Is the Denial of Health Insurance Claims a Violation of the Equal Protection Clause of the 14th Amendment?
Let me start off by saying, I intend to be provocative here and intend to gather opinions on the legality of denying health insurance and health care treatment to a portion of the U.S. population.
The recent health care proposal reforms have provided the opportunity for many Americans to bear witness to their own personal health care horror stories. Most of the stories are heart wrenching, and have even resulted in the deaths of Americans denied health insurance coverage. A recent story in the Huffington Post is one such example. In this story a young girl died after failing to receive a liver transplant in time, due to denial of coverage for the operation by her insurer, Cigna.
In the Cigna case the family was insured under an employee benefit plan regulated by ERISA, the Employee Retirement Income Security Act. ERISA establishes the minimum requirements for pension plans and health care insurance plans. Although ERISA does provide for some protections to the employee, it permits insurers to determine to whom, and for what they deny coverage. In the case of this family, the insurer denied the liver transplant claiming the procedure was experimental. The family later also lost its claim for damages, after the death of their daughter because of a 1987 Supreme Court case; Pilot Llife Ins. co. v. Dedeaux, 481 U.S. 41, 1987,where the Court issued a ruling that shields employer-paid health care plans from damages over their coverage decisions. In fact the courts have routinely issued decisions denying consumers recourse for insurance denial, even in cases such as the Cigna, where the result was death. This 2005 article from the Los Angeles Times illustrates the point.
Is the denial of health care and health insurance a violation of the U.S.Constitution?
Equal Protection Clause -- U.S. Constitution
The U.S. Constitution, 14th Amendment provides that "nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
This has come to be termed the "Equal Protection Clause." Roughly, the Equal Protection Clause prohibits government, State and Federal from denying rights to one group that another group enjoys. Perhaps the most famous of the Equal Protection Clause decisions is the Civil Rights cases, in particular: Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court decision that mandated that "separate but equal," as applied to public accommodations is violative of the Equal Protection Clause of the 14th Amendment. The Equal Protection Clause so far has only had limited application to health care. The Supreme Court for example applied the Equal Protection Clause In Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).As in the recent famous Shivo case- the issue hinged on determining the patient´s wishes while in a vegetative state. The court found that Cruzan, though in a vegetative state and therefore incompetent, following a car accident, had the same right to refuse treatment as a competent person under the Equal Protection Clause of the 14th Amendment.
I argue that the Equal Protection Clause applies to health care treatment in general and especially in ERISA employee benefit cases. Patients whose life and death decisions about health care are left solely in the hands of the insurer -- who can willy nilly decide who gets care -- are not being given equal protection under the 14th Amendment. The recent wave of horror stories brings this point home. Health insurance reform therefore, is not only needed, but in fact it may be required under the U.S. Constitution. Moreover, the Equal Protection Clause may require some form of Public Option as the only way health care treatment can be accessible to all Americans.
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Correction: EP Clause
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The point is to test the limits of the Constitution and how it can affect the lives of citizens in areas of the general welfare. The issue of the EP clsue and its application is not definitive:
In Cruzan, Justice Scalia stated in the concurrence: "What assures us that those limits will not be exceeded is the same constitutional guarantee that is the source of most of our protection - what protects us, for example, from being assessed a tax of 100% of our income above the subsistence level, from being forbidden to drive cars, or from being required to send our children to school for 10 hours a day, none of which horribles is categorically prohibited by the Constitution. Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me. This Court need not, and has no authority to, inject itself into every field of human activity [497 U.S. 261, 301]
With regard to the application of the EP clause to health care and private insurers this is also subject to the courts findings such as whether it is truly private, or state regulated. http://www.kff.org/insurance/upload/7766.pdf or whether the constitutional arm reaches to these insurers.
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JShields,
Thank you for your analysis, however I think your analysis of the Equal Protection Clause is too limited and is not being applied in such a limited manner, and is in fact considered to have expanding application. Cruzan has been analyzed under an equal protection analysis on numerous occasions and was a proper reference.
Secondly, with regard to the application of the EPC to a federal statute, clearly the Constitution does not intend the federal government to discriminate. This was addressed in the case of : Bowling v. Sharpe the Supreme Court discussed the interchangeable use of equal protection and due process.
The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process."
In that case the Supreme Court also applies the protection of the 14th Amendment to the federal government, thereby ERISA, though a federal statute must provide the same equal protection/due process rights to under this statute.347 U.S. 497 (1954)
With all due respect, the Supreme Court did not analyze the Equal Protection Clause in Cruzan:
“A competent person has a liberty interest under the Due Process Clause in refusing unwanted medical treatment. However, the question whether that constitutional right has been violated must be determined by balancing the liberty interest against relevant state interests.”
