DJ 202-PL-952 FEB 21 1995 John H. Chase, Esq.

General Counsel Office of the Vermont Secretary of State 109 State Street Montpelier, VT 05609-1101 Re: Inquiries on Vermont Professional Licensing Applications Dear Mr. Chase: This letter responds to your inquiry regarding the content of professional licensing applications in your State. Specifically, you have requested guidance regarding whether questions included on the Vermont Board of Nursing's licensure application form are consistent with the Americans with Disabilities Act, 42 U.S.C. SS 12101-12213 ("ADA"). According to your letter, the Office of the Vermont Secretary of State supports 33 other licensing boards which utilize similar inquiries. 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 of Justice. Two forms were appended to your letter. The first, labelled "State of Vermont Renewal Application," contains five questions. The first three questions pose no issue under the ADA. We recommend, however, that Questions 4 and 5 be revised or eliminated. Question 4 and 5 now read: [During the previous 2 years, have you] 4. Had a problem with substance abuse? 5. Received care for a physical or mental health problem that may cause a threat to public safety during nursing practice?

cc: Records, Chrono, Wodatch, Foran, FOIA, MAF Udd:Foran:Vermont.ltr

01-03632 -2To be completely consistent with the ADA, we would recommend that Question 5 be revised to read as follows: [During the previous 2 years, have you] 5. Had, or do you now have, a physical or mental health problem that may cause a threat to public safety during nursing practice? We recommend that Question 4 be eliminated. In its place, you may wish to substitute one or more inquiries from the attached list of questions drafted by various licensing boards and revised by the Department to comply with the ADA.1 The second form appended to your letter is untitled, but bears a caption at the top that states, "THIS PAGE IS NOT SUBJECT TO PUBLIC DISCLOSURE." There are six questions on this form, the first four of which pose no issue under the ADA. Question 5 should be revised, however, and Question 6 eliminated. Presently, Question 5 reads: Have you had a mental, emotional or physical disability the nature of which would interfere with your ability to practice nursing competently? The question should be revised to ask: Do you have or have you had a mental, emotional or physical disability the nature of which would interfere with your current ability to practice nursing competently? Question 6 is similar to Question 5 on the first form, and like that inquiry, should be eliminated.

1 We hope that the list of questions provides you with useful examples (this list constitutes the significant portion of the conference handout referred to in your letter). Various licensing boards approached the Department for assistance in revising their professional licensure applications consistent with the ADA. Most of the questions focus on applicants' behavior and conduct, while others ask whether applicants have any condition that would currently impair their ability to practice the profession in question. You will note that some of the questions deal specifically with the practice of law. While we do not endorse these as "model questions," we have concluded that the questions do not on their face violate the ADA. 01-03633 -3I hope that this is helpful to you in your efforts to promulgate professional application forms consistent with the ADA. Please feel free to forward any additional materials on which you wish the Department to provide technical assistance, and to call me at (202) 616-2314 with any questions you may have. Sincerely,

Sheila M. Foran Attorney Public Access Section

Enclosure

01-03634

-4SAMPLE QUESTIONS Q. Do you have any condition or impairment that currently impairs your ability to practice law? If the answer to the above is yes, please set forth the specifics, including dates, the name and the address of any treating physician or mental health counselor. "Medical condition or impairment" means any physiological, mental or psychological condition, impairment or disorder, including drug addiction and alcoholism. "Ability to Practice Law" is to be construed to include the following:

