Your insurance does not cover that: Disability-based discrimination where it hurts the most

George Washington Law Review

Volumn 78, Issue 3, 2010, Pages 636-651

  Frey, Timothy ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77953049430     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (229)

1. Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 960 (8th Cir. 1995).
2. Id. at 959-960
3. Id. at 960.
4. Carparts Distribution Ctr., Inc. v. Auto. Wholesaler's Ass'n of New Eng., 37 F.3d 12, 14 (1st Cir. 1994).
5. Id.
6. Id.
7. Id.
8. Id.
9. Samuel R. Bagenstos, The Future of Disability Law, 114 YALE L.J. 1, 27 (2004).
10. Id. at 28.
11. Id. at 28 n. 107.
12. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010).
13. For example, section 1001 of the Act immediately prohibits lifetime limits on benefits and establishes a coverage option for individuals denied insurance due to a preexisting condition.
14. See id. §1001, 124 Stat, at 130-31. Further, section 1201 of the Act establishes that, beginning in 2014, insurers will be prohibited from, inter alia, imposing preexisting condition exclusions, setting eligibility rules based on medical condition, or varying premiums based on factors other than family size, rating area, age, and tobacco use.
15. See id. § 1201, 124 Stat, at 154-55. However, these and other protections afforded to persons with disabilities will not apply to any insurance plan in which an individual, family, or employer was enrolled - or to any subsequently enrolled members of such plan - at the time this Act was passed.
16. See id. § 1251, 124 Stat, at 161.
17. Americans with Disabihties Act of 1990, 42 U.S.C. § 5 12101-12213 (2006).
18. Id. § 12101 (b)(1) - (2).
19. Throughout this Note, the term "arbitrary discrimination" will refer to the insurance industry's practice of offering different policies to people with certain disabilities without any statistical evidence to prove that such discrepancies legitimately reflect variations in the amount or cost of treatment needed for an individual's disability.
20. Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, §§ 511-512, 122 Stat. 3765, 3881-3893 (to be codified at I.R.C. § 9812, 29 U.S.C. § 1185a, and 42 U.S.C. § 300gg-5).
21. -42 U.S.C. § 12101(b).
22. Id. § 12101(b)(1)-(2).
23. Ann Devroy, In Emotion-Filled Ceremony, Bush Signs Rights Law for America's Disabled, WASH. POST, July 27,1990, at A18;
24. accord John W. Mashek, To Cheers, Bush Signs Rights Law for Disabled, BOSTON GLOBE, July 27, 1990, at 4 ("We're taking a sledgehammer to another wall. . . which has, for too many generations, separated Americans with disabilities from the freedom they could glimpse but not grasp.").
25. ADA Amendments Act of 2008, Pub. L. No. 110-325, sec. 4, § 3(1)(A), 122 Stat. 3553, 3555.
26. Id. § 3(3)(A).
27. See id. § 3(5)(C)-(D)(i).
28. See 42 U.S.C. § 12181(7)(F) (including among public accommodations "a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment" (emphasis added)).
29. Id. § 12182(a).
30. Id. § 12182(b)(1)(A)(ii).
31. Id. § 12182(b)(1)(A)(iii).
32. Id. § 12201(c).
33. Id. § 12201(c)(1).
34. See ROBERT H. JERRY, II & DOUGLAS R. RICHMOND, UNDERSTANDING INSURANCE LAW 12 (4th ed. 2007).
35. See 42 U.S.C. § 12201(c) ("Paragraphs (1), (2), and (3) shall not be used as a subterfuge to evade the purposes of subchapter [sic] I and III of this chapter.").
36. Id. §§ 12181-12182
37. See id § 12201(c).
38. U.S. CENSUS BUREAU, U.S. DEP'T OF COMMERCE, INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2008, at 23 (2009), available at https://www. census.gov/prod/2009pubs/p60-236.pdf (noting that in 2008 about 1 million fewer Americans were covered by private insurance than in 2007).
39. Id.
40. See Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1251, 124 Stat. 119, 161 (2010) ("Nothing in this Act (or an amendment made by this Act) shall be construed to require that an individual terminate coverage under a group health plan or health insurance coverage in which such individual was enrolled on the date of enactment of this Act").
