http://commdocs.house.gov/committees/judiciary/hju52589.000/hju52589_0f.htm
SPEAKERS CONTENTS INSERTS Tables
THE APPLICATION OF THE AMERICANS WITH
DISABILITIES ACT TO MEDICAL LICENSURE AND JUDICIAL OFFICERS
THURSDAY, MAY 22, 1997
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee
met, pursuant to notice, at 10:30 a.m., in room 2237, Rayburn House Office
Building, Hon. Charles T. Canady (chairman of the subcommittee) presiding.
Present:
Representatives Charles T. Canady, Bob Inglis, Ed Bryant, Bill Jenkins, Bob
Barr, Asa Hutchinson, Robert C. Scott and John Conyers, Jr.
Majority staff
present: Kathryn Lehman, chief counsel; John Ladd, counsel; Brett Shogren,
staff assistant; and Michael Connolly, staff assistant.
Minority staff
present: Stephanie Goodman, counsel; and Julian Epstein, staff director.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The
subcommittee will come to order. Good morning.
In 1990, Congress
enacted the Americans with Disabilities Act to remedy problems of
discrimination based upon disability. Since its enactment, the Americans with
Disabilities Act has been a powerful tool in the Nation's civil rights arsenal.
With certain exceptions, it appears that the ADA has been working as intended.
Concerns have been
raised, however, that Federal agency actions and recent court decisions have
failed to carefully balance the need to protect against discrimination based as
disability by public entities as prohibited under Title II of the ADA, with the
ability of the States to ensure that physicians and judges are qualified to
carry out their responsibilities.
Today's hearing
will review recent case law regarding the application of the ADA to state
licensure of physicians in New Jersey and judicial nominating commissions that
screen judicial candidates for appointment in Florida. It has created concerns
over the appropriate balance between the public safety and rights asserted
under the ADA.
Traditionally, it
has been the province of the States to determine the fitness of doctors which
the States license. I am concerned that State professional regulatory boards,
such as State boards of medical licensure and commissions established to
nominate judges, are increasingly unable to set their own standards of fitness.
Today we will hear
testimony from representatives of State medical boards who believe that if such
a board is to perform its functions properly it must be able to determine
whether individuals who have been treated in the past for chemical dependency
or mental illness are currently able to practice medicine with reasonable skill
and safety on the public at large and in a given State. We will hear similar
concerns relating to the judicial nominating process.
I want to thank
all of the witnesses who have agreed to be with us here today. I am looking
forward to hearing your testimony.
Mr. Scott.
Mr. SCOTT. Thank
you, Mr. Chairman.
Today we are
assembled to discuss whether or not States should be able to screen doctors and
judges without regard to the Americans with Disabilities Act. I look forward to
hearing the testimony of today's witnesses, many of whom have had to rearrange
busy schedules in order to be with us today.
Dr. Jamison, I
understand, has had to maneuver this appearance between two other professional
trips between California yesterday and Toronto this afternoon; and Judge Brown
flew in yesterday and left behind what I am sure is a busy docket of the Court
of Appeals in Wisconsin.
The Americans with
Disabilities Act prohibits discrimination against people with disabilities. The
Americans with Disabilities Act was created in 1990 to provide a clear and
comprehensive national mandate for the elimination of discrimination against
individuals with disabilities and to formulate clear and consistent standards
which enforce that mandate.
The important
rights given under the act that are most relevant today can be found in the
ADA's Title II which prohibits policies that are—that unnecessarily impose
greater requirements and burdens on individuals with disabilities in the
screening process than those imposed on others. These requirements expected of
people with disabilities often perpetuate the stigma surrounding disabilities
and incorrectly suggest that a history of mental or physical illness in and of
itself may be a disqualifying factor for a professional license.
The focus on
today's hearing is on questions posed by State licensing boards concerning the
history of an applicant's mental and physical health. These questions often
place unnecessary additional burdens on those applicants for medical and
judicial licenses for people who have disabilities.
While personal and
intimate details are revealed in answering such overinclusive and broad-based
questions, no light is shed on the applicant's current ability to practice
medicine or preside as a judge. Rather, the questions themselves create the
potential for discrimination.
Narrowly tailored
behavioral-based questions, on the other hand, do not violate the rights of
privacy of people with disabilities yet can still protect the health and
welfare of the public. For example, while it is not acceptable under the ADA to
ask, have you suffered any physical or mental illness or injury in the last 6
years, a licensing board could ask, do you currently possess the physical and
mental ability to perform the essential functions of a judge with or without an
accommodation?
The latter
question can be distinguished because it is one which concerns the applicant's
current ability to deal with emotionally or physically challenging situations
as opposed to the former which might deter potential applicants from seeking
treatment because of the fear that they might have to later disclose this
information when seeking a judgeship or medical license.
The courts, to
their credit, have interpreted the Americans with Disabilities Act correctly.
In Medical Society of New Jersey v. Jacobs, the
court held that the New Jersey State Board of Medical Examiners could not ask
broad-based questions concerning a person's physical and mental health
background in its attempts to determine whether or not an applicant is fit to
practice medicine.
Similarly, in a
Florida case, a court ruled that the judicial nominating commission could not
ask broad-based questions concerning an applicant's physical or mental health
history but rather could only ask narrowly tailored questions designed to
elicit whether an applicant was currently qualified to be a judge.
Mr. Chairman, I
look forward to the testimony of the witnesses in answering these questions;
and I appreciate you holding the hearing. And, as I have indicated before, we
have one witness who must leave at 11:30; and I appreciate your accommodation
of Dr. Jamison.
Mr. CANADY. Thank
you, Mr. Scott.
Mr. Hutchinson.
Mr. HUTCHINSON. Thank
you, Mr. Chairman.
I just wanted to
congratulate you for conducting this hearing. I understand this is the first
congressional oversight hearing on ADA since its enactment in 1990. As a
private practice attorney before coming to Congress, I had experience with the
ADA; and I do believe it is appropriate and very important that we conduct this
oversight hearing. I am very grateful for you leading the effort in that
regard.
I will withhold
any further statement out of consideration for the witnesses' time and look
forward to their testimony.
Mr. CANADY. Thank
you, Mr. Hutchinson.
On our first panel
this morning we will hear testimony on the impact of the Americans with
Disabilities Act on State boards of medical licensure.
We will first hear
from Ray Q. Bumgarner, who will be representing the Federation of State Medical
Boards. Mr. Bumgarner serves as Executive Director of the State Medical Board
of Ohio.
Second, we will
hear from Dr. Kay Jamison. Dr. Jamison is a respected author and lecturer and
is a psychiatrist with the Johns Hopkins University.
Next, we will hear
from Susan Spaulding. Ms. Spaulding is President of the Federation of State
Medical Boards. She is also Chair of the Vermont Board of Osteopathic
Physicians and Surgeons.
Next, we will hear
from Professor Chai Feldblum. Professor Feldblum teaches at the Georgetown
University Law Center.
The final witness
on the first panel today will be Stan Ingram. Mr. Ingram is the Board Attorney
of the medical State—I am sorry—of the Mississippi State Board of Medical
Licensure. An expert on licensure and certification law, Mr. Ingram is also a
member of the Federation of State Medical Boards and Mississippi Health Lawyers
Association.
Without
objection, your testimony will be made a part of the permanent record—that is,
your full written testimony will be made a part of the record; and I would ask
that you do your very best to summarize your testimony in 5 minutes each.
The red light will
indicate when the 5 minutes is up. So if you would help us in that regard, I
would appreciate it.
Again, we thank
each of you for being here today.
Mr. CANADY. I
will first recognize Mr. Ray Bumgarner.
STATEMENTS OF RAY Q. BUMGARNER,
REPRESENTING THE FEDERATION OF STATE MEDICAL BOARDS AND EXECUTIVE DIRECTOR,
STATE MEDICAL BOARD OF OHIO
Mr. BUMGARNER. Thank
you, Mr. Chairman, members of the committee. Thank you for the opportunity to
appear today.
My name is Ray
Bumgarner. I am appearing today not only as the Executive Director of the State
Medical Board of Ohio but as the Chair of the Federation of State Medical
Board's work group on the ADA. That group authored a guidebook on the impact of
the ADA upon medical boards in an effort to help boards understand it and to
bring themselves into compliance with that act.
The Ohio Medical
Board, like those throughout the country, is a State agency charged with
safeguarding the public through regulation of the practice of medicine. That
regulation is accomplished through setting and defining practice standards,
ensuring that those licensed have sufficient training and ability to practice
safely, identifying those who practice below standards and intervening to stop
substandard practice.
With the passage
of the ADA in 1990, I expected that licensing boards as public entities would
have to review the ways in which they provide services. I also expected that
boards might have to alter their licensure examination practices. I even
expected that medical schools and licensing boards alike might have to better
delineate the essential eligibility requirements required for competent medical
practice.
But I never
expected that the first major ADA litigation to be unleashed against medical
boards would be aimed at closing the window through which they have
traditionally peered to identify practitioners who require ongoing monitoring
to assure their safe medical practice.
Even less did I
expect to see a questioning of the very authority of medical boards and their
partner treatment programs to continue their ongoing monitoring programs.
I never expected
to see candidates taking a high-stakes medical licensure exam to be given what
might be perceived as an unfair advantage over others based solely upon letters
authored by one single professional willing to attach a diagnostic label, no
matter how lacking in foundation that label might be.
And I certainly
never expected to see a situation in which the identity of those who receive
examination accommodation might be concealed from the licensing decisionmakers
who offered and authorized that exam.
But that is where
medical boards stand today.
As a consequence
of the New Jersey litigation, the first major litigation taken against a State
licensing board under the ADA, medical boards now seem to have a choice of
three options with respect to application for initial licensure or renewing
those licenses.
Boards could adopt
a ''don't-ask-don't-tell'' approach and not ask any background questions
touching upon prior existing disabilities. However, I think a State medical
board using that approach would likely be accused of being derelict in its
duty.
The second
possibility might be to simply seek shelter in the safe harbor of subjective
questions, as advocated by the Department of Justice. Yet the Federation
believes that this approach does not correspond with the experiences of State
medical boards.
Let's be honest.
How many of us as attorneys would advise our clients to answer ''yes'' to the
following question: ''Are you currently engaged in the illegal use of
controlled dangerous substances?''
Furthermore, if in
denial, how many substance abusers are going to answer ''yes'' to a question
concerning their current use of such drugs?
The third
alternative is for each medical board to undertake a balancing act, weighing
the threat of not identifying the impaired physician against the need to avoid
prohibited ''screening out'' of those with a disability.
Now, this option
might call for development of temporal windows for specific disorders. Other
past disability history not indicative of a problem could be ignored altogether
as not predictive of future risks to the public.
The trouble is, no
one knows for a certainty how big a window you need. Neither medical boards nor
the treatment community have yet reached the level of sophistication necessary
to declare any particular period of sobriety or pattern of behavior as predictive
of future safe practice. Even when a physician has avoided detectable
misconduct over a significant period of time, the public may still be at risk.
A cursory survey
of Ohio cases alone documented since 1992 belies the predictability of, say, a
2-year temporal window. That survey uncovered 14 practitioners who suffered
relapses following two or more years of sobriety. In particular, two
practitioners had over 2 years; four practitioners had over 3 years of
sobriety; one practitioner had over 2 years of sobriety before a first relapse,
then 3 more years before a second relapse; four practitioners had over 5 years
of sobriety; one practitioner had over 8 years; one over 9 years; one had over
13 years of sobriety, relapsed, then had 11 more years before relapsing again.
And just in case
the question needs to be asked, there were 11 who relapsed in under 2 years.
Other States'
experiences are undoubtedly similar. Yet the question remains, even were we to
have concrete information, would medical boards be willing to risk opening the
window further in the face of the New Jersey litigation or are they indeed
going to pay attention to the subjective questions alone?
I am sorry. I just
have maybe another 30 seconds to a minute.
Mr. CANADY. You
can proceed.
Mr. BUMGARNER. OK.
Thank you.
Perhaps medical
boards should be forgiven for believing that the Department of Justice's
current approach does little more than make them a test bed for presumptive
theories declaring that it is acceptable to license, without evaluation or
monitoring, physicians who have extensive impairment histories but have not yet
engaged in harmful conduct. Until now, it has never been the role of State
medical boards to wait until unacceptable or dangerous conduct occurs to
identify potentially dangerous practitioners.
We offer two
recommendations: First, we believe that if the same arguments that persuaded
Congress to provide an exemption in Title I for those employed in the
transportation industry cannot likewise be accepted for licensed physicians, at
least the ADA should be amended to recognize the expertise of medical licensing
boards in asking questions of applicants about past and current physical and
mental health conditions, behavior and conduct.
There should be a
presumption that information requested by the board would be necessary to
protect the public. That presumption should only be overcome by clear and
convincing evidence that the specific request is overly broad.
Secondly, we
believe that the ADA should also be amended to explicitly allow medical
licensing boards to be notified if special accommodations have previously been
granted to licensed applicants for tests that themselves are a prerequisite for
licensure. Let's remember that the Hippocratic Oath guides physicians to first
do no harm.
On behalf of the
Federation, I respectfully urge you to scrutinize the ADA and to remedy those
portions that run counter to the law's intent by placing Americans in harm's
way. By doing so, you will ensure that the public is afforded a high degree of
protection without compromising the principles upon which the ADA was
conceived.
On behalf of the
Federation, I thank you for your consideration.
Mr. CANADY. Thank
you.
[The prepared
statement of Mr. Bumgarner follows:]
INSERT OFFSET RING FOLIOS 1 TO 48 HERE
Mr. CANADY. Dr.
Jamison.
STATEMENT OF KAY JAMISON, PSYCHIATRIST,
JOHNS HOPKINS UNIVERSITY
Ms. JAMISON. Yes.
I am Kay Jamison. I am a clinical psychologist and professor of psychiatry at
the Johns Hopkins University School of Medicine. Prior to that, I was at the
UCLA School of Medicine. My specialty is in treatment and study of mood
disorders, particularly depression and manic depression.
I also represent
100 patient advocacy and pharmaceutical groups, the Genome Action coalition, as
their chair.
I have staff
privileges at Johns Hopkins, and I am licensed by the State of California and
by the District of Columbia.
