# 40 III-4.

1400 October 20, 1992

Ms. Francine L. Kaplan American Bar Association Division for Professional Education 541 North Fairbanks Court Chicago, Illinois 60611-3314 Dear Ms. Kaplan: Recently you provided Ms. Harriet Hartman, an attorney at the EEOC Office of Legal Counsel (ADA Services), with interpreter services at an ABA National Institute seminar entitled "Prosecuting and Defending an ADA Lawsuit." In a letter to Ms. Hartman dated September 16, 1992, you stated that should Ms. Hartman be unable to attend the seminar, she would have to inform you of her cancellation by 12 p.m. on September 25, 1992, or be liable for the cost of the interpreter services, which were to begin the following Wednesday, September 30. Ms. Hartman sent this office copies of the correspondence regarding this matter because we are responsible for enforcing title III of the Americans with Disabilities Act (ADA). The title III regulation promulgated by the Department of Justice pursuant to the ADA requires a public accommodation to provide auxiliary aids and services that are necessary to ensure equal access to the goods, services, facilities, privileges, or accommodations that it offers, unless an undue burden or a fundamental alteration would result. 28 C.F.R. { 36.303. Pursuant to section 36.301(c), the costs of compliance with this requirement may not be financed by surcharges limited to particular individuals with disabilities or any group of individuals with disabilities. The ABA National Institute did not impose a surcharge on Ms. Hartman for interpreter services at its seminar on prosecuting and defending ADA lawsuits. However, the Institute stated it would impose a surcharge if Ms. Hartman did not attend the seminar and failed to give early notice of her inability to attend. As it turned out, Ms. Hartman did not have to cancel.

It is the Department's view, however, that had Ms. Hartman cancelled after the expiration of the deadline referred to in your letter of September 16, she would not have been liable for the expense of interpreter services. The ABA cannot accomplish indirectly what it is prohibited to do directly. The ABA is not permitted to impose surcharges for auxiliary aids on an individual if those aids are utilized; likewise, it is not permitted to impose such surcharges in the event the aids prove unnecessary. We appreciate the ABA's desire to avoid unnecessary expense. Nonetheless, events may arise in an individual's life which are beyond his or her control, such as illness or business emergencies. Imposing the costs of interpreter services in the event of cancellation under such circumstances places the person in need of an auxiliary aid or service at a distinct disadvantage relative to others in similar situations. In future, we recommend that the ABA point out to the person in need of auxiliary aids the high cost of these services, and urge the person to alert them of cancellation as soon as possible. The ABA can even explain that failure to cancel as early as possible may unnecessarily increase costs for all ABA members. But it cannot threaten to impose these costs on the individual with a disability should that individual be unable to inform the ABA of cancellation prior to a given deadline. Please feel free to call me should you have any questions regarding this matter. Sincerely,

Joan A. Magagna Deputy Chief Public Access Section Enclosures (2) Title III Technical Assistance Manual Title III regulation