Leroy is HIV positive. He is taking medication and so far he shows no symptoms of AIDS. Leroy’s doctor does not want to provide medical treatment to him because he is afraid that Leroy will infect him, his staff, or his other patients. The doctor wants to refer Leroy to another doctor who specializes in HIV and AIDS. Leroy does not want to change doctors. Leroy claims that he is disabled due to his HIV status and that his doctor is discriminating against him in violation of the Americans with Disabilities Act. That is not Leroy’s only problem. His employer switched to a different type of health plan, and his insurance coverage is being reduced from a $1,000,000 cap to a $5,000 cap on medical care costs. Without insurance, Leroy will lose his house and be forced to go on welfare, at which time Medicaid will cover his medical treatment.
The ADA is a federal law enacted in 1990. It applies to all state and local government employers and private sector employers with at least fifteen employees. It also applies to unions with at least fifteen members and employment agencies. Its purpose is to protect you from discrimination if you have a disability. This includes discrimination in your employment, housing, public accommodations (such as hospitals or medical clinics), education, transportation, and communication. The ADA is somewhat controversial because it was meant to be flexible. That flexibility means that you and someone else, such as your employer, may understand the ADA as meaning two completely different things. The result is that a court in your state may find that you are not disabled under the ADA, whereas a court in another state could find that someone else with the same condition as you is disabled. These differences are still being ironed out.
A number of ADA cases reach the U.S. Supreme Court each year. The Supreme Court attempts to resolve many of these issues to make the ADA more uniform among the states. Sometimes the Supreme Court opinions clear up an issue that divides the states. Other times the opinions leave even more room for interpretation.
The ADA defines a disability as a physical or mental impairment that substantially limits a major life activity. Keep in mind that impairment is not enough. It must limit a major life activity to a significant degree.
LEARNING THE LINGO
Disability: A physical or mental impairment that substantially limits a major life activity.
Major life activity: An important part of a person’s life, such as working, learning, caring for oneself, walking, hearing, speaking, breathing, performing manual tasks, and having children.
Probably not. This is where the flexibility of the ADA comes into the picture. If your vision is bad but you can drive and carry on your life by wearing eyeglasses or contact lenses, you are not disabled under the ADA. If you have high blood pressure that cannot be treated with medication or lifestyle changes, you have a disability. If you have high blood pressure that is regulated with medication, you do not have a disability because your medical condition does not substantially limit any of your major life activities.
The Equal Employment Opportunity Commission (EEOC) investigates complaints and files lawsuits under the ADA. Individuals may also file lawsuits in either state or federal court alleging violations of the ADA after exhausting the administrative procedures set up by the EEOC. The EEOC has regional offices in major cities throughout the country. It offers brochures that explain how to register a complaint. To receive these brochures, call 1-202-663-4900.
The complaint process goes something like this: You must file a charge with the EEOC in writing, describing the conduct that you believe violates the ADA. You must follow this step. If you do not, the court will dismiss your lawsuit. After you file your charge, the EEOC investigates your claim. If your state has a law that covers the matter, you must first file a charge with the state agency responsible for enforcing the state law before you can file with the EEOC. The state agency must have at least 60 days to investigate the complaint. After 60 days you can file the charge with the EEOC. The deadline for filing the charge with the EEOC is 300 days from the date the discrimination occurred, or within 30 days after the state agency finished its proceedings, whichever occurs first. If your state does not have a law that covers the matter, you must file the charge with the EEOC within 180 days from the date of the discriminatory act.
After your charge is filed with the EEOC, the agency investigates the complaint to determine whether there is reasonable cause to believe the law was violated. If the EEOC decides there is reasonable cause, it enters into conciliation with your employer and tries to settle the case. If settlement is unsuccessful, the EEOC will send you a letter informing you that you have 90 days to file a lawsuit in court. This is called a right-to-sue letter.
Although the EEOC has the authority to file lawsuits in court, it does so only in a small percentage of cases. Most of the time you must pursue a lawsuit on your own. If, after the investigation, the EEOC decides there is no reasonable cause to believe the law was violated, it will still send you a right-to-sue letter. The law gives you the right to have a court determine the merits of the complaint, even when the EEOC decides there is no merit. The statute of limitations for filing the lawsuit is 90 days from the date of receiving the right-to-sue letter. Statutes of limitations are time deadlines set by law for filing lawsuits. If a suit is filed after the time limit set by the statute, the court will almost always dismiss it.
