Architects of the Americans with Disabilities Act (ADA) contemplated that people living with human immunodeficiency virus (HIV) infection and AIDS would attract the act's antidiscrimination protections. Courts have recognized both conditions as covered disabilities. The extent to which the ADA introduces protection against insurers and health care providers who single out AIDS and HIV-related diseases for special treatment is not clear, however. Factors such as the increasing penetration of managed care, existing regimes of insurance regulation, and ambiguities in the act itself accentuate this lack of clarity. Efforts to define better the ADA's role in governing health benefits determinations and the obligations of hospitals and health care professionals can be expected to intensify. Also unclear, and likely to be borne out by successive interpretations, is whether the ADA will be used for judicial review of state action aimed at protecting the public's health from infectious diseases associated with the AIDS epidemic.
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References
1.
1. Centers for Disease Control and Prevention, “HIV/AIDS Surveillance,” in AIDS Reference Guide, ed. S. J. Goodwin (Washington, DC: Atlantic Information Services, 1995), tab. 22. Figures are current through June 1995.
2.
2. Ibid., tab. 9.
3.
Global AIDS Policy Coalition , AIDS in the World, Vol. 2 (New York: Oxford University Press, forthcoming).
4.
4. This is the range currently circulated by the World Health Organization. It is generally regarded as conservative. The Global AIDS Policy Coalition has estimated a figure in the range of 40-110 million. Ibid.
5.
5. See for example, Centers for Disease Control, “AIDS Among Ethnic/Racial Minorities—United States 1993,”Morbidity and Mortality Weekly Report, 9 Sept. 1994, pp. 644-647, 653-655; indicating, inter alia, that black women in the United States are approximately 15 times more likely to contract AIDS than white women are.
6.
6. U.S., Congress, Senate, Report of the Presidential Commission on the Human Immuno-Deficiency Virus Epidemic, 101st Cong., 1st sess., 1989, S. Rep. 101-116, p. 8: “As long as discrimination occurs, and no strong national policy with rapid and effective remedies against discrimination is established, individuals who were affected with HIV will be reluctant to come forward for testing, counseling and care. The fear of potential discrimination... will undermine our efforts to contain the HIV epidemic, and will leave HIV-infected individuals isolated and alone.”
7.
7. 42 U.S.C. §§ 12101 et seq. (1990). The ADA is composed of four chapters, or titles: Title I covers employment; Title II focuses on public services; Title III covers public accommodations; and Title IV contains a collection of miscellaneous provisions.
8.
8. Id. § 12101(b)(1) and § 12101(b)(1)(2).
9.
9. Lawrence O. Gostin, “The Americans with Disabilities Act and the Corpus of Anti-Discrimination Law: A Force for Change in the Future of Public Health Regulation,”Health Matrix, 3(1):89-126, 104 (Spring 1993).
10.
10. Although the ADA was signed into law on 26 July 1990, progressive implementation of its provisions did not begin until Jan. 1992. The general effective date for the public services and public accommodations titles was 26 Jan. 1992; the general effective date for entities with 25 or more employees was 26 July 1992; and the general effective date for entities with 15-24 employees was 26 July 1994.
11.
11. See, for example, Doe v. Kohn Nast and Graf, 862 F. Supp. 310 (E.D. Pa. 1994); Leonard v. McNemar, 64 U.S.L.W. 2063 (E.D. Pa. 1995); Mauro v. Borgess Medical Center, 866 F. Supp. 1349 (W.D. Mich. 1995); Doe v. University of Maryland System Corporation, 50 F.3d 1261 (Fourth Cir. 1995).
12.
12. Settlement Agreement between DOJ and City of Philadelphia, Mental and Physical Disability Law Reporter, p. 441 (July-Aug. 1994).
13.
13. Baby Neal v. Casey, 151 F.R.D. 282 (E.D. Pa. 1993), reversed on other grounds, 43 F.3d 48 (Third Cir. 1994).
14.
14. Support Ministries v. Waterford, 799 F. Supp. 272 (N.D. NY 1992).
15.
15. T.E.P. v. Leavitt, 840 F. Supp. 110 (D. Utah 1993).
16.
