UNITED 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 J (1)
                      and               )
                                        )
DREW B. MORVANT, D.D.S.,                )
A PROFESSIONAL DENTAL CORPORATION       )
                                        )
                      Defendants        )
                                        )
                        FIRST AMENDED COMPLAINT
        The United States of America alleges:
        1.  This action is brought by the United States pursuant to
title III of the Americans with Disabilities Act of 1990 ("ADA"),
42 U.S.C.  12188(b)(1)(B), against Drew B. Morvant, D.D.S.
("Morvant"), and Drew B. Morvant, A Professional Dental
Corporation ("corporation") (collectively, "Defendants").
        2.  This Court has jurisdiction over this action under
42 U.S.C.  12188(b)(1)(B) and (b)(2) and 28 U.S.C.  1331 and
1345.
        3.  Venue is proper in this judicial district. The acts of
discrimination alleged herein occurred in this judicial district,
at Defendants' dental office, which was located at the time at
921 Canal Street, Suite 935, New Orleans, Louisiana 70112.
                                1
01-05245
        4.   Defendant Morvant is a dentist who is licensed to
practice in the State of Louisiana. Defendant Morvant's dental
practice, which offers dental services to the general public, is
owned by Defendant Morvant. Defendant Morvant is a person who
owns and operates the professional office of a health care
provider, the operations of which affect commerce. Accordingly,
Defendant Morvant is subject to title III of the ADA. 42 U.S.C.
 12181(7)(F) and 12182; 28 C.F.R.  36.104 and 36.201(a).
        5.   Defendant corporation is a professional dental
corporation, incorporated under the laws of the State of
Louisiana. Defendant corporation is a private entity that owns
and operates the professional office of a health care provider,
the operations of which affect commerce. Accordingly, Defendant
corporation is subject to title III of the ADA. 42 U.S.C.
 12181(7)(F) and 12182; 28 C.F.R.  36.104 and 36.201(a).
        6.   Ismael Pena ("Mr. Pena") is an individual who tested
positive for the Human Immunodeficiency Virus (HIV), the virus
believed to be the causative agent of the Acquired Immune
Deficiency Syndrome ("AIDS"). Mr. Pena was, therefore, an
individual with a disability within the meaning of the ADA,
42 U.S.C.  12102(2); 28 C.F.R.  36.104.
        7.   From April 1981 through January 1993, Mr. Pena sought
and received dental care from Defendants. During that time,
Defendants provided routine examinations, dental cleanings, an
occasional filling, and one tooth extraction.
                                2
01-05246
        8.   In January 1993 Defendant Morvant became aware of Mr.
Pena's HIV-positive status.
        9.   In February 1993 Defendants refused to provide Mr. Pena
with further dental treatment because of Mr. Pena's HIV-positive
status.
        10.  Defendants' actions caused Mr. Pena to suffer extreme
humiliation, emotional distress, frustration, and anxiety. As a
result of Defendants' actions, Mr. Pena was required to pay
additional fees to another dentist so that he could have his
teeth cleaned.
        11.  xxxxxxxx ("xxxxxxxxxx") is an individual
who has tested positive for HIV, and is, therefore, an individual
with a disability within the meaning of the ADA,
42 U.S.C.  12102(2); 28 C.F.R.  36.104.
        12.  In June 1993 xxxxxxxx made an appointment for an
initial dental examination and dental cleaning at Defendants'
office.
        13.  When xxxxxxxx arrived for his appointment,
Defendants refused to treat him because of his HIV-positive
status.
        14.  Defendants' actions caused xxxxxxxx to suffer
extreme humiliation, emotional distress, frustration, and
anxiety.
        15.  Persons who are HIV-positive and have been the victims
of Defendants' discriminatory practices are aggrieved persons
within the meaning of 42 U.S.C.  12188(b)(2)(B) and have
                                3
01-05247
suffered, or may have suffered, damages in the form of economic
loss and emotional distress as a result of Defendants'
discriminatory conduct.
        16.  By denying Mr. Pena, xxxxxxxx, and possibly other
aggrieved persons dental treatment because of their HIV-positive
status, and by adopting and implementing a policy of refusal to
treat persons who have tested positive for HIV, Defendants have
unlawfully discriminated against Mr. Pena, xxxxxxxx, and
possibly other persons who have tested positive for HIV and
thereby have violated title III of the ADA in the following ways:
             A. Defendants have denied Mr. Pena, xxxxxxxx,
and possibly other individuals who have tested positive for
HIV the opportunity to benefit from the services of a place
of public accommodation, in violation of 42 U.S.C.
 12182(b)(1)(A)(i) and 28 C.F.R.  36.202(a);
             B. Defendants have imposed eligibility criteria, for
the privilege or advantage of receiving dental services,
that screen out the class of persons who have tested
positive for HIV, in violation of 42 U.S.C.
 12182(b)(2)(A)(i) and 28 C.F.R.  36.301(a); and
             C. Defendants have failed to make reasonable
modification in policies, practices, or procedures where
such modification is necessary to afford equal advantages or
privileges to the class of persons who have tested positive
for HIV, in violation of 42 U.S.C.  12182(b)(2)(A)(ii) and
28 C.F.R.  36.302(a).
                                4
01-05248
        17.  Defendants' policies and practices as described herein
constitute (a) a pattern or practice of discrimination within the
meaning of 42 U.S.C.  12188(b)(1)(B)(i) and 28 C.F.R.
 36.503(a); and (b) discrimination that raises an issue of
general public importance within the meaning of 42 U.S.C.
 12188(b)(1)(B)(ii) and 28 C.F.R.  36.503(b).
                        PRAYER FOR RELIEF
        WHEREFORE, the United States prays that the Court:
        A.  Declare that the discriminatory practices of the
Defendants, as set forth above, discriminate against persons who
have tested positive for HIV, in violation of title III of the
Americans with Disabilities Act, 42 U.S.C.  12181-12189, and
the implementing regulation at 28 C.F.R. part 36;
        B.  Enjoin the Defendants, their agents and employees, and
all other persons in active concert or participation with any of
them, from refusing to provide treatment to persons who have
tested positive for HIV;
        C.  Award monetary damages to (i) Mr. Pena and/or his heirs
or successors, (ii) xxxxxxxx, and (iii) any other persons
aggrieved by Defendants' discriminatory actions to compensate
them for injuries resulting from such discrimination;
        D.  Assess a civil penalty against the Defendants to
vindicate the public interest; and
                                5
01-05249
        E.  Order such other appropriate relief as the interests of
justice may require.
                                JANET RENO
                                Attorney General
                                  (Signature)
                                ___________________________________
ROBERT J. BOITMANN              JAMES P. TURNER
United States Attorney          Acting Assistant Attorney General
Eastern District of             Civil Rights Division
   Louisiana
                                  (Signature)
                                ___________________________________
GLENN K. SCHREIBER              SHEILA K. DELANEY
Assistant U.S. Attorney         SHARON N. PERLEY, TA
Eastern District of             Public Access Section
   Louisiana                    Civil Rights Division
501 Magazine St.                U.S. Department of Justice
New Orleans, LA 70130           P.O. Box 66738
(504) 589-3598                  Washington, D.C. 20035-6738
                                (202) 514-6016
                                6
01-05250
                        UNITED 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.          )
                                        )
                                        )
                JOINT MOTION FOR ENTRY OF CONSENT ORDER
        Plaintiff, United States and Defendants Drew B. Morvant,
D.D.S. and Dew B. Morvant, A Professional Dental Corporation
("Defendants") hereby move this Court for entry of the attached
Proposed Consent Order, and in support thereof state as follows:
        1.   On March 23, 1995, this Court granted summary judgment
on liability to the United States in this case.
