This week marks the end of National Minority Health Month and its 2016 theme of “Accelerating Health Equity for the Nation.” This month, the HHS Office of Minority Health’s goal was to “raise awareness of the health disparities that continue to affect racial and ethnic minorities,” and to highlight “how we are working together to accelerate health equity.”
To support this goal, Congress will host (and I will attend) a forum this Friday entitled “Achieving Health Equity: The Path Forward.” At this forum, experts and congressmen and women will discuss the ways in which health equity can be advanced through expanded access to insurance, culturally competent and linguistically appropriate care, and improved data collection. In addition, the Tri Caucuses will likely soon reintroduce the Health Equity and Accountability Act, a bill that seeks to comprehensively address—and eliminate—health disparities in the U.S.
But as a litigator who regularly represents healthcare providers, I often wonder: is there a legal side to health equity? And as a matter of fact, there is—or at least there will be soon.
As I’ve written before, Section 1557 of the ACA—though it has largely gone unnoticed—will have a significant impact on the healthcare industry. In short, Section 1557 prohibits discrimination in the provision of healthcare on the basis of several protected classes, including for the first time ever on the basis of “sex.” Together with its proposed regulatory overlay, Section 1557 is the legal side of health equity.
For example, under Section 1557, a healthcare provider may not deny care to a patient on the basis of a patient’s race, sex, age, disability, or national origin. Significantly, courts and HHS are interpreting “sex” to include gender identity. But Section 1557 also prohibits unintentional discrimination. Thus, any facially neutral healthcare policy that disproportionately affects a protected class may be challenged as unlawful. Many civil rights commentators view litigation of this kind (called disparate impact litigation) as a necessary condition to achieving health equity.
The proposed regulatory overlay of Section 1557 (to be finalized in the coming months) further codifies the legal side of health equity. Under the proposed regulations, healthcare providers with 15 or more employees must designate an employee for coordinating compliance with Section 1557 and its regulations. Healthcare providers must also adopt a formal grievance procedure that promptly and equitably resolves allegations of discrimination. They must comply with extensive notice requirements, informing individuals that: 1) the provider does not discriminate; 2) there are grievance procedures available; and 3) they may file a complaint with HHS on the basis of any discrimination. And finally, healthcare providers must ensure meaningful access for individuals with limited English proficiency or disabilities. If a provider is found to have committed a violation of Section 1557, that provider must also take remedial action to overcome the effects of any discrimination.
Section 1557 and its regulations are therefore the legal side of health equity. They require healthcare providers to take action or risk legal consequences. They provide remedies for aggrieved patients and allow for state and Federal enforcement of nondiscrimination law. And while the health equity movement has largely been collaborative—consider the hundreds of providers that have taken the #123forEquity Pledge — as a litigator, I know that collaborative relationships can sometimes turn adversarial.
To that end, healthcare providers should ensure compliance with the final regulations under Section 1557 (once they are released) and take steps to ensure that no patients feel as though they have been discriminated against in their healthcare. Litigation under Section 1557 and its regulations is inevitable (and in fact ongoing), but with care, healthcare providers can minimize their risk and continue in their work to accelerate health equity.
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