16. The ADA does not actually repeal the antidiscrimination statutes that preceded it. The construction provisions actually state that, unless otherwise indicated, the standards of the Rehabilitation Act remain in place; see 42 U.S.C. § 12201(a).
17.
17. 480 U.S. 273 (1987).
18.
18. The term “handicap” is used to proscribe discriminatory behavior under the Rehabilitation Act. Its definition is almost identical to that of “disability” in the ADA.
19.
19. Arline, 480 U.S. at 282.
20.
20. Id. at 284.
21.
21. Id. at 282 n. 7. In a much-studied footnote, the Supreme Court stated, “This case does not present, and we therefore do not reach, the questions whether a carrier of a contagious disease such as AIDS could be considered to have a physical impairment, or whether such a person could be considered, solely on the basis of contagiousness, a handicapped person as defined by the Act.”
22.
22. Codified as 42 U.S.C. § 12102(2).
23.
23. However, in its miscellaneous provisions (see § 12211(b)), the ADA does list illnesses and conditions explicitly excluded from the definition of “impairment.” Among the exclusions are a range of behavioral disorders such as pedophilia, exhibitionism, voyeurism, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from illegal drug use.
24.
24. See Ennis v. National Association of Business and Educational Radio, 53 F.3d 55 (4th Cir. 1995) (“Merely being infected with the human immunodeficiency virus (HIV) is not per se a `disability' within the meaning of the ADA; rather, plain language of statute contemplates case-by-case determinations of whether a given impairment substantially limits a major life activity, whether the individual has a record of such a substantially limiting impairment, or whether the individual is being perceived as having such a substantially limiting impairment.”).
25.
25. The fact that the ADA embraces the notion of perception, by defining as disabled people who are “regarded” as having an impairment, is particularly important in drawing individuals with HIV and AIDS under the protective umbrella of the statute. It accommodates the stigmatizing nature of the disease and the typical scenario where asymptomatic carriers of the virus are discriminated against out of a false belief that they are disabled.
26.
26. For judicial authority prior to the coming into effect of the ADA, see, for example, Chalk v. U.S. Dist. Court, 840 F.2d 701 (Ninth Cir. 1988) (extending Arline to protect a public school teacher with AIDS); Martinez v. School Bd. of Hillsborough County, 861 F.2d 1502 (Eleventh Cir. 1988) (Public school children with AIDS covered as “handicapped” by the Rehabilitation Act). For judicial authority under the ADA, see cases cited passim. Note, however, that some unresolved questions persist about circumstances in which asymptomatic HIV infection might not be covered as a disability under the ADA. See Ennis, 53 F.3d at 59-60.
27.
27. U.S., Congress, House, H. Rept. 485, 101st Cong., 2d sess., 1990, pp. 51-52, reprinted in 1990 U.S.C.C.A.N. 267, 333 (outlining some diseases intended to be covered, and including HIV and AIDS-related diseases among them; discussing procreation as a major life activity limited by HIV status); U.S., Congress, Senate, S. Rept. 116, 101st Cong., 1st sess., 1989, p. 22 (noting that “disability” includes persons infected with HIV).
28.
28. 28 C.F.R. § 36.104(1)(iii).
29.
29. See Equal Employment Opportunity Commission (EEOC), Interim Enforcement Guidance to the Application of the ADA to Disability Based Discrimination in Employer Provided Health Insurance, 8 June 1993, pp. 7-8 (hereafter called IEG).
30.
30. General Accounting Office, Access to Health Care; States Respond to a Growing Crisis, vol. 2, 1992.
31.
31. EEOC, IEG, p. 4, n. 3.
32.
32. 29 U.S.C. §§ 1001-1461 (1974).
33.
33. See Shaw v. Delta Airlines, Inc., 463 U.S. 85 (1983); FMC Corporation v. Holliday, 490 U.S. 52 (1990); cf. New York State Conference of Blue Cross and Blue Shield Plans v. Travelers, 115 Sup. Ct. 1671 (1995).
34.
34. See Metropolitan Life Insurance Co. v. Massachusetts, 471 U.S. 724 (1985), Baxter v. Lynn, 886 F.2d 182 (Third Cir. 1989); cf. Fort Halifax Packing Co v. Coyne, 107 Sup. Ct. 2211 (1987).
