Westchester County Medical Center, DAB CR191 (1992)

WESTCHESTER COUNTY MEDICAL CENTER, RESPONDENT.

Docket No. 91-504-2

Decision No. CR191

April 20, 1992

DECISION

The United States Department of Health and Human Services (the Department)
charged Respondent, Westchester County Medical Center (Respondent), with
violating Section 504 of the Rehabilitation Act of 1973 (Act), 29 U.S.C. Sec.
794(a), and its implementing regulations, 45 C.F.R. part 84. The Department
seeks as a remedy termination of all federal financial assistance to
Respondent.
Respondent timely requested a hearing. Prior to the hearing, Lambda Legal
Defense and Education fund, Inc. (Lambda) requested to participate in the case
as amicus curiae. Respondent opposed the request. I granted Lambda's request,
but limited its participation in the case to suggesting questions for me to
ask at the hearing and to submitting posthearing briefs and proposed findings
of fact and conclusions of law. 45 C.F.R. Sec. 81.22(b).
I held a hearing in New York, New York, from August 5 - 12, 1991. The
parties and Lambda timely complied with the posthearing briefing schedule
which I established.
I have carefully considered the applicable law, the evidence adduced at the
hearing, and the posthearing briefs and proposed findings and conclusions
submitted by the parties and Lambda. I conclude that Respondent has engaged
and continues to engage in unlawful discrimination. I order that federal
financial assistance to Respondent be terminated until such time as Respondent
satisfies the Department that it is in compliance with the Act.

ISSUES

The issues in this case are whether:
1. Respondent is engaging in unlawful discrimination in violation of
section 504 of the Act; and
2. Whether all federal financial assistance to Respondent must be
terminated until such time as Respondent satisfies the Department that it is
in compliance with section 504 of the Act.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

