Amicus Curiae Brief — Doe v. Mutual of Omaha Insurance

MOTION FILED

BEL 2 = 1999,

No. 99-772

IN THE

Supreme Court of the United States

OCTOBER TERM, 1999

JOHN DOE and RICHARD SMITH,

Petitioners,

Vv.

MUTUAL OF OMAHA INSURANCE COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF,

AND BRIEF AMICUS CURIAE IN SUPPORT OF

PETITIONERS, OF THE INFECTIOUS DISEASES

SOCIETY OF AMERICA; NATIONAL ALLIANCE OF

STATE AND TERRITORIAL AIDS DIRECTORS;

NATIONAL ASSOCIATION OF PUBLIC HOSPITALS AND

HEALTH SYSTEMS; AMERICAN NURSES ASSOCIATION;

HIV QUALITY CARE NETWORK;

AND AMERICAN PUBLIC HEALTH ASSOCIATION

Daniel Bruner

Counsel of Record

Amanda Maisels

Laura Flegel

WHITMAN-WALKER CLINIC

LEGAL SERVICES

1407 S Street, NW

Washington, DC 20009

(202) 797-3527

aSi

Pree ereteon: sain

No. 99-772

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1999

JOHN DOE AND RICHARD SMITH,

Petitioners,

Vv.

MUTUAL OF OMAHA INSURANCE COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

MOTION OF THE INFECTIOUS DISEASES SOCIETY

OF AMERICA ET AL. FOR LEAVE TO FILE AMICUS

CURIAE BRIEF SUPPORTING PETITION FOR

CERTIORARI

Pursuant to Rule 37.2(b) of the Rules of the Supreme

Court of the United States, the Infectious Diseases Society of

America, National Alliance of State and Territorial AIDS

Directors, National Association of Public Hospitals and

Health Systems, American Nurses Association, HIV Quality

Care Network and American Public Health Association

("Health Care and Public Health Authorities") request leave

to file the attached amicus curiae brief in support of the

petition of John Doe and Richard Smith for a writ of

certiorari. The Petitioners have consented to the filing of this

i)

brief, but counsel for Mutual of Omaha Insurance Company

("Mutual") has informed the undersigned that the

Respondent does not consent. !

This case raises an issue that goes to the heart of the

Americans With Disabilities Act ("ADA"): whether the

statute applies to terms and conditions of health insurance

policies that discriminate on their face against policyholders

with Human Immunodeficiency Virus ("HIV") infection.

Health Care and Public Health Authorities bring a broader

perspective than the parties to their assessment of Mutual's

practice of restricting coverage of Acquired Immune

Deficiency Syndrome ("AIDS") and "AIDS-related

conditions" (Pet. App. 20a). Health Care and Public Health

Authorities include infectious disease specialists and other

health care professionals, hospitals, and clinics that are in the

forefront of medical treatment of persons with HIV/AIDS.

They also include public health officials and other public

health professionals who protect the public from the further

spread of HIV. Because of their expertise in HIV medicine

and public health dimensions of the pandemic, they are

uniquely suited to apprise the Court of how Mutual's AIDS

caps affect policyholders with HIV infection or AIDS and

the Nation's battle to contain HIV and AIDS.

To assist the Court in evaluating the petition for

certiorari, Health Care and Public Health Authorities discuss

in the attached amicus brief certain points not developed in

the petition for certiorari. First, the brief demonstrates how

HIV/AIDS health insurance caps block persons with HIV

from receiving adequate health care and, therefore, interfere

with HIV-infected policyholders’ ability to maintain their

health and remain full participants in the workforce and in

their communities. Thus, Mutual's practice undermines the

ADA's goal of removing discriminatory obstacles to the

' A letter from counsel for the Petitioners granting consent and a letter

from counsel for the Respondent withholding consent have been filed

separately with the Clerk of the Court.

independence of persons with disabilities and their full

participation in society, 42 U.S.C. § 12101(a)(8).

Second, the ADA's goals include reducing burdens on

taxpayers resulting from discrimination that forces persons

with disabilities into dependency. 42 U.S.C. § 12101(a)(9).

The amicus brief discusses how HIV/AIDS caps in private

health insurance increases costs to taxpayers by shifting

more of the burden of the HIV pandemic onto publicly-

funded health care and health insurance programs, and by

exacerbating the public health threats of tuberculosis and

drug-resistant strains of the HIV virus.

Third, the brief demonstrates how a cap on "AIDS-

related conditions" is a classic form of discrimination based

on disability because the cap limits coverage of the cost of

treating a plethora of illnesses when they occur in

policyholders with HIV/AIDS but not when those same

illnesses occur in other policyholders. The lower court's

conclusion that pneumonia, cancer and other such illnesses

are not the same illnesses when they occur in HIV-positive

and HIV-negative patients is unsupported by medical

science.

Fourth, the amicus brief explains that this case

presents an excellent opportunity for the Court to resolve the

issue of HIV/AIDS health insurance caps. Mutual's

stipulation in this case that it would offer no cost-based

defense for its practice simply reflects reality; the cost of

treating HIV/AIDS is comparable to or less than the cost of

treating other serious illnesses, and poses no threat to the

solvency of insurers or to the availability or affordability of

health insurance. The Court of Appeals’ decision has created

uncertainty as to the legal status of HIV/AIDS health

insurance caps that is intolerable to health care professionals

as well as to their patients.

Health Care ‘and Public Health Authorities

respectfully submit that the Court should be apprised of these

important dimensions of this case in deciding whether to

grant the petition for certiorari. Therefore, they request that

their motion for leave to file the attached brief be granted.

December 2, 1999

Respectfully Submitted,

Daniel Bruner

Counsel of Record

Amanda Maisels

Laura Flegel

WHITMAN-WALKER CLINIC

LEGAL SERVICES

1407 S Street, NW

Washington, DC 20009

(202) 797-3527

Counsel for Health Care and

Public Health Authorities

TABLE OF CONTENTS

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SUMMARY OF ARGUMENT cocccsossscsscascocssncsccssscsessasssaseses |

FR PRPUIIEED ieccietaiansddniesssiecascacsinpeumisditiciactieunaasicuasnuticiale 3

[. Insurance Discrimination Targeting HIV-

Related Medical Care Contradicts the ADA's

Goal of Removing Barriers to Independence

and Full Participation in Society by Persons

We ee INE cies cada dh carsensbdidasesencbnincncadidestacnnes 3

IT. Health Insurance Caps on HIV/AIDS Undermine

the ADA's Goal of Reducing Unnecessary

Burdens on Taxpayers by Increasing Costs of

Public Benefit and Health Care Programs and

By Creating Public Health Risks .............000..eee 9

IIT. Limiting Coverage of Medical Care Related to

a Disability Such as HIV/AIDS Strikes at the

UIE I TN PRI saci ph sald icietadedenclanseepniinis 12

IV. This Case Presents a Good Opportunity to

Resolve the Uncertainty Over the Legality of

PTE CORE COE GG AIDA, acccscssisvcsscccccssspassiasesesone 17

RIT siinehbonictasased da obcocnitessneniaidlntenninapapioheerssseiaton 20

APPENDIX: STATEMENTS OF INTEREST OF

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TABLE OF AUTHORITIES

CASES

Bragdon v. Abbott, 524 U.S. 624 (1998) oo... eee eeeeees 5

Carparts Dist. Center, Inc. v. Automotive Wholesaler's

Ass'n of New England, Inc., 987 F. Supp. 77 (D.N.H.

