Nondiscrimination and the Affordable Care Act

By Sascha Murillo, Community Organizer – Health Justice

and Mindy Friedman, Staff Attorney – Disability Justice

Last week, states around the country and the federal government debuted their health insurance marketplaces, setting the media aflutter as reports came in of glitches and system overloads.  The marketplaces are the centerpiece of the Affordable Care Act (ACA) and will allow millions of uninsured and underinsured individuals and families to shop for an affordable health plan. In New York, over 1 million NYS residents are expected to gain coverage through the marketplace, over half of whom are people of color. And while much attention was given to computer system errors, other challenges such as language barriers have also surfaced, bringing to light many access issues that different populations will face when trying to apply for coverage.

Little known to many, the ACA contains a crucial provision that aims to ensure equitable access. Section 1557 is a civil rights provision that prohibits health programs receiving ACA funding from discriminating on the ground of race, color, national origin, sex, age, or disability. Amidst the launch of the marketplaces last week, advocates around the country submitted comments to the Health and Human Services’ Office of Civil Rights (OCR) in response to a Request for Information (RFI) that was issued in August. Comments will inform proposed regulations that advocates hope will be issued later this year.

NYLPI’s Health Justice and Disability Justice programs teamed up to submit comments covering a wide range of topics, including best practices for translation thresholds, the experiences of and impacts of discrimination on people of color, people who speak a primary language other than English, and people with disabilities, as well as recommendations for compliance, oversight, and enforcement.  Here we provide some key recommendations from the comments submitted.

Language Access

NYLPI has documented many cases of individuals who were unable to access quality health care services due to language barriers. Such experiences have led NYLPI to champion policies that improve access for LEP populations in NYS. Section 1557 provides an opportunity to ensure equitable access for individuals who are limited English proficient (LEP). In New York State, 36% of individuals who are eligible for coverage through the marketplaces are limited English proficient (LEP). To adequately serve this population, marketplaces, navigators and in-person assisters, and Qualified Health Plans (QHPs) should provide linguistically appropriate services. This includes translating all vital documents and websites in the top languages in the state or service area. Oral interpretation must be provided by trained and culturally competent interpreters.

Disability Access

As of 2008, over 20% of adults 18 and older in New York State have a disability.  NYLPI has long heard complaints from individuals with all types of disabilities about the pervasive inaccessibility of health care in New York City.  Inaccessibility is the result of architectural and communication barriers, inaccessible equipment, and provider bias.  As documented in a report NYLPI released with Independence Care System last fall, these barriers exist in facilities of all sizes, including hospitals, community clinics, and doctors’ offices, and they result in inferior health care and disparate outcomes for patients as well as unnecessary costs to providers.  It is vital that Section 1557 cover the wide range of healthcare providers, programs, and organizations that engage with individuals at various points in their overall pursuit of health care services.  Additionally, many deaf individuals have limited English proficiency and should therefore be considered part of the LEP population.

Compliance and Enforcement

OCR’s existing complaint process has achieved significant victories in the area of accessible health care. With respect to national origin and race, however, much of the discrimination that occurs in the healthcare context constitutes disparate impact discrimination for which there is no private right of action. Under Section 1557, OCR should include comprehensive enforcement mechanisms, including a private right of action for both individuals and organizations seeking to bring claims based on intentional discrimination as well as disparate impact.  Further, in order to ensure that enforcement does not depend solely on complaints, OCR should coordinate with the Joint Commission, an independent, not-for-profit organization that accredits and certifies health care organizations, to monitor health facilities for compliance on a yearly basis.  Finally, OCR should work with stakeholders to develop trainings and guidance documents for patients and providers.

Read our full comments here.

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