        2.   In order to resolve the damages portion of this lawsuit
without an evidentiary hearing, and to more fully delineate the
injunctive relief ordered by this Court, the parties have
conferred and agreed to the terms of the attached proposed
Consent Order.
01-05251
                                Respectfully submitted,
ROBERT J. BOITMANN              DEVAL L. PATRICK
United States Attorney          Assistant Attorney General
Eastern District of             Civil Rights Division
  Louisiana
                                  (Signature)
                                _____________________________
GLENN K. SCHREIBER              JOHN L. WODATCH
Assistant U.S. Attorney         L.IRENE BOWEN
Eastern District of             SHEILA K. DELANEY
  Louisiana                     SHARON N. PERLEY, TA
501 Magazine Street             ALLISON J. NICHOL
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
                                  (Signature)
                                _____________________________
                                STEPHEN M. PIZZO
                                Blue Williams, L.L.P.
                                Metairie, LA 70002
                                (504) 831-4091
                                2
01-05252
                        UNITED 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.         )
                                        )
                                        )
                                CONSENT ORDER
        This action was brought by the United States of America
against Drew B. Morvant, D.D.S., and Drew B. Morvant, A
Professional Dental Corporation ("Defendants"), to enforce the
Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.
 12101 et seq. In its complaint, the United States alleged
that Defendants violated the ADA by refusing to provide routine
dental care to Ismael Pena, xxxxxxxx, and other persons
with HIV or AIDS, on the basis of their HIV-positive status
alone.
        On March 23, 1995, this Court granted summary judgment on
liability to the United States. United States v. Morvant, No. 93-
3251, slip op. (E.D. La. Mar. 23, 1995). Specifically, this
Court held that:
01-05253
                                -2-
        (1) HIV-positivity and AIDS are protected disabilities under
the ADA;
        (2) the "referral" of an individual with HIV or AIDS to
another dentist, on the basis of the patient's HIV-positive
status alone, violates the ADA as a matter of law;
        (3) the treatment of persons with HIV or AIDS does not pose
a "direct threat" to the health or safety of others; and
        (4) the ADA is constitutional as applied in the instant
case.
        This Court had held previously that Dr. Morvant owned and
operated a place of public accommodation as defined by the ADA
and that Dr. Morvant could be held personally liable for his
discriminatory actions. United States v. Morvant, 843 F. Supp.
1092, 1094-95 (E.D. La. 1994). In addition, this Court held that
the United States could seek compensatory damages on behalf of
Ismael Pena, who died prior to the filing of the lawsuit. Id. at
1095.
        Upon granting summary judgment to the United States, this
Court ordered, among other things, that:
        (1) Defendants be enjoined from refusing to provide
treatment to persons with HIV or AIDS, on the basis of their HIV-
positive status;
        (2) Defendants be enjoined from having a blanket policy of
"referring" out all people with HIV or AIDS to Dr. Creely Sturm
or other general dentists;
01-05254
                                -3-
        (3) Defendants be required to adopt and post a policy of
non-discrimination on the basis of disability, including HIV and
AIDS;
        (4) Defendants and their staff be required to undergo
training concerning HIV and the practice of dentistry; and
        (5) There would be an evidentiary hearing on the issue of
damages to Ismael Pena and xxxxxxxx.
In order to resolve the damages portion of this lawsuit
without an evidentiary hearing, and to more fully delineate the
injunctive relief ordered by this Court, the parties have
conferred and agreed to the terms of this Consent Order. This
Order is final and binding on all parties to this action,
including all principals, agents, and successors in interest of
the Defendants, as well as any persons acting in concert with
them.
ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED
        (A) Defendants shall treat persons with HIV or AIDS in a
manner equal to that in which they treat HIV-negative persons.
Thus, Defendants shall provide routine dental care to persons
with HIV or AIDS, and shall only refer such persons when the
dental treatment being sought or provided is outside of
Defendants' area of expertise. In other words, Defendants shall
refer a person with HIV or AIDS to another dental care provider
on the basis of the person's dental needs or dental condition,
rather than the person's HIV positive/AIDS status alone.
Defendants shall consult with the patient's personal physician
01-05255                      -4-
and/or with the dental provider to whom the patient shall be
referred when appropriate.
        (B) Defendants shall adopt a policy of non-discrimination
on the basis of disability, including HIV and AIDS. Defendants
shall communicate this policy, attached hereto as Exhibit A, to
all employees, both orally and in writing. Defendants shall
require compliance with this policy as a condition of employment.
        (C)(1) In an office operated by the Defendants, Defendants
shall prominently display the following non-discrimination notice
in the waiting room of Defendants' dental office:
        This office does not discriminate against any person on
        the basis of disability, including HIV-positivity or
        AIDS. Drew B. Morvant, D.D.S. and his staff provide
        dental treatment and services to persons with HIV or
        AIDS on the same terms and conditions that such
        services are provided to patients who are not HIV-
        positive.
        The Americans With Disabilities Act of 1990 is a
        federal law that protects persons with disabilities,
        including individuals with HIV and/or AIDS, from
        discrimination on the basis of their HIV and/or AIDS
        status, including discrimination in the provision of
        dental care. If you feel you have been discriminated
        against in the provision of dental care because of your
        HIV and/or AIDS status you should call the Department
        of Justice in Washington, D.C. at 1-800-514-0301.
        (C)(2) In an office not operated by the Defendants but in
which Dr. Morvant works, Dr. Morvant shall display the above
nondiscrimination notice in the operatory where he works while he
is treating his patient.
        (D) Within two years of the date of this Order, Defendant
Drew B. Morvant and all dental staff persons who come in contact
with Defendants' patients shall undergo at least 12 hours of
01-05256                       -5-
training concerning: dental treatment of persons with HIV or
AIDS, infection control in the dental workplace, and the ethical
duty to treat persons with HIV or AIDS. Such training shall be
subject to reasonable review and approval by the Department of
Justice. All future employees of Defendants shall either, 1)
produce documentary proof that they have undergone the training
outlined above prior to being hired by Dr. Morvant or, 2) within
two years undergo such training after being hired by Dr. Morvant.
This training requirement will expire three years after the date
of this Order. This training requirement does not include any
Office Manager/Receptionist Dr. Morvant may use.
        (E) Within ten (10) days of the date of this Order,
Defendants shall send to xxxxxxxx the Release marked as
Exhibit B to this Order. Within thirty (30) days after
Defendants receive the signed copy of Exhibit B they shall send
to xxxxxxxx by certified mail, return receipt
requested, a check made out to him for sixty-thousand dollars
($60,000) in full and complete settlement of any and all claims
that xxxxxxxx may have had for equitable and/or monetary
relief arising out of the subject matter of this litigation.
Within ten (10) days after sending the check to xxxxxxxx,
Defendants shall send a xerox copy of both the signed
Release and the check to the Department of Justice.