PEP cshsitsintininsancnssenisnsesshanetganstticesuncabbelindansasteniapnigiergemioctin 19

Doukas v. Metropolitan Life Ins. Co., 950 F. Supp. 422

pe as: PIPE axis iiaksekes Abie Aicsane den ptuanabsanatoetiaswexainiaabsoibunins 4

Olmstead v. L.C., — U.S. __, 119 S. Ct. 2176 (1999) ... 2, 14

Parker v. Metropolitan Life Ins. Co., 99 F.3d 181 (6th

Cir. 1996), vacated, op. on reh'g, 121 F.3d 1006 (en

banc), cert. denied, 522 U.S. 1084, 118 S. Ct. 871

Lg er eee SOLO ELA FORO POPS EHP aa TY SMR ied BF DRED TRS 4

Sutton vy. United Air Lines, Inc., 119 S. Ct. 2139 (1999) ..... 4

FEDERAL STATUTES AND LEGISLATIVE HISTORY

Americans with Disabilities Act, 42 U.S.C.

Ue BN aia ceveninerdontcacevexacnontsscsdectinibick passim

ik SE Re. eB UAE OE Sckesniessscpupnasianclobabsasienmions 7

Te Clase 2 PIT P iscissctcesassvetecindidabaahlaptaniin 13

BE Rides BE PARED ciaterciiscriernieinianieinnian ae 2

eh te |, SRT eEm Ry OS

SG raeics a OW RE Meactantsesidiisdncspabasialesbenisanbieadannba) 3

ae em Si a es 3

ate E De || 7) a anaes 17,19

Employee Retirement Income Security Act, 29 U.S.C.

ii oii 13

Title II of the Social Security Act, 42 U.S.C. § 401 ef seg.

WE UIT, GA TTGIIIAY ssicecccacecansscsseceasnssesccaceces. 8

136 Cong. Rec. $9692 (July 13, 1990) (statement of

CT En ey TO ET ny 2k 4

OTHER AUTHORITIES

AIDS Claim Fears Unfounded, Business Insurance.

FU i NE caret i 18

American Council of Life Insurance and Health

Insurance Association of America, 4/DS-Related

Insurance Claims Paid in 1997, 1 AIDS Reference

Guide (Atlantic Info. Services, Inc.) 9316 (Nov. 1998) ..... 17

John G. Bartlett, 1999 Medical Management of HIV

Sc cri scscisg TO FRO Ca 5

John G. Bartlett, Other HIV-Related Pneumonias. in

The Medical Management of AIDS 331 (Merle A.

Sande & Paul A. Volberding eds., 6" ed. 1999) ................ 16

Samuel A. Bozzette et al., The Care of HI} -Infected

Adults in the United States, 339 New Eng. J. of Med.

sls tang co No nr SO 10

1V

Brief for the United States as Amicus Curiae,

Greenberg v. H & H Music Co., 503 U.S. 958

(1992) (No. 91-1283), cert. denied, 506 U.S. 981

IEE sinh sss sancticnteccaaiies neg erstecamt chi cenanntaaaeacnaieicam ome ais: 13

Centers for Disease Control and Prevention, Health

Insurance Coverage and Receipt of Preventive

Health Services -- United States, 1993, 273

Re ie EE as an usec khasadmeneincesebiniseecie 6, 11

Centers for Disease Control and Prevention,

Prevention and Treatment of Tuberculosis Among

Patients Infected With Human Immunodeficiency

Virus: Principles of Therapy and Revised

Recommendations, 47 M.M.W.R. RR-20 (1998) ............... 12

Henry F. Chambers, Tuberculosis in the HIV-

Infected Patient, in The Medical Management

of AIDS 353 (Merle A. Sande & Paul A.

Volberding eds., 6" ed. 1999) ..c.cececescesseseeseeeeeen 12, 15, 16

Cost of Managed HIV Care Remains Stable, Study

Says, AIDS Policy & Law, Oct. 16, 1998, at 15... . 1]

William E. Cunningham et al., Access to

Community-Based Medical Services and Number

of Hospitalizations Among Patients With HIV

Disease: Are They Related?, 13 J. of A.1.D.S.

and Hum. Retrovirology 327 (1996) ..........cceeeeeseseeeeeeeees 6,7

Steven G. Deeks & Paul A. Volberding,

Antiretroviral Therapy, in The Medical

Management of AIDS 97 (Merle A. Sande &

Paul A. Volberding eds., 6” ed. 1999) .....cceccecscecseeeees 6, 7, 15

Vv

Suzanne H. Donovan, Tuberculosis and HIV

Infection, in AIDS/HIV Reference Guide for

Medical Professionals 193 (John L. F ahey &

Diana Shin Flemmig eds., 4" ed. (1997) .....0000-00-0-.... 11,12

W. Lawrence Drew et al., Management of

Herpesvirus Infections (Cytomegalovirus, Herpes

Simplex Virus, and Varicella-Zoster Virus), in

The Medical Management of AIDS 429 (Merle A.

Sande & Paul A. Volberding eds., 6" ed. 1999) ............... 15

Anthony S. Fauci and Clifford Lane, Human

Immunodeficiency Virus (HIV) Disease: AIDS

and Related Disorders, in 2 Harrison's Principles

of Internal Medicine 179} (Anthony S. Fauci et al.

OM HT OR TU iss scisiscscsecdctssrsseseicsocenes 8-9, 16

John A. Fleishman & Vincent Mor, /nsurance

Status Among People With AIDS: Relationships

With Sociodemographic Characteristics and

Service Use, 30 Inquiry 180 (1993) o.cccccccccccccccccecececcececesn. 10

Joel E. Gallant et al., The Impact of Prophylaxis on

Outcome and Resource Utilization in Pneumocystis

carinii Pneumonia, 107 Chest 1018 (1995) ....cccccccc000-. 3 as

Jesse Green & Peter S. Arno, The “Medicaidization”

of AIDS: Trends in the Financing of HIV-Related

Medical Care, 264 J.A.M.A. 1261 (1990) occcccccccccccsceee. 7,10

Frederick M. Hecht & Margaret A. Chesney,

Adherence to HIV Therapy, in The Medical

Management of AIDS 117 (Merle A. Sande &

Paul A. Volberding eds., 6" ed. 1999) o.oo cccccccccccccceceseee-. 7,12

Gregory M. Herek, AJDS and Stigma, 42 Am.

Behavioral Sci. 1106 (1999) oooecocccccccccsccsescsseceeeececececececee. 19

vi

Laurence Huang & John D. Stansell, Pneumocystis

carinii Pneumonia, in The Medical Management of

AIDS 305 (Merle A. Sande & Paul A. Volberding

ee ad | aetna si ty 16

Lawrence D. Kaplan & Donald W. Northfelt,

Malignancies Associated with AIDS, in The

Medical Management of AIDS 467 (Merle A.

Sande & Paul A. Volberding eds., 6" ed. 1999) .......... 15, 16

Mitchell H. Katz et al., Insurance Type and

Satisfaction with Medical Care Among HIV -

Infected Men, 14 J. of A..D.S. and Hum.

