                                             May 17, 1999



Mr. John R. Speed, P.E.                              Opinion No. JC-0050
Executive Director
Texas Board of Professional    Engineers             Re: Whether       the federal Americans      with
P.O. Box 18329                                       Disabilities Act precludes the Texas Board of
Austin. Texas 78760-8329                             Professional    Engineers    from requiring    an
                                                     examinee,     who seeks modifications      to an
                                                     examination, to submit proof of disability, and
                                                     related questions    (RQ-1179)



Dear Mr. Speed:

          You ask about the effect of the federal Americans with Disabilities Act, 42 U.S.C.A.
$5 12101-12213 (West 1995 & Supp. 1998) (the “ADA”), on examinations administered by the
Texas Board of Professional Engineers (the “Board”). You explain that the Board administers
national engineering examinations twice a year at about twenty locations throughout the state.
Examinees claiming “to have physical disabilities, learning disabilities or other disabling conditions”
have asked for special accommodations,         including “scribes, readers, extra time for learning
disabilities, interpreters, special chairs or work areas, and general building accessibility.” Letter
from John R. Speed, P.E., Executive Director, Texas Board OfProfessional Engineers, to Honorable
Dan Morales, Texas Attorney General (Aug. 10, 1998) ( on file with Opinion Committee)
Fereinafler Speed letter of g/10/98 1. You ask a number of questions about the Board’s authority to
to evaluate these requests and its duty to accommodate disabilities under the ADA. As your
questions focus on the ADA rather than state law, we do not address whether state provisions
regarding testing and disabilities apply to the Board. See, e.g., TEX. HUM. RES. CODE ANN. $5
 121.010, ,011 (Vernon Supp. 1999). We note, however, that the ADA provides that it is not to “be
construed to invalidate or limit the remedies, rights, and procedures of any . law of any State or
political subdivision of any State or jurisdiction that provides greater or equal protection for the
rights of individuals with disabilities than are afforded by [the ADA].” 42 U.S.C.A. 5 12201(b)
(West 1995).

          Before turning to your specific questions, we begin with a brief discussion of the statutory
and regulatory framework. Title I of the ADA prohibits employment discrimination on the basis of
disability,seeid.   $5 1211 I-121 17; title Bprohibitsdiscriminationonthe       basis ofdisability by public
entities, see id. 5s 12131-12165; and title III prohibits discrimination on the basis of disability in
places of public accommodation,           see id. $3 12181-12189.         The federal Equal Employment
Mr. John R. Speed, P.E. - Page 2                                   (JC-0050)




Opportunity Commission has promulgated rules enforcing title I ofthe ADA, see 29 C.F.R. pt. 1630
(199X), and theunited States Department ofJustice (“Department ofJustice”) has promulgated rules
implementing titles II and III, see 2X C.F.R. pts. 35 (implementing title II, subchapter A) & 36
(199X), and has published extensive commentary to those rules, see 2X C.F.R. pt. 35, App. A to pt.
35 (198X) (Section-by-Section    Analysis) [hereinafter App. A], pt. 36, App. B. to pt. 36 (1998)
(Section-by-Section   Analysis and Response to Comments) [hereinafter App. B].

          The Board, a state agency, is a “public entity”’ subject to the ADA, particularly title II, and
the regulations promulgated under title II, 2X C.F.R. pt. 35. Section 12132, the cornerstone oftitle
II, states in pertinent part: “[N]o qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits ofthe services, programs, or
activities ofapublic entity.” 42 U.S.C.A. 5 12132 (West 1995). A Department OfJusticeregulation
implementing     section 12132 specifically provides that a “public entity may not administer a
licensing or certification program in a manner that subjects qualified individuals with disabilities to
discrimination on the basis of disability.” 2X C.F.R. 5 35.130(b)(6) (199X).

