Written by Shari Ferguson
“[T]he key [point] is the fact that [the Affordable Care Act] is going to eliminate discrimination based on gender and preexisting conditions.” This statement, made by Senator Hagan during a Congressional hearing, represents one of the many goals Congress seeks to achieve in its attempt to reform the health care system of the United States. In fact, each provision of the Affordable Care Act (“ACA”) seeks to either facilitate ease of access to health care for all Americans or to eliminate discriminatory influences, which studies have shown affect access to quality health care in minority populations. However, as a result of two court decisions interpreting Section 1557 of the ACA, the nondiscrimination provision, depending on which interpretation eventually prevails, the new health specific civil rights protections created under Section 1557 of the ACA may be limited.
Section 1557 of the Affordable Care Act, the nondiscrimination provision, provides the following:
(a) IN GENERAL. - Except as otherwise provided for in the right (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IV of the Education Amendments of 1972 (20 U.S.C. 1681 et. seq.), the Age Discrimination Act of 1975 (42 U.S.C. 6101 et. seq.), or section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving the Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section 504, or such Age Discrimination Act shall apply for purposes of violations of this subsection.
(a) CONTINUED APPLICATION OF LAWS. - Nothing in this title (or an amendment made by this title) shall be construed to invalidate or limit the rights or remedies procedures, or legal standards available to individuals aggrieved under title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), title IV of the Education Amendments of 1972 (20 U.S.C. 1681 et. seq.), section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), or the Age Discrimination Act of 1975 (42 U.S.C. 6101 et. seq.), or to supersede State laws that provide additional protections against discrimination on any basis described in subsection (a).
Section 1557 of the ACA is unique because it creates a health-specific right by creating a new civil right, in a new context, while not altering existing laws. Specifically, it extends prior protections offered under other civil rights statutes, such as Title VI, by prohibiting discrimination in federally funded health programs any part of which is receiving federal financial assistance, federally administered health programs and new ACA authorized exchanges.
Like many of the surrounding provisions of the ACA, Section 1557 is not inherently clear. The complexity of Section 1557 is a by-product of its reference to and incorporation of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and section 504 of the Rehabilitation Act of 1973. Each of the referenced statutes incorporated within Section 1557 are modelled after Title VI, and all are similarly phrased. When statutes are similarly phrased, courts have interpreted the like terms to have the same legal meaning. In other words, if the terms in a statute have received prior judicial construction, then those terms should be interpreted the same way. Therefore, Section 1557 should have the same meaning as the statutes it references. However, each of the statutes utilize different standards for determining liability, causation and a plaintiff’s burden of proof. As a result, the problems with interpreting Section 1557 may impact the non-discrimination goals of ACA as a whole.
Section 1557 has the potential to impact the health care industry, however, not many claims filed under Section 1557 have reached courts. Currently, two courts have interpreted Section 1557 of the ACA, both concluding that Section 1557 grants an individual a private right of action for health care related discrimination violations. Therefore, private litigants are afforded the right to relief for injuries suffered from a violation of Section 1557. However, because the statute incorporates four different civil rights statutes, the courts disagreed about the applicable standards and burdens of proof required to establish a Section 1557 claim.
In Rumble v. Fairview Health Services, No. 14-CV-2037 SRN/FLN, 2015 WL 1197415, in the District of Minnesota, the court held that Congress’s incorporation of the four statutes was solely to identify the grounds on which discrimination is prohibited, “i.e., race, sex, age, and disability.” As a result, the court inferred that Congress intended the same standard and burden of proof to apply to a Section 1557 claim, regardless of a plaintiff’s protected class. The court reasoned that to hold otherwise would lead to “patently absurd consequences.” Specifically, multiple standards present an element of unfairness to those bringing an intersectional discrimination claim because they would be burdened with each statutes causation requirements.
In contrast, in Southeastern Pennsylvania Transportation Authority v. Gilead Sciences Inc., 2015 WL 1963588 (ED. Pa. May 4, 2015) (“SEPTA”), the court concluded Congress’s inclusion of the four civil rights statutes was meant to import the various standards and burdens of proof available under each statute. Therefore, the standards and burdens of proof for a Section 1557 claim varies depending on an individual’s protected class.
While these cases come to the same conclusion that Congress intended to create a private right of action by incorporating the four referenced statutes, their disagreement about the standards to apply demonstrates the need for something more than federal regulations interpreting Section 1557 to resolve this discrepancy. Currently, the proposed regulations have now been finalized, however, even the finalized regulations, fail to clarify the standard or burden of proof that is applicable to a Section 1557 claim. Looking at the different enforcement mechanisms of each referenced statute can undoubtedly guide interpretation; however, it is important to look at the policies which the ACA was meant to implement. SEPTA’s interpretation of Section 1557 can ultimately undermine or complicate enforcement of the antidiscrimination commitments of the ACA. There is not much legislative history on Section 1557; however, we cannot disregard the purpose of the ACA and what its ultimate effect will be, a complete overhaul of the current healthcare system.
SEPTA’s interpretation of Section 1557 should not be the controlling interpretation of the standards and burdens of proof that apply to a Section 1557 claim. Courts cannot simply look at Section 1557 of the ACA in the same light as they did with other civil rights statutes. To the contrary, the current legal jurisprudence of the statutes incorporated in Section 1557 should also not be ignored, there must be a balance. The legislative history of the ACA is unique, and courts have looked at a statute’s unique legislative history as an opportunity to interpret it differently than others, even if the statutes share similar terms. Additionally, the languished compliance of other civil right statutes mainly due to weak enforcement mechanisms, specifically Title VI, with regard to health care related discrimination claims should be considered. Doing such recognizes Congress’s intent to create broad protections against discrimination and thus requires a uniform reading of the statute to apply to all litigants equally, regardless of their protected class.
Incorporating all the different standards from every other statute into a health-care statute is virtually impossible and unworkable. Those standards and burdens applicable to the statutes incorporated in Section 1557, were not aimed at a health specific purpose. Such incorporation fails to promote the goals of Section 1557 and the ACA as a whole. Section 1557 has the potential to change the future of health care related discrimination claims; however, it might be years before this change is realized if SEPTA’s limiting holding prevails.