I am not an expert
on the ADA, and I would not in any way like any of my discussion this morning
to jeopardize the discussions that have gone before with the ADA by people who
are far more articulate and have thought far more carefully and at length about
these issues. This is not my area of expertise, and I really want to make that
very clear.
But I am here as a
specialist in the study and treatment of mood disorders and is somebody as a
practitioner who suffers from a very severe form of mental illness, manic
depression.
I would like to
make it clear that there are certain practical issues out there in the world of
practice that come up certainly before licensing boards; and I am very, very
concerned—I used to direct a very large clinic at UCLA. I am certainly very
concerned about the issues of public responsibility of doctors and
psychologists and nurses and the protection of rights and the protection of
individuals who have psychiatric illnesses who practice but also, first and
foremost, the patients who are at the hands of these particular doctors and
specialists.
Several issues are
relevant, however. I think, first and foremost, it should be said that mood
disorders, which are the illnesses next to substance abuse that come foremost
before boards, these are very common illnesses. So at some practical level you
have to say, okay, if up to 20 percent of the population is going to have an episode
of major depressive disorder in their lifetime, if 1 percent of the population
suffers from a severe form of manic depressive illness—and that doesn't include
all the milder forms of manic depressive illness—then are you seriously
thinking about excluding these people from square one?
Of course, it is
impractical to exclude or discriminate against a segment of the population.
That would not only be exclusionary, it would be a very large group of people
to be excluding.
To make it more
difficult for them to practice, I think, is also something to take in mind.
These are illnesses that are, if anything, more common in doctors than they are
in the general population; and there are several studies that have been done
that indicate that depression and manic depression are more common in
physicians than in the general population, which makes them particularly
common.
That is also true,
perhaps to a less extent, in attorneys but certainly within certain groups of
attorneys—I might add litigators in particular—manic depression is not
uncommon.
I would also like
to make a point that seldom is made in terms of these issues, that manic
depression and depression are really overrepresented in the creative fields;
and this will come back to the issues of public health in an indirect sort of
way. The rates of depression and manic depression are up to 10 to 15 times
higher in highly creative individuals, so to discriminate against these
individuals is not only to violate their rights but, in a long-term sense and
in a societal sense, a quite substantial and meaningful way to undermine the
ultimate public health of the United States, because innovative treatments and
treatments to some extent that are predicated on a particular kind of
temperament and a particular kind of thinking.
In fact, when I
went to my chairman at Johns Hopkins, Professor Paul Mchugh, to talk to him
about my clinical privileges, his comment was, you know, if we got rid of all
the manic depressives here on the medical faculty at Johns Hopkins not only
would we have a much smaller faculty we would have a much more boring one.
That was a very
nice thing, and it was very funny, and I appreciated it greatly, but anybody
who practices in the field and specializes in the treatment of moods disorders
knows that that is absolutely true. These are common illnesses.
If discrimination
continues and is allowed in the law by the law and by licensing boards, then
professionals will necessarily not discuss or disclose their illnesses because
their professional livelihood will be threatened. This is the history in every
country that we know of and for obvious reasons.
This is true for
politicians as well, one might add. It is true for most fields. People don't
talk about things that they are not allowed to talk about if they are going to
lose their jobs.
This will and has
led to personal tragedy. It has led to alcohol and drug abuse being widely
used, by people who have mood disorders, to treat themselves; self-medication
on the part of physicians with anti-depressants, which is often disastrous,
really disastrous and suicide.
It is estimated
that an entire medical school class each year commits suicide, the equivalent
of that each year of physicians. That is a lot—that is a big loss of life.
These doctors have access to highly lethal means of committing suicide. But
also, of course, they will jeopardize the public health through compromised
patient care if people don't go public about it.
So
on the one hand you want to regulate doctors, and I am a great believer in
regulating doctors. On the other hand, you don't want to drive them underground
so that the public health is further jeopardized.
I believe
absolutely that clinical privileges are exactly that: They are privileges; they
are not rights. Yet we are losing among the best and the brightest of many of
our doctors because they are thrown out of residency programs or not licensed.
And as a result having gone public with my own illness about a year and a half
ago, I received hundreds of letters from young doctors who have not been
allowed into residency programs and licensing—have not been licensed.
I want to just end
with a personal experience of how I think you can do it well. I have been very
fortunate in my own care. I first went very psychotic, very manic, when I
joined the faculty at UCLA as a young assistant professor.
The chairman of my
department took me aside and said, get treatment. You know, stay in treatment,
stay on your Lithium, but write from it, learn from it, go out and advocate as
a result of it. He in no way said don't practice. He did say and indicated he would
be in touch with my psychiatrist if he needed to, and that seemed to be
perfectly appropriate at that level at that time.
But I think
that—also, when I decided to go public a couple of years ago, I went to my
chairman, again at Johns Hopkins, and said I wanted to write this book; and I
just want to end with what he said, because I think it is a particular kind of
tone of tolerance that was very appropriate. He said—and I was saying, you
know, I don't want to embarrass Johns Hopkins and so forth and so on; but I do
want to say, you know, these are illnesses that kill people, and I want to do
something about it.
He said, you know,
Kay, you have got it all wrong. He said, when Professor Halsted was the first
professor of surgery here at Johns Hopkins, an extremely well-known surgeon in
surgical history, he said everybody on the faculty of Hopkins knew that Professor
Halsted was a morphine addict; and everybody knew he was a cocaine addict. The
faculty took the perspective and point of view that it had two
responsibilities: the first responsibility clearly was to protect Professor
Halsted's patients; the second was to protect Professor Halsted so that he
could continue to practice and teach and write about surgery. And he said, if
Hopkins can't do that for you, Hopkins has no business being in business.
Thank you.
Mr. CANADY. Thank
you.
Ms. Spaulding.
STATEMENT OF SUSAN SPAULDING, PRESIDENT,
FEDERATION OF STATE MEDICAL BOARDS AND CHAIR, VERMONT BOARD OF OSTEOPATHIC
PHYSICIANS AND SURGEONS
Ms. SPAULDING. Thank
you. My name is Susan Spaulding, and I appear before you today not only as the
President of the Federation of State Medical Boards of the United States but
also as chair of the Vermont Board of Osteopathic Physicians and Surgeons. I am
also the past chair of the Vermont Board of Medical Practice.
My
participation in the work of both of Vermont's State medical boards has been as
a public member. Additionally, I am the first public member of a medical board
to hold the office of President of the Federation.
Public members
bring a unique perspective to the work of State medical boards. We represent
the voice of Vermont's health care consumers in regard to the licensing and
disciplining of physicians, and we take that job very seriously. The public
trust requires that every physician holding a Vermont medical license has our
official stamp of approval.
The average
citizen does not have the resources to verify a physician's credentials,
evaluate his or her post graduate training and examination scores or do a
background check in order to ascertain that this individual is competent and
truly fit to practice medicine. Our citizens trust that they need only see a
medical license issued by the medical board on the wall of a physician's office
to know the answers to these questions.
It is the medical
board's job to know the answers. If an important element in a physician's
history is missed, that makes the physician a danger to the public. The medical
board must answer as to why we granted this individual the privilege of
practicing medicine.
Under the ADA,
however, our ability to learn those answers has been severely constrained.
In Vermont, we
have felt the impact of the ADA on our efforts to screen physicians during the
licensing process. Desiring to be in compliance with this new law, we have
changed the questions on our applications for initial and renewal licensure to
meet the guidelines issued by the Department of Justice.
Now that we are in
compliance with the ADA, it is difficult to elicit vital information about the
past mental and chemical dependency histories of our applicants. With the
answers to the questions we now must use, it is difficult to determine which
applicants should be evaluated more closely. We must make the decision to grant
a license to these individuals with a very limited supply of information.
Being a health care
consumer myself, I am very uncomfortable with the limitations now placed upon
State medical boards. Being the chair of a medical board, I know firsthand the
harm that problematic physicians can incur upon an unsuspecting public. It is
my hope that by the close of this hearing today, the members of this
subcommittee will be acutely aware of the ways in which the ADA, as it stands
now, threatens the public safety and that a corrective change may be made in
this law.
I thank you very
much for your time.
Mr. CANADY. Thank
you.
Professor
Feldblum.
STATEMENT OF CHAI R. FELDBLUM, PROFESSOR,
GEORGETOWN UNIVERSITY LAW CENTER
Ms. FELDBLUM. My
name is Chai Feldblum. I am an associate professor of law at the Georgetown
University Law Center where I teach disability discrimination law. I was also
one of the main lawyers that worked with Congress in 1990 on behalf of the
disability community in passing the ADA.
Mr. Bumgarner and
Ms. Spaulding have said this morning that the ADA restricts the ability of
medical boards to ensure us quality medical professionals. I think that is a
completely erroneous understanding of what the ADA actually requires.
Because of a
personal family situation, I have spent a lot of time with medical
professionals over the past 2 years. I assure you, I want the doctors I am
dealing with to be qualified and competent. What I have explained in detail in
my written testimony and what I hope to summarize here in a few minutes is to
explain how the ADA does not restrict the ability of these medical boards to
assure me the competent doctors I want.
Assume there are
three individuals who are trying to get a license. I call them Craig, Robert
and Susan in my written testimony. Susan has paraplegia and uses a wheelchair;
Craig and Robert both have major depressive illnesses.
Susan is doing
fine. She got through medical school, got through her residency, all with
flying colors.
Craig has his
depression under control. He has gone to see a therapist for a number of years.
He has taken Zoloft every day. He has been functioning just fine.
Robert does not
have his depression under control. In fact, he has consistently refused to see
a therapist, refused to take medication, partly because he is afraid about
answering questions about having gotten such treatment when he is up for
licensing.
Now
as a potential consumer of medical care, I want to make sure that these medical
boards have the legal ability to identify Robert as a potential problem
applicant and to either deny him a license, if that is what they are going to
do, or to monitor him, if that is what they decide in their expert view to do.
As a person who
cares about the civil rights of people with disabilities, I want to make sure
that Susan and Craig are not denied medical licenses because some member of a
medical board might think that it is impossible for a person with paraplegia or
a person with a history of depression to be a good doctor. And I want to make
sure that the intimate details of Craig's therapy—because let's assume that
Craig was sexually abused as a child and his mother is an alcoholic—that those
details don't come out unnecessarily to the medical board if he is, in fact,
functioning well as a doctor.
Now there are two
legitimate public policy goals Congress must be concerned with: protecting the
public welfare and ensuring the civil rights of people with disabilities. There
is not a conflict between these two goals.
The ADA, as
currently drafted, as currently applied and interpreted by the courts, ensures
that both of these goals are met. In fact, if Congress makes any change in the
ADA, it will be undermining one of these goals.
Here is how these
two goals are met right now: Civil rights for people with disabilities, as set
forth in the ADA, does not mean that every person with a disability has a right
to every job he or she wants. It means that every person with a disability has
the right to be judged individually on his or her own merits. That is what it
means. It removes the ability from an employer, a business, a member of a State
medical board, to substitute his or her own stereotypes about a disability for
objective facts.
So if Susan and
Craig are qualified to be physicians based on the objective facts of their
abilities, the ADA appropriately steps in to stop a medical board member from
saying, well, in my gut I feel this person can't be a good doctor. There is no
conflict between the civil rights of people like Susan and Craig and the public
welfare of their patients. But if the ADA won't apply to State licensing
boards, there will be no legal guarantee that Craig and Susan will be judged on
their merits.
Now, there is a
second application of the ADA anti-discrimination principle that I think is sometimes
harder for people to grasp, but it is key to the ADA's protection. In order to
ensure that individuals with disabilities are, in fact, judged on their merits,
the ADA prohibits unnecessary inquiries into whether a disability actually
exists.
Now this is
actually a common-sense requirement, but I think it is hard for people to grasp
because it is different from—and I just have about 1 minute left—it is
different from what we are used to in gender and race discrimination.
Most women can't hide
their gender. Most African Americans can't hide their race. So civil rights
can't help them escape discrimination by helping them hide the fact of their
gender and race. Instead, it steps in and says, you can't use gender and race
inappropriately.
But assume you
have a characteristic that may trigger discrimination, but is not apparent, as
is the case with disability. In that case, civil rights law can give an
additional protection and that is to allow the person to withhold disclosure of
the fact that he or she has a disability.
Now the reason
that that principle of anti-discrimination does not conflict, though, with
ensuring public welfare is as follows:
The ADA does not
prohibit discrimination against an individual with a hidden disability for the
behaviors that may flow from that disability. The ADA does not stop medical
boards from finding out about those behaviors and taking adverse action based
on those behaviors. So how does this operate now in this State licensing
medical board situation?
As you have heard,
traditionally, the questions that have been asked have been: Have you ever
gotten treatment for mental illness? Have you ever been diagnosed with a mental
disability? All those questions do is label the person with the status of a
person with a history of mental disability and allows the boards to go into the
records of these individuals.
For all that the
medical boards feel like these questions have been useful, the psychological
literature indicates that those questions are not accurately reflective of the
individual's abilities to practice.
So there is a
speculative benefit to asking these questions, and there are three clear costs:
One is the invasion of privacy, that Craig's sexual abuse and his mother's
alcoholism comes out when, in fact, he is perfectly qualified to be a doctor.
Two, it is a reinforcement of a stereotype that people with certain mental
disabilities cannot adequately practice medicine. And, third, it is part of
what Dr. Jamison was saying. It sets up this incredibly perverse incentive for
people not to get treatment. And one of the interesting things that has come
out in these legal cases is there are now medical deans and medical
professionals and law school professors who are testifying about the incredible
adverse harmful effects these questions have traditionally had in stopping
their students and their colleagues from getting treatment.
Mr. Chairman,
members of the committee, the ADA does not need to be modified. What does need
to happen is for a clear understanding on the part of medical boards, on the
part of people with disabilities, of the limits and the protection of the ADA;
and I hope we can work together not only with you but with the State medical
boards to ensure that this understanding is made clear.
Thank you.
Mr. CANADY. Thank
you, Professor.
[The prepared
statement of Ms. Feldblum follows:]
INSERT OFFSET RING FOLIOS 49 TO 62 HERE
Mr. CANADY. Mr.
Ingram.
STATEMENT OF STAN INGRAM, BOARD ATTORNEY,
MISSISSIPPI STATE BOARD OF MEDICAL LICENSURE
Mr. INGRAM. Thank
you, Mr. Chairman.
