IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

**[                                   ]{.underline}**

**)**

THE MEDICAL SOCIETY **)**

OF NEW JERSEY, **)**

**)**

Plaintiff, **)**

v\. **)** Civil Action

**)**

FRED M. JACOBS, M.D., J.D., and **)** Case No.: 93-3670 (WGB)

the NEW JERSEY STATE BOARD OF **)**

MEDICAL EXAMINERS, **)**

**)**

Defendants. **)**

**)**

**)**

**[                                   ]{.underline}**

MEMORANDUM OF THE UNITED STATES

AS [AMICUS CURIAE]{.underline}

MICHAEL CHERTOFF JAMES P. TURNER

United States Attorney Acting Assistant Attorney

for the District of New Jersey General for Civil Rights

SUSAN CASSELL JOHN L. WODATCH

Assistant United States JOAN A. MAGAGNA

Attorney for the District PHILIP L. BREEN

of New Jersey SHEILA M. FORAN

U.S. Attorney\'s Office KEN S. NAKATA

Federal Building Attorneys

970 Broad Street U.S. Department of Justice

Newark, New Jersey 07102 Civil Rights Division

Tel: (201) 645-2844 Public Access Section

P.O. Box 66738 Washington, D.C. 20035-6738 Tel: (202) 307-0663

[TABLE OF AUTHORITIES]{.underline}

**CASES:**

[Bowles v. Seminole Rock & Sand Co.]{.underline}, 325 U.S. 410 (1945) 5

[Chevron, U.S.A., Inc. v. Natural Resources Defense]{.underline}

[Council, Inc.]{.underline}, 467 U.S. 837 (1984) 14

[Doe v. Syracuse Sch. Dist.]{.underline}, 508 F. Supp. 333

(N.D.N.Y. 1981) 18

[EEOC v. Massachusetts]{.underline}, 987 F. 2d 64 (1st Cir. 1993) 13, 14

[Landefeld v. Marion General Hosp., Inc.]{.underline}, 994 F.2d 1178

(6th Cir. 1993) 18

[Lyng v. Payne]{.underline}, 476 U.S. 926 (1986) 5

[Panzadides v. Virginia Bd. of Educ.]{.underline}, 946 F.2d 345

(4th Cir. 1991) 5

[Petersen v. University of Wis. Bd. of Regents]{.underline}, No.
93-C-46-C,

2 Americans with Disabilities Act Cases (BNA) 1993 U.S. Dist.

LEXIS 5427 (W.D. Wis. Apr 20, 1993) 4

[School Bd. v. Arline]{.underline}, 480 U.S. 273 (1986) 5

[Stinson v. United States]{.underline}, 113 S. Ct. 1913 (1993) 5

[Strathie v. Department of Transp.]{.underline}, 716 F.2d 227, 231

(3d Cir. 1983) 6

[Udall v. Tallman]{.underline}, 380 U.S. 1 (1965) 5

[United States v. Larionoff]{.underline}, 431 U.S. 864 (1977) 5

**STATUTES:**

Age Discrimination in Employment Amendments of 1986,

29 U.S.C. §§ 621-634 (1986) 13

Americans with Disabilities Act of 1990, 42 U.S.C.

§§ 12101-12213 (\"ADA\") [passim]{.underline}

Health Care Quality Improvement Act of 1986 (\"HCQIA\"),

42 U.S.C. § 11101 19

N.J. Stat. Ann. §§ 45:1-21(i), :9-16, :9-19.5, :9-19.8 to -19.11

\(1990\) 7, 20

Rehabilitation Act of 1973, 29 U.S.C. § 794 (1973) 4, 18

**REGULATIONS:**

28 C.F.R. pt. 35 (1991) [passim]{.underline}

28 C.F.R. pt. 36 (1991) [passim]{.underline}

**LEGISLATIVE HISTORY**

H.R. Rep. No. 485, 101st Cong., 2d Sess.,

pts. II, III (1990) 2, 4, 15, 18

S. Rep. No. 116, 101st Cong., 1st Sess. (1989) 2

**MISCELLANEOUS**

Robert S. Adler, [Stalking the Rogue Physician: An Analysis of the
Health Care Quality Improvement Act]{.underline}, 28 Am. Bus. L.J. 683
(1991) 19

Bruce J. Ennis & Thomas R. Litwack, [Psychiatry and the Presumption of
Expertise: Flipping Coins in the Courtroom]{.underline}, 62 Cal. L. Rev.
693 (1974) 16

Stephen T. Maher & Lori Blum, [A Strategy for Increasing the Mental and
Emotional Fitness of Bar Applicants]{.underline}, 23 Ind. L. Rev. 821
(1990) 12

\"Recommended Guidelines Conceerning Disclosure and Confidentiality,\"
American Psychiatric Association,

