Number range CHAPTERUNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

)

THE UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v\. ) CIVIL ACTION

)

)

DREW B. MORVANT, D.D.S., ) No. 93-3251

) Section K(1)

and )

)

DREW B. MORVANT, )

A PROFESSIONAL DENTAL CORPORATION,)

)

Defendants. )

)

)

**UNITED STATES\' OPPOSITION TO DEFENDANTS\' MOTION**

**FOR SUMMARY JUDGMENT AND MOTION TO DISMISS**

**FOR LACK OF SUBJECT MATTER JURISDICTION**

The United States filed this action alleging that Defendants\' refusal
to provide routine dental care to individuals who are HIV-positive or
who have AIDS constitutes discrimination on the basis of disability in
violation of title III of the Americans with Disabilities Act (\"ADA\"),
42 U.S.C. §§ 12121-89. On January 11, 1995, the United States and
Defendants filed cross motions for summary judgment on the issue of
liability. Defendants also filed a motion to dismiss for lack of subject
matter jurisdiction.[^1] This memorandum responds to both of
Defendants\' motions. The United States demonstrates below that,
contrary to Defendants\' arguments: 1) medical decisions are not immune
from scrutiny under the ADA; 2) \"substantial compliance with accepted
professional norms\" is not a defense to discrimination on the basis of
disability; and 3) the ADA is constitutional as applied to
discriminatory denials of routine dental care. Accordingly, Defendants\'
motion for summary judgment and motion to dismiss should be denied.

### ARGUMENT

**I. DEFENDANTS\' MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED**

**A. Medical Decisions Are Not Immune from Scrutiny Under the ADA**

There is no dispute that Defendants refused to provide dental cleanings
and dental examinations to Ismael Pena, xxxxxxxx, and other persons with
HIV or AIDS, but rather, sent them to Dr. Kathryn Creely Sturm, another
general dentist, for the provision of all routine dental care.
Plaintiff\'s Statement of Uncontested Facts (hereinafter referred to as
\"Pl.\'s Facts\"), at ¶ 10 - ¶ 18, ¶ 37 - ¶ 42; Defendants\' Statement
of Uncontested Facts ¶ 5 - ¶ 6; Stipulation of Drew B. Morvant, D.D.S.
and Drew B. Morvant, A.P.D.C. (September 30, 1994). Similarly, there is
no dispute that Defendants\' denials of care and \"referrals\" to Dr.
Creely Sturm were based solely on the patients\' HIV-positive status.
[Id]{.underline}. Defendants now attempt to justify their discriminatory
actions by describing them as \"medical decisions,\" which, they argue,
are \"immune from scrutiny\" under the ADA. Defendants\' Memorandum in
Support of Motion for Summary Judgment (hereinafter referred to as
\"Defs.\' Summ. J. Mem.\") at 2. Defendants\' arguments have no support
in the statutory language of the ADA, the ADA regulations, or in the
case law, all of which Defendants ignore.

Title III of the ADA prohibits discrimination on the basis of disability
by owners and operators of places of public accommodation, including,
specifically, health care professionals. 42 U.S.C. §§ 12181(7)(F);
12182(a); 28 C.F.R. §36.104(7). Accordingly, a patient with a disability
cannot be denied the opportunity to receive medical or dental care
because of his or her disability. [Howe v. Hull]{.underline}, No.
3:92CV7658, slip op. at 10 (N.D. Ohio Nov. 21, 1994)(attached to the
United States\' Memorandum in Support of its Motion for Summary Judgment
and hereinafter referred to as \"[Howe I]{.underline}\"); [Mayberry v.
Von Valtier]{.underline}, 843 F. Supp. 1160, 1166 (E.D. Mich. 1994); [In
re Baby K]{.underline}, 832 F. Supp. 1022, 1029 (E.D. Va. 1993), [aff\'d
on other grounds]{.underline}, 16 F. 3d 590 (4th Cir. 1994), [cert.
den.]{.underline}, \_\_ U.S. \_\_, 115 S. Ct. 91. While a health care
provider is not required to treat a person seeking treatment or services
outside the referring provider\'s area of specialization, the title III
regulation provides that the referral must be based on the treatment the
patient is seeking or requires, rather than the disability that he or
she has. 28 C.F.R. § 36.302(b)(2).[^2] Indeed, a referral from one
health care provider to another complies with the ADA only if, in the
normal course of operations, \"the referring provider would make a
similar referral for an individual without a disability

who seeks or requires the same treatment or services.\"
[Id]{.underline}.; [Howe I]{.underline}, slip op. at 10.

Thus, any time that a defendant asserts that an alleged discriminatory
act of sending a person with a disability to another health care
provider was actually a legitimate referral within the meaning of the
ADA, the \"medical decision\" of the referring provider is subject to
scrutiny by the court. Case law under the ADA fully supports this
position.

In [In re Baby K]{.underline}, 832 F. Supp. 1022, one of the first cases
challenging the actions of a health care provider under the ADA, the
court found that \"denial of medical services\" is \"discrimination
against a vulnerable population \[and\] exactly what the \[ADA\] was
enacted to prohibit.\" [In re Baby K]{.underline}, 832 F. Supp. at 1029.
The court specifically overruled the hospital\'s alleged \"medical
decision\" to withhold ventilator treatment from an anencephalic
newborn, finding that \"denial of ventilator services that would keep
alive an anencephalic baby when those life-saving services would
otherwise be provided to a baby without disabilities\" violates the ADA
as a matter of law. [Id]{.underline}.

Similarly, in [Howe v. Hull]{.underline}, the court found the defendant
liable for discrimination because the defendant refused to treat the
simple allergic drug reaction from which the HIV-positive plaintiff had
been suffering, even though the defendant had the capability to do so.
[Howe I]{.underline}, at slip op. 11-12. The court found the
defendant\'s assertion that the patient needed \"specialized care\"
pretextual. [Id]{.underline}. at slip op. 12. Again, the defendant\'s
medical decision was subject to scrutiny by the court and found to be in
violation of the ADA. [Id]{.underline}. [See]{.underline}
[also]{.underline} [Woolfolk v. Duncan]{.underline}, Civ. Act. No.
94-1532, 1995 WL 11976, \*5 (E.D. Pa. Jan. 5, 1995) (attached hereto as
Exhibit 1)(question of whether plaintiff was discriminatorily denied
medical care because of his HIV-positive status subject to scrutiny
under the ADA).

Defendants rely on a federal district court case, [Jackson v. Fort
Stanton Hosp. and Training Sch.]{.underline}, 757 F. Supp. 1243, (D.N.M.
1990), [rev\'d in part on other grounds]{.underline}, 964 F.2d 980 (10th
Cir. 1992), for the mistaken assertions that medical decisions are
immune from scrutiny under section 504 of the Rehabilitation Act of 1973
(\"section 504\"), 29 U.S.C. § 794, and thus, by implication, are immune
from scrutiny under the ADA.[^3] [See]{.underline} Defs.\' Summ. J. Mem.
at 4-5. [Jackson]{.underline}, a case in which the court held that the
state of New Mexico\'s institutionalization of developmentally disabled
individuals violated section 504, is wholly inapposite.[^4] Rather,
Defendants\' argument is based on language from [Jackson]{.underline}
that quotes two other federal cases, [Bowen v. American Hosp.
Ass\'n]{.underline}, 476 U.S. 610 (1986) and [United States v. Univ.
Hosp]{.underline}., 729 F.2d 144 (2d Cir. 1984), and which is taken
completely out of context.

Defendants\' argument that \"medical decisions are immune from
scrutiny\" is in fact based on two federal opinions that analyze a
question not presented here: whether [parental]{.underline} decisions
concerning the medical treatment of their critically ill newborns should
be subject to scrutiny by the government under section 504.
[Bowen]{.underline}, 476 U.S. at 646-647;[^5] [University
Hosp.]{.underline}, 729 F.2d at 161. Number range CHAPTERThe courts in
these cases found that where the decision is one concerning the nature
of the treatment to be provided \-- for example, invasive corrective
surgery versus non-invasive, non-surgical medical care \-- the \"medical
treatment decision\" rightly belongs to the parents.
[Bowen]{.underline}, 476 U.S. at 646; [University Hosp.]{.underline},
729 F.2d at 161. Thus, the courts held, a hospital\'s deference to a
parent\'s wishes is immune from scrutiny under the section 504.
[Id]{.underline}.

[Bowen]{.underline} and [University Hospital]{.underline} are not about
access to health care for persons with disabilities; rather, they
examine the role

of the government and its ability (or lack thereof) to overrule a
parent\'s wishes. Indeed, contrary to Defendants\' assertions that their
policy of denying dental care to persons with HIV or AIDS is immune from
scrutiny under section 504 (Defs.\' Summ. J. Mem. at 6), the Supreme
Court specifically stated in dicta that \"\[individuals with
disabilities\] are entitled to \'meaningful access\' to medical services
. . . . \[An institutional rule or\] policy denying or limiting such
access [would]{.underline} be subject to challenge under § 504.\"
[Bowen]{.underline}, at 624 (emphasis added).[^6]

In fact, federal jurisprudence is quite clear that discriminatory acts
such as Defendants\', couched in terms of \"medical decisions,\" are
very much subject to scrutiny under section 504. [See]{.underline},
[e.g.]{.underline}, [Miller v. Spicer]{.underline}, 822 F. Supp. 158,
166 (D. Del. 1993) (hospital\'s failure to perform surgery and transfer
to another facility subject to scrutiny under section 504 where
plaintiff was perceived as being HIV-positive and defendants routinely
performed needed surgery); [Glanz v. Vernick]{.underline}, 756 F. Supp.
632, 637-8 (D. Mass. 1990) (physician\'s refusal to provide ear surgery
to HIV-infected patient subject to scrutiny under section 504).[^7] As
the court in [Glanz]{.underline} noted, \"\[a\] strict rule of deference
\[to a physician\'s alleged medical decision\] would enable doctors to
offer merely pretextual medical opinions to cover up discriminatory
decisions.\" [Id]{.underline}. at 638. Only by scrutinizing these
decisions to deny treatment can the courts determine whether the actions
of a health provider constitute legitimate refusals to provide services
or illegal discriminatory acts. [Id]{.underline}.

