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DJ 202-PL-227

SEP 10 1993

A. Laurence Field
A. Laurence Field & Associates
1322 Bayview Road
Middletown, Delaware 19709

Dear Mr. Field:

This letter is in response to your inquiry about the


Americans with Disabilities Act (ADA).

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.

You ask whether the ADA permits public or private entities


to provide medical or dental treatment to persons with AIDS in
segregated settings.

The ADA prohibits discrimination against an individual on


the basis of that individual's HIV or AIDS condition. This is
true regardless of whether the discriminating entity is publicly
or privately owned. State or local government entities or
instrumentalities that provide medical or dental care are covered
by title II of the ADA as public entities. Private entities that
offer medical or dental care are public accommodations, which are
covered by title III of the ADA. Under both titles II and III,
the ADA generally prohibits the provision of separate or
different services to individuals with disabilities, unless it is
necessary to make the services as effective for people with
disabilities as they are to others. In addition, both public
entities and public accommodations are required to provide their
services in the most integrated settings appropriate to the needs
of the individuals with disabilities.

cc: Records, Chrono, Wodatch, Magagna, Novich, FOIA, MAF


Udd:Novich:Policy:227
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However, both titles II and III contain an exception to the
general non-exclusion and integration requirements when an
individual with a disability poses a direct threat to the health
or safety of others. A direct threat is defined as a significant
risk to the health or safety of others that cannot be eliminated
or satisfactorily mitigated by reasonable modifications to the
covered entity's procedures. Under section 35.104 of the title
II regulation, an individual who poses a such a direct threat is
not considered a "qualified" individual for the services or
programs being offered. Similarly, section 302(b)(3) of the Act
states that public accommodations are not required to permit
participation of individuals who pose a direct threat to the
health or safety of others. However, the titles II and III
regulations specify that the determination of whether an
individual poses a direct threat be

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, or procedures will
mitigate the risk.

See section 35.104 of the enclosed title II regulation, at pages


35717 and 35701, and section 36.208 of the title III regulation,
at pages 35595-35596 and 35560-35561, for discussions of the
direct threat exception.

Therefore, under titles II and III of the ADA, individuals


with HIV or AIDS may not be treated in segregated setting unless
necessary to provide those individuals with treatment as
effective as is provided to individuals without HIV or AIDS, or
unless the providers can demonstrate that a specific individual
poses a direct threat to the health or safety of others.
Individuals with HIV or AIDS do not pose a direct threat to
health professionals or other medical patients as long as
reasonable sanitation methods can satisfactorily mitigate the
risk of spreading the disease. The Centers for Disease Control
and Prevention (CDCP) have issued recommended precautionary
measures to mitigate the risk of transmission of HIV, and other
communicable diseases, in health care settings. For more
information on these measures, known as the "Universal
Precautions," contact the CDCP National HIV/AIDS Hotline at (800)
342-2437.

In addition, The American Dental Association has issued an


opinion stating that patients with HIV may be safely treated when
recommended precautions are used. You may contact the American
Dental Association at (312) 440-2500.
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I hope this information is useful to you.

Sincerely,

John L. Wodatch
Chief
Public Access Section

Enclosures
Title II Regulation
Title III Regulation

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A. Laurence Field & Associates (302)378-1600
1322 Bayview Road SPECIALISTS IN ACCESSIBILITY
Middletown, DE 19709 AND BARRIER REMOVAL

July 2, 1992

Colleen Miller
Coordination & Review Section
Civil Rights Division
P.O. Box 66118
Washington, DC 20035-6118

re: Request for ADA Technical Assistance/


Segregated Dental Facilities for Persons with AIDS

Dear Ms. Miller:

As we discussed by phone today, I am requesting assistance from your office in


understanding the extent to which persons with AIDS may be offered medical
treatment in a segregated setting.

The specific issue is the delivery of dental services by an instrumentality of


the state. Comments on this specific issue would be most appreciated. If
information on the broader question posed in the first paragraph is readily
available, I would appreciate that as well.

Thank you very much, Ms. Miller, for your assistance.

Very truly yours,

A. Laurence Field

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