WPAS fights discrimination on the basis of mental health treatment

This article is excerpted from ENVOY, December 1995/January 1996


by Sandy Macdonald

Mental health counselors and other licensed health care professionals who have been treated for mental illness will no longer face discriminatory questions on their applications.  After year-long negotiations, WPAS and other advocates persuaded the Department of Health to comply with the Americans with Disabilities Act.

In 1994 the state’s Mental Health Division developed a unique plan, the Consumer-to-Provider Program, to locate human service jobs for persons with mental illness.   The Consumer-to-Provider Program offered a 10-week class at Tacoma Community College, followed by a 15-week internship at a provider agency.  When graduates of the program applied to the Department of Health to be registered mental health counselors, however, they faced a major hurdle:  They were required to admit that they had received treatment for mental illness in the past five years.  And while the question about physical impairments asked about the current ability to practice “with reasonable skill and safety”, the question regarding mental health treatment asked whether that condition had ever “significantly impaired your ability to function.”  Applicants were then required to submit historical medical records and a current doctor’s report.

None of the applicants were granted registrations.  Instead the Department offered each applicant a “Conditional Registration”, a legal stipulation to be signed by an Administrative Law Judge.  The stipulation required applicants to admit that they could only practice as a counselor while receiving regular treatment from a physician.  Applicants also had to make sure that regular reports were submitted by their employers and doctors.

Ten of the Consumer-to-Provider program graduates contacted WPAS because they felt the conditional registration created an unfair stigma and limited their abilities to get jobs.  WPAS challenged the proposed stipulation, addition that it created a denial of due process.  If the employer’s or doctor’s reports were not submitted, the Conditional Registration could be terminated without notice.  We were also concerned that there was no time limit to the conditions.  Our clients could be permanently burdened with the proposed conditions.  Finally, the Conditional Registration is a public record.  The stipulation and its conditions could be viewed by anyone. 

WPAS claimed that the application, hence the proposed Conditional Registration, violated the Americans with Disabilities Act.  Under Title II of the ADA, a state program cannot discriminate against an individual based on his or her disability.  This includes state agencies that license or regulate professions.  It is proper for the Department of Health to regulate an individual’s ability to practice with reasonable skill and safety.  Rulings from other states concerning licensing procedures to practice law and medicine make it clear that the licensing authority can inquire into current conditions that may adversely affect an applicant’s ability to practice the profession with necessary skill.  But that was not the question asked of applicants who had received treatment for mental illness.  Instead, the Department of Health gained no needed information asking about past treatment for mental illness.  The Department’s application clearly and unfairly distinguished physical impairments and mental conditions. 

For several months the Department of Health debated this issue with WPAS, the Mental Health Division, and the ACLU.  In April 1995 the Department’s Assistant Attorney General contacted WPAS and offered our clients Temporary Conditional Registrations.  The new stipulated limited where our clients could work, and were to remain in place until the Department completed its investigation. 

Some of our clients accepted the new stipulations.  They were working and their employers were demanding the Registration before they could advance in their employment to be counselors.  We assured our clients we would continue to monitor the Department’s investigation to make sure it was completed as soon as possible.  Some of our clients were also willing to challenge the newest conditions, and we started the process to request hearings based on the Department’s denial of the applications.

In July 1995 the Department of Health agreed to ignore the answers to the offensive question while it changed its policies to comply with the ADA.  In October the Department issued a new policy and new questions.  Graduates of the Consumer-to-Provider Program and all licensed health care professionals are now required to answer the question, “Do you have a medical condition which in any way impairs or limits your ability to practice your profession with reasonable skill and safety?  If yes please explain.”  Medical condition is then described to include physiological, mental or psychological conditions.  New applications are being printed that include the new question.

*Editor's Note: Disability Rights Washington was formerly known as Washington Protection and Advocacy System.

 

ENVOY Credits

ENVOY Editor:  Nicole Elger
ENVOY Editorial Assistant:  Annaliza Torres
ENVOY Staff Contributors:   Laura Allen, Elizabeth Ambrose, Randy Brown, Deborah Dorfman, Marie Jensen, David Lord, Sandy Macdonald, Gillian Maguire, Betty Schwieterman,  Michael J. Smith, Mark Stroh, Thomaszine Weathersby

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