 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Kirbens v. Wyoming State Board of Medicine12/6/1999
ompanying regulation promulgated under the ADA, providing
public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. 28 C.F.R. ' 35.130(b)(6) (1999).
Virginia interprets this provision as specifically prohibiting public entities from acting discriminatorily in administering licensing programs. Clark v. Virginia Bd. of Bar Examiners, 880 F. Supp. 430, 442 (E.D. Va. 1995). Kirbens asserts this regulation prohibits the Board from assisting substance dependent physicians while denying assistance to him for his particular disability, and discriminatorily refusing to allow him to voluntarily relinquish his license.
Maintaining its position that Kirbens is not a qualified individual under ADA, the Board relies upon Alexander v. Margolis, 921 F. Supp. 482 (W.D. Mich. 1995), affirmed on appeal, 98 F.3d 1341 (6 th Cir. 1996), and quotes the following passage:
Considering the text of section 12132(2), it is questionable whether the Board=s duty to license physicians can be characterized as a Aservice@ being denied to plaintiff or whether the Board=s refusal to reinstate his license denies him participation in Aprograms or activities provided@ by a state entity. The Board of Medicine is, if anything, a service, program or activity provided for the public=s benefit and safety, not for the benefit of any given individual who does not meet the state=s requirements for practicing medicine.
In any event, plaintiff is not a Aqualified individual with a disability@ under the ADA. 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. By the very nature of the practice of medicine, given the physician=s necessary independence to Apractice@ his art, no reasonable modification can be made to a policy of restricting medical practice to those without evidence of mental disabilities. Id. at 488.
The Board directs our attention to Doe v. Univ. of Maryland Medical System Corp., 50 F.3d 1261 (4 th Cir. 1995), which held:
hospital does not violate ' 504 of the Rehabilitation Act or Title II of the ADA when it terminates an HIV-positive neurosurgical resident based upon the risk of transmission of the disease during performance of exposure-prone procedures. Such individuals pose a significant risk to the health or safety of their patients that cannot be eliminated by reasonable accommodation, and therefore are not otherwise qualified within the meaning of the Rehabilitation Act and the ADA. Id. at 1267.
Kirbens distinguishes Doe as a Title I employment termination case inapplicable to a request of voluntary relinquishment on Title II disability grounds. We agree that Kirbens= contentions must be examined under Title II of the ADA which is applicable to public entities, rather than Title I, which is applicable to employment. Nevertheless, we find that the federal regulations promulgated under the ADA support the Board=s position.
ABecause Congress explicitly authorized the Attorney General to implement Title II through these regulations, see 42 U.S.C. ' 12134, they >must be given legislative and hence controlling weight unless they are arbitrary, capricious, or plainly contrary to the statute.=@ Medical Society of New Jersey v. Jacobs, 1993 WL
Page 1 2 3 4 5 6 7 8 9 10 Wyoming Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|