35.
35. See, for example, Hansen v. White Motor Corporation, 788 F.2d 1186 (Sixth Cir. 1986).
36.
36. McGann v. H & H Music, 946 F.2d 401 (Fifth Cir.), cert. denied, 113 S. Ct. 482 (1992). For a similar decision on similar facts, see Owens v. Storehouse, Inc., 984 F.2d 394 (Eleventh Cir. 1993).
37.
37. McGann, 946 F.2d at 408.
38.
38. Codified as 42 U.S.C. § 12112(a).
39.
39. 29 C.F.R. § 1630.4(f).
40.
40. Codified as 42 U.S.C. § 12201(c).
41.
41. Carparts Distribution Center v. Automotive Wholesalers Association of New England, 37 F.3d 12 (First Cir. 1994), considered the degree to which a self-funded insurer could be classified as a “covered entity” under the act and thereby be held accountable to its antidiscrimination provisions. The plaintiff in Carparts was the head, owner, and sole employee of a small automotive parts distributor in New Hampshire who contracted HIV. He carried health insurance through a plan offered by the Automotive Wholesalers Association of New England (AWANE). The plan established a lifetime limit on benefits for AIDS-related illnesses of $25,000 (the upper limit for all other illnesses was $1 million), allegedly in response to the plaintiff's case. Clearly, AWANE was not the plaintiff's employer in a classic sense. However, the plaintiff had little recourse to the ADA's protections unless he could establish that relationship. The First Circuit found that because AWANE “functioned” as an employer with respect to health benefits and had authority to determine the level of benefits, it fulfilled the role of employer sufficiently to be characterized as a “covered entity” under Title I of the ADA. This expansive reading of “employer” under the ADA appears to have signaled a judicial intent to hold benefit plans, seemingly at arms length from the employer, accountable under the ADA, whether or not they are selfinsured.
42.
42. H. Miriam Farber, “Do Coverage Limitations and Exclusions in Employer-Provided Health Care Plans Violate the Americans with Disabilities Act?”New York University Law Review, 69:850, 861-863 (Oct.-Nov. 1994).
43.
43. See Troyen A. Brennan, “AIDS and HIV Infection in Office Practice: Legal and Insurance Issues,”Primary Care, 19:217, 220, 221 (1992).
44.
Samuel Issacharoff , “Contractual Liberties in Discriminatory Markets,”Texas Law Review, 70:1219, 1253-1254 (1992).
45.
45. Farber, “Coverage Limitations and Exclusions,” p. 850 (reporting 842 challenges to health insurance coverage limitations and exclusions were filed with the EEOC in the 19 months following the coming into effect of the relevant ADA provisions).
46.
46. The EEOC's IEG set out three questions that must be addressed in determining whether an insurance plan violates the ADA. First, is there a disability-based distinction? If such a distinction is held to exist, then the employer bears the burden of showing that its plan falls within the protection afforded employee benefit plans under § 12201. For this, an employer must show that it has a bona fide plan and that the challenged disability-based distinction is not being used as a subterfuge.
47.
47. EEOC, IEG, p. 7. The regulations actually set out the following as an example of a disability-based distinction: “R Company's new self-insured plan caps benefits for the treatment of all physical conditions except AIDS, at $100,000 per year. The treatment of AIDS is capped at $5,000 per year. CP, an employee with AIDS enrolled in the health insurance plan, files a charge alleging that the lower AIDS cap is a disability-based distinction. Accordingly, if R is unable to demonstrate that its health insurance plan is bona fide and that the AIDS cap is not a subterfuge, a violation of the ADA will be found.”
48.
48. Ibid., p. 11.
49.
49. For rulings regarding the authority of guidelines issued by an administrative agency, see Pacourek v. Inland Steel, 1996 U.S. Dist. Lexis 1767 (1996)(emphasizes that the EEOC rules offer persuasive support that reproduction may be a major life activity, but do not necessarily dictate the result); Arline, 480 U.S. at 279 and Alexander v. Choate, 469 U.S. 287, 304 n.24 (referring to regulations promulgated by the Department of Health and Human Services, hold that regulations promulgated by the implementing agency can provide an “important source of guidance” on interpretation of the statute).
