DJ 202-PL-952

FEB 21 1995

John H. Chase, Esq.

General Counsel
Office of the Vermont Secretary of State
109 State Street
Montpelier, VT 05609-1101

Re: Inquiries on Vermont Professional Licensing

Applications

Dear Mr. Chase:

This letter responds to your inquiry regarding the content

of professional licensing applications in your State.
Specifically, you have requested guidance regarding whether
questions included on the Vermont Board of Nursing's licensure
application form are consistent with the Americans with
Disabilities Act, 42 U.S.C. SS 12101-12213 ("ADA"). According to
your letter, the Office of the Vermont Secretary of State
supports 33 other licensing boards which utilize similar
inquiries.

The ADA authorizes the Department of Justice to provide

technical assistance to individuals and entities having rights or
obligations under the Act. This letter provides informal
guidance to assist you in understanding the ADA's requirements.
However, it does not constitute a legal interpretation or legal
advice and it is not binding on the Department of Justice.

Two forms were appended to your letter. The first, labelled

"State of Vermont Renewal Application," contains five questions.
The first three questions pose no issue under the ADA. We
recommend, however, that Questions 4 and 5 be revised or
eliminated.

Question 4 and 5 now read:

[During the previous 2 years, have you]
4. Had a problem with substance abuse?
5. Received care for a physical or mental health problem
that may cause a threat to public safety during nursing
practice?
cc: Records, Chrono, Wodatch, Foran, FOIA, MAF
Udd:Foran:Vermont.ltr

01-03632

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To be completely consistent with the ADA, we would recommend that
Question 5 be revised to read as follows:

[During the previous 2 years, have you]

5. Had, or do you now have, a physical or mental health

problem that may cause a threat to public safety during
nursing practice?

We recommend that Question 4 be eliminated. In its place,

you may wish to substitute one or more inquiries from the
attached list of questions drafted by various licensing boards
and revised by the Department to comply with the ADA.1

The second form appended to your letter is untitled, but

bears a caption at the top that states, "THIS PAGE IS NOT SUBJECT
TO PUBLIC DISCLOSURE." There are six questions on this form, the
first four of which pose no issue under the ADA. Question 5
should be revised, however, and Question 6 eliminated.
Presently, Question 5 reads:

Have you had a mental, emotional or physical disability the

nature of which would interfere with your ability to
practice nursing competently?

The question should be revised to ask:

Do you have or have you had a mental, emotional or physical
disability the nature of which would interfere with your
current ability to practice nursing competently?

Question 6 is similar to Question 5 on the first form, and

like that inquiry, should be eliminated.
 1 We hope that the list of questions provides you with
useful examples (this list constitutes the significant portion of
the conference handout referred to in your letter). Various
licensing boards approached the Department for assistance in
revising their professional licensure applications consistent
with the ADA. Most of the questions focus on applicants'
behavior and conduct, while others ask whether applicants have
any condition that would currently impair their ability to
practice the profession in question. You will note that some of
the questions deal specifically with the practice of law. While
we do not endorse these as "model questions," we have concluded
that the questions do not on their face violate the ADA.
01-03633
-3-

I hope that this is helpful to you in your efforts to

promulgate professional application forms consistent with the
ADA. Please feel free to forward any additional materials on
which you wish the Department to provide technical assistance,
and to call me at (202) 616-2314 with any questions you may have.

Sincerely,

Sheila M. Foran
Attorney
Public Access Section
Enclosure

01-03634

-4-

SAMPLE QUESTIONS

Q. Do you have any condition or impairment that currently

impairs your ability to practice law? If the answer to the above
is yes, please set forth the specifics, including dates, the name
and the address of any treating physician or mental health
counselor.

"Medical condition or impairment" means any physiological,

mental or psychological condition, impairment or disorder,
including drug addiction and alcoholism.

