28 CFR Part 35, Appendix B: 1991 ADA Title II Regulations Preamble and Section-by-Section Analysis

‘‘Qualified individual with a disability.’’ The definition of ‘‘qualified individual with a disability’’ is taken from section 201(2) of the Act, which is derived from the definition of ‘‘qualified handicapped person’’ in the Department of Health and Human Services’ regulation implementing section 504 (45 CFR § 84.3(k)). It combines the definition at 45 CFR 84.3(k)(1) for employment (‘‘a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question’’) with the definition for other services at 45 CFR 84.3(k)(4) (‘‘a handicapped person who meets the essential eligibility requirements for the receipt of such services’’).

Some commenters requested clarification of the term ‘‘essential eligibility requirements.’’ Because of the variety of situations in which an individual’s qualifications will be at issue, it is not possible to include more specific criteria in the definition. The ‘‘essential eligibility requirements’’ for participation in some activities covered under this part may be minimal. For example, most public entities provide information about their operations as a public service to anyone who requests it. In such situations, the only ‘‘eligibility requirement’’ for receipt of such information would be the request for it. Where such information is provided by telephone, even the ability to use a voice telephone is not an ‘‘essential eligibility requirement,’’ because § 35.161 requires a public entity to provide equally effective telecommunication systems for individuals with impaired hearing or speech.

For other activities, identification of the ‘‘essential eligibility requirements’’ may be more complex. Where questions of safety are involved, the principles established in § 36.208 of the Department’s regulation implementing title III of the ADA, to be codified at 28 CFR, part 36, will be applicable. That section implements section 302(b)(3) of the Act, which provides that a public accommodation is not required to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of the public accommodation, if that individual poses a direct threat to the health or safety of others.

A ‘‘direct threat’’ is a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services. In School Board of Nassau County v. Arline, 480 U.S. 273 (1987), the Supreme Court recognized that there is a need to balance the interests of people with disabilities against legitimate concerns for public safety. Although persons with disabilities are generally entitled to the protection of this part, a person who poses a significant risk to others will not be ‘‘qualified,’’ if reasonable modifications to the public entity’s policies, practices, or procedures will not eliminate that risk.

The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability. It must be based on an individualized assessment, based on reasonable judgment that relies on current medical evidence or on the best available objective evidence, to determine: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk. This is the test established by the Supreme Court in Arline. Such an inquiry is essential if the law is to achieve its goal of protecting disabled individuals from discrimination based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to legitimate concerns, such as the need to avoid exposing others to significant health and safety risks. Making this assessment will not usually require the services of a physician. Sources for medical knowledge include guidance from public health authorities, such as the U.S. Public Health Service, the Centers for Disease Control, and the National Institutes of Health, including the National Institute of Mental Health.