          In addition, section 12189, a title III provision, states in pertinent part: “Any person
that offers examinations           related to applications, licensing, certification, or credentialing
for      professional     purposes shall offer such examinations      in a place and manner accessible
to persons with disabilities or offer alternative accessible arrangements for such individuals.” 42
U.S.C.A. $ 12189 (West 1995) (emphasis added). Title III generally applies to private, not public,
entities. See Bloom v. Bexar County, Tex., 130 F.3d 722 (5th Cir. 1997) (title III does not apply to
public entities, including state and local government).        The ADA defines the term “person,”
however, to include governments and governmental agencies. 42 U.S.C.A. 4 12 11 l(7) (West 1995)
(“person” defined as having same meaning given term in Civil Rights Act of 1964); see also id.
 5 2000e(a) (West 1994) (Civil Rights Act of 1964 definition of“person” includes governments and
 governmental agencies). For this reason, courts have concluded that section 121 X9 applies to public
 entities that administer examinations for licensing and credentialing purposes, such as state boards
 of law examiners. See, e.g., Ware V. Wyoming Bd. ofLaw Exam ‘rs, 973 F. Supp. 1339, 1353 (D.
 Wyo. 1997), uff’d, 161 F.3d 19, (10th Cir. 199X); Bartlett v. New YorkState Bd. ofLaw Exam ‘rs,
 970F. Supp. 1094,112X-29 (S.D.N.Y. 1997),aff’d inpart, 156 F.3d 321(2dCir. 199X),petitionfor
 cert.fZed,67U.S.L.W.      352X(U.S. Feb. 8,1999)(No. 9X-1285);Argenv. New YorkState Bd. ofLaw
 Exam ‘rs, 860 F. Supp. X4,87 (W.D.N.Y. 1994); Pazer v. New York State Bd. of Law Exam ‘rs, 849
 F. Supp. 284, 2X6-87 (S.D.N.Y. 1994); D’Amico v. New York State Bd. of Law Exam’rs, 813 F.
 Supp. 217, 221 (W.D.N.Y. 1993); Florida Bd. ofBar Exam’rs re S.G., 707 So.2d 323, 325 (Fla.
 199X); In re Petition ofRubenstein, 637 A.2d 1131, 1136-37 (Del. 1994).




         ‘See 42 U.S.C.A.   5 12131(l)   (West 1995) (defining   “public entity”).
Mr. John R. Speed, P.E. - Page 3                        (JC-0050)




        The Department of Justice regulation implementing       section    12189, 28 C.F.R. § 36.309,
includes the following provisions regarding examinations:

                   (a) General.   Any private entity that offers examinations or
              courses     related to applications,    licensing,  certification,    or
              credentialing for secondary orpostsecondary education, professional,
              or trade purposes shall offer such examinations or courses in a place
              and manner accessible to persons with disabilities or offer alternative
              accessible arrangements for such individuals.

                  (b) Examinations.

                       (1) Any private entity offering an examination     covered by this
                  section must assure that-

                      (i) The examination is selected and administered so as to best
                  ensure that, when the examination        is administered     to an
                  individual with a disability that impairs sensory, manual, or
                  speaking skills, the examination results accurately reflect the
                  individual’s aptitude or achievement level or whatever other
                  factor the examination purports to measure, rather than reflecting
                  the individual’s impaired sensory, manual, or speaking skills
                  (except where those skills are the factors that the examination
                  purports to measure);

                      (ii) An examination that is designed for individuals with
                  impaired sensory, manual, or speaking skills is offered at equally
                  convenient locations, as often, and in as timely a manner as are
                  other examinations;   and

                       (iii) The examination is administered in facilities that are
                   accessible to individuals with disabilities or alternative accessible
                   arrangements are made.

