Health Reform WK-EDGE Expect litigation on Section 1557 nondiscrimination
Wednesday, September 21, 2016

Expect litigation on Section 1557 nondiscrimination

By Kathryn S. Beard, J.D.

Section 1557 of the Patient Protection and Affordable Care Act (ACA) is an attempt to remedy the "piecemeal statutory landscape" of remedies available to individuals who are discriminated against by recipients of federal health care funding. In a Health Care Compliance Association webinar titled "Nondiscrimination Under the Section 1557 of the ACA: Healthcare Compliance, Risk, and Litigation," Drew Stevens, an associate at Arnall Golden Gregory, told attendees that he expects many of the regulations implementing Section 1557 to be challenged in court, likely up to the Supreme Court.

Section 1557 is a short and "opaque" provision in the ACA that combines preexisting remedies under Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973. It seeks to eliminate barriers to health care access and reduce health disparities, and prohibits discrimination on the basis of race, color, national origin, sex, age, or disability—it is the first civil rights statute to prohibit discrimination on the basis of sex in health care. Section 1557 prohibits both intentional and unintentional, known as disparate impact, discrimination, and applies to all health programs or activities that receive federal financial assistance—but it does not extend to private physicians that only accept payments under Medicare Part B.

Earlier this year, the HHS Office for Civil Rights (OCR) released a Final rule (81 FR 31376) implementing Sec. 1557 (seeFinal rule eyes equity and an end to discrimination in health care, May 18, 2016). The Final rule contains requirements for how providers must communicate with patients with limited English proficiency, and most controversially requires providers to treat individuals in a manner consistent with their gender identity and not discriminate based on pregnancy, gender identity, or sex stereotypes (see Lawsuit argues HHS overstepped requiring provision of transition procedures, redefining ‘sex’, August 24, 2016). The OCR will review complaints alleging sexual orientation discrimination for sex stereotyping discrimination and monitor evolving case law on sexual orientation discrimination as sex discrimination. The rule also includes certain medical conditions—diabetes, cancer, heart disease, HIV, drug addiction, and alcoholism—in its definition of disabilities, which Stevens anticipates being the source of litigation as some of these medical conditions are very expensive to treat.

To ensure compliance with the Final rule, Stevens recommends that providers revise their nondiscrimination policies and procedures, evaluate their disparate impact risk, conduct educational training for all providers and staff, and adopt a grievance procedure. All required nondiscrimination notices and tag-lines should be posted, and providers should monitor ongoing legal developments in the courts as well. The Final rule will be subject to Chevron deference, but according to Stevens, some lower courts are already issuing conflicting decisions on Section 1557.

Attorneys: Andrew C. Stevens (Arnall Golden Gregory LLP).

Companies: Health Care Compliance Association

IndustryNews: NewsStory NewsFeed AgencyNews GeneralNews

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