POMOVIPRIOEY FD CUGF TD sccasssscisincaccasscinssasensanipesideadepiaaias 6, 10

Philip Keiser et al., Protease Inhibitor-Based

Therapy Is Associated with Decreased HIV-

Related Health Care Costs in Men Treated at

a Veterans Administration Hospital, 20 J. of

A.1.D.S. and Hum. Retrovirology 28 (1999) .........0...0. 1]

Kathryn Kocurek & Harry Hollander, Primary and

Preventive Care for the HlV-Infected Adult, in The

Medical Management of AIDS 125 (Merle A. Sande

& Paul A. Volberding eds., 6™ ed. 1999) ......ccceccceceseceeeeeee 16

Nancy R. Mansfield, Evolving Limitations on

Coverage for AIDS: Implications for Health

Insurers and Employers Under the ADA and

ERISA, 35 Tort & Ins. L. J. 1177 (1999) ..............000000000. 18,19

Vil

Samuel A. Marcosson, Who is "Us" and Who

is "Them" -- Common Threads and the

Discriminatory Cut-Off of Health Care Benefits

for AIDS UnderERISA and the Americans With

Disabilities Act, 44 Am. U. L. Rev. 36] | 19

Richard Moore, HIV Therapy and Prevention:

Economics and Cost-Effectiveness, The Hopkins

HIV Report (Sept. 1998) <http://www.hopkins-

aids.edu/publications/report/sept98_2.html> ..................... 1]

Shantel M. Mullin et al., Antiretroviral Adverse

Effects and Interactions: Clinical Recognition and

Management, in The Medical Management of AIDS

79 (Merle A. Sande & Paul A. Volberding eds., 6"

ooo iccavseeseseacesencecoce+e--o-eo-e-.-.. 15

National Council on Disability, On the Threshold of

Independence (1988) <http://www.ncd.gov/

publications/threshold. htm > 0.0...0.0.c.ccccccccccceccsccccccsesececeecece. 4

National Council on Disability, Toward Independence

(1986) <http://www.ncd.gov/publications/toward.

a ES 4

Meg D. Newman & Constance B. Wofsy, Women

and HIV Disease, in The Medical Management of

AIDS 537 (Merle A. Sande & Paul A. Volberding

I sis fabesedccssnseissceseseccccnnnesee oe 15

Nancy R. Reynolds, /nitiatives to Get HIV-Infected

Patients to Adhere to Their Treatment Regimens, Drug

Benefit Trends (Nov. 1998) <http://www.medscape.

com/SCP/DBT/1998/v10.n11/d3361 .reyn/d3361.

ee liccccarnseassarnscsossocensecsosececcoseocseeesse. 7

Vill

Dennis R. Schaberg, Case Commentary, Hospital

Practane, Dae. 15). TP Re GRIT E icinciincsicciestabtinisbesecnaccietin 5

Martin F. Shapiro et al., Variations in the Care of

H1V-Infected Adults in the United States, 281

PP Ps EDIT ckiicieadctesccvcunabeatteantemtbecmaiaceibeabacs 5,6

Steadman's Concise Medical Dictionary for the Health

Professions (John H. Dirckx ed., 3d ed. 1997) .0..........0002.. 16

Robert Steinbrook, Caring for People with Human

Immunodeficiency Virus Infection, 339 New Eng. J.

OE 2 Fae 0 OE sn ll eee 5. 6, 7

Taber's Cyclopedic Medical Dictionary (17th ed. 1993) ... 16

Andrew H. Talal & Douglas T. Dieterich,

Gastrointestinal and Hepatic Manifestations of HIV

Infection, in The Medical Management of AIDS 195

(Merle A. Sande & Paul A. Volberding eds., 6" ed.

PA sBisssdinash paiuyascncabistinaddeeneeteizene cai ticaetiauaasias mineatnt alot 15

United States Equal Employment Opportunity

Commission, EEOC Docket of ADA Litigation as

of March 31, 1998, Trial Docket — Resolved Cases

(visited November 9, 1999) <http://www.eeoc.

BOV/GOCHAGMICIIE vccicsciessnsissssarscexnbnsarones ip dsiilalieasitinen’ 18-19

United States General Accounting Office,

HIV/AIDS Drugs; Funding Implications of New

Combination Therapies for Federal and State

~ Programs, GAO/HEHS-99-2 (October 1998) ........... 6, 7, 10

Sharon L. Zucconi et al., /mpact of

Immunosuppression on Health Care Use by

Men in the Multicenter AIDS Cohort Study (MACS),

7 J. of A.I.D.S. and Hum. Retrovirology 607 (1994) ........... 7

tar dee

ate alt

INTEREST OF THE AMICI CURIAE

This amicus curiae brief is submitted by the

Infectious Diseases Society of America, National Alliance of

State and Territorial AIDS Directors, National Association

of Public Hospitals and Health Systems, American Nurses

Association, HIV Quality Care Network, and American

Public Health Association in support of the petition of John

Doe and Richard Smith for a writ of certiorari.! Amici are

national organizations representing health care providers,

hospitals and outpatient clinics, public health officials and

public health professionals. Amici’s members provide

medical care and treatment to persons infected with the

Human Immunodeficiency Virus (“HIV”) and persons with

Acquired Immune Deficiency Syndrome (“AIDS”) and

protect the public from the further spread of HIV and AIDS.

The statements of interest of the amici are included in the

appendix to this brief.

The Respondent has not consented to the filing of this

brief. It is being submitted with a motion for leave to file 2

SUMMARY OF ARGUMENT

This case raises an issue of great public importance

that goes to the heart of the ADA. Mutual of Omaha

Insurance Company ("Mutual") has capped coverage for

medical treatment related to HIV/AIDS or "AIDS-related

conditions" (hereinafter "AIDS caps") at levels far below the

coverage it provides for policyholders without HIV

infection. Mutual's practice undermines the ADA's goals of

' This brief has been authored in its entirety by undersigned counsel for

the amici. No person or entity other than the named amici and their

counsel made any monetary contribution to the preparation and

submission of this brief.

* A letter from counsel for the Petitioners granting consent and a letter

from counsel for the Respondent withholding consent have been filed

separately with the Clerk of the Court.

tv

"full participation, independent living, and economic self-

sufficiency" of persons with disabilities, 42 U.S.C. §

12101(a)(8), and reduction of the cost to taxpayers of public

programs to care for unnecessarily dependent disabled

persons, § 12101(a)(9). The caps substantially impede the

ability of policyholders with HIV to obtain adequate medical

care and, thus, their ability to be self-sufficient, to remain in

the workplace and otherwise to fully participate in their

communities. As policyholders with HIV become sicker,

Mutual's AIDS caps will accelerate their decline by limiting

coverage of virtually all their health care needs. AIDS health

insurance caps increase costs to taxpayers by forcing more

HIV-positive policyholders to rely on publicly funded health

care and cash benefit programs. Such caps also exacerbate

public health risks, particularly tuberculosis and transmission

of strains of HIV that have become resistant to current

antiretroviral medications because of interruptions in

treatment.

The Court of Appeals held that Mutual's AIDS caps

do not constitute disability discrimination because Mutual

has restricted coverage for medical tieeds related to this

particular disability but has not denied all coverage for

persons with HIV/AIDS. Whether a coverage cap that

singles out medical care related to a disability is disability-

based discrimination is an important question about the

scope of the ADA that warrants the Court's review,

particularly in light of the broad reading of the ADA's

prohibition of disability discrimination in Olmstead v. L.C.,

__ US. __, 119 S. Ct. 2176 (1999). Even under a narrower

reading of the ADA, Mutual's AIDS caps are discriminatory

because they deny coverage of many diseases when they

occur in HIV-infected policyholders while covering those

same diseases when they occur in policyholders without HIV

infection, thereby treating similarly situated policyholders

differently, solely on the basis of disability.