                       (2) Required modifications to an examination may include
                   changes in the length of time permitted for completion of the
                   examination    and adaptation of the manner in which the
                   examination is given,

                        (3) A private entity offering an examination covered by this
                   section shall provide appropriate auxiliary aids for persons with
                   impaired sensory, manual, or speaking skills, unless that private
                   entity can demonstrate that offering a particular auxiliary aid
Mr. John R. Speed, P.E. - Page 4                                   (JC-0050)




                       would fundamentally      alter the measurement of the skills or
                       knowledge the examination is intended to test or would result in
                       an undue burden. Auxiliary aids and services required by this
                       section may include taped examinations, interpreters or other
                       effective methods of making orally delivered materials available
                       to individuals with hearing impairments, Brailled or large print
                       examinations    and answer sheets or qualified readers for
                       individuals with visual impairments or learning disabilities,
                       transcribers for individuals with manual impairments, and other
                       similar services and actions.

                            (4) Alternative accessible arrangements may include, for
                        example, provision of an examination at an individual’s home
                        with a proctor if accessible facilities or equipment       are
                        unavailable. Alternative arrangements must provide comparable
                        conditions to those provided for nondisabled individuals.

2X C.F.R. § 36.309(a), (b) (199X). Although its express language refers to “aprivate entity,” courts
have applied this regulation to public entities that administer examinations for licensing and
credentialing purposes, such as state boards of law examiners, because section 12189, the ADA
provision the regulation implements, applies to governments and government agencies.*

         We now turn to your specific questions, beginning with those about the Board’s authority
to evaluate requests for accommodations.     First, we consider whether the Board may require a
prospective examinee to provide proof of a disability and, if so, what proof would be reasonable.
The Department ofJustice commentary to the title III examinationrule, 2X C.F.R. $j36.309, provides
as follows:

                       Examiners may require evidence that an applicant is entitled to
                   modifications or aids as required by this section, but requests for
                   documentation must be reasonable and must be limited to the need for
                   the modification or aid requested. Appropriate documentation might
                   include a letter from a physician or other professional, or evidence of
                   a prior diagnosis or accommodation, such as eligibility for a special




            *See cases cited supra page 2. Interestingly, the commentary to the federal regulations suggests that title II
 rather than title III governs public-entity examiners. See App. A, supra, at 446 (analysis of 5 35.130). We defer to the
 judgment of the courts that have considered the matter and look to the title III examination regulation for guidance in
  answering your questions.     Should the United States Court of Appeals for the Fifth Circuit conclude that the title III
  examination regulation does not apply to public-entity examiners, we believe that the duties of a public-entity examiner
  to accommodate      examinees’ disabilities under title II would be much the same, if not identical.        See 28 C.F.R.
  3 35.130(b)(6) (1998).
Mr. John R. Speed, P.E. - Page 5                                   (JC-0050)




                  education program. The applicant may be required to bear the cost
                  of providing for such documentation.

App. B, supra, at 624 (analysis of § 36.309). Clearly, the federal rules permit the Board to require
an examinee to provide documentation supporting a request for special accommodations.

        Furthermore, case law suggests that the Board may seek additional information in certain
circumstances.   Relying on the commentary quoted above, a court recently rejected a challenge to
a state board of law examiners rule requiring applicants to authorize the release of medical and
educational records pertinent to requests for accommodation:       “The provisions of [the rule]
allow the Board limited access to information necessary to the decision it needs to make-whether
the requested accommodation is reasonable.” Ware, 973 F. Supp. at 1355.’ The court also rejected
the plaintiffs contention that her treating physician’s certification alone established her right to
accommodation and precluded the board from contacting her physician for additional information:

                  This is not the law. The law demands that the Board tailor
                  accommodation    to each disabled applicant’s specific needs. The
                  Board cannot fulfill this requirement if it is prohibited from
                  explaining the standard testing procedure to the professional who
                  must make a recommendation regarding how that procedure must be
                  changed to accommodate a specific individual’s disability.

Id. at 1357. In sum, based on the foregoing, we believe that the Board may require initial
documentation    supporting an examinee’s request for special accommodations     and may seek
additional supporting information ifnecessary. The documentation and information requested from
examinees must be limited to the need for the modification or aid requested.

