Genetic Testing and the Future of Disability Insurance: Ethics,Law & Policy

See NIH-DOE Working Group on Ethical, Legal, and Social Implications of Human Genome Research, Genetic Information and Health Insurance: Report of the Task Force on Genetic Information and Insurance, NIH Pub. No. 93-3686, May 10, 1993. For other analyses of genetics and health insurance, see Office of Technology Assessment, U.S. Congress, Genetic Tests and Health Insurance: Results of a Survey – Background Paper, OTA-BP-BA-98 (Washington, D.C.: U.S. Government Printing Office, October 1992); Murray T. H. , “Genetics and the Moral Mission of Health Insurance,” Hastings Center Report 22, no. 6 (1992): 12–17; Kass N. E. , “Insurance for the Insurers: The Use of Genetic Tests,” Hastings Center Report 22, no. 6 (1992): 6–11; Jacobi J. V. , “Symposium: Genes and Disability: Defining Health and the Goals of Medicine: Genetic Discrimination in a Time of False Hopes,” Florida State University Law Review 30 (2003): 363–399, at 391; Jecker N. S. , “Genetic Testing and the Social Responsibility of Private Health Insurance Companies,” Journal of Law, Medicine & Ethics 21 (1993): 109–116; Hudson K. L. , “Genetic Discrimination and Health Insurance: An Urgent Need for Reform,” Science 270 (1996): 391–393; Jacobi J. V. , “The Ends of Health Insurance,” University of California Davis Law Review 30 (1997): 311–404; Glazier A. K. , “Genetic Predispositions, Prophylactic Treatments and Private Health Insurance: Nothing Is Better Than a Good Pair of Genes,” American Journal of Law & Medicine 23 (1997): 45–68; Kass N. E. , “The Implications of Genetic Testing for Health and Life Insurance,” in Rothstein M. A. , ed., Genetic Secrets: Protecting Privacy and Confidentiality in the Genetic Era (New Haven: Yale University Press, 1997): 299–316; Abraham K. S. , “Understanding Prohibitions Against Genetic Discrimination in Insurance,” Jurimetrics 40 (1999): 123–128; Hall M. A. and Rich S. S. , “Laws Restricting Health Insurers' Use of Genetic Information: Impact on Genetic Discrimination,” American Journal of Human Genetics 66 (1999): 293–307.

For discussion and critique, see, for example, Wolf S. M. , “Beyond ‘Genetic Discrimination’: Toward the Broader Harm of Geneticism,” Journal of Law, Medicine & Ethics 23, no. 4 (1995): 345–353; Leventhal D. , “The Human Genome Project: The Road to Our Improved Health or the New Civil Rights Movement,” Hofstra Labor & Employment Law Journal 15 (1997): 207–245, at 232; Jendusa J. M. , “Pandora's Box Exposed: Untangling the Web of Double Helix in Light of Insurance and Managed Care,” DePaul Law Review 49 (1999): 161–215, at 193; Gulati C. , “Genetic Antidiscrimination Laws in Health Insurance: A Misguided Solution,” Quinnipiac Health Law Journal 4 (2001): 149–210, at 158; Geeter J. S. , “Coding for Change: The Power of the Human Genome to Transform the American Health Insurance System,” American Journal of Law & Medicine 28 (2002): 1–76, at 51; Hoffman S. , “Legislation and Genetic Discrimination,” Journal of Law and Health 16 (2002): 47–51; Elmer J. , “Human Genomics: Toward a New Paradigm for Equal-Protection Jurisprudence,” APR Rhode Island Bar Journal 50 (2002): 5–31; Clayton E. W. , “Ethical, Legal, and Social Implications of Genomic Medicine,” New England Journal of Medicine 349 (2003): 562–569; Burstajn H. J. Sobel R. and Allbright A. , “Protecting Privacy in the Behavioral Genetics Era,” Mental & Physical Disability Law Reporter 27 (2003): 523–525; Nicoll R. B. , “Long-Term Care Insurance and Genetic Discrimination – Get It While You're Young and Ignorant: An Examination of Current Discriminatory Problems in Long-Term Care Insurance through the Use of Genetic Information,” Alabama Law Journal of Science & Technology 13 (2003): 751–774, at 753; Levy F. and Lawler J. F. , “The Potential Impact of Genetic Sequencing on the American Health Insurance System,” Journal of Health Care Law & Policy 36 (2003): 203–221, at 215; Ellis A. M. , “Genetic Justice: Discrimination by Employers and Insurance Companies Based on Predictive Genetic Information,” Texas Technology Law Review 34 (2003): 1071–1099, at 1078; Hall M. A. and Rich S. S. , “Patients’ Fear of Genetic Discrimination by Health Insurers: The Impact of Legal Protections,” American Journal of Human Genetics 2 (2004): 214–221.

See Kass , “The Implications of Genetic Testing,” supra note 1; Zimmerman S. E. , “The Use of Genetic Information by Life Insurance Companies: Does This Differ from the Use of Routine Medical Information?” Genetic Testing 2 (1998): 3–8; Pokorski R. J. , “A Test for the Insurance Industry,” Nature 391 (1998): 835–836; Nowlan W. , “A Rational View of Insurance and Genetic Discrimination,” Science 297 (2002): 195–196. See generally, Rothstein M. A. , ed., Genetics and Life Insurance: Medical Underwriting and Social Policy (Cambridge: MIT Press, 2004).

See, e.g., Ark. Code Ann. §23-66-320 (West 2006) (exempting life insurers); Colo. Rev. Stat. Ann. §10-3-1104.7 (West 2006); Ind. Code Ann. §27-8-26-1 (LexisNexis 2006) (exempting life insurers); La. Rev. Stat. Ann. §22:213.7(G) (2006) (exempting life insurers); Me. Rev. Stat. Ann. tit. 24, §2159-C (2006) (allowing insurers issuing life insurance to use genetic information in a manner reasonably related to anticipated claims); Md. Code Ann., [Ins.] §27–909 (West 2006) (exempting life insurers); Minn. Stat. § 72A.139 (2006); Neb. Rev. Stat. §44–787 (2005); N.H. Rev. Stat. Ann. §§141-H:4, 141-H:5 (2006); N.M. Stat. Ann. §24-21-4 (2006) (exempting life insurers); Wis. Stat. § 631.89(3) (West 2005). For commentary see, for example, Bornstein R. , “Genetic Discrimination, Insurability and Legislation: A Closing of the Legal Loopholes,” Journal of Law and Policy 4 (1996): 551–610, at 589 (arguing that state laws are moving away from restrictions on the use of genetic information in life insurance); Johnson A. and Calvo C. , “Life, Disability and Long-Term Care Insurance,” in National Council of State Legislatures Genetics Brief 9 (2002) (existing laws restrict rather than ban use of genetic information in life insurance); Cox K. , “Model Act for Genetic Privacy and Control (MAGPAC),” Iowa Law Review 88 (2002): 121–161 (model act allowing life insurers to use genetic information for underwriting but not other purposes).

For agreement with this ranking, see Abraham K. S. and Liebman L. , “Private Insurance and Tort Reform: Toward a New Vision of Compensation for Illness and Injury,” Columbia Law Review 93 (1993): 75–118. For discussion of the mission of life insurance, see Daniels N. , “The Functions of Insurance and the Fairness of Genetic Underwriting,” in Rothstein M. A. , ed., Genetics and Life Insurance: Medical Underwriting and Social Policy, (Cambridge: MIT Press, 2004): 119–145; Rothstein M. A. , “Policy Recommendations,” in Rothstein M. A. , ed., Genetics and Life Insurance: Medical Underwriting and Social Policy (Cambridge: MIT Press, 2004): 233–265.