I am here on
behalf of the Mississippi State Board of Medical Licensure. I have just a few
comments; and, hopefully, I won't take much more than 5 minutes.
The
medical board in Mississippi, much like all the rest of the boards, is trying
to accomplish the task of protecting the general public and to license those
individuals and determine those individuals who are qualified to practice
medicine.
The application of
the Americans with Disabilities Act by the courts has and does create a
problem. We don't think the legislature ever intended that the courts would
apply the ADA the way that they have.
There are two
primary problems: First, doctors with disabilities. We are not talking about
employee/employer relationship. We are not talking about a school/student
relationship. We are talking about doctor/patient relationships and the
obligations of the medical boards to protect the public.
By issuing a
license, as Dr. Jamison said—or, excuse me, as Ms. Spaulding said—the
unsuspecting public understands that a person holding a license has been deemed
to be qualified to practice medicine with reasonable skill and safety to
patients.
Doctors are
unique. They are unique in several different respects. Number one, they are
granted the authority to make life-and-death decisions. Also, they have access
to controlled substances. That has not been mentioned much this morning.
I suffer—in my
practice, I have stress. In your practice, you have stress. In the medical
practice, there is a lot of stress. But doctors are unique. They can walk down
the hall and obtain Xanax, Valium, whatever they wish. They have immediate
access to controlled substances. Some commentators have described chemical
dependency among the medical profession as an occupational hazard as a result
of that access.
We are not talking
about denial of a medical license per se. In the 17 years which I have
represented the Mississippi medical board, they have not denied one license
based upon solely a disability, whether it is chemical dependency or mental
illness. What the boards' wish is that, number one, you have the right to
inquire, you have a right to ask the questions and then place appropriate
conditions, if necessary, to ensure that that person is maintained in a sound
recovery program, remains sober.
Now, how do you do
that? Sometimes random unannounced witnessed urine screens; sometimes
limitations on the access to controlled substances, depending on how far the
person has been in his or her recovery program.
But you have got
to ask the questions, and you have got to appropriately respond by conducting
the inquiry.
The questions have
to be objective. I think Mr. Bumgarner presented an example of a question
earlier that, makes it difficult to respond objectively? In response to the
Jacobs decision, many States, including Mississippi, have reworded their
application questions as follows: Are you now or have you ever used controlled
substances or other drugs having addiction forming or addiction-sustaining
liability to the extent that it affects your ability to practice medicine with
reasonable skills and safety of the patients?
One of the
characteristics of chemical dependency is denial. Now what person, who is
suffering from chemical dependency, is going to answer that question, ''yes, it
does affect my ability to practice medicine?'' But the Jacobs decision says
that is the way you present it.
The Jacobs
decision also said, it is not the question, it is how you respond to the
question. It is putting the affirmative burden on the applicant to have to
answer these questions and have to respond to inquiries about that person's
disability that the court in Jacobs considered discriminatory.
Again, we are not
necessarily talking about denial, but boards must have the right to ask the
question and to protect the public . Reasonable conditions.
One of the aspects
about the ADA is the impression by the general public and by many on the boards
that when you put a restriction on a license that that is a disciplinary
action. And some States consider it a disciplinary action.
The Mississippi
board does not care whether it is a disciplinary action. It doesn't have to be
denoted as such. It does not have to create that stigma. But allow the boards
to place reasonable conditions on that application, on that license, and that
information should be—there should be a free flow of information from State to
State.
For example—I want
to just read this as a basic example.
In a recent case,
the Mississippi medical board revoked a psychiatrist's license who sexually
exploited a female patient. The sexual exploitation included sadomasochistic
behavior, which was found to be extremely harmful to that patient. During the
investigation, it was determined that the particular physician had been treated
for past sexual addiction. Had the Mississippi board known of this individual's
difficulty, number one, they could have denied a license or, at a minimum, they
could have placed restrictions on that license to ensure that this type of
conduct could not have taken place—or at least minimized it.
Number one, the
questions must be—the boards must have a right to ask the questions, and they
must be presented to the applicant so that they can objectively respond. And,
number two, the boards have to have the right to conduct that inquiry.
The Mississippi
State Board of Medical Licensure and I think most of the boards, if not all of
them, recognize that those suffering from chemical dependency and mental
illness are individuals suffering from disabilities as defined by the ADA.
Notwithstanding, the boards must have the authority to inquire as to the
existence of the disabilities, as to the existence of the chemical dependency
or the mental illness and have the authority to place reasonable restrictions.
As far as the
mental illness is concerned, we are not talking about situational depression,
we are not talking about these type situations which nobody in their right mind
ought to deny a license based solely on that. We are talking about the mental
illness that can affect one's ability to practice medicine.
There is a case
decision out of Colorado—excuse me, out of Texas, which States that if, as far
as mental illness, if the questions are narrowly presented, it doesn't violate
the ADA; and we are following that. But this is—we are not talking about just
mental-illness-type situations. We are also talking about chemical dependency
as well.
Thank you.
Mr. CANADY. Thank
you, Mr. Ingram.
[The prepared
statement of Mr. Ingram follows:]
INSERT OFFSET RING FOLIOS 63 TO 100 HERE
Mr. CANADY. I
want to thank all of the members of this panel for your testimony.
I will recognize
Mr. Scott.
Mr. SCOTT. Thank
you, Mr. Chairman.
Mr. Ingram, are
all prior psychological visits relevant to your inquiry?
Mr. INGRAM. It
depends upon the type of psychological problem we are talking about. The board
has narrowly limited its question to bipolar disease, schizophrenic-type
behavior. I can pull the question out to you and read it to you if you wish.
Mr. SCOTT. So
you have limited your questioning only to those that would elicit information
that is relevant to your decision?
Mr. INGRAM. That
is correct. And in response to that question, that does not mean that they are
going to deny. The purpose is to make sure that the person is treated, stays in
treatment and so forth.
Mr. SCOTT. Let
me follow through. You don't find it necessary to ask overly broad questions
that elicit information that is clearly irrelevant?
Mr. INGRAM. I
agree with that.
Mr. SCOTT. And
you could ask those questions if the ADA did not apply to licensing?
Mr. INGRAM. Repeat
the question. If the ADA did not apply to——
Mr. SCOTT. If
the ADA did not apply to licensing physicians, you could ask any questions you
want to ask?
Mr. INGRAM. I
agree with that.
Mr. SCOTT. You
don't think that is necessary. So the question we are getting to is, what
questions are relevant to elicit the appropriate information that will let you
differentiate those physicians who would be a danger to society and those who
are not a danger to society?
Mr. INGRAM. That
is correct.
Mr. SCOTT. OK.
Mr. INGRAM. But
they must be objective questions, allowing the board to make the determination,
not the applicant.
Mr. SCOTT. And
Florida has gone through that—what State are you from?
Mr. INGRAM. Mississippi.
Mr. SCOTT. Florida
has gone through that situation recently, where they have now developed
narrowly tailored questions aimed at getting the relevant information and not
getting a lot of irrelevant information. Is that where we want to try to get
to?
Mr. INGRAM. I
agree with you. We are trying to narrow the—the questions have been narrowed in
the arena of mental illness.
As to chemical
dependency, most of the States have redefined their questions, especially in
response to the Jacobs decision in New Jersey, but this places
the responsibility on the applicant to determine whether or not that past
chemical dependency or use of drugs affects their ability. That decision should
be left up to the board upon further inquiry and not the applicant.
Mr. SCOTT. Then
the challenge is to try to develop the questions in such a way that you can get
useful information and not irrelevant information?
Mr. INGRAM. That
is correct.
Mr. SCOTT. Mr.
Bumgarner, is there any limit to the questions? And you agree with what we have
just said, that there is a limit to the questions that you ought to be able to
ask?
Mr. BUMGARNER. Mr.
Chairman, Mr. Scott, yes, I do. I do believe, however, that we are not perfect
in our ability to craft those kinds of questions. I also believe that, not
being a medical professional myself or running a treatment program myself, I
don't know where that window opens and closes, and that you learn with
experience.
I don't agree,
however, with the concept that, so far, the only real ability that boards
should feel they have is to use subjective questioning, unless they adopt that
Texas—very specific Texas language with respect to certain kinds of mental
illnesses.
I would counsel
that most of the boards believe they are restricted right now to very
subjective questioning with respect to the candidates. Either that or there has
to have actually been a skeleton in the closet that somebody has identified
that shows up as a conduct problem, and that is where we are trying to work in
this area, finding out how we can approach this and get the right information.
As Dr. Jamison
said, yes, sure, thank God for Johns Hopkins and their oversight and their
attitude. And I think you will find that most of the boards in this day and
age—the Federation has a position on impairment that I think you would find
very interesting—feel the same way.
But there is still
a responsibility, both for Johns Hopkins and for the boards, with respect to
drawing the line when there is a problem and knowing about it.
Mr. SCOTT. That
is the key. We are trying to draw a line where we get relevant information and
not irrelevant information.
Because you are
aware if a medical student or law student knows that they are going to have to
answer a have-you-ever question, you are not going to seek any kind of
treatment for any—a death in the family, you are not going to counseling
because that is going to be on the have-you-ever question that you might have
to answer, which would be clearly irrelevant.
Mr. BUMGARNER. Mr.
Chairman, Mr. Scott, that is one of those situations where we have to balance.
On the other hand,
all of us have to make those tough decisions about direct threat versus the
extent of the questioning. Very tough.
Mr. SCOTT. And
the whole point is we have to struggle with that.
Mr. BUMGARNER. Yes.
Mr. SCOTT. And
without the ADA, there would be no point in even bothering to struggle. You
just ask the have-you-ever and yet get it all, relevant, irrelevant, discourage
people from treatment or otherwise?
Mr. CANADY. Without
objection, the gentleman will have 2 additional minutes.
Mr. SCOTT. Ms.
Jamison has to leave, and I don't want to take the 2 additional minutes, so
others can have the opportunity to question.
Mr. CANADY. With
objection, the gentleman will not have 2 additional minutes.
Mr. Jenkins.
Mr. JENKINS. Ms.
Feldblum, I have been involved as a lawyer in cases and as a circuit judge in
cases that involve this subject matter, and in those cases in which I was a
lawyer I represented the physician. So I know firsthand about your concerns—I
think I do—about the concerns you expressed. But as I understand Mr. Bumgarner,
Ms. Spaulding, Mr. Ingram, as State regulators all they want is the information
that it takes to help the physician or the professional and to protect the
public.
Now you surely are
not advocating that we withhold that information from them in any fashion,
either by law or custom. Now they must treat it confidentially and
appropriately once they obtain that. But Mr. Ingram has to have information. It
is ridiculous to call upon him to do his job—or Miss Spaulding or Mr. Bumgarner
if they cannot obtain the information that they need. And it is a dual role
that they have. It is to help the physician, the professional; and it is to
protect the public.
Now you are not
coming here advocating that we withhold from or give them any inability to
collect that information, are you?
Ms. FELDBLUM. No,
I am not. I think this hearing is actually quite useful in demonstrating that
there is not perhaps that big a difference of opinion in terms of what we are
trying to achieve. It is absolutely important for the boards to get the
information they need to ensure that they are licensing—only qualified people.
As you said, you know, you see that license, you think, okay, that means this
person is qualified.
The problem, I
think, is getting an understanding of what in fact the ADA does allow them to
get, what type of information. And I think the best information comes from a
mix of subjective and objective questions.
Mr. JENKINS. Wherein
do you quarrel with what Mr. Ingram has asked?
Ms. FELDBLUM. Where
I quarrel, and perhaps there won't be a quarrel, is that if you, as Mr. Scott
said, react to the perceived problem by simply removing the application of the
ADA to the State licensing board's asking of questions, you open up for people
to ask the ''have-you-ever'' question which you are already hearing is not
necessarily necessary.
Mr. JENKINS. This
gets—excuse me. Go ahead, ma'am.
Ms. FELDBLUM. But
the question is, are they in fact getting the information they need? Which I
think should be the goal.
And I guess I have
to speak from my personal experience as a professor. When I fill out these
things for students when they are applying for the bar, they send me these
questionnaires; and now some of them still say, to your knowledge, has this
person ever had a mental disability? You know, have they ever sought treatment?
I always fill out, no. Right?
But I don't think
the boards are necessarily getting the information from me they need. For
example, I had a student recently whom I have questions about in terms of his
ability to be a moral lawyer. But when I get that question, I don't know that
he has a mental disability. But if they ask me more targeted questions, do you
have any reason to believe this person is not completely honest? Do you have
any reason to believe that person will not be able to fulfill his
responsibilities? You know, if they, because of the ADA, started creating
questions that are more targeted to this person's real ability, in this case to
be a lawyer, they are going to get more information from me.
And that is why I
say it is a mix of subjective and objective questions, all of which are allowed
under the ADA, that is the best—some subjective questions to the applicant but
a lot of objective questions to the people who know the applicant.
Mr. JENKINS. But
every lawsuit or every case that comes before their boards is like a
fingerprint, has its own distinct characteristics. They may need, in one case,
information that goes back 30, 40 years. They may need to ask broad questions
in other cases. And there has to be some discretion on their part to obtain
that information.
If they abuse that
discretion, then that is an entirely different question that we—somebody needs
to deal with. Hopefully, it would be dealt with at the State level.
Ms. FELDBLUM. If
I can say——
Mr. JENKINS. But
I don't see that they are asking anything that is inconsistent or they are
advocating anything that is inconsistent with what you—the thrust of your
testimony here, to protect these folks.
Ms. FELDBLUM. As
I said, it sort of depends on getting clarity of what, in fact, is being asked
for and advocated by the boards. I think if they are advocating to continue
working with the ADA to make sure that these boards are getting the information
they need to ensure that people are qualified, that makes sense to me.
But, in fact, I
think the ADA has been a useful tool by stopping boards from being lazy, not
intentionally so but sort of in a sense lazy by asking the ''have-you-ever''
questions ADA has which have had a perverse adverse effect on people and now
forced more targeted questions. And I personally would like to continue, after
this hearing, working with representatives from the boards to say, okay, can we
come up with these questions that will meet your needs but won't unnecessarily
hurt people with disabilities? That is why I don't see a conflict between the
two goals.
