The Pursuit of Health Equity Through Section 1557: The Foundation of Health Care Civil Rights

Introduction

“To put it simply, health equity is a civil rights issue.”¹

The pursuit of health equity is a multi-disciplinary effort that requires the expertise of health care professionals and legal counsel.² The growing number of medical-legal partnerships, for example, reflects the increasing awareness of this fact,³ as does the growing appreciation that the law should be considered one of the generally recognized domains of social determinants of health (the others being economic stability, neighborhood and physical/built environment, education access and quality, social and community context, and health care access and quality).⁴ In the words of two prominent health law advocates: “The most powerful lever at our disposal to fix and redesign [the social] determinants of health is the law.”⁵

Despite this growing awareness, our understanding of what the author refers to as “health care civil rights” and the role it plays in our pursuit for health equity remains inadequately explored. Health care civil rights is the body of federal civil rights laws that directly promotes health equity and exists for the fundamental purpose of doing so; they are federal laws that prohibit discrimination in health care. The legal academy has long criticized the enforcement of those laws within the health care space, particularly in the aftermath of the U.S. Supreme Court’s Sandoval decision in 2001.⁶ Nevertheless, legal practitioners have not adequately accounted for the role that health care civil rights must continue to play if we are to achieve health equity. This is especially troubling given the momentous impact that civil rights laws in general have had on the life of this nation. For example, passage of Title VI of the Civil Rights Act of 1964 and the creation of Medicare in 1965 mark the historic beginnings of the country’s significant efforts to desegregate the health care industry by requiring hospitals that receive federal funding (e.g., Medicare) to treat all patients regardless of race.⁷ As chronicled by Professor David Barton Smith:

The civil rights movement reached its full power as a transformational force with Medicare’s passage and implementation . . . .⁸ [I]n four months, civil rights activists transformed the nation’s hospitals from our most racially and economically segregated institutions to our most integrated . . . .⁹ A profound transformation, now taken for granted, happened almost overnight.¹⁰

In his view, this “neglected gift” must be used once more “to realize the promise it still offers for transforming America’s health system” today.¹¹ To help recover the power that is inherent in health care civil rights law, this article proposes a definition for it, illustrates its power through select examples, details the pervasive requirements for health systems, and concludes by proposing specific ways in which legal counsel and compliance professionals can use health care civil rights law to pursue health equity.

What Are Health Care Civil Rights?

“Health care civil rights” is the collection of federal civil rights laws, regulations, procedures, and remedies that specifically prohibit discrimination by health systems, both within the health care setting and in relation to a health system’s larger prospective patient population. These laws specifically govern hospitals and health systems that accept federal financial assistance and may be enforced by private individuals, the federal government (through the Office for Civil Rights at the Department of Health and Human Services (HHS-OCR) and the Department of Justice), and by classes of individuals (i.e., through class actions). Their aim is to eliminate discrimination within the health care industry and affirmatively promote health equity by requiring health systems to proactively advance the health of protected classes.

Health Care Civil Rights vs. the Civil Rights of Health: A Critical Distinction

Health care civil rights law must be distinguished from other bodies of law that prohibit discrimination, including those laws that bar discrimination in employment and public accommodations more generally. This author’s proposed definition for health care civil rights stands in contrast to the expansive definition of “the civil rights of health” offered by Professor Angela Harris and attorney Aysha Pamukcu,¹² which is that “civil rights law as a health intervention” has the potential to strengthen public health advocacy. Harris and Pamukcu propose to use civil rights law generally to influence health specifically. This author’s proposed definition of health care civil rights law is narrower and seeks to illuminate the existence of a body of federal civil rights laws that directly promotes health equity through the enforcement of nondiscriminatory practices by health care providers specifically.

The Foundation of Health Care Civil Rights: Section 1557 of the Affordable Care Act

With the passage of the Affordable Care Act (ACA), Section 1557—entitled “Nondiscrimination”—became the foundation for health care civil rights and the first health care-specific civil rights law.¹³ Section 1557 makes reference to and incorporates several nondiscrimination laws already in existence, thereby specifically holding the health care industry to its requirements.

In the words of Professor Valarie K. Blake, “Section 1557, the civil rights provision of the Affordable Care Act, is unmatched in its reach, widely applying race, gender, disability, and age discrimination protections across all areas of healthcare.”¹⁴ It does so by explicitly applying Title VI of the Civil Rights Act, Title IX, the Age Discrimination Act, and the Rehabilitation Act—all of which predate the ACA¹⁵—to health care providers.

Section 1557 expands on a health system’s pre-existing obligations while also breaking new ground. It is the first federal civil rights law to focus exclusively on nondiscrimination in health care and the first to prohibit discrimination on the basis of sex in health care. It creates new causes of actions, new protected classes, and imposes new regulatory compliance obligations on health care providers.¹⁶ For example, in accordance with the Supreme Court’s recent Bostock decision,¹⁷ courts and the federal government have indicated that Section 1557’s prohibition on “sex” discrimination in health care extends to discrimination on the basis of gender identity and sexual orientation.¹⁸ Section 1557 has therefore already had a significant impact on the health care industry, which will persist for decades to come.

