Does Your Park District Have a Policy on Deadly Communicable Diseases?

By Gerald J. Brooks, Steven B. Adams, and Richard J. Tarvlis

Imagine for a moment that your Recreation Superintendent, after closing the door to your office and pulling his chair close to your desk, advises you that a child in the third grade basketball league has AIDS. A group of parents have found out, he advises, and they plan to publicly demonstrate for his removal from the program. The coaches and other staff members are also upset, he tells you, and they are spreading the news. What should you do? How do you know if the child really has the virus? What legal rights does he have? What authority does the park district have to respond to the situation? Does the infected child pose a risk to the other players? What preparation has your board made for this type of situation?

Fawell, James and Brooks, at the request of the Wheaton Park District, has authored a policy on deadly communicable diseases designed to address this type of situation. The aim of the policy is to guide the park district in the event a program participant or park district employee becomes infected with the HIV virus, or actually developed Acquired Immune Deficiency Syndrome (AIDS), or any other deadly communicable disease such as Hepatitus B.

Wheaton Park District president, Ellen North, Park District director, Robert Dunsmuir, and the Wheaton Park District Board of Park Commissioners, recognizing the sensitive privacy and civil rights issues surrounding the public sector's treatment of infected individuals, requested a policy which would enable them to make a medically rational and legally appropriate response to a potential or actual AIDS case, like the case described above.

Many school districts in the United States have now implemented AIDS policies to address similar circumstances in the public schools. These policies frequently tackle the problems of inadequate or inaccurate information, and the effects of the anxiety often felt by non-infected peers. By following the lead of the public educational community, the Park District believes that their policy will similarly reduce public anxiety about the virus, improve public awareness about its transmission, and protect the public health and welfare.

U.S. AIDS Cases Top 100,000; Research Continues Over 100,000 AIDS cases resulting in over 59,000 AIDS-related deaths, have been reported to the U.S. Centers for Disease Control (CDC). AIDS was the 15th largest cause of death in U.S. children and young adults in 1988. In the last two years researchers have continued to learn about AIDS. A few persons in the U.S. have been found infected with a second AIDS virus; the risk of infected blood transfusions has been studied; and a new drug treatment has been approved for a pneumonia that attacts AIDS patients. Reported Cases The first 50,000 U.S. cases were reported to the CDC between 1981 and December 1987; the second 50,000 came between December 1987 and July 1989. Over 3,000 cases had been reported in Illinois through September 1989. By Age and Gender Men were 91.2 percent of the first 50,000 U.S. AIDS patients. By the time cases had reached 100,000, men were a slightly lower 89.6 percent of all patients. Adults were 98.5 percent of AIDS patients in January 1988, dropping slightly to 98.3 percent by August 1989. The percentage of adult patients who were men dropped slightly in this period, from 92.6 percent to 91.1 percent. The division between male and female child patients is much more even (54.9 percent male, 45.1 percent female). Illinois figures are similar. Over 98 percent of AIDS patients in Illinois are adults. Among adult patients, 94.4 percent are men. Fewer than 50 AIDS cases have been reported in Illinois children under 13. AIDS Deaths Over 59,000 AIDS-related deaths have been reported to CDC. The probability that a patient will have died increases with time after diagnosis. Of persons diagnosed with AIDS in the first half of 1987, 34 percent had died by January 1988. By August 1989, 67 percent of them had died. More than 86 percent of persons diagnosed with AIDS before 1986 have died Illinois has had over 1,900 AIDS deaths. The percentage of deaths among Illinois and U.S. AIDS patients are similar. In Illinois, 58.9 percent of patients have died; the nationwide figure is 57.9 percent. Reprinted with permission from the Illinois General Assembly's "Legislative Research Unit First Reading, " Volume 5, Number 1, January 1990.

Wheaton is a city of approximately 46,000 individuals. It is the county seat of DuPage County and its park district is one of the largest, most active in the state. The conservative bedroom community was recently cited by the Chicago Tribune as the most probable home of Ozzie and Harriet had they lived in Illinois. Presently undergoing a sustained period of substantial growth, city officials estimate continued rapid population growth through the end of the 1990's. Recent statistics about the spread of the disease suggest that even communities such as Wheaton have a vested interest in providing education and a means for dealing with infected individuals in their schools and parks.

