Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

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Are Plasma Centers Places of Public Accommodations?

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blood plasma

 

Previously, we have discussed here and here whether a plasma center is a place of public accommodation under title III. That discussion shows there is already a split in the Circuit Courts on the issue. On August 30, 2019, the Third Circuit weighed in on this in Matheis v. CSL Plasma Inc., A published decision. They came down in favor of a plasma center as a place of public accommodation. The facts in this case are pretty straightforward. Here, you have a retired police officer with PTSD who routinely and safely donated plasma roughly 90 times in 11 months. When he obtained a service dog, the plasma center refused to allow him to donate blood arguing that anybody who had a service dog for PTSD was automatically prohibited from donating blood because they must have extreme anxiety too severe to undergo safely the donation process. The retired police officer loses on summary judgment and appeals to the Third Circuit. The blog entry is divided into the categories of court’s reasoning and takeaways. I imagine the reader will want to read the whole thing.

 

I

Court’s Reasoning

 

  1. 42 U.S.C. §12181(7)(F) says that a place of public accommodation includes, “a laundromat, dry cleaner, bank, barbershop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a healthcare provider, hospital, or other service establishment (emphasis mine).
  2. The question is whether a plasma center is an, “other service establishment.”
  3. It notes that the 10th Circuit and the 5th Circuit have reached opposite conclusions.
  4. The court spent considerable time attacking the Fifth Circuit opinion (see ¶ ¶ 6-10 of this section of the blog entry, below). With respect to the 10th Circuit opinion finding that a plasma center is a place of public accommodation, the court notes the following from the 10th Circuit opinion: 1) “service,” has a broad, common definition- i.e. conduct or performance assisting or benefiting someone or something; 2) “establishment,” also has a broad, common definition, i.e. a place of business; 3) giving the term “service establishment,” the ordinary meaning of its components does not result in ambiguity nor does it result in anything irrational. After all, plasma donation centers are places of business assisting or benefiting those who wish to provide plasma for medical use-whether for altruistic reasons or for pecuniary gain-by supplying personnel and medical equipment necessary to accomplish that goal.
  5. The 10th Circuit has the better view.
  6. No support exists for the Fifth Circuit’s statement that donors do not benefit from the act of donating. That is simply not the case, donors receive money, a clear benefit, to donate plasma.
  7. The argument that secondary profit motive can dictate a finding a plasma center is not a place of public accommodation doesn’t wash. After all, a bank, which is explicitly a place of public accommodation also has a secondary profit motive.
  8. Businesses offering services to the public convey something of economic value in return for something else of economic value. That value is often money, but it doesn’t have to be. Money is just one proxy for economic value, and economic value is fungible.
  9. Banks and customers often exchange services not fitting simply into a money for service model. A pawnshop is another example. A recycling center is yet another example. Both pawnshops and recycling centers have been held to be subject to the ADA.
  10. Providing services means providing something of economic value to the public. It simply doesn’t matter whether that economic value is paid for with money or something else of value.
  11. Failure to accommodate cases turn on three questions: 1) whether the requested accommodation to the program was reasonable; 2) whether the requested accommodation was necessary to assure meaningful access; and 3) whether it would represent a fundamental alteration in the nature of the program.
  12. Plaintiff bears the initial burden of establishing that the desired accommodation is reasonable and necessary, while the defendant bears the burden of showing that it would fundamentally alter the nature of the program.
  13. Title III entities are required by 28 C.F.R. §36.302 to modify policies, practices, or procedure to permit the use of a service animal by an individual with a disability.
  14. A service animal used by a person with a disability is reasonable under the ADA as a matter of law so long as no DOJ regulation supersedes it.
  15. A plaintiff does not need to show intentional discrimination in order to demonstrate a violation of title III of the ADA. Accordingly, McDonnell-Douglas simply does not apply. The only question is whether the defense established an exception permitting a plasma donation center to deny an individual with a disability his or her use of a service animal. If no exceptions apply, then the use of a service animal is a reasonable accommodation and plaintiff prevails.
  16. 28 C.F.R. §36.208 permits places of public accommodation to deny anyone services who poses a direct threat to others. However, the direct threat exception requires an individualized assessment to determine the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policy, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
  17. Safety requirements per 28 C.F.R. §36.301(b) have to be based upon actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
  18. The defendant simply has not made its case that its policy of excluding donors with service dogs is based upon anything other than mere speculation, stereotypes, or generalizations about individuals with disabilities. There isn’t any medical justification or other scientific evidence backing up the defense’s conclusion that all those person having severe anxiety will put staff, other donors, or themselves at risk when donating plasma.
  19. The defense fails to explain why the plaintiff, who has managed his PTSD for nearly 2 decades and safely donated plasma roughly 90 times, should only be considered safe to donate when he renounces the new service animal that helps him better manage his PTSD.