41. See JERRY & RICHMOND, supra note 30, at 11-13.
42. See H.R. REP. NO. 101-485, pt. 3, at 70 (1990), reprinted in 1990 U.S.C.CA.N. 445, 493 ("The Committee added this [safe harbor] provision because it does not intend for the ADA to affect legitimate classification of risks in insurance plans in accordance with the state laws and regulations under which such plans are regulated.").
43. See Bagenstos, supra note 9, at 27-28.
44. See id at 28, 31-32.
45. See, e.g., Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 558 (7th Cir. 1999) (noting that insurer had no actuarial data to justify lifetime caps on treatments for AIDS).
46. See Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, sec. 512, §§ 712(a)(3)(A), (c)(1)(B)(2)(A)-(B), 122 Stat. 3765, 3881-3883 This Act will be discussed in detail in Part III of this Note.
47. See supra note 12.
48. See Parker v. Metro. Life Ins. Co., 121 F.3d 1006,1014 (6th Cir. 1997) (en banc).
49. See Doe, 179 F.3d at 564;
50. see also Carparts Distribution Ctr., Inc. v. Auto. Wholesaler's Ass'n of New Eng., 37 F.3d 12,20 (1st Cir. 1994) (noting that the substance of insurance policies appeared to be exempted from the ADA's reach).
51. See Rachel Schneller Ziegler, Safe, but Not Sound- Limiting Safe Harbor Immunity for Health and Disability Insurers and Self-Insured Employers Under the Americans with Disabilities Act, 101 MICH. L. REV. 840,844 (2002) ("[C]ourts have broadly interpreted Section 501(c) of the ADA - the safe harbor provision - such that health and disability insurers ... are nearly fully exempt from Titles I and III of the ADA." (footnotes omitted));
52. id. at 856-861 (examining cases that have interpreted the safe harbor provision too broadly).
53. See Parker v. Metro. Life Ins. Co., 99 F.3d 181,187 (6th Cir. 1996),
54. vacated and reh'g granted, 107 F.3d 359 (6th Cir. 1997).
55. To see the confusion on this issue within the legal world, one need look no further than the widely divergent advice given by various secondary authorities. Compare. 1 AMERICANS WITH DISABILITIES: PRACTICE AND COMPLIANCE MANUAL § 4:55 (2004) ("Many courts have rejected the view of the United States Department of Justice . . . that the nondiscrimination mandate of Title III of the [ADA] applies to insurance contracts. . . ." (footnotes omitted)),
56. with ANNE MARIE ESTEVEZ & ATHALIA E. LUJO, PUBLIC ACCOMMODATIONS UNDER THE AMERICANS WITH DISABILITIES ACT: COMPLIANCE AND LITIGATION MANUAL § 4:16 (2008-09 ed. 2008) ("Insurance providers may not discriminate on the basis of disability in the sale of insurance contracts or in the conditions and terms of the insurance contracts they offer.").
57. Carparts Distribution Ctr., Inc. v. Auto. Wholesaler's Ass'n of New Eng., 37 F.3d 12 (1st Cir. 1994). Although the case was filed ten days before the ADA became effective, the plaintiff quickly amended his action to include the federal claim once it became available.
58. Id at 15.
59. Id. at 14. The facts of this case are discussed in the Introduction.
60. See supra text accompanying notes 4-8.
61. Carparts, 37 F.3d at 14-15.
62. Carparts Distribution Ctr., Inc. v. Auto. Wholesaler's Ass'n of New Eng., 826 F. Supp. 583, 586 (D.N.H. 1993),
63. vacated and remanded, 37 F.3d 12 (1st Cir. 1994).
64. Carparts, 37 F.3d at 21.
65. Id. at 19.
66. Id.
67. Id.
68. Id.
69. See id.
70. Id. (quoting H.R. REP. NO. 101-485, at 99 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 382) (internal quotation marks omitted).
