Section 1557 of the Affordable Care Act (ACA) prohibits discrimination on the basis of a variety of different classifications—such as race and sex—but most notably for us, 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.
The overall requirements of Section 1557 have been in effect since their enactment in 2010, and the HHS Office for Civil Rights (OCR) has been enforcing the provision since it was enacted. As part of the text accompanying the rulemaking, OCR invites anyone that believes they may have been discriminated against under Section 1557 to file a complaint with their office.
The implementing regulations were published in the Federal Register – Vol. 81, No. 96 on Wednesday, May 18, 2016.
Covered Entities and Programs
Section 1557 covers a variety of different entities and programs relating to health care. In particular, it 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; and
- Health Insurance Marketplaces and all plans offered by issuers that participate in those Marketplaces.
Of most significant note is “all plans offered by issuers that participate in those Marketplaces,” which would directly cover any plan that is provided on or through a health insurance exchange.
Covered entities would not be required to make their health programs and activities “provided through electronic and information technology accessible if doing so would impose undue financial and administrative burdens or would result in a fundamental alteration in the nature of the health program or activity.” (81 FR 31425). When such an exception is elected for, however, the covered entity most still provide information in an alternative format.
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 are very difficult to justify. In the same vein, “fundamental alteration” claims often don’t survive even prima facie examination by technically skilled personnel. Many systems that have seemingly insurmountable accessibility challenges can be made accessible with a reasonable amount of expert consultation and brainstorming.
Want to Learn More?
If you’d like to learn more about Section 1557, which programs and activities it covers, and how to be compliant with the requirements, download our free whitepaper.