Recently attention has been placed upon the health-related questions state medical boards ask on initial and renewal licensing applications. The authority and appropriateness of these health related questions have been scrutinized and criticized. Some suggest that asking health-related questions as a part of the licensing process can run afoul of the Americans with Disabilities Act (ADA).1
This scrutiny comes at a time when the ADA has undergone significant changes that have increased the number of people who it potentially protects.2
The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) did not directly amend Title II, which applies to governmental entities.
Given the broadened parameters of the ADAAA, it is important for state medical boards to carefully consider their use of health-related questions in the licensing process to ensure they fulfill their mandate of public protection but do so within the bounds of federal law. This article offers background and suggestions that will help state medical boards as they review the language they use in their licensing applications.
What Protections Does the ADA Extend?
Title II of the ADA protects qualified individuals from discriminatory actions taken by state entities. Under Title II no person with a disability can be unjustly excluded from participation in or be denied the benefits of services, programs or activities of any public entity.3
Three components in the ADA are of particular importance in evaluating the impact of the ADA on health-related licensing-application questions:
Definition of coverage. Those covered by the act include anyone who is disabled and who, with or without accommodation, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.4
Definition of discrimination. Title II discrimination occurs when a qualified individual with a disability, by reason of such disability, is excluded from participation in or is denied the benefits of the services, programs, or activities of a public entity, or is subjected to discrimination by any such entity.5
Use of eligibility criteria. The ADA forbids a public entity from imposing or applying eligibility criteria that screen out or tend to screen out any individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program or activity being offered.6
The original ADA, and now the ADAAA, are clearly meant to provide the broadest possible reach to protect all disabled persons in all public activities. The courts have explained that “the ADA should be interpreted broadly as all remedial statutes are.”7 The Lee court pointed out that “the ADA's broad language brings within its scope anything a public entity does.”8 The law prohibits a public entity from administering “a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability.”9 Finally, the Hanson court ruled that “medical licensing is without a doubt something that the medical board does. As such, we conclude that medical licensing clearly falls within the scope of Title II.”10
With these definitions, some courts hold that medical boards conduct business falling solidly within the realm of activities covered by the ADA. Assuming the ADA does, indeed, apply to state medical board activity, medical boards cannot administer their licensing applications in a manner that discriminates against disabled people. Further, medical boards cannot use criteria that screens out or tends to screen out disabled applicants.
But these regulations do not define what is “discriminatory” in the licensing process. By its nature, licensing is a discretionary process that discriminates between those who are capable to practice medicine and those who are not.
If this is the case, how can state medical boards know what is considered “discriminatory” in their licensing processes?
The courts are divided on this question. Some courts believe health-related questions are impermissible—a way of looking at the question that is referred to as “status analysis.” Other courts believe that the nature of questions are not the issue, but rather, how a government agency goes about determining a license applicant's competency. This way of approaching the question is called “behavioral analysis.” Finally, some courts have concluded that the ADA does not apply to licensing entities at all. This way of looking at the question is called “necessity exception analysis.”
Status Analysis
Status analysis holds that the ADA prevents the medical boards from inquiring into an individual's disability status. A status-questions-only approach solicits an applicant's condition rather than an applicant's competency. The Ellen court, which concluded that asking questions was a violation of the ADA, illuminates the status discrimination analysis.11 In Ellen an affirmative response to the first part of a question automatically triggered subsequent questions and possible subsequent investigation. Ellen held that “the Board can discriminate against qualified disabled applicants by placing additional burdens on them and this discrimination can occur even if these applicants are subsequently granted licenses to practice law.”12 The board's requirement that applicants answer the challenged questions, and that they sign a broad medical authorization, violates the ADA because it discriminates upon the disability status of disabled applicants rather than more narrowly tailored questions designed to elicit the applicant's behavioral fitness.13
Behavior Analysis
Behavior analysis holds that it is not screening questions, but what a medical board does with the answers to those questions, that indicates discrimination. The Jacob court best illuminates the difference between status analysis and behavioral analysis. The Jacob court held that it was not the challenged questions that created the ADA problem; in fact, the court stated that a board may ask anything it wants.14 The court ruled that the board could not place extra burdens on an applicant who answered status questions rather than behavioral questions.15
The Jacob ruling suggests that a board can create behavior and capabilities questions that focus on behavior.16 The court pointed out however, that “that it is not actually the questions themselves that are discriminatory under the Title II regulations.”17 The Lee court was also troubled that the “board presented no evidence of correlation between obtaining mental counseling and employment dysfunction, and question had strong negative stigmatic and deterrent effects.”18 Even the Ellen court agreed that behavior focused questions might be acceptable “as long as they do not substitute an impermissible inquiry into the status of disabled applicants for the proper, indeed necessary, inquiry into the applicants' behavior.”19
Necessity Exception
A few courts have found that the ADA does not apply to licensing authority because of the so called “necessity exception.” The relevant ADA provision reads:
“A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of that service, program, or activity being offered.”20
The necessity argument stems from the last clause, which reads: “Unless such criteria can be shown to be necessary for the provision of that service, program or activity being offered.”