For commentators addressing genetic testing in disability insurance, see Berry R. M. , “The Human Genome Project and the End of Insurance,” University of Florida Journal of Law and Public Policy 7 (1996): 205–256; Pokorski R. J. , “Insurance Underwriting in the Genetic Era,” American Journal of Human Genetics 60 (1997): 205–216; Lehpomer P. J. , “Principles of Risk: Health, Disability, Life,” in Genetic Testing: Implications for Insurance (Schaumberg, IL: The Actuarial Foundation, 1998): 5–8; McGoodwin W. L. , “Genetic Testing in Life and Disability Insurance,” Brief, Fall 1998: at 24; Meyer R. J. , “General Position of the American Council of Life Insurance on Genetic Information and Genetic Tests and Life and Disability Income Insurance,” Journal of Insurance Regulation 15 (1998): 66; Pokorski R. J. , “Fairness, Equity, and Justice,” in Genetic Testing: Implications for Insurance (Schaumberg, IL: The Actuarial Foundation, 1998): 79–83; Jerry R. , “Health Insurers' Use of Genetic Information: A Missouri Perspective on a Changing Regulatory Landscape,” Missouri Law Review 64 (1999): 759–788; see Johnson and Calvo , supra note 4; Daniels, supra note 5.

Rothstein M. A. and Hornung C. A. , “Public Attitudes,” in Rothstein M. A. , ed., Genetic and Life Insurance: Medical Underwriting and Social Policy (Cambridge: MIT Press, 2004): 1–25.

See Abraham and Liebman , supra note 5.

See Soule C. E. , Disability Income Insurance: The Unique Risk, 5th ed. (Bryn Mawr, PA: American College, 2002): at 27.

Id., at 4.

See Silvers A. , “Predictive Genetic Testing: Congruence of Disability Insurers' Interest with the Public Interest,” Journal of Law, Medicine & Ethics 35, no. 2, Supplement (2007): 52–58.

See Gostin L. , “Genetic Discrimination: The Use of Genetically Based Diagnostic and Prognostic Tests by Employers and Insurers,” American Journal of Law & Medicine 17 (1991): 109–144; Natowicz M. R. Alpers J. K. and Alpers J. S. , “Genetic Discrimination and the Law,” American Journal of Human Genetics 50 (1992): 465–475; Dichter M. S. and Sutor S. E. , “The New Genetic Age: Do Our Genes Make Us Disabled Individuals under the Americans with Disabilities Act?” Villanova Law Review 42 (1997): 613–633; Gin B. R. , “Genetic Discrimination: Huntington's's Disease and the Americans with Disabilities Act,” Columbia Law Review 97 (1997): 1406–1434; Kaufman M. B. , “Genetic Discrimination in the Workplace: An Overview of Existing Protections,” Loyola University of Chicago Law Journal 30 (1999): 393–438; Gridley D. , “Genetic Testing Under the ADA: A Case for Protection from Employment Discrimination,” Georgetown Law Review 89 (2001): 973–999; Roche P. A. , “The Genetic Revolution at Work: Legislative Efforts to Protect Employees,” American Journal of Law & Medicine 28 (2002): 271–283; National Council on Disability, Position Paper on Genetic Discrimination Legislation, March 4, 2002, available at <http://www.ncd.gov/newsroom/publications/pdf/geneticdiscrimination_positionpaper.pdf> (last visited February 21, 2007) [hereinafter cited as NCD Position Paper]; Chorpening J. , “Genetic Disability: A Modest Proposal to Modify the ADA to Protect Against Some Forms of Genetic Discrimination,” North Carolina Law Review 82 (2004): 1441–1481.

See Soule , supra note 9, at 44–45.

Only a few states' statutes on genetic discrimination in insurance specifically apply to disability income insurance. See, e.g., Ariz. Rev. Stat. Ann. § 20–448 (2006); Cal. Ins. Code §§ 10146–10149.1 (West 2006) (requiring informed consent before genetic tests are conducted for disability insurance underwriting); Ky. Rev. Stat. Ann. § 304.12–085(3) (West 2006) (providing that disability insurers may not request genetic information, but not specifying that such insurers may not use already obtained genetic information for disability insurance purposes); Me. Rev. Stat. Ann. tit. 24-A, § 2159-C(3) (2006) (allowing insurers to use genetic information for disability insurance, but not permitting unfair discrimination based on that information); Mont. Code Ann. § 33-18-903(3) (2005); Vt. Stat. Ann. tit. 18, §§ 9331, 9934 (2006). In some states it is unclear whether genetic discrimination laws apply to disability income insurance. See, e.g., Mich. Comp. Laws § 500.3407b (2006); N.J. Stat. Ann. § 17B:30–12(F) (West 2006) (explaining that unfair discrimination includes the “application of the results of a genetic test [in a manner] not reasonably related to anticipated claim experience”); Wyo. Stat. § 26-19-107 (2006) (addressing genetic information's use in group policies, but not individual policies). However, there are many states that specifically exclude disability income insurance from their coverage. See, e.g., Ark. Code. Ann. § 23-66-320 (West 2006); Colo. Rev. Stat. Ann. § 10-3-1104.7 (West 2006); Conn. Gen. Stat. §§ 38(A).816, 38(A).469 (2006); Del. Code. Ann. Tit.18, § 2317 (2006); Fla. Stat. Ann. § 627.4301(2)(C) (West 2006); Ga. Code Ann. § 33-54-7 (West 2006); Haw. Rev. Stat. § 431:10A-118 (2005); Idaho Code Ann. § 41–2221 (2006); Ind. Code Ann. § 27-8-26-1 (West 2006); Kan. Stat. Ann. § 40–2259(C) (2005); La. Rev. Stat. Ann. § 22:213.7(G) (2006); Md. Code Ann. [Ins.] § 27–909 (West 2006); Minn. Stat. §§ 62A.011, 72A.139 (2006); Mo Rev. Stat. §375.1303 (2006); Neb. Rev. Stat. § 44–787 (2005); N.H. Rev. Stat. Ann. §§ 141-H:1, 3, 4 (2006); N.M. Stat. Ann. § 24-21-3 (West 2006); N.C. Gen. Stat. § 58-3-215 (2006); N.Y. Ins. Law. § 2615 (McKinney 2006); Okla. Stat. Ann. Tit. 36, § 3614.1 (2006); Or. Rev. Stat. §§ 746.135, 192.531 (West 2005); R.I. Gen. Laws §§ 27-18-52, 27-18-52.1 (2005); S.C. Code Ann. § 38-93-20 (2005); S.D. Codified Laws §§ 58-1-24, 58-1-25, 58-18-87 (2006); Texas Ins. Code Ann. § 21.73 (Vernon 2006); Va. Code Ann. § 38.2–508.4 (2006); Wis. Stat. §§ 632.749, 631–89(3) (2005).

42 U.S.C. §§ 300gg, 300gg-1 (2003).

Exec. Order No. 13,145, 65 Fed. Reg. 6877 (2000); see also Equal Employment Opportunity Commission Enforcement Guidance, Report: Policy Guidance on Executive Order 13145: To Prohibit Discrimination in Federal Employment Based on Genetic Information, 2000 WL 33407180, July 26, 2000.

