UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ) THE UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) CIVIL ACTION ) ) DREW B. MORVANT, D.D.S., ) No. 93-3251 ) Section J (1) and ) ) DREW B. MORVANT, D.D.S., ) A PROFESSIONAL DENTAL CORPORATION ) ) Defendants ) ) FIRST AMENDED COMPLAINT The United States of America alleges: 1. This action is brought by the United States pursuant to title III of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.  12188(b)(1)(B), against Drew B. Morvant, D.D.S. ("Morvant"), and Drew B. Morvant, A Professional Dental Corporation ("corporation") (collectively, "Defendants"). 2. This Court has jurisdiction over this action under 42 U.S.C.  12188(b)(1)(B) and (b)(2) and 28 U.S.C.  1331 and 1345. 3. Venue is proper in this judicial district. The acts of discrimination alleged herein occurred in this judicial district, at Defendants' dental office, which was located at the time at 921 Canal Street, Suite 935, New Orleans, Louisiana 70112. 1 01-05245 4. Defendant Morvant is a dentist who is licensed to practice in the State of Louisiana. Defendant Morvant's dental practice, which offers dental services to the general public, is owned by Defendant Morvant. Defendant Morvant is a person who owns and operates the professional office of a health care provider, the operations of which affect commerce. Accordingly, Defendant Morvant is subject to title III of the ADA. 42 U.S.C.  12181(7)(F) and 12182; 28 C.F.R.  36.104 and 36.201(a). 5. Defendant corporation is a professional dental corporation, incorporated under the laws of the State of Louisiana. Defendant corporation is a private entity that owns and operates the professional office of a health care provider, the operations of which affect commerce. Accordingly, Defendant corporation is subject to title III of the ADA. 42 U.S.C.  12181(7)(F) and 12182; 28 C.F.R.  36.104 and 36.201(a). 6. Ismael Pena ("Mr. Pena") is an individual who tested positive for the Human Immunodeficiency Virus (HIV), the virus believed to be the causative agent of the Acquired Immune Deficiency Syndrome ("AIDS"). Mr. Pena was, therefore, an individual with a disability within the meaning of the ADA, 42 U.S.C.  12102(2); 28 C.F.R.  36.104. 7. From April 1981 through January 1993, Mr. Pena sought and received dental care from Defendants. During that time, Defendants provided routine examinations, dental cleanings, an occasional filling, and one tooth extraction. 2 01-05246 8. In January 1993 Defendant Morvant became aware of Mr. Pena's HIV-positive status. 9. In February 1993 Defendants refused to provide Mr. Pena with further dental treatment because of Mr. Pena's HIV-positive status. 10. Defendants' actions caused Mr. Pena to suffer extreme humiliation, emotional distress, frustration, and anxiety. As a result of Defendants' actions, Mr. Pena was required to pay additional fees to another dentist so that he could have his teeth cleaned. 11. xxxxxxxx ("xxxxxxxxxx") is an individual who has tested positive for HIV, and is, therefore, an individual with a disability within the meaning of the ADA, 42 U.S.C.  12102(2); 28 C.F.R.  36.104. 12. In June 1993 xxxxxxxx made an appointment for an initial dental examination and dental cleaning at Defendants' office. 13. When xxxxxxxx arrived for his appointment, Defendants refused to treat him because of his HIV-positive status. 14. Defendants' actions caused xxxxxxxx to suffer extreme humiliation, emotional distress, frustration, and anxiety. 15. Persons who are HIV-positive and have been the victims of Defendants' discriminatory practices are aggrieved persons within the meaning of 42 U.S.C.  12188(b)(2)(B) and have 3 01-05247 suffered, or may have suffered, damages in the form of economic loss and emotional distress as a result of Defendants' discriminatory conduct. 16. By denying Mr. Pena, xxxxxxxx, and possibly other aggrieved persons dental treatment because of their HIV-positive status, and by adopting and implementing a policy of refusal to treat persons who have tested positive for HIV, Defendants have unlawfully discriminated against Mr. Pena, xxxxxxxx, and possibly other persons who have tested positive for HIV and thereby have violated title III of the ADA in the following ways: A. Defendants have denied Mr. Pena, xxxxxxxx, and possibly other individuals who have tested positive for HIV the opportunity to benefit from the services of a place of public accommodation, in violation of 42 U.S.C.  12182(b)(1)(A)(i) and 28 C.F.R.  36.202(a); B. Defendants have imposed eligibility criteria, for the privilege or advantage of receiving dental services, that screen out the class of persons who have tested positive for HIV, in violation of 42 U.S.C.  12182(b)(2)(A)(i) and 28 C.F.R.  36.301(a); and C. Defendants have failed to make reasonable modification in policies, practices, or procedures where such modification is necessary to afford equal advantages or privileges to the class of persons who have tested positive for HIV, in violation of 42 U.S.C.  12182(b)(2)(A)(ii) and 28 C.F.R.  36.302(a). 4 01-05248 17. Defendants' policies and practices as described herein constitute (a) a pattern or practice of discrimination within the meaning of 42 U.S.C.  12188(b)(1)(B)(i) and 28 C.F.R.  36.503(a); and (b) discrimination that raises an issue of general public importance within the meaning of 42 U.S.C.  12188(b)(1)(B)(ii) and 28 C.F.R.  36.503(b). PRAYER FOR RELIEF WHEREFORE, the United States prays that the Court: A. Declare that the discriminatory practices of the Defendants, as set forth above, discriminate against persons who have tested positive for HIV, in violation of title III of the Americans with Disabilities Act, 42 U.S.C.  12181-12189, and the implementing regulation at 28 C.F.R. part 36; B. Enjoin the Defendants, their agents and employees, and all other persons in active concert or participation with any of them, from refusing to provide treatment to persons who have tested positive for HIV; C. Award monetary damages to (i) Mr. Pena and/or his heirs or successors, (ii) xxxxxxxx, and (iii) any other persons aggrieved by Defendants' discriminatory actions to compensate them for injuries resulting from such discrimination; D. Assess a civil penalty against the Defendants to vindicate the public interest; and 5 01-05249 E. Order such other appropriate relief as the interests of justice may require. JANET RENO Attorney General (Signature) ___________________________________ ROBERT J. BOITMANN JAMES P. TURNER United States Attorney Acting Assistant Attorney General Eastern District of Civil Rights Division Louisiana (Signature) ___________________________________ GLENN K. SCHREIBER SHEILA K. DELANEY Assistant U.S. Attorney SHARON N. PERLEY, TA Eastern District of Public Access Section Louisiana Civil Rights Division 501 Magazine St. U.S. Department of Justice New Orleans, LA 70130 P.O. Box 66738 (504) 589-3598 Washington, D.C. 20035-6738 (202) 514-6016 6 01-05250 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ) THE UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) CIVIL ACTION ) ) DREW B. MORVANT, D.D.S., ) No. 93-3251 ) Section K(1) and ) ) DREW B. MORVANT, ) A PROFESSIONAL DENTAL CORPORATION, ) ) Defendants. ) ) ) JOINT MOTION FOR ENTRY OF CONSENT ORDER Plaintiff, United States and Defendants Drew B. Morvant, D.D.S. and Dew B. Morvant, A Professional Dental Corporation ("Defendants") hereby move this Court for entry of the attached Proposed Consent Order, and in support thereof state as follows: 1. On March 23, 1995, this Court granted summary judgment on liability to the United States in this case. 2. In order to resolve the damages portion of this lawsuit without an evidentiary hearing, and to more fully delineate the injunctive relief ordered by this Court, the parties have conferred and agreed to the terms of the attached proposed Consent Order. 