SCGhealth Blog

You can’t play discrimination dodge ball when it comes to patient communication

Tuesday, February 28, 2017

By Marla Durben Hirsch, contributing writer

Be prepared to provide communication and other assistance to patients with disabilities or with limited English proficiency. There’s been an uptick in government enforcement in this area, with the Office of Civil Rights (OCR) announcing a settlement a month for the last four months against entities that have dropped the ball.

In the most recent settlement, UConn Health agreed to settle allegations that its John Dempsey Hospital failed to provide services and auxiliary aids to a patient in the emergency department who was deaf and requested communication assistance. OCR, joined by the Connecticut attorney general’s office, claimed that the Hospital violated not one but three different laws: 1) The Americans with Disabilities Act (ADA), which prohibits state and local government entities from discrimination against individuals with disabilities; 2) Section 504 of the Rehabilitation Act, which bars discrimination on the basis of disability in any program or activity receiving federal financial assistance and 3) Section 1557 of the Affordable Care Act (ACA), which expanded providers’ obligations to patients with communication problems, such as those with disabilities and limited English proficiency.

The health system has agreed to pay $20,000 in compensatory relief to the patient and take other steps to avoid communication snafus in the future, including revising policies and procedures, training staff, posting a notice of nondiscrimination and assigning an employee to be a civil rights coordinator.

What’s significant is that while OCR noted that the hospital was subject to all three laws and violated all of them “collectively,” in actuality even a solo practitioner is going to be hard pressed to avoid compliance with the laws banning discrimination against those with disabilities or other communication difficulties, since it’s likely that at least one law will apply.

For example, all providers are required under Title VI of the Civil rights Act of 1964 to take reasonable steps to make their programs, services and activities available to those with limited English proficiency. Section 1557 of the ACA applies to any health program or activity which receives any federal financial assistance, which includes Medicaid and Medicare managed care. Only providers participating just in Part B Medicare and receive no other federal money would be exempt.

Moreover, providers should expect to see more enforcement in this area. OCR began its “barrier free health care initiative” several years ago, primarily to help deaf patients obtain interpreter assistance when seeking health care.

However, since section 1557 of the ACA requires providers to publicize that they do not discriminate, it is likely that more aggrieved patients will be filing complaints with OCR, since their awareness of their rights will be increased awareness of their rights.

In addition, OCR has been stopped – that is “enjoined”- from enforcing two of the other nondiscrimination provisions of section 1557. A federal court on December 31 ruled that OCR can’t pursue alleged violations of discrimination against entities on the basis of gender identity or termination of pregnancy. So it’s possible that OCR will concentrate on those components of section 1557 that it can still investigate and enforce.

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