        (F) Within ten (10) days of the date of this Order,
Defendants shall send to Ruby and Ismael Pena, Sr. the Release
marked as Exhibit C to this Order. Within thirty (30) days after
01-05257                      -6-
Defendants receive the signed copy of Exhibit C, they shall send
to Ruby and Ismael Pena, Sr. by certified mail, return receipt
requested, a check made out to them for thirty-thousand dollars
($30,000). Within ten (10) days of the date of this Order,
Defendants shall send to Patrick Dunne the Release marked as
Exhibit D to this Order. Within thirty (30) days after
Defendants receive the signed copy of Exhibit D, they shall send
to Patrick Dunne a check made out to him for thirty-thousand
dollars ($30,000). The total sum of sixty-thousand dollars
($60,000) is in full and complete settlement of any and all
claims that Ismael Pena, Jr. may have had for equitable and/or
monetary relief arising out of the subject matter of this
litigation. Within ten (10) days after sending the checks to
Ruby and Ismael Pena, Sr. and Patrick Dunne, Defendants shall
send xerox copies of both the signed Releases and the checks to
the Department of Justice.
        (G) Effective immediately upon the date of this Order, all
parties agree to withdraw any motions, cross-motions, and/or
appeals pending in this matter, and to not file any subsequent
motions or appeals in this matter, except those related to the
issue of compliance with this Order. All parties agree not to
file any actions against any other parties or their witnesses
pertaining to the subject matter of this litigation, except those
related to the issue of compliance with this Order.
        (H) If the United States believes that Defendants have
violated this Order or any requirement contained herein, it may
01-05258                     -7-
move this Court for an appropriate order for the enforcement of
this Order, including civil contempt sanctions, to be awarded to
the United States.
        (I) Nothing in this Order shall preclude the United States
from filing a separate action under the ADA for any future
alleged violations occurring after the date of this Order. In
such actions, the United States may seek all remedies provided in
42 U.S.C.  12188.
01-05259
                                -8-
        Entered and Ordered this                      day of
                           , 1995.
                                        _____________________
                                        STANWOOD DUVAL
                                        UNITED STATES DISTRICT JUDGE
                                        Eastern District of Louisiana
Agreed and Consented to:
DEVAL L. PATRICK
Assistant Attorney General
Civil Rights Division
  (Signature)                             (Signature)
_____________________________           __________________________
JOHN L. WODATCH                         STEPHEN M. PIZZO
L. IRENE BOWEN                          Blue Williams
ALLISON J. NICHOL                       3421 N. Causeway Blvd.
SHEILA K. DELANEY                       Ninth Floor
SHARON N. PERLEY                        Metairie, LA 70002
Attorneys                               (504) 831-4091
Disability Rights Section
Civil Rights Division
U.s. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
(202) 514-6016
FOR THE UNITED STATES                   FOR DREW B. MORVANT, D.D.S.,
                                        AND DREW B. MORVANT, A.P.D.C.
                                        __________________________
                                        DREW B. MORVANT, D.D.S.
                                        #1 Esplanade Avenue
                                        Metairie, LA 70005
01-05260
                                -9-
                             EXHIBIT A
                        MEMORANDUM TO ALL EMPLOYEES
        The Americans with Disabilities Act prohibits discrimination
in the dental setting against persons with disabilities,
including those who are HIV-positive or who have AIDS. Drew B.
Morvant, A Professional Dental Corporation, is fully committed to
providing treatment to persons who are HIV-positive or who have
AIDS. Therefore, persons who are HIV-positive or who have AIDS
will be treated at the dental office of Drew B. Morvant, D.D.S.,
in the same manner as are other patients. No employee who works
at this office may refuse to treat or to refuse to provide any
services to any individual on the basis that the individual is
HIV-positive or has AIDS.
        You will be required to follow the above policy.
        Refusal to follow the above policy is grounds for
termination of employment.
01-05261
                              EXHIBIT B
                                WAIVER
        I, xxxxxxxx, hereby agree that in consideration of
Drew B. Morvant, D.D.S. and Drew B. Morvant, A Professional
Dental Corporation's agreement to the terms of a Consent Order,
and payment to me of the sum of sixty-thousand dollars ($60,000),
I hereby release Drew B. Morvant and Drew B. Morvant, A
Professional Dental Corporation, their staff, agents, assigns and
any other persons acting in concert with them, from any and all
claims, complaints, or causes of action however denominated,
including, but not limited to, all claims for monetary or
equitable relief, that I may have under federal, state or local
law, arising from or in any way related to the facts and
circumstances alleged in United States v. Drew B. Morvant, D.D.S.
and Drew B. Morvant, A Professional Dental Corporation, CV 93-
3251 (E.D. La.). I have been advised that, before signing this
release, I have the right to consult a private attorney regarding
its contents. I have read this release and understand its
contents.
        AGREED TO AND SIGNED THIS        DAY OF ,             1995.
01-05262
                                      EXHIBIT D
                                        WAIVER
        I, Patrick Dunne, hereby agree that in consideration of Drew
B. Morvant, D.D.S. and Drew B. Morvant, A Professional Dental
Corporation's agreement to the terms of a Consent Order, and
payment to me of the sum of thirty-thousand dollars ($30,000), I
hereby release Drew B. Morvant and Drew B. Morvant, A
Professional Dental Corporation, their staff, agents, assigns and
any other persons acting in concert with them, from any and all
claims, complaints, or causes of action however denominated,
including, but not limited to, all claims for monetary or
equitable relief, that I may have under federal, state or local
law, arising from or in any way related to the facts and
circumstances alleged in United States v. Drew B. Morvant, D.D.S.
and Drew B. Morvant, A Professional Dental Corporation, CV 93-
3251 (E.D. La.). I have been advised that, before signing this
release, I have the right to consult a private attorney regarding
its contents. I have read this release and understand its
contents.
AGREED TO AND SIGNED THIS                DAY OF ,               1995.
01-05263
                        UNITED STATES DISTRICT COURT
                       EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA                        CIVIL ACTION
VERSUS                                          NO. 93-3251
DREW B. MORVANT, D.D.S., ET AL.                 SECTION "K" (1)
                                ORDER AND REASONS
        Before the Court are a Motion for Summary Judgment filed by
the United States of America (the "United States or "the
Government"), a Motion for Summary Judgment filed by Drew B.
Morvant, D.D.S., and Drew B. Morvant, a Professional Dental
Corporation (referred to collectively as "Morvant") and a Motion to
Dismiss filed by Morvant. Having entertained oral argument on
February 8, 1994, and having reviewed the voluminous pleadings,
exhibits, deposition testimony, affidavits and the applicable law,
the Court finds that the United States' Motion for Summary Judgment
is meritorious rendering Morvant's Motion for Summary Judgment
moot. Finally, Morvant's Motion to Dismiss is without merit as
well.
                                BACKGROUND
Dr. Drew Movant practices dentistry as a professional dental
corporation. He owns his professional corporation and is its
president and sole director.
        The Department of Justice, under the Americans with
Disabilities Act ("ADA"), 42 U.S.C.A.  12101-12213 (West Supp.
