The Americans with Disabilities Act of 1990. Changes in existing protection and impact on the private health services provider.

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The Americans with disabilities act of 1990 a

Rosemary E. Mahoney J.D. & Allan Gibofsky M.D., J.D.

b c d

a

Associate at Heidell, Pittoni, Murphy and Bach, P.C. , New York City b

Associate Professor of Medicine and Public Health , Cornell University Medical College , c

Adjunct Associate Professor of Law , Fordham University School of Law , New York, N.Y. d

The Hospital for Special Surgery , 535 East 70th Street, New York, N.Y., 10021 Published online: 23 Jul 2009.

To cite this article: Rosemary E. Mahoney J.D. & Allan Gibofsky M.D., J.D. (1992) The Americans with disabilities act of 1990, Journal of Legal Medicine, 13:1, 51-75, DOI: 10.1080/01947649209510874 To link to this article: http://dx.doi.org/10.1080/01947649209510874

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The Journal of Legal Medicine, 13:51-75 Copyright © 1992 by Hemisphere Publishing Corporation

THE AMERICANS WITH DISABILITIES ACT OF 1990


CHANGES IN EXISTING PROTECTION AND IMPACT ON THE PRIVATE HEALTH SERVICES PROVIDER Rosemary E. Mahoney, J.D.* Allan Gibofsky, M.D., J.D. f

INTRODUCTION Protection against discrimination under federal law has its roots in various Civil Rights Acts. These acts were amended and enlarged as society recognized that certain classes of people were not enjoying all the privileges and entitlements held by the majority.1 Congress eventually enacted the Civil Rights Act of 1957,2 followed by the Civil Rights Act of I960.3 In 1963, another Civil Rights Act was introduced, and became law in 1964.4 These Acts made it illegal to discriminate on the basis of race, creed, sex, and national origin. However, it was not until 1973, with the passing of the Vocational Rehabilitation and Other Rehabilitation Services statute (popularly known as the Vocational Rehabilitation Act (VRA) or the Rehabilitation Act of 1973),5 that federal law prohibited employers who received federal contracts or grants, or ran federal programs, to discriminate against the disabled. Although this Act went a long way toward acknowledging that disabled Americans have been unfairly victimized, it fell short of extending the complete protection of the law that already existed for * Associate at Heidell, Pittoni, Murphy and Bach, P.C., New York City. † Associate Professor of Medicine and Public Health, Cornell University Medical College; Adjunct Associate Professor of Law, Fordham University School of Law, New York, N.Y. Address correspondence and reprint requests to Dr. Gibofsky at The Hospital for Special Surgery, 535 East 70th Street, New York, N.Y. 10021. 1 Evidence of this realization may be found in 42 U.S.C. §§ 1981, 1982 (1966), which include recognition of equal rights under the law (§ 1981) and enjoyment of the same property rights enjoyed by white citizens (§ 1982). 2 Id. § 1981. 3 Id. 4 Id. 5 29 U.S.C. § 701 (1973).

51


52

MAHONEY AND GIBOFSKY

those who suffered other types of discrimination. Indeed, although members of religious sects and people of various ethnicity (of either sex) were enjoying the same access to privately funded public services as white male citizens, those who were disabled could not, and did not, enjoy the protection of federal law. The Americans with Disabilities Act (ADA), signed into law by President Bush on July 27, 1990,6 for the first time guaranteed the rights of the disabled to be free of discrimination by the private employer, private health service provider, or private facility with public access. For the chronically ill, the Americans with Disabilities Act provides the most comprehensive protection to date. This article explores, in Part I, the provisions of the ADA in general, with specific attention to those sections dealing with the chronically ill and the private provider of public services. Part II compares and contrasts the extent of protection for the disabled under the VRA and the newly enacted ADA, again paying close attention to the implications for private health service providers and the chronically ill. The article concludes by observing that, although the ADA may result in little or no change in the protections offered the disabled by statute in some states and municipalities, it nevertheless extends protection to the disabled in those jurisdictions where state law does not already do so. Further, for the first time, clinical offices of private practitioners are defined as places of public accommodation, thus coming under the purview of the ADA. I. THE AMERICANS WITH DISABILITIES ACT OF 1990 A. Legislative History On July 26, 1990, the Americans with Disabilities Act of 1990 was enacted after passage in the House on July 12, and passage in the Senate on July 11 and 13, 1990.7 The Act was first introduced in 1988 during the 100th Congress.8 It was drafted by the National Council on Disability9 and was the subject of hearings in the House.10 It was reintroduced, in modified form, in the 101st Congress." The Subcommittee on Civil and Constitutional Rights held three hearings on the bill.12 House committees on Public Works and Transportation, Education 6

7 8

Americans with Disabilities Act of 1990, 1990 U.S. CODE CONG. & ADMIN. NEWS 327.

Id. H.R. REP. NO. 485(III), 101st Cong., 2d Sess. 34, reprinted in 1990 U.S. CODE CONG. & ADMIN. NEWS 445, 446 & n.2.

9 10 11 12

Id. at 446-47 & n.3. Id. at 447. Id. at 447 n.5. Id. at 447 n.6.


AMERICANS WITH DISABILITIES ACT OF 1990

53

and Labor, Judiciary, and Energy and Commerce all issued reports on the proposed legislation.13 In addition, a Senate Report was issued by the Labor and Human Resources Committee.14 On May 22, 1990, it was passed by the House with a request for amendments that were adopted on July 11, 1990.15 The Senate bill was amended to contain much of the language of the House bill, and was sent to the President for consideration on July 17, 1990.16 On July 26, 1990, it was signed by the President and became Public Law 101-336 (104 Stat. 327). House Report number 101-485(1) largely deals with the accessibility of transportation services to the disabled. In the introduction to this report, the Committee on Public Works and Transportation recognizes that many American cities are already making the commitment to provide accessible transportation services. "So, the passage of the ADA will not break sharply with existing transit policy. It will simply extend past successes to even more cities, so that this country can continue to make progress in providing much needed transit services for individuals with disabilities."17 House Report number 101-485(11), by the Committee on Education and Labor, indicates that hearings were held before the Subcommittee on Select Education and the Subcommittee on Employment Opportunities on legislation to establish a "clear and comprehensive prohibition of discrimination on the basis of disability"18 in July, August, September, and October of 1989.19 Among the witnesses testifying were representatives from the President's Commission on the Acquired Immunodeficiency Syndrome (AIDS); representatives for the blind, deaf, and mentally ill, people with AIDS, spina bifida, and severe burns; representatives from the National Multiple Sclerosis Society, the Epilepsy Foundation of America, the National Head Injury Foundation, the Association for Children and Adults with Learning Disabilities; several public and private advocacy groups, advocates of independent living, heads of school districts and universities; and, many others.20 The Task Force on the Rights and Empowerment of Americans with Disabilities was established in May of 1988 to collect information on the extent and nature of disability discrimination in America.21 Sixty-three Task 13 14

15 16 17

All of the reports a r e reprinted in 1990 U . S . C O D E C O N G . & A D M I N . N E W S 267ff. 1990 U . S . C O D E C O N G . & A D M I N . N E W S 2 6 7 .

