Department of Health and Human Services
CIVIL RIGHTS REVIEWING AUTHORITY
In the Matter of: Westchester County Medical Center.
DATE: September 25, 1992
Docket No. 91-504-2
DAB Decision No. 1357
DECISION ON REVIEW OF ADMINISTRATIVE LAW JUDGE
DECISION
Westchester County Medical Center (Westchester) filed exceptions to
a
decision by Administrative Law Judge Steven T. Kessel issued April
20,
1992 (ALJ Decision) finding that Westchester violated section 504 of
the
Rehabilitation Act of 1973, as amended (Act). Section 504 prohibits
a
recipient of federal funds from discriminating against an
otherwise
qualified individual with handicaps solely on the basis of his or
her
handicap. The ALJ found that Westchester violated section 504
in
refusing to offer John Doe (Doe) unrestricted employment as a
hospital
pharmacist on the ground that he was infected with the Human
Immune
Deficiency Virus (HIV). (Doe's true name was withheld to protect
his
privacy.) Westchester filed numerous and detailed exceptions to the
ALJ
Decision; in essence, Westchester contended that it did not
violate
section 504 because Doe was not an individual with handicaps and
because
Doe posed a direct threat to the health and safety of other
individuals.
We have reviewed the ALJ Decision in our capacity as members of the
Civil
Rights Reviewing Authority. 1/
As explained in detail below, the ALJ correctly concluded that Doe
was
an individual with handicaps within the meaning of each of
the
alternative definitions in section 504. Doe's HIV infection
constituted
an impairment that substantially limited his major life
activities of
procreation and sexual contact. Doe was shown in
Westchester's records
as having HIV, and Doe moreover was regarded by
Westchester as having an
impairment that substantially limited his work
activities.
Further, the ALJ correctly concluded that Doe's unrestricted
employment
did not pose a direct threat to the health and safety of
other
individuals. The Department of Health and Human Services
(DHHS)
established a prima facie case that Doe did not pose a direct
threat.
DHHS relied on the undisputed fact that no instance of transmission
of
HIV or of hepatitis B (another blood-borne virus which is much
more
infectious than HIV) by a pharmacist to a patient has ever
been
reported. Moreover, the Centers for Disease Control (CDC), the
public
health agency responsible for evaluating risks posed by health
care
workers infected with HIV, has not recommended any restrictions of
the
type proposed by Westchester for pharmacists. Westchester attempted
to
rebut this prima facie case by describing a specific chain of
events
through which it believed Doe could infect patients with HIV in
the
course of his work. Westchester, however, did not establish that
any of
the events in the chain had even an extremely low probability
of
occurring or that Westchester's scenario was anything more than a
purely
speculative hypothetical. Thus, the ALJ correctly concluded
that
Westchester had not rebutted DHHS's prima facie case that
Doe's
employment would not pose a direct threat to the health and safety
of
others, in spite of the severity of the disease.
For these and other reasons described below, we uphold the ALJ Decision
in
its entirety and affirm all of the ALJ's findings of fact and
conclusions of
law (FFCLs).
We emphasize that our decision is limited to the facts established by
the
record in this case. In particular, the decision is based on
current
scientific knowledge concerning the modes of transmission of HIV
and the risk
of transmission of the disease by infected health care
workers. If
there are new developments in this field, it would be
incumbent on the
parties to consider their impact on this case. 2/
Regarding Doe's physical
condition, the record shows only that, at the
time Westchester considered Doe
for a position, Doe had an asymptomatic
HIV infection. If Doe has since
developed another contagious disease or
infection, it would be appropriate
for the parties to reconsider whether
Doe constitutes a direct threat within
the meaning of the statute and so
would not fall within the protection of
section 504 or whether some
restrictions on his employment might be
necessary.
Relevant Statutory and Regulatory Provisions
Section 504 of the Act (29 U.S.C. . 794(a)) provides:
No otherwise qualified individual with handicaps . . . ,
as
defined in section 706(8) of this title, 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 . . . .
Section 706(8)(B) of 29 U.S.C. provides:
. . . the term "individual with handicaps" means . . .
any
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 an impairment, or (iii)
is
regarded as having such an impairment.
Section 706(8)(D) of 29 U.S.C. provides that, for purposes of
employment,
the term "individual with handicaps" --
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.
The implementing regulations adopted by DHHS provide that any person
who
believes himself to be subjected to discrimination may file a
written
complaint with DHHS within 180 days of the alleged
discrimination. 45
C.F.R. . 80.7(b). The regulations further
provide that, if DHHS
determines upon investigation that --
there appears to be a failure or threatened failure to
comply
with this regulation, and if the non-compliance or
threatened
noncompliance cannot be corrected by informal means,
compliance
. . . may be effected by the suspension or termination of
or
refusal to grant or to continue Federal financial assistance .
.
. .
45 C.F.R. . 80.8(c).
Factual Background 3/
Doe is a pharmacist who is licensed to practice in the State of
New
York. He applied twice over a period of several years for a
pharmacist
position at Westchester while working as a pharmacist elsewhere
and was
ultimately interviewed and scheduled for a pre-employment
physical
examination. During the examination, Westchester's examining
physician
learned that Doe was infected with HIV. Doe did not have any
infections
other than HIV. 4/ HIV is a retrovirus that weakens the
immune system
of an infected individual by destroying certain cells that
combat
infection. As their immune systems weaken, individuals infected
with
HIV may begin to suffer from opportunistic infections, a
manifestation
of Acquired Immune Deficiency Syndrome (AIDS). Virtually
all persons
infected with HIV eventually develop AIDS and die from the
effects of
the disease. HIV can be transmitted from one individual to
another by
the introduction of HIV directly into the bloodstream, through
sexual
contact, or from mother to fetus. 5/
After learning of Doe's HIV status, Westchester did not offer Doe
the
position for which he had been considered. The specific job in
question
involved working initially on the midnight to eight a.m. shift in
the
hospital's main pharmacy, and then rotating to positions
in
Westchester's satellite pharmacies. Westchester later offered
Doe
employment on a restricted basis in a single satellite pharmacy
where
Doe would not rotate and would not be permitted to fill
prescriptions
for certain pharmaceutical products, known as parenteral
products. 6/
Parenteral products are prepared using needles and syringes to
transfer
substances from one container to another. The products, which
include
nutritional substances and oncology drugs, are administered to a
patient
by injection.
Westchester's offer of restricted employment was based on
Westchester's
concern that, absent such restrictions, Doe might: (a)
transmit HIV to
a patient through contamination of a parenteral product with
his own
blood; (b) transmit an infectious disease other than HIV to a
patient
with a compromised immune system through direct contact with
that
patient; or (c) acquire an infectious disease other than HIV from
a
patient through direct contact with that patient. FFCL 137.
Doe filed a complaint with the Office of Civil Rights within DHHS in
April
1987 alleging that Westchester had discriminated against him in
violation of
section 504. DHHS notified Westchester in March 1990 that
it had
concluded that Westchester had unlawfully failed to hire Doe on
the basis of
a handicap. When Westchester did not agree to engage in
the corrective
action which DHHS stated to be necessary, DHHS gave
Westchester notice of an
opportunity for hearing prior to termination of
all federal financial
assistance to Westchester. The ALJ Decision
ordering the termination of
such assistance based on a violation of
section 504 was issued after a
hearing and the submission of
post-hearing briefs. In reviewing that
decision, we consider the record
before the ALJ as well as the exceptions
filed by Westchester, DHHS's
response to the exceptions, amicus curiae briefs
filed by Lambda Legal
Defense and Education Fund, Inc. and the American
Medical Association
(both in support of DHHS's position), Westchester's
written reply to the
latter brief, and the transcript of an oral argument by
the parties.
Requirements for Finding a Section 504 Violation
The determination of whether there is a violation of section 504 is
a
multi-step process. In this section, we identify each of
the
requirements for finding a violation and state whether the
ALJ's
determination that the requirement was met is disputed in this
case.
o The entity which is alleged to have
discriminated must be a
recipient of federal
financial assistance. There is no dispute
that
Westchester was such a recipient.
o The complainant must be an individual with
handicaps by meeting
one of three alternative
definitions of such an individual:
o The person has a physical or mental impairment
which
substantially limits one or more of such person's
major
life activities. There is no dispute that
Doe's
infection with HIV constitutes a physical
impairment.
However, Westchester disputes the ALJ's finding
that
this impairment substantially limits one or more
of
Doe's major life activities.
[or]
o The person has a record of an impairment
which
substantially limits one or more of his major
life
activities. Westchester disputes the ALJ's finding
that
this definition applies.
[or]
o The person is regarded as having an impairment
which
substantially limits one or more of his major
life
activities. Westchester disputes the ALJ's finding
that
this definition applies.
o If the complainant has a currently contagious disease
or
infection, the complainant does not, by reason of such
disease
or infection, pose a direct threat to the health or safety
of
other individuals. There is no dispute that Doe is
infected
with HIV and that HIV is contagious. However,
Westchester
disputes the ALJ's finding that Doe does not pose a
direct
threat.
o If the complainant has a currently contagious disease
or
infection, the complainant is not, by reason of such disease
or
infection, unable to perform the duties of the job. There is
no
dispute that Doe would be able to perform the
unrestricted
duties of a pharmacist at Westchester despite the fact
that he
is infected with HIV.
o The complainant must be an otherwise qualified
individual
with handicaps. As defined by DHHS regulations, this
means that
the individual's handicap can be reasonably accommodated by
the
entity charged with discrimination. 45 C.F.R. . 84.3(k).
