New developments in genetics could affect a variety of real property rights. Mortgage lenders, mortgage insurers, real estate sellers, senior living centers, retirement communities, or other parties in residential real estate transactions begin requiring predictive genetic information as part of the application process. One likely use would be by retirement communities to learn an individual's genetic risk for Alzheimer's disease. The federal Fair Housing Act prohibits discrimination based on disability, but it is not clear that it would apply to genetic risk assessments. Only California law explicitly applies to this situation and there have been no reported cases.
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References
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C.T.Caskey, “Adult Genetic Risk Screening,”Annual Review of Medicine65 (2014): 1-17, at 7.
2.
In 2015, there were approximately 5.1 million Americans age 65 and older with Alzheimer’s disease. Alzheimer’s Association, 2015 Alzheimer’s Disease Facts and Figures (2015): 22.
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Id. at 28.
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A.C.Naj, “Effects of Multiple Genetic Loci on Age at Onset in Late-Onset Alzheimer Disease: A Genome-Wide Association Study,”JAMA Neurology71, no. 11 (2014): 1394–1404.
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A.S.Kelley, “The Burden of Health Care Costs for Patients with Dementia in the Last 5 Years of Life,”Annals of Internal Medicine163, no. 10 (2015): 729–736.
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These are individuals born between 1946 and 1964. As of 2015, there were about 75 million baby boomers, and it is estimated that about 11,000 of them are retiring each day. Pew Research Center, “Baby Boomers Retire,”December29, 2010, available at <http://www.pewre-search.org/daily-number/baby-boom-ers-retire/> (last visited February 26, 2016).
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See A.Gawande, Being Mortal: Medicine and What Matters in the End (New York: Metropolitan Books, 2014): at 103-104 (describing a visit by a senior resisting moving to an assisted living facility when “He looked around and saw not a single person without a walker.”).
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45 C.F.R. § 164.508(b).
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M.A.Rothstein and M.K.Talbott, “Compelled Authorizations for Disclosure of Health Records: Magnitude and Implications,”American Journal of Bioethics7, no. 3 (2007): 38-45; M.A. Rothstein and M.K. Talbott, “Compelled Disclosure of Health Information: Protecting Against the Greatest Potential Threat to Privacy,” Journal of the American Medical Association 295, no. 4 (2006): 2882–2885.
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42 U.S.C. § 3601 et seq.
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Pub. L. 93-383 § 808(b), 88 Stat. 633, 729 (1974).
14.
Pub. L. 100-430, 102 Stat. 619 (1988). The Fair Housing Act is the only major federal statute that still uses “handicap” in its language, but for purposes of this article the term disability is used throughout because it has the same definition.
15.
See E. M.Carlson, “Disability Discrimination in Long-Term Care: Using the Fair Housing Act to Prevent Illegal Screening in Admissions to Nursing Homes and Assisted Living Facilities,”Notre Dame Journal of Law, Ethics & Public Policy21, no. 2 (2007): 363–404.
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See L.Rothstein and J.Irzyk, Disabilities and the Law § 7:13 (Eagan, MN: Thomson Reuters, 4th ed., Oct. 2015).
17.
See Ores v. Willow West Condominium Ass’n, 15 A.D.D. 275 (N.D. Ill. 1996) (denying motion to dismiss claim that home purchase was refused because parents had two children with Fragile X syndrome). See also 42 U.S.C. § 12112(b)(4) (comparable “association” provision of the ADA).
18.
42 U.S.C. § 2603(d)(2); 24 C.F.R. § 100.203.
19.
Rothstein and Irzyk, supra note 16, at §§ 7:8-7:11.
20.
See Du Bois v. Association of Apt. Owners of 2987 Kalakauna, 453 F.3d 1175 (9th Cir. 2006) (permissible to request additional medical information from condominium owner seeking exemption from no-pet rule).
21.
42 U.S.C.A. §3602(h). See K Care, Inc. v. Town of Lac du Flambeau, 510 N.W.2d 697 (Wis. Ct. App. 1993) (elderly individuals who were frail and required assistance in daily living considered covered under FHA).
Disability discrimination in residential insurance also has been held to violate the FHA. See J.F.Stanton, “The Fair Housing Act and Insurance: An Update and the Question of Disability Discrimination,”Hofstra Law Review31, no. 1 (2002): 141-206, 153–155.
30.
Disparate impact theory holds that facially neutral practices can adversely affect individuals based on proscribed criteria, such as race, color, religion, sex, national origin, age, or disability.
31.
135 S. Ct. 2507 (2015).
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29 U.S.C. § 794.
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42 U.S.C. § 1437(f).
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42 U.S.C. §§ 12101–12213.
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EEOC, Enforcement Guidance on Pre-employment Inquiries under the Americans with Disabilities Act (1994). See M.A.Rothstein, J.Roberts, and T.L.Guidotti, “Limiting Occupational Medical Evaluations under the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act,”American Journal of Law & Medicine41, no. 4 (2015).
36.
See Brooker v. Altoona Housing Auth., 2013 WL 2896814 (W.D. Pa. 2013) (determination of direct threat must be individualized); Groteboer v. Eyota Econ. Dev. Auth., 724 F. Supp. 2d 1018 (D. Minn. 2010) (lease termination in assisted living center justified by tenant’s dangerous operation of electric wheelchair).
37.
See Herriot v. Channing House, 2008 WL 3929214 (N.D. Cal. 2008) (continuing care retirement community did not discriminate against individual who needed 24-hour care, but who wanted to remain in independent living).
38.
Carlson, supra note 15, at 371.
39.
42 U.S.C. § 1395i-3.
40.
42 U.S.C. § 2000ff. See 75 Fed. Reg. 68,912 to 68,939, 29 C.F.R. §1635.
41.
Regulations promulgated pursuant to GINA became effective January 10, 2011.
42.
42 U.S.C. § 2000ff(4)(A)(i)-(iii).
43.
42 U.S.C. § 2000ff-1(b).
44.
See J.L.Roberts, “Preempting Discrimination: Lessons from the Genetic Information Nondiscrimination Act,”Vanderbilt Law Review63, no. 2 (2010): 439–490.
45.
Discrimination in long-term care insurance raises many of the same issues as discrimination by long-term care facilities, although the regulatory framework is likely to differ. See M.A.Rothstein, “Predictive Genetic Testing for Alzheimer’s Disease in Long-Term Care Insurance,”Georgia Law Review35, no. 2 (2001): 707-733; C.D. Zick et al., “Genetic Testing for Alzheimer’s Disease and Its Impact on Insurance Purchasing Behavior,” Health Affairs 24, no. 2 (2005): 483–490.
National Human Genome Research Institute, Table of State Statutes Related to Genomics, available at <http://www.genome.gov/27552194> (last visited February 26, 2016). See also A.E.R. Prince, “Comprehensive Protection of Genetic Information: One Size Privacy or Property Models May Not Fit All,” Brooklyn Law Review 79, no. 1 (2013): 175–227.
48.
California Genetic Information Non-discrimination Act (CalGINA), S.B. 559 (2011).
49.
Cal. Gov’t Code § 12920 et seq.
50.
Cal. Gov’t Code § 12955.
51.
We will leave to another day the specifics of such legislation and whether it ought to be drafted to apply to “genetic information” as is used in GINA or whether it should more generally prohibit the use of any predictive health information.
52.
National Human Genome Research Institute, supra note 47.
