Update: New Rulings, Enforcement Actions, and Litigation under Section 1557 of the Affordable Care Act

Developments continue under Section 1557 of the Affordable Care Act, the Act’s nondiscrimination provision. For example, the first federal appellate court in the nation (the Sixth Circuit) has recently interpreted the standards to be applied to a claim of discrimination under Section 1557. See Doe v. BlueCross BlueShield of Tennessee, Inc., 926 F.3d 235, 239 (6th Cir. 2019). Specifically, in a putative class-action claim for disability-discrimination under Section 1557 and Section 504 of the Rehabilitation Act, the Sixth Circuit held that a claim for disparate-impact discrimination is not available under Section 1557 when based on a “ground” of discrimination prohibited by Section 504 (i.e., disability). See id. (“The Affordable Care Act prohibits discrimination based on several grounds. But it does not change the nature of those grounds any more than it adds a new form of discrimination, say discrimination based on political perspective, to the law. By referring to four statutes, Congress incorporated the legal standards that define discrimination under each one.”).

In so ruling, the Sixth Circuit rejected HHS’s contrary interpretation of Section 1557—although HHS has recently proposed to reverse course on this question and adopt what is the now the majority view: that, with Section 1557, Congress incorporated the legal standards that define discrimination under each statute referenced in Section 1557 and did not create a new standard. For more information on HHS’s proposed revisions to the regulation under Section 1557, please click here.

Meanwhile, HHS OCR, the office responsible for enforcing the civil rights protections in healthcare, recently entered into a Voluntary Resolution Agreement with an orthopedic practice in Maryland for its alleged failure to provide a qualified interpreter to a deaf child seeking rehabilitation services. For more information on HHS OCR’s resolution of this complaint and to read HHS OCR’s press release, please click here. And finally, a new complaint has been filed in federal court against a rehabilitation facility in the Middle District of Florida for disability discrimination based on an alleged failure to provide auxiliary aids and services to a patient undergoing rehabilitation therapy. (See 3:19-CV-00902, August 2, 2019.)

These developments make clear that this is a dynamic area of healthcare law that requires renewed and sustained attention from health systems. Health systems should therefore continue to ensure that they are devoting the resources and training necessary to provide equal access to patients with disabilities, including auxiliary aids and services to deaf or hard-of-hearing patients.

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