Antidiscrimination and the Affordable Care Act: A Primer for Plaintiffs' Attorneys

As a medical malpractice attorney, I regularly get calls from patients who believe that a negative experience with a healthcare provider occurred because of racism, gender bias, or language barriers. Even when the substandard care doesn't rise to the level of medical negligence, these callers often have the disquieting sense that they would have received higher quality care if they looked, loved, or spoke differently.

As plaintiffs' attorneys, it's important to be aware of potential relief available for individuals who experience discrimination in a healthcare setting so we can inform our clients about alternative avenues that may be available to them beyond potential tort claims. The anti-discrimination provisions of the Affordable Care Act (ACA) provide one such remedy.

Section 1557: The Basics

Before the 2010 enactment of the ACA, there were only limited protections against discrimination in the healthcare setting. Under the pre-ACA regime, healthcare providers could generally discriminate on the basis of a patient's sex. Additionally, patients could not sue privately for disparate impact, only for certain types of intentional discrimination.

In May 2016, the Department of Health and Human Services issued a landmark rule implementing the anti-discrimination provisions of the Affordable Care Act, known as Section 1557. Section 1557 aims to reduce health disparities by prohibiting any "health program or activity receiving federal funding" from discriminating based on race, color, national origin, sex, age, or disability.1 Because the "receiving federal funding" requirement has been interpreted to include any hospital, clinic, or nursing home receiving Medicare or Medicaid funding, the vast majority of U.S. healthcare providers are now subject to the ACA's anti-discrimination provisions.2 As a result, patients in the United States now have more legal protection from discriminatory medical treatment than ever before.

Because the language access and gender discrimination provisions provide particularly fertile grounds for private lawsuits, these aspects are worth exploring in greater detail.

Protections for Individual with Limited English Proficiency

Section 1557's prohibition against national origin discrimination covers both immigration status and English language proficiency. Section 1557 aims to reduce the use of casual interpreters — such as patients' friends or family members — to communicate about complicated and sensitive medical topics. It requires hospitals, clinics, and nursing homes to offer "qualified interpreters" to patients with limited English proficiency. While interpreters need not be formally licensed, the rule clarifies that "the fact that an individual has above average familiarity with speaking or understanding a language other than English does not suffice to make that individual a qualified interpreter for an individual with limited English proficiency.3  In addition, the rule explicitly bans the use of minor children as medical interpreters in non-emergency situations.4 Healthcare facilities must "take reasonable steps to provide meaningful access" to individuals with limited English proficiency likely to be served at that facility.5

Sex and Gender Discrimination

Section 1557 is the first federal civil rights law to broadly prohibit healthcare providers receiving federal funding from discriminating on the basis of sex. The law prohibits discrimination in healthcare based on an individual's sex — which the rule interprets to include pregnancy status, gender identity, and stereotyping.6 In March 2015, a Minnesota federal district court ruled that the ACA's ban on sex discrimination includes discrimination due to transgender status.7 Further, health programs limiting access to a single sex must have an "exceedingly persuasive justification" for doing so; they must show that the sex-specific program is substantially related to the achievement of an important health-related or scientific objective.8

Disparate Impact or Discriminatory Intent?

Immediately after the passage of Section 1557, civil rights attorneys started to question which definition of "discrimination" would apply to the new law. Section 1557 builds upon prior civil rights laws, some of which require discriminatory intent and some of which require only disparate impact. 9 The question became, must Section 1557 plaintiffs prove discriminatory intent, or merely disparate treatment?

The final rule seems to provide an answer to that question. They make clear that Section 1557 authorizes a private right of action for claims of disparate impact discrimination on the basis of all the protected classes listed in Section 1557.10 While still relatively untested in the courts, a disparate impact standard offers legal relief to plaintiffs who would struggle to prove any subjective discriminatory intent on behalf of their healthcare providers, but nonetheless received inferior care due to their membership in a protected class.

Private Cause of Action and Attorneys' Fees Available

While aggrieved patients can submit a complaint to the Office for Civil Rights (OCR) for administrative remedies, patients may also bring a civil lawsuit to challenge discrimination in the healthcare setting.11 The final rule also indicates that like other federal civil rights causes of action, attorneys' fees are available for successful Section 1557 plaintiffs in private suits.12 The availability of attorneys' fees should encourage plaintiffs' attorneys to pursue meritorious cases on behalf of clients with limited ability to pay.

An Attorney's Role in Equal Access to Health Care

The ACA's antidiscrimination provisions provide new pathways for patients who face discrimination based on race, national origin, sex, age, or disability in the healthcare setting. Section 1557 builds upon existing federal civil rights laws to help increase access to quality healthcare for traditionally underserved populations. Plaintiffs' attorneys evaluating healthcare-related cases can play an important role in informing clients about legal avenues to enforce their civil rights.

Originally published in Minnesota Trial – The Journal of the Minnesota Association for Justice, Fall 2016

1 42 USCS §18116; 81 Fed. Reg. 31376-31473 (May 18, 2016).
2 81 Fed. Reg. 31376, 31445 (May i8, 2016); Cristina Boccuti et al., Primary Care Physicians Accepting Medicare: A Snapshot, The Henry J. Kaiser Family Foundation (Oct. 30, 2015), physicians-accepting-medicare-a-snapshot/.
3 81 Fed. Reg. 31376, 31391 (May 18, 2016).
4 81 Fed. Reg. at 31470.
5 81 Fed. Reg. at 31470.
6 81 Fed. Reg. at 31387.
7 Rumble v. Fairview Health Servs., No. 14-CV-2037 (SRN/FLN), 2015 U.S. Dist. LEXIS 31591, at *10 (D. Minn. Mar. 16, 2015).
8 81 Fed. Reg. at 31377.
9 Compare 20 U.S.C.S. § 1681 (Title IX) with 42 U.S.C.S. § 2000e et seq. (Civil Rights Act of 1964).
10 81 Fed. Reg. at 31440.
11 81 Fed. Reg. at 31440 ("[A] private right of action is available under Section 1557.”)
12 81 Fed. Reg. at 31441 (referencing The Civil Rights Attorney's Fees Award Act of 1976).

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