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Human Rights, Civil Rights: Prescribing Disability Discrimination Prevention in Packaging Essential Health Benefits

Published online by Cambridge University Press:  01 January 2021

Anita Silvers  and
Leslie Francis
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Extract

Health care insurance schemes, whether private or public, are notoriously unaccommodating to individuals with disabilities. While most nonelderly nondisabled persons in the U.S. are insured through private sources, coverage sources for nonelderly persons with disabilities have traditionally been a mix of private and public coverage. For all age groups, the employment-to-population ratio is much lower for persons with a disability than for those with no disability. Moreover, employed persons with a disability were more likely to be self-employed than those with no disability. As a group, therefore, nonelderly people with disabilities have not been as well positioned as others to obtain private health care insurance because in the U.S., acquiring such coverage usually is employer based.

Type
Symposium
Information
Journal of Law, Medicine & Ethics , Volume 41 , Issue 4 , Winter 2013 , pp. 781 - 791
Copyright
Copyright © American Society of Law, Medicine and Ethics 2013

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References

Alder, M., “The Disabled: Their Health Care and Health Insurance,” U.S. Department of Health and Human Services, 1990, available at <http://aspe.hhs.gov/daltcp/reports/disabled.htm> (last visited October 7, 2013).+(last+visited+October+7,+2013).>Google Scholar
U.S. Bureau of Labor Statistics, “Persons with a Disability: Labor Force Characteristics Summary,” 2012, available at <http://www.bls.gov/news.release/disabl.nr0.htm> (last visited October 7, 2013).+(last+visited+October+7,+2013).>Google Scholar
See Alder, , supra note 1.Google Scholar
Id.Google Scholar
World Health Organization, “Fact Sheet No 352: Disability and Health,” 2012, available at <http://www.who.int/mediacentre/factsheets/fs352/en/> (last visited October 8, 2013).+(last+visited+October+8,+2013).>Google Scholar
Williams, A., “Response: QUALYfying the Value of Life,” Journal of Medical Ethics 13, no. 3 (1987): 123; Amundson, R., s.v. “Health Resource Rationing,” in Albrecht, G., ed., Encyclopedia of Disability (Thousand Oaks, CA: Sage Publications, 2006): 841–845. Important differences may be elided in how this argument is made. One view is metaphysical: That people with disabilities are different in kind from others whose lives are of greater value. Another view is normative: That because they are different in kind (or perhaps for some other reason), they have different moral status and so whatever value their lives have will count less than the lives of the non-disabled. Still another view is empirical: That because of their disability, their lives will feature experiences of lesser value, so even if they count equally the same benefit will be worth more for a person without the disability. An illustration of this last view is the claim that blind people, because they cannot experience visual perceptions, live less rich lives and therefore benefit less from life-saving cancer treatment than do sighted people. An illustration of the metaphysical view is that blind people are different in kind from sighted people, and an illustration of the normative view is that they are therefore of lesser moral status.CrossRefGoogle Scholar
Silvers, A., “Predicting Genetic Disability While Commodifying Health,” in Bickenbach, J. Wachbroit, R. Wasserman, D., eds., Quality of Life and Human Difference (Cambridge: Cambridge University Press, 2005): 43–66.CrossRefGoogle Scholar
