With legal battles ongoing, CyraCom reached out to attorney Andrew Stevens to write about the current state of Section 1557 litigation. The material herein is educational and informational only. No legal advice is provided.
In 2016, the Department of Health and Human Services (HHS) significantly expanded the rights of limited English proficient (LEP) individuals seeking treatment from US healthcare providers. This Final Rule on Section 1557 of the Affordable Care Act provides updates on signage requirements and outlines what constitutes a ‘qualified interpreter’. It also clarified that the law grants individuals a private right to bring lawsuits against providers for national origin discrimination.
The Final Rule further states that Section 1557 gives LEP individuals the right to sue for both disparate impact and disparate treatment; or, in layman’s terms, unintentional and intentional discrimination. This interpretation has proven controversial. Various US courts have come to differing conclusions as to its validity, and President Trump’s HHS has proposed changing the Final Rule to eliminate disparate impact lawsuits by individual patients.
“Disparate Impact” Claims of Discrimination on the Basis of National Origin
A critically important but unsettled legal question is whether Section 1557 not only prohibits intentional discrimination in federally-funded healthcare; but also the unintentional discrimination known as “disparate impact”. Disparate impact discrimination occurs where a covered provider adopts a facially neutral policy or practice that disproportionately affects a protected class.
Section 1557 designates race, color, national origin, sex, age, and disability as protected classes.
HHS originally concluded that Section 1557 provides a private right of action for a disparate impact claim in healthcare for each class enumerated in the statute. And at least one federal court has agreed, ruling that Congress intended to create a new cause of action for discrimination in healthcare by passing Section 1557. Using this interpretation, a private plaintiff (e.g. a single patient, a class of patients, or a civil rights group pursuing an impact-litigation strategy) could challenge any facially neutral policy or practice that disproportionately impacts any protected class under Section 1557.
Critically, a prime example of such a policy or practice is a provider’s language-access policies or practices, because the failure to provide meaningful access to LEP patients amounts to discrimination on the basis of national origin. This is significant for several reasons.
A hospital or health system that provides English-only care may not be practicing intentional discrimination against LEP patients. It’s a facially neutral policy that treats every patient “the same.” But the policy would have a disparate impact on non-English speakers, which could constitute national origin discrimination under Section 1557…