NORTHERN BORDER PROSECUTION INITIATIVE
GUIDELINES
Fiscal Year 2013

Beginning in Fiscal Year 2013, the Bureau of Justice Assistance (BJA) will only
reimburse prosecution costs and will no longer reimburse detention costs under the
Northern Border Prosecution Program.

APPLICATION PROCESS
All Northern Border Prosecution Initiative (NBPI) applications must be submitted online at
http://www.ojp.usdoj.gov/nbpi. Eligible county and state governments in Alaska, Idaho,
Maine, Michigan, Minnesota, Montana, New Hampshire, New York, North Dakota, Ohio,
Pennsylvania, Vermont, Washington, and Wisconsin may apply for funds, in accordance with
established reporting periods and funding availability.
NON-COMPETITIVE APPROVAL PROCESS
Applications are reviewed and approved on the basis of their adherence to program guidelines,
and funding availability. Applicants will receive up to 100 percent of eligible case costs, based
on the availability of funds. Should application amounts exceed available funding, applicants will
receive funds on a uniform, pro-rata basis.
ELIGIBLE JURISDICTIONS
A county or state government in Alaska, Idaho, Maine, Michigan, Minnesota, Montana, New
Hampshire, New York, North Dakota, Ohio, Pennsylvania, Vermont, Washington, and
Wisconsin may participate if it prosecuted a defendant in a federally initiated and
declined/referred criminal case that was disposed of during the applicable reporting period.
ELIGIBLE APPLICANTS
An applicant must be the Chief Executive Officer (CEO) or an authorized designee of any
eligible jurisdiction in Alaska, Idaho, Maine, Michigan, Minnesota, Montana, New Hampshire,
New York, North Dakota, Ohio, Pennsylvania, Vermont, Washington, and Wisconsin. CEOs are
the highest ranking administrative or elected official of a unit of general government, such as the
Governor, President of the County Commissioners, County Executive, or County Judge. Only
employees, such as a Sheriff or County Prosecutor, of the applicant jurisdiction can serve as an
authorized designee for NBPI.
APPLICANT COST PROFILE
An applicant must submit the following information in its NBPI profile for each reporting period it
is requesting reimbursement of NBPI funds:
Total Felony Cases: The number of all felony cases prosecuted and resolved during the
reporting period in the jurisdiction. This number should include federally declined as well as
regular, resolved felony cases.
Total Misdemeanor Cases: The number of all misdemeanor cases prosecuted and resolved
during the reporting period in the jurisdiction. This number should include federally declined as
well as regular, resolved misdemeanor cases.

1

 APPLICANT SALARY PROFILE
An applicant must submit the following information in its NBPI profile for each reporting period it
is requesting reimbursement of NBPI funds. If a jurisdiction is only entering felony cases, they
must enter only personnel who work on felony cases. If a jurisdiction is only entering
misdemeanor cases, they must enter only personnel who work on misdemeanor cases. The
number and salary costs for each personnel category should reflect the personnel who work on
all felony or misdemeanor cases, not only federally initiated cases.
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Total Salary and Number of Prosecutors on Staff: This total must reflect the total salaries
and wages paid to full- and part-time prosecutors who are assigned to prosecuting
cases.
Total Salary and Number of Judges on Staff: This total must reflect the total salaries and
wages paid to full- and part-time judges who are assigned to hearing cases.
Total Salary and Number of Public Defenders on Staff: This total must reflect the total
salaries and wages paid to full- and part-time public defenders who are assigned to
defending cases.
Total Salary and Number of Clerical Staff: This total must reflect the total salaries and
wages paid to full- and part-time clerical staff whose primary responsibility was to assist
with the tracking, scheduling or processing of cases.
Total Salary and Number of Paralegals on Staff: This total must reflect the total salaries
and wages paid to full- and part-time paralegals whose primary responsibility was to
assist with the prosecution of cases.
Total Salary and Number of Indigent Screening Personnel: This total must reflect the
total salaries and wages paid to full- and part-time personnel whose primary
responsibility was to conduct indigent defendant screening for cases.
The reported sum for each personnel category should total the jurisdiction’s actual salary
expenditures for the reporting period, not an estimate or average.
All salary costs may include benefits and overtime required by negotiated contract,
statute, or regulation such as union agreements, contractual obligations, and required
post staffing minimums.

ELIGIBLE CASES
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Federally initiated criminal case. Jurisdictions must have supporting documentation that
shows the submitted cases were federally initiated.
Declined/referred to a county or state jurisdiction after October 1, 2005.
Prosecuted by a state or county prosecutor.
Disposed of during a designated reporting period.
Each defendant represents a separate case; one case with multiple defendants should
be claimed as separate cases.
One defendant charged in multiple cases should be claimed as only one case to the
extent the defendant's cases are being investigated and/or prosecuted during concurrent
periods of time.

A case is eligible, regardless of:
 The level, type, or number of criminal offenses involved.
 The defendant's age or citizenship status at the time of the federal referral.
 Whether the case was formally declined/referred by a U.S. Attorney, or declined/referred
through a blanket federal declination-referral policy; accepted federal law enforcement
practice; or federal prosecutorial discretion.

2

 

Whether state or local law enforcement participated with federal authorities in the
investigation or arrest (federal/state task forces).

INELIGIBLE CASES
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Federally referred case declined and not prosecuted by state or county prosecutors.
Probation or parole violation or revocation hearings. A new charge(s) not independently
prosecuted, but used as a basis for a probation or parole revocation hearing, is in
eligible for reimbursement
Extradition cases.
Cases not accepted by state or county prosecutors.

CASE REPORTING PERIOD
FY 2013 Reporting Period: July 1, 2011 through June 30, 2012
Cases are eligible for NBPI submission only during the reporting period in which the case was
resolved.
FEDERALLY INITIATED CASES
A federally initiated case results from a criminal investigation or an arrest involving federal law
enforcement authorities for a potential violation of federal criminal law, including task forces on
which a federal agency or officer participates in the investigation or arrest process. Jurisdictions
applying for NBPI funds must enter the referring federal agency on each case submitted for
prosecution costs in the online application.
FEDERAL DECLINATION/REFERRAL
A federal declination/referral occurs when, during an investigation or following an arrest, a U.S.
Attorney or a federal law enforcement official decides not to pursue federal criminal charges
against a defendant (declination) and requests that a state or local jurisdiction prosecute the
defendant for possible violation of state or local criminal statutes (referral).
Should a decision be made by a U.S. Attorney to subsequently pursue federal charges against
a previously referred defendant, the time spent by the state or local jurisdiction in their
prosecution and/or detention of the defendant on state criminal charges is eligible for NBPI
funding.
Jurisdictions unable to provide a declination/referral from the U.S. Attorney for their area will not
be eligible to receive NBPI funds.
CASE RESOLUTION
For NBPI purposes, case resolution refers to the time between a suspect's arrest and the
resolution through dismissal, plea, conviction, or sentencing of the criminal charges through a
county or state judicial or prosecutorial process. For defendants not physically arrested,
alternative start dates are the date of indictment, date of the initial criminal summons, or date of
the summons to appear.
CASE APPLICATION REQUIREMENTS
For each case submitted for NBPI funds, the jurisdiction must provide the following information:
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Docket or Case Number.
Defendant’s Last Name.

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Defendant’s First Name.
Defendant’s Middle Initial, if known.
Referring Federal Agency.
Referred Date.
Resolution.
Resolved Date.

PROSECUTION AWARD CALCULATION
The number of federally declined cases divided by the total felony or misdemeanor cases for a
jurisdiction equals the percentage of federally declined cases the jurisdiction resolved during the
reporting period among all of the felony or misdemeanor cases in the jurisdiction. The
percentage is then multiplied by the total salary costs to equal to the total prosecution costs.
FINAL APPLICATION VALUE
Total Prosecution Costs = Total Application Value
UNALLOWABLE COSTS
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Time spent by prosecutors on judicial appeals. Time spent by prosecutors on
interlocutory appeals brought prior to trial, pleas or dismissal is allowable.
Incarceration time for sentenced offenders.
Detention costs.

DOCUMENTATION
Documents supporting a federally initiated and declined/referred case must be retained for three
years after the submission of the case for NBPI funds. Documents can include paper or
electronic case files, e-mails from the U.S. Attorney’s Office, case notes, or documentation of
telephone or face-to-face meetings with U.S. Attorney’s Office staff or federal law enforcement
officials. Court and arrest records for each case submitted for NBPI funding may be requested
by the Bureau of Justice Assistance for pre- and post-award review. Any cases that do not have
the corresponding court and arrest records will not be considered for NBPI funding.
OTHER FEDERAL PROSECUTION
Documentation must be maintained to support that NBPI funds, when combined with other
federal prosecution funds, do not exceed 100 percent of the prosecution costs for NBPI cases.
REQUEST ELECTRONIC PAYMENTS
Once the BJA review of awards is complete, NBPI participants will be notified to login to the
NBPI system and request payment. Each jurisdiction will have 45 days to complete the
certification and payment request. After 45 days, the funds may no longer be available.

USE OF FUNDS
While funds from NBPI federal payments may be used by applicant jurisdictions for any purpose
not otherwise prohibited by federal law, using funds for the support and enhancement of
prosecutorial services is encouraged.

4

 SOUTHWEST BORDER PROSECUTION INITIATIVE
GUIDELINES
Fiscal Year 2013

Beginning in Fiscal Year 2013, the Bureau of Justice Assistance (BJA) will only
reimburse prosecution costs and will no longer reimburse detention costs under the
Southwest Border Prosecution Program.

APPLICATION PROCESS
All Southwest Border Prosecution Initiative (SWBPI) applications must be submitted online at
http://www.ojp.usdoj.gov/swbpi/index.html. Eligible county and state governments in
Arizona, California, and Texas, and state governments in New Mexico may apply for funds, in
accordance with established reporting periods and funding availability.
NON-COMPETITIVE APPROVAL PROCESS
Applications are reviewed and approved on the basis of their adherence to program guidelines,
and funding availability. Applicants will receive up to 100 percent of eligible case costs, based
on the availability of funds. Should application amounts exceed available funding, applicants will
receive funds on a uniform, pro-rata basis.
ELIGIBLE JURISDICTIONS
A county or state government in Arizona, California, and Texas, and state governments in New
Mexico may participate if it prosecuted a defendant in a federally initiated and declined/referred
criminal case that was disposed of during the applicable reporting period. In New Mexico,
prosecution services are provided through state agencies and will be reflected in a state-level
application.
ELIGIBLE APPLICANTS
An applicant must be the Chief Executive Officer (CEO) or an authorized designee of any
eligible jurisdiction in Arizona, California, New Mexico, or Texas. CEOs are the highest ranking
administrative or elected official of a unit of general government, such as the Governor,
President of the County Commissioners, County Executive, or County Judge (for counties in
Texas). Only employees, such as a Sheriff or County Prosecutor, of the applicant jurisdiction
can serve as an authorized designee for SWBPI.
APPLICANT COST PROFILE
An applicant must submit the following information in its SWBPI profile for each reporting period
it is requesting reimbursement of SWBPI funds:
Total Felony Cases: The number of all felony cases prosecuted and resolved during the
reporting period in the jurisdiction. This number should include federally declined as well as
regular, resolved felony cases.
Total Misdemeanor Cases: The number of all misdemeanor cases prosecuted and resolved
during the reporting period in the jurisdiction. This number should include federally declined as
well as regular, resolved misdemeanor cases.

1

 APPLICANT SALARY PROFILE
An applicant must submit the following information in its SWBPI profile for each reporting period
it is requesting reimbursement of SWBPI funds. If a jurisdiction is only entering felony cases,
they must enter only personnel who work on felony cases. If a jurisdiction is only entering
misdemeanor cases, they must enter only personnel who work on misdemeanor cases. The
number and salary costs for each personnel category should reflect the personnel who work on
all felony or misdemeanor cases, not only federally initiated cases.









Total Salary and Number of Prosecutors on Staff: This total must reflect the total salaries
and wages paid to full- and part-time prosecutors who are assigned to prosecuting
cases.
Total Salary and Number of Judges on Staff: This total must reflect the total salaries and
wages paid to full- and part-time judges who are assigned to hearing cases.
Total Salary and Number of Public Defenders on Staff: This total must reflect the total
salaries and wages paid to full- and part-time public defenders who are assigned to
defending cases.
Total Salary and Number of Clerical Staff: This total must reflect the total salaries and
wages paid to full- and part-time clerical staff whose primary responsibility was to assist
with the tracking, scheduling or processing of cases.
Total Salary and Number of Paralegals on Staff: This total must reflect the total salaries
and wages paid to full- and part-time paralegals whose primary responsibility was to
assist with the prosecution of cases.
Total Salary and Number of Indigent Screening Personnel: This total must reflect the
total salaries and wages paid to full- and part-time personnel whose primary
responsibility was to conduct indigent defendant screening for cases.
The reported sum for each personnel category should total the jurisdiction’s actual salary
expenditures for the reporting period, not an estimate or average.
All salary costs may include benefits and overtime required by negotiated contract,
statute, or regulation such as union agreements, contractual obligations, and required
post staffing minimums.

ELIGIBLE CASES







Federally initiated criminal case. Jurisdictions must have supporting documentation that
shows the submitted cases were federally initiated.
Declined/referred to a county or state jurisdiction after October 1, 2005.
Prosecuted by a state or county prosecutor.
Disposed of during a designated reporting period.
Each defendant represents a separate case; one case with multiple defendants should
be claimed as separate cases.
One defendant charged in multiple cases should be claimed as only one case to the
extent the defendant's cases are being investigated and/or prosecuted during concurrent
periods of time.

A case is eligible, regardless of:
 The level, type, or number of criminal offenses involved.
 The defendant's age or citizenship status at the time of the federal referral.

2

 
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Whether the case was formally declined/referred by a U.S. Attorney, or declined/referred
through a blanket federal declination-referral policy; accepted federal law enforcement
practice; or federal prosecutorial discretion.
Whether state or local law enforcement participated with federal authorities in the
investigation or arrest (federal/state task forces).

INELIGIBLE CASES





Federally referred case declined and not prosecuted by state or county prosecutors.
Probation or parole violation or revocation hearings. A new charge(s) not independently
prosecuted, but used as a basis for a probation or parole revocation hearing, is in
eligible for reimbursement
Extradition cases.
Cases not accepted by state or county prosecutors.

