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Resolution Agreement

Between the

U.S. Department of Health and Human Services

Office for Civil Rights

and

Hurley Medical Center

OCR Transaction Number: 13-156114

I. Introduction

This Resolution Agreement (Agreement) is entered into by the U.S. Department of Health and Human Services (HHS), Office for Civil Rights (OCR), and Hurley Medical Center (Hurley), a public safety net hospital and medical center which provides roughly two-thirds of all uncompensated medical care in the Flint, Michigan area.  This Agreement resolves OCR transaction number 13-156114, a compliance review opened on February 27, 2013, in response to media reports about Hurley’s alleged discriminatory assignment of nurses in Hurley’s Neo-Natal Intensive Care Unit (NICU) in response to a request by the father of a baby patient, beginning October 31, 2012.

OCR conducted an investigation to determine Hurley’s compliance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d, and its implementing regulation, 45 C.F.R. Part 80 and 81 (collectively, “Title VI”), in Hurley’s assignment of hospital employees to care for patients.  OCR’s investigation revealed that on the evening of October 31, 2012, Hurley re-assigned an African-American nurse who was providing care to a Caucasian infant in the NICU based on the father’s request that no African-Americans provide care to his child. Hurley staff members indicated that prior to this request, the father had discussed his prison record with them and made racist remarks regarding African-Americans. Hurley staff members also indicated that they observed a swastika tattoo on the father’s arm. In light of the father’s comments about his prison record and African-Americans and the swastika on his arm, Hurley staff stated that they had concerns for the NICU nurses’ safety if the father’s request was not granted. OCR’s investigation further revealed that on November 1, 2012, around 3:30 p.m., a written note was placed on the NICU nurses’ patient assignment sheet that stated, “Please no African American nurses to care for [name redacted] baby per Dad’s request Thank You.” The written note was removed from the assignment sheet around 5 p.m. on the same afternoon, once Hurley’s Vice President General Counsel informed the staff, the father’s request could not be granted.

Hurley cooperated with OCR throughout its investigation. Hurley confirmed that the written note was placed on the NICU patient assignment sheet for a brief period of time on November 1, 2012. Hurley also stated that it did not have a specific policy or procedure in place as of November 1, 2012, governing how staff should respond to patient requests for staff or room assignments based upon race. Since OCR opened its compliance review, Hurley has either enacted new policies and procedures or modified existing policies and procedures that address the issues raised in OCR’s review, (collectively “Nondiscrimination Policies and Procedures”). OCR reviewed Hurley’s Nondiscrimination Policies and Procedures and approved them prior to the execution of this Agreement.

Assigning staff on the basis of a patient’s racial preference or on the basis of the racial preference of the parent of a minor child or other family member who is authorized to act as a decision maker for a patient violates Title VI. See November 1969 OCR Guidelines for Compliance of Hospitals with Title VI of the Civil Rights Act of 1964, which is attached hereto as Exhibit A.

The United States Equal Employment Opportunity Commission (EEOC) also conducted an investigation of the events of October 31 and November 1, 2012 at Hurley, in response to an employment discrimination complaint filed by Tonya Battle, a Hurley nurse, on November 6, 2012, alleging that Hurley’s discriminatory assignment of African-American nurses in the NICU constituted employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et seq. and its implementing regulations (Title VII). As a result of its investigation, the EEOC determined that “reasonable cause” existed to find that Hurley had engaged in discriminatory conduct, but that in accordance with the EEOC’s customary practice of making “efforts to conciliate the discriminatory issues which gave rise to the initial charge,” i it entered into a Conciliation Agreement with Hurley in September 2013, ii resolving the Title VII discrimination issues through Hurley’s voluntary corrective actions.

II. Parties to the Agreement

  1. OCR; and
  2. Hurleyiii.

III. Jurisdiction

OCR is the HHS office charged with enforcing civil rights laws as they pertain to programs funded by HHS, and so has jurisdiction over this compliance review under Title VI. Title VI prohibits discrimination on the basis of race, color and national origin in the administration of any program or activity receiving Federal financial assistance (FFA). Hurley receives FFA from HHS in the form of Medicare Part A payments.