 

II

Takeaways

  1. We now have two Circuits taking the position that a plasma center is a place of public accommodation. We have one taking the position that it is not. A Circuit Court split is one of the reasons the United States Supreme Court agrees to hear cases. As I have mentioned previously, people with disabilities do very well at the Supreme Court outside of the employment context. Here, you have a person who donated blood successfully 90 times without a service dog. He is also a retired police officer. Finally, this is not an employment case. Even with the current configuration of the United States Supreme Court, I like the chances of the plaintiff at the Supreme Court should this case get appealed to the Supreme Court.
  2. In the case involving South Dakota, which we discussed here, the Supreme Court has already signaled that it would be open to broadly construing what is a place of public accommodation.
  3. This decision is published, and so, no restrictions exist on citing it as precedent.
  4. This case contains a nice description of what failure to accommodate cases turn on.
  5. This case also has a very nice explanation of the burden of proof. Too often, the burden of proof explanation gets overly legalistic, which is not the case here.
  6. This opinion says McDonnell Douglas doesn’t apply to title III cases.
  7. Blanket exclusions are always a bad idea. The ADA operates on an individualized analysis.
  8. As a matter of preventive law, don’t get stuck on whether a particular business is specifically listed in 42 U.S.C. §12181(7) when trying to determine if the business is a place of public accommodation. For that matter, as a matter of preventive law, unless you want to chew up a lot of money in litigation, which may or may not be successful, I wouldn’t get stuck on whether it is a physical place either. The question is whether what is going on is of the kind listed in any of the categories in 42 U.S.C. §12181(7).

Effective Communication Obligations Reach Beyond any Interactive Process

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School is coming up for many. Here in Atlanta, many started August 1 if not the Monday of that week. By the end of this week, just about everybody in metro Atlanta will have started school. My daughter started her second year of high school on August 1. So, this week is her first full week of her sophomore year. Good luck to everybody who has kids starting school.

Our case of the week, Tauscher v. Phoenix Association of Realtors Inc. (the defense does business at the Phoenix Association of Realtors), recently decided by the Ninth Circuit, which can be found here, is a big win for the culturally deaf, i.e Deaf. It comes out of the Ninth Circuit and it involved a culturally deaf individual who is a licensed realtor who was unable to procure an ASL interpreter for continuing education classes. As usual, our blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Plaintiff has a profound hearing loss and cannot hear sounds less than 90 dB, which is about as loud as a lawnmower. He cannot hear in conversational settings and does not use lip reading to understand speech. He also cannot effectively communicate with others by means of spoken words. His primary and best form of communication is ASL. Even so, plaintiff has a BA degree in biomedical photographic communication and an MBA. He works full-time for Sprint as a branch manager for product development and is also a licensed real estate salesperson in Arizona.

The Phoenix Association of Realtors is a trade association for real estate professionals selling real property in the Phoenix metropolitan area. It has 12 employees. Its membership has ranged over the years from 7,600 to 13,000 dues paying members. It offers a variety of programs and services for its members, including seminars that fulfill continuing education requirements set by the Arizona Department of Real Estate. Historically, the Phoenix Association of Realtors has charged only a nominal amount for those seminars, and the revenue from those seminars it generally less than the seminars cost.

Plaintiff registered for continuing education course that the Phoenix Association of Realtors scheduled for February 13 and 14 of 2013. His registration fee was $20. In September of 2012, plaintiff contacted the Phoenix Association of Realtors Chief Executive Officer to ask them to provide an ASL interpreter for the course. She declined to provide an ASL interpreter and instead offered him the use of an FM loop system amplifying sound. Plaintiff rejected that explaining that such a system would not provide effective communication for him because of the extent of his hearing impairment. They did discuss the possibility of closed or open captioning, but the conversation ended without any agreement.

In early of February 2013, the Phoenix Association of Realtors responded to plaintiff’s request for an auxilliary aid or service in a letter prepared by their attorney. It rejected plaintiff’s request for an ASL interpreter on the grounds that the Phoenix Association of Realtors did not have the resources to provide an ASL interpreter and that it would be an undue burden on the organization. Instead, the Phoenix Association of Realtors proposed: 1) plaintiff could attend the class and utilize lip reading and in that eventuality, the instructor would be made available for questions at breaks and lunch; plaintiff could bring another real estate agent who is willing to sign doing and they would provide the instruction and credit free to that person; or plaintiff could fulfill the continuing education requirement by taking online courses. Plaintiff and the Phoenix Association of Realtors could not reach an agreement. They then refunded plaintiff’s registration fee.

