JUL 21 1995 Ms. Patricia E.

Ryan Executive Director Maine Human Rights Commission State House Station 51 Augusta, Maine 04333-0051 Dear Ms. Ryan: This letter is in response to your letter requesting that the Department of Justice preliminarily review the proposed amendments to the Maine Human Rights Act (law) and provide technical assistance regarding their equivalency to the new construction and alterations requirements of title III of the Americans with Disabilities Act (ADA). Our preliminary review of the Maine law indicates that you have made significant progress toward an ADA-equivalent law. We appreciate your efforts, as well as your patience in awaiting our response. Our review has also raised several potential problems and ambiguities, described in detail below. In order to provide a timely response, we have limited our review to major issues that might arise if the Maine law were submitted for a certification determination pursuant to the regulation implementing title III. 28 C.F.R. § 36.601 et seq. Our analysis is not intended to address comprehensively all potential ways in which the Maine law compares with the ADA's construction requirements. We have reviewed only the new construction and alterations provisions of the Maine law. Certification does not apply to other aspects of human rights laws. In addition, we have evaluated the Maine law's consistency with title III of the ADA only. Certification does not apply to facilities subject to title II of the ADA or to purely residential facilities. cc: Records, Chrono, Wodatch, Hill, FOIA n:\udd\hille\maine\tal.ltr\sc. young-parran 01-03675 ​ 1. General Concerns -2-

The limited availability of plan review and pre-construction enforcement does not prevent certification but it does significantly limit builders' ability to take advantage of the full benefits of certification. For example, without any mechanism for official approval by the Fire Marshall, builders of facilities other than restaurants, hotels, government buildings, and schools will have to specifically prove compliance with the State law before they can gain the benefit of certification's rebuttable evidence of ADA compliance. In addition, lack of mandatory plan review will increase the burdens on individuals and on the Commission to enforce the law through litigation. Increased mandatory plan review could avoid such litigation as well the increased costs of providing accessible features after construction is completed. 2. Ambiguous Provisions A number of the provisions of the Maine law are unclear. While these issues will not necessarily prevent certification, clarification would facilitate our review. a. Enforcement The Fire Marshall's authority regarding voluntary submissions (costing less then $50,000) and submissions of plans for buildings other than restaurants, hotels, government buildings, and schools, is unclear. The Maine law does not specify whether the Fire Marshall has a duty to identify violations or what the Fire Marshall's responsibility is when a violation is found. b. Alterations The requirements for alterations impose five specific requirements for alterations costing over $100,000 that affect areas open to the public. It is unclear whether these requirements must be met in addition to the general requirement that the altered area and the path of travel be accessible. In addition, it is unclear whether the builder must satisfy the five requirements for every area of the building, for only the altered area, or for some other number of areas. Because the requirement for accessible doors refers only to technical specifications without scoping, it is unclear how many doors are required to be accessible. Because the requirement for

toilet stalls requires all the stalls in a toilet room to be accessible, it substantially exceeds the ADA's general requirement that one stall be accessible. Finally, because the requirement for parking refers only to the ADA scoping provision 01-03676 ​ -3without technical specifications, it does not require the reserved space to be usable by individuals with disabilities. The Maine law's path of travel requirement is split into two provisions; one for alterations over $100,000 and one for smaller alterations. In the provision for large alterations, the 20% cost limit is correctly addressed, as are priorities for providing access. The provision for smaller alterations simply requires an accessible path of travel when it is "not disproportionate to the overall alterations in terms of cost and scope." It needs to be made clear that the same standard of disproportionality (20%) applies to small alterations as applies to large ones. c. Waivers Certification will not apply to waivers of ADA requirements that may be granted by reviewing officials. Therefore, if a builder applies for a waiver of an ADA accessibility requirement for an element of a building, he or she will not be entitled to certification's rebuttable evidence of compliance for that element. The Maine law's waiver provision for structural impracticability is an example of an uncertified waiver provision. This waiver provision does, however, create an ambiguity that needs to be addressed. The ADA Standards, which are incorporated into the Maine law as the required construction standard, already include an exception for structural impracticability (S 4.1.1(5)). Therefore, the need for the additional waiver in the Maine law is unclear. The Maine law also provides a waiver for two-story buildings if installation of an elevator would be technologically infeasible or would result in undue costs. It is not clear whether this waiver would eliminate all accessibility requirements for eligible buildings, or whether it will only lift the elevator requirement. If it lifts requirements other than the elevator requirement, this waiver is less stringent than the

ADA, which requires upper floors to be accessible in non-elevator buildings. If it lifts only the elevator requirement, this waiver exceeds the ADA, which generally does not require an elevator in two-story buildings. Because waivers are uncertified, these differences between the Maine law and the ADA will not prevent certification. More significantly, it is not clear how Maine's elevator waiver provision is to be reconciled with the incorporated ADA Standards. Because the ADA Standards include an elevator exception for two-story buildings, the Maine elevator waiver seems unnecessary. If the intent of the Maine law is not to 01-03677 ​ -4incorporate the ADA elevator exception, that intent needs to be clarified. d. Effective date Any future certification determination would be limited to the amended law's requirements in effect as of the date of the determination (i.e., the provisions applicable to construction after January 1, 1995). Certification would not apply to the law's provisions applicable before the 1995 amendments. Because those provisions are still included in the Maine law and have not been repealed, there may be some confusion on this point. It would be more clear if the Maine law explicitly stated that those earlier provisions were no longer in effect. e. Incorporation of "ADAAG" The proposed amendments incorporate the ADA Accessibility Guidelines (ADAAG) as the applicable construction standard. It would be more correct to refer to the "ADA Standards for Accessible Design," which are codified at 28 C.F.R. Part 36, Appendix A. This reference more accurately describes the standards adopted and enforced under the ADA, as distinct from the unenforceable guidelines on which the standards are based. It is unclear how the Maine law will address future amendments to the ADA Standards for Accessible Design, i.e., whether such amendments will automatically be incorporated into the Maine law. 3. Specific Problems

a. Conflicts There may be conflicts between the requirements of the Maine law and the requirements of other building-related codes (e.g., municipal building codes, fire protection codes). It is unclear how such conflicts will be resolved. b. Covered facilities The Maine law requires places of public accommodation and "places of employment" to comply with the new construction requirements. Although "places of employment" may provide equivalent coverage, the term needs to be defined (i.e., whether it will include volunteer organizations). In addition, the Maine law's alterations requirements apply to places of public accommodation and "commercial facilities." The scope of coverage for new construction and alterations is the same under the ADA. The use of two different terms in the Maine 01-03678 ​ -5law indicates that the scope of coverage differs for new construction and alterations. c. Defenses The proposed amendments add definitions of "readily achievable" and "undue hardship." However, those terms do not appear to be used in the Maine law. Inclusion of those definitions may lead builders to believe they have defenses that are not really available. d. "Disability" The Maine law limits the definition of covered disabilities to those caused by certain listed events. The ADA determines coverage based on the extent of a disability's effect on an individual's major life activities, not on its cause. In addition, the Maine law appears to rely on diagnosis by a health care provider in order to determine whether a person's disability is covered. The ADA does not restrict coverage to only those disabilities that are medically diagnosed. I hope these comments are helpful to you in preparing the final Maine law and that you will soon be in a position to submit

a request for certification of the Maine law. We would be happy to discuss our comments with you at your convenience. Feel free to call Eve Hill at (202) 307-0663 to arrange such a discussion. Sincerely,

John L. Wodatch Chief Disability Rights Section cc: Mr. Lawrence W. Roffee Executive Director U.S. Architectural & Transportation Barriers Compliance Board 01-03679