As a convenience to the parties, I have organized the following Findings of
Fact and Conclusions of Law (Findings) by subject headings. The headings are
not Findings and they do not alter the meaning of my Findings.
A. The complaining party, John Doe
1. The complaining party, John Doe (Doe), is a graduate of the Johns Hopkins
University (B.A. in Natural Sciences) and the University of Rhode Island (B.S.
in pharmacy) and is a licensed pharmacist who is registered to practice
pharmacy in the State of New York. DHHS Ex. 1/ 40, /412. [FN1]
2. Doe is infected with the Human Immune Deficiency Virus (HIV). DHHS Ex.
1/132; I define HIV in Finding 61.
8. Respondent, Westchester County Medical Center
3. Respondent is a hospital and medical care center that annually treats
over 22,000 inpatients and 100,000 outpatients and provides about 212,000 days
of patient care. Tr. at 23, 910, 1298.
4. Respondent is a tertiary and acute care medical center serving a seven-
county area of New York State known as the mid-Hudson Valley Region. Tr. at
910, 1299.
5. A tertiary care institution is an institution which provides
technologically advanced medical care which could not be provided at a smaller
community facility. Tr. at 910 - 911.
6. Respondent has approximately 655 acute care and specialty beds and 400
extended care beds. Tr. at 1298.
7. Respondent serves a general medical and surgical population. Respondent
has an open-heart surgery center; it provides organ transplant services; and
it operates a comprehensive cancer care center, a pediatric intensive and
critical care unit, a regional neonatal unit, a hemodialysis unit, and a Level
I trauma center. Tr. at 910 - 911, 1300 - 1302.
8. Approximately 60 percent of Respondent's patients receive items or
services which are reimbursed by either Medicare or Medicaid. Tr. at 24.
9. Respondent's annual budget is $252 million. Respondent receives about
$107 million annually, or more than 40 percent of its total budget, from
federal funds. Tr. at 24, 1299.
C. Respondent's Pharmacy operations and the duties of pharmacists employed
by Respondent
10. Respondent maintains a pharmacy department, which is divided into a main
pharmacy and six satellite pharmacies. DHHS Ex. 7/906 - 908; Tr. at 919 - 924.
11. Respondent's satellite pharmacies are located both in Respondent's main
hospital building and in other buildings which are part of Respondent's
operations. DHHS Ex. 7/906 - 908; Tr. at 919 - 924.
12. Respondent's main pharmacy operates twenty-four hours a day, seven days
a week; the satellite pharmacies operate on varying schedules. DHHS Ex. 7/908
- 909; Tr. at 928.
13. Respondent's pharmacies are open 365 days a year. Tr. at 928.
14. Respondent does not permit patients access to satellite pharmacies. DHHS
Ex. 9/1154.
15. Respondent's main pharmacy is involved in the entire range of pharmacy
activities provided by Respondent including the preparation of parenteral
products and' bulk intravenous (IV) supplies. Tr. at 919.
16. "Parenteral products" are those pharmaceutical products that are
administered to a patient by injection. Tr. at 154.
17. Respondent's satellite pharmacies include pharmacies that serve oncology
patients, bone marrow transplant patients, renal transplant patients, general
medical and surgical patients, and pediatric patients. Tr. at 921.
18. Respondent's oncology and pediatric satellite pharmacies are located
directly adjacent to patient care facilities. Tr. at 922 - 923.
19. Respondent also maintains a psychiatric care satellite pharmacy which is
located in a building separate from Respondent's main facility. Tr. at 923.
20. Respondent also maintains satellite pharmacies in its nursing home
operation and correctional health facility. Tr. at 921.
21. Respondent employs 40 pharmacists, including supervisors. Tr. at 918.
22. The duties of all pharmacists employed by Respondent, including
supervisors, include preparation of pharmaceutical products. DHHS Ex. 27; Tr.
at 918.
23. Pharmacists who work for Respondent may be required to work at either
Respondent's main pharmacy or at any of Respondent's satellite pharmacies. Tr.
at 926.
24. A fern pharmacists who work for Respondent have agreed to accept
permanent work assignments in a specific area in Respondent's facilities. Tr.
at 927.
25. Most of the pharmacists who work for Respondent are trained to work in
every area of Respondent's pharmacy operations and are rotated regularly
through all of Respondent's pharmacies. Tr. at 927.
26. Respondent's pharmacists are assigned to work one of three shifts: eight
am. to four p.m., four pm. to midnight, and midnight to eight am. DHHS Ex.
7/909; Tr. at 927.
27. Respondent assigns only one pharmacist to work on the midnight to eight
a.m. shift. DHHS EX. 7/909 - 910; Tr. at 928.
28. The duties of a hospital pharmacist at Respondent'S facilities include
reviewing physicians' orders to identify potential errors in dosages, drug
interactions, or allergies. DHHS Ex. 27; Tr. at 925.
29. The duties of a hospital pharmacist at despondent's facilities include
preparation of pharmaceutical products to be dispensed to patients. DHHS Ex.
27; Tr. at 918, 926.
30. Pharmacists who work for Respondent on the midnight to eight am. shift
routinely are asked to fill prescriptions for parenteral products. Tr. at 928.
31. It would be difficult for Respondent to employ a pharmacist who is
unable to fill prescriptions for parenteral products on the midnight to eight
a.m. shift, because preparation of such products is a part of the duties of
the pharmacist who is assigned to that shift. Tr. at 929.
32. Respondent could not employ a pharmacist who is unable to fill
prescriptions for parenteral products on the midnight to eight am. shift
without also employing another pharmacist on that shift who is capable of
filling such prescriptions. Tr. at 929.
33. preparation of parenteral products by pharmacistS employed by Respondent
involves the use of needles and syringes to transfer substances from one
container to another. R. Ex. 145; R. Ex. 145A; R. Ex. 1458; Tr. at 1054.
34. The process of preparing parenteral products by pharmacists employed by
Respondent involves the use of various sizes of needles ranging from
comparatively large 18-gauge needles to comparatively small 25-gauge needles.
R. Ex. 145; R. Ex. 145A; R. Ex. 1458; Tr. at 940 - 941, 1054, 1056.
35. In the course of preparing parenteral products, pharmacists employed by
Respondent will insert needles through protective barriers and draw substances
into syringes. R. Ex. 145; R. Ex. 145A; R. Ex. 1458; Tr. at 1054.
36. In the course of preparing parenteral products, pharmacists employed by
Respondent will insert needles attached to syringes containing substances
through protective barriers, into containers, and inject the contents of the
syringes into those containers. R. EX. 145; R. Ex. 145A; R. Ex. 1458; Tr. at
1057.
37. The process of preparing parenteral products at Respondent's pharmacies
may include repetitive use of needles and syringes to transfer substances from
one container to another. R. Ex. 145; R. Ex. 145A; R. Ex. 1450; Tr. at 1061 -
1062.
38. Parenteral I products prepared at Respondent' s pharmacies consists of a
range of products, including nutritional substances and oncology drugs. Tr. at
926.
39. Preparation of parenteral products at Respondent's pharmacies sometimes,
but not always, involves the wearing of gloves by pharmacists who prepare the
parenteral products. Tr. at 943 - 944.
40. Some oncology drugs contain toxic substances, and pharmacists who
prepare these drugs take precautions against coming into contact with them,
including wearing gloves during preparation of the drugs. Tr. at 944.
D. Aseptic preparation of parenteral products
41. An objective ascribed to by pharmacists in preparing parenteral products
is that the products be free of all living organisms and pyrogens, which are
usually bacterial toxins capable of causing a fever. DHHS Ex. 71/4 - 5; DHHS
Ex. 71A; Tr. at 744 - 745.
42. An objective also ascribed to by pharmacists in preparing parenteral
products is that the products be relatively free of particles. DHHS Ex. 71/4i
DHHS Ex. 71A.
43. pharmacists employ aseptic technique in the preparation of parenteral
products to assure that these products are free of living organisms and
pyrogens and are relatively free of particles. DHHS Ex. 71/5; 71A; Tr. at 744
- 745.
44. "Aseptic technique" means the technique of preparing parenteral products
without introducing contaminants. Tr. at 722.
45. Proper aseptic technique involves the use of laminar flow hoods to
prevent contamination of parenteral products by airborne contaminants. DHHS
Ex. 71/7 - 12; DHHS Ex. 71A.
46. If used properly, laminar flow hoods remove nearly all airborne
contaminants from an environment. DHHS Ex. 71/12; DHHS Ex. 71A.
47. Proper hand washing by pharmacists to remove bacterial contaminants from
the skin is an element of aseptic technique in preparing parenteral products.
DHHS Ex. 71/12 - 13; DHHS Ex. 71A.
48. Aseptic technique also involves properly using syringes and needles.
DHHS 71/13; DHHS Ex. 71A.
49. To maintain sterility of a syringe, a pharmacist should not touch the
syringe tip or plunger. DHHS Ex. 71/14; DHHS Ex. 71A.
50. To maintain sterility of a needle, a pharmacist should not touch any
part of the needle. DHHS Ex. 71/15; DHHS Ex. 71A.
51. Aseptic technique also involves proper handling of vials and ampules.
DHHS Ex. 71/15 - 19; DHHS Ex. 71A.
52. Injectable medications are usually supplied in vials or ampules, each
requiring different techniques for withdrawal of medication. DHHS Ex. 71/15;
DHHS Ex. 71A.
53. A vial is a glass container with a rubber stopper secured by an aluminum
band. The rubber stopper is usually protected by a flip-top cap or aluminum
cover. DHHS Ex. 71/15 - 17; DHHS Ex. 71A.
54. In order to assure the sterility of the rubber stopper on a vial used in
the preparation of a parenteral product, the pharmacist must spray or swab the
vial with isopropyl alcohol. DHHS EX. 71/17; DHHS Ex. 71A.
55. Ampules must be properly handled by pharmacists to avoid contamination
of the products which they contain. DHHS Ex. 71/18 - 19; DHHS Ex. 71A.
56. pharmacists employed by Respondent utilize aseptic technique in their
preparation of parenteral products. A. Ex. 35; Tr. at 934, 939, 1082; Tr. at
1102, 1104-1105, 1114, 1126.
57. It is possible for a pharmacist to inadvertently stick himself or
herself with a needle while preparing parenteral products. Tr. at 936.
58. In order to comply with aseptic technique, a pharmacist who
inadvertently touches a needle or sticks himself or herself with a needle
should immediately discard the needle, the syringe to which the needle is
attached, and any product which he or she might have contaminated as a result
of having touched the needle or having stuck himself or herself. Tr. at 208,
782 - 783, 939.
E. AIDS, its cause, the ways in which it may be transmitted, and the risk of
contagon
59. Acquired Immune Deficiency Syndrome (AIDS) is a spectrum of diseases
which reflects severe immunosuppression caused by HIV. DHHS Ex. 2/527; Tr. at
44.
60. Infection by HIV produces a wide spectrum of consequences, with AIDS
representing the severe end of that spectrum. Tr. at 45.
61. HIV is a retrovirus that destroys T-4 lymphocytes, a type of white cell,
and causes a suppression of the normal immune system. Tr. at 45, 143.
62. Persons infected with HIV may develop opportunistic infections during
the course of their disease as a result of the weakening of their immune
systems by HIV. Tr. at 104.
63. Opportunistic infections which are developed by people infected with HIV
usually are caused by organisms which are latent within these persons' bodies
and not by organisms which they acquire through exposure to external sources
of infection. Tr. at 104 - 107.
64. Tuberculosis is one of the opportunistic infections which people
infected with HIV sometimes manifest. Tr. at 106 - 107.
65. There is no credible evidence to show that a person infected with HIV is
more likely to acquire tuberculosis from an external source than is an
individual who is not infected with HIV. Tr. at 108.
66. There are presently between 800,000 and one million individuals in the
United States who are infected with HIV. Tr. at 46.
67. It cannot be predicted reliably how long it will take for any individual
who is infected with HIV to develop AIDS; however, the average length of time
from infection to development of AIDS is ten years. Tr. at 144.
68. There is at least a 95 percent probability that an individual who is
infected with HIV will eventually develop AIDS and will die from the effects
of the disease. Tr. at 255, 418.
69. There are three known ways by which HIV may be transmitted between
individuals. They are:
a. parenterally, by the introduction of HIV into the bloodstream of an
uninfected person by transfusion or the sharing of contaminated intravenous
injection equipment (syringes and needles); b. through sexual contact; and c.
perinatally, from mother to fetus.
DHHS Ex. 2/519; DHHS Ex. 3/580; DHHS Ex. 45/1125; Tr. at 45 - 46.
70. HIV has not been shown to be transmissible through close personal
contact which does not involve any of the established methods of transmission.
DHHS Ex. 2/521; DHHS EX. 5/731 - 736; DHHS Ex. 44; DHHS Ex. 4s/1132; DHHS Ex.
174; Tr. at 402.
71. HIV has not been shown to be transmissible through the sharing of
implements which may bear traces of blood, such as toothbrushes and eating
utensils. DHHS Ex. 44/103, Table 2; DHHS Ex. 174/641, Table 3; Tr. at 403.
72. There exist documented episodes in which health care workers have
acquired HIV infection parenterally through injuries from needles or other
instruments which are contaminated with blood containing HIV. Tr. at 68.
73. The likelihood of a health care worker acquiring HIV infection after
having been injured by a needle or other instrument which is contaminated with
blood containing HIV is between .3 and .5 percent. Tr. at 68, 191, 422.
74. Whether or not an individual acquires HIV infection after having been
injured by a needle or other instrument which is contaminated with blood
containing HIV depends on variable factors which include the volume of blood
injected during the course of the in;ury, and the amount of HIV present in
that blood. Tr. at 192 - 193.
75. Studies have not been performed to determine how long HIV would survive
if added to parenteral products. Tr. at 202, 204, 1718; Tr. at 1606.
F. Accepted precautions to prevent transmission of HIV from health care
workers to patients
76. The Centers for Disease Control (CDC), located in Atlanta, Georgia, is
an agency of the Department of Health and Human Services whose
responsibilities include publishing guidelines and recommendations to be used
by health care providers and facilities in preventing the transmission of
disease. See DHHS Ex. 87.
77. CDC has published universal precautions for prevention of transmission
of HIV in health-care settings. DHHS Ex. 87; DHHS Ex. 201.
78. "Universal precautions" means precautions which are recommended to be
employed at all times by health care providers who come into contact with
blood and or blood products. Tr. at 48, 344.
79. CDC's conclusions as to the risks of HIV transmission by health care
workers are credibly based on the evidence available to it and on the analysis
of experts in disease transmission. DHHS Ex. 201; Tr. at 54-56.
80. Where health care providers follow universal precautions, and do not
perform invasive procedures, there is no risk that they will transmit HIV to
patients. DHHS Ex. 201; Tr. at 58.
81. Universal precautions for the prevention of HIV transmission by health
care workers includes sterilizing equipment that enters patients' vascular
systems or contacts patients' mucous membranes before use. DHHS Ex. 201.
82. "Invasive procedures" means procedures which cause a high degree of
trauma to a patient which could provide a portal for entry of a virus into the
patient'S body. "Invasive procedures" includes surgery, repair of major
traumatic injuries, and dental procedures. Tr. at 57-58.
83. Intramuscular injections, adding to intravenous solutions, or
withdrawing blood from patients are not invasive procedures. Tr. at 64.
G. Risks of transmission of HIV or opportunistic infections by hospital
pharmacists to patients in the performance of their duties
84. Hospital pharmacists do not perform invasive procedures in the course of
