APR 9 1993

The Honorable Austin J. Murphy

Member, U.S. House of Representatives
96 North Main Street
Washington, Pennsylvania 15301

Dear Congressman Murphy:

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

constituent, XX regarding the difficulty he has had
in locating a nursing facility which will accept his XX as a
patient. He requests information about (b)(6) rights under the
Americans with Disabilities Act.

The Americans with Disabilities Act of 1990 ("ADA")

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

The ADA defines "disability" to include any mental or

physical condition that substantially limits a major life
activity like walking, seeing, hearing, working, or caring for
oneself. Thus, from the description provided by XX , it
appears that his XX is a person with a disability. As an
individual with a disability, (b)(6) is entitled to the
protections of the ADA.

Among other things, title II of the ADA requires that all of

the facilities and services operated by a state or local
government be accessible to persons with disabilities, forbids
the use of any eligibility criteria that screen out or tend to
screen out persons with disabilities, unless such criteria are
necessary for the operation of the facility or service, and
requires reasonable modification of policies, practices and
procedures unless it would result in a fundamental alteration of
its program. Thus, if a privately owned health care facility
were to maintain a rule against accepting persons with
disabilities, it would violate title II of the ADA.

cc: Records, Chrono, Wodatch, McDowney, Magagna, Contois, FOIA

Udd:Contois:CGL:Murphy
01-01978​
-2-
Title III of the ADA, which applies to privately owned
places of public accommodation, including health care facilities,
contains similar provisions. For instance, title III also
forbids the use of eligibility criteria that screen out
individuals with disabilities from fully and equally enjoying the
goods and services offered by a public accommodation, unless such
criteria are necessary for the operation of the public
accommodation. Title III also requires reasonable modification
of policies, practices, and procedures unless it would result in
a fundamental alteration of the program.

If Mr. (b)(6) believes that his XX rights under the

ADA have been violated, he may either file a complaint in Federal
court to enforce the Act, or may file a complaint with the
Department of Justice, which is authorized to investigate allega-
tions of violations of both titles II and III. If
wishes to file a complaint under title II against a publicly
owned health care facility, he may address it to the Coordination
and Review Section, Civil Rights Division, Department of Justice,
Post Office Box 66118, Washington, D.C. 20035-6118. If
wishes to file a complaint against a privately owned
health care facility under title III, he may address it to the
Public Access Section, Civil Rights Division, Department of
Justice, Post Office Box 66738, Washington, D.C. 20035-6738.

For your information, I am enclosing a copy of this

Department's regulations implementing titles II and III of the
ADA and the Technical Assistance Manuals that were developed to
assist individuals and entities subject to the ADA to understand
the requirements of titles II and III. The ADA's definition of
disability can be found in section 35.104 of the Department's
title II regulation (page 35717), and is discussed on pages 3-4
of the title II Technical Assistance Manual. Title II's
proscription of discriminatory eligibility criteria is set out in
section 35.130(b)(8) of the regulation (page 35719), and is
discussed on page 12 of the title II Technical Assistance Manual.
Title III's proscription of discriminatory eligibility criteria
is set out in section 36.301 of the regulation (page 35596), and
is discussed on pages 21-22 of the title III Technical Assistance
Manual.

01-01979​
-3-
 I hope this information is useful to you in responding to

Sincerely,

James P. Turner
Acting Assistant Attorney General
Civil Rights Division
Enclosures (2)
01-01980​ Congress of the United States
House of Representatives
2210 Rayburn Building
Washington, DC 20515
(202) 225-4665

February 23, 1993

REPLY TO: 96 North Main Street

Washington, PA 15301

Ms. Faith Burton

Acting Asst. Attorney General
Office of Legislative Affairs
Washington, D.C. 20530
RE: (b)(6)
Washington, PA 15301
Dear Ms. Burton:
I write to you today on behalf of the of the XX above
named constituent who feel that XX is being discriminated
against because of an overweight problem.
(b)(6) with one leg amputated.
XX weighs approximately 350 pounds and XX is unable to
take care of XX . Unsuccessful attempts have been made to place
XX in a health care facility in this area. The XX claims that
XX is being denied access because of XX weight. Enclosed is a
copy of a letter from one health center, which documents that
claim.
I would appreciate it if you could look into this matter and
advise me what assistance the Justice Department (via ADA Act) can
give to the XX in getting XX into a health care
facility. Thanking you in advance, I remain
 Very truly yours,