71. See id (citing S. REP. NO. 101-116, at 58 (1989)).
72. Id. at 20.
73. Id. at 19.
74. Id. at 20.
75. See id at 19-20.
76. Henderson v. Bodine Aluminum, Inc., 70 F.3d 958 (8th Cir. 1995).
77. Id. at 959. The facts of this case are also discussed in the Introduction.
78. See supra text accompanying notes 1-3.
79. Henderson, 70 F.3d at 959-960
80. Id.
81. Id at 960.
82. EQUAL EMPLOYMENT OPPORTUNITY COMM'N, INTERIM POLICY GUIDANCE ON ADA AND HEALTH INSURANCE (1993), reprinted in BUREAU OF NAT'L AFFAIRS, INC., AMERICANS WITH DISABILITIES ACT MANUAL 70:1051 (2002) [hereinafter ADA MANUAL].
83. Henderson, 70 F.3d at 960. A "disabihty-based distinction" is one that "singles out a particular disability (e.g., deafness, AIDS, schizophrenia), a discrete group of disabilities (e.g., cancers, muscular dystrophies, kidney diseases), or disability in general (e.g., noncoverage of all conditions that substantially limit a major life activity)."
84. ADA MANUAL, supra note 70, at 70: 1053.
85. ADA MANUAL, supra note 70, at 70:1053;
86. see also 42 U.S.C. § 12201(c) (2006).
87. ADA MANUAL, supra note 70, at 70:1054.
88. See id at 70:1053-1054
89. Id. at 70:1054 (footnote omitted).
90. Id.
91. See Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 960 (8th Cir. 1995) ("[I]f the evidence shows that... the plan provides the treatment for other conditions directly comparable to the one at issue, the denial of that treatment arguably violates the ADA." (emphasis added)).
92. Id.
93. See id at 961 ("We do not believe it is unfair to expect Bodine and its sophisticated health insurance providers to promptly provide some general evidence that HDCT is not an accepted therapy for breast cancers like Henderson's.").
94. Parker v. Metro. Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997) (en banc).
95. Id. at 1008.
96. Id.
97. Id.
98. Parker v. Metro. Life Ins. Co., 99 F.3d 181, 184 (6th Cir. 1996), vacated and reh'g granted, 107 F.3d 359 (6th Cir. 1997) (internal quotation marks omitted).
99. Id.
100. Id.
101. Id at 183.
102. Id at 188.
103. Id (quoting 42 U.S.C. § 12101(b)(1) (2006)).
104. Id.
105. Id. at 190-191
106. Id.
107. See id
108. For example, one House report states: Under the ADA, a person with a disability cannot be ... subject to different terms or conditions of insurance based on disability alone, if the disability does not impose increased risk. Moreover, while a plan which limits certain kinds of coverage based on classification of risk would be allowed under this section, the plan may not refuse to insure ... or limit the amount, extent, or kind of coverage available to an individual, or charge a different rate for the same coverage solely because of a physical or mental impairment, except where the refusal, limitation, or rate differential is based on sound actuarial principles or is related to actual or reasonably anticipated experience. H.R. REP. NO. 101-485, pt 2, at 136-37 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 419-20. Another provision states that, "[t]he [safe harbor] provisions recognize that benefit plans . . . need to be able to continue business practices in the way they underwrite, classify, and administer risks, so long as they carry out those functions in accordance with accepted principles of insurance risk classification."
109. Id. at 138,1990 U.S.C.C.A.N. at 421. The relevant Senate committee stated its understanding of the safe harbor provisions in language almost identical to that used by the House.
110. See S. REP. NO. 101-116, at 84 (1989) ("Under the ADA, a person with a disability cannot be denied insurance or be subject to different terms or conditions of insurance based on disability alone, if the disability does not pose increased risks.").
111. Parker, 99 F.3d at 191 (internal quotation marks omitted).
112. Id. at 192-93 (emphasis added) (internal quotation marks and citation omitted). The panel also looked to the Technical Assistance Manual authored by the Justice Department to support its conclusion that the ADA only protected insurance agencies from discriminating in the content of their policies when such discrimination was based on sound actuarial principles or was related to actual or reasonably anticipated experience.
113. Id. at 193.
114. Id.
115. Parker v. Metro. Life Ins. Co., 121 F.3d 1006,1008-1009 (6th Cir. 1997) (en banc).
116. Id. at 1010.
117. Id. at 1014 (applying the canon of construction, noscitur a sociis, in which the meaning of a word is limited by the context of surrounding terms to avoid inappropriately expanding the reach of statutes).
