By Leon Rodriguez and Emily J. Miller

Seyfarth Synopsis: Consistent with Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, the U.S. Department of Health and Human Services (HHS) recently published recommendations for preventing and responding to sexual harassment for entities that receive federal financial assistance from HHS. In its “Effective Practices for Preventing Sexual Harassment” document, HHS makes specific recommendations for those working in university health and medical settings related to performing patient medical examinations.

On Friday, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services published a document containing “voluntary standards” and “suggested practices” geared toward preventing sexual harassment in entities that receive federal financial assistance from HHS. (The document opens with a clear disclaimer that it is “not guidance and is not a final agency action…”) The document, “Effective Practices for Preventing Sexual Harassment,” outlines steps that HHS funding recipients could take to ensure compliance with Title IX of the Education Amendments of 1972 (Title IX).

Title IX prohibits sex discrimination, including sexual harassment, in education programs and activities that receive federal financial assistance. Although most commonly discussed in the context of enforcement by the OCR Department of Education (DOE), all federal agencies that fund education programs or activities are required to enforce Title IX – including HHS.

Additionally, under Section 1557 of the Affordable Care Act (Section 1557), health programs and activities that receive federal financial assistance cannot discriminate on the basis of race, color, national origin, disability, age, or sex. Section 1557 takes its prohibition against sex discrimination from Title IX. Typically, entities found in violation of Title IX or Section 1557 are invited to take corrective action either pursuant to a closure or, in more serious cases, pursuant to resolution agreements with the enforcing federal agency. Absent voluntary corrective action, the affected entity may face withdrawal of all its federal financial assistance.

For instance, a little over a year ago, HHS entered into a public, voluntary resolution agreement with Michigan State University (MSU), the MSU HealthTeam, and MSU Health Care, Inc. stemming from its own investigation following the criminal investigation and convictions of Lawrence “Larry” Nassar.

Some entities, like universities or academic medical centers, may receive funding from both the DOE and HHS, and those entities are responsible for complying with the Title IX Regulations from each agency – though in the Effective Practices document, HHS specifically states that its Regulations do not supersede the DOE Regulations when both apply. (And there is some interplay between the two. For instance, HHS specifically states in its Effective Practices document that it applies the DOE’s definition of sexual harassment from its May 2020 final rule.)

The Effective Practices document explains that, under HHS Title IX Regulations, recipients of HHS funding must publish contact information for the individual(s) responsible for coordinating the entity’s compliance with Title IX. In addition, recipients must “adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging sexual harassment in a recipient’s education and student health programs.”  The document further recommends that recipients evaluate their programs and activities to ensure that they “do not deny or limit an individual’s ability to participate in or benefit from the program at issue on the basis of sex.”

Beyond synthesizing some responsibilities under the HHS Title IX Regulations, the Effective Practices document splits its recommendations into three parts: (1) Effective Practices in HHS-Funded Programs Generally; (2) Effective Practices Specific to University Health and Medical Settings; and (3) Effective Practices Specific to Research Settings.

On the whole, the general section offers broad considerations for recipients to make regarding implementation of effective policies and procedures geared toward sexual harassment prevention and response, dissemination of information about policies, procedures, resources, and responsibilities, prevention and response education, and evaluation of these sexual harassment prevention and response efforts. For example, HHS suggests that recipients implement policies that define sexual harassment using “clear language” and provide “easy to understand relevant examples.” The section on Research Settings is similarly general – making recommendations as to training and notifying individuals of prohibited conduct and options for filing a complaint.

In the University Health and Medical Settings section, HHS is more specific. First, HHS reminds recipients that student health facilities, whether located on or off campus, are covered by Title IX. Here, HHS offers three concrete examples of protective protocols for recipients to consider taking in these environments. The first recommendation is that patients bring a support person into the exam room – or have a same-sex member of the health care team present – for the patient’s examination. This recommendation is similar to one of the key terms of the Michigan State University resolution agreement, and is likely to become a de facto requirements for Title-IX covered health care entities.

The second suggestion is that, before undertaking an examination, providers share detailed information about what the patient can expect during the examination – and that providers obtain the patient’s informed consent to perform the examination. Finally, HHS recommends that providers ask patients to remove as little clothing as necessary – for the least amount of time necessary – to perform the examination.

HHS’s publication of this document, taken together with the MSU resolution agreement, means that we can anticipate further OCR enforcement activity in this space. Education programs and activities that receive funding from HHS, particularly those operating in University Health and Medical Settings, should review the document and consider the recommendations in light of their own current policies and practices. In the event of an OCR investigation, covered entities are likely to find that these are seen as requirements rather than recommendations.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team.