Mr. JENKINS. Are
you going to tell us which of these boards are lazy here this morning?
Ms. FELDBLUM. No,
no, no. But don't you think if you have always asked the ''have-you-ever''
question it is sort of easier to do that? They wouldn't have changed if the ADA
hadn't happened. I apologize for the lazy.
Mr. CANADY. The
gentleman's time has expired.
Mr. Conyers.
Mr. CONYERS. Thank
you, and good morning, Mr. Chairman and witnesses.
This is one of the
most important subcommittees in the Judiciary; and I think, for obvious
reasons, the Subcommittee on the Constitution is one of the most important
committees in the Congress; and I am very privileged to be working on it.
I probably should
make an appointment with the chairman of this committee, who I consider a
friend. We have offices in the same area in the building. And I am sure this is
a burning issue that has got to be resolved. There are millions waiting to find
out how everybody feels about a couple of decisions.
But I ask you, Mr.
Chairman, with all the friendliness that I can muster, when are we going to
have hearings on the problems of discrimination that may be violative of the
Constitution rather than finessing the decisions that come out of this area
that we may or may not like or there may be some controversy about?
In other words, I
am beginning to work on a paper which I will present to you, and not in a
committee setting, on the idea of a constitutional committee working on the
problems of discrimination that concern employment, housing, educational
opportunity, disabilities, and where we are in that larger frame of reference,
Chairman Canady.
What is the
problem—problems that are still facing people in the employment arena who,
because of race or gender, are not being hired or promoted? What are the
problems in housing about a rather large number of people, if the testers are
to be believed, that can't get housing in America after all of our legislation
because of their race? You don't have to go real far.
What about the
problems of admission to the educational opportunities in this country when
only yesterday we were notified by the Post that there has been an 80 percent
drop in African American university admissions to graduate school? When are we
going to talk about the problems of the disabled for whom the legislation was
passed and how are they faring under it?
Now you are the
chairman. I am not. I work under your command. It doesn't say——
Mr. CANADY. Not
quite.
Mr. CONYERS. It
doesn't say that we can't discuss the subject matter of the hearings and then
you decide. So it is in that spirit of comity that I come here today to say,
for God's sake, we have even got my most distinguished nonlawyer member of the
committee, my musical friend, Brother Bono, now introducing legislation to
overturn Federal court decisions. But what about the underlying problems rather
than, you know, do you like this one or how—I mean, that is not our job, making
these kind of court calls. Well, I guess it is now, since you deem it to be so.
And
it is interesting and, boy, I have got some hot ideas about this subject, but
sooner or later there is going to be noted by more persons than myself that we
are sort of missing some huge opportunities here.
Mr. CANADY. The
gentleman's time has expired. Would the gentleman like additional minutes?
Mr. CONYERS. No,
sir. That is why I wanted to make an appointment to meet with you to discuss
this matter.
Mr. CANADY. Well,
my office is right across the hall from your office; and I am sure we could
talk about it.
I understand that
the gentleman from Michigan is not happy with the current leadership of the
Judiciary Committee and the subcommittee. I think that your characterization of
what we have done is not fair. It is not accurate. But, you know, what you have
said today is what you say at most of our hearings.
Mr. CONYERS. Don't
mislead the witnesses, sir.
Mr. CANADY. Well,
I think the witnesses can judge for themselves.
Mr. CONYERS. By
the way, I did not mention the leadership of the Judiciary Committee.
Mr. CANADY. Well,
I will limit it to the subcommittee.
Mr. CONYERS. Thank
you.
Mr. SCOTT. Mr.
Chairman.
Mr. CANADY. Mr.
Scott.
Mr. SCOTT. Could
I ask Dr. Jamison one question before she leaves?
Mr. CANADY. Without
objection.
Mr. SCOTT. Thank
you, Mr. Chairman.
Dr. Jamison, there
are some people who are inappropriate for medical licensing. What kind of
questions can be asked to elicit the kind of information that would discover a
person that is inappropriate for licensing?
Ms. JAMISON. Well,
I think it is an interesting question. It was one of the questions of how wide
a fishing expedition you would take. I think if you ask the common-sense
question, what kind of doctor do you want practicing for your friends,
colleagues and yourself—I personally, for example, put a very high premium on a
really good education and really smart person.
Now I think you
could start asking a lot of questions like IQ; you know, I really believe that.
I think you could probably make a better case that dumb doctors do more damage
in terms of malpractice in this country than any combination of the mentally
ill and substance abusers ever could do. I think that is an issue that is not
addressed very broadly, the level of incompetence due to just not being
terribly bright and not terribly well educated. So I think you could send
yourselves on a whole series of expeditions.
If you are just
going to limit it, which I find sort of on general principles somewhat
objectionable, just to mental illness, the question I would have is, why is
bipolar illness, for example, singled out by the licensing board?
And perhaps I take
this a bit personally, but I also know, you know, just an awful lot of doctors
who are getting exactly in this difficulty of having manic depression or
bipolar illness and being reluctant to be honest about it for exactly this
reason, because they know the first thing off the bat now from the licensing
boards, the one legitimate question, the question that has been legitimized, in
mental illness is bipolar illness. It is not legal, but it has been
legitimized.
I think that it is
reasonable to ask the kinds of questions that are now asked. Do you have a
current illness that may interfere with your ability to practice? I think there
should be reasonable questions. And I think that—I think it is very much a
concert in progress, in the sense that there are no definite answers at the
moment. If there were definite answers, you wouldn't be having this committee
hearing.
I
think that what we need to do is really work very carefully, but I think that
the discrimination that goes on by the boards is very clear, and I think it has
a very clear effect on the practice of medicine and the public health. I don't
think, you know, people should not be allowed to ask reasonable questions. I
would be the last to say that.
Mr. CANADY. Thank
you, Dr. Jamison. I understand that you may need to leave now. If so——
Ms. JAMISON. OK.
Yes, I will. But thank you.
Mr. CANADY. You
are certainly welcome to stay.
Ms. JAMISON. I
can stay a couple more questions if people have more questions.
Mr. CANADY. Please
do stay. Mr. Scott indicated you need to do leave at 11:30, and I wanted to let
you know that would be all right if you needed to leave.
Mr. Inglis.
Mr. INGLIS. Mr.
Chairman, I would be happy to yield to you for a question.
Mr. CANADY. Thank
you.
Let
me ask you just how valuable it is to ask applicants subjective questions about
their current ability to perform?
Ms. JAMISON. I
think——
Mr. CANADY. That
strikes me as it is not a particularly fruitful means of finding out anything.
Obviously, they are applying—they have made a judgment as part of the
application that they are eligible. Otherwise, they wouldn't be applying. And I
think that asking that kind of question is really worse than meaningless.
Ms. JAMISON. In
a way, that wasn't——
Mr. CANADY. I
am sorry, Dr. Jamison, that wasn't addressed to you.
Let me ask
Professor Feldblum, and then I will be happy to have you comment on it.
Ms. JAMISON. I
have to leave, but I do have strong feelings on it.
Ms. FELDBLUM. Can
Dr. Jamison talk briefly? And then I would love to respond.
Mr. CANADY. Sure.
Ms. JAMISON. OK.
I think if you are asking sociopaths, for example, that question, which is a
major problem in the practice of medicine and law, of course they are going to
either lie or deny. I think that is the question. I think that there are ways
of asking questions certainly that—when I was asked the question, are my
privileges at Hopkins, I had no—it was perfectly clear to me I had to say that
I had manic depressive illness under those circumstances the way it was worded.
I felt comfortable with that. And some people would, some people wouldn't. I
felt very comfortable with that.
It is also backed
up from a further clause a few lines down that says, if you would lie about
this, you lose your privileges here; you are kicked off the staff. And I think
medical boards have that—you know, if the situation comes up——
Mr. CANADY. But
if it is a subjective determination and it is your judgment about whether you
are impaired or whatever the terminology is that is used, I don't know how you
can be held responsible for—I believe for later having had the wrong judgment.
I don't know how that is enforceable.
Ms. JAMISON. If
you don't get into any difficulty because of it, if it never comes up in terms
of your behavior or your practice, it is never your—your practice has never
been questioned by your colleagues, you have never been sued for malpractice or
any of those things, then where is the issue?
Ms. FELDBLUM. Actually,
let me just pick up from that.
Mr. CANADY. Let
me manage my time here——
Ms. FELDBLUM. Yes.
Mr. CANADY [continuing].
If you don't mind.
If it is not—if it
is never a problem, it is never a problem. I mean that is kind of—we all
understand that. But what we are trying to deal with is circumstances where
there may be a problem and where the regulatory board has a responsibility to
try to ward that off, to deal with it in advance. And I think that what we are
seeing here on the part of the medical boards is not an effort to shut people
out. No one wants to do that.
You know, I can
speak with more authority about the legal profession than the medical
profession; but I know that there are many lawyers who are manic depressive who
are very good lawyers. I have been involved in practice with them, and I have
seen that. But the important thing is to be able to work with the people to
identify the problem and work with people so that there is no threat to the
public safety and health. That is what we are struggling with, and I just
seriously question whether these subjective questions to the applicants about their
own assessment of their ability to perform are going to yield information that
will be valuable.
Now, with some
people, it would. But I think those are the very people—I think that might be a
minority of the universe of people we are dealing with.
So would you like
to comment on that, Professor Feldblum?
Ms. FELDBLUM. I
actually completely agree with you, that if, in fact, the only question that is
going to be asked is a purely subjective one, ''do you have a current
impairment that currently limits your ability?'' You know that is not going to
get you the information you want. I think that is why there really needs to be
a series of both subjective and objective questions.
I also think just
asking the question, ''have you ever had mental health counseling,'' the
empirical studies that have been done show that in terms of getting the
information you want , these questions don't help. So I think that what the ADA
is now forcing us to think about is how to get those questions phrased in a way
that does get the reliable information.
So, you should
keep that subjective question in for the minority that will, in fact, respond
to it. But then you also have to ask additional questions: Have you ever been
reprimanded? Have you ever been subject to misconduct charges? Have you been,
in medical stuff, carrying out your patient responsibilities responsibly? You
know, a whole series of other questions that the person has to answer. Then you
ask those same questions to the people who work with the applicant. Again, not
a general question but very specific ones. Then I think you will probably
identify the behaviors that warrant either denying that person the license or,
as you were saying, just doing the monitoring and oversight.
So I don't think
the answer is to go to the other extreme of one purely subjective question. No,
I think it is more complicated; but I think there is the capacity here to
figure out those questions.
Mr. CANADY. Mr.
Inglis' time has expired.
Mr. Hutchinson.
Mr. HUTCHINSON. Thank
you, Mr. Chairman.
Professor
Feldblum, let me come back to you in regard to the ADA. Is it your view and
interpretation of the ADA that you cannot ask the question, ''Have you ever
been treated for any form of mental illness?''
Ms. FELDBLUM. Yes.
That would be a violation of the ADA. That broad-based status question would be
a violation.
Mr. HUTCHINSON. Now,
having a problem with pedophilia, that is a mental illness, is it not?
Ms. FELDBLUM. It
is.
Mr. HUTCHINSON. So
you could not discover that in a question. Would you agree that——
Ms. FELDBLUM. Can
I interrupt? Because that is—actually, Congress made sure in 1990 that you
could. They have a list of 11 conditions that they made sure to pull out that,
even though they are a disabilities, they are not covered under the ADA. So you
could ask about pedophillia.
Mr. HUTCHINSON. Was
that in the original act or was that an amendment?
Ms. FELDBLUM. It
was an amendment originally offered by Senator Armstrong, and then it got
negotiated out between Senators Armstrong, Hatch and Kennedy.
Mr. HUTCHINSON. Well,
you indicated that you believe that the ADA should not have any changes in it.
Ms. FELDBLUM. Correct.
Mr. HUTCHINSON. Which
assumes that we did it right the first time?
Ms. FELDBLUM. I
don't agree with that provision, but I don't think it is necessary to charge
that for what the boards are coming here saying that the ADA needs to be
changed.
If you are asking
me whether I think there are things I would like to change in the ADA
generally, sure there are. You always get experience over 7 years. It is like
watching a kid grow up; and then it is like, oh, my God.
Mr. HUTCHINSON. The
act provides that an individual with a disability may not shield from
disclosure, behaviors that result from a disability that may make the person
unqualified for a particular position. In your view, is substance abuse a
behavior that cannot be shielded from disclosure under the ADA because that
would make that person unqualified for a particular position?
Ms. FELDBLUM. Yes.
First of all, if the question is phrased, ''are you currently using illegal
drugs,'' that is not even covered by the ADA. But if the question is phrased,
are you currently using alcohol? Or ''how much alcohol are you using?'' okay,
in order to get a sense of whether the person is going to be complying with the
rules, that is allowed.
In fact, the
Congress in 1990, also with regard to alcohol, specifically put in that
alcoholism is covered but people can be held to particular standards of
behavior in terms of alcohol use. So that would be fine.
Mr. HUTCHINSON. But
you are talking about current problems. You can ask about previous problems?
Ms. FELDBLUM. You
can't ask the most general question of ''have you ever had a problem with
alcohol abuse?''
Mr. HUTCHINSON. But
a more narrowly defined question like, '''during the last 5 years'' or ''during
the last 10 years?''
Ms. FELDBLUM. You
could say, during the last 5 years, how much alcohol do you consume on a
regular basis? I mean, that is one of those odd ones which is sort of right on
the line with the behavior almost coming into the status.
But I believe—and
actually, if you don't mind, I wouldn't mind getting back to you, in writing on
that question as well, just to make sure I am not saying something I don't want
to say.
But my sense from
the Department of Justice is they recognize that that is a situation where
actually the behavior comes into the status.
Mr. HUTCHINSON. I
would delighted to have that information.
Mr. Ingram, let me
go to you for a question. And I wish Dr. Jamison was here. She indicated that
she suffers from manic depression. If that was disclosed on an application for
a medical license, how would you handle that?
Mr. INGRAM. How
would I advise the board to handle it?
Mr. HUTCHINSON. Yes.
Mr. INGRAM. They
would inquire further as to whether that person is currently under treatment
and ensure that that person remains under treatment.