their duties. Findings 33-40; Tr. at 65 - 66.
85. Preparation of pharmaceutical products by pharmacists is not an invasive
procedure because it does not involve intrusion into a patient's body cavity.
Tr. at 66.
86. There has never been a reported case of transmission of HIV to a patient
by a pharmacist. Tr. at 71 - 72, 384, 785, 1133 1134.
87. It is extremely unlikely that a pharmacist could transmit HIV to a
patient in the course of the performance of his or her duties, because
pharmacists are not involved in direct patient care, including putting their
hands into patients' body cavities. Tr. at 72.
88. The Hepatitis B virus (HBV) is analogous to HIV in the manner in which
it infects individualS. Tr. at 56.
89. HBV is more easily transmissible from an infected to a non-infected
individual than is HIV. Tr. at 67.
90. The chances of an individual acquiring HBV from an injury involving an
HBV-contaminated instrument are approximately ten times greater than the
chances of an individual acquiring HIV from an injury involving an HIV-
contaminated instrument. Tr. at 67 - 68.
91. The likelihood that an HIV-infected health care worker would transmit
HIV in the course of the performance of his or her duties can be inferred from
studies which examine the incidence of transmission of HBV from infected
health care workers. DHHS EX. 201; Tr. at 67 68.
92. No incidence of transmission of HBV by a pharmacist to a patient in the
course of the performance of the pharmacist's duties has ever been documented.
Tr. at 72.
93. The risk for transmission of HIV from an infected health care worker to
a patient associated even with exposure-prone invasive procedures is so small
as not to be measurable. Tr. at 456.
94. An "exposure-prone invasive procedure" is an invasive procedure
involving manipulation of a sharp instrument by a health care worker within a
patient's body under circumstances where it is difficult for the health care
worker to see what he or she is doing. Tr. at 63.
95. It is not possible to infer from studies concerning the risks of
communication of HIV through the performance of invasive procedures, that
similar risks are posed by preparation of pharmaceutical products, because
pharmacists do not perform invasive procedures. Finding 87.
96. It is not beyond possibility that an HIV-infected pharmacist could
contaminate a parenteral product with his or her blood and thereby transmit
HIV to a patient. Tr. at 96.
97. In order for a patient to be infected with HIV acquired from a
parenteral I product contaminated by an HIV- infected pharmacist: (a) the
pharmacist must breach aseptic technique, and (b) the HIV which contaminates
the parenteral product must survive within that product long enough to infect
the patient. Tr. at 97, 240 - 241; Finding 75.
98. In order for a pharmacist to breach aseptic technique and contaminate a
parenteral product with his or her own blood he or she would either have to
disregard deliberately the product's contamination, or he or she would have to
contaminate the product unknowingly. Finding 58.
99. Although it is possible, it is extremely unlikely that a pharmacist
could, in the course of preparing a parenteral product, stick himself or
herself with a needle sufficiently to draw blood and not be aware of that act.
DHHS Ex. 16/1909; Tr. at 781, 783, 938-939.
100. St is not possible to conclude that HIV would survive in a parenteral
product long enough to infect a patient who is injected with that product,
because no studies have been made to determine whether HIV can survive in
parenteral products. Finding 75.
101. The possibility that a patient could acquire HIV from a parenteral
product that has been contaminated by an HIV-infected pharmacist is so small
as not to be measurable. Tr. at 240 - 243, 395, 406, 787 - 788; Findings 92 -
97.
102. The evidence does not establish that health care workers, including
pharmacists, who suffer from opportunistic infections pose a measurable risk
to communicate those infections to immunosuppressed patients. Tr. at 506.
H. Respondent's treatment of Doe's application for employment as a
pharmacist
103. Doe applied for employment with Respondent as a pharmacist in 1983 and
in 1985. DHHS Ex. 1/54, /58, /60; DHHS Ex. 21; DHHS Ex. 22; DHHS Ex. 7/917 -
918.
104. Doe's experience and education met Respondent's employment criteria for
pharmacists. DHHS Ex. 27; Finding 1.
105. In the fall of 1986, Doe was contacted on behalf of Respondent and was
advised that positions were opening in Respondent's pharmacy department. DHHS
Ex. 1/67; DHHS EX. 7/918.
106. Respondent's representative asked Doe if he was interested in becoming
employed as a pharmacist for Respondent. DHHS Ex. 1/67.
107. On October 7, 1986, Doe filled out another application for employment
with Respondent as a pharmacist. DHHS Ex. 1/72 - 73; DHHS Ex. 24.
108. On October 7, 1986, Doe met with despondent's representatives to
discuss the possibility of his becoming employed as a pharmacist by
Respondent. DHHS Ex. 1/75 - 76; DHHS Ex. 7/918.
109. Doe and Respondent's representatives discussed Doe beginning work as a
pharmacist at Respondent's main pharmacy and eventually performing assignments
which included rotating among Respondent's satellite pharmacies. DHHS Ex. 1/77
- 78, /93, /173.
110. The job duties discussed between Doe and Respondent's representatives
encompassed the entire scope of pharmacy practice at Respondent's facilities.
DHHS Ex. 1/98.
111. Respondent's representatives advised Doe that the pharmacist job
available to him involved working the shift which commenced at midnight and
ended at eight am. DHHS Ex. 1/79; DHHS Ex. 7/919.
112. The midnight to eight a.m. shift included a five percent pay
differential as additional compensation. DHHS Ex. 1/52, /175 - 176, /306 -
307; DHHS Ex. 25; Tr. at 1143.
113. Respondent's representatives advised Doe that they expected that, if
Respondent hired him, his employment would commence in the middle of November
1986. DHHS Ex. 1/89.
114. At the end of the October 7, 1986 meeting, a representative of
Respondent told Doe that there was no reason why she could not offer him a job
as a pharmacist at Respondent's facility. DHHS Ex. 1/91.
115. Doe resigned his position with another employer in anticipation of
being hired by Respondent. DHHS Ex. 1/49, /223 - 224.
116. On or about December 8, 1986, an employee of Respondent called Doe to
advise him that the start date of his employment with Respondent would be
December 15, 1986. DHHS Ex. 1/105 - 106, /179.
117. Doe was requested to schedule a pre-employment physical examination
with Respondent's personnel office. DHHS Ex. 1/106 - 115, /179.
118. On December 10, 1986, Doe received a pre-employment physical
examination at Respondent's facilities. DHHS Ex. 1/119, /145 - 146; DHHS Ex.
7/923.
119. The physician who examined Doe detected an enlarged cervical lymph
gland, and expressed some concern about it. DHHS Ex. 1/145 - 146.
120. Before leaving Respondent's facility on December 10, 1986, Doe met
again with the physician who had examined him. DHHS Ex. 1/155.
121. The physician told Doe that, based on medical records concerning Doe,
which had been obtained from Respondent's files, the physician concluded that
Doe suffered from Aids-Related Complex (ARC) and that he would not permit a
pharmacist with ARC to begin employment with Respondent. DHHS Ex. 1/160, /168;
DHHS Ex. 8/1024, /1033.
122. ARC is a term used to describe the condition of people who are infected
with HIV and who manifest some of the signs and symptoms of AIDS but who do
not manifest all of the signs and symptoms of AIDS. DHHS Ex. 5/716.
123. As of December 1986, Doe's personal physician had not diagnosed Doe to
be suffering from either ARC or AIDS. DHHS Ex. 1/220; DHHS Ex. 38.
124. An HIV seropositive status coupled with enlarged lymph nodes does not
support a diagnosis of ARC in the absence of other clinical signs or symptoms.
DHHS Ex. 5/717 - 718.
125. After the physical examination, Doe called Respondent's representative
to advise her that problems had arisen at his physical examination and that he
had not been approved to beg in employment with Respondent the following
Monday. DHHS Ex. 1/202 - 203; DHHS Ex. 7/ 923-924.
126. Respondent's representative advised Doe that she would assess the
situation and call Doe back. DHHS Ex. 1/203.
127. Respondent's representative did not call Doe back to report on her
findings. DHHS Ex. 1/203.
128. In late December 1986, Doe advised a physician employed by Respondent
that he had filed a complaint with the New York State Division of Human Rights
charging employment discrimination. DHHS Ex. 1/189, /191 - 192.
129. In February 1987, Respondent's attorney told the New York State
Division of Human Rights that, for medical reasons which Respondent considered
to be compelling, Respondent declined to hire Doe for the position of hospital
pharmacist. DHHS Ex. 37/1, /3; DHHS Ex. 101.
130. In November 1987, Respondent offered Doe employment as a pharmacist,
subject to restrictions. DHHS Ex. 54/1; Tr. at 1336.
131. Respondent offered to employ Doe as a pharmacist, but restricted his
work location to one of Respondent's satellite pharmacies. DHHS Ex. 54/1; Tr.
at 1336.
132. Respondent's employment offer to Doe would have precluded him from
preparing intravenous and hyperalimentation material. DHHS Ex. 54/1; Tr. at
1336.
133. Respondent's employment offer to Doe effectively would have precluded
him from working on the night shift because pharmacists who work on the night
shift are required to prepare intravenous products. Tr. at 1100; Findings 30 -
32.
134. Doe rejected this offer because it would have restricted him to a
satellite pharmacy and would have denied him the opportunity to perform the
full range of pharmacy practice. DHHS Ex. 1/392 - 394.
135. Respondent offered Doe restricted employment as a pharmacist at
Respondent's facilitieS. Findings 130-133.
136. Respondent offered Doe restricted employment as a pharmacist at
Respondent's facilities because of Doe's HIV-seropositive status and
Respondent's perception that Doe exhibited signs and symptoms of ARC. Findings
119-124, 129.
137. In offering Doe restricted employment as a pharmacist at Respondent's
facilities, Respondent's expressed concern was that Doe might, in the course
of unrestricted performance of his duties: (a) transmit HIV to a patient at
Respondent's facilities through contamination of a parenteral product with his
own blood or other body fluid; (b) transmit an infectious disease other than
HIV to an immunocompromised patient through direct contact with that patient;
or (c) acquire an infectious disease other than HIV from a patient through
direct contact with that patient. DHHS Ex. 14/1728; Tr. at 22.
138. The restrictions which Respondent proposes to place on Doe's duties as
a pharmacist would deprive Doe of the opportunity to perform the full range of
pharmacists' duties at Respondent's facilities. Findings 22 - 40.
139. The restrictions which Respondent proposes to place on Doe's duties as
a pharmacist would deprive Doe of the opportunity for advancement to a
supervisory position in Respondent's pharmacy operations. Findings 22 - 40.
140. The restrictions which Respondent proposes to place on Doe's duties as
a pharmacist would deprive Doe of the opportunity to earn differential pay for
work performed on the midnight to eight am. shift. Findings 27, 30-32, 112.
I. Procedural history of this case
141. On April 16, 1987, a complaint was filed on Doe's behalf with the
Department's Office of Civil Rights (OCR), alleging that Respondent had
discriminated against Doe on the basis of a handicap. DHHS Ex. 95.
142. Respondent answered the complaint by providing OCR with a copy of its
February 9, 1987 letter to the New York State Division of Human Rights. DHHS
Ex. 37/3; DHHS Ex. 101/3; Finding 129.
143. On March 23, 1990, OCR notified Respondent by a Letter of Findings that
OCR had concluded that Respondent had unlawfully failed to hire Doe on the
basis of a handicap. DHHS Ex. 136; Tr. at 644 - 647.
144. OCR advised Respondent that the corrective action it considered to be
necessary to resolve Respondent's alleged violation consisted of: an offer to
hire Doe as a hospital pharmacist at Respondent's main pharmacy with no
restriction on either his duties or his opportunity to transfer to another
pharmacy position on the same basis as any other pharmacist and compensation
for lost wages. DHHS Ex. 136.
145. Respondent did not agree to engage in the corrective action which OCR
stated to be necessary. DHHS Ex. 137 - 139; Finding 144.
146. On December 20, 1990, the Department commenced this action by filing an
administrative complaint against Respondent. Respondent timely requested a
hearing.
J. Conclusions of fact and law
147. This case is governed by section 504 of the Rehabilitation Act of 1973,
29 U.S.C. Sec. 794(a) (Act), by related legislation, and by regulations
contained in 45 C.F.R. parts 81 and 84.
148. It is unlawful under section 504 of the Act for a program or activity
receiving federal financial assistance to discriminate against an otherwise
qualified individual with a handicap, solely on the basis of his or her
handicap. 29 U.S.C. Sec. 794 Ca).
149. Respondent is a recipient of federal funds within the meaning of the
Act. Findings 8 - 9; 29 U.S.C. Sec. 794(a).
150. Doe's HIV infection affects his hemic and lymphatic systems and is a
physical impairment within the meaning of the Act. Findings 2, 59 - 68; 29
U.S.C. Sec. 706(8)(B); 45 C.F.R. Sec. 84. 3(j)(2)(i).
151. Doe's HIV infection substantially impairs his ability to perform major
life activities consisting of procreation and sexual contact. Findings 59 -
68; 29 U.S.C. Sec. 706(b); 45 C.F.R. Sec. 84.3(j) (2) (ii).
152. Respondent's records classify Doe as being infected with HIV. Finding
121.
153. Doe is classified as having an impairment which substantially limits
his performance of work and major life activities. Findings 152; 29 U.S.C.
Sec. 706(8)(B); 45 C.F.R. Sec. 84.3 (j)(2)(ii).
154. Respondent treated Doe's HIV infection as substantially limiting Doe's
ability to perform work. Findings 121, 129, 135 - 140.
155. Respondent regarded Doe as having an impairment which substantially
limits his performance of work and major life activities. Finding 154; 29
U.S.C. Sec 706(8)(B); 45 C.F.R. Sec. 84.3(j) (2) (iii).
156. Doe's performance of the full range of duties of hospital pharmacist at
Respondent would not, by reason of his infection with HIV, constitute a direct
threat to the health or safety of other individualS. Findings 11 - 58, 62 -
75, 79 - 102; 29 U.S.C.A. Sec. 706(8) (D) (West 1991).
157. Doe's performance of the full range of duties of hospital pharmacist at
Respondent would not, by reason of his infection with HIV, pose a significant
risk for the communication of HIV to employees or patients at Respondent.
Finding 156.
158. Doe is an "individual with handicaps" within the meaning of section 504
of the Act. Findings 150 - 157; 29 U.S.C. Sec. 706(8)(B); 29 U.S.C.A. Sec.
706(8)(D) (West Supp. 1991); 45 C.F.R. Sec. 84.3(j).
159. In denying Doe the opportunity to perform the full range of duties of
hospital pharmacist, Respondent discriminated against Doe within the meaning
of section 504 of the Act. Findings 121, 129 - 135, 138 - 140; 29 U.S.C. Sec.
794(a).
160. In denying Doe the opportunity to perform the full range of duties of
hospital pharmacist, Respondent discriminated against Doe solely by reason of
Doe's handicap within the meaning of section 504 of the Act. Findings 121,
129, 136 - 140; 29 U.S.C. Sec. 794(a).
161. The Department has been unable to secure Respondent's voluntary
compliance with the terms of the Act. Findings 141 - 145; 42 U.S.C. Sec.
2000d-1.
162. Respondent's discrimination against Doe is not limited to his case, but
is part of a policy to discriminate against HIV- infected employees in the
terms and conditions of their employment by Respondent. Tr. at 1093 - 1094,
1396 - 1399.
163. All programs at Respondent that are funded with federal financial
assistance are affected by Respondent's policy of discriminating against HIV-
infected employees. Finding 162.
164. All federal financial assistance to Respondent must be terminated until
it complies with all applicable requirements of section 504 of the Act. 29
U.S.C. Sec. 794(a); 42 U.S.C. Sec. 200 0d-1; 45 C.F.R. Sec. 80.8(c); 45 C.F.R.
Sec. 84.3(h).

ANALYSIS

The question which lies at the heart of this case is whether Respondent may
lawfully restrict the duties of a pharmacist who is infected with HIV by
precluding him from preparing parenteral I products (products which are
injected into patients) or from coming into direct contact with patients whose
immune systems are compromised. Respondent contends that the consequences of
HIV infection are So horrible -- consisting of nearcertain development of AIDS
and, eventually, death that it may impose legitimately what it deems to be
minima I job restrictions in order to avert even a remote possibility that the
pharmacist may inadvertently infect Respondent' s patients. The Department
contends that, in this case, fear and superstition must give way to a rule of
reason. It asserts that the chances of inadvertent communication of HIV by a
hospital-based pharmacist in the performance of his or her duties are So
minuscule as to be insignificant under the law. It argues that the employment
restrictions imposed by Respondent are not minimal, and that, given the
absence of meaningful risk of communication of HIV, the restrictions
constitute unlawful discrimination by Respondent.
1. Background
The complainant, Doe, is a registered pharmacist who is licensed to practice
in the State of New York. He possesses the training and credentials required
by Respondent of pharmacists whom it employs. Doe is infected with HIV. There
is no evidence that Doe has AIDS or any of the opportunistic infections that
are associated with the disease.
Respondent is a major hospital located in one of New York City's suburbs. It
receives substantial federal assistance both in the form of Medicare and
Medicaid reimbursement. It treats a variety of patients, including cancer and
surgical patients. It operates a main pharmacy and several satellite
pharmacies in its facilities. These pharmacies are open 24 hours a day, 365
days a year, and provide products which are administered to Respondent's
patients. Respondent's pharmacists do not directly treat patients, although
their duties sometimes bring them into contact with patients.
The items provided by Respondent's pharmacies include parenteral products.
The parenteral products which Respondent's pharmacists prepare consist of a
variety of subStanceS, including drugs used in the treatment of cancer, and
nutritional products. preparation of parenteral products by Respondent's
pharmacists involves their use of needles and syringes to transfer substanceS
between containers. parenteral products are usually prepared in the main or
satellite pharmacieS. They are then transported to patients where they are
administered by nurses or other hospital personnel.
Each of the 40 pharmacists employed by Respondent is trained to perform all
of the duties which Respondent'S pharmacists routinely perform, and this
includes preparing parenteral products. Respondent's supervisory pharmacists
also prepare items for consumption by patients, including parenteral products.
parenteral products are prepared on Respondent's midnight to eight am. shift,
and on the other shifts, as well. Any pharmacist who is assigned to work the
midnight to eight a.m. shift for Respondent must be capable of preparing
parenteral products, inasmuch as Respondent assigns only one pharmacist to
work that shift.
In October 1986, Respondent's representatives verbally offered to hire Doe
as a pharmacist. In discussing the job, Doe and Respondent's representatives
contemplated that Doe would be performing the full range of duties assigned to
pharmacists who work for Respondent. Respondent's representatives were unaware
that Doe was infected with HIV when they interviewed him for the job of
pharmacist. Respondent's offer of employment was conditioned on Doe passing a
preemployment physical examination. [FN2] At that examination, the examining
physician learned that Doe was infected with HIV. [FN3]
Doe never received a formal notification from Respondent, either to report
to work or that his application for employment had been rejected. In February
1987 Respondent's attorney advised the New York State' Division of Human
Rights that Respondent declined to hire Doe for medical reasons which it
considered to be compelling. Finding 129. In November 1987, after Doe had
filed complaints charging Respondent with unlawful discrimination, Respondent
offered Doe a position as a pharmacist. Finding 130. However, the offer
restricted Doe's employment to one of Respondent's satellite pharmacies.
Finding 131. It precluded Doe from preparing parenteral products. Respondent
has never subsequently offered to hire Doe without these restrictions on his
duties. Finding 132.
Section 504 of the Act provides that:
No otherwise qualified individual with handicaps . . . shall, solely by
reason of her or his 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 . .
29 U.S.C. Sec. 794(a).
There is no dispute that Respondent is a recipient of federal financial
assistance within the meaning of the Act. The dispute in this case centers
around the issues of whether Doe is an "otherwise qualified individual with
handicaps" who is therefore eligible for the protection under the Act, and,
assuming Doe meets the Act's definition of an "otherwise qualified individual
with handicaps," whether Respondent is discriminating against Doe solely by
reason of his handicap.
The Department argues that Doe is a handicapped individual who is legally
protected against employment discrimination. The Department contends that, in
denying Doe unrestricted employment, Respondent is unlawfully discriminating
against him based on his handicap. Respondent argues that Doe is not a
handicapped individual within the meaning of the Act. It premises its
contention in part on its assertion that Doe's infectious status presents a
direct threat for communication of HIV in the course of unrestricted
employment as a pharmacist. Respondent contends that it is lawfully balancing
Doe's right to employment without discrimination against its own patients'
rights to be free from the risk that Doe might, in the course of the
unrestricted performance of a pharmacist's duties, infect them with HIV. [FN4]
Respondent also argues that whatever restrictions it would place on Doe's
employment are minimal and do not rise to the level of acts constituting
discrimination under the Act.
2. Doe is an "individual with handicaps."
A central issue in this case is whether Doe is an "individual with
handicaps" as is defined by the Act. The Department must satisfy two statutory
tests to prove that Doe is an "individual with handicaps." First, the
Department must prove that Doe is an "individual with handicaps" under any one
of the Act's three general definitions of that term. Second, the Department
must also prove that Doe meets the Act's special definition of an "individual
with handicaps" which applies to an individual whose impairment consists of a
currently contagious disease or infection. In order to prove that Doe is
handicapped under the special definition, the Department must prove that Doe
does not pose a direct threat to communicate a disease to other individuals by
performing the unrestricted duties of a pharmacist at Respondent's facilities.
I find that the Department proved that Doe meets each of the three general
definitions of an "individual with handicaps." Doe has an impairment which
substantially limits one or more of his major life activities. He has a record
of such an impairment. He is regarded as being impaired.
I also find that the Department proved that Doe meets the special definition
of an "individual with handicaps" applicable to a person with a contagious
disease or infection. The Department proved that Doe would not be a direct
threat to communicate infectious diseases to other individuals in performing
the unrestricted duties of a pharmacist at Respondent's facilities.
a. Doe is an "individual with handicaps" within the meaning of the Act's
general definition of that term.
The Act generally defines an "individual with handicaps" to be a person who:
(i) has a physical or mental impairment which substantially limits one or
more of such person's major life activities, (ii) has a record of such
impairment, or (iii) is regarded as having such an impairment.
29 U.S.C. Sec. 706(8)(B). This definition has been incorporated in the
Department's implementing regulations. 45 C.F.R. Sec. 84.3(j)(1). The three
definitions of an "individual with handicaps" are alternative definitions. An
individual need only satisfy one of the three to meet the statutory test.
There is no dispute that Doe's HIV infection is a "physical impairment."
Regulations define a "physical impairment" as "any physiological disorder or
condition affecting one or more of the body systems, such as 'hemic' and
'lymphatic."' 45 C.F.R. Sec. 84.3(j)(2)( i). HIV is a virus which infects a
person's immune system including that individual's hemic and lymphatic systems
-- producing an impairment which leads to immunosuppression and opportunistic
infections. Findings 59 - 68.
The parties vigorously contest whether Doe's physical impairment meets any
of the three general definitions of a handicapping impairment. The Department
asserts that Doe meets all three of the definitions (although Doe needs only
to satisfy one of them to meet the statutory test). despondent contends that
the Department has failed to meet its burden to prove that Doe meets any of
the three definitions of an "individual with handicaps."
(1) Doe's HIV infection substantially limits one or more of his major life
activities.
The parties disagree whether Doe's HIV infection substantially limits one or
more of his major life activities. I find that, even though Doe's HIV
infection is asymptomatic, his infection substantially limits his ability to
engage in normal social relationships and procreation. These activities are
"major life activities" within the meaning of the Act and its enabling
regulations. Therefore, Doe is an "individual with handicaps."
The applicable regulation defines "major life activities" to include
functions such as caring for one's self, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working. 45 C.F.R. Sec.
843(j)(2)(ii). The regulation's use of the phrase "such as" to preface the
list of major life activities whose limitation would establish the presence of
a handicap evinces the secretary's intent to provide examples of such
activities. Other activities which are of a character similar to those listed
in the regulation also qualify as "major life activities."
The Department avers that asymptomatic infection with HIV substantially
limits a person's major life activities, thereby satisfying the test. The
Department argues that Doe's HIV infection, even though presently
asymptomatic, limits him in performing major life activities such as
socializing and procreation.
Respondent argues that the Department did not prove that Doe is
substantially limited by his HIV infection. Therefore, according to
Respondent, the Department did not prove that Doe has a handicapping
impairment. Respondent argues that, under both the Act and its implementing
regulation, a "major life activity" must relate to an individual's capacity to
perform work in order to qualify as an activity whose limitation would
demonstrate a handicap. Thus, according to Respondent, it is irrelevant that
Doe's HIV infection might inhibit his social interactions, his sexual
activity, or procreation.
Congress could logically have passed an Act, and the Secretary could have
adopted enabling regulations, which specified that limitations that qualify an
individual as handicapped must relate to that individual's ability to perform
basic work activities. However, the phrase "major life activities" plainly
subsumes a broader range of activities than activities which relate solely to
work. Furthermore, courts and the Justice Department have interpreted broadly
the definition of an "individual with handicaps" in cases involving
individuals who are infected with HIV.
The question of whether asymptomatic HIV infection substantially limits an
individual and is therefore a handicap within the meaning of the Act and
regulations has not been resolved definitively by the courts. However,
although this question has not been finally decided, the preponderant opinion
is that even asymptomatic infection with HIV imposes substantial limitations
on an infected individual's major life activities, thereby qualifying that
person as an "individual with handicaps."
The Supreme Court has held that a person who is infected with a contagious
illness may be handicapped within the meaning of the Act. School Bd. of Nassau
County v. Arline, 480 U.S. 273, reh'g denied, 481 U.S. 1024 (1987) (Arline).
However, the Supreme Court has not decided whether the presence of an
asymptomatic infection would establish an individual to be handicapped. Id. at
281 n.6 . In Arline, the discharged employee suffered from tuberculosis which
left her with diminished physical capacities. Id. The Supreme Court decided
that this individual was substantially limited by her infection, and was,
therefore, handicapped. The Supreme Court explicitly declined to address the
question of whether an asymptomatic infected individual might also be found to
be substantially limited, and therefore, handicapped.
Several courts have accepted the premise that asymptomatic HIV infection is
a handicapping impairment. Severino v. N. Fort Myers Fire Control Dist., 935
F.2d 1179, 1182 n.4 (11th Cir. 1991); Leckelt v. Bd. of Comm'rs of Hosp. Dist.
No. 1, 714 F. Supp. 1377, 1385 n.4 (E.D. La. 1989), aff'd, 909 F.2d 820 (5th
Cir. 1990); Glanz v. Vernick, 756 F. Supp. 632 (D. Mass. 1991). However, in
these cases, the issue of whether asymptomatic HIV infection is a handicapping
impairment was either not contested by the parties or the courts reached their
conclusions based on facts which would have established that the aggrieved
parties manifested reduced physical capacities as the consequence of their
infections. One lower federal court has concluded that HIV infection in and of
itself substantially limits an individual within the meaning of the statutory
definition. Thomas v. Atascadero unified School Dist., 662 F. Supp. 376 (C.D.
Cal. 1987) (Thomas). In Thomas, the court held that even asymptomatic HIV
infection embodies abnormalities which make procreation and childbirth
dangerous to infected individuals and to others. Id. at 379. The court found
that such limitations are substantial limitations on major life activities
within the meaning of the Act. Id. No court has concluded that asymptomatic
infection with HIV would not establish substantial limitations on an
individual's major life activities.
The United States Department of Justice has concluded that asymptomatic HIV
infection substantially limits an infected individual's major life activities,
thereby meeting the statutory definition of a handicapping impairment.
Memorandum from Douglas W. Kmiec, Acting Assistant Attorney General, Office of
the Legal Counsel, to Arthur B. Culvahouse, Jr., Counsel to the president,
Fair Empl. Prac. Manual (BNA) No. 641, at 405:4, 405:6-7 (September 27, 1988)
(Justice Department Opinion). The Justice Department Opinion concluded that,
perhaps the most important major life activities affected by asymptomatic HIV
infection are procreation and intimate personal relationships. Id. [FN5]
I am persuaded that Doe's ability to engage in major life activities is
substantially limited by his HIV infection and that, therefore, he meets the
Act's definition of a handicapped individual. Sexual contact and procreation
are major life activities. One of the medically recognized ways in which HIV
is transmitted is through sexual activities. Finding 69. An individual who is
infected with HIV and who is aware of the presence of infection would know
that unprotected sex and procreation cannot be engaged in without the
possibility that the infection would be communicated. That would pose a
substantial inhibition on any responsible person from engaging in those
activities.
(2) Doe has a record of having an impairment which substantially limits
one or more of his major life activities.
The Department contends that Doe has a record of having an impairment which
substantially limits one or more of his major life activities. It cites to the
fact that Respondent's own files record Doe's status as an HIVinfected
individual.
Respondent acknowledges that its files record Doe as being infected with
HIV. It asserts that its record of Doe's status does not amount to a "record"
of a handicapping condition, because its records do not reflect any
substantial limitation of Doe's major life activities. Respondent's Reply
Brief at 13.
The Department need not prove that Respondent's records state that Doe is
substantially limited in a major life activity. The statutory test does not
require that a record of a person's condition affirmatively state that the
person is substantially limited in the performance of a major life activity in
order to qualify as a "record" of a handicapping condition within the meaning
of the Act. The Act's definition of a handicapping condition is satisfied
where an individual is recorded as having an impairment, and where the
impairment of record is one which meets the statutory test of a handicapping
condition. 29 U.S.C. Sec. 706(8) (B) (11). The test is met here, because
infection with HIV is a handicapping condition within the meaning of the Act,
and because Doe has a record of being infected with HIV. [FN6]
(3) Doe is regarded as having an impairment which substantially limits one
or more of his basic life activities.
Even if Doe does not satisfy either of the first two general tests for an it
individual with handicaps," he nevertheless satisfies the third test.
Respondent regards Doe as having an impairment which substantially limits his
ability to engage in work, a major life activity. 29 U.S.C. Sec. 706(8) (8)
(iii); 45 c.F.R. Sec. 94.3(j) (2) (ii).
The third general test for an individual with handicaps does not require a
party to prove that he has a handicapping impairment. All that must be shown
is that others regard that individual as having such an impairment. In this
case, Respondent concluded that Doe's HIV infection precluded him from
engaging in significant work activities. Respondent's assumptions about Doe's
condition prove that Respondent regards Doe as handicapped.
Respondent contends that it does not regard Doe as having an impairment
which substantially limits his performance of a major life activity.
Respondent avers that it views Doe's HIV infection merely as grounds for
modifying his duties as a pharmacist so as to preclude his assignment to two
out of a range of twenty- five tasks performed by pharmacists who are employed
