T.

6-13-94

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

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licensing 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 non-
discriminatory 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.

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For 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

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