Yale Law School Students Submit Comment to HHS


A group of Yale Law students submitted a comment to the U.S. Department of Health & Human Services, Office for Civil Rights on March 27, 2018, advocating against a proposed rule that they say would have harmful effects on both patients and providers.

Rule HHS-OCR-2018-0002 would allow health care providers with any articulable objections to certain services to opt out of providing relevant, often medically necessary information to patients seeking those services, including referrals to those services. This is likely to be especially harmful to women and LGBT patients, according to the students. The proposed rule would also require hospitals and health care providers to grant accommodations for these employees, even when doing so would pose an undue burden on the entity. The additional costs incurred would likely be borne by consumers and taxpayers, according to the students. Additionally, the extremely broad definition of “entity” may extend these costs beyond traditional health care providers, to all public institutions.

“Several of us were concerned about the implications the new rule could have for both patients and providers,” said Camila Vega ’18, a student fellow for the Solomon Center for Health Law & Policy at Yale Law School who worked on the comment. “We thought the rule was much too broad and didn't discuss any sort of limits. After discussing with the Solomon Center and Professor Elizabeth Sepper at Washington University Law School, we decided to write a comment expressing our concerns.”

The other students who worked on the comment included Julia Coppelman ’20; Rachel Kogan ’19, Solomon Center student fellow; Ike Lee, Yale School of Medicine Class of 2020 and Solomon Center student fellow; and Allison Rabkin Golden ’20.

The comment outlines how the proposed rule could threaten access to evidence-based and constitutionally protected care for patients. It also explains how the rule might leave health care employers uncertain about whether the Title VII standard exempting employers from granting costly and administratively burdensome religious objections still applies.

Under Title VII, employers are barred from discriminating on the basis of religion and other protected classes. However, under current law, employers are exempted from their duty to accommodate religious employees when they cannot reasonably do so without incurring an undue burden. The undue burden standard is well-established in this context and protects employees of various religions without imposing severe burdens on co-workers with different views or on businesses’ and health care entities’ capabilities more broadly, according to the students.

“If the Title VII standard no longer applies, this could mean burdensome costs for some employers, which will ultimately be borne by patients and taxpayers,” explained Coppelman.

Students said that religious and moral refusals continue to encroach on patient access to evidence-based, medically necessary care.

“The fact that, under the proposed rule, providers can refuse a referral to any service that is tangentially related to a moral objection — and perhaps not even tell the patient that such a service exists or that they might need to see another provider —is deeply concerning,” said Lee. “States have already thoughtfully worked to strike a balance between accommodating conscience and ensuring access to care, and HHS should look to these models before instituting such a broad, potentially limitless rule.”

The students are hopeful the comment will show that the issue is not partisan.

“Regardless of how you feel about these services or about religious refusals in general, broad rules with insufficient guidelines and parameters can be harmful and cause uncertainty in the health care system,” said Rabkin Golden.

“We also hope to bring the focus back to patients— the proposed rule talks a lot about accommodating providers, but makes no mention of its impact on patient access to care,” added Kogan. “We hope that this comment, and others like it, urge HHS to consider striking a more appropriate balance of protecting providers and patients.”