The ACA’s Nondiscrimination Rule: Kudos and Critiques

By Elizabeth Sepper

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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Nevada’s $350,000 Cap on Noneconomic Damages Held Constitutional and Applicable Per Incident

By Alex Stein

Bad news for Nevada’s victims of medical malpractice. This state’s Supreme Court upheld the constitutionality of the $350,000 cap on noneconomic damages as limiting recovery for all kinds of victims and injuries. Tam v. Eighth Jud. Dist. Ct., — P.3d —- , 2015 WL 5771245 (Nev. 2015).  Moreover, the Court held that the cap applies per incident, which encompasses all mistakes that the doctor may have made in delivering a single treatment to a patient and all the victims of those mistakes (such as twins born with birth defects as a result of negligent prenatal care or delivery). For my discussion of the “per incident” and alternative approaches to caps, see here. Continue reading

Lecture Tomorrow, 11/10! Euthanasia in Belgium: The most recent legal developments and policy challenges

Euthanasia in Belgium: The most recent legal developments and policy challenges
November 10, 2015 11:00 AM – 12:15 PM

Conference Room, 1st floor
Center for Bioethics at Harvard Medical School
641 Huntington Ave., Boston, MA [Map]

A lecture by Sigrid Sterckx, Professor of Ethics and Political and Social Philosophy, Ghent University, Belgium; End-of-Life Care Research Group, Vrije Universiteit Brussel & Ghent University, Belgium; Bioethics Institute Ghent, Ghent University, Belgium.

In 2002, euthanasia by a physician (the intentional termination of a patient’s life at his or her request) was depenalized in Belgium for adults and emancipated minors. In 2014, the law was extended to competent minors, without an age limit. The frequency of performance of euthanasia is rising very rapidly, having more than doubled in the last five years (accounting for one death in twenty, about 8 per day in Flanders, the Dutch-speaking region). Moreover, although the prevalence of euthanasia remains highest in patients with cancer, a clear shift is visible in the characteristics of patients who request euthanasia and whose requests are granted. The largest increases are among women, and those aged 80 or older, with lower education levels, and those dying in nursing homes. Continue reading