CASE REPORTING PERIOD
FY 2013 Reporting Period: July 1, 2011 through June 30, 2012
Cases are eligible for SWBPI submission only during the reporting period in which the case was
resolved.
FEDERALLY INITIATED CASES
A federally initiated case results from a criminal investigation or an arrest involving federal law
enforcement authorities for a potential violation of federal criminal law, including task forces on
which a federal agency or officer participates in the investigation or arrest process. Jurisdictions
applying for SWBPI funds must enter the referring federal agency on each case submitted for
prosecution costs in the online application.
FEDERAL DECLINATION/REFERRAL
A federal declination/referral occurs when, during an investigation or following an arrest, a U.S.
Attorney or a federal law enforcement official decides not to pursue federal criminal charges
against a defendant (declination) and requests that a state or local jurisdiction prosecute the
defendant for possible violation of state or local criminal statutes (referral).
Should a decision be made by a U.S. Attorney to subsequently pursue federal charges against
a previously referred defendant, the time spent by the state or local jurisdiction in their
prosecution and/or detention of the defendant on state criminal charges is eligible for SWBPI
funding.
Jurisdictions unable to provide a declination/referral from the U.S. Attorney for their area will not
be eligible to receive SWBPI funds.
CASE RESOLUTION
For SWBPI purposes, case resolution refers to the time between a suspect's arrest and the
resolution through dismissal, plea, conviction, or sentencing of the criminal charges through a
county or state judicial or prosecutorial process. For defendants not physically arrested,
alternative start dates are the date of indictment, date of the initial criminal summons, or date of
the summons to appear.

3

 CASE APPLICATION REQUIREMENTS
For each case submitted for SWBPI funds, the jurisdiction must provide the following
information:
 Docket or Case Number.
 Defendant’s Last Name.
 Defendant’s First Name.
 Defendant’s Middle Initial, if known.
 Referring Federal Agency.
 Referred Date.
 Resolution.
 Resolved Date.
PROSECUTION AWARD CALCULATION
The number of federally declined cases divided by the total felony or misdemeanor cases for a
jurisdiction equals the percentage of federally declined cases the jurisdiction resolved during the
reporting period among all of the felony or misdemeanor cases in the jurisdiction. The
percentage is then multiplied by the total salary costs to equal to the total prosecution costs.
FINAL APPLICATION VALUE
Total Prosecution Costs = Total Application Value
UNALLOWABLE COSTS
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


Time spent by prosecutors on judicial appeals. Time spent by prosecutors on
interlocutory appeals brought prior to trial, pleas or dismissal is allowable.
Incarceration time for sentenced offenders.
Detention costs.

DOCUMENTATION
Documents supporting a federally initiated and declined/referred case must be retained for three
years after the submission of the case for SWBPI funds. Documents can include paper or
electronic case files, e-mails from the U.S. Attorney’s Office, case notes, or documentation of
telephone or face-to-face meetings with U.S. Attorney’s Office staff or federal law enforcement
officials. Court and arrest records for each case submitted for SWBPI funding may be requested
by the Bureau of Justice Assistance for pre- and post-award review. Any cases that do not have
the corresponding court and arrest records will not be considered for SWBPI funding.
OTHER FEDERAL PROSECUTION
Documentation must be maintained to support that SWBPI funds, when combined with other
federal prosecution funds, do not exceed 100 percent of the prosecution costs for SWBPI
cases.
REQUEST ELECTRONIC PAYMENTS
Once the BJA review of awards is complete, SWBPI participants will be notified to login to the
SWBPI system and request payment. Each jurisdiction will have 45 days to complete the
certification and payment request. After 45 days, the funds may no longer be available.

4

 USE OF FUNDS
While funds from SWBPI federal payments may be used by applicant jurisdictions for any
purpose not otherwise prohibited by federal law, using funds for the support and enhancement
of prosecutorial services is encouraged.

5

 JOINT STATEMENT OF THE DEPARTMENT OF JUSTICE AND THE DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT
GROUP HOMES, LOCAL LAND USE, AND THE FAIR HOUSING ACT

Since the federal Fair Housing Act ("the Act") was amended by Congress in 1988 to add protections for
persons with disabilities and families with children, there has been a great deal of litigation concerning
the Act's effect on the ability of local governments to exercise control over group living arrangements,
particularly for persons with disabilities. The Department of Justice has taken an active part in much of
this litigation, often following referral of a matter by the Department of Housing and Urban
Development ("HUD"). This joint statement provides an overview of the Fair Housing Act's requirements
in this area. Specific topics are addressed in more depth in the attached Questions and Answers.
The Fair Housing Act prohibits a broad range of practices that discriminate against individuals on the
basis of race, color, religion, sex, national origin, familial status, and disability.(1) The Act does not preempt local zoning laws. However, the Act applies to municipalities and other local government entities
and prohibits them from making zoning or land use decisions or implementing land use policies that
exclude or otherwise discriminate against protected persons, including individuals with disabilities.
The Fair Housing Act makes it unlawful -•

To utilize land use policies or actions that treat groups of persons with disabilities less favorably
than groups of non-disabled persons. An example would be an ordinance prohibiting housing for
persons with disabilities or a specific type of disability, such as mental illness, from locating in a
particular area, while allowing other groups of unrelated individuals to live together in that area.

•

To take action against, or deny a permit, for a home because of the disability of individuals who
live or would live there. An example would be denying a building permit for a home because it
was intended to provide housing for persons with mental retardation.

•

To refuse to make reasonable accommodations in land use and zoning policies and procedures
where such accommodations may be necessary to afford persons or groups of persons with
disabilities an equal opportunity to use and enjoy housing.

•

What constitutes a reasonable accommodation is a case-by-case determination.

•

Not all requested modifications of rules or policies are reasonable. If a requested modification
imposes an undue financial or administrative burden on a local government, or if a modification
creates a fundamental alteration in a local government's land use and zoning scheme, it is not a
"reasonable" accommodation.

The disability discrimination provisions of the Fair Housing Act do not extend to persons who claim to be
disabled solely on the basis of having been adjudicated a juvenile delinquent, having a criminal record,
or being a sex offender. Furthermore, the Fair Housing Act does not protect persons who currently use
illegal drugs, persons who have been convicted of the manufacture or sale of illegal drugs, or persons
with or without disabilities who present a direct threat to the persons or property of others.

 HUD and the Department of Justice encourage parties to group home disputes to explore all reasonable
dispute resolution procedures, like mediation, as alternatives to litigation.
DATE: AUGUST 18, 1999
Questions and Answers
on the Fair Housing Act and Zoning
Q. Does the Fair Housing Act pre-empt local zoning laws?
No. "Pre-emption" is a legal term meaning that one level of government has taken over a field and left
no room for government at any other level to pass laws or exercise authorityin that area. The Fair
Housing Act is not a land use or zoning statute; it does not pre-empt local land use and zoning laws. This
is an area where state law typically gives local governments primary power. However, if that power is
exercised in a specific instance in a way that is inconsistent with a federal law such as the Fair Housing
Act, the federal law will control. Long before the 1988 amendments, the courts had held that the Fair
Housing Act prohibited local governments from exercising their land use and zoning powers in a
discriminatory way.
Q. What is a group home within the meaning of the Fair Housing Act?
The term "group home" does not have a specific legal meaning. In this statement, the term "group
home" refers to housing occupied by groups of unrelated individuals with disabilities.(2)Sometimes, but
not always, housing is provided by organizations that also offer various services for individuals with
disabilities living in the group homes. Sometimes it is this group home operator, rather than the
individuals who live in the home, that interacts with local government in seeking permits and making
requests for reasonable accommodations on behalf of those individuals.
The term "group home" is also sometimes applied to any group of unrelated persons who live together
in a dwelling -- such as a group of students who voluntarily agree to share the rent on a house. The Act
does not generally affect the ability of local governments to regulate housing of this kind, as long as they
do not discriminate against the residents on the basis of race, color, national origin, religion, sex,
handicap (disability) or familial status (families with minor children).
Q. Who are persons with disabilities within the meaning of the Fair Housing Act?
The Fair Housing Act prohibits discrimination on the basis of handicap. "Handicap" has the same legal
meaning as the term "disability" which is used in other federal civil rights laws. Persons with disabilities
(handicaps) are individuals with mental or physical impairments which substantially limit one or more
major life activities. The term mental or physical impairment may include conditions such as blindness,
hearing impairment, mobility impairment, HIV infection, mental retardation, alcoholism, drug addiction,
chronic fatigue, learning disability, head injury, and mental illness. The term major life activity may
include seeing, hearing, walking, breathing, performing manual tasks, caring for one's self, learning,
speaking, or working. The Fair Housing Act also protects persons who have a record of such an
impairment, or are regarded as having such an impairment.

 Current users of illegal controlled substances, persons convicted for illegal manufacture or distribution
of a controlled substance, sex offenders, and juvenile offenders, are not considered disabled under the
Fair Housing Act, by virtue of that status.
The Fair Housing Act affords no protections to individuals with or without disabilities who present a
direct threat to the persons or property of others. Determining whether someone poses such a direct
threat must be made on an individualized basis, however, and cannot be based on general assumptions
or speculation about the nature of a disability.
Q. What kinds of local zoning and land use laws relating to group homes violate the Fair Housing Act?
Local zoning and land use laws that treat groups of unrelated persons with disabilities less favorably
than similar groups of unrelated persons without disabilities violate the Fair Housing Act. For example,
suppose a city's zoning ordinance defines a "family" to include up to six unrelated persons living
together as a household unit, and gives such a group of unrelated persons the right to live in any zoning
district without special permission. If that ordinance also disallows a group home for six or fewer people
with disabilities in a certain district or requires this home to seek a use permit, such requirements would
conflict with the Fair Housing Act. The ordinance treats persons with disabilities worse than persons
without disabilities.
A local government may generally restrict the ability of groups of unrelated persons to live together as
long as the restrictions are imposed on all such groups. Thus, in the case where a family is defined to
include up to six unrelated people, an ordinance would not, on its face, violate the Act if a group home
for seven people with disabilities was not allowed to locate in a single family zoned neighborhood,
because a group of seven unrelated people without disabilities would also be disallowed. However, as
discussed below, because persons with disabilities are also entitled to request reasonable
accommodations in rules and policies, the group home for seven persons with disabilities would have to
be given the opportunity to seek an exception or waiver. If the criteria for reasonable accommodation
are met, the permit would have to be given in that instance, but the ordinance would not be invalid in
all circumstances.
Q. What is a reasonable accommodation under the Fair Housing Act?
As a general rule, the Fair Housing Act makes it unlawful to refuse to make "reasonable
accommodations" (modifications or exceptions) to rules, policies, practices, or services, when such
accommodations may be necessary to afford persons with disabilities an equal opportunity to use or
enjoy a dwelling.
Even though a zoning ordinance imposes on group homes the same restrictions it imposes on other
groups of unrelated people, a local government may be required, in individual cases and when
requested to do so, to grant a reasonable accommodation to a group home for persons with disabilities.
For example, it may be a reasonable accommodation to waive a setback requirement so that a paved
path of travel can be provided to residents who have mobility impairments. A similar waiver might not
be required for a different type of group home where residents do not have difficulty negotiating steps
and do not need a setback in order to have an equal opportunity to use and enjoy a dwelling.
Not all requested modifications of rules or policies are reasonable. Whether a particular accommodation
is reasonable depends on the facts, and must be decided on a case-by-case basis. The determination of

 what is reasonable depends on the answers to two questions: First, does the request impose an undue
burden or expense on the local government? Second, does the proposed use create a fundamental
alteration in the zoning scheme? If the answer to either question is "yes," the requested
accommodation is unreasonable.
What is "reasonable" in one circumstance may not be "reasonable" in another. For example, suppose a
local government does not allow groups of four or more unrelated people to live together in a singlefamily neighborhood. A group home for four adults with mental retardation would very likely be able to
show that it will have no more impact on parking, traffic, noise, utility use, and other typical concerns of
zoning than an "ordinary family." In this circumstance, there would be no undue burden or expense for
the local government nor would the single-family character of the neighborhood be fundamentally
altered. Granting an exception or waiver to the group home in this circumstance does not invalidate the
ordinance. The local government would still be able to keep groups of unrelated persons without
disabilities from living in single-family neighborhoods.
By contrast, a fifty-bed nursing home would not ordinarily be considered an appropriate use in a singlefamily neighborhood, for obvious reasons having nothing to do with the disabilities of its residents. Such
a facility might or might not impose significant burdens and expense on the community, but it would
likely create a fundamental change in the single-family character of the neighborhood. On the other
hand, a nursing home might not create a "fundamental change" in a neighborhood zoned for multifamily housing. The scope and magnitude of the modification requested, and the features of the
surrounding neighborhood are among the factors that will be taken into account in determining
whether a requested accommodation is reasonable.
Q. What is the procedure for requesting a reasonable accommodation?
Where a local zoning scheme specifies procedures for seeking a departure from the general rule, courts
have decided, and the Department of Justice and HUD agree, that these procedures must ordinarily be
followed. If no procedure is specified, persons with disabilities may, nevertheless, request a reasonable
accommodation in some other way, and a local government is obligated to grant it if it meets the criteria
discussed above. A local government's failure to respond to a request for reasonable accommodation or
an inordinate delay in responding could also violate the Act.
Whether a procedure for requesting accommodations is provided or not, if local government officials
have previously made statements or otherwise indicated that an application would not receive fair
consideration, or if the procedure itself is discriminatory, then individuals with disabilities living in a
group home (and/or its operator) might be able to go directly into court to request an order for an
accommodation.
Local governments are encouraged to provide mechanisms for requesting reasonable accommodations
that operate promptly and efficiently, without imposing significant costs or delays. The local
government should also make efforts to insure that the availability of such mechanisms is well known
within the community.
Q. When, if ever, can a local government limit the number of group homes that can locate in a certain
area?