AUSTIN J. MURPHY
AJM/dm Member of Congress
Enclosure
(b)(6)
01-01981​

Feb 17, 1993

(b)(6)
WASHINGTON PA 15301
We, the XX and
XX are writing this in
regards to XX health problems.
In the last three years we have
been trying to get XX into numerous
health care facilities. Canonsburg
Home Care Agency has told us that
they've called every health Center
in a 25 mile radius, with no results.
I XX , came to my
XX home this morning and (b)(6)
told me that XX told XX
that they would drop XX off at
XX doorstep from Canonsburg Hospital,
because my XX was told to
refuse to bring XX home by Canons-
burg Health Care Social worker.
My XX
approximately 350 lbs with one leg
amputated. My XX is unable to
care for XX at home.
During the last three years that
we've been trying to get (b)(6)
in a home, we've been unable to
01-01979​
-2-
get anything accomplished we
feel that all the facilities are
discriminating against my (b)(6)
because of XX weight.
We are not looking for a
lawsuit, we are looking to get
my XX in a home so that
(b)(6) can be taken care of properly.
Anything that you can do to
help my XX , would be
appreciated.
Thank You very much,
(b)(6)
01-01980​ Washington County Health Center
R.D. #1, Box 94, Washington, PA 15301
Phone: (412) 228-5010
Barry W. Parks, D.Ed., NHA
Administrator
February 8, 1993 (b)(6)
Mr. Joseph A. Ford
Commissioner, County
of Washington
Commonwealth of Pennsylvania
Courthouse Square Building
Room 702
Washington, PA 15301

RE: (b)(6)

Dear Commissioner Ford:

I am in receipt of your letter of January 20, 1993, regarding XX . We did,

in fact, review XX application for admission to the Health Center and had
determined that we do not have the resource to adequately care for XX needs.
In gathering pre-admission information in order to make the determination, it
was learned that XX does have needs which require attention; however, we
also determined that we do not have the resources to meet XX needs. At the
time of referral, XX weight was such that we do not have beds which are able
to accommodate XX . Additionally, other requirements on us, as a nursing
home, would prevent us from meeting XX needs. We are required to, when people
are alert, to get them up daily and out-of-bed for posturing purposes and also
for participation in various activities and dining. This would require
repeated transfer from bed to wheelchair and we, in fact, do not have beds,
wheelchairs, or transfer equipment that would safely accommodate XX . I do
realize that this individual has legitimate needs for care, but it was our
determination that we could not adequately meet these needs. We would, in
fact, have the same difficulties in attempting to deal with XX that the other
nursing homes, who were asked to assess XX for admission, have determined
that they are unable to meet XX needs.
We were informed that a recommendation had been made by Canonsburg Hospital
that an aggressive weight reduction program be instituted for XX health and
so that health care providers are able to better care for XX effectively. It
is my understanding that XX was receiving in-home services through the
Visiting Nurse Agency and I would trust that this resource would still be
available. Hopefully, the recommendation from Canonsburg Hospital is being
followed. We are certainly willing to reassess this individual for admission
if there is a notable change in XX weight, which would allow us to adequately
care for XX . At such point as this has been accomplished, we are more than
willing to re-evaluate (b)(6) appropriateness for admission and would be
willing to consult with the Visiting Nurse Agency and if indicated, to have
our staff do an in-home evaluation of this individual in order to assess our
ability to care for (b)(6)

Should you have any additional questions, please feel free to contact me.

Sincerely yours,

Barry W. Parks, D.Ed., NHA

Administrator
BWP:cmb
01-01981