7/
Westchester did not dispute that Doe was "otherwise
qualified"
in this sense. 8/
o The complainant must have been subjected to
discrimination
solely by reason of his or her handicap.
Westchester disputed
the ALJ's finding that Doe was discriminated
against solely on
the basis of his handicap.
o The noncompliance with section 504 could not be corrected
by
informal means. Westchester disputed the ALJ's finding that
its
proposed voluntary compliance agreement would not have
resulted
in the cessation of discrimination against Doe.
Below, we discuss each of the requirements disputed by
Westchester,
identifying the relevant findings to which Westchester took
exception.
We discuss Westchester's remaining exceptions at the end of
the
decision.
Analysis
I. Whether Doe is an individual with handicaps
A. Whether Doe's HIV infection substantially
limits one or more of
Doe's major life
activities
The ALJ determined that Doe was a handicapped individual within
the
meaning of section 504. FFCL 158. He found specifically that
Doe met
each of the three alternative definitions in the statute of
an
individual with handicaps. First, the ALJ found that Doe's ability
to
engage in major life activities was substantially limited by his
HIV
infection. FFCL 151. The ALJ found specifically that sexual
contact
and procreation are major life activities, and that since HIV can
be
transmitted through sexual activity, "[t]hat would pose a
substantial
inhibition on any responsible person [with HIV] from engaging in
those
activities." ALJ Decision at 27. 9/ The ALJ relied on the
conclusion
in the Justice Department Opinion that procreation and intimate
personal
relations are major life activities which are substantially limited
by
asymptomatic HIV infection. The ALJ also cited Thomas v.
Atascadero
Unified School Dist., 662 F. Supp. 376 (C.D. Cal. 1987), for the
holding
that asymptomatic HIV infection substantially limits the major
life
activities of procreation and childbirth. In addition, the ALJ
noted
that no court had found that asymptomatic HIV was not a
handicapping
impairment. 10/ ALJ Decision at 24-27.
Westchester took exception to FFCL 151. 11/ It argued that the
first
definition of an individual with handicaps requires an
individualized
evaluation of whether a person's major life activities are
substantially
limited, noting that the statute requires that one or more of
"such
person's" major life activities be "substantially" limited.
Westchester
contended that since DHHS has not shown that Doe had any desire
to
procreate, procreation is not a major life activity for Doe.
In
addition, Westchester contended that the likelihood of Doe's engaging
in
procreative activity is speculative or theoretical since the
record
shows that Doe is homosexual. Westchester further contended that
Doe's
HIV infection at most limits his ability to engage in unprotected
sexual
contact, and that this does not constitute a substantial limitation on
a
major life activity. 12/
We conclude that the ALJ correctly decided that Doe's HIV
infection
substantially limits his major life activities of procreation and
sexual
contact. We agree with Westchester that, in order to give
meaning to
the statutory language, the determination of whether an activity
is a
major life activity and whether that activity is substantially
limited
by an impairment must be made on an individual basis. In our
view,
however, the terms "such person's" and "substantially" can be
given
reasonable effect without requiring the type of affirmative
presentation
of the impact of HIV on Doe's intimate personal relations
which
Westchester argued was required.
The desire to procreate and the desire for sexual contact are basic
human
instincts, necessary to the continuation of the species. Thus,
DHHS can
reasonably interpret the statute as authorizing a
discrimination action based
on an inference that these activities would
be major life activities for a
person of Doe's age and that having an
HIV infection would substantially
limit such activities. To require
DHHS to present affirmative evidence
of the intimate details of Doe's
life would hamper DHHS's ability to enforce
the Act.
Westchester cited the fact that Doe is homosexual as evidence that Doe
has
no desire to procreate. However, there is no basis in the record
for
concluding that, because of Doe's homosexuality or for any other
reason, he
does not have the desire to procreate or would not want to
procreate if he
were not infected with HIV.
Our analysis is supported by Doe v. Dolton Elementary School Dist.
No.
148, 694 F. Supp. 440. While in that case evidence was presented of
the
physiological effects of AIDS on the 12-year-old plaintiff, the
court
also found that his social activity would be hampered based not
on
affirmative evidence regarding the particular plaintiff's social
desire,
but based on the finding that even asymptomatic AIDS affects
procreation
and sexual activity generally. Moreover, the cases on which
Westchester
relied to support its contention that the Act requires an
individualized
evaluation of whether an impairment substantially limits major
life
activities, (E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088
(D.C.
Hawaii 1980), and Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986)),
do
not require affirmative evidence that a life activity is a major
life
activity for the individual alleging discrimination. These
cases
involved the question whether a limitation on a work activity
was
substantial. The individualized inquiry the courts engaged in there
was
necessary because work activity may differ significantly for
each
person, depending on factors such as their education and skills.
We also reject Westchester's argument that Doe's HIV infection
limited
only the activity of unprotected sexual contact, and that this did
not
constitute a substantial limitation. Westchester's argument is
based on
the assumption that the risk of infection through sexual contact can
be
eliminated by the use of some form of protection. However, the
record
shows that HIV is transmitted by sexual contact and there is no
evidence
to demonstrate that the risk of infection via sexual contact can
be
completely eliminated where one of the partners has HIV. Moreover,
the
infection necessarily creates psychological as well as
physical
barriers. As the American Medical Association stated in its
amicus
brief, "the contagiousness of the virus inevitably casts a pall over
all
of the individual's sexual and intimate relations,
substantially
compromising the individual's ability to engage in such
relations." AMA
brief at 23. Thus, the ALJ correctly determined
that a person who is
infected with HIV is substantially limited in this major
life activity.
Westchester also asserted that even if procreation and sexual contact
are
major life activities for Doe, any limitation on these activities as
a result
of his HIV infection is ethical rather than physical or mental,
as required
by 29 U.S.C. . 706(8)(B). The phrase "physical or mental"
in section
706(8)(B) modifies the term "impairment." The substantial
limitation
must be the result of the impairment, but nothing in the
wording of the
statute requires that the limitation be physical or
mental. Moreover,
the limitation in question is clearly not just
ethical in nature, but is
partly a result of the HIV infection and the
fact that Doe may physically
transmit HIV to his partner or to their
child.
Furthermore, Westchester pointed to nothing in the Act or its history
to
support a position that Congress intended that ethical considerations
be
ignored altogether in evaluating whether particular physical or
mental
impairments result in limitations, and in our view it would be
difficult
(if not impossible) to ignore such considerations.
Accordingly, the ALJ correctly concluded that procreation and
sexual
contact were for Doe major life activities which were
substantially
limited by his HIV infection.
B. Whether Doe has a record of having an
impairment which
substantially limits one or more of
his major life activities
The ALJ concluded that Doe met the second definition of an individual
with
handicaps because Westchester's records showed that Doe was
infected with
HIV. 13/ The ALJ held that the statute did not require
that the record
affirmatively state that the impairment substantially
limits the individual's
major life activities, but was satisfied where
the individual is recorded as
having an impairment and the impairment is
one which substantially limits the
individual's major life activities.
FFCL 153; ALJ Decision at 27.
Westchester took exception to FFCL 153 on the ground that Doe's
HIV
infection does not substantially limit any of his major life
activities.
However, the record supports the ALJ's finding that Doe's major
life
activities of procreation and sexual contact are substantially
limited
by his HIV infection and that Westchester regarded Doe's impairment
as
substantially limiting his ability to engage in work, a major
life
activity. Thus, there is substantial evidence to support the
ALJ's
determination that the second definition of an individual with
handicaps
was met here.
C. Whether Doe is regarded as having an
impairment which
substantially limits one or more of
his major life activities
The ALJ noted that this definition of an individual with handicaps
does
not require the complainant to prove that he has an impairment
which
substantially limits one or more of his major life activities,
but
merely that others regard him as having such an impairment.
ALJ
Decision at 28. The ALJ concluded that this definition was met
here
because Westchester treated Doe's HIV infection as
substantially
limiting his ability to engage in work, a major life
activity. FFCLs
154, 155.
In reaching this conclusion, the ALJ rejected Westchester's argument
that
the restrictions which it proposed to place on Doe's duties as a
pharmacist
would not significantly limit his ability to work. The ALJ
found that
the preparation of parenteral products is a major element of
the job of
pharmacist at Westchester. Specifically, the ALJ found that
all of
Westchester's 40 pharmacists are trained in the preparation of
parenteral
products (FFCL 21); that the duties of all 40 pharmacists,
including
supervisors, include the preparation of parenteral products
(FFCL 22); and
that since only one pharmacist is assigned to the
midnight to eight a.m.
shift, a pharmacist must be able to prepare
parenteral products in order to
work that shift (FFCLs 30, 31, 32). 14/
The ALJ also found that limiting
Doe's work site to one of Westchester's
satellite pharmacies would deny Doe
the opportunity afforded to other
pharmacists, who generally rotate among
Westchester's main and satellite
pharmacies, to prepare a broad range of
medications. 15/ The ALJ
concluded that both the restriction on
preparing parenteral products and
the work site restriction would prevent Doe
from attaining a
supervisor's job at Westchester as well as elsewhere (FFCL
139), and
that the work site restriction would prevent Doe from receiving a
five
percent pay differential for the midnight to eight a.m. shift
(FFCL
140). See also ALJ Decision at 29-30.