 A concern expressed by some local government officials and neighborhood residents is that certain
jurisdictions, governments, or particular neighborhoods within a jurisdiction, may come to have more
than their "fair share" of group homes. There are legal ways to address this concern. The Fair Housing
Act does not prohibit most governmental programs designed to encourage people of a particular race to
move to neighborhoods occupied predominantly by people of another race. A local government that
believes a particular area within its boundaries has its "fair share" of group homes, could offer incentives
to providers to locate future homes in other neighborhoods.
However, some state and local governments have tried to address this concern by enacting laws
requiring that group homes be at a certain minimum distance from one another. The Department of
Justice and HUD take the position, and most courts that have addressed the issue agree, that density
restrictions are generally inconsistent with the Fair Housing Act. We also believe, however, that if a
neighborhood came to be composed largely of group homes, that could adversely affect individuals with
disabilities and would be inconsistent with the objective of integrating persons with disabilities into the
community. Especially in the licensing and regulatory process, it is appropriate to be concerned about
the setting for a group home. A consideration of over-concentration could be considered in this context.
This objective does not, however, justify requiring separations which have the effect of foreclosing
group homes from locating in entire neighborhoods.
Q. What kinds of health and safety regulations can be imposed upon group homes?
The great majority of group homes for persons with disabilities are subject to state regulations intended
to protect the health and safety of their residents. The Department of Justice and HUD believe, as do
responsible group home operators, that such licensing schemes are necessary and legitimate. Neighbors
who have concerns that a particular group home is being operated inappropriately should be able to
bring their concerns to the attention of the responsible licensing agency. We encourage the states
to commit the resources needed to make these systems responsive to resident and community needs
and concerns.
Regulation and licensing requirements for group homes are themselves subject to scrutiny under the
Fair Housing Act. Such requirements based on health and safety concerns can be discriminatory
themselves or may be cited sometimes to disguise discriminatory motives behind attempts to exclude
group homes from a community. Regulators must also recognize that not all individuals with disabilities
living in group home settings desire or need the same level of services or protection. For example, it may
be appropriate to require heightened fire safety measures in a group home for people who are unable
to move about without assistance. But for another group of persons with disabilities who do not desire
or need such assistance, it would not be appropriate to require fire safety measures beyond those
normally imposed on the size and type of residential building involved.
Q. Can a local government consider the feelings of neighbors in making a decision about granting a
permit to a group home to locate in a residential neighborhood?
In the same way a local government would break the law if it rejected low-income housing in a
community because of neighbors' fears that such housing would be occupied by racial minorities, a local
government can violate the Fair Housing Act if it blocks a group home or denies a requested reasonable
accommodation in response to neighbors' stereotypical fears or prejudices about persons with

 disabilities. This is so even if the individual government decision-makers are not themselves personally
prejudiced against persons with disabilities. If the evidence shows that the decision-makers were
responding to the wishes of their constituents, and that the constituents were motivated in substantial
part by discriminatory concerns, that could be enough to prove a violation.
Of course, a city council or zoning board is not bound by everything that is said by every person who
speaks out at a public hearing. It is the record as a whole that will be determinative. If the record shows
that there were valid reasons for denying an application that were not related to the disability of the
prospective residents, the courts will give little weight to isolated discriminatory statements. If,
however, the purportedly legitimate reasons advanced to support the action are not objectively valid,
the courts are likely to treat them as pretextual, and to find that there has been discrimination.
For example, neighbors and local government officials may be legitimately concerned that a group home
for adults in certain circumstances may create more demand for on-street parking than would a typical
family. It is not a violation of the Fair Housing Act for neighbors or officials to raise this concern and to
ask the provider to respond. A valid unaddressed concern about inadequate parking facilities could
justify denying the application, if another type of facility would ordinarily be denied a permit for such
parking problems. However, if a group of individuals with disabilities or a group home operator shows
by credible and unrebutted evidence that the home will not create a need for more parking spaces, or
submits a plan to provide whatever off-street parking may be needed, then parking concerns would not
support a decision to deny the home a permit.
Q. What is the status of group living arrangements for children under the Fair Housing Act?
In the course of litigation addressing group homes for persons with disabilities, the issue has arisen
whether the Fair Housing Act also provides protections for group living arrangements for children. Such
living arrangements are covered by the Fair Housing Act's provisions prohibiting discrimination against
families with children. For example, a local government may not enforce a zoning ordinance which
treats group living arrangements for children less favorably than it treats a similar group living
arrangement for unrelated adults. Thus, an ordinance that defined a group of up to six unrelated adult
persons as a family, but specifically disallowed a group living arrangement for six or fewer children,
would, on its face, discriminate on the basis of familial status. Likewise, a local government might violate
the Act if it denied a permit to such a home because neighbors did not want to have a group facility for
children next to them.
The law generally recognizes that children require adult supervision. Imposing a reasonable requirement
for adequate supervision in group living facilities for children would not violate the familial status
provisions of the Fair Housing Act.
Q. How are zoning and land use matters handled by HUD and the Department of Justice?
The Fair Housing Act gives the Department of Housing and Urban Development the power to receive
and investigate complaints of discrimination, including complaints that a local government has
discriminated in exercising its land use and zoning powers. HUD is also obligated by statute to attempt
to conciliate the complaints that it receives, even before it completes an investigation.
In matters involving zoning and land use, HUD does not issue a charge of discrimination. Instead, HUD
refers matters it believes may be meritorious to the Department of Justice which, in its discretion, may

 decide to bring suit against the respondent in such a case. The Department of Justice may also bring suit
in a case that has not been the subject of a HUD complaint by exercising its power to initiate litigation
alleging a "pattern or practice" of discrimination or a denial of rights to a group of persons which raises
an issue of general public importance.
The Department of Justice's principal objective in a suit of this kind is to remove significant barriers to
the housing opportunities available for persons with disabilities. The Department ordinarily will not
participate in litigation to challenge discriminatory ordinances which are not being enforced, unless
there is evidence that the mere existence of the provisions are preventing or discouraging the
development of needed housing.
If HUD determines that there is no reasonable basis to believe that there may be a violation, it will close
an investigation without referring the matter to the Department of Justice. Although the Department of
Justice would still have independent "pattern or practice" authority to take enforcement action in the
matter that was the subject of the closed HUD investigation, that would be an unlikely event. A HUD or
Department of Justice decision not to proceed with a zoning or land use matter does not foreclose
private plaintiffs from pursuing a claim.
Litigation can be an expensive, time-consuming, and uncertain process for all parties. HUD and the
Department of Justice encourage parties to group home disputes to explore all reasonable alternatives
to litigation, including alternative dispute resolution procedures, like mediation. HUD attempts to
conciliate all Fair Housing Act complaints that it receives. In addition, it is the Department of Justice's
policy to offer prospective defendants the opportunity to engage in pre-suit settlement negotiations,
except in the most unusual circumstances.

1. The Fair Housing Act uses the term "handicap." This document uses the term "disability" which has
exactly the same legal meaning.
2. There are groups of unrelated persons with disabilities who choose to live together who do not
consider their living arrangements "group homes," and it is inappropriate to consider them "group
homes" as that concept is discussed in this statement.

 NOTICE: ARCHIVED DOCUMENT
This document is out of date and it does not reflect the current ADA Regulations. The
document is maintained for reference purposes. This subject matter is addressed in the
current publication titled ADA Requirements: Service Animals.

 U.S. Department of Justice
Civil Rights Division
Disability Rights Section

Americans with Disabilities Act

ADA Business BRIEF:
Service Animals
Service animals are animals that are individually trained to perform
tasks for people with disabilities – such as guiding people who are
blind, alerting people who are deaf, pulling wheelchairs, alerting and
protecting a person who is having a seizure, or performing other special
tasks. Service animals are working animals, not pets.
Under the Americans with
Disabilities Act (ADA), businesses
and organizations that serve the public
must allow people with disabilities to
bring their service animals into all
areas of the facility where customers
are normally allowed to go. This
federal law applies to all businesses
open to the public, including
restaurants, hotels, taxis and shuttles,
grocery and department stores,
hospitals and medical offices, theaters, health clubs, parks, and zoos.

• Businesses may ask if an animal is
a service animal or ask what tasks
the animal has been trained to
perform, but cannot require special
ID cards for the animal or ask
about the person’s disability.

• A business is not required to
provide care or food for a service
animal or provide a special
location for it to relieve itself.
• Allergies and fear of animals are
generally not valid reasons for
denying access or refusing service
to people with service animals.
• Violators of the ADA can be
required to pay money damages
and penalties.

• People with disabilities who use
service animals cannot be charged
extra fees, isolated from other
patrons, or treated less favorably
than other patrons. However, if a
business such as a hotel normally
charges guests for damage that
they cause, a customer with a
disability may be charged for
damage caused by his or her
service animal.
• A person with a disability cannot
be asked to remove his service
animal from the premises unless:
(1) the animal is out of control and
the animal’s owner does not take
effective action to control it (for
example, a dog that barks
repeatedly during a movie) or (2)
the animal poses a direct threat to
the health or safety of others.

Businesses that serve the public
must allow people with disabilities
to enter with their service animal

• Businesses that sell or prepare
food must allow service animals in
public areas even if state or local
health codes prohibit animals on
the premises.

• In these cases, the business should
give the person with the disability
the option to obtain goods and
services without having the animal
on the premises.

Service animals are individually
trained to perform tasks for
people with disabilities

If you have additional questions
concerning the ADA and service
animals, please call the Department’s
ADA Information Line at
(800) 514-0301 (voice) or
(800) 514-0383 (TTY) or visit the
ADA Business Connection at
www.ada.gov
Duplication is encouraged.

April 2002

 U.S. Department of Justice
Civil Rights Division
Disability Rights Section

Americans with Disabilities Act

TA

Technical Assistance
Updates from the U.S. Department of Justice

Common Questions:

Readily Achievable Barrier Removal
Design Details:

Reserved
Parking

Van
Accessible

Van Accessible Parking Spaces

Number 1.
August 1996

 Reproduction
Reproduction of this
document is encouraged.

Disclaimer
The ADA authorizes the
Department of Justice to provide
technical assistance to
individuals and entities that have
rights or responsibilities under
the Act. This document provides
informal guidance to assist you
in understanding the ADA and
the Department's regulation.
However, this technical
assistance does not constitute a
legal interpretation of the statute.

 Introduction

Introduction
ADA-TA, a series of technical assistance (TA) updates from the
Disability Rights Section of the Civil Rights Division of the
Department of Justice, provides practical information on how to
comply with the Americans with Disabilities Act (ADA). Each ADA-TA
highlights specific topics of interest to business owners and managers,
State and local government officials, architects, engineers, contractors,
product designers and manufacturers, and all others who seek a better
understanding of accessible design and the ADA. The goal of the series is
to clarify potential misunderstandings about the requirements of the ADA,
and to highlight its flexible, common sense approach to accessibility.

TA

Each ADA-TA has two standard features: Common Questions and
Design Details. Common Questions answers questions that have been
brought to our attention through complaints, compliance reviews, calls to
our information line, or letters from the public. Design Details provides
supplemental information and illustrations of specific design requirements.
ADA-TA complements the Department’s ADA documents, including the
regulations issued under titles II and III of the ADA and the Department’s
technical assistance manuals. ADA-TA is not a legal interpretation of the
ADA. Instead it provides practical solutions on how to comply with the
ADA while avoiding costly and common mistakes.
Obtaining additional ADA information may be as easy as a trip to your
local library. The Department of Justice has sent an ADA Information File
containing 70 technical assistance documents to 15,000 libraries across the
country. Most libraries maintain this file at the reference desk.
The Department's ADA publications are also available electronically,
including ADA regulations and technical assistance materials, through the
Internet or by calling the Department’s electronic bulletin board (BBS).
Materials can be accessed on the World Wide Web at
http://www.usdoj.gov/crt/ada/adahom1.htm or by using gopher client
software (gopher://justice2.usdoj.gov:70/11/crt/ada). The materials can be
also downloaded from the Department of Justice ADA-BBS by dialing
(202) 514-6193. You can also reach this BBS through the Internet using
the telenet fedworld gateway (telenet fedworld.gov). At the main menu,
choose "U" (Utilities/Files/Mail), then choose "D" (gateway system)
followed by "D" (connect to gov't sys/database) and then #9 ADA-BBS
(DOJ).

To order copies of the
Department’s regulations, technical assistance manuals and
other publications, or
obtain answers to
specific questions,
CALL:
(800) 514-0301 (voice)
(800) 514-0383 (TDD).

1

U. S. Department of Justice

ADA Technical Assistance

 Common Questions

Replacing round faucet
handles with lever handles
Repositioning the paper
towel dispenser

Installing a full-length
bathroom mirror or
lowering lavatory mirror
Modifying the front of the
counter at the accessible
lavatory to provide
wheelchair access
Insulating lavatory pipes
under sinks to prevent burns

Selected Examples of Barrier Removal

U. S. Department of Justice

ADA Technical Assistance

2

 Common Questions

Common Questions:

Readily Achievable Barrier Removal
The ADA requires companies providing goods and services to the public
to take certain limited steps to improve access to existing places of business. This mandate includes the obligation to remove barriers from
existing buildings when it is readily achievable to do so. Readily achievable means easily accomplishable and able to be carried out without much
difficulty or expense.
Many building features that are common in older facilities such as narrow
doors, a step or a round door knob at an entrance door, or a crowded
check-out or store aisle are barriers to access by people with disabilities.
Removing barriers by ramping a curb, widening an entrance door, installing visual alarms, or designating an accessible parking space is often
essential to ensure equal opportunity for people with disabilities. Because
removing these and other common barriers can be simple and inexpensive
in some cases and difficult and costly in others, the regulations for the
ADA provide a flexible approach to compliance. This practical approach
requires that barriers be removed in existing facilities only when it is
readily achievable to do so. The ADA does not require existing buildings
to meet the ADA's standards for newly constructed facilities.
The ADA states that individuals with disabilities may not be denied the
full and equal enjoyment of the “goods, services, facilities, privileges,
advantages, or accommodations” that the business provides -- in other
words, whatever type of good or service a business provides to its customers or clients. A business or other private entity that serves the public
must ensure equal opportunity for people with disabilities.

Individuals with
disabilities may not be
denied the full and
equal enjoyment of the
“goods, services,
facilities, privileges,
advantages, or
accommodations”

In the following section, we answer some of the most commonly asked
questions we receive from our toll-free ADA Information Line about the
barrier removal requirement and how it differs from those requirements
that apply to new construction and alteration of buildings.

3

U. S. Department of Justice

ADA Technical Assistance

 Common Questions

The ADA establishes
different requirements

I own three buildings, two of which were designed and constructed
prior to the enactment of the ADA. I have been told I have to make
them all accessible. Is this true? Does the ADA require me to make
them all accessible?
The ADA establishes different requirements for existing facilities and new
construction. In existing facilities where retrofitting may be expensive,
the requirement to provide access through barrier removal is less than it is
in new construction where accessibility can be incorporated in the initial
stages of design and construction without a significant increase in cost.

for existing facilities
and new construction.

The requirement to remove barriers in existing buildings applies only to a
private entity that owns, leases, leases to or operates a “place of public
accommodation.” Further, barriers must be removed only where it is
“readily achievable” to do so. Readily achievable means easily
accomplishable and able to be carried out without much difficulty or
expense.
Is my business required to remove barriers?
If your business provides goods and services to the public, you are required to remove barriers if doing so is readily achievable. Such a business is called a public accommodation because it serves the public. If
your business is not open to the public but is only a place of employment
like a warehouse, manufacturing facility or office building, then there is no
requirement to remove barriers. Such a facility is called a commercial
facility. While the operator of a commercial facility is not required to
remove barriers, you must comply with the ADA Standards for Accessible
Design when you alter, renovate or expand your facility.

The types of facilities

What is a “place of public accommodation”?
A place of public accommodation is a facility whose operations affect
commerce and fall within at least one of the following 12 categories set
out in the ADA:

listed in each category

1)

are examples — they

2)
3)

are not intended to be

4)

an exhaustive list of all

5)

covered facilities.