a) The cognitive capacity to undertake fundamental lawyering skills such as problem solving, legal analysis and reasoning, legal research, factual investigation, organization and management of legal work, making appropriate reasoned legal judgments, and recognizing and resolving ethical dilemmas, for example. b) The ability to communicate legal judgments and legal information to clients, other attorneys, judicial and regulatory authorities, with or without the use of aids or devices; and c) The capability to perform legal tasks in a timely manner.2 Q. Have you ever been involved in, reprimanded for or disciplined by an employer or education institution for misconduct including: a. acts of dishonesty, fraud, or deceit; b. lying on a resume, or misrepresentation; 2 The Board understands that mental health counseling or treatment is a normal part of many persons' lives and such counseling or treatment does not of itself disqualify an applicant from the practice of law. Furthermore, the Board does not wish to pry into the private affairs of applicants. However, the Board is obligated to determine whether an applicant is physically and mentally fit to practice law and therefore, must inquire into such matters to the extent necessary to make such determination. The Board is not seeking disclosure of counseling or treatment for a dramatic or upsetting event such as death, break-up of a relationship or a personal assault, even if such event does affect the applicant's ability to practice law for a limited time. c. d. e. f. g. -5academic misconduct, including such acts as cheating; misconduct involving student activities; theft; excessive absences; failure to complete assignments in a timely manner;

h. actions in disregard of the health, safety and welfare of others; i. sexual harassment; j. neglect of financial responsibilities. If the answer to any of the above is yes, please set forth the specifics, including date of the action; by whom taken; the name and address of the employment supervisor or academic advisor involved, if applicable and any person involved in the investigation of your conduct. Q. Have you ever been terminated or granted a leave of absence by an employer or withdrawn from an education institution? If the answer to the above is yes, please set forth the specifics, including date of the action; by whom taken; the name and address of the employee's supervisor or academic advisor involved. Q. Are you currently engaged in the illegal use of drugs? "Illegal Use of Drugs" means the use of controlled substances obtained illegally as well as the use of controlled substances which are not obtained pursuant to a valid prescription or taken in the accordance with the directions of a license health care practitioner. "Currently" does not mean on the day of, or even the weeks or months preceding the completion of this application. Rather, it means recently enough so that the condition or impairment may have an ongoing impact.3

3 You have a right to elect not to answer those portions of the above questions which inquire as to the illegal use of controlled substances or activity you have reasonable cause to believe that answering may expose you to the possibility of criminal prosecution. In that event, you may assert the Fifth Amendment privilege against self-incrimination. Any claim of Fifth Amendment privilege must be made in good faith. If you choose to assert the Fifth Amendment privilege, you must do so in writing. You must fully respond to all other questions on the application. Your application for licensure will be processed if you claim the Fifth Amendment privilege against self-

incrimination. 01-03636 -6Q. In the past year, have you illegally used drugs? If yes, provide details. (Illegal use of drugs means the unlawful use of one or more drugs and/or the unlawful possession or distribution of drugs. It does not include the use of drugs taken under supervision of a licensed health care professional, or other uses authorized by federal law provisions.) Q. In the past year, have you ever been reprimanded, demoted, disciplined, terminated or cautioned by an employer? If so, please state the circumstances under which such action was taken, the date(s) such action was taken, the name(s) of persons who took such action and the background and resolution of such action. Q. Since the age of 18, or within the last five years (whichever period is shorter), have you ever been reprimanded, demoted, disciplined, cautioned or terminated by an employer for alleged tardiness, absenteeism or unsatisfactory job performance in your employment? If so, please state the circumstances under which such action was taken, the date(s) such action was taken, the name(s) of persons who took such action and the background and resolution of such action. Q. Have you ever been accused of mishandling, mismanaging, or misappropriating the money or property of others? If so, please state the date of such accusations, the person(s) making such accusations, the specific accusations made, and the background and resolution of such accusations. Q. In the past year, have you suffered memory loss or impaired judgment for any reason? If so, please explain in full. Q. In the past year, have you failed to meet any personal or business related deadlines for any reason? If so, explain in full.

01-03637

Office of the Vermont Secretary of State Redstone Building, 26 Terrace Street Mall: 109 State Street Montpeller, VT 05609-1101

Donald M. Hooper Secretary of State Claudia Horack Bristow Deputy Secretary of State

21 November 1994

Sheila Foran, Attorney U.S. Department of Justice Civil Rights Division, Public Access Section Post Office Box 66738 Washington, DC 20035-6738 Dear Ms. Foran: I heard you speak at this year's CLEAR Conference in Boston, on the topic of ADA compliance. At one point you remarked that your office was able to provide technical assistance on the phrasing and subject of the questions licensing boards ask on application and renewal forms. I've enclosed copies of the questions used by the Board of Nursing in the past. Perhaps you could identify the ones most likely to be objectionable, and suggest alternatives. At the conference, you referred to a handout which unfortunately was not available. I'd appreciate a copy of that handout, assuming it would provide guidance to the Board of Nursing.

In addition to the Board of Nursing, this office supports 33 other professional licensing boards. Nearly every one uses the kind of questions found on the Nursing Board forms. I'm eager to revise as many of those questions as need revision, and I look forward to your response. Sincerely,

John H. Chase General Counsel Enclosure cc: Anita Ristau, Executive Director 01-03638 ​ STATE OF VERMONT RENEWAL APPLICATION I hereby apply for the renewal of my: Current Expiration Renewal Period Covering Renewal Fee License # Renewals postmarked after the expiration date must include a late fee of $25.00 * The fee of $40.00 represents the renewal fee of $35.00 and a $5.00 assessment in accordance with 3 V.S.A. S 124 (b) ** Make any changes to your address in the blank space above. Please check (X) if you wish inactive status (no fee required): INFORMATION NEEDED Circle yes or no, a yes requires an explanation * during the previous 2 years, have you: 1. Applied for and been denied a nursing license in another state, or had a nursing license suspended? Yes or No 2. Been subject to a disciplinary proceedings before a state board of

nursing? Yes or No 3. Been convicted of a criminal offense, other than minor traffic violations? Yes or No 4. Had a problem with substance abuse? Yes or No 5. Received care for a physical or mental health problem that may cause a threat to public safety during nursing practice? Yes or No * If necessary, additional pages may be attached. ADDITIONAL QUALIFICATIONS FOR RENEWAL Respond to part A or part B A. I have practiced nursing as defined in Chapter 4, Rule II, Administrative Rules, for at least: ** 120 days (960 hrs) in the last 5 years, or 50 days (400 hrs) in the last 2 years at (Name of specific Agency/Institution) (City/State) (Position) OR B. I have completed a Board approved program for re-entry into nursing within the past five years at (Program Sponsor (School, Institution, or Person) (City/State) (Date) ** If private duty position - please note name, address of each patient(s), number of days and hours for each; diagnosis; nursing care provided; physician's name and address. Attach additional papers if needed. YOU MUST COMPLETE AND SIGN THE REVERSE SIDE OR YOUR LICENSE WILL NOT BE RENEWED THIS PAGE NOT SUBJECT TO PUBLIC DISCLOSURE Section III APPLICANT'S NAME: Last First MI

Social Security # / / The disclosure of your social security number is mandatory, pursuant to 42 U.S.C. Section 405 (c)(2)(c), and will be used by the Vermont Department of Taxes in the administration of tax laws to identify persons affected by such law. 1) Have you previously applied for a license in Vermont? Yes If yes: under what name? No

2) Have you ever applied for and been denied a nursing license in another state? Yes No 3) Do you now hold or have you ever held a Nursing License that has been subject to disciplinary proceedings before any state licensing authority or had a license revoked or limited in any way? Yes No 4) Have you ever been convicted of a criminal offense, other than a minor traffic violation? Yes No 5) Have you had a mental, emotional or physical disability the nature of which would interfere with your ability to practice nursing competently? Yes No 6) Have you ever had a problem with substance abuse? Yes No IF THE ANSWER TO QUESTIONS (#2 thru 6) IS YES, PLEASE IDENTIFY BY NUMBER AND EXPLAIN FULLY USING SEPARATE SHEETS OF PAPER, AS NEEDED. Section IV STATEMENT OF APPLICANT I hereby certify that everything in this application is true and accurate to the best of my knowledge. Date APPLICANT: Attach two recent 2 x 2 passport-type pictures of head and shoulders, autographed with full name Vermont Board of Nursing, 109 State Street, Montpelier, VT 05609-1106 Rev. 5/92 01-03640 Signature of Applicant