U.S.

Department of Justice

Civil Rights Division

Office of the Assistant Attorney General Washington, D.C. 20035

JUL 25 1996

The Honorable Lee H. Hamilton

U.S. House of Representatives
2314 Rayburn Building
Washington, D.C. 20515-1409

Dear Congressman Hamilton:

This letter is in response to your inquiry on behalf of your

constituent, Mr. William C. Keeney, regarding his complaint
against the State of Kentucky under the Americans with
Disabilities Act of 1990 (ADA). Mr. Keeney alleges that the
Kentucky Health Reform Act violates the ADA by providing that
out-of-state residents whose group health insurance policies are
issued to Kentucky employers are subject to the same rules and
limitations as Kentucky residents, including the lack of
insurance coverage for high-dose chemotherapy and bone marrow
transplant for cancer patients. We apologize for the delay in
responding.

Generally, because of the nature of the insurance business,

consideration of disability in the sale of insurance contracts
does not necessarily constitute "discrimination." An insurer or
other public accommodation may underwrite, classify, or
administer risks that are based on or not inconsistent with State
law, provided that such practices are not used to evade the
purposes of the ADA.

However, the question of disability-based distinctions in

employer-provided health insurance involves a complex and
changing area of the law. In some cases, denying coverage for a
given procedure to treat a given illness may violate the ADA
where the procedure is covered for the treatment of other
illnesses. See Henderson v. Bodine Aluminum, Inc., 70 F.3d 958
(8th Cir. 1995). We have enclosed the Equal Employment
Opportunity Commission's latest guidance on the application of
the ADA to disability-based distinctions in insurance. I hope
this information is helpful to you in responding to your
constituent.

Sincerely,

Deval L. Patrick
Assistant Attorney General
Civil Rights Division

01-04311

Congress of the United States

House of Representatives
Washington, DC 20515-1409

May 19, 1996

Office of Congressional Relations

Department of Justice
Tenth and Constitution
Washington, D.C. 20530

To whom it may concern:

One of my constituents recently contacted me with his

concerns about health insurance regulations in Kentucky, and his
belief that they violate the Americans with Disabilities Act. A
copy of his correspondence is enclosed.

If you will advise me of your action in this matter, I will

appreciate it.

Thank you for your consideration.

Sincerely yours,

LEE H. HAMILTON, M.C.

01-04312​ WILLIAM C. KEENEY

ATTORNEY AT LAW
599 Catalpa Drive Telephone
Sellersburg, Indiana 47172 812-246-2875

March 13, 1996

Representative Lee H. Hamilton
1201 East 10th Street
Jeffersonville, Indiana 47130

Representative Hamilton:

Enclosed are copies of correspondence and information I recently

supplied to the U.S. Attorney's Office in Louisville. As you can see
from the enclosures, the Kentucky Health Reform Act has created a
terrible and in my opinion, illegal, situation for the citizens of
Kentucky relative to the treatment of certain cancers by means of
high-dose chemotherapy with bone marrow transplant. I bring this to your
attention because of the impact this law has on many of your
constituents in Southern Indiana.

The Kentucky Department of Insurance has advised that those out-of-state

residents working in Kentucky whose group health insurance policy is
issued to a Kentucky employer are subject to the same rules and
limitations as a Kentucky resident. Simply put, because they work in
Kentucky many Indiana residents do not have health insurance coverage
that could be quite literally life saving. This is especially true for
the treatment of breast cancer.

Not only is this morally reprehensible, I firmly believe it violates the

Americans With Disabilities Act. I have requested that the Department of
Justice investigate based on the ADA. As you can understand, time is of
the essence. Any efforts on your part to encourage Justice to expedite
would be greatly appreciated.

Mr. Hamilton, treatment by high-dose chemotherapy with bone marrow

transplant has moved beyond the experimental stage. I myself was given
approximately three-to-four weeks to live last May suffering from
non-Hodgkin's lymphoma. I had the high-dose and bone marrow transplant
and am in full remission today. Recent studies confirm its particular
value in the treatment of breast cancer. This truly is a life and death
situation that few, particularly Indiana residents, are aware of.

I look forward to hearing from you.

Sincerely,

William C. Keeney

01-04313​United States Attorney's Office

510 West Broadway- 10th Floor
Louisville, Ky. 40202
Attn: Ms. Regina Edwards via HAND DELIVERY

Re: Complaint Based on the

Americans With Disabilities Act

Ms. Edwards:

The Commonwealth of Kentucky, through the Kentucky Health Policy Board,

("Board"), is illegally discriminating by disparate treatment against
persons suffering from certain cancers by denying those person as a
matter of law insurance coverage for treatment of the cancer by bone
marrow transplant.

The Board is an agency of the Commonwealth established pursuant to the

Kentucky Health Reform Act, commonly referred to as H.B. 250. As part of
its charge, KRS 304.17A-160 mandates the Board define the standard
health benefits plans that will be permitted to be issued within the
Commonwealth. Accordingly, all providers of health care insurance issued
within the Commonwealth are required to issue uniform policies.

The uniform language mandated by the Board specifically excludes

coverage for bone marrow transplants for certain cancers, including
breast, while mandating coverage for other cancers such as lymphomas.
The excluded procedures are not alleged within the policy to be
experimental or investigatory but are specific exclusions. Section
501(c) of the ADA does not apply as the prohibition is not based on
underwriting or classification of risks.

Title II of the ADA specifies that an individual with a disability may

not be discriminated against by state government. Cancer is a chronic
disease and is a covered disability. As an indication of the extent of
this discrimination, I offer the following which I believe to be
accurate but not always verified.

1. Kentucky is the only state in the union that mandates a

prohibition on treatment by bone marrow transplant for certain cancers.
2. All federal employees, including those in Kentucky, are covered for
treatment by bone marrow transplant for breast cancer, by federal
mandate.
3. Medicaid recipients are covered because of the federal
relationship.
4. At least one local insurer, Humana, is prohibited from
covering certain bone marrow treatments for Kentucky residents but will
cover persons insured from out-of state who are treated at the
University Hospital, Louisville.

01-04314​

My client suffers from breast cancer and is a candidate for treatment by

bone marrow transplant. She has been denied coverage for this procedure
based on the standard policy language promulgated by the Board. I know
of others in similar circumstance.

Ms. Edwards, this is truly a life and death problem, not only for my
client but also for many other residents of the Commonwealth. Bone
marrow transplants have been proven to be very effective, especially so
in the treatment of breast cancer. There is now legislation pending,
House Bill 504, that mandates coverage for the treatment of breast
cancer. Its passage this term is questionable and, if passed, its
retro-active effect is more questionable. The intervention of the
Department of Justice is warranted and needed.

Please confirm you have received this inquiry. I have enclosed copies of
certain pertinent information for your ready review. Time is of the
essence. Any efforts to expedite would be greatly appreciated.

Sincerely,

William C. Keeney

01-04315