Work Group on Disclosure (Dec. 12, 1992) 17

Deborah L. Rhode, [Moral Character as Professional
Credential]{.underline},

94 Yale L.J. 491 (1985) 12

U.S. Department of Justice, The Americans with

Disabilities Act \-- Title II Technical Assistance Manual

(1992 & Supp. 1993) 15, 17

1 Jay Ziskin, [Coping with Psychiatric and Psychological
Testimony]{.underline}

(3d ed. 1981) 16

**I. Introduction**

Plaintiff the Medical Society of New Jersey (\"Society\") has brought
this action on behalf of its members, alleging that certain questions on
the New Jersey State Board of Medical Examiners\' biennial license
renewal application discriminate on the basis of disability in violation
of title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§
12101-12213 (Supp. II 1990). The application, which all physicians
seeking to renew their licenses to practice medicine in the State of New
Jersey must complete, requires licensees to disclose certain physical or
mental impairments \-- including any psychiatric illness, drug or
alcohol dependence or treatment, and physical, mental, or emotional
conditions resulting in termination or a leave of absence \--
experienced during the past twelve years.[^1] New applicants for
licenses to practice medicine in the State are subject to a similar
inquiry.

As [amicus curiae]{.underline}, the United States supports plaintiff New
Jersey Medical Society\'s position that the licensure inquiries violate
the ADA.[^2] While the ultimate goal of the New Jersey State Board of
Medical Examiners (\"the Board\") to ensure that only persons able to
practice medicine competently and safely be licensed is a laudable one,
the means selected to achieve that goal is not.

The licensure questions at issue in this case target for further
investigation those individuals who have histories or diagnoses of
disabilities. A core purpose of the ADA is the elimination of barriers
caused by the use of stereotypic assumptions \"that are not truly
indicative of the individual ability of \[persons with disabilities\] to
participate in, and contribute to, society.\" 42 U.S.C.
§12101(a)(7).[^3] By categorizing persons with disabilities as
potentially unfit and imposing additional burdens of investigation upon
them, the Board is engaging in precisely the kind of impermissible
stereotyping that the ADA proscribes.

The Board\'s licensure application does not focus on actual, current
impairments of physicians\' abilities or functions; on the contrary, the
questions at issue are extremely broad in scope and are not narrowly
tailored to determine current fitness to practice medicine.[^4] While
the Board is free, consistent with the ADA, to ask specific, targeted
questions designed to determine whether a physician has a current
impairment of his or her ability to practice medicine, the inquiry as
currently undertaken by the Board seeks information about a candidate\'s
status as a person with a disability instead of focusing on any
behavioral manifestations of disabilities that might impair the ability
to practice medicine. Thus, the Board\'s use of the challenged inquiries
in its licensure program violates the ADA.

II. Argument: The Board\'s Use of the Challenged\
    Inquiries in its Relicensing Program\
    Discriminates on the Basis of Disability

Title II contains a sweeping prohibition of practices by public entities
that discriminate against persons with disabilities. Section 202 of the
Act, 42 U.S.C. § 12132, provides,

> Subject to the provisions of this subchapter, no qualified individual
> with a disability shall, by reason of such disability, be excluded
> from participation in or be denied the benefits of the services,
> programs, or activities of a public entity, or be subjected to
> discrimination by any such entity.[^5]

A \"public entity\" is defined in title II to include \"any department,
agency \... or other instrumentality of a State \... or local
government.\" 42 U.S.C. § 12131(1)(B). The Board falls within this
definition as it is the State governmental agency responsible for
licensing physicians in the State of New Jersey. Defendant\'s Answer ¶¶
1 and 11.

Title II and the Department\'s title II regulation[^6] prohibit a public
entity from discriminating against a \"qualified individual with a
disability.\"[^7] The term \"qualified individual with a disability\" is
defined in title II of the ADA and section 35.104 of the Department\'s
title II regulation to mean,

> an individual with a disability who, with or without reasonable
> modifications to rules, policies or practices \... meets the
> [essential eligibility requirements]{.underline} for the receipt of
> services or the participation in the programs or activities provided
> by a public entity.

42 U.S.C. § 12131(2); 28 C.F.R. § 35.104 (emphasis added). Similarly, as
noted in the analysis accompanying section 35.130(b)(6), a person is a
\"qualified individual with a disability\" with respect to licensing or
certification if he or she can meet the essential eligibility
requirements for receiving the license or certification. 28 C.F.R. pt.
35, app. A at 435-36 (July 2, 1991)(emphasis added).[^8]

Where public safety may be affected, a determination of whether a
candidate meets the \"essential eligibility requirements\" may include
consideration of whether the individual with a disability poses a direct
threat to the health and safety of others.[^9] An essential eligibility
requirement for the practice of medicine comprises the ability to safely
and competently practice medicine; any person with a disability who can
safely and competently practice medicine will be considered a
\"qualified person with a disability.\"[^10]

The Board\'s inquiries discriminate against doctors with disabilities in
the relicensure process because the Board utilizes the challenged
inquiries to identify individuals for further investigation on the basis
of disability. Yet the Board acknowledges that many of these individuals
will ultimately be found to be qualified to practice medicine.[^11] As
we demonstrate below, this investigative process places greater burdens
on doctors with disabilities than those placed on others. Moreover,
these additional burdens are unnecessary in determining whether
applicants meet the essential eligibility requirements for relicensure.

