# 134 III-3.2000 III-3.

3000

February 9, 1994

The Honorable Sonny Callahan Member, U.S. House of Representatives 2970 Cottage Hill Road Suite 126 Mobile, Alabama 36606 Dear Congressman Callahan: This letter is in response to your inquiry on behalf of your constituent, XXXXXXXXXXXXX, concerning the applicability of the Americans with Disabilities Act ("ADA") to persons with HIV. Your constituent inquired as to whether and why the Department of Justice filed lawsuits against two dentists who refused to treat HIV-positive persons. Specifically, your constituent asked whether HIV-positive persons are protected by the ADA, and whether dentists are required to treat such persons. The Department of Justice did, in fact, file such lawsuits. See United States v. Morvant, Civ. Act. No. 93-3251 (E.D.La.), and United States v. Castle Dental Center, Civ. Act. No. H-93-3140 (So.D.Tx.). The complaints allege that dentists in New Orleans and Houston violated the ADA by refusing to treat HIV-positive individuals, solely on the basis of their HIVpositive status. Title III of the ADA prohibits discrimination on the basis of disability by places of public accommodation, including dental offices. See ​ 36.104 and 36.201(a) of the enclosed regulation. HIV infection meets the definition of "disability" because it is a physical impairment that substantially limits one or more major life activities, e.g. reproduction. 28 C.F.R. 36.104. In fact, HIV disease, both symptomatic and asymptomatic, is specifically listed as a covered disability in the title III

regulation. See 28 C.F.R. 36.104. Accordingly, dentists are prohibited from discriminating against HIV-positive persons under the ADA. Dentists may not refuse to treat such persons solely on the basis of their HIVpositive status. While it is true that a dentist is not required to treat someone who would pose a significant risk to the health or safety of others (see 28 C.F.R. 36.208), treating individuals who have tested positive for HIV does not pose such a risk. According to the federal Centers for Disease Control and Prevention ("CDC"), the risk of transmitting viruses like HIV in the health-care setting is minimal, and can be severely lessened by the use of infection control procedures, often described as "Universal Precautions." These protective measures -- which include the use of gloves, surgical masks, and protective eyewear, the sterilization of medical instruments, the disinfection of exposed environmental surfaces, and proper waste disposal methods -- prevent the spread of almost all bloodborne diseases, including HIV. The CDC recommends that dentists use Universal Precautions with all patients and has not suggested that additional precautions, such as "space suits," are warranted. Moreover, the American Dental Association has taken the position that Universal Precautions are an effective and adequate means of preventing the transmission of HIV from dental health care worker to patient and from patient to dental health care worker. Indeed, to date, there have been no documented cases of HIV transmission from patient to dental health care worker. In light of this information, and the information provided by the CDC and the American Dental Association, the Department of Justice has taken the position that, so long as the dental team follows Universal Precautions, treating HIV-positive persons does not pose a significant risk to the health or safety of the dentist, the dental staff, or other patients. Accordingly, a dentist may not refuse to treat an HIV-positive person, solely on the basis of that patient's HIV-positive status. I hope this information is helpful to you in responding to your constituent. You may wish to inform your constituent that further information is available through our Americans with Disabilities Act Information Line at (202) 514-0301.

Sincerely,

James P. Turner Acting Assistant Attorney General Civil Rights Division Enclosure