Westchester took exception to FFCLs 22, 139, 154 and 155, arguing that
an
inability to prepare parenteral products would not deprive Doe of
the
opportunity to advance to a supervisory position. Westchester
asserted
that three of Westchester's six pharmacy supervisors do not
routinely
prepare parenteral products, that preparation of such products
involves
only two out of at least 25 possible tasks to which a pharmacist may
be
assigned, and that Doe had no previous experience preparing
parenteral
products. Westchester also argued that even if its
proposed
restrictions would limit Doe's ability to work as a hospital
pharmacist,
this is not a substantial limitation on his ability to work
because
hospital pharmacy is only a subfield and Doe remains qualified for
other
positions in the field of pharmacy.
We conclude that the ALJ's finding that Doe would be precluded
from
becoming a supervisor if he were not permitted to prepare
parenteral
products is supported by substantial evidence. The fact that
half of
Westchester's pharmacy supervisors do not routinely prepare
parenteral
products does not mean that they never prepare such
products. The
record shows that supervisors occasionally prepare
parenteral products
when a pharmacy is shorthanded. Tr. of hearing at
918-919. Moreover,
absent evidence to the contrary, it is reasonable to
presume that a
supervisor of pharmacists who prepare parenteral products
needs to have
experience in preparing such products.
Moreover, although the preparation of parenteral products involves
only
two of 25 tasks listed as examples of work in Westchester's
job
description for the position of pharmacist (at DHHS Ex. 27), 16/
this
does not necessarily mean that the two tasks are not significantly
more
important than many of the other tasks or that only a small amount
of
time would be spent in performing them. Indeed, it appears that
a
significant portion of a pharmacist's time could be spent
preparing
parenteral products, since the record shows that the preparation
of
parenteral products is a time-consuming process (see,
e.g.,
Westchester's Ex. 145A and 145B, cited in the ALJ Decision at
29). In
any event, the fact that all pharmacists are trained to
prepare
parenteral products indicates that it is an important part of the
job
regardless of the time spent. Thus, the record supports the
ALJ's
conclusion that, in precluding Doe from engaging in such
work,
Westchester denied Doe an opportunity for advancement which
would
otherwise have been open to him, and substantially limited his
major
life activity of work. 17/
Furthermore, although Westchester took exception to the ALJ's finding
that
its proposed restrictions would deprive Doe of the opportunity
for
advancement to a supervisory position (FFCL 139), Westchester did
not
specifically dispute that the work site restriction would limit
Doe's
ability to advance to a supervisory position. In any event,
the
evidence clearly supports the ALJ's conclusion that Doe would not
be
exposed to the full range of pharmacy practice if he were restricted
to
certain satellite pharmacies and that, consequently, he could
not
reasonably expect to become a supervisor. Tr. of hearing at
1092.
Thus, even if Westchester were to permit Doe to prepare
parenteral
products, the work site restriction alone would constitute a
substantial
limitation on Doe's major life activity of work.
Westchester took the position, however, that its proposed
restrictions
would not have substantially limited Doe's ability to work
because Doe
had not had prior experience preparing parenteral products.
In support
of its position, Westchester cited E.E. Black, Ltd. v. Marshall,
497 F.
Supp. 1088. In that case, the court found that the complainant
was
substantially limited in his ability to work where he had completed
over
3,600 hours as an apprentice carpenter and could not have completed
the
8,000 hours required to become a journeyman if denied employment by
the
employer or by other employers using the same criteria applied by
the
employer. In reaching this conclusion, the court expressly took
into
account the fact that the complainant had prior training in the
skills
which would have qualified him for the job which he was
denied.
However, there is nothing in Black which implies that there are
no
circumstances under which an individual could reasonably expect
to
obtain a job requiring skills in which he had not had prior training
or
experience. Here, prior to learning of Doe's HIV infection,
Westchester
considered Doe qualified for a position which required the
preparation
of parenteral products, notwithstanding his lack of experience
in
preparing such products. DHHS Ex. 7 at 919. Thus, Doe
reasonably
expected to obtain this type of position despite his lack of
experience.
Moreover, Black does not support Westchester's argument that, even if
it
regarded Doe's HIV infection as substantially limiting his ability
to
work as a hospital pharmacist, Doe does not meet the third definition
of
an "individual with handicaps" because hospital pharmacy is only
a
subfield of pharmacy. Instead, the court in Black expressly stated
that
the question whether there would be a substantial limitation on
the
ability to work if an applicant were disqualified by reason of
a
handicap from employment in a particular subfield rather than an
entire
field of employment must be answered on a case-by-case basis,
taking
into account (1) the number of jobs from which the individual
was
disqualified; (2) the type of jobs from which the individual
was
disqualified; (3) whether there were other employers in the
geographical
area to which the individual had reasonable access who could
offer him
the same or a similar job; and (4) what constituted the same or
a
similar job based on the individual's job expectations and training.
The
court stated that if, based on these factors, "an individual
were
disqualified from the same or similar jobs offered by
employers
throughout the area to which he had reasonable access, then
his
impairment or perceived impairment would have to be considered
as
resulting in a substantial handicap to employment." 497 F. Supp.
1088,
at 1101. This approach is consistent with other case law holding
that
if the complainant has simply been denied the opportunity to work for
a
particular employer in a job which has unique requirements, then
the
complainant has not been substantially limited in his ability to
work.
See, e.g., Jasany v. U.S. Postal Service, 755 F.2d 1244 (6th Cir.
1985).
While there is no evidence in the record here regarding the number
of
other employers in the area who could offer the same or similar
jobs,
the record includes testimony by Westchester's director of
parenteral
products (in response to questioning by DHHS's counsel) that it
would be
a significant barrier in the career of a pharmacist to be kept
off
certain wards and prevented from preparing parenteral products. Tr.
of
hearing at 1092. 18/ This is compelling evidence that Doe was
not
simply denied the opportunity to work for a particular employer in
a
unique job.
Furthermore, Westchester, with a staff of 40 pharmacists, could
reasonably
be considered a major employer of hospital pharmacists.
Since Westchester
required all of its pharmacists to be able to prepare
parenteral products, it
is likely that this was a requirement for any
comparable job. (While
Westchester noted that Doe was previously
employed for several months as a
staff pharmacist at another area
hospital in a position which apparently did
not require the preparation
of parenteral products, this was a part-time
position (DHHS Ex. 1 at
420-424).) Thus, applying the court's test in
Black, the mere fact that
hospital pharmacy is a subfield of pharmacy does
not mean that the
limitation which Westchester regarded Doe as having was not
a
substantial limitation.
Accordingly, the ALJ correctly concluded that, because
Westchester
regarded Doe's HIV infection as substantially limiting Doe's
work
activity, Doe met the third definition of an "individual
with
handicaps."
II. Whether Doe Poses a Direct Threat to the
Health or Safety of
Other Individuals
Westchester took the position before the ALJ that Doe is not an
individual
with handicaps because he poses a direct threat to the health
of
Westchester's patients by virtue of his HIV infection.
Specifically,
Westchester contended that Doe could infect patients with HIV
through
parenteral products which he has inadvertently contaminated with
his
blood. Westchester further contended that Doe could communicate
other
infections sometimes associated with HIV to patients, particularly
those
who are immunocompromised, through direct contact with the patients
in
the course of performing his duties as a pharmacist. Westchester
also
argued that Doe might contract infections from patients because HIV
has
weakened his immune system. We discuss each of these
contentions
separately below.
A. Whether Doe Poses a Direct Threat of
Infecting Patients With
HIV
The ALJ found that Doe would not pose a direct threat of communicating
HIV
by performing the duties of a pharmacist at Westchester. In
reaching
this conclusion, the ALJ applied the "significant risk"
standard used by the
Supreme Court in School Bd. of Nassau County, Fla.
v. Arline, 480 U.S. 273
(1987), which the ALJ found was subsequently
codified in the "direct threat"
language of 29 U.S.C. . 706(8)(D). In
Arline, the Supreme Court stated
that the determination whether an
individual who was infected with a
contagious disease posed a
significant risk to others in the workplace, and
was thus not protected
by the Act, 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.
480 U.S. 273, at 288 (citing brief for American Medical Association
as
amicus curiae).
The ALJ found that HIV may be transmitted through the introduction
of
HIV-infected blood into the bloodstream, that Doe would be a
potential
source of infection for the rest of his life, and that HIV
almost
certainly causes the infected individual to develop the fatal disease
of
AIDS. FFCLs 68, 69; ALJ Decision at 38, 40. In view of these
findings,
the ALJ stated that --
I would find a "direct threat" or "significant risk" . . .
if
there was even a slight measurable risk that Doe might
infect
[Westchester's] patients through his preparation of
parenteral
products.
ALJ Decision at 47. 19/ However, the ALJ concluded that, although
it
was "not beyond possibility" that Doe could transmit HIV to
patients
(FFCL 96), the possibility that this might occur was "so small as
not to
be measurable." FFCL 101; see also ALJ Decision at 47, 50.
The ALJ
further concluded (1) that Doe's performance of the full range of
duties
of pharmacist at Westchester would not, by reason of his HIV
infection,
constitute a direct threat or significant risk; and (2) that in
denying
Doe the opportunity to perform those duties, Westchester
discriminated
against Doe within the meaning of section 504. FFCLs 156,
157, and 159.