6)
U. S. Department of Justice

ADA Technical Assistance

4

Places of lodging (e.g., inns, hotels, motels) (except for owneroccupied establishments renting fewer than six rooms);
Establishments serving food or drink (e.g., restaurants and bars);
Places of exhibition or entertainment (e.g., motion picture
houses, theaters, concert halls, stadiums);
Places of public gathering (e.g., auditoriums, convention centers,
lecture halls);
Sales or rental establishments (e.g., bakeries, grocery stores,
hardware stores, shopping centers);
Service establishments (e.g., laundromats, dry-cleaners, banks,
barber shops, beauty shops, travel services, shoe repair services,

 Common Questions

funeral parlors, gas stations, offices of accountants or lawyers,
pharmacies, insurance offices, professional offices of health care
providers, hospitals);
7) Public transportation terminals, depots, or stations (not including
facilities relating to air transportation);
8) Places of public display or collection (e.g., museums, libraries,
galleries);
9) Places of recreation (e.g., parks, zoos, amusement parks);
10) Places of education (e.g., nursery schools, elementary, secondary,
undergraduate, or postgraduate private schools);
11) Social service center establishments (e.g., day care centers,
senior citizen centers, homeless shelters, food banks, adoption
agencies); and
12) Places of exercise or recreation (e.g., gymnasiums, health spas,
bowling alleys, golf courses).
I operate a restaurant that opened in 1991. The city required that the
restaurant comply with the local accessibility code. Is the restaurant
"grandfathered" and not required to remove barriers as required by
the ADA?
No. A restaurant is a public accommodation and a place of public accommodation must remove barriers when it is readily achievable to do so.
Although the facility may be "grandfathered" according to the local
building code, the ADA does not have a provision to "grandfather" a
facility. While a local building authority may not require any modifications to bring a building "up to code" until a renovation or major alteration
is done, the ADA requires that a place of public accommodation remove
barriers that are readily achievable even when no alterations or renovations are planned.

...the ADA does not
have a provision to
"grandfather" a
facility...

Do I, as the owner, have to pay for removing
barriers?
Yes, but tenants and management companies also have an obligation. Any
private entity who owns, leases, leases to, or operates a place of public
accommodation shares in the obligation to remove barriers.
If I do remove barriers, is my business entitled to any tax benefit to
help pay for the cost of compliance?
As amended in 1990, the Internal Revenue Code allows a deduction of up
to $15,000 per year for expenses associated with the removal of qualified
architectural and transportation barriers (Section 190).

5

U. S. Department of Justice

ADA Technical Assistance

 Common Questions

To learn more about tax
credits and deductions
for barrier removal and
providing accessibility
contact the IRS at (800)
829-1040 (voice) or
(800) 829-4059 (TDD)
or call the Department
of Justice
ADA Information Line
(800) 514-0301 voice,
(800) 514-0383 TDD.

The 1990 amendment also permits eligible small businesses to receive a
tax credit (Section 44) for certain costs of compliance with the ADA. An
eligible small business is one whose gross receipts do not exceed
$1,000,000 or whose workforce does not consist of more than 30 full-time
workers. Qualifying businesses may claim a credit of up to 50 percent of
eligible access expenditures that exceed $250 but do not exceed $10,250.
Examples of eligible access expenditures include the necessary and reasonable costs of removing architectural, physical, communications, and
transportation barriers; providing readers, interpreters, and other auxiliary
aids; and acquiring or modifying equipment or devices.
What design standards apply when I’m removing barriers?
When you undertake to remove a barrier, you should use the alterations
provisions of the ADA Standards for Accessible Design (Standards).
These Standards were published in Appendix A to the Department of
Justice's Title III regulations, 28 CFR Part 36, Nondiscrimination on the
Basis of Disability by Public Accommodations and in Commercial Facilities. Deviations from the Standards are acceptable when full compliance
with those requirements is not “readily achievable”. In such cases, barrier
removal measures may be taken that do not fully comply with the Standards, so long as the measures do not pose a significant risk to the health
or safety of individuals with disabilities or others.
ILLUSTRATION: As a first step toward removing architectural barriers, the owner of a small shop decides to widen the shop’s 26-inch wide
front door. Because of space constraints the shop owner can only
widen the door to provide a 30-inch clear width, not the full 32-inch
clearance required for alterations under the Standards. Full compliance with the Standards is not in this case readily achievable. The 30inch clear width will allow most people who use crutches or wheelchairs to get through the door and will not pose a significant risk to
their health or safety.

Copies of the regulations, which include the
Standards can be ordered 24 hours a day
from the Department’s

How can I get a copy of the ADA Standards for Accessible Design?
Copies of the regulations, which include the Standards, are available from
the Department of Justice's ADA Information Line and may also be
available in your local library. The Department of Justice distributed an
ADA Information File containing regulations and technical assistance
materials to over 15,000 libraries nationwide. Copies of the regulations
can be ordered 24 hours a day from the Department’s ADA Information
line (1-800-514-0301 Voice or 1-800-514-0383 TDD).

ADA Information line.

U. S. Department of Justice

ADA Technical Assistance

6

 Common Questions

How do I determine what is readily achievable?
“Readily achievable” means easily accomplishable and able to be carried
out without much difficulty or expense. Determining if barrier removal is
readily achievable is, by necessity, a case-by-case judgment. Factors to
consider include:
1)

The nature and cost of the action;

2)

The overall financial resources of the site or sites involved; the
number of persons employed at the site; the effect on expenses
and resources; legitimate safety requirements necessary for safe
operation, including crime prevention measures; or any other
impact of the action on the operation of the site;

3)

4)

5)

...readily achievable
will have to be deter-

The geographic separateness, and the administrative or fiscal
relationship of the site or sites in question to any parent corporation or entity;
If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or
entity with respect to the number of its employees; the number,
type, and location of its facilities; and

mined on a case-bycase basis in light of the
nature and cost of the
barrier removal and the
resources available.

If applicable, the type of operation or operations of any parent
corporation or entity, including the composition, structure, and
functions of the workforce of the parent corporation or entity.

If the public accommodation is a facility that is owned or operated by a
parent entity that conducts operations at many different sites, you must
consider the resources of both the local facility and the parent entity to
determine if removal of a particular barrier is “readily achievable.” The
administrative and fiscal relationship between the local facility and the
parent entity must also be considered in evaluating what resources are
available for any particular act of barrier removal.
Can you tell me what barriers it will be “readily achievable” to
remove?
The Department’s regulation contains a list of 21 examples of modifications that may be readily achievable. These include installing ramps,
making curb cuts in sidewalks and at entrances, repositioning telephones,
adding raised markings on elevator control buttons, installing visual
alarms, widening doors, installing offset hinges to widen doorways,
insulating lavatory pipes under sinks, repositioning a paper towel dispenser, installing a full-length mirror, rearranging toilet partitions to
increase maneuvering space or installing an accessible toilet stall. The list
is not exhaustive and is only intended to be illustrative. Each of these

7

U. S. Department of Justice

ADA Technical Assistance

 Common Questions

modifications will be readily achievable in many instances, but not in all.
Whether or not any of these measures is readily achievable will have to be
determined on a case-by-case basis in light of the nature and cost of the
barrier removal and the resources available.
Does the ADA permit me to consider the effect of a modification on
the operation on my business?
Yes. The ADA permits consideration of factors other than the initial cost
of the physical removal of a barrier.
ILLUSTRATION: CDE convenience store determines that it would be
inexpensive to remove shelves to provide access to wheelchair users
throughout the store. However, this change would result in a significant loss of selling space that would have an adverse effect on its
business. In this case, the removal of all the shelves is not readily
achievable and, thus, is not required by the ADA. However, it may be
readily achievable to remove some shelves.
If an area of my store is reachable only by a flight of steps, would I
be required to add an elevator?
Usually no. A public accommodation generally would not be required to
remove a barrier to physical access posed by a flight of steps, if removal
would require extensive ramping or an elevator. The readily achievable
standard does not require barrier removal that requires burdensome expense. Thus, where it is not readily achievable to do so, the ADA would
not require a public accommodation to provide access to an area reachable
only by a flight of stairs.
I have a portable ramp that we use for deliveries can’t I just use that?
Yes, you could, but only if the installation of a permanent ramp is not
readily achievable. In order to promote safety, a portable ramp should
have railings, a firm, stable, nonslip surface and the slope should not
exceed one to twelve (one unit of rise for every twelve units horizontal
distance). It should also be properly secured and staff should be trained in
its safe use.
Because one of my buildings is very inaccessible, I don’t know what
to fix first. Is guidance available?
Yes. The Department recommends priorities for removing barriers in
existing facilities because you may not have sufficient resources to remove
all existing barriers at one time. These priorities are not mandatory. You
are free to exercise discretion in determining the most effective “mix” of
barrier removal measures for your facilities.
U. S. Department of Justice

ADA Technical Assistance

8

 Common Questions

The first priority is enabling individuals with disabilities to enter the
facility. This priority on “getting through the door” recognizes that providing physical access to a facility from public sidewalks, public transportation, or parking is generally preferable to any alternative arrangements in
terms of both business efficiency and the dignity of individuals with
disabilities.

Our priorities for barrier removal are not
mandatory. Public
accommodations are

The second priority is providing access to those areas where goods and
services are made available to the public. For example, in a hardware
store these areas would include the front desk and the retail display areas
of the store.

free to exercise discretion in determining the
most effective “mix” of

The third priority is providing access to restrooms (if restrooms are
provided for use by customers or clients).

barrier removal mea-

The fourth priority is removing any remaining barriers, for example,
lowering telephones.

sures to undertake in
their facilities.

What about my employee areas? Must I remove barriers in areas
used only by employees?
No. The “readily achievable” obligation to remove barriers in existing
facilities does not extend to areas of a facility that are used exclusively by
employees. Of course, it may be necessary to remove barriers in response
to a request for “reasonable accommodation” by a qualified employee or
applicant as required by Title I of the ADA. For more information, contact
the Equal Employment Opportunity Commission (EEOC) which enforces
Title I of the ADA.
How can a public accommodation decide what needs to be done?
One effective approach is to conduct a “self-evaluation” of the facility to
identify existing barriers. While not required by the ADA, a serious effort
at self-assessment and consultation can save resources by identifying the
most efficient means of providing required access and can diminish the
threat of litigation. It serves as evidence of a good faith effort to comply
with the barrier removal requirements of the ADA. This process should
include consultation with individuals with disabilities or with organizations representing them and procedures for annual reevaluations.

...public accommodations are urged to establish procedures for
an ongoing assessment
of their compliance
with the ADA’s barrier
removal requirements.

9

U. S. Department of Justice

ADA Technical Assistance

 Common Questions

If a public accommodation determines that its facilities have barriers
that should be removed, but it is not readily achievable to undertake
all of the modifications now, what should it do?
The Department recommends that a public accommodation develop an
implementation plan designed to achieve compliance with the ADA’s
barrier removal requirements. Such a plan, if appropriately designed and
executed, could serve as evidence of a good faith effort to comply with the
ADA’s barrier removal requirements.

...when barrier removal
is not readily achievable, then goods and
services must be made
available through alternative methods, if such
methods are readily
achievable.

What if I’m not able to remove barriers at this time due to my
financial situation? Does that mean I’m relieved of current responsibilities?
No, when you can demonstrate that the removal of barriers is not readily
achievable, you must make your goods and services available through
alternative methods, if undertaking such methods is readily achievable.
Examples of alternative methods include having clerks retrieve merchandise located on inaccessible shelves or delivering goods or services to the
customers at curbside or in their homes. Of course, the obligation to
remove barriers when readily achievable is a continuing one. Over time,
barrier removal that initially was not readily achievable may later become
so because of your changed circumstances.
If the obligation is continuing, do you mean there are no limits on
what I must do to remove barriers?
No. There are limits. In removing barriers, a public accommodation does
not have to exceed the level of access required under the alterations
provisions contained in the Standards (or the new construction provision
where the Standards do not provide specific provisions for alterations).
ILLUSTRATION 1: An office building that houses places of public
accommodation is removing barriers in public areas. The alterations
provisions of the Standards explicitly state that areas of rescue assistance
are not required in buildings that are being altered. Because barrier removal is not required to exceed the alterations standard, the building
owner need not establish areas of rescue assistance.

U. S. Department of Justice

ADA Technical Assistance

10

 Common Questions

ILLUSTRATION 2: A grocery store has more than 5000 square feet of
selling space and prior to the ADA had six inaccessible check-out aisles.
Because the Standards do not contain specific provisions applicable to the
alteration of check-out aisles one must look to the new construction
provisions of the Standards for the upper limit of the barrier removal
obligation. These provisions require only two of the six check-out aisles to
be accessible. Because the store found it readily achievable in 1993 and
1994 to remove barriers and make two of check-out aisles accessible, the
store has fulfilled its obligation and is not required to make more checkout aisles accessible.
What is the difference between barrier removal and alterations?
Aren't they both very similar?
Not really . Under the ADA, barrier removal is done by a place of public
accommodation to remove specific barriers that limit or prevent people
with disabilities from obtaining access to the goods and services offered to
the public. This is an ongoing obligation for the business that has limits
determined by resources, size of the company and other factors (see pages
7 & 8). An alteration is replacement, renovation or addition to an element
or space of a facility. Generally alterations are done to improve the function of the business, to accommodate a change or growth in services, or as
part of a general renovation. The requirements for alterations are greater
than those for barrier removal because the alteration is part of a larger
construction or replacement effort.
One of the buildings that I own is a small factory with offices.
Do I have to make that accessible?
No, commercial facilities such as factories, warehouses, and office buildings that do not contain places of public accommodation are considered
“commercial facilities” and are not required to remove barriers in existing
facilities. They are, however, covered by the ADA’s requirements for
accessible design in new construction or alterations.

Commercial facilities
that do not contain
places of public accommodation are not
required to remove
barriers in existing
facilities except to
provide access to
employment.

11

U. S. Department of Justice

ADA Technical Assistance

  

Design Details

U. S. Department of Justice 12
ADA Technical Assistance

Design Details

Design Details:

Van Accessible Parking Spaces
Vans equipped with lifts are an essential mode of transportation for many
people who use wheelchairs and three-wheeled scooters. The liftequipped van permits people to enter and exit the vehicle independently
without having to leave their wheelchair.
The ADA creates new requirements for van accessible parking spaces.
The ADA Standards for Accessible Design or Standards cover public
accommodations, commercial facilities and certain State and local governments. State and local governments may choose between these Standards and the Uniform Federal Accessibility Standards (UFAS). Because
UFAS does not specify how many van accessible parking spaces are
required, only those State and local governments that have chosen the
Standards as their ADA accessibility standard have specific, numerical
requirements for van accessible parking. Requirements for State and
local government agencies that have chosen the Uniform Federal Accessibility Standard (UFAS) are not addressed by this document.

A Van Accessible
Parking Space always
has a minimum 96-inch
wide access aisle next
to the van

The new requirement for van accessible parking spaces is an important
one for van users but its implementation has caused some confusion
among people responsible for providing parking.
The following section provides information about the design requirements
for van accessible parking spaces and explains when these spaces are
required, what features are required, and where to locate them on a site.
13

U. S. Department of Justice

ADA Technical Assistance

 Design Details

Design Requirements for Van Accessible Parking Spaces
Van accessible parking spaces are identical to accessible parking spaces
for cars except for the following:
•

the access aisle must be at least eight-feet wide (as opposed to five-feet
wide) to accommodate a wheelchair lift mounted at the side of a van;

• vertical clearance of at least 98 inches is required along the vehicular
route to the parking space, at the van parking space, and along the
route from the space to the exit to accommodate the height of most
vans; and
•
Sign with symbol of access
and "Van Accessible"

the required sign must have the words “van accessible” below the
international symbol of accessibility (see 4.6.4 of the Standards).
acc

98 inch min. vertical clearance
for vans along route to space,
at the parking space and along
route to exit the site

98" min

space, aisle &
vehicle route

Van
Accessible

Unique Features of a Van
Accessible Parking Space

96"

mi

n

96 inch min. width access aisle
provides space for lift

The other required features of van accessible parking spaces are the same
as those for accessible parking spaces for cars. These include:
•

the parking space for the vehicle must be at least 96 inches wide;

•

the parking space for the vehicle and the entire access aisle must be
level (with a maximum slope of 1:501 in all directions);

•

the access aisle must have a firm, stable, non-slip surface;

1 A 1:50 slope is nearly level and is usually adequate for drainage. The ratio means that
a change in vertical height of no more than one unit can occur for every fifty units of
distance. For example, a change of one inch in height over a distance of fifty inches.
U. S. Department of Justice

ADA Technical Assistance

14

 Design Details

•

the access aisle must be part of an accessible route to a facility or
building entrance(s), and

•

a sign that complies with 4.6.4 of the Standards must be mounted in
front of where the vehicle parks to designate the accessible parking
space.