In October 2014, plaintiff registered for another course and once again asked for an ASL interpreter. The Phoenix Association of Realtors refused and proposed instead to make the instructor available for questions at break and lunch. They subsequently canceled plaintiff’s registration for the course. Plaintiff then filed a claim in the District Court alleging that the Phoenix Association of Realtors violated the ADA and the Arizonans with Disabilities Act.. When the District Court granted summary judgment for the defendant, plaintiff appealed.

 

II

Court’s Reasoning

 

  1. Nobody disputes that plaintiff is an individual with the disability or that the Phoenix Association of Realtors is a place of public accommodations and that its seminars are places of public accommodations.
  2. Applicable regulation, 28 C.F.R. §36.303(a), require that a place of public accommodation take those steps necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of ancillary aids and services. A place of public accommodation can only get out of that obligation if it can demonstrate that taking those steps either fundamentally alters the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or results in an undue burden.
  3. A place of public accommodation also must furnish appropriate axillary aids and services when necessary to ensure effective communication with individuals with disabilities. 28 C.F.R. §36.303(c)(1).
  4. Auxiliary aids and services include qualified interpreters, real-time computer aided transcription services (I happen to use this one all the time), assistive listening devices (I also use these quite a bit), and a range of additional measures. 28 C.F.R. §36.303(b)(1).
  5. The regulations also contain a general provision saying that any other effective method of making orally delivered information available to individuals who are deaf or hard of hearing is also in play.
  6. A place of public accommodation cannot require an individual with a disability to bring another individual to interpret for him or her. 28 C.F.R. §36.303(c)(2).
  7. While a place of public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid needed to ensure effective communication, the regulations implementing title III of the ADA makes clear that the ultimate decision as to what measures to take rests with the place of public accommodation providing that the method chosen results in effective communication. 28 C.F.R. §36.303(c)(1)(ii).
  8. A genuine issue of material fact existed as to whether plaintiff was offered an effective means of communication.
  9. While it is true that plaintiff was offered several different measures, many of those measures clearly were not effective means of communication. In fact, the Phoenix Association of Realtors admits that the FM loop system was not an effective means of communication for the plaintiff.
  10. Several of the other alternatives did not constitute an effective means of communication either as a matter of law. The regulations provide that a public accommodation may not require individuals with a disability to provide their own interpreter. So, defendant’s suggestion that plaintiff bring a friend to the class to interpret for him does not meet the defendant’s obligation to provide effective communication. For that matter, taking online classes instead of participating in the live classroom setting is also as a matter of law not effective communication because the regulations provide that individuals with disabilities cannot be segregated or otherwise treated differently than other individuals because of the absence of artillery aids and services. 28 C.F.R. §36.303(a). Finally, asking the plaintiff to rely on lip reading also fails as a matter of law because the plaintiff provided evidence that he was a poor lip reader.
  11. A genuine issue of material fact exists at the whether the defendant offered to provide a captioning system. While the defendant argues on appeal that captioning would have been an effective means of communication, evidence in the record exists that the defendant never offered the plaintiff that option. Instead, the CEO testified at her deposition that that option was not offered to the defendant because they had already concluded that such an accommodation was too costly and therefore, not feasible. Plaintiff also said that captioning would not be effective because he was not proficient in English.
  12. Defendant attempted to argue that plaintiff loses because plaintiff broke down the interactive process. However, the court wasn’t buying it for the reasons that follow below (¶ ¶ 13-15).
  13. The ADA does not make the interactive process requirement applicable to places of public accommodations and services. In fact, title III and its final implementing regulations make no mention of an interactive process mirroring the process required in the employment context.
  14. While the title III regulation do say that a place of public accommodation should consult with individuals with disabilities whenever possible in order to determine what type of auxiliary aid is needed to ensure effective communication, the place of public accommodation itself is independently responsible for making the ultimate decision as to what measures to take.
  15. There is no basis for holding that a place of public accommodation is relieved of its obligation to provide appropriate auxiliary aids and services if the individual requesting such managers fails to engage in good faith declaration of what measures would provide effective communication. Defendant did not cite any precedent on point and as far as the Ninth Circuit could tell there were none. So, defendant is not discharged up its obligation to ensure effective communication merely because the plaintiff did not engage in further discussion with it regarding measures other than an ASL interpreter. (Emphasis mine).
  16. Defendant also argued that an undue burden was involved, but the Ninth Circuit was saying questions of fact existed on that one as well as discussed by the court in the remaining paragraphs of this section.
  17. The ADA regulations define “undue burden,” in terms of, “significant difficulty or expense.” That determination takes into account a range of factors relating to the cost of the action compared to the financial resources of the place of public accommodation. See 28 C.F.R. §36.104. Determining whether an action places an undue burden on a place of public accommodation requires a holistic analysis of the financial resources available to the place of public accommodation, including its profits and operating expenses as well as the nature and frequency of the expense.
  18. The question of whether providing an ASL interpreter results in an undue burden raises complex issues that the trial court is better able to handle in the first place. That is the case especially here. The defendant argues that it charges only a $20 registration fee for its courses, but the cost of an ASL interpreter for the February 2013 course would have been between $1680 and $3360. On the other hand, plaintiff point to evidence in the record that the overall value of the Phoenix Association of Realtors assets in cash or cash equivalents was $839,606 at the end of fiscal year 2014 and $1,099,152 at the end of fiscal year 2013. Accordingly, the District Court has to consider whether a genuine issue of material fact exists with respect to undue burden.

