28 C.F.R. § 35.139
Direct threat
(a) This part does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.
(b) In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: 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 or the provision of auxiliary aids or services will mitigate the risk.
Notes of Decisions
Cited in 39
cases (21 in the last 5 years), 2012–2025 · leading case: Wright v. New York State Department of Corrections
Wright v. New York State Dep't of Corr., 831 F.3d 64 (2d Cir. 2016). “” 28 C.F.R. § 35.139 . Similarly, “[a] public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities[; h]ow-ever, [it] must ensure that its safety requirements are based on actual risks, not on mere speculation,…”
Richard Vos v. City of Newport Beach, 892 F.3d 1024 (9th Cir. 2018). “28 C.F.R. § 35.139 (a). Finally, the defendants insist that Title II of the ADA and the Rehabilitation Act do not apply because Vos’s behavior stemmed from his illegal drug use, not a mental illness.”
City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765 (2015). “" 28 CFR § 35.139 (a) (2014). Another regulation defines a "direct threat" as "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.”
Mia Bennett v. Hurley Med. Ctr., 86 F.4th 314 (6th Cir. 2023). “” 28 C.F.R. § 35.139 (b). Hurley could exclude Pistol if he constituted a legitimate threat to health and safety, but this determination must be “based on actual risks, not 6 The district court and the parties discuss several out-of-circuit district court cases, none of which…”
Brown v. Dep't of Pub. Saf. & Corr. Servs., 383 F. Supp. 3d 519 (D. Maryland 2019). “28 C.F.R. § 35.139 (b). In this case, there is evidence that RCI employees were concerned that Plaintiffs posed a risk to themselves and others when operating in an understaffed prison kitchen.”
Crowell v. Massachusetts Parole Bd., 74 N.E.3d 618 (Mass. 2017). “See 28 C.F.R. § 35.139 (2016). To the contrary, those who would pose a danger to society even with risk reduction programs should not be released on parole.”
Disability Rights New Jersey, Inc. v. Comm'r, New Jersey Dep't of Human Servs., 796 F.3d 293 (3rd Cir. 2015). “” 28 C.F.R. § 35.139 . States may also “impose legitimate safety requirements necessary for the safe operation of [their] services, programs, or activities” so long as such requirements “are based on actual risks, not on mere speculation, stereotypes, or generalizations about…”
Joseph Watley, Karin Hasemann v. Dep't of Child. & Families, 991 F.3d 418 (2d Cir. 2021). “(quoting 28 C.F.R. § 35.139 (a)). Because the ADA defines a direct 10 threat as “a significant risk to the health or safety of others that cannot be 11 eliminated by a modification of policies, practices, or procedures or by the 12 provision of auxiliary aids or services,” the…”
R.W. v. Bd. of Regents of Univ. Sys. of Georgia, 114 F. Supp. 3d 1260 (N.D. Ga. 2015). “In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain:…”
James Chadam v. Palo Alto Unified Sch. Dist., 666 F. App'x 615 (9th Cir. 2016). “” 28 C.F.R. § 35.139 . Here, the complaint does not allege that PAUSD made an individual assessment.”
Kelley v. Mayhew, 973 F. Supp. 2d 31 (D. Me. 2013). “” 28 C.F.R. § 35.139 (a). “The protection afforded by the ADA is characterized as a guarantee of ‘meaningful access’ to governmental benefits and programs, which broadly means that public entities must take reasonable steps to ensure that individuals with disabilities can take…”
Disability Rights New Jersey, Inc. v. Velez, 862 F. Supp. 2d 366 (D.N.J. 2012). “Regulations promulgated by the Attorney General further instruct that no public entity may directly or through contractual or other arrangements utilize criteria or methods of administration that have the effect of subjecting one to discrimination based on disability.”
— 28 C.F.R. § 35.139(B) — 1 case
Foster v. Henderson (S.D. Ohio 2023).
— 28 C.F.R. § 35.139(b) — 1 case
Dyous v. Mental Health & Addiction Servs. (D. Conn. 2024).
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