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