Resolution of the questions presented by this case

will resolve the legality of HIV/AIDS caps under the ADA,

POPES -

4

a

not only for Mutual's current insurance policies but also for

the industry generally. The ADA permits disparate treatment

of persons with disabilities in insurance when based on a

difference in costs, but Mutual concedes that there is no cost-

related justification for its AIDS caps. Mutual's stipulations

reflect reality: the cost of treating HIV infection and AIDS is

comparable to, or lower than, the cost of treating many other

serious illnesses. The lower court's decision may lead to a

resurgence of AIDS caps and creates substantial uncertainty

as to their legality. This Court's review is urgently needed to

resolve this uncertainty.

ARGUMENT

b Insurance Discrimination Targeting HIV-Related

Medical Care Contradicts the ADA's Goal of

Removing Barriers to Independence and Full

Participation in Society by Persons With

Disabilities.

Congress’ aims in enacting the ADA included “full

participation, independent living, and economic self-

sufficiency” of persons with disabilities, 42 U.S.C. §

12101(a)(8). By expressly including insurance in Title III of

the ADA and defining discrimination in Title I to include

discrimination in employment-related fringe _ benefits,

Congress recognized that discrimination in insurance is a

major obstacle to the ability of persons with disabilities to be

independent and to contribute to society, and increases their

dependence on taxpayer-funded public programs.”

: Although this case arises under Title II] of the ADA (which applies to

goods and services provided by privately owned or operated public

accommodations), the Court of Appeals’ analysis appears to apply with

equal force to discrimination in employer-provided health insurance and

other fringe benefits under ADA Title I. See 42 U.S.C. § 12112(a) &

(b)(2) (prohibiting discrimination in the terms, conditions and privileges

of employment, including employee fringe benefits).

Commenting on Congress’ intent to include the

insurance industry within the scope of Title III of the ADA,

one federal court observed:

There can 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.

Doukas v. Metropolitan Life Ins. Co., 950 F. Supp. 422, 427

(D. N.H. 1996) (quoting Parker v. Metropolitan Life Ins.

Co., 99 F.3d 181 (6th Cir. 1996), vacated, op. on reh'g, 121

F.3d 1006 (en banc), cert. denied, 522 U.S. 1084, 118 S. Ct.

871 (1998)).

Because health is critical to one's ability to function,

health insurance is particularly critical for persons with

disabilities. In its 1988 report to Congress, the National

Council on Disability (formerly the National Council on the

Handicapped) declared: "Access to health insurance is

certainly one key toward independent functioning." National

Council on Disability, On the Threshold of Independence 55

(1988) <http://www.ncd.gov/publications/threshold.html>.

Two years earlier, the Council had recommended that

Congress enact a comprehensive new civil rights law to

protect persons with disabilities and that insurance

discrimination be included in the new law's scope. National

Council on Disability, Toward Independence 18 (1986)

<http://www.ncd.gov/publications/toward.html>. The

National Council on Disability played a major role in the

formulation of the ADA. 136 Cong. Rec. $9692 (July 13,

1990) (statement of Senator Harkin). In Sutton v. United Air

Lines, Inc., 119 S. Ct. 2139, 2147-48 (1999), this Court

relied on the 1986 and 1988 reports of the Council in

determining the intent of another provision of the ADA, the

Seat ina bt aN aE Ni OE ee Sn ie Ph Ra

te aA NS sa ER

Congressional finding in 42 U.S.C. § 12101(a)(1).

Discrimination in health insurance is particularly

corrosive of the independence of persons with HIV/AIDS

and their full participation in society. HIV infection "affects

the need for ... health care," Bragdon vy. Abbott, 524 U.S.

624, 656 (1998) (Ginsburg, J., concurring), in far-reaching

ways. The course of HIV infection -- when and perhaps

even whether the infected person will become incapacitated

by illness -- is determined by access to prompt, continuous

medical treatment.’ Recent advances in medical treatments

are enabling many persons with HIV to Stay relatively

healthy and to remain productive members of the workforce

and participants in their communities. AIDS caps in health

insurance prevent persons with HIV from taking full

advantage of these treatment advances and increase the

likelihood that their independence and ability to function will

be curtailed by illness and even death.

HIV-infected persons who are uninsured or under-

insured have less access to medical care.’ A recent major

study of health care utilization by HIV-positive adults found

that having no insurance, and having Medicaid rather than

private insurance, were among the most important

explanations for deficient access to and utilization of health

care services.° The study concluded that “being uninsured

and having HIV is a serious problem and places the

* See, e.g., Dennis R. Schaberg, Case Commentary, Hospital Practice,

Dec. 15, 1998, at 69-71; Joel E. Gallant et al., The Impact of Prophylaxis

on Outcome and Resource Utilization in Pneumocystis carinii

Pneumonia, 107 Chest 1018, 1022 (1995). See also John G. Bartlett,

1999 Medical Management of HIV Infection 3 (antiretroviral therapy,

care by a physician with HIV expertise, and prophylaxis for HIV-related

opportunistic infections are shown to prolong survival of HIV-infected

atients).

Robert Steinbrook, Caring for People with Human Immunodeficiency

Virus Infection, 339 New Eng. J. of Med. 1926, 1927 (1998).

° Martin F. Shapiro et al., Variations in the Care of HIV-Infected Adults

in the United States, 281 J.A.M.A. 2305, 2314 (1999).

individual at risk of not obtaining adequate care.”’ Other

recent studies have found that uninsured HIV-infected

persons are less likely to receive outpatient medical care than

insured HIV-infected patients,® and more than twice as likely

as those with insurance to report having no usual place of

medical care.’

HIV medications, which delay the onset of AIDS and

improve quality of life, are a key element in HIV treatment

and should be started early in the disease's history.'° A

major recent study found that HIV-positive persons with no

insurance or with Medicaid were significantly less likely

than those with private insurance ever to have received

antiretroviral therapy.'' Even if some individuals can obtain

the anti-HIV medications without health insurance, through a

State AIDS Drug Assistance Program (ADAP), the benefit

of those medications cannot be realized without an ongoing

relationship with a primary care provider who is an HIV

” Id. at 2314.

* Mitchell H. Katz et al., /nsurance Type and Satisfaction with Medical

Care Among HlV-Infected Men, 14 J. of AJLD.S. and Hum.

Retrovirology 35, 41 (1997); William E. Cunningham et al., Access to

Community-Based Medical Services and Number of Hospitalizations

Among Patients With HIV Disease: Are They Related?, 13 J. of A.1.D.S.

and Hum. Retrovirology 327, 334 (1996).

° Centers for Disease Control and Prevention, Health Insurance

Coverage and Receipt of Preventive Health Services -- United States,

1993, 273 J.A.M.A. 1083, 1083 (1995).

'° Steven G. Deeks & Paul A. Volberding, Antiretroviral Therapy, in

The Medical Management of AIDS 97, 97, 109 (Merle A. Sande & Paul

A. Volberding eds., 6™ ed. 1999).

'' Shapiro, supra note 6, at 2312-13.

'> ADAP programs provide AIDS medications for lower-income persons

who are uninsured or who have inadequate prescription-drug coverage.

