T. 5-26-92 DJ 202-PL-00103 JUL 8 1992 DIR WOODATCH DATE Deborah C. Craytor, Esq. Fisher & Phillips 1500 Resurgens Plaza DEPUTY Atlanta, GA 30326 BOWEN DATE Dear Ms. Craytor: I am responding to your request for an opinion concerning the application of the Americans with Disabilities Act of 1990 (ADA), and this Department's regulation implementing title III of DEPUTY the ADA, to your client, a private university that conducts MAGAGNA pharmaceutical trials on behalf of manufacturers. This research is conducted by members of the university's medical faculty whose DATE test subjects are selected from among their patients and the general public. Your letter asserts that the primary purpose of these tests is pharmaceutical research, not medical treatment or education; therefore, title III's barrier removal requirements SPECIAL should not apply. COUNSEL BREEN The ADA authorizes the Department to provide technical assistance to individuals and entities having rights or DATE obligations under the Act. This letter provides informal guidance to assist you in understanding the ADA. However, this technical assistance does not constitute a determination by the Department of Justice of your rights or responsibilities under BLIZZARD the ADA and it is not binding on the Department of Justice. DATE Title III of the ADA prohibits discrimination against individuals with disabilities by public accommodations. In order to be considered a public accommodation, an entity must be GYB DATE cc: Records, Chrono, Wodatch, Blizard, Russell udd:Blizard.ada.interpretation.craytor 01-01016 - 2 - private and it must own, operate, lease, or lease to a place of public accommodation. A place of public accommodation is a facility whose operations affect commerce and fall within at least one of the 12 categories identified in the ADA. You have correctly noted that a place of education is a place of public accommodation. The professional office of a health care provider is a also place of public accommodation. Under the Department's title III regulation, a public accommodation is responsible for ensuring compliance with title III in all of the activities of the place of public accommodation that it owns or operates. This provision is intended to be read broadly. Nothing in the ADA or the Department's regulation supports the conclusion that a place of education is a place of public accommodation only with respect to the administration of its curriculum. Research activities are an integral part of the operations of many colleges and universities, and, in our view, are subject to the requirements of title III. Please note that the obligations of a public accommodation under title III include more than the obligation to remove barriers. A public accommodation may not discriminate against an individual with a disability in the operation of a place of public accommodation. Individuals with disabilities may not be denied full and equal enjoyment of the "goods, services, facilities, privileges, advantages, or accommodations" offered by a place of public accommodation. The phrase "goods, services, facilities, privileges, advantages, or accommodations" applies to whatever type of good or service a public accommodation provides to its customers, clients, or participants. A public accommodation has an affirmative obligation to modify its policies and practices to ensure that individuals with disabilities are not excluded from participation. The public accommodation must provide auxiliary aids when it is necessary to ensure effective communication with individuals with disabilities; it must remove architectural, communication, and transportation barriers to the extent that it is readily achievable to do so; and it must ensure that all new construction and alterations comply with the accessibility standards established in the title III regulation. 01-01017 - 3 - This Department recently issued a technical assistance manual to assist individuals and entities subject to the ADA to understand the requirements of title III. I have enclosed a copy for your information. I hope that this information is helpful to you. Sincerely, John L. Wodatch Director Office on the Americans with Disabilities Act Enclosure 01-01018 LAW OFFICES FISHER & PHILLIPS (A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS) 1500 RESURGENS PLAZA 945 EAST PACES FERRY ROAD ATLANTA, GEORGIA 30326 TELEPHONE (404) 240-4249 TELECOPIER (404) 240-4249 TELEX 54-2331 (404) 240-4278 November 5, 1991 Barbara S. Drake, Esquire Deputy Assistant Attorney General Civil Rights Division United States Department of Justice Washington, D.C. 20530 Re: Request for Written Opinion on Coverage of Title III of the Americans with Disabilities Act Our File No. 1944.0070 Dear Ms. Drake: We would like a written opinion concerning the application of Title III of the Americans with Disabilities Act to the following situation. We represent a private university ("University"). Certain of the University's medical faculty are retained by pharmaceutical manufacturers to test the efficacy of new drugs. These research studies take place in buildings owned or leased by the University. The test subjects generally are unpaid volunteers but may be paid for their participation. They are generally patients of the doctor conducting the research, but they are occasionally solicited from the general public through advertisements. The purpose of the research studies is to test the drugs' effectiveness in treating particular physical or psychological conditions, not to provide a health benefit to the test subject. However, an incidental effect of the study may be an improvement (or worsening) of the subject's condition. Under these circumstances, we believe that the University facilities within which these drug studies take place are not places of public accommodation and therefore need not comply with Title III's barrier removal obligations. The operation of the drug study is not a part of the University's curriculum or educational program; thus, the facility should not be considered a "place of education." Moreover, the purpose of the study is not to provide a health service to the test subjects; rather, the study is 01-01019 Barbara S. Drake, Esquire November 5, 1991 Page 2 conducted for the primary benefit of the pharmaceutical manufacturer, which bases its decision to market the drug on the success or failure of the study. In this respect, the drug study is akin to a wholesale establishment which sells exclusively to other businesses, and the Title III regulations recognize that such business-to-business transactions are excluded from the definition of public accommodation. We would appreciate your written confirmation that, with respect to the activity described in this letter, the University is not a place of public accommodation and is not required to undertake readily achievable barrier removal in the space reserved for drug studies. If you have any questions, you may call either me or Tom Rebel. Very truly yours, Deborah C. Craytor For FISHER & PHILLIPS DCC FISHER & PHILLIPS (A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS) 01-01020