915

accessible route
accessible route

36

parked vehicle overhangs shall not reduce
the clear width of the accessible route
sign with international symbol of
accessibility mounted high enough
so view is not obstructed by parked vehicle

wide access aisle is part of the accessible
route to the accessible entrance and
has a firm, stable, non-slip surface
level access aisle and vehicle parking space
(max. 1:50 slope in all directions)
accessible parking spaces are
min. 96 inches wide

Common Features of all Accessible

96 min 96 min for Vans
2440

Parking Spaces (van and car)

2440
Reserved
Parking

The access aisle must be located on a 36-inch-wide accessible route to the
building entrance(s). Section 4.3 of the Standards contains requirements
for accessible routes and includes specifications for width, passing space to
permit two people using wheelchairs to pass, head room, ground surfaces
along the route, slope, changes in levels, and doors. The accessible route
must not be obstructed by any objects including vehicles that may extend
into the accessible route, a curb, outdoor furniture, or shrubbery.

Van
Accessible

Sample sign
If an accessible route crosses a curb, a curb ramp must be used. However,
a built-up curb ramp may not project into the minimum required space for
the access aisle at an accessible parking space. When an accessible route
crosses a vehicular way, a marked crosswalk may be part of the accessible
route.
15

for a van accessible
parking space
U. S. Department of Justice

ADA Technical Assistance

 Design Details

Location and Dispersion of Parking Spaces
Section 4.6.2 of the Standards requires that accessible parking spaces,
including van accessible spaces, be located on the shortest accessible route
from adjacent parking to the accessible entrance of the building or facility.
Accessible parking spaces and the required accessible route should be
located where individuals with disabilities do not have to cross a vehicular
lane. When parking cannot be located immediately adjacent to a building
and the accessible route must cross a vehicular route, then it is recommended that a marked crossing must be used where the accessible route
crosses the vehicular route. In facilities that have multiple accessible
entrances with adjacent parking spaces, the accessible parking spaces must
be dispersed.
When parking spaces are located in a parking garage, the Standards permit
the van accessible parking spaces to be grouped on one floor (Standards
4.1.2 (5) (b)).

van accessible parking spaces
may be grouped on one level
of a parking structure

possible location for van
accessible parking spaces if
inadequate vertical clearance
exists in parking garage

U. S. Department of Justice

ADA Technical Assistance

16

 Design Details

When Van Accessible Spaces are Required
When you provide parking at a newly constructed place of public accommodation or at a commercial facility you must provide accessible parking
spaces including van accessible parking spaces.
When you alter or renovate a parking lot or facility the following may
apply.
•

If you repave or otherwise alter the parking lot, you must add as many
accessible parking spaces, including van spaces, as needed to comply.

•

If you restripe the parking area, you must restripe so that you provide
the correct number of accessible parking spaces, including van accessible parking.

•

Existing physical site constraints may make it “technically infeasible”
to comply fully with the Standards. However, in most cases a “technically infeasible” condition exists only in a portion of a lot, and other
suitable locations for accessible parking spaces are often available.

Number of Van Accessible Spaces Required
Section 4.1.2 (5) of the Standards specifies the minimum number of
accessible parking spaces to be provided including van accessible parking
spaces. One out of every eight accessible spaces provided must be a van
accessible space. When only one accessible parking space is required,
the space provided must be a van accessible parking space. Van accessible
spaces can serve vans and cars because they are not designated for vans
only.
In larger parking lots, both van accessible and accessible car spaces must
be provided. For example, in a parking lot for 250 spaces where seven
accessible parking spaces are required, one van accessible space would be
required along with six accessible car parking spaces. In a parking lot for
450 spaces where nine accessible spaces are required, then two van accessible spaces would be required along with seven accessible car parking
spaces.

When accessible
spaces are required for
new construction and
during alterations,
van accessible parking
spaces must always
be provided.

Two van accessible parking spaces may share an access aisle.

17

U. S. Department of Justice

ADA Technical Assistance

 Design Details

Readily Achievable Barrier Removal:
Van Accessible Parking Spaces
Public accommodations must remove architectural barriers that are structural in nature in existing facilities when it is “readily achievable” to do so.
Readily achievable means easily accomplishable and able to be carried out
without much difficulty or expense.
The ADA provides flexibility for public accommodations undertaking
barrier removal and does not require that the ADA Standards for Accessible Design (Standards) be complied with fully if it is not readily achievable to do so. Rather, the Standards serve as guidelines for barrier removal that should be met if physical conditions and cost permit. Deviation from the Standards is permitted unless it results in a safety hazard to
people with disabilities or others.
Because removing barriers to accessible parking generally involves relatively low cost, it may be readily achievable for many public accommodations.

Existing parking area
without accessible spaces

U. S. Department of Justice

ADA Technical Assistance

18

 Design Details

If readily achievable, the first accessible parking space that is provided as
part of barrier removal activities should be a van accessible space. This
type of parking space can be used by both vans and by cars and can be
used by anyone who needs accessible parking.
Examples of barrier removal related to accessible parking may include
restriping a section or sections of a parking lot to provide accessible
parking spaces with designated access aisles, installing signs that designate accessible parking spaces, providing an accessible route from the
accessible parking spaces to the building entrance, and providing a marked
crossing where the accessible route crosses a vehicular way.
Where parking lot surfaces slope more than 1:50, select the most nearly
level area that is available for the accessible parking spaces. When selecting the area for the accessible parking spaces, consider the location of the
accessible route that must connect the access aisle to the facility’s accessible entrance(s).

If readily achievable,
the first accessible
parking space that is
provided should be a
van accessible space.

sign with international symbol of
accessibility and "van accessible"
designates van accessible parking
curb ramp installed
outside access aisle area
accessible route to entrance
level access aisle

96

"m

in
96

"m

in

Same area
with van accessible
parking space added

19

U. S. Department of Justice

ADA Technical Assistance

 Design Details

Requirements for readily achievable barrier removal permit businesses to
consider the effect of barrier removal on the operation of their businesses.

Requirements for
readily achievable
barrier removal permit
businesses to consider
the effect of barrier
removal on the operation of their business.

U. S. Department of Justice

ADA Technical Assistance

For example, a small independently owned store has only three parking
spaces for its customers. It determines that restriping the parking area to
provide an accessible parking space could be easily accomplished without
significant expense. However, to provide a fully complying van accessible parking space would reduce the available parking for other customers
who do not have disabilities from three spaces to one. This loss of parking
(not just the cost of the paint for restriping) can be considered in determining whether the barrier removal is readily achievable.
The ADA provides flexibility for the store to implement a solution that
complies with the law but does not result in loss of business. For example,
if it is not readily achievable to provide a fully compliant van accessible
parking space, one can provide a space that has an access aisle that is
narrower than required by the Standards if the result does not cause a
safety hazard. Or, the store may provide the service (to a customer with a
disability) in an alternative manner, such as curb service or home delivery.
In some cases, providing a van accessible parking space that does not fully
comply with the Standards will often be the preferred alternative approach, if doing so is readily achievable, because many people with
disabilities will benefit from having a designated accessible parking space,
even if it is not usable by everyone. If an accessible parking space is
provided with a narrow access aisle, then a “Van Accessible” sign should
not be provided and the store should be prepared to offer service in an
alternative manner, if it is readily achievable to do so, to van users who
cannot park in the space.

20

 Information Sources

Information Sources

ADA Technical Assistance
The Department of Justice, through the Disability Rights Section, has
responsibility for coordinating government-wide ADA technical assistance activities. Information and direct technical assistance are available
from the agencies listed below. Use the list to select the agency responsible for ADA requirements in your area of interest. Some provide free
publications in addition to other information services.
For State and local government
programs, privately-operated
businesses and services, access to
facilities, design standards enforceable under the ADA, and information on tax credits and deductions
contact:
U.S. Department of Justice
ADA Information Line
(800) 514-0301
(800) 514-0383 (TDD)
ADA-BBS:
(202) 514-6193
Internet:
http://www.usdoj.gov/crt/ada/adahom1.htm
gopher://justice2.usdoj.gov:70/11/crt/ada

For information about Tax Credits
and Deductions, contact:
Internal Revenue Service
(800) 829-1040
(800) 829-4059 (TDD)
For employment issues, contact:
Equal Employment Opportunity
Commission (EEOC)
(800) 669-4000
(800) 669-6820 (TDD)

For transportation, contact:
U.S. Department
of Transportation
(202) 366-1656
(202) 366-4567 (TDD)
Internet:
http://www.fta.dot.gov
For information on the ADA
Accessibility Guidelines, contact:
Access Board
(800) 872-2253
(800) 993-2822 (TDD)
Internet:
http://www.access-board.gov/
For additional ADA information
and referral sources from Federally
funded grantees, contact:
Job Accommodation Network
(800) 526-7234 (V/TDD)
Internet:
http://www.janweb.icdi.wvu.edu/
Disability and Business
Technical Assistance Centers
(800) 949-4232 (V/TDD)
Disability Rights Education
and Defense Fund (DREDF)
(800) 466-4232 (V/TDD)
21

U. S. Department of Justice

ADA Technical Assistance

 U.S. DEPARTMENT OF JUSTICE 


OFFICE FOR CIVIL RIGHTS

OFFICE FOR ACCESS TO JUSTICE

OFFICE OF JUSTICE PROGRAMS

Advisory for Recipients of Financial Assistance from the
U.S. Department of Justice on Levying Fines and Fees on Juveniles
Considerations for Compliance with Title VI of the Civil Rights Act of 1964,
the Omnibus Crime Control and Safe Streets Act of 1968, and Related Statutes
January 2017
The Office for Access to Justice (ATJ), U.S. Department of Justice (Department or DOJ) and the
Office for Civil Rights (OCR) at the Office of Justice Programs (OJP), DOJ jointly issue this
Advisory to recipients of financial assistance from the OJP, the Office of Community Oriented
Policing Services (COPS Office), and the Office on Violence Against Women (OVW) to remind
them of their constitutional and statutory responsibilities related to collecting fines and fees from
youth involved with the juvenile justice system. The Advisory also summarizes the enforcement
actions available to the Department and offers recommendations to improve the administration of
juvenile fines and fees.
On March 14, 2016, the DOJ distributed a letter to state and local courts on the enforcement of
fines and fees in criminal justice proceedings. 1 Many of the practices addressed in the March 14,
2016, letter also occur in juvenile courts where, in addition to fines, courts often impose fees on
children for diversion programs, counseling, drug testing and rehabilitation programs, mental
health evaluations and treatment programs, public defenders, probation, custody, and court costs.
These fines and fees can be economically debilitating to children and their families and can have
an enduring impact on a child's prospects.
Young people will ordinarily be unable to pay fines and fees themselves. Families burdened by
these obligations may face a difficult choice, either paying juvenile justice debts or paying for
food, clothing, shelter, or other necessities. The cost of fines and fees may foreclose educational
opportunities for system-involved youth or other family members. When children and their
families are unable to pay fines and fees, the children often suffer escalating negative
consequences from the justice system that may follow them well into adulthood. Perhaps not
1

U.S. Dep't of Justice, Dear Colleague letter: law Enforcement Fines and Fees (Mar. 14, 2016),
http://go.usa.gov/x9nd7.

 surprisingly, given the collateral negative consequences, there is evidence that fines and fees
increase the risk ofrecidivism. 2
The intent of this Advisory is to assist recipients of financial assistance from the Department­
especially the leadership ofjuvenile courts, juvenile probation departments, and other juvenile
justice agencies-in ensuring that the imposition and enforcement of fines and fees on juveniles
does not violate their constitutional rights, violate the nondiscrimination provisions associated
with the acceptance of federal financial assistance, or impose undue hardships on the
development and rehabilitation of system-involved youth.
Constitutional Obligations

Youth in the justice system are entitled to all of the constitutional protections that adults receive
when it comes to fines and fees. "[N]either the Fourteenth Amendment nor the Bill of Rights is
for adults alone." 3 The Department's March 14, 2016, letter identified seven constitutional
principles relevant to the enforcement of fines and fees. All seven principles apply to juveniles. 4
When it comes to youth, however, courts cannot stop at the protections afforded to adults.
Indeed, the Constitution demands unique protections for juveniles in the justice system due to
"children's 'diminished culpability and greater prospects for reform. "'5 "The law has
historically reflected the ... assumption that children characteristically lack the capacity to
exercise mature judgment and possess only an incomplete ability to understand the world around
them." 6 Our legal system is "replete with laws and judicial recognition that children cannot be
viewed simply as miniature adults." 7 As society's understanding of children's unique needs and
vulnerabilities has grown over time, the Supreme Court has expanded protections for children.
2
See Jessica Feierman, Juvenile Law Center, Debtors' Prison for Kids? The High Cost ofFines and Fees in the
Juvenile Justice System 7-8(2016), http://debtorsprison.jlc.org (discussing results of a criminology study "showing
that youth of color in Allegheny County, Pennsylvania, were more likely to have costs or fees owed after case
closing, which, in tum, was related to higher recidivism rates, even after controlling for a host of other
demographics and case characteristics" (citing Alex R. Piquero & Wesley G. Jennings, Justice System Imposed
Financial Penalties Increase Likelihood ofRecidivism in a Sample ofAdolescent Offenders (2016)).
3 In re Gault, 387 U.S. I, 13 (1967).
4
The seven principles are as follows:
I.   Courts must not incarcerate a person for nonpayment of fines or fees without first conducting an indigency
determination and establishing that the failure to pay was willful.
2.   Courts must consider alternatives to incarceration for indigent defendants unable to pay fines and fees.
3.   Courts must not condition access to a judicial hearing on the prepayment of fines or fees.
4.   Courts must provide meaningful notice and, in appropriate cases, counsel, when enforcing fines and fees.
5.   Courts must not use arrest warrants or license suspensions as a means of coercing the payment of court debt
when individuals have not been afforded constitutionally adequate procedural protections.
6.   Court must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely
because they cannot afford to pay for their release.
7. Courts must safeguard against unconstitutional practices by court staff and private contractors.
The Department's March 14, 2016, letter discusses these principles and their legal basis in greater detail. Recipients
should familiarize themselves with these legal requirements.
5 Montgomery v. Louisiana, 136 S. Ct. 718, 733 (2016)( quoting Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012)).
6 J.D.B. v. North Carolina, 564 U.S. 261,273 (2011) (citation omitted).
7 Id. at 274 (citation and internal quotation marks omitted).

