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shall report any convictions for motor vehicle offenses other than parking violations to the state that issued the commercial driver’s license, as well as to the employer, within 30 days.35 Diabetes-related incidents should be reported to the state licensing authority in the same manner as other potentially disqualifying events.

(8)

A number of States offer exemption, waiver, or grandfather programs for drivers with

ITDM. Other States exception/exemption.

do not allow drivers with ITDM to Would States that prohibit drivers with

operate without an ITDM from operating

CMVs continue to do so or would States adopt

Federal

standard?

How

many

drivers

with

commercially in these States?

If these States have

rules comparable with the new ITDM are currently operating any evidence as to whether ITDM

drivers operating CMVs are as diabetic drivers or non-diabetic

safe, safer, or drivers, FMCSA

less safe than non-insulin would like these States to

treated provide

such

evidence

or

identify

any

sources

where

FMCSA

may

obtain

such

evidence.

Also

please

describe

any

analysis

that

has

been

done

on

these

ITDM

drivers,

and

any

special oversight that States conduct.

Pursuant to the Americans with Disabilities Act36

and the Rehabilitation Act of 1973,37

a

state may no longer maintain a system of blanket exclusion of all drivers with insulin-treated diabetes mellitus. Such a system was only lawful in prior years because of the federal government’s ability to in essence “trump” federal anti-disability discrimination law in instances where another federal law or regulation conflicted with the anti-discrimination proscription.38 Federal provisions changed to an individual assessment system in 2003, therefore, states must either adopt FMCSA’s scheme or adopt another system for individual assessment that meets the standards established by federal anti-disability discrimination law.39

35

49 C.F.R. § 383.31.

36

42 U.S.C. § 12101-12213.

37

29 U.S.C. § 791-794.

38 See 29 C.F.R. §1630.15(e) (stating that “it may be a defense to a charge of discrimination under this part that a challenged action is required or necessitated by another Federal law or regulation, or that another Federal law or regulation prohibits an action (including the provision of a particular reasonable accommodation) that would otherwise be required by this part.”).

39 See, e.g., Kapche v. City of San Antonio, 304 F.3d 493 (5th Cir. 2002) (acknowledging that Sutton v. United Airlines, 527 U.S. 471 (1999) mandates individualized inquiries under the Americans with Disabilities Act and holding that “an individualized assessment of Kapche’s present ability to safely perform the essential functions

of an SAPD police officer is required.”). The court in Kapche and medicine that allowed individuals with insulin-treated

sensitive

jobs.

The

court

stated,

“we

briefly

note

that

also referenced the advances in diabetes science diabetes to safely drive and to perform safety- Kapche presented evidence of such medical

advancements as portable glucose monitors, routine hemoglobin testing, and improved insulin . . . Kapche also pointed to changes in various federal

improved insulin delivery systems, employment ‘protocols,’ which now

require persons with diabetes be considered on 392 F.3d 896, 903 (7th Cir. 2004) (stating “the

a case by case basis.” determination whether

Id. at 500. See also Branham v. Snow, a particular person with an impairment

is substantially limited must be individualized.”). The inquiry into each plaintiff’s condition remains the rule in

Branham court cases under the

made it clear Rehabilitation

that “an individualized Act and the ADA.” Id.

15

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