Monday, November 16, 2015

Students Collaborate on Comments to HHS

On November 8, in collaboration with Professors Elizabeth Sepper from the Washington University School of Law and Jessica Roberts from the University of Houston Law Center, Yale Law School students Elizabeth Dervan ’17 and Elizabeth Deutsch ’16 submitted comments to the Department of Health and Human Services (HHS) on a new provision. Section 1557 of the Affordable Care Act promises to protect individuals from discrimination in healthcare on the basis of race, sex, age, and disability. This fall, the HHS released a proposed rule for the provision and invited comments.

The project is being supported by the Solomon Center for Health Law & Policy at Yale Law School. Established in 2015, the center is the first of its kind to focus on the governance, business, and practice of health care in the United States. Dervan is a student fellow for the center and Deutsch has been working closely with the center on these issues.

In their comments, the authors encouraged HHS to provide a uniform cause of action and uniform legal standard of enforcement for the antidiscrimination provision, which currently incorporates standards from Title VI, Title IX, the Americans with Disabilities Act, and the Age Discrimination Act. Uniformity is key, according to the students, because only some of the underlying antidiscrimination laws permit plaintiffs to bring disparate impact claims, while others require plaintiffs to first exhaust administrative remedies before proceeding to federal court.

Further, the authors encouraged HHS to adopt a more comprehensive definition of sex discrimination to make clear that discrimination on the basis of sex includes discrimination on the basis of sexual orientation.

Finally, the authors also advised against the expansion of religious exemptions to Section 1557, noting that the facilitation of religious refusals in health care contexts would compromise the rights of patients across the country.

Read the comments in full.