IV. Purpose of this agreement

To resolve these matters expeditiously and without the further burden or expense of administrative action or litigation, Hurley agrees to the terms stipulated in this Agreement and to adhere in all respects to Title VI. The promises, obligations, or other terms and conditions set forth in this Agreement constitute the exchange of valuable consideration between Hurley and OCR. The actions described in this Agreement fully address the issues that were raised and investigated in the compliance review. This Agreement shall not be construed as an admission or as evidence of any violation of any law or regulation or of any liability or wrongdoing on the part of Hurley.

V. Definitions

For purposes of this Agreement, the terms listed below shall have the following meaning:

A. Patient

Any individual who is seeking or receiving health care services, including in-patient or outpatient treatment and consultations.

B. Family Member and Companion

A person who is one of the following: (a) a person whom the Patient designates to communicate with Hurley on his or her behalf regarding the Patient’s condition or care or to help the Patient act on the information, advice or instructions provided by Hurley Staff; (b) a person legally authorized to make health care decisions on behalf of the Patient, such as a parent of a minor child or the holder of a power of attorney for health care; or (c) such other person with whom Hurley Staff would ordinarily and regularly communicate regarding the Patient’s medical condition.

C. Title VI Coordinator

The individual designated by Hurley management to coordinate Hurley’s efforts to comply with and carry out its Title VI responsibilities.

D. Hurley Staff

All Hurley employees, as well as contractors working with Hurley, including, without limitation, nurses, physicians, social workers, technicians, dieticians, and all volunteers, who have or are likely to have direct contact with Patients and Family Members and Companions as defined herein. The term also includes all physicians or other health care professionals who have medical staff privileges that permit them to see or treat Patients at Hurley facilities.

VI. General Obligation

Pursuant to Title VI, no person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be subjected to discrimination in the administration of any program or activity receiving FFA.

In addition, in 1969 OCR issued Guidance to hospitals that receive FFA, such as Medicare Part A, regarding appropriate means of compliance with Title VI. The Guidance is titled “Guidelines for Compliance of Hospitals with Title VI of the Civil Rights Act of 1964.” OCR makes clear in the Guidance that non-discrimination extends to all activities affecting the care and treatment of patients. In particular, the Guidance states:

Hospitals which are in compliance with Title VI of the Civil Rights Act are characterized by an absence of separation, discrimination or other distinction on the basis of race, color, or national origin in any activity conducted by, for, or in the institution affecting the care and treatment of patients.

Compliance with Title VI requires adherence to the following policies and practices: ....

3. Services and Physical Facilities Provided by the Hospital….

e. Assignment of staff to patients is not governed by the race, color, or national origin of either patient or staff.

The Guidance is attached to this Agreement as Attachment A and all of its terms are incorporated herein.

VII. General Provisions

A. Facilities Covered by the Agreement

This Agreement covers all Hurley facilities that provide patient treatment services and receive FFA from HHS.

B. Effective Date and Term of the Agreement

This Agreement shall become effective on the last date upon which the Agreement is signed by either party (the “Effective Date”) and shall remain in effect for twenty-four (24) months after the Effective Date (the “Term”). At such time, if OCR determines that Hurley has completed all actions required of it by the Agreement and has demonstrated to OCR’s satisfaction an ability to sustain compliance, OCR’s review and monitoring of this Agreement shall terminate. Notwithstanding the Term of this Agreement, Hurley acknowledges that it shall comply with Title VI in all respects for so long as it continues to receive FFA.

C. Failure to Comply with the Agreement

Throughout the Term of this Agreement, if at any time OCR determines that Hurley has failed to comply with any provision of this Agreement, OCR shall notify Hurley in writing (Notice Letter). The Notice Letter shall include a statement of the provisions with which Hurley has failed to comply and the factual basis for OCR’s determination and shall allow Hurley fifteen (15) calendar days to either: (a) describe the remedial actions that Hurley has taken to achieve compliance with this Agreement; or (b) dispute the accuracy of OCR’s findings. In the Notice Letter to Hurley, OCR may shorten the 15-day period if it determines that a delay would result in irreparable injury to affected parties. If Hurley does not respond to the Notice Letter, or if, upon review of Hurley’s response, OCR determines that Hurley has not complied with the provisions of this Agreement or taken sufficient corrective action to comply with the provisions of this Agreement, OCR may unilaterally terminate this Agreement and take any action authorized by law to secure compliance with Title VI, including but not limited to: (a) referring the matter to the U.S. Department of Justice; (b) taking steps to suspend, terminate, refuse to grant or continue FFA to Hurley; or (c) commencing an investigation(s) of Hurley, as OCR deems appropriate.

