Rethinking the Americans with Disabilities Act’s Insurance Safe Harbor

Valarie Blake
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Valarie Blake: College of Law, West Virginia University, 101 Law School Drive, Morgantown, WV 26506-6130, USA

Laws, 2017, vol. 6, issue 4, 1-14

Abstract: Despite the importance of access to healthcare for the disabled, the Americans with Disabilities Act (ADA) has made little inroads in reducing disability-based discrimination by health insurers in the United States. One reason is undoubtedly the ADA’s insurance safe harbor, which explicitly permits insurers to discriminate on the basis of disability in health insurance so long as the differential treatment is supported by actuarial data and is not just intended to disadvantage the disabled. While the safe harbor’s harms are somewhat limited by the advent of the Affordable Care Act (ACA), they are not entirely neutralized. This article argues that there are both practical and principled reasons for amending the ADA to remove the insurance safe harbor. Practically speaking, the ADA could prove a useful tool to challenge aspects of the ACA that place the disabled at a disadvantage, but the insurance safe harbor limits this reach in meaningful ways. From a more principled or philosophical lens, the insurance safe harbor is a law that perpetuates stigma against the disabled and that no longer reflects the views of American society. For these reasons, and many others, a rethinking of the ADA’s insurance safe harbor is necessary and timely.

Keywords: disability rights; health reform; ADA; health insurance; access to healthcare for the disabled; disabled health disparities (search for similar items in EconPapers)
JEL-codes: D78 E61 E62 F13 F42 F68 K0 K1 K2 K3 K4 (search for similar items in EconPapers)
Date: 2017
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