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Department of Justice Civil Rights Division Office of the Assistant Attorney General AUG 1 1996 The Honorable Bennie Thompson U.S. House of Representatives 1408 Longworth House Office Building Washington, D.C. 20515-2402 Dear Congressman Thompson: This letter responds to your inquiry on behalf of the Mississippi State Board of Medical Licensure ("Mississippi Board") regarding the Americans with Disabilities Act, 42 U.S.C. SS 12101-12213 ("ADA"). Your inquiry attached a letter from the Mississippi Board expressing concern about the impact of the ADA upon the Board's ability to protect citizens from medical providers who are not fit to practice medicine due to chemical dependency. Please excuse our delay in responding. According to the Mississippi Board, prior to the implementation of the ADA, the Board had regulations in place designed to ensure that applicants and licensees were sober and fit to practice medicine. The Board's letter states that these regulations required applicants and licensees to verify sobriety, either through a monitoring program or urine screens, and show that a relapse had not occurred and that the applicant or licensee had been drug-free for a minimum of two years. It is not possible for us to comment upon the legality of the specific regulations to which the Board refers in its letter, as we have not had an opportunity to review these regulations. In its letter, the Board states that the ADA "has negated this Board's regulations designed to specifically protect its citizens from licensees who are suffering from chemical dependency and has erased this Board's ability to enforce this regulation." The letter also maintains that the ADA "will allow physicians who have problems to become more mobile and move from state to state with little or no interference from state regulatory boards." Washington, D.C. 20035
01-04322 -2The Mississippi Board's concern is based on an apparent misunderstanding of the ADA's requirements. The ADA prohibits State licensing boards from administering licensing programs in a manner that discriminates on the basis of disability. However, the ADA does not preclude State licensing boards from determining whether applicants or current licensees are engaging in illegal drug use or whether they are otherwise fit to practice medicine. Nor does the ADA prohibit sharing of information among State regulatory boards about licensee malfeasance or unfitness to practice. In enacting the ADA, Congress chose specifically to exempt from civil rights protection drug addicts who are currently engaged in the illegal use of drugs. Therefore, the Mississippi board may ask an applicant or licensee if he or she engages in illegal drug use. Congress did not exclude alcohol dependency from coverage under the ADA. Therefore, individuals who are dependent on alcohol may not be excluded simply on the basis of their status as alcoholics. They may, however, be held to the same standards of conduct that other participants must meet, including those standards prohibiting drinking or drunkenness. In order to encourage individuals with chemical dependencies to pursue rehabilitation and recovery, Congress chose to provide ADA protection to individuals with a history of drug dependency who have successfully completed a drug rehabilitation program, who are currently participating in such a program, or who, through their own efforts, are no longer engaging in the illegal use of drugs. Therefore, a licensing board may not categorically exclude applicants or licensees on the basis of their former drug dependency. However, the ADA does not prevent a licensing entity from determining that an applicant or licensee is unfit to practice medicine based on a record of misconduct, even if that misconduct was due to alcohol or drug addiction. Licensing authorities can legitimately take into account an applicant's or licensee's
employment history, military and school record, credit history, criminal record, financial and legal problems, record of disciplinary actions, suspensions or terminations from school or jobs, and so forth. The Board may inquire generally about any leaves of absence or terminations from employment in the past; whether there is anything that would currently impair the applicant's or licensee's ability to carry out the duties and responsibilities of a physician; and past suspensions or revocations of hospital privileges, malpractice suits, or patient complaints, among other things. 01-04323 -3Whether a licensing board's questions regarding an applicant's or licensee's history of alcohol or drug abuse is permissible under the ADA will depend on whether the questions are necessary to the objective of licensing only those candidates capable of practicing the profession at issue in a competent and ethical manner. Such questions must be focused on actual, current impairments of candidates' abilities or functions, and must be narrowly tailored to determine the current fitness to practice the profession. Enclosed is a list of questions proposed by boards that license attorneys that the Department has concluded do not, on their face, violate the ADA. In its letter, the Mississippi Board maintains that unfit physicians will be free to move from State to State because the ADA precludes the States from obtaining or sharing information about an applicant's or licensee's history of chemical dependency. As noted above, nothing in the ADA prohibits the Board from asking applicants or licensees about past conduct or behavior that may evidence an incapacity to practice medicine. Such conduct or behavior, whether it results from mental illness, substance dependency, or other factors, constitutes a legitimate area of inquiry under the ADA. Nor does the ADA preclude the sharing of this legitimately obtained information with other jurisdictions. I hope this is helpful to you in responding to the Mississippi Board. Sincerely, Deval L. Patrick