 

III

Takeaways

  1. The interactive process is a title I requirement. However, it is always a good idea as a matter of preventive law for an entity to engage the person with a disability in the interactive process. If nothing else, it may prevent litigation in the future because the person with the disability, assuming the process is collaborative and not adversarial (see this blog entry), will feel respected. That said, it is extraordinarily significant that the Ninth Circuit says that an entity’s effective communication obligation goes beyond the interactive process. That is, even if a plaintiff breaks down the interactive process or it doesn’t engage in it, the effective communication obligations of a title III entity still exists.
  2. Many culturally deaf and hard of hearing individuals are lousy lip readers. Also, even the best lip reader, which I put myself in that category, can only get 50% of what is on a person’s lips.
  3. When it comes to the deaf and hard of hearing, no two people work the same way. In my situation, there are many time where an FM system with noise canceling headsets will work for me. However, I know many people who wear high-powered hearing aids for whom absolutely no headset will work for them at all. For people who were cochlear implants, headset never work for them.
  4. Just don’t ask a person fluent in ASL to bring their own interpreter. Just don’t. See also this blog entry.
  5. The case is also interesting because the Ninth Circuit says that certain accommodations fail as a matter of law given a particular set of circumstances. So, always do an individualized analysis.
  6. I have said many times in our blog, that undue burden is a very difficult defense to pull off. On the plaintiff side, consider one of your interrogatories being an inquiry as to whether the undue burden defense will be asserted, and if so, requesting the detailing of their overall financial situation. The advantage for a plaintiff doing this in an interrogatory is that it could foreclose the undue burden defense because many defendants do not want to disclose their overall financial situation to the plaintiff (the title III regulations do say that undue burden is measured against the overall financial resources of the place of public accommodation.
  7. Expect this case to have a huge impact in favor of the Deaf/deaf and HOH community. I am personally aware of deaf/Deaf/HOH attorneys that have had problems getting the kind of accommodations they need from continuing education providers. On occasion, I have even run into that myself. See also this blog entry, which is also mentioned above.
  8. Separating out a person with a disability from what is offered to people without disabilities is a very dangerous approach, is probably not defensible, and certainly increases the risk of litigation. See this blog entry for example.
  9. When it comes to legal counsel, make sure your legal counsel is knowledgeable about the ADA.

Medical Licensing Boards, Physician Health Programs, and the Lack of ADA Compliance: an Opportunity for Plaintiff Lawyers

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Before getting started on the blog of the week, some housekeeping matters. First, my blog was late this week. My daughter came home from camp on Monday, and so my time is different than it usually is. Second, starting tomorrow, my family will be in Chicago visiting both sides of the family. So, no blog entry this coming week.