What Does Health Care Civil Rights Law Require?

As illustrated through a select number of cases and examples below, the requirements imposed on a health system under federal health care civil rights law are pervasive, which in turn make clear their inherent power as an external force upon the health care industry. These laws bear directly on the physician-patient relationship, requires health systems to invest in tools and technology that promote equity for protected populations, and even posits that health systems should seek to minimize the “disparate impacts” of their facially neutral policies or practices on protected populations.

In general, Section 1557 of the ACA prohibits discrimination in federally funded health programs and activities. Notably, for providers principally engaged in health-related services (such as hospitals, health clinics, physician practices, etc.), all of their activities are covered.¹⁹ Section 1557’s prohibitions also extend to all discrimination on the basis of any protected characteristic and to all persons encountered by a covered health care system (e.g., a patient, a patient’s companion, a visitor, or a research subject).

Section 1557 encompasses intentional discrimination (such as segregation, denial of services, harassment), unintentional discrimination (a facially neutral policy or practice that disproportionately affects a protected class), and retaliation against a person for engaging in protected conduct (e.g., reporting an episode of discrimination). Section 1557 also imposes specific, affirmative obligations on health systems, such as providing meaningful access to individuals with Limited English Proficiency (LEP) through the provision of language assistance services, ensuring equal access to persons with disabilities through digital accessibility and reasonable accommodations, and auxiliary aids for deaf or hard-of-hearing individuals.

What follows is a summary of the pervasive requirements imposed on health systems by some of the most prominent federal health care civil rights laws, with particular attention paid to their litigation, including by way of federal enforcement.

Federal Civil Rights Laws Referenced in Section 1557

This section will highlight three major civil rights laws referenced in Section 1557—Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Section 504 of the Rehabilitation Act of 1973—and discuss how their incorporation into Section 1557 constitutes the foundation for health care civil rights law.²⁰ Examples in the areas of meaningful access, discrimination on the basis of race, and equal access for those with disabilities will highlight the significant impact that health care civil rights law can have in achieving health equity.

Title VI of the Civil Rights Act of 1964

Meaningful Access for Individuals with Limited English Proficiency

By incorporating Title VI of the Civil Rights Act into its text, Section 1557 prohibits discrimination on the basis of national origin in federally funded health care. The scope of national origin discrimination under Section 1557 is therefore consistent with the well-established standards under Title VI.²¹ As such, Section 1557 prohibits discrimination on the basis of an individual’s place of origin, his or her ancestor’s place of origin, or an individual’s manifestation of the physical, cultural, or linguistic characteristics of a national origin group.

As part of this prohibition on national-origin discrimination, covered health care providers must take steps to provide meaningful access to individuals with Limited English Proficiency. Importantly, it has expanded on this pre-existing duty in subtle and nuanced respects. For example, under the current regulation under Section 1557,²² a provider should determine the extent of its meaningful access obligation by reference to the flexible and fact-dependent standard articulated in the U.S. Department of Health and Human Services’ (HHS) “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Patients,” which seeks to balance the following four factors:

1. The number or proportion of LEP persons eligible to be served or likely to be encountered by a program;
2. The frequency with which LEP individuals come in contact with a program;
3. The nature and importance of the program to people’s lives; and
4. The resources available to a provider.²³

When language assistance services must be provided, they must be provided free of charge, in an accurate and timely manner, and in a manner that protects the privacy and independence of the individual with LEP.²⁴

Under current regulation, covered providers also must now use “qualified” interpreters and translators when providing oral interpretation services or written translation services.²⁵ “Qualified” interpreters and translators are those who meet the following regulatory requirements:

1. Adheres to generally accepted interpreter ethics principles, including client confidentiality;
2. Has demonstrated proficiency in speaking and understanding at least spoken English and at least the spoken language in need of interpretation; and
3. Is able to interpret effectively, accurately, and impartially, both receptively and expressly, to and from such language(s) and English, using any necessary specialized vocabulary, terminology, and phraseology.²⁶

Under current regulation, a covered provider is also specifically proscribed from engaging in certain conduct. In particular, a covered provide may not:

1. Require an individual with LEP to provide his or her own interpreter.
2. Rely on a minor child to interpret unless it is an emergency.
3. Rely on an adult companion unless it is an emergency or otherwise appropriate under the circumstances.
4. Rely on unqualified bilingual or multilingual staff.²⁷

If remote audio interpreting services are used, those services must also meet specific regulatory requirements.²⁸ Specifically, a covered entity must provide:

1. Real-time audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality audio without lags or irregular pauses in communication;
2. A clear, audible transmission of voices; and
3. Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the remote interpreting services.²⁹

