OCT 12 1994

The Honorable Howell Heflin United States Senate Washington, D.C. 20510-0101 Dear Senator Heflin: This letter is in response to your inquiry on behalf of XX . The XX inquired as to whether certain tax credits are available to dentists who participate in a pilot program to provide home-based care to persons with disabilities who are unable to leave their residences. These dentists must acquire portable equipment for the program. They would like to receive tax credits to offset the high cost of the equipment. The XX have already directed their inquiry to the Internal Revenue Service ("IRS"), who responded that the tax credits are available only for expenses incurred in complying with the Americans with Disabilities Act ("ADA"). The IRS was unable to determine whether the proposed in-home services were required by the ADA and so was unable to determine whether the credit applied to expenses related to the in-home services. The tax provision about which the XX inquire applies to "Expenditures to Provide Access to Disabled Individuals" ("Access Credit"). The Access Credit, established at 26 U.S.C. S 44, allows an eligible small business1 to claim a credit worth up to $5,000, to be reimbursed for fifty percent of certain expenditures associated with meeting the requirements of the ADA. "Eligible access expenditures" are costs incurred, inter alia, to remove architectural barriers that would prevent a facility from being accessible to, or usable by, persons with disabilities, and to acquire or modify equipment or devices for individuals with disabilities. 26 U.S.C. SS 44 (c)(1), 4 (c)(2)(A), 44 (c)(2)(D). Expenditures are eligible, however, only to the extent that they are paid or incurred by an eligible _______________________ 1 A business is eligible for the Access Credit if, during the preceding taxable year, it (a) had gross receipts not exceeding $1,000,000, or (b) employed not more than 30 full-time employees. 01-03467

-2business "for the purpose of enabling such eligible small business to comply with [the ADA]." 26 U.S.C. S 44 (c)(1). The question underlying the XX inquiry, therefore, is whether private dentists must purchase portable dental equipment and offer in-home dental care to comply with the ADA. For the reasons given below, only in limited circumstances can this question be answered in the affirmative. Generally, title III of the ADA prohibits public accommodations, such as dentists and other health care providers, from discriminating on the basis of disability. Please see the enclosed title III regulation at sections 36.104 and 36.201, pages 35594-95, for further discussion of this issue. This prohibition of discrimination entails several specific requirements, two of which are particularly relevant here. First, public accommodations are required to remove architectural barriers to accessibility if the barrier removal is readily achievable, i.e. easily accomplished and able to be carried out without much difficulty or expense. Please see the enclosed title III regulation at section 36.304, page 35597. Whether barrier removal is readily achievable depends on a host of factors which include, but are not limited to, the nature and cost of the action, the overall financial resources of the site involved, the number of persons employed at the site, the existence of a parent organization, and the type of activity conducted at the site. The Department has declined to establish any kind of numerical formula for determining whether an action is readily achievable. Instead, the Department has approved a flexible case-by-case balancing of the listed factors. Please refer to the regulation at section 36.104, pages 35594 and 3555354, for further discussion. Second, public accommodations are required to utilize readily achievable alternatives to barrier removal when removal of barriers is itself not readily achievable. Please refer to the regulation at section 36.305, page 35598. For instance, if it were not readily achievable for the owners of a drug store to install a ramp to make the store accessible to people with mobility impairments, they could satisfy their ADA obligations by providing home delivery of prescription drugs and other items. Please see the enclosed regulation at section 36.305, pages 35598 and 35570-71.

Generally, the ADA does not require public accommodations to provide home delivery services to their customers. However, as the prescription drug example illustrates, public accommodations may engage in home-based services as a readily achievable alternative to removing existing architectural barriers at the service providers' facility, when removing existing architectural barriers at the facility is itself not readily achievable. While 01-03468 -3the ADA does not require dentists to purchase portable dental equipment or to provide in-home dental care to persons with disabilities, expenses related to in-home care may be eligible for the Access Credit if they are incurred as a readily achievable alternative to removing barriers at the dentists' offices. I have also enclosed this Department's Title III Technical Assistance Manual which was written to guide individuals and entities having rights and obligations under the Act toward a fuller understanding of the law. Pertinent discussion is found at page two (definition of a place of public accommodation), pages 28-32 (readily achievable barrier removal), and pages 37-42 (readily achievable alternatives to barrier removal). I hope this information is useful to you in responding to your constituent. Sincerely,

Deval L. Patrick Assistant Attorney General Civil Rights Division Enclosures 01-03469