Today’s blog entry talks about the FSMB (Federation of State Medical Boards), and their policy on physician impairments, here, which are typically applied to medical licensing boards and to PHPs. By way of full disclosure, I have consulted on cases involving healthcare professionals who have had their licensing called into question on the basis of their disability.  Those consulting efforts either got the licensing authority to back off or led to more individualized remedies. About two months ago, I was contacted by a couple of physicians, and we have been exploring how the ADA applies to the universe of Physician Health Programs and medical licensing boards. It turns out it is incredibly complicated. Eventually, we decided to focus on the FSMB Policy on Physician Impairments, which is used by PHPs to justify their actions using the imprimatur of the Medical Licensure Boards (MLBs). Physician Health Programs exist in 48 states and are tightly linked to the medical boards that enforce their actions. Their ostensible purpose is to restore impaired physicians to a non-impaired status. Here is the rub. It is quite clear that the FSMB policy was not drafted with the ADA in mind even though it is a 2012 document. So, the ADA would have been around for many many years at the time of this document. Also, the amendments to the ADA would have been around and in effect at the time of this document as well. When I went through the policy, I found 36 different instances of ADA noncompliance and/or provisions that are extremely problematic under the ADA. The physicians I have been working with on this project and myself decided a piece detailing all the 36 issues overwhelms a blog entry. So, we are going to save that for an article we will be publishing in a peer-reviewed journal to be determined. With respect to a blog entry, we decided that talking about the general concerns I had with the policy and then exploring an actual case would work better. Turns out, there is an actual case we can explore. I had a delightful conversation with Susan Haney, M.D., and she wrote about her case here. This article won a 2019 EXCEL award for best editorial/opinion piece in a magazine. So, we will use her article as a springboard after we go over some general concerns. As usual, the blog entry is divided into categories and they are: overarching theme of the FSMB policy on physician impairments; Key definitions; Dr. Haney’s case study; other case studies mentioned in Dr. Haney’s article; and takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Overarching Theme of the FSMB Policy on Physician Impairment

 

If there is an overarching theme of the FSMB policy on physician impairment it is this: physicians who are impaired or who have any potential for impairment must be fixed and restored at all costs before they can practice. I have a real problem with this. It goes directly against the underlying principles of the ADA. Whether a person chooses to have their disability fixed or not is entirely up to them. The ADA is all about integrating people with disabilities into the mainstream environment, and NOT “fixing” their disabilities. It accomplishes its goal by forcing various entities to engage in reasonable accommodations/modifications for the person’s disability. As we know, the reasonable accommodation/modification obligations must be done unless there is an undue hardship (title I) or an undue burden or fundamental alteration (title II and title III). So, the ADA is very much about working with the individual as you find them. That is not what is going on with this policy at all. Wait a minute, you might say. Maybe, this is just your disability rights perspective running amok. My response to that is the policy has a nondiscrimination clause in it. However, tellingly, people with disabilities are completely absent from that clause. Taking that and the clear lack of knowledge about what the ADA requires in terms of how the provisions are written, the only conclusion I come up with is that, according to the FSMB, disability is just wrong and needs to be fixed or cured at all costs. Like I said, the ADA doesn’t work that way nor should it.

 

II

Key Definitions

 

It isn’t the reasonable accommodation/modification piece that is the problem with the FSMB policy on physician impairment. Where the policy consistently runs into trouble is the lack of awareness of key ADA definitional terms. In particular, the policy clearly does not take into account that a person has a disability under the ADA if they have a record of a physical or mental impairment that substantially limits one or more major life activity or if they are regarded as having a physical or mental impairment. 42 U.S.C. §12102(1)(B),(C). Also, the policy runs into serious problems with respect to two other definitional issues. First, both title I and title II of the ADA talk about how you have to be qualified as well as a person with a disability in order to be protected by the ADA. The definition of qualified is a bit different from title I and title II. Title I, as we know, focuses on the essential functions of the job and whether the job can be performed with or without reasonable accommodations. Title II, as we also know, focuses on essential eligibility requirements and whether those requirements can be met with or without reasonable modifications. Since medical boards are title II entities, medical boards would have to be concerned about title II, but since much of what is going on here is a fitness for duty, Medical Boards and PHPs also need to know of title I’s qualified definition as well. With respect to the PHPs, the organizations actually doing the work of assessing a physician’s particular situation, the PHPs would have to be aware of title III of the ADA, which as we discussed here, does not but should contain an implicit qualified definition within it. Also, since they are doing the specific work of fitness for duty, they should be aware of qualified under title I of the ADA. Finally, the FSMB policy really breaks down when it ignores the ADA concept of direct threat. As we have discussed many times in this blog, direct threat in both title I and in title II and title III are essentially the same. However, the key difference is that direct threat under title I applies to self and others. On the other hand, direct threat under title II title III only applies to a direct threat to others. The direct threat analysis becomes very complicated in this context because you have title III and title II entities doing fitness for duty exams on behalf of a title II entity with respect to a physician who probably, but not always, works for a title I entity. As I say, going into depth as I have done over the last couple of months, becomes incredibly complicated. Every time we thought we had a handle on it, other items opened up. As I am fond of saying the ADA is a milewide and a mile deep. At any rate, we are going to save the details for an article to be published later.

 

III

 

Dr. Haney Case Study

 

The case study we are exploring today can be found here. Let’s go through the key points of the article. Also, as I mentioned above, I had an hour conversation with her last week, so I may bring additional facts to bear. She has given me permission to share all of this and actually encouraged me to do so. I also shared this blog entry with her prior to posting this online. Also, please note that the facts are taken as true from the article and from what she told me in her conversation. The actual facts in their entirety are surely more complicated.