118. Id. The court also said that terms such as "travel service," "office of an accountant or lawyer," and "insurance office" were not to the contrary.
119. Id ("[I]t is likely that Congress simply had no better term than 'service' to describe an office where travel agents provide travel services .... Office of an accountant or lawyer[ and] insurance office,... in the context of the other terms listed, suggest a physical place where services may be obtained and nothing more.").
120. Id. at 1013-14 & n.10. The Third Circuit closely followed this precedent in Ford v. Schering-Plough Corp., 145 FJd 601 (3d Cir. 1998), deciding, inter alia, that insurance policies offered through employers were not places of public accommodation because they were not physical places.
121. Id. at 612-13. Then-Judge Samuel Alito concurred in the judgment, but only upon the grounds that the safe harbor provision in Title IV places the burden of proof on the plaintiff to show that the insurance plan's discrimination was intended as a "subterfuge" and that Ms. Ford failed to meet that burden.
122. I d. at 614-15 (Alito, J., concurring). Judge Alito also noted that, because the case could be decided on this ground, he would not decide the issue of whether Title III required more than mere physical access.
123. Id. at 615 (stating that the issue "ha[s] divided the circuits, and I would reserve judgment until... confronted with a case in which the unique considerations of insurance plans are not at stake").
124. Parker, 121 F.3d at 1012.
125. Id. at 1013.
126. See Carparts Distribution Ctr., Inc. v. Auto. Wholesaler's Ass'n of New Eng., 37 F.3d 12, 19 (1st Cir. 1994).
127. See Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 960 (8th Cir. 1995).
128. Doe v. Mut of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999).
129. Id. at 558.
130. Id.
131. Doe v. Mut. of Omaha Ins. Co., 999 F. Supp. 1188, 1193 (N.D. Ill. 1998), rev'd, 179 F.3d 557 (7th Cir. 1999).
132. Id. at 1195 (internal quotation marks omitted),
133. Doe, 179 F.3d at 565.
134. See id. at 559.
135. Id.
136. See id. at 560. For example, Judge Posner posited the hypothetical of a camera store. He said that while "[a] camera store may not refuse to sell cameras to a disabled person,... it is not required to stock cameras specially designed for such persons."
137. Id Likewise, he opined that it was "apparent" that a bookstore was not required to stock Braille books for the blind, even though they could not prevent blind people from entering the store or from buying other books on the same terms as everybody eke.
138. Id. at 559.
139. Id. at 560.
140. See id. at 562.
141. This position was also articulated in several federal district court opinions, including the lower court's decision in Doe. See Doe v. Mut. of Omaha Ins. Co., 999 F. Supp. 1188, 1195 (N.D. Ill 1998) ("Rather than signaling Congress's intent to broadly exempt insurance companies from the reach of Title III of the ADA, § 501(c)'s safe harbor provision manifests the contrary intent to subject insurance companies to the full scope of the ADA's antidiscrimination prohibitions.");
142. see also, e.g., Chabner v. United of Omaha Life Ins. Co., 994 F. Supp. 1185,1190-91 (N.D. Cal. 1998) ("If Title III were meant only to prevent insurance companies from denying persons with disabilities equal access to the physical plants of insurance offices, there would have been no need for Congress to include the safe harbor provision dealing with underwriting practices.").
143. See Doe, 179 F.3d at 560, 562.
144. Id. at 562 (noting that the district court in this case gave "just [that] expansive interpretation" to Title III).
145. McCarran-Ferguson Act, 15 U.S.C. § § 1011-1015 (2006).
146. Doe, 179 F.3d at 563 (quoting 15 U.S.C. § 1012(b)).
147. Id. at 564.
148. Id. at 564-65.
149. See Carparts Distribution Ctr., Inc. v. Auto. Wholesaler's Ass'n of New Eng., Inc., 37 F.3d 12, 20 (1st Cir. 1994).
150. See Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 960-61 (8th Cir. 1995).
151. See Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1012-13 (6th Cir. 1997) (en banc).
152. See Doe, 179 F.3d at 563.
153. S. REP. NO. 101-116, at 84 (1989); H.R. REP. NO. 101-485, pt. 2, at 136-38 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 420-21.