by Respondent. It characterizes these restrictions as minimal. Therefore,
according to Respondent, the restrictions do not rise to a level of
significance sufficient to prove that it considers Doe to be handicapped.
Respondent also argues that the Department must prove that Doe is generally
perceived by employers to be handicapped. It is not sufficient, according to
Respondent for the Department to prove only that Respondent perceives Doe as
handicapped. It asserts that the Department has not shown that Doe is
generally considered to be limited by his impairment. It contends that the
Department has not proven that Doe is incapable of finding work elsewhere.
Therefore, according to Respondent, whatever limitations it may have perceived
that Doe manifests do not arise to a general perception that Doe is
handicapped.
I find that Respondent proposes to place major, not minor, restrictions on
Doe's duties as a pharmacist. Respondent would deny Doe the opportunity to
perform tasks which are central to the pharmacist's job by barring him from
preparing parenteral products and by limiting the location of his work to one
of Respondent's satellite pharmacies. Respondent would deny Doe any meaningful
opportunity for career advancement while employed by Respondent. The
limitations Respondent would place on Doe's duties would affect his
employabilitY elsewhere. The restrictions which Respondent would impose
demonstrate how profoundly limited Respondent considers Doe to be.
The preparation of parenteral products at Respondent'S pharmacies is not
merely one of many job duties performed by pharmacists. It is, in fact, a
major element of the job of pharmacist. [FN7] All of Respondent's 40
pharmacists including supervisors, are trained in the preparation of
parenteral products. Evidence offered by Respondent showed that the
preparation of parenteral products at its pharmacies is a complex, technically
involved, and time consuming process. R. Ex. 145; R. Ex. 145A; R. Ex. 1458.
Any pharmacist employed by Respondent on its midnight to eight am. shift must
be capable of preparing parenteral products. [FN8]
Respondent's intent to limit Doe's work site to one of its satellite
pharmacies would deny Doe the opportunity to perform the broad range of
assignments generally performed by pharmacists employed by Respondent.
pharmacists who work in Respondent's pharmacies ordinarily are not limited in
their assignments to a particular satellite pharmacy. Respondent's pharmacists
generally rotate among Respondent's main and satellite pharmacies. In the
course of their varied assignments, they are exposed to a broad spectrum of
pharmacy operations ranging from preparation of psychiatric medications to
oncology medications.
The restrictions which Respondent would impose on Doe therefore would
preclude him from engaging in tasks which are central to the duties of a
pharmacist at Respondent. The intended restrictions prove that Respondent
considers Doe to be incapable of performing such central tasks. I cannot
envision Doe having any meaningful opportunity for career advancement at
Respondent if he is restricted as Respondent intends. Doe would be precluded
from attaining a supervisor's job if he is precluded from performing basic
tasks or if Respondent's main pharmacy is off limits to him. Furthermore, the
restrictions would affect Doe's ability to advance to supervisory jobs at
other facilities, because Doe would be unable to demonstrate to those
facilities that he had acquired the broad range of experience at Respondent
that a hospital pharmacist would normally acquire.
Respondent cites several judicial decisions involving the Act or analogous
state statutes to support its contention that it did not perceive Doe to be
handicapped. These decisions are distinguishable from the present case. Unlike
this case, the cases cited by Respondent all involve individuals whose
impairments were neither significantly limiting nor which were perceived as
being significantly limiting.
In Jasany v. U.S. Postal Serv., 755 F.2d 124 4 (6th cir. 1985) (Jasany), an
employee with a mild visual impairment (slightly crossed eyes) was discharged
by his employer because he refused to operate a mail sorting machine which he
had been hired to operate. The court noted that, prior to his employment, the
individual had never contended that his condition limited him, nor had he
manifested' any limitations resulting from his condition. The court found the
employee's impairment to be only a minor limitation, not rising to the level
of a handicap under the Act. It found that the fact that the employee might be
incapable of performing a very limited task, operating a particular piece of
machinery, was not proof of a substantial limitation of his ability to work.
In de la Torres v. Bolaer, 710 F. supp. 593, aff'd, 781 F.2d 1134 (5th cir.
1986) (de la Torres), the plaintiff argued that his left-handedness limited
his ability to work as a probationary mail carrier. The district court found
that, while plaintiff's ability to do a particular job might be affected by
his condition, his ability to perform work in general was not affected.
Therefore, his condition was not a substantial limitation on a major life
activity within the meaning of the Act.
In Miller v. AT&T Network systems, 722 F. supp. 633 (D. Or. 1989), aff'd,
915 F.2d 1404 (9th Cir. 1990) (Miller), a telephone installer claimed that his
employer had discriminated against him due to its failure to accommodate his
inability to perform work in temperatures exceeding 90 degrees. The plaintiff
made his claim pursuant to an Oregon statute which is similar to the Act. The
district court held that plaintiff was not handicapped within the meaning of
the statute. While plaintiff may have shown that his condition interfered with
his ability to perform one particular job with one particular employer, he did
not prove that his condition significantly decreased his ability to obtain
satisfactory employment as a telephone installer with another employer. Id. at
639 - 640.
The impairments which the plaintiffs had in Jasany, Torres and Miller
(mildly crossed eyes, lefthandedness, intolerance to high temperatures,
respectively) may have limited these individuals, but they limited them in the
performance of a narrow spectrum of duties that were uniquely related to
particular jobs with particular employers. The courts found that the Act's
broad protections should not extend to individuals whose conditions limited
them minimally. By contrast Respondent does not regard Doe's condition as
imposing only minimal limitations on the performance of a narrow range of
duties. That is obvious from the basic restrictions it proposes to impose on
him. They constitute a fundamental limitation on the performance of a
pharmacist's duties at Respondent's facilities.
The Jasany, de la Torres, and Miller decisions state that, as an element of
proving the presence of a handicapping condition, an individual must prove
that the condition affects his or her ability to find work in general and not
just to perform the specific task or job which is at issue. Respondent relies
on this aspect of these decisions to assert that the Department must show
that, not only did Respondent perceive Doe to be handicapped, but other
employers would share that perception. Under Respondent's analysis,
restrictions which Respondent might impose on Doe are irrelevant as evidence
that Doe is perceived as being handicapped unless the Department can prove
that all employers would restrict Doe similarly.
Respondent would have me apply Jasany, de Ia Torres, and Miller in a way
which would emasculate the Act. Respondent's advocated test would enable any
employer who engages in discrimination against a handicapped individual to
dodge liability by asserting that the individual might be employed by other
employers who did not discriminate against that individual. It amounts to a
license for a particular employer to discriminate against an individual based
on either that individual'S actual limitations or the employer's perceptions
of those limitationS. I do not read the cases cited by Respondent to require
proof that all employers would perceive an individual to be limited
significantly by an impairment as a prerequisite to proving the presence of a
handicapping condition. The Act is plainly written to protect individuals from
discrimination by individual employers. An individual will establish that he
is perceived as being handicapped if he proves that an allegedly
discriminating employer perceives him to be substantially limited.
It makes sense to require an individual alleging discrimination under the
Act to show more than that he or she manifests some minimal limitation which
would disqualify the individual from performing a unique or highly specialized
job with a particular employer. The plaintiffs in Jasany, de la Torres, and
Miller proved only that they were disqualified by their impairments from
performing highly specialized work. This evidence did not amount to proof
either that the plaintiffs were substantially limited or that their employers
perceived them to be substantially limited. Under those circumstances, the
courts logically asked whether these plaintiffs would be limited generally by
their impairments.
The facts of this case are very different. Here, Respondent perceives Doe to
be substantially limited. Its perception of Doe's impairment answers the
question of whether Doe is perceived to be substantially limited. There is no
need in this case to consider how Doe's impairment might be treated by other
employers in other contexts. Thus, the decisions relied on by Respondent do
not suggest that, where an employer treats an impairment as being
significantly limiting -- as is the case here that the aggrieved individual
would have to prove that all employers would react similarly.
b. Doe is an "individual with handicaps" within the meaning of the Act's
test for individuals who are infected with contagious diseases.
The civil Rights Restoration Act of 1987, Pub. L. No. 100-259 (1988)
qualified the Act's definition of an "individual with handicaps" by adding
that, for purposes of employment that term:
does not include an individual who has a currently contagious disease or
infection and who, by reason of such disease or infection, would constitute a
direct threat to the health or safety of other individuals or who, by reason
of the currently contagious disease or infection, is unable to perform the
duties of the job.
29 u.s.c.A. Sec. 706(8)(D) (West supp. 1991). This amendment to the Act
creates a second part of the definition of an "individual with handicaps"
applicable to those individuals who have currently contagious diseases or
infections.
The Department therefore must prove that Doe neither constitutes a direct
threat to the health or safety of other individualS, nor, because of his
infection, is unable to perform the duties of pharmacist in Respondent's
facilities. I find that the Department met its burden.
In its posthearing briefs, the Department seemed to contend at times that
Respondent bore the burden of proving that Doe is not a direct threat to
others and that Doe's infection does not preclude him from performing the
duties of pharmacist. See Department's post Hearing Memorandum at 30.
Respondent argued that the Department had the burden of proof on this issue.
Respondent's Reply Brief at 16 - 17. I agree with Respondent that the
Department has the burden of proving a prima facie case that Doe is not
excepted from the definition of an "individual with handicapS" by virtue of
his HIV infection. The 1988 amendment to the Act was an amendment to the Act's
definition of an "individual with handicapS. The burden of proving that an
aggrieved individual meets the Act's definition of an individual who is
protected by the Act lies with the party charging discrimination. Pushkin v.
Regents of Univ. of Colorado, 658 F.2d 1372, 1387 (10th Cir. 1981).
However, the Department's burden of proof does not require it to disprove
every scenario that an employer might invent to describe ways in which an
infected individual might transmit a disease. An aggrieved party establishes a
prima facie case that he or she is not a "direct threat" to communicate a
disease by offering credible evidence that he or she is will not communicate
that disease in the course of performing the duties of a particular job. That
shifts the burden to the employer to rebut that evidence.
As I shall discuss, the Department offered credible proof in this case that
Doe is not a "direct threat" to communicate HIV or other infections during the
performance of the job duties of a pharmacist at Respondent's facilities. That
evidence consisted of the expert opinions of physicians who are charged with
public health responsibilities. That evidence shifted the burden of proof to
Respondent. Respondent sought to reply with its own expert testimony to
support a scenario showing how Doe might infect patients during the
performance of his duties as a pharmacist. Respondent had the burden of
proving that scenario in order to rebut the Department's prima facie case.
(1) The "significant risk" test in Arline is synonymous with the "direct
threat" test of the Act.
Congress did not define the term "direct threat." However, it is reasonable
to conclude that congress intended that language to incorporate as part of the
Act's definition of an "individual with handicapS" the qualifying factors
which the supreme court recognized in Arline as applying to individuals with
contagious diseases who sought protection under the Act. Justice Department
Opinion at 405:10 - 405: 12. [FN9]
The Arline case involved a school teacher who had been dismissed from her
duties after suffering recurrent bouts of tuberculosis. The issue before the
supreme court in Arline was whether an individual who was infected with a
contagious illness met the Act's definition of an "individual with handicaps."
The supreme court held that a contagious illness could be a handicap within
the meaning of the Act. Id. at 289. However, it held that a handicapping
condition consisting of a contagious illness did not give an individual an
unqualified right to employment.
A person who poses a significant risk of communicating an infectious disease
to others in the workplace will not be otherwise qualified for his or her job
if reasonable accommodation will not eliminate that risk.
Id. at 287 n.16. The supreme court concluded that the determination of
whether an individual who was infected with a contagious illness posed a
"significant risk" to others in the workplace which could not be eliminated by
reasonable accommodation should focus on four factorS, consisting of:
(a) the nature of the risk (how the disease is transmitted), (b) the
duration of the risk (how long is the carrier infectiouS), (c) the severity of
the risk (what is the potential harm to third parties) and (d) the
probabilities the disease will be transmitted and will cause varying degrees
of harm.
Id. at 288 (citing Brief for American Medical Association as amicus curiae
at 19). The supreme court held further that "(i)n making these findings,
courts normally should defer to the reasonable medical judgments of public
health officials." Id. Finally, the supreme court found that the determination
should include findings whether an employer could reasonably accommodate an
individual who is infected with a contagious illness.
As I find above, in adopting the "direct threat" test for individuals with
contagious diseases, congress has, incorporated the "significant risk"
standard of into the definition of an "individual with handicapS." For
purposes of analysiS, the "significant risk" standard is synonymous with the
"direct threat" amendment to the definition of "individual with handicaps." An
individual claiming that he or she is handicapped by virtue of a contagious
illness therefore makes a prima facie case that he or she is not a "direct
threat" to the health or safety of other individuals by proving that he or she
does not constitute a "significant risk" for the spread of contagion.
One apparent difference between the supreme court's approach in Arline and
congress' approach in the 1988 amendment is that the supreme court considered
the "significant risk" standard to be an application of the "otherwise
qualified" requirement of the Act, whereas congress incorporated the standard
into the definition of an "individual with handicaps." There is no practical
consequence to these different approaches. Whether the Arline standard is part
of the definition of an "individual with handicaps" or an application of the
term "otherwise qualified," there nevertheless remains a requirement that the
individual claiming the Act's protection must show that he or she meets the
criteria which would entitle him or her to that protection. Therefore,
although I treat the "significant risk" issue as part of the issue of whether
Doe is an "individual with handicaps," my analysis of the evidence and the
parties' respective burdens would not change if I had analyzed the
"significant risk" issue in terms of whether Doe is "otherwise qualified"
under the Act.
Both the Department and Respondent offered expert testimony addressing the
factors identified by the supreme court in Arline. The expert witnesses who
testified on behalf of the Department -- Drs. Guinan and Henderson -- are not
only medical experts, but are charged with public health responsibilities.
[FN10] I find their testimony to be credible and authoritative. I rely on
their testimony in making my findings concerning the Arline factors. [FN11]
I have also considered the testimony of Respondent'S principal medical
expert, Dr. Peter W.A. ManseIl. Dr. Mansell is a physician in private practice
in Houston, Texas. [FN12] There was remarkably little difference of opinion in
the testimony of Drs. Guinan, Henderson, and ManseIl on certain key points.
All three physicianS agreed generally as to the consequences of HIV infection,
the mechanisms by which HIV is transmitted, and the likelihood of transmission
through accidental contact with infected body fluids. On close analysiS, Drs.
Guinan, Henderson, and Mansell did not even disagree meaningfully as to the
probability that Doe might transmit his HIV infection to patients during the
course of performing his duties as a pharmacist, including the preparation of
parenteral products.
Where these experts disagreed was on the public health implications of the
evidence. Drs. Guinan and Henderson expressed the opinion that, where there
was no meaningful risk that an infected health care worker could transmit HIV
to a patient, there was no need to place restrictions on the health care
worker's duties. Dr. Mansell asserted that any possibility, no matter how
slight, that an infected health care worker might transmit HIV in the