 

  1. Haney is a person with recurrent episodes of major depression. Until about 2008, she managed her depression privately without interference or oversight from any medical licensing board. She was never hospitalized because of mental illness and never missed a day of work due to mental illness. At the time of the occurrence, she was working for an employer of 15 or more employees (an entity covered by title I).
  2. While on vacation in March 2006, she had a severe asthma attack requiring an extended course of a high dose of prednisone. Prescribers of prednisone and many patients know that mild dose-dependent mood and cognitive changes happen frequently during the therapy and that more severe psychiatric side effects are occasionally seen at a higher dosage level. In her case, the prednisone caused her to become clinically manic for the first time in her life and she realized that her judgment was becoming impaired. So, she reported her illness to the employer in order to arrange for a brief medical leave of absence (very unclear whether FMLA leave was properly designated at the proper time). She also contacted her primary care physician who had appropriately prescribed the prednisone as well as her personal psychiatrist and reestablished care with the previous psychotherapist. So far so good. Absolutely nothing wrong with what she did so far.
  3. After discussing the matter with a colleague, she asked her employer whether she should preemptively report her illness to the state medical board in order to keep her professional credentials unblemished by rumors about the cause and severity of her symptoms. Big mistake here. She had already requested and was granted a leave of absence by the employer. Accordingly, the employer was on notice that they were dealing with a disability. Also, if the leave was FMLA leave and the employer had a certification policy in place, the employer could have asked Dr. Haney upon expiration of the leave to get certified as to whether she could perform the essential functions of the job at the end of the leave. Even if it was not FMLA leave, the ADA would have kicked in for the employer. If it was not FMLA leave, the employer would have had the right to ask for a fitness for duty exam so to speak to determine whether she could perform the essential functions of her job with or without reasonable accommodations because the employer would probably be able to show that such an exam was job-related and consistent with business necessity (we discussed job-related and consistent with business necessity many times before in our blog, such as here).
  4. The minute she reported the matter to her employer, the employer required her to obtain written permission from the Oregon Board of Medical Examiners (BME) before permitting her to resume work. The employer made a mistake here as the employer immediately regarded her as having a disability. As mentioned above, if the employer was concerned about her ability to do the essential functions of the job with or without reasonable accommodations, it could have insisted on a medical exam to assess that since it probably would be able to show that such an exam was job-related and consistent with business necessity. That exam would be a narrowly focused exam to assess whether the person could do the essential functions of the job with or without reasonable accommodations without being a direct threat (see this blog entry for example). Mandating approval from the Oregon BME is a strong indication that the employer regarded her as having a disability.
  5. She immediately called the BME’s physician health program, hoping to obtain confidential help. She was told that without a chemical component, they were not able to assist her. Instead, they recommended that she discussed this matter directly with the BME’s Medical Director,, a retired general surgeon. He explained to her that the only way she could get written permission authorizing her return to work was to open a formal board investigation into her fitness to practice medicine. Thinking she had nothing to fear, she went all in. As she realizes now, big mistake. While the Medical Board and the PHPs may not realize it, they are subject to title II (medical board and possibly the PHP), and title III (the PHP), of the ADA. Accordingly, any investigation should have been narrowly focused on the concern raised, which is not what happened here, as you will see below. Failure to conduct a focused investigation created ADA regarded as claims.
  6. During the four month investigation, the BME would not permit her to return to work. The investigator successfully discouraged her from seeking legal assistance because of the potential for prolonging the investigation and further delaying her return to work. The BME’s staff would not allow her to appear in person or to testify in her own defense. I am not going to get into the due process claims that may be here, but I will say getting ADA knowledgeable legal counsel involved in this process as early as possible is absolutely critical. Also, getting licensing counsel involved as early as possible in this process is absolutely critical. If such attorneys had gotten involved, they may have been able to work with the investigators to make clear to them that anything beyond a narrowly focused investigation would activate regarded as claims under the ADA. Such advocacy may have gotten the BME and the PHPs to think twice about conducting a far-reaching investigation.
  7. At the conclusion of the investigation, the BME issued a nondisciplinary public corrective action order effectively announcing her mental illness to the general public. The order required that she continue psychiatric care, maintain a physician-patient relationship with the primary care physician, and refrain from the abuse of drugs or alcohol, all of which she had been doing. The order was published in the quarterly newsletter and picked up and published by her local newspaper as well as made available on the BME’s public website despite her objections. She was also required to enroll in a 12 step addiction treatment program despite the fact that she does not have a substance use disorder. I am not a privacy attorney. Accordingly, I can’t go into whether any of those kinds of laws were violated. I do know that privacy laws vary widely from State to State. I can say that what you have here is regarded as claim in all kinds of ways. Also, there seems to be a complete lack of individual analysis as to the remedy needed. For example, being forced to enroll in a 12 step program regardless of whether an individualized analysis would suggest that was a suitable program for her is very problematic. If the ADA requires anything it is an individualized analysis.
  8. Publication of the order was not based upon any actual threat that her illness both to the general public but rather was a standard policy. This is a real problem because direct threat under the ADA, which we have discussed many times in our blog entries, such as here, is a completely different animal and a term of art that the BME and the PHPs seem to be completely unaware of.
  9. When she attempted to assert her right to privacy, autonomy, religious freedom, and appropriate medical mental health care, the BME threatened her with emergency suspension of her license unless she fully complied with the PHP ordered program. Couple of things here. First, no mention of the ADA being pursued and that should have been done. Second, a variety of laws have retaliation provisions in them. Third, two sets of attorneys need to be immediately involved in these things (licensing counsel who understands how the licensing system in that State works and counsel with a comprehensive knowledge of the ADA). The two together, if my experience is any guide, can be quite effective. Each State has so many quirks with their licensing system and the personalities involved and the ADA issues here are so complex, that you really do need two attorneys working together to deal with the issue.
  10. In late 2012, the Ninth Circuit in Haney’s case, held that the State Medical Review Board was entitled to absolute immunity from civil suit for the quasi-judicial and quasi-prosecutorial acts. Pointedly, that decision said that injunctive relief would have been possible but Dr. Haney did not allege any facts showing that injunctive relief was called for. The absolute immunity piece I have not seen before, and my first reaction is that part of the opinion is an outlier. Also, it can be debated whether the acts at issue were quasi-judicial/prosecutorial in nature. I don’t see how a state entity or even a private entity, even if they are acting as a state actor, would have absolute immunity from a federal lawsuit, assuming federal claims were involved. Second, it is important to remember that injunctive relief and attorney fees are a very powerful tool even if it is not damages.
  11. In 2007, she filed an independent complaint with the US Department of Health And Human Services Office of Civil Rights alleging violation of her civil rights under the ADA by the BME. Under pressure from both her civil suit and a Health and Human Services investigation, in mid-2008, the BME voted to allow her to withdraw from the PHP ordered program in good standing. Moral of the story: lawyers can be very helpful at any stage of the process, but the earlier you get them involved, the better.
  12. She ultimately returned to full-time work as an emergency physician with an unrestricted medical license. However, as a consequence of the sanctions and the publication of her private medical history, she has been turned away by literally dozens of potential employers and credentialing bodies because she no longer has a clean record. All kinds of things here. First, there may be claims against the potential employers. The question for the employer is can she do the essential functions of the job with or without reasonable accommodations and is not a direct threat to others. If the employers are not giving her a chance to explain what happened, are the employer then regarding her as having a disability? If the employers have a process of screening out people without a clean record from the BME and the PHPs, are they involved in a policy practice or procedure that screens out persons with disabilities in violation of the ADA? They just might be.
  13. She also informed me that she is under PHP monitoring basically for the rest of her career. One wonders if such monitoring does not create a regarded as claim that might lead to a future injunctive relief filing.

