1. NONDISCRIMINATION UNDER THE PATIENT PROTECTION AND AFFORDABLE CARE ACT
HOLLIE J. WESTLY, PH.D
WITHERSPOON·KELLEY
September 15, 2015

2. HEALTH CARE DISCRIMINATION LITIGATION PRIOR TO SECTION 1557
Discrimination in federal health care programs was prohibited on the basis of race, color, national origin, age and disability.
Limitations on health care discrimination actions.

3. HEALTH CARE DISCRIMINATION LITIGATION PRIOR TO SECTION 1557
Alexander v. Sandoval (532 US 275 (2001))
No private right of action for disparate “impact” discrimination under title VI of Civil Rights Act of 1964.
Office of Civil Rights (OCR) could bring an action for disparate impact in the provision of health care services.
Private individual for intentional discrimination (disparate treatment) only on race, color or national origin.

4. HEALTH CARE DISCRIMINATION LITIGATION PRIOR TO SECTION 1557
After Court’s decision, disparate impact litigation very rare.
Facially neutral policies regarding provision of health care services having a disproportionate effect on protected minorities mostly unchallenged.
Limited to entities receiving “Federal financial assistance.”
Physicians accepting Medicare Part B excluded.

5. PPACA SECTION 1557 “Nondiscrimination” defined as follows:
An individual shall, not, on the ground prohibited under title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, or section 504 of the Rehabilitation Act of 1973, be excluded from participation in, denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving 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 this subsection.

6. WHAT DOES THIS ALL MEAN?
Prohibition on the basis of sex (reference to title IX).
“Credits, subsidies or contracts of insurance”
Covers physician and providers accepting Medicare Part B?
Private insurance companies and all entities that receive tax credits and subsidies under ACA?

7. WHAT DOES THIS ALL MEAN? Programs administered by executive agencies
NIH, FDA
Medicare/Medicaid
OPM’s FEHBP
New Multi-State Qualified Health Plans
Entities established under this title
Health Exchanges
Consumer Operated and Oriented Plans

8. WHAT DOES THIS ALL MEAN?
Most importantly—explicitly incorporates private right of action of disparate impact claims.
Racial disparities in health care undeniable
Hospital relocation
Limiting access to Medicaid beds or Medicaid itself
Conversion public/non-profit hospital to for profit status
Managed care and network plans (physicians of race of neighborhood).
Designation of office hours based on insurance status.

9. OCR SO FAR……….. OCR investigation of disparate impact claim in 2009.
University of Pittsburgh Medical Center (UPMC) sought to close one of its hospitals in a poor African American neighborhood which would have a disparate impact on this population.
OCR’s obligation to enforce title IV led to agreement with UPMC.

10. OCR… UPMC to subsidize expanded hours and services at FQHC.
Provide door-to-door transportation for residents to outpatient facilities in neighboring community;
Provide door-to-door services to another UPMC affiliated hospital;
Conduct 6 health screening programs and 2 diabetes screening programs annually;
Designate an ombudsman; and
Provide outreach to faith-based health ministries in community.

11. IN THE COURTS SO FAR…
Southeastern Pennsylvania Transportation Authority v. Gilead Sciences, Inc., 2015 WL (E.D. Penn. May 4, 2015).
Held private right of action.
Congress intended to import various standards and burdens of proof depending upon the protected class at issue.
Rumble V. Fairview Health Services, 2015 WL (D. Minn. March 16, 2015).
Congress intended to create a new, health-specific, anti-discrimination cause of action subject to a singular standard regardless of protected class status.

12. IN THE COURTS SO FAR…
East v. Blue Cross and Blue Shield of Louisiana, 2014 WL (M.D. La. Feb. 24, 2014).
Health care discrimination applicable to class actions.
Allegations of intentional and disparate impact disability discrimination against health insurer.
TRO issued preventing insurer from changing policies that would adversely affect HIV patients.

13. GUIDANCE FROM HHS
Section 1557 allows HHS to issue regulations to implement the nondiscrimination provisions.
Proposed rules to be published in Federal Register Sept. 8, 2015.
Letter from OCR Director makes it clear prohibition on discrimination on the basis of sex extends to ‘discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity’ (July 12, 2012).

14. …to be continued… Powerful new civil rights remedy.
Potential of having significant impact on health care discrimination litigation and health care sector itself.
Not a widely known provision at this time.