01-05251 Respectfully submitted, ROBERT J. BOITMANN DEVAL L. PATRICK United States Attorney Assistant Attorney General Eastern District of Civil Rights Division Louisiana (Signature) _____________________________ GLENN K. SCHREIBER JOHN L. WODATCH Assistant U.S. Attorney L.IRENE BOWEN Eastern District of SHEILA K. DELANEY Louisiana SHARON N. PERLEY, TA 501 Magazine Street ALLISON J. NICHOL New Orleans, LA 70130 Attorneys Public Access Section Civil Rights Division United States Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 (202) 514-6016 (Signature) _____________________________ STEPHEN M. PIZZO Blue Williams, L.L.P. Metairie, LA 70002 (504) 831-4091 2 01-05252 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ) THE UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) CIVIL ACTION ) ) DREW B. MORVANT, D.D.S., ) No. 93-3251 ) Section K(1) and ) ) DREW B. MORVANT, ) A PROFESSIONAL DENTAL CORPORATION, ) ) Defendants. ) ) ) CONSENT ORDER This action was brought by the United States of America against Drew B. Morvant, D.D.S., and Drew B. Morvant, A Professional Dental Corporation ("Defendants"), to enforce the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.  12101 et seq. In its complaint, the United States alleged that Defendants violated the ADA by refusing to provide routine dental care to Ismael Pena, xxxxxxxx, and other persons with HIV or AIDS, on the basis of their HIV-positive status alone. On March 23, 1995, this Court granted summary judgment on liability to the United States. United States v. Morvant, No. 93- 3251, slip op. (E.D. La. Mar. 23, 1995). Specifically, this Court held that: 01-05253 -2- (1) HIV-positivity and AIDS are protected disabilities under the ADA; (2) the "referral" of an individual with HIV or AIDS to another dentist, on the basis of the patient's HIV-positive status alone, violates the ADA as a matter of law; (3) the treatment of persons with HIV or AIDS does not pose a "direct threat" to the health or safety of others; and (4) the ADA is constitutional as applied in the instant case. This Court had held previously that Dr. Morvant owned and operated a place of public accommodation as defined by the ADA and that Dr. Morvant could be held personally liable for his discriminatory actions. United States v. Morvant, 843 F. Supp. 1092, 1094-95 (E.D. La. 1994). In addition, this Court held that the United States could seek compensatory damages on behalf of Ismael Pena, who died prior to the filing of the lawsuit. Id. at 1095. Upon granting summary judgment to the United States, this Court ordered, among other things, that: (1) Defendants be enjoined from refusing to provide treatment to persons with HIV or AIDS, on the basis of their HIV- positive status; (2) Defendants be enjoined from having a blanket policy of "referring" out all people with HIV or AIDS to Dr. Creely Sturm or other general dentists; 01-05254 -3- (3) Defendants be required to adopt and post a policy of non-discrimination on the basis of disability, including HIV and AIDS; (4) Defendants and their staff be required to undergo training concerning HIV and the practice of dentistry; and (5) There would be an evidentiary hearing on the issue of damages to Ismael Pena and xxxxxxxx. In order to resolve the damages portion of this lawsuit without an evidentiary hearing, and to more fully delineate the injunctive relief ordered by this Court, the parties have conferred and agreed to the terms of this Consent Order. This Order is final and binding on all parties to this action, including all principals, agents, and successors in interest of the Defendants, as well as any persons acting in concert with them. ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED (A) Defendants shall treat persons with HIV or AIDS in a manner equal to that in which they treat HIV-negative persons. Thus, Defendants shall provide routine dental care to persons with HIV or AIDS, and shall only refer such persons when the dental treatment being sought or provided is outside of Defendants' area of expertise. In other words, Defendants shall refer a person with HIV or AIDS to another dental care provider on the basis of the person's dental needs or dental condition, rather than the person's HIV positive/AIDS status alone. Defendants shall consult with the patient's personal physician 01-05255 -4- and/or with the dental provider to whom the patient shall be referred when appropriate. (B) Defendants shall adopt a policy of non-discrimination on the basis of disability, including HIV and AIDS. Defendants shall communicate this policy, attached hereto as Exhibit A, to all employees, both orally and in writing. Defendants shall require compliance with this policy as a condition of employment. (C)(1) In an office operated by the Defendants, Defendants shall prominently display the following non-discrimination notice in the waiting room of Defendants' dental office: This office does not discriminate against any person on the basis of disability, including HIV-positivity or AIDS. Drew B. Morvant, D.D.S. and his staff provide dental treatment and services to persons with HIV or AIDS on the same terms and conditions that such services are provided to patients who are not HIV- positive. The Americans With Disabilities Act of 1990 is a federal law that protects persons with disabilities, including individuals with HIV and/or AIDS, from discrimination on the basis of their HIV and/or AIDS status, including discrimination in the provision of dental care. If you feel you have been discriminated against in the provision of dental care because of your HIV and/or AIDS status you should call the Department of Justice in Washington, D.C. at 1-800-514-0301. (C)(2) In an office not operated by the Defendants but in which Dr. Morvant works, Dr. Morvant shall display the above nondiscrimination notice in the operatory where he works while he is treating his patient. (D) Within two years of the date of this Order, Defendant Drew B. Morvant and all dental staff persons who come in contact with Defendants' patients shall undergo at least 12 hours of 01-05256 -5- training concerning: dental treatment of persons with HIV or AIDS, infection control in the dental workplace, and the ethical duty to treat persons with HIV or AIDS. Such training shall be subject to reasonable review and approval by the Department of Justice. All future employees of Defendants shall either, 1) produce documentary proof that they have undergone the training outlined above prior to being hired by Dr. Morvant or, 2) within two years undergo such training after being hired by Dr. Morvant. This training requirement will expire three years after the date of this Order. This training requirement does not include any Office Manager/Receptionist Dr. Morvant may use. (E) Within ten (10) days of the date of this Order, Defendants shall send to xxxxxxxx the Release marked as Exhibit B to this Order. Within thirty (30) days after Defendants receive the signed copy of Exhibit B they shall send to xxxxxxxx by certified mail, return receipt requested, a check made out to him for sixty-thousand dollars ($60,000) in full and complete settlement of any and all claims that xxxxxxxx may have had for equitable and/or monetary relief arising out of the subject matter of this litigation. Within ten (10) days after sending the check to xxxxxxxx, Defendants shall send a xerox copy of both the signed Release and the check to the