Safe, but Not Sound: Limiting Safe Harbor Immunity for Health and Disability Insurers and Self-Insured Employers Under the Americans with Disabilities Act

When Congress passed the Americans with Disabilities Act (“ADA”) on July 26, 1990, supporters heralded the Act as a full-scale victory for the 43 million disabled Americans. The Act’s protections went far beyond those of its predecessor, the Rehabilitation Act of 1974, which only prohibited discrimination against individuals with disabilities by entities receiving federal funding. The new act was intended to prevent discrimination by private and public employers, public services, and public accommodations. In a bill signing ceremony at the White House, in front of more than two thousand advocates for the disabled, then President George Bush likened the ADA to the signing of the Declaration of Independence and the dismantling of the Berlin Wall. Amidst mighty cheers from the crowd, President Bush proclaimed that, because of the new law, “every man, woman and child with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.” Sandra Swift Parrino, director of the National Council on Disability, stated assuredly that the ADA was “a new beginning . . . [that would] shape the lives of those with disabilities for decades to come.” Disability advocates’ optimism about the broad reach of the ADA was certainly justified, for Congress also had grand goals in mind when enacting the law. The statute states that the main purposes of the ADA are to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities . . . .” The legislative history also indicates that Congress intended the ADA to be far-reaching in scope and dramatic in impact. Both the Senate arid House Reports state that the purpose of the ADA is to “end discrimination against individuals with disabilities and to bring persons with disabilities into the economic and social mainstream of American life . . . .”