A good example in
point was a physician that was licensed and was practicing, doing what they
call locum tenens ER work; and the hospital called to the medical board one day
that the doctor was not treating ER patients coming to the clinic. When they
inquired, the physician was not taking the medication as prescribed. And the
board had to intervene; did not take his license but put him back and required
that he continue under the care of the physician so that the behavior was managed.
Mr. HUTCHINSON. If
it was disclosed, though, and that person would be licensed to practice——
Mr. INGRAM. Yes.
Mr. HUTCHINSON [continuing].
There would be a consideration as to the treatment in the future; that they
would be under treatment for the manic depression?
Mr. INGRAM. That
is correct.
Mr. HUTCHINSON. And
is that relevant to the practice of medicine?
Mr. INGRAM. It
is relevant to the protection of the public, which is relevant to the
protection of the patient.
Mr. HUTCHINSON. Do
you have any problem with that approach?
Ms. FELDBLUM. I
have a problem with an approach that requires anyone who is manic depressive to
say that they are manic depressive and use that as the hook for having the
board be monitoring. I don't have a problem with the board finding out that
someone hasn't been responding to patient responsibilities, and says to the
person that they want an explanation. The person might come back with the
explanation of manic depressiveness.
Mr. HUTCHINSON. How
can you find out whether they have been properly treated if you don't know to
start with that they have got a problem with manic depression?
Ms. FELDBLUM. Because
if they are asking the right questions——
Mr. HUTCHINSON. What
is the right question to get the information?
Ms. FELDBLUM. The
right question is, has this person followed through on patient
responsibilities? Has this person been reliable? Those questions should be
right in the original application. Yes, yes—I would ask—those—that is what I am
saying, when I get those bar applications, they are not getting from me the
information they need about my students.
Mr. CANADY. The
gentleman's time has expired.
Let me—I will now
recognize myself. Let me ask, what kind of accommodations are made under the
law currently in tests that are administered to physicians? Mr. Bumgarner or
Ms. Spaulding, do you want to comment on that?
Ms. SPAULDING. Well,
the majority of them right now, I believe, are related to the time element and
that people with attention deficit disorder have been asking for a longer
period of time than is normally given. That is the majority of the
accommodations that are being made.
Mr. CANADY. Mr.
Bumgarner, do you have any comments to add on that?
Mr. BUMGARNER. I
think that is correct, but there are——
Mr. CANADY. What
do you think about that policy and what problems might be inherent in changing
the standards for the test?
I mean, obviously,
reaction time for a physician in evaluating a problem is very important to
being able to adequately treat the patient. And if you are not testing—if the
time element is not incorporated in the test, I would question whether you are
actually properly evaluating the skill that is needed, at least for certain
types of practitioners.
For others types
of practitioners, that might be as relevant. It would depend on the area of
practice, I suppose; but for an emergency room doctor or in many other areas of
practice, it would seem to me to be absolutely essential to know that they are
going to be able to deal with things just like that.
So, Mr. Bumgarner.
Mr. BUMGARNER. Mr.
Chairman, I think you have put your finger on something that is not easily
understood by many people and that is the fact that it is not the problem with
the accommodation for the exam itself. You are bringing the person up to the
level where they may have the time. It is that transition from accommodation at
the examination level to translating it into practice, in the practice setting,
where there can potentially be a problem.
Once again, it is
an identification problem. Should we have that information? Should boards be
entitled to make a decision about it? How much of a role does the concept of
someone being a problem in the setting in which you raise play?
Those are questions
that boards are going to ultimately be held responsible for if something should
go wrong, but sometimes feel that the information cannot be communicated to
them under the current laws. Again, that is where it comes from.
Mr. CANADY. Ms.
Spaulding, do you have anything else to say on that?
Ms. SPAULDING. The
only thing I would like to add to that is that in every State in the United
States a physician is granted a license to practice medicine and surgery, and
there aren't specialty licenses that are given.
Mr. CANADY. I
understand.
Ms. SPAULDING. So
you can get that emergency room doc who had to have special accommodation.
Mr. CANADY. Mr.
Ingram, do you have anything to say about that?
Mr. INGRAM. Are
you talking about from the administration of the licensing examination?
Mr. CANADY. Well,
yes, in terms of the overall goals of the licensure process. Are we making—are
we ensuring that we are actually testing for what we need to test for if we
give people more time than other applicants have?
Mr. INGRAM. I
probably do not have the qualification to address the validity of the USMLE,
which is the test most—all the States are now using. I don't think I would be
qualified to answer that.
Mr. CANADY. I
don't want you to comment on something you don't want to comment on.
Ms. Feldblum, how
do you react on this issue? What do you say to the point?
Ms. FELDBLUM. Actually,
this is another issue, if they are reading the testimony, that I would look
forward to working with the boards to help ensure that the ADA doesn't unduly
affect what they need to get. The fact is, I believe the ADA, as currently set
up does, in fact, achieve the right balance.
And I will tell
you, Georgetown Law School I guess likes having an in-house ADA expert; so, of
course, I am on the committee at the Law School that deals with these issues
about more time for tests. And it is a complicated area, no doubt; but the ADA
requires modifications of policies and practices but only if they don't
fundamentally alter the nature of the position.
So there are ways
of ensuring that these accommodations, in fact, meet the needs of people with
disabilities that, in fact, need that accommodation but don't undermine what is
trying to be achieved by either these medical boards or the law schools giving
these examinations.
So the only thing
I disagreed in the testimony with was that there wasn't a way to work with the
ADA right now to ensure that these concerns are met. And I personally consider
that the challenge after this hearing, to at least give that a try before there
is sort of substantive changes in the law.
Mr. CANADY. Has
there been litigation on the testing accommodation? Has that been litigated?
Ms. FELDBLUM. Go
ahead. I don't really think much.
Mr. BUMGARNER. Mr.
Chairman, I don't believe it has; but I would like to double-check that with
the people at the National Board of Medical Examiners, if you wouldn't mind,
just to make sure; and we will let you know if they do.
Mr. CANADY. I
am interested in that, because I think that is an important aspect of this
issue as well.
Well, my time has
expired, and I think the time for questioning of this panel has expired. We
have a vote, so we are going to have to recess.
But I want to
thank each of you; and I will belatedly thank again, Dr. Jamison, for being
here. I think your testimony has been very helpful.
These are
difficult issues. There is no question about that. And I believe that there is
a balancing process that needs to be employed in this realm, and your comments
and the experience you have is very valuable to us. Thank you.
The subcommittee
will stand in recess. We will reconvene after the vote, which is now taking
place on the floor.
The subcommittee
will reconvene at 12:30, so you have a little time to get some lunch.
[Whereupon, at
11:50 a.m., the subcommittee recessed, to reconvene at 12:30 p.m. the same
day.]
Mr. CANADY. If
I can just have your attention. Unfortunately, there are additional votes
taking place now, so the subcommittee will not proceed at this point. We will,
however, proceed as soon as the series of votes underway now concludes.
Hopefully, that will be in about 30 minutes or so. I apologize, but it is
beyond my control.
[Recess from 12:40
to 1:15 p.m.]
Mr. CANADY. The
subcommittee will at long last reconvene. I would like to ask the members of
our second panel to come forward.
Our second panel
concerns judicial nominating commissions in Florida. We will first hear from
Mr. D. Culver Smith, III. Mr. Smith is an attorney with the Florida firm of Holland
& Knight; is the former chairman of the Judicial Nominating Commission for
the 15th Judicial Circuit of Florida, of which the Florida litigation
concerning the ADA arose.
The last witness
we will hear from today is Judge Richard S. Brown. Judge Brown sits on the
Court of Appeals of Wisconsin and serves as chairperson of the American Bar
Association Commission on Physical and Mental Disability.
I want to thank
both of you for being with us here today. Without objection, your full written
statements will be made a part of the permanent record. I would ask that you do
your best to summarize your testimony in 5 minutes, although, as you have
noticed, we do not strictly enforce the 5-minute rule, particularly against
witnesses who have been so patient in waiting for us.
Mr. CANADY. So
with that, I would like to recognize Mr. Smith.
STATEMENTS OF D. CULVER SMITH, III,
ATTORNEY AND FORMER CHAIRMAN, JUDICIAL NOMINATING COMMISSION, 15TH JUDICIAL
CIRCUIT OF FLORIDA
Mr. SMITH. Thank
you, Mr. Chairman, Mr. Scott. It is a privilege to be here. As the Chairman
indicated, I think I owe my invitation of being here to the fact that I
happened to serve as chairman of that Judicial Nominating Commission when it
was sued for alleged violations of the ADA arising out of certain questions
that appeared on the uniform application used statewide by Florida's judicial
nominating commissions, at least those at the circuit court level.
I clearly do not
claim to be an expert in the ADA, and indeed I am not, and I have come here
with no particular agenda or cause other than a concern as a practicing lawyer,
a litigator, a card-carrying Type A personality—but I haven't yet been
diagnosed as manic-depressive, although I am probably close—but a concern that
people be put on the bench who are, by integrity and intellect and experience
and mental and emotional stability, if that is the right term, the most
qualified people for that position.
Judicial selection
and appointment is obviously more than even so important an exercise as a
licensing exercise, where a lot of this litigation has occurred before we
managed to become involved in litigation. It involves a selection of men and
women, obviously, who will wield and do wield extraordinary power in ways that
have lasting effects on the lives of people and businesses. And selecting those
people and identifying those who are the most qualified is already a dicey
proposition, and it depends in great part on either personal knowledge, if you
have—just like I, as a practicing lawyer, might happen to really know an
applicant so very well by reputation or by experience in the courtroom with
that lawyer, or otherwise by intuition, or just—or anecdote. These are
not—while they are trustworthy to a point, the more information we can actually
get, the more real information about people who wish to be judges, the better.
People who wish to
be judges are asking to become public servants, and, in my view, although I am
a person that prides myself on sensitivity to equal chances for people and
differences among people and explanations for behavior and that sort of thing, I
have had to deal with a lot of that in my own family life, I think a person who
wants to be a judge should make his or her life pretty much an open book.
Indeed, our records
as judicial nominating commissions are public. The only thing that is not
public about them in Florida is the actual deliberations of the commissions
themselves when they seek to discuss and vote on who they are going to nominate
to the Governor for appointment. And there are some thinking that those ought
to be public as well, because the more public they are, the more confidence the
public has in those deliberations.
But a person who
wishes to become a judge needs to be able to lay his or her life out and be
prepared to point out the good and defend any part of it.
Now, I think a
problem that we face with these questions is, of course, we are not—we are not
experts in knowing—that is, we, the people who put these questions together,
which is done on a statewide basis, as I indicated, in Florida, are not
necessarily the experts in knowing what information to ask if we have to ask
less than broad-based questions. And I think a good argument can be made that
we should get that expert help in identifying the kinds of questions we need to
ask to determine who would be good judges and who wouldn't.
The danger,
though, is one of—to me, is one of exclusion. The less inclusive you get,
obviously, the more is excluded, and you don't know what—you don't know
particularly what you are missing. And if, as Judge Hurley recognized in our
case, we fall within—judicial selection falls within this necessity exception,
then, I mean, so long as there is a necessity, I don't know that you are really
accomplishing fulfilling that necessity by then restricting it in any kind of
arbitrary way.
The law has its
limits, generally; there is no doubt about it. But it seems to me that one of
the things we get away from in the law, in this century in particular, is the
ability or the—the ability to apply concepts to circumstances using reasonable
judgment and trusting people to do it as circumstances dictate.
So I would suggest
that at the very least, this necessity exception be made a clearer tenet of
this law, or perhaps the judicial selection process be excluded from ADA
altogether, and that the judicial nominating process, the folks involved in it,
be trusted somewhat to use reason and good judgment.
Thank you.
Mr. CANADY. Thank
you, Mr. Smith.
[The prepared
statement of Mr. Smith follows:]
PREPARED STATEMENT OF D. CULVER SMITH III,
ATTORNEY AND FORMER CHAIRMAN, JUDICIAL NOMINATING COMMISSION, 15TH JUDICIAL
CIRCUIT OF FLORIDA
A. Introduction
Pursuant to
invitation of the Committee, I have the privilege of submitting these remarks
to the Subcommittee prior to appearing at the Subcommittee's hearing on ''The
Application of the Americans With Disabilities Act to Medical Licensure and
Judicial Officers'' scheduled for May 22, 1997. I understand that I owe the
invitation to my having served as chairman of the Fifteenth Circuit Judicial
Nominating Commission of Florida when it was sued for inquiring into the past
and present physical and mental condition and treatment of applicants for
judgeships.
B.
Background
With rare
exception, vacancies on the state courts of Florida are filled through a
formal, merit-selection process rather than by popular election.(see
footnote 1)When a vacancy on the bench occurs, the Governor initiates a
process in which a judicial nominating commission publicizes the vacancy,
solicits applications from qualified persons, and nominates no fewer than three
candidates for appointment. The commission is charged by statewide rule with
nominating only ''the most qualified'' persons for the position. The Governor
is required to appoint one of those nominees to fill the vacancy.
In the fall of
1995, the Fifteenth Circuit Judicial Nominating Commission of Florida
advertised and solicited applications for a vacancy on the Circuit Court of
that circuit. The Commission required each applicant to complete an application
form that contained the following questions:(see
footnote 2)
10. What is the present state
of your health?
11. Do you have an impairment
of eyesight, hearing, or other debilitating handicap or disease? If so, please
describe.
12. Have you had any hospital
confinement, or serious physical illness during the past five years? If yes,
give details and identify your attending physician(s),the name(s) of any
hospital(s) or other institution(s) to which you were admitted if any and the
date(s)of hospitalization(s).
13(a). Have you ever been
treated for or suffered from any form of mental illness? If so, give details
including names and addresses of treating physicians, psychologists, and/or
hospitals, or other facilities involved including dates of treatment or
confinement.
13(b). Have you ever been
treated for or suffered from any form of emotional disorder or disturbance or
otherwise been treated by psychologists, psychiatrists or other mental health
care professionals, in the last five years? If so, give details including names
and addresses of those persons in institutions consulted or providing treatment
including dates of treatment.
13(c). Have you ever been
addicted to or dependent upon alcoholic beverages or any other drug? If so,
give dates of use or dependency and describe treatment, if any, giving names of
physicians and other persons furnishing treatment.
Each applicant also was required to
execute an authorization for release of medical information.
An applicant,
identifying himself or herself as ''Pat Doe,'' sued the Commission in federal
district court, alleging that requiring responses to the foregoing questions
violated the Americans With Disabilities Act (''ADA''). Following a hearing,
the court issued a temporary injunction, prohibiting the Commission from
requiring applicants to respond to those questions and from using any
information obtained in response to those questions.(see
footnote 3) In arriving at its decision, the court reached the following
legal conclusions:
1. The Commission
is a ''public entity'' within the meaning of the ADA and is subject to its
provisions.
2. The
judicial-selection process falls within the ''necessity exception'' that
permits a public agency to use eligibility criteria that screen out or tend to
screen out individuals with disabilities, if the criteria are necessary to the
activity in question. Thus the Commission is authorized to use ''reasonable,
narrowly-drawn eligibility criteria which screen out, or tend to screen out,
individuals with a disability.''
3. The Commission
need not limit its inquiry to behavior, rather may inquire into an applicant's
status, i.e., diagnosis or treatment for severe mental illness.
4. Questions 10–13
on the application form utilized by the Commission are overinclusive, because
they ''force the disclosure of intimate, personal matters that have nothing to
do with job performance.'' As such, the questions are not necessary to protect
the public and, therefore, exceed what is justified by the ''necessity
exception.''
In the face of the
injunction, the Commission proceeded by blacking out Questions 10–13 and the
answers to them on all applications received. Consequently,
the applicants were considered and nominations made without any information
about the past or present mental or physical condition of the applicants except
as was voluntarily offered by an applicant or was otherwise gleaned from
personal interviews.
''Pat Doe's''
lawsuit has since been settled, subject to court approval, through the crafting
of a new set of questions, which were formulated with input from several
sources, including experts in the field, and which were approved earlier this
year at the annual convention of representatives of the state's judicial
nominating commissions.(see
footnote 4) The questions focus on specific behaviors and diagnoses
deemed relevant to one's capability to perform judicial functions.
C. Comment
Judges wield
extraordinary power. Once appointed, Florida's judges typically remain on the
bench until retirement. Rarely is a sitting judge voted out by the electorate.
Rarer still is the removal of a judge from office through disciplinary or
impeachment proceedings.
A sitting judge
each and every day affects the lives, liberty, families, and fortunes of the
litigants who come into court. The effect is lasting and knows no end. The list
of personal characteristics and attributes of a good judge is longer than for
any other public or private position in our society. Selecting merely
''qualified'' persons to become judges disserves the public. Only the ''most
qualified'' should be chosen. That objective is indispensable to two crucial,
overarching goals: (1) dispensation of justice and (2) public confidence in the
judicial system.
Identifying the
most qualified persons for judicial service requires more than superficial
inquiry, intuitive reaction, and anecdotal evidence. Empirical data regarding a
person's characteristics and attributes relevant to judicial service—difficult
to accumulate in any event—is crucial. Otherwise, the process risks becoming
one of self-selection. Some inquiry into an applicant's physical, mental, and
emotional state—past and present—is essential to ensure the appointment of only
the most qualified persons to the bench.
The application of
the ''necessity exception'' to the judicial-selection process recognizes the
necessity of such inquiry. The process need not ignore the danger of stigma and
stereotypes that the ADA is designed to eliminate. Likewise, however, the
process should not exclude inquiry into areas that are reasonably calculated to
produce relevant information. The extent of permissible inquiry should be
determined in great part by logic and common sense. The paramount goal of
merit-based judicial selection is to preclude injustice, whether it be
dispensed discriminately or indiscriminately.
Thank you for the
privilege of appearing before the Subcommittee.
Respectfully submitted,
|
D. Culver Smith III. |
INSERT OFFSET RING FOLIOS 101 TO 108 HERE
Mr. CANADY. Judge
Brown.
STATEMENT OF RICHARD S. BROWN, JUDGE,
WISCONSIN STATE COURT OF APPEALS
Mr. BROWN. Thank
you. My name is Richard Brown. I am a Court of Appeals judge.
Mr. CANADY. If
you could pull the mike up.
Mr. BROWN. I
am a Court of Appeals judge in Wisconsin, and I appreciate the opportunity to
be here.
As Congressman
Canady has informed all of us here, I am the Chair of the Commission on Mental
and Physical Disability Law for the ABA. However, I am here in my own
individual capacity today.
I also teach at
the National Judicial College in Reno, Nevada. I teach disability law and the
ADA. In addition, I have taught at over 45 seminars across the United States,
both on the ADA and disability law, to lawyers, judges and court managers.
At the outset, as
a judge, I have to say that it is very difficult to address a subject without
having the statute in front of me. As you all know, judges like to look at the
statute and then interpret it. But I don't have the language. All I have got
here is the application of the Americans with Disabilities Act to medical
licensure and judicial officers.
So what I am going
to do first is I am going to address it in the broad context.
Mr. CANADY. Judge,
you do have access to a law library, I would assume.
Mr. BROWN. OK.
Yes, you are right, I do.
Mr. CANADY. I
hope.
Mr. BROWN. I
will get my law clerk right on it.
But I want to
address it in a broad context first.
I was elected in
1978, and I have been reelected without opposition since 1982. I have been on
the bench almost 19 years, and the fact that I am deaf, I am totally deaf, has
had nothing to do with my job. Nobody has ever made it an issue.
I know that
lawyers talk about judges, and judges have reputations. I have a reputation by
some as being too liberal. I have a reputation by others as being too
conservative. I am known as an intellectual, but some would say that I am an
intellectual vanilla. That is all fine. I can take that criticism. But nobody
has ever criticized me for being deaf. Our court is known as a hot court. We
have a lot of oral arguments, and during those oral arguments, nobody has
criticized me for being deaf.
But when I travel
out of State, I have talked to some judges and some lawyers, and they say, how
can you possibly do your job if you are deaf? How can you do that? It is almost
like I am in Ripley's Believe It or Not.
I tell them about
this new technology. I tell them about my cochlear implant. I tell them about
all of this, and they still go away with amazement, shaking their heads. How
can a judge be a judge if that person is deaf? In Wisconsin, I am not asked
that, but in other places I am.
Now, if you take
that person and you put him on the judicial commission, not somebody like Mr.
Smith, but some other person who is biased from the start against me because I
am deaf—and believe me it has happened. There is an Arizona State law professor
who was top of her class, editor of her law review, and she aspired to be a
judge for a long time and has been told by a judicial commissioner that he will
never vote for a person who is deaf. The ADA now covers her.
And if we are
talking about the broad exercise of the ADA on the judicial selection the
process, I see a problem, not for me because I am all set—I am in Wisconsin. I
am an elected judge—but for the people behind me, 20 years behind me, who are
coming out of college who aspire to be a judge, I don't want a judicial
commissioner to be able to nix that person because that person is deaf, or
because that person is blind, or because that person uses a wheelchair, or
because that person had a mental disability at one time.
Now, if you are
going to talk about not this broad exercise, but you are talking about a narrow
exercise where you just want to talk about questions relating to mental
disability and chemical abuse, that is another question, but then again, it is
a serious question.
How about the
person—and I know a person—who has bipolar? OK? And that was 15 years ago. And
the person could not function for 2 years, 15 years ago. But that was 15 years
ago.
Now, for 15 years,
that person has been a stellar lawyer, a scholarly lawyer, a lawyer who is well
thought of in the bar, well respected in the bar. But nobody thinks about this
person being bipolar, basically because nobody knows. Are we going to say that
that person should have to put down on a form that 15 years ago he was treated
for bipolar disorder instead of what is happening now? How has his behavior
been the past 15 years? Has he been a good lawyer? Is he an excellent scholar?
Does he know the law?
Or how about the
person who suffered from depression 12 years ago? It is the same question.
You see, judicial
commissions aren't like this medical thing that you talked about earlier.
Judicial commissions are made up of lawyers who can go to other lawyers in the
community. They can ask the other lawyers in the community, how is this person
acting? Does this person act out?
Obviously, if a
lawyer is going in the court and acting out, a lawyer has been admitted for
chemical abuse or substance abuse, those lawyers in the community know it. You
don't have to have a question on there saying, have you ever been treated for
this? Have you ever been treated for that? Those lawyers in the local community
are going to know it. And that is why the judicial commissioners have much more
knowledge than they would if they were some kind of a machine or some kind of
medical examiner looking at a doctor for the first time.
There are three
things in the—there are three things in the ADA, present medical disability or
mental disability, and then there is a recording of past mental—of physical
disability, and then there is this perception of medical or mental disability.
And I submit to you that really the only one that is really important is the
first one: Does this person have a present physical or mental disability?
If you get to a
recorded history of the past, what does that prove? If you get to a question of
perception, what does that prove, other than the fact that the same person who
says, how can you be deaf—how can you be a judge if you are deaf, can say, hey,
this person had a problem, he was bipolar 15 years ago, and there is a slippery
slope here. And if this person doesn't take his medication, then, God forbid, he
is going to be on the bench, and he is going to be acting out, and he is not
going to be able to function.
I think that is
the wrong question to ask, and I really think that justice—justice preserved
will preserve, and that is what we want to do. But justice destroyed is going
to destroy. And I ask that you not destroy this portion of the ADA.
Mr. CANADY. Thank
you, Judge.
[The prepared
statement of Judge Brown follows:]
PREPARED STATEMENT OF RICHARD S. BROWN,
JUDGE, WISCONSIN COURT OF APPEALS
I would like to
extend my sincere thanks and appreciation to the Subcommittee for the
opportunity to speak about the essential role the American with Disabilities
Act can play in ensuring that only qualified and fit lawyers serve as state and
local judges. Enacting any exception from the provisions of the Americans with
Disabilities Act for judicial evaluating and nominating commissions would cause
harm to not only individuals in the legal profession, but most importantly and
most certainly to the American public. Total exemption of judges from the
protections of the ADA would create startling inequities amongst people with
disabilities in courtrooms across American, the very place where equity is
sought.
I am proud and
honored to serve the state of Wisconsin as a judge on the Court of Appeals. I
am also proud of my current role with the American Bar Association as Chair of
the Commission on Mental and Physical Disability Law, although I wish to
clarify that I am here today testifying only in my individual capacity.
I am a person with
a physical disability, a hearing impairment that necessitates at times the use
of relay services or real-time court transcription in order for me to fulfill
my judicial responsibilities. I obviously have not always been a judge, but it
may not be obvious that I have not always had a hearing disability. Like a large
number of Americans, my disability developed when I was an adult, and along
with it, my appreciation for the barriers that must be negotiated in order to
pursue one's goals. Not the least of these is the impression that somehow
having a disability makes me, and others similarly situated, less capable, less
intelligent, and less perceptive. The ADA has made it possible for thousands of
Americans to take advantage of opportunities that were previously denied based
on inaccurate assumptions of lack of capability.
Before enactment
of the ADA, it was commonplace for an individual to be asked such open-ended
questions as ''Do you have any impairment of eyesight,
hearing, or other debilitating handicap or disease,'' ''Have you ever been
treated for or suffered from any form of mental illness,'' and ''Have you ever sought
counseling or treatment from a psychologist or psychiatrist?'' Such previously
acceptable questions were long on humiliation and short on purpose and insight.
On the surface
such questions may seem necessary to determine whether a person possesses the
good physical and mental health necessary for various employment or licensure
positions.
However, take a
moment to think of the relevance that previous counseling for depression, many
years passed, may have on current fitness. What relationship
does a woman's counseling for a miscarriage have on her present abilities? How
does knowing that a man was treated for cancer help determine whether he can
intellectually evaluate opinions or meet deadlines? Can you tell whether a
person can analyze different views or articulate decisions based on whether he
or she is taking aspirin as part of a heart maintenance regiment, or an
anti-depressant as part of a mental health treatment?
The ADA protects
us from these over-broad inquiries in preliminary employment inquiries, and in
various stages of licensure procedures, because such questions do not bring to
light the kind of information necessary to determine whether a person has
attributes and behaviors that are consistent with an ability to serve.
It has only been
recently that the ADA has started to make a noticeable impact on the legal
profession. It was commonplace for a law school graduate who applied for
admission to a state bar to be asked open ended questions about general
physical and mental health and history.
Substantial
progress has been made in jurisdictions throughout the United States to balance
the privacy rights of bar applicants with the legitimate responsibilities of
bar examiners to make character and fitness determinations for bar admission.
Many states have revised their bar application inquiries to focus on behavior as
opposed to the mere existence of a physical or mental health condition.
Now,
it is commonplace for judicial candidates to be subject to the very same type
of open-ended, overly-broad and irrelevant questions previously submitted to
individuals seeking licensure as lawyers. However, courts and state nominating
commissions are taking a hard look at these practices and finding that they too
violate the law. In the United States District Court for the Southern District
of Florida, the home state of this Subcommittee's chair, Representative Canady,
broad scoped inquiries into a person's mental health on a judicial nomination
application was struck down in Doe v. Judicial
Nominating Commission, 906 F. Supp. 1534 (S.D. Fla. 1995). The Doe court
specifically found that such a question ''vividly demonstrates the
overinclusiveness'' of the investigation, serving only to ''force the
disclosure of intimate, personal matters that have nothing to do with job
performance.'' Doe, 906 F. Supp. at 1544.
In the aftermath
of Doe, the parties engaged in a laudable process of revising
questions to meet the needs of the judicial candidates and those of the
nominating commission. The efforts by the plaintiff's attorneys, the American
Civil Liberties Union and the Florida Attorney General representing the 15th
Circuit Judicial Nominating Commission resulted in the Florida Judicial
Nominating Commission approving questions more narrowly drawn. The United
States Department of Justice reviewed these questions under its role to provide
technical assistance in such efforts and determined that the questions did not
violate the American with Disabilities Act. Mike Easely, chair of the rules
convention at the 20th Institute for Judicial Nominating Commissions, was
quoted in The Florida Bar News(Feb.15, 1997, vol. 24, No. 4) as
saying that
We feel that the questions
represented by this settlement are questions that would certainly suffice in
allowing us to make appropriate inquiry into the applicant's health.
Assistant Attorney
General Michael B. Cohen of Florida confidently stated that the mediated
questions
will uphold the integrity of
the judicial selection process, which is the most important issue before us,
while at the same time coming within the provision of the Americans with
Disabilities Act.
