OCT 14 1992 The Honorable Jeff Bingaman United States Senate 524 Hart Senate Office Building Washington

, D.C. 20510-3102 Dear Senator Bingaman: This letter responds to your recent inquiry concerning the Americans with Disabilities Act of 1990 (ADA). The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that have rights and responsibilities under the Act. This letter provides informal guidance but does not constitute a determination by the Department of Justice of any State's rights or responsibilities under the ADA, and it is not binding on the Department. You have raised five specific questions about the ADA. Those questions and our responses are as follows: 1) What is a State's liability under the Act if the State does not amend its law to comply with ADA? States are required to operate all programs, services, and activities in a manner consistent with title II of the ADA, and could be held liable for noncompliance. However, States are not required to adopt a State law comparable to the ADA. 2) What is a State's liability under the Act for building code violations after the State informs contractors of the requirements of Federal law? Under title II, all buildings or facilities constructed or altered by or for the State itself must comply with the ADA, and the State may be liable for ADA violations if contractors employed by or on behalf of the State fail to comply with the requirements of title II of the ADA, even if the State has informed the contractors of the ADA requirements. cc: Records; Chrono; Wodatch; Blizard; Bowen; McDowney; FOIA. :net:ss63:udd:blizard:ada.interpretation.bingaman.2 01-01576​

-2The ADA does not authorize or require State officials, including State building code officials, to enforce the ADA as it applies to private entities. If a private entity that is subject to the ADA fails to comply with the requirements of title III, that entity may be subject to ADA enforcement through Federal court litigation initiated by the Department of Justice or by private parties. 3) Are the States required to amend their building codes to comply with ADA, or does the Federal law preempt existing State law? The ADA does not require states to amend building codes that apply to the construction of private buildings. However, private entities are required to comply with the ADA's accessibility requirements, rather than State code requirements, in circumstances where local code requirements are less stringent than the ADA. States that choose to amend their codes may ask the Attorney General to review the accessibility requirements of the State code and to certify that these provisions meet or exceed the requirements of title III of the ADA. In ADA litigation, compliance with a certified code will constitute rebuttable evidence that a building or facility complies with the ADA. 4) What is the State's resultant liability? If the State amends its law, can it be involved in a civil suit for violations of the State law? Simply by adopting a building code that is consistent with title III, a State does not become liable for the failure of private entities to comply with the ADA. However, the operation of some State statutes or case law may affect the State's liability for failure to enforce State laws or regulations. 5) What resources are available to the States to assist them in interpreting and implementing the access provisions, as well as the other sections, of ADA? The ADA requires that each Federal agency with an ADA implementation role (Department of Justice, Department of Transportation, Federal Communications Commission, Equal Employment Opportunity Commission, and Architectural and

Transportation Barriers Compliance Board) provide technical assistance to individuals and entities affected by the agency's ADA regulations. Pursuant to this requirement, the Department of Justice has published technical assistance manuals for both title II and title III of the ADA, as well as other informational materials. 01-01577 -3In addition, the Department has awarded over three million dollars in grants to nineteen groups, including representatives of the business community and of people with disabilities. These groups are developing additional educational materials to advise covered entities and individuals with disabilities of the rights and obligations created by the ADA. The Department also operates an ADA telephone information line (202/514-0301 (voice) or 202/514-0381 (TDD)) and an electronic bulletin board (202/5146193). I am enclosing copies of the Department's regulations implementing titles II and III, our technical assistance manuals for titles II and III, and a list of our technical assistance grant projects for your information. Sincerely, W. Lee Rawls Assistant Attorney General Enclosures (5) 01-01578​ United States Senate May 27, 1992

The Honorable William Barr Attorney General Department of Justice Constitution and Tenth Street NW Washington, D.C. 20530 Dear Attorney General Barr: I would appreciate your assistance with the following matter. As a member of the Senate Labor and Human Resources Committee and a cosponsor of the Americans with Disabilities Act (ADA), I have been actively involved in the drafting and implementation of

this landmark legislation. Throughout this legislative process, I have been preoccupied with several pressing questions regarding the states' liability under ADA. Specifically, I would like your response to the following questions: 1) What is a state's liability under the Act if the state does not amend its law to comply with ADA? 2) What is a state's liability under the Act for building code violations after the state informs contractors of the requirements of the federal law? 3) Are the states required to amend their building codes to comply with ADA, or does the federal law preempt existing state law? 4) What is the state's resultant liability? If the state amends its law, can it be involved in a civil suit for violations of the federal law? 5) What resources are available to the states to assist them in interpreting and implementing the access provisions, as well as the other sections, of ADA? Thank you for your attention to my inquiry. I am looking forward to hearing from you in a timely manner. I send my best regards. Sincerely, Jeff Bingaman United States Senator JB/mh ALBURQUERQUE LAS CRUCES ROSWELL SANTA FE (505) 766-3636 (505) 523-6561 (505) 622-7113 (505) 988-6647 01-01579