 

IV

Other Case Studies Mentioned by Dr. Haney in Her Article

 

For purposes of this section, all facts are taken from Dr. Haney’s article and are taken as true. The actual facts will of course be more complicated.

 

  1. In 1998, a New York physician was initially denied a California state medical license due to his self-disclosed history of mental illness. After California refused to license him, New York revoked his license there as well. After considerable outcry from disability rights advocacy groups, he was eventually granted a probationary license in California, subsequently unrestricted, where he currently practices. I have seen this before where a person with a record of a disability that is being completely managed is gone after by licensing boards. The focus, such as we discussed here, needs to be on behavior and not on the record of the disability. If you take adverse action based upon the record and not upon the behavior, that is disability discrimination.
  2. In 2004, a Washington physician published her first hand account of working with bipolar. 10 years later, that Physician was sanctioned by her medical board following a retaliatory complaint from a former patient arising from a custody dispute over a dog. I don’t know the facts, but sounds like a potential “record of,” claim to me.
  3. Physicians with any history of mental illness may be automatically assumed by the medical licensing board to have an occupational impairment based simply upon their diagnosis. In fact, one of the provisions in the FSMB policy on physician impairments very much suggests this as a possibility. Automatically assuming a physician is a direct threat to others without conducting a focused individualized analysis relying on the most current medical knowledge and/or the best available objective evidence is disability discrimination.

