PHARMACIST STEVE

In May, the Obama administration released new regulations that prohibit discrimination by health plans, health facilities, and health care programs. The rules implement Section 1557 of the Affordable Care Act, and build upon existing civil rights law.

Our previous blog describes how this section of the ACA protects people from discrimination on the basis of gender, race, ethnicity, national origin, English language proficiency, and disability. One important feature of this provision is that individuals who believe they have suffered discrimination when seeking health care can take action.  

What can people do if they think they’ve been discriminated against?

Anyone who feels they have been discriminated against in health care has the right to file a complaint with the Office of Civil Rights (OCR) at HHS, as can those with information about discriminatory actions.  Complaints can be filed online through the OCR complaint portal, by mail, by fax, or in writing. The online filing portal will lead you through a number of questions, including:

• What kind of discrimination did you experience?
• When did it happen? Is it ongoing?
• Which health insurer, program, or facility do you think discriminated against you?
• What happened and why do you believe your civil rights were violated?
• Are you filling it out for yourself or someone else?

A complaint must be filed within 180 days of the discrimination occurring, but the OCR can extend the filing period if the complainant can show good cause. The OCR will review the complaint, investigate if it believes it has merit, determine whether any violation has occurred, and if so, take action to remedy it.

What action can the federal government take when health care discrimination happens?

If the OCR finds that you’ve been discriminated against, the guilty party will be ordered to take corrective action and comply with the law. If the guilty party does not comply, the federal government may take away funding or take further enforcement action through the courts.

In practice, OCR complaints have resulted in a variety of corrective actions, such as these:

• Medical centers in Arkansas, Louisiana, Georgia, Colorado, and New York adopted new policies to prevent discrimination from occurring, particularly in the area of gender bias.
• In Louisiana, the Touro Infirmary Emergency Department introduced new quality and safety measures to ensure gender neutral treatment, especially in cases involving domestic abuse, during healthcare procedures.
• The OCR instituted two-year long monitoring periods to ensure that non-compliant hospitals provide ethical, nondiscriminatory treatment to patients regardless of sex or gender identity.

Are there any state agencies that might also help investigate a complaint?

Yes, for complaints about discrimination by health insurers, you may also want to notify your state department of insurance, which may have the authority to make their own investigation and help resolve the matter. It may also have the power to fine insurance companies that do not comply with state laws.

Similarly, if the situation involves a Medicaid managed care plan, also notify your state Medicaid agency. Many states have their own civil rights laws, so you should also check into whether there is a state human rights or civil rights office that can get involved.

How Florida handled discrimination against people with HIV/AIDS

One recent example of effective state level intervention happened in Florida. In 2014, the AIDS Institute filed a complaint with OCR and with the Florida Office of Insurance Regulation alleging that four Florida health plans discriminated against enrollees with HIV/AIDS. 

Who: The four health plans were CoventryOne, Cigna, Humana, and Preferred Medical 

Type of discrimination: They imposed excessively high cost-sharing on patients with HIV/AIDS for antiretroviral medications. 

Action taken: Before the OCR completed its investigation, the Florida regulatory agency determined that the practice was discriminatory. It now requires that all plans cap cost-sharing for HIV medication. The plans engaging in this type of discrimination were required to verify that their plans do not discourage people with chronic conditions from enrolling.

Resources for more information about Section 1557

• The Office of Civil Rights Website 
• The National Health Law Program’s Issue Brief  
• Out2Enroll FAQs
• National Women’s Law Center Resource on Section 1557