Page 4. Availability of the Undue Burden Defense Insert in Sections 302(b) (1) (A) (1), and 302(b) (1) (A) (11) the following: a. On page 33, line 22, after the word "entity", the following: b. "A covered entity shall be entitled to raise the defense that the denial of the opportunity to participate in or benefit from these goods, services, privileges or accommodations offered was due to the undue burden created, or the lack of any readily achievable means of providing the goods, services or accommodations in a reasonable manner". On page 34, line 8, after the word "individuals' insert the following: "A covered entity shall be entitled to raise the defense that the denial of the opportunity to participate in or benefit from these goods, services, privileges or accommodations offered was due to the undue burden created, or the lack of any readily achievable means of providing the goods, services or accommodations in a reasonable manner." 5. Amendment Relating to the Case of Resident's With Communicable Diseases Insert in Section 302(b) (1) (B), on page 35, line 2, the following: (ii) Notwithstanding the foregoing a provider of health care services shall be entitled to assign individuals with communicable or contagious diseases to specified portions of a facility, or to specified facilities. 6. Right to Relocate A Resident or Patient to Another Room Insert at the end of Section 302(b) (2) (A) a new Subsection 302(b) (2) (B), and renumber the succeeding subsections accordingly. Insert on page 39, line 10 the following: (B) Notwithstanding the foregoing, a provider of health care services shall have the right to relocate a resident or patient to another room in a facility, in lieu of making any structural or other modifications in the facility. Page 2 7. Prohibition Against Lawsuits Until Implementing Regulations Insert on Page 60, after line 17, a new section 506, as follows: No action to enforce any provision of this Act shall be commenced, either by the United States, by any agency thereof, or by any private party, until one year after the applicable regulations have taken effect. Justification Covered entities should have a reasonable period of time to modify their programs, criteria, and physical plant to meet the statutory and regulatory requirements of this Act. This amendment will specifically prevent the filing of enforcement litigation prematurely. 8. Ho Double Jeopardy Insert, on page 49 after line 20 a new Section 308(b) (2) (D), as follows: (D) A fine for a repeat violation shall only be imposed if the violation is the deliberate failure of the defendant to correct a previously cited violation. Page 10 9. Cost Justification As A Defense Insert on Page 10, after line 10 a new subsection 101(9) (B) (iv), as follows: (iv) In determining the ability of any health care provider to bear the cost of making any structural modification each facility shall be considered a separate entity and the opportunity for the facility to obtain reimbursement for those costs under the applicable state's Medicaid plan shall be significant factor in determining if a proposed accommodation creates an undue burden. Justification Each facility is subject to vastly different state reimbursement policies and regulations. These policies and regulations will determine if, and to what extent, a facility will receive reimbursement for the cost of complying with the act. Secondly, unlike other covered entities, nursing facilities cannot pass on the cost of compliance by raising their prices. Medicaid law prohibits facilities from charging Medicaid patients fees in excess of that state's Medicaid reimbursement rate, and the rates differ markedly from one state to another. Third, in some states, because of the specific reimbursement methodology used, a facility may not legally be able to seek an adjustment in its rate that will allow it to recover all of its costs. Moreover, again depending upon the state, those costs may only be recoverable over a period of many years. 10. Amendment Relating To Handicapped Persons Employed In Health Care Facilities Insert on Page 10, after line 10 a new subsection IV. (IV) In the case of health care facilities, there shall be a presumption that a facility's determination that a disabled employee or applicant's disability may endanger the health or safety of a resident shall be controlling, unless there is clear and convincing evidence on the record to rebut that presumption, and the burden of proof shall be on the employee or applicant to rebut that presumption. Justification Facility employees care for residents who are frail, infirm and suffering from numerous illnesses. Their safety should not be jeopardized, to any degree, by a facility being required to hire, or retain, an employee with a disability that might endanger a resident's health. Therefore, the facility management's views should receive special consideration. Page 11 11. Deleting the "Business Necessity" 102(b) (1) (G) at From Section On page 12, lines 18-19 delete the phrase, "and is consistent with business necessity". Justification Section 102(b) (1) (G) requires that any employment test or criteria that tends to screen out a disabled person must meet 2 standards in order to survive a Court (or administrative) challenge. The employer must provide that 1) the standard is "job-related"; and 2) that there is "a business necessity" for it. An employer should not have to meet this dual burden. It should be sufficient that the employer proves that the standard is "job-related". Secondly, the "business necessity" standard is vague. What does "necessity" mean? Must an employer prove that a requirement is "absolutely essential", that it is "reasonably necessary" or only that there is "some business justification" for its use? 12. Deleting the "Most Effective Manner" Requirement from Section 102(b) (1) () Delete from page 12 lines 21-22 the phrase "in the most effective manner". Justification The phrase "most effective manner" is an invitation to endless litigation because this criteria is completely subjective. There are no standards for determining what is the most effective" and its use will likely result in a demand for mandatory hiring quotas as the only readily available method for an employee to prove that he/she had complied with the Act. Page 12 13. Immunity from Suit for Using Statutorily Mandated Tests Subsection 102(b) (1) (H) is amended by renumbering paragraph (H) as paragraph (H) (1) and inserting on page 13 line 7 a new subparagraph (H) (ii), as follows: (ii) A covered entity shall be immune from suit under subsection (H) if any test or standard used to select or promote employees has been designed or mandated by any federal or state law or agency. In such cases, any suit filed to enforce any right granted by this subsection shall be filed only against the agency that required or authorised the test or criteria, and not against the facility or facility staff using it. Justification Statutes such as OBRA have mandated that facilities test nurse aides for skills competency. These tests will ultimately be approved by various governmental agencies. Facilities will have no alternative but to use them. Therefore, it would be manifestly unfair to impose any legal liability on the facility under these circumstances. The liability, if any, should fall on the government. 14. Deleting the Business Necessity Requirement from Section 102(c) (4) (a) a. Delete from page 15, line 9 the phrase, "and consistent with business necessity." b. Delete from page 15, line 20 the phrase, "and consistent with business necessity." Justification It should be sufficient that a medical examination or inquiry is job-related in order for it to be lawfully required. It should not be necessary for an employer to meet a second burden of that of proving that there is a "business necessity" for its use. The business necessity" standard is vague. Is "necessity equated with "essential", or is an employer only required to prove that there is some need for the medical examination. The use of this dual standard will only stimulate additional, and unjustified, litigation. |