197415, at *10 (D. Minn. Mar. 16, 2015) (“Here, the Court finds the OCR’s interpretation of Section 1557 persuasively concludes that Section 1557 protects plaintiffs, like Rumble, who allege discrimination based on ‘gender identity.’”); but see Franciscan Alliance, Inc. et al. v. Burwell, 227 F. Supp. 3d. 660 (N.D. Tex. 2016) (issuing nationwide injunction against HHS’s enforcement of its interpretation that Section 1557 prohibits discrimination on the basis of gender identity).