2


 In Roper v. Simmons, the Court deemed children ineligible for the death penalty because of their
"lack of maturity and an underdeveloped sense of responsibility," their vulnerability "to negative
influences and outside pressures," and their "more transitory, less fixed" personalities. 8 Five
years later when the Court struck down life-without-parole sentences for juveniles who
committed non-homicide offenses in Graham v. Florida, the Court noted that scientific research
"continue[s] to show fundamental differences betweenjuvenile and adult minds."9 Accordingly,
as in virtually every other context, the justice system, with respect to fines and fees, must
recognize and protect the special vulnerabilities of children.
Statutory Civil Rights Obligations for Recipients of Department Financial Assistance

Federal statutes protect the rights of beneficiaries in federally assisted programs, including young
people who receive services from Department-funded juvenile courts and other agencies in the
juvenile justice system. Recipients of financial assistance from the OJP, the COPS Office, and
the OVW must comply with the following federal cross-cutting statutes that apply to all
recipients of federal financial assistance:
•   Title VI of the Civil Rights Act of 1964 (Title VI), as amended, and its
implementing regulations; 10
•   Title IX of the Education Amendments of 1972 (Title IX), as amended, and its
implementing regulations; 11
•   Section 504 of the Rehabilitation Act of 1973, as amended, and its implementing
regulations; 12 and
•   The Age Discrimination Act of 1975, as amended, and its implementing
regulations). 13
Depending on the legislative source of authorized funding from the Department, recipients of
financial assistance from the OJP, the COPS Office, and the OVW may also need to comply with
the nondiscrimination provisions in the following DOJ program statutes:
•   The Omnibus Crime Control and Safe Streets Act of 1968 (Safe Streets Act), as
amended, and its implementing regulations; 14
•   The Juvenile Justice and Delinquency Prevention Act of 1974 (JJDPA), as
amended, and its implementing regulations; 15

8

543 U.S. 551, 569-70 (2005) (citations omitted). 

560 U.S. 48, 68 (2010); see also Montgomery, 136 S. Ct. at 734 (noting that "the distinctive attributes of youth" 

should have some bearing on the punishment that children receive); J.D.B., 564 U.S. at 277 (holding that children 

must be given special consideration in the context of Miranda waivers because "[a] child's age is far more than a 

chronological fact"). 

10 42 U.S.C. § 2000d (2012); 28 C.F.R. pt. 42, subpts. C & D (2016). 

11
20 U.S.C. § 1681; 28 C.F.R. pt. 42, subpt. D & §§ 54.105, .125(a), .605. 

12
42 U.S.C. § 793; 28 C.F.R. pt. 42, subpt. G. 

13
42 U.S.C. § 6102; 28 C.F.R. pt. 42, subpt. I. 

14
42 U.S.C. § 3789d; 28 C.F.R. pt. 42, subpt. D. 

15
42 U.S.C. § 5672(b); 28 C.F.R. § 3 l.202(b)(3), (4) & pt. 42, subpt. D. 

9

3


 •   The Victims of Crime Act of 1984 (VOCA), as amended, and its implementing
regulations; 16 and
•   The Violence Against Women Act of 1994 (VA WA), as amended. 17
Collectively, in addition to other protections, the federal cross-cutting statutes and the
Department's program statutes prohibit discrimination in the delivery of services or benefits
based on race, color, national origin, sex, religion, disability, sexual orientation, or gender
identity. Title VI and the other federal civil rights statutes applicable to Department recipients
prohibit not only intentional discrimination but also discrimination resulting from a neutral
policy that adversely impacts a protected class, such as people of a particular race or national
origin. 18
The analysis of disparate-impact discrimination claims under Title VI follows the same burden­
shifting scheme for employment discrimination claims under Title VII of the Civil Rights Act of
1964. 19 A discrimination claim based on adverse impact ordinarily relies on statistical data
showing that the neutral policy of a federally funded service provider has a significantly negative
effect on a protected class in comparison to another similarly situated group. 20 Despite the
disparate impact on the protected class, the funded service provider may nonetheless legally
retain the challenged policy if it can present a substantial legitimate justification for the policy. 21
Even if the recipient can meet this requirement, it may still run afoul of Title VI and other related
federal statutes, if"there exists a comparably effective alternative practice which would result in
less disproportionality, or ... the [recipient's] proffered justification is a pretext for
discrimination. ,,22
Recent investigative findings by the Department, as well as a number of comprehensive surveys,
underscore state and local courts' and juvenile justice systems' responsibility to review data
related to the assessment of fines and fees to ensure that they are providing nondiscriminatory
services to juveniles and their families. The Department's investigation of the Ferguson Police
Department in St. Louis County, Missouri, concluded that the local practices oflevying fines and
fees on adults had an unlawful discriminatory impact on African Americans. 23 Following a
lengthy investigation, the Department similarly found in its review of the St. Louis County
Family Court that, "compared to national data, Black children in St. Louis County have a higher

16

42 U.S.C. § 10604(e); Victims of Crime Act Victim Assistance Program, 81 Fed. Reg. 44,515, 44,532 (July 8, 

2016) (to be codified at 28 C.F.R. § 94.114). 

17
42 U.S.C. § 13925(b)(l3). 

18
See 28 C.F.R. §§ 42.104(b )(2), .203(e), .71 O(a); see also Alexander v. Sandoval, 532 U.S. 275, 281-82 (200 I); 

see generally U.S. DEP'T OF JUSTICE, TITLE VI LEGAL MANUAL (Jan. 11, 2011), http://go.usa.gov/x9QPC (updated 

sections available at http://go.usa.gov/x9QQt). 

19
See, e.g., N.Y. Urban League, Inc. v. New York, 71 F.3d 1031, 1036 (2dCir. 1995). 

20
Ga. State Conf. of Branches ofNAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985). 

21

Id.

22

Elston v. Talladega Cty. Bd. of Educ., 997 F.2d 1394, 1407 (I Ith Cir. 1993). 

CIVIL RIGHTS DIV., U.S. DEP'TOF JUSTICE, INVESTIGATION OF FERGUSON POLICE DEP'T (Mar. 4, 2015), 

http://go.usa.gov/x9CJF. 


23

4


 rate of disparity in every decision point in the juvenile justice system. " 24 The Policy Advocacy
Clinic associated with the School of Law at the University of California at Berkeley analyzed
data on the allocation of fines and fees on juveniles in Alameda County, California, and found
that African American youth were overrepresented at each step in the juvenile justice system,
exposing them to significantly higher fees. 25 These findings suggest that courts and other entities
receiving financial assistance from the Department should carefully consider whether their
collection of fines and fees from juveniles may have an unlawful discriminatory effect based on
race or another protected class.
Enforcement and Technical Assistance

The Department is committed to protecting the rights of youth in the juvenile justice system, and
it has a range of options at its disposal to do so, including the administrative process, litigation,
and technical assistance.
Through the regulatory administrative process, the OCR has principal responsibility within the
Department for enforcing Title VI and related federal civil rights statutes that apply to recipients
of financial assistance from the OJP, the COPS Office, and the OVW. The OCR has the
authority to investigate administrative complaints alleging that Department-funded courts and
other agencies in the juvenile justice system are unlawfully discriminating against youth of a
protected class who have been adversely affected by the assessment of fines or fees. 26 The OCR
may also independently initiate compliance reviews (i.e., investigative audits) ofDepartment­
funded agencies to determine whether their administration ofjuvenile fines or fees may violate
applicable federal civil rights laws. 27 Significantly, the implementing regulations for the Safe
Streets Act, which the OCR follows in enforcing not only the Safe Streets Act but also Title VI,
Title IX, the JJDPA, VOCA, and VAWA, 28 also contain a provision that defines prohibited
discrimination in reference to constitutional standards: a recipient of financial assistance from the
Department may not "deny any individual the rights guaranteed by the Constitution to all
persons. " 29 If the OCR finds evidence of a violation, it works with the funded agency to achieve

24 CIVIL RIGHTS DIV., U.S. DEP'T OF JUSTICE, INVESTIGATION OF THE ST. LOUIS CTY. FAMILY CTS., ST. LOUIS, MO. 


39 (July 31, 2015), http://go.usa.gov/x9CJe; see also Katherine Beckett, Alexes Harris & Heather Evans, 

Washington State Minority & Justice Coalition, The Assessment and Consequences ofLegal Financial Obligations 

in Washington State (2008), available at 

http:/!faculty. washington.edu/kbeckett/Legal%20Financial%200bligations. pdf (concluding that "convictions 

involving Hispanic defendants are associated with significantly higher fees and fines than those involving white 

defendants, even after controlling for relevant legal factors"). 

25
Jeffrey Selbin & Stephanie Campos, High Pain, No Gain: How Juvenile Administrative Fees Harm Low-Income 

Families in Alameda County, California (Mar. 2016), http://ssm.com/abstract-2738710; see also note 2, supra. 

26
See, e.g., 28 C.F.R. § 42.205. 

27
Id. § 42.206. 

28
42 U.S.C. § I 3925(b )(I 3)(C) (implementing enforcement of VA WA 's nondiscrimination provisions in accordance 

with the Safe Streets Act); 28 C.F.R. § 42.20l(a) (implementing the Safe Streets Act, Title VI, Title IX, and the 

JJDPA); Victims of Crime Act Victim Assistance Program, 81 Fed. Reg. 44,515, 44,532 (July 8, 2016) (to be 

codified at 28 C.F.R. § 94.114) (implementing VOCA's nondiscrimination provisions in accordance with 28 C.F.R. 

pt. 42 and OCR guidance). 

29 28 C.F.R. § 42.203(b)(8). 


5


 voluntary compliance. 30 If negotiations for voluntary compliance fail, however, the OCR may
seek the suspension or termination of the Department's financial assistance. 31
The Department also has litigation authority to enforce the rights ofjuveniles in the justice
system pursuant to the Violent Crime Control and Law Enforcement Act of 1994. 32 Through this
statute, the Department is currently enforcing the rights ofjuveniles through a comprehensive
settlement33 with Shelby County, Tennessee, following findings of serious and systemic failures
in the juvenile court that violated the due process and equal protection rights ofjuvenile
respondents. 34 Similarly, the Department is enforcing the rights ofjuveniles in St. Louis County
Family Court35 after finding systemic violations of children's rights under the Due Process and
Equal Protection Clauses. 36 In 2015, the Department's Civil Rights Division, the ATJ, and the
U.S. Attorney for the Middle District of Georgia filed a Statement oflnterest in the case NP. v.
State ofGeorgia, a class action seeking to vindicate juveniles' constitutional right to counsel in
delinquency proceedings. 37 The OJP and the other DOJ grantmaking components also have
discretion to refer administrative investigations, which might include matters alleging disparate
impact discrimination resulting from the imposition of fines and fees, to the Civil Rights
Division for litigation. 38
The Department also has resources that are available to juvenile courts and juvenile justice
agencies to help them comply with their constitutional and statutory civil rights obligations. In
addition to the technical assistance that the OCR routinely provides to DOJ recipients, the OJP's
Office of Juvenile Justice and Delinquency Prevention works "to develop and implement
effective and coordinated prevention and intervention programs and to improve the juvenile
justice system so that it protects public safety, holds justice-involved youth appropriately
accountable, and provides treatment and rehabilitative services tailored to the needs ofjuveniles

30

Id. §§ 42.205(c)(3)(iii), .206(e)(3). 

Id.§§ 42.210, .212(b)(l)(ii). 

32
The statute provides, inter alia, as follows: 

31

It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on
behalf of a governmental authority, to engage in a pattern or practice of conduct by ... employees
of any governmental agency with responsibility for the administration of juvenile justice or the
incarceration of juveniles that deprives persons of rights, privileges, or immunities secured or
protected by the Constitution or laws ofthe United States.

42 U.S.C. § 1414 l(a). lfthe Department finds a "pattern or practice" of constitutional violations in a juvenile justice 

system, the attorney general can file a lawsuit seeking "appropriate equitable and declaratory relief to eliminate the 

pattern or practice." Id. § 14141 (b). 

33
CIVIL RIGHTS DIV., U.S. DEP'T OF JUSTICE, MEM. OF AGREEMENT REGARDING THE Juv. CTS. OF MEMPHIS & 

SHELBY CTYS. (Dec. 17, 2012), http://go.usa.gov/x9nfa. 

34
CIVIL RIGHTS DIV., U.S. DEP'TOF JUSTICE, INVESTIGATION OF THE SHELBY CTY. JUVENILE CT. I (Apr. 26, 2012), 

http://go.usa.gov/x9nIT. 

35
CIVIL RIGHTS DIV., U.S. DEP'TOF JUSTICE, MEM. OF AGREEMENT BETWEEN THE UNITED STATES DEP'TOF 

JUSTICE AND THE ST. LOUIS FAMILY CT. (Dec. 14, 2016), http://go.usa.gov/x9nfb. 

36
INVESTIGATION OF THE ST. LOUIS CTY. FAMILY CT., note 24, supra. 

37
No. 2014-CV-241025 (Fulton Cty. Super. Ct., filed Jan. 7, 2014), available at http://go.usa.gov/x9CJv. 

38
28 C.F.R. §§ 42. lOS(d)(l), .215(a). 


6


 and their families." 39 OJP's Diagnostic Center also provides customized technical assistance
resources to local community leaders, providing access to relevant data and experienced subject­
matter experts to help communities develop the capacity to address emerging public safety and
criminal justice issues, including matters related to juvenile justice. 40

Recommendations to Recipients on Assessing Fines and Fees Involving Juveniles
Because children in the juvenile justice system are particularly vulnerable, they warrant special
protections in regard to the imposition of fines and fees. Mindful of the needs of young people,
the ATJ and the OCR offer five recommendations to Department-funded juvenile courts and
juvenile justice agencies based on the principles articulated in the Department's March 14, 2016,
letter.
1.   Juvenile justice agencies should presume that young people are unable to pay fines and fees
and only impose them after an affirmative showing of ability to pay.
Young people typically have no meaningful resources of their own. For this reason, the
Department's comprehensive settlement with Shelby County, Tennessee, involving its juvenile
court includes the acknowledged presumption that children are indigent for the purposes of
appointing counsel and setting bond. 41 Pennsylvania, Louisiana, and North Carolina likewise
presume that all children are eligible for the appointment of counsel. 42
The juvenile justice system should also presume that children are unable to pay fines and fees.
Absent an affirmative showing of the ability to pay, imposing fines and fees will serve no useful
purpose. Instead, assessing these costs may force juveniles into a cycle of further involvement
with the justice system and have collateral consequences that inhibit rather than advance
rehabilitation.
Presuming that children are unable to afford fines and fees will also help juvenile courts and
other juvenile justice agencies comply with their legal obligations. If fines and fees are only
imposed on those rare children who are able to afford them, courts and other agencies are far less
likely to enforce fines and fees in a way that punishes children for their poverty in violation of
the Fourteenth Amendment. In addition, because of the well-documented correlations between
poverty and race in the juvenile justice system, 43 conditioning the imposition of fines and fees on
a demonstrated ability to afford them may also reduce the chances that the imposition or
39

Vision & Mission, OJJDP, http://go.usa.gov/x9nfW (last visited Jan. 9, 2017). 

