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DJ 204-51-0 II-1.0000 II-3.6000 Mr. George M. Camp Executive Director Association of State Correctional Administrators Office of Executive Director Spring Hill West South Salem, New York 10590 Dear Mr. Camp:

April 11, 1995

I am writing in response to your recent letter to President Clinton. Enclosed with your letter was a resolution adopted by the Association of State Correctional Administrators urging that the Americans with Disabilities Act of 1990 (ADA) be amended to exclude pretrial and sentenced prisoners from coverage under the Act. Because of the nature of the concerns expressed in your letter, it was referred to the Civil Rights Division of the Department of Justice. I apologize for any delay in responding to your letter. The Civil Rights Division is responsible for the enforcement of title II of the ADA, which prohibits discrimination against qualified individuals with disabilities on the basis of disability by State and local governmental entities, including correctional institutions. The Division also enforces section 504 of the Rehabilitation Act of 1973, as amended, which prohibits discrimination on the basis of disability in programs or activities conducted by recipients of Federal financial assistance. Correctional institutions are covered by section 504 if they receive such financial assistance. In our view, amendments to the ADA to exclude coverage of prisoners are not warranted. The ADA is a comprehensive civil rights statute that was enacted to eliminate longstanding discrimination against the millions of Americans with disabilities. The goal of title II of the ADA is to ensure that

people with disabilities receive the same access to the programs, activities, or services of a public entity as would be made available to non-disabled persons receiving the same service or participating in the same program or activity. In drafting the ADA, Congress carefully balanced the needs of individuals with disabilities with the legitimate concerns of covered entities. With respect to the Association's concern that "... liberties taken with ... [the] language and intent [of the ADA] produce requests for accommodations inconsistent with costeffective methods of meeting the needs and requirements of disabled prisoners," please note that the ADA generally requires reasonable modifications to a covered entity's policies, practices, or procedures when such modifications are necessary to avoid discrimination. See 35.130(b)(7) of the enclosed title II regulation. Such modifications are not required when making the modification would fundamentally alter the nature of the service, program, or activity. Similar provisions, balancing the rights of individuals with the concerns of covered entities, occur throughout the ADA and its implementing regulations. It is also important to note that the ADA requires a covered entity to make reasonable modifications. The ADA does not require that the modification made be the most expensive modification possible, or even the modification requested by a particular individual with a disability. As long as the modification effectively eliminates discrimination, the entity has complied with its obligations under the ADA. Thus, while the ADA may require the administrators of correctional facilities to make changes to ensure that both pretrial and sentenced prisoners are not discriminated against on the basis of their disabilities, there is nothing in the Act that would prevent such changes from being made in a cost-effective and efficient manner. In addition, title II of the ADA does not require public entities to make all buildings and other facilities fully accessible to individuals with disabilities. Instead, the focus of title II and its implementing regulation is to ensure that, to the extent that a covered entity provides programs, services, and activities, they are readily accessible to and usable by individuals with disabilities. This concept, which is referred to as program accessibility, is discussed on pages 22 through 25 of the enclosed title II Technical Assistance Manual.

As a result, a State correctional facility is not necessarily required to make each of its existing facilities accessible. In many situations, providing access to programs and activities through nonstructural methods, such as the acquisition or redesign of equipment, the assignment of aides to prisoners, and the provision of services at alternate accessible sites, may be acceptable alternatives. In addition, a correctional facility is not required to provide program accessibility in an existing facility if it can demonstrate that the required modification would fundamentally alter the nature of the program, service, or activity, or would result in undue financial and administrative burdens. See 35.150(a)(3) of the title II regulation. I hope that this discussion has alleviated your concerns about the impact of the ADA on correctional institutions. If you have any further questions, please feel free to write directly to my office. In addition, the Department operates a toll-free ADA Telephone Information Line for callers who have questions about titles II or III of the ADA. Operators can be reached from 10:00 a.m. to 6:00 p.m. (EDT), Monday through Friday (except for Thursdays, when the operating hours are 1:00 p.m. to 6:00 p.m.). The numbers are 1-800-514-0301 (voice) and 1-800-514-0383 (TDD). Sincerely,

Deval L. Patrick Assistant Attorney General Civil Rights Division Enclosures