         With respect to evaluating requests, you also ask whether the Board may “seek a second
opinion regarding such claims and use such opinion to deny or allow access to special
accommodations.”      Speed letter of g/10/98. While the Board may agree to an accommodation based
solely on information provided by the examinee, the ADA does not prohibit the Board from seeking
a second opinion regarding a request. Judicial decisions in this area are instructive. Courts will not
necessarily defer to the judgment of a board regarding the merits of a request for special
accommodations.      See Bartlett, 156 F.3d at 327 (trial court did not err in refusing to defer to board
of law examiners’ determination that examinee not disabled because “[tlhe Board has no expertise
in assessing learning disabilities”). The New York State Board ofLaw Examiners has employed an
expert to evaluate requests for special accommodations based on learning disabilities. While the



           ‘The Ware court described the board rule as follows: “[D]isclosure of records   [is] not mandatory. Instead,
they may be sought only ‘upon request’ by the Board. Further, the category of records         is strictly limited to those
authorities ‘who completed certificates submitted’ with the applicant’s request for accommodations.            Further,
the Board’s inquiry is strictly limited to records ‘reasonably necessary to determine whether an applicant’s condition
meets the criteria for a disability.“’ Ware, 973 F. Supp. at 1355.
Mr. John R. Speed, P.E. - Page 6                                    (JC-0050)




validity of the expert’s opinion has been at issue in several cases, courts have not questioned the
authority of the board to seek a second opinion. See, e.g., Bartlett, 970 F. Supp. at 1102; Argen, 860
F. Supp. at 86; Pazer, 849 F. Supp. at 285. Indeed, state boards that have rejected requests for
special accommodations        in examinations without supporting expert opinion to counter the
recommendations       of plaintiffs’ treating physicians have not fared well in subsequent legal
challenges. See, e.g., D’Amico, 813 F. Supp. at 223; In re Petition ofRubenstein, 637 A.2d at 1138.4
When faced with conflicting expert opinions offered by an examinee and the examiner regarding an
examinee’s alleged disability and requested accommodations, courts rely on the opinion ofthe expert
with the most credible credentials and methods. See, e.g., Bartlett, 970 F. Supp. at 1113 (rejecting
board of law examiners’ experts’ methodology for assessing extent of learning disability); Price v.
 The Nai’l Bd. ofMed. Exam ‘r-s,966 F. Supp. 419,422-24 (S.D.W.Va. 1997) (rejecting opinions of
 examinees’ experts and relying on opinions of examiners’ experts); Argen, 860 F. Supp. at 88
 (relying on testimony of board of law examiners’ experts based on superior academic credentials
 and expertise); Pazer, 849 F. Supp. at 287 (holding that board of law examiners entitled to rely on
 opinion of its expert that examinee did not have learning disability because expert’s testimony both
 credible and persuasive).

         As the case law demonstrates, your Board would be well advised to base any decision to deny
a request on expert opinion.5 While the Board’s reliance on expert opinion to deny a request will
not insulate the Board from suit or a finding of liability for denying the request, it would certainly
strengthen the Board’s position in litigation. Because a court will not necessarily defer to the
Board’s or its experts’ judgment regarding the merits of a request for special accommodations, the
Board, in selecting experts, might wish to consider the weight prospective experts’ opinions would
carry with a trier of fact. In sum, while the Board need not seek a second opinion to grant requests
for accommodation, the Board is not precluded from seeking a second opinion and would be well
advised to base any decision to deny a request on credible expert opinion.

          You suggest that the Board is especially concerned about the validity ofrequests for special
 accommodations for learning disabilities. In this regard, we note that federal regulations andjudicial
 decisions recognize learning disabilities as disabilities that may require accommodation         under
 the ADA. See 28 C.F.R. $5 35.104(l)(i)(B), 36.104(l)(ii) (1998); In re Petition ofRubensfein, 637
 A.2d at 1137 (“A learning disability             is a condition which the ADA recognizes should




           ‘We note, however, that a court will not necessarily defer to the opinion of the plaintiffs treating physician
 in this context. See Bartlett, 970 F. Supp. at 111920.