In Bolling v. Sharpe, as in Cruzan, the Supreme Court considered the actions of a government entity, this time the District of Columbia Board of Education (a federal entity). However, in Bolling, a desegregation case, the Court held that the 14th Amendment did not apply to a federal government entity. The Court relied on the Fifth Amendment, which the District of Columbia had adopted, rather than the Fourteenth Amendment, which it had not.
“We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states.”
Therefore, your contention that the Equal Protection Clause or Due Process Clause govern the actions of a private entity finds no support in the cases you cite. There is a difference between a state actor and a private actor. This difference can either trigger the constitution (“no state shall . .. “) or not.
I disagree with your premise.
The Fourteenth Amendment Equal Protection Clause applies to state actions, not those of private insurers. In the Cruzan case, Nancy Cruzan was in a Missouri state hospital and the state of Missouri was paying her medical bills. Ms. Cruzan's parents wanted to remove her feeding tube as Ms. Cruzan was in a vegetative state, had suffered massive brain damage, had no cognitive function, and was paralyzed. The hospital and state objected to Ms. Cruzan's parents' request, arguing that there was no clear indication of Ms. Cruzan's wishes.
In upholding the lower court's decision, the Supreme Court analyzed a Missouri state statute which defined the meaning of "dead". The Court did not focus on the Equal Protection Clause of the 14th Amendment, but rather on the Due Process Clause of the 14th Amendment and the right to be free of medical care. Therefore, your reliance on Cruzan for support of your Equal Protection argument is misplaced. Also, the case had nothing to do with ERISA, as you suggest in one of your posts.
Your final leap, into the conclusion that the Equal Protection Clause provides a right to healthcare coverage, therefore has no basis on which to rest. Like the Minimum Wage Act, ERISA provides a minimum standard. Under your reasoning, the Minimum Wage Act would be unconstitutional because it allows some people to earn more money than others, facilitating inequality of income. That said, we do need to fix healthcare and I applaud your creativity.
The real 'death panels' are the pre-certification panels of private insurers. I worked for an insurance company when I was just out of school and recall having to write a letter to an insured advising that her requested transplant had been denied as 'experimental.' On the pre-cert. form, the nurse jotted down a note: "savings: $100,000." I wish I had mailed that note instead of the letter.
I do not think we will have real reform until we have single payer, with vigorous oversight.
Why does reform need to include a single payer? The only single payer will be the taxpayer! Do you realize what that would do to our already ailing economy? I sympathize with those who want health care for all, but we all must be careful what we ask for. The government is in a position to take over all of our lives and they continually bombard us with propaganda and rhetoric. We are already on the brink of bankruptcy as a nation, health care would certainly finish us off.
Health Insurance should be the same as any other insurance, bought by those who use it and made affordable for everyone. Get the health care companies out of Washington and you might have a chance to lower cost through competition. This is a free market economy, or at least that is what it is supposed to be. The freeness of our economy is dwindling every day! The day we hand over health care to the government is the day when democracy finally can be declared dead.
Health care is a human right. The U.S. signed the United Nations Declaration of Human Rights. The U.S. is the only country that does not provide some form of universal health care for its citizens. There are 36 countries that provide superior health care. The U.S. is ranked 37th in the world for providing inferior health care to its citizens. Our health care system denies insurance to tens of millions of Americans. There is no debate that we pay taxes in the form of insurance premiums, which are then pocketed by insurance companies. That same tax can be paid to the government, and most Americans that receive $1000 dollars in tax returns each year will see that amount reduced to $300. Would you like to pay that $700 for all the health care you can eat?
As for your continued belief in a free market economy, you need to understand that that free market economy is what caused the global crash last year. Turns out, your free market economy was a myth, and we are in the control of banks, who are forcing us to accept a corporate welfare society. How do you like living in a corporate welfare society? Why do you champion corporate welfare? Are you stupid?
Seems to me like the example mentioned was denied 'due
process of law.'
An "appeal" is seeking 'due process' based on the definitions
of both 'appeal' and 'due process.'
I would think that an appeal could only be denied if it were found
DURING the carrying out of due process that the appeal was
determined to be frivolous, revengeful or spiteful.
Just my take on it.
Legally, the 14th Amendment doesn't protect someone from being denied coverage. The fact is that this is not even a Constitutional issue, since health care is not guaranteed by this document. Health care is an individual responsibility and not a right of citizenship. The responsibility of the government should only be to regulate the cost and safety of medical services and let competition bring the prices down.
