Untitled Texas Attorney General Opinion

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