Document Type

Article

Publication Title

Nebraska Law Review

Abstract

Disability discrimination permeates the American health insurance system. This discrimination is problematic because adequate health benefits at affordable rates are integral to a disabled person’s full participation and integration in society. Civil rights laws for the disabled, like the Americans with Disabilities Act (ADA) and its predecessor, the Rehabilitation Act of 1973 (Rehab Act), have done much to improve the lives of disabled Americans in the workplace and in public life. Yet in healthcare, particularly healthcare financing, civil rights efforts have been stunted.

Civil rights in healthcare have failed for a number of reasons yet one reason is undoubtedly the fact that the courts, over thirty years ago, carved out health insurance benefits as uniquely beyond the scope of civil rights protections for the disabled. Specifically, in Alexander v. Choate, the Supreme Court adopted the “meaningful access” standard, holding that benefits providers need only offer people with disabilities access to their programs, but need not ensure that the programs offer them comparable benefits. For example, a civil rights claim that a disabled person was barred from buying the same health insurance plan as others might succeed. But a claim that the benefits themselves are discriminatory in some way, would not. Professor Bagenstos and others have argued that this access/content distinction renders disability rights protections ineffective for combating discrimination in health insurance.

There has been much attention paid to how to eradicate discrimination in health insurance, but there will be no progress for the disabled so long as the access/content distinction stands. This Article argues that all of the tools to eradicate this harmful standard are now in place with the adoption of the ACA, and more importantly, Section 1557, the ACA’s new health-specific civil right. Section 1557 prohibits discrimination on the basis of race, sex, age, and disabilities by healthcare entities. This law is incredibly powerful simply as the first civil right to clearly extend to private insurance, but it also suggests a new vision of equality in health benefits, that goes beyond the doctrine of Choate. In reading Section 1557 with other provisions of the ACA, it is clear that the Department of Health and Human Services (DHHS), Office of Civil Rights (OCR) and even Congress have made health benefits fair game for civil rights and antidiscrimination law, effectively overriding Choate. The rationales for the access/content distinction articulated by Choate no longer hold weight in a post-ACA healthcare world and the courts must follow suit. It is time, in the spirit of health reform and health-based civil rights, to challenge the notion that health insurance benefits are immune from antidiscrimination law. It is finally time to reintroduce civil rights law into health insurance.

Publication Date

2017

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