05. Section 1557 Sex Discrimination

Section 1557 prohibits sex discrimination in federally funded healthcare. The scope of the Section 1557 sex discrimination provision has been the subject of litigation. On May 10, 2021, the Department of Health and Human Services announced that the Office for Civil Rights will interpret and enforce Section 1557 and Title IX’s prohibitions on discrimination based on sex to include: (1) discrimination on the basis of sexual orientation; and (2) discrimination on the basis of gender identity.

The Office for Civil Rights lists several examples of enforcement actions on its website at: OCR Enforcement under Section 1557 of the Affordable Care Act Sex Discrimination Cases:

  • An individual alleged that he was denied the benefits of appropriate care and treatment at the Touro Infirmary Emergency Department in Louisiana after a domestic violence incident and that he was subjected to rude comments from hospital staff because he was a male victim of domestic violence. After OCR initiated an investigation, Touro revised its abuse protocol to provide gender-neutral procedures for reporting incidents involving domestic abuse. Touro also provided training to its emergency department staff on identifying and assessing victims of domestic abuse.
  • The St. Bernard Medical Center in Arkansas had a policy and practice that treated married individuals differently on the basis of sex. For example, the Medical Center automatically assigned a male spouse as the guarantor (sole financially responsible party) when a female spouse received medical services. However, when a male spouse received services, his female spouse would not automatically be assigned as the guarantor. As a result of OCR’s investigation, the Medical Center changed its billing practices to ensure equal treatment regardless of the sex of the patient.
  • The Avera Marshall Regional Medical Center in Minnesota had a similar practice of treating married individuals differently on the basis of sex. If the patient was male, he was automatically listed as the guarantor for billing purposes. However, if the patient was female, the Center automatically assigned the patient’s husband as guarantor. The Center subsequently changed its billing process to list the patient as the guarantor of his or her bill and allow parents to choose the guarantor of their minor children. As a result of OCR’s investigation of a related HIPAA Privacy Rule complaint that the Center disclosed a woman’s personal health information to her husband despite her specific request to restrict disclosure of the information, the Center also implemented a new restrictions policy and provided training to staff on the policy.