With the July 28, 2017 failure of the U.S. Senate to repeal parts of the Affordable Care Act (ACA), we were reminded of the continuing presence of this federal law.
Future prospects for additional attempts to change or repeal the ACA are uncertain. However, the occasion of the latest unsuccessful Congressional attempt to redo the U.S. health care system is a good time to review the status of the ACA’s non-discrimination provisions contained in Section 1557, and also remember that the most sweeping healthcare non-discrimination protections in U.S. history remain the law of the land.
Section 1557 is part of the ACA signed into law by President Obama. Under the current rules of the Senate, this Section can be repealed or changed only if 60 Senators agree.
Section 1557 in the Courtroom
This year, Section 1557 is being used more and more in federal health care discrimination lawsuits.
For example, in March 2017, twelve deaf patients in Arizona sued Banner Health alleging ACA disability discrimination, for example, from Banner’s “… failing to provide on-site ASL interpreters when necessary, providing malfunctioning Video Remote Interpreting (VRI) systems, failing to adequately train its personnel in the use of VRI systems…”
Also in 2017, several federal lawsuits have been filed alleging large health care systems operate legally inaccessible websites for people with disabilities, in violation of the ACA.
In May 2017, the Public Library of Cincinnati and Hamilton County (OH) settled a library employee’s ACA transgender discrimination lawsuit. According to USA Today, the library agreed to change its healthcare plan to include medical care for transgender people, offer staff LGBT inclusion training, and continue using gender-neutral employment forms and restrooms.
Provisions of Section 1557
The expectation is that the number of Section 1557 lawsuits will continue to increase. With this in mind, here is a quick summary of some of Section 1557’s greatest hits.
- Section 1557 prohibits several types of discrimination: race, color, language, national origin, disability, sex, sexual orientation, sex stereotyping, sexual identity, and age.
- Section 1557’s mandates originate from six different federal statutes, each with its own regulations, guidance, jurisprudence, and history: Americans with Disabilities Act (ADA); Rehabilitation Act of 1973; Title VI of the Civil Rights Act of 1964; Title VII of the Civil Rights Act of 1964; Title IX of the Educational Amendments of 1972; and The Age Discrimination Act of 1975.
- Patients who believe they have been discriminated against under Section 1557 have the right to sue and recover money damages if they are successful.
- To win a court case, patients alleging Section 1557 discrimination must meet a lower standard of evidence and proof of discrimination than under the law in place before Section 1557.
- Section 1557 requires that federally subsidized health care providers publish taglines, or short statements, in non-English languages, in significant publications and post them in prominent locations and on its website, to notify people about the availability of free language assistance services.
- Providers must offer qualified interpreters and translators to Limited English Proficient people and qualified interpreters to people who are deaf or hard of hearing.
- Section 1557 health care providers shall not rely on staff other than qualified bilingual/multilingual staff to communicate directly with individuals with limited English proficiency.
- The creation and implementation of Language Access Plans shall be used to evaluate Section 1557 compliance.
- Section 1557 provides legal requirements for the use of Video remote Interpreting to communicate with Limited English Proficient people.
- For patients with disabilities, health care providers covered by Section 1557 must now comply with the stricter requirements of The Americans with Disabilities Act’s Title II, including Title II’s website accessibility standards and the Primary Consideration Rule for effective communications with people who are disabled.
- Provide equal access to health care, health insurance coverage, and other health programs without discrimination based on sex, including pregnancy, gender identity, or sex stereotypes.
- Treat individuals consistent with their gender identity.
The future of Section 1557
Predictions are often a fraught, risk exercise. Uncertainty abounds, especially in politics and in legislation that is considered by the U.S. Congress.
However, this week reminded us of some truisms. Section 1557 and its protections remain federal law. The odds of Section 1557 being repealed are remote. In my legal career, including my federal civil rights law enforcement career, I have never seen Congress and the president repeal a federal civil rights law. I expect this streak to continue for a long time.
Follow up on more information regarding the Affordable Care Act Section 1557 to understand specific provisions and contact us to learn how to comply with new federal requirements regarding language assistance.
© Bruce L. Adelson, special for Bromberg. 2017 All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq, CEO of Federal Compliance Consulting LLC is nationally recognized for his compliance expertise concerning many federal laws. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Attorney.
Mr. Adelson teaches cultural and civil rights awareness at Georgetown University School of Medicine in Washington, D.C.