© Elizabeth Zink-Pearson
The Rehabilitation Act of 1973 was the predecessor of the American Disabilities Act of 1990 and imposed a duty upon federal contractors, or entities that participate in federally funded programs to accommodate persons with “handicaps.” In addition, Section 504 of the law prohibits a business which participates in a program that receive federal financial assistance from discrimination which affects the receipt of the federal benefit and in employment of individuals. Thus this law applies to home health agencies which participate in Medicare or Medicaid who, as outlined in the law, employ more then fifteen (15) persons.
The regulations adopted to implement section 504 provides that “no qualified Handicapped individual shall on the basis of handicap be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receive or benefits from federal financial assistance.” The law and regulations do not require an affirmative action policy. Yet, the regulations outline specific discriminatory actions which are prohibited including denial of a benefit or service, providing a less effective benefit of service or a different benefit or service either directly or through a contract, license or other arrangement if such acts are done on the basis of a person’s handicap. As previously stated, the prohibition extends to access to services or facilities as well as to employment opportunities.
Similar to the ADA, Section 504 of the Rehabilitation Act generally requires program participant to reasonably accommodate a qualified person with a handicap in the employment setting. Such a duty is not stated for accessibility to services. Instead, the regulations simply prohibit using the handicap as the basis of denial, restriction or limitation on services.
The regulations require that a covered entity appoint a specific person to coordinate is compliance. In addition, the covered entity must institute a grievance policy applicable complaints about possible discriminatory acts. The grievance policy should address employment grievance and patient grievance and include the following:
1. Adopt a written grievance procedure to be incorporated in clinical and employment policies. The grievance policy should be included in patient admission packets.
2. The grievance procedures should outline that complaints be in writing and addressed to a management level person and/or the identified Grievance Coordinator.
3. Establish specific time frames for filing the compliant and the investigation of the changes.
4. Outline the time frame and chain of command for decision_making on the complaint including identifying the person or the job title of the person who will oversee the investigation of the complaint.
5. Provide for a grievance hearing_ a meeting of the aggrieved party and the decision makers including the Chief Executive Officer of the company as a final step in the procedure.
Agencies also must maintain a log of grievances from patients or employee that fall under section 504, by disabled person who are either patient, applicants for employment, etc. In addition, agencies must post a notice of compliance with Section 504 of the Rehabilitation Act which includes the name of the Grievance Coordinator. Agencies who advertise, either for employees or for educational purposes, should also include reference to being non_discriminatory on the basis of race, sex, disability, religion, or ethnic background.
In light of the recent cases, home health agencies should make sure they are in compliance with Section 504 of the Rehabilitation Act and address the issues in admission policies. A grievance procedure should be adopted and incorporated in agency admission and compliance policies. Decisions on admission or discharge should be characterized as related to the agency’s ability to provide or reasonable expectation to be able to provide the care for patients, which may include whether or not the agency can afford to pay its employees to provide services.