SEP 22 1992


The Honorable William V. Roth, Jr.
United States Senate
104 Hart Senate Office Building
Washington, D.C. 20510

Dear Senator Roth:

        This letter responds to your request for information
concerning the Americans with Disabilities Act (ADA) in response
to an inquiry from your constituent, Dr. David M. August, D.O.
Dr. August requested an opinion on whether current Medicare
policy could be interpreted as a violation of the ADA.
Specifically, he questions the Medicare policy of reimbursing 80
percent of doctors' charges for treating physical illness and 65
percent of doctors' charges for treating mental or emotional
illness.

        The ADA authorizes this Department to provide technical
assistance to individuals and entities that have rights or
responsibilities under the ADA. Accordingly, this letter
provides informal guidance to assist you in responding to
Dr. August; however, this technical assistance does not
constitute a legal interpretation and is not binding on the
Department of Justice.

        While we cannot issue a legal opinion on this question, we
can point out that the ADA, in some respects, was modeled after
the Rehabilitation Act of 1973, which prohibits discrimination in
federally conducted and federally assisted programs and
activities, and that legal challenges under the Rehabilitation
Act to similar classifications of types of medical treatment have
not been successful. For example, in Alexander v. Choate (469
U.S. 287 (1985)), the United States Supreme Court determined that
a state reduction of the number of days of inpatient hospital
care under the Medicaid program was lawful, noting the "States'
longstanding discretion to choose the proper mix of amount,
scope, and durational limitations on services."

cc: Records, Chrono, Wodatch, Breen, Magagna, McDowney, Delaney,
    FOIA
    Udd:Delaney:ada.cong.roth.medicare arthur T. 9/14/92
01-01562
                                - 2 -
        I hope this information is helpful in responding to your
constituent.

                                  Sincerely,

                               James P. Turner
                       Acting Assistant Attorney General
                             Civil Rights Division

01-01563

DAVID AUGUST, D.O.
BOARD CERTIFIED PHYCHIATRIST
  Red Mill Office Center
  467 Highway One
  Lewes, DE 19958
Phone (302)                     Fax (302)
 645-9076                        645-2870
                                                         May 1, 1992

Senator William V. Roth, Jr.
3021 Federal Building
844 King Street
Wilmington, DE 19801

Dear Senator Roth:

I am writing to you about a matter that has come to my attention concerning 
Medicare's treatment of the mentally ill. I am a psychiatrist treating
patients in Delaware and I have discovered that Medicare has a policy of
specifically discriminating against mentally ill patients in their
reimbursements for medical treatment. 

It is Medicare policy to reimburse patients for what Medicare considers to be
a physical illness 80% of doctors charges. If Medicare considers the patient
to have a mental or emotional illness, the patient will only be reimbursed 65%
of the doctor's charges. 

This Medicare policy makes it very difficult for mentally ill patients to 
obtain psychiatric care. This Medicare policy could also violate federal laws 
such as the American Disabilities Act or perhaps other constitutional 
guarantees. I am requesting an opinion from your office as I am considering 
pursuing this inequity, either through legislation or the court system.

                                                        Sincerely,

                                                   David M. August, D.O.
DMA/cv
01-01564