# 134

III-3.2000
III-3.3000 February 9, 1994

The Honorable Sonny Callahan

Member, U.S. House of Representatives
2970 Cottage Hill Road
Suite 126
Mobile, Alabama 36606

Dear Congressman Callahan:

This letter is in response to your inquiry on behalf of your

constituent, XXXXXXXXXXXXX, concerning the applicability of the
Americans with Disabilities Act ("ADA") to persons with HIV.

Your constituent inquired as to whether and why the

Department of Justice filed lawsuits against two dentists who
refused to treat HIV-positive persons. Specifically, your
constituent asked whether HIV-positive persons are protected by
the ADA, and whether dentists are required to treat such persons.

The Department of Justice did, in fact, file such lawsuits.

See United States v. Morvant, Civ. Act. No. 93-3251 (E.D.La.),
and United States v. Castle Dental Center, Civ. Act.
No. H-93-3140 (So.D.Tx.). The complaints allege that dentists in
New Orleans and Houston violated the ADA by refusing to treat
HIV-positive individuals, solely on the basis of their HIV-
positive status.

Title III of the ADA prohibits discrimination on the basis

of disability by places of public accommodation, including dental
offices. See ​ 36.104 and 36.201(a) of the enclosed regulation.
HIV infection meets the definition of "disability" because it is
a physical impairment that substantially limits one or more major
life activities, e.g. reproduction. 28 C.F.R. 36.104. In
fact, HIV disease, both symptomatic and asymptomatic, is
specifically listed as a covered disability in the title III
regulation. See 28 C.F.R. 36.104.

Accordingly, dentists are prohibited from discriminating

against HIV-positive persons under the ADA. Dentists may not
refuse to treat such persons solely on the basis of their HIV-
positive status. While it is true that a dentist is not required
to treat someone who would pose a significant risk to the health
or safety of others (see 28 C.F.R. 36.208), treating
individuals who have tested positive for HIV does not pose such a
risk.

According to the federal Centers for Disease Control and

Prevention ("CDC"), the risk of transmitting viruses like HIV in
the health-care setting is minimal, and can be severely lessened
by the use of infection control procedures, often described as
"Universal Precautions." These protective measures -- which
include the use of gloves, surgical masks, and protective
eyewear, the sterilization of medical instruments, the
disinfection of exposed environmental surfaces, and proper waste
disposal methods -- prevent the spread of almost all bloodborne
diseases, including HIV. The CDC recommends that dentists use
Universal Precautions with all patients and has not suggested
that additional precautions, such as "space suits," are
warranted. Moreover, the American Dental Association has taken
the position that Universal Precautions are an effective and
adequate means of preventing the transmission of HIV from dental
health care worker to patient and from patient to dental health
care worker.

Indeed, to date, there have been no documented cases of HIV

transmission from patient to dental health care worker. In light
of this information, and the information provided by the CDC and
the American Dental Association, the Department of Justice has
taken the position that, so long as the dental team follows
Universal Precautions, treating HIV-positive persons does not
pose a significant risk to the health or safety of the dentist,
the dental staff, or other patients. Accordingly, a dentist may
not refuse to treat an HIV-positive person, solely on the basis
of that patient's HIV-positive status.

I hope this information is helpful to you in responding to

your constituent. You may wish to inform your constituent that
further information is available through our Americans with
Disabilities Act Information Line at (202) 514-0301.
 Sincerely,

James P. Turner
Acting Assistant Attorney General
Civil Rights Division

Enclosure