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House of Representatives 96 North Main Street Washington, Pennsylvania 15301 Dear Congressman Murphy: This letter is in response to your inquiry on behalf of your constituent, XX regarding the difficulty he has had in locating a nursing facility which will accept his XX as a patient. He requests information about (b)(6) rights under the Americans with Disabilities Act. The Americans with Disabilities Act of 1990 ("ADA") authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist your constituent in understanding the ADA's requirements. However, it does not constitute a legal interpretation and it is not binding on the Department. The ADA defines "disability" to include any mental or physical condition that substantially limits a major life activity like walking, seeing, hearing, working, or caring for oneself. Thus, from the description provided by XX , it appears that his XX is a person with a disability. As an individual with a disability, (b)(6) is entitled to the protections of the ADA. Among other things, title II of the ADA requires that all of the facilities and services operated by a state or local government be accessible to persons with disabilities, forbids the use of any eligibility criteria that screen out or tend to screen out persons with disabilities, unless such criteria are necessary for the operation of the facility or service, and requires reasonable modification of policies, practices and procedures unless it would result in a fundamental alteration of its program. Thus, if a privately owned health care facility were to maintain a rule against accepting persons with disabilities, it would violate title II of the ADA. cc: Records, Chrono, Wodatch, McDowney, Magagna, Contois, FOIA Udd:Contois:CGL:Murphy
01-01978 -2Title III of the ADA, which applies to privately owned places of public accommodation, including health care facilities, contains similar provisions. For instance, title III also forbids the use of eligibility criteria that screen out individuals with disabilities from fully and equally enjoying the goods and services offered by a public accommodation, unless such criteria are necessary for the operation of the public accommodation. Title III also requires reasonable modification of policies, practices, and procedures unless it would result in a fundamental alteration of the program. If Mr. (b)(6) believes that his XX rights under the ADA have been violated, he may either file a complaint in Federal court to enforce the Act, or may file a complaint with the Department of Justice, which is authorized to investigate allegations of violations of both titles II and III. If wishes to file a complaint under title II against a publicly owned health care facility, he may address it to the Coordination and Review Section, Civil Rights Division, Department of Justice, Post Office Box 66118, Washington, D.C. 20035-6118. If wishes to file a complaint against a privately owned health care facility under title III, he may address it to the Public Access Section, Civil Rights Division, Department of Justice, Post Office Box 66738, Washington, D.C. 20035-6738. For your information, I am enclosing a copy of this Department's regulations implementing titles II and III of the ADA and the Technical Assistance Manuals that were developed to assist individuals and entities subject to the ADA to understand the requirements of titles II and III. The ADA's definition of disability can be found in section 35.104 of the Department's title II regulation (page 35717), and is discussed on pages 3-4 of the title II Technical Assistance Manual. Title II's proscription of discriminatory eligibility criteria is set out in section 35.130(b)(8) of the regulation (page 35719), and is discussed on page 12 of the title II Technical Assistance Manual. Title III's proscription of discriminatory eligibility criteria is set out in section 36.301 of the regulation (page 35596), and is discussed on pages 21-22 of the title III Technical Assistance Manual. 01-01979 -3-
I hope this information is useful to you in responding to Sincerely,
James P. Turner Acting Assistant Attorney General Civil Rights Division Enclosures (2) 01-01980 Congress of the United States House of Representatives 2210 Rayburn Building Washington, DC 20515 (202) 225-4665 February 23, 1993 REPLY TO: 96 North Main Street Washington, PA 15301 Ms. Faith Burton Acting Asst. Attorney General Office of Legislative Affairs Washington, D.C. 20530 RE: (b)(6) Washington, PA 15301 Dear Ms. Burton: I write to you today on behalf of the of the XX above named constituent who feel that XX is being discriminated against because of an overweight problem. (b)(6) with one leg amputated. XX weighs approximately 350 pounds and XX is unable to take care of XX . Unsuccessful attempts have been made to place XX in a health care facility in this area. The XX claims that XX is being denied access because of XX weight. Enclosed is a copy of a letter from one health center, which documents that claim. I would appreciate it if you could look into this matter and advise me what assistance the Justice Department (via ADA Act) can give to the XX in getting XX into a health care facility. Thanking you in advance, I remain
Very truly yours,
AUSTIN J. MURPHY AJM/dm Member of Congress Enclosure (b)(6) 01-01981 Feb 17, 1993 (b)(6) WASHINGTON PA 15301 We, the XX and XX are writing this in regards to XX health problems. In the last three years we have been trying to get XX into numerous health care facilities. Canonsburg Home Care Agency has told us that they've called every health Center in a 25 mile radius, with no results. I XX , came to my XX home this morning and (b)(6) told me that XX told XX that they would drop XX off at XX doorstep from Canonsburg Hospital, because my XX was told to refuse to bring XX home by Canonsburg Health Care Social worker. My XX approximately 350 lbs with one leg amputated. My XX is unable to care for XX at home. During the last three years that we've been trying to get (b)(6) in a home, we've been unable to 01-01979 -2get anything accomplished we feel that all the facilities are discriminating against my (b)(6) because of XX weight. We are not looking for a
lawsuit, we are looking to get my XX in a home so that (b)(6) can be taken care of properly. Anything that you can do to help my XX , would be appreciated. Thank You very much, (b)(6) 01-01980 Washington County Health Center R.D. #1, Box 94, Washington, PA 15301 Phone: (412) 228-5010 Barry W. Parks, D.Ed., NHA Administrator February 8, 1993 (b)(6) Mr. Joseph A. Ford Commissioner, County of Washington Commonwealth of Pennsylvania Courthouse Square Building Room 702 Washington, PA 15301 RE: (b)(6) Dear Commissioner Ford: I am in receipt of your letter of January 20, 1993, regarding XX . We did, in fact, review XX application for admission to the Health Center and had determined that we do not have the resource to adequately care for XX needs. In gathering pre-admission information in order to make the determination, it was learned that XX does have needs which require attention; however, we also determined that we do not have the resources to meet XX needs. At the time of referral, XX weight was such that we do not have beds which are able to accommodate XX . Additionally, other requirements on us, as a nursing home, would prevent us from meeting XX needs. We are required to, when people are alert, to get them up daily and out-of-bed for posturing purposes and also for participation in various activities and dining. This would require repeated transfer from bed to wheelchair and we, in fact, do not have beds, wheelchairs, or transfer equipment that would safely accommodate XX . I do realize that this individual has legitimate needs for care, but it was our determination that we could not adequately meet these needs. We would, in fact, have the same difficulties in attempting to deal with XX that the other nursing homes, who were asked to assess XX for admission, have determined that they are unable to meet XX needs.
We were informed that a recommendation had been made by Canonsburg Hospital that an aggressive weight reduction program be instituted for XX health and so that health care providers are able to better care for XX effectively. It is my understanding that XX was receiving in-home services through the Visiting Nurse Agency and I would trust that this resource would still be available. Hopefully, the recommendation from Canonsburg Hospital is being followed. We are certainly willing to reassess this individual for admission if there is a notable change in XX weight, which would allow us to adequately care for XX . At such point as this has been accomplished, we are more than willing to re-evaluate (b)(6) appropriateness for admission and would be willing to consult with the Visiting Nurse Agency and if indicated, to have our staff do an in-home evaluation of this individual in order to assess our ability to care for (b)(6) Should you have any additional questions, please feel free to contact me. Sincerely yours,
Barry W. Parks, D.Ed., NHA Administrator BWP:cmb 01-01981
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