JUL 24 1997 Linda D. Kilb, Esq.

Disability Rights Education and Defense Fund 2212 Sixth Street Berkeley, California 94710 Dear Linda: I am responding to your letter dated November 29, 1995, regarding the requirements of title III of the Americans with Disabilities Act (ADA). Your letter asks whether title III requires pharmacies to cut pills in half at the request of customers with disabilities when half-doses are prescribed by such customers' physicians. I apologize for the delay in responding. 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. Title III of the ADA requires places of public accommodation, including pharmacies, to make reasonable modifications to their policies, practices, and procedures when such modifications are necessary in order to avoid discriminating on the basis of disability. 28 C.F.R. S 36.302. We have consulted with persons associated with the pharmacy industry, including the National Association of Boards of Pharmacy, who have informed us that pharmacists regularly cut pills in half to meet dosing requirements prescribed by doctors at the request of patients. In light of this information, we believe that cutting pills in half for persons with disabilities is a reasonable modification required by title III under the circumstances described in your letter. cc: Records, Chrono, Wodatch, Mobley, Breen, Blizard, FOIA mmobley\myfiles\pletters\f-kilb.wpd\sc. Young-Parran -2-

I hope this information is helpful to you. Sincerely, John L. Wodatch Chief Disability Rights Section

(handwritten) 705 DREDF Disability Rights Education and Defense Fund, Inc. Law, Public Policy, Training and Technical Assistance DISABILITY RIGHTS SECTION 95 DEC-6 PM 2:08 November 29, 1995 Via Certified Return Receipt Mail Mr. John Wodatch U. S. Department of Justice Civil Rights Division Disability Rights Section P.O. Box 66738 Washington, D.C. 20035-6738 Re: Request for Policy Finding Under ADA Title III Dear Mr. Wodatch: On behalf of the Disability Rights Education and Defense Fund, Inc. ("DREDF"), I write to request a policy finding from the U.S. Department of Justice ("DOJ") under Title III of the Americans with Disabilities Act ("ADA"). 42 U.S.C. SS 12181 et seq.. DREDF is a national law and policy center dedicated to advancing the civil rights of people with disabilities. Because we are nationally recognized for our interpretation of disability civil rights laws, including the ADA, we are often questioned about the practical implications of such statutes. Through such an inquiry, DREDF has become aware of an issue that affects many individuals with disabilities who must, per doctors' prescriptions, take half-doses of medication, but who, because of their disabilities, are themselves unable to cut their pills in half.

The issue is whether pharmacies are required to cut pills in half at the request of their customers with disabilities. DREDF requests that DOJ issue a policy finding on this matter. DREDF's position, supported by both the statute, DOJ's implementing regulations and DOJ's ADA Title III Technical Assistance Manual ("the DOJ Manual"), is that cutting medication is a reasonable modification of policy and/or practice, and that refusing to provide such a reasonable modification constitutes unlawful discrimination on the basis of disability. A pharmacy is a public accommodation subject to the provisions of Title III of the ADA. 42 U.S.C. S 12181(7)(F). Title III states that discrimination includes failing to make reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford goods and services to individuals with disabilities. 42 U.S.C. S 12182(b)(2)(A)(ii). Title III further provides that a public accommodation may only refuse to modify its policies, practices, or procedures if to do so would fundamentally alter the nature of such goods and services. 42 U.S.C. S 12182(b)(2)(A)(ii). ----------------------------------------------------------------------------A not-for-profit public benefit 1633 "Q" N.W., Suite 220 2212 Sixth Street corporation dedicated to the Washington, D.C. 20009 Berkeley, California 94710 Independent Living Movement (202) 986-0375 (510) 644-2555 and the Civil Rights FAX (202) 462-5624 800-466-4232 of Persons with Disabilities FAX (510) 841-8645 John Wodatch November 29, 1995 Page 2 By refusing to honor the request of an individual with a disability to have pills cut in half, apharmacy is refusing to reasonably modify its policies, practices, and/or procedures, and is effectively rendering its goods and services unavailable to certain individuals with disabilities. The ADA provides a pharmacy with only one reason to refuse a request for a reasonable modification -- that is, that to cut pills in half would "fundamentally alter" the nature of the goods and services it provides. It is doubtful that a pharmacy could support a claim that cutting pills to provide medication in half doses fundamentally alters the nature of its goods and services. The DOJ Manual's definition of "fundamentally alters" makes it especially unlikely that any pharmacy could prevail on this defense. The DOJ Manual provides that "[a] fundamental alteration is a modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered." DOJ Manual, III-4.3600 at 29. Cutting pills in half does not alter the essential nature of the medication, and is consistent with, rather than a

significant alteration of, the essential nature of the service of providing medication pursuant to a prescription for half doses. In addition to asserting the fundamental alteration defense, a pharmacy might argue that cutting pills in half for customers with disabilities is a "personal service" that the ADA's regulations deem a public accommodation is not required to provide. 28 C.F.R. S 36.306. The DOJ's comments to S 36.306 (appearing in its section-bysection analysis) suggest, however, that this assertion cannot excuse a refusal to provide this reasonable modification. The comments clearly state that minimal actions that may be required as modifications in policies, practices, or procedures, such as a kitchen's cutting up food into smaller pieces, are not services of a personal nature within the meaning of S 36.306. 56 Fed. Reg. 35571 (Friday, July 26, 1991). It follows, therefore, that cutting pills in half is the type of minimal action that a pharmacy is required to perform as a reasonable modification in policy, practice, or procedure, and not a personal service that a pharmacy is not required to perform pursuant to S 36.306. The above analysis brings DREDF to the conclusion that pharmacies should be required to cut pills in half at the request of individuals with disabilities. DREDF requests that DOJ issue a policy finding on this issue. Your response may be directed to my attention in DREDF's Berkeley office, 2212 Sixth Street, Berkeley, CA 94710, telephone (510) 644-2555, facsimile (510) 841-8645. Thank you for your attention to this matter. Sincerely, Linda D. Kilb, Esq. (clinic\kerry\pharmacy)