DJ 202-PL-762

JUN 20 1994

Dale J. Atkinson Atkinson & Atkinson 1603 Orrington Avenue Suite 2080 Evanston, Illinois 60201 Dear Mr. Atkinson: I am responding to your letter, on behalf of the National Association of Boards of Pharmacy (NABP), regarding the Americans with Disabilities Act (ADA). The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that have rights or responsibilities under the Act. Pursuant to that authority, this letter provides informal guidance to assist you in understanding the ADA. However, this technical assistance does not constitute a legal interpretation of the statute, and it is not binding on the Department. Your letter addresses the application of the ADA to the National Association of Boards of Pharmacy Licensing Examination (NABPLEX), which is developed and owned by NABP and licensed to and administered by State pharmacy licensing agencies. You have asked whether the NABP or the State licensing agencies are responsible under the ADA for providing reasonable accommodations to individuals with disabilities who take the NABPLEX. Title II of the ADA prohibits discrimination on the basis of disability in the programs, activities, and services of public (i.e., State and local government) entities. Title III requires private entities who offer examinations related to licensing to ensure that those examinations are accessible to individuals with disabilities.

The State licensing agencies that administer the NABPLEX are covered by title II. Title II provides that a public entity must not administer a licensing program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability. 28 C.F.R. 35.130(b)(6). In order to fulfill that obligation, a public entity administering a

cc: Records, Chrono, Wodatch, Blizard, Hill, FOIA, Friedlander n:\udd\hille\policylt\atkins.ltr 01-03142 -2licensing examination must take appropriate steps to ensure effective participation of individuals with disabilities. Such steps may include reasonable modification of policies, practices, and procedures, elimination of unnecessary eligibility criteria, and provision of auxiliary aids and services where necessary. 28 C.F.R. 35.130; 28 C.F.R. 35.160. Therefore, title II requires the State licensing agencies to ensure that the administration of the NABPLEX does not discriminate on the basis of disability. The fact that title II obligates the State licensing agencies to administer their licensing examination in a nondiscriminatory manner does not necessarily mean that NABP is exempt from obligations under the ADA. Under title III, any private entity that offers an examination related to licensing must ensure that the examination is selected and administered so that its results accurately reflect the aptitude or achievement of individuals with disabilities, rather than reflecting the disabilities. 28 C.F.R. 36-309. Therefore, to the extent that the administration of an examination related to licensing is within the control of a private entity, that private entity may be required to ensure accessibility to individuals with disabilities. In addition, title II prohibits covered entities from discriminating on the basis of disability through contractual arrangements. 28 C.F.R. 35.130(b)(1). Therefore, the State licensing agencies would be prohibited from contracting with NABP

to have NABP administer the test in a way that would not meet the requirements of title II. Further, title II prohibits covered entities from providing significant assistance to any organization that discriminates on the basis of disability in providing any service to beneficiaries of the covered entity. 28 C.F.R. 35.130(b)(1)(v). Therefore, to the extent the NABPLEX itself has the effect of excluding people because of their disabilities, the State licensing agencies may be prohibited by the ADA from dealing with NABP. In situations where the ADA imposes overlapping obligations on two or more entities, the ADA does not determine which entity must accept ultimate responsibility for meeting or failing to meet those obligations. Instead, both entities are considered to be fully legally responsible and either party, alone, may be held liable for a violation. The allocation of responsibility between the parties is a contractual matter to be resolved by the parties. The allocation of responsibility is binding only between the parties. 01-03143

-3For your further information, I am enclosing copies of the regulations implementing titles II and III. I hope that this information is helpful to you and that this letter fully responds to your inquiry. Sincerely,

John L. Wodatch Chief

Public Access Section Enclosures 01-03144