50.
50. See Collimore v. Connecticut Refining Co. and EEOC v. The Gage Co. (cited in Michele Zavros, “Federal ADA Protections for People with HIV,”Trial, 30(12):58, 59 (Dec. 1994)). See also Donaghey v. Mason Tenders District Council Trust, No. 93 Civ. 1154 (S.D.N.Y. filed Dec. 1993).
51.
51. Under well-established principles of administrative law, the reasonable interpretation of a statute (such as the ADA) by an agency vested with the power to interpret that statute (such as the EEOC, in the case of the ADA) is entitled to judicial deference. See, for example, Chevron v. National Resources Defense Council, 467 U.S. 837 (1984). This judicial deference, however, “cannot be allowed to slip into a judicial inertia that results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.”BATF v. FLRA, 464 U.S. 89, 97 (1983) (quoting American Ship Building Co. v. NLRB, 380 U.S. 300, 318 (1965)). For specific consideration of the ADA by the EEOC, see Erickson v. Board of Governors of State Colleges & Univs. for Northeastern Illinois Univ., 911 F. Supp. 316 (N.D. Ill., 1995)(“In interpreting a statute substantial deference is due the interpretation given its provisions by the agency charged with administering the statute.” (quoting Doe v. Kohn Nast and Graf, 862 F. Supp 1310, 1319 (E.D. Pa. 1994) and citing Thomas Jefferson Univ. v. Shalala, 114 S. Ct. 1281, 2386 (1994)).
52.
See also Lizette Palmer, “ERISA Preemption and Its Effect on Capping the Health Benefits of Individuals with AIDS: A Demonstration of Why the U.S. Health and Insurance Systems Need Substantial Reform,”Houston Law Review, 30:1347, 1379 (1993).
53.
See also Stephen M. Koslow and Mark R. White, “Employer-Sponsored Health Benefits Under the ADA,”Mental and Physical Disability Law Reporter, 16(5):560 (Sept.-Oct. 1992).
54.
54. Hiser v. Randolph, 167 P.2d 774 (Ct. App. 1980).
55.
See also George J. Annas, “Legal Risks and Responsibilities of Physicians in the AIDS Epidemic,”Hastings Center Report, 18:26 (1988).
56.
56. Courts have also held that hospitals assume a risk of liability when they decide to render emergency services. See, for example, New Biloxi Hosp., Inc. v. Frazier, 245 Miss. 185, 197 (1962).
57.
57. See T. L. Banks, “The Right to Medical Treatment,” in AIDS and the Law: A Guide for the Public, ed. Scott Burris and H. L. Dalton (New Haven, CT: Yale University Press, 1987), p. 180.
58.
58. See, for example, American Hospital Association v. Schweiker, 721 F.2d 170 (Seventh Cir. 1983).
59.
59. Hospital Survey and Construction Act, Pub. L. 79-725, 60 Stat. 1040 (1946)(codified as amended at 42 U.S.C. § 291 (1982)).
60.
60. Hill-Burton hospitals are required to fill only a certain quota with respect to indigent care, however; after that quota is filled, any mandate to provide care lapses. See generally Troyen A. Brennan, “Ensuring Adequate Health Care for the Sick: The Challenge of the Acquired Immunodeficiency Syndrome as an Occupational Disease,”Duke Law Journal, 1988(1):29, 35-42 (1988).
61.
61. Codified as 42 U.S.C. § 1395 dd. The act formed part of the Consolidated Omnibus Reconciliation Act of 1986.
62.
62. See Owens v. Nacogdoches County Hospital District, 741 F. Supp. 1269 (E.D. Texas, 1990).
63.
Kenneth R. Wing , “The Right to Health Care in the United States,”Annals of Health Law, 2:161 (1993).
64.
64. 42 U.S.C. § 12182(a).
65.
65. Id. at § 12181(7)(f).
66.
66. Id. at § 12182(b)(3).
67.
