Category Archives: Americans With Disabilities Act

Employer Wellness Incentives, the ACA, and the ADA: Reconciling Policy Objectives

Source: Kristin M. Madison, Northeastern University School of Law Research Paper No. 261-2016, October 2015

From the abstract:
Employer-based wellness programs have become increasingly common. Many large firms offer incentives for completing health-related questionnaires or undergoing biometric testing; some offer incentives for meeting targets related to biometric measures such as blood pressure or body-mass index. Over the last two decades, policy makers have both promoted and restricted incentive-based wellness programs. The 2010 Affordable Care Act (ACA) reflected both impulses: it imposed limits on the use of incentives, but signaled support for incentive-based programs by raising a previously existing ceiling on incentive magnitude. More recently, however, federal actions taken in connection with the Americans with Disabilities Act (ADA) threatened to undermine some ACA compliant, incentive-based wellness programs, eliciting protests from some employers. This essay examines the congruence of policy objectives underlying health plan regulations, the ADA, and their wellness program exceptions. While health plan regulations seek to preserve insurance affordability, regardless of health status, the ADA’s wellness program exception seeks to ensure the voluntariness of employees’ provision of information. The author argues that incentives can be compatible with voluntariness, and should therefore be permitted under the ADA, but that the ADA’s focus on voluntariness should lead to incentive regulations that are structured differently from those under the ACA.

Hospitals rationing drugs behind closed doors: a civil rights issue

Source: Wendy F. Hensel, Leslie E. Wolf, The Conversation, February 23, 2016

The United States is facing a shortage of prescription drugs, ranging from antibiotics to cancer treatments. These shortages are putting the medical profession in the frequent position of deciding who will get the drugs that are in short supply and, more importantly, who will not. … According to the article, the decision-making process varies considerably across institutions. For instance, in some hospitals formal ethics committees make these decisions. At others, these decisions are made by individual physicians, pharmacists or even drug company executives. And, as the article also reports, patients typically are not told of the shortage and have no idea that their choice of treatment has been limited, even though the decision may delay their recovery, increase their pain or, in some cases, potentially accelerate their death. As legal experts in medical ethics and disability law who have conducted research on the allocation of medical resources, we were struck by the general lack of awareness of the law evident in the article. The fact is, there are civil rights laws and state laws governing informed consent that apply to such decisions, even in times of public health emergencies and medical shortages. These laws constrain physician decision-making and must be taken into account on the front end in making treatment or distribution decisions for all patients and in particular, we would argue, for patients with disabilities….
Drug Shortages Forcing Hard Decisions on Rationing Treatments
Source: Sheri Fink, New York Times, January 29, 2016

Such shortages are the new normal in American medicine. But the rationing that results has been largely hidden from patients and the public.

Employee Wellness Programs Not So Voluntary Anymore

Source: Rebecca Greenfield, Bloomberg Businessweek, January 15, 2016

Take a blood test or lose your health coverage….

….Like many employers, Flambeau uses a wellness program to cut insurance costs by encouraging healthy employee habits. In the past, submitting to on-site tests of blood pressure, body-mass, and cholesterol meant saving a few hundred dollars. Now companies such as Flambeau have gone a step farther, denying healthcare entirely to those who don’t participate. People like Arnold must instead pay for more expensive coverage through the government’s COBRA program.

According to several federal courts—including one that ruled in favor of Flambeau—this is all perfectly legal.

In a case filed by the Equal Employment Opportunity Commission, the U.S. government argued that Flambeau’s wellness program didn’t comply with the Americans with Disabilities Act, which limits companies from requiring medical exams or personal health information from workers. Denying employer-sponsored coverage crosses the line from voluntary to coercive, the EEOC contended…..

Disabled in DC: Coping With Increasing Costs and Demand for Paratransit

Source: Daniel C. Vock, Governing, August 31, 2015

The Washington, D.C., metropolitan area has a robust transportation network for people without cars. It has one of the busiest transit systems in the nation that reaches deep into the suburbs, one of the biggest taxi cab fleets in the country, and a welcoming regulatory environment for ride-hailing companies like Uber. But it still struggles to provide accessible transportation to people with disabilities, 25 years after the Americans with Disabilities Act (ADA) made transportation for them a civil right.

In D.C., and many other cities, rising costs and technological change are playing havoc with efforts to increase accessibility at the same time that demand is growing because of the aging Baby Boomers.

This three-part series explores D.C.’s challenges in keeping paratransit costs under control; providing good working conditions for paratransit employees; and expanding transportation options beyond the public transit system. They are issues that the country as a whole faces as it tries to live up to the ADA’s promise.