Department of Justice. (F) Within ten (10) days of the date of this Order, Defendants shall send to Ruby and Ismael Pena, Sr. the Release marked as Exhibit C to this Order. Within thirty (30) days after 01-05257 -6- Defendants receive the signed copy of Exhibit C, they shall send to Ruby and Ismael Pena, Sr. by certified mail, return receipt requested, a check made out to them for thirty-thousand dollars ($30,000). Within ten (10) days of the date of this Order, Defendants shall send to Patrick Dunne the Release marked as Exhibit D to this Order. Within thirty (30) days after Defendants receive the signed copy of Exhibit D, they shall send to Patrick Dunne a check made out to him for thirty-thousand dollars ($30,000). The total sum of sixty-thousand dollars ($60,000) is in full and complete settlement of any and all claims that Ismael Pena, Jr. may have had for equitable and/or monetary relief arising out of the subject matter of this litigation. Within ten (10) days after sending the checks to Ruby and Ismael Pena, Sr. and Patrick Dunne, Defendants shall send xerox copies of both the signed Releases and the checks to the Department of Justice. (G) Effective immediately upon the date of this Order, all parties agree to withdraw any motions, cross-motions, and/or appeals pending in this matter, and to not file any subsequent motions or appeals in this matter, except those related to the issue of compliance with this Order. All parties agree not to file any actions against any other parties or their witnesses pertaining to the subject matter of this litigation, except those related to the issue of compliance with this Order. (H) If the United States believes that Defendants have violated this Order or any requirement contained herein, it may 01-05258 -7- move this Court for an appropriate order for the enforcement of this Order, including civil contempt sanctions, to be awarded to the United States. (I) Nothing in this Order shall preclude the United States from filing a separate action under the ADA for any future alleged violations occurring after the date of this Order. In such actions, the United States may seek all remedies provided in 42 U.S.C.  12188. 01-05259 -8- Entered and Ordered this day of , 1995. _____________________ STANWOOD DUVAL UNITED STATES DISTRICT JUDGE Eastern District of Louisiana Agreed and Consented to: DEVAL L. PATRICK Assistant Attorney General Civil Rights Division (Signature) (Signature) _____________________________ __________________________ JOHN L. WODATCH STEPHEN M. PIZZO L. IRENE BOWEN Blue Williams ALLISON J. NICHOL 3421 N. Causeway Blvd. SHEILA K. DELANEY Ninth Floor SHARON N. PERLEY Metairie, LA 70002 Attorneys (504) 831-4091 Disability Rights Section Civil Rights Division U.s. Department of Justice P.O. Box 66738 Washington, D.C. 20035-6738 (202) 514-6016 FOR THE UNITED STATES FOR DREW B. MORVANT, D.D.S., AND DREW B. MORVANT, A.P.D.C. __________________________ DREW B. MORVANT, D.D.S. #1 Esplanade Avenue Metairie, LA 70005 01-05260 -9- EXHIBIT A MEMORANDUM TO ALL EMPLOYEES The Americans with Disabilities Act prohibits discrimination in the dental setting against persons with disabilities, including those who are HIV-positive or who have AIDS. Drew B. Morvant, A Professional Dental Corporation, is fully committed to providing treatment to persons who are HIV-positive or who have AIDS. Therefore, persons who are HIV-positive or who have AIDS will be treated at the dental office of Drew B. Morvant, D.D.S., in the same manner as are other patients. No employee who works at this office may refuse to treat or to refuse to provide any services to any individual on the basis that the individual is HIV-positive or has AIDS. You will be required to follow the above policy. Refusal to follow the above policy is grounds for termination of employment. 01-05261 EXHIBIT B WAIVER I, xxxxxxxx, hereby agree that in consideration of Drew B. Morvant, D.D.S. and Drew B. Morvant, A Professional Dental Corporation's agreement to the terms of a Consent Order, and payment to me of the sum of sixty-thousand dollars ($60,000), I hereby release Drew B. Morvant and Drew B. Morvant, A Professional Dental Corporation, their staff, agents, assigns and any other persons acting in concert with them, from any and all claims, complaints, or causes of action however denominated, including, but not limited to, all claims for monetary or equitable relief, that I may have under federal, state or local law, arising from or in any way related to the facts and circumstances alleged in United States v. Drew B. Morvant, D.D.S. and Drew B. Morvant, A Professional Dental Corporation, CV 93- 3251 (E.D. La.). I have been advised that, before signing this release, I have the right to consult a private attorney regarding its contents. I have read this release and understand its contents. AGREED TO AND SIGNED THIS DAY OF , 1995. 01-05262 EXHIBIT D WAIVER I, Patrick Dunne, hereby agree that in consideration of Drew B. Morvant, D.D.S. and Drew B. Morvant, A Professional Dental Corporation's agreement to the terms of a Consent Order, and payment to me of the sum of thirty-thousand dollars ($30,000), I hereby release Drew B. Morvant and Drew B. Morvant, A Professional Dental Corporation, their staff, agents, assigns and any other persons acting in concert with them, from any and all claims, complaints, or causes of action however denominated, including, but not limited to, all claims for monetary or equitable relief, that I may have under federal, state or local law, arising from or in any way related to the facts and circumstances alleged in United States v. Drew B. Morvant, D.D.S. and Drew B. Morvant, A Professional Dental Corporation, CV 93- 3251 (E.D. La.). I have been advised that, before signing this release, I have the right to consult a private attorney regarding its contents. I have read this release and understand its contents. AGREED TO AND SIGNED THIS DAY OF , 1995. 01-05263 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA UNITED STATES OF AMERICA CIVIL ACTION VERSUS NO. 93-3251 DREW B. MORVANT, D.D.S., ET AL. SECTION "K" (1) ORDER AND REASONS Before the Court are a Motion for Summary Judgment filed by the United States of America (the "United States or "the Government"), a Motion for Summary Judgment filed by Drew B. Morvant, D.D.S., and Drew B. Morvant, a Professional Dental Corporation (referred to collectively as "Morvant") and a Motion to Dismiss filed by Morvant. Having entertained oral argument on February 8, 1994, and having reviewed the voluminous pleadings, exhibits, deposition testimony, affidavits and the applicable law, the Court finds that the United States' Motion for Summary Judgment is meritorious rendering Morvant's Motion for Summary Judgment moot. Finally, Morvant's Motion to Dismiss is without merit as well. BACKGROUND Dr. Drew Movant practices dentistry as a professional dental corporation. He owns his professional corporation and is its president and sole director. The Department of Justice, under the Americans with Disabilities Act ("ADA"), 42 U.S.C.A.  12101-12213 (West Supp. 1994) filed suit against Dr. Morvant, personally, and his dental corporation for refusing to provide dental care to Ismael Pena, 01-05264 DATE OF ENTRY MAR 23 1995 (stamp) xxxxxxxx, and other persons with HIV or AIDS, solely on the basis of their HIV-positive status. The United States contends that it is entitled to summary judgment on the issue of liability because there are no relevant contested issues of fact in this regard and that Morvant has violated the statute and is entitled to judgment as a matter of law. Morvant has filed in effect a