New litigation targeting large health systems in the Southeast and a new Department of Justice settlement agreement show that disability-discrimination in the healthcare industry is on the rise.

Federal Prohibitions on Disability Discrimination in Healthcare

Section 1557 of the Affordable Care Act prohibits disability discrimination in federally-funded health care programs by referencing Section 504 of the Rehabilitation Act and incorporates Section 504’s pre-existing definition of disability. Private health care facilities are also barred from discriminating on the basis of disability under Title III of the Americans with Disabilities Act (ADA), because they are considered places of public accommodation under the law.

Taken together, these three nondiscrimination laws require covered healthcare providers to take a number of steps to prevent discrimination against individuals with disabilities. For example, and as previously summarized by HHS:

• Section 1557 requires effective communication, including through the provision of auxiliary aids and services; establishes standards for accessibility of buildings and facilities; requires that health programs provided through electronic and information technology be accessible; and requires covered providers to make reasonable modifications to their policies, procedures, and practices to provide individuals with disabilities access to a covered provider’s health programs and activities.

Perhaps unsurprisingly, and in view of these multiple obligations, private litigation in this space has quickly developed into a burgeoning specialty for multiple firms across the country.

Litigation concerning Accessibility of Online Electronic Information

For example, in the month of January 2019, two complaints under Section 1557, Section 504, and Title III of the ADA were filed by the same law office against two large health systems in Florida. See Gil v. Mayo Clinic Jacksonville, 3:19-CV-00015 (MD. Fla. Jan. 3, 2019); Price v. Baptist Health System, Inc., 3:19-CV-00132 (M.D. Fla. Jan. 30, 2019). The allegations in both complaints center on the alleged failures of these health systems to provide patients who are blind full and equal access to the systems’ programs, services, and activities—specifically, by failing to provide accessible electronic health information through the systems’ publicly-available websites. In both complaints, the plaintiffs seek injunctive relief, damages, and attorney’s fees and costs.

Litigation concerning Auxiliary Aids for Deaf or Hard-of-Hearing Patients

Similarly, two complaints were filed in the last two years by a second law office in Arizona concerning discrimination against deaf or hard-of-hearing patients. See The Southwest Fair Housing Council v. WG Chandler Villas SH, LLC et al., 4:18-cv-00210-RM (D. Ariz. April 20, 2018.); Paula Cook, et al. v. Banner Health, et al., 2:17-cv-00758-JJT (D. Ariz. March 13, 2017). In both complaints, the allegations center on the healthcare providers’ alleged failure to provide auxiliary aids and services, including on-site interpreters or Video-Remote Interpreting services, to deaf and hard-of-hearing patients—thereby allegedly denying those patients the opportunity to effectively communicate with their medical providers.

Elsewhere, and more recently, a similar complaint based on similar allegations filed in the Southern District of New York resulted in an award of monetary damages, injunctive relief, and attorney’s fees. See Michelle Puerner v. Hudson Spine and Pain Medicine P.C., 2018 WL 4103491 (S.D.N.Y. Aug. 28, 2018).

Department of Justice Settlement Concerning Discrimination against Patients with Substance Abuse Disorders

Lastly, on January 31, 2019, the Department of Justice 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.

The settlement agreement required the provider to adopt non-discrimination policies, train staff on its non-discrimination 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 payments that would have the effect of screening out individuals with disabilities, including those based on an opioid disorder.

This settlement comes on the heels of HHS OCR’s launch of a campaign aimed at educating the healthcare industry on the civil rights of patients with opioid use disorders. For more information on this public education campaign, and to access the educational resources prepared by HHS OCR, you may visit HHS OCR’s website.