Language access litigation under Section 1557 specifically has been extremely limited thus far; however, prior language-access litigation under Title VI provides helpful guidance. To state a claim under Title VI,³⁰ a plaintiff must (1) allege that the entity involved is engaging in discrimination, and (2) the entity involved is receiving federal financial assistance.³¹ A private individual making a claim under Title VI must also allege intentional discrimination.³²

Private litigants have therefore pressed these types of claims against health care systems for an alleged failure to provide meaningful access to individuals with LEP.³³ Importantly, although a private individual must allege intentional discrimination, “intentional discrimination can be based on facially neutral laws or practices.”³⁴ To prove intentional discrimination by a facially neutral policy, a plaintiff must show that the rule was “promulgated or reaffirmed because of, not merely in spite of, its adverse impact on persons in the plaintiff’s class.”³⁵

Thus, in this context, “intentional discrimination is often established by circumstantial evidence such as disparate impact, history of the state action and the foreseeability and knowledge of the ‘discriminatory onus’ to be placed on the complainants.”³⁶ In Aghazadeh v. Maine Medical Center, the court found that the plaintiffs had adequately stated a claim for relief based on the allegations that they suffered delays and denials in medical care on account of their limited English proficiency—which, the plaintiff alleged, served as a proxy for national-origin discrimination.³⁷ It should also be noted that 42 U.S.C. § 1988 provides that a prevailing party under Title VI of the Civil Rights Act may be awarded its reasonable attorney’s fees.

Apart from private enforcement of Title VI and Section 1557, a covered provider should also be aware of HHS-OCR’s enforcement activities. In response to complaints from individuals, HHS-OCR often enters into settlement agreements that require a health care provider to:

1. Develop written policies and procedures to ensure that LEP individuals may fully participate in its programs;
2. Develop and implement a grievance procedure to resolve complaints of discrimination;
3. Develop and implement a language access plan;
4. Develop and implement mandatory training for staff;
5. Provide qualified interpreters upon request to any LEP individual;
6. Report to HHS-OCR on various categories of information within six months of the date of the Agreement; and
7. Pay a Civil Monetary Penalty.

Numerous enforcement examples in the language-access space can be reviewed on HHS-OCR’s website.³⁸

Meaningful access during COVID-19: In May 2020, HHS-OCR released guidance on ensuring meaningful access for persons with LEP during the COVID-19 pandemic.³⁹ This guidance serves as an extremely helpful resource for operationalizing meaningful access during the pandemic in particular, but also in health care more generally. In this guidance, HHS-OCR specifically recommended that health care providers consider taking the following actions:

1. Contract with entities qualified to provide language access services through multiple types of media (telephonic interpretation, VRI, etc.);
2. Disseminate COVID-19 information and messaging about testing and treatment in plain language and in the non-English languages prevalent in the affected area through all forms of media, including online, television, or social media, and through targeted outreach to community and faith-based organizations that can reach individuals with LEP;
3. Post COVID-19 documents in multiple languages in multiple locations, including at providers’ initial point of contact;
4. Offer services in multiple languages and provide notices of such language access services online, in advertisements, and at points of service;
5. Designate a person on every shift to be responsible for ensuring and coordinating the delivery of language access services for patients with LEP at every stage of contact, from intake and admission to treatment and discharge;
6. Create and disseminate widely to staff an up-to-date list of in-person and remote translation and interpreter services and of bilingual staff who are qualified to respond quickly to the needs of patients with LEP;
7. Use “I Speak” resources or ask open-ended questions to determine an individual’s written and spoken language preference at the first point of contact;
8. Upon identifying a patient with LEP, make sure critical information is communicated in the patient’s preferred language by using a qualified interpreter or translated materials, remotely if necessary.

Prohibition on Discrimination on the Basis of Race in Health Care

In his advocacy for civil rights legislation, President Kennedy said,

Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages entrenches, subsidizes or results in racial discrimination. Direct discrimination by Federal, State, or local governments is prohibited by the Constitution. But indirect discrimination through the use of Federal funds, is just as invidious; and it should not be necessary to resort to the courts to prevent each individual violation.⁴⁰

Title VI of the Civil Rights Act is a monumental law in American history and bars discrimination in federally assisted programs on the basis of race, color, or national origin.⁴¹ The Act also authorizes federal agencies to terminate funding to programs that are found to have engaged, directly and indirectly, in discriminatory practices.⁴² As mentioned in this article’s introduction, passage of Title VI and the creation of Medicare began transforming America’s health care system in significant and meaningful ways.