The ALJ's conclusion was based on studies by CDC of the transmission
of
HIV and hepatitis B (HBV), another blood-borne virus which is 100
times
more infectious than HIV. 20/ The ALJ relied on CDC's findings
that no
incidence of transmission of HIV or HBV by a pharmacist to a
patient
through a contaminated parenteral product has ever been
documented
(FFCLs 86 and 92). The ALJ also relied on CDC's findings
that the risk
of transmission of HIV or HBV by infected health care workers
was
limited to exposure-prone invasive procedures, i.e.,
procedures
involving invasion of body cavities by infected health care
workers
where the area being worked on is difficult to visualize and where
sharp
instruments are involved (FFCLs 93 and 94). 21/ The ALJ found
that the
preparation of parenteral products does not meet any of the criteria
for
an invasive procedure. FFCL 95. The ALJ concluded that where
health
care workers follow universal precautions and do not perform
invasive
procedures, there is "no risk" that they will transmit HIV to
patients.
FFCL 80. The ALJ found specifically that 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. FFCL 87. The ALJ concluded in effect that
DHHS
had made a prima facie case that no meaningful risk of transmission
of
HIV would be posed by Doe's preparation of parenteral products. See
ALJ
Decision at 40, 42.
Westchester sought to rebut the evidence regarding the CDC studies
by
showing that there was a measurable risk that Doe could infect
patients
with HIV, under the following scenario:
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.
ALJ Decision at 42-43.
However, after carefully considering each event in the scenario, the
ALJ
concluded that Westchester's scenario constituted "speculation about
a
possible chain of events, without proof that there is a likelihood
that
the events . . . would or even could occur." ALJ Decision at
42.
On appeal, Westchester took exception to FFCLs 80, 87, 93, 94, 95,
101,
156, 157, and 159, arguing that it was not dispositive that no
invasive
procedure was involved here and that there was some likelihood that
each
of the events which make up Westchester's scenario could occur.
22/
Below, we discuss these events individually, concluding that the
ALJ
correctly concluded that Westchester did not establish that any of
the
events in the scenario had even an extremely low probability
of
occurring or that the entire scenario considered as a whole was
anything
more than a speculative hypothetical. Thus, the scenario
was
insufficient to overcome DHHS's evidence that Doe's
unrestricted
employment does not pose a direct threat.
1. There must be an unnoticed needlestick and
that needlestick
must draw blood.
The ALJ found that pharmacists occasionally do sustain needlesticks
while
preparing parenteral products. FFCL 57. 23/ However, the
ALJ
further found that Westchester failed to establish any likelihood
that
Doe would injure himself with a needle and not be aware of that
fact.
FFCL 99. 24/ In making this finding, the ALJ noted that the
testimony
of Westchester's witnesses that unrecognized needlesticks did occur
in
pharmacies was supported only by personal anecdotes and that
DHHS
witnesses had testified that such needlesticks had not occurred in
their
personal experience. 25/ The ALJ also stated that there were no
studies
showing that unrecognized needlesticks occurred with any
meaningful
frequency. In addition, the ALJ indicated that the fact that
episodes
of unnoticed self-injury incurred by surgeons have been documented
was
irrelevant since there may be poor visualization in the case of
the
surgical procedures but not in the preparation of parenteral
products.
ALJ Decision at 44.
Westchester took exception to FFCL 99, arguing that the ALJ ignored
the
evidence it presented that such needlesticks did occur. It
asserted
that the testimony of the pharmacist who testified for DHHS that he
had
never sustained an unnoticed needlestick did not contradict
evidence
that others had done so. 26/
We find that FFCL 99 is supported by substantial evidence in the
record,
and that the ALJ correctly discounted the evidence presented
by
Westchester. While DHHS, like Westchester, presented only
anecdotal
evidence concerning the likelihood of unnoticed needlesticks, the
ALJ
stated that he found the DHHS testimony "more authoritative" based
on
the witnesses' backgrounds and experience and their answers to
questions
posed by counsel for the parties. ALJ Decision at 37, n. 11
and n. 12.
Westchester did not offer any reason why we should not defer to
the
ALJ's credibility findings other than to note that one of the
DHHS
witnesses on whose testimony the ALJ relied was a doctor certified
in
internal medicine, not a pharmacist. However, there is nothing in
the
record which indicates that this witness' experience was not
relevant.
Indeed, in its exceptions, Westchester cited the testimony of
several
doctors regarding their experience with unnoticed needlesticks
(e.g.,
DHHS Ex. 10 at 1247; DHHS Ex. 17 at 2011). Thus, we conclude
that the
ALJ correctly relied on the testimony of the DHHS witnesses.
The ALJ could also have discounted the testimony of
Westchester's
witnesses on the ground that there is no evidence that the
unnoticed
needlesticks of which they claimed knowledge occurred
under
circumstances which were comparable to the circumstances here.
There is
no indication in the record that any of the alleged
unnoticed
needlesticks were sustained by individuals with a serious,
blood-borne,
infectious disease such as HIV. Thus, unlike Doe, they
would have had
no reason to exercise greater care to avoid contaminating a
needle with
their blood than they would otherwise exercise. It seems
reasonable
moreover to presume that a diligent pharmacist would be able to
notice
any needlesticks in light of evidence in the record that
parenteral
products are prepared with the pharmacist's hands in full view and
that
aseptic technique requires the pharmacist to avoid any contact with
the
needle. See Tr. of hearing at 782, 785.
Westchester also argued that the lack of studies documenting
unnoticed
needlesticks in pharmacies was not significant. It relied on
testimony
that there was no reason to report needlesticks unless they posed
a
danger to the pharmacist. However, the fact that any contact with
a
needle, even if the pharmacist does not sustain a needlestick,
is
regarded as a breach of aseptic technique (FFCL 58) indicates that
a
needlestick could pose a danger to the patient even where HIV was not
a
known factor. Moreover, the same witness admitted that there would be
a
danger to the pharmacist if the needle contained "an
anti-neoplastic
agent" (a chemotherapy drug). Tr. of hearing at
937. Since the
evidence supports a finding that there are dangers from
unnoticed
needlesticks and thus always a reason to report them, we conclude
that
the inference the ALJ drew from the lack of any formal studies
was
reasonable. 27/
Accordingly, we conclude that the ALJ correctly concluded that
Westchester
did not meet its burden of establishing that there was more
than a
hypothetical possibility that an unnoticed needlestick that drew
blood might
occur in the course of preparing parenteral products.
2. The needle must be contaminated with blood containing
an
infectious dose of HIV.
The ALJ found that Westchester failed to establish that the blood
which
would contaminate the needle if there were an unnoticed
needlestick
would contain an infectious dose of HIV, i.e., a sufficient
quantity of
HIV to cause infection. The ALJ found that whether the
blood would be
infectious depends on factors including the volume of blood
and the
amount of HIV present in that blood. The ALJ also found that
the .3 to
.5 percent rate of infection where a health care worker is stuck by
a
needle filled with blood drawn from an HIV-infected patient (a
direct
needlestick) is not "even remotely related" to the risk of
infection
under Westchester's scenario since additional steps would be
required to
transmit the infection following an unnoticed needlestick.
FFCL 74; ALJ
Decision at 45, n. 15.
Westchester took exception to FFCL 74, contending that the witness
who
testified regarding the factors which determine an infectious dose
did
not definitively state that the volume of blood and the amount of HIV
in
the blood were factors, but merely that they "may" or "might"
be
factors. This contention is not supported by the record.
Counsel used
the words "may" and "might" in questioning the witness; however,
the
witness clearly stated that the amount of blood and the amount of HIV
in
that blood "would be" some of the factors. Tr. of hearing at
192-193.
Westchester also contended that the ALJ ignored other possible
risk
factors such as the route of exposure and the immunologic status of
the
recipient of the contaminated blood. Westchester asserted that the
risk
of transmission was increased here because the route of transmission
of
the HIV-infected blood would be intravenous and many of its
patients
were immunocompromised. Assuming that these factors are
associated with
an increased risk and were present in a particular case, the
patient
would still not be infected with HIV if the amount of blood
transmitted
and the amount of HIV in the blood were not sufficient to
cause
infection. Since the ALJ concluded that Westchester failed to
establish
that the amount of blood and HIV in the blood would be sufficient,
he
did not err in failing to mention these other factors in his findings.
Westchester also argued that there was evidence that even a small
quantity
of HIV-infected blood was sufficient to cause infection.
However, the journal
article which Westchester cited supports a contrary
conclusion, since it
states that "a large inoculum of HIV-containing
blood given by the
intravenous route carries an extremely high risk of
infection" while "a
single small inoculum delivered by the parenteral
route is associated with a
very low risk." DHHS Ex. 45 at 2. In
addition, Westchester relied
on a report of a direct needlestick which
indicated that the quantity of
virus which caused the infection was
small since the health care worker had
received merely a puncture wound
without injection of the contaminated
blood. See R Ex. 97. However,
this report does not specify the
amount of blood involved nor is there
any basis in the record for concluding
that the amount was as small as
the amount of blood which would contaminate a
needle as a result of the
needlestick in Westchester's scenario. Thus,
this report does not
establish that the blood in this scenario would contain
an infectious
dose of HIV.