A.  The Board\'s Relicensing Program\
    Unnecessarily Imposes Burdens on Qualified\
    [Individuals with
    Disabilities]{.underline}[^12][            ]{.underline}

Several provisions of the Department of Justice\'s title II regulation
prohibit policies that unnecessarily impose greater requirements or
burdens on individuals with disabilities than those imposed on others.
As a State licensing entity, the Board must comply with section
35.130(b)(6), which states,

> A 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 \* \* \*.

28 C.F.R. § 35.130(b)(6). Section 35.130(b)(3)(i) provides,

> A public entity may not, directly or through contractual or other
> arrangements, utilize criteria or methods of administration \... that
> have the effect of subjecting qualified individuals with disabilities
> to discrimination on the basis of disability.

28 C.F.R. § 35.130(b)(3)(i).

Also applicable is the provision in the title II regulation prohibiting
discriminatory eligibility criteria which states,

> 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 the service, program, or
> activity being offered.

28 C.F.R. § 35.130(b)(8).[^13]

This court is not here faced with a situation where an individual has
been denied relicensure based on disability. However, title II and its
implementing regulations proscribe more than total exclusion on the
basis of disability. Section 35.130(b)(6) prohibits administering a
licensing program \"in a manner that subjects qualified persons with
disabilities to discrimination.\" Similarly, section 35.130(b)(3)(i)
prohibits use of \"methods of administration\" that have a
discriminatory effect. Finally, as pointed out in the interpretative
guidance accompanying the regulation, section 35.130(b)(8) not only
outlaws overt denials of equal treatment of individuals with
disabilities, it prohibits policies that unnecessarily impose
requirements or burdens on individuals with disabilities greater than
those placed on others. 28 C.F.R. pt. 35, app. A at 441. It also
prohibits unnecessary inquiries into disability. [See]{.underline} Part
B. below.

The Board\'s inquiries and reporting requirements concerning diagnosis
and treatment for substance dependency or mental illness impose
requirements on persons with histories of disabilities that are greater
than those imposed on other applicants. In order to be eligible to
receive a renewal certificate to practice medicine in the State of New
Jersey, the Board requires applicants to answer all questions on the
application, including those regarding prior psychiatric illness,
substance dependency, and the medical basis for leave or
termination.[^14] Based on the answers, further investigation may be
undertaken. The questionnaire is thus used as a screening device to
identify persons who will be subject to further inquiry and
investigation.

During the ensuing investigative process, certain members of the
plaintiff Medical Society are singled out because of their disabilities
and are forced to reveal information of a highly personal and
potentially embarrassing nature. Once applicants affirm that they have
experienced a psychiatric illness, substance dependency, or have taken
leave or have been terminated for reasons of disability or substance
dependency, they must provide additional detailed information beyond
what is required by the application form.

Mental health treatment is often bound up with intensely personal issues
such as family relationships and bereavement. The Board\'s relicensure
inquiry is invasive not only because it requires persons who answer the
questions in the affirmative to provide information about these issues,
but requires them to disclose details about what is arguably the most
private part of human existence \-- a person\'s inner mental and
emotional state. Of potentially even more harm is the Board\'s attempt
to obtain information about the person\'s fitness from others; the
Board\'s officers apparently may engage in a full-fledged exploration of
a licensee\'s condition with the person\'s colleagues and supervisors,
asking questions regarding a person\'s habits, affect, lifestyle, etc.
It is not difficult to imagine the attendant potential damage to an
individual\'s reputation.

In addition, the Board\'s inquiries into an individual\'s history of
disabilities can have a more insidious discriminatory effect. Concern
over the Board\'s inquiries about diagnosis and treatment for mental
illness or substance dependency may deter physicians or licensee
applicants from seeking counseling for mental or emotional problems or
treatment for substance disorders. [See]{.underline} Stephen T. Maher &
Lori Blum, [A Strategy for Increasing the Mental and Emotional Fitness
of Bar Applicants]{.underline}, 23 Ind. L. Rev. 821, 830-33
(1990)(detailed discussion of how such inquiries have deterrent effect).
Even when treatment is sought, its effectiveness may be compromised,
because knowledge of the Board\'s potential investigation of issues
surrounding treatment is likely to undermine the trust and frank
disclosure on which successful counseling depends. [See]{.underline}
Maher & Blum, [supra]{.underline}, at 824, 833-46.[^15] Thus, rather
than improving the quality of physicians in the State, the Board\'s
inquiries may have the perverse effect of deterring those who could
benefit from treatment from obtaining it, while penalizing those who
enhance their ability to perform successfully as physicians by seeking
counseling.