performance of his or her duties justified restrictions being placed on the
health care worker's performance of his or her duties.
(2) The risk posed by Doe's HIV infection AIDS is caused by infection with
HIV, a communicable virus.
HIV is a virus which infects cells which are part of the human immune
system. Infection with HIV compromises the immune system and almost invariably
results in the disease known as AIDS. The disease process generally is slow.
An HIV- infected individual may remain asymptomatic for years. There presently
are between 800,000 and one million individuals in this country who are
infected with HIV.
AIDs is a disease which inevitably is fatal. There are medications which may
hold in abeyance some of the disease's effects, but there is no cure for AIDS.
AIDS is characterized by infections which arise by virtue of the infected
individuals' compromised immune systems. The infections which typify AIDS
usually are caused by organisms which are normally present in individuals but
which remain latent. However, in HIV-infected individuals, such organisms
within their systems are capable of becoming active and of causing
debilitating and eventually fatal infectionS, because these individualS'
immune systems eventually become weakened and thus unable to hold the
organisms in check.
There are three known ways in which an individual may become infected with
HIV. First, an individual may become infected through sexual contact with an
infected individual. second, an individual may become infected through
parenteral transmission of HIV, that is, through the transmission of HIV-
infected blood or body fluids into the individual's bloodstream. Finally, an
unborn child may become infected with HIV directly from the blood of his or
her mother. There is no evidence that HIV may be communicated by casual
contact, such as touching or sharing of household items like toothbrusheS or
eating utensils.
This case involves the issue of whether Doe might inadvertently transmit HIV
to patients of Respondent through parenteral infection. Respondent does not
contend that Doe poses a threat to transmit HIV in any other way. Thus, a very
broad conclusion as to the nature of the risk posed by Doe's potential
employment by Respondent is that he might somehow inadvertently transmit HIV
by parenteral means to Respondent'S patients. Respondent also argues that Doe,
through occasional contact with patients who are themselves infected with
various diseaseS, might acquire those diseases from the patients. That is so,
according to Respondent, because Doe's weakened immune system might render him
more susceptible to contracting infectionS from other individuals.
There is no credible evidence to support this allegation. The evidence does
not prove that whatever damage Doe's immune system has so far sustained as a
result of his HIV infection makes him more susceptible to acquiring infections
from other individuals than an individual who is not infected with HIV. DHHS
Ex. 14/1700 - 1701; Tr. at 142, 1577. There is not conclusive evidence to show
that individuals who are infected with HIV, or even those who have progressed
to AIDS, are more likely to contract illnesses from outside sources than are
individuals who are not infected with HIV. Respondent's assertion that Doe
presently is a candidate for infection resulting from occasional patient
contact is, therefore, speculative.
Respondent additionally asserts that Doe could communicate to Respondent's
patients infections that he has either acquired from external sources or which
were previously latent within Doe, but which have become active by virtue of
Doe's weakened immune system. Respondent raises the specter of Doe
transmitting an infection, such as tuberculosis, to a patient whose own immune
system is weakened (such as a patient who is receiving chemotherapy for
cancer). I also find this content ion to be speculative and without meaningful
support in the evidence. There is no evidence here that Doe presently
manifests infectionS, other than HIV, which he might transmit to others. For
example, there is nothing in the record of this case which suggests that Doe
harbors tuberculosis. [FN13]
Doe will be a potential source of HIV infection for the rest of his life.
The evidence establishes that, once an individual is infected with HIV, he or
she remains infected. The evidence does not make clear whether Doe's
infectiousness will increase, decrease, fluctuate, or remain constant. The
evidence is equivocal as to whether the volume of HIV virus in an infected
individual'S system may be higher at times than at others, thereby increasing
or decreasing the likelihood that the individual might be capable of
transmitting the virus to other individuals. There is no evidence in this case
as to the volume of HIV in Doe's system.
There is no question here as to the severity of the risk posed by Doe
inadvertently infecting an individual with HIV. As I find above, HIV infection
almost certainly causes the infected individual to develop AIDs, and AIDS
eventually causes death.
(3) There is no meaningful likelihood that Doe will transmit HIV to
Respondent's patients in the course of performing his duties as a pharmacist.
Much of the experts' testimony in this case focused on the issue of the
probability of Doe inadvertentlY transmitting HIV to Respondent's patients in
the course of performing his duties as a pharmacist. Respondent'S contention
that Doe could infect patients through parenteral products which he had
inadvertentlY contaminated with his body fluids is the essence of its defense
to the Department's charge of discrimination.
The evidence does not eliminate all possibility that Doe somehow could
transmit HIV via contaminated parenteral products. None of the experts who
testified in this case could absolutely rule out that possibility. However,
the weight of the evidence, including the reasonable medical judgments of
public health officialS, establisheS that the likelihood of Doe transmitting
HIV through his preparation of parenteral products is so small as not to be
measurable.
Both Drs. Guinan and Henderson testified that the risk that Doe might infect
a patient with HIV in the performance of his duties as a pharmacist is so
small as to be unquantifiable. I find these experts' conclusions to be
credible, and to be buttressed strongly by the evidence which they relied on.
I am therefore convinced from the evidence in this case that the Department
has established that Doe's preparation of parenteral products creates no
meaningful risk that he would inadvertently communicate HIV to patients.
Drs. Guinan and Henderson testified that the findings of public health
experts concerning the transmissibility of HIV by infected health care
providers was based on experience both with incidents involving HIV, and with
incidents involving the Hepatitis B Virus (HBV). HBV is transmitted in the
same way that HIV is transmitted. It is, for undetermined reasons, easier to
transmit than is HIV. Experts can draw inferences as to the likelihood of HIV
transmission based on their experiences with HBV.
The evidence establishes that there has never been a single episode
documented of a pharmacist transmitting either HIV or HBV through a
contaminated parenteral product. Based on their studies of transmission of HBV
and HIV, experts at the centers for Disease control (CDC) have concluded that
noninvasive procedures, including the preparation of parenteral products, pose
no risk for the transmission of HIV.
Those procedures where CDC's experts have identified some risk of
transmission of HIV by infected health care workers are limited to exposure-
prone invasive procedures. These are procedures involving invasion of body
cavities by infected health care workers (such as surgery) where the area
being worked on is difficult to visualize and where sharp instruments are
involved. Even in these circumstances, CDC has not been able to quantify a
probability that HIV could be communicated.
There are three aspects of exposure-prone invasive procedures which, in the
judgment of the experts, create at least a minimal risk for communication of
HIV by infected health care workers who perform such procedures. First, the
procedures are performed inside patients' body cavities. Therefore, there
exists a potential for direct exposure of patients to a health care worker's
blood. second, the procedures involve the use of sharp instruments, such as
scalpels, thereby creating the risk that a health care worker employing such
instruments could inadvertently cut himself and bleed directly into a
patient's body cavity. Third, the procedures involve situations where the
instruments may be poorly visualized -- that is, hard for the health care
worker to observe thereby heightening the likelihood of an accidental injury
and bleeding.
As Drs. Guinan and Henderson testified, preparation of parenteral products
by a pharmacist is not an exposureprone invasive procedure. It falls outside
of those procedures which CDC has concluded pose some risk for communication
of HIV by infected health care workers. The differences between exposure-prone
invasive procedures and non invasive procedures, including preparation of
parenteral products, rule out any likelihood that the minimal risks of
infection present with invasive procedures are similarly present with the
preparation of parenteral products. Unlike invasive procedures. preparation of
parenteral products does not involve invasion of patients' body cavities by
pharmacistS. preparation of parenteral products does not involve direct
contact with patients. Therefore, there is no risk that patients who receive
parenteral products will be exposed directly to pharmacistS' blood. Although
preparation of parenteral products does involve the use of sharp instruments
(needles), the process does not involve circumstances where the needles would
be hard to observe, which is the case with invasive procedures.
Respondent sought to rebut the Department's evidence essentially by
advocating a scenario which establishes a mechanism whereby Doe might
inadvertently transmit some of his blood, containing HIV, to a patient. I am
not convinced that there exists any meaningful risk that Respondent's scenario
could come to pass. Respondent derives its scenario from speculation about a
possible chain of events, without proof that there is a likelihood that the
events in Respondent's scenario would or even could occur. Unproven
speculation as to what might happen is not credible evidence of what is likely
to happen.
The scenario envisioned by Respondent in which Doe inadvertently might
transmit HIV to a patient is as follows. During the course of preparing a
parenteral product, Doe might, without being aware that he had done so, prick
himself with one of the needles he used to transfer substances from one
container to another. Doe might then use that needle, contaminated with his
blood, to transfer substances between containers. That act could transfer
Doe's blood (and HIV) to a container holding a parenteral product to be
administered to a patient. Ultimately, the contaminated parenteral product
would be administered to a patient, and the patient might become infected by
the HIV present in the product.
There is no evidence that Doe would use a needle to prepare a parenteral I
product knowing that the needle might have been contaminated by his personal
contact. Nor is there any evidence that Doe would allow a parenteral I product
to be administered to a patient knowing that it may be contaminated as the
result of it having been prepared with a needle that Doe had touched. Doe is a
licensed and registered pharmacist. To ignore contamination of a needle (and,
possiblY resulting contamination of a product) would violate professional
standards.
pharmacists -- including pharmacists employed by Respondent -- are supposed
to follow a process known as "aseptic technique" in preparing parenteral
products. Aseptic technique is intended to avoid contamination of products
with foreign substanceS, including particles or bacteria. Aseptic technique
proscribes pharmacists from even touching needles to be used in preparing
parenteral products. pharmacists who touch a needle are required to discard
the needle immediately, and also to discard the syringe to which it is
attached, and any products which might have been contaminated by the needle.
Therefore, if Doe were aware that he had touched a needle used to prepare
parenteral products (let alone that he had injured himself with that needle)
Doe would immediately discard the needle, the syringe to which it was
attached, and any product which might have become contaminated.
Respondent argues that infection control procedures such as aseptic
technique are not always complied with by health care professionals.
Therefore, according to Respondent? it cannot rely on Doe's compliance with
aseptic technique to assure that he would not contaminate products that he
prepared. The evidence offered by Respondent does show that aseptic technique
may not always be complied with by its pharmacistS. R. Ex. 145, R. Ex. 145A,
R. Ex. 1459. However, as Respondent acknowledges, and indeed, as its own
policies confirm, it intends that all pharmacists who work for it comply with
aseptic technique. The solution to occasional breaches of aseptic technique by
Respondent's pharmacists is for Respondent to provide training and to enforce
its policies. Furthermore, Respondent has not offered any evidence to show
that Doe -- as opposed to other pharmacists on its staff -- might not comply
with aseptic technique.
Thus, Respondent's scenario depends, first, on Doe inadvertently pricking
his finger with a needle and not being aware that he had done So. I find
Respondent'S assertion that Doe might injure himself with a needle while
preparing parenteral I products and not be aware that he had done so to be
highly speculative at best, and unsupported by the evidence. I am not
concluding that it is beyond any possibility that such an injury could occur.
I do conclude, however, that Respondent has failed to establish any meaningful
likelihood that Doe would injure himself with a needle, sufficient to
contaminate the needle with his own blood, and not be aware of that fact.
The starting point for Respondent's scenario is the undisputed fact that,
occasionally, pharmacists do accidentally prick themselves with needles. But
this fact by itself only raises the possibility that pharmacists might injure
themselves with needles and not be aware that they had done So. It does not
establish that such unnoticed injuries actually occur.
Respondent's witnesses averred that inadvertent and unrecognized injuries
with needles did occur in pharmacieS. but were unable to offer more than
personal anecdotes to support this contention. Tr. at 937-939. The
Department's witnesses were unaware of such events occurring in their personal
experience. There are no studies showing that inadvertent and unnoticed
injuries with needles occur with meaningful frequency in the course of
preparing parenteral products. [FN14] Respondent did not produce any surveys
or studies showing that its own pharmacists reported such injuries.
The second element in Respondent's scenario is that in the highly unlikely
event that Doe were to prick himself with a needle, sufficient to draw blood,
and not be aware of it' the blood which contaminated the needle would have to
contain a sufficient quantity of HIV to pose a threat of infection to a person
to whom that blood is transmitted. That is not very likely. The experts who
testified in this case (including Respondent's expert, Dr. Mansell) agreed
that, while HIV may be transmitted through contact with a contaminated needle,
not every contact with a contaminated needle will result in infection. The
likelihood of acquiring HIV from injury by a needle which has been
contaminated with HIV-infected blood is very small, ranging in the order of
probability of between three and five chances in a thousand. Thus, there is
only a small chance that a needle inadvertently contaminated by Doe with his
own blood even poses a reasonable potential for transmitting HIV to a patient
through transference of Doe's blood to a parenteral product and then to a
patient. [FN15]
The third element of Respondent's scenario is that a quantity of Doe's blood
containing HIV sufficient to transmit an infection would have to be
transmitted from the inadvertently contaminated needle to the parenteral I
product. Again, it is not beyond all possibility that this could happen.
However, no studies have been performed to show whether it is likely to
happen. There are factors which might serve to exclude a significant quantity
of contaminated blood from being injected into a parenteral product. In
preparing parenteral products, pharmacists do not inject substances into open
containers. Substances are introduced through barriers which are intended to
maintain product sterility.
Contaminating substances which are on the outer surface of a needle might
well be wiped off by any barriers through which that needle is inserted.
Finally, any HIV finding its way into a parenteral product in the scenario
described by Respondent would have to survive long enough to infect a patient
to whom the product is administered. No studies have been performed to
determine the survivability of HIV in parenteral products. However, it is
known that HIV does not survive for long in mediums other than human tissues
or tissue products. Furthermore, many parenteral products, such as cancer
chemotherapy drugs, are toxic subStanceS. In the absence of any evidence
showing that HIV would survive in a parenteral product, it is simply
speculative to say that it could survive. As with the other variables in
Respondent's scenario, I do not conclusively rule out the possibility that HIV
could survive long enough in a parenteral product to infect a patient.
However, the evidence does not satisfy me that there is a meaningful
likelihood that this would occur.
Respondent urges me to conclude that its infection scenario is given weight
by the opinion of its expert, Dr. Mansell, and by the testimony of two
physicians who have served on Respondent's staff, Drs. Zalman Arlen and Iradge
Argani. [FN16] These witnesses expressed concern that Doe could communicate
HIV through contamination of parenteral products prepared by him. None of
these witnesses, including Dr. ManseIl, could do more than speculate as to a
theoretical chain of events by which Doe might communicate the virus. None of
these witnesses could point to a study or studies which verified that
Respondent's infection scenario represented anything more than a theoretical
possibilitY. None of these witnesses could identify evidence that showed that
there was a realistic probability that Doe would ever contaminate a parenteral