1994) filed suit against Dr. Morvant, personally, and his dental
corporation for refusing to provide dental care to Ismael Pena,
01-05264          DATE OF ENTRY MAR 23 1995 (stamp)
xxxxxxxx, and other persons with HIV or AIDS, solely on
the basis of their HIV-positive status. The United States contends
that it is entitled to summary judgment on the issue of liability
because there are no relevant contested issues of fact in this
regard and that Morvant has violated the statute and is entitled to
judgment as a matter of law. Morvant has filed in effect a cross-
motion with respect to liability. Moreover, Morvant also contends
that "if this Honorable Court rules that in fact the Act prohibited
Dr. Morvant's referrals of xxxxxxxx and Mr. Pena, the Act
itself is unconstitutional in prohibiting these referrals." To
that end Dr. Morvant seeks to dismiss the suit "for lack of subject
matter jurisdiction."
        The facts that brought rise to this suit are as follows:
Ismael Pena
        Ismael Pena and his partner, Patrick Dunne, were longstanding
patients of Morvant's. According to the deposition testimony of
Dunne and the affidavit of Pena, in November of 1992, Dunne told
Morvant that Pena had AIDS. Morvant at that time mentioned that
his hygienist had noticed thrush in Pena's mouth before, but
thought it was the flu. In February of 1993, Pena attempted to
make an appointment with Morvant and was told that he would no
longer be able to provide services. Pena and Dunne both contend
that Morvant told each separately that he could not keep his staff
if he required them to treat AIDS patients. Without examining
Pena's mouth or contacting Pena's treating physician to consult
                                2
01-05265
about his medical condition, Morvant referred Pena to Dr. Kathryn
Creely Sturm ("Sturm"), who Morvant contends specializes in the
treatment of AIDS/HIV patients. Morvant contends that he referred
Pena to Sturm because he believed that AIDS/HIV patients required
more specialized care and that he had not kept abreast of those
things which he needed to know to treat an AIDS patient properly.
xxxxxxxx
        xxxxxxxx arrived for a previously scheduled dental cleaning
and dental examination in June of 1993. He filled out a number of
dental forms and was escorted to the hygienist's chair. She asked
him if he had any diseases that "we should know about" to which he
responded that he had tested positive for HIV. Before she or Dr.
Morvant examined his mouth, the hygienist informed xxxxxxxx that
the defendants were not equipped to treat him and referred him to
Sturm.
        Thus, the Government contends that Morvant discriminated
against these two individuals as proscribed by the ADA. It also
seeks damages for "other persons aggrieved" by Morvant's alleged
practices.1 Morvant contends however that the matter should be
        1 The United States asks the Court to order that:
        (1) Defendants be enjoined from refusing to provide treatment to
         persons with HIV or AIDS, on the basis of their actual or perceived
         HIV or AIDS status;
        (2) Defendants be enjoined from having a blanket policy of "referring"
         out all people with HIV or AIDS to other general dentists;
        (3) Defendants shall advertise that they treat people with HIV or
         AIDS;
        (4) Defendants shall adopt and post a policy of non-discrimination on
         the basis of disability, including HIV and AIDS;
                                3                                 01-05266
dismissed because the ADA is unconstitutional, as regulating
activities outside of the scope of the Commerce Clause and of the
Fourteenth Amendment to the United States Constitution. The Court
will first address the Government's Motion for Summary Judgment.
It will then address Morvant's Motion to Dismiss.
                STANDARD FOR GRANTING SUMMARY JUDGMENT
        Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment should be granted "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When a
moving party satisfies the requisites of Rule 56(c), a motion for
summary judgment should be granted. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). When the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts. The
nonmoving party must come forward with "specific facts showing that
there is a genuine issue for trial." Matsushita Elec. Industrial
        (5) Dr. Morvant and his staff be required to undergo training
         concerning HIV and the practice of dentistry;
        (6) Defendants shall pay to the United States a civil penalty of
         $50,000 to vindicate the public interest; and
        (7) a hearing on the issue of damages to Pena and xxxxxxxx be had to
         determine these.
                                4
01-05267
Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (emphasis
supplied).
        Thus, where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is no
"genuine issue for trial." Id. However, all inferences to be
drawn must be in favor of the nonmoving party.
        Finally, the court notes that the substantive law determines
materiality of facts and only "facts that might affect the outcome
of the suit under the governing law will properly preclude the
entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
        The court now turns to the merits of the Government's Motion
for Summary Judgment with these standards and facts in mind.
        ANALYSIS OF ADA VIOLATIONS ALLEGED BY THE GOVERNMENT
Because the ADA is a relatively new statute, there is a
paucity of case law concerning the burden of proof thereunder. As
noted in Mayberry v. Von Valtier, 843 F. Supp. 1160 (E.D. Mich.
1994):
        the construction provision of the ADA states that the
        standards of Title V of the Rehabilitation Act of 1973,
        and its regulations, are to apply, except where the ADA
        has explicitly adopted another standard. 42 U.S.C. 
        12201(a).
                                5
01-05268
The Mayberry court continued finding that a modified McDonnell
Douglas/Burdine2 burden shifting analysis should apply to an ADA
case, and this Court concurs with the analysis.
        Thus, in order for the Government to prevail in its attempt to
obtain summary judgment with respect to its claims against Morvant,
it must first prove that (1) the subject individuals had a
disability; (2) that Morvant's office is a place of public
accommodation; and (3) that the subject persons were denied full
and equal medical treatment because of their disability. If the
Government succeeds in establishing this prima facie case, the
burden shifts to Morvant to prove either that the subject persons
were not denied medical treatment, or that such denial was not
unlawful. Then, the burden shifts back to the Government to rebut
defendant's reasons as a pretext for unlawful discrimination.
Mayberry, 843 F. Supp. at 1166.
        The Prima Facie Case
        The United States contends that Morvant is liable under Title
III of the ADA, 42 U.S.C.  12181-88, because:
        1) the aggrieved individuals--Pena, xxxxxxxx, and other
           persons with HIV or AIDS--were individuals with
           disabilities;
        2) Morvant owned or operated a place of public
           accommodation; and
        2 The test so described can be found in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and is refined in Texas Dep't. of
Community Affairs v. Burdine, 450 U.S 248, 101 S. Ct. 1089 (1981) and St.
Mary's Honor Center v. Hicks, U.S. , 113 S. Ct. 2742 (1993).
                                   6
01-05269
        3) Morvant discriminated against the aggrieved individuals
           by denying them full and equal enjoyment of medical
           treatment because of their disabilities (i.e. because
           they were perceived as being HIV-positive or having
           AIDS).
42 U.S.C.  12182(a) & 42 U.S.C.  12182(b).
        AIDS/HIV-positive are both disabilities under the Department
of Justice regulations promulgated pursuant to the ADA. 28 C.F.R.
 36.104(1)(iii); Howe v. Hull, 1994 WL 682951, No. 3:92CV7658,
slip op. at 10 (N.D.Ohio Nov. 21 1994). Furthermore, the Court has
previously ruled that Morvant owned and operated a place of public
accommodation as defined by the ADA. United States v. Morvant, 843
F. Supp. 1092, 1094 (E.D.La. 1994).3 Accordingly, it is beyond
cavil that the first two criteria are met.