Assistant Attorney General Civil Rights Division Enclosure 01-04324 Congress of the United States House of Representatives Washington, DC 20515-2402 November 15, 1995 Ms. M. Faith Burton Congressional Liaison Officer U.S. Dept. of Justice Room 1603 Washington, D.C. 20530 Dear Ms. Burton: This request for an inquiry and guidance is made on behalf of the Mississippi State Board of Medical Licensure. Specifically, I have received correspondence from members of the Board of Medical Licensure relating their concerns about the Americans with Disabilities Act (ADA) and their inability to effectively protect citizens from medical providers that have been, or continue to be, involved with drugs or alcohol (See letter attached). Board members contend the Americans with Disabilities Act has negated the regulations they established and implemented to protect its citizens from physician licensees who are suffering from chemical dependency. Board members further contend the ADA "has reopened the door which, as interpreted, will allow physicians who have problems to become more mobile and move from state to state with little or no interference from state regulatory boards". I am respectfully requesting your office conduct an inquiry and respond to my office regarding the legitimacy of the Board's concerns as it relates to their ongoing efforts to protect the public from chemical dependent practictioners. Whatever guidance you are able to provide to my office and the Board regarding this matter would be appreciated. Sincerely, Bennie G. Thompson
Member of Congress BGT/rb Attachment(s): As stated 01-04325 MISSISSIPPI STATE BOARD OF MEDICAL LICENSURE P. Doyle Bradshaw 2688-D Insurance Center Drive Executive Officer Jackson Mississippi 39216 Telephone: (601) 354-6645 September 21, 1995 The Honorable Bennie Thompson House of Representatives 1408 Longworth, House Office Building Washington, DC 20515 RE: Americans with Disabilities Act Interpretation Problems Dear Representative Thompson: The Mississippi State Board of Medical Licensure, a state agency, is responsible for licensing and regulating physicians (M.D.s and D.O.s) and podiatrists (D.P.M.s) in the State of Mississippi. As a part of the overall function of protecting the public from licensees who are impaired or have been impaired to the extent that their professional competency is affected, this Board assesses and reviews the background of all applicants for licensure in the State of Mississippi. It is not uncommon for applicants seeking licensure to practice medicine on the citizens of the State of Mississippi to have been involved with drugs or alcohol to the extent that they are diagnosed with chemical dependency. Prior to the Implementation of the Americans with Disabilities Act, the Mississippi State Board of Medical Licensure had regulations in place designed to ensure the sobriety of these practitioners prior to their licensure in this state and, once licensed, to monitor the practitioner to ensure that citizens were not subjected to possible harm from these
practitioners. The regulation required an applicant to show and be able to verify sobriety, either through a monitoring program or urine screens, that a relapse had not occurred and that applicant had been drug free for a minimum of two years (24 months). 01-04326 The Honorable Bennie Thompson Page 2 September 21, 1995 In effect, the Americans with Disabilities Act as is being interpreted, has negated this Board's regulations designed to specifically protect its citizens from licensees who are suffering from chemical dependency and has erased this Board's ability to enforce this regulation. We, the physicians who make up the Mississippi State Board of Medical Licensure, are very concerned that the Americans with Disabilities Act will seriously curtail this Board's ability to protect the citizens of this state from practitioners seeking licensure who have problems with chemical dependency. In the past, the various medical boards, which comprise the physician regulatory authorities at the state level, have been severely criticized for not being willing to discipline and regulate licensees and allow them to travel from state to state as a result of problems in their practice. In order to address this, boards have become more vigorous in their regulatory and investigative efforts. The Federal Government initiated the National Practitioners Data Bank for the reporting of disciplinary actions by various boards in order to manage physicians who are performing in an untoward manner. Now, the Americans with Disabilities Act has reopened the door which, as interpreted, will allow physicians who have problems to become more mobile and move from state to state with little or no interference from state regulatory boards. In fact, an impaired physician under the current Americans with Disabilities Act can make a career of practicing medicine by running from state to state without any interference from a state medical board. This Board requests immediate steps to correct the intent of this legislation by a review of the legislation with appropriate changes in place to allow State Boards of Medical Licensure to continue assessing
the competency, qualifications, sobriety and ability of applicants who apply for licensure without being required to comply with Federal Mandates which do not protect the public. We solicit your careful review of the problems which will affect the citizens of this state, and all other states, if state medical boards are prohibited from having in place regulations designed to specifically prevent that which is now allowed with the Americans with Disabilities Act. 01-04327 The Honorable Bennie Thompson Page 3 September 21, 1995 Your interpretation of the above and your assistance in making appropriate changes if the intent of the Act is as outlined above will be appreciated. As officers and members of the Mississippi State Board of Medical Licensure, we sincerely solicit your prompt review and response to this request. Sincerely, MISSISSIPPI STATE BOARD OF MEDICAL LICENSURE T. Steve Parvin, M.D., President President Richard F. Riley, M.D., Secretary Edwin G. Egger, M.D., Member Joseph E. Johnston, M.D., Member Walter H. Rose, M.D., Member MSBML:jh cc: Federation of State Medical Boards 01-04328 John L. Pendergrass, M.D., Vice Freda M. Bush, M.D., Member Benton M. Hilbun, M.D., Member Richard L. Peden, D.O., Member
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