Westchester also reiterated its argument that the probability of
infection
here was equal to the .3 to .5 percent rate of infection for
direct
needlesticks. This argument presumes that an unnoticed
needlestick
would occur in the first instance. Even if one did occur,
however, the
quantity of blood from an unnoticed needlestick (assuming
blood contamination
occurred at all) may differ significantly from the
quantity of blood in a
needle used to draw blood. Furthermore, as noted
by the ALJ, the
situation in Westchester's scenario differs from
infection by direct
needlestick because additional steps are required
for infection in the former
case.
Westchester argued in addition that it was inappropriate to
consider
merely the probability of infection from a particular needlestick,
since
"[w]hat matters is the cumulative, increasing risk as needle
entry
procedures are repeated again and again." Westchester's response
to
amicus brief of American Medical Association at 32. The ALJ in
fact
recognized that, in the course of his work, Doe would repeatedly
use
needle entry procedures in preparing parenteral products. See FFCL
37.
However, this does not result in an "increasing risk" since the
ALJ
found that Westchester had not established that there was even
an
extremely low probability of an unnoticed needlestick. FFCL
99.
(Moreover, the ALJ found that even if an unnoticed needlestick
did
occur, Westchester had not shown that it would result in transmission
of
Doe's HIV infection since there was no established probability that
all
the intervening events in Westchester's scenario would occur.)
Accordingly, we conclude that the ALJ correctly concluded that
the
evidence did not establish that there was a measurable risk the
needle
would be contaminated with an infectious dose of HIV-infected
blood.
3. Blood containing an infectious dose of HIV
must be transmitted
from the needle to the
parenteral product.
The ALJ found that, in preparing parenteral products,
Westchester's
pharmacists "will insert needles through protective barriers
and draw
substances into syringes" (FFCL 35) and that the pharmacists
"will
insert needles . . . through protective barriers, into containers,
and
inject the contents of the syringes into those containers" (FFCL
36).
The ALJ stated that "[c]ontaminating substances which are on the
outer
surface of a needle might well be wiped off by any barriers
through
which that needle is inserted." ALJ Decision at 46.
Westchester took exception to FFCL 35, arguing that the ALJ
erroneously
found that all parenteral products prepared by Westchester
involve the
insertion of needles through protective barriers.
Westchester noted in
support of its argument that a videotape in the record
(Westchester Ex.
145B) showed one of its pharmacists repeatedly withdrawing a
diluent
from ampules which did not contain protective barriers.
Westchester
also asserted that a protective barrier would not prevent blood
inside
the needle from being injected into the parenteral product.
We agree with Westchester that the record does not establish
that
protective barriers are always used whenever a needle is inserted into
a
container during the preparation of parenteral products. FFCL 52
states
that "[i]njectable medications are usually supplied in vials or
ampules
. . . ." FFCL 53 further states that vials are glass
containers with a
rubber stopper (which would function as a protective
barrier). On the
other hand, FFCL 55 states that "[a]mpules must be
properly handled by
pharmacists to avoid contamination of the products which
they contain,"
and cites DHHS Ex. 71, which states that ampules are "composed
entirely
of glass and, once broken, become open-system containers."
Thus,
protective barriers are not present when medication is withdrawn from
an
ampule.
Nevertheless, there is no dispute that protective barriers are
present
both when medication is withdrawn from a vial and when medication
is
injected from either an ampule or a vial into the container from
which
the parenteral product is supplied to the patient (FFCL 36).
Thus, the
ALJ correctly concluded that protective barriers reduced the
likelihood
of blood being transmitted from the needle to the parenteral
product.
As Westchester pointed out, the ALJ did not address the possibility
that
blood from a needlestick could be inside the needle. However,
while a
DHHS witness acknowledged this possibility, she stated that there
has
been no study which measured the amount of blood which would
typically
flow into the needle. Tr. of hearing at 241-245. Since
Westchester
presented no proof that any significant amount of blood would be
inside
the needle, the use of protective barriers remains a factor which
makes
it less likely that blood containing an infectious dose of HIV would
be
transmitted from the needle to the parenteral product.
Even if the use of protective barriers did not reduce the risk
of
infection, moreover, this would not be a basis for reversing the
ALJ's
conclusion that Doe does not constitute a direct threat
since
Westchester failed to establish that any of the other steps in
the
scenario had even an extremely low probability of occurring.
4. HIV must survive in the parenteral product
long enough to
infect a patient.
The ALJ found that Westchester failed to establish that any
HIV
transmitted to a parenteral product would survive long enough to
infect
a patient to whom the product is administered. The ALJ noted
that HIV
does not survive for long in mediums other than human tissues or
tissue
products and that many parenteral products are toxic substances.
The
ALJ concluded that, in the absence of any studies showing that HIV
would
survive in parenteral products, it was simply speculative to say that
it
could. FFCL 100; ALJ Decision at 46.
Westchester took exception to FFCL 100. It argued that, while there
are
no studies regarding the survivability of HIV in parenteral
products,
there is evidence from which it can be inferred that HIV would
survive
in most such products. Westchester cited a report of a CDC
study in
which concentrated amounts of HIV (100,000 times greater than
typically
found in the blood of patients with HIV) were dried and then
introduced
into tissue culture fluid. CDC found that cell-free HIV
could be
detected up to 15 days at room temperature and up to 11 days at
normal
body temperature, and that cell-associated HIV could be detected up
to
one day. DHHS Ex. 85 at 10S. One of Westchester's witnesses
testified
that, since HIV can survive in tissue culture fluid, it is likely
to
survive in parenteral products because most such products are
compatible
with human physiology and are similar to tissue culture fluid in
that
they can support the growth of cells. The witness noted
specifically
that bacteria and fungi can grow in parenteral products.
Tr. of hearing
at 1606.
We conclude that Westchester failed to establish that HIV can survive
in
parenteral products through the time the products are administered
to
patients. Westchester argued in essence that tissue culture fluid
is
similar to parenteral products in that both can support the growth
of
cells, including bacteria and fungi, so that it can be inferred from
the
fact that HIV can survive in tissue culture fluid that it can
also
survive in parenteral products. However, even if tissue culture
fluid
and parenteral products are similar in their ability to support
the
growth of cells, this does not necessarily mean that HIV -- a virus
--
can survive in one as well as the other.
Moreover, even if the HIV virus could theoretically survive in
a
parenteral product, it is not clear that it could survive under
the
circumstances here. The CDC study involved concentrated amounts of
HIV,
while in Westchester's scenario, the HIV would be diluted in
the
parenteral product. A DHHS witness testified that it was not clear
that
HIV would survive under these circumstances. Tr. of hearing at
203. In
addition, the record does not show how long various types of
parenteral
products might be stored before they are administered to a
patient, 28/
nor at what temperature they might be stored. Thus, the
fact that in
the CDC study HIV survived in tissue culture fluid for several
days at
particular temperatures does not show that it would survive
in
parenteral products prepared by Doe, which would be stored for
varying
lengths of time and under varying conditions. Finally,
Westchester
limited its argument to parenteral products which are compatible
with
human physiology, and did not dispute that some parenteral products
are
toxic and that HIV is unlikely to survive in such products.
Accordingly, we conclude that the ALJ correctly determined
that
Westchester did not present evidence sufficient to show that HIV
would
survive in a parenteral product long enough to infect a patient to
whom
the product was administered.
In summary, we conclude that Westchester did not rebut DHHS's prima
facie
case that Doe does not pose a direct threat of communicating his
HIV
infection to others in the course of preparing parenteral
products.
Westchester merely posited that a long sequence of highly
unlikely
events would occur, overcoming many potentially critical
supervening
factors such as aseptic technique, the use of protective
barriers,
dilution or destruction of the virus in the parenteral product,
and
storage of the product under unknown conditions, as well as
the
demonstrated low risk of infection even among those receiving
direct
needlesticks. Westchester did not establish that any of the
individual
events in its scenario had even an extremely low probability
of
occurring or that the entire chain of events was more than a
speculative
hypothetical. We therefore conclude that there is
substantial evidence
in the record to support the ALJ's determination that
Doe does not pose
a direct threat on this basis.
B. Whether Doe Poses a Direct Threat of
Communicating Infections
Other Than HIV to
Patients
Westchester contended before the ALJ that Doe poses a direct threat
of
communicating infections other than HIV to Westchester's
patients,
particularly patients who are immunocompromised. The ALJ
rejected this
contention, finding that "[t]he 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." FFCL 102. The ALJ also
stated that
"[t]here is no evidence here that Doe presently manifests
infections,
other than HIV, which he might transmit to others." ALJ
Decision at 39.
Westchester took exception to FFCL 102. Westchester pointed
to
testimony by a CDC official that she would recommend
that
immunocompromised health care workers avoid exposure to patients
with
infectious diseases as evidence that a health care worker with
an
infectious disease poses a similar risk to patients. Westchester
also
noted that CDC has found that health care workers with impaired
immune
systems resulting from HIV infection are at increased risk of
acquiring
other infectious diseases such as tuberculosis from
patients.
Westchester contended that simply because this risk was not
"measurable"
did not mean that it did not exist. Westchester also took
exception to
FFCL 156, the finding that Doe would not pose a direct threat to
the
health or safety of other individuals if he performed the full range
of
duties of a pharmacist at Westchester, on the same ground.
