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Abstract:
Numerous commentators have characterized the ADA's reasonable accommodation mandate - which sometimes requires employers to take affirmative steps that treat an individual with a disability differently from other workers - as a departure from the fundamental precepts of antidiscrimination law. These characterizations, however, fail to appreciate either the insights offered by disability theorists regarding the sources of inequality experienced by people with disabilities or the intrinsic conceptual kinship between the ADA's accommodation requirement and disparate impact liability and hostile environment liability under Title VII. Disability theory scholarship affirms that society's historic disregard for and devaluation of people with disabilities has resulted in workplaces where conventional structures, policies, and practices commonly act as barriers to disabled persons' equal employment opportunity. Examination of the conceptual foundations of disparate impact liability and hostile environment liability demonstrates that a central purpose of established antidiscrimination law is the removal of barriers to equal employment opportunity.

This Article contends that the ADA's reasonable accommodation requirement should be properly understood as a mechanism for ending discrimination against people with disabilities by requiring the removal of those workplace obstacles whose presence reflects society's disregard for and devaluation of people with disabilities. This understanding may guide courts called on to determine whether a particular requested accommodation should be deemed a "reasonable" accommodation in light of the ADA's antidiscrimination purpose. Ultimately, it may also prompt a broader recognition that the reasonable accommodation requirement is an integral part of our society's antidiscrimination project.

Abstract:
These comments approach the topic of tax exemption for non-profit hospitals from the perspective of the 46 plus million Americans who have no health insurance and the significant additional number who are underinsured. In essence, persons who are underinsured have some form of health coverage but they remain at serious risk for significant out-of-pocket expenditures when they become sick. From this perspective, the key question is what role, if any, do the non-profit health care sector and, more particularly, non-profit hospitals have to play in addressing the vexing problems posed by the large number of uninsured and underinsured. These problems tend to be discussed primarily, although not exclusively, as problems of access.

To put the question in specific terms: Is tax exemption for non-profit hospitals a tool that could be used effectively to address, or at least to help to address, these problems? Should we try to fashion tax exemption standards for non-profit hospitals into a tool for responding to some of the challenges posed by the growing number of uninsured in our society?

non-profit health care, non-profit hospital, tax exemption, standards, uninsured, underinsured, responsibility

Abstract:
As employers seek to contain their health care costs and politicians create coverage mechanisms to promote individual empowerment, people with health problems increasingly are forced to shoulder the load of their own medical costs. The trend towards consumerism in health coverage shifts not simply costs, but also insurance risk, to individual insureds, and the results may be particularly dire for people in poor health. This Article describes a growing body of research showing that unhealthy people can be expected disproportionately to pay the price for consumerism, not only in dollars, but in preventable disease and disability as well. In short, consumerist coverage vehicles (including health savings accounts) discriminate against the unhealthy by impact. This Article examines existing laws protecting against health status discrimination in health insurance, but these laws do not address impact discrimination. Recognizing that some might attempt to justify this disproportionate impact on unhealthy people by invoking a principle of actuarial fairness, the Article also reviews various laws prohibiting other forms of discrimination in health insurance in order to reveal our society's willingness to elevate other social values above actuarial fairness. This Article calls for more careful scrutiny of consumerism's effects and a sustained dialogue regarding the limits a just society should place on the burdens borne by unhealthy persons.

civil rights, equality, discrimination, unhealthy, health insurance, social justice, medical expenses, economics

Abstract:
Although concerns about individual liberty and the nature and extent of reproductive freedom have tended to dominate discussions regarding the proliferation of and access to reproductive technologies, questions about the implications of assisted reproductive technologies (ARTs) for equality have also arisen. Despite the high number of invocations of equality in the literature regarding ARTs, to date little effort has been made to comprehensively examine the implications of ARTs for equality. This short Article seeks to highlight the variety of equality issues that ARTs present and to develop a framework for classifying different types of equality issues. Specifically, I suggest that three different types of equality concerns exist relevant to discussions about regulating ARTs: equality of access to ARTs (and thus parenthood), equal treatment in the resolution of disputes arising from the use of ARTs, and equality issues raised by trait-selection practices. My point herein is neither to condemn nor to rationalize the inequalities that close examination may reveal. This Article instead issues a challenge to scholars in the field to undertake a broader, more thorough consideration of the implications for equality that the development of, and regulation or non-regulation of, ARTs present.

civil rights, medical jurisprudence, equality, assisted reproductive technologies, ARTs, disputes, trait-selection, regulation

Abstract:
This Article will adopt the perspective of individuals with disabilities in their encounters with the health care finance and delivery system in the United States, and will pose the question of what the past decade has shown the ADA to mean (or not mean) for those individuals' ability to seek, receive, and pay for effective health care services. To that end, this Article will provide an overview of three broad areas on which the ADA has had varying degrees of impact.

Part II of the Article will examine how the ADA has affected the rights of an individual with a disability who is seeking medical or dental treatment. Health care providers' direct refusals to treat and failures to supply necessary auxiliary aids are the most obvious instances of disability discrimination in the health care context, and it is in this context that the ADA has had probably its greatest effect. Less clear has been the Act's applicability to claims that an individual with a disability has received different and substandard medical care. Part III will discuss the ADA's impact on cost-containment efforts in the health care field, ranging from the application of the ADA to managed care practices adopted by private and public payers to the statute's implication in health care rationing schemes. Part IV will turn to attempts to apply the ADA to health insurance, an area in which the courts appear increasingly resistant to allowing the ADA a significant role in regulating health insurance.

Ultimately, Part V will conclude that the ADA's impact on health care for persons with disabilities has been mixed. It has played a major role in addressing the most overt instances of discriminatory behavior, but its impact on less obvious instances of potentially discriminatory cost-cutting practices and on health insurance has been more muted and indirect. Nonetheless, I will conclude that the passage of the ADA and the mere potential of ADA liability has had the beneficial effect of compelling health care decision-makers to take the presence and needs of persons with disabilities into account; in so doing, the ADA has helped to render persons with disabilities visible in the world of health care.

ADA, individuals with disabilities, discrimination, health care finance and delivery system, health care services, health insurance, regulation

Abstract:
Substantial evidence indicates that clinically irrelevant patient characteristics, including race and gender, may at times influence a physician's choice of treatment. Less clear, however, is whether a patient who is the victim of a biased medical decision has any effective legal recourse. Heedful of the difficulties of designing research to establish conclusively the role of physician bias, this article surveys published evidence suggesting the operation of physician bias in clinical decision making. The article then examines potential legal responses to biased medical judgments. A patient who is the subject of a biased decision may sue her doctor for violating his professional duties, including his fiduciary obligation to the patient. Courts may be unwilling, however, to expand the scope of physicians' professional liability beyond existing medical malpractice law. While federal anti-discrimination laws may prohibit some instances of biased medical decisions, those laws leave many instances of physician bias unaddressed. Moreover, those laws typically would require a patient to prove that her doctor acted intentionally in discriminating, a daunting task if the physician's bias is unconscious, as is probably often the case. Finally, under either a professional liability action or a civil rights suit, the patient faces the fundamental problem of proving that bias in fact infected her physician's judgment. Because of these difficulties, the article concludes that existing law does not provide a ready remedy for a patient who is the victim of a biased medical decision.

medical treatment, bias, discrimination, civil rights, biased medical decision, physician's choice of treatment, medical malpractice law