cross- motion with respect to liability. Moreover, Morvant also contends that "if this Honorable Court rules that in fact the Act prohibited Dr. Morvant's referrals of xxxxxxxx and Mr. Pena, the Act itself is unconstitutional in prohibiting these referrals." To that end Dr. Morvant seeks to dismiss the suit "for lack of subject matter jurisdiction." The facts that brought rise to this suit are as follows: Ismael Pena Ismael Pena and his partner, Patrick Dunne, were longstanding patients of Morvant's. According to the deposition testimony of Dunne and the affidavit of Pena, in November of 1992, Dunne told Morvant that Pena had AIDS. Morvant at that time mentioned that his hygienist had noticed thrush in Pena's mouth before, but thought it was the flu. In February of 1993, Pena attempted to make an appointment with Morvant and was told that he would no longer be able to provide services. Pena and Dunne both contend that Morvant told each separately that he could not keep his staff if he required them to treat AIDS patients. Without examining Pena's mouth or contacting Pena's treating physician to consult 2 01-05265 about his medical condition, Morvant referred Pena to Dr. Kathryn Creely Sturm ("Sturm"), who Morvant contends specializes in the treatment of AIDS/HIV patients. Morvant contends that he referred Pena to Sturm because he believed that AIDS/HIV patients required more specialized care and that he had not kept abreast of those things which he needed to know to treat an AIDS patient properly. xxxxxxxx xxxxxxxx arrived for a previously scheduled dental cleaning and dental examination in June of 1993. He filled out a number of dental forms and was escorted to the hygienist's chair. She asked him if he had any diseases that "we should know about" to which he responded that he had tested positive for HIV. Before she or Dr. Morvant examined his mouth, the hygienist informed xxxxxxxx that the defendants were not equipped to treat him and referred him to Sturm. Thus, the Government contends that Morvant discriminated against these two individuals as proscribed by the ADA. It also seeks damages for "other persons aggrieved" by Morvant's alleged practices.1 Morvant contends however that the matter should be 1 The United States asks the Court to order that: (1) Defendants be enjoined from refusing to provide treatment to persons with HIV or AIDS, on the basis of their actual or perceived HIV or AIDS status; (2) Defendants be enjoined from having a blanket policy of "referring" out all people with HIV or AIDS to other general dentists; (3) Defendants shall advertise that they treat people with HIV or AIDS; (4) Defendants shall adopt and post a policy of non-discrimination on the basis of disability, including HIV and AIDS; 3 01-05266 dismissed because the ADA is unconstitutional, as regulating activities outside of the scope of the Commerce Clause and of the Fourteenth Amendment to the United States Constitution. The Court will first address the Government's Motion for Summary Judgment. It will then address Morvant's Motion to Dismiss. STANDARD FOR GRANTING SUMMARY JUDGMENT Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When a moving party satisfies the requisites of Rule 56(c), a motion for summary judgment should be granted. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial (5) Dr. Morvant and his staff be required to undergo training concerning HIV and the practice of dentistry; (6) Defendants shall pay to the United States a civil penalty of $50,000 to vindicate the public interest; and (7) a hearing on the issue of damages to Pena and xxxxxxxx be had to determine these. 4 01-05267 Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (emphasis supplied). Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Id. However, all inferences to be drawn must be in favor of the nonmoving party. Finally, the court notes that the substantive law determines materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court now turns to the merits of the Government's Motion for Summary Judgment with these standards and facts in mind. ANALYSIS OF ADA VIOLATIONS ALLEGED BY THE GOVERNMENT Because the ADA is a relatively new statute, there is a paucity of case law concerning the burden of proof thereunder. As noted in Mayberry v. Von Valtier, 843 F. Supp. 1160 (E.D. Mich. 1994): the construction provision of the ADA states that the standards of Title V of the Rehabilitation Act of 1973, and its regulations, are to apply, except where the ADA has explicitly adopted another standard. 42 U.S.C.  12201(a). 5 01-05268 The Mayberry court continued finding that a modified McDonnell Douglas/Burdine2 burden shifting analysis should apply to an ADA case, and this Court concurs with the analysis. Thus, in order for the Government to prevail in its attempt to obtain summary judgment with respect to its claims against Morvant, it must first prove that (1) the subject individuals had a disability; (2) that Morvant's office is a place of public accommodation; and (3) that the subject persons were denied full and equal medical treatment because of their disability. If the Government succeeds in establishing this prima facie case, the burden shifts to Morvant to prove either that the subject persons were not denied medical treatment, or that such denial was not unlawful. Then, the burden shifts back to the Government to rebut defendant's reasons as a pretext for unlawful discrimination. Mayberry, 843 F. Supp. at 1166. The Prima Facie Case The United States contends that Morvant is liable under Title III of the ADA, 42 U.S.C.  12181-88, because: 1) the aggrieved individuals--Pena, xxxxxxxx, and other persons with HIV or AIDS--were individuals with disabilities; 2) Morvant owned or operated a place of public accommodation; and 2 The test so described can be found in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and is refined in Texas Dep't. of Community Affairs v. Burdine, 450 U.S 248, 101 S. Ct. 1089 (1981) and St. Mary's Honor Center v. Hicks, U.S. , 113 S. Ct. 2742 (1993). 6 01-05269 3) Morvant discriminated against the aggrieved individuals by denying them full and equal enjoyment of medical treatment because of their disabilities (i.e. because they were perceived as being HIV-positive or having AIDS). 42 U.S.C.  12182(a) & 42 U.S.C.  12182(b). AIDS/HIV-positive are both disabilities under the Department of Justice regulations promulgated pursuant to the ADA. 28 C.F.R.  36.104(1)(iii); Howe v. Hull, 1994 WL 682951, No. 3:92CV7658, slip op. at 10 (N.D.Ohio Nov. 21 1994). Furthermore, the Court has previously ruled that Morvant owned and operated a place of public accommodation as defined by the ADA. United States v. Morvant, 843 F. Supp. 1092, 1094 (E.D.La. 1994).3 Accordingly, it is beyond cavil that the first two criteria are met. Thus, the third criteria, discrimination, must be demonstrated for the Government to succeed in proving its prima facie case. The statute contains both general and specific prohibitions against discrimination based on a disability. Generally prohibited in relevant part under section 12182 is: to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through . . . other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the . . . accommodation; 42 U.S.C.  12182(b)(1)(A)(i) (emphasis added). Specifically prohibited with respect to discrimination under 12182(b)(2)(A)(i) and (ii) are: 3The professional office of a health care provider constitutes a public accommodation. 42 U.S.C.  12181(7)(f). 