State ADAP programs provide only prescription drugs, not other medical

coverage or services. Some State programs cover only limited HIV-

related drugs, limit eligibility on the basis of income and other factors,

and have waiting lists. United States General Accounting Office,

HIV/AIDS Drugs; Funding Implications of New Combination Therapies

for Federal and State Programs, GAO/HEHS-99-2, at 6, 17-18 (October

1998) (“GAO Report”), App. I; Steinbrook, supra note 5, at 1927.

oo ee ee ee ee

expert. A patient on anti-HIV drug therapy needs frequent

follow-up appointments with an HIV expert to monitor the

drugs’ effectiveness and to diagnose and treat the numerous,

potentially dangerous side effects that the patient may

experience.'? Further, consistent adherence to antiretroviral

therapy is essential to its effectiveness, because non-

adherence can cause the virus to mutate into drug-resistant

strains. Non-adherence to a particular drug therapy can even

result in viral resistance to other, untried antiretroviral

therapies.'* An ongoing patient-provider relationship has

been shown to be one of the most important factors

influencing patients' adherence to anti-HIV drug regimens,

particularly because of the complexity of the regimens and

their side effects.'* Individuals without private health

insurance are less likely to have an ongoing relationship with

a primary care provider. '®

Public health insurance programs — Medicaid and

Medicare — do not provide an adequate alternative to many

individuals who are subject to an HIV/AIDS cap in their

private insurance plans. Many HIV-positive individuals are

ineligible for Medicaid because they are not sick enough or

do not have a sufficiently low income to qualify for

Medicaid.'’ Medicare is tied to eligibility for Social Security

13

Deeks & Volberding, supra note 10, at 97, 99: Nancy R. Reynolds,

Initiatives to Get H1V-Infected Patients to Adhere to Their Treatment

Regimens, Drug Benefit Trends (Nov. 1998) at 23, section 2

<http://www.medscape.com/SCP/DBT/1998/v10.n11/d3361. reyn/d3361.

reyn-01.html>.

'* Reynolds, supra note 13, at section 1; Frederick M. Hecht & Margaret

A. Chesney, Adherence to HIV Therapy, in The Medical Management of

AIDS 117, 117 (Merle A. Sande & Paul A. Volberding eds., 6" ed. 1999).

° Reynolds, supra note 13, at sections 2, 4.

'° Cunningham, supra note 8, at 334; Sharon L. Zucconi et al. Impact of

Immunosuppression on Health Care Use by Men in the Multicenter AIDS

Cohort Study (MACS), 7 J. of A.1.D.S. and Hum. Retrovirology 607,

613-14 (1994); Jesse Green & Peter S. Amo, The “Medicaidization” of

AIDS: Trends in the Financing of HIV-Related Medical Care, 264

J.A.M.A. 1261, 1265 (1990).

"GAO Report, supra note 12, at 6: Steinbrook. supra note 5, at 1927.

Disability Insurance (“SSDI”) benefits; like Medicaid,

therefore, Medicare is only available to persons who are very

ill. 42 U.S.C. § 423(d)(2)(A).

The record in this case illustrates the painful, risky

choices that Mutual’s AIDS caps have forced on the

Petitioners. Mr. Doe and Mr. Smith have participated in

experimental drug trials and forgone medical care to try to

save coverage dollars for their future needs. (Pet. App. 34a-

35a (Mr. Doe), 40a-41a (Mr. Smith).)

As HIV progressively ravages the immune system,

Mutual’s AIDS caps will accelerate the decline of HIV-

positive policyholders because the caps will apply to more

and more of the medical care that the HIV-positive

policyholder needs. The Court of Appeals’ pronouncement

that “[Mutual’s] policies give ... people [with AIDS] as

much coverage for [medical] needs [unrelated to AIDS] as

the policies give people who don’t have AIDS” (Pet. App.

3a) fails to appreciate the broad and devastating impact of

Mutual's caps, which apply to

any expense relating to AIDS or ARC (which can

include, but is not limited to, all expenses related to

infection with HIV including = antiviral or

antiretroviral drugs or therapies, prophylaxis for

prevention of opportunistic infection or illness,

treatment for any opportunistic infection or resulting

illness, or any diagnostic testing for HIV or AIDS).

(Pet. App. 20a-2la.) Persons with more advanced HIV

infection or AIDS are subject to a staggering array of

bacterial, viral, and fungal infections; and debilitating or life-

threatening neoplastic, neurological, hematologic, oral,

ophthalmic, gastrointestinal, pulmonary, gynecological,

dermatological, and other diseases and complications.'*

'S Anthony S. Fauci and Clifford Lane, Human Immunodeficiency Virus

(HIV) Disease: AIDS and Related Disorders, in 2 Harrison's Principles

Po at ee hems EE

"Virtually every organ in the body is vulnerable to disease ...

as a consequence of HIV infection...."'? Mutual's caps

restrict coverage of this plethora of diseases. Thus. while a

policyholder with HIV might be able to obtain unrestricted

coverage of a broken leg (to use the lower court's example,

Pet. App. 7a) -- unless the recovery from the broken leg were

complicated by a compromised immune system or HIV-

related illnesses -- most other medical needs of a

policyholder with advanced HIV infection or AIDS are

likely to fall under the cap because they will be directly or

indirectly related to the HIV infection.

Thus, Mutual's caps force persons such as Mr. Doe

and Mr. Smith to endanger their health and eviscerate the

ADA's goal of removing discriminatory barriers to the

independence and _ self-sufficiency of persons with

disabilities.

II. Health Insurance Caps on HIV/AIDS Undermine

the ADA's Goal of Reducing Unnecessary

Burdens on Taxpayers by Increasing Costs of

Public Benefit and Health Care Programs and By

Creating Public Health Risks.

HIV/AIDS caps in private health insurance also pose

a significant financial burden on the public fisc, by forcing

persons with HIV/AIDS into otherwise unnecessary

dependency on public health care and cash benefit programs.

This result is contrary to the ADA’s aim of reducing the

“costs [to] the United States [of] billions of dollars in

unnecessary expenses resulting from dependency and

nonproductivity” caused by discrimination. 42 U.S.C. §

12101(a)(9).

Without adequate health care from the onset of an

HIV or AIDS diagnosis, an infected person's health is likely

of Internal Medicine 1791, 1819-1845 (Anthony S. Fauci et al. eds. 14"

ed. 1998).

'" Id. at 1040.

10

to deteriorate at a much more rapid rate, resulting. in

debilitating illnesses. Persons who otherwise could remain

in the workplace perhaps for many years will be forced to

stop working and resort to the SSDI or Supplemental

Security Income ("SSI") programs; Medicaid and/or

Medicare; and/or their State's ADAP program. It would fly

in the face of Congress' stated intent to countenance a form

of insurance discrimination that would exacerbate the

already substantial burden on these public programs.

Even now, HIV-positive patients are three times as

likely to be insured by Medicaid as the general population,

and nine times as likely to have Medicare coverage.*’ The

federal government pays more than half the costs for

HIV/AIDS treatment in the United States.*’ Further, HIV-

positive individuals with public insurance and those with no

insurance depend largely on public hospitals and clinics.”

As medical science advances and new drug treatments for

HIV become available, ADAP programs must pay increasing

amounts to supply more drugs to more people.”> Although

the costs of anti-HIV medications are offset by savings in

other medical costs, particularly hospitalization costs (see

infra, page 11), ADAP programs cover only prescription

drugs and, therefore, cannot capture the offsetting cost

reductions.

*° Samuel A. Bozzette et al., The Care of HIV-Infected Adults in the

United States, 339 New Eng. J. of Med. 1897, 1902 (1998).

7! GAO Report, supra note 12, at 2.

