Comment on FR Doc # E9-22840

I would submit that the Commission should add an explicit reference to "psychotherapy" to both the proposed paragraph 1630.2(j)(3)(ii) and the proposed paragraph 1630.2(l)(2), to avoid any possible judicial application of the maxims "ejusdem generis" or "expressio unius est exclusio alterius" that would exclude psychotherapy as a "mitigating measure." Example 1 under section 1630.2(j)(3)(iii) clearly shows that "psychiatric medication" (for depression, in the example) is a "mitigating measure" the effect of which should not be considered if the condition treated would substantially limit a major life activity without medication. But what happens if the condition can be sufficiently controlled by long-term psychotherapy alone, without drugs? The answer to this question becomes particularly important under the branch of the third ("regarded as") prong of the definition of a disability addressed in the proposed paragraph 1630.2(l)(2). Under that paragraph, adverse actions taken "based on medication or any other mitigating measure for such an impairment" are prohibited. But the definition of a "mitigating measure" in the earlier section 1630.2(j)(3) pointedly does NOT include "psychotherapy" or anything like it. From this omission, a court could draw a distinction between psychiatric medication and psychotherapy, and permit discrimination based on psychotherapy. The attachment to this submission, though decided in a professional licensure setting that implicates Title II of the ADA rather than a Title I employment setting, presents a clear example of discrimination on the basis of psychotherapy undertaken for the control of a disability. This issue should be addressed in the final regulation.