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U.S.

Department of Justice
Civil Rights Division
DJ 192-06-00025
Coordination and Review Section
P.O. Box 66118
Washington, D.C. 20035-6118

JUN 15 1992

Charles E. Scharbrough, AIA, CSI


Paul I Cripe, Inc.
7172 Graham Road
Indianapolis, Indiana 46250

Dear Mr. Scharbrough:

This letter responds to your April 29, 1992, letter


requesting a clarification of the relationship of the program
accessibility requirements of the Department of Justice's
regulation implementing title II of the Americans With
Disabilities Act (ADA), 28 C.F.R. part 35, and the accessibility
guidelines for newly constructed or altered facilities contained
in the Americans With Disabilities Act Accessibility Guidelines
(ADAAG). ADAAG was issued by the Architectural and
Transportation Barriers Compliance Board (ATBCB) and is found at
Appendix A to the Department of Justice's regulation implementing
title III of the ADA, 28 C.F.R. part 36. These regulations
became effective on January 26, 1992.

The ADA authorizes the Department of Justice to provide


technical assistance to entities that are subject to the Act.
This letter provides informal guidance to assist you in
understanding how the ADA may apply to you. However, this
technical assistance does not constitute a determination by the
Department of Justice of your rights or responsibilities under
the ADA and does not constitute a binding determination by the
Department of Justice.

Concerning the requirements for program accessibility, 28


C.F.R. 35.150 provides, in relevant part:

(a) General. A public entity shall operate each


service, program, or activity so that the service,
program, or activity, when viewed in its entirety, is
readily accessible to and usable by individuals with
disabilities.

Recently, the Department issued a Title II Technical Assistance


Manual that explains the requirements of program accessibility in
existing facilities under section 35.150. We have enclosed a
copy of the manual for your information.

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On the issue of program accessibility, a city, county, or
State may not deny the benefits of its programs, activities, and
services to individuals with disabilities because its facilities
are inaccessible. The services, programs, or activities, when
viewed in their entirety, must be readily accessible to and
usable by individuals with disabilities. Public entities,
however, are not necessarily required to make each of their
existing facilities accessible. See Technical Assistance Manual
at 19-20. The primary focus of program accessibility is not on
existing facilities but whether the programs, services, or
activities provided by a local government are readily accessible
to individuals with a disabilities. Program accessibility may or
may not require alterations to existing facilities.

With respect to the construction of new facilities or the


alteration of existing ones, the title II regulation provides, in
relevant part, at 28 C.F.R. 35.151:

(a) Design and construction. Each facility or


part of a facility constructed by, on behalf of, or for
the use of a public entity shall be designed and
constructed in such manner that the facility or part of
the facility is readily accessible to and usable by
individuals with disabilities, if the construction was
commenced after January 26, 1992.

(b) Alteration. Each facility or part of a


facility altered by, on behalf of, or for the use of a
public entity in a manner that affects or could affect
the usability of the facility or part of the facility
shall, to the maximum extent feasible, be altered in
such manner that the altered portion of the facility is
readily accessible to and usable by individuals with
disabilities, if the alteration was commenced after
January 26, 1992.
Thus, all facilities designed, constructed, or altered by, on
behalf of, or for the use of a public entity must be readily
accessible and usable by individuals with disabilities, if the
construction or alteration is begun after January 26, 1992.

Under the regulation, public entities may select from two


design standards for new construction and alterations -- the
Uniform Federal Accessibility Standards (UFAS) or the Americans
with Disabilities Act Accessibility Guidelines for Buildings and
Facilities (ADAAG), which is the standard that must be used for
public accommodations and commercial facilities under title III
of the ADA. 28 C.F.R. 35.151(c). If ADAAG is chosen, however,
public entities are not entitled to the elevator exemption (which
permits certain buildings under three stories or under 3,000
square feet per floor to be constructed without an elevator). See
Technical Assistance Manual at 23. Therefore, the standards for
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of the ADA. 28 C.F.R. 35.151(c). If ADAAG is chosen, however,


public entities are not entitled to the elevator exemption (which
permits certain buildings under three stories or under 3,000
square feet per floor to be constructed without an elevator). See
Technical Assistance Manual at 23. Therefore, the standards for
the construction of new facilities or alterations to existing
facilities address the facility itself rather than the program,
service, or activity offered there. New facilities must be
constructed so that they are readily accessible to and usable by
individuals with disabilities without regard to the program,
service, or activity that will or may be offered in the facility.

Even where a public entity fully complies with ADAAG or UFAS


in constructing new facilities or altering existing ones, if an
individual with a particular disability is unable to enter a
facility where a program, service, or activity is offered (e.g.,
a ramp complying with ADAAG standards is too steep for the
individual to ascend), a public entity would have to make the
program, service, or activity offered in the facility accessible.
Program accessibility could be provided through such means as
relocating the program, service, or activity to an accessible
site. Therefore, program accessibility may impose stricter
standards than those required for new construction because all
individuals must be served.
In your letter, you reference some ADAAG scoping
requirements for parking and assembly seating areas. The ATBCB
has determined that these scoping requirements are the minimum
standards for these particular elements to make a new facility
accessible. This does not mean that existing facilities
necessarily would have to be altered to comply with these scoping
requirements. Program accessibility is based on whether a
government's programs, activities, and services, when viewed in
their entirety, are readily accessible and not whether a
particular facility is readily accessible to and usable by
individuals with disabilities. This determination should be made
as part of the public entity's self-evaluation process.

I hope this information is helpful to you.

Sincerely,

Stewart B. Oneglia
Chief
Coordination and Review Section
Civil Rights Division

Enclosure

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