“For Medicare to cover a power wheelchair or scooter, the physician must state that the patient needs it due to a medical condition from which the individual suffers. Medicare won't cover a power wheelchair or scooter that is only needed for the individual to go outside the home.” Centers for Medicare & Medicaid Services, “Medicare Coverage of Durable Medical Equipment & Other Devices,” at 5, available at <http://www.medicare.gov/Publications/Pubs/pdf/11045.pdf> (last visited October 8, 2013). (last visited October 8, 2013).' href=https://scholar.google.com/scholar?q=“For+Medicare+to+cover+a+power+wheelchair+or+scooter,+the+physician+must+state+that+the+patient+needs+it+due+to+a+medical+condition+from+which+the+individual+suffers.+Medicare+won't+cover+a+power+wheelchair+or+scooter+that+is+only+needed+for+the+individual+to+go+outside+the+home.”+Centers+for+Medicare+&+Medicaid+Services,+“Medicare+Coverage+of+Durable+Medical+Equipment+&+Other+Devices,”+at+5,+available+at++(last+visited+October+8,+2013).>Google Scholar
For example, Blue Cross and Blue Shield of Montana considers a power wheelchair not medically necessary if it is needed for ambulation outside of the home. Consequently, an individual who can walk from his bed to the bathroom, but not the additional distance to the corner grocery store or the doctor's office two blocks away would not qualify for a mobility scooter that enabled him to obtain food and medical care. Medical Codes, “Wheelchairs and Wheelchair Accessories,” available at <https://www.bcbsmt.com/MedReview/Policies/WheelchairsandAccessories/v101.aspx> (last visited October 8, 2013). (last visited October 8, 2013).' href=https://scholar.google.com/scholar?q=For+example,+Blue+Cross+and+Blue+Shield+of+Montana+considers+a+power+wheelchair+not+medically+necessary+if+it+is+needed+for+ambulation+outside+of+the+home.+Consequently,+an+individual+who+can+walk+from+his+bed+to+the+bathroom,+but+not+the+additional+distance+to+the+corner+grocery+store+or+the+doctor's+office+two+blocks+away+would+not+qualify+for+a+mobility+scooter+that+enabled+him+to+obtain+food+and+medical+care.+Medical+Codes,+“Wheelchairs+and+Wheelchair+Accessories,”+available+at++(last+visited+October+8,+2013).>Google Scholar
Lagu, T. et al., “Access to Subspecialty Care for Patients with Mobility Impairment: A Survey,” Archives of Internal Medicine 158, no. 6 (2013): 441–446. See also Peace, W. William, , “New York Times Misses the Point Yet Again: Inaccessible Doctor Offices,” 2013, available at <http://badcripple.blogspot.com/2013/05/normal-0-false-false-false-en-us-ja-x.html> (last visited October 8, 2013); Pendo, E., “Disability, Equipment Barriers, and Women's Health: Using the ADA to Provide Meaningful Access,” St. Louis University Journal of Health Law and Policy 2, no. 1 (2008): 15–56.Google Scholar
Heslop, P. et al., Confidential Inquiry into Premature Deaths of People with Learning Disabilities: Final Report, 2013, available at <http://www.bristol.ac.uk/cipold/fullfinalreport.pdf> (last visited October 8, 2013).+(last+visited+October+8,+2013).>Google Scholar
Machan, T., “The Perils of Positive Rights: Positive Rights Conflict Most with Our Basic Negative Rights to Life, Liberty and Property,” The Freeman, April 1, 2001, available at <http://www.fee.org/the_freeman/detail/the-perils-of-positive-rights#axzz2iTmQPY92> (last visited October 22, 2013).+(last+visited+October+22,+2013).>Google Scholar
Fried, C., “Equality and Rights in Medical Care,” Hastings Center Report 6, no. 1 (1976): 29–34.Google Scholar
Degener, T., “A Human Rights Model for Disability,” in Stein, M. Langford, M., eds., Disability Social Rights (Cambridge University Press, forthcoming 2014).Google Scholar
Hannum, H., “The Concept of Human Rights,” in International Human Rights: Problems of Law, Policy, and Practice (New York: Aspen Publishers, 2006): At 31–33.Google Scholar
Id.Google Scholar
Fagan, A., s.v. “Human Rights,” in Fieser, J. Dowden, B., eds., 2005, Internet Encyclopedia of Philosophy, available at <http://www.iep.utm.edu/hum-rts/> (last visited October 8, 2013).+(last+visited+October+8,+2013).>Google Scholar