D. Effect on Other Compliance Matters

The terms of this Agreement do not apply to any other issues, investigations, reviews, or complaints of discrimination that are unrelated to the subject matter of this Agreement and that may be pending before OCR or any other Federal agency.This Agreement does not preclude OCR from conducting future compliance reviews of Hurley orfrom conducting investigations of complaints filed against Hurley that are received after the Effective Date of this Agreement. Nothing in this Agreement shall be construed to limit or restrict OCR’s statutory and regulatory authority to conduct compliance reviews or complaint investigations.

E. Prohibition Against Retaliation and Intimidation

Hurley shall not retaliate, intimidate, threaten, coerce or discriminate against any person who has filed a complaint or who has assisted or participated in the investigation of any matter addressed in this Agreement.

F. OCR’s Review of Hurley’s Compliance with the Agreement

At any time, OCR may review Hurley’s compliance with this Agreement. As part of such review, OCR may interview witnesses, examine and copy documents, and require Hurley to provide written reports and permit inspection of Hurley facilities and services. Throughout the term of this Agreement, Hurley shall retain records required by OCR to assess Hurley’s compliance with the Agreement and shall submit the requested records to OCR. OCR will maintain the confidentiality of all documents, files and records received from Hurley and will not disclose their contents, except when necessary in formal enforcement proceedings or when otherwise required or allowed by law.

G. Technical Assistance

OCR agrees to provide appropriate technical assistance to Hurley regarding its compliance with this Agreement, as requested and as reasonably necessary.

H. Non-Waiver Provision

Failure by OCR to enforce this entire Agreement or any provision thereof with respect to any deadline or any other provision shall not be construed as a waiver of OCR’s right to enforce other deadlines or any provisions of this Agreement.

I. Entire Agreement

This Agreement constitutes the entire understanding between Hurley and OCR in resolution of OCR Transaction Number 13-156114. Any statement, promise or agreement not contained herein shall not be enforceable through this Agreement.

J. Modification to Agreement

This Agreement may be modified by mutual agreement of the parties in writing.

K. Effect of Hurley Program Changes

Hurley reserves the right to change or modify its programs, so long as Hurley ensures compliance with Title VI and other applicable Federal statutes and the provisions of this Agreement. Significant program changes that may affect compliance with this Agreement or any applicable statutes and regulations within OCR’s jurisdiction must be promptly reported to OCR.

L. Publication or Release of Agreement

OCR may be required to release this Agreement and all related materials to any person upon request, consistent with the requirements of the Freedom of Information Act, 5 U.S.C. § 522, and its implementing regulation, 45 C.F.R. Part 5 and other laws, as applicable. In addition, OCR has the right, in its discretion, to publish this Agreement.

M. Authority of Signer

The individual(s) who sign this document on behalf of Hurley represents that he or she is authorized to bind Hurley to this Agreement. This Agreement may be signed in counterparts.

N. Third Party Rights

This Agreement can only be enforced by the parties to this Agreement, their legal representatives, and assigns. This Agreement shall be unenforceable by third parties and shall not be construed to create third party beneficiary rights.

O. Miscellaneous

When OCR verifies that Hurley has completed all actions contained in this Agreement, OCR shall consider all matters related to this investigation resolved and so notify Hurley in writing.

VIII. Specific Obligations

A. Non-Discrimination

Hurley shall provide all Patients with the full and equal enjoyment of the services, privileges, facilities, accommodations, and benefits of Hurley, as required by Title VI.

