Employment-More On Justice Department’s Guidance On The ADA And Individuals With HIV/AIDS

As discussed in yesterday’s blog, the U.S. Department of Justice has issued guidance, in the form of Q&As, on the Americans with Disabilities Act (the “ADA”) and individuals with HIV/AIDs. One important question raised in the Q &As is whether, under the ADA, an employer has an obligation to provide health insurance to employees with HIV or AIDS. The Q&As say the following:

The ADA prohibits employers from discriminating on the basis of disability in the provision of health insurance to their employees and/or from entering into contracts with health insurance companies that discriminate on the basis of disability. Insurance distinctions that are not based on disability, however, and that are applied equally to all insured employees, do not discriminate on the basis of disability and do not violate the ADA.

Thus, for example, blanket pre-existing condition clauses that exclude from the coverage of a health insurance plan the treatment of all physical conditions that predate an individual’s eligibility for benefits are not distinctions based on disability and do not violate the ADA. A pre-existing condition clause that excluded only the treatment of HIV-related conditions, however, is a disability-based distinction and would likely violate the ADA.

Similarly, a health insurance plan that capped benefits for the treatment of all physical conditions at $50,000 per year does not make disability-based distinctions and does not violate the ADA. A plan that capped benefits for the treatment of all physical conditions, except HIV or AIDS, at $50,000 per year, and capped the treatment for AIDS-related conditions at $10,000 per year, does distinguish on the basis of disability and likely violates the ADA.

Blogger’s Note: A pre-existing condition clause or a $50,000 cap on benefits could violate PPACA-but that is a different issue.