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ATKINSON & ATKINSON

1603 ORRINGTON AVENUE
SUITE 2080
EVANSTON, ILLINOIS 60201

February 3, 1994

Mr. John Wodatch, Director
Office of the Americans with Disabilities Act
Civil Rights Division
US Department of Justice
Washington, DC 20530

RE: Americans with Disabilities Act

Dear Mr. Wodatch:

This law firm represents the National Association of Boards
of Pharmacy ("NABP" or "Association") which hereby formerly
requests a letter of opinion or letter ruling from the civil Rights
Division of the U.S. Department of Justice with regard to the
Americans with Disabilities Act.

NABP was established in 1904 by the state boards of pharmacy to
serve as a mechanism for sharing information and for the purpose
of establishing licensure transfer (interstate recognition) through
the development and implementation of uniform licensure
requirements. NABP is a not-for-profit Kentucky corporation
recognized by the Internal Revenue Service as an organization
exempt from taxation under Section 501(c) (3) of the Internal
Revenue Code. Its members include the boards of pharmacy of all of
the states of the United States, the District of Columbia, Puerto
Rico, eight (8) of the provinces of Canada, and two (2) of the
states of Australia.

The regulation of the pharmacy profession is statutorily
vested in the boards of pharmacy or relevant state departments of
professional regulation (licensing agency) of each jurisdiction.
These licensing agencies are granted the ultimate authority in
decision making with regard to the licensure of pharmacists by the
respective state legislation, generally referred to as the Pharmacy
Practice Act. As a prerequisite to licensure, most practice acts
require graduation from an accredited school, completion of an
internship, successful completion of a licensure examination,
completion of an application form and payment of applicable fees.
Statutorily, the licensing agency is responsible for, and cannot
delegate, its authority to issue or deny a license to an applicant.

01-03145

Mr. John Wodatch, Director
Office of the Americans with Disabilities Act
Civil Rights Division
February 3, 1994
Page 2

These licensing agencies, as mandated by statute, utilize a
licensure examination which tests for minimum competencies to
safely practice pharmacy. The complex process of developing a
psychometrically sound and valid examination requires specialized
skills and is extremely costly. State boards do not have the
skilled personnel nor funds to prepare such an examination on an
individual basis. Accordingly, the states have elected to utilize
a national standardized examination to enhance initial licensure
and to foster the ability of pharmacists to transfer from
Jurisdiction to jurisdiction based on uniform standards.

NABP developed a uniform licensing examination referred to as
the National Association of Boards of Pharmacy Licensing
Examination (NABPLEX). The NABPLEX was developed through
interaction with practitioners, academia, and regulators, to
produce a valid and defensible test in accordance with contemporary
testing standards. As an aid to government, NABP utilizes its
resources and access to data to produce a valid examination which
is standardized and which is sold to and administered by each board
on uniform dates. NABPLEX has been utilized since the early
1970's. Currently, all states (with the exception of California),
the District of Columbia, and Puerto Rico require successful
completion of the NABPLEX as a prerequisite to licensure as a
pharmacist. NABPLEX is copyrighted and owned by NABP.

The states, through their regulatory departments or boards of
pharmacy, contract with NABP to purchase the NABPLEX which they
utilize in the licensure process. The board or the state designated
testing service administers the NABPLEX. NABP does not administer
the NABPLEX in any jurisdiction.

The rights and obligations between NABP and the licensing
authority are contractually set forth in an agreement duly executed
between the parties. NABP does not offer its examination directly
to candidates for licensure. It contracts with and provides the
state board of pharmacy with the examination and related scoring
and statistical services. The state board offers the exam to
candidates for licensure and administers the exam under conditions
agreed to by NABP and the states to assure the continued validity
and security of the NABPLEX.

Candidates apply for licensure, sit for the examination, and
provide substantiation of compliance with the statutory
requirements for licensure with the board of pharmacy. NABP has
no direct nor indirect contact with candidates for licensure with
regard to the application for licensure nor the administration of
the NABPLEX.

01-03146

Mr. John Wodatch, Director
Office of the Americans with Disabilities Act
Civil Rights Division
February 3, 1994
Page 3

In light of the Americans with Disabilities Act, issues have
been raised over the entity legally and fiscally responsible for
providing reasonable accommodations to disabled candidates who
apply through the states to sit for the NABPLEX. Specifically,
NABP respectfully requests the opinion of the Department of Justice
as to the entity responsible for bearing the costs of
accommodations where the state licensing agency (which administers
the NABPLEX) is requested by a disabled candidate for licensure to
provide a reasonable accommodations) related to NABPLEX. The state
agency consults with NABP to determine whether an accommodation
compromises the security or validity of the NABPLEX.

It is NABP's position that Title II of the ADA (which covers
public entities) is applicable and therefore, the legal and fiscal
responsibility to provide reasonable accommodations rests with the
state licensing authority which administers the licensure process,
including the administration of the NABPLEX.

Since, (i) under law, the authority to issue pharmacy license
cannot be delegated by the state licensing authority to the NABP
or any outside organization, (ii) NABP cannot offer its
examinations directly to candidates for licensure and (iii) NABPLEX
is administered by the state authority, NABP has concluded that
Title III (which covers private entities) is not applicable under
the facts as set forth in this letter.

NABP respectfully requests verification from the Department
of Justice of these conclusions. Should you have any questions or
need any further data, please do not hesitate to contact us. We
look forward to your prompt reply.

Very truly yours,

Dale T. Atkinson
FOR THE FIRM

DJA:cd

cc: U.S. Dept of Justice
Chicago, Illinois

01-03147