The ACA’s Nondiscrimination Rule: A Right In Search of a Remedy

By Elizabeth Sepper

Every law student learns the ancient adage that there is no right without a remedy. Section 1557 makes clear that individuals have rights against discrimination in healthcare and a private right of action to enforce them. But it’s less clear as to when and how they have remedies.

Section 1557 provides individuals protection against discrimination on “the ground prohibited under” four preexisting civil rights statutes–Title VI of the Civil Rights Act, Title IX of the Education Amendments, the Age Discrimination Act, and Section 504 of the Rehabilitation Act. The statute also makes available “the enforcement mechanisms provided for and available under” these four civil rights statutes. This language makes two things clear. First, Section 1557 prohibits discrimination on grounds of race, color, or national origin (Title VI); sex (Title IX); age (Age Discrimination Act); and disability (Rehab Act). Second, as district courts have agreed, the statute authorizes both private rights of action and agency enforcement as “enforcement mechanisms.”

So far, so good. But each statute has its own specific legal standards, and remedies. For example, a plaintiff alleging age discrimination under the Age Discrimination Act must first exhaust administrative remedies. By contrast, a plaintiff can file a private suit directly when suing under Title IX. And private parties can’t bring lawsuits targeting policies with disparate impacts on racial minorities under Title VI. But people with disabilities can allege disparate impact pursuant to Section 504.

The text of Section 1557 is ambiguous: either (1) claims that Section 1557 has been violated are treated uniformly across prohibited grounds or (2) plaintiffs have different rights and remedies depending upon whether they allege race, sex, disability, or age discrimination. Courts have already divided on this question.

Dangers of a Disjointed Reading of Section 1557

The stakes are high. Importing different standards into the enforcement of a single healthcare civil rights statute would lead to what one district court called “an illogical result” and “absurd inconsistency.” In particular, the resolution of intersectional discrimination claims would lack any clear standards. When presented with claims, for example, that a health program had violated Section 1557 by discriminating against Latino elderly people, courts would lack guidance as to whether the claims should be analyzed under the standards governing race or age.

Imagine a hospital that does not accept Medicaid. This policy has a disparate impact on HIV patients of color. If violations of Section 1557 involve uniform standards, the plaintiffs could go forward with disability and race discrimination disparate claims. But if courts adopt a piecemeal approach to 1557, the plaintiffs would have to proceed on a claim of disability discrimination alone, because Title VI—unlike Section 504—only applies when there is an intent to discriminate. Indeed, in one of the only reported decisions related to Section 1557, the court concluded that plaintiffs had recourse for practices with discriminatory effects if they alleged disability discrimination, but could not proceed if they suffered race discrimination.

The problems compound from there. Assume a hypothetical hospital admits patients with HIV at non-discriminatory rates. However, closer inspection reveals that 98% of the admitted patients with HIV are white and are only 2% are non-white. There is a clear pattern of discriminatory impact on HIV patients of color, a problem the ACA clearly seeks to address. Yet a restrictive reading of Section 1557 means they may not be able to recover. The patients being denied admission do not have a claim for discrimination on the basis of disability alone because of the non-discriminatory admission rate for HIV patients. But to successfully mount a claim under Title VI, claimants must demonstrate intentional race discrimination. They seem unlikely to be able to do so, because to prevail, the hospital need only show that its discriminatory admission policy is not pretext for intentionally screening out non-white patients. If the hospital succeeds, it can continue excluding HIV patients of color. Such a conclusion transgresses the underlying purpose of the ACA and the explicit purpose of Section 1557.

A Better Interpretation: The Need for a Uniform Comprehensive Section 1557

The ACA is our era’s civil rights statute. Beyond the explicit nondiscrimination protections of Section 1557, the ACA manifests a policy goal of universal, nondiscriminatory healthcare access. The law includes protections targeted to ensuring the health of people with disabilities, racial and ethnic minorities, and women in particular. More broadly, the goal of eradicating discrimination is represented by one of the ACA’s central reforms—prohibiting health insurers from discriminating based on health-related statuses in making eligibility decisions and in setting premium rates, a phenomenon one of us has dubbed “healthism.” Any interpretation of Section 1557 must reflect this fundamental purpose.

The best reading of the statute—and one that comports more readily with the statutory language and congressional intent—adopts uniform and comprehensive standards for enforcement. HHS should interpret Section 1557 to provide an independent private right of action that covers a broad range of legal claims—including both disparate treatment and disparate impact—and to offer claimants a choice of remedy. In claiming violations of 1557, individual litigants—whether they allege race, sex, disability, or age discrimination—should be able to avail themselves of the same enforcement mechanisms with uniform legal standards and remedies.

For much, much more on this point, see comments authored with health and equality experts (Jessica Roberts, Elizabeth Deutsch, Elizabeth Dervan, and Jessica Clarke). For earlier posts on Section 1557, see here, here, and here.

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