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.

Good Article on Employer Wellness Programs

It's in USA Today, collaborating with Kaiser Health News, and it's here.  These programs are quite problematic for people with disabilities, among others.

More Tovino on Mental Health Parity

New on SSRN: Stacey A. Tovino, Reforming State Mental Health Parity Law, 11 Hous. J. Health L. & Pol'y 455 (2011).  The abstract:

This Article is the final installment in a three-part project that presents a comprehensive challenge to lingering legal distinctions between physical and mental illness in the context of health insurance. The first installment in this series narrowly inquired as to whether the postpartum mood disorders should be classified as physical or mental illnesses in a range of health law contexts, including the context of health insurance. The second installment was broader in scope and challenged a number of federal provisions that allow publicly- and privately-funded health care programs and plans to provide mental health insurance benefits that are less comprehensive than their physical counterparts. The second installment also proposed comprehensive federal reforms, including the extension of federal mental health parity law to individuals who do not currently benefit from mental health parity law. This third and final Article undertakes an important correction of state mental health parity law. The first section of this Article examines in detail the mental health parity laws of four states: Idaho, Maryland, Nevada, and Vermont. I categorize these states’ divergent mental health parity laws by their breadth and depth of application, whether they mandate the option or inclusion of mental health and substance use disorder benefits, and the extent to which parity between physical and mental health benefits is required in all rates, terms, and conditions. The second section of this Article justifies and proposes amendments that would not only conform these and other state laws to minimum federal requirements, but would also expand state mental health parity law to all health plans subject to state insurance regulation, require inclusion of mental health and substance use disorder benefits in such plans, and eliminate artificial “biologically-based” and “severe mental illness” distinctions. The third section of this Article offers a uniform mental health parity law for consideration by state legislatures.

Iowa High-Risk Pool Denying Coverage to People with HIV?

That's what this article says, though it looks like the state legislature may do something about it.

Gleckman and Cohn on the CLASS Act News

The big disability law news of the weekend was HHS's widely anticipated decision, late on Friday, not to move forward with implementing the CLASS Act.  This is a shame, because there is a compelling need for a long-term care insurance program that (a) does not force families to impoverish themselves and go on Medicaid to receive services and (b) focuses on the provision of services in people's homes, not nursing homes.  The CLASS Act, for its undoubted flaws and limitations, met those two criteria.  Over at Kaiser Health News, Howard Gleckman, who has done a lot of great work on this subject, has a good post discussing possible policy alternatives that would rely on private insurance.  At the New Republic, Jon Cohn has a good article making the case that the CLASS Act's problems make the case for the individual mandate in the Affordable Care Act, because mandated participation would have clearly solved the actuarial problems that led HHS to cancel the law.

Note on the ADA and Second Injury Funds

Just out: Zachary D. Schurin, Note, Monkey-Business: Connecticut's Six Billon Dollar Gorilla and the Insufficiency of the Emergence of the ADA as Justification for the Elimination of Second Injury Funds, 7 Conn. Pub. Int. L.J. 137 (2007). From the introduction:

Existing in forty-nine states and Washington D.C. as late as 1991, SIFs have been steadily eliminated over the last fifteen years. Called superfluous by academics, business interests, and lawmakers, the essential criticism is that the purpose of SIFs was rendered obsolete by enactment of the Americans with Disabilities Act of 1990 (ADA) and complementary state law anti-discrimination provisions.

Connecticut's decision to close its SIF to new claims is emblematic of this trend. The wealthiest state, Connecticut has not only the highest per-capita income in the country, but the highest manufacturing sector pay as well. A solidly “blue” state, Connecticut is generous in terms of workers' compensation benefits, ranking fourth highest among the states for maximum weekly benefit cap. For these reasons, the elimination of Connecticut's SIF was a curious public policy decision. A state with tremendous fiscal resources and a generous compensation system, Connecticut would seem an unlikely candidate to repeal a disabled workers' benefit program.

With a particular focus on Connecticut, this article attempts to show that elimination of SIFs premised on the mere existence of the ADA is an insufficient policy justification. While the ADA represents both a more comprehensive approach to the problem of disabled employment, and includes strong punitive measures, the ADA, in and of itself, cannot eradicate hiring discrimination against the disabled. State elimination or closure of SIFs is a premature abandonment of a governmental mechanism that is well suited to supplement the ADA and similar state law.

AP on Prosthetics Coverage

Via the Disability Grapevine, I see this article in the Associated Press, which begins:

After bone cancer forced the amputation of her right leg below the knee, Eileen Casey got even more bad news: Her insurer told her that she had spent her $10,000 lifetime coverage limit on her temporary limb and that the company wouldn't pay for a permanent one.

"It was shocking to find out I was going to have to take out a loan to buy myself a leg so I could keep working and living independently," Casey said. At the bank, she said, she burst into tears when they asked what the loan was for.

Since then, Casey has joined a nationwide fight by amputees and the prosthetics industry to get the states and Congress to require fuller coverage for artificial limbs. The insurance industry is fighting the effort, saying such mandates drive up costs and reduce the flexibility customers want.