Furthermore, the Board\'s focus on past diagnoses and treatment of
disabilities rather than conduct cannot be deemed justified, because
persons without such histories may well have undiagnosed impairments
that impact on an individual\'s ability as a physician. Indeed, someone
who has a mental or physical disability but is either unaware of it or
unwilling to seek treatment for it may pose more of a risk than someone
who has recognized his or her condition and obtained treatment. Yet the
Board singles out for further investigation only those persons with a
history of diagnosis or treatment for certain disabilities.

A recent court of appeals decision confirms that requiring persons to
undergo medical scrutiny solely on the basis of their status as a member
of a protected class violates anti-discrimination laws. In [EEOC v.
Massachusetts]{.underline}, 987 F.2d 64 (lst Cir. 1993), the Court of
Appeals for the First Circuit addressed whether a Massachusetts statute,
requiring that employees 70 or older pass an annual medical examination
as a condition of continued employment, violated the Age Discrimination
in Employment Act, 29 U.S.C. §§ 621-634 (1986). The court found the
state law to be facially discriminatory because it \"allows age to be
the determinant as to when an employee\'s deterioration will be so
significant that it requires special treatment\" and thereby \"strikes
at the heart of the ADEA \[whose\] entire point \... is to abandon
previous stereotypes about the abilities and capacities of older
workers.\" 987 F.2d at 71.

In this case, an applicant\'s or licensee\'s status as a person with a
history of a disability is the sole criterion used by the Board to
trigger a requirement for submitting an additional detailed description
of facts about the disability beyond that required by the application
form, and in many cases, further investigation. The Board\'s
requirements are rooted in assumptions and stereotypes about the
capabilities of persons with mental disabilities and are just as
unlawfully discriminatory as the age-based medical examination
requirement struck down by the First Circuit.

B.  The Board Cannot Establish That\
    its Inquiries Are Necessary for\
    [the Safe Practice of Medicine  ]{.underline}

The purpose of the Board\'s licensure process is to determine whether
individuals are capable of practicing medicine safely and competently,
[i.e.]{.underline} whether such persons will satisfy the \"essential
eligibility requirements\" for the practice of medicine.
[See]{.underline} discussion at pp. 4-7, [supra]{.underline}. The ADA
recognizes the legitimacy of this objective. However, title II does not
permit inquiries into disabilities where it is not necessary to achieve
that objective because such inquiries may have the effect of
discriminating against \"qualified individuals with disabilities.\"
Unnecessary inquiries are also barred by 28 C.F.R. 35.130(b)(8),[^16]
which is identical in substance to a statutory provision in title III,
42 U.S.C. § 12182(b)(2)(A)(i), and the Department of Justice\'s title
III regulation, 28 C.F.R. 36.301(a). The legislative history of the
title III statutory provision makes clear that Congress intended to
prohibit unnecessary inquiries into disability.

> It also would be a violation for \[a public accommodation\] to invade
> such people\'s privacy by trying to identify unnecessarily the
> existence of a disability, as, for example, if the credit application
> of a department store were to inquire whether an individual has
> epilepsy, has ever \... been hospitalized for mental illness, or has
> other disability.

Senate Report at 62. [See also]{.underline} Education and Labor Report
at 105; Judiciary Report at 58. The Department of Justice emphasized
this Congressional intention in the accompanying analysis to its title
III regulation, 28 C.F.R. pt. 36, app. B at 590. The Title II Technical
Assistance Manual, published by the Attorney General pursuant to
statutory mandate, reiterates that title II prohibits unnecessary
inquiries into disability. 42 U.S.C. §§ 12206(c)(3) & (d) (Supp. II
1990); U.S. Department of Justice, The Americans with Disabilities Act
\-- Title II Technical Assistance Manual (1992 & Supp. 1993)(\"Technical
Assistance Manual\"). Section 204 of the ADA provides that the title II
regulation shall incorporate this concept.[^17]

Diagnosis or treatment for a mental disorder or substance dependency
provides no basis for assuming that these disabilities will affect
behavior. [See generally]{.underline} 1 Jay Ziskin, [Coping
with]{.underline} [Psychiatric and Psychological Testimony]{.underline}
1-63 (3d ed. 1981); Bruce J. Ennis & Thomas R. Litwack, [Psychiatry and
the Presumption of Expertise: Flipping Coins in the
Courtroom]{.underline}, 62 Cal. L. Rev. 693 (1974)(both articles citing
extensive authority establishing the inability of mental health
professionals to make reliable predictions of future behavior). The ADA
implicitly recognizes this principle as it prohibits discrimination
based on stereotypical and unfounded fears and misconceptions over the
perceived consequences of disabilities.[^18]

