Just recently, the Department of Justice, the Department of Health and Human Services, and the Department of Education joined forces to issue a letter (the link will take you to the press release. In that press release, there is another link to the letter itself), to schools of medicine, schools of dentistry, schools of nursing, and other health-related schools with respect to their views on these kinds of schools discriminating against students with hepatitis B. In short, all three agencies make it clear that discrimination against students with hepatitis B is in violation of the ADA and “will not be tolerated” (those words are actually used in the press release). This blog entry discusses a preventive system that educational institutions can set up so that they can deal effectively with direct threat issues whenever they arise. That preventive system. the two-step (with apologies to country music and the great State of Texas), works as follows.
First, in an article that you can find on my blogroll, I discussed the first step, which is how a college, university, or graduate program needs to go about determining what are their essential eligibility requirements. The process has to happen because otherwise the institution is going to be on very flimsy ground with respect to denying a request for an accommodation. That article discusses a five step process. While that process is described in the article, just to reiterate it here it includes:
1) setting up a departmental committee to assess what are the essential eligibility requirements of the program. That is, what are the fundamental things that the Department wants the student to be able to do with respect to that course of study;
2) consulting with legal counsel to make sure that those essential eligibility requirements are fundamental and that the essential eligibility requirements do not create a situation where persons with disabilities are being screened out. Legal counsel will also want to make sure that essential eligibility requirements are not confused with major life activities and that essential eligibility requirements of the course of study are not confused with the profession itself;
3) having the departmental committee in conjunction with legal counsel draw up the essential eligibility requirements and then having them submitted to the department for a vote;
4) once the Department has signed off, make sure the University or college disability services Department have a copy of those essential eligibility requirements. If at that Department vote, changes are made to the essential eligibility requirements, then repeat steps 2 (legal counsel), and step 3 (departmental vote).
5) make sure those essential eligibility requirements are known to all stakeholders throughout the college and University system.
Adopting this approach means that you should be able to successfully fend off arguments that the essential eligibility requirements were not determined by knowledgeable stakeholders. There has been case law as well as OCR letters creating problems for colleges, universities, etc. when the necessary expertise is not involved. Of course, critical for this system working is that everybody understand their role. The people in the department are the subject matter experts (figuring out what is fundamental), while legal counsel is the legal expert (in addition to what has already been mentioned above, making sure that the department understands the nature of what is fundamental under the ADA, and by making sure that the criteria the department comes up with do not screen out persons with disabilities).
Before moving on to the second step, it would also be well worth considering to have an ADA grievance procedure in place. If the place of higher education is a public entity with 50 or more employees, they need to have such a procedure in place anyway. Having a grievance procedure in place would allow for the problem being solved long before it ever gets to litigation, especially if you have knowledgeable people involved in the resolution process. For that reason, even if you are not mandated to have an ADA grievance procedure, it makes sense to do so.
The second step is figuring out whether that person is a direct threat. The ADA does not protect someone if they are direct threat to themselves (Title I regs) or others (Title I, II, and III regs). See Chevron v. Echazabal 536 U.S. 73 (2002) (Title I case). How do you go about determining whether someone is a direct threat to themselves or others? Any determination of direct threat must be based upon a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. Id. at 86. That’s all fine, but what are you considering when you are trying to determine what is a reasonable medical judgment based upon the most current medical knowledge and/or the best available objective evidence? The answer to that question come from another U.S. Supreme Court case, School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987). In particular, the Supreme Court said (on page 288 of their decision), that in determining direct threat you had to consider all of the following:
1) the nature of the risk (how the disease is transmitted);
2) the duration of the risk (how long the carrier is infectious);
3) the severity of the risk (what the potential harm is to third parties);
4) the probability the disease will be transmitted and will cause varying degrees of harm.
5) whether reasonable modifications of policies, practices, or procedures will mitigate the risk.
All of this leads to the next question which is how do you go about figuring out the nature of the risk, the duration of the risk, the severity of the risk, the probability the disease will be transmitted and will cause varying degrees of harm? The Department of Health and Human Services, the Department of Justice, and the Department of Education in their joint letter say that one place you can look to is the CDC guidelines on a matter. With respect to hepatitis B, the CDC has specific recommendation for managing students who have hepatitis B. Those recommendations include: 1) chronic hepatitis B virus infection in and of itself should not preclude the study or practice of medicine, surgery, dentistry, or allied health professions; 2) any practices, policies, or procedures restricting students from the study of medicine, dentistry, or surgery (such as the notification to patients of the hepatitis B status of the health care provider) should be discouraged; 3) medical and dental students with chronic hepatitis B virus infection who do not perform exposure prone invasive procedures but who practiced non-invasive or minimally invasive procedures should not be subject to any restrictions of their activities and studies. (CDC classifies exposure-prone invasive procedures as those limited to major abominable, cardiothoracic, and orthopedic surgery, repair of major traumatic injury, abdominal and vaginal hysterectomy, cesarean section, vaginal delivery, and major oral or maxillofacial surgery); 4) while medical and dental students with chronic hepatitis B virus infection may have restrictions imposed on their participation in exposure-prone invasive procedures, exposure-prone invasive procedures are not ordinarily performed by students fulfilling the essential functions of a medical or dental school education); and 5) standard precaution should be rigorously adhered to in all health-care settings.
The phrase “while medical and dental students with chronic hepatitis B virus infection may have restrictions imposed on their participation in exposure-prone invasive procedures, exposure-prone invasive procedures are not ordinarily performed by students fulfilling the essential functions of a medical or dental school education,” bears particular discussion for a couple of different reasons. First, this phrase is obviously a statement saying that these three agencies are going to be very skeptical of any essential eligibility requirement that says a student must perform exposure-prone invasive procedures. Not only that, a direct threat defense for a student that is not performing exposure-prone invasive procedures is likely to get short shrift from these agencies because the CDC notes that since 1991 there have been no reports of hepatitis B transmission in the United States or other developed countries for medical or dental students or any others who would not normally perform exposure-prone invasive procedures. Second, the use of the term essential functions is curious because essential functions is an employment term under title I of the ADA and students are not employees with respect to the education they are getting. Rather, it would have been more appropriate to use the term “essential eligibility requirements,” instead. While title III of the ADA, does not have essential eligibility requirements language in it, nevertheless, as I have written elsewhere, you get to the same place because you can’t use the fundamental alteration defense unless you know what are the essential elements/requirements of the business.
In summary: if you are going to dismiss a student from your program because they are a direct threat, you want to make sure that you have your essential eligibility requirements of the program in order. Second, you need to make sure that the student is indeed a direct threat as the term is understood by the U.S. Supreme Court. Finally, in assessing direct threat make sure you look for whatever medical resources are out there, such as CDC guidelines, to make sure that the direct threat determination is consistent with an individual determination of the situation and based upon the most current medical knowledge and/or the best available objective evidence.