Id. Id. H.R. REP. N O . 485(I), 101st Cong., 2d Sess. 2 4 , reprinted in 1990 U.S. C O D E CONG. & ADMIN. NEWS 267, 268.

18

H.R. REP. N O . 485(II), 101st Cong., 2d Sess. 2 4 , reprinted in 1990 U . S . C O D E CONG. & ADMIN.

19

Id. Id. at 306-10. Id. at 309.

NEWS 303, 306. 20 21

54

,


Force public forums were held, attended by an estimated 8,000 individuals.22 The Task Force report, along with reports by the National Council on Disability, U.S. Civil Rights Commission polls, surveys, and other reports indicated a need for this legislation. Indeed, the chairperson of the Task Force, after hearing incidents of stereotyping, discrimination, and unwarranted prejudices, remarked:


Although America has recorded great progress in the area of disability during the past few decades, our society is still infected by the ancient, now almost subconscious assumption that people with disabilities are less than fully human and therefore are not fully eligible for the opportunities, services, and support systems which are available to other people as a matter of right. The result is massive, society wide discrimination.23

House Report II states that, very often, the disabled want to work but are frustrated in their attempts.24 The resultant dependency on social welfare programs costs taxpayers billions of dollars each year.25 The disabled also often face a loss of dignity, a sense of fear, and isolation that can lead to suicide.26 Prior to the ADA, state and federal protections for the disabled generally were inadequate.27 Federal anti-discrimination laws did not reach employers in the private sector, places of public accommodation, and state and local government agencies that did not receive federal aid.28 Moreover, former Attorney General Thornburgh emphasized that existing federal law contained serious gaps in coverage that left disabled persons without adequate protection.29 The House Report II summary perhaps best describes the motivation for the Act: The unfortunate truth is that individuals with disabilities are a discrete specific minority who have been insulated in many respects from the general public. Such individuals have been faced with a range of restrictions and limitations in their lives. Further, they have been subjected to unequal and discriminatory treatment in a range of areas, based on characteristics that are beyond the control of such individuals and resulting from stereotypical assumptions, fears and myths not truly indicative of the ability of such individuals to participate in and contribute to society. Finally, such individuals have often not had the political power and mus-

22

Id. Id. at 313. 24 Id. at 327. 25 Id. at 325. 26 Id. at 324. 27 Id. at 329. 28 Id. 29 Id. at 330. 23


55


cle to demand the protections that are rightfully theirs. The simple fact that this Act has taken this long tospass Congress, twenty-five years after other civil rights legislation has been passed, is a testament to that fact. This Act will finally set in place the necessary civil rights protections for people with disabilities.30

The third House Report (No. 101-485(111)), by the Committee on the Judiciary, states: "Compared with persons without disabilities, persons with disabilities are much poorer, have far less education, have less social and community life, participate much less often in social activities that other Americans regularly enjoy, and express less satisfaction with life."31 Much of this is due to historic notions as to the limitations imposed by disabilities. This Report (III) cites the Fess-Kenyon Act of 1920 as the first major challenge to the idea that being disabled meant lifelong economic dependency.32 The most pervasive and direct form of recognition, however, was the 1973 Rehabilitation Act, which prohibited discrimination by recipients of federal financial assistance.33 As already expressed, the ADA extends these protections, providing a "comprehensive piece of civil rights legislation which promises a new future: a future of inclusion and integration, and the end of exclusion and segregation."34 B. Provisions Section 1 of the ADA sets forth the short title and the table of contents. Section 2 states the findings and purposes of the Act,35 and section 3 defines terms in accordance with the Act. Under section 3, a disability is defined as: "(A) a physical or mental impairment that substantially limits

30 31 32 33

34

35

Id. at 322. H . R . REP. N O . 485(111), supra note 8, at 447 & n . 7 . Id. at 448 & n . 8 . 2 9 U . S . C . § 701 (1973). H.R. REP. N O . 485(10), supra note 8, at 4 4 9 .

The findings of Congress are set forth as follows: (a) Findings—The Congress finds that— (1) some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older; (2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem; (3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services; (4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced dis-

56


one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." House Report II explains that the use of the term "disability" instead of "handicap" is in conformity with current sensibilities.36 Furthermore, the first prong of the definition is meant to include both physical and mental impairments:


A physical or mental impairment means—(1) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or (2) any mental or psy-

36

crimination on the basis of disability have often had no legal recourse to redress such discrimination; (5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities; (6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally; (7) individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypical assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society; (8) the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic selfsufficiency for such individuals; and (9) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and non productivity. (b) Purpose—It is the purpose of this Act— (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; (3) to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities; and (4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day to day by people with disabilities. Americans with Disabilities Act of 1990, supra note 6, at 328-29. H.R. REP. NO. 485(II), supra note 18, at 333.


