About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

30 Fla. St. U. L. Rev. 363 (2002-2003)
Genetic Discriminiation in a Time of False Hopes

handle is hein.journals/flsulr30 and id is 395 raw text is: GENETIC DISCRIMINATION IN A TIME OF FALSE HOPES JOHN V. JACOBI* I. THE PROBLEM OF GENETIC DISCRIMINATION IN HEALTH COVERAGE ................ 365 II. THE LAW'S RESPONSE TO GENETIC DISCRIMINATION IN HEALTH INSURANCE.. 368 A . F ederal Law .................................................................................................. 368 1. The M urky Role of the ADA .................................................................. 368 2. H1PAA's Specific but Limited Protections ............................................ 372 B. State Laws: Evolution and Limits ............................................................... 373 III. EQUALIZING COVERAGE: SHORT TERM CONCERNS ............................................. 375 A. Ambiguities in the Law: Speaking Clearly .................................................. 376 B. Avoiding the Effect of Clear Laws: Covert Discrimination ......................... 380 IV. THE FUTURE OF GENETIC DISCRIMINATION ....................................................... 386 A. Adverse Selection and Exceptionalism ........................................................ 387 1. Regulating Around Adverse Selection ................................................... 387 2. Exceptionalism, Incrementalism, and Social Pooling .......................... 390 B . Scarcity and Equity ...................................................................................... 394 C ON CLU SION ........................................................................................................ 398 Law anticipated genetic discrimination in insurance. Legislators in the 1990s accepted genetic equity as a valuable, if abstract, con- cept largely removed from the realities of insurance underwriting or coverage decisions. Things may become complex quickly, however, when genetic discrimination laws face reality. Difficulties suggest themselves when one attempts to define discrimination in practice and then to match statutory language to the practical problem of lim- iting its effect. Enforcing genetic prohibitions raises perplexing regu- latory problems, as forms of health finance morph more rapidly than regulators can anticipate. The enterprise is vital notwithstanding the difficulties. Denial of coverage or care on the basis of genetics violates the principles of so- cial solidarity that are, or should be, at the core of health insurance law. State and federal lawmakers enacted laws limiting or forbidding genetic discrimination in health coverage during the 1990s, a period of both broad economic growth and very stable health care costs. More recently, the economy has faltered and health care cost infla- tion has revived with a vengeance. Renewed health care cost infla- tion appears to be consistent with the nearly Malthusian tendency with which technological advances in health care and the increasing demands of an aging population drive the expense of health services * Professor and Associate Director, Health Law & Policy Program, Seton Hall Law School. I wish to thank the participants in the symposium Genes and Disability: Defining Health and the Goals of Medicine held at Florida State University College of Law and, in particular, Paul Miller, Lois Shepherd, and Mary Crossley. Thanks also to Loretta Orlando for her research assistance.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most