4/26/94 MAF:AMP:ca DJ 204-50-0

MAY 5, 1994 The Honorable Alfonse M. D'Amato United States Senate Washington, D.C. 20515-3202 Dear Senator D'Amato: This letter responds to your recent inquiry on behalf of your constituent, the Honorable Robert J. Valachovic, the Mayor of the City of Johnstown, New York (the City). On behalf of the City, Mayor Valachavic is seeking relief from meeting certain requirements set forth in the regulations that implement title II of the Americans with Disabilities Act of 1990 (ADA). The Mayor also requests assistance in obtaining funding to comply with the ADA. 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 City of Johnstown. 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 full years after the effective date of title II. The Department of Justice does not have the authority to waive any applicable requirements imposed by the ADA or to extend the time frames for meeting such requirements. According to the information provided to you by Mayor Valachovic, the city has been advised that it will need to spend approximately $640,000 to meet ADA requirements, funds that it does not have in its budget. We assume that this estimate relates to physical alterations that the city believes necessary to make its existing facilities accessible.

cc: Records CRS Chrono MAF Pecht.congress.93.d'amato McDowney FOIA 01-03041 -2With respect to existing facilities, the focus of title II of the ADA and its implementing regulation is to ensure that, to the extent the City 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 on pages 19-22 of the enclosed title II Technical Assistance Manual. Providing access to its programs, services, and activities does not mean, however, that the City 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 accessibility. Can 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 alternate accessible sites, may be acceptable alternatives. Thus, the City may wish to reevaluate its planned structural alterations to determine whether they are, in fact, necessary to achieve program access. With respect to the costs of complying with the ADA, the City of Johnstown is not required to make alterations to its existing facilities, if the City 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, in those circumstances where 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 accessibility 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. Finally, we note that limited federal funding for barrier removal may be available in some instances. The Department of Housing and Urban Development (HUD) provides community 01-03042

-3development block grants designed to assist low and moderate income households and communities. These grants may be used to remove architectural barriers that restrict accessibility to publicly owned and privately owned buildings, facilities, and improvements. For information on applying for a community development block grant, Mayor Valachovic should contact HUD's Office of Block Grant Assistance at (202) 708-3587. We hope this information is helpful in responding to your constituent. Sincerely,

Deval L. Patrick Assistant Attorney General Civil Rights Division Enclosures (2) 01-03043