154. See DEP'T OF JUSTICE, TITLE III OF THE AMERICANS WITH DISABILITIES ACT. TECHNICAL ASSISTANCE MANUAL, § III-3.11000,
155. reprinted in BUREAU OF NAT'L AFFAIRS, INC., AMERICANS WTTH DISABILITIES ACT MANUAL 90:0913 (2002) ("Insurance offices are places of pubUc accommodation and, as such, may not discriminate on the basis of disability in the sale of insurance contracts or in the terms or conditions of the insurance contracts they offer.... Thus, a public accommodation may offer a plan that limits certain kinds of coverage based on classification of risk, but may not... limit the amount, extent, or kind of coverage available to an individual, or charge a different rate for the same coverage solely because of a physical or mental impairment, except where . . . based on sound actuarial principles or . . . related to actual or reasonably anticipated experience.").
156. See ADA MANUAL, supra note 70, at 70:1051-53.
157. See Doe, 179 F.3d at 563 ("The Department has filed an amicus curiae brief that. . . embraces the plaintiffs' interpretation of the Act.").
158. See Parker v. Metro. Life Ins. Co., 121 F.3d 1006,1008 (6th Cir. 1997);
159. see also Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104,1117-18 (9th Cir. 2000) (holding that an administrator's decision to classify risks of mental illness differently than physical disabilities fell within the safe harbor provision of the ADA);
160. Lewis v. Kmart Corp., 180 F.3d 166,170 (4th Cir. 1999) (holding that the ADA did not require employers to provide the same amount of benefits for mental and physical disabilities);
161. Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998) (same);
162. El-Hajj v. Fortis Benefits Ins. Co., 156 F. Supp. 2d 27, 32 (D. Me. 2001) (holding that the ADA does not create a cause of action against insurers who provide different levels of coverage for those who are mentally disabled as opposed to physically disabled).
163. See Soshinsky v. First Unum Life Ins. Co., 105 F. Supp. 2d 10,12 (N.D.N.Y. 2000) (noting cases that determined that an insurer is not required to treat all disabilities equally).
164. Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, §§ 511-512,122 Stat. 3765,3881-93 (to be codified at 26 U.S.C. §9812,29 U.S.C. §1185a, and 42 U.S.C. § 300gg-5).
165. Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001-1461 (2006).
166. Public Health Service Act, 42 U.S.C. §§ 201-300ii-4 (2006).
167. -26 U.S.C. § 1 et seq. (2006).
168. See § 512(a)-(c), 122 Stat. at 3881-91.
169. The language amending ERISA reads as follows: Determinations as to increases in actual costs under a plan (or coverage) for purposes of this section shall be made and certified by a qualified and licensed actuary who is a member in good standing of the American Academy of Actuaries. All such determinations shall be in a written report prepared by the actuary. The report, and all underlying documentation relied upon by the actuary, shall be maintained by the group health plan or health insurance issuer for a period of 6 years Id. § 512(a)(3)(B)(2)(C), 122 Stat, at 3883. The language amending the other statutes is identical.
170. Id.
171. See, e.g., 154 CONG. REC. S10.292 (daily ed. Oct 1, 2008) (statement of Sen. Chris Dodd).
172. -154 CONG. REC. H1316 (daily ed. Mar. 5,2008) (statement of Rep. Sheila Jackson Lee) (emphasis added).
173. -153 CONG. REC. H16.916 (daily ed. Dec. 19, 2007) (statement of Rep. James Ramstad) (emphasis added).
174. See supra notes 10-11 and accompanying text.
175. Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1008 (6th Cir. 1997) (holding that the ADA did not prohibit insurers from giving shorter benefits to mentally disabled individuals).
176. Bagenstos, supra note 9, at 45 (criticizing the access vs. content distinction drawn in Doe as based on an inappropriate but not impermissible definition of "content");
177. Edwin Caspar, Comment, Doe v. Mutual of Omaha; Do Insurance Policy Caps on AIDS Treatments Violate the Americans with Disabilities Act?, 75 NOTRE DAME L. REV. 1539, 1549-50 (2000) (arguing that the analysis of the court in Doe relied on a flawed analogy in finding that the ADA does not regulate content of insurance policies) ;
178. Mary Carol Joly, Student Article, Doe and Smith v. Mutual of Omaha Insurance Company: The Possible Impact of Insurance Caps on HIV-infected Individuals, 4 DEPAUL J. HEALTH CARE L. 193,194 (2000) (arguing that the Seventh Circuit's decision was contrary to the intent and purpose of the ADA);
179. see also Jill Alesch, Note, The Americans with Disabilities Act An End to Discrimination Against HIV/AIDS Patients or Simply Another Loophole to Bypass?, 52 DRAKE L. REV. 523, 525 (2004) (arguing that the Supreme Court should reverse the notion among circuit courts that the ADA does not regulate the content of insurance policies).
