Restoring Civil Rights to the Disabled in Health Insurance

• Jurisdiction: United States,Federal
• Citation: Vol. 95
• Publication year: 2021

95 Nebraska L. Rev. 1071. Restoring Civil Rights to the Disabled in Health Insurance

Restoring Civil Rights to the Disabled in Health Insurance

Valarie K. Blake(fn*)

TABLE OF CONTENTS

I. Introduction .......................................... 1072

II. The Disabled, Health Insurance, and Benefits Discrimination ........................................ 1076
A. The Relationship Between Medical Need and Disability ......................................... 1076
B. Health Insurance and the Disabled ................ 1078
1. Public Insurance ............................... 1081
2. Private Insurance ............................. 1084
C. The Role for Civil Rights in Health Insurance ...... 1092

III. The Access/Content Distinction and Health Insurance ............................................. 1097
A. Alexander v. Choate ............................... 1097
B. The Access/Content Distinction Post-Choate ........ 1100
C. Critiques of the Access/Content Distinction ........ 1102

IV. Reinstating Civil Rights for the Disabled in Health Insurance ............................................. 1105
A. Section 1557, Agency, and the Access/Content Distinction ........................................ 1105
1. Section 1557 ................................... 1105
2. Section 1557's Impact on the Access/Content Distinction .................................... 1108
B. The Lost Precedential Value of Choate ............. 1111
1. Insurer Discretion ............................. 1112

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2. Administrative Burden ........................ 1114
3. Adequate Health Benefits ...................... 1116
4. Goals of the Rehab Act ........................ 1116

V. Restoring Civil Rights to the Disabled in Health Insurance ............................................. 1117

I. INTRODUCTION

Disability discrimination permeates the American health insurance system. Insurers may harm people with disabilities through their benefits designs, by limiting covered inpatient hospital days, by only covering rehabilitative services that achieve full and not partial recovery, or by excluding from coverage disability-critical services like habilitative care or durable wheelchairs. Some discrimination may be unintentional, but nonetheless harmful, for example if insurers design their health benefits with only the nondisabled in mind. Some discrimination may be purposeful as private insurers have incentives to discriminate against the disabled because of their collectively high health care consumption.(fn1)

Disability-based discrimination by health insurers is problematic for the same reasons that disability discrimination is problematic in other contexts. Adequate health benefits at affordable rates are integral to a disabled person's full participation in society.(fn2) Unchecked health insurance discrimination may undermine the admirable goals

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of the disability rights movement to equalize participation by the disabled in civic and social life.(fn3) Civil rights laws for the disabled, like the Americans with Disabilities Act (ADA)(fn4) and its predecessor, the Rehabilitation Act of 1973 (Rehab Act),(fn5) have done much to improve the lives of disabled Americans in the workplace and in public life. Despite these broad advancements for the disabled, the laws have proven fruitless in combating health insurance discrimination.(fn6)

The ADA's and Rehab Act's failures in the context of health insurance can be attributed to a thirty-year-long unwillingness by the courts to consider health insurance benefits as within the scope of civil rights protections for the disabled. Beginning with the Supreme Court in Alexander v. Choate, courts have applied a "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 the disabled comparable benefits.(fn7) In other words, antidiscrimination laws only provide people with disabilities with the ability to access a program, not the right to challenge its content. Any effort to argue for better or different benefits is viewed as a "fundamental alteration" to a program which is an affirmative defense for insurers.(fn8) Professor Samuel Bagenstos aptly dubbed this judicial reasoning framework the "access/content" distinction.(fn9) 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. Given this access/content distinction, insurers have an affirmative defense against any benefit changes on the basis that it fundamentally alters their programs. They need not even prove that the benefit change is too costly or burdensome, only that it involves a change to

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benefits.(fn10) Thus, even modest and uncostly requests for benefit changes are beyond the reach of these laws. For these reasons, disability rights protections are completely deficient at combating benefits discrimination in health insurance.(fn11)

Importantly, the access/content distinction compromises the Rehab Act's and the ADA's accommodation mandates which form the heart of disability antidiscrimination law.(fn12) The Rehab Act and the ADA collectively recognize that reasonable accommodation in employment, transportation, public infrastructure, and other settings is necessary to fully and meaningfully integrate disabled people into society.(fn13) Unlike other antidiscrimination laws, the ADA and Rehab Act specifically recognize that treating the disabled the same as the nondisabled is simply not enough. Sometimes disabled people's unique needs have to be taken into account in order to fully integrate them into society.(fn14) Reasonable accommodation in health insurance is obviously critical: the disabled's health care needs (and broader goals of social integration) will not be met if the insurers can design their benefits to take into account only those with lesser health care needs.(fn15) However, be-

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cause of the access/content distinction, reasonable accommodation in health insurance has been starkly absent.

The Patient Protection and Affordable Care Act (ACA) focused on eradicating discrimination in health insurance particularly against the unhealthy and these efforts can indirectly help the disabled who collectively consume higher amounts of health care. But, to the extent that the ACA still allows for some disability-based discrimination (and to the extent that measures against health status discrimination set in motion by the ACA are repealed or no longer stand in the future), civil rights attempts will prove important. But such efforts are doomed to failure so long as the access/content distinction stands. This Article argues that the access/content divide is no longer good law and courts should no longer use it to bar suits against insurers by the disabled. A variety of practical, legal, and regulatory changes to our health care legal system have overturned the access/content divide or, at the very least, have rendered it dangerously outdated. Courts must consider a new approach to handling health insurance discrimination against the disabled.

One reason to move past the access/content divide is the agency that manages discrimination in health care, the Department of Health and Human Services Office of Civil Rights (DHHS/OCR), has attempted to look past this divide in its attending rules for section 1557, the civil rights provision of the ACA, which prohibits discrimination on the basis of race, sex, age, and disabilities by health care entities.(fn16)This law suggests a new vision of equality in health benefits(fn17) that goes beyond the doctrine of Choate. In reading section 1557 with other provisions of the ACA, it is clear that DHHS/OCR and even Congress have made health benefits fair game for civil rights and antidiscrimination law, effectively overriding Choate. Another reason is that, in considering the rationales for the access/content distinction first articulated by Choate, it's very clear that they no longer hold weight in a post-ACA health care world and may be bad precedent for courts to uphold.

The Article proceeds in four parts. Part II begins with a discussion of the particular importance of health benefits for people with disabilities. It details why health insurance is so critical to the disabled as a population, why the disabled tend to be discriminated against by insurers, what has been done about this so far through the ACA, and where discrimination persists post-ACA. Part III explains the Choate Court's reasoning in creating the access/content distinction and its im-

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plications for disability civil rights claims in health insurance. Part IV argues that the access/content standard created by Choate should be reconsidered in light of a new regulatory environment driven by Congress through the ACA, and particularly by DHHS/OCR through its section 1557 regulations. Finally, Part V proposes that disability-based health benefits discrimination challenges be considered by the courts and by DHHS/OCR and that reasonable accommodation be the standard for addressing inequities. The Article ultimately challenges the notion that health insurance benefits are immune from antidiscrimination law and argues that it is legally and practically necessary to reintroduce disability antidiscrimination law into health insurance.

II. THE DISABLED, HEALTH INSURANCE, AND BENEFITS DISCRIMINATION

The disabled collectively have greater and sometimes unique health care needs when compared to the nondisabled. While this is not true for all disabled people, many need health services in order to fully integrate into society.

The Affordable Care Act has improved the climate of health care financing for everyone, including the disabled, but some discrimination...