2 Green & Aro, supra note 16, at 1264 (1990) (AIDS patients with

Medicaid are much more likely than privately insured AIDS patients to

be hospitalized in public hospitals); Katz, supra note 8, at 41 (publicly

insured men were more likely than others to receive care in public clinics

(53.2% as compared to 19.4%)); John A. Fleishman & Vincent Mor,

Insurance Status Among People With AIDS: Relationships With

Sociodemographic Characteristics and Service Use, 30 Inquiry 180, 180,

185 (1993) (95% of the uninsured and the publicly insured rely on public

hospital clinics as their source of medical care).

°° GAO Report, supra note 12, at 8, 10, 12, 13.

Uninsured persons impose additional costs on society

because they are less likely to receive preventive health

services, which means that the health care they eventually

require is more expensive.”* Antiretroviral drug therapies

result in an overall reduction in the costs of treating HIV

infection because they reduce the need for inpatient and

acute care. A study at The Johns Hopkins Medical

Institutions found that the failure among many HIV-positive

persons to receive preventive treatment for Pneumocystis

carinii pneumonia ("PCP") not only shortened their lives

needlessly, but also greatly increased medical costs. The

researchers estimated that such preventive treatment could

have averted nearly $5 million in hospital costs in Maryland

in 1991.76

HIV/AIDS health insurance caps also impose costs

on society by increasing the risk of transmission of

tuberculosis ("TB") and strains of HIV that are resistant to

current drug therapies. HIV infection is particularly

associated with multidrug-resistant TB, which has become a

serious public health problem in this country.”’ The CDC

has emphasized that prompt diagnosis and treatment of TB in

persons with HIV is critical not only to the health of those

individuals, but also to prevent the spread of TB, including

multidrug-resistant TB, to others with HIV and without

** CDC, Health Insurance Coverage, supra note 9, at 1084; Gallant.

supra note 4, at 1021.

* Philip Keiser et al., Protease Inhibitor-Based Therapy Is Associated

with Decreased HIV-Related Health Care Costs in Men Treated at a

Veterans Administration Hospital, 20 J. of A.DS. and Hum.

Retrovirology 28, 31 (1999); Richard Moore, HIV Therapy and

Prevention: Economics and Cost-Effectiveness, The Hopkins HIV Report

(Sept. 1998) <http://www.hopkins-aids.edu/publications/report/sept98_2.

html>; Cost of Managed HIV Care Remains Stable, Study Says, AIDS

Policy & Law, Oct. 16, 1998, at 15.

°° Gallant, supra note 4, at 1021.

*” Suzanne H. Donovan, Tuberculosis and HIV Infection, in AIDS/HIV

Reference Guide for Medical Professionals 193, 193 (John L. Fahey &

Diana Shin Flemmig eds., 4" ed. 1997).

12

HIV2* As noted in one guide for medical professionals,

“Delays in the diagnosis and treatment of pulmonary TB

contribute to increased morbidity, and mortality, and

nosocomial spread of tuberculosis [i.e., the spread of TB in a

hospital or infirmary].”’’ Thus, by discouraging HIV-

infected policyholders from regular medical examinations.

Mutual's AIDS caps make it more likely that TB will

progress, and be transmitted to others, before it is detected.

In addition, as discussed at page 7, supra, failure to

consistently adhere to an anti-HIV drug therapy poses a

danger that the virus will mutate and become resistant to the

drugs in question and even to other antiretroviral drugs. A

strain of HIV that has become drug-resistant in the host

remains drug-resistant if it is transmitted to another person.

Therefore, non-adherence to antiretroviral drug therapy is a

serious public health threat.°”

Thus, Mutual's AIDS caps may force HIV-positive

policyholders to rely on publicly funded health and cash

benefit programs, and may exacerbate serious public health

problems. These consequences undermine the ADA's goal

of reducing the unnecessary public costs of dependency .

caused by discrimination.

Ill. Limiting Coverage of Medical Care Related to a

Disability Such as HIV/AIDS Strikes at the Heart

of the ADA.

* Centers for Disease Control and Prevention, Prevention and

Treatment of Tuberculosis Among Patients Infected With Human

Immunodeficiency Virus: Principles of Therapy and_ Revised

Recommendations, 47 M.M.W.R. RR-20, at 1, 6, 22, 24 (1998).

*” Donovan, supra note 27, at 196 (emphasis supplied). See also Henry

F. Chambers, Tuberculosis in the HIV-Infected Patient, in The Medical

Management of AIDS 353, 353 (Merle A. Sande & Paul A. Volberding

eds., 6" ed. 1999) (discussing documented nosocomial outbreaks of

mutidrug-resistant TB resulting from delays in diagnosis and treatment).

© Hecht & Chesney, supra note 14, at 117.

>

13

Mutual's AIDS caps, which Mutual admits have no

cost justification, appear to be a clear example of the “unfair

and unnecessary discrimination and prejudice” against a

stigmatized, vulnerable minority that the ADA was intended

to eradicate. 42 US.C. § 12101(a)(9); see also §

12101(a)(7). Shortly after the ADA was enacted, the

Solicitor General characterized AIDS caps as discriminatory

under the ADA, in a case involving the legality of an AIDS

cap in an employer-sponsored health plan under the

Employee Retirement Income Security Act ("ERISA"). In

responding to this Court’s invitation to state the views of the

United States, the Solicitor General concluded that ERISA

did not cover the type of AIDS discrimination at issue, but

that the ADA would apply:

[T'}his case is really about discrimination against

persons with AIDS .... The legality of such

discrimination ... will undoubtedly be tested in cases

arising under the ... ADA ....

Because Congress directly addressed the

subject of AIDS discrimination in employee benefit

plans under the ADA, claims such as that in issue

will likely turn on the requirements imposed on

employers under that law.°!

As noted by the Petitioners in their petition for certiorari,

since the enactment of the ADA the Department of Justice

and the EEOC have taken the position that HIV/AIDS health

insurance caps are covered by ADA Title | (for employer-

sponsored fringe benefit plans) and ADA Title III (for

policies sold to the general public by insurance companies),

and the EEOC has aggressively challenged HIV/AIDS caps

in employment-related health insurance plans.

*' Brief for the United States as Amicus Curiae at 17-18, Greenberg v. H

& H Music Co., 503 U.S. 958 (1992) (No. 91-1283), cert. denied, 506

U.S. 981 (1992).

14

Nevertheless, the Court of Appeals below concluded

that Mutual's AIDS caps are not discrimination under the

ADA because they restrict insurance coverage of a particular

illness rather than all insurance for persons with a disability.

However, a cap on HIV/AIDS coverage applies to ail

policyholders with HIV infection or AIDS and only to those

policyholders. It provides policyholders with HIV infection

or AIDS with substantially less coverage for their

hospitalizations, medical examinations and tests, prescription

drugs, and other treatments, than is provided to policyholders

who do not have HIV infection. The fact that Mutual has

limited all medical coverage related to a targeted disability,

rather than all medical coverage for policyholders with that

targeted disability, does not make its practice less

discriminatory. The cap is still a limitation that applies only

to a class of policyholders defined by a disability. Mutual’s

AIDS cap clearly is_ disability-based discrimination,

particularly in light of the "comprehensive view of the

concept of discrimination advanced in the ADA" that ‘this

Court recognized in Olmstead, 119 S. Ct. at 2186.

Mutual’s AIDS caps are discriminatory even under

the definition of discrimination adopted by the dissenting

Justices in Olmstead: “differential treatment” “of otherwise

similarly situated persons who are in different groups by

reason of certain characteristics provided by statute.” 119 S.

