CAREER


http://www.latimes.com/local/countygovernment/la-me-nursing-home-audit-20140829-story.html

published August 28, 2014

http://www.latimes.com/local/lanow/la-me-ln-california-nursing-home-audit-20141030-story.html

published October 31, 2014

Somewhere here I am sure I posted about nursing homes.  I can't start again now or I'll never stop.

By the way I learned how to access articles in he LA Times and Washington Post without subscribing and without guilt due to the reprehensible owner of the LAT and the unsavory business practices of both.

Simply copy the title of the main article into a google search or right click after highlighting and select search in google.  Usually the article is the first item that appears.  You can click on it and access the whole article.




I need to update the post below; perhaps I did in FB.  I recently learned that the physician was finally removed from the Medicare program and his account terminated this year, 7 years after my violation finding? , or only 4? I need to check.  He appealed to Medicare and entered into a reinstatement agreement.  After he completed all the HIV training and written commitments to treat HIV patients, he was reinstated in Medicare.  I even called the RM in SF to congratulate him.


http://www.hhs.gov/dab/decisions/civildecisions/cr2580.pdf

The above-linked decision was issued on August 2, 2012, 7 years after a complaint was filed by an individual who was denied back surgery because he has HIV.  Yet the physician still has not been removed from participation in the Medicaid program and thus receives HHS financial assistance.  OCR issued a violation Letter of Findings and completed its enforcement proceedings as detailed in this decision.  HHS, however, has yet to take action.  Thus, it seems to me that the result of this complaint, and the finding that discrimination occurred in violation of the law, is exactly nothing 0!

I suppose I should modify the above or add caveats.  OCR has never experienced a provider who avoided negotiations or resolution to the extent of this provider.  Thus, OCR had to go "all the way" which is rare.  OCR issued a violation LOF; still the MD would not settle.  OCR has persevered to pursue this case to the bitter end, which is rare indeed that a funding recipient would reject and refuse all reaonable OCR efforts to settle.  So OCR has pursued this to the point of removing this MD as a provider.  The procedures seem endless to me and as I understand it now CMS is moving allegedly to enforce the ALJ decision, to be fair to OCR and HHS.

Still I say should it take so long.  This known and proven discriminator has been an HHS recipient for 7 years since his act of discrimination and 3 years since OCR found a violation.  The premise of the civil rights regulations is compliance by HHS recipients.  Despite the above I submit this case has nade a mockery of the HHS OCR civil rights enforcement system.  At some point I will have much more to say about the cowardly and despicable efforts by the last administration to delay and obstruct resolution of this case.

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WHAT IF?


by Brock S. Evans  November 27, 2012

It seems natural to next speculate on the ramifications of what if civil rights enforcement was delegated within each federal program as was contemplated so long ago, as discussed below in "The Founding of OCR" and in Dr. Smith's book.  What if civil rights compliance and enforcement staff were embedded in each program?  For example, what if the Medicare agency required, monitored, and enforced federal civil rights legal requirments to provide qualified interpreters to persons with limited-English proficiency as a condition of participation?  What if its certification and licensing staff and state subcontractors required nursing homes to admit otherwise qualified persons with HIV to nursing homes as a condition of participation?  Would allegations or complaints of discrimination then be more commonplace, routine, immediate, and directed to program staff to resolve forthwith?  Would this system actually be more effective AND efficient?  Did those dedicated HEW staff referenced by Dr. Smith who left HEW upon losing the battle to embed civil rights staff into each program rather than a centralized unit such as OCR forsee this day, of ineffective, inefficient civil rights enforcement, or something close to it? Is it possible to reorganize the structure of civil rights enforcement in the current regulatory, political, administrative, and congressional environment?  Where would HIPAA go?  Far far away from civil rights enforcement if you ask me!  Less facetiously, why not an Office of Health Information Privacy under the HHS Secretary akin to OCR?  Assigning HIPAA enforcement to the Office of Inspector General I believe would impair both HIPAA enforcement and the mission of the OIG as it would disperse and distract its functional responsibilities, much as HIPAA transformed OCR from a primarily civil rights enforcement agency to a primarily health information privacy rights enforcement agency.  I don't minimize the monumental task of embedding civil rights monitoring and enforcement staff within ACF, CMS, HRSA, etc., and the ensuing turf wars and struggles between expanding or shrinking the number of entities serving HHS beneficiaries but I can't think of any substantive rather than bureaucratic reason this does not make sense.  It could also result in a return to the days when, as described by Dr. Smith, the original enforcers were more adovcates for compliance than the neutral arbiters OCR currently sees itself as.  If not now, when?  The contrast with the apparently negative current political environment is an administration led by a President who allegedly wants to change the political environment and look at new ways of doing things.  As I like to say so often, Hmmmmmmm.......................

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OCR and HIPAA - MY CONCERNS


by Brock S. Evans - November 25, 2012
Does HIPAA really protect the privacy of your personal health information? 
Does OCR effectively enforce HIPAA?

