C.F.R. » Title 28 » CHAPTER I—DEPARTMENT OF JUSTICE › PART 36—NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES › Subpart C—Specific Requirements

28 C.F.R. § 36.309

Examinations and courses

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(a) General. Any private entity that offers examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary 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.

(iv) Any request for documentation, if such documentation is required, is reasonable and limited to the need for the modification, accommodation, or auxiliary aid or service requested.

(v) When considering requests for modifications, accommodations, or auxiliary aids or services, the entity gives considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar testing situations, as well as such modifications, accommodations, or related aids and services provided in response to an Individualized Education Program (IEP) provided under the Individuals with Disabilities Education Act or a plan describing services provided pursuant to section 504 of the Rehabilitation Act of 1973, as amended (often referred to as a Section 504 Plan).

(vi) The entity responds in a timely manner to requests for modifications, accommodations, or aids to ensure equal opportunity for individuals with disabilities.

(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 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.

(c) Courses. (1) Any private entity that offers a course covered by this section must make such modifications to that course as are necessary to ensure that the place and manner in which the course is given are accessible to individuals with disabilities.

(2) Required modifications may include changes in the length of time permitted for the completion of the course, substitution of specific requirements, or adaptation of the manner in which the course is conducted or course materials are distributed.

(3) A private entity that offers a course covered by this section shall provide appropriate auxiliary aids and services for persons with impaired sensory, manual, or speaking skills, unless the private entity can demonstrate that offering a particular auxiliary aid or service would fundamentally alter the course or would result in an undue burden. Auxiliary aids and services required by this section may include taped texts, interpreters or other effective methods of making orally delivered materials available to individuals with hearing impairments, Brailled or large print texts or qualified readers for individuals with visual impairments and learning disabilities, classroom equipment adapted for use by individuals with manual impairments, and other similar services and actions.

(4) Courses must be administered in facilities that are accessible to individuals with disabilities or alternative accessible arrangements must be made.

(5) Alternative accessible arrangements may include, for example, provision of the course through videotape, cassettes, or prepared notes. Alternative arrangements must provide comparable conditions to those provided for nondisabled individuals.

[Order No. 1513-91, 56 FR 35592, July 26, 1991, as amended by AG Order No. 3181-2010, 75 FR 56255, Sept. 15, 2010]
Notes of Decisions
Cited in 53 cases (12 in the last 5 years), 1994–2025 · leading case: Angelo Binno v. The Am. Bar Ass'n, 826 F.3d 338 (6th Cir. 2016).
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Angelo Binno v. The Am. Bar Ass'n, 826 F.3d 338 (6th Cir. 2016). · cites it 4× “, 28 C.F.R. § 36.309 (b)(4) (“alternative accessible arrangements may include, for example, provision of examination at an individual’s home with a proctor”).”
Enyart v. Nat'l Conf. of Bar Examiners, Inc., 630 F.3d 1153 (9th Cir. 2011). · cites it 8× “§ 12189 ] and the corresponding regulation [ 28 C.F.R. § 36.309 ]. NCBE’s citation to other regulations and cases does not overcome this factual presentation.”
Dep't of Fair Emp. & Hous. v. Law Sch. Admission Council Inc., 896 F. Supp. 2d 849 (N.D. Cal. 2012). · cites it 12× “§ 12189 and 28 C.F.R. § 36.309 ; (3) LSAC’s flagging policy unlawfully coerced and discouraged potential applicants from seeking reasonable accommodations or punished those who received accommodations, in violation of 42 U.”
Bonnette v. Dist. of Columbia Court of Appeals, 796 F. Supp. 2d 164 (D.D.C. 2011). · cites it 7× “But that narrow interpretation is not supported by the Justice Department’s implementing regulation, 28 C.F.R. § 36.309 , which states in part that “[r]equired modifications to an examination may include changes in the length of time permitted for completion of the examination…”
Shaywitz v. Am. Bd. of Psychiatry & Neurology, 848 F. Supp. 2d 460 (S.D.N.Y. 2012). · cites it 6× “28 C.F.R. § 36.309 (b)(l)(i). A private entity offering such an examination must provide “appropriate auxiliary aids” for those with disabilities, 28 C.”
Jones v. Nat'l Conf. of Bar Examiners, 801 F. Supp. 2d 270 (D. Vt. 2011). · cites it 6× “28 C.F.R. § 36.309 (b)(1)(i) (emphasis supplied).”
Michael Gonzales v. Nat'l Bd. of Med. Examiners, 225 F.3d 620 (6th Cir. 2000). · cites it 2× “” 28 C.F.R. § 36.309 (b)(2) (1999). The NBME does not dispute that it is a “covered entity” under Subsection III of the ADA.”
Falchenberg v. New York State Dep't of Educ., 642 F. Supp. 2d 156 (S.D.N.Y. 2008). · cites it 4× “309 (b)(l)(i) requires that examinations be 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…”
Law Sch. Admission Council, Inc. v. State, 222 Cal. App. 4th 1265 (Cal. Ct. App. 2014). · cites it 4× “” ( 28 C.F.R. § 36.309 (b)(l)(i) (2013).) The testing entity must also ensure, among other things, that “[a]ny request for documentation, if such documentation is required, is reasonable and limited to the need for the modification, accommodation, or auxiliary aid or service…”
Krpan v. Registry of Interpreters for the Deaf, Inc., 167 F. Supp. 3d 774 (E.D. Va. 2016). · cites it 8× “Krpan also seeks an order requiring RID to permit him to apply for the NIC certification and to sit for the NIC exam “with all accommodations otherwise required by 28 C.F.R. § 36.309 , including but not limited to an interpreter to translate Krpan’s ASL into spoken English.”
John Doe v. Nat'l Bd. of Med. Examiners, Appellant, 199 F.3d 146 (3rd Cir. 1999). · cites it 2× “” 28 C.F.R. § 36.309 (b)(l)(i). Because he cannot point to an explicit bar on the practice of flagging, Doe argues that the annotation unfairly calls into question the validity of his scores and in effect denies him the opportunity to take the exam “in a place and manner…”
Jessica Ramsay v. Nat'l Bd. of Med. Exam, 968 F.3d 251 (3rd Cir. 2020). “at 45 (quoting 28 C.F.R. § 36.309 (b)(1)(v)). According to the Board, a court should consider past accommodations only after finding the individual is disabled.”
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