180. Because the language of the statute is ambiguous, it is possible that the Supreme Court, should it seek to resolve the circuit split, could agree with the reasoning of Doe. This is why a legislative correction of the ambiguity is preferable to judicial resolution. Contra Alesch, supra note 145, at 525.
181. -42 U.S.C. § 12101(b)(1), (4) (2006).
182. Id. §12101(b)(2).
183. See Parker v. Metro. Life Ins. Co., 99 F.3d 181,192-93 (6th Cir. 1996), vacated and reh'g granted, 107 F.3d 359 (6th Cir. 1997) ("There could hardly be a 'good' or 'service' more central to the day-to-day life of a seriously disabled person than insurance-for it is often insurance coverage that will determine a disabled person's ability to prevent the disability from limiting his or her participation in society.").
184. Older Workers Benefit Payment Act, Pub. L. No. 101-433, 104 Stat. 978 (1990) (as amended by Pub. L. No. 101-521,104 Stat. 2287 and codified at 29 U.S.C. §§623, 626 (2006)).
185. Age Discrimination in Employment Act of 1967, 29 U.S.C. §§621-634 (2006).
186. Pub. Employees Ret. Sys. of Ohio v. Betts, 492 U.S. 158 (1989).
187. Id. at 175,181.
188. Older Workers Benefit Payment Act, §101,104 Stat, at 978 (citations omitted).
189. ADA Amendments Act of 2008, Pub. L. No. 110-325,122 Stat. 3553 (to be codified in scattered sections of 42 U.S.C).
190. Id § 2(a)(1).
191. Id. § 2(a)(4).
192. See id. § 2(a)(8)-(b).
193. This congressional intent can be found in the text of the ADA itself, see 42 U.S.C. § 12101(b) (2006), as well as in the legislative history of the ADA, see sources cited supra note 93.
194. Ford v. Schering-Plough Corp., 145 F.3d 601, 612 (3d Cir. 1998);
195. Parker v. Metro. Life Ins. Co., 121 F.3d 1006,1010-11 (6th Cir. 1997) (en banc).
196. Except for the additional amendment to the provision's conclusion as proposed in Part IV.C, infra, the remainder of the safe harbor provision would remain unchanged.
197. See Parker, 121 F.3d at 1008. Furthermore, under the second proposed amendment, the burden of proof would have then been on Metropolitan Life to show that it had sound actuarial reasons for offering less coverage to persons suffering from mental health disabilities. See infra Part rV.C.
198. See discussion supra Part II.B.
199. For the basis of this language, see the Wellstone Mental Health Parity Act. Emergency Economic Stabilization Act of 2008, Pub. L. No. 110-343, §512(a)(3)(B)(2)(C), 122 Stat. 3765, 3883.
200. See Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 558 (7th Cir. 1999) (noting that Mutual of Omaha could not prove that its "AIDS [c]aps are or ever have been consistent with sound actuarial principles, actual or reasonably anticipated experience, bona fide risk classification, or state law");
201. see also Adams v. Rice, 531 F.3d 936, 954 (D.C. Cir. 2008) (noting that Congress passed the ADA in order to end differential treatment "based on myths, fears, and stereotypes").
202. H.R. REP. NO. 101-485, pt. 3, at 71 (1990), reprinted in 1990 U.S.C.C.A.N. 445,494;
203. see also ADA MANUAL, supra note 70, at 70:1052.
204. See Doe, 179 F.3d at 558.
205. Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 960 (8th Cir. 1995).
206. See Parker v. Metro. Life Ins. Co., 99 F.3d 181, 191 (6th Cir. 1996), vacated and reh'g granted, 107 F.3d 359 (6th Cir. 1997).