B. Title VI Coordinator

Within ten (10) calendar days of the Effective Date of this Agreement, Hurley shall designate an individual to be responsible for its overall compliance with this Agreement and the coordination of its system-wide efforts to comply with Title VI. Hurley shall establish a unique email address by which Patients, Family Members and Companions, members of the Hurley Staff, and other interested individuals in the general public may contact the Title VI Coordinator. The Title VI Coordinator and his or her designee(s) shall be available to answer questions and provide appropriate assistance to Hurley Staff regarding their obligations under this Agreement and to Patients, Family Members and Companions, and the public. The Title VI Coordinator shall also be in charge of processing any Title VI grievances received by Hurley. The Title VI Coordinator may also designate other members of Hurley Staff to assist the Coordinator in processing such grievances.

C. Compliance with Nondiscrimination Policies and Procedures

Hurley shall comply fully and in all respects with its Nondiscrimination Policies and Procedures throughout the Term of this Agreement. During the Term of this Agreement, Hurley shall not put into effect any modification of its Nondiscrimination Policies and Procedures, without first submitting the proposed modification to OCR for its review and approval or rejection. Only upon OCR’s approval, may Hurley implement a modification of any of its Nondiscrimination Policies and Procedures during the Term of this Agreement.

D. Notification of Non-Discrimination Policies and Procedures

Within thirty (30) calendar days of the Effective Date of this Agreement and continually thereafter, Hurley’s Title VI Coordinator and his or her designee(s) shall be available to assist interested persons in filing Title VI or other claims of discrimination with Hurley.

Hurley shall take all appropriate steps to notify Hurley Staff, Patients, Family Members, Companions, and interested persons of the information contained in the Non-Discrimination Policies and Procedures. This information shall be communicated as follows:

      1. Within thirty (30) calendar days of the Effective Date of this Agreement, Hurley shall post copies of the Non-Discrimination Policies and Procedures of conspicuous size and print in visible locations in all Hurley facilities. This document shall include contact information for the Title VI Coordinator.
      1. Within thirty (30) calendar days of the Effective Date of this Agreement, Hurley shall publish in its Admissions Kits, and on its website, Non-Discrimination Policies and Procedures in its entirety. This document shall direct individuals with claims of discrimination to contact the Title VI Coordinator at a specified telephone number, physical address, or unique email address will be provided in the policies.
      2. Hurley’s Title VI Coordinator shall be responsible for maintaining and providing copies of the Non-Discrimination Policies and Procedures to interested persons.

E. Ensuring Compliance of Healthcare Professionals

To the extent that physicians and other healthcare professionals with medical staff privileges have direct contact with Patients or Family Members and Companions, Hurley shall be responsible for ensuring their compliance with Title VI, with all of the Nondiscrimination Policies and Procedures, and with all of the requirements of this Agreement.

IX. Training

A. Training of the Title VI Coordinator

Within thirty (30) calendar days of the Effective Date of this Agreement, Hurley shall ensure that the Title VI Coordinator and his or her designee(s) receive all appropriate and necessary training on their responsibilities under this Agreement, the Nondiscrimination Policies and Procedures, and the requirements of Title VI. Hurley may conduct the training required by this Section as a supplement to, and in conjunction with, the Title VII staff training it is required to conduct pursuant to its September 2013 Conciliation Agreement with the EEOC, so long as the training occurs within the time frame required by this Section.

B. Training of Hurley Staff

Within one-hundred twenty (120) calendar days of the Effective Date of this Agreement, the Title VI Coordinator shall provide training to all available Hurley Staff on Hurley’s obligations under Title VI and the Nondiscrimination Policies and Procedures. In addition, Hurley shall provide refresher training on the above referenced obligations within 365 days of the initial training required pursuant to this Agreement. Hurley may conduct both trainings required by this Section as supplements to, and in conjunction with, the Title VII staff trainings it is required to conduct pursuant to its September 2013 Conciliation Agreement with the EEOC, so long as the trainings occur within the time frames required by this Section.

For the Term of this Agreement, Hurley shall also provide training on Hurley’s obligations under Title VI and the Nondiscrimination Policies and Procedures to all new hires of Hurley Staff within thirty (30) calendar days of the commencement of their employment with Hurley.

X. Reporting

A. Documentation of Title VI Grievances

    1. Within thirty (30) calendar days of the completion of an investigation of allegations raised in a claim of discrimination submitted to Hurley’s Title VI Coordinator, Hurley shall provide OCR with copies of the Title VI grievance and of the written findings made by Hurley’s Title VI Coordinator.
    2. Written findings shall include a description of the grievance, witness contact information, witness interview summaries, and Hurley’s final, written decision on each such grievance.