Briefly, the answer to Question 1 is maybe and sometimes, depending on whether the Covered Entity consistently complies with HIPAA.  Unfortunately, the answer to Question 2 is uncertain at best, so the actual privacy of your personal health information primarily depends on whether a Covered Entity that has access to it effectively protects your information.
One caveat is that I am no expert on state privacy protections or state laws that protect the privacy of your personal health information.  Actually that is an understatement; in fact, I know almost nothing about state privacy laws.  I understand that California has relatively strong privacy protections, but no agency to enforce them so you are on your own in trying to find an attorney to represent you for a legal claim or lawsuit.  And if you have ever tried to find an attorney for a civil case then you know how difficult that can be. 
I have been told though that a claim can be made under the State of California confidentiality of Medical Information Act, California Civil Code 56.35?, under which it is allegedly possible to obtain $3,000 in damages and $1,000 for attorney fees.
This post describes my experience and view of OCR’s enforcement of HIPAA.  Below you will find posts regarding the beginning of OCR as an enforcement agency with references to important debates about funding, the placement of civil rights enforcement within each federal program, with DOJ, or as occurred with OCR. 
Before I go on to discuss HIPAA though I would like to discuss another important historical point that also has impact today, regarding how civil rights laws are enforced and by who.  I do so rather than in the post on OCR history to highlight its significance to enforcement of civil rights laws, and because of a unique distinction in HIPAA enforcement.
It is my understanding, and I am admittedly speculating here, that some kind of quid pro quo was made so to speak when the Civil Rights Act was approved.  My understanding is that either in the original legislation or, subsequently, private right of action, such as lawsuits, was limited and enforcement instead considered to be a responsibility of the federal government and agencies such as OCR.  While I was struck by Dr. Smith’s observation of OCR’s evolution from advocacy to neutral observers, I was trained, in fact warned quite often (LOL as the texters say) that OCR is not an advocate for either side, but an advocate for the law and as such is a neutral arbiter with the duty to determine the facts, apply them to the applicable regulatory requirements, issue a finding and remedy and resolve any discrimination found.
If that is the quid the quo is that “beneficiaries” as they are referenced, or individuals who believe they have been subjected to discrimination do not have to hire an attorney and pay court costs to find relief for the discrimination.  As I have said many times I am not an attorney.  My further understanding is that subsequent court rulings have limited more than ever the right of individuals to file a lawsuit to remedy discrimination.  Thus, the ability and funding of OCR to enforce the civil rights laws within its jurisdiction is more important than ever. 
Regarding the budget, I recall an observation by Dr. Smith that compared OCR’s budget and case load in 1981 and 1996; in the latter year OCR had more cases and fewer resources.  I have not conducted a statistical analysis or research.  But in my experience based on memory the nadir of OCR was the mid-80s; we had been subjected to draconian budget cuts; there was no method to the madness – for example some Regions had many managers and few investigators, others the opposite – we had a Director whose view of civil rights was not consistent with past practices and who seemed to believe that compliance was voluntary.  The Hearings before a Subcommittee of the Committee on Government Operations of the House of Representatives, 99th Congress, 2nd session, August 6 and 7, 1986, which I briefly referenced in my retirement message below, documented the failure of OCR to bring a single case of enforcement forward. 
My retirement message also details OCR’s recovery from that period.  But I raise that here because my observation is that OCR’s funding is currently as meager as it was in the 1980s.  The only difference is that there is method now, wise folks are in charge of OCR, they are committed to enforcement, and they are doing the most and the best job possible with the resources provided.  OCR cannot grow money on trees, nor can it set its own budget. 
If you think about that, you should be even more concerned about the current than the prior situation as the prior situation in the 1980s was due to politics and resolved by Congressional pressure and subsequent elections and the appointment of qualified staff committed to civil rights enforcement.  Now what?  I don’t have any answers. 
And so in that context, along comes HIPAA.  The rest should come as no surprise.  OCR is overwhelmed with an historic number of complaints within its jurisdiction and fewer staff and resources than were allocated in the 1980s.  Certainly the number of staff compares unfavorably.
So before I get to how OCR is handling it let me discuss how OCR ended up with HIPAA.  Again I am basing this more on memory than vetted research but I am very close to accuracy I believe.  A law was passed in the 1990s that stated that if Congress did not pass a law by a date certain than HHS could issue a regulation protecting the privacy of personal health information.  That’s a first I believe.
Now I don’t have insider knowledge on the ensuing turf wars but at the time the authority to draft, issue and implement regulations came with funding.  I can only imagine and speculate that consideration was given to setting up a new division in HHS, quite a challenge in the current regulatory environment, assign the task to the HHS Office of Inspector General, which I understand continues to covet it, or provide it to OCR, which after all was already charged with enforcing “rights”. 
If I was at the table, it is easy to say now that I would have been screaming but I would like to think so.  You can’t blame someone for thinking that more prestige and funding could lead to more effective enforcement of civil rights laws.  And who knew W would “win” or “steal” an election, depending on your point of view.  The money dried up fast.  The surplus became a deficit in no time.  OCR’s attention shifted further away from enforcement of civil rights laws.
Admittedly civil rights was and continues to be my passion; health information privacy not so much.  I am all for HIPAA and understand its import, but my eyes glaze over and my mind wanders when contemplating it.  Some agency needs to enforce it.  But OCR?  What about our first duty and mission – civil rights enforcement.  Nondiscrimination is just not the same as health information privacy.
I could not avoid HIPAA cases for long; soon and I understand currently, upwards of 90% of OCR complaints are filed under HIPAA.  And so OCR rarely if ever conducts a compliance review or provides outreach with respect to any civil rights law under OCR’s jurisdiction.  That’s more than a shame; it’s a tragedy.  Moreover, I consider it a final violation of the compact made to enforce civil rights laws so individuals did not have to go to court.  Now we have the worst of all  possibilities – private right of action exists in rare circumstances at best; and OCR is failing at its primary mission to proactively and effectively enforce laws under its jurisdiction to prohibit discrimination based on race, color, national origin, disability, and age!  And what of the blood, sweat, and tears, the very lives given in the struggle to achieve and enforce laws prohibiting discrimination? 
So what is OCR doing with respect to HIPAA enforcement?  First, let me mention 2 unique aspects of HIPAA:
1)    OCR is the sole arbiter of HIPAA; the regulations explicitly prohibit private rights of action (lawsuits) by or on behalf of individuals;
2)    For the first time, OCR may collect Civil Monetary Penalties ($) for unremedied egregious violations, based on numbers of individuals, and nature of the violation.
The money becomes quite significant for cases in which a Covered Entity, whether inadvertently or not (and really they should all have adequate prevention protections in place) lose or dispose of Protected Health Information of thousands or more of individuals  You can see the case examples on OCR’s web sites:  a hospital keeps its back up data on a thumb drive that is lost, a pharmacy throws out thousands of labeled prescription bottles in a dumpster that are found by the media; a beleaguered social worker taking files home on the train leaves them there, etc.
But what about the individual cases when someone’s protected health information has been disclosed in violation of HIPAA.  In my recent experience, OCR is “resolving” the cases by “requiring” the Covered Entity to adopt policies or take actions that would prevent such disclosure in the future.  And really what is the remedy once your information is disclosed?  It can’t be taken back. 
But what alarms me is that OCR is not in fact requiring specific corrective actions and documenting their completion; OCR is simply listing the actions in a “closure” letter and closing the case.  Who knows whether the Covered Entity will take the action.  In fact, in my last case, the Covered Entity explicitly stated in writing that it would not take the actions OCR required.  Regardless, OCR closed the case based on the provision of “Technical Assistance” to the Covered Entity. 
The best I can say in OCR’s defense is that under the current budget situation it seems to have 2 options:
1)    Investigate properly each complaint and require and document corrective actions in all appropriate cases; under this scenario the ensuing backlog would conceivably result in complaints not being investigated until somewhere between 1-3 years after receipt;
2)    The current option – conduct a cursory review, issue TA letters in individual complaints, and use its limited resources on the enforcement of cases likely to result in Civil Monetary Penalties; then use the money to hire additional staff and then investigate all cases. 
But who knows whether that will occur.  And what about civil rights meanwhile.
What can you do?  Review the HIPAA policies of Covered Entities that have access to your personal health information.  Request in writing a written accounting of all disclosures made if you are concerned that a Covered Entity has impermissibly disclosed your health information.  Contact OCR.  Contact the Covered Entity’s Privacy Officer.
In other words, not much.