Id. (Fagan); for further discussion, see also Finnis, J., Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) and Shue, H., Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton: Princeton University Press, 1980).Google Scholar
Townley, Cynthia, “Animals and Humans: Grounds for Separation?” Journal of Social Philosophy 41, no. 4 (2010): 512–526. For a discussion of human exceptionalism in regard to cognitive disability, see McMahan, J. Kittay, E., “Cognitive Disability, Cognitive Enhancement & Moral Status,” Q&A Session at “Conference on Cognitive Disability: Its Challenge to Moral Philosophy,” Stony Brook University, New York, available at <https://podcast.ic.sunysb.edu//blojsom_resources/meta/phicdc/36-KITTAY%3AMcMAHAN_Q%26A.mp4> (last visited October 22, 2013).CrossRefGoogle Scholar
Liao, M., “The Basis of Human Moral Status,” Journal of Moral Philosophy 7, no. 2 (2010): 159–179.CrossRefGoogle Scholar
Silvers, A., “Moral Status: What a Bad Idea! Why Discard It? What Replaces It?” Journal of Intellectual Disability Research 56, no. 11 (2012): 1014–1025.CrossRefGoogle Scholar
Asimov, I., I, Robot (New York: Gnome Publishing, 1950).Google Scholar
Asimov, I. Silverberg, R., The Child of Time (London: Gollancz, 1991).Google Scholar
See Silvers, , supra 21.Google Scholar
Tooley, M., “Abortion and Infanticide,” Philosophy & Public Affairs 2, no. 1 (1972): 37–65.Google Scholar
Wasserman, D. Asch, A. Blustein, J. Putnam, D., s.v. “Cognitive Disability and Moral Status,” in Zalta, E. N., ed., The Stanford Encyclopedia of Philosophy, summer 2013 ed., <http://plato.stanford.edu/archives/sum2013/entries/cognitive-disability/> (last visited October 9, 2013).+(last+visited+October+9,+2013).>Google Scholar
Silvers, A. Francis, L. P., “Thinking about the Good: Reconfiguring Metaphysics (or Not) for People with Cognitive Disabilities,” Metaphilosophy 40, nos. 3–4 (2009) – reprinted in Feder Kittay, E. Carlson, L., eds., Cognitive Disability and Its Challenge to Moral Philosophy (New York: Wiley-Blackwell, 2010).Google Scholar
Silvers, A., “Embracing Freedom for Disability: The Hardest Thing To Do,” Keynote Address for Menschen Recht Inklusion: International Symposium on the Implementation of the Convention on the Rights of People with Disabilities into Practice, Evangelische Fachhochschule RWL, Bochum, Germany, June 6–8, 2013, available at <http://www.efh-bochum.de/brk/pdf/doku/Silvers_Human_Rights_engl.doc> (last visited on October 22, 2013).+(last+visited+on+October+22,+2013).>Google Scholar
Berke, J., “Deaf, Not Retarded: When Misdiagnoses Are Made, Everyone Pays,” About.com, 2010, available at <http://deafness.about.com/cs/featurearticles/a/retarded_2.htm> (last visited October 9, 2013).+(last+visited+October+9,+2013).>Google Scholar
Murdick, N. Garton, B. Lee Crabtree, T., Special Education Law, 2nd ed. (San Francisco, CA: Pearson Education, 2006).Google Scholar
Kittay, E. F., “At the Margins of Moral Personhood,” Ethics 116, no. 1 (2005): 100–131.CrossRefGoogle Scholar
Koall, C., “Historian Götz Aly: Victims of Nazi Euthanasia ‘Have Been Forgotten,’” Spiegel Online International, April 25, 2013, available at <http://www.spiegel.de/international/germany/historian-goetz-aly-on-nazi-euthanasia-program-and-inclusion-debate-a-896209.html> (last visited October 9, 2013).+(last+visited+October+9,+2013).>Google Scholar
Kelman, M. Gillian, L., Jumping the Queue: An Inquiry into the Legal Treatment of Students with Learning Disabilities (Cambridge: Harvard University Press, 1998).Google Scholar
See Silvers, , supra note 28.Google Scholar
See Degener, , supra note 14.Google Scholar
Parens, E., ed., Surgically Shaping Children: Technology, Ethics, and the Pursuit of Normality (Baltimore: Johns Hopkins University Press, 2006).Google Scholar
See Silvers, , supra note 28.Google Scholar
Turner, B. S., “Outline of the Theory of Human Rights,” Sociology 27, no. 3 (1993): 489–512, at 501–507.CrossRefGoogle Scholar