        Thus, the third criteria, discrimination, must be demonstrated
for the Government to succeed in proving its prima facie case. The
statute contains both general and specific prohibitions against
discrimination based on a disability. Generally prohibited in
relevant part under section 12182 is:
        to subject an individual or class of individuals on the
        basis of a disability or disabilities of such individual
        or class, directly, or through . . . other arrangements,
        to a denial of the opportunity of the individual or class
        to participate in or benefit from the . . .
        accommodation;
42 U.S.C.  12182(b)(1)(A)(i) (emphasis added). Specifically
prohibited with respect to discrimination under 12182(b)(2)(A)(i)
and (ii) are:
        3The professional office of a health care provider constitutes a
public accommodation. 42 U.S.C.  12181(7)(f).
                                7
01-05270
        i)   the use of unnecessary eligibility criteria that screen
             out or tend to screen out persons with disabilities; and
        ii)  the failure to make reasonable modifications in policies,
             practices or procedures where such modifications are
             necessary to afford equal advantages or privileges to
             persons with disabilities.
The Government contends that Morvant violated each of these.
        It is clear that with respect to the general prohibition
against discrimination, Pena and xxxxxxxx were denied dental
treatment by Morvant on the basis of a disability when they told
Morvant or his assistant that each had AIDS or was HIV-positive,
respectively, each was denied treatment by Morvant. That fact
alone is sufficient to meet the prima facie test and shift the
burden to Morvant to prove that his actions were not unlawful.4
        Were Morvant's Actions Unlawful?
             Morvant's Defenses
        Morvant responds that contrary to the Pena/Dunne testimony he
referred both Pena and xxxxxxxx because he believes:
        that HIV-positive and AIDS individuals require
        specialized treatment and infection control for the
        benefit of themselves, for the benefit of other patients,
        and for the benefit of Dr. Morvant's staff.
(Exhibit 4, Morvant's Motion for Summary Judgment) ("Defendants'
Exhibit). Thus, Morvant raises basically two defenses.
        Referral
        First, Dr. Morvant contends that his referral to Sturm was
permitted under the ADA because the "circumstances of the
        4 As the Government has proved this instance of discrimination, it is
unnecessary to address the other two "specific" allegations.
                                8
01-05271
disability [HIV/AIDS] itself" create "specialized complications for
the patient's health which Morvant lacked the experience or
knowledge to address." Morvant further contends that the ADA does
not require and indeed cannot require a physician to keep up with
the necessary medical techniques to treat such patients.5
       Under the regulations that have been promulgated with respect
to the ADA, specifically, 28 C.F.R  36.302(b)(2)6, a health care
provider may "refer" a patient. This "referral" is subject to two
restrictions. A health care provider may refer a patient only if:
        1)   the treatment being sought is outside the referring
             provider's area of specialization; and
        2)   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. (emphasis added).
Morvant thus contends that this "referral" was protected by this
safe harbor.
        Direct Threat--Significant Risk
        The other defense implicit in Morvant's argument is that
because of the "significant risk" of infection to his hygienists
and Dr. Morvant himself, Morvant is protected from these
        5In reality, this argument is better covered within the context of
"modifications because of direct threat to the provider's health" which is
discussed infra at 17-20.
        6Morvant also contends that the Court should ignore the promulgated
regulations because Congress did not intend to circumscribe a doctor's ability
to refer a patient to the degree found in the regulation. Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S.C 837, 842, 104 S.
Ct. 2778 -(1984). The Court finds this contention meritless upon review of the
legislative history read as a whole and rejects this argument.
                                9
01-05272
allegations of discrimination based on 28 U.S.C 12182(b)(3). This
section states in relevant part:
        Nothing in this subchapter shall require an entity to
        permit an individual to participate in or benefit from
        the goods, services, facilities, privileges, advantages
        and accommodations of such entity where such individual
        poses a direct threat to the health or safety of others.
        The term "direct threat" means 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.
        (emphasis added).
Thus, with respect to this second defense, the issues become: (1)
whether HIV-positive and AIDS patients pose a "significant risk" to
the health and safety of Morvant and his staff and (2) whether
Morvant could have modified his "policies, practices or procedures
or provided auxiliary aids or services" so as to eliminate the
risk.
        Are these "defenses" pretextual?
        Referral
        In the context of both Pena and xxxxxxxx, both persons
simply sought a "prophy" or teeth cleaning. It is undisputed that
Morvant and his staff were eminently qualified to clean teeth,
indeed Morvant had been doing so with respect to Pena for 11 years.
Thus, it is impossible for Morvant to contend that cleaning teeth
was outside of his "specialization." Furthermore, it is clear that
but for the disability--AID/HIV--he would not have "referred" these
two persons to a "specialist."
        Morvant counters this argument by contending that the
disease/disability itself created specialized complications
                                10
01-05273
requiring the referral. The Government contends that this is
simply a false premise.
        To that end, the Government has presented the declaration of
Enid A. Neidle, Ph.D. This expert holds a Ph.D. in physiology from
the College of Physicians and Surgeons at Columbia University and
is currently a Senior Consultant to the Dean and Director of the
Office of Research Administration at the Columbia University School
of Dental and Oral Surgery. From June 1, 1985 to December 31,
1992, she was first part-time (until March 31, 1986) and then full-
time Assistant Executive Director, Scientific Affairs for the
American Dental Association ("the Association"). She has written
and lectured extensively on the subjects of infection control in
dentistry, the epidemiology and characteristics of HIV infection,
and the ethical obligation for dentists to treat persons with HIV
or AIDS.
        She attested that the Association does not recognize a
specialty in the treatment of persons with AIDS or who are HIV
positive. There are only eight specialties recognized by the
Association: orthodontics, periodontics, prosthodontics, dental
public health, endodontics, oral pathology, oral and maxillofacial
surgery, and pediatric dentistry. (Plaintiff's Exhibit 60, P 8).
        She also stated that Morvant's policy of sending all
patients with HIV or AIDS to another general dentist--regardless of
their then-current medical status, dental condition, or dental
needs--is in direct contravention of the Association's policies and
                                11
01-05274
constitutes a breach of Morvant's professional and ethical
obligations. (Plaintiff's Exhibit 60,  15).
        The Government also provided the declaration of Deborah
Greenspan, B.D.S., DSc. She holds a Bachelor of Dental Surgery and
a Doctor of Science in oral medicine from the University of London,
England and is currently a Clinical Professor of Oral Medicine at
the University of California at San Francisco. She has written and
lectured extensively on HIV and the practice of dentistry. Her
writings, education and professional experience are outstanding and
noteworthy as evidenced by her Curriculum Vitae. (Plaintiff's
Exhibit 58).
        She affirmed that:
        There is no question that Dr. Morvant had the capacity to
        utilize universal precautions in his general dental
        practice.
        No additional infection control procedures--above and
        beyond universal precautions--are required to provide
        dental treatment to persons with HIV infection or AIDS.
        Similarly, no special training or expertise, other than
        that possessed by a general dentist, is required to
        provide general dental care, including dental
        examinations and dental cleanings, to persons with HIV
        infection or AIDS. No such specialty is recognized by
        the dental profession.
        Thus, there is no medical or scientific support for Dr.