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THE FOUNDING OF OCR


by Brock S. Evans, November 25, 2012


The source of this information is my own knowledge, experience, and research.  I am not infallible.  If you want more detailed information or a source that has been vetted you may consider the book “Health Care Divided, Race and Healing a Nation” by David Barton Smith or “Bring Us Together” by Leon Panetta.  This article is informed by these sources, and knowledge acquired through my work for OCR including training and research.

Mr. Smith’s book covers the history of health care in the United States.  I will pick up with the Truman Administration’s admirable but unsuccessful effort to implement national health insurance legislation.  Meanwhile, a hospital construction bill commonly known as the Hill-Burton Act was passed by Congress and signed into law in 1946.  It provided funds for hospital construction, required that hospitals built with the funds provided provide services without discrimination based on race, creed, or color, required such hospitals to provide a reasonable amount of services without charge to those unable to pay, but allowed for the existence of “separate but equal” facilities for each racial group in a facility’s service area.

Following the Brown v. Board of Education Supreme Court decision in 1954, organizations, including the NAACP began meeting and held conferences on how to integrate hospitals.  Of course, resistance to the implementation of this decision was widespread and well known.  Efforts continued into the start of the Kennedy administration.  As a candidate, Senator Kennedy had promised to eliminate racial discrimination “with the stroke of a pen.”  According to Mr. Smith’s book, by 1962 President Kennedy was receiving thousands of pens sent to protest his failure to honor that promise to date.

Finally, after efforts to revise the Hill-Burton legislation in Congress, and to urge the Kennedy administration to take administrative actions were unsuccessful, in 1962 the NAACP filed a lawsuit in federal court in North Carolina alleging that the separate but equal provisions of the Hill Burton legislation are unconstitutional.  About 6 weeks after the suit was filed, President Kennedy informed integration advocates that the Attorney General would intervene in the suit on the side of the plaintiffs and urge the Court to find the separate but equal provisions of Hill-Burton to be unconstitutional.  The 4th Circuit ruled 3-2 for the Plaintiffs and in 1964 the Supreme Court refused to hear the hospital’s appeal, upholding the Circuit’s ruling that invalidated the offending provision.

Meanwhile, the Civil Rights Act that the Kennedy Administration proposed was languishing in Congress.  If approved it would prohibit discrimination by facilities receiving federal funds.  Civil rights protests and their violent suppression by law enforcement were occurring more frequently by 1963, with use of fire hoses and dogs against protesting children in Alabama in May.  On June 11, 1963, Governor Wallace stood in the doorway to block the entrance of black students, the National Guard was federalized, the students then enrolled.  That evening the President gave a televised address finally and formally proposing his civil rights legislation; that evening, Medgar Evers, NAACP field secretary in Mississippi was assassinated.  On August 28, Revered King gave his “I Have A Dream” speech before 200,000 people assembled at the Lincoln Memorial.  On September 15, 4 young girls were killed by a bomb while attending Sunday school in Birmingham.  President Kennedy was assassinated November 22.

President Johnson made passage of the Civil Rights Act a priority in a televised address to Congress and finally the congressional debate began.  As referenced in Mr. Smith’s book, one effort to derail the bill was the insertion of “sex” in Title VII of the Act prohibiting discrimination on the basis of gender in employment; rather than derail the bill the provision was included.  It passed the House and the historic Senate debate including the longest filibuster in history at 534 hours began.  The Civil Rights Act was signed into law on July 2, 1964.

Concurrently, Hill-Burton was extended for 5 years absent the separate but equal clause.  The Title VI implementing regulations were published on December 4.  They authorized the DHEW Public Health Service to investigate discrimination complaints against HEW funded facilities, including hospitals.  Complaints were filed but deliberate evasive action was common and enforcement questionable at best with the exact meaning of regulatory provisions debated, and few staff assigned to enforcement.

In 1965 the Johnson Administration introduced the Medicare program and made compliance with Title VI of the Civil Rights Act conditional for receipt of Medicare funding.  On July 30, 1965, President Johnson signed the Medicare bill into law at the Truman Library.  Still there was no agency dedicated to enforcement.  Volunteers filed complaints and checked procedures.   Only 4 hospitals, which had refused to sign compliance agreements with HEW, were denied Medicare funds.  Others signed the forms but clearly failed to comply with the law.

In January 1966, after HEW’s Education Division established the Office of Equal Educational Opportunity, HEW’s Public Health Service established the Office of Equal Health Opportunity to enforce compliance.  DHEW also had an assistant secretary for Civil Rights, but the intention was that enforcement would be embedded in each program through the operating divisions administered by the 9 regional offices, for example Medicare. 

This was partly done to evade Congressional oversight by dispersing the money into the various divisions and programs rather than centralizing it in one location where would be easy for Congress to limit funds used for enforcement. 