No. Federal employees use a different procedure. All federal government agencies have Equal Employment Opportunity (EEO) counselors whose job it is to try to resolve discrimination complaints. Thus, you must first file any charge with the EEO counselor within 45 days of the date of the discriminatory act. The counselor investigates the matter and attempts to resolve the complaint. If you are not satisfied with the counselor’s proposed settlement, you must, within 15 days, either request a hearing on the complaint or request a decision by the head of the agency without a hearing.
If you request a hearing, it is conducted by an independent administrative law judge who issues a decision. The judge’s decision is sent to the director of the agency in question, who may reject, accept, or modify it. After the agency head issues a decision, you have three options. You can (1) accept the decision of the agency head, (2) file an appeal with the EEOC within 30 days, or (3) file a lawsuit in court within 90 days. If you decide to appeal to the EEOC, the EEOC has 180 days to review the file and make a final decision. If you are not satisfied with the EEOC’s final decision, you can file a lawsuit in court within 90 days of receiving the EEOC decision. For more on the types of remedies available to you, see Chapter 17 on tort liability.
A significant number of lawsuits are being brought under the ADA to challenge the institutionalization of the mentally disabled. The primary issue is the extent to which the ADA requires that the mentally disabled be integrated into the community. An example of this is the case of a woman in Pennsylvania. She was put in a nursing home even though she could have lived in her home with assistance through a home health care program, which would have cost less than the nursing home. The home health care program, funded by the state, did not have any more funds available for her. The nursing home fund, however, did have funds available, and the woman was placed in the nursing home, regardless of the greater cost to taxpayers. The woman sued, and the court held that the ADA required that she be treated in the setting most integrated into the community, which was her home.
Recently a similar case reached the Supreme Court. Two mentally retarded women with psychiatric disorders were on waiting lists to be placed into group homes within the community. In the meantime the women were in psychiatric institutions. The state of Georgia told the Court that there were not enough funds to provide the women with community placements at that time. The Court held that when mentally disabled people are kept in institutions, although they could live in some other form of housing within the community, illegal discrimination based on their disability exists. If it would not place an undue hardship on the state to provide a community placement for the mentally disabled person, the state must do so.
This does not mean that all mentally disabled people must be placed within the community. It only requires that when mentally disabled people could receive treatment in a less restrictive setting, without being a danger to themselves or to others, then the state should place those people in the less restrictive setting. The key factor is the individual’s medical condition. A person who requires treatment that is best given in an institution will still be placed in an institution. The Court recognized that it would never be appropriate for some mentally disabled patients to be treated outside an institution.
A disability benefit plan provides you with benefits that replace your income if you are unable to work because of an illness or accident. It is a form of insurance that may be sponsored by your employer or that you may purchase on your own. The purpose is to provide you with income if you suffer from a disability. The amount of disability income to which you are entitled depends on your income level rather than on the type of disability you suffer.
Medical insurance pays for your medical services. Disability benefits are paid directly to you so that you can pay your bills, such as groceries, the mortgage, or a car payment.
The majority of disability plans only provide benefits when you become totally disabled and unable to work. The plan can be either short-term or long-term. A short-term plan provides benefits—usually a portion of your regular wages—for a specified time period while you are disabled. Long-term plans begin after short-term disability income ends. The purpose of a long-term plan is to replace part of your income when it is unlikely that you will ever return to work due to the permanency of your disability.
No. If a disability benefit plan does cover mental disability, the odds are that this coverage is less than it would be for a physical disability. Typically an employer-sponsored disability plan will limit your eligibility to long-term benefits for mental disability to two years or less. If you were to suffer a physical disability, you are more than likely eligible for long-term benefits until you are 65 years old.
The goal of health plans and legislators is to keep your insurance premiums affordable while providing you with quality care. Mental disability is considered more difficult to diagnose and treat than physical disability. Whether this is true is open for debate. By not granting as much coverage for mental disability, health plans deter people from making false claims of disability and keep your premiums lower than they would be otherwise.
People are taking health plans into court to challenge this distinction between physical disabilities and mental disabilities. Their argument is that this distinction discriminates against them based on their disability. The courts’ reactions to these lawsuits differ from jurisdiction to jurisdiction. The ADA states that employers shall not discriminate against a qualified individual with a disability with respect to “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
In one case the court found that differentiating between people with mental and physical disabilities did not violate the ADA. The court reasoned that the ADA only made it illegal to make distinctions between the disabled and the nondisabled. It did not make it illegal to make distinctions between the mentally disabled and the physically disabled. A court in another jurisdiction agreed with this reasoning and found that the ADA only required that all employees have equal access to the health plan. The ADA did not require that the health plan offer identical benefits for all disabling conditions. The majority of courts follow this line of reasoning.