        Morvant's policy of "referring" all patients who informed
        him that they had HIV or AIDS to another general dentist
        for treatment. Dr. Morvant's contention that persons
        with HIV or AIDS require specialized treatment and
        infection control "for the benefit of themselves, for the
        benefit of other patients, and for the benefit of Dr.
        Morvant's staff" is simply wrong. Dr. Morvant was fully
        capable of utilizing universal precautions, and, as a
        general dentist, Dr. Morvant had sufficient expertise and
                                12
01-05275
        training to provide general dental care to persons with
        HIV or AIDS.
(Plaintiff's Exhibit No. 58,  10-13).
        Furthermore, this expert opined that the "referrals" in
question were not appropriate because Morvant did not examine the
individuals' mouths, inquire into their medical status, or contact
their personal physicians. (Plaintiff's Exhibit 58,  20-21).
        Finally, the Government also presented the declaration of
Donald Wayne Marianos, D.D.S., M.P.H. He holds a Masters in Public
Health from Loma Linda University and a Doctor of Dental Surgery
from the Indiana University School of Dentistry. He has also
coordinated epidemiologic investigations involving dental health
care workers with HIV/AIDS as well as prevention of HIV/AIDS
transmission in dental care settings. He assisted in the
development of the Center for Disease Control and Prevention
("CDC") Guidelines and Recommendations with regard to these topics.
From August of 1989 to the present, he has served as a Captain in
the United States Public Health Service at the CDC.
        He opined that in 1986 the CDC issued Recommended Infection
Control Practices for Dentistry. The theory behind what has come
to be known as "universal precautions" is that since it is
impossible to reliably identify all patients infected with HIV or
other blood-borne pathogens through medical history and
examination, precautions should be consistently used for all
        1It should be noted that under the ADA, which is modeled after the
Rehabilitation Act, there is no need for the Government to prove "a hostile
discriminatory purpose or subjective intent to discriminate." Doe v. Attorney
General of the United States, 1995 WL 15698 (9th Cir. Jan. 18, 1995).
                                13
01-05276
patients. These precautions were updated in 1987 and finally in
1993. Specifically he states:
        After a review of relevant depositions, as well as a
        physical inspection of Dr. Morvant's office, it is clear
        that he and his staff had the capacity to follow proper
        infection control procedures.
        No infection control procedures beyond the use of
        universal precautions are necessary in providing routine
        dental care to persons with HIV or AIDS. The CDC does
        not recommend the use of infection control procedures
        beyond those cited in the Recommended Infection Control
        Practices for Dentistry, 1993 for the provision of
        routine dental treatment to persons with HIV or AIDS.
        Referral because of the need for "special" infection control
        precautions of persons with HIV or AIDS is not appropriate.
        If dentists, including general dentists such as Dr.
        Morvant, follow universal precautions in their practice,
        persons with HIV or AIDS or other blood-borne pathogens
        can be safely treat in the dental setting.
        No special expertise beyond that of a general dentist is
        required to provide routine dental care to a person with
        HIV or AIDS.
        Dr. Morvant had the expertise and the available infection
        control procedures to safely provide routine dental
        services to Mr. Pena, xxxxxxxx and other persons
        with HIV and AIDS.
(Plaintiff's Exhibit 59,  7-12).
        Finally, Dr. Sturm, the doctor to whom Morvant would "refer"
these patients testified that she was not a "specialist" rather she
is a general dentist. (Plaintiff's Exhibit 15, Dep. of Dr. Sturm
at 59).
        Thus, the Government has presented overwhelming and compelling
evidence that the "referral" was a pretext.
        Morvant has failed to present any countervailing affidavits or
deposition testimony from a single, qualified expert in the field
                                14
01-05277
to testify so as to raise a single issue of material fact with
regard to the referral issue. Rather Morvant has presented his own
"stipulation" and various scientific articles that discuss in
general the "uncertainty" of AIDS' causes, treatment and cure.
Indeed, at Paragraph 18 of Morvant's Statement of Contested Facts,
Morvant has "disputed" the statement that "it is a certainty that
as long as a dentist utilizes universal precautions, HIV positive
patients may be safely treated in the dental office," Morvant
relied on two pages from the magazine Science, the May 1993
edition, wherein there is a general discussion of the uncertainty
surrounding AIDS. Simply stating that there is a dispute without
some competent evidence to support that position is not sufficient
to create an issue of fact where there is such overwhelming expert
testimony presented to the contrary.
        Morvant also provided the Court with his counsel's
interpretation of various disclaimers contained in a number of
materials published by the Association to stand for the proposition
that the Association "recognized as recently as 1992 that
specialized knowledge and protocols were necessary to provide
adequate treatment of HIV/AIDS individuals." (Memorandum in
Opposition to Government's Motion for Summary Judgment at 12)".
        Morvant also produced for the Court an Association
publication, "Patients with Human Immunodeficiency Virus (HIV)
Infection and Acquired Immune Deficiency Syndrome (AIDS)" published
                                15
01-05278
in June of 1993.1   In this publication, it is noted that in a
severely immunocompromised patient, an oral infection can become
life-threatening and that oral health care should be planned with
consideration. (Defendants' Exhibit 4 at 4). It further states
that:
        HIV-infected patients can safely receive dental care.
        Timing or extent of the treatment plan may need to be
        modified according to the immunologic and hematologic
        status and general medical condition of the patient.
Id. at 5. Finally at 9 of the same document, the paper continues:
        The potential exists for complications resulting from
        dental treatment in hematologically (granulocytopenia,
        anemia, thrombocytopenia) or immunologically compromised
        patient with HIV infection. These complications include
        delayed healing, postoperative infections, development of
        antibiotic resistant microbial strains and postoperative
        bleeding.
Id. at 9.
        These articles without a single affidavit or deposition
testimony of an expert stating that a referral was necessary or
justified and that the universal precautions were not enough simply
will not create a substantive issue of fact as required under the
rule. Furthermore, Morvant made no attempt to determine the
immunologic and hematologic status and general medical condition of
        1The Court notes that this article has not been presented in
conjunction with any expert testimony so as to be admissible or competent
evidence under Fed. R. Evid. 803(18), and thus questions its probative value
in creating an issue of fact in the context of a motion for summary judgment.
While every "inference" must be lodged in favor of the non-moving party, there
must be competent evidence to create the inference.
        Furthermore, many of the articles that provided the basis for this
publication as evidenced by the footnotes, were authored by Dr. Greenspan, the
expert provided by the Government who rejected Morvant's defenses.
                                16
01-05279
Pena or xxxxxxxx. Morvant has not rebutted the Government's
presentation. As stated in Fed. R. Civ. P. 56(e):
        When a motion for summary judgment is made and supported
        as provided by this rule, an adverse party may not rest
        upon the mere allegatins or denials of the adverse
        party's pleading, but the adverse party's response, by
        affidavits or as otherwise provided in this rule, must
        set forth specific facts showing that there is a genuine
        issue for trial. If the adverse party does not so
        respond, summary judgment, if appropriate, shall be
        entered against the adverse party.
Thus, the Court finds that the "referral" in this instance is
pretextual. He would not have "referred" these persons but for
their disability; there is no such thing as a "specialist" for
purposes of cleaning teeth.
        Direct Threat--Significant Risk
        As previously noted, Morvant's second defense is that because
of the "significant risk" of infection to his hygienists and Dr.