product with his own blood.
I do not disagree with Respondent or its witnesses that there may be a
theoretical possibility that Doe could contaminate a parenteral product and
thereby communicate HIV to a patient. But, as I hold above, Respondent'S
scenario is mere speculation, unsupported by credible evidence that there is
any risk that it would happen. The opinions of the three physicians do not
transform Respondent's scenario from speculative even to remotely probable.
All three of these physicians also testified that they were concerned that
Doe could transmit an infection other than HIV through casual contact with
immunocompromised patients. As I hold, supra, there is no evidence that Doe
harbors any infections other than HIV which he could transmit to Respondent's
patients. Therefore, these witnesses' concerns are speculative.
Furthermore, not all experts affiliated with Respondent consider Doe to
constitute a meaningful risk for contagion in performing the unrestricted
duties of a pharmacist on Respondent's staff. Dr. Gary Wormser, Respondent's
chief of Infectious Diseases and an infectious disease specialist concluded
that Doe's HIV infectiOn did not preclude him from performing duties as a
pharmacist DHHS EX. 14/1678 - 1680, 1732 - 1734. [FN17]
(4) Doe does not pose either a "significant risk" or a "direct threat" to
transmit HIV to patients in performing a pharmacist's duties for Respondent.
If the evidence were to show that Doe posed a "significant risk" under the
Arline standard for transmission of HIV to Respondent's patients through his
preparation of parenteral products, then he would constitute a "direct threat"
for communication of HIV within the leaning of the Act. In that event, I would
find that Doe neither met the definition of an "individual with handicaps" nor
was "otherwise qualified" under the Ar line standard. In light of the
inevitably fatal consequence of HIV infection, would find a "direct threat" or
"significant risk" of infection if there was even a slight measurable risk
that Doe might infect Respondent's patients through his preparation of
parental products.
The evidence in this case shows that it is theoretically possible for Doe to
inadvertently communicate HIV in the course of preparing parenteral products.
However, the evidence also shows that there is no meaningful risk that such
transmission of HIV would occur. A finding of "significant risk" of
transmission of HIV based on this evidence would be tantamount to a finding
that, under Arline and the Act, the "significant risk" and "direct threat"
standards meant any risk of transmission in the case of an individual who is
infected with HIV. I do not read Arline or the Act SO broadly. chalk v. U.s.
Dist. court cent. Dist. of California, 840 F.2d 701 (9th Cir. 1988); Clover v.
Eastern Nebraska community Office of Mental Retardation, 686 F. supp. 243 (D.
Neb. 1988), aff'd 867 F.2d 461 (8th Cir. 1989), cert. denied, 493 U.S. 932
(1989); Thomas, 622 F. supp. 376, 380; New York state ASS'n for Retarded
children v. Carey, 466 F. supp. 479 (E.O.N.Y. 1978), aff'd, 612 F.2d 644 (2d
cir. 1979).
Any individual who is infected with HIV could potentially transmit the virus
to others. Given that, a scenario can be invented for any work setting within
or outside of the health care industry which could envision an HIV- infected
employee infecting his or her coworkers, or other individuals with whom he or
she comes into contact. Even clerical workers occasionally sustain cuts while
working. People can theoretically come into contact with other people's blood
in any employment setting.
Both the supreme court in Arline and congress intended that, in' cases
involving individuals infected with contagious diseaseS, the restrictions
imposed against these individuals by their employers should be balanced
against the consequences of allowing the individuals to work in the absence of
restrictions. Arline and the Act permit an employer to build a margin of
safety into an employee's duties, either where an individual is highly
contagious, or where the individual is not very contagious, but where the
consequences of infection are serious. This is a classic rule of reason
analysiS.
However, neither the supreme court nor congress intended that employers
could refuse to hire HIV-infected individualS, or restrict the duties of
HIV-infected employees, based on speculative or fanciful infection scenarios.
Restrictions on HIV-infected employees may only be justified where there is
some meaningful, albeit slight, risk that in the absence of restrictions, such
employees pose a threat to communicate the HIV virus.
If Arline or the Act were read to enable employers to restrict the duties of
employees without evidence of a meaningful risk of transmission of HIV, both
the supreme court's decision and the Act would be rendered meaningless. The
"serious risk" standard of Arline and the Act's "direct threat" standard
would, in the case of an individual infected with HIV, translate to a right of
an employer to restrict that employee's duties or to refuse to hire an
infected individual.
The scenario by which Doe might transmit HIV in the course of his preparing
parenteral products is, as I have found, fanciful. There is no meaningful risk
that he will transmit the virus in performing his duties for Respondent. I
conclude that Doe does not pose either a "significant risk" or a "direct
threat" to transmit HIV in the courSe of his employment. I find that he is an
"otherwise qualified" handicapped person under the Arline test. He meets the
Act's definition of an "individual with handicapS."
3. Doe is a "qualified handicapped" individual.
Regulations define a "qualified handicapped" individual to be a person who,
with reasonable accommodation, can perform the essential functions of a
particular job. 45 c.F.R. Sec. 84.4. Under Arline, reasonable accommodation in
the case of an employee with a contagious illness would mean conditions of
employment which rationally relate to eliminating a significant risk of
contagion. Id. at 288.
The restrictions which Respondent would impose on Doe's duties cannot be
rationalized as a reasonable accommodation of Doe's HIV infection. The
restrictions are arbitrary because there is no legitimate purpose to
restricting Doe as Respondent would restrict him. Doe poses no significant
risk to communicate HIV through his performance of the unrestricted duties of
pharmacist at Respondent's facilities.
I am not suggesting by this conclusion that Respondent must blind itself to
the fact that Doe is infected with HIV. The only theoretical possibility for
Doe communicating the virus in the course of performing his duties would be
via a breach in aseptic technique. Therefore, Respondent can act legitimately
to assure that Doe is trained in aseptic technique, even as it should act to
assure that every pharmacist whom it employs is trained in aseptic technique.
Respondent can also provide Doe with normal supervision and reminders to
assure that he follows aseptic technique. But there is no evidence in this
case to support a conclusion that Respondent must treat Doe differently from
other pharmacists whom it employs in order to assure that Doe is not a risk to
communicate HIV. In this case, reasonable accommodation of Doe's handicap
simply means that Respondent should treat Doe as it would treat any
professional pharmacist on its staff.
4. Respondent is unlawfully discriminating against Doe based solely on his
handicap.
It follows from my analysis that the restrictions Respondent would place on
Doe's employment constitute unlawful discriminatiOn under the Act. There is no
rational justificatiOn for these restrictions. They solely emanate from Doe's
handicap or from Respondent'S perception of that handicap.
Respondent asserts that it cannot employ Doe absent the restrictions it
would impose without conflicting with New York law, which ostensibly bars it
from employing actively infected individualS. I am not satisfied that Doe
would be excluded from employment or that Respondent would be required to
restrict his duties under New York law. As the Department notes, the New York
state Division of Human Rights found that Respondent was discriminating
against Doe.
However, I do not understand the Act or implementing regulatiOns to permit
parties who discriminate against handicapped individuals to defend their
actions by asserting that they were acting in compliance with State laws. The
regulations specifically impose an obligatiOn on parties to comply with the
Act which is not obviated by the existence of any state or local law or other
requirement. 45 c.F.R. Sec. 84.10( a). Where a conflict may exist between a
duty to comply with a state law and the Act, the Act must prevail. See Florida
Lime Avocado Growers. Inc. v. Paul, 373 U.5. 132, 142 - 143, denied, 374 U.S.
858 (1963).
Respondent also contends that its actions amount to a reasonable balancing
of the rights of employees under the Act, including Doe, against its ethical
duty to protect the rights of patients against the risk that Doe might infect
them. "A small but palpable risk of transmitting a lethal disease gives rise
to the ethical responsibility to avoid that risk." Respondent's Reply Brief at
37. I do not disagree with the general proposition stated by Respondent. If I
were to find that Doe posed even a "small but palpable" risk for transmitting
HIV during the course of performing his duties, then I would not hesitate to
affirm that Respondent could take reasonable measures to protect against that
risk. But, as I find supra, there is no proof in this case that Doe
constitutes even a "small but palpable" risk to transmit HIV. Given that, the
restrictions Respondent would impose against Doe are arbitrary, and they
constitute discrimination in violatiOn of the Act.
Respondent relies on Estate of Behringer v. Medical Center at Princeton,
592 A.2d 1251 (N.J. sup. ct. Law Div. 1991) (Behringer) to support its
contention that the restrictions it would impose on Doe are an element of
Respondent's ethical duty to its patients; Behringer is distinguishable from
this case. The Behringer case involved the issue of whether a hospital could
suspend the staff privileges of a surgeon with AIDS. The court found that
there was a reasonable probability that a surgeon, performing poorly
visualized invasive procedures, could injure himself and communicate HIV
through accidental bleeding into a patient's body cavity. Id. at 1265. The
surgeon in Behringer was performing precisely those procedures which the COC
has identified as manifesting some (albeit, immeasurably small) risk for
communication of HIV when performed by an HIV-infected health care worker.
Doe's pharmaciSt duties would not involve such procedures. For the reasons
which I have described supra, the noninvasive preparation of parenteral
products is not comparable with the performance of exposure-prone invasive
procedures by a surgeon for purposes of assessing the risk that HIV might be
communicated by the pharmacist.
5. The Department has been unable to obtain voluntary compliance with the
Act from Respondent.
The Department's regulations provide that its procedures for implementing
the Act are the same as the procedures for implementing Title VI of the civil
Rights Act of 1964. 45 C.F.R. Sec. 84.61. The applicable procedures are found
in 45 C.F.R. Secs. 80.6 through 80.10 and in 45 cF.A Part 81.
The regulations provide, in effect, that the Department may take action
against a recipient of federal funds to obtain compliance with the Act if it
determines that a dispute concerning the recipient's compliance cannot be
informally resolved. 45 C.F.R. Secs. 80.7(d), 80.8(a). I interpret these
regulations as requiring me to find, as a prerequisite to imposing a remedy in
any case which I hear under the Act, that the Department has been unable to
secure compliance with the Act by informal, voluntary means.
The Department proved that it has not been able to secure voluntary
compliance from Respondent. Findings 141-146, 161. Prior to issuing the
administrative complaint against Respondent, the Department's Office of Civil
Rights (OCR) made attempts to informally resolve the matter with Respondent.
Discussions with Respondent did not lead to a satisfactory result. Respondent
refused to hire Doe as a pharmaciSt without restrictions at any time prior or
subsequent to the issuance of the administrative complaint in this case.
despondent asserts that, in fact, it offered to enter into a voluntary
compliance agreement with the Department which made informal resolutiOn of
this case possible. Therefore, according to Respondent, there was never a
basis for the Department to issue its administrative complaint against
despondent. However, it is apparent from review of Respondent's proposal to
resolve this matter that despondent never offered to do the one thing which it
is required by law to do, to employ Doe without discriminating against him
based on real or perceived handicaps.
The proposed compliances agreement offered by despondent would have reserved
to despondent the right to modify Doe's duties under Respondent's communicable
Disease Policy and OccupatiOnal Safety and Health Administration guidelineS.
A. Ex. 119/3. The communicable Disease Policy GuidelineS, dated September 28,
1987, were attached to the proposed agreement. A. Ex 119/8. At first glance,
these guidelines incorporate the "significant risk" standard of Arline. There
is a difference, however, which is important, given the Arline history of
Respondent's dealings with Doe. The criteria provide that courts should
normally defer to the expert opinions of public health officials in assessing
whether an individual poses as significant risk for contagion in an employment
setting. Id. at 288. By contrast, Respondent's proposed agreement would
reserve to its medical directors and Employee Health service staff the right
to determine how to modify an employee'S duties under the - Arline criteria.
On its face, this may not be an unreasonable way for despondent to resolve
problems concerning the employment of contagious individualS. The Act does not
require employers to consult with public health officials every time they
confront the issue of whether, and under what circumstances, to employ an
individual who is infected with a contagious illness. But it is also apparent
from Respondent's proposed agreement that it would create a mechaniSm whereby
despondent could continue to discriminate against Doe. despondent would be in
literal compliance with its proposed agreement if, after review of Doe's case,
its medical directors and Employee Health service staff affirmed the very
restrictions which are at issue here. The agreement would permit despondent to
continue to discriminate against Doe, or against any other HIV-employee, so
long as the discrimination were reviewed and approved pursuant to Respondent'S
communicable Disease Policy Guidelines.
I find that the Department was within its rights in concluding that the
proposed agreement placed form over substance. despondent did not offer to
cease its discrimination against Doe and the Department was not obligated to
accept Respondent's offer of compliance.
6. Termination of federal financial assistance to Respondent is the
reasonable remedy in this case.
The regulations provide that termination of federal financial assistance to
a recipient of federal funds is an appropriate remedy for refusal to comply
with the Act. 45 C.F.R. Sec. 80.8(a). The term "federal financial assistance"
includes grants, loans, contracts (other than procurement contracts or
contracts of insurance or guaranty), or any other arrangements by which the
Department makes available funds, services of federal personnel, or real and
personal property or any interest in or use of such property. 45 C.F.R. Sec.
84.3(h). The regulatiOns provide procedural prerequisites to the termination
of financial assistance in the case of noncompliance with the Act. [FN18] The
regulations also provide that any action to suspend, terminate, or refuse to
grant federal assistance to a recipient for failing to comply with the Act
shall be limited to the particular program or part of a particular program, in
which noncompliance has been found. 45 C.F.R. Sec. 80.8(c)(3).
Respondent is a recipient of funds under Medicare and Medicaid. There is no
question that the federal funds which Respondent receives directly from
Medicare, and indirectly from Medicaid, are "federal financial assistance"
within the meaning of the regulations. Respondent has not asserted that these
monies do not constitute federal financial assistance. The Department
contends, and despondent does not dispute, that federal financial assistance
which Respondent receives in the form of Medicare and Medicaid payments flows
throughout Respondent and supports all of its operations. Nor does Respondent
deny that a substantial percentage of the funds it receives from the
Department support despondent's employment of staff. However, Medicare and
Medicaid payments to Respondent are not earmarked for staff support. They
constitute reimbursement for items or services provided by Respondent, out of
which Respondent extracts funds to compensate its staff.
The Department argues that Respondent's discrimination against Doe
constitutes more than an isolated act of discrimination against one
individual. I agree with the Department's contention. Respondent's
discriminatiOn against Doe is an aspect of a policy adopted by Respondent in
which it expressly reserves authority to impose restrictions against
HIV-infected employees. A. Ex. 119/8. so long as Respondent contends that the
actions that it took in Doe's case are reasonable, the potential exists for
Respondent to impose similarly arbitrary restrictions against any HIV-infected
employee or job applicant.
It is not possible for me to segregate Respondent'S acts of discrimination
against Doe from Respondent'S employment policies, nor is it possible for me
to extract from the federal funds paid to Respondent monies which are
earmarked only for pharmacy operations, for pharmacists' compensation, or even
for staff compensation. Federal funds paid to Respondent by the Department
become commingled with other funds once Respondent receives and deposits them.
I have no recourse but to order that all federal financial assistance to
Respondent be terminated, inasmuch as it is not possible for me to identify
specific federal payments to Respondent as payments which Respondent uses in
activities which discriminate against handicapped individualS. [FN19]
The remedy which I impose is in no sense punishment for Respondent's
discrimination against Doe or for its policies in general. Respondent can at
any time avert the imposition of this remedy by complying with the Act.

