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DJ 202-PL-227 SEP 10 1993 A. Laurence Field A.

Laurence Field & Associates 1322 Bayview Road Middletown, Delaware 19709 Dear Mr. Field: This letter is in response to your inquiry about the Americans with Disabilities Act (ADA). The 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 you in understanding the ADA's requirements. However, it does not constitute a legal interpretation or legal advice, and it is not binding on the Department. You ask whether the ADA permits public or private entities to provide medical or dental treatment to persons with AIDS in segregated settings. The ADA prohibits discrimination against an individual on the basis of that individual's HIV or AIDS condition. This is true regardless of whether the discriminating entity is publicly or privately owned. State or local government entities or instrumentalities that provide medical or dental care are covered by title II of the ADA as public entities. Private entities that offer medical or dental care are public accommodations, which are covered by title III of the ADA. Under both titles II and III, the ADA generally prohibits the provision of separate or different services to individuals with disabilities, unless it is necessary to make the services as effective for people with disabilities as they are to others. In addition, both public entities and public accommodations are required to provide their services in the most integrated settings appropriate to the needs of the individuals with disabilities.

cc: Records, Chrono, Wodatch, Magagna, Novich, FOIA, MAF Udd:Novich:Policy:227

01-02581 -2However, both titles II and III contain an exception to the general non-exclusion and integration requirements when an individual with a disability poses a direct threat to the health or safety of others. A direct threat is defined as a significant risk to the health or safety of others that cannot be eliminated or satisfactorily mitigated by reasonable modifications to the covered entity's procedures. Under section 35.104 of the title II regulation, an individual who poses a such a direct threat is not considered a "qualified" individual for the services or programs being offered. Similarly, section 302(b)(3) of the Act states that public accommodations are not required to permit participation of individuals who pose a direct threat to the health or safety of others. However, the titles II and III regulations specify that the determination of whether an individual poses a direct threat be an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk. See section 35.104 of the enclosed title II regulation, at pages 35717 and 35701, and section 36.208 of the title III regulation, at pages 35595-35596 and 35560-35561, for discussions of the direct threat exception. Therefore, under titles II and III of the ADA, individuals with HIV or AIDS may not be treated in segregated setting unless necessary to provide those individuals with treatment as effective as is provided to individuals without HIV or AIDS, or unless the providers can demonstrate that a specific individual

poses a direct threat to the health or safety of others. Individuals with HIV or AIDS do not pose a direct threat to health professionals or other medical patients as long as reasonable sanitation methods can satisfactorily mitigate the risk of spreading the disease. The Centers for Disease Control and Prevention (CDCP) have issued recommended precautionary measures to mitigate the risk of transmission of HIV, and other communicable diseases, in health care settings. For more information on these measures, known as the "Universal Precautions," contact the CDCP National HIV/AIDS Hotline at (800) 342-2437. In addition, The American Dental Association has issued an opinion stating that patients with HIV may be safely treated when recommended precautions are used. You may contact the American Dental Association at (312) 440-2500. 01-02582 -3I hope this information is useful to you. Sincerely, John L. Wodatch Chief Public Access Section Enclosures Title II Regulation Title III Regulation 01-02583

A. Laurence Field & Associates 1322 Bayview Road Middletown, DE 19709 July 2, 1992 Colleen Miller Coordination & Review Section Civil Rights Division P.O. Box 66118 Washington, DC 20035-6118

(302)378-1600 SPECIALISTS IN ACCESSIBILITY AND BARRIER REMOVAL

re: Request for ADA Technical Assistance/

Segregated Dental Facilities for Persons with AIDS Dear Ms. Miller: As we discussed by phone today, I am requesting assistance from your office in understanding the extent to which persons with AIDS may be offered medical treatment in a segregated setting. The specific issue is the delivery of dental services by an instrumentality of the state. Comments on this specific issue would be most appreciated. If information on the broader question posed in the first paragraph is readily available, I would appreciate that as well. Thank you very much, Ms. Miller, for your assistance. Very truly yours, A. Laurence Field

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