Other
jurisdictions, including the Judicial Nominating Commission of the Arizona
Supreme Court, and the Chicago Bar Association have voluntarily revised their
questions asked of judicial candidates, and have gained wide spread support for
protecting the integrity of the judicial evaluation and nominating process and
the interests of judicial candidates.
Yet, this is the
process and the results that will be abrogated should legislation be enacted to
exempt judicial nominating processes from the Americans with Disabilities Act.
In a spin on an age-old question, if those involved have it fixed, why break
it? What is thought to be deficient with current efforts to bring the judicial
nominating process into the protective fold of the ADA? What individual or
group is urging the enactment of legislation that would promote discrimination
against persons with disabilities seeking judicial opportunities, and in the
process breeches the public well being?
The public's trust
in the judiciary is justified when a judicial evaluating process ensures that
only the most well qualified and fit individuals will hear legal issues and
make legal decisions. However, eliminating the purview of the ADA from the
process that effectively licenses judges, severely compromises not only the
public trust, but the integrity of the legal profession.
First, potential
judicial applicants will not want to be subject to a process that
embarrassingly scrutinizes a mental or physical condition that has no bearing
on current fitness, or any reasonable relationship to providing a reasonable
accommodation under the ADA. Without protection from the ADA, lawyers who
aspire to become judges will be reticent to seek needed diagnosis, treatment,
or counseling for mental and physical disabilities for fear that they will be
subject to wanton disclosures during the judicial evaluating process. Rather
than creating an environment conducive to seeking needed medical, psychiatric,
or psychological treatment, exempting the judicial evaluating process from the
provisions of the ADA will cause lawyers to hide diagnosis or treatment of
physical or mental disabilities in order to escape the humiliating and needless
disclosure of personal matters. Worse yet, exemptions may cause individuals to
simply not seek out necessary medical or other professional intervention. Far
from ensuring that only fit judges will be serving their legal interests,
exemptions will cause the public to speculate about the physical and mental
well being of judges.
Second, many
lawyers with disabilities were deterred from seeking judicial appointment
previous to the enactment of the ADA. Without protection from common misconceptions
and even accepted slanders, it was unusual to see persons with disabilities
submit their names for judicial vacancies. The aspiration to become a judge was
made too difficult by the stereotype that an inability to see, hear, or walk
would be interpreted to mean an inability to articulate, analyze or be
decisive. Without persons with disabilities on the bench, the public suffers as
it does when any group is not adequately represented in employment and
decision-making positions. The insight, ability, and common sense knowledge and
experience that is made possible by a judiciary inclusive of persons with
disabilities is lost when those individuals are discouraged from fulfilling
life long aspirations. It may be argued that there is no going back and persons
with physical disabilities will continue unabated in their desire to become
judges, especially if reasonable accommodations to fulfill judicial functions
are made. The same, however, cannot be said of persons with mental
disabilities, who are still shunned and subject to an enormous amount of
degradation, stigma, and misunderstanding by the public at large. Once a
diagnosis or period of counseling must be disclosed that has little or no
bearing on present ability to serve, the proverbial bell has been rung, and
there is likely to be much less tolerance and acceptance of that person in a
judicial function.
Originally, the
Congress exempted itself from many of the ADA's requirements, but in 1995
legislation was passed to include Congress in the statute's coverage. Now, this
House Subcommittee is debating the efficacy of stripping the purview of the ADA
by exempting medical licensure and judicial evaluation processes from the
mandates of the ADA. Currently, small business owners wonder with not a small
amount of anger and frustration why they must provide reasonable accommodation
to employees with mental disabilities. Imagine the outcry of not only small
business owners, but others in positions of providing employment or bestowing
licenses why they are not similarly exempt from the ADA. Soon, every special
interest group will be calling its representative for a special favor of
legislative exemption. Who will suffer from being subject to overly- broad
questions that may violate privacy rights? Obviously, a person with a
disability who in any given profession or field, like judicial candidates or
doctors now proposed, will be discouraged from seeking positions, or will be
hindered from seeking needed diagnosis, treatment, or counseling of mental or
physical disabilities. However, the public itself is harmed when highly
qualified and capable individuals do not seek appointments, licensure or
employment; when otherwise well intended people do not disclose disabilities
during an evaluation process; or, when individuals simply do not seek needed
professional assistance for fear of future reprisal. Once so many exemptions
are passed into the law, the tail will be wagging one sorry, weak-kneed dog.
The parties in the Doe case,
including the Florida Judicial Nominating Commission, and those individuals
associated with the Judicial Nominating Commissions of the Arizona Supreme
Court and the Chicago Bar Association have demonstrated with their efforts that
the integrity of the judicial evaluating process can be maintained along side
the interest of judicial candidates.
These entities
have been able to satisfactorily devise narrowly tailored questions that
reasonably generate information relevant to an individual's current performance
as a judge. The inquiries have a relationship to the defining characteristics
of a judge, including history of trustworthiness, integrity, record of
compliance with deadlines, and other aspects of the individual's background
affecting fairness, neutrality, and decision making.
Research in the
health field and clinical experience demonstrate that neither diagnosis nor the
fact of having undergone treatment support any inferences about a person's
ability to carry out professional responsibilities or to act with integrity,
competence, or honor. Nor does any evidence indicate that health professionals
can predict inappropriate or irresponsible behavior on the basis of a person's
health history.
Moreover, the
finding in Doe emphasized that there is ''no evidence of
correlation between obtaining mental counseling and employment dysfunction.'' Doe,906
F. Supp. at 1544. Inquiries are improper where they ''force the disclosure of
information which is not necessary to protect the public safety and
. . . where they have no reasonable relationship to job performance,
but imposes a burden on individuals with disabilities by requiring them to make
public disclosure of irrelevant present, past and perceived disabilities.'' Id. at
1544.
What the evidence
does show is that past behavior, as distinct from a past history of treatment
or counseling, is the best indicator of a candidate's present ability to
function and work. Questions of a ''behavioral'' or ''characterological''
nature are distinct from broad mental health inquiries, because they elicit
information about a person's character from evidence of past behavior, e.g.,
work history, military service, academic achievement, school or vocational
training, disciplinary proceedings in previous school or employment venues.
Past behavior in this context, then, is a legitimate subject of inquiry by
judicial nominating or evaluating entities precisely, because it focuses on
relevant factors that may be associated with the disability,
rather than assuming that a person's status as a person with a
disability will forecast future behavior. Aberrant or
inconsistent past behavior may have a connection to contemporaneous mental
health diagnosis, treatment or counseling, to a physical disability, or to
factors completely unrelated to disability.
Behavioral
approach questions that are by their nature narrowly tailored actually provide
better insights and more information into a person's current qualifications and
ability to serve. Such inquiries provide specific information in such areas as
whether a person has been placed under a guardianship or conservatorship;
whether a person has suffered an employment reprimand, demotion or termination;
or whether current or former co-workers, subordinates, supervisors, customers
or clients have ever filed a formal complaint or accusation of misconduct.
These questions, which do not violate the American with Disabilities Act,
ensure persons with disabilities that they will not be singled out for unfair
or discriminatory treatment, and provide evaluating commissions or committees
the needed information to ensure the public safety and trust.
Any proposed
exemptions to the judicial evaluation process from the protective statutes of
the ADA will be detrimental to encouraging persons with disabilities in the
legal profession from pursuing the personal aspiration and professional
challenge of a judicial appointment. For the good of the legal profession, and
the benefit of the public at large, the provisions of the ADA that cover the
judicial evaluation process should remain intact.
Mr. CANADY. Mr.
Scott.
Mr. SCOTT. Thank
you, Mr. Chairman.
Mr. Smith, what
conditions can you—what conditions may you discover through the questionnaire
that would make it inappropriate for a person to serve as a judge?
Mr. SMITH. Well,
I interpret that as to aspects, one, conditions and what can the questionnaire
be designed to discover. But thinking about the conditions themselves, if that
is the focus, I am not a psychologist, but schizophrenia; perhaps some sort of
gambling addiction; alcoholism, if it is a problem in the person's actual
conduct; the——
Mr. SCOTT. So
the conditions you are looking at are behavioral qualifications and not status
qualifications? The fact that you had an alcohol problem 20 years ago but do
not have an alcohol problem now, would that be relevant?
Mr. SMITH. Well,
the fact that you do not have an alcoholic problem now would be relevant.
Mr. SCOTT. It
would be——
Mr. SMITH. The
fact that you had it 20 years ago and there has been no—you know, you have been
dry or whatever for 20 years or under control for 20 years, I wouldn't think
that having been an alcoholic 20 years ago would be a problem. But the problem
is, it is hard to—I am sorry.
Mr. SCOTT. If
you sought psychological counseling 20 years ago, that would not be a
disqualification or anything that you would feel compelled to put into the
public record today for someone seeking to be a judge?
Mr. SMITH. It
depends. See, if it——
Mr. SCOTT. One
of the factors that we—I will cut you off here and then let you respond to all
of it.
Mr. SMITH. That
is OK.
Mr. SCOTT. I
am sorry.
One of the factors
that has been suggested is when you have this kind of ''have you ever
question,'' and people are discouraged from seeking mental health services,
what good are we doing asking such a question 20 years from now compared to the
damage we are doing to society by leaving the irrelevancies out?
Mr. SMITH. Well,
your question sort of preordains the answer. I mean, the way you phrase it, we
are not doing any good. But this is all a balancing issue. It may be—see, the
way I suggest this needs to be looked at, respectfully, is that the selection
of judges is of such an overriding widespread public importance that it
outweighs some of the risks that the ADA is designed to prevent.
Now, in other
arenas, that overriding importance may not be as great. The risks may be of
more importance.
Mr. SCOTT. Did
I understand you to say you are balancing—there is a balance, that there are
questions that are disability-oriented which are inappropriate to be
considered? That is to say, you receive psychological counseling 20 years from
now—20 years ago. As I understand it, these records are public?
Mr. SMITH. Yes,
sir, they are.
Mr. SCOTT. You
wouldn't want a situation where those kinds of records would have to become
public if you ever wanted to be a judge?
Mr. SMITH. Well,
I mean, I live my life practicing law and as an officer of the court, and I
can't help but think that the paramount importance to the public is knowing
everything there is to know about somebody who wants to be a judge.
Now, obviously
there are some things that they could come up with that are crazy in terms of
personal life-style, but I am talking about——
Mr. SCOTT. If
you sought psychological counseling because of a death in your family 20 years
ago, should that be a matter—should your psychological background in that
instance have to be a matter of public record in order for you to be considered
as a judge?
Mr. SMITH. You
say should it be?
Mr. SCOTT. Should
it be?
Mr. SMITH. I
believe that should be fair game because if—see, you never know. If the reason
for that family counseling over the death of a family member 20 years ago was
because that family member died as a result of a certain—maybe as a result of
medical malpractice, as a result of a certain incident, what effect does that
have on this person's view of that particular fact situation now? That is
very—that kind of thing is very important.
Mr. SCOTT. See,
part of the problem is that we have—the reason we have an Americans with
Disabilities Act to begin with is that, as Judge Brown has suggested, there is
prejudice against people with disabilities. Some of the disabilities are not
readily apparent, and by having to disclose the disability, you are subjecting
yourself to discrimination. And the question is whether or not in that
balancing act, whether it is fair to force people to disclose what makes no
difference in order to have people who are prejudiced against that particular
situation for no good reason at all to be able then to discriminate against
them.
Mr. SMITH. I
agree with everything you just said. The problem is what you said included
things that make no difference, that is going to cause people to discriminate
against them, but you don't—you don't know what it is going to be until you
ask. You can't decide in advance what it is you are going to disclose.
Mr. SCOTT. And
that is that part of the balancing act that we heard in the first panel, that
there are ways of trying to ask questions that will elicit relevant information
and not ask questions that gather in a bunch of irrelevant information.
Mr. SMITH. This
lawsuit of ours is on the verge of being settled through, in part, the
recrafting of these questions that I think are probably improvements. I haven't
been part of the settlement process, but I have been provided with the
redrafted questions.
Mr. SCOTT. I
was under the impression that they, in fact, have a news article in the Florida
Bar News, February 15th. Did you see it? It suggests that the JNC members adopt
new uniform health questions.
Mr. SMITH. Yes,
sir.
Mr. SCOTT. So
you can get——
Mr. SMITH. The
Florida bar sent these questions up.
Mr. SCOTT. It
appears to me that everyone seems to be happy—everybody is not happy?
Mr. SMITH. No,
I didn't say that. Did I nod my head?
Mr. SCOTT. Well,
part of the balancing act is trying to ask the questions that elicit the right
information and leave out the irrelevant, inflammatory information, which is
what a judge has to do in asking questions. Some, quote, evidence, is so
inflammatory, although it may be true, that it offsets whatever benefit it may
have to the trier of fact.
Shouldn't we apply
that same kind of standard to this situation, that some information may be so
inflammatory and prejudicial that it would outweigh any probative value it may
have in helping you determine whether a person is fit or not to be a judge?
Mr. SMITH. I
grant you that is certainly a risk, but I think—I am trying to imagine
something that would be so inflammatory that it would be wrong—wrong to decide
this person based on that.
Mr. SCOTT. The
fact that someone sought psychological treatment 20 years ago on something, I
think to make them disclose that they have sought the services of a
psychiatrist 20 years ago for a death in their family or any other kind of
situation—it could be a school kid where there was an accident in the school
and some school children died, that is routine to send in a slew of
psychologists into the school to counsel with the children. Now, is that
something that you want to inflame the public that this candidate has sought
psychological help?
Mr. SMITH. I
am not trying to inflame the public. I am trying to help ensure that there
is—of course, it is presumptuous for me to say I am doing this, but I believe
that it is important that the decision-making process in judicial selection be
as fully informed as possible, and that that is an overarching policy that
should override the risk, and I really think it is a risk at best, of somebody
being wrong—being discriminated against solely on the basis of having had
psychological counseling for some purpose.
Mr. SCOTT. And
one more quick point, Mr. Chairman. And you would also have a situation where
people would be permanently discouraged from getting the psychological help
they need, because if they ever want to be a judge in Florida, that visit to
the psychologist will be a matter of public record?
Mr. SMITH. That
is possible. That is another risk. It wouldn't be for me. It wouldn't be for
others. It would be for some, I suppose.
Mr. SCOTT. Thank
you, Mr. Chairman.