          The Board may rely on expert opinion in any number of ways. It might, for example, merely rely on its
 expert’s review of information submitted by the examinee. In some cases, it may be appropriate for the Board to ask
 an examinee to undergo a second evaluation, such as additional testing, by its expert. The Board may not require an
 examinee to undergo a second evaluation unless the required evaluation is necessary, reasonable, and limited to the need
 for the modification   or aid requested.   App. B, supra, at 614-15 (analysis of 5 36.309).
Mr. JohnR.     Speed, P.E. - Page 7                                 (JC-0050)




be accommodated.“);      see also authorities cited supra page 2.6 The Board must evaluate each
disability claim on its own merits. Ware, 973 F. Supp. at 1356; D ‘Amico, 813 F. Supp. at 221 (“The
ADA.       requires the Board to make ‘reasonable accommodations’ under the circumstances in light
of [each examinee’s] disability. An individual analysis must be made      on a case by case basis.“).
Whether a particular individual has a learning disability that rises to the level of a disability for
purposes of the ADA is a question of fact beyond the purview of an attorney general opinion. For
the same reason, this office is unable to determine whether a particular request for an
accommodation is reasonable. That determination rests with the Board and must be made on a case
by case basis. See id.

         Now we turn to your questions about the Board’s duty to make accommodations under the
ABA. First, you ask whether the Board has the “obligation to proactively ask all examinees if they
need any special accommodations.”      Speed letter of 8/10/98 (emphasis in original). A title II
regulation requires a public entity to

                   make available to applicants, participants,         and other interested
                   persons information regarding the provisions of this part and its
                   applicability to the services, programs, or activities of the public
                   entity, and make such information available to them in such manner
                   as the head of the entity finds necessary to apprise such persons of the
                   protections against discrimination assured them by the Act and this
                   Part.

28 C.F.R. $ 35.106 (1998). This regulation suggests that the Board make available to prospective
examinees information about their right under the ADA to seek special accommodations.               It does
not suggest, however, that the Board is required to ask each examinee on an individual basis whether
he or she requires a special accommodation.         A title II regulation prohibits public entities from
imposing eligibility criteria that would “screen out or tend to screen out” individuals with a
disability. See id. 8 35.130(b)(8) (prohibiting public entity from imposing or applying “eligibility
criteria that screen out or tend to screen out an individual with a disability or any class of individuals
with disabilities       unless such criteria can be shown to be necessary for the provision of the
service, program, or activity being offered.“). Were the Board to query each prospective examinee
about his or her disability status, the practice might be questioned on the basis of this regulation.

        You also ask, “If special accommodations are requested by the examinee, does the agency
or the examinee have the responsibility to suggest the actual details of the accommodations?”    The
commentary to the title III examination regulation states that an examiner may require examination
applicants to provide advance notice and appropriate documentation “of their disabilities and of any



           There is some dispute among federal district courts regarding the proper standard for determining whether a
 learning disability rises to the level of a “disability” in the examination context. See Barrten, 156 F.3d 321; Barrlett v.
 New York State Bd of Law Exam’rs, 2 F. Supp.2d 388 (S.D.N.Y. 1997) (denying defendants’ motion for
 reconsideration).
Mr. John R. Speed, P.E. - Page 8                          (JC-0050)




modifications or aids that would be required.” App. B, supra, at 615 (analysis of 5 36.309). This
suggests that the applicant bears the initial responsibility not only to establish that he or she suffers
from a disability but also to request and document the need for specific special accommodations.
The Board’s duty is to respond to specific requests. This is not to say, however, that the Board is
precluded from providing information about possible accommodations               or from working with
examinees to find mutually acceptable arrangements for accommodations.