The main objective of the Wheaton Park District Deadly Communicable Disease Policy is to accommodate the various conflicitng interests between the uninvolved public non-infected employees and program participants, and infected employees or participants. The policy's goal is to provide a proper balance between the rights of these groups and the Park District's commitment to serving the community. It includes specific procedures intended to eliminate risks associated with communicable diseases without unnecessarily restricting employment or participation. To accomplish this, the policy requires the Park District to make efforts at reasonable effect of minimizing risks associated with the disease. The possibility of making reasonable accommodations must be evaluated prior to taking adverse action against an employee or curtailing participation in a program for a resident. The question of what accommodations are reasonable is to be decided by a review board established under the policy which must take into consideration such factors as the severity and duration of the risk, likelihood of further viral transmission, potential harm to third parties and costs and disruption to Park District staff or programming.

Because the policy relies in part on both current medical findings and legal doctrines, the Board of Park Commissioners plans to review it annually to insure its consistency with the latest available findings in these fields.

Under the policy, and consistent with applicable law, neither the Park District's employees nor its program participants will be asked or required to test for communicable diseases. Employment will not be denied or terminated solely because of an infected condition. If however, the condition substantially interferes with an employee's ability to perform his job, and there are no reasonable means available to prevent the condition from interfering with the activities of the park district, or if there is an unreasonable risk of harm to others, the board may conclude that termination or some lesser modification to the duties and position of the employee is in order. Participants infected with a deadly communicable disease found by the review board to create unreasonable risks to employees or other participants, may be required to withdraw from the program or modify the nature of their participation. The review board's findings cannot be made lightly. As the cases discussed below suggest, the courts are generally deciding in favor of continued participation in the absence of a strong showing of risk and inability to accomodate.

The policy endeavors to provide maximum protection to the privacy interests of both employees and program participants infected with a deadly communicable disease. An employee's medical records are personal and confidential and will not be publicly disclosed without the individual's written consent. Additionally, the policy empowers staff to discipline and even dismiss employees who engage in the spread of rumors about potentially infected employees or program participants. Caution must guide the actions of staff in enforcing this provision however, given the threat of claims by employees disciplined or terminated for a proper exercise of their First Amendment rights. All park districts adopting a provision similar to the one in the model policy should consult with their local counsel before undertaking disciplinary action under this provision.

District supervisory personnel are encouraged to participate in seminars and other awareness-raising activities relative to deadly communicable diseases. They are responsible for passing along the information received from training to their employees and others in charge of programs. All of the information contributing to a greater understanding of communicable diseases and increasing the ability to employees and program participants. The model policy obligates administrators to acquire and disseminate as much information as possible on the nature and spread of the disease.

As mentioned above, the policy creates a review committee with membership consisting of one park commissioner, a supervisor, a representative of the DuPage County Health Department or other medically informed person designated by the health department, and the Park District's legal representative. This board is charged with the responsibility of investigating cases of deadly communicable diseases and taking action consistent with policy. The committee is responsible for determining if an employee's medical condition substantially interferes with his or her job performance. The employee is given an opportunity to participate in the activities of the review board and is further given every reasonable opportunity to be heard on issues relevant to the committee's determinations. Final action is to be taken by the Board of Park Commissioners on any employee or program participant.

Wheaton Park District's board members realized the benefit of having their policy in effect prior to confronting an actual case. With the model policy, the Park District now has the opportunity to react to a deadly communicable disease situation by applying procedures prepared in advance of the chaos and controversy of the moment. The action authorized by the policy are grounded in the principles set forth in recent AIDS litigation and applicable state and federal statutes.

The cases we evaluated in preparing the policy include the recent Illinois case Doe v. Dolton Elementary School District #148, 694 F Supp. 440 (N.D. Ill. 1988). In Dolton, a twelve year old student diagnosed with AIDS was excluded from classes and extracurricular activities. The case was brought under the Federal Rehabilitation Act of 1973, which prohibits federal aid recipients from discriminating against the handicapped. Courts have held that AIDS victims can establish themselves as handicapped under this Act, and similar claims might be available under the Illinois Human Rights Act, against all employers, public and private. See, e.g., School Board of Nassau County v. Arline, 480 U.S. 273, 107 S. Ct. 1123 94 L. Ed. 2d 307 (1987) and Chalk v. U.S. District Court, Central Division of California, 840 F. Supp., 701 (9th Circ.

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1988). In Dolton, the student sought a preliminary injunction against the school, and the court concluded that, unless the student posed a "significant risk" of infecting others, he or she is qualified to attend school.