In light of this transformation, historical examples of legal actions following the passage of the Civil Rights Act illustrate the power of both Title VI and health care civil rights law generally:

1. In the 1960s, the predecessor entity to HHS withheld federal financial assistance from state programs in Alabama for their refusal to desegregate.⁴³
2. In 1969, the United States Attorney General successfully obtained an injunction with sweeping requirements against a medical society that operated a hospital in South Carolina to stop the society from discriminating against African American patients.⁴⁴
3. In 1970, a class of African American residents of New Orleans successfully pursued a discrimination claim against ten New Orleans hospitals for operating segregated health care facilities.⁴⁵
4. In Tennessee, a court found that the state’s limited bed policy for Medicaid recipients had an unlawful disparate impact on minorities under Title VI.⁴⁶ The state agency was thus required to adopt remedial measures to reduce the impact of its discriminatory policies.⁴⁷
5. In the 1990s, a class of indigent minority individuals and churches successfully obtained a preliminary injunction against the reconstruction of a local community hospital on the theory that the hospital denied the class equal access to health care as compared to White residents within the county.⁴⁸ The injunction was ultimately dissolved following the court’s findings that the hospital had taken the necessary steps to improve the plaintiff’s access to the county hospital’s services.⁴⁹

Although these particular examples are dated, the underlying issues concerning access to health care for minorities remain timely and relevant. For example, in 2010 HHS-OCR entered into a Voluntary Resolution Agreement with a hospital system in Pennsylvania following claims that the closure of a local hospital would disproportionately impact local African Americans residents.⁵⁰ As part of the settlement agreement, the hospital system agreed to provide a number of services to mitigate any disproportionate impact, including transportation services to local residents and an agreement to operate local health screening and community health services.⁵¹

HHS-OCR also recently ended an investigation into the 2018 closure of a hospital in Dayton, Ohio, finding insufficient evidence that the closure violated federal civil rights law under Title VI or Section 1557.⁵² Civil rights advocates had filed an administrative complaint with HHS-OCR alleging that the relocation of the hospital into suburban and rural areas would adversely and disparately impact African Americans and women in violation of federal civil rights law. Although HHS-OCR found no violation in this most recent instance, this investigation showed that health care civil rights law continues to play a critical role in ensuring that hospitals and health systems promote health equity through compliance with federal nondiscrimination law.

Finally, another example of administrative action in the health care industry concerns enforcement that targets the unlawful “red-lining” of neighborhoods by home health agencies. For example, in 1996, HHS-OCR resolved a dispute with an agency in Connecticut based on findings that home health agencies had issued guidelines directing employees to avoid areas that were predominantly Hispanic and African American.⁵³

Section 504 of the Rehabilitation Act

Equal Access for Individuals with Disabilities

By referencing Section 504 of the Rehabilitation Act, Section 1557 prohibits discrimination against individuals with disabilities and incorporates the pre-existing definition of disability discrimination from Section 504. The definition of “disability” under Section 1557 is quite broad and can be defined in three ways: 1) a physical or mental impairment that substantially limits one or more major life activities; 2) a record or past history of impairment; 3) being regarded as having such an impairment.

This section will address, by way of select examples, a few of the many areas in which discrimination toward individuals with disabilities is prohibited, e.g., in communications, web access, and physical access. In addition, some of the examples will be discussed in the context of our country’s ongoing opioid crisis and COVID-19 pandemic, situations where access to health care is at greater risk of being disrupted or unjustly denied to someone with a disability.

Effective communication through auxiliary aids and services: Under current regulation, covered entities must provide auxiliary aids and services to deaf and hard-of-hearing individuals and support persons for individuals with LEP; provide electronic health information in digitally accessible formats; and ensure the physical accessibility of their facilities and medical equipment, as discussed in greater detail below.⁵⁴

A covered provider must take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others in health programs and activities. Auxiliary aids and services include an array of communication aids, including qualified interpreters on-site or through Video Remote Interpreting (VRI) services; qualified readers; taped texts; audio recordings; Braille materials and displays; screen reader software; and many others. These auxiliary aids and services must be made available to patients free of charge and in a timely manner. The regulation also requires the use of qualified interpreters for individuals with disabilities.⁵⁵

Importantly, under current regulation, the heightened “primary consideration” standard under Title II of the Americans with Disabilities Act (ADA) continues to apply to covered entities under Section 1557.⁵⁶ Under this standard, a covered entity “must honor” a patient’s expressed choice of auxiliary aid or service unless the covered entity can demonstrate that an equally effective alternative means is available or that the chosen means would fundamentally alter the program or present an undue financial or administrative burden.⁵⁷

Disability discrimination in the health care industry commonly involves ineffective communication with deaf or hard-of-hearing individuals. To show a violation of Section 1557 based on ineffective communication with an individual with hearing disabilities, a plaintiff must prove that (1) she has a qualifying disability; (2) she is being denied the benefits of services, programs, or activities for which the health care entity is responsible, or is otherwise discriminated against by the health care entity; and (3) such discrimination is by reason of her disability.⁵⁸ A court may award compensatory damages and attorney’s fees under Section 1557 where it is shown that a health system acted with intent or “deliberate indifference” to the rights of deaf or hard-of-hearing individuals.⁵⁹ Many courts have ruled, however, that a defendant must have had notice that its communications were ineffective before impugning intent.⁶⁰