The ADA states: “Under the necessity exception to the ADA, public entities may utilize eligibility criteria that screen out, or tend to screen out, individuals with disabilities if the criteria are necessary to insure safe operation of the program or if the individual poses a direct threat to the health or safety of others.”21
The Alexander court stated the necessity exception as it applies to medical boards:
“Due to the nature of the practice of medicine, plaintiff's mental condition exposes the public to some measure of risk to which the Board was duty bound to consider when considering whether to reinstate plaintiff's license. The very nature of the police powers exercised by state boards of medicine require the state to discriminate on the basis of, among other considerations, a mental condition harmful to the public's safety. The Board cannot exercise its duty without the discretion to consider the impact of a mental disability upon one's ability to practice with reasonable skill and safety. The danger of irreparable harm to the public is too great to deny the Board such discretion.”22
The Pat Doe court also pointed out the necessity of asking health related questions as part of the application and licensing process:23 “The boards must determine if an applicant is fit to practice medicine and as such, the boards must obtain all necessary information in order to make an informed decision.”24
These differing opinions leave the medical boards in an uncertain environment in determining to what extent the ADA applies to the application and renewal questions. The following analysis of three health-related application questions is designed to help medical boards as they review their processes for gathering health-related information in the licensing process. The three questions are a hybrid of those found in various state applications.
1. Have you ever suffered from any physical, psychiatric, or addictive disorder?
This question is an example of a status question as it does not inquire into the applicant's abilities but only into the applicant's status as someone with a disability. This question would not pass a status analysis, but may pass a behavioral analysis depending on how the medical board follows up on a “yes” answer.
2. Do you currently have, or have you had within the past 5 years, any physical, mental or emotional condition which impaired, or does impair your ability to practice medicine safely and competently?
This question is both a status question and a behavioral question. The question's five year look-back may create a problem with a status analysis. The question would probably survive a behavioral analysis challenge, and it could survive a status analysis because of the link to an impairment.
3. Do you currently have a mental, physical or behavioral disability that may impact your ability to practice safely?
This question is an example of a behavioral question, as it focuses only upon the qualification of the applicant and not the applicant's disability status. This question would survive both a status analysis and a behavioral analysis.
These three questions demonstrate the spectrum of questions that may occur in the licensing process; from an open-ended “status” question to a very narrow “behavioral” question.
Conclusion
Medical boards must carefully balance their statutory duty to protect the public with their possible requirement to comply with the ADA. Unfortunately, the courts have not provided clear guidance on how best to comply with the ADA and protect the public. The challenge for medical boards is to craft questions narrow enough to survive a judicial challenge but broad enough to gather all information necessary to protect the public.
References
- 1.↵Pub.L. 101-336, 104 Stat. 327, enacted July 26, 1990, codified at 42 U.S.C. § 12101.
- 2.↵ADA Amendment Act, Pub. L. 110–325, 122 Stat. 3553 (2008), effective January 1, 2009.
- 3.↵Olmstead v. L.C., 527 U.S. 581 (1999)
- 4.↵42 U.S.C. § 12131(2)
- 5.↵42 U.S.C. § 12132
- 6.↵28 C.F.R. § 35.130(b)(8)
- 7.↵Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 ( 1st Cir.1998); Kornblau v. Dade County, 86 F.3d 193, 194 (11th Cir.1996) & Tcherepnin v. Knight, 389 U.S. 332, 336, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967)).
- 8.↵Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir.2001)
- 9.↵Ellen S., Annabel R., Katherine F. and Sally M., Plaintiffs, v. The Florida Board Of Bar Examiners, 859 F.Supp. 1489, 1493, (S.D.Fla., Aug 01, 1994); Clark v. Virginia Bd. of Bar Examiners, 880 F.Supp. 430, 442 (E.D.Va.1995); Hason v. Medical Bd. of California 279 F.3d 1167 C.A.9 (Cal. 2002) & Kirbens v. Wyoming State Bd. of Medicine, 992 P.2d 1056, (Wyo., Dec 06, 1999))
- 10.↵Hanson at 1172,
- 11.↵Ellen at 1493, (S.D.Fla., Aug 01, 1994); Clark v. Virginia Bd. of Bar Examiners, 880 F.Supp. 430, 442 (E.D.Va.1995); Hason v. Medical Bd. of California 279 F.3d 1167 C.A.9 (Cal. 2002) & Kirbens v. Wyoming State Bd. of Medicine, 992 P.2d 1056, (Wyo., Dec 06, 1999)
- 12.↵Ellen at 1493
- 13.
- 14.↵Medical Society of New Jersey v. Jacobs, 1993 WL 413016, 8
- 15.
- 16.↵Id. at 6
- 17.↵Id. At 8
- 18.↵Lee at 69
- 19.↵Ellen at 1494
- 20.↵28 C.F.R. § 35.130(b)(8) (emphasis added)
- 21.↵Americans with Disabilities Act of 1990, § 2 et seq., 42 U.S.C.A. § 12101 et seq.; 28 C.F.R. § 35.130(b)(8); Part 35, App. A.
- 22.↵Alexander v. Margolis, 921 F.Supp. 482, 488, 13 A.D.D. 1017, 8 NDLR P 30 (W.D.Mich., Nov 01, 1995) (NO. 1:93-CV-585)
- 23.↵Pat Doe v. The Judicial Nominating Commission for the Fifteenth Judicial Circuit of Florida, No. 95-8625-CIV. Nov. 13, 1995. Nunc Pro Tunc Nov. 9, 1995 906 F.Supp. 1534, 64 USLW 2329, 5 A.D. Cases 1, 12 A.D.D. 551, 7 NDLR P 240 (S.D.Fla., Nov 09, 1995) (NO. 95-8625-CIV-HURLEY)
- 24.