If a disability affects the ability to practice medicine, it must, at
some point, also affect behavior associated with practicing medicine.
Consequently, identifying unacceptable behavior (or other consequences
of a disability) for the practice of medicine is the appropriate course
under the ADA. As noted in the American Psychiatric Association
guidelines,

> The salient concern is always the individual\'s current capacity to
> function and/or current impairment. Only information about current
> impairing disorder affecting the capacity to function as a physician,
> and which is relevant to present practice, should be
> disclosed\....[^19]

The Board may obtain sufficient information to assess fitness to
practice surgery or medicine through questions that focus on behavior
rather than status. Nothing in the ADA prohibits the Board from asking
applicants or licensees about past conduct or behavior that may evidence
an incapacity to practice medicine or surgery. Such conduct or behavior,
whether it results from mental illness, substance dependency, or other
factors (such as irresponsibility or bad moral character), is a much
better indicator of suitability as a physician than an applicant\'s
diagnosis or treatment history. Consistent with this principle, the
Department\'s title II Technical Assistance Manual, which is cited and
relied upon by the Board,[^20] states that,

> \[p\]ublic entities may not discriminate against qualified individuals
> with disabilities who apply for licenses, but [may consider factors
> related to the disability]{.underline} in determining whether the
> individual is \"qualified.\"

Technical Assistance Manual, at II-3.7200 (emphasis added). One
permissible \"factor related to the disability\" is any inappropriate
behavior associated with that disability.

Thus, the Board may inquire generally about any leaves of absence or
terminations from employment in the past but may not focus the inquiry
only on those leaves of absence and terminations occasioned by physical
or psychiatric illnesses or conditions. Similarly, the Board may inquire
about personal behavior, including whether the applicant uses drugs or
alcohol and the frequency of use.[^21] The Board may ask applicants
whether there is anything that would currently impair their ability to
carry out the duties and responsibilities of a physician.[^22] Such a
question, along with other questions about conduct and behavior, are a
permissible means of ascertaining an applicant\'s fitness.[^23] In
contrast, asking about an applicant\'s history of diagnosis and
treatment for mental disorders or substance dependency treats a
person\'s [status]{.underline} as an individual with a disability as if
it were indicative of that individual\'s future [behavior]{.underline}
as a physician. By focusing upon the disability itself, instead of
focusing on relevant factors that may be associated with the disability,
the Board cannot accurately assess a licensee\'s fitness to practice
medicine and may discriminate against a qualified individual with a
disability.

Moreover, additional lawful avenues exist for the Board to inquire about
subjects of legitimate concern that bear on fitness to practice
medicine, such as suspension or revocation of hospital privileges,
malpractice suits, or patient complaints. Such information will be
available to the Board under the Health Care Quality Improvement Act of
1986 (\"HCQIA\"), 42 U.S.C. § 11101, which is designed to gather, on a
national basis, information about malpractice payments, sanctions and
review actions (including suspensions, censures, reprimands, and
probation) taken by hospitals, group medical practices and other health
care entities. The HCQIA accomplished the goal of identifying and
helping to remove incompetent and unprofessional physicians from
practice by focusing on behavioral evidence of impairment, rather than
generalizations about persons with disabilities.[^24]

The ADA\'s prohibition on discrimination based upon an individual\'s
mental health and substance dependency history places neither the public
nor the medical profession at risk. The Board is free, consistent with
the ADA, to ask specific, targeted questions designed to determine
whether a physician suffers a current impairment of his or her ability
to practice medicine. Furthermore, recent federal and State legislation
will furnish the Board with considerable information regarding potential
physician impairment.

Finally, the Board maintains that requiring individuals to identify
themselves as having had a mental or physical disability is the only
practical way for it to determine who should be investigated further.
Indeed, the Board characterizes the task of reformulating the
relicensure application\'s questions to target more precisely the
behaviors about which it seeks information as an \"effort\" that is
\"impractical and impossible.\"[^25] While the Board may believe that
using a screening device such as disability is a quick and easy method
of separating out who warrants further investigation and who does not,
the use of mental or physical disability as a \"red flag\" to conduct
further investigation of a person for unfitness to practice medicine is
precisely the sort of conclusory jump which the ADA was enacted to
combat.

# III. Conclusion

For the foregoing reasons, the United States urges the Court to conclude
that the Board\'s relicensure program violates title II of the ADA.

Dated: Washington, D.C.

September [30]{.underline} , 1993

Respectfully submitted,

MICHAEL CHERTOFF JAMES P. TURNER

United States Attorney Acting Assistant Attorney

for the District of New Jersey General for Civil Rights

By: By: SUSAN CASSELL JOHN L. WODATCH

Assistant United States JOAN A. MAGAGNA

Attorney for the District PHILIP L. BREEN

of New Jersey SHEILA M. FORAN

KEN S. NAKATA

Attorneys

U.S. Department of Justice

Civil Rights Division

Public Access Section

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 307-0663

[^1]: ^?^ The 1991 biennial license renewal application was the first to
    contain the questions at issue here and sought information dating
    back ten years (to 1981). Applicants failing to answer all the
    questions on the 1991 application were sent a supplementary form
    requesting information dating back to 1981 along with their
    1993-1995 renewal application. Future license renewal applications
    will cover only the preceding two years.

