Comment: Several commenters felt that some form of due process is needed when it comes to internal complaints. Specifically, they wanted to be assured that the covered entity actually hears the complaints made by the individual and that the covered entity resolves the complaint within a reasonable time frame. Without due process the commenters felt that the internal complaint process is open ended. Some commenters wanted the final rule to include an appeals process for individuals if a covered entity's determination in regards to the complaint is unfavorable to the individual.
Response: We do not require covered entities to implement any particular due process or appeals process for complaints, because we are concerned about the burden this could impose on covered entities. We provide individuals with an alternative to take their complaints to the Secretary. We believe that this provides incentives for covered entities to implement a complaint process that resolves complaints to individuals' satisfaction.
Comment: Some commenters felt that the individual making the complaint should exhaust all other avenues to resolve their issues before filing a complaint with the Secretary. A number of commenters felt that any complaint being filed with the Secretary should include documentation of the reviews done by the covered entity.
Response: We reject these suggestions, for two reasons. First, we want to avoid establishing particular process requirements for covered entities' complaint programs. Also, this rule does not require the covered entity to share any information with the complainant, only to document the receipt of the complaint and the resolution, if any. Therefore, we cannot expect the complainant to have this information available to submit to the Secretary. Second, we believe the individual making the complaint should have the right to share the complaint with the Secretary at any point in time. This approach is consistent with existing civil rights enforcement programs for which the Department is responsible. Based on that experience, we believe that most complaints will come first to covered entities for disposition.
Comment: Some commenters wanted the Department to prescribe a minimum amount of time before the covered entity could dispose of the complaints. They felt that storing these complaints indefinitely would be cumbersome and expensive.
Response: We agree, and in the final rule require covered entities to keep all items that must be documented, including complaints, for at least six years from the date of creation.
Comments: Some commenters objected to the need for covered entities to have at least one employee, if not more, to deal with complaints. They felt that this would be costly and is redundant in light of the designation of a contact person to receive complaints.
Response: We do not require assignment of dedicated staff to handle complaints. The covered entity can determine staffing based on its needs and business practices. We believe that consumers need one clear point of contact for complaints, in order that this provision effectively inform consumers how to lodge complaints and so that the compliant will get to someone who knows how to respond. The contact person (or office) is for receipt of complaints, but need not handle the complaints.