2/21/92 DJ 182-180-00652 FEB 28 1992

The Honorable Dan Glickman Member, United States House of Representatives 401 N. Market Street Room 134 Wichita, Kansas 67202 Dear Congressman Glickman: I am responding to your recent inquiry about a letter sent to this Department by your constituent, Dave Hoffman, seeking information about the requirements of title III of the Americans with Disabilities Act of 1990 (ADA). A copy of our response to Mr. Hoffman is enclosed for your information. I hope that this information is helpful to you in responding to Mr. Hoffman. Sincerely,

John R. Dunne Assistant Attorney General Civil Rights Division


bcc: Records CRS CSU McDowney Oneglia Arthur UDD:Blizard.ada.interpretation.glickman

01-00507 T. 2/21/92 DJ 182-180-00652

FEB 28 1992

Mr. Dave Hoffman Law/Kingdon, Inc. P.O. Box 1094 Wichita, Kansas 67201-1094 Dear Mr. Hoffman: I am responding to your letter requesting information about the requirements of title III of the Americans with Disabilities Act of 1990 (ADA). On July 26, 1991, this Department published a regulation to implement title III, 56 Fed. Reg. 35544, to be codified at 28 C.F.R. pt. 36. We have enclosed a copy of this regulation for your information. Because the ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that are subject to the Act, we may provide informal guidance to assist you in understanding the ADA accessibility standards. However, this technical assistance should not be construed as a legal opinion of this Department or a determination of your rights or responsibilities under the ADA, and it is not binding on the Department of Justice.

You have asked us to provide definitive answers to several broad questions pertaining to the statutory concept "readily achievable barrier removal" in order that you may be able to advise the clients of your architecture and engineering design firm about their obligation to comply with the ADA. These questions cannot be answered in the abstract. The ADA clearly requires places of public accommodation to remove existing architectural barriers and communication barriers that are structural in nature to the extent that it is readily achievable to do so. However, the Department's regulation does not establish a "quantifiable connection" or other mathematical formula to determine if barrier removal is "readily achievable." When the title III regulation was being drafted, the Department considered -- but ultimately rejected -- the idea of trying to establish a mathematical formula because it is virtually impossible to devise a specific ceiling on compliance cc: Records CRS CSU McDowney Oneglia Arthur UDD:Blizard.ada.interpretation.glickman 01-00508

-2costs that would adequately take into account the vast diversity of enterprises covered by the ADA's public accommodations requirement, and the economic situation that any particular entity would find itself in at any moment. Therefore, the regulation requires that the determination as to whether the removal of a specific barrier is readily achievable must be made on a case-by-case basis after a thorough consideration of the factors established in the statute. The decision should be made by each public accommodation in consultation with its own legal

advisors and others. If the place of public accommodation is a facility that is owned or operated by a parent entity that conducts operations at many different sites, the public accommodation must consider the resources of both the local facility and the parent entity to determine if required barrier removal is "readily achievable." The administrative and fiscal relationship between the local facility and the parent entity must also be considered in evaluating what resources are available for any particular act of barrier removal. In striking a balance between guaranteeing access to individuals with disabilities and recognizing the legitimate cost concerns of businesses and other private entities, the ADA establishes different standards for existing facilities and new construction. In existing facilities, where retrofitting may be expensive, the requirement to provide access is less stringent than it is in new construction and alterations, where accessibility can be incorporated in the initial stages of design and construction without a significant increase in cost. The readily achievable standard does not require barrier removal that requires extensive restructuring or burdensome expense. It does not require rearrangement of temporary or movable structures if it results in a significant loss of selling or serving space. The Department's regulation contains a list of examples of modifications that are likely to be readily achievable. The list is merely illustrative. It is not intended to suggest that each of these modifications will always be readily achievable or that no other type of modifications would be required. Changes that are likely to be readily achievable are: installing ramps or curb cuts; repositioning shelves or telephones; rearranging display racks and other furniture; adding raised markings on elevator control buttons; installing flashing alarm lights; and installing grab bars in toilet stalls. Because the resources available for barrier removal may not be adequate to remove all existing barriers at any given time, he Department's regulation suggests a way to determine which barriers should be mitigated or eliminated first. The purpose of these priorities is to facilitate long-term business planning and to maximize the degree of effective access that will result


-3from any given level of expenditure. These priorities are not mandatory. Public accommodations are free to exercise discretion in determining the most effective "mix" of barrier removal measures to undertake in their facilities. The suggested priorities are to 1) enable individuals with disabilities to physically enter the facility; 2) provide access to those areas of a place of public accommodation where goods and services are made available to the public; 3) provide access to restrooms; and 4) remove any remaining barriers to using the public accommodation's facility by, for example, installing visual alarms, adding Brailled floor indicators to elevator panels, or lowering telephones. It is not necessary to remove barriers in areas used only by employees. An effective way for public accommodations to determine what they need to do is to conduct a "self-evaluation" of the facility to identify existing barriers. This Department encourages all public accommodations to establish procedures for an ongoing assessment of their compliance with the ADA's barrier removal requirements. This process should include consultation with individuals with disabilities or organizations representing them. A serious effort at self-assessment and consultation can diminish the threat of litigation and save resources by identifying the most efficient means of providing required access. If a public accommodation determines that its facilities have barriers that should be removed, but it is not readily achievable to undertake all of the modifications immediately, the Department recommends that the public accommodation develop an implementation plan designed to achieve compliance with the ADA's barrier removal requirements. Such a plan, if appropriately designed and diligently executed, could serve as evidence of a good faith effort to comply with the ADA's barrier removal requirements. The obligation to engage in readily achievable barrier

removal is continuing, but not unlimited. Over time, barrier removal that initially was not readily achievable may later be required because of changed circumstances. But the obligation to remove barriers will never exceed the level of access required under the alterations standard (or the new construction standard if the regulation does not provide specific standards for alterations). Once an existing facility has reached the level of


-4accessibility that it would be required to achieve if it was subject to the alterations requirements of the ADA, the obligation to remove barriers ends. I hope that this information is helpful to you. Sincerely,

John L. Wodatch Director Office on the Americans with Disabilities Act Civil Rights Division Enclosure cc: Honorable Dan Glickman