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Excerpted From: Teneille R. Brown, Leslie P. Francis and James Tabery, Should We Discriminate among Discriminations?, 14 Saint Louis University Journal of Health Law & Policy 359 (2021) (177 Footnotes) (Full Document)


The COVID-19 pandemic has exposed deep, structural inequities in our health care systems and society, with certain disadvantaged groups experiencing alarmingly disproportionate rates of infection, hospitalization, and death. Thankfully, a number of federal anti-discrimination statutes exist to ameliorate some of these historical inequities. The statutes respond to different types of discrimination and have generated diverse bodies of case law. While these statutes prohibit discrimination in places like education, employment, and housing, for decades there were gaps remaining.

In 2010, Congress sought to address one of these gaps in Section 1557 of the ACA (Section 1557), which prohibits discrimination in health care programs and activities that receive federal funds. Rather than creating new protected classes of individuals, Section 1557 incorporates the protected classes from four pre-existing civil rights statutes. These statutes are: Title VI of the Civil Rights Act of 1964 (Title VI), which protects against discrimination on the basis of race, color, and national origin in federally funded programs; Title IX of the Education Amendments of 1972 (Title IX), which protects against discrimination on the basis of sex in educational programs receiving federal funding; Section 504 of the Rehabilitation Act of 1973 (Section 504), which protects against discrimination on the basis of disability in federally funded programs; and the Age Discrimination Act of 1975 (Age Act), which protects against discrimination on the basis of age in federally funded programs.

When referencing these four statutes, Section 1557 states that it prohibits discrimination “on the ground prohibited under” and then lists each statute. This use of the singular “ground” creates a puzzle: Does Section 1557 simply refer to each of the statutes separately, incorporating the separate statutory language and case law that has developed with respect to each of the four? Or does Section 1557 create an anti-discrimination standard in federally funded health care that is, to at least some extent, uniform across these categories?

The difference between “disparate treatment” and “disparate impact” discrimination illustrates the importance of answering this question about the interpretation of Section 1557. Disparate treatment involves intentional discrimination against disadvantaged people in protected groups, while disparate impact involves discriminatory outcomes, even if unintentional. To illustrate this point, consider a policy that locates COVID-19 testing centers in areas of a city that are predominantly inhabited by White people and that cannot readily be accessed by public transit. If the decision was made intentionally to make it more difficult for communities of color to access the testing centers, then it would amount to disparate treatment. On the other hand, if the decision was made without any consideration of race, and yet still disproportionately affected the ability of people of color to successfully receive testing, then it could amount to disparate impact. The disparate impact would be discriminatory if other approaches to locating test centers were reasonably available and there were no overriding justifications for the location of the centers. While all of the four referenced statutes prohibit disparate treatment discrimination, the extent to which disparate impact discrimination claims are permitted under these statutes is unresolved. As a result, controversies have emerged about whether Section 1557 endorses disparate impact discrimination claims for all the classes it incorporates by reference or defers to case law under each of the four referenced statutes on this question.

The interpretation of Section 1557 is legally contested. The rulemaking completed by the Department of Health and Human Services (HHS) under the Obama administration adopted a standard that would permit individuals to bring claims for all of the protected categories based upon disparate impact discrimination. However, the final rule promulgated by the Trump administration's HHS rejected this uniformity. Instead, it defers to the four, separate, referenced statutes on this point, supposedly to eliminate redundancy and “to align it more closely with the statutory text.” Courts, for their part, have also been divided on how to interpret the statute. In May 2021, the Biden administration announced plans to reassess the Section 1557 regulations.

These interpretive distinctions have real-world consequences. A few examples come into sharp relief in the context of the COVID-19 pandemic, as many health care prioritization policies have been developed by programs that accept federal funds. Consider the following examples from vaccine allocation programs and care referrals.

[. . .]

There are certainly normative arguments for discriminating among discriminations. One could advocate for prioritization of vaccine access based on either race, sex, disability, or age, or some combination of these. The groups chosen for prioritization might in turn reflect the outcome that we think most unacceptable--the exacerbation of historical inequities, the creation of new disparate impacts, increased population mortality, or increased transmission of COVID-19. Preventing any of these outcomes would be a worthy goal. However, it is beyond the scope of this Article to identify which outcome would be most deplorable, and then advocate for a policy that mitigates it.

In this Article, we merely seek to highlight uncertainties regarding the current interpretation of Section 1557 of the ACA. These uncertainties have real-world consequences, as some forms of discrimination might be allowed, some might provide private rights of action, and some might require proof of disparate treatment rather than impact. There are many thorny ethical and legal questions that must be addressed in any policy that prioritizes one group's health at the expense of others. Unfortunately, the existing case law interpreting Section 1557 of the ACA does not answer many of these normative questions for us.

Teneille R. Brown, JD, is a Professor of Law at the University of Utah S.J. Quinney College of Law.

Leslie P. Francis, JD, PhD, is the Distinguished Alfred C. Emery Professor of Law and Distinguished Professor of Philosophy at University of Utah.

James Tabery, MA, PhD, is a Professor of Philosophy at the University of Utah.

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