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
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significant 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 health-
care 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
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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"
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​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 non-
answer. 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.
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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
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XX
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