The following is a list of legal recognitions and resources for electrosensitivity as a disability, and those which may assist with ADA accommodations requests.
(IN PROGRESS, WILL BE UPDATED FREQUENTLY):
Suggestions may be sent to director (at) electrosmogprevention.org.
1. List of Electrical Sensitivity Resources by EH Trust
2. Medical Billing Codes 2018-2019 for Exposure to Nonionizing Radiation – Initial, Subsequent, and Sequela (Late Effects)
ICO 10 Medical Codes for Exposure to nonionizing radiation – ICD-10-CM W90
“The ICD-10 code is the standard diagnostic tool for epidemiology, health management & clinical purposes. It is used for medical code lookups by physicians, nurses, researchers, health information managers, medical billing coders, health information technology workers, insurers & patient organizations to classify diseases and other health problems recorded on many types of health records, including death certificates. ICD 10 codes are also used by medical billers & payers for reimbursement purposes.”
W90.0 Exposure to radiofrequency is a non-billable ICD-10 code for Exposure to radiofrequency. It should not be used for HIPAA-covered transactions as a more specific code is available to choose from below.
The appropriate 7th character is to be added to each code from category W90
Use W90.0XXA for initial encounter
Use W90.0XXD for subsequent encounter
Use W90.0XXS for sequela [Note: sequela = late effect beyond initial treatment or acute period, a residual effect from injuries, present early, or even months or years later]
“W90.0XXS is a valid billable ICD-10 diagnosis code for Exposure to radiofrequency, sequela. It is found in the 2019 version of the ICD-10 Clinical Modification (CM) and can be used in all HIPAA-covered transactions from Oct 01, 2018 – Sep 30, 2019.
POA Exempt
W90.0XXS is exempt from POA reporting (Present On Admission).”
https://icd10coded.com/cm/W90.8XXS/
“ICD-10-CM Code W90.8XXS
Exposure to other nonionizing radiation, sequela [Note: sequela = late effect beyond initial treatment or acute period, a residual effect from injuries, present early, or even months or years later]
Billable Code
For 2019, W90.8XXS is a valid billable ICD-10 diagnosis code for Exposure to other nonionizing radiation, sequela. It is found in the 2019 version of the ICD-10 Clinical Modification (CM) and can be used in all HIPAA-covered transactions from Oct 01, 2018 – Sep 30, 2019.
POA Exempt
W90.8XXS is exempt from POA reporting (Present On Admission).
↓ See below for any exclusions, inclusions or special notations for W90.8XXS
External causes of morbidity codes describe the circumstance causing an injury, not the nature of the injury, and therefore should not be used as a principal diagnosis.
See also, External Cause of Injuries”
- W90.2XXS describes the circumstance causing an injury, not the nature of the injury.
Code History
2016 (effective 10/1/2015): New code (first year of non-draft ICD-10-CM)
2017 (effective 10/1/2016): No change
2018 (effective 10/1/2017): No change
2019 (effective 10/1/2018): No change
W90 Exposure to other nonionizing radiation
Excludes1
exposure to sunlight (X32)
The appropriate 7th character is to be added to each code from category W90
A – initial encounter
D – subsequent encounter
S – sequela
W90.0 Exposure to radiofrequency
W90.1 Exposure to infrared radiation
W90.2 Exposure to laser radiation
W90.8 Exposure to other nonionizing radiation
Excludes1
exposure to:
failure in dosage of radiation or temperature during surgical and medical care (Y63.2-Y63.5)
lightning (T75.0-)
natural cold (X31)
natural heat (X30)
natural radiation NOS (X39)
radiological procedure and radiotherapy (Y84.2)
sunlight (X32)
7th Character selection:
Use W90.8XXA for initial encounter
Use W90.8XXD for subsequent encounter
Use W90.8XXS for sequela
Coding structure:
ICD-10 code W90.8XXD is based on the following Tabular structure:
Chapter 20: External causes of morbidity
Section W85-W99: Exposure to electric current, radiation and extreme ambient air temperature and pressure
Category W90: Exposure to other nonionizing radiation
↑ Parent code:
W90.8 for Exposure to other nonionizing radiation