7 01-05270 i) the use of unnecessary eligibility criteria that screen out or tend to screen out persons with disabilities; and ii) the failure to make reasonable modifications in policies, practices or procedures where such modifications are necessary to afford equal advantages or privileges to persons with disabilities. The Government contends that Morvant violated each of these. It is clear that with respect to the general prohibition against discrimination, Pena and xxxxxxxx were denied dental treatment by Morvant on the basis of a disability when they told Morvant or his assistant that each had AIDS or was HIV-positive, respectively, each was denied treatment by Morvant. That fact alone is sufficient to meet the prima facie test and shift the burden to Morvant to prove that his actions were not unlawful.4 Were Morvant's Actions Unlawful? Morvant's Defenses Morvant responds that contrary to the Pena/Dunne testimony he referred both Pena and xxxxxxxx because he believes: that HIV-positive and AIDS individuals require specialized treatment and infection control for the benefit of themselves, for the benefit of other patients, and for the benefit of Dr. Morvant's staff. (Exhibit 4, Morvant's Motion for Summary Judgment) ("Defendants' Exhibit). Thus, Morvant raises basically two defenses. Referral First, Dr. Morvant contends that his referral to Sturm was permitted under the ADA because the "circumstances of the 4 As the Government has proved this instance of discrimination, it is unnecessary to address the other two "specific" allegations. 8 01-05271 disability [HIV/AIDS] itself" create "specialized complications for the patient's health which Morvant lacked the experience or knowledge to address." Morvant further contends that the ADA does not require and indeed cannot require a physician to keep up with the necessary medical techniques to treat such patients.5 Under the regulations that have been promulgated with respect to the ADA, specifically, 28 C.F.R  36.302(b)(2)6, a health care provider may "refer" a patient. This "referral" is subject to two restrictions. A health care provider may refer a patient only if: 1) the treatment being sought is outside the referring provider's area of specialization; and 2) in the normal course of operations, the referring provider would make a similar referral for an individual without a disability who seeks or requires the same treatment or services. (emphasis added). Morvant thus contends that this "referral" was protected by this safe harbor. Direct Threat--Significant Risk The other defense implicit in Morvant's argument is that because of the "significant risk" of infection to his hygienists and Dr. Morvant himself, Morvant is protected from these 5In reality, this argument is better covered within the context of "modifications because of direct threat to the provider's health" which is discussed infra at 17-20. 6Morvant also contends that the Court should ignore the promulgated regulations because Congress did not intend to circumscribe a doctor's ability to refer a patient to the degree found in the regulation. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.C 837, 842, 104 S. Ct. 2778 -(1984). The Court finds this contention meritless upon review of the legislative history read as a whole and rejects this argument. 9 01-05272 allegations of discrimination based on 28 U.S.C 12182(b)(3). This section states in relevant part: Nothing in this subchapter shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others. The term "direct threat" means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services. (emphasis added). Thus, with respect to this second defense, the issues become: (1) whether HIV-positive and AIDS patients pose a "significant risk" to the health and safety of Morvant and his staff and (2) whether Morvant could have modified his "policies, practices or procedures or provided auxiliary aids or services" so as to eliminate the risk. Are these "defenses" pretextual? Referral In the context of both Pena and xxxxxxxx, both persons simply sought a "prophy" or teeth cleaning. It is undisputed that Morvant and his staff were eminently qualified to clean teeth, indeed Morvant had been doing so with respect to Pena for 11 years. Thus, it is impossible for Morvant to contend that cleaning teeth was outside of his "specialization." Furthermore, it is clear that but for the disability--AID/HIV--he would not have "referred" these two persons to a "specialist." Morvant counters this argument by contending that the disease/disability itself created specialized complications 10 01-05273 requiring the referral. The Government contends that this is simply a false premise. To that end, the Government has presented the declaration of Enid A. Neidle, Ph.D. This expert holds a Ph.D. in physiology from the College of Physicians and Surgeons at Columbia University and is currently a Senior Consultant to the Dean and Director of the Office of Research Administration at the Columbia University School of Dental and Oral Surgery. From June 1, 1985 to December 31, 1992, she was first part-time (until March 31, 1986) and then full- time Assistant Executive Director, Scientific Affairs for the American Dental Association ("the Association"). She has written and lectured extensively on the subjects of infection control in dentistry, the epidemiology and characteristics of HIV infection, and the ethical obligation for dentists to treat persons with HIV or AIDS. She attested that the Association does not recognize a specialty in the treatment of persons with AIDS or who are HIV positive. There are only eight specialties recognized by the Association: orthodontics, periodontics, prosthodontics, dental public health, endodontics, oral pathology, oral and maxillofacial surgery, and pediatric dentistry. (Plaintiff's Exhibit 60, P 8). She also stated that Morvant's policy of sending all patients with HIV or AIDS to another general dentist--regardless of their then-current medical status, dental condition, or dental needs--is in direct contravention of the Association's policies and 11 01-05274 constitutes a breach of Morvant's professional and ethical obligations. (Plaintiff's Exhibit 60,  15). The Government also provided the declaration of Deborah Greenspan, B.D.S., DSc. She holds a Bachelor of Dental Surgery and a Doctor of Science in oral medicine from the University of London, England and is currently a Clinical Professor of Oral Medicine at the University of California at San Francisco. She has written and lectured extensively on HIV and the practice of dentistry. Her writings, education and professional experience are outstanding and noteworthy as evidenced by her Curriculum Vitae. (Plaintiff's Exhibit 58). She affirmed that: There is no question that Dr. Morvant had the capacity to utilize universal precautions in his general dental practice. No additional infection control procedures--above and beyond universal precautions--are required to provide dental treatment to persons with HIV infection or AIDS. Similarly, no special training or expertise, other than that possessed by a general dentist, is required to provide general dental care, including dental examinations and dental cleanings, to persons with HIV infection or AIDS. No such specialty is recognized by the dental profession. Thus, there is no medical or scientific support for Dr. Morvant's policy of "referring" all patients who informed him that they had HIV or AIDS to another general dentist for treatment. Dr. Morvant's contention that persons with HIV or AIDS require specialized treatment and infection control "for the benefit of themselves, for the benefit of other patients, and for the benefit of Dr. Morvant's staff" is simply wrong. Dr. Morvant was fully capable of utilizing universal precautions, and, as