In enacting the ADA, Congress intended that access to medical care could
no longer be denied for discriminatory reasons by owners and operators
of places of public accommodation, regardless of whether or not they
were recipients of federal funds.[^8] Yet, as detailed in Plaintiff\'s
Statement of Uncontested Facts, Defendants in the instant action refused
to treat persons whom they had the ability to treat, and for whom they
would not have made a referral to another general dentist except for the
fact that the persons in question were HIV-positive. [See]{.underline}
Pl.\'s Facts at ¶ 55 - ¶ 68. Health care professionals such as
Defendants cannot be permitted to immunize their discriminatory conduct
merely by labeling it a \"medical decision.\"

**B. \"Substantial Compliance with Accepted Professional Norms\" is Not
a Defense to Claims of Discrimination**

Defendants argue that, in the alternative, \"the ADA simply requires
that Dr. Morvant\'s referrals not have been a substantial departure from
accepted professional judgment, practice, or standards.\" Defs.\' Summ.
J. Mem. at 7. \"Substantial compliance with accepted professional
norms,\" however, appears nowhere in the ADA as a defense to the
discriminatory denial of dental or medical care. While such a standard
may provide a defense to claims of medical malpractice, it does not
provide a defense to claims of discrimination. Moreover, even assuming,
arguendo, that \"substantial compliance with accepted professional
norms\" was the standard by which liability under the ADA attached,
Defendants\' actions still violate the statute. As we demonstrate below,
Defendants\' refusal to provide routine dental care to persons with HIV
or AIDS, solely on the basis of their HIV-positive status, departs
widely from accepted professional judgment, practice, and standards.

1\. \"Substantial Compliance with Accepted Professional Judgment,
Practice, or Standards\" is Not a Defense under the ADA

Defendants\' argument that only \"substantial departures from accepted
professional norms\" constitute discrimination under the ADA is based,
in part, on the fact that the legislative history of the ADA
specifically contemplates medical referrals based on a health care
provider\'s exercise of his or her professional medical judgment.
Defs.\' Summ. J. Mem. at 7-8. If Congress contemplated such referrals,
Defendants posit, then the courts

must show deference to the judgment exercised by the health care
professional. [Id]{.underline}. at 8.

While the legislative history and the title III regulation certainly do
contemplate referrals based on a professional\'s medical judgment, they
caution that the referrals must be based on the exercise of [bona
fide]{.underline} medical judgments, not discriminatory acts or beliefs
subsequently characterized as medical judgments.[^9] Thus, the court\'s
conclusion in [Glanz v. Vernick]{.underline}, one of the section 504
cases cited above, is equally applicable to the ADA:

> There is some merit to the argument that the court should defer to a
> doctor\'s medical judgment. Accepting this argument at face value,
> however, would completely eviscerate §504\'s function of preventing
> discrimination against the disabled in the health-care context. A
> strict rule of deference would enable doctors to offer merely
> pretextual medical opinions to cover up discriminatory decisions.

[Glanz]{.underline}, 756 F. Supp. at 638 (citations omitted).

Accordingly, whether the physician claims to have based his/her referral
on the exercise of his/her professional judgment is only the beginning
of the inquiry. At issue is whether the health care professional
actually has the ability to provide the treatment being sought or
required by the person with the disability, not whether the health care
professional has merely asserted an unsupported belief that he/she does
not. 28 C.F.R. §36.302(b)(2). Mere compliance with or departure from
\"accepted professional practice\" is a standard rooted in the law of
torts and is relevant to resolving claims of medical malpractice, not
claims of discrimination. [See]{.underline} [Howe I]{.underline}, slip
op. at 11 (\"The ADA is not a medical malpractice statute.\"),

Defendants cite to the Supreme Court\'s decision in [Youngberg v.
Romeo]{.underline}, 457 U.S. 307 (1982), as support for the application
of their \"substantial departure\" test in cases brought pursuant to the
ADA. The question before the Court in [Youngberg]{.underline}, however,
was not the standard by which discrimination on the basis of disability
by health care providers should be determined, but rather, the
substantive due process rights owed by the state to individuals who are
institutionalized or wholly dependent on the state. [Id]{.underline}. at
309. The [Youngberg]{.underline} Court held that the Due Process Clause
of the Fourteenth Amendment imposes on the states a duty to provide safe
living conditions, freedom from bodily restraint, and minimally adequate
training. [Id]{.underline}. at 315-22. It is only with respect to
determining whether a state meets the constitutional minimum of adequate
training that the Court instructed the lower courts to \"show deference
to the judgment exercised by a qualified professional\" unless the
decision made by the professional \"is such a substantial departure from
accepted professional judgment, practice or standards as to demonstrate
that the person responsible actually did not base the decision on such a
judgment.\" [Id]{.underline}. at 322-23.

Accordingly, [Youngberg]{.underline} is inapposite. While professional
norms may shed guidance on whether the treatment being sought or
required by a person with a disability is within the referring
provider\'s area of specialization, the inquiry must go further. Even if
an entire segment of the health care profession is acting in a
discriminatory manner, that does not shield an individual health care
provider from liability. Indeed, even if every other dentist in New
Orleans acted in a discriminatory fashion and refused to treat persons
with HIV or AIDS, Defendants\' actions would still violate the ADA, for
Defendants refused to provide dental care that they were capable of
providing to persons with disabilities, solely on the basis of their
disabilities. Just as restaurant owners sued under title II of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000a et seq., could not have escaped
liability by arguing that it was \"accepted practice\" in the South to
refuse service to African-Americans, Defendants cannot escape liability
here.