Search results for “nonionizing radiation”
About 8 items found relating to nonionizing radiation
Exposure to other nonionizing radiation
ICD-10-CM W90
https://icd10coded.com/cm/W90/
Exposure to other nonionizing radiation
ICD-10-CM W90.8
https://icd10coded.com/cm/W90.8/
Exposure to other nonionizing radiation, sequela
ICD-10-CM W90.8XXS
https://icd10coded.com/cm/W90.8XXS/
Exposure to other nonionizing radiation, subsequent encounter
ICD-10-CM W90.8XXD
https://icd10coded.com/cm/W90.8XXD/
Skin changes due to chronic exposure to nonionizing radiation
ICD-10-CM L57
https://icd10coded.com/cm/L57/
Exposure to other nonionizing radiation, initial encounter
ICD-10-CM W90.8XXA
https://icd10coded.com/cm/W90.8XXA/
Other skin changes due to chronic exposure to nonionizing radiation
ICD-10-CM L57.8
https://icd10coded.com/cm/L57.8/
Includes: Farmer’s skin, Sailor’s skin, Solar dermatitis
Index of diseases: Sailors’ skin
Skin changes due to chronic exposure to nonionizing radiation, unspecified
ICD-10-CM L57.9
https://icd10coded.com/cm/L57.9/
3. Electrosensitivity – Legal (Internationally recognized as functional impairment and/or disability)
4. Federal government:
- US Access Board recognized “electromagnetic sensitivity” (EMS) in Sept. 2002, with
- US Access Board Final Rule EMS 2002:
- “The Board recognizes that multiple chemical sensitivities and electromagnetic sensitivities may be considered disabilities under the ADA if they so severely impair the neurological, respiratory or other functions of an individual that it substantially limits one or more of the individual’s major life activities. The Board plans to closely examine the needs of this population, and undertake activities that address accessibility issues for these individuals.” (p. 3 of 90) (p. 56353 Federal Register /Vol. 67, No. 170/Tuesday, September 3, 2002/Rules and Regulations) (Access-Board Recreation pdf)
- Access Board Recommendations for Accommodations (for those with Chemical and/or Electromagnetic Sensitivities)
- “People with chemical and/or electromagnetic sensitivities can experience debilitating reactions from exposure to extremely low levels of common chemicals such as pesticides, cleaning products, fragrances, and remodeling activities, and from electromagnetic fields emitted by computers, cell phones, and other electrical equipment. The severity of sensitivities varies among people with chemical and/or electromagnetic sensitivities. Some people can enter certain buildings with minor accommodations while others may be so severely impacted that they are unable to enter these same spaces without debilitating reactions. Furthermore individual tolerances to specific exposures can vary greatly from one individual to the next. Meanwhile some exposures, such as the application of certain pesticides or extensive remodeling, for example, may be devastating to all chemically sensitive people and make a building or facility inaccessible for a substantial period of time.According to the Americans with Disabilities Act (ADA) and other disability laws, public and commercial buildings are required to provide reasonable accommodations for those disabled by chemical and/or electromagnetic sensitivities. These accommodations are best achieved on a case-by-case basis… (click for complete doc)”
- Access-Board Designated Cleaner Air Rooms
- “Cell Phones Turned Off
Protect those with electromagnetic sensitivities and others who may be adversely affected by electrical equipment.
Ability to turn off or unplug computers and other electrical equipment by occupant or staff
Protect those with electromagnetic sensitivities and others who may be adversely affected by computers and electrical equipment.
Ability to turn off flourescent lighting by occupant or staff, or the availability of operable window(s)
LEED (Leadership in Energy and Environmental Design) recommendations for new construction call for individual control of lighting.(3) Newer fluorescents that contain electronic rather than magnetic ballasts may be less problematic for some people with electromagnetic sensitivities because they do not produce a visible flicker or audible hum. They are also less prone to trigger seizures.”