a general dentist, Dr. Morvant had sufficient expertise and 12 01-05275 training to provide general dental care to persons with HIV or AIDS. (Plaintiff's Exhibit No. 58,  10-13). Furthermore, this expert opined that the "referrals" in question were not appropriate because Morvant did not examine the individuals' mouths, inquire into their medical status, or contact their personal physicians. (Plaintiff's Exhibit 58,  20-21). Finally, the Government also presented the declaration of Donald Wayne Marianos, D.D.S., M.P.H. He holds a Masters in Public Health from Loma Linda University and a Doctor of Dental Surgery from the Indiana University School of Dentistry. He has also coordinated epidemiologic investigations involving dental health care workers with HIV/AIDS as well as prevention of HIV/AIDS transmission in dental care settings. He assisted in the development of the Center for Disease Control and Prevention ("CDC") Guidelines and Recommendations with regard to these topics. From August of 1989 to the present, he has served as a Captain in the United States Public Health Service at the CDC. He opined that in 1986 the CDC issued Recommended Infection Control Practices for Dentistry. The theory behind what has come to be known as "universal precautions" is that since it is impossible to reliably identify all patients infected with HIV or other blood-borne pathogens through medical history and examination, precautions should be consistently used for all 1It should be noted that under the ADA, which is modeled after the Rehabilitation Act, there is no need for the Government to prove "a hostile discriminatory purpose or subjective intent to discriminate." Doe v. Attorney General of the United States, 1995 WL 15698 (9th Cir. Jan. 18, 1995). 13 01-05276 patients. These precautions were updated in 1987 and finally in 1993. Specifically he states: After a review of relevant depositions, as well as a physical inspection of Dr. Morvant's office, it is clear that he and his staff had the capacity to follow proper infection control procedures. No infection control procedures beyond the use of universal precautions are necessary in providing routine dental care to persons with HIV or AIDS. The CDC does not recommend the use of infection control procedures beyond those cited in the Recommended Infection Control Practices for Dentistry, 1993 for the provision of routine dental treatment to persons with HIV or AIDS. Referral because of the need for "special" infection control precautions of persons with HIV or AIDS is not appropriate. If dentists, including general dentists such as Dr. Morvant, follow universal precautions in their practice, persons with HIV or AIDS or other blood-borne pathogens can be safely treat in the dental setting. No special expertise beyond that of a general dentist is required to provide routine dental care to a person with HIV or AIDS. Dr. Morvant had the expertise and the available infection control procedures to safely provide routine dental services to Mr. Pena, xxxxxxxx and other persons with HIV and AIDS. (Plaintiff's Exhibit 59,  7-12). Finally, Dr. Sturm, the doctor to whom Morvant would "refer" these patients testified that she was not a "specialist" rather she is a general dentist. (Plaintiff's Exhibit 15, Dep. of Dr. Sturm at 59). Thus, the Government has presented overwhelming and compelling evidence that the "referral" was a pretext. Morvant has failed to present any countervailing affidavits or deposition testimony from a single, qualified expert in the field 14 01-05277 to testify so as to raise a single issue of material fact with regard to the referral issue. Rather Morvant has presented his own "stipulation" and various scientific articles that discuss in general the "uncertainty" of AIDS' causes, treatment and cure. Indeed, at Paragraph 18 of Morvant's Statement of Contested Facts, Morvant has "disputed" the statement that "it is a certainty that as long as a dentist utilizes universal precautions, HIV positive patients may be safely treated in the dental office," Morvant relied on two pages from the magazine Science, the May 1993 edition, wherein there is a general discussion of the uncertainty surrounding AIDS. Simply stating that there is a dispute without some competent evidence to support that position is not sufficient to create an issue of fact where there is such overwhelming expert testimony presented to the contrary. Morvant also provided the Court with his counsel's interpretation of various disclaimers contained in a number of materials published by the Association to stand for the proposition that the Association "recognized as recently as 1992 that specialized knowledge and protocols were necessary to provide adequate treatment of HIV/AIDS individuals." (Memorandum in Opposition to Government's Motion for Summary Judgment at 12)". Morvant also produced for the Court an Association publication, "Patients with Human Immunodeficiency Virus (HIV) Infection and Acquired Immune Deficiency Syndrome (AIDS)" published 15 01-05278 in June of 1993.1 In this publication, it is noted that in a severely immunocompromised patient, an oral infection can become life-threatening and that oral health care should be planned with consideration. (Defendants' Exhibit 4 at 4). It further states that: HIV-infected patients can safely receive dental care. Timing or extent of the treatment plan may need to be modified according to the immunologic and hematologic status and general medical condition of the patient. Id. at 5. Finally at 9 of the same document, the paper continues: The potential exists for complications resulting from dental treatment in hematologically (granulocytopenia, anemia, thrombocytopenia) or immunologically compromised patient with HIV infection. These complications include delayed healing, postoperative infections, development of antibiotic resistant microbial strains and postoperative bleeding. Id. at 9. These articles without a single affidavit or deposition testimony of an expert stating that a referral was necessary or justified and that the universal precautions were not enough simply will not create a substantive issue of fact as required under the rule. Furthermore, Morvant made no attempt to determine the immunologic and hematologic status and general medical condition of 1The Court notes that this article has not been presented in conjunction with any expert testimony so as to be admissible or competent evidence under Fed. R. Evid. 803(18), and thus questions its probative value in creating an issue of fact in the context of a motion for summary judgment. While every "inference" must be lodged in favor of the non-moving party, there must be competent evidence to create the inference. Furthermore, many of the articles that provided the basis for this publication as evidenced by the footnotes, were authored by Dr. Greenspan, the expert provided by the Government who rejected Morvant's defenses. 