Crosstown rivalry: USC vs UCLA Title IX investigations

Last month, the University of California reached a $73 million settlement with alleged victims of Dr. James Heaps, a former UCLA gynecologist accused of sexually abusing several former patients. The case involves claims similar to the allegations against Dr. George Tyndall, a former USC gynecologist accused of sexual abuse whose victims received a $215 million settlement that was approved by a federal judge earlier this year.

This article compares Title IX investigations in both cases and discuss the lessons learned.

The Claims

The USC sexual misconduct case involved allegations of abuse by Tyndall that occurred between 2000 and 2016 when several employees and students reported that he was taking photos of female patient's genitals, conducting inappropriate examinations, and making inappropriate comments. Tyndall was put on administrative leave and he retired with a confidential severance payout and settlement agreement. He surrendered his medical license and his criminal case is pending.

The Department of Education's Office of Civil Rights (the enforcement body for Title IX) concluded that USC (1) had notice of possible sexual harassment starting in 2000 and failed to investigate, (2) failed to assess whether interim measure were needed, (3) failed to take steps to prevent recurrence, and (4) failed to respond to complaints and give notice of the outcomes.

In March, the OCR entered into an agreement with USC to resolve the Title IX complaints and to resolve some of the problems (USC had failed to disclose all the complaints and documents) in the earlier 2018 agreement.

While the factual complaints as to USC and UCLA were similar -- inappropriate touching, examinations and comments -- the UCLA case has some differences. After receiving notice of the Heaps lawsuit, the UC regents formed a special committee to investigate the claims against Heaps as well as claims against four other doctors. These cases showed a pattern of inconsistent reporting, a slow and inadequate response by the universities, and Title IX policies that needed improvement.

Lessons Learned

The central problem with both the UCLA and USC cases was a deference toward physicians. UCLA had an added complication that policies and investigation were different depending on the status of the physician. Many physicians are both part of medical school faculty and are on staff at one of the many facilities operated by the UCLA Medical Center. This meant that the same actions by physicians in different roles could be governed by different (competing) policies, different standards of review by different individuals with oversight and investigative responsibilities, and different due process rights. The same conduct by two different physicians could lead to drastically different results.

Below is a list of the lessons learned from the UCLA special committee and the USC OCR investigations and recommendations going forward:

1. The Compliance Office

USC: Centralizing and Re-Structuring the Title IX Compliance Office: The coordinators will report to the senior vice president for human resources instead of the general counsel. This requirement may have reflected a belief that the desire to protect the university did not align with the need to protect the students from harm.

UCLA: Streamlining Roles: Instead of physicians having multiple roles which fell under various overlapping policies, the committee recommended that UCLA define standards for immediate removal, identify who has the authority to apply, and the source of that power.

2. Tracking Complaints

USC: Tracking Title IX Complaints: Employee evaluation forms will include a notation whether the employee complied with USC policies, whether any complaints were made against the employee regarding policy noncompliance, whether they did their required training, whether supervisors promptly forwarded all reports of sexual discrimination to the Title IX coordinator. Title IX letters of findings and any remedial measures will be placed in the personnel file and the newly created Title IX data system (see #4).

UCLA: Standardize Complaint Process under Title IX: UCLA had no standard process to address sexual misconduct in the clinic setting. The Committee recommended that complaints of sexual misconduct should fall within a single response structure under Title IV.

3. Reporting

USC: Centralized Reporting: After doing the evaluations identified in #2, the supervisor will advise the Title IX office if the evaluation revealed whether sex discrimination complaints were provided to a supervisor or whether the employee may have engaged in sexual discrimination.

UCLA: Centralized Reporting: The committee recommended a unified, electronic reporting system that covers UCLA's academic and medical campuses. Reports of misconduct should be done within 14 days. The due process hearing should be streamlined to replace the conflicting processes the currently exist.

4. Record Keeping

USC: Record Keeping: USC will maintain a data system to search for prior or concurrent complaints. The database will track the date of the initial report receipt to the employee, date of initial report receipt to the Title IX office, closing date, manner of resolution, date of notification to complainant, names of parties, protective measured requested /provided, date of completion of report, date of notification to complainant and respondent of the outcome, sanction, date of notification of appeal to the parties, decision re appeal sanction and remedies, date of resolution of appeal, date of written notification to complainant and respondent of the outcome. Upon receipt of any complaint against an employee, the Title IX office will run a query in all data systems for prior complaints, will contact the employee's supervisor to find out about prior complaints, obtain performance evaluations.

UCLA:. Encourage Reporting: The committee recommended measures to encourage reporting in an effort style the culture of deference to physicians. It recommended a Speak Up Campaign, patient education, guidelines on when to report to the medical board, and improved training on when to recognize "red flags" in reports.

5. Procedures

USC: Revise Title IX Procedures: Notice to parties and witnesses of applicable procedures, identification of complainants, give notice of the outcome, written notice whether an investigation will proceed and appeal of decision to not proceed within 10 days of complaint, and prohibition of retaliation.

UCLA: Incident Response Team: The committee recommended the utilization of an incident response team to evaluate complaints and apply a single standard for immediate suspension.

6. Training

USC: Training of what constitutes a Title IX complaint, how to report it, how to identify it in the context of health care service.

UCLA: The committee recommended greater standardization of the clinical approach to routine sensitive exams. Chaperones need to be adequately trained to understand what is outside the standard of care. Chaperones need to be active observers with unhindered visibility who rotates to different health care providers. A patient advocate should be designated.

7. Due Diligence

UCLA: Acquisition Due Diligence: The committee found that the due diligence of acquiring a clinic failed to capture previous complaints of sexual misconduct. The committee recommended due diligence questionnaires and background checks and credentialing review.

Conclusion

The UCLA special committee's recommendations were more expansive and preventative than those of USC. UCLA expanded their recommendations to look at the problems at the hiring/acquisition level. It also addressed the culture of deference towards physicians. Although UCLA and USC may not agree on many things, but they do recognize the importance of preventing sexual misconduct and avoiding OCR intervention. 