**2. Even, assuming, arguendo, that only \"substantial departures from
accepted professional judgment\" impose liability under the ADA,
Defendants still violated the Act**

Finally, the government would prevail even if \"substantial departure
from accepted professional judgment, practice, or standards\" was the
standard by which liability under the ADA was determined, for Defendant
Morvant\'s actions failed to meet this test. Contrary to their
unsupported assertion that \"Dr. Morvant\'s referrals to a dentist who
had made a study of the dental treatment of HIV-positive/AIDS patients
and who readily accepted such referrals without complaint were not a
substantial departure from accepted professional judgment, practice, or
standards,\" (Defs.\' Summ. J. Mem. at 7) the undisputed facts
demonstrate that Defendants\' actions were and are greatly at odds with
these norms.

The United States Centers for Disease Control and Prevention (\"CDC\"),
the American Dental Association, and other leading dental organizations
throughout the country take the unequivocal position that general
dentists can and should treat persons with HIV or AIDS.
[See]{.underline} Pl.\'s Facts at ¶ 70 - ¶ 85. Indeed, professional
standards require such treatment: \"\[a\] decision not to provide
treatment to an individual because the individual has AIDS or is HIV
\[positive\], based solely on that fact, is unethical.\" American Dental
Association, [Principles of Ethics and Code of Professional
Conduct]{.underline} (Jan. 1993). \"A dentist should not refuse to treat
a patient whose condition is within the dentist\'s current realm of
competence solely because the patient is HIV-infected.\" American Dental
Association, [Annual Session Report]{.underline} 539 (Oct. 1991).[^10]

At the time of the alleged \"referrals,\" Defendant Morvant was a
board-certified state-licensed general dentist. Pl.\'s Facts ¶ 6, ¶ 57.
His hygienists were similarly board-certified and state-licensed. Pl.\'s
Facts ¶ 9. Defendant Morvant routinely provided dental examinations and
general dental care, and his hygienists routinely provided dental
cleanings. Pl.\'s Facts ¶ 57 - ¶ 58. The record clearly establishes that
Defendants provided these services to patients who were
immunocompromised (e.g., those undergoing chemotherapy) (Pl.\'s Facts ¶
62), who were infectious for Hepatitis B and Tuberculosis (Pl.\'s Facts
¶ 64), who had medical conditions where the provision of dental
treatment could have adversely affected their health (Pl.\'s Facts ¶
63), and who had acute illnesses with which Defendant Morvant was not
familiar (Pl.\'s Facts ¶ 61). In short, Defendants provided routine
dental care to all his patients with complex medical conditions, except
those, like Mr. Pena and xxxxxxxx, who admitted to having HIV or AIDS.
While Defendants allege that a) HIV-positivity, itself, creates
specialized complications with respect to the provision of routine
dental care (Defs.\' Summ. J. Mem. at 8), and b) that Defendant Morvant
did not have the knowledge and experience necessary to treat persons
with HIV or AIDS ([Id]{.underline}. at 8, 11), neither assertion is
true. Pl\'s Facts at ¶¶ 49, 68, 70. [See]{.underline} [also]{.underline}
American Dental Association, [Annual Session Report]{.underline} 539
(Oct. 1991)(HIV-positivity, alone, not sufficient basis for refusal to
provide dental care). Defendants have entered nothing into the record,
except Defendant Morvant\'s alleged and mistaken beliefs, to support
their contentions.[^11]

Similarly, there is nothing in the record that even remotely suggests
that Defendant Morvant\'s decision to send Mr. Pena and xxxxxxxx to Dr.
Creely Sturm was based on an exercise of professional medical judgment.
Defendant Morvant never examined Mr. Pena or xxxxxxxx. Pl.\'s Facts ¶
17, ¶ 41. He never made any assessment of their dental or medical needs.
[Id]{.underline}. He never consulted with Dr. Creely Sturm to determine
whether a referral to her was necessitated (Pl.\'s Facts ¶ 27), nor did
he ever consult with Mr. Pena\'s or xxxxxxxx\'s personal physicians to
determine what impact, if any, the provision of dental care would have
had on their patients\' medical health (Pl.\'s Facts ¶ 23, ¶ 41).
Indeed, at the time that he \"referred\" Mr. Pena and xxxxxxxx to Dr.
Creely Sturm, Defendant Morvant had no knowledge of what training and
expertise, if any,

Dr. Creely Sturm possessed concerning the dental treatment of persons
with HIV or AIDS. Pl.\'s Facts at ¶ 27.[^12]

Thus, Defendants\' emphasis on the fact that Dr. Creely Sturm \"accepted
referrals from other general dentists, and . . . did not complain to Dr.
Morvant in any way about the referrals of HIV-positive/AIDS patients
made by Dr. Morvant to her\" (Defs.\' Summ. J. Mem. at 11) only serves
to contrast Defendant Morvant\'s conduct with that of Dr. Creely Sturm,
who complied with accepted professional norms, and the law.[^13] In the
instant case, Defendants\' actions constitute \"such a substantial
departure from accepted professional judgment, practice or standards as
to demonstrate that \[Defendant Morvant\] actually did not base \[his\]
decision on such a judgment.\" [Youngberg]{.underline}, 457 U.S. at 323.