We conclude that it is not necessary to address Westchester's exception
to
FFCL 102 in view of the ALJ's finding that Doe has no infection other
than
HIV. Under the statute, an individual with handicaps 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 and safety of other individuals
. . . ." 29 U.S.C. .
706(8)(D) (emphasis added). Thus, an individual
cannot be denied the
protection of the statute on the ground that he or
she may in the future
develop a contagious disease, even if the
individual would constitute a
direct threat by virtue of that disease.
Accordingly, even if FFCL 102 is not supported by substantial evidence
in
the record, there is substantial evidence to support the ALJ's
ultimate
conclusion that there was no showing that Doe constituted a
direct threat on
the ground that Doe might communicate infections other
than HIV to
Westchester patients.
However, as we noted previously, our decision does not
preclude
Westchester from inquiring into Doe's current health status to
determine
whether Doe now has a contagious disease other than HIV which
justifies
some restrictions on, or the denial of, employment. As the
ALJ pointed
out, if there were evidence that Doe was infected by some
other
contagious disease, a separate analysis would be required to
determine
whether Doe poses a direct threat on that basis. ALJ Decision
at 40, n.
13.
C. Whether Doe Poses a Direct Threat of
Contracting Infections
from Patients
The ALJ concluded that Doe does not pose a direct threat to the health
and
safety of others on the ground that he might contract infections
from
occasional patient contact in the course of his duties as a
pharmacist.
This conclusion was based in part on his finding that the
evidence does not
show that Doe's immune system has been sufficiently
weakened by his HIV
infection to make him more susceptible to other
infections than someone not
infected with HIV. ALJ Decision at 39. The
ALJ also found that,
although individuals with HIV may develop
opportunistic infections as a
result of the weakening of their immune
systems (FFCL 62), these infections
are usually caused by organisms
latent within their bodies and not by outside
sources (FFCL 63). In
addition, the ALJ found that tuberculosis is one
of the opportunistic
infections sometimes manifested by individuals with HIV
(FFCL 64), but
that there was no evidence that an individual with HIV is more
likely
than other individuals to acquire tuberculosis from an external
source
(FFCL 65). Based on these findings, the ALJ stated that there is
no
conclusive evidence that individuals with HIV are more likely
to
contract illnesses from outside sources than are other individuals.
ALJ
Decision at 39.
Westchester took exception to FFCLs 63 and 65, arguing that
HIV-infected
individuals with compromised immune systems, such as Doe, are
at
increased risk of acquiring infectious diseases if exposed to
external
sources of infection. Westchester asserted that Doe's immune
system was
abnormal, as shown by the fact that his T-cell count was well
below the
normal reference range of the testing laboratory. Westchester
also
pointed again to the testimony of CDC officials and the
CDC
recommendation regarding the exposure of HIV-infected health
care
workers to patients with infectious diseases. 29/
We conclude that the ALJ correctly determined that Doe did not pose
a
direct threat on the ground that he was likely to contract
infections
from patients since there is substantial evidence that individuals
whose
immune systems have been weakened by HIV are no more likely than
other
individuals to contract an infectious disease.
Specifically, there is
undisputed testimony that the vast majority of
illnesses developed by
HIV-infected individuals are not caused by outside
sources. Tr. of
hearing at 104-108. Moreover, there is undisputed
testimony that 80 to
90 percent of the cases of tuberculosis in the United
States are caused
by reactivation of an infection that was already
present. Id. at 107.
Thus, the ALJ's determination is supported by
evidence that
immunocompromised individuals are generally not more
susceptible to
illnesses caused by external sources. 30/
Moreover, even if immunocompromised individuals are more likely than
other
individuals to contract infectious diseases, this would not
justify
Westchester's proposed restrictions on Doe's employment because
Westchester
did not establish that Doe would be exposed to such
infections in the course
of his employment. (We assume for purposes of
this discussion that Doe
is immunocompromised; however, we do not decide
this issue since it would not
change the result in this case even if the
ALJ erred in finding that Doe is
not immunocompromised.)
Westchester claimed that Doe would have occasional contact with
patients
in the hallways adjacent to satellite pharmacies or in a patient's
room
when monitoring a parenteral product which is being
administered
intravenously. However, CDC's recommended guidelines for
preventing
transmission of serious airborne diseases such as tuberculosis
require
that a patient be isolated in a private room with special
ventilation
and that the door to the room be kept closed. DHHS Ex. 159
at A8-18.
Westchester did not allege that it did not follow these
guidelines.
Thus, patients who might be likely to transmit serious infections
to Doe
would not generally be in the hallways. Moreover,
although
Westchester's job description for a hospital pharmacist
lists
"monitor[ing] patients on I.V. [intravenous] therapy, using
individual
records for that purpose" as an example of work (DHHS Ex. 27 at
1),
there is no indication in the record that this is a regular duty or
that
a pharmacist would perform this task even if a patient was in
isolation.
Since there is no demonstrated probability that Doe would acquire
an
infection from patients in the course of his employment, Doe does
not
pose a direct threat even assuming that he is more likely
than
individuals without HIV to contract other infections.
The CDC publications to which Westchester referred are consistent
with
this analysis. While these publications note that
immunocompromised
health care workers with HIV are at increased risk of
acquiring other
infections from patients, the publications refer to health
care workers,
such as nurses, who are engaged in direct patient care.
Furthermore,
these publications do not recommend that the duties of
immunocompromised
health care workers automatically be modified, but instead
suggest that
these workers "should be counseled about the potential risk
associated
with taking care of patients with transmissible infections and
should
continue to follow existing recommendations for infection control
to
minimize their risk of exposure" to such infections. DHHS Ex. 81 at
691
(emphasis added). See also DHHS Ex. 85 at 16S and R. Ex. 15 at
15.
Thus, CDC's official recommendations indicate that, even if Doe were
at
increased risk of contracting infections from patients, this does
not
require the particular restrictions which Westchester sought to
impose
on him.
III. Whether the Discrimination Was Solely on
the Basis of
Handicap
The ALJ concluded that the restrictions which Westchester sought to
impose
on Doe's employment were based solely on Doe's handicap and
Westchester's
perception of that handicap. FFCL 136 and 160. The ALJ
rejected
Westchester's contention that the restrictions on Doe's
employment were
required by New York State law, which prohibited the
employment of actively
infected individuals. The ALJ noted that the
State itself found that
Westchester was discriminating against Doe and
that, in any event, the Act
governed in the event of a conflict with
State law. 31/ Based on his
finding that Doe did not pose a significant
risk to the health and safety of
others, the ALJ also rejected
Westchester's contention that the restrictions
were based on its ethical
duty to protect its patients against the risk that
Doe might infect
them.
Westchester took exception to FFCLs 136 and 160. Westchester
argued
again that the restrictions were required by its duty to protect
its
patients. Since we affirm the ALJ's finding that Doe did not pose
a
significant risk, however, there is simply no basis for this
argument.
Westchester also argued that the restrictions were based on New
York
State law requiring it to provide a safe workplace and on its
general
responsibility to provide reasonable and adequate protection for
Doe.
However, barring Doe from preparing parenteral products would do
nothing
to protect Doe from acquiring infections from patients.
Even
restricting Doe's work site to pharmacies not serving
immunocompromised
patients would not protect Doe from acquiring infections
from patients
other than immunocompromised patients. Thus, the
restrictions are not
justified on the ground that they are designed to
protect Doe.
Accordingly, we affirm the ALJ's determination that
Westchester
discriminated against Doe based solely on his handicap.
IV. Whether the Noncompliance Can Be Corrected by Informal Means
The ALJ concluded that, notwithstanding Westchester's offer to enter
into
a voluntary compliance agreement with DHHS, Westchester's
noncompliance with
section 504 could not be "corrected by informal
means," as required by 45
C.F.R. . 80.8(c). FFCL 161. The ALJ noted
that the proposed
agreement provided that Westchester would follow
guidelines which
incorporated the "significant risk" standard in the
Supreme Court's decision
in Arline. However, the ALJ determined that
the agreement "placed form
over substance" since there was nothing to
prevent Westchester's directors
and Employee Health Service staff, who
were charged with applying the
guidelines, from determining that Doe
posed a significant risk and that the
restrictions which Westchester
sought to impose on Doe were justified.
ALJ Decision at 53.
Westchester took exception to FFCL 161 on the ground that its
proposed
voluntary compliance agreement satisfied the requirements of the
Act.
However, Westchester did not dispute that its implementation of
this
agreement might result in an offer of employment to Doe imposing
the
same restrictions which the ALJ found violated section 504 of the
Act.
Westchester also contended in its exception to FFCL 162 (a finding
that
Westchester had a policy of discrimination against
HIV-infected
employees) that under its section 504 Grievance Procedure, the
decision
of the director of the county Office for the Disabled would be
binding
failing informal settlement of a complaint. However, the
existence of
this grievance process would not prevent Westchester from
engaging in
discrimination in the first instance. Moreover, there is no
assurance
that the decision of the Office for the Disabled would be
consistent
with the requirements of section 504.
Accordingly, we conclude that the ALJ's finding that the
discrimination
could not be corrected by informal means is supported by
substantial
evidence.