[^2]: ^?^ We take no position on other issues raised by the parties.

[^3]: ^?^ [See]{.underline} H.R. Rep. No. 485, 101st Cong., 2d Sess.,
    pt. II at 30, 33, 40, 41 (1990) \[hereinafter cited as Education and
    Labor Report\]; H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. III at
    25 (1990) \[hereinafter cited as Judiciary Report\]; S. Rep. No.
    116, 101st Cong., 1st Sess. at 7, 9, and 15 (1989) \[hereinafter
    cited as Senate Report\].

[^4]: ^?^ There are five inquiries at issue:

    Question 5: \"Are you presently or have you previously suffered from
    or been in treatment for any psychiatric illness?\"

    Question 6: \"Have you been terminated by or granted a leave of
    absence by a hospital, health care facility, HMO, or any employer
    for reasons that related to any physical or psychiatric illness or
    condition? (Parental leave of absence need not be disclosed)\"

    Question 12: \"Are you now or have you been dependent on alcohol or
    drugs?\"

    Question 13: \"Are you now or have you been in treatment for alcohol
    or drug abuse?\"

    Question 14: \"Have you ever been terminated by or granted a leave
    of absence by a hospital, health care facility, HMO, or employer for
    reasons that related to any drug or alcohol use or abuse.\"

    The supplemental application form, which was sent to licensees who
    did not answer all the questions propounded on the 1991 biennial
    application form, asks four questions very similar to those quoted
    above.

[^5]: ^?^ Prior to the passage of the ADA in 1990, similar protections
    had been provided by section 504 of the Rehabilitation Act of 1973,
    29 U.S.C. § 794, but only in programs or activities receiving
    federal financial assistance (including assisted programs of State
    and local governments). In language that is substantively similar to
    that of section 504, title II expanded this prohibition to all
    programs, services, and activities of State and local governments,
    not just to those aided by federal funds. [See]{.underline} H.R.
    Rep. No. 485, 101st Cong., 2d Sess., pt. II at 357 (1989),
    [reprinted in]{.underline} 1990 U.S.C.C.A.N. 303.

[^6]: ^?^ 28 C.F.R. §§ 35.130(b)(3)(i), (b)(6).

[^7]: ^?^ Where, as here, Congress expressly delegates authority to an
    agency to issue legislative regulations, 42 U.S.C. § 12134, 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,
    Inc.]{.underline}, 467 U.S. 837, 844 (1984). [See also]{.underline}
    [Petersen v. University of Wis. Bd. of Regents]{.underline}, No.
    93-C-46-C, 2 Americans With Disabilities Act Cases (BNA) 735, 738,
    1993 U.S. Dist. LEXIS 5427 (W.D. Wis. Apr. 20, 1993) (applying
    [Chevron]{.underline} to give controlling weight to Department of
    Justice interpretations of title II of the ADA).

    Agencies are also afforded substantial deference in interpreting
    their own regulations. The Supreme Court has announced, as recently
    as May 3, 1993, that \"provided that an agency\'s interpretation of
    its own regulations does not violate the Constitution or a federal
    statute, it must be given \`controlling weight unless it is plainly
    erroneous or inconsistent with the regulation.\'\" [Stinson v.
    United States]{.underline}, 113 S. Ct. 1913, 1919 (1993) (quoting
    [Bowles v. Seminole Rock & Sand Co.]{.underline}, 325 U.S. 410, 414
    (1945)). [See]{.underline} [Lyng v. Payne]{.underline}, 476 U.S.
    926, 939 (1986); [United States v. Larionoff]{.underline}, 431 U.S.
    864, 872-873 (1977); [Udall v. Tallman]{.underline}, 380 U.S. 1,
    16-17 (1965).

[^8]: ^?^ The commentary to the regulation also indicates that
    determining what constitutes \"essential eligibility requirements\"
    has been shaped by cases decided under section 504 of the
    Rehabilitation Act of 1973. 29 U.S.C. § 794. These cases have
    demanded a careful analysis behind the qualifications used to
    determine the actual criteria that a position requires. [School Bd.
    v. Arline]{.underline}, 480 U.S. 273, 287-288 (1986); [Panzadides v.
    Virginia Bd. of Educ.]{.underline}, 946 F.2d 345, 349-50 (4th Cir.
    1991)(noting that \"defendants cannot merely mechanically invoke any
    set of requirements and pronounce the handicapped applicant or
    prospective employee not otherwise qualified. The district court
    must look behind the qualifications\"); [Doe v. Syracuse Sch.
    Dist.]{.underline}, 508 F. Supp. 333, 337 (1981)(requiring analysis
    behind \"perceived limitations\"). Cases in this Circuit have held
    likewise. [See, e.g.]{.underline}, [Strathie v. Department of
    Transp.]{.underline}, 716 F.2d 227, 231 (3d Cir. 1983) (finding
    State\'s characterization of essential nature of program to license
    bus drivers overbroad, and requiring a \"factual basis reasonably
    demonstrating\" that accommodating the individual would modify the
    essential nature of the program).