**II. THE ADA IS CONSTITUTIONAL AS APPLIED TO DISCRIMINATORY DENIALS OF
ROUTINE DENTAL CARE**

Finally, Defendants argue, in the alternative once again, that if this
Court finds that Defendants violated the ADA, then the ADA is
unconstitutional as applied to their conduct at issue in this case.
Defendants\' Memorandum in Support of Motion to Dismiss at 3.
Specifically, Defendants argue that the ADA cannot constitutionally
prohibit them from following a policy of refusing routine dental care to
all persons who self-identify as having HIV or AIDS. Such a prohibition,
Defendants assert, would exceed Congress\' powers under the Commerce
Clause and the Fourteenth Amendment. Defendants\' argument has no merit.

When enacting the ADA, Congress invoked its power to \"regulate Commerce
. . . among the several States\" and to enact all laws necessary and
proper to this end. U.S. Const., art. I, § 8, cls. 3, 18; [Katzenbach v.
McClung]{.underline}, 379 U.S. 294, 301-02 (1964).[^14] In deciding
whether a Federal statute operates within the constitutional authority
granted under the Commerce Clause, a court may consider only: 1) whether
there is a rational basis for a congressional finding that a regulated
activity affects interstate commerce, and 2) whether the means selected
by Congress are \"\'reasonably adapted to the end permitted by the
Constitution.\'\" [Presault v. Interstate Commerce Comm\'n]{.underline},
494 U.S. 1, 17 (1990) (citing [Hodel v. Virginia Surface Mining &
Reclamation Ass\'n, Inc]{.underline}., 452 U.S. 264, 276 (1981) (quoting
[Heart of Atlanta Motel, Inc. v. United States]{.underline}, 379 U.S.
241, 262 (1964))). \"The judicial task is at an end once the court
determines that Congress acted rationally in adopting a particular
regulatory scheme.\" [Hodel]{.underline}, 452 U.S. at 276.

Defendants do not dispute that their actions affect interstate Number
range CHAPTERcommerce.^1^[^15]. Rather, they argue that the means
selected by Congress are not reasonably related to the goals Congress
sought to accomplish in enacting the ADA. They argue that prohibiting
Defendant Morvant from making an alleged \"medically appropriate
referral\" is not rationally related to the asserted purpose of the Act,
the elimination of discrimination on the basis of disability.
Defendants\' Memorandum in Support of Motion to Dismiss at 4-5.

Defendants\' argument rests on a flawed premise. If, in fact, Defendant
Morvant had made a \"medically appropriate referral,\" no liability
would attach under the ADA. Nowhere does the ADA state that health care
providers are prohibited from making such referrals; indeed, as
discussed above, the implementing regulation provides the exact
opposite. [See]{.underline} 28 C.F.R. § 36.302(b)(2). The government\'s
claim here is that Defendants\' \"referral\" of Mr. Pena, xxxxxxxx, and
other persons with HIV or AIDS to Dr. Creely-Sturm was [not]{.underline}
an appropriate medical referral based on sound professional judgment.
The \"referrals\" here were made for services Defendants routinely
provided (Pl.\'s Facts at ¶¶ 57-58), and were made without any
examination of the patients (Pl.\'s Facts at ¶¶ 17, 41), without any
consultation with the patients\' physicians (Pl.\'s Facts at ¶¶ 24-26),
without any knowledge of the expertise or credentials of the dentist to
whom the patients were referred, and contrary to the dictates of the
dental profession (Pl.\'s Facts at ¶¶ 70-78). It is the government\'s
position that Defendants\' policy of \"referring\" [all]{.underline}
persons with HIV or AIDS, regardless of their dental needs or dental
condition, and solely on the basis of their HIV-positive status,
discriminates on the basis of disability.

Thus, Defendants\' argument that the regulatory means chosen by Congress
have no rational relationship to the asserted ends of the ADA must fail.
The purpose of the ADA is, [inter alia]{.underline}, to provide access
to health care for persons with disabilities. 42 U.S.C. 12101(a)(3),(b).
The means by which Congress has sought to achieve this end is to
prohibit health care professionals from refusing to treat persons with
disabilities on the basis of their disabilities when the caregivers are
capable of providing the treatment being sought or required. 28 C.F.R. §
36.302(b)(2). Certainly the relationship between the means and the ends
is a rational one.

Defendants wrongly rely on [Doe v. Bolton]{.underline}, 410 U.S. 179
(1973), for the mistaken assertion that the decisions and actions of a
health care provider are immune from governmental regulation. In
[Bolton]{.underline}, the Supreme Court held that the additional levels
of medical review required by a state statute prior to a physician\'s
performance of an abortion violated the constitutional rights of the
individual seeking the abortion. [Id]{.underline}. at 199-200.
[Bolton]{.underline} is not a case dealing with Congress\' very broad
powers under the Commerce Clause, but rather, addresses a state\'s
interference with a woman\'s constitutionally protected privacy rights.
[Id]{.underline}. at 197-198. The Court found the state statute
unconstitutional not because a doctor has a constitutional right to
practice unfettered by governmental regulation \-- a right that, to the
government\'s knowledge, does not exist \-- but because a woman has a
constitutionally protected right to decide whether or not to terminate
her pregnancy. [Id]{.underline}. at 197-198.