V. Whether Termination of All Federal Funding Is the Proper Remedy
The ALJ concluded that all federal financial assistance to
Westchester
must be terminated until such time as Westchester complies with
the
requirements of section 504. FFCL 164. The ALJ noted that
under 45
C.F.R. . 80.8(a), termination of federal financial assistance is
an
appropriate remedy for refusal to comply with the statute. He
noted
further that under section 80.8(c)(3), any action to terminate
such
assistance is limited to the particular program or part of a program
in
which noncompliance has been found. The ALJ determined, however,
that
the termination of all federal funding was required here
since
Westchester has a policy of discrimination against
HIV-infected
employees (FFCL 162) and that policy affects all of
Westchester's
federally funded programs (FFCL 163). The ALJ also found
in support of
his decision to terminate all federal funding that the federal
funding
which Westchester receives in the form of Medicare and Medicaid
payments
supports all of Westchester's operations and it is not possible
to
identify specific payments used to support staff compensation, much
less
pharmacists' compensation or pharmacy operations. ALJ Decision at
154.
Westchester took exception to FFCL 164 on the ground that the
applicable
law and regulations authorize but do not require the termination
of all
federal funding. The FFCL does not purport to state the
applicable
requirements, however, but rather the ALJ's conclusion regarding
the
appropriate remedy in this case.
Westchester also argued that termination of all federal funding is not
an
appropriate remedy because there is no proof of discrimination
against
patients, for whose benefit Westchester alleged the hospital
exists.
However, section 504 prohibits discrimination "under any
program or activity
receiving Federal financial assistance," and is not
limited to discrimination
against the direct beneficiaries of the
program.
Westchester also took exception to FFCLs 162 and 163, arguing that it
did
not have a policy of discrimination against HIV-infected employees.
There is
substantial evidence in the record that Westchester had such a
policy,
however. Although Westchester pointed out that its policy
prohibiting
pharmacists who are "actively infected" from handling
intravenous fluids
pre-dated the discovery of HIV, it did not deny that
it applied this policy
to discriminate against individuals with HIV.
Moreover, as the ALJ observed,
as long as Westchester "contends that the
actions it took in Doe's case are
reasonable, the potential exists for
[Westchester] to impose similarly
arbitrary restrictions against any
HIV-infected employee or job
applicant." ALJ Decision at 54. Even if
Westchester has not
discriminated against an employee or applicant other
than Doe, this does not
mean that it would not do so presented with a
similar situation.
Furthermore, even if Westchester's discrimination
was limited to Doe, the
termination of all federal funds is justified in
view of the undisputed fact
that the federal funds used to support
Westchester's discrimination against
Doe are commingled with other funds
to support Westchester's entire
operations.
Accordingly, we conclude that the ALJ's determination that the
termination
of all federal funding is an appropriate remedy is supported
by substantial
evidence.
Ruling on Admission of Additional Evidence
In letters dated August 3 and August 5, 1992, Westchester requested
that
the Panel consider as part of the record in this case three articles
and
an editorial published in the Annals of Internal Medicine, Vol. 117,
No.
3 (August 1, 1992). At the time these materials were published,
the
briefing and argument provided for by the Panel had been
completed.
Westchester nevertheless argued that these materials should
be
considered "because they represent newly available information"
and
"because they reflect an apparent change in the CDC's position on
the
question of the risk of newly acquired tuberculosis to
HIV-infected
persons." Letter dated August 5, 1992 at 3.
Westchester asserted
specifically that, contrary to FFCL 65, the materials
indicate that
immunocompromised patients are at greatest risk of acquiring
multi-drug
resistant tuberculosis. In addition, Westchester asserted
that,
contrary to FFCL 102, the materials show that health care workers
who
suffer from opportunistic infections pose a measurable risk
to
communicate those infections to immunosuppressed patients. 32/
DHHS
objected to the inclusion of the materials in the record on the
ground
that they do not contain new information which is contrary to any
FFCL.
We conclude that the materials in question should be admitted into
the
record since they contain new information which was not
previously
available. However, we further conclude that none of this
information
has any bearing on the FFCLs identified by Westchester.
The first and third articles in question describe outbreaks of
multi-drug
resistant tuberculosis among patients with HIV, the first at
a Florida
hospital and the second at a New York hospital. Both articles
conclude
that the disease was transmitted from patient to patient. The
second
article describes the clinical presentation and outcome of the
patients in
the first article, noting the rapid progression of the
tuberculosis and the
high mortality rates. The editorial identifies the
factors which can
lead to outbreaks of multi-drug resistant tuberculosis
(based on the findings
in the articles) and describes steps which should
be taken to control such
outbreaks.
None of the articles involves a study of the relative risks of
contracting
tuberculosis of persons with and without HIV or a study of
the transmission
of tuberculosis from a health care worker to a patient.
Thus, the articles
simply have no bearing on either FFCL 65 or FFCL 102.
Moreover, contrary to
Westchester's suggestion, the third article does
not purport to state the
official views of CDC simply because four of
the five authors are employed by
that agency.
Westchester nevertheless took various statements in the articles, such
as
a reference in the first article (at page 181) to the
"susceptibility" to
tuberculosis of patients with HIV, to mean that
patients with HIV are at
greater risk of contracting tuberculosis. In
context, however, it is
clear that these statements refer to the fact
that patients with HIV are more
likely to develop active tuberculosis
once infected, not that they are more
likely to become infected. In any
event, such statements, many of which
are supported by citations to
prior publications, do not purport to be new
scientific findings.
Accordingly, although we admit these materials into the record,
we
conclude that they do not provide new information which requires
the
modification or reversal of any FFCL.
Exceptions to Remaining FFCLs
Westchester took exception to a number of FFCLs not discussed above on
the
ground that the FFCLs were misleading, misleading and incomplete,
or
misleading and irrelevant. See exceptions to FFCLs 14, 24, 37, 43,
58,
71, 76, 79, 82, 83, 84, 85, 92, 97, 111, 114, 115, 116, 118, 121,
122,
123, 124, 125, 126, 127, and 134. We have fully reviewed each of
these
FFCLs and conclude that they are supported by substantial evidence
in
the record and are legally correct. While some of the FFCLs could
have
been more comprehensive in scope or worded more clearly, in the
context
of the decision as a whole they are not misleading or
incomplete. Most
of the FFCLs contain only background information which
is not critical
to the decision; nevertheless, they are relevant to issues
posed by the
appeal. Accordingly, we affirm all of the FFCLs in
question.
Conclusion
For the foregoing reasons, we uphold the ALJ's determination
that
Westchester discriminated against Doe in violation of section 504
and
that all federal financial assistance to Westchester must be
terminated.
_____________________________ Judith A. Ballard
_____________________________ Cecilia Sparks Ford
_____________________________ Donald F. Garrett Presiding
Panel
Member
1. Pursuant to 45 C.F.R. . 80.10(a) and . 84.61, upon the filing
of
exceptions, the initial decision of the ALJ is subject to review by
a
reviewing authority. The Secretary appointed us as members of the
Civil
Rights Reviewing Authority on January 23, 1992. We issued
guidelines
which provide that a panel of three members serves as the Civil
Rights
Reviewing Authority in each appeal. Our guidelines also provide
that
the standard of review on a disputed factual issue is whether the
ALJ's
initial decision is supported by substantial evidence in the
record,
while the standard of review on a disputed legal issue is whether
the
initial decision is erroneous.
2. After the completion of the argument and briefing provided for
by
the Panel in this case, Westchester requested that the Panel
consider
additional evidence concerning what Westchester claimed were
new
scientific developments in the field. Westchester contended that
this
evidence warranted the reversal of two FFCLs. As discussed
later,
however, we conclude that the evidence does not warrant the
modification
or reversal of any FFCLs.
3. This summary of the facts is not intended as a substitute for
the
more detailed factual statements in the FFCLs in the ALJ Decision.
4. The record reflects Doe's health status as of the date of
his
pre-employment physical examination at Westchester.
5. Westchester took exception to FFCL 69 on the ground that it
excluded
from the ways in which HIV can be transmitted a stick with a
needle
containing HIV-infected blood. However, while this mode of
transmission
is not specifically identified in the FFCL, the ALJ apparently
intended
to encompass it within one of the modes of transmission,
involving
intravenous injection, listed in the FFCL. See ALJ Decision
at 38.
6. During the proceedings before us, Westchester's counsel
represented
that Westchester was willing to employ Doe in its main pharmacy
or in
satellite pharmacies which do not serve immunocompromised
patients
(i.e., those patients with weak immune systems: oncology
patients, AIDS
patients and neonates) as long as Doe does not prepare
parenteral
products. Transcript (Tr.) of oral argument at 21-22,
24-25. Doe would
not be permitted to work the midnight to eight a.m.
shift at the main
pharmacy because only one pharmacist works that shift and
that
pharmacist must be able to prepare parenteral products. In
addition,
Doe still would not be permitted to rotate to certain
satellite
pharmacies.
7. This provision defines the term "qualified person with
handicaps."
Appendix A to 45 C.F.R. Part 84 explains that DHHS omitted the
word
"otherwise" from its definition --
in order to comport with the intent of the statute because,
read
literally, "otherwise" qualified handicapped persons
include
persons who are qualified except for their handicap, rather
than
in spite of their handicap.
Appendix A at 378.
8. This statutory requirement has been interpreted as
prohibiting
discrimination even where the complainant poses a direct threat
if the
direct threat can be eliminated by reasonable accommodation.