July 17, 1994 The Honorable Howell Heflin United States Senate Washington, D.C. Dear Senator Heflin, I have been directed to your office by the IRS concerning legislative definition about tax codes and credits covering the removal of architectural barriers as defined under the Americans with Disabilities Act tax advantages for compliance with the mandate of the Act to seek to make available services for the entire handicapped population. The First District Dental Chapter of Mobile presided over this year by Dr. Langly D.M.D. asked Dr. George Allen D.M.D. to begin the process of organizing a Dental Access Program for the homebound handicapped in our area. Dr. Allen contacted me and my husband as interested consumers to participate in formulating a design for an access program which would attempt to best address our community's particular needs in this area of outreach. As we have begun tackling this challenge to develop a dental access program for our homebound handicapped, we have discovered that purchasing the special portable equipment, incurring the maintenance and management cost of this effort, and the calculated out of office time required to reach the homebound handicapped with dental care is an expense not specifically addressed or defined under the tax credits allotted under the Americans with Disabilities Act for the removal of architectural barriers. For the homebound handicapped the home is the architectural

barrier which denies access to dental care. To remove this architectural barrier for these handicapped citizens, home services must be provided. In the case of dental care there is completely portable dental equipment available capable of providing comprehensive dental treatment to the homebound. With this portable dental equipment and the service to attend a patient in the home, the architectural barrier to this specific group of handicapped citizen is removed. This certainly appears to comply with the intent of the Americans with Disabilities Act under the provisions outlined regarding the removal of architectural barriers. The IRS representative assigned my inquiry regarding this matter conceded our position had merit and if only under the intent of the Act might certainly qualify. But, because of lack of legislative definition and prescription concerning the issue of architectural barriers and the homebound, IRS would have to have legislative determination. I was referred to my senior representative. 01-03470

According to IRS we need a few definitions: 1) What specifically constitutes the removal of architectural barriers for the homebound handicapped with regard to tax codes and credits as outlined under the Americans with Disabilities Act? 2) What tax credits will apply for services rendered which are provided in the home for the purpose of meeting the specific needs of the homebound handicapped under the tax incentives for removal of architectural barriers as outlined in the Americans with Disabilities Act? 3) How will equipment be defined as necessary for the removal of architectural barriers for the homebound handicapped as mandated under the Americans with Disabilities Act? In our own local effort we are finding that the reference to 'homebound handicapped' is a large umbrella which can eventually include patients from many if not all disabling conditions, particularly those which are by nature progressive. Though our local dental chapter is being responsive to the community's need for dental care for all its handicapped citizens and all involved surely want this effort to be a success, it is to be noted that not every dentist is necessarily eager to participate in a program for the homebound handicapped. To provide care to this special group of citizens can be time consuming reducing in office opportunities for patients and income and costly in other areas of supplies and equipment.

We have many homebound citizens in our area and though our numbers are not fully compiled, our Area Agency on Aging gives a rough estimate of 500 to 600 homebound elderly and handicapped now receiving some services through their agency alone. This, as you can see, is not an insignificant number. And though not all of these citizens are immediate candidates necessarily for homebound dental services, the number is felt to be a reasonable reflection of the kind of large numbers of patients who could ultimately benefit from homebound dental care in some capacity. To have a few dentists trying to meet such a load is a burden so great as to swamp this effort and doom it to failure quickly. As an inducement to increase participation in the effort and encourage all the dentists in our area to consider providing homebound care for some patients, permitting dentists full and fair use of tax credits offered under the already established tax credits for the removal of architectural barriers might well provide that balance and incentive to make participation cost effective. One of the considerations mentioned by the IRS representative was a concern that such tax credits would be more costly to the public than cost effective. There are anecdotes to illustrate the cost advantages of providing ongoing preventive dental care. The mouth being a part of the body when left unattended simply does not heal itself. Disease of teeth and gums usually becomes progressively worse when untreated, and ultimately more than dental health can be compromised. 01-03471 The ensuing health problems can often be of great expense to public and private institutions, hospitals, private citizens and insurance companies forced to pay for complex treatments which could have been avoided had timely attention to the problem been available. All information to which laypeople are privy seem to consistently prove that prevention is indeed cheaper when bought by the ounce than when the pound price is extracted for the cure. If IRS is correct in its assessment of the tax law as it stands, the special architectural barriers and considerations of the homebound handicapped seem to have been utterly overlooked in the present tax code, though stated in essense in the Americans with Disabilities Act itself. This neglect is perhaps fostered by the reality of the seclusion of the members of the homebound handicapped population who cannot be physically present during debates and organizational activities to let their unique limitations and restrictions be known. Individual health issues of the homebound handicapped population are carefully covered under the many banners provided for in the Act. But when a citizen under any of these banners becomes homebound, all become restricted by the same architectural barrier, the home or place of residence. We truly feel we need the tax code to reflect an awareness of this particular architectural barrier and open the tax credits to include responsible and on-going efforts organized

beyond regular and standard business practices to meet the needs of the homebound. I hope this letter is satisfactory in explaining our request. If not please call XX and we will try to do better. Thanks so much for your help. We await hearing from your office on this matter. Sincerely, XX

Mobile, AL XX 01-03472