On September 8, 2015, the Department of Health and Human Services (“HHS”) proposed regulations to implement Section 1557 of the Affordable Care Act. Section 1557 prohibits certain entities that administer health programs and activities from excluding an individual from participation, denying program benefits, or discriminating against an individual based on his or her race, color, national origin, sex, age or disability. On May 13, 2016, the HHS Office of Civil Rights issued the final rule implementing Section 1557. The final rule also prohibits discriminatory practices by health care providers, such as hospitals, that accept Medicare or doctors who participate in the Medicaid program. The final rule became effective on July 18, 2016.

Section 1557 builds on long-standing federal civil rights laws, including Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, Title III of the Americans with Disabilities Act (ADA), and the Age Discrimination Act of 1975. The final rule addresses effective communication for individuals with disabilities at section 92.202. One notable requirement of this new rule is that hospitals must give “primary consideration” to the individual’s preference regarding auxiliary aids for effective communication, such as requests for on-site ASL interpreters and other types of auxiliary aids.

In the proposed rule, OCR considered whether to incorporate the standards in the regulation implementing Title II of the ADA or the standards in the regulation implementing Title III of the ADA. Under Title II, government entities are required to give “primary consideration” to the choice of auxiliary aid requested by an individual with a disability, whereas under Title III, the ultimate decision as to what auxiliary aid to provide rests with the private entity.

After addressing the public comments received regarding the proposed final rule pertaining to this section, HHS concluded that:

we believe it is appropriate to hold all recipients of Federal financial assistance from HHS to the higher Title II standards as a condition of their receipt of that assistance. We also noted that it is appropriate to hold HHS itself to the same standards to which the Department subjects the recipients of its financial assistance. (emphasis added)

What does it mean for a hospital to give “primary consideration” to an individual’s expressed choice of auxiliary aid? In its technical assistance manual for Title II of the ADA, the DOJ explains that:

When an auxiliary aid or service is required, the public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice and must give primary consideration to the choice expressed by the individual. ‘Primary consideration’ means that the public entity must honor the choice, unless it can demonstrate that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental alteration in the service, program, or activity or in undue financial and administrative burdens. — Dep’t of Justice, The Americans with Disabilities Act: Title II Technical Assistance Manual 38 (1993) (emphasis added).

State and local government services under Title II must give the person with a disability an opportunity to make an express choice, and the “public entity shall give primary consideration to the requests of the individual with “to request the auxiliary aids and services of their choice.” This contrasts with Title III of the ADA (which applies to public accommodations, including hospitals), which permits a public accommodation to consult with disabled individuals whenever possible to determine what type of auxiliary aid is necessary to ensure effective communication, but the ultimate decision as to which aid to use is left to the hospital.

Very few courts have analyzed the “primary consideration” test in the context of visually or hearing impaired plaintiffs. However, Bonnette v. District of Columbia Court of Appeals, 796 F. Supp. 164 (2011), provides some useful guidance. In Bonnette, the plaintiff was a legally blind law school graduate who sought an order allowing her to take the D.C. bar exam with the assistance of a computer equipped with an accessible screen-reading program commonly used by individuals with visual impairments, and other accommodations. Her request was partially granted, but her request to use the specially equipped computer to take the Multistate portion of the bar exam was denied. In its place, the NCBE, which administers the bar exam on behalf of the Court of Appeals, offered plaintiff the use of an audio CD or a human reader, who was also an attorney. NCBE also claimed that it ran on a very tight budget, and could not afford the extra $5,000 that the special computer would cost. Plaintiff presented evidence as well as expert testimony that the accommodations she requested were optimal for her skill set and in this particular situation.

The Court held that the Court of Appeals was subject to the heightened standards of Title II, whereas NCBE was subject to the standards set forth in Title III. Although the Court agreed that the defendants were not required to provide plaintiff with her requested accommodation, it did find that:

both the Title II regulations applicable to the Court of Appeals (through the “primary consideration” requirement) and the Title III regulation applicable to NCBE (through its “best ensure” requirement) require that Bonnette be provided with an accommodation that is at least “as effective” as her preferred accommodation. Therefore, if Bonnette can establish that the alternative accommodations offered to her by Defendants do not make the MBE accessible to her in the same way that [her requested accommodation] does, then Defendants must provide her with [her requested accommodation] unless they can establish that doing so would fundamentally alter the nature of the examination or constitute an undue burden.

The new ACA rule now requires hospitals to honor the patient’s and/or companion’s requested auxiliary aid unless it can demonstrate that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental alteration in the service, program, or activity or in undue financial and administrative burdens. Non-compliance with the new final rule could result in investigations by the Department of Justice, OCR reviews, and lawsuits by aggrieved individuals. In addition, a recent Supreme Court decision held that non-compliance with a material statutory or regulatory requirement also could result in liability under the False Claims Act.

How can hospitals meet this new, heightened standard? Hospital staff should be trained on what auxiliary aids are appropriate and necessary in any given situation. Hospital staff should also be reminded to document the patient’s and/or companions requested auxiliary aid in the medical record, as well as any complaints by the patient and/or companion about the auxiliary aid provided by the hospital. Most importantly, hospital staff should engage in a dialogue with the patient and/or companion, to ensure that the auxiliary aid provided by the hospital is meeting his or her needs throughout the hospital stay.