On March 4, 1966, PHS issued compliance guidelines and assurance of compliance forms to some 800,000 hospitals in the US receiving Medicare funds.  The guidelines required strict and total integration of patients and staff.  The 10 staff assigned to enforcement were augmented by 750 staff who were voluntarily reassigned.  OEHO was in charge of enforcement and OCR in the Secretary’s office was coordinating the efforts.  The successful effort of these volunteers is itself a riveting story worthy of a movie.  80% of hospitals were found to be in compliance.  Medicare was implemented effective July 1, 1966.

Of course, enforcement then centered on the stragglers and outright defiance occurred.  On January 1, 1967, Medicare went into effect in nursing home but only a small percentage of patients were supported by Medicare.  Physician staffing was another issue. 

Inevitably congressional appropriations committees reviewed the budget for civil rights enforcement and some members targeted the funds as a way to reduce enforcement.  Studies were conducted regarding reorganization and centralization stalled for a time.  Even some progressives debated whether underserved persons were better served through program improvement or civil rights enforcement.  These debates over funding of enforcement efforts and between program improvement and enforcement continue to this day and will never end.  In fact, at times HCFA and CMS have resisted OCR efforts at enforcement for fear of reducing services overall. 

The Johnson Administration was weakened and distracted by the political realities of the times.  An effort was made to assign enforcement to the Department of Justice.  In his book, Mr. Smith stated “Title VI had become the pariah of the executive branch, isolated as an orphan that nobody wanted.”  The reorganization of Title VI enforcement into the newly formed Office for Civil Rights became effective in January 1969. 

HEW Secretary Finch was nominated and confirmed.  Leon Panetta, at the time a Republican employed on the staff of Senator Kuchel of California became the first OCR Director.  Less than a year later, Mr. Panetta read about his resignation in the newspaper, of which neither he nor the Secretary were aware at the time they read it.  125 OCR employees signed a letter of protest.  1,800 HEW employees signed a petition requesting a meeting with the Secretary to discuss civil rights enforcement.  Finch was removed 3 weeks later. 

The Rehabilitation Act of 1973 prohibiting discrimination on the basis of handicap was passed and signed into law.  I started working for the government in 1974, first as a mail clerk in the US Department of Agriculture office in Berkeley and later as a clerk for the Government Printing Office bookstore in San Francisco.

In 1977, after national protests including handicapped protestors chaining themselves to the Federal HEW Building in San Francisco, the implementing regulations for the Rehab Act were published and issued.  A law cannot be enforced without implementing regulations.  I joined HEW OCR in the fall of 1978, after OCR had expanded in order to enforce Section 504 of the Rehabilitation Act of 1973.  OCR had an Upward Mobility program at the time.  Some of the protestors had been hired as investigators. 

The rest of my career is covered in the Retirement post save for some interesting stories of cases involving the Hill Burton Act and some early HIV complaints.  I can add them here another time.  In addition, I am waiting for OCR to complete its enforcement efforts, still in process, 7 years after a complaint was filed alleging denial of surgery due to HIV, before I describe that one.  OCR can be credited for perseverance, if not speed.

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RETIREMENT

REFLECTIONS  … I Am Beginning to See the Light

by Brock S. Evans, November 17, 2012 

I am not one who is a genius at writing clever relevant and witty lyrics to music created by others.  Only Karrin Allyson is as good at that or better and she makes a living at it.  It seemed apt that the latter song referenced above started playing as I was writing (way down) below about going from the darkness into the light.  Another song I have been listening to much lately after attending a show by a performer who performed this song in earlier shows (Barbara Cook) that has been on my mind is by Cy Fields and Dorothy Fields:

It’s not where you start
It’s where you finish
It’s not how you go
It’s how you land
……
You start at the top
You are certain to drop
You got to watch your timing
….
If you are going to last
You can’t make it fast
Nobody starts a winner
Give me a slow beginner

That shoe seems to fit.  The fortunate ones among you have been spared my first 2 messages in this series of 3, all based on song titles:  [I got the retirement] FEVER (Peggy Lee); FOUND THE CURE [retirement] (Ashford & Simpson); and now, REFLECTIONS (Holland/Dozier/ Holland)/I AM BEGINNING TO SEE THE LIGHT (George/Ellington/Hodges/James).  And before I go any further, let me just say that I have learned that to write is joy and fulfillment for me, reading by others is not required. 

After 38 years and 56 days, including about 34 years with OCR at HEW, ED, and HHS, I am transitioning to a new phase of my life.  Transitioning sounds so much better and accurate than retiring.  I remember dreading the thought of retiring for many years.  But I got over it, and if you are one of those people you will too.  My other fear was “staying too long at the fair” as the saying goes.  Believe me, when the time comes, you will know it and feel it and own it.  Perhaps I did stay a few minutes too long, but that has given me the reassurance that I stayed long enough and I did all I could.

I found it difficult to just say good-bye, thanks for the memories and the support.  I wanted to mention some highlights.  Every time I edited it to make it shorter it got longer.  Brevity was never my style.  I have a quote on my wall “History is a choice, not an accident” for which I failed to include the source.  They say it depends on who writes it.  So here is my history as I remember and felt it from my perspective for what it may be worth to others that describes my career and history at OCR, my thoughts and reflections on AIDS as a legal issue and my efforts on behalf of OCR while dealing with the impact of AIDS on my close friends and loved ones, my final thoughts as an OCR employee regarding expectations with respect to AIDS, my hopes for OCR, and my future activities now that I am no longer a federal employee. 

I have worked since I was 16, though not quite self supporting until a few years later, but it is still difficult to fathom that every month I will receive an annuity and that my time will be my own.  And for that I am very grateful. 

It wasn’t like I started out with a plan to choose a job and stick with it this long.  But when I found OCR I felt like I had found what I had been looking for during my entire life of 22 years.  I cannot possibly tell you all of the unforgettable moments.  One moment that I continue to be mindful of was the remarks by the closing inspirational speaker at a conference of the Asian Pacific Islander Health Forum many years ago in the SF Bay Area.  He said that many of us know something of our destiny or talents or passion at an early age.  His example was taking his 2 young sons to a baseball game.  One did not want to go, but after much discussion the family made the decision that all 3 would go.  One child had a grand time; the other not so much.  But that night after family quiet time, that child presented him with a drawing that was an exact replica of the stadium.  So his dad saw the seeds of a career in architecture or engineering, or art.

