If Your Doctor's Drunk, Thank Disabilities Act

• "Substance abusers" are practicing medicine and serving as judges. And you have no right to know who they are.

Being a drunk or dope addict is a "disability" protected by the Americans With Disabilities Act (ADA), according to a federal court and the Justice Department.

It is illegal to discriminate" against those with a history of alcoholism or drug addiction in the employment of heart transplant surgeons or lawmaking judges.

Although a New Jersey case involved physicians. The ruling would apply to 'any other professional boards,' said Mark Herr, director of the state's Division of consumer Affairs.

The Justice Department had entered the case, arguing that asking physicians about current alcohol, drug or mental problems was in violation of the ADA. Justice cited its own ADA regulation:

A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability ... unless such a criteria can be shown to be a necessity ...

The U.S. District Court said questions could be posed concerning drugs and alcohol addiction and mental disorders but the responses could not be used in determining whether to grant an applicant's license.

"It would do little good to be able to ask questions if we were to be foreclosed from following up on the responses which raised concern," Herr told the House Judiciary committee's Constitution subcommittee on May 22.

MIND YOU OWN BUSINESS

Negotiations with the Justice Department were futile, he said.

The Justice Department said "any question asking about impairments must be limited only to current conditions and ongoing substance abuse problems as perceived by the applicant," Herr said.

Alcoholics rarely "perceive" their own disability, Herr said, making the application screening process still more futile.

The New Jersey case was settled when the board accepted revisions in its application process dictated by the court and Justice Department.

But the results of such restrictions on a state board's ability to question applicants for licensure can be disastrous, said Dr. Ray Baumgarner of the Federation of State Medical Boards of the United States.

Baumgarner cited numerous instances of practitioners remaining free from alcohol or drugs for periods ranging up to 13 years, only to relapse. He told of "Dr. A" who had been in and out of drug rehabilitation.

"Dr. A soon became famous -- or infamous -- as the anesthesiologist who caused more than 200 patients to endure surgery without painkillers while he used the medications to feed his own drug habit," Baumgarner said.

Another case was cited in a "position paper" submitted to the panel by the Mississippi State Board of Medical Licensure:

"In a recent case, the board revoked a physician's license for sexually exploiting a female patient. The sexual exploitation included sadomasochistic behavior which was found to be extremely harmful to the patient.

"It was determined that the physician had been treated in the past for sexual addiction. Had the Mississippi board known of this individual's past difficulties, his application for a license could have been denied.'

Lewis Massey, Georgia secretary of state, asked the lawmakers to "consider this scenario:

"You are involved in a serious auto accident. Your are brought into the emergency room and you recover just long enough to look up at a practitioner holding a scalpel over you.

"Do you take more comfort in knowing that the ADA protected that individual from answering burdensome questions?" he asked.

Court determinations and federal interpretations of the ADA may have similarly prevented states from adequately screening judgeship candidates, witnesses said.

U.S. District Judge Daniel Hurley ruled in West Palm Beach, Florida that in Screening potential judges, panels could not inquire into whether they have suffered mental impairments or been addicted to alcoholic beverages.

The ruling, in which the court sided with the American Civil Liberties Union, is being appealed.