57

chological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.37

Some of the physical and mental impairments included are:


orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, infection with the Human Immunodeficiency Virus, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, drug addiction, and alcoholism.38

House Report II also points out that physical characteristics, such as hair and eye color, are not considered impairments under the Act.39 Economic, cultural, or environmental disadvantages also are not within the scope of the ADA.40 For purposes of the ADA, a physical or mental impairment is not considered a disability under the first prong of the definition unless it "substantially limits a major life activity."41 House Reports II and III define a "major life activity" to include functions like seeing, hearing, walking, speaking, breathing, learning, performing manual tasks, and caring for oneself.42 "For example, a paraplegic is substantially limited in the major life activity of walking, a person who is blind is substantially limited in the major life activity of seeing, and a person who is mentally ill is substantially limited in the major life activity of learning."43 Minor, trivial impairments do not substantially limit major life activities.44 The proper test is whether the "individual's important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people."45 The disability should be assessed, according to House Reports II and III, without regard to whether mitigating measures would render the impairment less than substantial.46 "For example, a person who is hard of hearing is substantially limited in the major life activity of hearing, even though the loss may be corrected through the use of a hearing aid."47 The second prong of the definition includes as a person with a disabil37 38 39 40 41 42 43 44 45 46 47

Id. Id. Id. Id. at 333-34. Id. at 334. Id. H.R. REP. N O . 485(III), supra note 8, at 451 & n . 1 8 . H.R. REP. N O . 485(II), s u p r a note 18, at 334. Id. Id.; H.R. REP. N O . 485(III), supra note 8, at 4 5 1 . H.R. REP. N O . 485(II), supra note 18, at 334.


58


ity someone with a "record of such an impairment."48 Thus, the definition extends protection to persons who have recovered from impairments or who have been misclassified as having an impairment.49 The third test, "being regarded as having such an impairment," applies regardless of whether a person has an impairment. Focus is placed on whether an individual is treated as if he or she had an impairment that substantially limits a major life activity.50 Individuals with cosmetic deformities are often treated as if they have such an impairment. An excellent example is provided in House Report II: "Severe burn victims often face discrimination in employment and participation in community activities which results in substantial limitation of major life activities."51 The attitudes of others are the cause of their discrimination. The impetus for this third test as used in the Rehabilitation Act of 1973, stems from the Supreme Court ruling in School Board of Nassau County v. Arline.52 That case involved a school teacher with chronic tuberculosis that, when controlled, posed no threat of infection to students or others. The school board nonetheless refused to permit the teacher to teach. The Court concluded that Arline had been unfairly discriminated against as a result of the negative reaction of others to the impairment. By amending the definition of "handicapped individual" to include not only those who are actually physically impaired, but also those who are regarded as impaired and who, as a result, are substantially limited in a major life activity, Congress acknowledged that society's accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment.53

Thus, it would be a violation of the ADA for an employer to reject a person from a job due to the myths, fears, or perceptions of others about the person's disabilities. Title I of the Act prohibits employment discrimination against the disabled. Section 103(a) allows a defense if the employer can show that the qualification test or selection criteria used is job related and consistent with business necessity. Section 103(b), entitled "Qualification Standards," allows employers to set qualification standards for employees. These standards may include a

48

Id.; H.R. REP. N O . 485(III), supra note 8, at 452. H.R. REP. N O . 485(II), supra note 18, at 334; H.R. REP. N O . 485(III), supra note 8, at 452. 50 H.R. REP. N O . 485(III), supra note 8, at 452. See H.R. REP. N O . 485(11), supra note 18, at 335. 51 H.R. REP. N O . 485(II), supra note 18, at 335. 52 480 U.S. 273 (1987). See also H.R. REP. N O . 485(III), supra note 8, at 453 & n.20. 53 Arline, 480 U.S. at 284. See also H.R. REP. N O . 485(II), supra note 18, at 335; H.R. REP. N O . 485(III), supra note 8, at 453. 49



59

requirement that the individual not pose a direct threat to the health or safety of others in the workplace.54 House Reports II and III indicate that the "direct threat" standard was included as a result of the Arline decision,55 which said that for a person with a disability to pose a direct threat to the health or safety of others in the workplace, the person must present a significant risk of transmitting the disease or infection to others in the workplace that cannot be eliminated by reasonable accommodation.56 Thus, such person will not be considered as otherwise qualified for the job if reasonable accommodation will not eliminate the risk.57 House Report III further indicates that the Arline reasoning should not be limited to persons with contagious diseases. Speculation or generalizations about the disability cannot be the basis for excluding someone from a job.58 There must be objective evidence about the individual involved.59 "The determination of significant risk for persons with disabilities must be based on the current condition of the applicant or employee,"60 and cannot merely be based on "an elevated risk of injury."61 Section 103(d) provides for the Secretary of Health and Human Services to (A) review all infectious and communicable diseases which may be transmitted through handling the food supply; (B) publish a list of infectious and communicable diseases which are transmitted through handling the food supply; (C) publish the methods by which such diseases are transmitted; and (D) widely disseminate such information regarding the list of diseases and their modes of transmissibility to the general public.

This list is to be updated annually.62 A covered entity is permitted to refuse to assign or to continue to assign an individual to a job that entails food handling if two criteria are met: first, the individual must have a disease that is included on the list published by the Secretary of Health and Human Services of diseases that may be transmitted to others through food handling. Second, it must be established that reasonable accommodation will not eliminate the risk.63 54 55 56 57 58 59 60 61 62 63

H.R. REP. N O . 485(II), supra note 18, at 359. See H.R. REP. N O . 485(III), supra note 8, at 468. H.R. REP. N O . 485(II), supra note 18, at 359; H.R. REP. N O . 485(III), supra note 8, at 468. H.R. REP. N O . 485(II), supra note 18, at 359; H.R. REP. N O . 485(III), supra note 8, at 468 & n.36. H.R. REP. N O . 485(III), supra note 8, at 468 & n.36. Id. at 4 6 8 . Id. Id. at 4 6 9 . Id. at 469 & n . 3 8 . Americans with Disabilities Act of 1990, § 103(d)(l). Id. § 103(d)(2).


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The food handling provisions were included as House amendments.64 House Conference Report No. 101-596 reveals that the underlying goal of the provisions is to ensure that accurate information is conveyed to the general public regarding infections and communicable diseases that are transmitted through the handling of food.65 Further, the House Conference Report indicates several times that it is the purpose of these provisions to ensure the American public that the Secretary has carefully analyzed and continues to determine which diseases are communicated through the handling of food.66 Members of the House Conference expressed concern that many Americans are uneducated in this area and often have false perceptions about transmission. These false perceptions should not determine whether individuals may remain in food handling jobs.67 Therefore, this part of the Act requires the Secretary to widely disseminate information regarding the list of diseases and the ways such diseases are transmitted through the handling of food.68 The conferees describe the dissemination as a "critical component of the amendment"69 and require the Secretary to use valid scientific and medical analysis and accepted public health methodologies and statistical practices when creating the list.70 The Conference Report indicates, however, that mere placement of a disease on the list does not, in itself, define the disease as a disability under the Act.71 "Rather, whether a person is an 'individual with a disability' is determined pursuant to section 3(2),"72 which defines disability. A reasonable accommodation must be made if the accommodation will eliminate the risk of the disease being transmitted in the particular job.73 The accommodation is subject to the "undue hardship" limitation under the ADA.74 Title II of the Act prohibits discrimination by reason of disability from the benefits of the services, programs, or activities of a public entity.75 This title includes a lengthy subtitle dealing with transportation provided by public entities paratransit, fixed route services, demand respon-

64

H . Conf. Rep. N o . 596, 101st Cong. 2d Sess. 6 1 , reprinted in 1990 U . S . C O D E CONG. & A D M I N . NEWS 565,

65 66 67 68

69 70 71 72 73 74 75

570.