For me, it started out as counting peas at the dinner table.  If I had to eat seven peas, then so too should each one of my four brothers.  And much to the consternation of my family, my devotion to principles of fairness and equality was not limited to the dinner table.  Then there was my 7-year-old mind’s misinterpretation of religious classes; I wondered if heaven had a discriminatory admission policy based on religious affiliation.  Fortunately I did not know about OCR then!  But you can imagine the questions I asked and parental nightmares I caused.  Equality and fairness were important to me before I learned the concepts of treating and accepting individuality.  Kind of reminds me of a point I perceived JI tried to make in pointing out the difference between Title VI requirements to treat everyone equally and Section 504 and the ADA’s requirements to accommodate unique characteristics due to disability. 

My parents were both involved in volunteer activities, mostly through their church, and among my brothers, I was always drawn to that and this sense of social justice and helping those in need as well as the concepts of equality and fairness from my own interpretation of religion and civics. 

For reasons too complex and personal to explain here I did not finish college or attend law school as desired.  But OCR had an upward mobility program.  And I guess I tested and interviewed well as before I knew it divisions were discussing whose turn it was to get the next “good” applicant, me of all people.  Those were the days when we were excited to get IBM self-correcting typewriters, documents had to be typed with 3 carbon copies, white out was treasured.  Clerks and secretaries typed documents, completed timecards, planned travel, prepared travel orders and vouchers, and so much more.

I paid attention, listened, read, learned, and lunched with the smart ones who wrote the best documents.  It seemed serendipitous that I ended up with HHS.  I surmised it is good for an EOS to be knowledgeable on all issues and regulations but to develop special expertise on one or two.  Language access as we call it these days was my first passion. 

I worked for every Regional Manager in Region IX.  Floyd L. Pierce, the first Regional Director at HEW OCR was a most inspirational leader who carried with him a direct link to the civil rights movement which resulted in many of the laws we enforce, either directly or indirectly.  It wasn’t until his memorial service that I learned that in addition to his exemplary leadership and dedication to duty he was also actively volunteering in his church which was building housing for low-income elderly persons. 

As each generation moves further from those who were here at the beginning of OCR and its predecessor agency, I wonder about the capacity to fulfill what I perceived as something like a grand bargain – civil rights laws enforced by government agencies such as OCR allowed allegations of discrimination to be investigated and resolved or remedied without the alleged injured parties having to hire legal representation and assume court costs.  

The process of cleaning out my office triggered so much reflection.  I believed I had processed actions as they occurred and I did.  But I think what really hit me looking back was how AIDS affected and informed the most productive and substantive period of my career.  Even now I am unable to articulate in words this intersection of my personal and professional life through this epidemic and all that resulted:  death, life, joy, pain, growth, destruction, hate, love, discrimination and stigma, and an entire field of law.   There is something inside me about this that may one day come out in words.  Until then, I refer you to “Angels in America.”

So I am left to remember some moments, some of which were in fact moments and some of which seemed as if they would never end.  The 1980s were OCR’s most difficult period.  Lean budgets depleted staff and resources.  Staff were demoralized and enforcement seemed rare or nonexistent.  Hal Freeman succeeded Floyd as Regional Manager. 

From a slow realization to a rapidly developing epidemic came something we now refer to as AIDS.  Stigmatization and discrimination were rampant while research and treatment were sparse.  After exhausting extensive efforts to convince OCR that AIDS is a disability covered by the Rehabilitation Act which prohibited discrimination based on handicap, Hal publicly resigned.  And then he really went to work.  Coordinating with former high level officials and civil rights advocates devoted to addressing a wide range of discriminatory bases, a Congressional hearing was held.  I ended up with 2 copies of the published hearing, one of which I donated to the library at the Williams Institute at UCLA School of Law.  Oh how I wish this could be copied and scanned into an electronic format for study by future generations and now I fear another volunteer project coming up in addition to those I will reference later. 

While the hearing focused on whether OCR was effectively enforcing laws prohibiting discrimination under every basis in our jurisdiction, a central focus and most stimulating discussion was the concept of whether actions or omissions due to fear of contagion were legitimate and not discriminatory, as espoused by the Assistant Attorney General for Civil Rights (Charles Cooper) or whether as Congressman Barney Frank so eloquently asserted to devastating effect, the law applied without exception as specified in the implementing regulation and its concurrent definitions.  It seems to me that this debate informed the provisions of the American with Disabilities Act that followed and the Supreme Court’s Arline decision that upheld it. 

Meanwhile, the beautiful city of hills that many thought of as a shining Oz or paradise was immersed in a darkness from which hope and light could not be seen.  I don’t believe in dwelling on the dark periods but neither should we forget those difficult moments that have led us back out into the light.  Death seemed to be everywhere and frequent.  OCR lost so many and my world outside OCR was no better.   One OCR EOS I would like to remember is Mel Kynard, whose wit was so sharp he was said to have a tongue sharpener in the roof of his mouth; maybe that was Mel who said that. 

Many people had to make dreadful decisions now that long life no longer seemed guaranteed.  Stay and watch my roommate pass or leave and participate in my brother’s wedding.   I didn’t need to read that AIDS was not restricted by race or ethnicity because I saw my friends of all backgrounds affected; I learned about wasting syndrome when well meaning folks had a dinner party for my roommate and my mother’s lasagna had lost its magic and could not be eaten by the honoree, and the associated emotional impact on all; I knew that gay men of color got sicker faster as I watched my boyfriend, my roommate, another boyfriend…  

I knew about the ravages of pneumocystis as Hal Freeman seemed to set a new record of surviving 7 hospital admissions for it before succumbing.  The AIDS Coordinator I had been assisting and who was trying to blaze a trail of legal documentation left for a better position (perhaps the only gay man in that period to leave OCR alive-well actually Hal survived for awhile, long enough to have an impact).  The legal concept that discrimination based on HIV status was prohibited by the Rehabilitation Act was gaining legitimacy, in large part but not only because of the Congressional hearings, but who was left to pursue the potential cases I knew from experience were out there. 