CONCLUSION

I conclude that Respondent is engaging in unlawful discrimination in
violation of the Act. I order that federal financial assistance to Respondent
be terminated until it satisfies the responsible Department officialS that it
is in compliance with the Act.

FN1. I refer to the Department's exhibits as "DHHS Ex. (number)/(page)." I
refer to Respondent's exhibits as "R. Ex. (number)/(page)." I refer to the
transcript as "Tr. at (page)."

FN2. The Department has not alleged that Respondent unlawfully utilized
preemployment physical examinations to discriminate against handicapped
persons.

FN3. Doe was a patient at Respondent's Infectious Disease Clinic, and his HIV-
positive status was recorded in the clinic's records. The examining physician
had access to these records. Doe has charged Respondent with unlawful use of
the clinic records. DHHS Ex. 5/763, /781-782; DHHS Ex. 14/1749. The lawfulness
of Respondent's use of Doe's medical records is not an issue in this case, and
I make no finding as to whether Respondent made unlawful use of these records.

FN4. Respondent also argues that Doe never completed his pre-employment
physical examination. Therefore, according to Respondent, Doe's employment
application never reached a stage where Respondent either could offer or deny
Doe employment. However, Respondent does not deny that it would impose
restrictions on Doe's employment based on his infection with HIV and those
restrictions would, at a minimum, consist of barring Doe from preparing
parenteral products and performing work which involved direct contact with
patients. Tr. at 22, 24.

FN5. The Justice Department Opinion concluded that:
Because of the infection in their system(s) . (HIV infected individuals)
will be unable to fulfill this basic human desire . . . (to have children).
There is little doubt that procreation is a major life activity and that the
physical ability to engage in normal procreation -- procreation free from the
fear of what the infection will do to one's child is substantially limited
once an individual is infected with the AIDS virus. Justice Department Opinion
at 405:7.

FN6. The test would also be met if Doe were not infected with HIV, but if Doe
had a record of being infected with HIV. Subparts (ii) and (iii) of 29 U.S.C.
Sec. 706(8) (B) were enacted to deal with circumstances where individuals were
perceived by others as being handicapped.

FN7. Respondent avers that Doe characterized the preparation of parenteral
products at Respondent'S pharmacies to be a "minor" part of the job of
pharmacist. Respondent's Reply Brief at 12; See DHHS Ex. 1/400. Doe did not
testify in the hearing which I conducted. The cited reference is from Doe's
testimony in a hearing before the New York state Division of Human Rights.
close reading of the transcript establishes that Doe did not characterize
preparation of parenteral 1 products to be a minor element of the job of
pharmacist. He testified that he considered preparation of IV admixture and
hyperalimentation (some of the many parenteral products prepared at
Respondent's pharmacieS) to be a minor part of the duties performed on the
midnight to eight am. shift at Respondent's pharmacieS. His characterization
of those duties on that shift as "minor" was made in the context of the
following testimony:
I don't consider myself a second class pharmacist who should be limited in
scope of his pharmacy practice. I would like to be able to make IV preparation
and hyper(a)l(i)mentation. I do not want to be set aside as low man on some
satellite pharmacy, which would not be a choice of mine. DHHS Ex. 1/400.

FN8. Respondent's proposed restriction of Doe's duties as a pharmacist would
preclude Doe from working on the midnight to eight a.m. shift, because it is
necessary for the pharmacist who works that shift to be able to prepare
parenteral products. Findings 30 - 32. Thus, while preparation of parenteral
products on the midnight to eight a.m. shift may be a "minor" part of a
pharmacist's duties on that shift, it is nevertheless a necessary duty. Doe
would suffer a measurable pecuniary loss as a result of being prohibited from
preparing parenteral products, inasmuch as pharmacists assigned by Respondent
to work the midnight to eight am. shift receive a five percent addition to
their regular pay. Findings 112, 133.

FN9. As the Justice Department Opinion notes, the amendment to the definition
of an "individual with handicapS" was a floor amendment. Therefore, there are
no committee reports containing legislative history which might clarify
congress' purpose in enacting the amendment. However, statements by sponsors
of the amendment, during the floor debate on the legislation of which the
amendment is a part, suggest a legislative intent to codify the holding of
Arline. See 134 cong. Rec. 383 - 384 (1988). statements by other members of
congress support this view. Id. at 2937, 3043.

FN10. Dr. Mary Guinan is the special Assistant for Evaluation for the Deputy
Director of HIV at the centers for Disease control, Atlanta, Georgia. Dr.
David X. Henderson is the Associate Director for Quality Assurance in Hospital
Epidemiology at the clinical center at the National Institutes of Health,
Bethesda, Maryland.

FN11. That is not to say that I gave uncritical deference to these experts'
testimony. I find that it was both credible and buttressed by the foundation
evidence on which these experts relied and to which they cited in their
testimony.

FN12. In Arline, the supreme court noted that:
This case does not present, and we do not address, the question whether
courts should also defer to the reasonable medical judgments of private
physicians on which an employer has relied. Id. at 288 n.18. Dr. Mansell is a
"private physician" whose testimony I admitted and have considered as relevant
to the issues in this case. I give greater weight to the testimony of Drs.
Guinan and Henderson than to that of Dr. Mansell not simply because Drs.
Guinan and Henderson are public health officials and Dr. Mansell is a private
physician, but because, on balance, I find Drs. Guinan's and Henderson's
testimony to be more authoritative. My conclusion is based on the three
physicians' backgrounds and experience, and on their answers to questions
posed by counsel for the parties.

FN13. If there were evidence that Doe was infected by some other contagious
disease than HIV, I would separately analyze that evidence under the Arline
standard to decide whether Doe posed a significant risk for transmitting that
disease to other individuals.

FN14. Respondent cites testimony by Dr. Henderson as support for its content
ion that accidental and unnoticed injuries with needles may occur in the
course of preparing parenteral products. Tr. at 405 - 406. Dr. Henderson
acknowledges that medical literature documents episodes of unnoticed
self-injury incurred by surgeons working in operating theaters. Id. The
episodes referred to by Dr. Henderson are distinguish able from preparation of
parenteral I products in that they involve surgical procedures where there may
be poor visualization.

FN15. Both the Department and Respondent offered considerable evidence
concerning the probability of an individual acquiring an HIV infection from an
injury by a needle which had been contaminated with HIV-infected blood. As I
find, the chance of HIV being communicated through such injuries is very
small, ranging in the order of from three to five chances per one thousand
injuries. It is not possible to find from this evidence that the likelihood
that Doe would communicate HIV to a patient as the result of preparing a
parenteral product with a needle that he had inadvertently contaminated is
even remotely related to the risk of acquiring HIV from an injury by an
HIV-contaminated needle. So-called needlestick communication of HIV involves
direct injury of an uninfected individual with a contaminated needle. In
Respondent's scenario, Doe's inadvertent contamination of a needle is only the
first stage. There are many additional variable facts which must be accounted
for between the injury and administration of a parenteral product to a patient
for Respondent's scenario to present even a theoretical possibility for
transmission of HIV.

FN16. Drs. Arlen and Argani did not testify in the hearing which I conducted.
However, excerpts from their testimony in the hearing conducted by the New
York state Division of Human Rights concerning Doe's complaint to that agency
are in evidence. DHHS Ex. 9; DHHS Ex. 10. have read this testimony.

FN17. As was the case with Drs. Arlen and Argani, Dr. Wormser did not testify
in the hearing which I conducted Excerpts of his testimony before the New York
State Division of Human Rights are contained in DHHS EX. 14.

FN18. These include an attempt to attain compliance by voluntary means and a
finding on the record after opportunity for a hearing of the recipient's
failure to comply with the Act. 45 C.F.R. Sec. 80.8(c) (1), (2). The
regulations also provide that termination of federal funds will not become
effective until the expiration of 30 days after the secretary has filed with
the committees of the House and senate having legislative jurisdictiOn over
the program involved, a full written report of the circumstances and the
grounds for termination of federal funds. 45 C.F.R. Sec. 80.8(c)(3).

FN19. In its posthearing memorandum, the Department at times requested that I
order the termination of "federal financial assistance" to Respondent.
Department's Post Hearing Memorandum at 62. At other times it requested that I
order termination of "all DHHS funds" to Respondent. Id. The former request
might subsume federal payments other than those made by the Department. The
latter would seem to be confined only to department-funded programs, such as
Medicare and Medicaid. The remedy which I order provides for termination of
"federal financial assistance," as is provided for by the applicable
regulation. 45 C.F.R. Sec. 80.8(a). I make no finding in this decision whether
the secretary has authority to order termination of payments to a recipient
other than payments made by the Department pursuant to programs which it
administerS.

Steven T. Kessel