Indeed, [Bolton]{.underline} and other federal cases recognize that
state and federal governments [can]{.underline} regulate the actions and
decisions of a health care provider when necessary to achieve an
important governmental purpose \-- for example, protection of the
potentially viable fetus. [Webster v. Reprod. Health
Servs.]{.underline}, 492 U.S. 490, 519-21 (constitutionality of state
statute regulating actions of physicians performing abortions upheld).
[See]{.underline} [Roe v. Ingraham]{.underline}, 480 F.2d 102, 108 (\"We
do not read \[[Doe v. Bolton]{.underline}\] as meaning that a state is
wholly without power to regulate the practice of medicine or the
activities of physicians except by professional censure, deprivation of
licenses, or enforcement of the criminal law.\") Thus, federal courts
have held that governments can, [inter alia]{.underline}, regulate the
kind of information given (or not given) by physicians to their patients
([Planned Parenthood of Southeastern Penn. v. Casey]{.underline}, \_\_
U.S. \_\_, 112 S. Ct. 2791, 2822-24 (1992)) and assess and evaluate the
medical treatment being provided to medicare recipients ([Association of
Am. Physicians and Surgeons v. Weinberger]{.underline}, 395 F. Supp. 125
(1975), [aff\'d]{.underline} [sub nom.]{.underline}, 423 U.S. 975 (per
curiam)). In [Bolton]{.underline}, the Court held that the additional
layers of review required by the statute in question were not reasonably
related to the end of ensuring that an abortion be medically necessary.
[Bolton]{.underline}, 410 U.S. at 198-99. When regulation of a health
care provider\'s actions and/or decisions [is]{.underline} reasonably
related to the government\'s asserted end, the courts have deemed the
statute constitutional.

Here, the important governmental purpose is the prohibition of
discriminatory denials of medical care to persons with disabilities,
including persons with HIV or AIDS. The regulatory means by which that
purpose is achieved is reasonably related to that end and in no way
impedes on the ability of a health care professional to exercise his or
her professional judgment. In the instant case, Defendants did not
exercise their professional judgment, but instead refused to treat
persons whom they had the ability to treat, and for whom they would not
have made a referral except for the fact that the persons in question
were HIV-positive. Defendants\' discriminatory actions violate the ADA,
which, in the instant case, is constitutional as applied.

**[CONCLUSION]{.underline}**

For the reasons set forth above, Defendants\' Motion for Summary
Judgment and Motion to Dismiss should be denied.

Respectfully submitted,

EDDIE J. JORDAN, JR. DEVAL L. PATRICK

United States Attorney Assistant Attorney General

Eastern District of Civil Rights Division

Louisiana

[                     ]{.underline}

#### GLENN K. SCHREIBER JOHN L. WODATCH

Assistant U.S. Attorney L. IRENE BOWEN

Eastern District of ALLISON J. NICHOL

##  Louisiana SHEILA K. DELANEY

501 Magazine St. SHARON N. PERLEY, TA

New Orleans, LA 70130 Attorneys

##  Public Access Section

Civil Rights Division

#####  United States Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 514-6016

### CERTIFICATE OF SERVICE

I, the undersigned attorney for the United States of America, do hereby
certify that I have this date served upon the counsel of record listed
below, by Federal Express overnight delivery, a true and correct copy of
the foregoing United States\' Opposition to Defendants\' Motion for
Summary Judgment and Motion to Dismiss for lack of Subject Matter
Jurisdiction.

## Mr. Stephen M. Pizzo

## Blue Williams, L.L.P.

## Ninth Floor

3421 North Causeway Blvd.

Metairie, LA 70002-3760

(Counsel for the Defendants)

SO CERTIFIED this [30th]{.underline} day of Janaury, 1995.

[                         ]{.underline}

SHARON N. PERLEY

Attorney

Public Access Section

Civil Rights Division

United States Department of Justice

P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 514-6016

[^1]: Defendants\' motion to dismiss should have been brought pursuant
    to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for an
    alleged failure to state a claim upon which relief can be granted,
    rather than pursuant to 12(b)(1), for lack of subject matter
    jurisdiction. This Court has subject matter jurisdiction to hear a
    claim brought pursuant to the Americans with Disabilities Act, 42
    U.S.C. §§ 12101 et seq., a federal statute. 42 U.S.C. §
    12188(b)(1)(B)(ii)(\"the Attorney General may commence a civil
    action in any appropriate United States district court\").
    [See]{.underline} [also]{.underline} 28 U.S.C. § 1331 (\"The
    district courts shall have original jurisdiction of all civil
    actions arising under the . . . laws . . . of the United States.\").
    At issue is whether the statute is constitutional as applied,
    [i.e.]{.underline}, whether the government has stated a claim upon
    which relief can be granted. The government thus responds to
    Defendants\' motion to dismiss as if it had been brought pursuant to
    Rule 12(b)(6).

[^2]: The exact language of the regulation provides:

    > A health care provider may refer an individual with a disability
    > to another provider, if that individual is seeking, or requires,
    > treatment or services outside of the referring provider\'s area of
    > specialization, and if the referring provider would make a similar
    > referral for an individual without a disability who seeks or
    > requires the same treatment or services. A physician who
    > specializes in treating only a particular condition cannot refuse
    > to treat an individual with a disability for that condition, but
    > is not required to treat the individual for a different condition.

