Failure to Provide Communication Aid Costs Hospital $20K

John Dempsey Hospital agreed to pay $20,000 as compensation to a patient after failing to provide auxiliary communication aids during an emergency department visit. The patient, who is deaf and uses American Sign Language for communication, had to rely on a companion for all treatment communications.  In addition to paying compensation to the patient, the hospital is required to undergo a comprehensive review of its corporate policies and procedures to implement changes to enhance access, address intake and grievance procedures, adjust technology capabilities and institute staff training to ensure compliance with Section 1557.

Despite requesting interpreter services upon arrival at the hospital’s emergency department, the patient was not provided an interpreter or video remote interpreting services and had to rely on a companion to interpret throughout the hospital visit. After receiving a complaint about the incident, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR), in partnership with the U.S. Attorney’s Office of the District of Connecticut conducted a compliance review of the hospital’s policies and procedures to determine compliance with the nondiscrimination provisions found in Section 1557 of the Patient Protection and Affordable Care Act (ACA). This is the first OCR settlement agreement under Section 1557 which provides for monetary damages specifically to a patient.

In general, Section 1557 expands upon existing federal non-discrimination rules and regulations to prohibit discrimination based on race, color, national origin, sex, age or disability in health programs or activities that receive federal financial assistance. The law applies to most hospitals, skilled nursing facilities, ambulatory surgical centers, home health agencies, hospices, federally qualified health centers, rural health clinics, physician practices, laboratories, pharmacies, outpatient rehabilitation facilities, ESRD dialysis centers, state Medicaid agencies as well as insurers that participate in the ACA’s Health Insurance Marketplace.

HHS issued the final rule implementing Section 1557 in 2016 and as of October 2016, entities subject to the rule must post notices regarding the entity’s nondiscrimination practices and taglines in at least the top 15 non-English languages spoken in the state that alert individuals with limited English proficiency of the availability of language assistance services. See sample notice and tagline documents here.  In addition, entities subject to the rule with 15 or more employees must designate a compliance coordinator and adopt a grievance procedure.  Section 1557 requires health care entities to ensure effective accessible communications with individuals who need interpreters, including individuals with disabilities as well as individuals with limited English proficiency.

The final rule requires health care entities to take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others using appropriate auxiliary aids and services, such as alternative formats, sign language interpreters, and remote video interpreters. Health care entities are also required to make all programs and activities provided through electronic and information technology equally accessible. In addition, the final rule requires health care entities to take reasonable steps to provide meaningful access for individuals with limited English proficiency by providing qualified oral interpretation and written translation services. See HHS’s limited English proficiency resources for effective communications for additional guidance.

Where noncompliance of Section 1557 cannot be corrected by informal means, enforcement can include suspension of, termination of, or refusal to grant/continue federal financial assistance, referral to the Department of Justice and any other means authorized by law. Section 1557 authorizes a private right of action to challenge Section 1557 violations and receive compensatory damages. Affected entities are encouraged to develop and implement a language access plan to ensure they are prepared to take reasonable steps to provide meaningful access to each individual.

HHS has created several resources regarding ACA Section 1557 compliance: see general information and FAQs.

For further information or if you have any questions about ACA Section 1557 please contact Anthony Halbeisen.