Id. at 570-72. Id. Id. H . Conf. Rep. N o . 596, supra note 6 4 , at 570-72; Americans with Disabilities Act of 1990, § 103(d)(1)(D). H . Conf. Rep. N o . 596, supra note 64, at 5 7 1 . Id. at 570-71. Id. at 5 7 1 . Id. at 571-72. Id. at 5 7 1 . Id. Americans with Disabilities Act of 1990, § 202.



61

sive systems, and new facilities.76 In addition, Part II deals with intercity and commuter rail transportation and the accessibility requirements thereunder for the disabled.77 Title III of the Act sets forth as a general rule that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."78 Title III also makes it clear that to deny participation to the disabled or to grant the disabled an unequal or separate benefit is discriminatory, unless providing a separate benefit is necessary to grant the disabled a good, service, facility, privilege, advantage, accommodation, or other opportunity that is as effective as those granted other individuals.79 This section also requires the most integrated setting possible for the needs of the disabled individual.80 The Title includes provisions that the construction of new facilities or alteration of existing facilities be accessible to and usable by the disabled.81 Section 301(1) of Title III defines the term "public accommodation." That definition includes the following privately operated facilities, if the operations of such entities affect commerce: (A) An inn, hotel, motel, or other similar place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor; (B) A restaurant, bar, or other establishment serving food or drink; (C) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (D) An auditorium, convention center, or lecture hall; (E) A bakery, grocery store, clothing store, hardware store, shopping center, or other similar retail sales establishment; (F) A laundromat, dry cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other similar service establishment; (G) A terminal used for public transportation;

76

77

78 79 80 81

Americans with Disabilities Act of 1990, Title II, Subtitle B (Actions Applicable to Public Transportation Provided by Public Entities Considered Discriminatory). Americans with Disabilities Act of 1990, Title II, Part II (Public Transportation by Intercity and Commuter Rail). Americans with Disabilities Act of 1990, § 302(a). See id. § 302(b)(1)(A)(iii). See id. § 302(b)(l)(B). See id. § 303.

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(H) A museum, library, gallery, and other similar place of public display or collection; (I) A park or zoo; (J) A nursery, elementary, secondary, undergraduate, or post graduate private school; (K) A day care center, senior citizen center, homeless shelter, food bank, adoption program, or other similar social service center; and (L) A gymnasium, health spa, bowling alley, golf course, or other similar place of exercise or recreation.82

House Reports II and i n indicate that the list is meant to be exhaustive, with the "other similar" terminology meant to be interpreted liberally.83 For purposes of this article, discussion focuses on the accessibility of the physician's office to the disabled as required by subsection (F) above. House Report II states that for a physician's office to be "readily accessible to and usable by" those with disabilities, it is required to have ready access to the waiting areas, a bathroom, and a percentage of the examining rooms.84 Testimony prior to the passage of the ADA indicates the concern regarding access to facilities. Robert Burgdorf, Jr., a Professor of Law at the District of Columbia School of Law, testifying on behalf of the National Easter Seal Society, stated: [I]t makes no sense to bar discrimination against people with disabilities in theaters, restaurants, or places of entertainment but not in regard to such important things as doctors' offices. It makes no sense for a law to say that people with disabilities cannot be discriminated against if they want to buy a pastrami sandwich at the local deli but that they can be discriminated against next door at the pharmacy where they need to fill a prescription. There is no sense to that distinction.85

Section 302(a) sets forth obligations for the owners of the building that houses the public accommodation, as well as for the owner or operator of the public accommodation.86 For example, if an office building contains a doctor's office, both the owner of the building and the doctor's office are required to make readily achievable alterations. It simply makes no practical sense to require the individual public accommodation, a doctor's office for example, to make readily achievable changes to

82

See id. § 301(7). H.R. REP. N O . 485(II), supra note 18, at 383; H.R. REP. N O . 485(III), supra note 8, at 477. 84 H.R. REP. N O . 485(II), supra note 18, at 4 0 1 . 85 Id. at 317 (testimony before Senate Subcommittee on the Handicapped, S. Hearing 101-156, May 10, 1989). 86 H.R. REP. N O . 485(III), supra note 8, at 478. 83


63


the public accommodation without requiring the owner to make readily achievable changes to the primary entrance to the building.87

Section 302(b)(2)(A)(ii) makes it discriminatory to fail to make reasonable modifications in policies or practices when such modifications may be necessary to ensure that the disabled are granted access to goods or services provided, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of the facilities, goods, or services.88 House Report II discusses the above section as it relates to physicians who have developed areas of specialization.89 "Nothing in this legislation is intended to prohibit such a physician from referring a patient with a disability to another physician if that patient is seeking treatment outside the doctor's specialization and if the doctor would make a similar referral for an individual without that disability."90 For example, a physician who specializes in treating burn victims could not refuse to treat the burns of a deaf individual because of that individual's deafness. However, that physician is not required to accept the deaf individual as a patient if the individual does not have burns. The physician would need only to provide other types of medical treatment to the burn victim if the physician provided such other treatments to nondisabled individuals."

House Report II also indicates that the legislation is not intended to prohibit a physician from referring an individual with a disability to another physician if the physician would refer other, nondisabled people with the same conditions to another physician, or if the disability creates specialized complications for the patient's health, which the physician lacks the knowledge or experience to address.92 Title IV of the Act deals primarily with telecommunication relay services for the hearing impaired or speech impaired, including closecaptioning of public service announcements, and the use of TDDs, or telecommunications devices for the deaf.93 Title IV mandates that such services be available, to the extent possible and in the most efficient manner.94 Title V of the Act provides, in section 501 (a), that nothing in this Act shall be construed to apply a lesser standard than the standards applied 87 88 89 90 91 92 93 94

Id. at 478-79. Id. at 4 8 2 . See H.R. REP. N O . 485(II), H . R . REP. N O . 485(II), supra note 18, Id. Id. at 389. Id. See Americans with Disabilities Act of See H . R . REP. N O . 485(II), supra note

supra note 18, at 388. at 388-89.