         Your remaining questions about the Board’s duty to make accommodations concern costs.
Generally, the Board, as opposed to the examinee, must bear the cost of special accommodations.
The commentary to the title III examination regulation states that an entity administering an
examination “cannot charge the applicant for the cost of any modifications or auxiliary aids, such
as interpreters, provided for the examination.” Id. In addition, the general title II regulation provides
that a public entity may not place a surcharge on an individual with a disability to cover costs
associated with ADA compliance. See 28 C.F.R. 5 35.130(f) (1998). As discussed below, however,
the federal regulations indicate that a public entity administering an examination may be excused
 from providing at least some kinds of accommodations            that the entity can demonstrate are
prohibitively expensive.

         You express concern about the cost of special accommodations and about the effect special
accommodations may have on the security or integrity of an exam: “If special accommodation(s)
requested by the examinee is considered unreasonable because of cost, exam security, or exam
integrity, does the agency have the authority to deny the special accommodation(s)?”  Speed letter
of 8/10/98. While we are not aware of any case law specifically addressing your concerns in the
context of an examination administered by a public entity,’ the ADA regulations and commentary
provide general guidance.

         The general regulation implementing      title II provides that a public entity shall make
 “reasonable modifications    in policies, practices or procedures” when necessary to avoid
 discrimination on the basis of disability “unless the public entity can demonstrate that making the
 modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R.
 5 35.130(b)(7) (1998). The burden is on the public entity to demonstrate that the modifications
 “would fundamentally alter the nature of the service, program, or activity.” Id. This regulation does
 not provide a defense based on cost.

          The title II regulation regarding program accessibility in existing facilities requires a public
 entity to operate each service, program, or activity so that the service, program, or activity is “readily
 accessible” to individuals with disabilities. Id. 5 35.1 SO(a). This regulation also provides, however,
 that it does not require a public entity to take any action “that it can demonstrate would result in a
 fundamental alteration in the nature of a service, program, or activity or in undue financial and
 administrative burdens.” Id. 5 35.150(a)(3). Importantly, however, this regulation provides that the



          ‘But see discussion infia note 8.
Mr. John R. Speed, P.E. - Page 9                         (JC-0050)




public entity has the burden of proving that compliance would “result in such alteration or burdens.”
Id. In addition,

               [t]he decision that compliance would result in such alteration or
               burdens must be made by the head of a public entity or his or her
               designee after considering all resources available for use in funding
               and operation of the service, program, or activity, and must be
               accompanied by a written statement of the reasons for reaching that
               conclusion.   If an action would result in such an alteration or such
               burdens, a public entity shall take any other action that would not
               result in such an alteration or such burdens but would nevertheless
               ensure that individuals with disabilities receive the benefits or
               services provided by the public entity.

Id. In short, under title II, if the Board refuses a request for program accessibility in an existing
facility, the Board has the burden of proving that the requested special accommodation         would
fundamentally    alter the nature of the examination or would impose an undue financial or
administrative burden.

         The title III examination regulation provides a similar defense, at least with respect to
auxiliary aids. It requires an entity administering an examination to provide auxiliary aids, such as
taped examinations, interpreters, or transcribers, unless the entity can demonstrate “that offering a
particular auxiliary aid would fundamentally alter the measurement of the skills or knowledge the
examination is intended to test or would result in an undue burden.” Id. § 36.309(b)(3). Again, the
burden ofproving that the requested auxiliary aid would fundamentally alter the measurement ofthe
skills or knowledge the examination is intended to test or would result in an undue burden rests with
the entity administering the examination.

