Department of Veterans AffairsOffice of Inspector GeneralAdministrative InvestigationFailure to Comply with Americans withDisabilities Act and VA PolicyVeterans Health AdministrationRedactedApril 14, 2014Report No. 13-02649-120VA Office of Inspector GeneralWashington, DC 20420
DEPARTMENT OF VETERANS AFFAIRSOffice of Inspector GeneralWashington, DC 20420TO:Deputy Under Secretary for Health for Operations and ManagementSUBJECT:Administrative Investigation, Failure to Comply with Americans withDisabilities Act and VA Policy, Veterans Health Administration(2013-02649-IQ-0154)SummaryWe concluded that a Veterans Health Administration (VHA) Medical Center Directorfailed to meet reasonable accommodations (RA) confidentiality requirements when shedisclosed an employee’s confidential medical information to unauthorized VA managers,medical staff, and other employees. Although she did not name the employee, shereferred to the employee by position and identified medical condition, which was enoughinformation to identify the employee. We also found that the Director improperlyappointed herself Designated Management Official (DMO), substituted her medicaljudgment for that of an employee’s physicians, delayed accommodating the employeewhile gathering additional, unnecessary medical information, and neglected to providethe employee avenues of redress when she denied the employee’s RA request. We do notidentify some individuals in this report in an effort to protect the employee’s identity.We also found that the VHA Medical Center Equal Employment Opportunity (EEO)Program Manager and Local Reasonable Accommodations Coordinator (LRAC) failed toimplement the 2008 Americans with Disabilities Act Amendments and subsequent March2011 Equal Employment Opportunity Commission (EEOC) guidance, after directed by (b)(6)the. Further, we foundthat the LRAC violated confidentiality requirements when she consulted VHA physiciansand revealed the nature of the employee’s condition to the DMO and others. In addition,we found that the LRAC failed to follow VA policy when she composed an RA denialletter without providing avenues of redress for the VA employee.Further, we found that a Regional Counsel Staff Attorney failed to provide proper adviceto the LRAC concerning the employee’s prospective RA, as she told the LRAC that RAguidelines did not recognize the employee’s medical condition as a disability. Contraryto her initial advice, the Staff Attorney later told the Director towith the employee,,due to the Director holding up the RA to obtain additional medical documentation.
Administrative Investigation,Failure to Comply with Americans with Disabilities Act and VA Policy, Veterans Health AdministrationIntroductionVA Office of Inspector General Administrative Investigations Division investigatedallegations that a Director, LRAC, and other VA employees violated RA confidentialityrequirements. In addition, we investigated whether the Director and LRAC violatedFederal regulations and VA policy during the RA process. To assess these allegations,we interviewed the Director, LRAC, and other VA employees. We also reviewed Officeof Resolution Management (ORM) EEO, email, and personnel records, as well asVeterans Integrated Service Network (VISN) Privacy Office investigative documents andreports. We investigated but did not substantiate another allegation and will not discuss itfurther in this report.BackgroundVA Secretary’s EEO Diversity and Inclusion and NO FEAR Policy Statement, datedMay 31, 2013, committed VA to uphold EEO standards and maintain a high-performingworkforce in service to our Nation’s Veterans. It states that VA would vigorouslyenforce all applicable Federal EEO laws to ensure equal opportunity in the workplace forall VA employees and affirmed that the policy applied to all employment terms andconditions, including benefits.VA’s Office of Human Resources & Administration (HR&A) Office of Diversity andInclusion (ODI) intranet website for disability accommodation procedures displayedSection 501 of the Rehabilitation Act, which required that agencies provide RA toqualified employees with disabilities. The website defined an RA as a change in thework environment or work processes that enabled an employee with a disability to enjoyequal employment opportunities and that the accommodation must effectively meet theneeds of the individual and address the barrier created by the functional limitations. Italso stated that VA should provide RA unless VA showed that the accommodationscaused undue hardship on the operation of the program.ODI’s website identified key EEO Specialistsand, stating thatwas VA’s, andtold usthatwas theand her assistant RA resource person.told us that she processed nearly 120 RA requests for VA employees, andbothandtold us that they frequently counseled VA personnelon processing requests and also answered many accommodation-related questions.VHA Medical Center DirectorThe Director told us that she completed an RA training session as part of an overall EEOtraining course, andtold us that training records reflected that the DirectorVA Office of Inspector General2(b)(6)
