In this opinion, the Third Circuit considered a challenge to a policy prohibiting the placement of non-HIV-positive foster children in a home in which a family member has HIV unless the foster parents agree to the release of the family member’s diagnosis to the child’s parents and the child’s parents provide consent to the placement. The Does, who applied to foster a child after adopting Adam, a twelve-year-old boy living with AIDS, brought a claim under Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act when their application was denied on the basis of Adam’s HIV-status. The Third Circuit held that the Does were “qualified individuals” under the Acts because of their relationship with Adam, and that the policy facially discriminated against them because of Adam’s disability.
The court held that a material issue of fact existed as to whether the County could rely on the direct threat exception, which allows discrimination if a disability poses a direct threat to the health or safety of others. The Third Circuit held that the direct threat exception requires an individualized inquiry into the facts of the specific case, and cannot rely on generalizations about a disability. Applying this standard, the court held that a reasonable jury could find that the risk of another foster child contracting HIV from Adam was insufficient to fall within the direct threat exception. In doing so, the Court discussed HIV transmission, the different risks involved in different sexual activities, and the negligible risk of transmission through casual contact, rough play, or fighting.
The court rejected the County’s arguments that: (1) a less stringent standard should be used to determine a direct threat in situations concerning placement in a private home, as opposed to inclusion in a public sphere; (2) the policy was permissible because it was based on the principle of informed consent by providing parents of a foster child with additional information; and (3) the policy was justified by the limited time and resources available to it in making a foster care placement.
The court also held that the county officials were entitled to qualified immunity and that punitive damages were not available against county entities under the ADA or Rehabilitation Act.