I remember the first AIDS Update Conference sponsored by the SFDPH barely a week after my roommate’s passing.  I didn’t have to go but if not would anyone from OCR attend?  I went expecting to be overcome by sadness but instead I found hope and light – thousands of people, well maybe it was only hundreds then but it seemed like a million to me – researchers, social workers, scientists, advocates, from all backgrounds, areas, and fields of study - all working and meeting together trying to find solutions, answers, trying to make the world a better place.  I was hooked from that moment on and I never let go.  That communal sharing of responsibility and resolve – and the reinforcement provided by each succeeding conference – fueled me to persevere through each obstacle or challenge that followed.

Administrations changed; OCR accepted and investigated complaints alleging HIV discrimination and included the issue in compliance reviews.  Outcomes may have varied during that period.  More effective medications were discovered and made available, and the deaths gradually seemed to slow with each pharmaceutical advance.  Stigmatization and discrimination seemed less obvious and more subtle.  There seemed to me to be a period when AIDS complaints were not as common.  But then they seemed to be on the rise again.  Looking back one could observe the cases were no longer about dying but about living; it was no longer so much about treatment of hospital inpatients, but a wider variety of issues:  access to dialysis, dentists, nursing homes, and more. 

OCR itself went through a period of recovery from problems emanating from those earlier years.  In Region IX, Ira Pollack brought stability, wisdom, leadership, consistent standards that perhaps I did not sufficiently recognize or appreciate at the time.  He has a quick and brilliant legal mind and was a grown up when one was sorely needed.  So eventually morale increased and his skills led to a more cohesive, larger, and dedicated staff focused on our duties.  I was able to focus in part on complaints and compliance reviews that addressed the 2 issues that I remained most passionate about, language access and HIV discrimination.  Under Ira’s direction, I learned much about legal sufficiency, and an accurate analysis of particular regulatory requirements as applied to the actual evidence.  And writing this for the first time I wonder if OCR was my law school.

Another moment I have to mention about Ira is that he was there when needed, he acted quickly when necessary, and he didn’t waste time on meaningless bureaucratic formalities.  For example, one complaint I’ll never forget – I am not sure whether I have forgotten any of them – but there was this young woman who returned home to her disabled mother’s trailer in a small town in the mountains of Arizona that had 2 nursing homes, one of which was full.  Everyone in town knew she had AIDS.  Relatives were threatening to remove their family members and staff were threatening to quit.  Time was of the essence yet there was no supervisor or attorney available to accompany me on site.  Conducting a civil rights investigation solo in Arizona has always been contraindicated so to speak.

So Ira went with me in a rare instance of a Regional Manager participating in a single issue on-site.  I have to give credit to an enlightened administrator who held open forums with medical experts for patients, family members, employees and their families.  But credit is also due to Ira’s determination, on behalf of OCR, to cut through our process and conduct one of the quickest on-site visits I have seen.  The patient was admitted, and I understand staff and patients gave her a birthday party and added to her collection of stuffed animals.

After a period of decline, HIV discrimination cases seemed to increase rapidly again and many were quite blatant.  I sensed a populace that having life renewed through medication had the energy and resolve to assert and fight for their rights.  Many of these complaints came from Los Angeles County, to my initial shock. 

Tom Perez became OCR’s national Director and it wasn’t long before no one could again say they never heard of Tom Perez.  “If you want something done, give it to someone who is already busy.”  There was another one about people doing well at what they like because they care about it so much.  But more than slogans, Tom revitalized OCR and there seemed to be no obstacle he could not think of a way around. 

Can’t issue regulations specifying standards for prohibiting national origin discrimination and requiring equally effective communication?  Then issue policy guidance.  Can’t open additional regional offices?  Open field offices.  OCR’s never issued a press release before?  Then ask HHS and meanwhile obtain authority for OCR to do so and then he issued apparently the first press release by OCR.  It was an eloquent release on a significant precedent setting complaint filed by HALSA against Los Angeles County.  Tom was like a reverse hurricane that whooshed through every corner and region of OCR and put it back together, only better and than ever. 

Fortunately, Ira was still around to accept the complaint alleging that the LAPD, a local government agency, was in violation of Title II of the ADA for denying licenses to HIV+ massage therapists, a health-related occupation, because I was telling a certain local legal advocate that OCR never investigated the police before.  That one took almost 2 years to resolve.  And that was after I had experience with state government licensing boards for nurses. 

There were many other nursing home and dental cases alleging HIV-related discrimination and the complainants were as diverse as the statistics.  In addition, it seemed we were seeing a wider variety of issues, including denial of surgery cases, one of which remains open and is another example of OCR’s perseverance that one day you will all read about.  I know there are a couple of staff in R IX and HQ who are aware that it has taken me the length of the case to see OCR’s dedication in the positive light it deserves.

At this point, exact years and chronology become fuzzy.  In fact I think some accomplishments that OCR achieved may have occurred after he left but the transition was so seamless under the leadership of his acting successor I would have to research the history.  Tom held OCR’s first and only national all staff meeting in Maryland.  OCR conducted national staff training for representatives from all regions and headquarters on Racial and Ethnic Health Disparities in conjunction with a report from the Institute on Medicine and brought renewed focus on Title VI. 

There was a time I started wondering about whether other Regions were getting cases like the ones we were getting in Region IX.  At some point, it seemed I went on a national tour, almost like my idol Diana Ross.  But it turned out I wasn’t the only one wondering why OCR is sending me out of Region when we have 10 regional offices.  Good question.  Shouldn’t there be HIV experts in every regional office?  Turned out there were in many of them, but few knew outside of them.  Shouldn’t we be communicating on a national basis regarding HIV as well as we are on other issues? 

I still consider one of OCR’s finest moments the national staff training, again for regional and headquarters representatives, on HIV discrimination that resulted in consistent enforcement standards and legal analyses for all HIV related issue.  I would like to recognize RF and her staff among those whose sharp minds and focused questions contributed to this outstanding accomplishment. 

So my national touring came to an end and experienced staff and precedent setting cases in other Regions were recognized. Just because we don’t always accomplish all of our goals doesn’t mean we don’t strive to achieve as much as possible.  Somehow this seems to be the time I remember inter-regional national issue groups and conference calls; we were communicating again across regional boundaries and sharing common experiences and striving for common outcomes for every issue.  With all those meetings, who had time for cases?  So we learned that all good meetings have to end.