Morvant himself, Morvant is protected from these allegations of
discrimination based on 28 U.S.C. 12182(b)(3). However, the Court
believes that his invocation of this statute is pretextual as well.
        The Department of Justice has promulgated regulations found at
28 C.F.R.  26.208 discussing "direct threat" with respect to a
public accommodation. The regulation states:
        (a) This part does not require a public accommodation to
        permit an individual to participate in or benefit from
        the foods, services facilities, privileges, advantages
        and accommodations of that public accommodation when that
        individual poses a direct threat to the health or safety
        of others.
        (b) Direct threat means a significant risk to the health
        or safety of others that cannot be eliminated by a
                                17
01-05280
        modification of policies practices or procedures or by
        the provision of auxiliary aids or services.
        (c) In determining whether an individual poses a direct
        threat to the health or safety of others, a public
        accommodation must make an individual assessment, based
        on reasonable judgment that relies on current medical
        knowledge or on the best available objective evidence to
        ascertain: the nature, duration and severity of the risk;
        the probability that the potential injury will actually
        occur; and whether reasonable modifications of policies,
        practices, or procedures will mitigate the risk.
        (emphasis added).
These factors codify the standard enunciated by the United States
Supreme Court in School Board of Nassau County, Fla. v. Arline, 480
U.S. 273, 107 S. Ct. 1123, 94 L.Ed.2d 307 (1987) in which the court
found that a person suffering from tuberculosis can be a
handicapped person within the meaning of Section 504 of the
Rehabilitation Act of 1973.
        From the record as it stands, Dr. Morvant did not attempt any
type of "individual" assessment. Neither he nor his staff examined
either Pena or xxxxxxxx's mouths. With respect to the
individuals named, the knowledge that they were immunocompromised
lead Morvant to "refer" them out of his office.
        Furthermore, as cited above, there is a plethora of expert
testimony presented by the Government in conjunction with this
motion that while HIV and AIDS present a severe risk of infection,
the severity of which is unquestioned--death at this time--the
universal precautions as prescribed by the CDC are universally
accepted as "reasonable modifications" of practices that will
significantly mitigate the risk. These "reasonable accommodations"
were well known at the time Dr. Morvant refused to treat these
                                18
01-05281
patients and were substantially utilized by Morvant. (Plaintiff's
Exhibit 5, Answers to Plaintiff's Interrogatories (First Set), Nos.
6 and 8). Dr. Morvant again has failed to present to the Court
any expert testimony or specific competent evidence that would
create a question of fact with regard to this issue. Thus, the
refusal to treat because of the danger was pretextual in nature.
        Finally, the Court must deal with Morvant's protestation that
he had not kept up with the literature and training necessary to
treat these types of patients. He stated in his stipulation:
        Dr. Morvant had not kept abreast of all recent
        developments in the dental treatment of HIV-positive/AIDS
        individuals and in the prevention of transmission of the
        HIV virus, so he considered the treatment of HIV-
        positive/AIDS individuals to be outside of his area of
        expertise.
        Dr. Morvant then presents the Court with argument that
presents ignorance as a defense. However the regulations
themselves preclude this defense. Dr. Morvant is required to base
his decision with respect to risk on "current medical knowledge or
on the best available objective evidence to ascertain" the risk
involved. 28 C.F.R.  36.208(c). Dr. Morvant chose to ignore
that information and in doing so ran afoul of the law as it now
stands.
        As so eloquently stated in Mayberry v. Von Valtier, 843
F.Supp. 1160, 1166 (E.D.Mich. 1994):
        One of the stated purposes of the ADA is "to provide a
        clear and comprehensive national mandate for the
        elimination of discrimination against individuals with
        disabilities." 42 U.S.C.  12101(b)(1). Congress
        specifically found that "individuals with disabilities
        continually encounter various forms of discrimination,
        including outright intentional exclusion [and] the
                                19
01-05282
        discriminatory effects of . . . communication barriers.
        . . " 42 U.S.C.  12101(a)(5). Given that statement,
        Congress appears to have intended the ADA to address the
        discriminatory effect of benign actions or inaction as
        well as intentional discrimination.
        While these statements were made in the context of the hearing
impaired and with regard to the burden of proof to be applied in an
ADA case, there is no reason for their not being equally applicable
to an AIDS or HIV-positive individual where such blatant
discrimination as demonstrated by Morvant is presented. This is
not to say that his was not of the benign character; however, the
Congress has spoken to this issue. A law is in place that protects
these individuals from discrimination and to find that Morvant's
actions were not prohibited under this statute because of his own
purposeful ignorance would allow the rule to be swallowed by the
exception. This Court will not embark on a judicial disembowelment
of the statute.
                        DEFENDANT'S MOTION TO DISMISS
        Morvant has moved the Court pursuant to Fed. R. Civ. P.
12(b)(1)(c) (sic) that:
        to the extent Title III of the Americans with
        Disabilities Act of 1990 prohibits the professional
        referrals made by defendants, the Americans with
        Disabilities Act is unconstitutional as regulating
        activities outside of the scope of the Commerce Clause
        and of the Fourteenth Amendment to the United States
        Constitution.
As Congress has not invoked the Fourteenth Amendment with respect
to Title III of the ADA, the Court will only address its
                                20
01-05283
constitutionality under the Commerce Clause of the Constitution,
U.S. Const., art. I,  8, cl. 3.
        Morvant specifically argues that the ADA cannot
constitutionally prohibit them from following a policy of refusing
routine dental care and allowing them to "refer" such individuals
"to a health care provider who had made a study of HIV infection
and its treatment and who accepted such referrals." Defendants
claim that this is "inconsistent with the normal physician/patient
relationship." (Memorandum in Support of Motion to Dismiss at 5).
Therefore, because the ADA interferes with that exercise of
Morvant's professional judgment, the ADA cannot rationally further
the nations' proper goals of affording individuals with
disabilities the equal opportunity to receive medical treatment.
        A court may consider only the following criteria when deciding
whether a federal statute operates within the constitutional
authority granted under the Commerce Clause:
        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, 494 U.S. 1, 17 (1990)
(citing Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc.,
452 U.S. 264, 276 (1981)).
        Morvant in his Response to Plaintiffs' Second Request for
Admission No. 17 and 20 admits to activities which under Katzenbach
v. McClung, 379 U.S. 294, 296-97 (1964) and Pinnock v. International
House of Pancakes Franchisee, 844 F. Supp. 574, 579
                                21
01-05284
(S.D. Ca. 1993), affect interstate commerce and subjects Morvant to
liability under Title III of the ADA. Thus, the thrust of
Morvant's argument is that the Act is unconstitutional because it
prohibits those referrals made by Morvant. As discussed above, the
Act does not prohibit all referral; however, the referral under the
ADA is permitted:
        1) if the treatment being sought is outside the referring
           provider's area of specialization; and
        2) 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.
The Court cannot find that these restrictions somehow make the
ADA's prohibitions such that there is "no reasonable connection
between the regulatory means selected and the asserted ends."
Hodel v. Indiana, 452 U.S. 314, 323-324, 101 S. Ct. 2376, 2383, 69
L.Ed.2d 40 (1981). Indeed, without such restrictions, the
exception would again swallow the rule because the type of
pretextual "referral" at issue herein would be permitted.