S. 306, 109th Cong. (2005).

H.R. 1227, 109th Cong. (2005). Since the House took no action with respect to the Genetic Information Nondiscrimination Act before the end of its two-year congressional term in December of 2006, this bill lost its active status. In 2003 the House also failed to pass an earlier version of the Senate bill, S. 1053, 108th Cong. (2003), as well as the House's own Genetic Nondiscrimination in Health Insurance and Employment Act, H.R. 1910, 108th Cong. 1st Sess. (2003), possibly due to concerns of overlap with the ADA and HIPAA. See Corbett W. R. , “The Need for Revitalized Common Law of the Workplace,” Brooklyn Law Review 69 (2003): 91–162. Legislative efforts continue. The 110th Congress is now considering H.R. 493, S. 358, 110th Cong. (2007).

Dodge and Christianson significantly over-read our definition of genetic testing. See Dodge J. H. and Christianson D. , “Genetic Testing and Disability Insurance: An Alternative Opinion,” Journal of Law, Medicine & Ethics 35, no. 2, Supplement (2007): 33–35. Many genetic tests, such as the test most commonly use for Tay-Sachs, evaluate protein levels but directly reveal a genetic disorder. Thus, our definition does not threaten to include all health tests.

Andrews L. and Zuiker E. S. , “Ethical, Legal, and Social Issues in Genetic Testing for Complex Genetic Disease,” Valparaiso University Law Review 37 (2003): 793–829.

EEOC v. Burlington Northern Santa Fe Ry. Co., No. 02-C-0456 (E. D. Wisc. 2002); McDonough M. , “EEOC Reaches $2.2 Million Settlement with Railroad,” ABA Journal E-Report 1, no. 21 (May 31, 2002). See also Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1260 (9th Cir. 1998).

See Hall and Rich , supra note 1; Office of Technology Assessment, supra note 1. For contrasting views see, for example, Kass N. E. , “Medical Privacy and the Disclosure of Personal Medical Information: The Beliefs and Experiences of Those with Genetic and Other Clinical Conditions,” American Journal of Medical Genetics 128A (2004): 261–270; NCD Position Paper, supra note 12.

See Holtzman N. A. , “Are Genetic Tests Adequately Regulated?” Science 286 (1999): 409; Huang A. , “FDA Regulation of Genetic Testing: Institutional Reluctance and Public Guardianship,” Food and Drug Law Journal 53 (1998): 555–591.

See generally Rothstein M. A. and Hoffman S. , “Genetic Testing, Genetic Medicine, and Managed Care,” Wake Forest Law Review 34 (1999): 849–888.

See generally Rothstein M. A. , “Genetic Privacy and Confidentiality: Why They Are So Hard to Protect,” Journal of Law, Medicine & Ethics 26, no. 3 (1998): 198–203; Rothstein and Hoffman , supra note 24, at 857; see Rothstein M. A. , “Why Treating Genetic Information Separately Is a Bad Idea,” Texas Review of Law and Politics 4 (1999): 33–37; Lemmens T. , “Selective Justice, Genetic Discrimination and Insurance: Should We Single Out Genes in Our Laws?” McGill Law Journal 45 (2000): 347–412; Gostin L. O. and Hodge J. G. Jr. , “Genetic Privacy and the Law: An End to Genetics Exceptionalism,” Jurimetrics 40 (1999): 21–32; Rothstein M. A. , “Genetic Exceptionalism and Legislative Pragmatism,” Journal of Law, Medicine & Ethics 35, no. 2, Supplement (2007): 59–65. Rothstein maintains that genetic exceptionalism is poor public policy since genetics-specific laws can work to reinforce the stigma of genetic disorders by treating them differently from other conditions. Further, he argues that the social stigma associated with genetic information stems in large part from unfamiliarity with its widespread use, and thus he conjectures that the public's unique fear of genetic information will dissipate over time as it becomes more common on the medical charts of all patients.

Kass N. and Medley A. , “Genetic Screening and Disability Insurance: What Can We Learn From The Health Insurance Experience?” Journal of Law, Medicine & Ethics 35, no. 2, Supplement (2007): 65–72. State legislatures and regulators as well as insurance companies themselves have often considered restricting underwriting and actuarial practice to pursue public policy goals. See, e.g., Soule , supra note 9, at 251–52.

Holmes E. M. , “Solving the Insurance/Genetic Fair/Unfair Discrimination Dilemma in Light of the Human Genome Project,” Kentucky Law Journal 85 (1996–97): 503–663; Draper E. , “The Screening of America: The Social and Legal Framework of Employers' Use of Genetic Information,” Berkeley Journal of Employment and Labor Law 20 (1999): 298–324; Miller P. S. , “Is There a Pink Slip in My Genes? Genetic Discrimination in the Workplace,” Journal of Health Care Law and Policy 3 (2000): 226–265; Watterson H. R. , “Genetic Discrimination in the Workplace and the Need for Federal Legislation,” DePaul Journal of Health Care Law 4 (2001): 423–448.

See, e.g., Hellman D. , “What Makes Genetic Discrimination Exceptional?” American Journal of Law & Medicine 29 (2003): 77–116; Greely H. T. , “Genotype Discrimination: The Complex Case for Some Legislative Protection,” University of Pennsylvania Law Review 149 (2001): 1483–1505; Rothstein M. A. , “Predictive Genetic Testing for Alzheimer's Disease in Long-Term Care Insurance,” Georgia Law Review 35 (2001): 707–733; see Rothstein , “Genetic Exceptionalism and Legislative Pragmatism,” supra note 25. Despite Rothstein's overarching criticisms of genetic exceptionalism, at the conclusion of his article in this symposium, Rothstein admits that enacting genetics-specific laws may be necessary and appropriate under certain limited conditions. He says that genetics-specific laws may have some pragmatic value, so long as: (1) there is some true value to the law, in that there is a demonstrated need for the legislation and it can be shown that the proposed legislation will resolve one or more aspects of the problem; (2) the law is carefully drafted to avoid any negative, unintended consequences to third parties, such as employers and insurers; (3) enactment of the genetics-specific law does not delay the enactment of legislation better designed to promote broader public policies, such as the role of predictive health information in society; and (4) there is recognition among legislators and the public that the law is not ideal, but rather the best that can be achieved at the moment.

Vaughan E. J. and Vaughan T. M. , Fundamentals of Risk and Insurance, Health Insurance: Disability Insurance, 8th ed. (New York: John Wiley, 1999): at 356.

Id.; see also Unum, “Specimen Insurance Policy: Lifelong Disability Protection (New Jersey) No. LA R000000,” issued to Doe John A. , July 1, 1995, effective July 1, 1995, at 8 (on file with authors) [hereinafter cited as Unum, Lifelong Disability Protection]; Unum, “Specimen Insurance Policy: Income Series; Individual Income Protection Insurance (Form 600 & 601) No. 123456789,” issued to Doe John A. , effective January 1, 2000, at 10 (on file with authors) [hereinafter cited as Unum, Individual Income Protection]; Unum, “Specimen Contract: Group Short Term Disability and Group Long Term Disability Income Protection Plans, No. 123456,” issued to ABC Company, effective March 1, 2000: at STD-BEN-1, LTD-BEN-1 (on file with authors) [hereinafter cited as Unum, Group Short and Long Term Disability Income Protection]; “Provident Life and Accident: Specimen Insurance Policy: Accident Disability Income Policy, No. 66-475-999999,” issued to John Provident, December 28, 1997, effective January 1, 1998, at 5 (on file with authors) [hereinafter cited as Provident, Accident Disability Income]; Brotherhood Lutheran , “Sample Insurance Policy: Business Overhead Expense, No. H0012345,” issued to Doe John , June 1, 1996; at 5 (on file with authors) [hereinafter cited as Lutheran Brotherhood, Business Overhead Expense]; Brotherhood Lutheran , “Sample Insurance Policy: Disability Income, No. H0012345,” issued to Doe John , June 1, 1996, at 5 (on file with authors) [hereinafter cited as Lutheran Brotherhood, Disability Income].

