# 157 II-5.2000 II-5.

6000

December 19, 1994

Mr. Robert W. Nakoneczny Superintendent of Schools Boyne City Public Schools P.O. Box 289 Boyne City, Michigan 49712 Dear Mr. Nakoneczny: This letter responds to your recent inquiry on behalf of the Board of Education of the Boyne City Public Schools (the Board) regarding the changes necessary to bring its Middle School Gymnasium (the Gym) into compliance with Title II of the Americans with Disabilities Act of 1990 (ADA). We apologize for any delay in responding to your letter. The ADA authorizes the Department of Justice (the Department) to provide technical assistance to individuals and entities with rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the requirements of the ADA. It does not, however, constitute a legal interpretation and is not binding on the Department. Title II of the ADA prohibits discrimination against qualified individuals with disabilities on the basis of their disability in services, programs, or activities conducted by a State or local governmental entity such as the Board. A copy of the regulation implementing Title II is enclosed for your convenience. In recognition of the fact that covered entities might require some time to come into compliance with any structural

alterations required by the ADA, the Department's Title II regulation requires covered entities to make such changes as expeditiously as possible, but in no event later than January 26, 1995, three years after the effective date of Title II. Please note, however, that with respect to existing facilities, the focus of Title II of the ADA and its implementing regulation is to ensure that, to the extent that the Board provides programs, services, and activities to the public, they are readily accessible to and usable by individuals with disabilities. The concept of program access is discussed in Section II-5.000 of the enclosed Title II Technical Assistance Manual. Providing access to its programs, services, and activities does not mean that the Board is necessarily required to make each of its existing facilities accessible. In some situations, providing access to facilities through structural methods, such as the alteration of existing facilities and the acquisition or construction of additional facilities, may be the most efficient method of providing program access. On the other hand, nonstructural methods, such as the acquisition or redesign of equipment, the assignment of aides to beneficiaries, and the provision of services at other accessible sites, may be acceptable alternatives. For example, it may be possible to relocate activities planned for the Middle School Gymnasium to an accessible location, upon request. Thus, the Board may wish to reevaluate whether structural alterations to the Middle School are, in fact, necessary to achieve program access. It appears, however, that the Board may have already gone through this process and determined that, at a minimum, the structural alteration described in your letter (the construction of a "blockhouse type structure") is necessary to provide access to the programs and activities conducted in the Middle School Gym. We understand that the cost of constructing such a structure is estimated to be $175,000, excluding architectural fees and the cost of constructing an additional stairwell. With respect to the costs of complying with the ADA, the Board is not required to make alterations to its existing facilities if it can demonstrate that the expense of making the facilities accessible would result in undue financial and administrative burdens. See 35.150(a)(3) of the enclosed Title II regulation. Of course, when a public entity believes that proposed physical alterations to its facilities would result in undue financial and administrative burdens, the public entity has

the burden of proving that compliance with Title II's program access requirements would result in such burdens. The decision that any proposed alterations would result in undue financial and administrative burdens must be made by the head of the public entity or his or her designee after considering all the resources available for use in the funding and operation of the service, program, or activity. The decision must be accompanied by a written statement of the reasons for reaching the conclusion that undue burdens would occur. If alterations to facilities would result in such burdens, the public entity must take other actions that would not result in such hardships but that would, nevertheless, ensure that individuals with disabilities receive the benefits or services provided by the public entity to other individuals. These requirements are also explained in 35.150(a)(3) of the Title II regulation. As applied to the situation in the Boyne City Public Schools, the ADA would require the Board to provide physical access to the Middle School Gymnasium if such access is necessary to provide individuals with disabilities the opportunity to participate in the services, programs, or activities offered in the Gym, unless providing such access would cause undue financial and administrative burdens. If the Board determines that undue burdens would arise, it must comply with the requirements discussed in the two preceding paragraphs. If the Board determines that making alterations to the Gym would pose undue burdens, the ADA does not require it to close the Gym. Instead, it may continue to operate the Gym, while taking other measures (that do not impose undue burdens) to ensure that individuals with disabilities receive the same benefits and services as other members of the community. If the modifications necessary to provide access to the Gym would not impose undue burdens, and the Board does not wish to make such modifications for other reasons, the Board may elect to close the Gym. It should be emphasized, however, that the ADA does not require the Board to close existing facilities. Rather, it was carefully drafted to avoid placing undue burdens on State and local governmental entities. Finally, we note that limited Federal funding for barrier removal may be available in some instances. Community

Development Block Grant (CDBG) funds, awarded to individual communities by the Department of Housing and Urban Development, can be used for the removal of architectural barriers. Activities eligible for assistance include special projects directed to the removal of barriers that restrict the mobility of and accessibility of persons with disabilities. You should be aware that each community establishes its own priorities for the use of CDBG funds. Because the funds can be used for a variety of priority projects, it is important that the Board work with the local community to ensure that, if the community is awarded a Block Grant, one of its priorities will be the use of some of those funds for renovations to the Middle School. Requests for CDBG grants may be sent to: Andrew Cuomo, Assistant Secretary, Office of Community Planning and Development, Department of Housing and Urban Development, 451 7th Street, S.W., Room 7100, Washington, D.C. 20410. We hope this information is helpful in responding to your request. Sincerely, Merrily A. Friedlander Acting Chief Coordination and Review Section Civil Rights Division Enclosures (2)