Politicians tell us that treatment for uninsured people is leading to higher premiums. The fact is that the health care companies have their hands so far in Washington's pockets that it is starting to get personal. Why do you think there are 6 health care lobbyists for each member of congress? Do you know how much money drug companies pay to have their product certified as "safe"? How about campaign contributions and other perks.
Health Care is not a government function. Period!
I disagree.
The founding Fathers intended the government to provide for the people:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." - Declaration of Independence
The rights to be secured are life, liberty,and the pursuit of happiness. Healthcare is an essential element to those rights.
"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." - US constitution
Did you notice promote the general welfare. Healthcare is part of the general welfare.
The Founding Fathers knew they could not think of everything that would happen, but they left the intentions of the DOI and Constitution clear enough about the function of government.
Sorry to bust your bubble, but providing for the general welfare of the people does not mean provide health care. General welfare means looking out for our well-being, which our government does a poor job of to begin with. General welfare relates to the infrastructure and essential services needed to thrive. General welfare includes providing quality schools, roads, bridges, and services so that people can improve their lives and the lives of their children. General welfare also means protecting us from dangerous products, not purposely exposing us to them for profit. Cigarettes, BPA and the new H1N1 vaccine come to mind.
In United States v. Butler, 56 S. Ct. 312, 297 U.S. 1, 80 L. Ed. 477 (1936), the U.S. Supreme Court invalidated a federal agricultural spending program because a specific congressional power over agricultural production appeared nowhere in the Constitution. According to the Court in Butler, the spending program invaded a right reserved to the states by the Tenth Amendment. http://www.answers.com/topic/general-welfaree)
Health Care is not the same as general welfare. In fact, I would argue that much of our government spending is not Constitutional.
Spoken like a true health care shareholder.
You're a fool. The idea is to make Health Care Insurance lobbyists obsolete by removing them from the equation completely. You can't vote in a corporation.
U.S. Constitution, 14th Amendment provides that "nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The girl with liver cancer was deprived of her life by the insurance company's decision.
just sayin'....
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I disagree as well and the Supreme Court has taken cases on the issue of health insurance such as Cruzan cited in this article.
That is what I love about this country! At least we are talking about the issue, right or wrong, I don't personally think our current government can be trusted to run a health care system. I served in the Army for over 20 years and have seen the military and VA medical systems in action.
I think we just need to weed out the corruption and stop punishing small and mid-sized companies that are trying to compete in a shrinking health care market. I am retired from the Army now and get my health care at a very reasonable price. I don't see any reason why we can't make it just as affordable for everyone else. I pay $40 a month for a family. This is not government health care. This is contracted health care through the big providers on a bid basis. So if they are accepting this price for retired military, why can't it be done for everyone. I think everyone could afford that!
In a Canadian version of a similar issue, the Canadian Supreme Court declared single-payer to be unconstitutional -- Canada's problem of course is people dying on lengthy waiting lists. The ruling stated "access to a waiting list is not access to healthcare." -- and documented cases of people dying on govenment waiting lists
Canadian law prohibits private medical care (hence single-payer) The case involved a man on a one-year waiting list for hip surgery. The Court found the restriction against private healthcare was a threat to life. (Duh!) Full text at link below:
http://www.hg.org/articles/article_698.html
Now the surprise. The biggest denier of health claims is ... Medicare. Medicare denies 6.85% of all claims, followed closely by Aetna at 6.80%. It then VERY sharply for the remaining 6 major insurers. Aetna distorts the totals, so I'll show you both ways.
For all private insurers: 4.05%
Excluding Aetna: 3.07%
The source is a VERY lengthy report, but the "denial" table is simple on page 5
http://www.ama-assn.org/ama1/pub/upload/mm/368/reportcard.pdf
So we have a systemic problem with both Aetna and Medicare (not to ignore individual cases).
On the Cigna case (denies 3.44% overall) If the contract allows denial for experimental liver procedures, Equal Protection means they're obliged to deny coverage equally.
http://PoliticallyHomeless.net "The New Majority: Americans fed up with BOTH parties.
As someone who lived on both sides of the border and experienced both healthcare systems, waiting lists are common in the US. The difference is here insurance companies either deny one coverage or put it off on.
In Canada, no one is denied due to a preexisting and no one goes bankrupt because of a hospital bill.
>>>>>In Canada, no one is denied due to a preexisting and no one goes bankrupt because of a hospital bill.