[^9]: ^?^ As noted in the Department\'s title II analysis accompanying
    section 35.104,

    > Where questions of safety are involved, the principles established
    > in §36.208 of the Department\'s regulation implementing title III
    > of the ADA, to be codified at 28 C.F.R. Part 36, will be
    > applicable. That section implements section 302(b)(3) of the Act,
    > which provides that a public accommodation is not required to
    > permit an individual to participate in or benefit from the goods,
    > services, facilities, privileges, advantages and accommodations of
    > the public accommodation, if that individual poses a direct threat
    > to the health or safety of others.
    >
    > A \"direct threat\" is a 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\.... Although persons with disabilities are generally
    > entitled to the protection of this part, a person who poses a
    > significant risk to others will not be \"qualified,\" if
    > reasonable modifications to the public entity\'s policies,
    > practices, or procedures will not eliminate that risk.

    28 C.F.R. pt. 35, app. A at 436.

[^10]: ^?^ [See]{.underline} Defendants\' August 19, 1993, Memorandum in
    Opposition to Plaintiff\'s Application for Entry of a Temporary
    Restraining Order at 11 (\"an \'essential eligibility requirement\'
    for licensure is an ability to practice without risk of injuring
    patients\"); Defendants\' June 5, 1992, Memorandum in Response to
    the Amicus Brief of the National Mental Health Association at 2
    (\"\[u\]ltimately, the State Board must not only determine whether
    one has necessary educational qualifications, but also must
    determine whether a physician can practice in a manner that does not
    compromise the health, safety and welfare of patients\");
    Defendants\' March 6, 1992, Memorandum in Response to Plaintiff\'s
    Brief Concerning Application of the ADA at 6 (\"\[a\]bility to
    practice in a manner that does not compromise public safety is thus
    an \'essential eligibility requirement\'\").

    As pointed out in Defendants\' June 5, 1992, Memorandum in Response
    to the Amicus Brief of the National Mental Health Association, New
    Jersey law empowers the Board to suspend or revoke a practitioner\'s
    license if a licensee cannot \"discharg\[e\] the functions of a
    licensee in a [manner]{.underline} consistent with the public\'s
    health, safety and welfare,\" N.J. Stat. Ann.

    § 45:1-21(i)(1990)(emphasis added), or if a licensee \"has
    [demonstrated]{.underline} any physical, mental, or emotional
    condition or drug or alcohol [use]{.underline} which impairs his
    ability to practice with reasonable skill and safety.\" N.J. Stat.
    Ann. § 45:9-16 (1990) (emphasis added).

    As demonstrated below, however, the Board\'s inquiries are improper,
    in part because they focus on a licensee\'s [condition]{.underline}
    and not [behavior]{.underline}. The appropriateness of focusing on
    behavior, however, is also made clear by the Board\'s own statutory
    mandate.

[^11]: ^?^ [See, e.g.]{.underline}, Defendants\' August 19, 1993, Letter
    Brief in Opposition to Plaintiff\'s Application for Entry of an
    Order Imposing Temporary Restraints, at 5. It is the overbroad
    nature of the inquiries that lead to such a result. Some people with
    histories of disabilities but who no longer have disabilities
    affecting their ability to practice medicine will satisfy the
    requirements for licensure, as will those whose current disabilities
    do not impair their abilities to practice medicine safely.

[^12]: ^?^ The arguments presented below are based on materials
    currently in the record. However, ultimately an evidentiary hearing
    may be necessary to fully explore the relevant factual issues in
    this case.

[^13]: ^?^ [See also]{.underline} 28 C.F.R. § 35.130(b)(1)(ii) and (iii)
    (pro-hibiting title II entities from providing qualified individuals
    with disabilities with a benefit or service that is not equal to
    that afforded others and not as effective in providing an equal
    opportunity to gain the same benefit afforded to others).

[^14]: ^?^ Indeed, the application warns licensees that \"\[f\]ailure to
    answer any question, whether in whole or in part, may result in
    denial of this renewal application,\" and licensees are required to
    certify that they have answered the questions completely. The form
    does, however, contain a proviso stating that licensees may decide
    to refrain from answering based on the fifth amendment protection
    against self-incrimination.

