MAY 5, 1993 The Honorable Tom Harkin Chairman, Subcommittee on Disability Policy Committee on Labor and Human Resources

United States Senate 531 Hart Senate Office Building Washington, D.C. 20510-1502 Dear Mr. Chairman: This letter is in response to your inquiry regarding the rights of persons with memory impairments under the Americans with Disabilities Act. Titles II and III of the ADA and the Department of Justice's regulations implementing those titles define the term disability quite broadly. For purposes of the ADA, "disability" includes any mental or physical condition that substantially limits one or more major life activities, like walking, seeing, hearing, working, or learning. Thus, if a particular memory impairment substantially limits a major life activity, then a person with that impairment would be entitled to the protections of the ADA. In regard to your specific inquiry about provision of audio tapes or written transcripts of proceedings, both titles II and III of the ADA may require State or local governments and places of public accommodation to provide such aids in some cases. Title II of the ADA requires a State or local government to operate each of its programs, services, and activities so that its programs, services, and activities, when viewed in their entirety, are readily accessible to and usable by individuals with disabilities, unless doing so would either fundamentally alter the nature of program, service, or activity, or would constitute an undue financial or administrative burden on the public entity. In addition, title II requires State and local cc: Records, Chrono, Wodatch, McDowney, Bowen, Contois, FOIA Udd:Contois:CGL:Harkin

01-02023 -2governments to furnish appropriate auxiliary aids and services when necessary to afford individuals with disabilities equal opportunities to participate in, and enjoy the benefits of, a program, service, or activity conducted by a public entity. Thus, if audio tapes or written transcripts of proceedings were necessary to allow an individual with a disability to participate equally in some program, service, or activity conducted by a state or local government, then the State or local government would have to provide such aids. Similarly, title III of the ADA requires places of public accommodation to provide auxiliary aids and services when necessary to insure that no individual with a disability is excluded, denied services, segregated, or otherwise treated differently than other individuals. A place of public accommodation need not provide an auxiliary aid or service if providing that aid or service would fundamentally alter the nature of the goods or services provided by that place of public accommodation, or if providing that aid or service would constitute an undue burden, in terms of significant difficulty or expense, on the place of public accommodation. For your information, I am enclosing a copy of this Department's regulations implementing titles II and III of the ADA and the Technical Assistance Manuals that were developed to assist individuals and entities subject to the ADA to understand the requirements of titles II and III. I hope this information is useful to you in understanding the requirements of the ADA. Sincerely,

M. Faith Burton Acting Assistant Attorney General Enclosures (4)

01-02024 TOM HARKIN IOWA (202) 224-3254 TTY (202) 224-4633

COMMITTEES AGRICULTURE APPROPRIATIONS UNITED STATES SENATE SMALL BUSINESS WASHINGTON, DC 20510-1502 LABOR AND HUMAN RESOURCES March 1, 1993 John Wodatch, Chief Public Access Section Civil Rights Division Department of Justice Tenth and Pennsylvania Avenue N.E. Washington, D.C. 20530 Dear Mr. Wodatch: The purpose of this letter is to clarify the rights of persons with memory impairments, such as individuals with traumatic brain injury, under the Americans with Disabilities Act of 1990.

Specifically, I would like to know whether the provision of audio tapes and written transcripts of proceedings can be required under title II and title III if necessary to provide meaningful access to state and local government and public accommodations for persons with memory impairments. I would also like to know under what circumstances cost can be used as a reason for not supplying such access. Your prompt attention to this matter would be greatly appreciated. Thank you in advance for your assistance. Sincerely, Tom Harkin, Chair Subcommittee on Disability Policy TH/lh 01-02025