207. See, e.g., Alesch, supra note 145, at 525.
208. Doe v. Mut of Omaha Ins. Co., 528 U.S. 1106 (2000).
209. Parker v. Metro. Life Ins. Co., 522 U.S. 1084 (1998).
210. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184,187 (2002);
211. see also Sutton v. United Air Lines, Inc., 527 U.S. 471, 475 (1999).
212. See ADA Amendments Act of 2008, Pub. L. No. 110-325, §2(a)(4)-(5), 122 Stat. 3553, 3553 (explicitly referencing Toyota Motor and Sutton).
213. See Doe v. Mut of Omaha Ins. Co., 179 F.3d 557, 563-64 (7th Cir. 1999).
214. See 15 U.S.C. §1012(b) (2006).
215. See, e.g., Kremer v. Chem. Constr. Corp., 456 U.S. 461, 477 (1982) ("[T]he EEOC cannot adjudicate claims or impose sanctions; that responsibility, the final responsibility for enforcement, must rest in federal court." (internal quotation marks omitted)).
216. See Office of Legal Counsel, U.S. Equal Employment Opportunity Comm'n, Letter Regarding Interim Final Rules for Nondiscrimination in Health Coverage in the Group Market (Apr. 4, 2001), available at http://www.eeoc.gov/eeoc/foia/ lettere/2001/titlevii-ada-insurance-benefits.html (last visited Dec. 1, 2009).
217. See Nancy Montwieler, Puerto Rico Blue Cross Ends AIDS Limitation; Pays $200,000 to Subscriber in EEOC Accord, 27 BNA PENSION & BENEFITS REP. 3045, 3045 (Dec. 12, 2000) ("La Cruz Azul (Blue Cross) of Puerto Rico has agreed to eliminate a restriction on AIDS coverage in its insurance policies and to pay $200,000 to one of its subscribers, under a consent decree reached with the Equal Employment Opportunity Commission ....").
218. See Mutual of Omaha Insurance to Lift Discriminatory Caps on AIDS Coverage, LAMBDA LEGAL (Apr. 12, 2000), http://www.lambdalegal.org/news/pr/new- york-tuesday-april-11.html (last visited Dec. 3, 2009) (noting that Mutual of Omaha's practice was not followed by most insurance companies).
219. Cf. Mary K. Olson, Managing Delegation in the FDA: Reducing Delay in New-Drug Review, J. HEALTH POL. POL'Y & L. 397,401 (2004) (noting that well-organized AIDS advocates were able to accelerate the Food and Drug Administration's process for approving AIDS drugs, but that that acceleration did not "spill over" into other drug approvals).
220. Because the disabled are a small part of the overall population, they may not have the bargaining power to ensure that the insurance market treats them fairly. See, e.g., Adrienne Asch, Disability Equality and Prenatal Testing: Contradictory or Compatible?, 30 FLA. ST. U. L. REV. 315, 331 (2003) ("Despite the symbolic and tangible changes attributable to laws like the Americans with Disabilities Act, the nation's disabled population is stul less educated, less employed, less involved in civic life, [and] less represented in the political process ... than their numbers warrant.").
221. See supra note 12.
222. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, §1251(a), 124 Stat. 119,161 (2010) (allowing an individual to choose to retain their current insurance coverage and stipulating that "this subtitle and subtitle A (and the amendments made by such subtitles) shall not apply to such plan or coverage, regardless of whether the individual renews such coverage after such date of enactment").
223. Id. §1251(c), 124 Stat, at 161 ("A group health plan that provides coverage on the date of enactment of this Act may provide for the enrolling of new employees (and their families) in such plan, and this subtitle and subtitle A (and the amendments made by such subtitles) shall not apply with respect to such plan and such new employees (and their families).").
224. As previously discussed, in 2008,58.5% of Americans received health care through their employer. See supra note 34 and accompanying text.
225. §1201,124 Stat, at 155.
226. Id. §1001,124 Stat, at 131.
227. Id. §1201,124 Stat, at 155.
228. See Doe v. Mut of Omaha Ins. Co., 179 F.3d 557, 558 (7th Cir. 1999).
229. -42 U.S.C. §12101(b)(2) (2006).