The ACA’s Nondiscrimination Rule: A Right In Search of a Remedy

Every law student learns the ancient adage that there is no right without a remedy. Section 1557 makes clear that individuals have rights against discrimination in healthcare and a private right of action to enforce them. But it’s less clear as to when and how they have remedies.

Section 1557 provides individuals protection against discrimination on “the ground prohibited under” four preexisting civil rights statutes–Title VI of the Civil Rights Act, Title IX of the Education Amendments, the Age Discrimination Act, and Section 504 of the Rehabilitation Act. The statute also makes available “the enforcement mechanisms provided for and available under” these four civil rights statutes. This language makes two things clear. First, Section 1557 prohibits discrimination on grounds of race, color, or national origin (Title VI); sex (Title IX); age (Age Discrimination Act); and disability (Rehab Act). Second, as district courts have agreed, the statute authorizes both private rights of action and agency enforcement as “enforcement mechanisms.”

So far, so good. But each statute has its own specific legal standards, and remedies. For example, a plaintiff alleging age discrimination under the Age Discrimination Act must first exhaust administrative remedies. By contrast, a plaintiff can file a private suit directly when suing under Title IX. And private parties can’t bring lawsuits targeting policies with disparate impacts on racial minorities under Title VI. But people with disabilities can allege disparate impact pursuant to Section 504.

The text of Section 1557 is ambiguous: either (1) claims that Section 1557 has been violated are treated uniformly across prohibited grounds or (2) plaintiffs have different rights and remedies depending upon whether they allege race, sex, disability, or age discrimination. Courts have already divided on this question.

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The ACA’s Nondiscrimination Rule: Hobby Lobby 2.0?

Should healthcare providers, researchers, and insurers be able to engage in sex discrimination for religious reasons? HHS asked the public to weigh in on this question with regard to the ACA’s nondiscrimination provision.

The answer is no for three important reasons. First, the statute doesn’t allow additional exemptions. Not only is the text clear, but Congress also considered and rejected broader religious exemptions. Second, authorizing sex discrimination for religious reasons is bad health policy with damaging effects for women and LGBT people. Third (as I argued in separate comments with a group of law and religion scholars), granting religious exemptions here runs into constitutional limits set by the Establishment Clause.

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The ACA’s Nondiscrimination Rule: Puzzling Misreading of the Statute

Like other healthcare civil rights statutes, the Affordable Care Act’s Section 1557 links nondiscrimination requirements to federal funding. Programs that receive “federal financial assistance” can’t discriminate against individuals based on their race, sex, age or disability. HHS has proposed to exclude Medicare Part B payments from “federal financial assistance.” As a result, physicians’ offices would be outside Section 1557’s reach. The statute, however, bars this puzzling and contradictory interpretation.

For almost fifty years, HHS has taken the position that Medicare Part B payments to physicians are “contracts of insurance.” Because previous civil rights statutes—like Title VI of the Civil Rights Act and the Rehabilitation Act—explicitly excluded “contracts of insurance” from the definition of “federal financial assistance,” physicians were exempted from compliance. Payments under Medicare Part B and other insurance contracts did not suffice to create nondiscrimination obligations.

HHS’s interpretation of Section 1557 would again exclude Medicare Part B payments from the ambit of “federal financial assistance.” But, this time, the statute doesn’t allow it. Section 1557 specifically states that federal financial assistance includes “contracts of insurance.” HHS can’t have it both ways, defining Part B as “contracts of insurance” when the statute excludes them and defining Part B as something else (it’s not clear what) when the statute includes contracts of insurance. The only permissible interpretation of Section 1557 means providers who participate in Medicare can’t discriminate.

In a series of posts this week, we’re blogging on the proposed HHS Nondiscrimination Rule. You’ll find our first post here. Look for our next posts on religious exemptions and remedies under Section 1557 later this week.

The ACA’s Nondiscrimination Rule: Kudos and Critiques

More than five years ago, Section 1557—a little known provision in the Affordable Care Act—promised to protect individuals from race, sex, age, and disability discrimination in health programs and activities that receive federal financial assistance. But until this fall, the Department of Health and Human Services (HHS) hadn’t offered any interpretation of what the nondiscrimination provision requires. Today, the comment period for the proposed rule closes, and HHS will set to work finalizing the Nondiscrimination Rule. Together with professors Jessica Roberts and Jessica Clarke and Yale Law students Elizabeth Dervan and Elizabeth Deutsch, I drafted lengthy comments on the proposed rule.  In a series of blog posts this week, we’ll explain what HHS got right, where its interpretation went wrong, and how it can provide clarity to healthcare programs and the public.

The ACA broke new ground in prohibiting sex discrimination in healthcare for the first time. Women and LGBT people face persistent and systemic discrimination at the hands of insurers, hospitals, and doctors. Women’s pain goes undertreated, and their heart attacks undiagnosed. Due in part to their capacity to become pregnant, women have largely been excluded from studies. More than half of LGBT people report facing discrimination in healthcare settings. Transgender men and women have encountered ridicule, refusals of treatment, and hostility in emergencies with fatal and near-fatal consequences.