16 01-05279 Pena or xxxxxxxx. Morvant has not rebutted the Government's presentation. As stated in Fed. R. Civ. P. 56(e): When a motion for summary judgment is made and supported as provided by this rule, an adverse party may not rest upon the mere allegatins or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Thus, the Court finds that the "referral" in this instance is pretextual. He would not have "referred" these persons but for their disability; there is no such thing as a "specialist" for purposes of cleaning teeth. Direct Threat--Significant Risk As previously noted, Morvant's second defense is that because of the "significant risk" of infection to his hygienists and Dr. Morvant himself, Morvant is protected from these allegations of discrimination based on 28 U.S.C. 12182(b)(3). However, the Court believes that his invocation of this statute is pretextual as well. The Department of Justice has promulgated regulations found at 28 C.F.R.  26.208 discussing "direct threat" with respect to a public accommodation. The regulation states: (a) This part does not require a public accommodation to permit an individual to participate in or benefit from the foods, services facilities, privileges, advantages and accommodations of that public accommodation when that individual poses a direct threat to the health or safety of others. (b) Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a 17 01-05280 modification of policies practices or procedures or by the provision of auxiliary aids or services. (c) In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individual assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence to ascertain: the nature, duration and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk. (emphasis added). These factors codify the standard enunciated by the United States Supreme Court in School Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 107 S. Ct. 1123, 94 L.Ed.2d 307 (1987) in which the court found that a person suffering from tuberculosis can be a handicapped person within the meaning of Section 504 of the Rehabilitation Act of 1973. From the record as it stands, Dr. Morvant did not attempt any type of "individual" assessment. Neither he nor his staff examined either Pena or xxxxxxxx's mouths. With respect to the individuals named, the knowledge that they were immunocompromised lead Morvant to "refer" them out of his office. Furthermore, as cited above, there is a plethora of expert testimony presented by the Government in conjunction with this motion that while HIV and AIDS present a severe risk of infection, the severity of which is unquestioned--death at this time--the universal precautions as prescribed by the CDC are universally accepted as "reasonable modifications" of practices that will significantly mitigate the risk. These "reasonable accommodations" were well known at the time Dr. Morvant refused to treat these 18 01-05281 patients and were substantially utilized by Morvant. (Plaintiff's Exhibit 5, Answers to Plaintiff's Interrogatories (First Set), Nos. 6 and 8). Dr. Morvant again has failed to present to the Court any expert testimony or specific competent evidence that would create a question of fact with regard to this issue. Thus, the refusal to treat because of the danger was pretextual in nature. Finally, the Court must deal with Morvant's protestation that he had not kept up with the literature and training necessary to treat these types of patients. He stated in his stipulation: Dr. Morvant had not kept abreast of all recent developments in the dental treatment of HIV-positive/AIDS individuals and in the prevention of transmission of the HIV virus, so he considered the treatment of HIV- positive/AIDS individuals to be outside of his area of expertise. Dr. Morvant then presents the Court with argument that presents ignorance as a defense. However the regulations themselves preclude this defense. Dr. Morvant is required to base his decision with respect to risk on "current medical knowledge or on the best available objective evidence to ascertain" the risk involved. 28 C.F.R.  36.208(c). Dr. Morvant chose to ignore that information and in doing so ran afoul of the law as it now stands. As so eloquently stated in Mayberry v. Von Valtier, 843 F.Supp. 1160, 1166 (E.D.Mich. 1994): One of the stated purposes of the ADA is "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C.  12101(b)(1). Congress specifically found that "individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion [and] the 19 01-05282 discriminatory effects of . . . communication barriers. . . " 42 U.S.C.  12101(a)(5). Given that statement, Congress appears to have intended the ADA to address the discriminatory effect of benign actions or inaction as well as intentional discrimination. While these statements were made in the context of the hearing impaired and with regard to the burden of proof to be applied in an ADA case, there is no reason for their not being equally applicable to an AIDS or HIV-positive individual where such blatant discrimination as demonstrated by Morvant is presented. This is not to say that his was not of the benign character; however, the Congress has spoken to this issue. A law is in place that protects these individuals from discrimination and to find that Morvant's actions were not prohibited under this statute because of his own purposeful ignorance would allow the rule to be swallowed by the exception. This Court will not embark on a judicial disembowelment of the statute. DEFENDANT'S MOTION TO DISMISS Morvant has moved the Court pursuant to Fed. R. Civ. P. 12(b)(1)(c) (sic) that: to the extent Title III of the Americans with Disabilities Act of 1990 prohibits the professional referrals made by defendants, the Americans with Disabilities Act is unconstitutional as regulating activities outside of the scope of the Commerce Clause and of the Fourteenth Amendment to the United States Constitution. As Congress has not invoked the Fourteenth Amendment with respect to Title III of the ADA, the Court will only address its 20 01-05283 constitutionality under the Commerce Clause of the Constitution, U.S. Const., art. I,  8, cl. 3. Morvant specifically argues that the ADA cannot constitutionally prohibit them from following a policy of refusing routine dental care and allowing them to "refer" such individuals "to a health care provider who had made a study of HIV infection and its treatment and who accepted such referrals." Defendants claim that this is "inconsistent with the normal physician/patient relationship." (Memorandum in Support of Motion to Dismiss at 5). Therefore, because the ADA interferes with that exercise of Morvant's professional judgment, the ADA cannot rationally further the nations' proper goals of affording individuals with disabilities the equal opportunity to receive medical treatment. A court may consider only the following criteria when deciding whether a federal statute operates within the constitutional authority granted under the Commerce Clause: 1) whether there is a rational basis for a congressional finding that a regulated activity affects interstate commerce and 2) whether the means selected by Congress are "'reasonably adapted to the end permitted by the Constitution.'" Presault v. Interstate Commerce Comm'n, 494 U.S. 1, 17 (1990) (citing Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276 (1981)). Morvant in his Response to Plaintiffs' Second Request for Admission No. 17 and 20 admits to activities which under Katzenbach v. McClung, 379 U.S. 294, 296-97 (1964) and Pinnock v. International House of Pancakes Franchisee, 844 F. Supp. 574, 579 21 01-05284 (S.D. Ca. 1993), affect interstate commerce and subjects Morvant to liability under Title III of the ADA. Thus, the thrust of Morvant's argument is that the Act is unconstitutional because it prohibits those referrals made by Morvant. As discussed above, the Act does not prohibit all referral; however, the referral under the ADA is permitted: 1) if the treatment being sought is outside the referring provider's area of specialization; and 2) in the normal course of operations, the referring provider would make a similar referral for an individual without a disability who seeks or requires the same treatment or services. The Court cannot find that these restrictions somehow make the ADA's prohibitions such that