# 197 August 1, 1996

The Honorable Bennie Thompson U.S. House of Representatives 1408 Longworth House Office Building Washington, D.C. 20515-2402 Dear Congressman Thompson: This letter responds to your inquiry on behalf of the Mississippi State Board of Medical Licensure ("Mississippi Board") regarding the Americans with Disabilities Act, 42 U.S.C. ​ 12101-12213 ("ADA"). Your inquiry attached a letter from the Mississippi Board expressing concern about the impact of the ADA upon the Board's ability to protect citizens from medical providers who are not fit to practice medicine due to chemical dependency. Please excuse our delay in responding. According to the Mississippi Board, prior to the implementation of the ADA, the Board had regulations in place designed to ensure that applicants and licensees were sober and fit to practice medicine. The Board's letter states that these regulations required applicants and licensees to verify sobriety, either through a monitoring program or urine screens, and show that a relapse had not occurred and that the applicant or licensee had been drug-free for a minimum of two years. It is not possible for us to comment upon the legality of the specific regulations to which the Board refers in its letter, as we have not had an opportunity to review these regulations. In its letter, the Board states that the ADA "has negated this Board's regulations designed to specifically protect its citizens from licensees who are suffering from chemical dependency and has erased this Board's ability to enforce this regulation." The letter also maintains that the ADA "will allow physicians who have problems to become more mobile and move from state to state with little or no interference from state regulatory boards." The Mississippi Board's concern is based on an apparent misunderstanding of the ADA's requirements. The ADA prohibits

State licensing boards from administering licensing programs in a manner that discriminates on the basis of disability. However, the ADA does not preclude State licensing boards from determining whether applicants or current licensees are engaging in illegal drug use or whether they are otherwise fit to practice medicine. Nor does the ADA prohibit sharing of information among State regulatory boards about licensee malfeasance or unfitness to practice. In enacting the ADA, Congress chose specifically to exempt from civil rights protection drug addicts who are currently engaged in the illegal use of drugs. Therefore, the Mississippi board may ask an applicant or licensee if he or she engages in illegal drug use. Congress did not exclude alcohol dependency from coverage under the ADA. Therefore, individuals who are dependent on alcohol may not be excluded simply on the basis of their status as alcoholics. They may, however, be held to the same standards of conduct that other participants must meet, including those standards prohibiting drinking or drunkenness. In order to encourage individuals with chemical dependencies to pursue rehabilitation and recovery, Congress chose to provide ADA protection to individuals with a history of drug dependency who have successfully completed a drug rehabilitation program, who are currently participating in such a program, or who, through their own efforts, are no longer engaging in the illegal use of drugs. Therefore, a licensing board may not categorically exclude applicants or licensees on the basis of their former drug dependency. However, the ADA does not prevent a licensing entity from determining that an applicant or licensee is unfit to practice medicine based on a record of misconduct, even if that misconduct was due to alcohol or drug addiction. Licensing authorities can legitimately take into account an applicant's or licensee's employment history, military and school record, credit history, criminal record, financial and legal problems, record of disciplinary actions, suspensions or terminations from school or jobs, and so forth. The Board may inquire generally about any leaves of absence or terminations from employment in the past; whether there is anything that would currently impair the applicant's or licensee's ability to carry out the duties and responsibilities of a physician; and past suspensions or revocations of hospital privileges, malpractice suits, or patient complaints, among other things. Whether a licensing board's questions regarding an applicant's or licensee's history of alcohol or drug abuse is

permissible under the ADA will depend on whether the questions are necessary to the objective of licensing only those candidates capable of practicing the profession at issue in a competent and ethical manner. Such questions must be focused on actual, current impairments of candidates' abilities or functions, and must be narrowly tailored to determine the current fitness to practice the profession. Enclosed is a list of questions proposed by boards that license attorneys that the Department has concluded do not, on their face, violate the ADA. In its letter, the Mississippi Board maintains that unfit physicians will be free to move from State to State because the ADA precludes the States from obtaining or sharing information about an applicant's or licensee's history of chemical dependency. As noted above, nothing in the ADA prohibits the Board from asking applicants or licensees about past conduct or behavior that may evidence an incapacity to practice medicine. Such conduct or behavior, whether it results from mental illness, substance dependency, or other factors, constitutes a legitimate area of inquiry under the ADA. Nor does the ADA preclude the sharing of this legitimately obtained information with other jurisdictions. I hope this is helpful to you in responding to the Mississippi Board. Sincerely,

Deval L. Patrick Assistant Attorney General Civil Rights Division Enclosure