Will Robertson

After much debate, it seems reasonably clear that the Affordable Care Act is not going anywhere anytime soon. ACA regulations are now at the forefront for compliance conscious individuals involved with healthcare services. The new ACA regulations with respect to non-discrimination of deaf and hearing-impaired individuals build on the pre-existing architecture of the Rehabilitation Act of 1973ADA and CMS MDS 3.0 policy, which offer disabled individuals equal services. These new regulations are of particular concern.

Navigating complex compliance laws can be time consuming and it is often confusing. However, one thing is clear: failing to comply can absorb far more time and be very expensive. For example, the final ruling on Section 1557 of the ACA has impacted many facilities in recent months from internal audits to federal court settlements.  

Section 1557, broadly speaking, is the nondiscrimination provision of the Affordable Care Act. The law prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities. There have been several high-profile responses to Section 1557 in the media this year, most relating specifically to transgender issues.

However, Section 1557 has other serious implications for many areas of healthcare services; the most inconspicuous of which can be unintentionally overlooked by even the most diligent compliance officers. A recent uptick in damaging litigation relating to some of the subtler compliance issues in Section 1557 is a concerning trend of recent months.

On March 13, 2017, 12 deaf individuals filed a complaint in Arizona Federal District Court against a major healthcare system. Two months later, two deaf patients won the right to sue a prominent Florida hospital over failure to comply with the hearing-impaired language of Section 1557.

A Senior Judge of the Tenth Circuit, David Ebel, sitting in on the Eleventh, deliberated on a significant case and passed an influential and far reaching opinion that it is not “a sufficient defense for a defendant merely to show that a plaintiff could participate in the most basic elements of a doctor-patient exchange. Rather, the relevant inquiry is whether the hospitals’ failure to offer an appropriate auxiliary aid [emphasis added] impaired the patient’s ability to exchange medically relevant information with hospital staff.” 

The court’s opinion on this case exposes healthcare providers to future litigation for failure to provide effective communication to deaf or hearing-impaired patients by directly referencing Section 1557 – § 92.202(b) “requiring covered entities—regardless of the number of people they employ—to provide appropriate auxiliary aids and services to persons with impaired sensory, manual, or speaking skills, where necessary to afford such persons an equal opportunity to benefit from the service in question.”

Judge Ebel’s opinion may be the start of what many industry watchers predict is a coming litigation trend involving Section 1557.

Healthcare service providers must be proactive about this coming trend because the price of non-compliance is high. According to risk specialist Sharon Hall, if providers do not comply, “HHS may suspend, terminate, or refuse to continue further funding. In addition, individuals may file individual or class actions claims in federal court. Because the compliance responsibility follows the federal financial assistance, is it possible that a hospital or clinic may be found liable for an individual practitioner who does not need to comply, e.g. accepts only Medicare B.” The consequences of non-compliance can be steep, even for those unaware of the law.

Healthcare services should be familiar with the Federal Register‘s official definition of auxiliary devices. Beyond the need for translation services, the list of auxiliary aids highlights the need for “effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing.” 

Section 1557 mandates that auxiliary aids must be available free of charge to patients in need. Sonic Technology’s personal sound amplifier SuperEar® and LoudandClear™ assistive listening devices are excellent and inexpensive examples of products that can facilitate compliance in an economical and practical manner. You can see the original SuperEar® in the 2010 CMS MDS 3.0 VIVE training video here. Auxiliary aids like these are steadily becoming commonplace in healthcare settings as they facilitate quality interactions between disabled individuals and healthcare staff.

Now more than ever, it is critical to stay abreast of regulatory changes to mitigate the risk of non-compliance lawsuits – no matter what is happening on Capitol Hill.

Will Robertson is Director of Sales and Marking for Sonic Technology Products, Inc., manufacturer of the SuperEar® line of sound amplifiers, assistive listening devices, and auxiliary aids.