1990, Title IV. 18, at 412.


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under Title V of the Rehabilitation Act of 1973 or the regulations issued by federal agencies pursuant to such title. Section 501(b) preserves the remedies, rights, and procedures of any federal law or any law of a state or political subdivision of any state or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this Act. Section 501(c) deals with insurance carriers and the classification of risks; and section 501(d) states that nothing in the Act should be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit that such individual chooses not to accept. Section 502 provides that a state shall not be immune from an action in federal or state court of competent jurisdiction for a violation of the Act. Remedies are available for a violation to the same extent as are available for such a violation in an action against any public or private entity other than a state. Section 503 prohibits retaliatory acts of discrimination against an individual for opposing, charging, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the Act. Section 503(b) makes unlawful the coercion, intimidation, threatening, or interference with any individuals in the exercise, or assistance in the exercise, of any right granted or protected by this Act. Section 504 deals with the issuance of guidelines by the Architectural and Transportation Barriers Compliance Board. These guidelines were issued in the September 6, 1991 Federal Register. Section 505 allows the prevailing party, other than the United States, to recover reasonable attorneys' fees, including litigation expenses, and costs. This provision should help to discourage frivolous suits. Section 506 deals with implementation and publication of a plan to assist entities covered under this Act in understanding their responsibilities under the Act. Federal Wilderness Areas are the subject of section 507, which requires a report on accessibility of such areas to the disabled.95 Section 508 makes it clear that, for purposes of the Act, the term "disabled" or "disability" does not apply to an individual solely because that individual is a transvestite. Section 511 also excludes transvestism. Section 509 deals with applicability of the Act to Congress and the agencies of the Legislative Branch. An individual who is currently engaged in the illegal use of drugs is not an "individual with a disability" under the Act.96 However, under section 510, an individual who has successfully completed, or is participat95 95

Americans with Disabilities Act of 1990, § 507(a) & (b). See id. § 510(a).



65

ing in, a supervised drug rehabilitation program and is no longer engaging in such use, or who is erroneously regarded as engaging in such use, is considered to be an individual with a disability for purposes of the Act.97 Section 511 excludes homosexuality98 and bisexuality from the definition of disability under the Act.99 This section also excludes: transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, or pyromania; or, psychoactive substance use disorders resulting from current illegal use of drugs.100 Section 512 of the ADA amends the Rehabilitation Act of 1973 in the definition of a handicapped individual, and the definition of illegal drugs.101 These changes are discussed in more detail in Part II of this article. Section 513 authorizes and encourages the use of alternative means of dispute resolution when appropriate. Lawsuits are seen as a last resort, and 97 98

See id. § 510(b). The Dissenting Views on the Americans 2d Sess., reprinted

with Disabilities

Act, H . R . REP. N O . 485(IV), 101st Cong.

in 1990 U . S . C O D E C O N G . & A D M I N . N E W S 562-65 (B. Dannemeyer, J.

Barton, & D . Ritter, dissenters) (expresses distaste that the A D A is a "defacto homosexual rights bill," even with the language of section 508(a)). Because those with currently contagious diseases or infections or sexually transmissible disease are to be reasonably accommodated by an employer, the dissenters argue that the protections of the A D A are available to "all male homosexuals by virtue of the perception that homosexual males 'are regarded a s ' being infected with HIV." Id. at 565. " W e believe that the A D A is a homosexual rights bill in disguise." Id. 99 Americans with Disabilities Act of 1990, § 511(a). 100 Id. § 511(b)(1), (2), & (3). 101 Id. § 5 1 2 . This section states: (a) Definition of Handicapped Individual—Section 7(8) of the Rehabilitation Act of 1973 (29 U . S . C . 706(8)) is amended by redesignating subparagraph (C) as subparagraph ( D ) , and by inserting after subparagraph (B) the following subparagraph: "(C)(i) F o r the purposes of title V, the term, 'individual with handicaps' does not include an individual w h o is currently engaging in the illegal use of drugs, where a covered entity acts on the basis of such use. "(ii) Nothing in clause (i) shall be construed to exclude as an individual with handicaps an individual who— "(I) has successfully completed a supervised drug rehabilitation program and is n o longer engaging in such use, o r has otherwise been rehabilitated successfully and is n o longer engaging in such use; or "(IT) is participating in a supervised rehabilitation program and is no longer engaging in such use; or "(III) is erroneously regarded as engaging in such use, but is not engaging in such u s e ; except that it shall not b e a violation of the Act for a covered entity to adopt or administer reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual described in subclause (I) or (II) is no longer engaging in the illegal use of drugs. "(iii) Notwithstanding clause (i), for purposes of programs and activities providing health services and services provided under titles I, II and III, an individual shall not b e excluded from the benefits of such programs or activities on the basis of his or her current illegal use of drugs if he or she is otherwise entitled to such services.

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are discouraged. Finally, section 514 allows for severability should any portion of the Act be found unconstitutional.


II. THE ADA AND THE VOCATIONAL REHABILITATION ACT OF 1973 The Vocational Rehabilitation Act of 1973 (VRA)102 has as its purpose, "to develop and implement, through research, training, services, and the guarantee of equal opportunity, comprehensive and coordinated programs of vocational rehabilitation and independent living, for individuals with handicaps in order to maximize their employability, independence, and integration into the workplace and the community."103 The Americans with Disabilities Act takes a different approach in its purpose: (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; (3) to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities; and (4) to invoke the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.104