Disqualifiying Universality Under the Americans with Disabilities Act Amendments Act

Source: Michelle A. Travis, University of San Francisco – School of Law, Research Paper No. 2015-17 May 14, 2015

From the abstract:
This Article reveals a new resistance strategy to disability rights in the workplace. The initial backlash against the Americans with Disabilities Act of 1990 (ADA) targeted protected class status by characterizing the ADA’s accommodation mandate as special treatment that benefitted the disabled at the expense of the nondisabled workforce. As a result, federal courts treated the ADA as a welfare statute rather than a civil rights law, which resulted in the Supreme Court dramatically narrowing the definition of disability. Congress responded with sweeping amendments in 2008 to expand the class of individuals with disabilities who are entitled to accommodations and to align the ADA with Title VII of the Civil Rights Act of 1964 by establishing nearly universal impairment-based antidiscrimination protection. While these amendments have largely dismantled the disability status barrier, employers and their attorneys are working to erect a new barrier with the ADA’s “otherwise qualified” provision, which requires plaintiffs to prove the ability to perform all of the “essential functions of the job” as part of a prima facie disability discrimination case. This Article shows how federal courts are using the concept of “essential job functions” to entrench able-bodied norms into seemingly neutral job descriptions and workplace designs to again restrict access to accommodations and undermine the ADA as a universal civil rights law. By replacing “non-disabled” with “non-qualified” as the ADA’s new gatekeeper, this strategy effectively shifts disability stereotypes away from individuals with disabilities and onto the definition of work itself, which may render those stereotypes even more difficult to recognize and disrupt.

Theme: Americans with Disabilities Act

Source: JAMA: Journal of the American Medical Association, Vol. 313 no. 22, June 9, 2015
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Articles include:
The ADA and the Supreme Court: A Mixed Record
Samuel R. Bagenstos

Innovations of the Americans With Disabilities Act: Confronting Disability Discrimination in Employment
Mark A. Rothstein

The Promise of the Americans With Disabilities Act for People With Mental Illness
Ira Burnim

Why the Americans With Disabilities Act Matters for Genetics
Ellen Wright Clayton

The Americans With Disabilities Act at 25: The Highest Expression of American Values
Lawrence O. Gostin

The Supplemental Security Income (SSI) Program

Source: Mark Duggan, Melissa S. Kearney, Stephanie Rennane, National Bureau of Economic Research (NBER), NBER Working Paper No. w21209, May 2015
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From the abstract:
The SSI program provides cash assistance to some of the nation’s most vulnerable elderly, blind, and disabled residents. In this paper, we briefly summarize the history of the SSI program and present descriptive evidence on caseload composition and trends. We discuss relevant conceptual issues and empirical evidence focused on four key issues. First, we describe the advantages and disadvantages of categorical eligibility requirements and we show that the SSI caseload has become increasingly comprised of difficult-to-verify conditions, namely pain and mental disabilities. Second, we describe systematic disincentives to accumulate earnings and assets inherent in the SSI program design, but emphasize that the more relevant set of questions for the SSI population are related to the full disability requirement for eligibility. Third, we describe the questions and research about long-term benefits and costs to program participants, in terms of whether the program adequately and appropriately serves the needs of disabled individuals and their family members. And fourth, we present information and evidence about program spillovers, both across programs and across federal and state levels of government. Throughout the paper we make numerous explicit references to areas where further study is warranted and open research questions remain. SSI is an important part of the U.S. safety net, but particular features of the program raise questions about whether there is a more effective way to provide income support for individuals with work-limiting disabilities and families with disabled the children. Our goal for this paper is to systematically present the issues for scholars and policy-makers to consider and explore.

Mental Health in the Workplace: How We Can Move Beyond the Stigma

Source: Wharton School – University of Pennsylvania, Knowledge@Wharton, Management, May 28, 2015

In the great order of things in the American workplace, many a stigma has fallen. Mental illness, though, has notably lagged — retaining its air of misunderstanding. …. But the social dynamics around mental illness may be changing. A combination of factors have come together in recent years — including the Americans with Disabilities Act — to lead many to believe that the stigma is finally fading, perhaps even in the workplace. ….

A state-by-state look at students referred to law enforcement

Source: Chris Zubak-Skees, Ben Wieder, Center for Public Integrity, April 10, 2015

U.S. Department of Education data shows that in most states black, Latino and special-needs (disabled) students get referred to police and courts disproportionately. The volume of referrals from schools is fueling arguments that zero tolerance policies and school policing are creating a “school-to-prison pipeline” by criminalizing behavior better dealt with outside courts. The Center for Public Integrity ranked states by their rate of referral for every 1,000 students. Hover or tap each demographic bar to get the percent of a group’s enrollment compared to the percent of referred students who belong to that group.