- “Cell Phones Turned Off
- Operations and Maintenance
- “The operation and maintenance of commercial and public buildings can affect their accessibility for people with asthma and multiple chemical and/or electromagnetic sensitivities. The presence of many products or conditions involved in cleaning, maintaining, using, and operating buildings often contributes to poor indoor environmental quality and are access barriers for these individuals…The presence of electromagnetic fields from office equipment and other sources is a barrier for those with electromagnetic sensitivities. Noise and vibration can adversely affect some people with chemical and/or electromagnetic sensitivities and trigger seizures in susceptible individuals.”
- A further search on the US Access Board website for “electromagnetic sensitivities” or “electromagnetic” will yield many more documents proving US Access Board, under the ADA, recognizes this as a disability.
- US Access Board Final Rule EMS 2002:
- Job Accommodations Network (JAN) under grant from US Dept of Labor: “Job Accommodations for People With Electrical Sensitivity“, part of Effective Accommodations Practices (EAP) Series.
- Electrical Sensitivity https://askjan.org/disabilities/Electrical-Sensitivity.cfm
- Americans with Disabilities Act (www.ADA.gov) under US Dept of Justice, Civil Rights Division. (Resources and availability of consultation with an ADA Specialist (free); note ability to file complaint for violations.)
- ADA Titles II and III New Rule w/ revised language, effective Oct. 11, 2016. (see Federal Register 81 FR 53203) This amendment is intended “to clarify “that the term “disability” shall be interpreted broadly and explains that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations not to discriminate based on disability and that the question of whether an individual’s impairment is a disability under the ADA should not demand excessive analysis.” (pgs. 53203-53243, 28 CFR 35 & 28 CFR 36, CRT Docket No. 124, AG Order No. 3702-2016.)
- Fair Housing (and equivalent State Human Rights Commissions and Statutes)
- Section 504 of the Rehabilitation Act of 1973, as amended
Section 504 states that “‘no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under’ any program or activity that either receives Federal financial assistance …”
“Section 504 of the Rehabilitation Act of 1973 is a national law that protects qualified individuals from discrimination based on their disability. The nondiscrimination requirements of the law apply to employers and organizations that receive financial assistance from any Federal department or agency, including the U.S. Department of Health and Human Services (DHHS). These organizations and employers include many hospitals, nursing homes, mental health centers and human service programs.
Section 504 forbids organizations and employers from excluding or denying individuals with disabilities an equal opportunity to receive program benefits and services. It defines the rights of individuals with disabilities to participate in, and have access to, program benefits and services … A recipient of Federal financial assistance may not, on the basis of disability: … Deny access to programs, services, benefits or opportunities to participate as a result of physical barriers. ” (Office of Civil Rights Fact Sheet)
- Relevant Federal Laws
- Civil Rights Act of 1964 prohibits discrimination in employment (“Title VII”), public accommodations, and education and by programs which receive federal financial assistance. “To enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.”
- Fair Housing Act – actions by entities whose discriminatory practices make housing unavailable to persons because of their race, color, religion, sex, national origin, handicap, or familiar status (see above)
- Americans With Disabilities Act (see above)
- Conspiracy Against Rights 18 U.S.C. Section 241 prohibits conspiracies with a purpose to injure, threaten or intimidate one or more persons from the free exercise or enjoyment of a right secured or protected by the Constitution or laws of the United States.
- A Guide to Disability Rights Laws (US Dept of Justice, Civil Rights Division, Disability Rights Section, 2009)
5. State Anti-Discrimination Laws – look up the laws of your state that protect “disability discrimination” (do a search on that term and the name of your state)
Example: California Discrimination Laws regarding people with disabilities
This law requires “Full and equal accommodations, advantages, facilities, privileges or services in all business establishments.” [including public agencies and others]
- and the CA Disabled Persons Act
-
Civil Code – CIV
DIVISION 1. PERSONS [38 – 86]
( Heading of Division 1 amended by Stats. 1988, Ch. 160, Sec. 12. )
PART 2.5. BLIND AND OTHER PHYSICALLY DISABLED PERSONS [54 – 55.32]
( Part 2.5 added by Stats. 1968, Ch. 461. )
54.