The Dolton court expert medical testimony from three doctors who all agreed that those infected with the HIV virus do not present a hazard to others in the school environment, per se. In addition, the medical findings of the U.S. Surgeon General, cited in Dolton, should serve to further the rights of the infected individual in future instances:

There is no known risk of non-sexual infection in most situations we encounter in our daily lives. We know that family members living with individuals who have the AIDs virus do not become infected except through sexual contact. There is no evidence of transmission (spread) of the AIDS virus by everyday contact even though these family members shared food, towels, cups, razors, even tooth brushes and kissed each other.

With regard to the classroom in particular, the Surgeon General found:

None of the identified cases of AIDS in the United States are known or suspected to have been transmitted from one child to another in school, daycare or foster care settings. Transmission would necessitate exposure of open cuts to the blood or other body fluids of the infected child, a highly unlikely occurrence. Even then, routine safety procedures for handling blood or other body fluids . . . would be effective in preventing transmission from children with AIDS to other children in school .... Casual social contact between children and persons infected with the AIDS virus is not dangerous.

U.S. Public Health Service, Surgeon General's Report on Acquried Immune Deficiency Syndrome at 13, 23-24 (1986).

The Dolton court granted the preliminary injunction, allowing the student to continue attending classes; and importantly to Illinois park districts, it required that the student be allowed to participate in extra-curricular activities. The school's faculty and staff were to be notified of the student's identity provided that the identity was kept strictly confidential, and the court required school district officials to inform and educate the faculty and staff on the risk of AIDs and the HIV virus.

Recent Illinois legislation amending the criminal code, ch. 38, Sec. 12-7.2 (Ill. Rev. Stat. 1987) now makes it a felony to knowingly interfere with the right of any child who is or is believed to be afflicted with a chronic infectious disease to attend or participate in the activities of an elementary or secondary school in this state: . . . ." There is an exception to this prohibition for individuals whose conduct "with regard to the right of a child to attend an Illinois school" is within the scope of his or her professional duties, but no other exceptions apply. Presumably the Act applies to anyone including educational professionals outisde the scope of their professional duties.

Interference under the Act includes: 1) actual or threatened physical harm to the child or the child's family; 2) impeding or obstructing the child's right to come and go or move freely at school facilities or activities; and 3) exposure or threatened exposure to public ridicule.

Although this Act is limited to the rights of children to participate in educational activities, Illinois park districts should be cognizant of the legislature's intent to protect infected children, destigmatize the disease and to reduce unwarranted anxiety about its victims. The park district AIDS policy encompasses these protective principles and provides a basis for park district officials to limit employment or participation, within the narrowing scope of applicable law.

Given the current state of medical knowledge and legal pronouncements, a policy which too easily authorizes exclusion is subject to a successful challenge. Hearings and fair procedures to evaluate all of the evidence which can be gathered on a specific situation, must be part of the process a park district employs prior to authorizing restrictions or exclusion of employees or program participants.

No park district would wish for the difficult choices and problems posed by the AIDS employee or program participant. But being prepared to confront the problems is a prudent course. The Wheaton policy protects the interests of all of the interested and affected groups. It further provides protection and confidentiality to infected or potentially infected individuals and attempts to provide adequate protection for all residents. Although it must be regularly reviewed and updated, it provides the park district board and staff a meaningful starting point for effectively managing a difficult and unhappy situation.

The Wheaton Park District is to be commended for their foresight and willingness to prepare for responding to a difficult situation. Because of the importance of policies to handle such occasions, the DuPage County Health Department supervisor has offered to assist other park districts wishing to establish a similar policy.

BIOGRAPHY OF AUTHORS

The three authors are all partners in the Naperville law firm of JAMES, BROOKS, ADAMS AND TARULIS, the successor firm to FAWELL, JAMES AND BROOKS, which occasioned by the withdrawal of partner HARRIS W. FAWELL due to his U.S. congressional responsibilities. The firm currently represents twelve park districts, as well as other local government units in the west and southwest areas of suburban Chicago.

GERALD J. BROOKS joined the firm in 1973, having previously served as in-house city attorney for the City of Wheaton. Complementing his practice in primarily municipal/park/school law, he has attended and spoken at numerous IAPD seminars. He also served as an elected school board member for fourteen years.

STEVEN B. ADAMS joined the firm in 1984. He also concentrates his practice in municipal and real estate law and has also been a speaker at IAPD seminars. He has contributed to the Local Court Rules of the 18th Judicial Circuit and is an active member of the Local Governmental Law Committee of the DuPage Bar Association.

RICHARD J. TARULIS, the newest partner in the firm, is the third member of the firm's four-attorney municipal division. He served for eight years in the U.S. Marine Corps prior to earning his law degree and joining the firm in 1987.