           Significantly, the commentary to the title III examination regulation indicates that the
fundamental alteration or undue burden defense is limited to the duty to provide auxiliary aids in
subsection (b)(3) and does not apply to the regulation’s other requirements in subsections (b)(l)(i),
(b)(l)(iii), (b)(2), and (b)(4), such as facility accessibility and examination modifications. See App.
B, supra, at 614 (analysis of $36.309) (“One commenter argued that similar limitations should apply
to all of the requirements of $ 36.309, but the Department did not consider this extension
appropriate.“). This suggests that an entity administering an examination may not r&use to make
these other kinds of accommodations          on any basis. By contrast, the general title II regulation
provides that a public entity is not required to alter a program if it can demonstrate that making the
modifications “would fundamentally alter the nature ofthe service, program, or activity,” 28 C.F.R.
4 35.130(b)(7) (1998), and the title II regulation on existing facilities does not require actions a
public entity can demonstrate would result in “a fundamental alteration in the nature of.           [the]
program           or in undue financial and administrative burdens, ” id. 5 35.150(a)(3). Given these
differences, the title II regulations and the title III examination regulation may conflict when applied
to a public entity that administers an examination and has received a request for accommodations
Mr. John R. Speed, P.E. - Page            10                        (JC-0050)




other than auxiliary aids. We are not aware of any judicial decision addressing this apparent
inconsistency,’ and we do not resolve it here. In sum, federal regulations clearly permit a public
entity that administers an examination to refuse to offer an auxiliaty aid if the entity can demonstrate
that offering the auxiliary aid would fundamentally alter themeasurement       ofthe skills or knowledge
the examination is intended to test or would result in an undue burden. The authority of a public
entity to refuse requests for other kinds of examination accommodations is less clear.

          Finally, you ask if the Board has “any obligation to seek unique solutions” when the cost of
a requested accommodation is “prohibitive.” Speed letter of 8/10/98. We will assume you ask about
an accommodation that an entity is authorized to refuse under the federal regulations on the basis
of cost. We are not sure what you mean by “unique solutions.” We believe, however, that the fact
that the Board can demonstrate that a particular accommodation is unduly burdensome does not
excuse it from making other accommodations that would not be unduly burdensome. An analogous
title II regulation provides that “[i]f an action would result in such an alteration or such burdens, a
public entity shall take any other action that would not result in such an alteration or such burdens
but would nevertheless ensure that individuals with disabilities receive the benefits or services
provided by the public entity.” 28 C.F.R. 5 35.150(a)(3) (1998). Again, the Board is not precluded
 from providing information about possible accommodations or from working with examinees to find
mutually acceptable arrangements for accommodations,           See discussion supva page 7 (regarding
 Board’s duty to suggest details of accommodations).




            The Supreme Court of Florida has suggested that the “fundamentally        alters” defense in subsection (b)(3) of
 the title III examination rule applies to test modifications as well as auxiliary aids. See Florida Ed. ofBar Exam ‘rs re
 S.G., 707 So.Zd 323,325 (Fla. 1998). This suggestion is contrary to the language of subsection (b)(3), which is limited
 to auxiliary aids, and the commentary to the regulation, in which the Department of Justice expressly declines to extend
 the defense to the regulation’s other requirements.     See App. B, supra, at 614 (analysis of 9 36.309) (“One commenter
 argued that similar limitations should apply to all requirements of $ 36.309 but the Department did not consider this
 extension appropriate.“).
Mr. John R. Speed, P.E. - Page 11                       (JC-0050)




                                       SUMMARY

              The federal Americans with Disabilities Act requires the Texas Board of
          Professional   Engineers,    which administers     a national   engineering
          examination,   to consider prospective    examinees’ requests for special
          accommodations.     The Board may require an examinee to provide advance
          notice and documentation     of the examinee’s disability and need for any
          accommodation     requested.   The examinee is responsible for requesting
          specific accommodations.     The Board may seek second opinions regarding
          such requests.

               Generally, the Board must bear the cost of special accommodations.
           Federal regulations permit a public entity that administers an examination to
           refuse to offer an auxiliary aid if the entity can demonstrate that offering the
           auxiliary aid would fundamentally alter the measurement of the skills or
           knowledge the examination is intended to test or would result in an undue
           burden. The authority of a public entity to refuse requests for other kinds of
           examination    accommodations      is less clear. The fact that a particular
           accommodation       is unduly burdensome         does not excuse an entity
           administering an examination from making other accommodations that would
           not be unduly burdensome.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

 Prepared by Mary R. Crouter
 Assistant Attorney General
