8 CCR 1501-11.10 - [Effective until 6/30/2025] Undue Burden, Fundamental Alteration, or Direct Threat
A. Where a public
entity can demonstrate that an action, full conformance with the technical
standards, or a reasonable accommodation or modification would result in a
fundamental alteration in the nature of a service, program, or activity, undue
burden, or a direct threat to the health or safety of others, conformance is
required to the extent that it does not result in a fundamental alteration,
undue burden, or direct threat.
B.
In determining whether an action, conformance to the technical standards, or a
reasonable accommodation or modification would impose an undue burden, the
public entity shall consider all resources available to the program or
component for which the ICT is being procured, developed, maintained, or used.
Undue burden may be demonstrated when, depending on the type of financial,
technical, or administrative barrier, at least one of the following applies:
1. The resources of the program, service, or
activity are not readily available, or the use of such resources would
fundamentally alter the nature of the program, service, or activity;
2. Contractual, legal, regulatory, or
technical constraints prevent the modification of the program, service, or
activity; or
3. When the necessary
auxiliary aids or services are not feasibly available.
C. In determining whether an action,
conformance to the technical standards, or a reasonable accommodation or
modification would pose 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 the best available objective evidence, to ascertain:
1. the nature, duration, and severity of the
risk;
2. the probability that the
potential injury will actually occur; and
3. whether reasonable modifications of
policies, practices, or procedures or the provision of auxiliary aids or
services will mitigate the risk.
D. If an action would result in a fundamental
alteration, undue burden, or a direct threat, a public entity shall take any
other reasonable action, including providing reasonable accommodations or
modifications that would not result in such an alteration, such burden, or such
a direct threat but would nevertheless ensure that individuals with
disabilities receive the benefits or services provided by the public
entity.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
A. Where a public entity can demonstrate that an action, full conformance with the technical standards , or a reasonable accommodation or modification would result in a fundamental alteration in the nature of a service, program, or activity, undue burden , or a direct threat to the health or safety of others, conformance is required to the extent that it does not result in a fundamental alteration , undue burden , or direct threat .
B. In determining whether an action, conformance to the technical standards , or a reasonable accommodation or modification would impose an undue burden , the public entity shall consider all resources available to the program or component for which the ICT is being procured, developed, maintained, or used. Undue burden may be demonstrated when, depending on the type of financial, technical, or administrative barrier, at least one of the following applies:
1. The resources of the program, service, or activity are not readily available, or the use of such resources would fundamentally alter the nature of the program, service, or activity;
2. Contractual, legal, regulatory, or technical constraints prevent the modification of the program, service, or activity; or
3. When the necessary auxiliary aids or services are not feasibly available.
C. In determining whether an action, conformance to the technical standards , or a reasonable accommodation or modification would pose 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 the best available objective evidence, to ascertain:
1. the nature, duration, and severity of the risk;
2. the probability that the potential injury will actually occur; and
3. whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
D. If an action would result in a fundamental alteration , undue burden , or a direct threat , a public entity shall take any other reasonable action, including providing reasonable accommodations or modifications that would not result in such an alteration, such burden, or such a direct threat but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity .