OCT 5 1995 The Honorable Norma Cantu Assistant Secretary for Civil Rights U.S.

Department of Education 330 C Street, S.W. Suite 5000 Washington, D.C. 20202-1100 Dear Ms. Cantu: This letter addresses your inquiry regarding the provision of sign language interpreters to college students. You asked if the Americans with Disabilities Act (ADA) would permit a college to require students who are not clients of State vocational rehabilitation agencies to apply to such agencies in order to reimburse the college for the costs of needed sign language interpreters or other auxiliary aids. Title III of the ADA requires private institutions of higher education to provide auxiliary aids and services, including qualified interpreters, to students where 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. 28 CFR S 36.303. Title II of the ADA requires public institutions of higher education to furnish appropriate auxiliary aids and services, including qualified interpreters, where 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 the institution. 28 CFR S 35.160. Section 504 of the Rehabilitation Act also requires postsecondary schools that receive federal financial assistance to provide appropriate auxiliary aids. 34 CFR S 104.44(d). None of these regulations require an entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial or administrative burdens. A college's obligation to provide auxiliary aids, however, is not dependent on the availability of vocational rehabilitation or other funding. cc: Records; Chrono; Wodatch; Blizard; Milton; FOIA n:\udd\milton\rsa.3\sc. young-parran 01-03697​ -2-

The Federal regulations implementing titles II and III expressly prohibit the imposition of a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of interpreters or other auxiliary aids or services, that are required to provide an individual or group with the nondiscriminatory treatment required by the ADA. 28 CFR SS 35.130(f), 36.301(c). Requiring a student with a hearing impairment or other disability to apply for participation in the vocational rehabilitation program could impose a direct financial obligation on the student if a State vocational rehabilitation agency has established, as permitted by program regulations in 34 CFR 361.47(a), a financial need test on the provision of certain auxiliary aids, such as interpreter services or reader services, whereby the student is required to pay part of the cost of the needed services. Even if a State vocational rehabilitation agency has not established such a financial need test, the student may expend considerable time and effort in meeting the procedural requirements for receiving services. Before any services can be initiated, the Rehabilitation Act requires a formal application for services, an eligibility determination, which may involve a comprehensive assessment of the individual's vocational aptitudes and interests, functional capacities, personality and interpersonal skills, and medical condition if existing data is determined to be insufficient. Then the applicant and the vocational rehabilitation counselor jointly must develop an individualized written rehabilitation program identifying all services needed to achieve a particular outcome. Requiring a student with a disability to complete this process as a prerequisite to obtaining auxiliary aids that Federal law requires the postsecondary institution to provide, imposes a burden on students with disabilities that is not imposed on other students. In our view, this expenditure of time and effort may be quantified as a cost imposed on the student as a precondition to the provision of a required auxiliary aid; therefore, it is prohibited by the ADA. No different result should be reached under section 504 because the Department of Education regulation implementing section 504 expressly requires covered postsecondary institutions to provide auxiliary aids for students with disabilities. 34 CFR S 104.44(d). This clearly requires covered entities to ensure that auxiliary aids are provided to qualified students with

disabilities regardless of their financial need or the availability of outside funding. U.S. v. Bd. of Trustees for the Univ. of Alabama, 908 F.2d 740 (11th Cir. 1990) 01-03698​ -3Neither the ADA nor section 504 prohibits a postsecondary institution from encouraging eligible students to take advantage of any benefits available to them, including participation in a vocational rehabilitation program. However, the decision to participate must be made voluntarily by the student. A postsecondary institution may not require a student to apply for benefits, it may not withhold payment for required auxiliary aids while the student's vocational rehabilitation eligibility is being determined, and it may not refuse to fund any portion of the cost of required auxiliary aids that is not covered by the vocational rehabilitation program in States where a financial need test is applied to vocational rehabilitation clients. I hope this information is helpful to you in resolving this issue. Sincerely, Deval L. Patrick Assistant Attorney General Civil Rights Division cc: The Honorable Judith E. Heumann Assistant Secretary for Special Education and Rehabilitative Services U.S. Department of Education 01-03699