Putnam, R. A., “Neither a Beast nor a God,” Social Theory and Practice 26, no. 2 (2000): 177–200.CrossRefGoogle Scholar
Silvers, A. Francis, L. P., “Justice through Trust: Disability and the ‘Outlier’ Problem in Social Contract Theory,” Ethics 116, no. 1 (2005): 40–77.CrossRefGoogle Scholar
Id.Google Scholar
Sieghart, P., The Lawful Rights of Mankind: An Introduction to the International Legal Code of Human Rights (Oxford: Oxford University Press, 1985).Google Scholar
Carreira da Silva, F., “Outline of a Social Theory of Rights: A Neo-pragmatist Approach,” European Journal of Social Theory, forthcoming 2013.Google Scholar
Universal Declaration of Human Rights, at Arts. 3–19, available at <http://www.un.org/en/documents/udhr/> (last visited October 9, 2013).+(last+visited+October+9,+2013).>Google Scholar
Id, at Arts. 20, 21.Google Scholar
Id., at Arts. 22–27.Google Scholar
We have argued elsewhere that even people who are not articulate are able to formulate conceptions of their good that require respect from others (see Silvers and Francis, supra note 27; see Francis, L. P. Silvers, A., “Liberalism and Independently Scripted Accounts of the Good: Meeting the Challenge of Dependent Agency,” Social Theory and Practice (2007): 311–334.CrossRefGoogle Scholar
People with Disabilities and the Affordable Care Act, 42 U.S.C. § 12201(c) (2013), available at <http://www.healthcare.gov/law/information-for-you/people-with-disabilities.html> (last visited October 9, 2013).+(last+visited+October+9,+2013).>Google Scholar
For example, Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1115 (9th Cir. 2000). Courts have interpreted the statutory language – place of business – literally.Google Scholar
29 U.S.C. § 794 (2013).Google Scholar
42 U.S.C. § 12132 (2013).Google Scholar
Alexander v. Choate, 469 U.S. 287 (1985).CrossRefGoogle Scholar
Francis, L. P. Silvers, A., “Debilitating Alexander v. Choate: ‘Meaningful Access’ to Health Care for People with Disabilities,” Fordham Urban Law Journal 35, no. 3 (2008): 437–477.Google Scholar
Healthcare.gov website, available at <www.healthcare.gov> (last visited October 9, 2013).+(last+visited+October+9,+2013).>Google Scholar
Abelson, R., “Bearing Down on Health Costs,” New York Times, May 27, 2013, at B1, available at <http://www.nytimes.com/2013/05/28/business/cadillac-tax-health-insurance.html?pagewanted=all&_r=4&> (last visited October 9, 2013).+(last+visited+October+9,+2013).>Google Scholar
Gabel, J. et al., “Taxing Cadillac Plans may Produce Chevy Results,” Health Affairs 29, no. 1 (2010): 174–181.CrossRefGoogle Scholar
CMS, Center for Consumer Information & Insurance Oversight, “Additional Information on Proposed State Essential Health Benefits Benchmark Plans,” available at <http://www.cms.gov/CCIIO/Resources/Data-Resources/ehb.html> (last visited October 9, 2013).+(last+visited+October+9,+2013).>Google Scholar
Adelson, J., “Louisiana Cuts Health Care, Medicaid and Hospice Programs to Rebalance Budget,” available at <http://www.nola.com/politics/index.ssf/2012/12/louisiana_cuts_health_care_med.html> (last visited October 9, 2013). Medicaid Watch has a list of planned state cuts (and a few expansions, to be fair) as of April 30, 2013, available at <http://www.adapadvocacyassociation.org/pdf/Medicaid_Watch.pdf> (last visited October 9, 2013).+(last+visited+October+9,+2013).+Medicaid+Watch+has+a+list+of+planned+state+cuts+(and+a+few+expansions,+to+be+fair)+as+of+April+30,+2013,+available+at++(last+visited+October+9,+2013).>Google Scholar
Rabin, R. C., “Could Health Overhaul Incentive Hurt Some?” New York Times, April 12, 2010, available at <http://www.nytimes.com/2010/04/13/health/13land.html> (last visited October 9, 2013). For a criticism of such “fat taxes,” see Rausch, R. L., “Health Cover(age)ing: The Weight of Health Insurance Fat Taxes,” Nebraska Law Review 90, no. 4 (2012): 201–251.Google Scholar
PPACA § 2705(a)(1).Google Scholar