JUN 5 1994 T.

6/17/94 MAF:AMP:ca DJ 204-29-0

Ms. Kathleen Hagen Attorney-at-Law Minnesota Disability Law Center 430 First Avenue North, Suite 300 Minneapolis, Minnesota 55401 Dear Ms. Hagen: This is in response to your letter to Attorney General Janet Reno regarding a letter to her from the Council of State Administrators of Vocational Rehabilitation. Although we are unable to comment on correspondence the Attorney General receives, we are able to address the issues you raise in your letter. Specifically, you express concern regarding the responsibility of State Vocational Rehabilitation Agencies to pay the cost of auxiliary aids for students with disabilities in light of newly raised arguments that the Americans with Disabilities Act of 1990 (ADA) changes the existing allocation of responsibility to pay for such aids. We apologize for any delay in responding to your letter. The ADA authorizes the Department to provide technical assistance to individuals and entities with rights or obligations under the Act. This letter does not constitute a legal interpretation or a formal legal opinion, and is not binding on the Department of Justice. Generally, under the ADA, both public and private institutions of higher education have an independent responsibility to provide auxiliary aids and services, such as interpreter services and readers, to individuals with disabilities. Under title II this obligation arises when such

aids and services are " ... necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity." See Section 35.160(b)(1) of the enclosed title II regulation. CC: Records CRS Chrono MAF Pecht. FOIA congress.93/hagen McDowney 01-03136 -2Under title III, such aids and services must be provided ". . . when necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services .... " See Section 36.303(a) of the enclosed title III regulation. The provision of an aid or service is not required under either regulation when the covered entity can demonstrate that providing such an aid or service would result in a fundamental alteration in the program or activity being offered (or, in the case of a title III entity, in the nature of the goods, services, facilities, privileges, advantages or accommodations being offered) or in undue burdens. These concepts are explained in more detail in the enclosed regulations and in section II-7.0000 of the enclosed title II Technical Assistance Manual and section III-4.3000 of the enclosed title III Technical Assistance Manual. The ADA was not intended to affect existing law and policy under the Rehabilitation Act of 1973, as amended (the Rehabilitation Act), with respect to the general obligations of State Rehabilitation Agencies. As noted in the preamble to the original regulation, promulgated by the now-defunct Department of Health, Education and Welfare to implement Section 504 of the Rehabilitation Act, " ... the Department anticipates that the bulk of auxiliary aids will be paid for by state and private agencies, not by colleges and universities." See 42 FR 22693 (May 4, 1977). Nothing in this Department's title II regulation was intended to change that expectation. The specific issue of whether a student who is not already the client of a Vocational Rehabilitation program can be required to apply for vocational

rehabilitation services is currently under review. We hope that this information will be of assistance to you. Sincerely,

Deval L. Patrick Assistant Attorney General Civil Rights Division Enclosures (4) 01-03137