“Deliberate indifference” occurs when a defendant knows that a rights violation is substantially likely and fails to act on that likelihood.⁶¹ Importantly, deliberate indifference “requires more than gross negligence” and “requires that the indifference be a ‘deliberate choice,’ which is an ‘exacting standard.’” Moreover, the defendant’s deliberate indifference must have been through “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the hospital’s behalf and who has actual knowledge of discrimination in the hospital’s programs and fails to adequately respond.”⁶²

A plaintiff alleging ineffective communication under the ADA need not show “actual deficient treatment,” and it may be sufficient for a patient to show that the failure to offer an appropriate auxiliary aid “impaired the patient’s ability to exchange medically relevant information” with staff.⁶³

Courts have also said that “the task of determining whether an entity subject to the [Rehabilitation Act] has provided appropriate auxiliary aids where necessary is inherently fact intensive.”⁶⁴ Nevertheless, health systems have been able to prevail on summary judgment against such claims where they have been able to show extensive efforts to provide effective communication.⁶⁵

In terms of federal enforcement, on November 13, 2019, the U.S. Attorney’s Office for the Eastern District of Michigan announced a far-reaching settlement agreement with the largest health care system in Michigan to resolve allegations that it had violated the Americans with Disabilities Act for failing to provide effective communication services to deaf or hard-of-hearing individuals.⁶⁶ The Civil Rights Unit of the U.S. Attorney’s Office specifically noted that its investigation revealed the health system’s procedures were not adequate to ensure that deaf and hard-of-hearing patients were provided auxiliary aids to guarantee effective communication during their treatment.

The settlement agreement entered into by the system is extensive.⁶⁷ It covers three hospitals and approximately 30 off-campus outpatient locations and medical centers for a term of 15 months. As part of the settlement agreement, the health system agreed to:

1. Review and revise its policies on providing effective communication to patients and companions;
2. Develop and implement a program to provide appropriate auxiliary aids and services;
3. Designate and train personnel to be available to answer questions and provide appropriate assistance regarding immediate access to, and the proper use of, auxiliary aids and services;
4. Submit all revisions of policies and procedures concerning effective communication to DOJ for review;
5. Use a designated assessment tool in consultation with a patient or companion to evaluate the type of appropriate auxiliary aid and service that will be provided, including its timing, duration, and frequency;
6. Make its determinations concerning auxiliary aids within certain time periods while maintaining a comprehensive log of all such determinations;
7. Ensure that its use of VRI services are effective by providing a dedicated high-speed connection that delivers high-quality video and audio;
8. Notify individuals in advance if the system wishes to use VRI instead of an on-site interpreter;
9. Collect data on its interpreter response times;
10. Conduct comprehensive training for designated ADA Personnel and its larger workforce; and
11. Provide written reports of compliance to DOJ, including the number of complaints received by the health system concerning effective communication.

Website/online accessibility and physical accessibility: Consistent with pre-existing law, health care providers also must ensure that patients’ electronic health records are accessible to individuals with disabilities. Thus, providers should address the accessibility of their websites, medical kiosks, and electronic health records systems. To ensure compliance in these areas, legal counsel and compliance professionals should consult the December 21, 2016 guidance from HHS on “Ensuring Equal Access to All Health Services and Benefits Provided through Electronic Means.”⁶⁸ In short, providers are encouraged to follow the widely accepted industry standard for web accessibility in the Web Content Accessibility Guidelines (WCAG 2.1).⁶⁹

Websites should be thought of wholistically and thus include patient web-portals, e-prescriptions, and personal health tools—so too with medical kiosks, which include self-check-in stations, videoconferencing systems, education and consent forms, and medication dispensaries. Providers should therefore consider installing screen readers or tactile interfaces and repositioning kiosks to be within reach of wheelchair users. Lastly, electronic health records must also be accessible so that they are screen-readable and provide audio or narrative descriptions of items (such as x-rays) that would not otherwise be accessible to people with visual disabilities.

Providers should also review the Department of Justice and HHS-OCR’s guidance, “Access to Medical Care for Individuals with Mobility Disabilities” and ensure that their medical equipment generally is accessible to patients with mobility disabilities.⁷⁰ Though a fair treatment of the issue is outside the scope of this article, Title III of the ADA also imposes additional obligations on a health care provider, such as removal of architectural barriers when removal is readily achievable.