See Vaughan and Vaughan , supra note 29.

American Council of Life Insurers, Life Insurers Fact Book, 2001 (Washington, D.C.: ACLI, 2000): 137. “In 1995, Disability insurers paid over $5 billion in claims to group policy holders and over $3 billion in claims to individual policy holders.” Health Insurance Institute, Sourcebook of Health Insurance Data 1999–2000 (New York: Health Insurance Institute): at 159.

See Soule , supra note 9, at 60–61, 94.

For a discussion of adverse selection, see generally Chandler S. J. , “Visualizing Adverse Selection: An Economic Approach to the Law of Insurance Underwriting,” Connecticut Insurance Law Journal 8 (2001–2002): 435–503; Baker T. , “Containing the Promise of Insurance: Adverse Selection and Risk Classification,” Connecticut Insurance Law Journal 9 (2002–2003): 371–396; Stark A. , “The Double Irony of Health-Insurance Regulation,” Society 40, no. 5 (2003): 28–35; Siegelman P. , “Adverse Selection in Insurance Markets: An Exaggerated Threat,” Yale Law Journal 113 (2004): 1223–1280.

See Abraham and Liebman , supra note 5, at 84.

See Provident, Accident Disability Income, supra note 30, at 1.

See, e.g., Lutheran Brotherhood, Disability Income, supra note 30, at 10 (occupational sickness or injury not included in “exceptions and limitations”).

See, e.g., Group Short and Long Term Disability Income Protection, supra note 30, at STD-BEN-4 (“Your plan does not cover any disabilities caused by, contributed by, or resulting from your occupational sickness or injury.”)

Id., at LTD-BEN-3, 4 (“Unum will subtract from your gross disability payment the following deductible sources of income: …The amount that you, your spouse and children receive or are entitled to receive as disability payments because of your disability under the United States Social Security Act.”)

However, on health insurance, see Hall and Rich , supra note 1; Rothstein and Hoffman , supra note 24, at 866.

See, e.g., Shaheen N. J. , “Insurance, Employment, and Psychosocial Consequences of a Diagnosis of Hereditary Hemochromatosis in Subjects without End Organ Damage,” American Journal of Gastroenterology 95 (2003): 1175–1180; Rothstein M. A. and Hornung C. A. , “Public Attitudes,” in Rothstein M. A. , ed., Genetics and Life Insurance: Medical Underwriting and Social Policy, (Cambridge: MIT Press, 2004): 1–25; see also Norum J. and Tranebjaerg L. , “Health, Life, and Disability Insurance and Hereditary Risk for Breast or Colorectal Cancer,” Acta Oncologica 39 (2000): 189–193, at 189.

American Academy of Actuaries, The Use of Genetic Information in Disability Income and Long-Term Care Insurance, Issue Brief 7, 2002, available at <http://www.actuary.org/pdf/health/genetic_25apr02.pdf> (last visited February 21, 2007).

Id., at 8.

See 42 U.S.C. §§300gg (2006); supra note 14 (listing state statues that address limits in the context of disability insurance).

Wessling E. , “Contracts: Applying the Plain Language to Incontestability Clauses,” William Mitchell Law Review 27 (2000): 1253–1271, at 1256.

Id. (noting that in some jurisdictions even fraud discovered after the contestability period expires will not void a policy).

See, e.g., Ark. Blue Cross & Blue Shield, Inc. v. Doe, 733 S.W.2d 429 (Ark. 1987); Hess v. Allstate Ins. Co., Civ. No. 99-384-P-C, 2000 U.S. Dist. Lexis 12258, at *13 (D. Me. Aug. 2, 2000); Pelletier v. Fleet Fin. Group, NH Civ. No. 99-245-B, Me Civ. No. 99-CV-146-PH, 2000 U.S. Dist. Lexis 16456, at *17 (D.N.H. September 19, 2000).

See Zitter J. M. , “What Constitutes Mental Illness or Disorder, Insanity, or the Like, within Provision Limiting or Excluding Coverage under Health or Disability Policy,” American Law Reports 5th 19 (Lawyers Cooperative Publishing, 1994): 533–562, §1; see also Unum, “Lifelong Disability Protection,” supra note 30, at 11; Unum, “Group Short and Long Term Disability Income Protection,” supra note 30, at LTD-BEN-6; Lutheran Brotherhood, “Disability Income,” supra note 30, at 10.

See Befort S. F. , “Mental Illness and Long-Term Disability Plans under the Americans with Disabilities Act,” University of Pennsylvania Journal of Labor & Employment Law 2 (1999): 287–302, at 289; see also El-Hajj v. Fortis Benefits Ins. Co., 156 F. Supp. 2d 27 (D. Me. 2001).

See Fitts v. Fed. Nat'l Mortgage Ass'n, 191 F. Supp. 2d 67, 70 (D.D.C. 2002); Hess, 2000 U.S. Dist. Lexis 12258, at *25; Attar v. Unum Life Ins. Co., Ca-3-96-Cv-0367-R, 1997 U.S. Dist. Lexis 23254 (N.D. Tex. July 19, 1997).

Ark. Blue Cross and Blue Shield, 733 S.W.2d 429.

See Hess , 2000 U.S. Dist. LEXIS 12258, at 22.

See Unum, “Group Short and Long Term Disability Income Protection,” supra note 30, at Glossary-3; Unum, “Lifelong Disability Protection,” supra note 30, at 12; Unum, “Individual Income Protection,” supra note 30, at 8; Lutheran Brotherhood, “Business Overhead Expense,” supra note 30, at 4; Brotherhood Lutheran , “Disability Income,” supra note 30, at 4.

For charts comparing state statutes, see The National Conference of State Legislatures, Genetics and Life, Disability and Long-Term Care Insurance, available at <http://www.ncsl.org/programs/health/genetics/ndislife.htm> (last visited February 21, 2007); National Conference of State Legislatures, State Genetics Employment Laws, available at <http://www.ncsl.org/programs/health/genetics/ndiscrim.htm> (last visited February 21, 2007).

See American Academy of Actuaries, supra note 42, at 56.

Id., at 7.

Id., at 2.

See supra note 54 (listing the statutes cited in this paragraph).

Ariz. Rev. Stat. § 20–448 (2006); Cal. Ins. Code §§10146–10149.1 (2006); Kan. Stat. Ann. §40–2259(d) (2005); Me. Rev. Stat. Ann. tit. 24, § 2159-C (West 2006); Mont. Code Ann. § 33-18-206 (2005); N.J. Stat. § 17B:30–12 (2006); N.M. Stat. Ann. §24-21-4 (2006); N.Y. Ins. Law. §§ 2613, 2615 (McKinney 2006); Or. Rev. Stat §§ 746.135, 192.531 (2005); Vt. Stat. Ann. tit. 18 § 9332 (2005); Wis. Stat. § 631–89(3) (2005).

See Daniels , supra note 5, at 133–140.

See American Academy of Actuaries, supra note 42, at 9.

See American Council of Life Insurers, supra note 32, at 137–142.

