DJ 202-PL-820 DEC 19 1994 David I.

McCaskey Attorney at Law 24 West Beverley Street PO Box 1134 Staunton, Virginia 24402-1134 Dear Mr. McCaskey: This letter is in response to your inquiry concerning provision of auxiliary aids and services and, more specifically, your request for an individual determination of what constitutes an "undue burden" under title III of the Americans with Disabilities Act. The Americans with Disabilities Act (ADA) authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the ADA's requirements. It does not, however, constitute a legal interpretation, and it is not binding on the Department. As your letter indicates, you are both familiar with, and sensitive to, the need for the provision of auxiliary aids and services in order to ensure effective communication under title III of the ADA. The auxiliary aids requirement is intended to be flexible, reflecting the variable nature of what constitutes "effectiveness" in different circumstances. In addition to the specific nature of the disability involved, factors used to determine effectiveness in any particular situation include the length, complexity, and significance of the information being exchanged. Many lawyer-client discussions, even those which might be characterized as routine, require lengthy, complex communication that has the potential for long-term impact on the client's well-being. Further discussion of the effective communication requirement may be found on page 35567 of the enclosed title III regulation. You are also familiar with the provisions of section 36.301(c) which require that the public accommodation absorb the costs associated with the provision of auxiliary aids and services, unless this would result in an "undue burden". As

cc: FOIA 01-03549​ -2provided in section 36.303(f), the term "undue burden" means "significant difficulty or expense". In determining whether the provision of an interpreter or other aids or services would result in an undue burden, the legal practitioner should consider the overall financial resources of the practice, not just the fees paid for a particular appointment or service. The practitioner should weigh other factors that would minimize the degree of burden on the practice, such as the ability to spread costs throughout the general client population and the opportunity to exercise alternative measures, such as those you describe, which have the effect of further reducing the financial burden on the practice. Tax incentives, particularly tax credits for small businesses for costs incurred to provide auxiliary aids and services, are also available to you. Eligibility criteria for this credit are found in Publication 907, available from the IRS. Your letter requests a determination from the Department of Justice that it would be an undue burden for you to provide interpreters in your situation. However, because undue burden must be determined on a case-by-case basis in light of the particular circumstances at issue, the Department of Justice does not make such determinations absent a complaint investigation. It is up to the public accommodation to determine whether providing an auxiliary aid would result in an undue burden and then to justify its determination in the event that an enforcement action is initiated by the Department of Justice or by a private individual. I hope this information is helpful to you. Sincerely, John L. Wodatch Chief Public Access Section 01-03550