This month, twelve hearing impaired individuals filed a federal suit against Banner Health in Arizona alleging discrimination under Section 1557 of the ACA because of an alleged failure to provide effective auxiliary aids. Specifically, the plaintiffs allege that Banner Health failed to provide on-site sign-language interpreters when necessary, failed to provide functioning Video Remote Interpretation (“VRI”) systems, and failed to adequately train its staff to use the VRI systems. These failures, according to the plaintiffs, caused the plaintiffs to rely upon other means of communication which were inadequate for the medical treatment sought by the plaintiffs.
For relief, the plaintiffs seek an order compelling Banner Health to implement policies and procedures that will ensure effective communication for deaf individuals—as well as damages and attorney’s fees. The case is Paula Cook, et al. v. Banner Health, et al., 2:17-cv-00758-JJT (D. Ariz. March 13, 2017).
Background on Section 1557 of the ACA
Section 1557 is the Affordable Care Act’s nondiscrimination provision and the new civil rights paradigm for the healthcare industry. It is the first federal civil rights law ever to focus exclusively on healthcare nondiscrimination, and the first to prohibit discrimination on the basis of sex in healthcare (in addition to prohibiting discrimination on the basis of race, color, national origin, age, and disability).
Under the regulation issued under Section 1557, covered healthcare providers must take immediate action for compliance. For example, if a covered healthcare provider has 15 or more employees, that provider must:
- designate an employee responsible for coordinating compliance with Section 1557 and the final rule;
- adopt a grievance procedure to promptly and equitably resolve complaints of discrimination; and
- post nondiscrimination notices, which must include language assistance “taglines” translated into the top 15 languages spoken on a State-wide basis.
More background on Section 1557 and its regulation can be found here, and more information on the new risks to healthcare providers under Section 1557 can be found here.
Section 1557 prohibits disability discrimination and requires the provision of auxiliary aids where appropriate
As noted above, Section 1557 prohibits discrimination on the basis of disability in healthcare. This means several things for healthcare providers. For example, healthcare providers must provide auxiliary aids where appropriate to communicate effectively with deaf or hard of hearing patients. Healthcare providers must also ensure that their electronic health programs are accessible to individuals with disabilities.
Indeed, § 92.202 of the regulation states that “A covered entity shall take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others in health programs and activities.” And § 92.8(a)(2) requires that the notice of individuals’ rights (which the covered entity must post in multiple locations) state that the covered entity provides auxiliary aids and services to individuals with disabilities when necessary to provide an equal opportunity to benefit from the entity’s health programs or activities.
Auxiliary aids and services are defined in the regulation to include an array of communication aids, including: qualified interpreters on-site or through VRI services, qualified readers; taped texts; audio recordings; Braille materials and displays; screen reader software; and many others. These auxiliary aids and services must be made available to patients free of charge and in a timely manner. Importantly, the regulation also requires providers to give “primary consideration” to the patient’s preferred auxiliary aid or service for communication. The regulation also now requires the use of “qualified” interpreters for individuals with disabilities, which is further defined in the regulation.
Steps Healthcare Providers Should Take Now
To avoid a claim for disability discrimination, healthcare providers should take immediate action to comply with Section 1557 and its regulation. For example, providers should:
- Designate an employee responsible for compliance with Section 1557;
- Adopt the required grievance procedure;
- Post the required notices and taglines;
- Provide auxiliary aids and services to patients where appropriate and in a timely manner and free of charge;
- Ensure that all electronic health programs are accessible to individuals with disabilities.
Failure to take these steps and others may expose healthcare providers to discrimination liability under Section 1557 of the ACA. (Other steps are required to avoid discrimination liability on the basis of other protected classes, such as national origin, as explained in more detail here.)