(a) Individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities, and other public places.
(b) For purposes of this section:
(1) “Disability” means any mental or physical disability as defined in Section 12926 of the Government Code.
(2) “Medical condition” has the same meaning as defined in subdivision (h) of Section 12926 of the Government Code.
(c) A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section.
(Amended by Stats. 2000, Ch. 1049, Sec. 4. Effective January 1, 2001.)
54.1.
(a) (1) Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, medical facilities, including hospitals, clinics, and physicians’ offices, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances or modes of transportation (whether private, public, franchised, licensed, contracted, or otherwise provided), telephone facilities, adoption agencies, private schools, hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.
…
(3) “Full and equal access,” for purposes of this section in its application to transportation, means access that meets the standards of Titles II and III of the Americans with Disabilities Act of 1990 (Public Law 101-336) and federal regulations adopted pursuant thereto, except that, if the laws of this state prescribe higher standards, it shall mean access that meets those higher standards.
(b) (1) Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to all housing accommodations offered for rent, lease, or compensation in this state, subject to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.
- (m) “Physical disability” includes, but is not limited to, all of the following:(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine…”
-
54.3.
(a) Any person or persons, firm or corporation who denies or interferes with admittance to or enjoyment of the public facilities as specified in Sections 54 and 54.1 or otherwise interferes with the rights of an individual with a disability under Sections 54, 54.1 and 54.2 is liable for each offense for the actual damages and any amount as may be determined by a jury, or the court sitting without a jury, up to a maximum of three times the amount of actual damages but in no case less than one thousand dollars ($1,000), and attorney’s fees as may be determined by the court in addition thereto, suffered by any person denied any of the rights provided in Sections 54, 54.1, and 54.2. “Interfere,” for purposes of this section, includes, but is not limited to, preventing or causing the prevention of a guide dog, signal dog, or service dog from carrying out its functions in assisting a disabled person.
(b) Any person who claims to be aggrieved by an alleged unlawful practice in violation of Section 54, 54.1, or 54.2 may also file a verified complaint with the Department of Fair Employment and Housing pursuant to Section 12948 of the Government Code. The remedies in this section are nonexclusive and are in addition to any other remedy provided by law, including, but not limited to, any action for injunctive or other equitable relief available to the aggrieved party or brought in the name of the people of this state or of the United States…
(Amended by Stats. 1996, Ch. 498, Sec. 2.3. Effective January 1, 1997.)”
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Filing a complaint (State of CA) (see bottom of page)
If you have a disability and feel you have been harassed or discriminated against by an employer, housing provider or place of business, you can file a discrimination complaint. Contact DFEH within one year of the last incident and then fill out a form titled “pre-complaint inquiry.”
That sets in motion a series of legally required steps that DFEH must carefully follow. It’s important to know that DFEH doesn’t take sides when a complaint is filed. We investigate the facts and encourage parties to resolve the dispute in appropriate cases. DFEH considers taking legal action if evidence supports a finding of discrimination and the dispute is not resolved.
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6. Case law:
A municipality may attempt to claim that (1) electrosensitivity doesn’t exist, (2) that the FCC is the only jurisdiction allowed for remedies, (3) or that the Telecommunications Act of 1996, Section 704, supercedes the Americans with Disabilities Act, and that the municipality is thus not allowed, under federal law, to accommodate people on the basis of rf radiation exposure. The following case addresses those claims, in federal court, in 2o15-18, as follows:
- UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
CIVIL ACTION
NO. 4:15-CV-40116-TSH Plaintiffs v. The Fay School, Inc.Document 130 Filed 09/29/17 https://www.casewatch.net/civil/wifi/130_order_excluding_experts.pdf
The following are examples from this case which must be looked at in its entirety.