        The Court finds the Motion to Dismiss to be meritless.
                                ENFORCEMENT
        The parameters of the authority of the Court in a civil action
are outlined in 42 U.S.C.  12188(b)(2) 9. Having reviewed the
        9The statute states:
        (2) Authority of court
        In a civil action under paragraph (1)(B), the court --
           (A) may grant any equitable relief that such court considers to be
           appropriate, including, to the extent required by this subchapter--
              (i) granting temporary, preliminary, or permanent relief;
                                22
01-05285
record, having considered the facts of the case, and taking into
consideration what relief the Court finds appropriate, the Court
will order that:
    1) Defendants be enjoined from refusing to provide treatment to persons
       with HIV or AIDS, on the basis of their HIV positive status;
    2) Defendants be enjoined from having a blanket policy of "referring" out
       all people with HIV or AIDS to Dr. Creely Sturm or other general
       dentists;
    3) Defendants be required to adopt and post a policy of non-discrimination
       on the basis of disability, including HIV and AIDS;
    4) Defendants and their staff be required to undergo training concerning
       HIV and the practice of dentistry;
                (ii) providing an auxiliary aid or service, modification of
                policy, practice, or procedure, or alternative method; and
                (iii) making facilities readily accessible to and usable by
                individuals with disabilities;
           (B) may award such other relief as the court considers to be
           appropriate, including monetary damages to persons aggrieved when
           requested by the Attorney General; and
           (C) may, to vindicate the public interest, assess a civil penalty
           against the entity in an amount--
                (i) not exceeding $50,000 for a first violation; and
                (ii) not exceeding $100,000 for any subsequent violation.
        (3) Single Violation
            For purposes of paragraph (2)(C), in determining whether a first
        of subsequent violation has occurred, a determination in a single
        action, by judgment or settlement, that the covered entity has engaged
        in more than one discriminatory act shall be counted as a single
        violation.
        (4) Punitive damages
            For purposes of subsection (b)(2)(B) of this section, the term
         "monetary damages" and "such other relief" does not include punitive
         damages.
        (5) Judicial consideration
            In a civil action under paragraph (1)(B), the court, when
         considering what amount of civil penalty, if any is appropriate,
         shall give consideration to any good faith effort or attempt to
         comply with this chapter by the entity. In evaluating good faith, the
         court shall consider, among other factors it deems relevant, whether
         the entity could have reasonably anticipated the need for an
         appropriate type of auxiliary aid needed to accommodate the unique
         needs of a particular individual with a disability.
                                23
01-05286
        5) a hearing on the issue of damages to Ismael Pena and
           xxxxxxxx will be held on May 17, 1995 at 9:30 a.m.
                                CONCLUSION
        The ADA is aimed at protecting persons with disabilities. As
stated in relation to the Rehabilitation Act, which in the Court's
belief is equally applicable here, "discrimination against the
handicapped was perceived by Congress to be most often the product,
not of invidious animus, but rather of thoughtlessness and
indifference of benign neglect." Alexander v. Choate, 469 U.S.
287, 295, 105 S. Ct. 712, 717, 83 L.Ed.2d 661 (1985). Certainly
here, Morvant chose the road of benign neglect which has been
blocked by Congress by the ADA. The Court will not judicially
tamper with the law. Accordingly,
           IT IS ORDERED that:
        1. The United States' Motion for Summary Judgment is GRANTED
           rendering MOOT defendant Morvant's Motion for Summary;
        2. Morvant's Motion to Dismiss is DENIED;
        3. Defendants be enjoined from refusing to provide treatment
           to persons with HIV or AIDS, on the basis of their HIV
           positive status;
        4. Defendants be enjoined from having a blanket policy of
           "referring" out all people with HIV or AIDS to Dr. Creely
           Sturm or other general dentists;
        5. Defendants be required to adopt and post a policy of non-
           discrimination on the basis of disability, including HIV
           and AIDS;
                                24
01-05287
        6. Defendants and their staff be required to undergo
           training concerning HIV and the practice of dentistry;
           and
        7. a hearing on the issue of damages to Ismael Pena and
           xxxxxxxx will be set at a status conference to
           be held telephonically on April 7, 1995 at 9:30 a.m.
        New Orleans, Louisiana, this 22nd day of March, 1995.
                                      (Signature)
                                   _________________________________
                                        STANWOOD R. DUVAL, JR.
                                     UNITED STATES DISTRICT JUDGE
                                25
01-05288
                        Department of Justice
FOR IMMEDIATE RELEASE                                                   CR
MONDAY, OCTOBER 4, 1993                                     (202) 616-2765
                                                        TDD (202) 514-1888
                JUSTICE DEPARTMENT SUES TWO DENTAL OFFICES
              FOR FAILURE TO TREAT PATIENTS WITH HIV AND AIDS
        WASHINGTON, D.C. -- In its first lawsuits to stop
discrimination against people infected with the AIDS virus, the
Justice Department today sued dental offices in Houston and New
Orleans.
        The suits were brought under Title III of the Americans with
Disabilities Act which prohibits discrimination on the basis of
disability in places that do business with the public.
        "These lawsuits demonstrate that discrimination against
people with HIV and AIDS will not be tolerated," said Attorney
General Janet Reno. "Such discrimination is based on unfounded
fear and factual misunderstandings. There is no medical or legal
justification for discrimination against HIV-positive
individuals, especially in health care."
        Today's actions were filed against Castle Dental Center, a
chain of dental and orthodontic facilities in Houston, Texas, and
Dr. Drew B. Morvant, a dentist who practices in New Orleans,
Louisiana.
                                (MORE)
01-05289
                                - 2 -
        The complaint against Castle Dental Center, filed in Federal
District Court in Houston, asserted that in 1992 it refused to
continue treating a patient once it became aware that he was HIV-
positive. The patient, who had received orthodontic treatment
for eight months, received a letter which read: "Due to the
recent discovery of your health problems, Castle Dental Center
has decided to cease providing you with orthodontic treatment."
        In the other case, filed in Federal District Court in New
Orleans, the Justice Department alleged that a dentist denied
dental services to two men, both of whom were informed that the
office does not treat HIV-positive patients. One of the men
recently died of AIDS.
        The American Dental Association has indicated that there is
no medical or scientific justification for excluding persons with
HIV or AIDS from dental treatment, solely on the basis of their
HIV-positive status. The federal government's Centers for
Disease Control and Prevention (CDC) has consistently stated that
HIV infected patients must not be denied medical care.
        Both the CDC and the American Dental Association recommend
the use of infection control procedures known as "Universal
Precautions" to prevent the transmission of bloodborne diseases,
including HIV, in the health care setting. The Occupational
Health and Safety Administration requires that Universal
Precautions be used in all dental facilities. According to the
American Dental Association, the use of the Universal Precautions
                                (MORE)
01-05290
                                - 3 -
reduces the risk of HIV transmission to an "infinitesimal"
degree.
        The Justice Department seeks an order requiring the dental
offices to change their policies and provide complete and equal
services to persons with HIV and AIDS. It also seeks civil
penalties in each action, as well as compensatory damages for the
three men who were refused treatment.
                                ####
93-299
                                (MORE)
01-05291