B. Additional Documentation

    1. Within one hundred eighty (180) calendar days of the Effective Date of this Agreement, Hurley shall provide a letter certifying that the distribution of materials required by Sections VIII of this Agreement has occurred. Hurley shall also provide OCR with documentation of the steps that it has taken pursuant to Section VIII of this Agreement, including but not limited to: (1) photographs and the location of the Non-Discrimination Policies and Procedures; (2) a copy of Hurley’s admission kit; and (3) screenshots of the Non-Discrimination Policies and Procedures as posted on Hurley’s website;
    2. Within one hundred fifty (150) calendar days of the Effective Date of this Agreement, Hurley shall provide documentation and a letter certifying that the training described in Section IX has been completed. The letter shall specify the date(s), time(s), and location(s) of the training, the person(s) conducting the training, the content of the training, and the names and titles of training participants. If any active members of the Hurley Staff have not received the training with 150 days of the Effective Date, Hurley shall inform OCR of the subject employees and of the steps Hurley intends to take to ensure that those employees receive the requisite training and by when Hurley anticipates that those members of its Staff shall have been trained. In addition, Hurley shall provide a copy of the staff training information or materials provided, training attendance sheets, and any other training documentation Hurley has regarding the administration of its obligations under Title VI, the Non-Discrimination Policies and Procedures, and this Agreement.
    3. Within thirty (30) calendar days of the end of the Term of this Agreement, Hurley shall provide OCR with a letter certifying that it has completed all of the actions required by this Agreement.

C. Maintenance of Records

Hurley shall maintain appropriate records to document the information required by this Agreement and shall make them available, upon request, to OCR and shall retain those records throughout the Term of this Agreement and for two (2) years thereafter.

XI. Signatures

The individuals signing represent that they are authorized to execute this Agreement and legally bind the parties to the Agreement.

___/S/_________________________________________              7/31/2014

Name:                                                                                                   Date

Title:

Hurley Medical Center

__/S/______________________________________                    7/31/204

Celeste H. Davis                                                                                Date

Regional Manager, Region V

U.S. Department of Health and Human Services

Office for Civil Rights

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Attachment A

GUIDELINES FOR COMPLIANCE OF HOSPITALS WITH TITLE VI

OF THE CIVIL RIGHTS OF 1964

Section 601 of Title VI of the Civil Rights Act of 1964 provides:

“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

Hospitals which are in compliance with Title VI of the Civil Rights Act are characterized by an absence of separation, discrimination* or other distinction on the basis of race, color, or national origin in any activity conducted by, for, or in the institution affecting the care and treatment of patients.

Compliance with Title VI requires adherence to the following policies and practices:

1. Admission to Hospital:

All patients are admitted to the hospital for inpatient, outpatient and emergency care without discrimination and no inquiries are made regarding race, color, or national origin prior to admission. The hospital ensures that staff physicians do not consider race, color, or national origin as a factor in selecting hospitals for their patients. Where there is significant variation between the racial composition of the patient census and available population census data for the service area or potential service area, the hospital has a responsibility to determine the reason for such variation and to take whatever action may be necessary to correct any discrimination.

Hospital policies regarding deposits, extension of credit and other financial matters are applied uniformly and without regard to race, color, or national origin.

Information regarding the price and availability of accommodations is uniformly made available to all without regard to race, color, or national origin.

2. Records:

Records are maintained uniformly without discrimination for all patients. Identification by race, color, or national origin on records is not considered to be discriminatory and maybe used to demonstrate compliance with Title VI.