67. Ibid. The manner in which the test for a direct threat is to be carried out is described in the Department of Justice's interpretive guidelines. See 28 C.F.R. § 36.208(c). The regulations state that “a public accommodation must make an individualized assessment, based on reasonable medical judgment that relies on current medical knowledge or on the best objective evidence to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk.” This test basically represents a codification of the four-prong test for risk enunciated in Arline, 480 U.S. at 277-88.
68.
68. 898 F. Supp. 1157 (E.D. La. 1995).
69.
69. 42 U.S.C. §§ 12182(a) and 12182(b).
70.
70. Morvant, 898 F. Supp. at 1164.
71.
71. 28 C.F.R. § 36.208(c).
72.
72. 1995 U.S. Dist. Lexis 19312.
73.
73. See also D.B. v. Bloom, 896 F. Supp. 166 (1995).
74.
74. Id. at 584.
75.
75. Arline, 480 U.S. at 288.
76.
76. Abbott, 1995 U.S. Dist. Lexis at 590-91.
77.
77. For further discussion of HIV infection control issues in the health care setting, see Troyen A. Brennan, “Transmission of the Human Immunodeficiency Virus in the Health Care Setting—Time for Action,”New England Journal of Medicine, 23 May 1991, p. 1504.
78.
78. Ibid., p. 590.
79.
79. Ibid.
80.
80. See, for example, Doe v. Maryland Medical Systems Corporation, 50 F.3d (Fourth Cir. 1995); Mauro v. Borgess Medical Center, 866 F. Supp. (W.D. Mich. 1995).
81.
81. 874 F. Supp. 779 (N.D. Ohio 1994).
82.
82. Id. at 783. The attending physician on-call, Dr. Hull, who was responsible for the admission decision, told the patient's treating doctor, “If you get an AIDS patient in the hospital, you will never get him out.”
83.
83. 872 F. Supp. 1381 (E.D. Pa. 1995).
84.
84. Id. at 1386.
85.
85. Id. at 1389.
86.
86. Jacobson v. Massachusetts, 197 U.S. 11 (1905). See also Ogden v. Gibbons, 22 U.S. 1 (1824).
87.
87. For a depiction of this kind of review, see, for example, Wendy E. Parmet, “AIDS and Quarantine: The Revival of an Archaic Doctrine,”Hofstra Law Review, 14:53 (1985).
88.
88. Gostin, “Americans with Disabilities Act,” p. 104, notes how this overarching beneficence is distinguishable from the usual kind of discrimination—what he calls “pure discrimination”—where a person is treated unfairly, is excluded, or loses opportunity in the absence of such extraneous circumstances. Since the ADA has been drafted with pure discrimination in mind, there can be something of a misfit when its provisions are applied to the analysis of police powers.
89.
89. Ibid., p. 105. See also, “The Resurgent Tuberculosis Epidemic in the Era of AIDS: Reflections on Public Health, Law and Society,”Maryland Law Review, 54(1):1, 93 (1995).
90.
90. See Crowder and Good v. Yukio Kitagawa, 842 F. Supp. 1257 (U.S. Dist. Ct. of Hawaii 1994). This case involved a class action brought by visually impaired owners of guide dogs. The guide dog owners sought exemption on constitutional and ADA grounds from a law imposing a 120-day quarantine of animals entering the state from rabies-endemic areas. In response to the Title II argument advanced, the court held that the plaintiffs were not “qualified individuals” because they had not been deprived of any “benefits” by the quarantine requirements. The court further held that even if the plaintiffs could establish themselves as qualified individuals, the ADA requires only “reasonable modifications” be made to avoid discrimination, and the state had satisfied this requirement by “permit[ing] guide dog owners to train outside the quarantine station, and to live in apartments on the station itself at no charge.” The court concluded, “It is the province of the legislature, and not this court, to assess the efficacy of public health measures against the risks they are designed to reduce, particularly when the questions are debatable and experts disagree as to the best solution to the problem.”
91.
91. City of Newark v. J.S., 652 A.2d 265 (1993). The defendant in the case was also HIV positive, though the case did not turn on this aspect of his illness.
92.
92. Id. at 271-76.
93.
93. Id. at 275.
94.
94. 42 U.S.C. § 12111(3).
95.
95. Ibid.
96.
96. Gostin, “Americans with Disabilities Act,” p. 90.