42 U.S.C. § 300gg-1(a)(1) (2006).

Genetic Information Nondiscrimination Act of 2005, S. 306, 109th Cong. (2005). Although passed by the Senate in February 2005, the House failed to take action on this bill, thus allowing the bill to die with the closing of the 109th Congress in December 2006. The Senate's bill closely followed two bills proposed in the 108th Congress: Genetic Information Nondiscrimination Act of 2003, S.1053, 108th Cong., 1st Sess. (2003), and Genetic Nondiscrimination in Health Insurance and Employment Act, H. R. 1910, 108th Cong., 1st Sess. (2003). On H.R. 493 and S. 358 in the 110th Congress, see supra note 18.

See American Council of Life Insurers, supra note 32, at 139–141 (discussing short- and long-term disability plans and their coverage); Abraham and Liebman , supra note 5, at 81–82; McDonnell Ken , EBRI Databook on Employee Benefits (Washington, DC: Employee Benefit Research Institute, 1997): at 29–30.

See McDonough , supra note 21;, Draper E. , “The Screening of America: The Social and Legal Framework of Employers' Use of Genetic Information,” Berkeley Journal of Employment & Labor Law 20 (1999): 286–324 (stating that employers use genetic testing to eliminate high risks rather than making the environment safer for all).

See Soule , supra note 9, at 60–61.

See Unum , “Individual Income Protection,” supra note 30, at 9; see also Provident, Accident Disability Income, supra note 30, at 7 (“Pre-existing Condition means a sickness or physical condition which, before the Effective Date of this policy, either: 1) results in your receiving medical advise or treatment; or 2) caused symptoms for which an ordinarily prudent person would have sought medical advise or treatment.”)

See Unum , “Group Short and Long Term Disability Income Protection,” supra note 30, at Glossary-3.

See, e.g., Fath v. UNUM, 928 F. Supp. 1147, 1149 (M.D. Fla. 1996).

See McCorkle v. Life Gen. Sec. Ins. Co., 830 F. Supp. 1446 (M.D. Fla. 1993) (absence of recorded diagnosis of illness prior to commencement of policy is irrelevant in determining applicability of pre-existing condition exclusion); Kirk v. Provident Life & Accident Ins. Co., 942 F.2d 504, 506 (8th Cir. 1991) (coverage denied where symptoms were present prior to the effective date of policy but were insufficient to allow an accurate diagnosis at that time).

Haley v. Paul Revere Life Ins. Co., 77 F.3d 84, 90 (4th Cir. 1996).

See Unum , “Group Short and Long Term Disability Income Protection,” supra note 30, at LTD-BEN-1.

See id., at Glossary-4; see also Soule , supra note 9, at 243–44.

See text and state statutes, supra note 59.

42 U.S.C. § 300gg(b)(1)(B) (2006).

42 U.S.C. § 12112(d)(3) (2006); 29 C.F.R. §1630.14(b) (2006).

See Rothstein M. A. , “Genetics and the Workforce of the Next Hundred Years,” Columbia Business Law Review 2000, no. 3 (2000): 371–402, at 387; see also NCD Position Paper, supra note 12; Congressional Research Service, Genetic Information: Legal Issues Relating to Discrimination and Privacy, Report, no. RL30006, July 19, 2001, at 13.

Department of Labor, Department of Health and Human Services, Equal Employment Opportunity Commission, Department of Justice, Genetic Information and the Workplace, January 20, 1998 [hereinafter cited as DOL Joint Report].

See 42 U.S.C. § 12102(2)(B) (2006) (“The term ‘disability’ means, with respect to an individual (a) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment.”)

See EEOC Compliance Manual 3 (March, 1995): 902–945.

S. 306, 109th Cong. (2005). Although passed unanimously by the Senate in February 2005, The House's failure to take action on this bill resulted in its loss of active status at the close of the 109th Congress. On more recent efforts, see note 18, supra.

Exec. Order No. 13,145, 65 Fed. Reg. 6877 (2000).

See supra note 54 (listing The National Conference of State Legislatures Genetics Tables).

Rothstein M. A. Gelb B. D. and Craig S. G. , “Protecting Genetic Privacy by Permitting Employer Access Only to Job-Related Employee Medical Information: Analysis of a Unique Minnesota Law,” American Journal of Law & Medicine 24 (1998): 399–416.

Ariz. Rev. Stat. Ann. § 41–1463 (2006); Ark. Code Ann. §§ 11-5-403, 405 (2006) (exempts all insurers from anti-discrimination statute); Cal. Gov't. Code §§ 12926, 12940 (2006); Conn. Gen. Stat. § 46a–60 (2006); Del. Code Ann. Tit. 19, §§ 710–711 (2006); Haw. Rev. Stat. §§ 378–1, 2 (2005); Iowa Code § 729.6 (2006); Kan. Stat. Ann. §§ 44–1002, −1009 (2005); La. Rev. Stat. Ann. §§ 23:302, 23:368 (2006); Me. Rev. Stat. Ann. Tit 5, §§ 19301, 19302 (2006); Md. Ann. Code Art. 49B, §§ 15, 16 (2006); Mass. Gen. Laws Ch. 151B, §§1, 4 (2006); Mich. Comp. Laws §§ 37.1202 (2006) (exception if to protect worker safety); Nev. Rev. Stat. § 613.345 (2006); N.H. Rev. Stat. Ann. § 141-H:3 (2006); N.J. Stat. Ann. §§ 10:5–5, 10:5–12 (West 2006); N.Y. Civ. Rights Law §§ 48, 48-A (Consol. 2006) (only for Sickle Cell, Tay-Sachs, or Cooley's Anemia), N.Y. Exec. Law §§ 292, 296 (Consol. 2006) (permitting the employer to require test for susceptibility to known risk); N.C. Gen. Stat. § 95–28.1A (2006); Okla. Stat. Tit 36, § 3614.2 (2006); Or. Rev. Stat. § 659A.303 (2005); R.I. Gen. Laws §§ 28–6.7–1, 28–6.2.1, 28–6.7–3 (2005); S.D. Codified Laws §§ 60-2-20, 60-2-21 (2006); Tex. Lab. Code Ann. §§ 21.401, .402 (Vernon 2006); Utah Code Ann. §26-45-103 (2006) (except employer can get a court order compelling disclosure under certain circumstances such as when the health of a person poses a safety risk or when need outweighs one's privacy interest); Vt. Stat. Ann. Tit. 18, § 9333 (2005); Va. Code Ann. § 40.1–28.7:1 (2006); Wis. Stat. §§ 111.372, 111.32 (2005).

Iowa Code § 729.6 (2006) (testing for susceptibility or for workers' compensation purposes, only if employee requests); Mich. Comp. Laws §§ 37.1202 (2006) (can submit voluntarily and employer can use to protect worker's safety); N.H. Rev. Stat. Ann. § 141-H:3 (2006) (employee can request for purposes of workers' compensation or susceptibility and cannot be fired for results of tests); N.Y. Exec. Law §§ 292, 296 (Consol. 2006) (employee can test voluntarily for workers' compensation or susceptibility purposes or for other civil litigation); Okla. Stat. Tit. 36, § 3614.2 (2006) (can use testing for determination of coverage or benefits for all forms of insurance); Utah Code Ann. § 26-45-103 (2006) (can get court order for purposes of an administrative proceeding in which employee has placed his or her health at issue); Wis. Stat. §§ 111.372, 111.32 (2005) (employee can request genetic information for workers' compensation or susceptibility purposes).

Okla. Stat. Tit. 36, § 3614.2 (2006).

