The U.S. Supreme Court this past term looked at the Americans with Disabilities Act (ADA) in three cases. Their decisions in two of the three shocked and dismayed the disability community by narrowing the class of individuals that can be considered disabled. In Sutton and Hinton v. United Air Lines, Inc. (119 S.Ct. 2139) twin sisters with severe myopia (20/200) but correctable with lenses to 20/20 applied for commercial pilot licenses and were rejected.
Both the EEOC and the Department of Justice have issued regulations defining a "disability" in a way that did not include corrective measures. The EEOC issued an "Interpretive Guidance," which provides that "[t]he determination of whether an individual is substantially limited in a major life activity must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices." 29 CFR pt. 1630, App. § 1630.2(j) (1998) (describing § 1630.2(j)). The Department of Justice has issued a similar guideline. See 28 CFR pt. 35, App. A, § 35.104 ("The question of whether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable modification or auxiliary aids and services"); pt. 36, App. B, § 36.104 (same).
Instead the Court concluded that neither agency was authorized to define "disability," and so the Court provided a definition that contradicted both agencies. "A ‘disability’ exists only where an impairment ‘substantially limits’ a major life activity, not where it ‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were not taken. A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently ‘substantially limits’ a major life activity. To be sure, a person whose physical or mental impairment is corrected by mitigating measures still has an impairment, but if the impairment is corrected it does not ‘substantially limi[t]’ a major life activity." The court seemed concerned by the fact that if uncorrected but correctable impaired vision was deemed a disability, then 160 million rather than 43 million Americans could be considered disabled.
The dissent raised concerns about individuals with prostheses, controlled diabetics and controlled epileptics as well as individuals with hearing impairments who have hearing aids. The majority countered that these individuals were clearly disabled but the relevant question was whether they were substantially limited in a major life activity. This definition clearly raises the threshold for the disability prong of the ADA. We will be following how psychotropic medications will be seen as "mitigating" a disability.
The second case also addressed a vision issue involving a waiver of a vision requirement for a commercial truck driver - Albertsons, Inc. v. Kirkingburg (119 S.Ct. 2162). The driver had monocular vision but had been able to compensate by experience. The court found again that monocular vision (amblyopia) per se was not a disability unless he could show he had not been able to compensate for it and it affected a major life activity. "We simply hold that the Act requires monocular individuals, like others claiming the Act's protection, to prove a disability by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial."
The third case, Olmstead,. v. L. C., by Jonathan Zimring (119 S.Ct. 2176), involved developmentally disabled and mentally ill adults. The issues raised concerns for many state departments of Mental Health/Retardation who felt they would be forced to provide community placements in such a way as to preclude fiscal "realities" and perhaps cause inappropriate closures of facilities. For patient advocates the main issue involved prolonged unnecessary hospitalizations. This case involved two individuals who were hospitalized in State facilities awaiting community placements. The treating psychiatrists agreed that they no longer needed hospital care. The State claimed there were no available beds in the community facilities. The lower courts heard claims that this violated the ADA as the patients were not placed in the least restrictive alternative.
Given the incredibly short lengths of stay for the mentally ill these days, this case may appear anomalous to many readers. It may also be surprising to see the ADA as the basis for the suit as it is more frequently cited in employment discrimination cases and access to public accommodations. In many states, however, Departments of Mental Retardation are often separate from Departments of Mental Health and community placements are very problematic for those seen as dually diagnosed or for patients with a primary diagnosis of retardation who get hospitalized in psychiatric facilities for acute behavioral problems. A number of these cases have resulted in lawsuits and only more recently have invoked the ADA as the basis for the legal violation.
The Supreme Court did conclude that, "under Title II of the ADA, States are required to place persons with mental disabilities in community settings rather than in institutions when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities."
. "Unjustified isolation, we hold, is properly regarded as discrimination based on disability. But we recognize, as well, the States' need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and the States' obligation to administer services with an even hand. Accordingly, we further hold that the Court of Appeals' remand instruction was unduly restrictive. In evaluating a State's fundamental- alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with mental disabilities, and the State's obligation to mete out those services equitably…If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable- modifications standard would be met."
The APA filed an amicus curiae brief in this case supporting the patient’s position in this case but also emphasizing that this case should not be used as a vehicle to force a total deinstitutionalization model. The court was sympathetic to this view and cited the brief several times.
The decision leaves open what a "reasonable pace" is and how it is to be defined. This is a critical factor and undercuts the effectiveness of the basic holding. One of the patients was hospitalized for a year after she was deemed suitable for community placement and this, in my experience, is not uncommon. The Supreme Court gave more deference (than the Court of Appeals did) to the State’s concerns that they could never be able to justify that the 1-2 patients who filed a lawsuit would fundamentally alter the Department’s mission.
In another arena, this past spring was the last examination for specialty certification in forensic psychiatry that could be taken without completing a one-year residency program. 486 psychiatrists passed this last exam bringing a total of 1,310 who have passed the examination since the ABPN offered the exam five years ago. The Board has begun to consider the process of recertification since all certificates now are time limited. After the next examination all applicants will have to have completed residencies from ACGME accredited programs.
As a footnote I have just heard bout a case where a psychiatrist was court appointed to perform a competency to stand trial valuation for a public defender in a state adjacent to where the psychiatrist practices and is licensed. Following the evaluation, and before any testimony was taken, the prosecutor filed a complaint with the state licensure board that the physician was practicing in that state without a license. The state has no formal requirement for registration and the definition of practice does not include forensic evaluations that are not for the purpose of care or treatment. The licensure board has however, begun an enquiry and the physician has hired an attorney.
Bob Simon ad Dan Shuman recently published an article in our Journal reviewing some of these issues in "Conducting Forensic Examinations on the Road," v.27, Number 1, pp75-82 (1999). I recommend a careful reading. The AMA recently passed a resolution (Policy II-265.993, AMA Policy Compendium 1998) stating that "expert witness testimony is the practice of medicine." The AMA also passed a Report of the Board of Trustees on Expert Witness Testimony (B of T report 18-1-98) which discusses: (a) the importance and role of physicians, medical societies and licensing boards in maintaining the integrity of physicians who provide expert witness testimony; (b) some of the inherent difficulties, both conceptual and practical, in conducting peer review of such physicians; (c) existing peer review programs within organized medicine; (d) a possible role for licensing boards in this arena; and (e) issues for future consideration.
These issues will become more prominent and psychiatrists should review the problem of licensure with the out of state attorney at the time of retention. This is a complicated issue, in my view, and needs some thoughtful approach to allow for appropriate peer review while at the same time not restricting physicians with valuable expertise from appearing in cases.