Administrative Investigation,Failure to Comply with Americans with Disabilities Act and VA Policy, Veterans Health Administrationcompleted an on-line version of the RA training in October 2010. The Director told usthat she also attended the Regional Counsel’s RA training for medical center leadershipin 2012. She said that she was the self-appointed DMO at the medical center, decidedRA requests, and her most recent RA training emphasized that medical information mustbe “very carefully protected.”(b)(6)andboth told us that ODI guidelines prohibit VA medicalcenter directors from being appointed to the DMO position to preserve the director’sobjectivity in deciding RA appeal cases, which was the director’s key role in the appealprocess.emphasized the need for the director’s neutrality in RA matters,since they were the responsible party in EEO rulings against a medical center.EEO Program Manager and LRACOne of the LRAC’s performance reviews stated that she worked with uncommon RAissues and was “extremely resourceful” in dealing with employees. Further, recordsreflected, and she told us, that she was promoted into her current position and assumedLRAC responsibilities in 2009 and was the medical center’s top RA resource person. Atthat time, the LRAC signed a Statement of Commitment and Understanding thatcommitted her to safeguarding VA employees’ personal information and acknowledgedcivil, criminal, and administrative penalties to which compliance failure subjected her.ODI Annual ReportThe FY 2012 ODI Diversity & Inclusion Annual Report reflected that VA processed andfunded over 700 RA requests from employees with major life activity restrictingdisabilities. It also reflected an increased liability risk with a 45 percent rise in RArelated complaints between 2008 and 2012. In response, ODI trained nearly 500 VAmanagers during FY 2012.Overview of RA Regulations and Guidelines(b)(6)told us that The Rehabilitation Act of 1973, as amended; Title I of theAmericans with Disabilities Act of 1990 (ADA); The ADA Amendments Act of 2008(ADAAA); and Equal Employment Opportunity Commission (EEOC) guidancegoverned RA requests and confidentiality of protected medical information obtainedduring the process. EEOC guidance reflected that President George W. Bush signedADAAA into law on September 25, 2008, with the statutory effective date of January 1,2009. To comply with original congressional intent regarding the ADA, as stated in U.S.House testimony, the 2008 Amendments Act broadened the definition of disability,included coverage to the maximum extent permitted by the ADAAA, and redefined theterms and conditions related to qualifying disabilities. Federal law covering PublicHealth and Welfare states that enactment of the ADAAA reduced the high standard ofVA Office of Inspector General3
Administrative Investigation,Failure to Comply with Americans with Disabilities Act and VA Policy, Veterans Health Administrationproof for requestors of RA and asserts that covered entities do less extensive analysis indetermining the existence of an employee’s qualified disability. 42 USC, Chapter 126,Sec. 12101, Findings and Purpose of Pub L. 110-325(a).EEOC guidance, published March 25, 2011, gave covered entities an interpretation of theADAAA, and, in February 2012, EEOC adopted a FY 2012–2016 strategic plan thatestablished equal employment law, to include the employee’s specific condition, as a topnational priority. EEOC guidelines additionally stated that impairments resulting fromthe employee’s specific condition may be disabilities under the ADA and that anemployer may have to provide an RA for a disability specific to the employee’scondition, absent undue hardship, because the ADAAA made it much easier to show thata medical condition was a covered disability.VA HR&A GuidanceOn February 23, 2009, the acting Assistant Secretary for HR&A issued a Memorandumfor Under Secretaries, Assistant Secretaries, Other Key Officials, and Field FacilityDirectors to assist in implementing the ADAAA within VA. The memo told recipients ofthe planned VA Handbook and Directive 5975.1 revisions and concluded that theADAAA expanded disability