The Affordable Care Act aims to change this. The Nondiscrimination Rule presents a historic opportunity for HHS to interpret sex discrimination broadly. In its proposed rule, HHS seems poised to take advantage of this opportunity by reaching pregnancy, sex stereotyping, and gender identity discrimination. To meet HHS’s goal of ensuring the most robust set of protections in current law, the final rule should also make clear that sexual orientation discrimination is sex discrimination.

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Bishops Reject Contraception Compromise

By Elizabeth Sepper

It comes as no surprise that tonight the Catholic bishops rejected the White House’s attempts to bend over backward to accommodate religious objections to contraceptive coverage in health insurance plans. The administration’s rules first exempted religious groups. Now the proposed rules allow an even wider array of religiously affiliated employers—including hospitals, insurance companies, social service providers, and universities—to have insurance plans without any coverage of contraception, while making sure their employees can access it. Yet, the bishops are not satisfied.

In court, religiously affiliated employers insist that their concern is religious freedom. But the bishops’ reaction to the administration’s generous proposal suggests they don’t want liberty from the mandate. They want to end it altogether. The general counsel for the U.S. Conference of Catholic Bishops Anthony Picarello admitted as much just last year, saying that they would not accept any fix that did not remove contraceptive coverage from the Affordable Care Act altogether. Otherwise, “if I quit this job and opened a Taco Bell, I’d be covered by the mandate,” Picarello said. (For a list of for-profit companies challenging the contraceptive coverage mandate, see here (no Taco Bells just yet))

I’d hoped, as E.J. Dionne did, that the Church would accept the Obama administration’s olive branch. But it seems 2013 will be another big year for conscience and contraception.

Thanks to Holly for inviting me to blog for January (I’ve overstayed my welcome!). I very much enjoyed it.

Defending Roe v. Wade, Defending Human Rights

By Elizabeth Sepper

Dr. Willie Parker is one of the few doctors in the United States who perform later-term abortions, up to 24 weeks.  He is one of three who provide abortions at Mississippi’s sole abortion clinic.  A Christian from the Deep South, Dr. Parker didn’t provide abortions for the first dozen years of his career.  But again and again he encountered women whose pregnancies endangered their lives, girls who had suffered rape or incest, and mothers who were too poor to raise another child.  He came to wrestle with the morality of abortion—torn between his religious tradition’s teaching against abortion and his moral commitment to his patients.  He listened to Dr. Martin Luther King’s sermon on the Good Samaritan.  According to Dr. King, the Good Samaritan was “good” because he did not consider himself but instead asked “What will happen to this person if I don’t stop to help him?”  Dr. Parker was moved to examine his own conscience and to ask, “What happens to women who seek abortion if I don’t serve them?”  From that day, he began to perform abortions. (This interview is well worth a read.)

Choosing to provide abortions is an act of bravery. Abortion providers face threats to their safety and families, targeted and expensive regulations, and professional and community stigma.  They share much in common with human rights lawyers, union organizers, and women’s rights advocates around the globe who are harassed by their governments and the majority.  This makes sense if we recognize abortion providers for what they are: human rights defenders, who work to ensure reproductive rights (the Center for Reproductive Rights has argued effectively for this framework under international law).

As we mark the fortieth anniversary of Roe v. Wade tomorrow, we should acknowledge the courage and commitment of these human rights defenders.  In the past two years, state legislatures passed more, and more novel, restrictions on women’s access to abortion and abortion providers’ practices than ever before.  The “graying” of current  providers represents a further challenge.  In the words of Justice Blackmun, “I fear for the future.  I fear for the liberty and equality of the millions of women who have lived and come of age in the . . . years since Roe was decided.”  But tomorrow I simply offer thanks to those who defend our rights on the front lines.

Flu Vaccine Myths and Healthcare Providers

By Elizabeth Sepper

2013 is rife with reports of the terrible human costs of the flu.  Emergency rooms nationwide have been overwhelmed.  Art Caplan’s great blog post urges doctors to educate patients that the flu vaccine is not just for their benefit.  He tells healthcare providers to send a clear message by getting the flu shot themselves.  But what should we do when they refuse?

Flu vaccination of healthcare providers has come a long way.  Before 2009, rates never broke 49%.  Today, almost two-thirds of healthcare providers are vaccinated.

Still, one-third of healthcare providers do not protect themselves, their patients, and the public from influenza.  We remain far short of the national Health People 2020 target of 90%. Do these providers have religious beliefs that raise tricky constitutional and statutory questions?  Do they assert deeply held philosophical objections?  Media accounts suggest so.  We hear of the vegan customer service representative who refuses the flu vaccine because it is grown in chicken eggs, and the religious holistic nurse who objects both to vaccination and to wearing a mask.

But the main reason for going unvaccinated, according to the Centers for Disease Control, is that healthcare providers simply did not want to get vaccinated. Other common reasons: they think flu vaccines don’t work, fear experiencing side effects, or don’t think they will need the vaccine.  Some reasons do not reflect the evidence. Others suggest, as Art Caplan puts it that healthcare staff need to “stop thinking only about themselves.” Continue reading