Section 1557 of the Affordable Care Act (ACA) prohibits discrimination on the basis of disability. Section 1557 is not intended to stand alone but works in conjunction with other Federal anti-discrimination and civil rights legislation. Specifically, the law reiterates the prohibitions for discrimination already present in Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and the Americans with Disabilities Act (ADA) of 1990. To that extent, it can be argued that everything covered under Section 1557 is already covered under current laws.
Covered Entities and Programs
Section 1557 covers:
- Any health program or activity—in whole or part—that receives funding from the U.S. Department of Health and Human Services (HHS)
- Any health program or activity that HHS directly administers
- Health Insurance Marketplaces and all plans offered by issuers that participate in those Marketplaces.
The regulatory text is relatively concise with only two requirements: first, that covered entities provide accessible electronic and information technology unless it would result in undue burden; and second, that health programs and activities provided through websites should comply with the requirements of Title II of the ADA.
Covered entities with 15 or more employees must: “(i) have a grievance procedure and (ii) a compliance coordinator. In addition, covered entities must post notices of nondiscrimination to relevant public facing systems” (81 FR 31443).
The rule requires covered entities to make all health programs and activities provided through electronic and information technology accessible. This would include:
- access to an online appointment system,
- accessible electronic billing and statements,
- comparison of health plans offered through a health insurance marketplace, and
- information on the specific plan and benefits provided.
Anything that falls under the broad scope of electronic and information technology would fall under the scope of the regulation. This includes:
- web applications,
- mobile applications,
- electronic documents and statements, and
- any electronic communication—most notably e-mail communication.
The covered programs and activities are limited to those that are directly related to consumers and, in general, not applicable to employee or provider facing systems.
The Section 1557 regulations do not require conformance to a specific standard such as the Web Content Accessibility Guidelines (WCAG) 2.0 AA requirements. However, conformance to a well-recognized digital accessibility technical standard—almost always WCAG 2.0 AA—is strongly correlated with actual accessibility as well as providing a strong degree of defensibility to the implementing organization.
In practice, SSB’s experience indicates that few, if any, programs or activities will fall under the undue burden or fundamental alteration exception. Undue burden tends to be interpreted in the context of an entire organization—versus purely the specific program or project—and in that context are very difficult to justify as unduly burdensome.
What About Trump?
Section 1557 is expected to be impacted if Trump meets his stated goal to “repeal and replace Obamacare.” However, even if Section 1557 is repealed or materially altered, it was explicitly stated during the rulemaking process that the ACA requirements overlapped with the requirements in Section 504 of the Rehabilitation Act and Title II of the ADA. The ACA regulations added “no new requirements.” Even with possible changes coming to the ACA, health care providers will still be under the same legal obligations as before.
Want to Learn More?
This free on-demand webinar features SSB CEO Tim Springer and Chief Accessibility Officer Jonathan Avila, joined by attorney David McDowell of Morrison & Foerster LLP to discuss:
- What types of healthcare technologies are being targeted with legal actions
- The results of structured negotiation in the healthcare industry
- Why accessibility requirements won’t change even if/when the ACA is repealed
- What it means to be WCAG 2.0 compliant (in non-techy speak)
- And more!