[^15]: ^?^ The chilling effect of the Board\'s practices runs completely
    counter to the goal ostensibly served by the inquiries \-- ensuring
    that applicants will be fit practitioners. [See]{.underline} Deborah
    L. Rhode, [Moral Character as a Professional
    Credential]{.underline}, 94 Yale L.J. 491, 582 (1985). Medical
    practice is a highly stressful enterprise, and many persons can
    benefit from mental health counseling as physicians. As Professor
    Maher and Dr. Blum state in their article regarding the use of
    analogous questions in the licensure process for attorneys:

    \[I\]f there is any wisdom in the choice to inquire at the cost of
    discouraging treatment, it is penny-wise and pound-foolish because
    it discourages applicants from taking advantage of opportunities to
    develop their mental and emotional fitness before they are admitted
    to the bar. This is a mistake because law practice is stressful, and
    students need to prepare for the stress of practice, just as they
    need to prepare for its other demands. Through counseling, students
    can develop healthy coping strategies that will permit them to deal
    with the stress of practice. Without adequate preparation, they may
    resort to unhealthy coping strategies, such as drug or alcohol
    abuse.

    Maher & Blum, [supra]{.underline}, at 824.

[^16]: ^?^ [See]{.underline} discussion at 9, [supra]{.underline}.

[^17]: ^?^ 42 U.S.C. § 12134(b); Judiciary Report at 51; Education and
    Labor Report at 84; 28 C.F.R. pt. 35, app. A at 430.

[^18]: ^?^ [See, e.g.]{.underline}, Department of Justice\'s Technical
    Assistance Manual at 12 (\"A public entity may impose legitimate
    safety requirements necessary for the safe operation of its
    services, programs, or activities. However the public entity must
    ensure that its safety requirements [are based on real risks, not on
    speculation, stereotypes, or generalizations about individuals with
    disabilities]{.underline}\")(emphasis added).

[^19]: ^?^ \"Recommended Guidelines Concerning Disclosure and
    Confidentiality,\" American Psychiatric Association, Work Group on
    Disclosure (December 12, 1992) at 1.

[^20]: ^?^ Defendants\' August 19, 1993, Memorandum in Opposition to
    Plaintiff\'s Application for Entry of a Temporary Restraining Order
    at 8, 12.

[^21]: ^?^ Under the ADA, \"the term \'individual with a disability\'
    does not include an individual who is currently engaging in the
    illegal use of drugs, when the covered entity acts on the basis of
    such use.\" 42 U.S.C. § 12110(a).

[^22]: ^?^ For instance, in [Doe v. Syracuse School
    District]{.underline}, 508 F. Supp. 333 (N.D.N.Y. 1981), the court
    held that a question on a job application form asking whether the
    applicant had ever experienced a nervous breakdown or undergone
    psychiatric treatment was illegal under the Rehabilitation Act and
    its implementing regulations. The district court noted that, \"if
    defendant sincerely wanted to employ persons that were capable of
    performing their jobs, all it had to ask was whether the applicant
    was capable of dealing with various emotionally demanding
    situations.\" [Id.]{.underline} at 337.

[^23]: ^?^ [See, e.g.]{.underline}, Education and Labor Report at 57
    (\"For people with mental disabilities, the employer must identify
    the specific behavior on the part of the individual that would pose
    the anticipated direct threat. This determination must be based on
    the behavior of the particular disabled person, not merely on
    generalizations about the disability\"); [see also]{.underline}
    [Landefeld v. Marion General Hosp., Inc.]{.underline}, 994 F.2d 1178
    (6th Cir. 1993) (holding that hospital Board of Directors\' decision
    to suspend internist\'s medical staff privileges did not violate §
    504 where Board of Directors suspended physician for conduct \--
    stealing mail from hospital mailboxes \-- rather than on the basis
    of his mental illness (bipolar disorder)).

[^24]: ^?^ Robert S. Adler, [Stalking the Rogue Physician: An analysis
    of the Health Care Quality Improvement Act]{.underline}, 28 Am. Bus.
    L.J. 683 (1991).

    New Jersey recently enacted a similar statute, the Professional
    Medical Conduct Reform Act of 1989, requiring medical practitioners
    (other than treating practitioners) to inform the Board of any
    evidence that another practitioner \"has demonstrated an impairment,
    gross incompetence or unprofessional conduct which would present an
    imminent danger to an individual patient or to the public health,
    safety or welfare.\" N.J. Stat. Ann. § 45:9-19.5 (1990).
    Practitioners are granted immunity for making such good faith
    reports and are subject to disciplinary action and civil penalties
    for failure to do so. [Id]{.underline}. The Reform Act also
    establishes a Medical Practitioner Review Panel intended to
    investigate allegations of impairment, incompetence, and other
    misconduct by health care providers and consumers and to gather
    information regarding malpractice claims, privilege suspensions,
    etc. N.J. Stat. Ann. §§ 45:9-19.8 to -19.11. This legislation will
    provide additional information to the Board and will further make
    the Board\'s improper inquiries unnecessary.

[^25]: ^?^ Defendants\' September 10, 1993, Letter Brief in Opposition
    to the Medical Society\'s Application for Preliminary Injunctive
    Relief, at 13.