See, for example., N.H. Rev. Stat. Ann. § 141-H:3 (2006); Okla. Stat. Tit 36, § 3614.2 (2006); Vt. Stat. Ann. Tit. 18, § 9333(B) (2005).

N.H. Rev. Stat. Ann. § 141-H:3 (2006).

See H.R. 1227, 109th Cong. (2005); S. 306, 109th Cong. (2005); H. R. 1910, 108th Cong. (2003); S. 1053, 108th Cong. (2003); S. 16, 108th Cong. (2003); H.R. 602, 107th Cong. (2001); S. 1995, 107th Cong. (2001); S. 318, 107th Cong. (2001); H.R. 306, 106th Cong. (1999); H.R. 293, 106th Cong. (1999); H.R. 2457, 106th Cong. (1999); S. 543, 106th Cong. (1999); S. 1322, 106th Cong. (1999); H.R. 306, 105th Cong., 1st Sess. (1997); H. R. 2215, 105th Cong., 1st Sess. (1997); H.R. 341, 105th Cong. 1st Sess. (1997); S. 422, 105th Cong. 1st Sess. (1997); S. 89, 105th Cong. 1st Sess. (1997). On more recent efforts, see note 18, supra.

Draper E. A. , “Social Issues of Genome Innovation and Intellectual Property,” Risk 7 (1996): 201–229, at 212; Murray T. H. , “Genetic Testing at Work: How Should It Be Used?” Technology Review 88 (1985): 51–59, at 54–55; see also DOL Joint Report, supra note 79, at 3. For data on corporate use of genetic screening, see Office of Technology Assessment, supra note 1, at 11–20.

See Murray , supra note 92, at 56–58; see also DOL Joint Report, supra note 79, at 3. For data on corporate use of genetic monitoring, see Office of Technology Assessment, supra note 1, at 35–45. Testing typically refers to use of genetic tests on individuals, while screening typically refers to use of tests on groups or populations. Either could be used in a workplace.

See Draper , supra note 92, at 212.

See Murray , supra note 92, at 54.

Chevron U.S.A. v. Echazabal, 536 U.S. 73 (2002).

Pesonen L. M. , Comment, “Genetic Screening: An Employer's Tool to Differentiate or to Discriminate?” Journal of Contemporary Health Law and Policy 19 (2002): 187–223, at 220–21; Barnes M. , “Chevron v. Echazabal: Public Health Issues Raised by the ‘Threat-to-Self’ Defense to Adverse Employment Actions,” American Journal of Public Health 93 (2003): 536–540, at 537.

See Barnes , supra note 97, at 537.

Daniels N. , “Chevron v. Echazabal: Protection, Opportunity, and Paternalism,” American Journal of Public Health 93 (2003): 545–548, at 548.

See Barnes , supra note 97, at 536–539.

Id.

See Pesonen , supra note 97, at 220–221.

See, e.g., Int'l Union, UAW v. Johnson Controls, 499 U.S. 187, 209 (1991).

See, e.g., Billings P. and Beckwith J. , “Genetic Testing in the Workplace: A View from the U.S.A.,” Trends in Genetics 8, no. 6 (1992): 198–202; Eggen J. M. , “Toxic Reproductive and Genetic Hazards in the Workplace: Challenging the Myths of the Tort and Workers' Compensation System,” Fordham Law Review 60 (1992): 843–912; Yesley M. S. , “Genetic Difference in the Workplace,” Jurimetrics 40 (1999): 129–142.

See Chevron U.S. A. v. Echazabal, 536 U.S. 73, 84–85 (2002); Daniels, supra note 99, at 546–48; Weems J. , “A Proposal for a Federal Genetic Privacy Act,” Journal of Legal Medicine 24 (2003): 109–126.

See Fishback P. V. and Kantor S. E. , “The Adoption of Workers' Compensation in the United States,” Journal of Law and Economics 41 (1998): 305–336, at 306; Gabel J. T. A. Mansfield N. R. and Klein R. W. , “The New Relationship Between Injured Worker and Employer: An Opportunity for Restructuring,” American Business Law Journal 35 (1998): 403–442, at 403; Epstein R. A. , “The Historical Origins and Economic Structure of Workers' Compensation Law,” Georgia Law Review 16 (1982): 775–819, at 800; see also Larson A. and Larson L. K. , Larson's Workers' Compensation Law, vol. 1 (New York: Matthew Bender, 2002) § 100.01.

See Fishback and Kantor , supra note 106, at 45.

See Larson and Larson , supra note 106 at vol. 1, § 1.01, vol. 2, § 42.02, vol. 3 §, 52.07, vol. 4, § 80.01.

Id., at vol. 1, § 4.04.

Id., § 1.01.

Russ L. R. Segalla T. F. and Couch G. J. , “Workers' Compensation: Introduction,” in Couch on Insurance, 3rd ed. (St. Paul, MN: West Group, 1997): § 133.17.

See Larson and Larson , supra note 106, at vol. 3, § 52.01. But other states, such as West Virginia, have incorporated occupational disease into the statute's definition of “injury.” See W. Va. Code § 23-4-1 (2003).

Nackley J. V. , Primer on Workers' Compensation, 2nd ed. (Washington, D.C.: Bureau of National Affairs, 1989): at 23.

See, e.g., Nelson v. Ponsness-Warren Idgas Enter., 126 Idaho 129 (1994); Duval v. ICI Ams., 621 N.W. 2d 1122 (Ind. Ct. App. 1993).

See Epstein , supra note 106, at 809; Gabel, Mansfield, and Klein, supra note 106, at 409.

See Larson and Larson , supra note 106, at vol. 1, § 2.08.

See Soule , supra note 9, at 45.

Id., at 45–46.

See McDonnell , supra note 65, at 423.

See, e.g., Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. (2006); Longshoremen's and Harbor Workers' Act, 33 U.S.C. § 901 et seq. (2006); Federal Employees Compensation Act, 5 U.S.C. § 8101 et seq. (2006).

This is to be distinguished from legal cause or proximate cause, as lawyers usually refer to it, since Workers' Compensation is not concerned with culpability. Causation for Workers' Compensation purposes is more like “connection to the work.” See Larson and Larson , supra note 106, at vol. 1, § 1.03.

See id., at vol. 1, § 90.02; see also, e.g., Sisbro v. Indus. Comm'n, 797 N.E.2d 665, 672 (Ill. 2003) (“It is axiomatic that employers take their employees as they find them. When workers’ physical structures, diseased or not, give way under the stress of their usual tasks, the law views it as an accident arising out of and in the course of employment.”); Peitz v. Indus. Accident Bd, 264 P.2d 709, 712 (Mont. 1953) (“[I]t is a fundamental principle that the employer takes the employee subject to his physical condition at the time he enters employment.”); Marshall v. C.F. Mueller Co., 50 A.2d 158, 160 (N.J. 1946) (“The employer takes his employees with their mental, emotional, glandular and other physical defects or disabilities.”); Hamilton v. Keller, 229 N.E.2d 63, 68 (Ohio Ct. App. 1967); Rogers v. Shaw, 813 S.W.2d 397, 399 (Tenn. 1991) (“It is axiomatic that the employer takes the employee as he is, that is, with his defects and pre-existing conditions.”); Swift & Co. v. Howard, 212 S.W.2d 388, 391 (Tenn. 1948); Wheeler v. Supervalu, 2002 IA Wrk. Comp. LEXIS 144, *20-*21 (Mar. 15, 2002) (McManus, Jr., Arb.) (“The employer takes the employee ‘as is’ and, therefore, takes him subject to any active or dormant health impairment…[T]he duty of ‘exercising care to avoid injury to the weak and infirm is precisely the same as toward the strong and healthy.’”) (quoting Hanson v. Dickinson, 188 Iowa 728, 732 (1920)).