True (I've lived there also) . But they die on waiting lists, and are legally forbidden faster service outside the government system, according to their Supreme Court.
Only two other industrial countries FORCE citizens to deal with a government monopoly: Cuba and North Korea.
The American advantage: we already own the medical equipment we need to start testing and diagnosing our entire population ... tomorrow. Canadians will never have the money for that. So Canadians will continue dying on waiting lists, and of undiscovered cancers.
http://politicallyhomeless.net/?p=354
Before FDR got the government into it, what did we do? We formed our own groups, largely through fraternal organizations. My Dad bought healthcare for a family of seven at his lodge, cash every payday. No government. No insurance companies. No overhead. Patient controlled.
Exactly like today's prepaid HMOs who had a 25-30% price advantage over insurance companies -- employ their own doctors and own their own hospitals, so no claims and less overhead than single-payer.
But Democrats sabotaged them by mandating community rating, which eventually destroyed the HMO price advantage.
Democrats mandated higher prices for young folks on HMOs only. But they were too stupid to imagine younger members would seek the lower prices they were used to??. And our President blames the insurance companies for cherry-picking!!!!
Good grief. Are Democrats REALLY as blindly loyal as GOP Death Panelists?
The populations represented by insurance companies and Medicare are not he same. How do the statistics account for that?
>>>>The populations represented by insurance companies and Medicare are not he same. How do the statistics account for that?
Bingo! By lying.
The lower overhead for Medicare is always expressed as a percentage of claim dollars -- which is kinda stupid if you think about about it.
We all know that healthcare for the elderly is a LOT more expensive, right? Do the math.
I'm 67. You look to be a lot younger. My healthcare costs, on average, are 4-6 times higher than yours. So even if we had the exact same DOLLAR overhead, my PERCENTAGE would be a lot lower than yours.
If we each had $100 of overhead, my costs at $3000, your costs at $750.
Me: 100/3000 = 3.3%
You: 100/750 = 13.3%
The conservative think tanks say the overhead per PERSON is much higher in Medicare, which is also true, but equally useless.
You and I, in the next few seconds, will probably understand this issue better than the President, Congress and the rightwing think tanks. This is NOT rocket science.
To learn the efficiency of Medicare vs insurance, we need to know the processing cost PER CLAIM. It costs the same to process a $50 claim or a $1000 claim. So, how much per claim? I can't find that. Nobody cares. Both sides lie.
http://PoliticallyHomeless.net "The New Majority: Americans fed up with BOTH parties.
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Thank you for the thoughtful information and argument.
I believe the the equal protection amendment applies to governmental actions, not private companies. But who in their right minds would buy health insurance from a company that did this even once? Are we sheep? I wouldn't allow Cigna to provide me with health insurance,if they offered it to me for free. I'd rather do without! We're consumers! we have to power to put these people out of business! All you have to do is go somewhere else. I'd go to the emergency room before I bought anything from a company that only wanted to take money from me and offer nothing in return. That's exactly what happened in this case. Take your business elsewhere!
In general, no. In the context of ERISA. I would have to think about it.
My question, and forgive me for being somewhat off topic, but is somewhat related. Could the 14th ammendment violation argument be used not only against insurance, but against BigPharma too, who it is well documented is directly responsible for thousands of deaths a year from the products they give us, when they know there are better safer alternatives?
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BIg Pharma is a harder argument as you need government/state action in the denial. ERISA is a government program.
In order to violate the EP clause, there needs to be government action. These are private insurers. It seems like a stretch.
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That´s why the claim is the application of ERISA in an arbitrary manner is a violation of the Equal Protection Clause. ERISA is a federal statute. The court has found against plaintiffs who appeal insurance denials and has indicated ERISA does not have provide protection to employees in the area of coverage for certain health care needs, such as the operation in the CIGNA case, this is what I maintain may be a violation of the EP clause. ERISA has however, provided protections to employees under the plan for other health care issues, such as Cruzan.
Interesting idea. How would that play out in court (where I assume it must go to have any force to pressure legislative response)? How would you mount such a case? And how would you argue it?
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Excellent questions Kay. I maintain that the people in the CIGNA case for example would file suit under the Equal Protection clause saying the denial of insurance for their daughter´s liver transplant violated the Constitution. Since they had an ERISA plan they would argue that ERISA application to allow insurers to determine what health care needs they will cover based on nothing, violates the Equal Protection Clause.
What level of scrutiny would you urge the courts to apply?
Why? And
What is your argument that Erisa violate the Fourteenth Amendment's Equal Protection Clause?
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