protections, reversed restrictive Supreme Court rulings, andcovered more VA employees. To facilitate interim ADAAA implementation, the memoprovided ODI’s interpretation of changes to VA management.sent us a June 2012 email, titled: “Medical Documentation Restrictions”that she sent to LRACs VA-wide containing ODI’s interim RA guidance and linkedrecipients to the EEOC website for help implementing and interpreting ADAAA. Theemail clarified that the EEOC guidance defined impairments and assisted in determiningwhich disabilities qualified for RA stating, “any disability not both transitory and minoris covered by ADAAA” and “by extension the Rehabilitation Act.”told us that to inform LRACs VA-wide of newly clarified RA disabilityinformation before ODI officially released the revised VA Handbook 5975.1 she sentupdated guidelines in an email. For emphasis, her email addressed reported incidents ofunnecessary requests for, and unauthorized disclosure of, RA medical information byLRACs. The email instructed that LRACs and alternates alone, decided the need for, andconducted review of, medical documentation when processing RA requests, and LRACsNOT (emphasis in original) share the information, or the name of the disability, withanyone including the DMO or the Reasonable Accommodation Committees (RAC) inVHA. The email prohibited VHA physicians from reviewing medical documentationsubmitted in the process and permitted LRACs to disclose to the DMO and the RAC onlywhether there was a covered disability and, if so, the functional limitations created by thedisability. It further stated that these prohibitions reduced VA’s liability in EEO casesarising from improper disclosure of, or decisions about, an employee’s disability.VA Office of Inspector General4(b)(6)
Administrative Investigation,Failure to Comply with Americans with Disabilities Act and VA Policy, Veterans Health Administrationtold us that she observed that VHA historically automatically sent RArequestors for health exams and that some medical centers wrote local guidelines that shedeemed “hair-raising” (defined as extremely alarming), because they misunderstood therequirements. She said that they wanted them to instead use the official guidelines andnot their own local policy. For example, the email cited a case in which the EEOC foundVA liable in an RA case, because management requested duplicate medical informationfrom an employee’s physician. The email told LRACS “keep the disability determinationprocess simple” and directed LRACs to use the email message as guidance while waitingfor publication of the revised VA Directive and Handbook.ResultsIssue 1: Whether the Director and Others Improperly Disclosed an Employee’sMedical InformationFederal regulations that implement the Equal Employment Provisions of ADA state that,once obtained, medical documents must remain confidential. 29 CFR § 1630.14c.However, the Health Insurance Portability and Accountability Act (HIPAA), as well asthe Privacy Act of 1974, exempt employers from the disclosure rules in cases involvingemployee health information obtained as employment records for “valid and routineuses.” HIPAA privacy rules define VHA as a “health plan” and state that a “health plan”is a covered entity which must protect medical or health plan records from disclosureonly if the person is a patient or a member of the health plan and that they do not apply toan employee’s employment records. Federal regulations further state that, generally, theprivacy rule applies to disclosures made by a healthcare provider, not to the questions ofan employer. 45 CFR §§ 160.103 and 164.512(b)(1)(v); 5 USC § 552a(b); and Doe v.DOJ, No. 09-411, 2009 WL 3182904.VA policy states that RA officials shall not obtain medical documents for every RArequest, but they may obtain them if the information initially provided for the request wasinsufficient. They also state that under the Rehabilitation Act (of 1973 as amended)confidentiality rules regarding disability status apply to “all employees whether or notthey are determined to be individuals with disabilities,” and those who receive medicalinformation during the RA process must keep it confidential. VA policy further statesthat violation of the Rehabilitation Act’s medical confidentiality requirements exposesthe agency to liability, even if there was no other action taken against the individual whoprovided the disclosed medical information. It also states that processors shall not sharethe medical information or accommodations with an employee’s coworkers or otheremployees. VA Handbook 5975.1, Sections 11 and 12 (September 2010).The medical center’s local polic