Ct. at 2194-2195, (Thomas, J., dissenting). Many of the

same diseases that occur in persons with HIV also occur in

persons without HIV infection, particularly persons with

compromised immune systems from chemotherapy or

radiation therapy, chronic steroid therapy, organ

transplantation, or other factors. Because of the AIDS cap,

Mutual treats differently two policyholders who have the

same disease, solely on the basis of HIV-status. For

instance, Mutual admitted that a policyholder's expenses

related to the care and treatment of pneumonia are subject to

a cap if and only if the pneumonia is a complication of HIV.

(Pet. App. 21a.) Other diseases which are considered HIV-

15

related, but which also afflict HIV-negative

immunocompromised persons, and which often even afflict

immunocompetent persons, include tuberculosis:*

lymphoma and cervical cancer;*° gynecological infections

and pelvic inflammatory disease;** herpes simplex virus;*°

shingles;*° and Hepatitis B and C,°’ to name just a few. In

addition, many medical problems caused by anti-HIV

medications also occur in persons without HIV infection,

including anemia, pancreatitis, diabetes, hyperglycemia and

heart disease.**

The Court of Appeals acknowledged that "as the

immune system collapses because of infection by HIV, the

patient becomes subject to opportunistic infection ... by a

host of diseases to which people not infected with HIV are

subject." (Pet. App. 7a.) The lower court reasoned,

however, that because these infections are more lethal in a

person without a strong immune system, "they are not really

the same disease" in persons with HIV/AIDS as in persons

without HIV infection. (/d.) The lower court's attempted

*? Chambers, supra note 29, at 353-354. .

** Lawrence D. Kaplan & Donald W. Northfelt, Malignancies Associated

With AIDS, in The Medical Management of AIDS 467, 467, 489 (Merle

A. Sande & Paul A. Volberding eds., 6" ed. 1999).

i Meg D. Newman & Constance B. Wofsy, Women and HIV Disease,

in The Medical Management of AIDS 537, 544-47 (Merle A. Sande &

Paul A. Volberding eds., 6" ed. 1999).

*° W. Lawrence Drew et al, Management of Herpesvirus Infections

(Cytomegalovirus, Herpes Simplex Virus, and Varicella-Zoster Virus), in

The Medical Management of AIDS 429, 438 (Merle A. Sande & Paul A.

Volberding eds., 6" ed. 1999).

*° Id. at 446.

Andrew H. Talal & Douglas T. Dieterich, Gastrointestinal and

Hepatic Manifestations of HIV Infection, in The Medical Management of

AIDS 195, 203-204 (Merle A. Sande & Paul A. Volberding eds., 6" ed.

1999).

* Deeks & Volberding, supra note 10, at 106-09; Shantel M. Mullin et

al., Antiretroviral Adverse Effects and Interactions: Clinical Recognition

and Management, in The Medical Management of AIDS 79, 79-83 (Merle

A. Sande & Paul A. Volberding eds., 6" ed. 1999).

16

distinction has no basis in medical science. A disease is

defined by its etiologic agent(s), associated laboratory

findings, and clinical signs and symptoms.’ Medical

authorities classify a number of diseases that occur in

persons without HIV as HIV-related or AIDS-related

because they occur much more frequently; and tend to be

more virulent, in HIV-infected patients than in patients with

normal immune systems,*’ not because, e.g., cancer or

pneumonia or tuberculosis is a "different disease" in a patient

with HIV/AIDS.*' Even PCP, an AIDS-defining illness

which the lower court asserted is "distinctive" to HIV (Pet.

App. 7a), is the same disease when it occurs in patients

whose immune systems have been impaired by organ

transplantation, tumor growth (neoplasia), or malnutrition.”

As Judge Evans observed in his dissent below, "as

Mutual of Omaha concedes, ... coverage for certain expenses

would be approved or denied based solely on whether the

insured had AIDS." (Pet. App. 17a.) In many instances,

therefore, AIDS caps treat similarly situated individuals

39

E.g., Steadman's Concise Medical Dictionary for the Health

Professions 242 (John H. Dirckx ed., 3d ed. 1997); Taber's Cyclopedic

Medical Dictionary 556 (17th ed. 1993) (definitions of "disease").

*” See, e.g., Kaplan & Northfelt, supra note 36, at 467, 489; Kathryn

Kocurek & Harry Hollander, Primary and Preventive Care for the HIV-

Infected Adult, in The Medical Management of AIDS \25, 130 (Merle A.

Sande & Paul A. Volberding eds., 6" ed. 1999).

*' See, eg, John G. Bartlett, Other HIV-Related Pneumonias, in The

Medical Management of AIDS 331, 332, 334 (Merle A. Sande & Paul A.

Volberding eds., 6" ed. 1999) (HIV-related pneumonias have similar

clinical presentations in HIV-infected and HIV-negative patients);

Chambers, supra note 31, at 353, 354 (tuberculosis, caused by

Mycobacterium tuberculosis, presents similarly in patients without HIV

and in patients with early-stage HIV infection, and can be transmitted

from HIV-positive to HIV-negative persons); Fauci & Lane, supra note

8, at 1833 (standard therapy for tuberculosis is generally as successful in

the HIV-infected patient as in the HIV-negative patient).

* See Laurence Huang & John D. Stansell, Pseumocystis carinii

Pneumonia, in The Medical Management of AIDS 305. 305 (Merle A.

Sande & Paul A. Volberding eds., 6" ed. 1999).

“ee eee tall

17

differently, solely on the basis of disability — a classic

example of discrimination.

IV. This Case Presents a Good Opportunity to

Resolve the Uncertainty Over the Legality of

AIDS Caps Under the ADA.

Section 501(c) of the ADA, 42 U.S.C. § 12201(c),

permits an insurer to restrict coverage of a disability if it

costs more, based on actuarial studies and/or claims

experience, or if State law otherwise permits the restriction

in question. Mutual, however, “stipulated that [it] has not

shown and cannot show that its AIDS caps are or ever have

been consistent with sound actuarial principles, actual or

reasonably anticipated experience, bona fide _ risk

classification, or state law.” (Pet. App. 22a-23a.) Mutual's

stipulations are consistent with industry-wide data on the

cost of treating HIV/AIDS relative to the costs of other

illnesses. Resolution of the legal questions presented by this

case, therefore, should resolve the larger question of the

legality under the ADA of AIDS caps generally.

A 1998 study by the Health Insurance Association of

America (“HIAA”) and American Council of Life Insurance

(“ACLI”) documents substantial declines in AIDS related

health insurance claims over the past few years. American

Council of Life Insurance and Health Insurance Association

of America, A/DS-Related Insurance Claims Paid in 1997, |

AIDS Reference Guide (Atlantic Info. Services, Inc.) §316

(Nov. 1998). Commenting on an earlier (1995) study by

HIAA and ACLI of AIDS claims paid by insurers, an

editorial in a publication for corporate risk managers and

employee health plan administrators declared:

Back in the 1980s some employers rewrote

their health care policies to put in separate and much

lower coverage limits for AIDS than for other

medical conditions. Employers that put in those

18

lower limits justified their actions by saying that the

cost of AIDS claims could threaten the solvency of

their health care programs.

Such actions seem totally unjustified given

the declining cost of AIDS claims. ...

* * *

[T]he results [of the 1995 HIAA-ACLI study]

. Suggest ... that the cost of covering AIDS is

manageable and that the cost is not going to bankrupt

insurers or employers.

AIDS Claim Fears Unfounded, Business Insurance, Aug. 28,

1995, at 8.

