Roberts on Health Law as Disability Law
Up on SSRN: Jessica Roberts, Health Law as Disability Rights Law (Minn. L. Rev., forthcoming). The abstract:
When asked to name the most substantial civil rights victory for people with disabilities in recent years, many would choose the Americans with Disabilities Act Amendments Act of 2008. However, this Article contends that the Affordable Care Act (ACA) also represents a significant — albeit unconventional — advance for disability rights. Historically, health law and civil rights law have operated separately with respect to disability. People with disabilities have thus enjoyed two distinct, mutually exclusive areas of substantive legal protection: those designed to provide benefits and care (health paradigm) and those designed to achieve equality (civil rights paradigm). The ACA bridges this schism. Through its expansion of Medicaid and support for on-going health services, its changes to the underwriting and risk assessment practices of the private health-insurance industry, and its recognition of people with disabilities as a health disparity population, the new law promotes equality for people with disabilities. Thus, health legislation also performs the work of civil rights.
The Article begins by analyzing the traditional division between the health and civil rights paradigms. It then examines how civil rights legislation has failed to improve access to health services for people with disabilities. Next, the Article explores health-care reform as an issue of disability rights, both in terms of the role of the disability rights advocates in lobbying for the legislation and the impact of the ACA on individuals with disabilities. Finally, it concludes with the proposition that achieving meaningful equality for people with disabilities mandates an integrated approach that moves beyond the confines of the civil rights model.Okay, given what else is happening today, I probably should have specified in the title that the Roberts to whom I referred was Jessica, not John. Oops.