there is "no reasonable connection between the regulatory means selected and the asserted ends." Hodel v. Indiana, 452 U.S. 314, 323-324, 101 S. Ct. 2376, 2383, 69 L.Ed.2d 40 (1981). Indeed, without such restrictions, the exception would again swallow the rule because the type of pretextual "referral" at issue herein would be permitted. The Court finds the Motion to Dismiss to be meritless. ENFORCEMENT The parameters of the authority of the Court in a civil action are outlined in 42 U.S.C.  12188(b)(2) 9. Having reviewed the 9The statute states: (2) Authority of court In a civil action under paragraph (1)(B), the court -- (A) may grant any equitable relief that such court considers to be appropriate, including, to the extent required by this subchapter-- (i) granting temporary, preliminary, or permanent relief; 22 01-05285 record, having considered the facts of the case, and taking into consideration what relief the Court finds appropriate, the Court will order that: 1) Defendants be enjoined from refusing to provide treatment to persons with HIV or AIDS, on the basis of their HIV positive status; 2) Defendants be enjoined from having a blanket policy of "referring" out all people with HIV or AIDS to Dr. Creely Sturm or other general dentists; 3) Defendants be required to adopt and post a policy of non-discrimination on the basis of disability, including HIV and AIDS; 4) Defendants and their staff be required to undergo training concerning HIV and the practice of dentistry; (ii) providing an auxiliary aid or service, modification of policy, practice, or procedure, or alternative method; and (iii) making facilities readily accessible to and usable by individuals with disabilities; (B) may award such other relief as the court considers to be appropriate, including monetary damages to persons aggrieved when requested by the Attorney General; and (C) may, to vindicate the public interest, assess a civil penalty against the entity in an amount-- (i) not exceeding $50,000 for a first violation; and (ii) not exceeding $100,000 for any subsequent violation. (3) Single Violation For purposes of paragraph (2)(C), in determining whether a first of subsequent violation has occurred, a determination in a single action, by judgment or settlement, that the covered entity has engaged in more than one discriminatory act shall be counted as a single violation. (4) Punitive damages For purposes of subsection (b)(2)(B) of this section, the term "monetary damages" and "such other relief" does not include punitive damages. (5) Judicial consideration In a civil action under paragraph (1)(B), the court, when considering what amount of civil penalty, if any is appropriate, shall give consideration to any good faith effort or attempt to comply with this chapter by the entity. In evaluating good faith, the court shall consider, among other factors it deems relevant, whether the entity could have reasonably anticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability. 23 01-05286 5) a hearing on the issue of damages to Ismael Pena and xxxxxxxx will be held on May 17, 1995 at 9:30 a.m. CONCLUSION The ADA is aimed at protecting persons with disabilities. As stated in relation to the Rehabilitation Act, which in the Court's belief is equally applicable here, "discrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference of benign neglect." Alexander v. Choate, 469 U.S. 287, 295, 105 S. Ct. 712, 717, 83 L.Ed.2d 661 (1985). Certainly here, Morvant chose the road of benign neglect which has been blocked by Congress by the ADA. The Court will not judicially tamper with the law. Accordingly, IT IS ORDERED that: 1. The United States' Motion for Summary Judgment is GRANTED rendering MOOT defendant Morvant's Motion for Summary; 2. Morvant's Motion to Dismiss is DENIED; 3. Defendants be enjoined from refusing to provide treatment to persons with HIV or AIDS, on the basis of their HIV positive status; 4. Defendants be enjoined from having a blanket policy of "referring" out all people with HIV or AIDS to Dr. Creely Sturm or other general dentists; 5. Defendants be required to adopt and post a policy of non- discrimination on the basis of disability, including HIV and AIDS; 24 01-05287 6. Defendants and their staff be required to undergo training concerning HIV and the practice of dentistry; and 7. a hearing on the issue of damages to Ismael Pena and xxxxxxxx will be set at a status conference to be held telephonically on April 7, 1995 at 9:30 a.m. New Orleans, Louisiana, this 22nd day of March, 1995. (Signature) _________________________________ STANWOOD R. DUVAL, JR. UNITED STATES DISTRICT JUDGE 25 01-05288 Department of Justice FOR IMMEDIATE RELEASE CR MONDAY, OCTOBER 4, 1993 (202) 616-2765 TDD (202) 514-1888 JUSTICE DEPARTMENT SUES TWO DENTAL OFFICES FOR FAILURE TO TREAT PATIENTS WITH HIV AND AIDS WASHINGTON, D.C. -- In its first lawsuits to stop discrimination against people infected with the AIDS virus, the Justice Department today sued dental offices in Houston and New Orleans. The suits were brought under Title III of the Americans with Disabilities Act which prohibits discrimination on the basis of disability in places that do business with the public. "These lawsuits demonstrate that discrimination against people with HIV and AIDS will not be tolerated," said Attorney General Janet Reno. "Such discrimination is based on unfounded fear and factual misunderstandings. There is no medical or legal justification for discrimination against HIV-positive individuals, especially in health care." Today's actions were filed against Castle Dental Center, a chain of dental and orthodontic facilities in Houston, Texas, and Dr. Drew B. Morvant, a dentist who practices in New Orleans, Louisiana. (MORE) 01-05289 - 2 - The complaint against Castle Dental Center, filed in Federal District Court in Houston, asserted that in 1992 it refused to continue treating a patient once it became aware that he was HIV- positive. The patient, who had received orthodontic treatment for eight months, received a letter which read: "Due to the recent discovery of your health problems, Castle Dental Center has decided to cease providing you with orthodontic treatment." In the other case, filed in Federal District Court in New Orleans, the Justice Department alleged that a dentist denied dental services to two men, both of whom were informed that the office does not treat HIV-positive patients. One of the men recently died of AIDS. The American Dental Association has indicated that there is no medical or scientific justification for excluding persons with HIV or AIDS from dental treatment, solely on the basis of their HIV-positive status. The federal government's Centers for Disease Control and Prevention (CDC) has consistently stated that HIV infected patients must not be denied medical care. Both the CDC and the American Dental Association recommend the use of infection control procedures known as "Universal Precautions" to prevent the transmission of bloodborne diseases, including HIV, in the health care setting. The Occupational Health and Safety Administration requires that Universal Precautions be used in all dental facilities. According to the American Dental Association, the use of the Universal Precautions (MORE) 01-05290 - 3 - reduces the risk of HIV transmission to an "infinitesimal" degree. The Justice Department seeks an order requiring the dental offices to change their policies and provide complete and equal services to persons with HIV and AIDS. It also seeks civil penalties in each action, as well as compensatory damages for the three men who were refused treatment. #### 93-299 (MORE) 01-05291