Mr. CANADY. Thank
you, Mr. Scott.
Let me ask now, in
Florida, what questions can't you ask that you previously wanted to ask?
Mr. SMITH. Well,
actually, I think the questions that have been recrafted are better designed to
get the information you need anyway.
Mr. CANADY. OK.
Mr. SMITH. But
the questions that were held to be overinclusive——
Mr. CANADY. Well,
let me ask that then. Assuming that this case can only be settled on the basis
of the redrafted questions, are there things that those redrafted questions
don't get to that you think you should be able to get to?
Mr. SMITH. The
problem with this whole thing is, I don't know.
Mr. CANADY. OK.
Mr. SMITH. Probably
so. But I don't know what it is until I hear it, as someone who is doing the
screening.
Mr. CANADY. Because
your thesis is that you really need to get broad-based information about the
background of a judicial applicant to understand if that person might have
particular biases, other particular problems that would affect not only the
ability to do the job, but the person's approach to the job as a factfinder in
carrying out the judicial function, and I think that is a valid concern.
Let me ask you,
Judge, and I understand what you have said, and I agree with your point, I
think it would be very offensive to say that someone who is hearing-impaired
should not have an opportunity to serve in any judicial capacity. Do you think
that the potential problem that you would not have as an appellate judge could
exist for a trial court judge who was hearing-impaired? Do you see any
distinction there between the appellate level and the trial court level, where
a judge in many cases would be called on to observe witnesses to determine—you
know, making a determination about their credibility and to observe their demeanor?
You would feel just as comfortable doing that in your ability to perform that
function as you do on the appellate bench?
Mr. BROWN. Are
you talking about a person with a hearing impairment?
Mr. CANADY. Yes.
Mr. BROWN. If
you had asked me the question 10 years ago, I would have said I don't think
that a person with a hearing impairment as bad as mine, being totally deaf,
could be a trial judge, for the very reasons that you asked. But technology has
changed everything.
With this, you can
see everything that is being said. With the cochlear implant, you can hear
everything that is being said. Between the two of them, I would have no trouble
sitting on the bench and getting the inflections of the voices, hearing everything,
just like I am hearing you, and being able to understand everything that is
going on; and when there is an objection from a lawyer, being right on top of
the objection.
Mr. CANADY. Help
me understand how the cochlear implant works. What does that do? How does that
function?
Mr. BROWN. OK.
Do you have about an hour?
Mr. CANADY. Well,
I probably do. I am not sure anyone else does.
Mr. BROWN. You
have got a vote, I know.
Mr. CANADY. It
may be something we can discuss afterwards just as well, but for the record, if
you would give me a brief explanation.
Mr. BROWN. This
is a computer, and the way this computer works is that sound goes through a
microphone. The microphone takes the sound through this wire down to the
computer. The computer then analyzes what kind of sound waves are being used.
It then sends an appropriate signal back up the wire to an electrode. There are
22 electrodes embedded in my cochlea. Each electrode turns on certain
filaments, gets certain filaments in the cochlea working.
The idea is that
every sound wave gets the filaments to work in a different manner. OK? So that
if you were to use the word ''flag,'' that would set off certain filaments in
my cochlea as opposed to the word ''microphone.'' And then the computer is supposed
to differentiate the sound waves, send the filaments—get the filaments going so
that the sound waves, the chemical response, goes to the brain, and the brain
identifies it the same way you, with normal hearing, identify sound.
That is the theory.
It is electrical stimulation by computer, and it is supposed to be the same
kind of thing that normal hearing has. It has come a long way since it was
first invented, and it has a long way to go, but it is not like an out-of-tune
CB or anything like that. What you hear, you hear well. I can hear his voice. I
can close my eyes, I would know it was Mr. Smith talking rather than
Congressman Canady. I would know if he was talking.
But it is like a
puzzle where all the pieces aren't together. They don't know enough about the
DNA to have everything, so it is about 78 percent complete. So what I hear, I
hear very well, just like I used to hear when I had normal hearing.
By the way, I am
not born deaf. I am what they call a late-deafened adult. I lost my hearing in
1983 because of a brain tumor. That is how I lost it. And this is—this is
instrumental for people who are late-deafened adults. That is how it works.
Now, I don't want
to say that just because—just late-deafened adults are the only people who
could sit on the bench and the trial bench. I really think—10 years ago I would
have said a person who was culturally deaf, who did well in law school and who
signs, could not do their job as a trial judge. I have changed my mind, because
since I have been deaf, I have met people who are culturally deaf who can
understand what is going on and pick things up as fast, if not faster, than me,
through the use of sign language.
If there is an
interpreter in the courtroom with that judge, they would be able to know what
was going on. And the question becomes, well, what about the demeanor, what
about if a person murmurs, or what about if a person yells or screams or does
something that would give away the person's voice? Interpreters are able to
interpret that demeanor to the judge or to the person who is hearing-impaired
so that the person knows by the way—by the expression, expressiveness of the
interpreter telling him exactly not only what is being said, but how it is
being said. It is an amazing, amazing language, just an amazing language. I am
constantly amazed by it.
I have taken 3
years of sign language, and I have to say that I am probably at a kindergarten
level with it. It is very, very difficult to learn, but it is a beautiful
language.
Mr. CANADY. OK,
well, thank you, Judge. That was very helpful.
Mr. Smith, can the
Judicial Nominating Commission ask an applicant whether that applicant has ever
used illegal drugs?
Mr. SMITH. I
believe so, but I am not a student of the ADA.
Mr. CANADY. OK.
So far as you know, that has not been excluded, whether a person has engaged in
an illegal act?
Mr. SMITH. Well,
no let me take that back. You mean has ever?
Mr. CANADY. Has
ever, ever used illegal drugs. That is a crime. OK?
Mr. SMITH. I
am sorry. I don't know the answer to that, what the current state of the law is
on that.
Mr. CANADY. OK.
Mr. SMITH. I
notice that the negotiated new questions include a question that says, ''during
the last 10 years.'' So there is a time limit.
Mr. CANADY. OK.
The negotiated new question 11A says, during the last 10 years, have you been
hospitalized or have you consulted professional—have you received treatment or
a diagnosis from a professional for any of the following: kleptomania,
pathological impulsive gambling, pedophilia, exhibitionism or voyeurism?
That doesn't—which
one—were you talking about a different one?
Mr. SMITH. It
is No. 14.
Mr. CANADY. No.
14. OK. During the last 10 years, have you unlawfully used controlled
substances, narcotic drugs or dangerous drugs as defined by Federal or State
law?
Mr. SMITH. Now,
see, if I were drafting that question, I would take out the word
''unlawfully.'' I just want to know whether have you used—during the last 10
years, have you used controlled substances, narcotic drugs or dangerous drugs?
''Unlawfully'' permits a reasonable factor.
Mr. CANADY. If
it was a matter of prescription, people get prescriptions for things that are
controlled substances, I think. I don't think that should be a problem.
The problem I have
with this is the 10 years, because if someone—I think it is relevant for
someone who is applying for a judicial position to know whether they have ever
engaged in such illegal activity.
Now, it may not be
disqualifying, and I might take the position, well, that was a long time ago;
you have got to look at that person's track record since then and make a
judgment that that was a problem in conduct that can be looked at in that
context, and it is not disqualifying. But I think you should have a right to
know and ask that question. And if the ADA is keeping you from asking
candidates for judicial positions whether they have previously engaged in
illegal activities regarding the use of drugs, then I have a problem with that.
Now, I am seeing
people saying that it doesn't do that, and that is something that we can
further explore, but that would be a particular area of concern that I would
have.
Judge
Brown, would you have any thoughts about that?
Mr. BROWN. I
do. Again, I am talking from my personal knowledge of the ADA, which—and as you
probably know, Congress said that people who have used drugs in the past are
not covered by the ADA; whereas people who are presently drug users and are
recovering are covered by the ADA. And I believe that that is what the ADA
says.
Now, I am
convinced that if you ask a question about illegal activity, I think that is
something that is legitimate. You are not asking about whether the person has
sought treatment for chemical dependency in the past 10 years. You are asking,
have you done coke, have you done heroin in the last 10 years? I think that is
a legitimate question.
Mr. CANADY. What
about beyond the last 10 years? Would you have a problem with asking if you ever
used illegal substances?
Mr. BROWN. Again,
have you ever done drugs, I mean that is a subjective answer. A person is going
to be honest or they are going to lie. I don't know what they are going to do.
But the fact of the matter is, yes, you can ask it, but judicial nominating
commissions for trial judges in Wisconsin—we are elected, but they do have—when
there is a vacancy, they do have a judicial nominating commission—are made up
of local lawyers and people in the community. They know, they know if somebody
is rotten. They know if somebody is drinking too much. They know if somebody is
doing coke or doing pot. They know these people.
So it is almost
academic, because those people aren't going to get to first base. There is a
lot of moral suasion in the community up in Wisconsin, and I am sure there is a
lot of moral suasion in Florida, too.
Mr. CANADY. Thank
you. I don't have any more questions, other than to ask if there are any
concluding remarks that you would like to make, Judge Brown, or you, Mr. Smith,
that you haven't?
Mr. SMITH. No,
sir.
Mr. BROWN. No.
Mr. SCOTT. Mr.
Chairman, could I ask a question?
Mr. CANADY. Mr.
Scott.
Mr. SCOTT. Judge
Brown, Mr. Smith mentioned a necessity exception. Maybe I will ask Mr. Smith
what you meant by that and then have Judge Brown respond.
Mr. SMITH. All
right. I am just taking this from Judge Hurley's decision in our case in
Florida where he noticed that—I believe it was an Attorney General Department
of Justice regulation mentions you can't use certain kinds of criteria unless
such criteria can be shown to be necessary for the provision of that service,
program or activity being offered. Judge Hurley picked that—then went through
the enforcing authorities' regulations are entitled to great deference that has
been recognized in other cases, and then—so he basically said there is a necessity exception, which is what our JNC through counsel was
contending here; that we could at least ask some questions, and then he held
that they had to be narrowly tailored to the purpose.
Mr. SCOTT. OK.
And your questions now, you believe, are narrowly tailored to get the
information you want?
Mr. SMITH. Well,
the questions have been more focused, but this has been done voluntarily, and
the judge hasn't said yes or no whether they are good enough yet.
Mr. SCOTT. OK.
And well, Judge Brown, how do you feel about the mental health records being
exposed in order to be a candidate for a judge?
Mr. BROWN. I don't believe that mental health records are necessary to determine the
excellence of a candidate. That is what we are trying to do, right? We are
trying to find out is the judge the most excellent candidate out there? Is the
judge scholarly? Is the judge able to analyze complex abstract theory and put
it into form? Does that judge know the rules of evidence, if that person is
going to be a trial judge? Does that person have good character? Is he well
regarded by the bar as being somebody who doesn't fly off the handle, who
treats lawyers with dignity, who is very civil, has a lot of civility in his
practice? That is the kind of person you want as a judge.
The mental health
records of that person are not relevant, are not relevant, unless we are
talking about something where there is a present mental disability. And if
there is a present mental disability, and the person has said, yes, there is a
present mental disability, I have whatever and I am dealing with it right now,
I don't think that they can—I think that in certain instances the mental health
records can be turned over voluntarily as a condition of being further—of going
further in the process. That is up to the person. And maybe there can be some
kind of an in camera review of what is important and what is not.
I think that has
to be addressed on a case-by-case basis, but I would say the presumption is no.
Mr. SCOTT. Thank
you.
Thank you, Mr.
Chairman.
Mr. CANADY. Thank
you, Mr. Scott.
Again, we
appreciate your participation in the hearing today. Your testimony has been
very helpful to us. The subcommittee is adjourned.
[Whereupon, at
1:55 p.m., the subcommittee adjourned.]
A P P E N D I X
Material Submitted for the Hearing
Insert offset
folios 109 to 195 here
[The appendix is
being held in the Committee's file.]
Subcommittee
on the Constitution
CHARLES
T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
MELVIN L. WATT, North Carolina
KATHRYN HAZEEM LEHMAN, Chief Counsel
KERI D. HARRISON, Counsel
JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel
C O N T E N T S
HEARING DATE
May 22, 1997
OPENING
STATEMENT
Canady, Hon.
Charles T., a Representative in Congress from the State of Florida, and
chairman, Subcommittee on the Constitution
WITNESSES
Brown, Richard S.,
Judge, Wisconsin State Court of Appeals
Bumgarner, Ray Q.,
representing the Federation of State Medical Board and Executive Director,
State Medical Board of Ohio
Feldblum, Chai R.,
Professor, Georgetown University Law Center
Ingram, Stan,
Board Attorney, Mississippi State Board of Medical Licensure
Jamison, Kay,
Psychiatrist, Johns Hopkins University
Smith, D. Culver,
III, Attorney and Former Chairman, Judicial Nominating Commission, 15th
Judicial Circuit of Florida
Spaulding, Susan,
President, Federation of State Medical Boards and Chair, Vermont Board of Osteopathic
Physicians and Surgeons
LETTERS, STATEMENTS, ETC., SUBMITTED FOR
THE HEARING
Brown, Richard S.,
Judge, Wisconsin State Court of Appeals: Prepared statement
Bumgarner, Ray Q.,
representing the Federation of State Medical Board and Executive Director,
State Medical Board of Ohio: Prepared statement
Feldblum, Chai R.,
Professor, Georgetown University Law Center: Prepared statement
Ingram, Stan,
Board Attorney, Mississippi State Board of Medical Licensure: Prepared
statement
Smith, D. Culver,
III, Attorney and Former Chairman, Judicial Nominating Commission, 15th
Judicial Circuit of Florida: Prepared statement
APPENDIX
Material submitted
for the hearing
(Footnote 1 return)
Once appointed, trial judges stand for
reelection in popular elections. Appellate judges stand for reelection through
a merit-retention system, in which the ballot reads, ''Should Judge XXXX be
retained in office?''
(Footnote 2 return)
Florida's judicial nominating commissions
employ uniform applications and procedures.
(Footnote 3 return)
Doe v. Judicial Nominating Comm'n, 906
F. Supp. 1534 (S.D. Fla. 1995).
(Footnote 4 return)
The new questions, numbered 10–22, have
been furnished to the Subcommittee by The Florida Bar's JNC Coordinator.