SEP 22 1992 The Honorable William V. Roth, Jr.

United States Senate 104 Hart Senate Office Building Washington, D.C. 20510 Dear Senator Roth: This letter responds to your request for information concerning the Americans with Disabilities Act (ADA) in response to an inquiry from your constituent, Dr. David M. August, D.O. Dr. August requested an opinion on whether current Medicare policy could be interpreted as a violation of the ADA. Specifically, he questions the Medicare policy of reimbursing 80 percent of doctors' charges for treating physical illness and 65 percent of doctors' charges for treating mental or emotional illness. The ADA authorizes this Department to provide technical assistance to individuals and entities that have rights or responsibilities under the ADA. Accordingly, this letter provides informal guidance to assist you in responding to Dr. August; however, this technical assistance does not constitute a legal interpretation and is not binding on the Department of Justice. While we cannot issue a legal opinion on this question, we can point out that the ADA, in some respects, was modeled after the Rehabilitation Act of 1973, which prohibits discrimination in federally conducted and federally assisted programs and activities, and that legal challenges under the Rehabilitation Act to similar classifications of types of medical treatment have not been successful. For example, in Alexander v. Choate (469 U.S. 287 (1985)), the United States Supreme Court determined that a state reduction of the number of days of inpatient hospital care under the Medicaid program was lawful, noting the "States' longstanding discretion to choose the proper mix of amount, scope, and durational limitations on services." cc: Records, Chrono, Wodatch, Breen, Magagna, McDowney, Delaney, FOIA Udd:Delaney:ada.cong.roth.medicare arthur T. 9/14/92 01-01562​

-2I hope this information is helpful in responding to your constituent. Sincerely, James P. Turner Acting Assistant Attorney General Civil Rights Division 01-01563​ DAVID AUGUST, D.O. BOARD CERTIFIED PHYCHIATRIST Red Mill Office Center 467 Highway One Lewes, DE 19958 Phone (302) Fax (302) 645-9076 645-2870 May 1, 1992 Senator William V. Roth, Jr. 3021 Federal Building 844 King Street Wilmington, DE 19801 Dear Senator Roth: I am writing to you about a matter that has come to my attention concerning Medicare's treatment of the mentally ill. I am a psychiatrist treating patients in Delaware and I have discovered that Medicare has a policy of specifically discriminating against mentally ill patients in their reimbursements for medical treatment. It is Medicare policy to reimburse patients for what Medicare considers to be a physical illness 80% of doctors charges. If Medicare considers the patient to have a mental or emotional illness, the patient will only be reimbursed 65% of the doctor's charges. This Medicare policy makes it very difficult for mentally ill patients to obtain psychiatric care. This Medicare policy could also violate federal laws such as the American Disabilities Act or perhaps other constitutional guarantees. I am requesting an opinion from your office as I am considering pursuing this inequity, either through legislation or the court system.

Sincerely, David M. August, D.O. DMA/cv 01-01564