V

Takeaways

 

  1. Clearly, licensing boards and PHPs are in need of knowledgeable ADA counsel reviewing their operations and this particular policy. As I mentioned, expect a paper on this at some point. In the meantime, an opportunity exists for plaintiff attorneys to get fees.
  2. Any physician going into this system needs to get licensing counsel and an attorney with a comprehensive knowledge of the ADA involved immediately. Do not wait. The sooner appropriate attorneys are involved, the more likely through the use of extremely knowledgeable licensing and extremely knowledgeable ADA counsel, the train will be able to be stopped. Also, the more likely resources will be available to pay for the necessary substantive expertise
  3. Louise Andrew MD JD and Ron Chapman JD have put out  a nice little publication on do’s and don’ts with respect to this whole PHP system.
  4. This stuff is all really complicated. PHPs are generally 501(c)(3) organizations. However, as a service establishment, they are subject to title III of the ADA per 42 U.S.C. §12181(7)(F). Where an entity covered by title III of the ADA violates the ADA, the plaintiff can get injunctive relief and attorney fees. Damages are not a possibility. With respect to the medical licensing boards, which are state entities, if a showing of deliberate indifference, which we discussed here, can be made, then damages are available. Also, if the title III entity takes federal funds, then damages are in order as well under §504 to Rehabilitation Act.
  5. With respect to damages, that may be a tough fight for a couple of reasons. First, sovereign immunity or other immunities may be in play. As we have discussed many times before, such as here and here, sovereign immunity is an incredibly complicated area because the equal protection class that persons with disability fall into is never fixed. Also, whether a State has waived sovereign immunity will vary from State to State. Second, even though PHPs are title III entities an argument exists under this case that PHPs are state actors. As such, they would be subject to damages under title II of the ADA. Unclear whether a state actor, a PHP, would be able to avail themselves of sovereign immunity. Regardless, sovereign immunity does not protect against prospective injunctive relief claims.
  6. The employers of doctors are not off the hook either. Under title I of the ADA should an employer have reason to believe through behavior an issue is involved with respect to whether that physician can do the essential functions of the job with or without reasonable accommodations, they have the ability to insist on a medical exam if they can show that the medical exam is both job-related and consistent with business necessity. Automatically referring a physician into the PHP system, may wind up running the employer into a regarded as claim. If there is no behavior and the employer refers someone with a record of a disability into the system, that is problematic as well. Finally, were an employer to order a medical exam based on an anonymous tip, they may run themselves into problems, as we discussed here. Of course, medical licensing boards and PHPs are not title I entities, but the principle is instructive with respect to ADA compliance.
  7. The PHP evaluations are comprehensive, but why? Performing a comprehensive evaluation in every case leads to regarded as claims. For that matter, so does the lack of an individual analysis.
  8. Do look for a paper, but since it will be peer-reviewed, it may take some time for that to be published.
  9. The sooner the FSMB and PHPs can understand the ADA and get away from fix a disability at all costs mentality, the less liability they are going to have.
  10. Not all physicians are employees. For those physicians who are not, how does the ADA apply to them as title I of the ADA does not apply because they are not an employee. So, what mechanism exists for ADA protection for such individuals. First, there is this case, which holds a physician independent contractor can have a claim under title III. Second, since medical licensing board and PHPs are covered by title II (MBE), and by title III and possibly title II (PHP), fitness for duty is involved, I would argue title I’s rules with respect to otherwise qualified/qualified must apply.
  11. There may be overlapping regulatory jurisdiction depending upon the entity involved. For instance, you may see Health and Human Services, Department of Justice, or the EEOC all having jurisdiction depending on the situation.
  12. If a lawyer representing a physician headed into or in the PHP process already is not using the ADA in his or her advocacy on behalf of the client, then per this blog entry , that lawyer, in my opinion, is committing legal malpractice.
  13. Did I say legal counsel legal counsel legal counsel with comprehensive knowledge about the ADA is critical. As soon as possible is important as unless a disability rights advocacy group takes on the matter, any representation may be hourly since damages can be very uncertain with sovereign immunity and other immunity defenses. A physician also is more likely to have resources early on in the process. Also, it is possible that your malpractice insurance may or may not offer coverage. On this, the physician may need an insurance coverage attorney to argue over any coverage distinctions based upon disciplinary proceeding v. assessment of an illness. At any rate, exhausting the possibility of malpractice insurance coverage is worth exploring as such coverage could make a huge difference to the physician.