JUN 5 1994

T. 6/17/94
MAF:AMP:ca
DJ 204-29-0

Ms. Kathleen Hagen

Attorney-at-Law
Minnesota Disability Law Center
430 First Avenue North, Suite 300
Minneapolis, Minnesota 55401

Dear Ms. Hagen:

This is in response to your letter to Attorney General Janet

Reno regarding a letter to her from the Council of State
Administrators of Vocational Rehabilitation. Although we are
unable to comment on correspondence the Attorney General
receives, we are able to address the issues you raise in your
letter. Specifically, you express concern regarding the
responsibility of State Vocational Rehabilitation Agencies to pay
the cost of auxiliary aids for students with disabilities in
light of newly raised arguments that the Americans with
Disabilities Act of 1990 (ADA) changes the existing allocation of
responsibility to pay for such aids. We apologize for any delay
in responding to your letter.

The ADA authorizes the Department to provide technical

assistance to individuals and entities with rights or obligations
under the Act. This letter does not constitute a legal
interpretation or a formal legal opinion, and is not binding on
the Department of Justice.

Generally, under the ADA, both public and private

institutions of higher education have an independent
responsibility to provide auxiliary aids and services, such as
interpreter services and readers, to individuals with
disabilities. Under title II this obligation arises when such
aids and services are " ... 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 a
public entity." See Section 35.160(b)(1) of the enclosed
title II regulation.

CC: Records CRS Chrono MAF Pecht. FOIA congress.93/hagen

McDowney

01-03136

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Under title III, such aids and services must be provided

". . . when 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 .... " See Section 36.303(a) of
the enclosed title III regulation.

The provision of an aid or service is not required under

either regulation when the covered entity can demonstrate that
providing such an aid or service would result in a fundamental
alteration in the program or activity being offered (or, in the
case of a title III entity, in the nature of the goods, services,
facilities, privileges, advantages or accommodations being
offered) or in undue burdens. These concepts are explained in
more detail in the enclosed regulations and in section II-7.0000
of the enclosed title II Technical Assistance Manual and section
III-4.3000 of the enclosed title III Technical Assistance Manual.

The ADA was not intended to affect existing law and policy
under the Rehabilitation Act of 1973, as amended (the
Rehabilitation Act), with respect to the general obligations of
State Rehabilitation Agencies. As noted in the preamble to the
original regulation, promulgated by the now-defunct Department of
Health, Education and Welfare to implement Section 504 of the
Rehabilitation Act, " ... the Department anticipates that the bulk
of auxiliary aids will be paid for by state and private agencies,
not by colleges and universities." See 42 FR 22693 (May 4,
1977). Nothing in this Department's title II regulation was
intended to change that expectation. The specific issue of
whether a student who is not already the client of a Vocational
Rehabilitation program can be required to apply for vocational
rehabilitation services is currently under review.

We hope that this information will be of assistance to you.

Sincerely,

Deval L. Patrick
Assistant Attorney General
Civil Rights Division

Enclosures (4)

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