About Us, OJP Diagnostic Ctr., https://www.ojpdiagnosticcenter.org/about (last visited Jan. 9, 2017); see 

generally OJP Diagnostic Ctr, Resource Guide: Reforming the Assessment and Enforcement of Fines and Fees, 

http:://go.usa.gov/x9QQR (last visited Jan. 10, 2017). 

41
MEM. OF AGREEMENT BETWEEN THE UNITED STATES DEP'T OF JUSTICE AND THE ST. LOUIS FAMILY CT. note 35, 

40

supra.
42

See 42 PA. CONS. STAT. ANN.§ 6337. l; LA. CHILD. CODE ANN. art. 320(A), 848; N.C. GEN. STAT. ANN.§§ 7B­
2000(b), 7A-450.l, 7A.450.3. 

43
Annie E. Casey Foundation, Race Matters: Unequal Opportunities for Juvenile Justice (2006), 

http://www.aecf.org/m/resourcedoc/aecf-RACEMA TTERSjuvenilejustice-2006. pdf ( noting correlations between 

race and povertY in juvenile and adult justice systems). 


7


 enforcement of fines and fees will have a disparate racial impact on beneficiaries of federally
assisted programs in violation of Title VI, the Safe Streets Act, and other related statutes.
2.   Before juvenile justice agencies punish youth for failing to pay fines and fees, they must first
determine ability to pay, considering factors particularly applicable to youth.
As emphasized repeatedly in the Department's March 14, 2016, letter, courts must not
incarcerate people solely because they are unable to pay fines or fees, because doing so violates
their rights to equal protection and due process. 44 The Constitution requires that before
punishing someone for failing to pay a fine or fee, a court must inquire into the individual's
ability to pay. 45
When the person who has failed to pay a fine or fee is a child, courts should consider the unique
circumstances that inhibit the child's ability to pay. As noted above, children are presumptively
unable to pay fines and fees, and, of course, young children cannot legally work. Requiring a
teenager to work to pay fines and fees is often counterproductive: there are often negative
consequences resulting from missing school to work, and there are also negative consequences
resulting from missing work to attend school. Juveniles often lack their own means of
transportation, which can make getting and keeping a job difficult. Many states restrict work for
those under eighteen and limit their ability to enter into contracts. Finally, and most importantly,
juveniles under probation or in a diversion or other program will likely find it extremely difficult
to fulfill simultaneously the obligations related to their probation or program, school, and a job.
An ability-to-pay inquiry that recognizes the unique characteristics of children will help to
ensure that juvenile courts and other juvenile justice agencies do not punish children for their
poverty in violation of the Constitution and may also prevent the kind of disparate racial impact
that may violate Title VI, the Safe Streets Act, and other related statutes.
3.   Juvenile justice agencies should not condition entry into a diversion program or another
alternative to adjudication on the payment of a fee if the youth or the youth's family is unable
to pay the fee.
Due process and equal protection plainly prohibit juvenile courts and other juvenile justice
agencies from treating two similarly situated children differently based solely on their economic
status or the economic status of their parents. 46 Yet across the country, diversion programs or
other alternatives to adjudication or detention for youth are accessible only to those who can
afford the required fees. Such practices result in what the Constitution forbids: the incarceration

44

Bearden v. Georgia, 461 U.S. 660,671 (1983).
E.g., Turner v. Rogers, 131 S. Ct. 2507, 2518-19 (2011) (court violates due process when it finds a parent in civil
contempt and jails the parent for failure to pay child support, without first inquiring into the parent's ability to pay).
46
Bearden, 461 U.S. at 671; Griffin v. Illinois, 351 U.S. 12, 24 (I 956)(holding that the Fourteenth Amendment
prohibits denial ofright to appeal based on inability to pay fee); M.L.B. v. S.L.J., 519 U.S. 102, 124 (1996) (holding
that indigent person could not be denied appeal of decision terminating parental rights based on inability to pay
court costs); Boddie v. Connecticut, 401 U.S. 371, 382-83 (1971) (holding that married couple's divorce could not
be denied based on inability to pay court costs).
45

8


 or punishment of children based solely on poverty. 47 Conditioning diversion and other
alternatives to formal adjudication or detention on ability to pay also means that the negative
consequences of adjudication and detention fall more heavily on children living in poverty.
Formal adjudication and a juvenile record can prevent youth from pursuing educational
opportunities, participating in school-related activities, living in subsidized housing, obtaining
employment, and even obtaining a driver's license, 48 while detention separates youth from
positive influences like family and school and increases the risk ofrecidivism. 49 In addition, if a
disproportionate number of children who are unable to pay for diversion are also minorities, 50
making diversion programs available to all regardless of financial resources may help to prevent
disparate racial impacts that could violate Title VI, the Safe Streets Act, and other related
statutes. For these reasons, juvenile courts and juvenile justice agencies should not deny access
to diversion programs and other alternatives to adjudication solely based on inability to pay the
fees associated with the programs. 51
4.   Juvenile justice agencies should collect data on race, national origin, sex, and disability to
determine whether the imposition of fines and fees has an unlawful disparate impact on
juveniles or their families.
Juvenile justice agencies should collect and analyze demographic data related to the imposition
of fines and fees on juveniles to assess compliance with the nondiscrimination requirements that
accompany acceptance of Department financial assistance. Establishing data-collection and
maintenance procedures are critical mechanisms for evaluating the impact that fines and fees
may have on a protected class over a period oftime. Regular analysis of the relevant data would
allow recipients to take affirmative measures to identify and eliminate discrimination.
In tandem with gathering information on the national origin of beneficiaries, Department-funded
juvenile justice agencies should also collect data on the primary languages spoken by the
children and their families involved with the juvenile justice system. The data will allow funded
entities to determine, consistent with the Department's language-access guidance for recipients
on complying with Title VI, whether they are taking reasonable steps to provide limited English
proficient (LEP) youth and LEP families meaningful access to the services that the recipient
offers. 52 If a funded entity decides to translate vital documents into the commonly encountered
47
Bearden, 461 U.S. at 671; Tate v. Short, 401 U.S. 395,398 (1971); Williams v. Illinois, 399 U.S.235, 241-42 

(1970). 

48
Collateral consequences of adjudications of delinquency vary based on state laws. For some examples, see the 

resources collected on the National Juvenile Defender Center (NJDC) website. Collateral Consequences, NJDC, 

http://njdc.info/collateral-consequences/ (last visited Dec. 23, 2016). 

49
See JAMES AUSTIN ET AL., OJJDP, ALTERNATIVES TO THE SECURE DETENTION AND CONFINEMENT OF JUVENILE 

OFFENDERS 2-3 (Sept. 2005), available at http://go.usa.gov/x9n7E. 

50
See, e.g., Alex R. Piquero & Wesley G. Jennings, Justice System Imposed Financial Penalties Increase Likelihood 

ofRecidivism in a Sample ofAdolescent Offenders 29 (2016) (noting, in study of Allegheny County, Pennsylvania, 

"that Non-Whites were more likely to still owe costs and restitution upon case closing"). 

51
Aside from barring access to diversion programs and other alternatives to adjudication, the inability to pay should 

also not result in harsher consequences at any stage of a young person's interaction with the juvenile justice system, 

including access to rehabilitative services or the length of probation. 

52
Dep't of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against 

National Origin Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455 (June 18, 2002). 


9


 languages in its service population, it should translate into the appropriate languages notices
related to the assessment of fines and fees, including information on ability to pay, economic
assessment procedures, and appeal rights. 53
5.   Juvenile justice agencies should consider whether the imposition or enforcement of fines and
fees in any particular case comports with the rehabilitative goals of the juvenile justice
system.
One overriding difference between the juvenile justice system and the criminal justice system is
the former's primary focus on rehabilitation. Before courts impose fines and fees on juveniles­
even on those rare juveniles who might be able to pay-they should consider whether such
financial burdens serve rehabilitation. In many cases, fines and fees will be more punitive than
rehabilitative, and they may in fact present an impediment to other rehabilitative steps, such as
employment and education.
Conclusion
The ATJ and the OCR find encouraging the innovative efforts that juvenile courts and other
juvenile justice agencies around the country have taken to address the legal and practical harms
that can result from the imposition of fines and fees. This Advisory supports the effort to ensure
that the assessment of fines and fees on juveniles comports with federal law and the juvenile
justice system' s rehabilitative goals.
Recipients of financial assistance from the Department seeking additional information, resources,
or referrals related to the administration of fines and fees in the juvenile justice system may
contact the OCR. 54

~~2J.fYJ~
Li~

Karol V. Mason
Assistant Attorney General
Office of Justice Programs

~

Director
Office for Access to Justice

53

See id. at 41 ,463-64. 

Civil Rights (Oficina de Derechos Civiles), OFFICE OF JUSTICE PROGRAMS, http://go.usa.gov/x9nGD (last visited 

Jan. 8, 2017). 


54

IO

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Americans with Disabilities Act Questions and Answers

NOTICE: ARCHIVED DOCUMENT
This document is out of date and does not fully reflect the current ADA regulations. The document is maintained
for reference purposes.
Businesses (public accommodations and commercial facilities)   Employment   State and local
governments

U.S. Equal Employment Opportunity Commission
U.S. Department of Justice
Civil Rights Division

Americans with Disabilities Act

Questions and Answers
Barriers to employment, transportation, public accommodations, public services, and
telecommunications have imposed staggering economic and social costs on American society and
have undermined our well-intentioned efforts to educate, rehabilitate, and employ individuals with
disabilities. By breaking down these barriers, the Americans with Disabilities Act (ADA) will
enable society to benefit from the skills and talents of individuals with disabilities, will allow us all
to gain from their increased purchasing power and ability to use it, and will lead to fuller, more
productive lives for all Americans.
The Americans with Disabilities Act gives civil rights protections to individuals with disabilities
similar to those provided to individuals on the basis of race, color, sex, national origin, age, and
religion. It guarantees equal opportunity for individuals with disabilities in public accommodations,
employment, transportation, State and local government services, and telecommunications.
Fair, swift, and effective enforcement of this landmark civil rights legislation is a high priority of the
Federal Government. This booklet is designed to provide answers to some of the most often asked
questions about the ADA.
For answers to additional questions, call the ADA Information Line
800-514-0301 (voice)
800-514-0383 (TTY)
Additional ADA resources are listed in the Resources section of this document, page 29.

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February 2001

Employment
Q. What employers are covered by title I of the ADA, and when is the coverage effective?
A. The title I employment provisions apply to private employers, State and local governments,
employment agencies, and labor unions. Employers with 25 or more employees were covered as of
July 26, 1992. Employers with 15 or more employees were covered two years later, beginning July
26, 1994.
Q. What practices and activities are covered by the employment nondiscrimination
requirements?
A. The ADA prohibits discrimination in all employment practices, including job application
procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and
privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe
benefits, and all other employment-related activities.
Q. Who is protected from employment discrimination?
A. Employment discrimination is prohibited against "qualified individuals with disabilities." This
includes applicants for employment and employees. An individual is considered to have a
"disability" if s/he has a physical or mental impairment that substantially limits one or more major
life activities, has a record of such an impairment, or is regarded as having such an impairment.
Persons discriminated against because they have a known association or relationship with an
individual with a disability also are protected.
The first part of the definition makes clear that the ADA applies to persons who have impairments
and that these must substantially limit major life activities such as seeing, hearing, speaking,
walking, breathing, performing manual tasks, learning, caring for oneself, and working. An
individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment,
mental retardation, or a specific learning disability is covered, but an individual with a minor,
nonchronic condition of short duration, such as a sprain, broken limb, or the flu, generally would
not be covered.
The second part of the definition protecting individuals with a record of a disability would cover, for
example, a person who has recovered from cancer or mental illness.
The third part of the definition protects individuals who are regarded as having a substantially
limiting impairment, even though they may not have such an impairment. For example, this
provision would protect a qualified individual with a severe facial disfigurement from being denied
employment because an employer feared the "negative reactions" of customers or co-workers.

