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  • BIOETHICS FORUM ESSAY

The ADA Amendments of 2008: Restoring Rights; Reviving Questions

Eighteen years ago the Americans with Disabilities Act was enacted with great fanfare. The ADA promised civil rights protection to an estimated 43 million Americans with disabilities, prohibiting discrimination in employment, public accommodations, and by state and local governments. Given its intended breath, the ADA was expected to have a major impact on the health care system. For the most part, that has not happened. Recent amendments to the ADA, however, are likely to ensure that it does.

As originally enacted, the ADA’s ban on discrimination applied, with limited exceptions, to those who have a “a) physical or mental impairment that substantially limits one or more major life activities of such individual; b) a record of such an impairment; or c) [are] regarded as having such an impairment.” This definition was assumed to be broad and inclusive. Congress anticipated that it would apply to people with a wide range of serious physical and mental illnesses, including cancer, HIV/AIDS, diabetes, and schizophrenia. Had that been the case, the ADA would have barred health care providers from discriminating not only against their employees with disabilities but against many of their patients. As a result, the ADA’s antidiscrimination lens – and judicial analysis – would have been brought to bear on a wide range of bioethical issues.

For the most part, this has not happened. Although patients have won some significant claims against health care providers, including providers who have discriminated against HIV-positive patients, the federal courts have erected a series of barriers that have made it difficult for patients with a disability to succeed in an ADA claim.  Most importantly, rather than read the ADA’s definition of disability liberally, as Congress clearly intended, the courts have interpreted it parsimoniously. For example, in 1998 the Supreme Court held that an individual does not have a disability if a mitigating measure, such as medication, enables them to overcome the impact of their impairment. The Court has also construed the definition’s “substantially limits” phrase as “prevents or seriously restricts” an individual from performing major life activities. (See Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 197 (2002).) In addition, the Court has stated that an individual cannot establish having a disability on the basis of being unable to do a single job; rather, the individual must show an inability to perform a wide range of jobs.

As a result of these rulings and others by the lower courts, plaintiffs with many medical conditions have fared very poorly in ADA cases. Individuals with cancer, diabetes, depression, schizophrenia, heart disease, and epilepsy have been barred from bringing ADA claims. As a result, many of the most difficult questions about the ADA’s application to health care, including what it means to discriminate in the context of medical decision-making, have been largely avoided.

That may now change. Last month, after years of debate, Congress passed the ADA Amendments Act of 2008. The amendments seek to “restore” the originally intended definition of disability, stating that it should be “construed broadly” so as to achieve the ADA’s remedial purposes. Moreover, the amendments overturn the Supreme Court’s ruling about mitigating measures, clarifying that the determination of disability is to be made, except in the case of eyeglasses, without considering the impact of mitigating measures. The amendments also define “substantially limits” as “materially restricts” rather than “prevents or seriously restricts.” In addition, the amendments add that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

Thanks to the amendments, many conditions that were previously found not to be disabilities will now garner protection under the ADA. Epilepsy, diabetes, and many forms of cancer should now pass the disability hurdle. As a result, the critical question that the health care system has largely escaped – what does it mean to discriminate in the provision of health care? – will once again be on the table. Let the conversation commence.

Published on: October 15, 2008
Published in: Health and Health Care

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