a. Jurisdiction: The Fay School case “sets the precedent that the court system is a legitimate venue for EHS sufferers to take their complaints about electromagnetic radiation. Specifically, [Attorney Markham] said Judge Hillman’s ruling in September that the family’s case wasn’t restricted to the jurisdiction of the Federal Communications Commission – the government authority on acceptable electromagnetic radiation levels ” (1)
“The safety or otherwise of RF radiation clearly does lie at the heart of the tasks assigned to FCC by Congress in 47 U.S.C. § 151, and it is likely true that FCC is better placed than this Court to determine the extent and nature of non-thermal effects of RF emissions to people generally, and to those who might be particularly sensitive to them. However, the FCC has previously decided that there was insufficient evidence to form a rule within their broad mandate to balance safety and commerce, and has, as yet, not updated that guidance.” (p. 17-18)
Fay case asserts that ADA Accommodation requests do not attack the FCC’s regulatory powers. “When a plaintiff seeks accommodation under the ADA for an unusual sensitivity to RF, they no more attack the FCC’s general regulation of RF than a person seeking an accommodation for a peanut allergy attacks or undermines the FDA’s general powers to regulate the peanut butter industry. ” (p. 16)
b. ADA is the legitimate remedy for EHS sufferers. “Given that the FCC has declined to regulate RFs with respect to biological (non-thermal) effects, especially any impact to those that might be hypersensitive, the ADA provides a legitimate remedy to any unusual harm that might be caused to a small subset of individuals exposed to something that is generally, genuinely, and legitimately accepted as safe for the wider population.” (p. 18)
c. EHS recognized: The Fay School case recognizes that FCC recognizes there are some individuals more sensitive to rf radiation. “The FCC thus considered risks to those with unusual sensitivity to electromagnetic radiation in the regulated spectrum and declined to craft regulation for such matters based on a lack of scientific consensus. Rather than precluding the possibility that a few individuals might be particularly sensitive to RF emissions below the established threshold, the FCC actually leaves the door open on this issue. (2) (p. 15-16).
“Court recognizes matter before the court is “mitigation of the impact of technology on a very small subset of the population that may have an unusual affliction mediated by RF radiation”. (p. 18)
“The Court accepts that it is possible that EHS is a genuine phenomenon and that, absent a technical determination to the contrary, or other clarification of the scope, nature, and impact of EHS in relation to regulated emissions by the FCC, that jurisdiction to consider this matter as a potential disability under the ADA is not preempted here. “ (p. 18)
“It suffices here for the Court to note that the FCC has acknowledged the possibility and controversy concerning EHS, and declined to regulate on that issue, while a qualified expert has testified that EHS is a real but rare condition.” (p. 18)
“As the Court provisionally accepts the expert opinion of Dr. Carpenter offered by the Plaintiff as to general causation, the Court thereby allows, for the sake of argument, that EHS is a genuine, albeit rare, affliction. Given that the FCC has declined to regulate RFs with respect to biological (non-thermal) effects, especially any impact to those that might be hypersensitive, the ADA provides a legitimate remedy to any unusual harm that might be caused to a small subset of individuals exposed to something that is generally, genuinely, and legitimately accepted as safe for the wider population.” (p. 18)
d. The ADA is not preempted by the Telecommunications Act of 1996 (TCA). (p. 16-17)
“Moreover, the TCA contains explicit language that narrows the reach of the statute. Section 414 provides that “nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies,” which indicates that Congress intended that the rest of Chapter 5 of Title 47 would not abrogate provisions of other federal statutes. “
e. Plaintiff’s experts’ testimonies on EHS were allowed for Dr. David Carpenter (M.D.) and Dr. Martha Herbert (M. D.).
Sources: https://www.courtlistener.com/docket/4276058/g-v-the-fay-school/
https://www.casewatch.net/civil/wifi/130_order_excluding_experts.pdf
https://www.casewatch.net/civil/wifi/157.dismissal.pdf
https://www.leagle.com/decision/infdco20180611771
https://www.telegram.com/news/20180612/despite-judgment-lawyer-believes-fay-school-case-is-win-for-wifi-safety-advocates
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