3. Services and Physical Facilities Provided by the Hospital:

    1. All therapeutic, diagnostic, preventive, nursing, and personal care services are provided without discrimination.
    2. All clinics, emergency and outpatient services are available without discrimination as to quality of care and as to days or hours, and all patients are treated in turn, or in accordance with the urgency of their medical needs. Patients in these services who require inpatient care are being assigned or referred to such care on a nondiscriminatory basis.
    3. Paramedical care, ancillary services such as pharmacy, social services, ambulance services, dietary and laundry services, and facilities such as waiting rooms, lounges, entrances and exits, dining rooms, snack bars and gift shops are provided and used without discrimination.
    4. Rules of courtesy are uniformly applied without regard to race, color, or national origin in all situations including face-to-face contact, written records and communications.
    5. Assignment of staff to patients is not governed by the race, color, or national origin of either patient or staff.
    6. Hospitals which formerly had dual facilities (buildings, waiting rooms, entrances, dining facilities, labor rooms, operating rooms, etc.) have a particular responsibility to demonstrate that such facilities are no longer being operated in a discriminatory manner.

4. Room Assignment and Transfers:

    1. Patients are assigned to rooms, wards, floors, sections, buildings and other areas without regard to race, color, or national origin. Such assignment will result in a degree of multi-racial occupancy of multi-bed accommodations which reflects the proportion of minority use of the facility.
    2. Patients are not asked whether they are willing to share accommodations with persons of a different race, color, or national origin. Requests from patients for transfer to other rooms in the same class of accommodations are not honored if based on racial, or ethnic considerations. Exceptions may be made only if the attending physician or hospital administrator certifies in writing that in his judgment there are valid medical reasons or special compelling circumstances in the individual case. However, such certifications may not be used to permit segregation as a routine practice in the facility.

5. Staff Privileges:

Staff privileges (full, courtesy, consulting, etc.) in all areas and specialties are granted, maintained, upgraded and withdrawn in a nondiscriminatory manner, and standards for professional qualification are applied uniformly without regard to race, color, or national origin.

No requirement for membership in an organization may be established if at the time covered by such requirement the organization discriminated. Disciplinary actions of all kinds, including the withdrawal of staff privileges, are administered without discrimination. Restrictions on the granting of staff privileges are not applied so as to perpetuate past discrimination. For example, if a hospital, which formerly admitted general practitioners but excluded minority group physicians from its staff, subsequently adopts a policy restricting staff membership to specialists while retaining general practitioners already on staff, it must admit any general practitioner who would have been qualified formerly but for his race, color, or national origin.

6. Training:

    1. All aspects of all training programs--those operated by the hospital, those of other institutions for which the hospital provides clinical facilities, and others in which the hospital participates--are conducted without discrimination.
    2. A hospital must demonstrate that all reasonable efforts have been made to recruit minority group students. Such efforts would include an active recruitment and informational campaign and would be evidenced by minority group students in reasonable proportion to their presence in the population of the area from which the hospital obtains students.

These requirements apply to training at all levels, including professional, semi-professional, skilled and unskilled.

7. Notification of Availability of Services and Nondiscrimination Policy:

    1. The hospital has adopted and where appropriate provided its staff, employees and patients with copies of written statements which set forth the hospital’s non-discrimination policies and practices. These policies are included in any publication of staff regulations or public informational brochures, kept current and periodically reviewed with staff and employees.
    2. A hospital which formerly discriminated or had limited utilization by minority group patients effectively conveys to the minority community its present nondiscriminatory policy and the extent and nature of the services available.

8. Referrals:

Hospital referrals, including but not limited to referrals to physicians, extended care facilities and other post-hospital care programs, are made in a manner which does not result in discrimination.

Revised and Issued by:

Office for Civil Rights

Department of Health, Education, and Welfare

Leon E. Panetta, Director

November 1969

*The word “discrimination” as used throughout this document shall be understood to mean “discrimination on account of race, color, or national origin” as used in Section 601. Title VI of the Civil Rights Act of 1964, Public Law 88-352, approved July 2, 1964.

iwww.eeoc.gov/eeoc/statistics/enforcement/definitions.cfm, last visited on May 27, 2014.

ii “In the Matter of U.S. Equal Employment Opportunity Commission and Tonya Battle, Charging Party, and Hurley Medical Center, Respondent,” Detroit Field Office, September 26, 2013.

iii This Agreement applies to all of Hurley’s facilities that provide treatment services to patients, including but not limited to Hurley Main Campus Level 1 Trauma Center, Hurley Children’s Hospital, Hurley Eastside Campus, Hurley West Flint Campus, and Genesys Hurley Cancer Institute.

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Content created by Office for Civil Rights (OCR)
Content last reviewed on August 7, 2014