Moreover, the record in this case contains unrebutted

testimony about industry-wide coverage costs by Dr. Fred

Hellinger, a leading expert on HIV/AIDS treatment costs,

and Professor Mark J. Browne, an actuarial expert. They

testified that the cost of treating HIV/AIDS is comparable to

or less than the costs of treating other severe medical

conditions. (Pet. App. 49a (Dr. Hellinger), 44a (Professor

Browne).) This testimony is consistent with the current

literature.**> When HIV/AIDS health insurance caps have

been challenged in litigation under the ADA, e.g.. by the

EEOC, the insurers for the most part have readily dropped

the caps.”

* See, e.g., Nancy R. Mansfield, Evolving Limitations on Coverage for

AIDS: Implications for Health Insurers and Employers Under the ADA

and ERISA, 35 Tort & Ins. L. J. 117, 132-33 (1999) (comparing costs of

AIDS to other health conditions).

“See United States Equal Employment Opportunity Commission,

EEOC Docket of ADA Litigation as of March 31, 1998, Trial Docket —

Resolved Cases (visited November 9, 1999) <http://www.eeoc.gov/docs/

ada98/txt> (14 trial-level challenges to AIDS caps in employer-

sponsored group health plans were brought between 1993 and 1997; in

19

The lower court's decision may encourage a

resurgence of HIV/AIDS health insurance caps. Even

though the cost of HIV/AIDS is comparable to or less than

the cost of many other serious health conditions, persons

with HIV and AIDS are still stigmatized and viewed by

many as "others" whose medical costs are not comparable to

the needs of persons with cancer, heart disease, or other

"normal" medical conditions.*° Therefore, health insurers

are able to reduce payouts and increase profits by imposing

HIV/AIDS caps without arousing the type of opposition that

they might expect if they were to cap benefits for cancer,

heart disease, or cystic fibrosis, for example.

Moreover, because of the Court of Appeals’ decision,

patients and health care providers now will be less certain of

the legality of health insurance AIDS caps when they

encounter them. Doctors and patients who believe the caps

to be illegal will nonetheless be forced to treat the caps

seriously, and will face the dilemma of how to allocate the

limited insurance coverage for HIV care. Clarity is urgently

needed on this matter. Because few if any insurers will be

able to demonstrate a cost-based justification under ADA

Section 501(c), resolution by the Court of the questions

presented in this case would provide the certainty that

persons with HIV and their health care providers need.

each case, the cap was dropped and /or the plan sponsor paid damages to

individuals whose claims had been denied or to their estates).

*° Samuel A. Marcosson, Who is "Us" and Who is "Them" -- Common

Threads and the Discriminatory Cut-Off of Health Care Benefits for

AIDS Under ERISA and the Americans With Disabilities Act, 44 Am. U.

L. Rev. 361, 363-65 (1994). See also Mansfield, supra note 44, at 119,

133 & n.83 (review of the case law indicates that other health conditions

have not been subjected to insurance caps similar to those imposed on

HIV/AIDS); Carparts Dist. Center, Inc. v. Automotive Wholesaler's

Ass'n of New England, Inc., 987 F. Supp. 77, 82 (D. N.H. 1997)

(discussing evidence of bias motivating decision to institute AIDS cap in

group health plan). See generally Gregory M. Herek, AJDS and Stigma,

42 Am. Behav. Sci. 1106, 1108, 1109 (1999) (discussing belief held by

many that persons with AIDS deserve their condition).

20

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully Submitted,

Daniel Bruner

Counsel of Record

Amanda Maisels

Laura Flegel

WHITMAN-WALKER CLINIC

LEGAL SERVICES

1407 S Street, NW

Washington, DC 20009

(202) 797-3527

Counsel for Amici Curiae

December 2, 1999

Al

APPENDIX: STATEMENTS OF INTEREST OF

AMICI CURIAE

The Infectious Diseases Society of America

represents more than 5,000 physicians, scientists and other

health professionals dedicated to excellence in patient care,

research and public health disease prevention and education

in the field of infectious diseases. Infectious diseases is a

board certified subspecialty of internal medicine and

pediatrics. The majority of persons with HIV and AIDS in

this country receive care from infectious diseases physicians.

The National Alliance of State and Territorial AIDS

Directors (“NASTAD”) is the only national public health

organization in the United States that focuses exclusively on

the HIV/AIDS epidemic. Founded in 1992, the organization

represents the chief HIV/AIDS program administrators who

are responsible for managing federally funded and State

funded HIV/AIDS prevention, health, and housing programs

in every state. State. AIDS directors administer HIV

prevention and surveillance programs funded by the Centers

for Disease Control and Prevention, and they coordinate the

administration of the federal Ryan White CARE Act Title Il

programs and AIDS drug assistance programs, which

organize systems of health care for low-income individuals

with HIV disease in every state.

NASTAD has consistently opposed discrimination

against individuals with HIV infection. Discrimination

represents a barrier to achieving federal, state and local goals

in reducing the spread of HIV and in_ providing

compassionate and effective health care services to

individuals who are HIV-infected. NASTAD believes that

HIV/AIDS caps in private insurance pose a significant

financial burden on already strained public health systems,

by forcing people living with HIV/AIDS to depend upon

public health care benefit programs like state AIDS drug

assistance programs and Medicaid. _NASTAD is also

COCR AE Oe r Sp NTN

A2

concerned that HIV/AIDS caps inappropriately pressure

policyholders with HIV to cut corners 1n their healthcare and

increase their risk of non-adherence to therapies and

deterioration of their health status. NASTAD believes that

these results contradict the ADA's stated goal of reducing the

unnecessary public costs of dependency caused by

discrimination.

The National Association of Public Hospitals and

Health Systems (“NAPH”) represents more than 100

metropolitan area safety net hospitals and health systems

nationwide. _NAPH member institutions serve a_ large

proportion of the nation's HIV/AIDS populations in both

inpatient and outpatient settings. In addition to providing

medical care to persons with HIV and AIDS, NAPH has

historically supported and advocated for the rights of these

persons.

The American Nurses Association (“ANA”), a

national labor and protessional organization for registered

nurses, consists of 53 state and territorial constituent

organizations with approximately 180,000 members. ANA

has been at the forefront in advocating for full non-

discriminatory access to health care treatment for all

individuals.

The HIV Quality Care Network -- a project of the

Infectious Diseases Society of America -- consists of

approximately 250 HIV care programs across the country

offering health care services to adults and children living

with HIV disease. Collectively, the HIV care organizations

it represents serve approximately 138,000 patients — 41

percent of the estimated 335,000 individuals with HIV

infection that are currently in care in the United States. The

Network was formed as a response to a changing health care

environment that frequently poses challenges and barriers to

health care providers committed to the provision of high-

A3

quality comprehensive health care to HIV-infected patients.

As a national network of HIV clinical programs, the

Network has a strong interest in health care financing

policies and their impact on HIV medical care. Insurance

policies that impose arbitrary financial caps on HIV

treatment coverage undermine the ability of experienced

HIV providers to provide the standard of care for HIV

infection that has resulted in the dramatic reductions in HIV

mortality and morbidity seen in recent years.

The American Public Health Association (“APHA”)

is a national organization devoted to the promotion and

protection of personal and environmental health. Founded in

1872, APHA is the largest public health organization in the

world, representing over 50,000 public health professionals.

It represents all disciplines and specialties in public health.

APHA also publishes a technical report series dealing with

various aspects of the HIV epidemic through the American

Journal of Public Health, as well as numerous books related

to HIV and state-of-the-art scientific research, APHA

supports the goal of equalization of opportunities for

disabled persons in every facet of life.