LEGAL GUIDANCE/APRIL 1995 ISSUE

Since the Navy began awarding contracts for healthcare services, the
question of how to deal with contract healthcare workers who become
afflicted with an infectious disease, such as Acquired Immune
Deficiency Syndrome (AIDS), has remained unresolved. What are the
rights of the Government as it tries to protect its beneficiaries?
What are the rights of the healthcare worker to privacy and to
continue to practice his/her profession? A recent case involving the
Federal Bureau of Investigation (FBI) and a contract facility, Doe v.

Attorney General of U.S., 34 F.3d 781 (9th Cir. 1994), offers some
clues as to the rights and obligations of each party.

Doe, who died in 1992, was a physician and director of a health
facility in San Francisco, between 1984 and 1988. The facility held a
contract to perform pre-employment physical examinations and annual
physical examinations for FBI agents. Virtually all of the
examinations--anal, vaginal, and oral cavity--were performed by Doe.
Under the contract, the FBI paid the facility a fee for each
examination performed. Doe's salary was based in part upon how many
examinations he performed.

An FBI agent was informed by an unnamed source that Doe had Kaposi's
Sarcoma, a malignancy consisting of darkened skin lesions which is
associated with the AIDS infection. In an attempt to verify the
information and the medical risks which might exist from Doe
performing the physical examinations, the FBI questioned the facility
as to whether a staff member had AIDS or Kaposi's Sarcoma. The
facility neither confirmed nor denied the allegation. Instead, it
informed the FBI that there were no medical risks involved because the
facility adhered to standard infection control procedures. The FBI
felt the response was inadequate, and, shortly thereafter,
discontinued referring patients to the facility.

Doe first filed an action against the FBI alleging violations of
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and of
his privacy rights under the due process clause of the Fifth Amendment
of the U.S. Constitution. Within Doe's complaint, he had admitted that
he was afflicted with AIDS. Following a leak to the press, it became
widely known that Doe did in fact have AIDS and that several agents
had been examined by Doe.

At the time this suit was filed, this statute provided in general
that, "No otherwise qualified individual with handicaps ... shall,
solely by reason of his or her handicap, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance or under any program or activity conducted by any
Executive Agency."


The District Court found that Doe did not pose a significant risk of
infection during routine physical examinations if he followed
appropriate medical procedures, which in fact he did. After the
District Court issued a preliminary injunction, the FBI continued to
contract with Doe's facility, but also gave agents a choice of two
other facilities to attend for their physical examinations. As a
result, Doe's income decreased substantially.

The case was then appealed to the U.S. Court of Appeals for the Ninth
Circuit, Doe v. Attorney General, 941 F.2d 780 (9th Cir. 1991). The
Ninth Circuit held that Doe could maintain private claims against the
United States because the District Court recognized that Doe was a
"handicapped individual" under Section 504 because he had AIDS, and
that all but the claim for damages were rendered moot because Doe had
resigned from the facility. The case was returned to the District
Court for a decision on whether the FBI was liable to Doe under the
Act.

On remand, the District Court found that Doe and the facility gave
only conclusory answers to the FBI's questions concerning risk during
physical examinations, so that the FBI was unable to tell whether its
agents were at risk. The District Court concluded that the FBI was not
liable to Doe because, "(i)f a plaintiff doctor will not allow the
inquiry necessary to determine whether his disease poses a significant
risk to patients, he is not ‘otherwise qualified' for employment."

Following Doe's death, the executor of his estate appealed the
District Courts judgment, denying Doe's claim for damages. Whether a
person with an infectious disease is "otherwise qualified" will
require individualized inquiry into the nature, duration, and severity
of the risk, as well as "the probabilities the disease will be
transmitted and will cause varying degrees of harm." Due to the fact
that this case was an action for damages, the inquiry into whether Doe
could make out a case that he was "otherwise qualified" depended on
(1) whether the inquiry the FBI agents made was sufficient for the
U.S. Courts of Appeals to view their actions as being based on fact
rather than misinformed stereotype, and, if this inquiry was
sufficient, (2) whether the information available to the FBI indicated
that Doe was in fact "qualified." Based on the knowledge that was
available to the FBI, it was permissible for the FBI to insist on
answers to its questions about such risks and prevention. Since the
requested information was not forthcoming, the only other way to try
to find out if there might be a risk was to insist directly on knowing
whether Doe had AIDS. The Act permits an employer to make inquiry
about an individual's disability if the information sought is relevant
to his ability to do the job or to the safety of patients or
coworkers.

Point of contact at NAVMEDLOGCOM is Mr. John R. Osing, Jr., Office of
Counsel, who may be reached at (301) 619-2157 or by DSN at 343-2157.