The ADA's statement of Congressional Purpose is more clear and direct,

102 103 104

"(iv) F o r purposes of programs and activities providing educational services, local educational agencies may take disciplinary action pertaining t o the use or possession of illegal drugs o r alcohol against any handicapped student who is currently engaging in the illegal use of drugs o r in the use of alcohol t o the same extent that such disciplinary action is taken against non handicapped students. Furthermore, the due process procedures at 3 4 C F R 104.36 shall not apply t o such disciplinary actions. "(v) F o r purposes of sections 503 and 504 as such sections relate t o employment, the term 'individual with handicaps' does not include any individual w h o is an alcoholic whose current use of alcohol prevents such individual from performing the duties of the j o b in question o r whose employment, by reason of such current alcohol abuse, would constitute a direct threat t o property or the safety of others." (b) Definition of Illegal Drugs—Section 7 of the Rehabilitation Act of 1973 (29 U . S . C . 706) is amended b y adding at the end of the following n e w paragraph: "(22) (A) T h e term 'drug' means a controlled substance, as defined in schedules I through V of Section 202 of the Controlled Substance Act (21 U . S . C . § 812). "(B) The term 'illegal use of drugs' means the u s e of drugs, the possession o r distribution of which is unlawful under the Controlled Substances Act. Such term does not include the u s e of a drug taken under supervision by a licensed health care professional o r other uses authorized b y the Controlled Substances Act o r other provisions of Federal law." 2 9 U . S . C . § 701 (1973). Id. Americans with Disabilities Act of 1990, § 2(b).



67

concerned with complete elimination of discrimination against disabled persons and enforcement of the standards it establishes. In the VRA, the focus was more on helping the disabled help themselves. The VRA established the National Council on the Handicapped, set up training facilities and rehabilitation programs, and provided grants for research and construction.105 The President set up, under the auspices of the VRA, the Committee on Employment of People with Disabilities.106 These are all programs aimed at assisting the disabled find jobs and integrate into society. In the ADA, however, we find a "get tough" style that provides the unequivocal message that discrimination against the disabled in the private and public sector will not be tolerated. Many of the provisions of the ADA mirror provisions in the VRA; however, House Report II on the ADA indicates the need to go further: "Current Federal law is also inadequate. Currently, Federal antidiscrimination laws only address discrimination by Federal agencies, entities that have contracts with the Federal government, and recipients of Federal financial assistance."107 Former Attorney General Thornburgh, on behalf of President Bush, addressed this inadequacy and the need for new legislation: One of (the ADA bill's) most impressive strengths is its comprehensive character. Over the last 10 years, civil rights laws protecting disabled persons have been enacted in piecemeal fashion. Thus, existing Federal laws are like a patchwork quilt in need of repair. There are holes in the fabric, serious gaps in coverage that leave persons with disabilities without adequate civil rights protection.1

The definition of "disability" in the ADA is comparable to the definition of the term "individual with handicaps" in section 7(8) (B) of the Rehabilitation Act of 1973. m The ADA uses the term "disability" instead of "handicap" in an effort to use currently accepted terminology. No change in definition or substance is intended by this change of phrase.110 The three-pronged definition, discussed in detail above, was adopted because it has worked well since 1973, and because it would not be possible to guarantee comprehensiveness by making a list of specific disabilities, in that new disabilities might develop in the future."1 The VRA, in addition to defining an individual with handicaps, goes 105

See 29 U.S.C. §§ 780-790 (1973). See id. § 7 9 1 . 107 H.R. REP. N O . 485(II), supra note 18, at 329. 108 Id. at 330 n.29. 109 H.R. REP. N O . 485(II), supra note 18, at 332. See H.R. REP. N O . 485(III), supra note 8, at 450. 110 H.R. REP. N O . 485(II), supra note 18, at 333. 111 See H.R. REP. N O . 485(III), supra note 8, at 450. 106


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on to define an "individual with severe handicaps,"112 for purposes of identifying those in need of special vocational rehabilitative services. The definitions of undue hardship and reasonable accommodation are consistent in both statutes. Title I of the ADA borrows much of its substantive framework from section 504 of the Rehabilitation Act of 1973.113 Specifically, the concept used in implementing sections 501 and 504 of the VRA is the same concept used in section 101(7) of the ADA, which defines a "qualified individual with a disability."114 Similarly, section 102 of the ADA, dealing with the employment process, is intended to be construed in a manner consistent with the regulations implementing section 504 of the Rehabilitation Act.115 One significant difference between the VRA and the ADA is that the VRA does not contain protections for people associating with those who are disabled. Section 102(b)(4) of the ADA extends protection to individuals who are discriminated against because of their relationship or association with a disabled person."6 Although the employer may not discriminate against someone with a sick relative, the employer is not required, under the ADA, to provide reasonable accommodation to that person.117 Under section 102(c)(4)(A) of the ADA, the employer is not permitted to ask an employee whether he or she is an individual with a disability or inquire as to the severity of the disability, unless the inquiry is shown to be job related and consistent with business necessity. The VRA, on the other hand, requires employers to allow employees and applicants to identify themselves as handicapped."8 The VRA is an affirmative action statute.119 Title II of the ADA specifically states that its public transportation provisions are not meant to apply to public school transportation, because such services are subject to the requirements of section 504 of the Rehabilitation Act of 1973.12° Instead, the Title II provisions broaden the reach of section 504. Under Title II of the ADA, if a public entity has entered into a 112 113 114 115 116

117 118 119 120

2 9 U . S . C . § 706(15) (B) (1973). H . R . REP. N O . 485(III), supra note 8, at 454. Id. at 4 5 5 . See H . R . REP. N O . 485(II), supra note 18, at 3 3 7 . H . R . REP. N O . 485(II), supra note 18, at 3 3 6 . Section 102(b)(4) of the A D A states: " ( b ) Construction—As used in subsection (a), the term " d i s criminate" includes— (4) excluding or otherwise denying equal jobs or benefits t o a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association . . . ." This difference in the two statutes was pointed out in Employer Compliance with the Americans with Disabilities Act: A Satellite Program (Practicing L a w Institute television broadcast, Nov. 8, 1990). H . R . REP. N O . 485(II), supra note 18, at 344. See also Employer Compliance, supra note 116. Employer Compliance, supra note 116. See 29 U . S . C . § 796(h) (1973). H . R . REP. N O . 485(I), supra note 17.