The opioid crisis: In response to the national opioid crisis, HHS-OCR launched a public education campaign on the civil rights protections surrounding access to treatment for opioid addiction.⁷¹ The agency prepared several educational guidance documents, including a Fact Sheet on “Nondiscrimination and Opioid Use Disorder”⁷² and a Fact Sheet on “Drug Addiction and Federal Disability Rights Law.”⁷³ These documents make clear that “drug addiction, including an addiction to opioids, is a disability under Section 504 of the Rehabilitation Act . . . and Section 1557 of the Affordable Care Act, when the drug addiction substantially limits a major life activity.”⁷⁴

In addition, as a part of these efforts, in early 2019 DOJ announced a settlement agreement with a privately owned medical facility in Virginia that was found to have regularly turned away prospective new patients who lawfully took controlled substances to treat their medical conditions, including medications used to treat opioid use disorders.⁷⁵ The settlement agreement required the provider to adopt nondiscrimination policies, train staff on its nondiscrimination obligations, report on compliance, pay $30,000 in damages to the complainant, and $10,000 to the United States as a civil penalty. The agreement also required the provider to agree to not apply standards or criteria to prospective patients that would have the effect of screening out individuals with disabilities, including those based on an opioid disorder.

COVID-19 and the scarcity of resources: HHS-OCR has issued guidance to assist health systems and health care providers comply with federal nondiscrimination law during the COVID-19 crisis. In one recent bulletin,⁷⁶ OCR stated it “is particularly focused on ensuring that covered entities do not unlawfully discriminate against people with disabilities when making decisions about their treatment during the COVID-19 health care emergency.” The bulletin states that “Decisions by covered entities concerning whether an individual is a candidate for treatment . . . should be based on an individualized assessment of the patient and his or her circumstances, based on the best available objective medical evidence.”⁷⁷

HHS-OCR also announced the resolution of several civil-rights investigations concerning the COVID-19 public health emergency. For example, the agency announced a resolution of its review regarding the state of Alabama’s ventilator triaging guidelines following complaints from civil rights groups in the state.⁷⁸ As noted by HHS-OCR, the state had incorporated into its triaging guidance a certain document from 2010, which may have permitted the denial of ventilator services to individuals “based on the presence of intellectual disabilities, including ‘profound mental retardation,’ and ‘moderate to severe dementia.’” As such, HHS-OCR’s investigation concerned allegations of both disability and age discrimination.

To resolve the investigation, the state of Alabama 1) removed all links to the 2010 document from its website; 2) agreed to publicly clarify that the 2010 guidance was not in effect; 3) agreed that it will not include similar provisions in future guidance; and 4) confirmed that it will not interpret its current guidelines in a similar manner.

Shortly thereafter, HHS-OCR announced the resolution of a second investigation concerning the Pennsylvania Department of Health.⁷⁹ This investigation also followed complaints by local civil rights groups within the state. To resolve the investigation and to bring its Crisis Standards guidelines into compliance with federal civil rights law, the Department agreed to revise its guidelines by:

1. Removing criteria that automatically deprioritized persons on the basis of particular disabilities;
2. Requiring individualized assessments based on the best available, relevant, and objective medical evidence to support triaging decisions; and
3. Ensuring that no one is denied care based on stereotypes, assessments of quality of life, or judgments about a person’s “worth” based on the presence or absence of disabilities.

In the announcement, the Director of HHS-OCR at the time was quoted as saying: “Triage decisions must be based on objective and individualized evidence, not discriminatory assumptions about the prognoses of persons with disabilities. We must ensure that triage policies are free from discrimination both in their creation and their application, and we will remain vigilant in achieving that goal.”

Title IX of the Education Amendments of 1972

Prohibition of Sex Discrimination in Health Care

Section 1557 of the ACA was the first statute to prohibit discrimination in health care on the basis of “sex” by incorporating Title IX of the Education Amendments into its statutory text. This is of tremendous importance, and its significance was even more resounding with the Supreme Court’s Bostock decision. As noted above, courts and the federal government have made clear that—like Title VII of the Civil Rights Act—Section 1557’s prohibition on “sex” discrimination necessarily extends to discrimination on the basis of gender identity and sexual orientation.

Plaintiffs under Section 1557 have therefore been able to successfully assert sex discrimination claims in health care by alleging, among other things, that they were mocked by medical office staff, referenced with offensive language, denied fulsome treatment, and asked invasive questions apparently unrelated to the medical treatment they needed. Therefore, in addition to training regarding privacy, sensitivity, and compassionate care, relevant training should include training employees against mis-gendering transgender individuals.⁸⁰ Health systems should also continue to invest resources into providing culturally competent care to LGBTQ individuals.⁸¹

Because Section 1557 incorporates Title IX, the weight of authority holds that a sex discrimination claimant under Section 1557 must satisfy the elements of a discrimination claim under Title IX; in other words, the law under Title IX appears to apply for purposes of analyzing a claim of discrimination under Section 1557.⁸² A plaintiff suing under Title IX must show that “the defendant discriminated against him or her because of sex; that the discrimination was intentional; and that the discrimination was a ‘substantial’ or ‘motivating factor’ for the defendant’s actions.”⁸³ Claims for sexual harassment, including harassment against transgender individuals, are also actionable under Section 1557,⁸⁴ and courts have applied Title IX’s standard for imposing liability on a hospital or health system for the actions of individual employees or third parties.⁸⁵