OCR opened an office in Los Angeles and 30 years after leaving the hometown I vowed never to return to there I was.  And before I knew it the LA Field Office opened language access compliance reviews at 4 hospitals in Phoenix after a non-English speaking teenager was repeatedly misdiagnosed and untreated.

Mike Kruley succeeded Ira and brought wisdom learned from his vast experience on many issues at many levels and from another Region.  But I have to say I will best remember him for his skilled talent at writing new lyrics for old songs, which is a talent I admire. 

I need to acknowledge the training skills and legal guidance of JI, regardless of whether any particular guidance was well received at the time.  It was always on target.  The one constant presence from my first day at OCR has been Deputy Regional Manager AA in R IX whose positive spirit, brilliant mind, commitment and dedication is always appreciated. 

I believe that under the leadership and dedication of Michael Leoz Region IX is in strong hands and will remain strong.  I think it is especially helpful that Michael has lived in 3 different and distinct areas in the largest state in our region and knows the territory well.

I will always remember the long standing dedication commitment and inspiration of so many staff at all levels in Region IX, and all of the Regions, and Headquarters but I want to especially mention the Regional Managers in Denver and Atlanta.  You don’t know how often I thought of moving but that would have brought the additional dilemma of deciding where to go.

I acknowledge the legal prowess and career-long dedication of SB whose effort resulted in precedent-setting cases that provided me with helpful references with respect to HIV discrimination, in particular on a denial of surgery case but I am sure as well on other cases known and unknown to me. 

I also acknowledge the accomplishments of KJ who provided much support from a key position in HQ and whose efforts resulted in OCR’s appearance at crucial conferences and events and whose work and knowledge on the issues and the law was also instrumental in improving, processing and approving closure documents as well as raising issues and educating staff within OCR

Throughout the last many years, the legal advocates from throughout the country who participate in the HIV/AIDS Legal Listserve have been a valuable source of knowledge, inspiration, and encouragement. 

I loved working for OCR through good times and bad, success and disappointment, frustration and success.  Despite my fear or concern that the length of this represents an ego run amok, on I go to discuss the future – mine and OCR’s. 

For OCR, I hope we, I guess it is not we anymore, that funding becomes available to once again conduct compliance reviews, most especially on language access, and outreach and technical assistance activities, especially on HIV.  On language access, I hear troubling anecdotes way too often, even with or especially at large facilities.  New technology has brought greater opportunity for the efficient provision of effective communication with persons who are LEP, and at least as equally great an opportunity for inaccurate communication with potentially grave consequences.

I understand OCR cannot create a budget anymore than it can grow money on a tree.  So even after years of thinking of this I see a problem or obstacle that troubles me greatly but for which I cannot offer any greater suggestion than willpower or do it.  Advocates fear that filing complaints will be ineffective and their clients fearful of signing complaint forms.  OCR has insufficient funding for compliance reviews.  Yet I believe the anecdotes are such that a review of LA County USC Medical Center and other county facilities would find that it is not compliant with Title VI as exampled in the LEP Guidance Memorandum.

Likewise I believe that too many skilled nursing facilities too often discriminatorily deny admission to otherwise qualified persons with HIV.  OCR has accomplished a lot on this issue with great success and increased access to skilled nursing beds for persons with HIV.  But I believe more could be done.  One idea is based on an activity that OCR conducted some 20 years ago at the suggestion of someone else which succeeded far beyond my expectations.  That was a ¾ day TA session with nursing home representatives, state and county licensing staff, OCR representatives, and legal advocates, all having a chance to present, listen and ask questions.  LA is too big to conduct this county wide but it could be done for the central and most critical part of the county and then adapted for other regions in the state.

I see the continued mainstreaming of HIV in the future, due to increased awareness, greater understanding, and health care reform.  I see the day coming when there are few separate medical or legal clinics or providers for persons with HIV; which is not to say specialized expertise will no longer be necessary but that more staff will have appropriate training.  And it doesn’t solely have to mean that HIV-related services close and longstanding medical and legal clinics absorb persons with HIV, but that it can work both ways.  And I know of no better examples of this than 2 highly successful clinics that started out as HIV service providers and have adapted to the times by reaching out to provide more diverse services to a diverse clientele than Whitman Walker in DC and the APAIT Clinic right here in Los Angeles. 

I read recently that even if HIV prevention increases, there remain too many people living with HIV and potentially subject to discrimination.  A cure is not going to happen tomorrow, but we can always hope for the day after that, or next week, or next year, or…

Meanwhile, here are links to 2 studies that I find very troubling:


Racial Disparities in HIV Treatment Adherence Still A Major Issue in U. S. 

In reviewing the NMAC web site I found some very timely presentations of interest from their recent national conference. 


The presentations I found of most interest are:

Treatment as Prevention (2nd from top)

The last 3:

-          HIV and Aging
-          Where We Are … Access to Care Crisis
-          Patient Protection and Affordable Care Act

Maybe someone noted I did not mention HIPAA.  You can’t wish for me to go on any longer.  I wonder if it is too huge for OCR and worry at the lack of resources to focus on enforcing the civil rights laws for which OCR was founded. 

One disappointment, not OCR’s fault, is that there appears to be no prospect in the near future for federal legislation to explicitly prohibit discrimination based on sexual orientation in services and employment.  Ironic that I had expected that legislation to be approved by now, but not that long ago I would have never imagined this successful movement toward acceptance of legal same sex marriage, which I now see being adopted in my lifetime.  Still not so sure about ENDA though.  I am gratified that under the Affordable Care Act OCR is attempting to assert jurisdiction with respect to sexual orientation and that thanks to some court rulings and the Administration’s proactive efforts, the ACA seems to give OCR jurisdiction to protect persons who are transgender from discrimination.  I never could have predicted that either.  But since we – oops again – OCR has that jurisdiction, there seems to be much “low hanging fruit” to look at – I would suggest substance abuse treatment centers and other clinics and health care facilities, and while looking at a substance abuse treatment center, ironically enough, I have heard anecdotal reports of HIV related discrimination in such entities but am not aware we have received such complaints.

