Department of Justice Civil Rights Division Office of the Assistant Attorney General 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 Washington, D.C. 20035

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 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