28 CFR Part 35 · Subpart E — Communications
§ 35.164 Duties
Last updated June 11, 2026
What 28 CFR §35.164 requires of state and local governments.
In Plain Language
The communications accessibility requirements in Subpart E do not require actions that would fundamentally alter the program or impose undue financial or administrative burdens. However, the burden of proving fundamental alteration or undue burden falls on the public entity, not the individual with a disability. When an entity claims this defense, it must still provide an alternative that ensures effective communication to the maximum extent possible.
This summary is not official legal text. For authoritative guidance, consult the official regulatory text and Department of Justice guidance at ada.gov.
This summary is educational, not legal advice. The official text below controls.
Official Regulatory Text — 28 CFR § 35.164
Verbatim from 28 CFR Part 35, current through June 9, 2026.
This subpart does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with this subpart would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this subpart would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or services provided by the public entity.
What § 35.164 Means in Practice
- The communications duties in Subpart E stop where they would fundamentally alter the program or impose undue financial and administrative burdens
- That decision cannot be casual: the head of the public entity or a designee must make it in writing after considering all resources available
- Even when a specific aid is excused, the entity must still provide effective communication to the maximum extent possible
- Cost alone rarely qualifies as an undue burden when measured against an entire entity's budget
Common Questions
How do we document an undue burden determination?
A senior official must make a written finding that the specific accommodation would impose an undue financial or administrative burden, considering all available resources. The finding must be documented.
If we prove undue burden, are we off the hook?
No. You must still provide an alternative means of ensuring effective communication to the maximum extent possible.
Does § 35.164 apply to your entity?
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