U.S. Department of Justice Civil Rights Division Disability Rights Section P.O.

Box 66738 Washington, DC 20035-6738 MAR 19 1996 XX XX Dear XX I have been asked to respond to your letter to Attorney General Janet Reno, concerning the government's participation in lawsuits against dentists who refused to treat persons with HIV/AIDS. The Americans with Disabilities Act ("ADA") is a civil rights statute enacted to protect the civil rights of individuals with disabilities. Title III of the ADA prohibits discrimination by "public accommodations" on the basis of disability. 28 C.F.R. S 36.201(a). HIV infection meets the definition of a "disability" under title III and its implementing regulation because it is a physical impairment that substantially limits one or more major life activities, e.g. reproduction. 42 U.S.C. S 12102(2) (definition of disability); 28 C.F.R. S 36.104. In fact, HIV disease, both symptomatic and asymptomatic, is listed as one of the covered disabilities in the regulation. See 28 C.F.R. S 36.104. According to the ADA, public accommodations are defined as any private entity "that owns, operates, leases or leases to a place of public accommodation. 28 C.F.R. S 36.104. Covered entities include, specifically, the "professional office of a health care provider." Id. Therefore, dental offices are public accommodations within the meaning of title III and the title III regulation. As such, dentists are required to treat all persons including those persons who are HIV positive, provided that the individual does not pose a direct threat to the health or safety of others, or require or request treatment that is outside of the dentist's expertise. The term "direct threat" means a

cc:

Records; Chrono; Wodatch; Perley; McDowney; FOIA udd\perley\policy\XX 01-04165 -2significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services. 42 U.S.C. S 12182(b)(3); See also 28 C.F.R. S 36.208. The title III regulation clarifies the direct threat exception: In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make 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, and procedures will mitigate the risk. 28 C.F.R. S 36.208(c). Thus, a dentist would have to demonstrate that persons with HIV pose a significant risk of transmitting the virus to the dentist, his employees, or his other patients, and that this risk cannot be mitigated through reasonable methods of infection control. According to the Centers for Disease Control and Prevention, however, the risk of transmitting viruses like HIV in the healthcare setting is minimal, and can be severely lessened by the use of infection control procedures, often described as "Universal Precautions." These protective measures -- which include the use of gloves, surgical masks, and protective eyewear, the sterilization of medical instruments, the disinfection of exposed environmental surfaces, and proper waste disposal methods -prevent the spread of almost all bloodborne diseases, including HIV. Indeed, Congress has required each state to adopt CDC's guidelines regarding Universal Precautions, and OSHA has adopted most of the protective measures outlined by the CDC in its Bloodborne Pathogen Rule. See 29 C.F.R. Ch. XVIII S 1910.1030. Moreover, the American Dental Association strongly avers that Universal Precautions are an effective and adequate means of

preventing the transmission of HIV from dental health care worker to patient and patient to dental health care worker. Thus, the risk of transmission is not significant, and the direct threat defense is considered to be invalid for these cases. I hope that this responds to your concerns. Sincerely, John L. Wodatch Section Chief Disability Rights Section 01-04166 XX XX XX XX December 18, 1995 U.S. Attorney Janet Reno Room 5111, 10th and Pennsylvania Ave. N.W. Washington, D.C. 20530 Dear Ms. Reno Every so often I read in some dental journal about a dentist being prosecuted and fined by the federal courts because of his or her refusal to treat an AIDS infected patient. Prosecution is based on the dentist's lack of compliance with the Americans with Disabilities Act, which, for some dubious reason, has categorized AIDS as a disability/handicap and not a disease. In my office if a child comes in for dental treatment and I find out that they have pink eye, ring worm, impetigo, etc., I will often refuse to treat them. No one objects to this. I am not reported to the "proper authorities," or the ACLU. I am not prosecuted or sued. Yet if I refuse to treat or referred out an AIDS infected child, all hell would break loose. It could even cost me my livelihood and destroy my pediatric practice. The overriding question in this whole scenario is "Why is AIDS classified as a handicap and not a disease?" Other sexually transmitted diseases are not so classified. As you can see from the enclosed articles this ADA classification is wreaking havoc with many innocent and unsuspecting people, especially women and children. Many young newborns could be successfully treated but

the "privacy" laws prevent patient notification and greatly frustrate the physicians who have to stand by and watch these tragedies unfold. The chance of a "magic bullet" being developed to suddenly wipe out and prevent future AIDS infections is probably very remote. Consequently AIDS will be around a long time and will continue to spread unless we treat is as a disease and not a 0 "handicap." What is the rationalization behind its "handicap" 01-04167 ​status where the rights to privacy of an individual are more important that the rights of the rest of us who do not have and do not want to contract the disease? Why is our rights secondary to the individuals? Tuberculosis is an example of a contagious disease that is being fought as it should be. Contacts are notified and every effort is being made to restrict and control its spread. Syphilis and gonorrhea are other examples of sexually transmitted diseases where contacts are notified, searched out, etc., in an effort to limit and eradicate the disease. What is the great fear in the circle of our elected leaders that allows this "individual privacy rights" charade to persist? Are too many of them afraid that their names will end up on some contact list? Why are they allowing a small group of well funded, vociferous individuals dictate the government's policy on AIDS? How can you ethically and morally justify your department's involvement in this prosecutorial approach to perpetuate the governments position on AIDS? Lawyers can pick and choose their clients. I can refuse to treat patients at my discretion except in the case of those infected with AIDS. It's about time that the ACLU and other groups start accepting their responsibility in this matter and stop interfering in the eradication and control of AIDS. A prime example of the lack of responsibility of some AIDS infected individuals is exemplified in the enclosed copy of a St. Petersburg Times article. The young man quoted in the article spoke to an AIDS awareness class at the University of South Florida. For six years after he learned that he had the AIDS virus he continued to indiscriminately make his sexual contacts and probably infected many of them with the AIDS virus. He should be prosecuted, not someone who doesn't want to take the risk of contracting AIDS.

I wrote to President Clinton about this problem and as you can see from his response, I received a typical government nonanswer. He completely ignored the question about attacking AIDS as a disease and not as a handicap. I've had similar responses from other representatives. No one wants to touch the issue. Their careers are more important that the lives, heartaches, and misery that AIDS will wreak on the citizens of America let alone billions of dollars in cost. We are all affected, either directly or indirectly, by this plague. 01-04168 Our only real chance to defeat it is to treat it as a disease and fight it as such. I would like you to use your position and influence to turn this thing around to a logical, scientific attack on AIDS as a disease. Now that you realize your own vulnerability to disease, I hope you can find it in your heart to do what you can to help in the restriction and eradication of this disease. I can only imagine the frustration of the physicians and staff at the Centers for Disease Control in Atlanta in regards to their hands being tied in dealing with AIDS. I do not particularly relish the thought of my children and grandchildren having to face a life in constant fear of contracting such a disease. Is your position, status and power, as well as our other elected officials more important than the lives of hundreds of thousands and even millions of the rest of us in the United States? "I'm just obeying orders and doing my job," is not a rationalization for the prosecution of health care providers referring out or refusing to treat AIDS patients. That defense was tried and rejected in postwar Germany. Sincerely, XX XX XX 01-04169