Disability Law Index - Public Entities: Direct Threat

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.

28 C.F.R. § 35.104 - Definitions. (excerpt)

Direct threat means 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 as provided in § 35.139.

Case Law:

Doe v. Woodford County Bd. of Ed., 213 F.3d 921 (6th Cir. 2000).

A disabled person may not be "otherwise qualified", and thus may be excluded from participation in a program, if his or her participation is a direct threat to the health and safety of others.