See Larson and Larson , supra note 106, at vol. 1, § 9.02; see also Wheeler, 2002 IA Wrk. Comp. LEXIS 144, at *20-*21.

See Larson and Larson , supra note 106, at vol. 5, § 91.01. (“It has been said…that within the thirty days following the announcement of the non-apportionment rule in Nease v. Hughes Stone Company, between seven and eight thousand one-eyed, one-legged, one-armed, and one-handed workers were displaced in Oklahoma.”)

Id.

Id.

See, e.g., Deyonge v. Nana/Marriot, 1 P.3d 90, 98 (Alaska 2000) (addressing whether work was a substantial factor in aggravating claimant's pre-existing arthritis); Scholl, No. 1059419, 1998 IA Wrk. Comp. LEXIS 307, *6 (November 30, 1998) (addressing whether bunion, described by physician as a genetic condition, was substantially caused by the work); Holmes v. Bruce Motor Freight, 215 N.W.2d 296, 297 (Iowa 1974). (“The claimant has the burden of proving by a preponderance of the evidence that some employment incident or activity brought about the health impairment on which he bases his claim. A possibility is insufficient; a probability is necessary.”)

See, e.g., Dept. of Corr. v. Workers Comp. App. Bd., 64 Cal. Comp. Cas. 1356, *12 (Cal. Ct. App. Dec. 2, 1999).

Wis. Comp. Rating & Inspection Bureau v. Mortensen, 277 N.W. 679 (Wis. 1938).

See, e.g., Short, AWCB Case No. 9103418, 1996 AK Wrk. Comp. LEXIS 4056, at *24 (June 28, 1996); Keller v. Wilson Foods Cont'l Deli, No. 1-1034, 2002 Iowa App. LEXIS 704, at *8 (Iowa Ct. App. July 3, 2002); Tee Jays Mfg. Co., Inc. v Stults, 723 So. 2d 684, 685 (Ala. Civ. App. 1998); Brock & Blevins Inc. v. Cagle, 775 So. 2d 824, 827 (Ala. Civ. App. 1999); Kuikan, no. 803877, 1993 IA Wrk. Comp. LEXIS 506, at *5 (May 27, 1993); Sapp, No. 1093703, 2000 IA Wrk. Comp. LEXIS 362, at *11 (July 17, 2000).

See cases cited at supra note 127.

See, e.g., Kuiken, 1993 IA Wrk. Comp. LEXIS 506; Sapp, 2000 IA Wrk. Comp. LEXIS 362.

See Brock & Blevins Inc., 775 So. 2d 824.

See Meihost v. Weyerhauser Co., no. 1168621, 1999 IA Wkr. Comp. 244, at *3 (September 22, 1999) (Mormann, Arb.) (finding that claimant failed to prove by a preponderance of the evidence that he incurred a work-related and noise-induced hearing loss after the date the employer purchased assets of his former employer and formed a new employer-employee relationship with claimant); Grundmeyer v. Weyerhauser Co., no. 1168507, 1999 IA Wrk. Comp. LEXIS 650, at *6 (September 22, 1999) (Mormann, Arb.) (evidence supported finding that employee did not suffer any hearing loss after point that employer purchased box factory).

See Sapp, 2000 IA Wrk. Comp. LEXIS 362.

Id.

See Short, AWCB Case No. 9103418, 1996 AK Wrk. Comp. LEXIS 4056, at *24 (June 28, 1996).

See Scholl, No. 1059419, 1998 IA Wrk. Comp. LEXIS 307 (Nov. 30, 1998).

See Deyonge v. Nana/Marriot, 1 P.3d 90 (Alaska 2000); Brock & Blevins Inc., 775 So. 2d 824.

See, e.g., S.C. Code Ann. § 38-93-20 (2005) (excluding Workers' Compensation from the restrictions placed on insurers' use of genetic information); Utah Code Ann. § 26-45-103 (2006) (can get court order for purposes of an administrative proceeding in which employee has placed his or her health at issue).

Iowa Code § 729.6 (2006) (testing for susceptibility or for Workers' Compensation purposes only if employee requests); N.H. Rev. Stat. Ann. §141-H:3 (2006) (employee can request for purposes of Workers' Compensation or susceptibility and cannot be fired for results of tests); N.Y. Exec. Law §§ 292, 296 (McKinney 2006) (employee can do it voluntarily with specific written informed consent for Workers' Compensation or susceptibility purposes or other civil litigation); Wis. Stat. §§111.372, 111.32 (2005) (employee can request genetic information for Workers' Compensation or susceptibility purposes).

Americans with Disabilities Act, Pub. L. No. 101-336, § 102(c)(2)(A), 104 Stat. 327, 332 (1990) (codified as amended at 42 U.S.C. § 12112 (2006)).

29 C.F.R. pt. 1630, app. at 381 (2006) (Interpretive Guidance on Title I of the Americans with Disabilities Act, § 1630.14(b)); see also Larson and Larson , supra note 106, at vol. 5, § 91.03.

See Social Security Amendments of 1956, Pub. L. No. 84-880, § 103, 70 Stat. 807, 815; Nat'l Org. of Social Security Claimants' Representatives, Social Security Practice Guide, vol. 1, § 9.02 (New York: Matthew Bender, 2002) [hereinafter cited as Social Security Practice Guide].

See Social Security Practice Guide, supra note 144, at vol. 1, § 9.02.

Id.

See Social Security Administration, A Brief History of Social Security (Baltimore, MD: Social Security Administration, 2000): at 10, available at <http://www.ssa.gov/history/pdf/2005pamphlet.pdf> (last visited February 23, 2007); Social Security Practice Guide, supra note 144, at vol. 1, § 9.02.

42 U.S.C. §423(d)(1)(A) (2006); see also 20 C.F.R. §§ 404.1505, 416.905 (2006).

See Social Security Practice Guide, supra note 144, at vol. 1, § 9.02[1], vol. 1, § 9.03[5].

Id., at vol. 1, § 9.02[1]. (“The purpose of this amendment is unclear, except as a bar to the finding of disability where a claimant refuses to assist or tries to block the Social Security Administration in obtaining medical reports on himself. This has never been a significant problem in Social Security disability claims.”)

Contract with America Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996). Although alcoholism is a disability under the ADA, it is specifically excluded from coverage under Title II and Title XVI, the two federal programs that pay benefits to disabled individuals. The SSA has a long history of hostility to the idea that alcoholics are disabled for the purposes of the Social Security Act. See Barlow J. K. , “Alcoholism as a Disability under the Social Security Act: An Analysis of the History, and Proposals for Change,” Journal of the National Association of Administrative Law Judges 18 (1998): 273–302. In 1996 Congress eliminated alcoholism and drug addiction as bases for benefits under the Act. See Contract with America Advancement Act of 1996, Pub. L. No. 104-121, § 105 (a)(1)(c), 110 Stat. 847, 852–55. Congress enacted the 1996 amendments as Section 105 of former President Clinton's Contract with America Advancement Act. These amendments made it impossible for alcoholics or drug addicts to collect disability benefits unless there was some other medical basis for the application. Under the new provision, “an individual shall not be considered to be disabled for purposes of this subchapter if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the commissioner's determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C) (2006).

Supplemental Security Income; Determining Disability for a Child Under Age 18; Interim Final Rules With Request for Comments, 62 Fed. Reg. 6408, 6417 (Feb. 11, 1997) (codified at 20 C.F.R. pts. 404, 416). At present, a child will be found disabled under the Social Security Act if he “has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c (2006). This definition was changed as part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105.

See Samuels B. and Fusco V. , Social Security and SSI Disability (New York: Practicing Law Institute, 2001): at 29.

See Social Security Practice Guide, supra note 144, at vol. 1, § 9.02[2].

Id., at vol. 2, § 13.01.

See Diller M. , “Entitlement and Exclusion: The Role of Disability in the Social Welfare System,” UCLA Law Review 44 (1996): 361–465, at 431; National Organization of Social Security Claimants' Representatives Home Page, available at <http://www.nosscr.org> (last visited February 23, 2007).

See Disability Policy Panel Interim Report, Mashaw J. L. and Reno V. P. , eds., The Environment of Disability Income Policy: Programs, People, History and Context (Washington, D.C.: National Academy of Social Insurance, 1996): 13–29.

Id.

See Diller , supra note 156, at 440.

See Social Security Practice Guide, supra note 144, at vol. 1, §§ 608, 9.01[2][f].

See, e.g., 20 C.F.R. §§ 416.1331, 416.1338 (2006).

42 U.S.C. §423(d)(1)(A) (2006); 20 C.F.R. §§404.1505, 416.905 (2006) (defining disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months”).

20 C.F.R. pt. 404, subpt. P, app. 1 (2006) (Listing of Impairments); 20. C.F.R. pt. 416, subpt. I (2006).

See Social Security Practice Guide, supra note 144, at vol. 1, § 9.01[2].

See 20 C.F.R. §§ 404.1520, 416.920 (2006).

See 20 C.F.R. §§ 404.1508, 416.908 (2006).

See 20 C.F.R. § 404.1527 (2006).

See 20 C.F.R. pt. 404, subpt. P, app. 1 (2005) (listing the category of impairments).

20 C.F.R. pt. 404, subpt. P, app. 1, sec 11.09 (2005).

20 C.F.R. pt. 404, subpt. P, app. 1, sec 11.10 (2005).

See 20 C.F.R. §§ 404.1530, 416.930 (2005); see also Johnson v. Bowen, 864 F.2d 340, 348 (5th Cir. 1988) (referencing 20 C.F.R. §§ 404.1530, 216.930 for the proposition that “[i]f an impairment reasonably can be remedied or controlled by medication or therapy, it cannot serve as a basis for a finding of disability”); Lewis v. Sec. of HHS, 782 F. Supp. 56 (E.D. Tex. 1991) (citing Johnson for the proposition that an impairment that can be controlled by therapy or medication is not severe).

See 20 C.F.R. §§ 404.1512–1516, 416.912–916 (2005).

See supra note 163.

20 C.F.R. pt. 404, subpt. P, app. 1, sec. 10.00B (2006).

Id.

Id.

Id.

Id.

See 20 C.F.R. pt. 404, subpt. P, app. 1, secs. 3.04, 103.04 (2006).

See Garror v. Apfel, Civ. 00–0250-RV-M, 2001 U.S. Dist LEXIS (S.D. Ala. 2001); Higgens v. Apfel, 136 F. Supp. 2d 971 (E.D. Mo. 2001); Rudder v. Chater, 94 Civ. 8431, 1997 U.S. Dist. LEXIS 7703 (S.D.N.Y. 1997); Simmons v. Chater, 966 F. Supp. 241, 242 (S.D.N.Y. 1997).

See Revised Medical Criteria for Determination for Disability, Musculoskeletal System and Related Criteria, 66 Fed. Reg. 58,010, 58,023 (November 19, 2001) [hereinafter cited as Revised Medical Criteria].

See 20 C.F.R. § 404.1527(c)(3) (2006); see also Warner v. Heckler, 722 F.2d 428, 431(8th Cir. 1983); Rudder, 1997 U.S. Dist. LEXIS 7703.

See Social Security Practice Guide, supra note 144, at vol. 1, §13.01.

For litigation over date of onset, see Kraemer v. Apfel, 97 Civ. 8638, U.S. Dist. LEXIS (S.D.N.Y. Jan. 14, 1999) (myotonic dystrophy), affirmed on reconsideration by Kraemer v. Apfel, 97 Civ. 8638, U.S. Dist. LEXIS 1548 (S.D.N.Y. Feb. 10, 1999); Sonda v. Bowen, Civ. No. S85-411, U.S. Dist. LEXIS 19359 (N.D. Ind. July 29, 1988) (Alzheimer disease).

See Samuels and Fusco , supra note 153, at 13.

Id.

See, e.g., American Medical Association, Council on Ethical and Judicial Affairs, Code of Medical Ethics (Chicago: ABA Press, 2005): at E-2,138, available at <http://www.ama-assn.org/ama/pub/category/8439.html> (last visited February 23, 2007); Rosen A. Wallenstein S. and McGovern M. M. , “Attitudes of Pediatric Residents toward Ethical Issues Associated with Genetic Testing in Children,” Pediatrics 110 (2000): 360–363; American Academy of Pediatrics Committee on Genetics, “Molecular Genetic Testing in Pediatric Practice: A Subject Review,” Pediatrics 106 (2000): 1494–1496; American Academy of Pediatrics Committee on Bioethics, “Ethical Issues with Genetic Testing in Pediatrics,” Pediatrics 107 (2001): 1451–1455; Twomey J. G. , “Genetic Testing of Children: Confluence or Collision between Parents and Professionals?” AACN Clinical Issues 13 (2002): 557–566; Campbell E. and Ross L. F. , “Parental Attitudes Regarding Newborn Screening of PKU and DMD,” American Journal of Medical Genetics 120A (2003): 209–214; American Society of Clinical Oncology, “Policy Statement Update: Genetic Testing for Cancer Susceptibility,” Journal of Clinical Oncology 21 (2003): 2397–2406; Hook C. C. DiMagno E. P. and Tefferi A. , “Primer on Medical Genomics Part XIII: Ethical and Regulatory Issues,” Mayo Clinic Procedure 79 (2004): 645–650. For commentary on genetic testing for childhood-onset conditions, see Ross L. F. , “Predictive Genetic Testing for Conditions that Present in Childhood,” Kennedy Institute of Ethics Journal 12 (2002): 225–244.

See Mitchell v. Apfel, 19 F. Supp. 2d 523, 525 (W.D.N.C. 1998).

Id.

See Daniels , supra note 5; Rothstein, supra note 5.

Contemplating an extension of the regulatory framework of HIPAA to disability insurance, Robert Jerry has advocated for just this sort of reform, suggesting that the distinction between group and individual insurance might serve as the appropriate basis on which to draw a line between segments of the disability insurance market in which insurers can and cannot use genetic information. Jerry R. H. II , “Life, Health and Disability Insurance: Understanding the Relationships,” Journal of Law, Medicine & Ethics 35, no. 2, Supplement (2007): 79–88.

See also Testimony of Rowe John W. M.D., Chairman and CEO, Aetna, Inc., before the House Judiciary Subcommittee on the Constitution, September 12, 2002, available at <http://www.aetna.com/news/2002/pr_20020912.htm> (last visited February 23, 2007) (health plans should not determine eligibility based on genetic testing, “[r]equest or require genetic testing results as a condition to providing…coverage…[or] [u]se genetic testing for risk selection or risk classification”).