For me, I have volunteer projects lined up related to my most passionate interests, one related to HIV discrimination with the UCLA School of Law, and one with respect to privacy rights for persons with HIV and women with cancer for the LA County Bar Association in association with a local disability rights group.  In addition I recently learned of a new organization I am interested in helping that hopes to address language access from a holistic community wide approach.   There are a couple of other ideas germinating as well, perhaps including a tutoring project, to consider after the first of the year.

I also hope to establish my very own blog, in which in addition to the following, I may address my thoughts on this newly rediscovered positive spirit, energy, and enthusiasm to do “stuff” that had seemed to slowly ebb from me through the years.  The short answer is time, I now have time for me.  I found I miss writing and that I love to write and now that I will be free of government control and without an editor (scary), I can write anything I want.  I realized it doesn’t much matter to me whether anyone reads it; the writing is therapeutic and provides much satisfaction.  So if you are curious feel free to google me and see if it pops up and if I was successful navigating the still mysterious to me viral world.  My initial plan is that it will range from the serious to the fun to the silly, encompassing but not necessarily limited to musings on social justice, cultural issues, my life and work experiences, original poetry, essays and/or reviews on jazz and popular music, and my peculiar fascination with Diana Ross.  (One of my first essays will be on how a Diana Ross performance is like one by Barbara Cook, something that I don’t think has ever occurred to anyone else).

In addition I will be working on landscaping my 5,000 square foot yard over the long term, finalizing the gravity based irrigation ditches I have dug, mulching the dozens of roses front and back, and tending to the 10+ fruit trees that were already here.  2 different tangerines, a mandarin orange, a grapefruit and a purple table grape tree and the banana have already been producing fruit.  The lime and pineapple guava are already starting. I was told the pineapple guava makes great jam, goes well with cheese and crackers for New Years, and I just found out Mom kept her canning jars from years ago.  And we all know what goes with limes.  It can be hazardous though as when I followed directions and shook the guava tree at the first sight of fruit on the ground and the biggest one fell right on my head.  Hoping the peaches are bigger next year and don’t know what’s up with the persimmon but now I have time to find out. 

But my first priority will always be Beau, the 14 year old boxer on the left, and Haley, the 5 year old shepherd on the right, who went searching and found her own home.  There’s a children’s fable in there somewhere that I may develop in addition to a longer piece on my life and work experiences over the long term.  Be well and blessings and best wishes to all of you, especially the 7 people who actually read the whole thing J  Feel free to contact me at: 


Brock Evans

323-255-1736






Look who I found when I googled Karrin Allyson’s web site:




And now for one last diatribe/rant regarding a matter that has been a pet peeve for close to 38 years. 

I am just coming out of a period of listening to a lot of Karrin Allyson, mostly her “Footprints” for introspection and “Imagina” for joy, happened to be viewing her website for the first time, and look who I found her with!  Taken at the Topeka Jazz Festival, when our Secretary was Governor, year not mentioned.  And let me add my musical interests are broad within the fields of jazz vocalists, and rhythm and blues and am a rabid fan now also of Cassandra Wilson after seeing her perform live last year for the first time.

Every time I try to edit this it just gets longer so this has to be the last time I open this up.  I was doing the dishes and thinking about why posting this photo is important to me.  It is my antidote to 38 years of suffering through the misplaced glorification of professional sports at countless official meetings.  We need more photos of dignitaries and officials with artists and less with professional athletes.  And before I go off let me pay tribute to my brother, his wife, and family who have devoted their careers to high school education, about the most challenging and important field out there.  So I want to distinguish from the healthy activity of high school students involved in whatever variety of academic and athletic activities interest them.  Nothing wrong with pursuing any kind of talent. 

But I believe there needs to be an end in the professional workplace including meetings and teleconferences to any references whatsoever to professional athletics particularly its glorification which I find so offensive on so many levels.  First of all, as a gay man, I cringe with utter disgust and offense at any reference to a field that remains rife with homophobia and in which there is never more than one or two active openly gay athletes, managers, trainers, owners, etc.  In fact I can’t think of any.  I consider each and every reference a hostile open and offensive personal attack against me!  And it is full of misogyny.  References by female executives are no better.  In addition, do you ever think of the example you are setting in holding up as role models a field in which financial success comes to the few rather than the many, where chances of permanent disabling injury must be at least as great as financial success, and where the injured and disabled are shunted aside, sent out to pasture and neglected to a life of debilitating injuries with inadequate care? 

So the next time someone wants to make a reference to last night’s ball game, why don’t you instead reference a recent artistic performance at the White House or Kennedy Center.  Or a recent art exhibit opening at a museum?  How about the upcoming Supremes Collection at the African American Museum in Philadelphia that pays tribute to 3 young women who found dignity and success through popular music and served as role models for generations of women at a level unseen up to that time?  I am sure there are many staff of all races genders and orientations that can think of some positive artistic or theatrical performance or event, likely even more enlightening than the aforementioned exhibit which I referenced only because I happened to hear about it.  Or any performance, event, opening, or exhibit that showcases any form of creative artistic talent that does not denigrate anyone based on race, color, national origin, disability, age, sex, sexual orientation, or gender status?  Or ask about recent accomplishments of your staff or colleagues’ children in high school or college sports or theater or military academy or ROTC program or the glee club or the chess club.  Imagine the camaraderie and morale that would boost at no one’s expense. 

So finally after all these years I am free to say it and you are free to ignore it but I request for the sake of others not one more word in one more official setting about professional sports, at least not until participation is open to all and not restricted either blatantly or subtly based on sexual orientation or gender, until the public is educated about the true and accurate benefits, costs, and risks, and until we stop deluding our children into thinking that athletic talent is more likely to lead to a satisfactory fulfilling and financially rewarding life than academic talent or success.  If any agency should be better aware and more thoughtful of these matters it seems to me it should be HHS.

And yes I know about AIDS nights and all kind of other nights at professional sporting events but at least those try to enlighten and educate and destigmatize, however much I may wish such groups that receive needed funding should be asking for so much more in terms of recognition.

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