OCR Enforcement under Section 1557 of the Affordable Care Act Sex Discrimination Cases
Section 1557 is the civil rights provision of the Affordable Care Act and it prohibits discrimination on the basis of race, color, national origin, sex, disability, or age in certain health programs and activities. The HHS Office for Civil Rights (OCR) is responsible for accepting and investigating Section 1557 complaints. Section 1557 is the first federal civil rights law to prohibit discrimination on the basis of sex in covered health programs and activities.
On December 31, 2016, the U.S. District Court for the Northern District of Texas issued an opinion in Franciscan Alliance, Inc. et al v. Burwell, enjoining the Section 1557 regulation’s prohibitions against discrimination on the basis of gender identity and termination of pregnancy on a nationwide basis. Accordingly, HHS’ Office for Civil Rights (HHS OCR) may not enforce these two provisions of the regulation implementing these same provisions, while the injunction remains in place. Consistent with the court’s order, HHS OCR will continue to enforce important protections against discrimination on the basis of race, color, national origin, age, or disability, as well as other sex discrimination provisions that are not impacted by the court’s order.
Below are a few case examples that highlight OCR’s enforcement results in complaints alleging discrimination on the basis of sex.
An individual alleged that he was denied the benefits of appropriate care and treatment at the Touro Infirmary Emergency Department in Louisiana after a domestic violence incident and that he was subjected to rude comments from hospital staff because he was a male victim of domestic violence. After OCR initiated an investigation, Touro revised its abuse protocol to provide gender-neutral procedures for reporting incidents involving domestic abuse. Touro also provided training to its emergency department staff on identifying and assessing victims of domestic abuse.
The St. Bernard Medical Center in Arkansas had a policy and practice that treated married individuals differently on the basis of sex. For example, the Medical Center automatically assigned a male spouse as the guarantor (sole financially responsible party) when a female spouse received medical services. However, when a male spouse received services, his female spouse would not automatically be assigned as the guarantor. As a result of OCR’s investigation, the Medical Center changed its billing practices to ensure equal treatment regardless of the sex of the patient.
The Avera Marshall Regional Medical Center in Minnesota had a similar practice of treating married individuals differently on the basis of sex. If the patient was male, he was automatically listed as the guarantor for billing purposes. However, if the patient was female, the Center automatically assigned the patient’s husband as guarantor. The Center subsequently changed its billing process to list the patient as the guarantor of his or her bill and allow parents to choose the guarantor of their minor children. As a result of OCR’s investigation of a related HIPAA Privacy Rule complaint that the Center disclosed a woman’s personal health information to her husband despite her specific request to restrict disclosure of the information, the Center also implemented a new restrictions policy and provided training to staff on the policy.