HHS-OCR enforcement against Michigan State University: In August 2019, HHS-OCR announced that it had entered into a Voluntary Resolution Agreement with Michigan State University pursuant to Section 1557 and Title IX.⁸⁶ This Agreement relates to HHS-OCR’s investigation into the sexual abuse of young female gymnasts by Dr. Larry Nassar, who was employed at the time by Michigan State University (MSU) and was the team doctor for the U.S. women’s national gymnastics team. The Voluntary Resolution Agreement covers multiple MSU entities, including its multi-specialty medical practice, which employs 260 physicians and advanced-practice providers.

According to the Agreement,⁸⁷ MSU entities have agreed to:

1. Revise their nondiscrimination notices and sexual misconduct policies to clarify Title IX’s and Section 1557’s prohibitions on sex discrimination;
2. Improve their processes for investigating and resolving Title IX and Section 1557 complaints (including for students, non-student patients, faculty and staff);
3. Designate a responsible official to coordinate the acceptance, investigation and resolution of Title IX and Section 1557 complaints;
4. Institute a new chaperone policy requiring authorized members of the health care team to be present at sensitive medical examinations and allowing patients to request chaperones of the sex of their choosing;
5. When conducting sensitive examinations, provide the patient with an appropriate gown, privacy for undressing and dressing, and sensitive draping to maximize physical privacy; and
6. Conduct all-staff training and provide bi-annual reports to HHS-OCR during the three-year term of the agreement.

The Director of HHS-OCR was quoted in the press release as saying that “the institutional reforms that MSU has agreed to undertake will help ensure that no patient is ever victimized like this again.”

This Voluntary Resolution Agreement demonstrates an under-appreciated aspect of Section 1557’s novel application of Title IX to the health care industry and the expansion of potential health care discrimination liability that comes with it. Health systems should therefore prioritize the implementation of institutional safeguards to protect patients and their companions from unlawful sexual harassment or abuse, including developing and implementing a chaperone policy and promptly investigating and resolving any complaints of sexual harassment or abuse by patients or their companions.⁸⁸ Moreover, because this is a new and emerging area of concern for health systems, training is likely required for executives, administrators, providers, and staff to build awareness of this new potential liability and how to prevent it.

Disparate Impact Under Health Care Civil Rights Law

Arguably, nothing demonstrates the power of health care civil rights law like a claim for disparate impact discrimination.⁸⁹ These claims challenge facially neutral policies or practices that have a disproportionate effect on protected classes. As a result, they are inordinately powerful and can be incredibly varied. They are often associated with “impact litigation” strategies. Historical examples include actions challenging the relocation of hospitals⁹⁰ and the “redlining” of minority communities by health care facilities.⁹¹

In a recent example, HHS-OCR entered into a Voluntary Resolution Agreement with the University of Pittsburgh Medical Center (UPMC) to resolve a complaint that the closure of a hospital would have had a disparate impact on access to health care for African Americans in the hospital’s community.⁹² In the Agreement, UPMC agreed to subsidize expanded hours and services at a federally qualified health center; provide door-to-door transportation for residents to three outpatient facilities in a neighboring community; and provide door-to-door service to another UPMC-affiliated hospital. Disparate impact claims may also involve allegations concerning the failure to provide language-assistance services to individuals with LEP.

These claims, however, have been exceedingly rare in health care since the U.S. Supreme Court’s 2001 decision in Alexander v. Sandoval,⁹³ which held that Title VI of the Civil Rights Act of 1964 does not permit a private cause of action for discrimination claims based on disparate impact. Though the Sandoval decision does not bar the federal government from asserting disparate impact claims under Title VI, HHS-OCR has not prioritized or pursued these claims in the health care industry. The enactment of Section 1557 of the Affordable Care Act nevertheless posed the vexing legal question of whether a private cause of action for disparate impact discrimination was available under Section 1557 and whether the ACA provided a work-around to Sandoval.

In 2016, the Obama Administration’s regulation under Section 1557 adopted an interpretation of the statutory text that endorsed this work-around view: Section 1557 provided a private cause of action for a disparate impact claim of discrimination on the basis of any protected class listed in the statute. This momentous interpretation was nevertheless rejected by most federal courts, with the very notable exception from a federal court in Minnesota, which ruled that Section 1557 was meant to create a “new, health-specific, anti-discrimination cause of action.”⁹⁴

In 2020, HHS rescinded the Obama Administration’s interpretation in its revised regulation under Section 1557, which went into effect on August 18, 2020. In view of this back-and-forth, it may be fair to say that this critical legal question—whether Section 1557 permits private causes of action for disparate impact claims of discrimination—is not completely settled at present. Instead, it is likely that courts throughout the country will continue to address this question, and if the appellate courts arrive at conflicting conclusions, this legal question could present a circuit split that would ultimately need to be resolved by the U.S. Supreme Court.