"Ability to Practice Law" is to be construed to include the

following:
 a) The cognitive capacity to undertake fundamental
lawyering skills such as problem solving, legal
analysis and reasoning, legal research, factual
investigation, organization and management of legal
work, making appropriate reasoned legal judgments, and
recognizing and resolving ethical dilemmas, for
example.

b) The ability to communicate legal judgments and legal

information to clients, other attorneys, judicial and
regulatory authorities, with or without the use of aids
or devices; and

c) The capability to perform legal tasks in a timely

manner.2

Q. Have you ever been involved in, reprimanded for or

disciplined by an employer or education institution for
misconduct including:

a. acts of dishonesty, fraud, or deceit;

b. lying on a resume, or misrepresentation;

2 The Board understands that mental health counseling or

treatment is a normal part of many persons' lives and such
counseling or treatment does not of itself disqualify an
applicant from the practice of law. Furthermore, the Board does
not wish to pry into the private affairs of applicants. However,
the Board is obligated to determine whether an applicant is
physically and mentally fit to practice law and therefore, must
inquire into such matters to the extent necessary to make such
determination. The Board is not seeking disclosure of counseling
or treatment for a dramatic or upsetting event such as death,
break-up of a relationship or a personal assault, even if such
event does affect the applicant's ability to practice law for a
limited time.

-5-
c. academic misconduct, including such acts as cheating;
d. misconduct involving student activities;
e. theft;
f. excessive absences;
g. failure to complete assignments in a timely manner;
 h. actions in disregard of the health, safety and welfare
of others;
i. sexual harassment;
j. neglect of financial responsibilities.

If the answer to any of the above is yes, please set forth

the specifics, including date of the action; by whom taken; the
name and address of the employment supervisor or academic advisor
involved, if applicable and any person involved in the
investigation of your conduct.

Q. Have you ever been terminated or granted a leave of

absence by an employer or withdrawn from an education
institution?

If the answer to the above is yes, please set forth the

specifics, including date of the action; by whom taken; the name
and address of the employee's supervisor or academic advisor
involved.

Q. Are you currently engaged in the illegal use of drugs?

"Illegal Use of Drugs" means the use of controlled
substances obtained illegally as well as the use of controlled
substances which are not obtained pursuant to a valid
prescription or taken in the accordance with the directions of a
license health care practitioner.

"Currently" does not mean on the day of, or even the weeks
or months preceding the completion of this application. Rather,
it means recently enough so that the condition or impairment may
have an ongoing impact.3

3 You have a right to elect not to answer those portions of

the above questions which inquire as to the illegal use of
controlled substances or activity you have reasonable cause to
believe that answering may expose you to the possibility of
criminal prosecution. In that event, you may assert the Fifth
Amendment privilege against self-incrimination. Any claim of
Fifth Amendment privilege must be made in good faith. If you
choose to assert the Fifth Amendment privilege, you must do so in
writing. You must fully respond to all other questions on the
application. Your application for licensure will be processed if
you claim the Fifth Amendment privilege against self-
incrimination.

01-03636
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Q. In the past year, have you illegally used drugs? If
yes, provide details. (Illegal use of drugs means the unlawful
use of one or more drugs and/or the unlawful possession or
distribution of drugs. It does not include the use of drugs
taken under supervision of a licensed health care professional,
or other uses authorized by federal law provisions.)

Q. In the past year, have you ever been reprimanded,

demoted, disciplined, terminated or cautioned by an employer? If
so, please state the circumstances under which such action was
taken, the date(s) such action was taken, the name(s) of persons
who took such action and the background and resolution of such
action.

Q. Since the age of 18, or within the last five years

(whichever period is shorter), have you ever been reprimanded,
demoted, disciplined, cautioned or terminated by an employer for
alleged tardiness, absenteeism or unsatisfactory job performance
in your employment? If so, please state the circumstances under
which such action was taken, the date(s) such action was taken,
the name(s) of persons who took such action and the background
and resolution of such action.

Q. Have you ever been accused of mishandling, mismanaging,

or misappropriating the money or property of others? If so,
please state the date of such accusations, the person(s) making
such accusations, the specific accusations made, and the
background and resolution of such accusations.

Q. In the past year, have you suffered memory loss or

impaired judgment for any reason? If so, please explain in full.

Q. In the past year, have you failed to meet any personal

or business related deadlines for any reason? If so, explain in
full.
01-03637

Office of the Vermont Secretary of State Donald M. Hooper

Redstone Building, 26 Terrace Street Secretary of State

Mall: 109 State Street Claudia Horack Bristow

Montpeller, VT 05609-1101 Deputy Secretary of State

21 November 1994

Sheila Foran, Attorney

U.S. Department of Justice
Civil Rights Division, Public Access Section
Post Office Box 66738
Washington, DC 20035-6738

Dear Ms. Foran:

I heard you speak at this year's CLEAR Conference in Boston,

on the topic of ADA compliance. At one point you remarked that
your office was able to provide technical assistance on the
phrasing and subject of the questions licensing boards ask on
application and renewal forms.