69

contractual or other arrangement with a private entity to provide public transportation, then the public entity must ensure that the accessibility requirements are the same as if a public entity were operating the system.121 If the public entity were operating the system, then it would have to comply with the accessibility requirements of section 504 of the Rehabilitation Act.122 Of course, these requirements remain under the ADA.123 House Report II indicates that the very purpose of Title II is to extend the prohibitions set out in the regulations implementing section 504 of the Rehabilitation Act to all programs, activities, and services made available by state or local instrumentalities, regardless of whether such entities receive federal financial assistance.124 A second purpose of Title II is to clarify the requirements of section 504 of the Rehabilitation Act for those entities that are receiving federal financial assistance, and to extend coverage to all entities providing public transportation.125 Title III of the Act provides perhaps the most significant changes from the Rehabilitation Act of 1973. Section 504 of the Rehabilitation Act provides: Nondiscrimination under federal grants and programs; promulgation of rules and regulations (a) Promulgation of rules and regulations: no otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title, shall, solely by reason of his or her handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by an Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.126

A program or activity is defined in subdivision (b) of section 504: (b) "Program or activity" defined for the purposes of this section, the term "program or activity" means all of the operations of— (1) (A) a department, agency, special purpose district, or other instrumentality of a State or of a local government; or (B) the entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government 121

Id. See H.R. REP. NO. 485(II), supra note 18, at 366-67. H.R. REP. N O . 485(I), supra note 17. 123 H.R. REP. N O . 485(II), supra note 18, at 366-67. 124 Id. at 366. 125 Id. 126 29 U.S.C. § 794(a) (1973). 122


70


entity) to which the assistance is extended, in the case of assistance to a State or local government; (2) (A) a college, university, or other post secondary institution, or a public system of higher education; or (B) a local educational agency (as defined in section 2891 (12) of Title 20) system of vocational education, or other school system; (3) (A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship— (i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or (ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or (B) the entire plant or other comparable, geographically separate facility to which federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or (4) any other entity which is established by two or more of the entities described in paragraph (1), (2) or (3); any part of which is extended federal financial assis-

The emphasis in section 504 is on federal financial assistance. Title III of the ADA, while not detracting from the protections afforded the disabled under section 504, goes beyond these protections and prohibits discrimination by private entities that do not receive federal financial assistance, yet are providing public services. For the first time, then, entities such as physicians' offices, zoos, parks, hospitals, and pharmacies will have to meet accessibility requirements. House Report II indicates the purpose of Title HI: Section 504 of the Rehabilitation Act of 1973 prohibits Federal agencies and recipients of Federal financial assistance from discriminating against persons with disabilities. The purpose of title III of the legislation is to extend these general prohibitions against discrimination to privately operated public accommodation and to bring individuals with disabilities into the economic and social mainstream of American life. Title HI fulfills these purposes in a clear, balanced, and reasonable manner.128

Providers of public services, such as physicians, are now required under the ADA to make their offices "readily accessible to and usable by" the disabled.129 In the physician's office this would include "ready access to the waiting areas, a bathroom, and a percentage of the examining rooms."130 Section 504 of the VRA simply did not extend protections for the disabled this far. 127

Id. § 794(b). H.R. REP. N O . 485(II), supra note 18, at 381-82. 129 Id. at 4 0 1 . 130 Id. 128



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In accordance with the ADA, the Justice Department issued regulations on July 26, 1991.131 These regulations deal at length with specific ways for hospitals and offices of professional health care providers to comply with the ADA. These regulations took effect on January 26, 1992, for existing facilities, and will take effect on January 26, 1993, for facilities designed and constructed for first occupancy after that date. Under the regulations, a "professional office of a health care provider" is defined as "a location where a person or entity regulated by a State to provide professional services related to the physical or mental health of an individual makes such services available to the public."132 For new construction, Congress chose not to require elevators in new buildings.133 This exemption does not apply, however, to a facility housing the professional office of a health care provider.134 A facility housing the "professional office of a health care provider" includes, "floor levels housing at least one health care provider, or any floor level designed or intended for use by at least one health care provider."135 If an alteration is made to an existing facility, those alterations must be made in a manner that gives access to the disabled.136 "Normal maintenance, reroofing, painting or wall papering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility."137 An alteration is defined in the regulations as a "change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof."138 The concept of "usability" is meant to be interpreted broadly to include "any change that affects usability of the facility, not simply changes that relate directly to access by individuals with disabilities."139 The alterations must ensure that, to the "maximum extent feasible," the facility is readily accessible to the disabled.140 An elevator is required to be installed in an altered facility that houses the professional office of a health care provider.141 131

56 Fed. Reg. 35579 (1991) (to be codified at 28 C.F.R. § 36.101). Id. at 35579, 35600 (to b e codified at 2 8 C.F.R. § 36.401(d)(i)). 133 Id. at 35578 (to be codified at 28 C.F.R. § 36.401(d)(i)). 134 Id. at 35579 (to be codified at 28 C.F.R. § 36.401(d)(i)). 135 Id. The discussion accompanying the regulations also states: " I n determining if a floor was intended for such use, factors to be considered include whether the facility was constructed with special plumbing, electrical, or other features needed by health care providers, whether the developer marketed the facility as a medical office center, and whether any of the establishments that first occupied the floor w a s , in fact, a health care provider." Id. 136 Id. at 35580. 137 Id. at 35600 & 35581 (to be codified at 28 C.F.R. § 36.402(b)(1)). 138 Id. at 35600 (to b e codified at 2 8 C.F.R. § 36.402(b)). 139 Id. at 35581. 140 Id. (to be codified at 28 C.F.R. § 36.402(a)). 141 Id. (to be codified at 2 8 C.F.R. § 36.404(a)(l)). 132

72


The regulations also address the removal of existing barriers:


a public accommodation, such as the professional office of a health care provider, is required to remove architectural barriers to its facility to the extent that such barrier removal is readily achievable . . . but it is not otherwise required by this part to undertake new construction or alterations. This part does not require that an existing two story building that houses the professional office of a health care provider be altered for the purpose of providing elevator access. If, however, alterations to the area housing the office of the health care provider are undertaken for other purposes, the installation of an elevator might be required, but only if the cost of the elevator is not disproportionate to the cost of the overall alteration. Neither the act nor this part prohibits a health care provider from locating his or her professional office in an existing facility that does not have an elevator.142

