A Section 1557 lawsuit is now pending in an Arizona federal court.  Twelve (12) hearing-impaired individuals have brought suit alleging their health care provider discriminated against them by not providing sign language interpreters or electronic video interpretation.  Instead of providing such accommodations, the lawsuit alleges, the health care staff relied on notes and lip reading in an attempt to communicate with the patients.  The individuals assert that the provider should have trained the staff to recognize when interpretation is necessary, provided a functioning electronic video interpretation system, and instructed the staff on how to use electronic video interpretation.

The lawsuit underscores the requirements now imposed on health care providers under Section 1557 of the Affordable Care Act which became effective in July 2016.  Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, and disability in federal health care programs.   When interacting with individuals with sensory, manual, or speaking disabilities, health care providers are required to provide communication that is as effective as the provider’s communication with non-impaired individuals.  This requires that health care providers have access to sign language interpreters, Braille handouts, visual aids, auxiliary aids, or other communications formats when the need arises.

Continue Reading Section 1557 Lawsuit Highlights ACA’s Anti-Discrimination Rule

As the sun set on 2016, a federal judge in Texas issued a preliminary injunction preventing HHS from enforcing HHS’s new regulations enforcing and interpreting Section 1557 of the Affordable Care Act’s prohibition against “sex” discrimination.

In May, 2016, the Office of Civil Rights issued its Final Rule implementing Section 1557 of the ACA.  Generally, Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age, or disability by health care providers receiving federal financial assistance.  In interpreting Section 1557, OCR, in the Final Rule, clarified that the sex discrimination that is prohibited under Section 1557 included discrimination based on (1) an individual’s sex; (2) pregnancy, including termination of a pregnancy; (3) gender identity; and (4) sex stereotyping.

The Court, in issuing the injunction, stated that HHS’s interpretation of sex discrimination, as appearing in the Final Rule, was overbroad, and that if Congress intended to broaden the definition to include other interpretations other than “biological gender”, it would have done so.

While the injunction’s impact does not affect numerous other provisions or prohibitions under Section 1557, it prevents HHS from taking actions against health care providers for claims of discrimination based on gender identity or termination of a pregnancy.

Health care providers must still comply with the provisions of Section 1557 that remain unaffected by the injunction.  Additional litigation on this issue is anticipated and presently occurring.