There are some courts, though, that are ruling in favor of the mentally disabled plaintiffs. A Virginia court, for example, ruled that the ADA makes it illegal to discriminate between people based on their particular disabilities. Those in favor of this type of reasoning argue that discriminating between physical disabilities and mental disabilities encourages ongoing prejudice against Americans who suffer from mental illness.
The Rehabilitation Act is similar to the ADA in that it prohibits employment discrimination against qualified individuals with disabilities. The difference is that the Rehabilitation Act applies to executive branch agencies of the federal government, the United States Postal Service, federal government contractors and subcontractors whose contracts are in excess of $2,500, and programs that receive federal funds.
This depends on the employer. If the employer is the federal government or the U.S. Postal Service, then the EEOC has the authority to investigate complaints and file lawsuits. If the employer is a federal contractor or subcontractor, the responsibility lies with the Office of Federal Contract Compliance (OFCCP) of the Department of Labor. If the employer is a program that receives federal funding, private individuals can directly file a lawsuit in court because there is no government agency responsible for enforcement under these circumstances.
The EEOC process is exactly the same as the one for the ADA. That process and the remedies available to you are discussed in detail earlier in this chapter.
An individual must file a written complaint with the OFCCP within 180 days of the date of the unlawful discrimination. The OFCCP investigates and determines what type of action to take. If the OFCCP decides that the law was violated, it enters into conciliation with the employer and tries to settle the case. If settlement is unsuccessful, a hearing is held before an administrative law judge. The decision of the judge is appealable to the Department of Labor. The final decision of the Department of Labor can be appealed to the federal district court.
If a violation is found, the government may terminate the contract, debar the contractor from further government business, or order the contractor to “make whole” the employee who was discriminated against. Individuals cannot file their own lawsuits alleging violations of the Rehabilitation Act. Only the OFCCP has the authority to enforce the law.
There is no government agency that enforces the Rehabilitation Act against recipients of federal funds. Individuals may file a lawsuit directly in federal court. There is no uniform statute of limitations for filing a lawsuit. The deadline is based on the most closely analogous state statute of limitations, which can vary from one year in some states to as much as six years in others. Successful plaintiffs are entitled to injunctive relief, make-whole remedies, compensatory and punitive damages, and reasonable attorney’s fees. For more on these remedies, see Chapter 17 on tort liability.
Yes. Recently the Supreme Court declared that HIV infection is a disability because it is a physical impairment that substantially limits the major life activity of having children. This includes an HIV infection that so far shows no outward symptoms of infection or AIDS. This stage of the disease is known as the asymptomatic stage.
LEARNING THE LINGO
Asymptomatic: Showing no outward symptoms of a disease.
This Supreme Court decision was very controversial, even among the Court’s justices. It would not be surprising if lawmakers amended the ADA to narrow this ruling. Rather than declaring asymptomatic HIV infection as always being a disability, an amended law would probably require the person to prove that the asymptomatic infection affected his or her ability to have children.
A physical or mental impairment includes body systems that suffer some sort of disorder or medical condition. The virus that causes AIDS travels from the circulatory system to the lymph nodes during the asymptomatic stage. This phase averages between 7 and 11 years. Even though there are no outward signs that a person is infected, the body’s systems are constantly affected from the time she or he is infected.
The infection substantially limits a person’s life because it affects decisions regarding sexual relations and children. Those activities are not impossible, but they are substantially limited.
Until recently, courts would look at a person’s individual facts and medical condition to decide whether that person—and only that person—suffered a disability under the ADA. In the Supreme Court case, the Court’s definition of disability, required to determine if the woman who brought the lawsuit was discriminated against, may have been broad enough to encompass all asymptomatic HIV-infected women of childbearing years. This decision surprised many people in the legal and political fields. The debate continues to rage on how far-reaching the Court intended its decision to be. Look for Congress to consider amending the ADA to clarify how it affects asymptomatic HIV-infected people.
Traditionally, a doctor does not have a duty to treat you unless you have established a doctor-patient relationship, in which case the doctor would have agreed to treat you. If the doctor did not agree, there was no relationship, and the doctor does not have to treat you now.
If you do have a doctor-patient relationship, the doctor is obligated to continue providing you with medical care if you become HIV positive. This medical care, in some instances, may be nothing more than referring you to a doctor that specializes in treating HIV-positive or AIDS patients. After all, AIDS is a complicated disease that many doctors do not have the resources or education to treat. On the other hand, if the referral could be shown to be a pretext enabling the doctor to avoid giving care to the HIV-positive patient, then discrimination under the ADA might be established.