Another case illustrates the nature of a disparate impact claim. In 2020, the Ohio Nurses Association and two individuals asked a federal court to prevent Ashtabula County Medical Center (ACMC) from closing the lone maternity ward in Ashtabula County, Ohio⁹⁵ partly based on the theory that leaving the women in the county without critical OB-GYN care would constitute sex discrimination under Section 1557. According to the plaintiffs, the closest maternity unit was almost fifty miles away, and without the Ashtabula maternity unit, expectant mothers would need to present at the emergency room, which lacked staff specifically trained in OB-GYN services.

Importantly, the plaintiffs did not allege that this discrimination was intentional. Rather, they alleged that the closure would have a disparate impact on pregnant women by adversely affecting them more than men. As explained by the Court:

Plaintiffs allege a disparate impact claim of sex discrimination because the actions of ACMC in closing its Maternity Ward, although facially neutral, will have a disparate discriminatory impact on the safety and health of women employed at ACMC and in the greater Ashtabula County community.⁹⁶

Relying on the Sixth Circuit’s opinion in Doe, the Court held that a claim for sex discrimination under Section 1557 of the ACA is governed by the substantive law of Title IX—not some other legal standard unique to claims under Section 1557 itself.⁹⁷

As such, under Title IX, a plaintiff must show “the defendant discriminated against him or her because of sex; that the discrimination was intentional; and that the discrimination was a ‘substantial’ or ‘motivating factor’ for the defendant’s actions.”⁹⁸ The Court thus had no trouble concluding, consistent with the weight of authority on the issue, that Title IX does not permit a disparate-impact claim of discrimination.⁹⁹ Therefore, because the plaintiffs had not alleged intentional discrimination by the Medical Center, the Court denied the plaintiffs’ request for injunctive relief.¹⁰⁰

Conclusion

Health care civil rights law is fundamental to helping us get closer to achieving health equity. As illustrated throughout this article, they impose pervasive nondiscrimination compliance obligations on health care providers and health systems, which extend protections to individuals on the basis of race, color, national origin, disability, sex, and age. To help sharpen the legal community’s focus on health care civil rights law, the author suggests the following.

1. The health law community (legal practitioners and academia) and civic organizations should educate themselves on this extensive and nuanced body of law. They should require the formation of affinity groups where health justice advocates from multiple disciplines can meet to develop particular expertise on the topic.
2. Health law practitioners should embrace the opportunity to specialize in health care civil rights law. For example, in-house counsel within health systems could dedicate their time, attention, and expertise to promoting nondiscrimination compliance within their health systems. Outside counsel, on the other hand, could embrace the opportunity to equip, counsel, and advise health systems on achieving that compliance.
3. Legal counsel from various constituencies should embrace their role as advocates. Counsel for individuals, families, and public-interest groups should consider adding health care civil rights to their advocacy portfolio—particularly in light of the nation’s pervasive “access to justice” crisis.¹⁰¹ Counsel for health systems could in turn advocate at the policy level, especially considering the modern importance of HHS’s regulation under the ACA. Counsel for health systems could also advocate for federal funding to comply with these federal civil rights mandates.
4. The federal government should continue to invest in health care civil rights as a fundamental aspect in our pursuit for health equity. Under the Biden Administration, for example, the federal government has increased funding for HHS-OCR for the explicit purpose of increasing civil rights enforcement in health care. At the time of this writing, the Biden Administration published its Notice of Proposed Rulemaking under Section 1557, which imposes new and far-reaching nondiscrimination obligations on covered entities.

The cumulative effect of these efforts will increase compliance with federal nondiscrimination laws within the health care industry and improve our prospects for achieving health equity which, in the author’s opinion, should be treated by the health law community as one of the highest purposes of health law. In order to get there, the health law community must recognize the fundamental role that our laws play in that pursuit and invest accordingly.

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Author Profile

Drew Stevens is Senior Counsel at Caiola & Rose, LLC in Atlanta, Georgia where he practices in complex commercial litigation. In his health care litigation practice, Drew counsels hospitals and health systems on compliance with federal nondiscrimination laws, including Title III of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, Section 1557 of the Affordable Care Act, and Title VI of the Civil Rights Act of 1964. He also represents health care providers in litigation brought under these statutes and in civil rights investigations brought by the Department of Justice and the Office for Civil Rights at the Department of Health and Human Services. Drew graduated with high honors from Emory University School of Law in 2014 where he was awarded the ABA/BNA Award for Excellence in the Study of Health Law and the Dean’s Award in Regulation of Healthcare Providers. Contact him via email at [email protected].

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