Timothy Frey · April 2010
78 GEO. WASH. L. REV. 636 (2010)
When Brenda Henderson was diagnosed with an aggressive form of breast cancer, her doctor recommended that she undergo a regimen of high-dose chemotherapy (“HDCT”), which was the most effective method of treating the disease. Unfortunately, her insurer did not cover HDCT for breast cancer, and Brenda was forced to file a lawsuit in order to obtain this life-saving treatment. The insurer covered HDCT for other types of cancer.
Richard Senter had been with the same health insurer for over ten years. His lifetime policy limit was $1 million. In his fourteenth year with the insurer, Richard discovered that he was suffering from Acquired Immune Deficiency Syndrome (“AIDS”). Almost contemporaneously, his insurer decided that it would only cover $25,000 of his medical expenses for his AIDS-related treatment. Coverage for individuals suffering from any other disease remained at $1 million.
These are just two examples of a problem that is often overlooked in the arena of healthcare reform: the problem of private insurance failing “to cover the services people with disabilities most need for independence and health.” The policies of private insurers are riddled with coverage exclusions, limitations on treatments, and annual and lifetime caps on coverage, which severely restrict the care that those with disabilities can afford. These restrictions are placed on a variety of conditions, including infertility, obesity, developmental disorders, asthma, cleft pallet, glaucoma, cataracts, pelvic inflammatory disease, and spine or back disorders.
Although Congress passed the ADA in order to end discrimination against persons suffering from disabilities, the statute’s impact upon discrimination in the insurance market remains unclear and inconsistent. Congress should take action and amend the ADA to make clear that: (1) the ADA covers the content of insurance policies, and (2) insurers will only be exempt from its restrictions if they have independently calculated actuarial proof that a given condition poses the risk of increased costs. This amendment will protect individuals with disabilities from being arbitrarily discriminated against in the terms of their insurance policies, while at the same time allowing insurers to continue to engage in legitimate underwriting practices.
Part I of this Note provides a brief background of the ADA and its relationship to the health insurance industry. Part II discusses the split among the U.S. courts of appeals concerning whether or not the ADA regulates the content of insurance policies. Part III examines the recent passage of the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (“Wellstone Mental Health Parity Act”), its impact upon discrimination in the insurance industry, and its implications for future congressional action. Part IV sets forth the argument that Congress should take further action and amend the ADA to clearly cover the conduct of insurance agencies in the sale of policies and to require them to base any discrepancies in coverage upon actuarial data.