I've enclosed copies of the questions used by the Board of

Nursing in the past. Perhaps you could identify the ones most
likely to be objectionable, and suggest alternatives. At the
conference, you referred to a handout which unfortunately was not
available. I'd appreciate a copy of that handout, assuming it
would provide guidance to the Board of Nursing.
 In addition to the Board of Nursing, this office supports 33
other professional licensing boards. Nearly every one uses the
kind of questions found on the Nursing Board forms. I'm eager to
revise as many of those questions as need revision, and I look
forward to your response.

Sincerely,

John H. Chase
General Counsel

Enclosure

cc: Anita Ristau, Executive Director

01-03638
​ STATE OF VERMONT
RENEWAL APPLICATION

I hereby apply for the renewal of my:

Current Expiration Renewal Period Covering Renewal Fee License

#
Renewals postmarked after the expiration date must include a late fee of
$25.00

* The fee of $40.00 represents the renewal fee of $35.00 and a $5.00
assessment
in accordance with 3 V.S.A. S 124 (b)

** Make any changes to your address in the blank space above.

Please check (X) if you wish inactive status (no fee required):

INFORMATION NEEDED
Circle yes or no, a yes requires an explanation * during the previous 2 years,
have you:

1. Applied for and been denied a nursing license in another state, or had a
nursing license suspended? Yes or No
2. Been subject to a disciplinary proceedings before a state board of
 nursing? Yes or No
3. Been convicted of a criminal offense, other than minor traffic violations?
Yes or No
4. Had a problem with substance abuse? Yes or No
5. Received care for a physical or mental health problem that may cause a
threat to public safety during nursing practice? Yes or No
* If necessary, additional pages may be attached.

ADDITIONAL QUALIFICATIONS FOR RENEWAL

Respond to part A or part B

A. I have practiced nursing as defined in Chapter 4, Rule II, Administrative

Rules, for at least: **
120 days (960 hrs) in the last 5 years, or 50 days (400 hrs) in the
last 2 years

at
(Name of specific Agency/Institution) (City/State) (Position)
OR
B. I have completed a Board approved program for re-entry into nursing within
the past five years
at
(Program Sponsor (School, Institution, or Person) (City/State) (Date)
** If private duty position - please note name, address of each patient(s),
number of days and hours for each; diagnosis; nursing care provided;
physician's
name and address. Attach additional papers if needed.
YOU MUST COMPLETE AND SIGN THE REVERSE SIDE OR YOUR
LICENSE WILL NOT BE
RENEWED

THIS PAGE NOT SUBJECT TO PUBLIC DISCLOSURE

Section III

APPLICANT'S NAME: Last First MI

Social Security # / / The disclosure of your social security number

is mandatory, pursuant to 42 U.S.C. Section 405 (c)(2)(c), and will be used by
the Vermont Department of Taxes in the administration of tax laws to identify
persons affected by such law.

1) Have you previously applied for a license in Vermont? Yes No

If yes: under what name?
2) Have you ever applied for and been denied a nursing license in another
state? Yes No

3) Do you now hold or have you ever held a Nursing License that has been
subject to disciplinary proceedings before any state licensing authority
or had a license revoked or limited in any way? Yes No

4) Have you ever been convicted of a criminal offense, other than a minor
traffic violation? Yes No

5) Have you had a mental, emotional or physical disability the nature of

which would interfere with your ability to practice nursing competently?
Yes No

6) Have you ever had a problem with substance abuse? Yes No

IF THE ANSWER TO QUESTIONS (#2 thru 6) IS YES, PLEASE IDENTIFY BY
NUMBER AND
EXPLAIN FULLY USING SEPARATE SHEETS OF PAPER, AS NEEDED.

Section IV

STATEMENT OF APPLICANT

I hereby certify that everything in this application is true and accurate to

the best of my knowledge.

Date Signature of Applicant

APPLICANT:

Attach two recent 2 x 2

passport-type pictures of
head and shoulders,
autographed with full name

Vermont Board of Nursing, 109 State Street, Montpelier, VT 05609-1106

Rev. 5/92

01-03640