The regulations also provide that when a place of public accommodation, such as the professional office of a health care provider, is located in a private residence, the portion of the private residence used exclusively in the operation of the office is covered under this part.143 In Appendix A to Part 36 of Title 28 of the Code of Federal Regulations, the Department of Justice has published "Standards for Accessible Design" that give accessibility guidelines for various types of buildings and facilities, including medical care facilities.144 The Department states that the guidelines "are to be applied during the design, construction, and alteration of such buildings and facilities to the extent required by regulations issued by federal agencies, including the Department of Justice, under the Americans with Disabilities Act of 1990."145 Medical care facilities are defined to include "those in which people receive physical or medical treatment or care and where persons may need assistance in responding to an emergency and where the period of stay may exceed twenty-four hours."146 There are also other differences between the ADA and the VRA. For the chronically ill, Title III of the ADA again has wider (and clearer) application than section 504 of the VRA. After section 504 was implemented, cases arose regarding whether certain diseases were "handicaps" 142

Id. at 35584. Id. at 35552 & 35595 (to be codified at 2 8 C.F.R. § 36.207). Similarly, "that portion used both for the place of public accommodation and for residential purposes is covered by this part." Id. Thus, if a physician's office is located in a private home, it still must be accessible to the disabled. Barriers must be removed if such removal is readily achievable. Also, "those elements used to enter the place of public accommodation, including the homeowner's front sidewalk, if any, the door or entry way, and hallways, and/or exterior, available to or used by customers or clients, including restr o o m s " all a r e covered under the regulations. Id. (to b e codified at 2 8 C.F.R. § 36.207(b)). 144 2 8 C.F.R. pt. 3 6 , Appendix A . 145 5 6 Fed. R e g . 35607 (to be codified at 2 8 C.F.R. pt. 2 6 , Appendix A ) . 146 Id. (Medical Care Facilities). 143



73

for purposes of the VRA.147 By specifically incorporating the ArlineWi decision into the ADA, however, Congress directly sought to avoid such confusion. Access to services must be granted even to those perceived as having a disability, whether or not the chronic illness would substantially impair a major life activity were it not for the perception of others.149 Persons with contagious diseases, which are considered disabilities under the Act, may not be discriminated against if it is shown that they can be reasonably accommodated without risk to the health or safety of others.150 Title IV of the ADA does not find a ready counterpart in the VRA. It essentially amends Title II of the Communications Act of 1934.151 Title V of the ADA states that nothing in the Act should be construed to limit or reduce the scope of coverage or to apply a lesser standard than the coverage required or the standards applied under Title V of the Rehabilitation Act of 1973 or the regulations issued by federal agencies pursuant to such Title.152 Section 512 of the ADA amends the VRA as it applies to individuals who currently use illegal drugs. Under the Rehabilitation Act, these individuals are protected against discrimination so long as they are qualified to perform the job or participate in the activity at issue and do not present a direct threat to others.153 Under section 512 of the ADA, this standard is amended so that the treatment of persons who currently use illegal drugs is parallel to sections 104 and 510 of the ADA,154 which take away the VRA protection for individuals currently involved in the illegal use of drugs, even if the person poses no threat of harm to others in the workplace. Section 512, however, does not amend the standard found in the Rehabilitation Act for individuals with current alcohol problems.155 The Justice Department regulations issued in accordance with the ADA deal with the illegal use of drugs in section 36.209. "Paragraph [b] provides a limited exception to the exclusion of current illegal users of drugs from the protections of the Act. It prohibits denial of health services, or services provided in connection with drug rehabilitation, to an individ147

148 149 150 151 152 153

154 155

Cf. Rothschild v. Grottenthaler, 7 1 6 F. Supp. 796 (S.D.N.Y. 1989) (hearing impaired parents of non-hearing impaired students); Jackson v. State, 544 A.2d 291 (Me. 1988) (diabetes); Knowles v. Postmaster General, U . S . Postal Serv., 656 F. Supp. 593 ( D . Conn. 1987) (blindness); Bolthouse v. Continental Wingate C o . , 656 F. Supp. 6 2 0 (W.D. Mich. 1987) (cerebral palsy). See supra note 5 2 . See supra notes 50-53. See H . Conf. R e p . N o . 596, supra note 6 4 , at 5 6 9 . H . R . REP. N O . 485(III), supra note 8, at 492. See H . R . REP. N O . 485(II), supra note 18, at 412. Americans with Disabilities Act of 1990, § 501(a). Employer Compliance, supra note 116; H . R . REP. N O . 485(II), supra note 18, at 4 2 5 . See H . R . REP. N O . 485(III), supra note 8, at 499. H . R . REP. N O . 485(II), supra note 18, at 425. Id.


74


ual on the basis of current illegal use of drugs, if the individual is otherwise entitled to such services."156 The regulations go on to say that "a health care facility that specializes in a particular type of treatment, such as care of burn victims, is not required to provide drug rehabilitation services, but it cannot refuse to treat an individual's burns on the grounds that the individual is illegally using drugs."157 A medical practitioner is permitted, under the regulations, to take into account an individual's use of drugs in determining the appropriate medical treatment.158 The prohibitions on discrimination do not apply when the public accommodation (here, the medical practitioner) acts on the basis of current illegal drug use.159 Also, a health care provider may exclude an individual whose current illegal use of drugs poses a direct threat to the health or safety of others.160 The health care provider is permitted to impose legitimate safety requirements that are necessary for the safe operation of the services being offered.161 "These same limitations also apply to individuals with disabilities who use alcohol or prescription drugs."162

CONCLUSION The Americans with Disabilities Act serves two very important purposes. First, it clarifies federal protection for the disabled that exists under the Rehabilitation Act of 1973. Second, it extends protection to those never before reached under federal law. Private providers of public services are now under the jurisdiction of federal law and may not discriminate against the disabled. During the 17 years between enactment of these two pieces of legislation, protection on the state and local levels and in the private sector providing public services varied greatly from state to state or locality to locality. Some areas, like New York State and New York City, had in place substantial legislative protections for the disabled prior to passage of the ADA.163 For these areas, the Americans with Disabilities Act will not have

156

56 Fed. R e g . 35561 & 35596 (to b e codified at 2 8 C.F.R. § 36.209(b)). Id. at 35561. 158 Id. 159 Id. 160 Id. 161 Id. 162 Id. 163 See, e.g., N e w York H u m a n Rights L a w , N . Y . E X E C . L A W § 2 9 0 (McKinney 1990); N . Y . C . 157

A D M I N . C O D E tit. 8 .


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much of an impact. But for other parts of the country, the Americans with Disabilities Act is an historically significant recognition of the rights of the chronically ill and the physically and mentally impaired. The rights of the disabled now extend to virtually all places of public accommodation, including the private offices of professional health services providers.

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