    28 C.F.R. § 36.302(b)(2). Where, as here, Congress expressly
    delegates authority to an agency to issue legislative regulations,
    the regulations \"are given controlling weight unless they are
    arbitrary, capricious, or manifestly contrary to the statute.\"
    [Chevron U.S.A., Inc. v. Natural Resources Defense
    Council]{.underline}, 467 U.S. 837, 844 (1984). Thus, \"\'an
    agency\'s construction of its own regulations is entitled to
    substantial deference.\'\" [Martin v. Occupational Safety & Health
    Review Comm\'n]{.underline}, 499 U.S. 144, 150 (1991),
    [citing]{.underline} [Lyng v. Payne]{.underline}, 476 U.S. 926, 939
    (1986). Indeed, \"\[a\]s the author of the \[implementing regulation
    for title III of the ADA\], the Department of Justice is also the
    principal arbiter as to its meaning.\" [Fiedler v. American
    Multi-Cinema, Inc.]{.underline}, Civ. A. 92-486 (TPJ), 1994 WL
    709588, \*4 (D.D.C. December 16, 1994), [citing]{.underline} [Thomas
    Jefferson Univ. v. Shalala]{.underline}, 114 S. Ct. 2381, 2386
    (1994). [See]{.underline} [also]{.underline} [Kinney v.
    Yerusalim]{.underline}, 9 F.3d 1067 (3rd Cir. 1993), [cert.
    den.]{.underline} [sub nom.]{.underline}, [Hoskins v.
    Kinney]{.underline}, \_\_ U.S. \_\_, 114 S. Ct. 1545 (1994)(relying
    extensively on the Department of Justice implementing regulations
    and its interpretation thereof in determining whether appellants had
    violated the ADA).

[^3]: Section 504 was the first federal statute prohibiting
    discrimination on the basis of disability and is the precursor to
    the ADA. Section 504 only prohibits discrimination in programs and
    activities receiving federal financial assistance, while the ADA
    prohibits discrimination by private employers employing greater than
    15 persons, state and local entities, and owners and operators of
    places of public accommodation.

[^4]: In [Jackson]{.underline}, the court held that the state had
    discriminated against persons with severe developmental disabilities
    by denying them access to community service programs.
    [Jackson]{.underline}, 757 F. Supp. at 1297-99. The court relied on
    the recommendations of interdisciplinary teams charged with
    evaluating the needs of developmentally disabled individuals and
    held that the state\'s institutionalization of these individuals
    violated section 504 when the state could have made reasonable
    modifications to existing community programs so as to have afforded
    these individuals access to a less restrictive and more integrated
    setting. [Id]{.underline}.

[^5]: In [Bowen]{.underline}, the Supreme Court considered the validity
    of regulations promulgated by the Department of Health and Human
    Services pursuant to section 504, which would have undermined
    parental choice concerning the care their children received.
    [Bowen]{.underline}, 476 U.S. at 645-646.

[^6]: [Cf]{.underline}. [id]{.underline}. at 632 (noting that in two
    instances where hospitals did not operate on critically ill newborns
    because the parents did not consent to the surgery, \"the hospitals
    did not withhold medical care on the basis of handicap and therefore
    did not violate § 504\").

[^7]: The courts in [Howe]{.underline} and [In re Baby K]{.underline},
    which, as discussed above, found that the defendants\' denial of
    medical treatment to persons with disabilities violated the ADA,
    also found that the defendants\' actions were subject to scrutiny
    under, and violative of, section 504. [Howe v. Hull]{.underline},
    No. 3:92CV7658, slip op. at 15-18 (N.D. Ohio May 26, 1994)(attached
    hereto as Exhibit 2); [Howe I]{.underline}, slip op. at 2; [In re
    Baby K]{.underline}, 832 F. Supp. at 1028. [See]{.underline}
    [also]{.underline} [Woolfolk]{.underline}, 1995 WL 11976, \*3 - \*5
    (question of whether plaintiff denied medical care on the basis of
    his HIV-positive status also subject to scrutiny under section 504).

[^8]: [See]{.underline} 42 U.S.C. § 12101(a)(3)(\"discrimination against
    individuals with disabilities persists in such critical areas as . .
    . health services\").

[^9]: Indeed, the full quote from the legislative history upon which
    Defendants rely states:

    > **Many physicians have developed areas of specialization. Nothing
    > in this legislation is intended to prohibit such a physician from
    > referring a patient with a disability to another physician if that
    > patient is seeking treatment outside the doctor\'s specialization
    > and if the doctor would make a similar referral for an individual
    > without that disability. For example, a physician who specializes
    > in treating burn victims could not refuse to treat the burns of a
    > deaf individual because of that individual\'s deafness. However,
    > that physician is not required to accept the deaf individual as a
    > patient if the individual does not have burns. The physician would
    > need only to provide other types of medical treatment to the burn
    > victim if the physician provided such other treatments to
    > nondisabled individuals.**
    >
    > **Likewise, n**othing in this legislation is intended to prohibit
    > a physician from referring an individual with a disability to
    > another physician **if the physician would refer other,
    > nondisabled individuals with the same presenting conditions to
    > another physician, or** if the disability itself creates
    > specialized complications for the patient\'s health which the
    > physician lacks the experience or knowledge to address.

    H.R. Rep. 485 (II), 101st Cong., 2d Sess. 99 at 379 (1990)
    (highlighted text emphasizes that which was omitted by Defendants).
    [See]{.underline} [also]{.underline} 28 C.F.R. § 36.302(b)(2).