See
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
405:14
(September 27, 1988) (Justice Department Opinion), attached to
DHHS's
post-hearing brief. Westchester argued before the ALJ that it
had not
discriminated against Doe because the restrictions which it sought
to
impose on his employment are a reasonable accommodation of the
direct
threat he poses by virtue of his HIV infection. The ALJ
determined that
no reasonable accommodation is required since Doe does not
pose a direct
threat. See ALJ Decision at 49. This determination
is based on a
proper reading of the Act, and Westchester did not directly
challenge
that reading.
9. The ALJ also stated that the major life activities of "the
ability
to engage in normal social relationships" and "socializing"
were
substantially limited by Doe's HIV infection. ALJ Decision at
24. In
the context of the decision, it appears that the ALJ viewed
these
activities as part of the major life activity of sexual contact
rather
than as independent activities. This is consistent with the
finding in
Doe v. Dolton Elementary School Dist. No. 148, 694 F.Supp. 440,
445
(N.D. Ill. 1988) that the 12-year-old plaintiff's future inability
to
engage in reproductive functions without endangering the lives of
others
was certain to restrict his social interaction.
10. Westchester disputed this statement, noting that Burgess v.
Your
House of Raleigh, Inc., 388 S.E. 2d 134 (N.C. 1990), specifically
held
that the ability to procreate and engage in sexual contact were
not
major life activities. However, that case was decided under a
North
Carolina statute which the court itself stated "has a more
restrictive
definition of a `handicapped person' in that it defines `major
life
activities' more narrowly than the federal act defines the term."
388
S.E. 2d 134 at 138.
11. Westchester also took exception to FFCL 158 on the ground that
the
ALJ erred in concluding that the three alternative definitions of
an
individual with handicaps were met.
12. Westchester also argued that procreation and sexual contact are
not
activities of the same nature as those listed in 45 C.F.R.
.
84.3(j)(2)(ii), which defines "major life activity" as "functions
such
as caring for one's self, performing manual tasks, walking,
seeing,
hearing, speaking, breathing, learning, and working."
Westchester
asserted that, unlike these functions, procreation and sexual
contact
are not essential functions which all persons must perform on a
regular
basis to carry out a normal existence. Courts have recognized,
however,
that procreation and related social interactions are major
life
activities. See Thomas v. Atascadero Unified school District, 662
F.
Supp. 376 at 379; Doe v. Dolton Elementary School District No. 148,
694
F. Supp. at 445; see also Justice Department Opinion at 405:6-7.
13. Doe's HIV status was noted in records maintained by
Westchester's
Infectious Disease Clinic (at which Doe had been treated prior
to his
pre-employment physical examination) as well as in the record of
his
pre-employment physical examination. See Westchester's Ex. 123.
14. The relevant FFCLs, 22 and 29, refer to "pharmaceutical
products"
rather than parenteral products. However, the witness on
whose
testimony the ALJ relied used the terms interchangeably. Tr. of
hearing
at 914, 918-919.
15. Even if Westchester is now willing to offer Doe a position in
more
than one satellite pharmacy, Westchester would still deny Doe
the
opportunity to work in those satellite pharmacies which
serve
immunocompromised patients as well as the opportunity to work
the
midnight to eight a.m. shift.
16. The job description actually lists fewer than 25 different
tasks,
however, since one task (filling prescriptions) is listed five
times.
Of the twelve tasks listed under "In-Patient Dispensary," two
involve
the preparation or monitoring of parenteral products. DHHS Ex.
27.
17. Another consequence of the restriction on the preparation
of
parenteral products would be to deprive Doe of the pay differential
for
the midnight to eight a.m. shift, which required a pharmacist who
could
prepare parenteral products. Westchester took exception to FFCL
140,
arguing that Doe would have received the pay differential only when
he
rotated to the midnight to eight a.m. shift. However, the FFCL did
not
imply otherwise. While the amount of the pay differential for
this
rotation assignment would not have been as much as from a
permanent
assignment, this does not mean it would be insignificant.
18. Westchester argued that the ALJ improperly relied on this
testimony
since the witness was a fact witness and thus not qualified to
testify
on this subject, and in any event was referring only to his own
career.
We find that the ALJ properly considered the testimony,
however. Even
if the witness' direct testimony concerned only matters
of fact, his
position at Westchester clearly qualified him to evaluate the
importance
of experience in preparing parenteral products to advancement as
a
hospital pharmacist. Moreover, the testimony was general in nature
and
not specifically limited to the witness' own career.
19. The term "risk" is used here in connection with both 1) the
overall
evaluation of whether Doe poses a significant risk to the health
and
safety of others; and 2) the risk of transmission of HIV, i.e.,
the
probability of infection. The probability of infection is only one
of
the factors to be considered under the "significant risk" standard.
20. The ALJ found that HBV was approximately ten times more
infectious
than HIV. FFCL 90. However, the testimony on which the
ALJ relied for
this finding clearly indicates that HBV is 100 times more
infectious.
21. The ALJ found that, even in the case of exposure-prone
invasive
procedures, the risk for transmission of HIV "is so small as not to
be
measurable." FFCL 93. Moreover, in its amicus brief, the
American
Medical Association noted that only one instance of transmission of
HIV
to patients from an infected health care worker of any type has
been
documented and this involved a dentist who had performed
exposure-prone
procedures on his patients. AMA brief at 7-8.
22. Westchester also asserted that DHHS had conceded that HIV could
be
transmitted by accidental needlestick through parenteral products.
See
Westchester's exceptions to ALJ Decision at 12, 17; Westchester's
brief
in response to amicus brief of American Medical Association at 27,
40.
However, the testimony cited by Westchester in support of this
assertion
merely indicates that this was theoretically possible, not that
there
was any likelihood that it would actually occur.
23. Westchester took exception to FFCL 57, arguing that it failed
to
indicate that needlesticks actually occur as opposed to merely
being
possible. However, it is clear from the ALJ Decision as a whole
that
the ALJ recognized that needlesticks actually occur. See ALJ
Decision
at 44.
24. While Westchester's scenario assumes an unnoticed needlestick,
the
ALJ also found that there was no evidence that, if Doe were aware
that
he had contaminated a needle with his blood, he would use the needle
to
prepare a parenteral product or would allow the product to
be
administered to a patient. ALJ Decision at 43. In
post-hearing
briefing, Westchester questioned whether Doe would discard the
needle or
the contaminated parenteral product as required by aseptic
technique
(the technique of preparing parenteral products without
introducing
contaminants). See Westchester's post-hearing brief at 42,
n. 7.
However, on appeal, Westchester merely contended that not all
health
care workers "follow the rules" and did not specifically dispute
the
ALJ's finding as to Doe's likely conduct. Tr. of oral argument at
33.
See also Westchester's exceptions to ALJ Decision at 12. Thus,
there is
no basis in the record for concluding that Doe poses a direct threat
of
transmitting HIV by deliberately breaching aseptic
technique.
Nevertheless, if in the future credible evidence is presented
which
raises a question about Doe's trustworthiness, there might be a need
for
the parties to re-examine whether Doe still falls within the
protection
of section 504.
25. On its face, it seems inherently contradictory to say that one
can
be aware of an unnoticed needlestick. However, the record
indicates
that Westchester's witnesses were referring to the situation where
they
(or someone they knew) became aware that they had previously sustained
a
needlestick by seeing dried blood on their hands or by experiencing
a
stinging sensation when they used alcohol swabs. See Tr. of hearing
at
938.
26. Westchester also asserted that there was evidence that even
a
superficial needlestick was sufficient to transmit HIV.
Westchester's
comment appears to refer to reports that HIV has been
transmitted when a
health care worker was stuck by a needle already
containing blood drawn
from an individual with HIV. However, FFCL 99
addresses the likelihood
of a needlestick which is sufficient to draw
blood. These reports do
not establish that a needle would always
contain blood from an unnoticed
stick, nor do the reports otherwise support
Westchester's case.
27. Westchester also presented testimony that some of the needles
used
to prepare parenteral products are so fine that it is almost
impossible
to feel a needlestick. Tr. of hearing at 940. However,
Westchester did
not provide any evidence regarding the percentage of work in
which fine
needles are used at Westchester. See Tr. of oral argument at
84.
Moreover, Westchester did not demonstrate that the volume of blood
from
a needlestick using a fine needle would be sufficient to contain
an
infectious dose of HIV, and indeed admitted that the amount of blood
in
a fine needle would be smaller than the amount in a larger needle.
Id.
at 83. Thus, there is no basis in the record for finding that
the
probability of Westchester's scenario occurring would be increased
due
to the use of fine needles.
28. The one exception is total parenteral nutrition products, which
one
witness testified must be administered within 24 hours
after
preparation. Tr. of hearing at 1064.
29. In response to Westchester's contention that Doe would constitute
a
direct threat because of his increased susceptibility to
infections
which patients might have, the American Medical Association argued
that,
under the statute, an individual can constitute a direct threat
only
where the threat is "to the health or safety of others." We need
not
decide this issue in view of our conclusion discussed below that
there
was no factual basis for Westchester's contention that Doe
could
contract infectious diseases from patients.
30. DHHS conceded, however, that an individual with HIV is more
likely
than other individuals to progress to serious disease once
infected.
See letter from DHHS to Panel dated August 6, 1992, at 1.
31. Doe had filed a complaint with the New York State Division of
Human
Rights charging employment discrimination. FFCL 128.
32. Westchester also identified other information in these
materials
which it claimed was not previously available. However,
Westchester did
not take the position that this information warranted the
reversal of
any