Part of the ADA makes it illegal for public facilities to discriminate against a person because of a disability. To prove discrimination, you would need to show that your illness is a disability and that a public facility (such as a hospital, a medical clinic, or a doctor’s office) discriminated against you because of your HIV or AIDS status.
If you are denied access to medical care by a hospital or a health care provider based solely on the fact that you are HIV-infected or suffer from AIDS, then that is discrimination. The exception to this rule is when you pose a direct threat to the health or safety of others.
LEARNING THE LINGO
Direct threat: A significant risk to the health and safety of others that cannot be eliminated through policies, practices, or procedures. The question is not whether a risk exists, but whether the risk is significant.
Probably not. Most of us are “employees at will,” which means that we work without a contract. Therefore, most of us don’t have a personal employment contract and are not covered by a collective bargaining agreement. Without a contract, you do not have a legally enforceable right to health care benefits through your employer. Once you start paying premiums, you may have some legal recourse if your employer takes your health insurance away to retaliate or to discriminate against you.
There are two main types of health insurance. In a group health plan, the employer joins the plan, and the cost of medical care is spread over a large number of people from many companies. The premiums paid by that large group of people are enough to offset the cost of paying for treatment for the members who get sick. In a self-insured plan, the only members of the plan are those who work for one employer. The employer saves money on administrative costs but also carries the risk that the premiums paid by the employees will not be enough to cover the costs of medical treatment for the members.
The majority of employers now use group health plans, but they can switch to a self-insured plan. This creates some problems. There are not as many people paying premiums, so employers would like to limit the amount of money that will be paid out for treatment. To do this they may be able to put “caps” on certain types of medical care. For example, the benefits might be changed at the end of a benefits year, if the employer had reserved the right to change them and if the change did not single out a particular individual. Caps may be necessary to provide adequate medical coverage at a reasonable cost, which in turn helps the companies stay in business.
Sometimes companies put caps on medical care that radically affect certain employees. Let’s say that a company insurance policy pays for medical care until the costs reach $1,000,000. After that, employees are on their own. But HIV-positive individuals could be very seriously affected if the insurance policy is changed so that there is a $5,000 cap on medical treatment for a disease. After the insurance pays $5,000, employees must pay the rest out of their own pocket. In the best-case scenario, HIV-positive employees may have 15 to 20 years left to live. They could lose everything they have and end up on Medicaid. This happened to dozens of people in the first decade of the AIDS epidemic.
Under most state laws, yes. Several states have laws that require insurance policies to include coverage for AIDS. People with HIV or AIDS could do nothing about it, though, for many years. A federal law, the Employee Retirement Income Security Act of 1974 (ERISA), overrode the state laws. ERISA governs self-insured plans. ERISA does not state that employers can discriminate against people with AIDS. It does, however, allow employers to cap parts of their insurance plans. Unfortunately, ERISA was used as a weapon against people with HIV.
The ADA is a federal law and so not overridden by ERISA. Thanks to the ADA, now employers who cap certain benefits under ERISA must make sure that they have done so in a nondiscriminatory way.
The ADA does not make it illegal to put caps on insurance. It makes it illegal to apply caps in a discriminatory manner.
Yes. But it’s unclear whether they can single out one certain disease. There has been a tremendous volume of litigation on this and related issues in the past few years. Among the many issues: Is a disease a disability? Is a cap on benefits permissible if it affects nondisabled and disabled persons the same way?
A cap may apply to all catastrophic illnesses, but it is as yet unclear whether it can apply to only AIDS or heart transplants or dialysis. However, if statistical data shows that a particular disease requires medical care that is so costly that covering it could wipe out the insurance plan or drive the company into insolvency, the company may place a cap on that one disease. If the employer cannot prove that the cap is based on statistical data, the employer runs the risk of being fined.
No. Your insurance company may still deny coverage for any medical conditions you had before signing the insurance policy. The key to remember here is that the denial applies not only to people with HIV but to all persons with a preexisting condition.
Another federal law, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) protects health insurance coverage for workers and their families when they change or lose their jobs. HIPAA often does affect preexisting conditions clauses in health insurance policies offered by employers.
The Disability Rights Education and Defense Fund, Inc.
2212 Sixth St.
Berkeley, CA 94710
Mental Health Law Project
1101 15th St. NW
Suite 1212
Washington, DC 20005
Disability Rights Center
2500 Q Street NW
Suite 121
Washington, DC 20007
CAPS CAN’T DISCRIMINATE