Traditionally, health insurers have enjoyed the freedom to determine their own terms of coverage, to decide to what extent, if any, patients should be reimbursed for different kinds of treatment, and to establish premium prices. Health insurers typically deny coverage for speech therapy, eye glasses, hearing aids, most foot care, and treatment for infertility. Many insurance providers also exclude or severely limit coverage for mental health, dental care, AIDS, diabetes mellitus, morbid obesity, epilepsy, and alcoholism or drug abuse. Therefore, while some Americans enjoy full coverage for all their health needs, others who have insurance and suffer from serious or even life-threatening conditions, such as AIDS, must incur the expense of costly therapy or forego treatment if it is unaffordable.
At the same time, a significant number of federal laws exist that prohibit various forms of discrimination with respect to health insurance coverage. These include: the Americans with Disabilities Act (ADA), addressing disability discrimination; Title VII of the Civil Rights Act of 1964 (Title VII), addressing gender, race, national origin and religious discrimination relating to employment-provided health benefits; The Equal Pay Act (EPA), addressing differences in employment-provided benefits based on gender; The Age Discrimination in Employment Act (ADEA), focusing on employment discrimination based on age; and the Health Insurance Portability and Accountability Act (HIPAA), which prohibits certain discriminatory conduct by health insurers.
The article argues that in the arena of health insurance, the statutory scheme that purports to protect individuals against disability, gender, and age discrimination is characterized by significant gaps and loopholes. Consequently, while the statutes prohibit some discriminatory insurance practices, their reach is confined, and their effectiveness is limited.
The article provides a detailed analysis of the language of the ADA, Title VII, and other statutes, as they apply to health insurance. It also critiques the courts' interpretation of the statutory language in the areas of disability and gender discrimination. The article concludes with a discussion of various means by which the statutory gap could be remedied and protection for health insurance beneficiaries could be enhanced.
Place of Original Publication
Cardozo Law Review
23 Cardozo Law Review 1315 (2002)
Hoffman, Sharona, "AIDS Caps, Contraceptive Coverage, and the Law: An Analysis of the Federal Anti-Discrimination Statutes’ Applicability to Health Insurance" (2002). Faculty Publications. 208.