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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.


    Mr. CANADY. The subcommittee will come to order. Good morning.
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    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.
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    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.
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    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.
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    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.
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    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.

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    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.


    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.
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    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.
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    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.
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    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.

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    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.
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    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:]


    Mr. CANADY. Dr. Jamison.


    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.
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    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?
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    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.
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    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.

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    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.
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    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.


    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.

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    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.
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    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.


    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.
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    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.

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    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.
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    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.
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    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.
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    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:]


    Mr. CANADY. Mr. Ingram.


    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.

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    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.
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    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.
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    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.
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    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.
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    [The prepared statement of Mr. Ingram follows:]


    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.

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    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.

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    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?

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    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.
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    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?
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    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.
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    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.
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    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.
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    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.
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    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.
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    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.

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    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.
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    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.
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    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.

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    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.

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    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.
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    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.

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    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?

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    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.

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    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.
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    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?
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    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.
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    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——
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    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?
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    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?
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    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.
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    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?
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    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.
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    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.
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    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.
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    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.


    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.
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    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.
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    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.
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    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:]


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.

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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).
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  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.
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    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.
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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.
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    Thank you for the privilege of appearing before the Subcommittee.

Respectfully submitted,

D. Culver Smith III.


    Mr. CANADY. Judge Brown.


    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.
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    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.
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    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.
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    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.
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    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:]


    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.
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    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.
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    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.

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    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.
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    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.
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    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.
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    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.
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    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.
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    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?

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    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——
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    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?
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    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.
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    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.
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    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.
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    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.
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    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.

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    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.
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    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.
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    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.
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    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?

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    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?
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    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.

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    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.
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    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.
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    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.
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    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.]


Material Submitted for the Hearing

    Insert offset folios 109 to 195 here

    [The appendix is being held in the Committee's file.]

Table 1

Subcommittee on the Constitution
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CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
ED BRYANT, Tennessee
BOB BARR, Georgia

JOHN CONYERS, Jr., Michigan
MELVIN L. WATT, North Carolina

JOHN H. LADD, Counsel


    May 22, 1997

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    Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution


    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

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    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


    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.