American Disabilities Act American's With Essay

Excerpt from Essay :

(Schall, 1998)

In addition to a lightened burden of proof and broader definition there were two additional changes resulting from the amendment which served to positively affect the impact and ultimate effectiveness of the legislation. This amendment clarified the fact that judges are not allowed to assess possible mitigating factors such as medication, corrective surgery, or specialized equipment in the determination of whether or not an individual is disabled. This change is directly related to the Sutton case. Further the amendments clarified the definition of major life activities. This amendment relates directly to the Williams case in which a judge deemed that Carpal Tunnel wasn't in fact a significant impairment to major life activities, it merely precluded her from successfully completing specific tasks in the work place. Though the language of the Act is still quite ambiguous, these changes help to clarify and protect the intention of the act.

Exceptions

In the context of Title 3 there are two notable exceptions to the physical alteration mandate (Stowe, 2000). Historical buildings such as are reported on the national register of historic buildings and landmarks may abstain from changes to their structure or facade which would in some way be detrimental to the historical value or integrity of the structure. Such places whose architecture is of specific historical relevance may site that protected status as a reason for not complying with Title 3 guidelines.

The second exception to the physical code of the Title is if the necessary amendments are outside the financial possibility of a business. Extensive renovation and redesign of in progress building projects can be extremely costly. It is not the intention of the Congress of the United States to impose financial burdens upon businesses which would ultimately drive those businesses to financial ruin (Stowe, 2000). Necessarily a large fortune five hundred corporation would be able to afford necessary remodeling where a smaller local business might not. If through presentation of complete financial records, and projected costs of renovation it can be observed that it is outside a company's financial means to adhere to the statute then they will be permitted to make only those changes they are able to reasonably afford without fear of prosecution.

There is another exception which is of note in the context of "goods and services." The purposes of Title 3 are to protect disabled individuals from discrimination or less favorable treatment as a result of their disability. In terms of businesses who provide services though it is much more difficult to determine what their due diligence is in terms of ensuring that the individuals partaking of that service are not being treated unfairly or excluded from that service. In the context of insurance providers, and lending organizations this becomes very difficult and very ambiguous legal procedure. If a lending organization enters into a mortgage or loan agreement with an individual who is disabled, it is unclear where the responsibilities lie in ensuring that the individual was fully aware of the terms and conditions of the agreement, and that the proposed borrower would be able to meet those obligations. Though this particular aspect of the Title is still determined on a case by case basis, in an effort to avoid class action lawsuits against corporate health care providers, and businesses who engage in commerce directly with other businesses and not individuals a specific exemption was put in place to ensure that only businesses dealing directly with individuals were potentially liable for non- compliance with Title 3 codes.

Insurance

Of all the cases heard in the context of the ADA, the most common complaint is in terms of insurance (Schwochau & Blanck, n.d.). Health insurance particularly is a hotly debated area of the legislation in that it is currently unclear how specifically the Title is intended in terms of acquiring insurance and determining the coverage amount for specific medical conditions and procedures. The United States penal system endeavors not to intervene in the running of independent businesses unless there has been a gross violation of civil rights or criminal activity. In determining though whether or not a health insurance provider refusing coverage to an individual with a known disability constitutes a proprietary right of the company, or a violation of Title 3 there is no clear answer and as such cases are adjudicated on an individual basis.

The insurance issue is far more complex though than simply the decision to insure or not to insure. Health care providers also determine the maximum amount of financial coverage for given treatments and even diseases. In the everyday running of business insurance companies make determinations based on the projected price of treatment for different illnesses and injuries. The companies must make objective determinations based on primarily financial reasons to either increase or decrease the amount of care they are willing to cover (Schwochau & Blanck, n.d.).

Another hotly contested topic is the amount of money available for diseases like aids and disorders such as schizophrenia which poses interesting paradoxes for insurers and policy holders alike (Grabois, 2005). While AIDS is not strictly a disability it can be debilitating without appropriate medical care. If an insurance company limits the amount of coverage available for an AIDS patient, then effectively that patient will become disabled and be unable to participate in normative daily activity. Schizophrenia also requires lifelong intensive care, if an individual is not treated consistently and properly they become a risk to not only themselves but those around them. These treatments though are quite expensive, for an insurance company to fully cover all treatments for all patients would drive insurance premium rates up making it impossible for the majority of citizens to purchase health care. A clear and definitive line has yet to be established regarding the difference between discrimination and good business practice (Schwochau & Blanck, n.d.). While insurance companies have responsibilities to their policy holders, they also have responsibilities to their share holders as well. Finally in the context of insurance and Title 3, is the issue of disparate coverage for mental and physical disability. It is not uncommon for insurance companies to provide different coverage for mental health care and physical health care. Further it is not uncommon for the coverage of mental health care to be less than that of physical health care. It can be argued though, that for those individuals in need of extensive mental health care coverage, this is a discriminatory practice (Grabois, 2005).

While it has been determined that insurance itself is within the scope of Title 3 as it is a service provided by a place of public accommodation, the content of those policies is not necessarily within the scope of the legislation. Though initially paradoxical, upon closer analysis of the legislation, there is no mention made of the specific characteristics of the specific services to which individuals with disabilities must be granted legal access. As in the case of employment, it is wholly reasonable for an insurance provider to set standards of health and maximum expenditures of care expenses which will ultimately deny some individuals of necessary care . (Grabois, 2005) the legislation indicates that the disabled must have access, to legally enforce a policy in which they must also be given more coverage than any other non- disabled individual would be reverse discrimination and equally unjust. It is possible as evidenced by a recent Seventh Circuit Court ruling that it is possible to have both a broad definition of "place of public accommodation" and a legal position which indicates that the content of an insurance policy not come under the auspices of Title 3 legislation. There are many ways of interpreting the jurisprudence of insurance, policy content and Title 3 compliance. This as yet undefined area of legislation remains a legal quagmire which will not be resolved until the ambiguity is removed from the language of the Act.

Precedent Setting Cases

In 1994 Carparts Distribution Center v. Automotive Wholesalers Association (AWANE) first tackled the insurance in the context of coverage dilemma. The plaintiff was an insurance policy holder who had been diagnosed with HIV then AIDS. Following the formal diagnosis of the policy holder, he attempted to reimburse a number of medical bills through his policy and was turned down as a result of the insurer changing the amount of coverage available for AIDS treatment. Consequently the plaintiff sued Automotive Wholesalers Association citing not only the ex post facto alteration of coverage which was reduced to $25,000.00 and the vast disparity between that amount available for AIDS treatment and the $1million per policy coverage available for non-AIDS related treatments.

When this case came to trial, no one had defined the scope of "place of public accommodation" in the context of the specific coverage of an insurance policy. The ultimate decision of the case, were it not overturned later, would set a precedent for the future adjudication of similar cases in the future. The judge had to decide whether or not an intangible service provided…

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