[^10]: [See]{.underline} [also]{.underline} American Association of
    Dental Schools, [Revised Policy Statement]{.underline}, III B2
    (March 1993)(\"No dental personnel may ethically refuse to treat a
    patient whose condition is within the dental personnel\'s realm of
    competence, solely because the patient is at risk of contracting, or
    has, an infectious disease, such as human immunodeficiency virus
    (HIV) infection, acquired immunodeficiency syndrome (AIDS), or
    hepatitis B infection.\"); Federation Dentaire Internationale,
    [Policy Statement on the Human Immunodeficiency Virus (HIV), the
    Acquired Immune Deficiency Syndrome (AIDS), and
    Dentistry]{.underline}, 4.2 (Aug. 1992)(\"Persons who are
    HIV-seropositive or who have AIDS, or who belong to groups within a
    community recognised \[sic\] as being at risk of being
    HIV-seropositive, should not be refused dental treatment on these
    grounds alone.\").

[^11]: In their Statement of Uncontested Facts, Defendants allege only
    that:

    > HIV infection, AIDS, and their treatment have been the subject of
    > intense scientific research only since the late 1970\'s. Indeed,
    > the HIV virus was only isolated and identified in the early
    > 1980\'s. While many discoveries have been made in HIV and AIDS
    > research, many current theories about HIV infection and AIDS were
    > and are not so firmly established as to be beyond reasonable
    > dispute, because HIV/AIDS research is continuing.

    Defendants\' Statement of Uncontested Facts at ¶ 12. Moreover,
    Defendants point to no support in the evidentiary record for these
    broad and overreaching statements. Indeed, Defendants fail to cite
    to any evidence of record which supports any of the \"facts\" in
    their Statement of Uncontested Facts.

    Similarly, Defendants extensive reliance on one issue of
    [Science]{.underline} in their supporting memorandum is utterly
    irrelevant. Defs.\' Summ. J. Mem. at 12-13. The lengthy passages
    quoted by Defendants explore issues concerning the development of a
    vaccine and/or cure for AIDS, issues that, albeit important, have no
    bearing on this action.

    Finally, the case on which Defendants rely to support the
    proposition that \"the courts already have taken judicial notice of
    the continuing nature of HIV/AIDS research\", [Stewart]{.underline}
    v. [Stewart]{.underline}, 521 N.E. 956 (Ind. Ct. App. 1988), is an
    Indiana state case in which the court refused to take judicial
    notice of the means by which HIV is transmitted. Defs.\' Summ. J.
    Mem. at 14. The government is not asking this Court to take judicial
    notice of how HIV is transmitted. Rather, we are asking this Court
    to rely on credible evidence entered into the record concerning HIV
    and the practice of dentistry. This evidence includes reports from
    the CDC, policy statements from leading dental organizations, and
    affidavits from leading experts in the field. It is appropriate for
    this Court to rely on such evidence. [See]{.underline} [Chalk v.
    Orange County Sup.\'t of Sch.]{.underline}, 840 F.2d 701, 706 (9th
    Cir. 1988); [Doe v. District of Columbia]{.underline}, 796 F.Supp.
    559, 563-564 (D.C. Cir. 1988).

[^12]: At and prior to the time of the alleged \"referrals,\" Defendant
    Morvant had never spoken to Dr. Creely Sturm about her knowledge
    concerning the dental treatment of persons with HIV or AIDS, nor
    about any other dentistry-related matter. Pl.\'s Facts at ¶ 24 - ¶
    27. In fact, he first became aware of her qualifications during her
    deposition in this case. Accordingly, any efforts that Dr. Creely
    Sturm may have made to educate herself concerning HIV and the
    practice of dentistry is irrelevant to this case.

[^13]: Defendants\' argument that their actions are legally justified
    because Dr. Creely Sturm accepted referrals of HIV-positive patients
    and never complained about them is akin to arguing that it would be
    legal to refuse employment to Hispanic persons, as long as the
    Hispanic applicants were sent to another company that was willing to
    hire Hispanic persons (and obey the law) without complaint.

[^14]: Congress also invoked its powers under the Fourteenth Amendment,
    but only with respect to titles I and II of the statute, which
    impose obligations upon state and local government entities.
    [See]{.underline} 136 Cong. Rec. E1913 (1990) (statement by Rep.
    Hoyer). Only the Commerce Clause provides the authority for reaching
    the conduct of private entities under title III, the public
    accommodations portion of the statute. Accordingly, only the
    constitutionality of the ADA under the Commerce Clause is discussed
    here.

[^15]: ^5^ ^15^ Defendants have admitted [inter alia]{.underline}, that
    they purchased and used dental equipment that was manufactured
    and/or distributed by companies outside of Louisiana, including
    those in Oregon, New York, California, Illinois, Washington,
    Massachusetts, Pennsylvania, and Wisconsin, as well as those outside
    the United States; and that their offices, located on Canal Street
    in downtown New Orleans, were within walking distance of several
    major hotels and within two miles of Interstate 10. Defendants\'
    Response to Plaintiff\'s Second Request for Admission of Facts,
    attached hereto as Exhibit 3. [See]{.underline}, [e.g.]{.underline},
    [Katzenbach]{.underline}, 379 U.S. at 296-97 (restaurant found to
    operate in interstate commerce where 46% of food originated out of
    state); [Pinnock v. International House of Pancakes
    Franchisee]{.underline}, 844 F. Supp. 574, 579 (S.D. Ca. 1993)
    (public accommodation within walking distance of three hotels and
    within two miles of two interstate highways affects interstate
    commerce and is subject to liability under title III of the ADA).