On March 13, 2017, twelve hearing impaired individuals filed suit in federal district court in Arizona against a large health system (the “System”) alleging discrimination under Section 1557 of the Affordable Care Act. In the complaint, the plaintiffs allege that the System discriminated against them by “refusing to provide effective auxiliary aids and services, despite their repeated requests for effective communication.” Specifically, the plaintiffs assert that the System:
- Failed to provide on-site American Sign Language (“ASL”) interpreters when necessary;
- Provided malfunctioning Video Remote Interpreting (“VRI”) systems;
- Failed to adequately train employees on the use of VRI systems; and
- Required plaintiffs to rely on alternative means of communication, including passing of notes and lip reading, that were inadequate for the medical treatment required by the plaintiffs.
In addition to damages, the plaintiffs are seeking to compel the System to implement policies and procedures to ensure effective communication and a meaningful opportunity to participate in and benefit from the System’s services.
Section 1557 Requirements
Section 1557 prohibits discrimination on the basis of race, color, national origin, sex, age or disability in any health program activity that receives federal financial assistance. Section 1557’s prohibition on disability discrimination specifically requires covered entities to take steps to ensure that communications with individuals with disabilities, including individuals with impaired sensory, manual or speaking skills, are as effective as communications with others. Effective methods of communication may include the use of in-person interpretation services, visual aids or auxiliary aids.
To impose a consistent standard among all covered entities, Section 1557 adopted the communication requirements outlined in Title II of the Americans with Disabilities Act (“ADA”), which otherwise would apply only to state and local governments. These Title II standards are more stringent than the Title III standards that generally apply to hospitals as places of accommodation. Specifically, Title II requires covered entities to give “primary consideration” to the person with a disability’s choice of auxiliary aid. The individual’s choice must be honored unless the covered entity can prove:
- That an alternative auxiliary aid or service provides communication that is as effective as that provided others;
- The requested aid or service would result in a fundamental alteration of the nature of the service, program or activity; or
- The requested aid or service would result in an undue financial and administrative burden.
A comprehensive overview of the Section 1557 requirements for equal access for individuals with disabilities can be found here.
In addition to a covered entity’s potential loss of federal funding, Section 1557 allows individuals to bring individual or class action claims directly against covered entities that are non-compliant. Damages from these lawsuits can include compensatory damages and an award of plaintiffs’ attorneys’ fees and costs. Several lawsuits have been filed under Section 1557 since the July 2016 effective date of the Section 1557 regulations.
To ensure compliance with the communication requirements of Section 1557, covered entities should:
- Review and understand the requirements for effective communication under Title II of the ADA;
- Review current policies, procedures and publications to identify necessary modifications related to the provision of language assistance services;
- Train staff on appropriate methods of assessing the communication needs of patients;
- Provide appropriate auxiliary aids and services to patients in a timely manner and free of charge;
- Educate staff how to identify when an in-person interpreter may be required for effective communication;
- Educate staff on the importance of documenting their efforts to accommodate patient requests for communication assistance;
- Be aware of the capabilities of their VRI systems and be prepared to have alternative solutions in the event of VRI malfunction, such as glitches or an inability to connect to the service; and
- Ensure compliance with applicable state law requirements concerning the use of VRI in health care settings.