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6/8/94 MAF:AMP:ca DJ 204-69-0

The Honorable Tom Daschle United States Senate Washington, D.C. 20510-4103 Dear Senator Daschle: This letter responds to your recent inquiry on behalf of your constituents, officials of Deuel County, South Dakota, regarding their efforts to bring the Deuel County Courthouse into compliance with the Americans with Disabilities Act of 1990 (ADA). on behalf of Deuel County (the County), its officials are seeking information on enforcement of the ADA at the county level, particularly with respect to the County Courthouse which, they note, is on the National Register of Historic Places. They are also seeking sources of outside funding for ADA compliance. We apologize for any delay in responding to your letter. 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 Deuel County. 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. As an enforcement matter, 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. It appears, however, that County officials may have overestimated the County's obligations under the ADA and, consequently, may have overestimated the County's cost to comply with that Act. cc: Records CRS Chrono MAF McDowney, FOIA

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-2According to the information provided to you by the County, it has been advised that it will need to spend a minimum of $259,600.00 in order to modify the Courthouse to meet ADA requirements. In another document enclosed with your letter, the County Auditor states that compliance would require a 7.5% increase in county taxes over the next five years. The Auditor's calculation apparently is based on a transition plan for the Deuel County Courthouse prepared by an independent architectural consultant. The Federal government does not generally review selfevaluation and transition plans required by ADA (except in the context of complaint investigations or compliance reviews). In the process of preparing this response, we did, however, briefly look at the transition plan sent to you by the County. From this brief review, which did not include a technical review of the architects recommendations, it appears that the architect surveyed the Courthouse to determine how it deviated from the ADA design standards for new construction (the ADA Accessibility Guidelines or "ADAAG"), and then provided estimates for retrofitting the Courthouse to comply with the new construction standards. This approach reflects a fundamental misunderstanding of the requirements of title II. Title II does not require that existing buildings and facilities be brought up to the standards for new construction. Instead, the focus of title II of the ADA

and its implementing regulation is to ensure that, to the extent that a covered entity 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 County 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. On 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 County may wish to reevaluate its planned structural alterations to determine whether they are, in fact, necessary to achieve program access. With respect to its Courthouse, the County should first analyze the programs, services, and activities it provides at the Courthouse. Providing access to some activities, such as judicial proceedings, may require that a specific part of the 01-03163

-3building (i.e., a courtroom) be made accessible. However, it may be the case that some County services now provided in inaccessible locations within the Courthouse can be easily moved to accessible locations when an individual with a mobility impairment needs access to such services. Physical changes are only required when a public entity cannot provide equal access to its programs, services, and activities through alternative methods. In addition, the County is not required to make alterations

to its existing facilities, if it 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 requirement for program access 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, County officials should be made aware of the special provisions applicable to historic structures. Section 4.1.7 of the ADA Standards contains special provisions and procedures applicable to historic structures, which are designed to ensure that the historic significance of such structures is preserved. A copy of the ADA Standards is located at Appendix A to the enclosed title III rule. With respect to financial assistance, 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 development 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,

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-4facilities, and improvements. For information on applying for a community development block grant, the County 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 (3)

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