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Q. Who is a "qualified individual with a disability?"
A. A qualified individual with a disability is a person who meets legitimate skill, experience,
education, or other requirements of an employment position that s/he holds or seeks, and who can
perform the oeessential functionsî of the position with or without reasonable accommodation.
Requiring the ability to perform "essential" functions assures that an individual with a disability will
not be considered unqualified simply because of inability to perform marginal or incidental job
functions. If the individual is qualified to perform essential job functions except for limitations
caused by a disability, the employer must consider whether the individual could perform these
functions with a reasonable accommodation. If a written job description has been prepared in
advance of advertising or interviewing applicants for a job, this will be considered as evidence,
although not conclusive evidence, of the essential functions of the job.
Q. Does an employer have to give preference to a qualified applicant with a disability over
other applicants?
A. No. An employer is free to select the most qualified applicant available and to make decisions
based on reasons unrelated to a disability. For example, suppose two persons apply for a job as a
typist and an essential function of the job is to type 75 words per minute accurately. One applicant,
an individual with a disability, who is provided with a reasonable accommodation for a typing test,
types 50 words per minute; the other applicant who has no disability accurately types 75 words per
minute. The employer can hire the applicant with the higher typing speed, if typing speed is needed
for successful performance of the job.
Q. What limitations does the ADA impose on medical examinations and inquiries about
disability?
A. An employer may not ask or require a job applicant to take a medical examination before making
a job offer. It cannot make any pre-employment inquiry about a disability or the nature or severity of
a disability. An employer may, however, ask questions about the ability to perform specific job
functions and may, with certain limitations, ask an individual with a disability to describe or
demonstrate how s/he would perform these functions.
An employer may condition a job offer on the satisfactory result of a post-offer medical
examination or medical inquiry if this is required of all entering employees in the same job category.
A post-offer examination or inquiry does not have to be job-related and consistent with business
necessity.
However, if an individual is not hired because a post-offer medical examination or inquiry reveals a
disability, the reason(s) for not hiring must be job-related and consistent with business necessity.
The employer also must show that no reasonable accommodation was available that would enable
the individual to perform the essential job functions, or that accommodation would impose an undue
hardship. A post-offer medical examination may disqualify an individual if the employer can
demonstrate that the individual would pose a "direct threat" in the workplace (i.e., a significant risk
of substantial harm to the health or safety of the individual or others) that cannot be eliminated or
reduced below the oedirect threatî level through reasonable accommodation. Such a disqualification
is job-related and consistent with business necessity. A post-offer medical examination may not
disqualify an individual with a disability who is currently able to perform essential job functions
because of speculation that the disability may cause a risk of future injury.
After a person starts work, a medical examination or inquiry of an employee must be job-related and
consistent with business necessity. Employers may conduct employee medical examinations where
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there is evidence of a job performance or safety problem, examinations required by other Federal
laws, examinations to determine current oefitnessî to perform a particular job, and voluntary
examinations that are part of employee health programs.
Information from all medical examinations and inquiries must be kept apart from general personnel
files as a separate, confidential medical record, available only under limited conditions.
Tests for illegal use of drugs are not medical examinations under the ADA and are not subject to the
restrictions of such examinations.
Q. When can an employer ask an applicant to "self-identify" as having a disability?
A. Federal contractors and subcontractors who are covered by the affirmative action requirements of
section 503 of the Rehabilitation Act of 1973 may invite individuals with disabilities to identify
themselves on a job application form or by other pre-employment inquiry, to satisfy the section 503
affirmative action requirements. Employers who request such information must observe section 503
requirements regarding the manner in which such information is requested and used, and the
procedures for maintaining such information as a separate, confidential record, apart from regular
personnel records.
A pre-employment inquiry about a disability is allowed if required by another Federal law or
regulation such as those applicable to disabled veterans and veterans of the Vietnam era. Preemployment inquiries about disabilities may be necessary under such laws to identify applicants or
clients with disabilities in order to provide them with required special services.
Q. Does the ADA require employers to develop written job descriptions?
A. No. The ADA does not require employers to develop or maintain job descriptions. However, a
written job description that is prepared before advertising or interviewing applicants for a job will
be considered as evidence along with other relevant factors. If an employer uses job descriptions,
they should be reviewed to make sure they accurately reflect the actual functions of a job. A job
description will be most helpful if it focuses on the results or outcome of a job function, not solely
on the way it customarily is performed. A reasonable accommodation may enable a person with a
disability to accomplish a job function in a manner that is different from the way an employee who
is not disabled may accomplish the same function.
Q. What is "reasonable accommodation?"
A. Reasonable accommodation is any modification or adjustment to a job or the work environment
that will enable a qualified applicant or employee with a disability to participate in the application
process or to perform essential job functions. Reasonable accommodation also includes adjustments
to assure that a qualified individual with a disability has rights and privileges in employment equal
to those of employees without disabilities.
Q. What are some of the accommodations applicants and employees may need?
A. Examples of reasonable accommodation include making existing facilities used by employees
readily accessible to and usable by an individual with a disability; restructuring a job; modifying
work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or
appropriately modifying examinations, training, or other programs. Reasonable accommodation also
may include reassigning a current employee to a vacant position for which the individual is
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qualified, if the person is unable to do the original job because of a disability even with an
accommodation. However, there is no obligation to find a position for an applicant who is not
qualified for the position sought. Employers are not required to lower quality or quantity standards
as an accommodation; nor are they obligated to provide personal use items such as glasses or
hearing aids.
The decision as to the appropriate accommodation must be based on the particular facts of each
case. In selecting the particular type of reasonable accommodation to provide, the principal test is
that o effectiveness, i.e., whether the accommodation will provide an opportunity for a person with a
disability to achieve the same level of performance and to enjoy benefits equal to those of an
average, similarly situated person without a disability. However, the accommodation does not have
to ensure equal results or provide exactly the same benefits.
Q. When is an employer required to make a reasonable accommodation?
A. An employer is only required to accommodate a "known" disability of a qualified applicant or
employee. The requirement generally will be triggered by a request from an individual with a
disability, who frequently will be able to suggest an appropriate accommodation. Accommodations
must be made on an individual basis, because the nature and extent of a disabling condition and the
requirements of a job will vary in each case. If the individual does not request an accommodation,
the employer is not obligated to provide one except where an individual's known disability impairs
his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious
to the employer. If a person with a disability requests, but cannot suggest, an appropriate
accommodation, the employer and the individual should work together to identify one. There are
also many public and private resources that can provide assistance without cost.
Q. What are the limitations on the obligation to make a reasonable accommodation?
A. The individual with a disability requiring the accommodation must be otherwise qualified, and
the disability must be known to the employer. In addition, an employer is not required to make an
accommodation if it would impose an "undue hardship" on the operation of the employer's business.
"Undue hardship" is defined as an "action requiring significant difficulty or expense" when
considered in light of a number of factors. These factors include the nature and cost of the
accommodation in relation to the size, resources, nature, and structure of the employer's operation.
Undue hardship is determined on a case-by-case basis. Where the facility making the
accommodation is part of a larger entity, the structure and overall resources of the larger
organization would be considered, as well as the financial and administrative relationship of the
facility to the larger organization. In general, a larger employer with greater resources would be
expected to make accommodations requiring greater effort or expense than would be required of a
smaller employer with fewer resources.
If a particular accommodation would be an undue hardship, the employer must try to identify
another accommodation that will not pose such a hardship. Also, if the cost of an accommodation
would impose an undue hardship on the employer, the individual with a disability should be given
the option of paying that portion of the cost which would constitute an undue hardship or providing
the accommodation.
Q. Must an employer modify existing facilities to make them accessible?
A. The employer's obligation under title I is to provide access for an individual applicant to
participate in the job application process, and for an individual employee with a disability to
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perform the essential functions of his/her job, including access to a building, to the work site, to
needed equipment, and to all facilities used by employees. For example, if an employee lounge is
located in a place inaccessible to an employee using a wheelchair, the lounge might be modified or
relocated, or comparable facilities might be provided in a location that would enable the individual
to take a break with co-workers. The employer must provide such access unless it would cause an
undue hardship.
Under title I, an employer s not required to make its existing facilities accessible until a particular
applicant or employee with a particular disability needs an accommodation, and then the
modifications should meet that individual's work needs. However, employers should consider
initiating changes that will provide general accessibility, particularly for job applicants, since it is
likely that people with disabilities will be applying for jobs. The employer does not have to make
changes to provide access in places or facilities that will not be used by that individual for
employment-related activities or benefits.
Q. Can an employer be required to reallocate an essential function of a job to another
employee as a reasonable accommodation?
A. No. An employer is not required to reallocate essential functions of a job as a reasonable
accommodation.
Q. Can an employer be required to modify, adjust, or make other reasonable accommodations
in the way a test is given to a qualified applicant or employee with a disability?
A. Yes. Accommodations may be needed to assure that tests or examinations measure the actual
ability of an individual to perform job functions rather than reflect limitations caused by the
disability. Tests should be given to people who have sensory, speaking, or manual impairments in a
format that does not require the use of the impaired skill, unless it is a job-related skill that the test is
designed to measure.
Q. Can an employer maintain existing production/performance standards for an employee
with a disability?
A. An employer can hold employees with disabilities to the same standards of
production/performance as other similarly situated employees without disabilities for performing
essential job functions, with or without reasonable accommodation. An employer also can hold
employees with disabilities to the same standards of production/performance as other employees
regarding marginal functions unless the disability affects the person's ability to perform those
marginal functions. If the ability to perform marginal functions is affected by the disability, the
employer must provide some type of reasonable accommodation such as job restructuring but may
not exclude an individual with a disability who is satisfactorily performing a jobs essential
functions.
Q. Can an employer establish specific attendance and leave policies?
A. An employer can establish attendance and leave policies that are uniformly applied to all
employees, regardless of disability, but may not refuse leave needed by an employee with a
disability if other employees get such leave. An employer also may be required to make adjustments
in leave policy as a reasonable accommodation. The employer is not obligated to provide additional
paid leave, but accommodations may include leave flexibility and unpaid leave.
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A uniformly applied leave policy does not violate the ADA because it has a more severe effect on
an individual because of his/her disability. However, if an individual with a disability requests a
modification of such a policy as a reasonable accommodation, an employer may be required to
provide it, unless it would impose an undue hardship.
Q. Can an employer consider health and safety when deciding whether to hire an applicant or
retain an employee with a disability?
A. Yes. The ADA permits employers to establish qualification standards that will exclude
individuals who pose a direct threat -- i.e., a significant risk of substantial harm -- to the health or
safety of the individual or of others, if that risk cannot be eliminated or reduced below the level of a
oedirect threatî by reasonable accommodation. However, an employer may not simply assume that a
threat exists; the employer must establish through objective, medically supportable methods that
there is significant risk that substantial harm could occur in the workplace. By requiring employers
to make individualized judgments based on reliable medical or other objective evidence rather than
on generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the
need to balance the interests of people with disabilities against the legitimate interests of employers
in maintaining a safe workplace.
Q. Are applicants or employees who are currently illegally using drugs covered by the ADA?
A. No. Individuals who currently engage in the illegal use of drugs are specifically excluded from
the definition of a "qualified individual with a disability" protected by the ADA when the employer
takes action on the basis of their drug use.
Q. Is testing for the illegal use of drugs permissible under the ADA?
A. Yes. A test for the illegal use of drugs is not considered a medical examination under the ADA;
therefore, employers may conduct such testing of applicants or employees and make employment
decisions based on the results. The ADA does not encourage, prohibit, or authorize drug tests.
If the results of a drug test reveal the presence of a lawfully prescribed drug or other medical
information, such information must be treated as a confidential medical record.
Q. Are alcoholics covered by the ADA?
A. Yes. While a current illegal user of drugs is not protected by the ADA if an employer acts on the
basis of such use, a person who currently uses alcohol is not automatically denied protection. An
alcoholic is a person with a disability and is protected by the ADA if s/he is qualified to perform the
essential functions of the job. An employer may be required to provide an accommodation to an
alcoholic. However, an employer can discipline, discharge or deny employment to an alcoholic
whose use of alcohol adversely affects job performance or conduct. An employer also may prohibit
the use of alcohol in the workplace and can require that employees not be under the influence of
alcohol.
Q. Does the ADA override Federal and State health and safety laws?
A. The ADA does not override health and safety requirements established under other Federal laws
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even if a standard adversely affects the employment of an individual with a disability. If a standard
is required by another Federal law, an employer must comply with it and does not have to show that
the standard is job related and consistent with business necessity. For example, employers must
conform to health and safety requirements of the U.S. Occupational Safety and Health
Administration. However, an employer still has the obligation under the ADA to consider whether
there is a reasonable accommodation, consistent with the standards of other Federal laws, that will
prevent exclusion of qualified individuals with disabilities who can perform jobs without violating
the standards of those laws. If an employer can comply with both the ADA and another Federal law,
then the employer must do so.
The ADA does not override State or local laws designed to protect public health and safety, except
where such laws conflict with the ADA requirements. If there is a State or local law that would
exclude an individual with a disability from a particular job or profession because of a health or
safety risk, the employer still must assess whether a particular individual would pose a "direct
threat" to health or safety under the ADA standard. If such a "direct threat" exists, the employer
must consider whether it could be eliminated or reduced below the level of a "direct threat" by
reasonable accommodation. An employer cannot rely on a State or local law that conflicts with
ADA requirements as a defense to a charge of discrimination.
Q. How does the ADA affect workers' compensation programs?
A. Only injured workers who meet the ADA's definition of an "individual with a disability" will be
considered disabled under the ADA, regardless of whether they satisfy criteria for receiving benefits
under workers' compensation or other disability laws. A worker also must be "qualified" (with or
without reasonable accommodation) to be protected by the ADA. Work-related injuries do not
always cause physical or mental impairments severe enough to "substantially limit" a major life
activity. Also, many on-the-job injuries cause temporary impairments which heal within a short
period of time with little or no long-term or permanent impact. Therefore, many injured workers
who qualify for benefits under workers' compensation or other disability benefits laws may not be
protected by the ADA. An employer must consider work-related injuries on a case-by-case basis to
know if a worker is protected by the ADA.
An employer may not inquire into an applicant's workers' compensation history before making a
conditional offer of employment. After making a conditional job offer, an employer may inquire
about a person's workers compensation history in a medical inquiry or examination that is required
of all applicants in the same job category. However, even after a conditional offer has been made, an
employer cannot require a potential employee to have a medical examination because a response to
a medical inquiry (as opposed to results from a medical examination) shows a previous on-the-job
injury unless all applicants in the same job category are required to have an examination. Also, an
employer may not base an employment decision on the speculation that an applicant may cause
increased workers' compensation costs in the future. However, an employer may refuse to hire, or
may discharge an individual who is not currently able to perform a job without posing a significant
risk of substantial harm to the health or safety of the individual or others, if the risk cannot be
eliminated or reduced by reasonable accommodation.
An employer may refuse to hire or may fire a person who knowingly provides a false answer to a
lawful post-offer inquiry about his/her condition or worker's compensation history.
An employer also may submit medical information and records concerning employees and
applicants (obtained after a conditional job offer) to state workers' compensation offices and
"second injury" funds without violating ADA confidentiality requirements.

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Q. What is discrimination based on "relationship or association" under the ADA?
A. The ADA prohibits discrimination based on relationship or association in order to protect
individuals from actions based on unfounded assumptions that their relationship to a person with a
disability would affect their job performance, and from actions caused by bias or misinformation
concerning certain disabilities. For example, this provision would protect a person whose spouse has
a disability from being denied employment because of an employer's unfounded assumption that the
applicant would use excessive leave to care for the spouse. It also would protect an individual who
does volunteer work for people with AIDS from a discriminatory employment action motivated by
that relationship or association.
Q. How are the employment provisions enforced?
A. The employment provisions of the ADA are enforced under the same procedures now applicable
to race, color, sex, national origin, and religious discrimination under title VII of the Civil Rights
Act of 1964, as amended, and the Civil Rights Act of 1991. Complaints regarding actions that
occurred on or after July 26, 1992, may be filed with the Equal Employment Opportunity
Commission or designated State human rights agencies. Available remedies will include hiring,
reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation,
attorneys' fees, expert witness fees, and court costs. Compensatory and punitive damages also may
be available in cases of intentional discrimination or where an employer fails to make a good faith
effort to provide a reasonable accommodation.
Q. What financial assistance is available to employers to help them make reasonable
accommodations and comply with the ADA?
A. A special tax credit is available to help smaller employers make accommodations required by the
ADA. An eligible small business may take a tax credit of up to $5,000 per year for accommodations
made to comply with the ADA. The credit is available for one-half the cost of "eligible access
expenditures" that are more than $250 but less than $10,250.
A full tax deduction, up to $15,000 per year, also is available to any business for expenses of
removing qualified architectural or transportation barriers. Expenses covered include costs of
removing barriers created by steps, narrow doors, inaccessible parking spaces, restroom facilities,
and transportation vehicles. Additional information discussing the tax credits and deductions is
contained in the Department of Justice's ADA Tax Incentive Packet for Businesses available from
the ADA Information Line, see page 29. Information about the tax credit and tax deduction can also
be obtained from a local IRS office, or by contacting the Office of Chief Counsel, Internal Revenue
Service.
Q. What are an employer's recordkeeping requirements under the employment provisions of
the ADA?
A. An employer must maintain records such as application forms submitted by applicants and other
records related to hiring, requests for reasonable accommodation, promotion, demotion, transfer,
lay-off or termination, rates of pay or other terms of compensation, and selection for training or
apprenticeship for one year after making the record or taking the action described (whichever occurs
later). If a charge of discrimination is filed or an action is brought by EEOC, an employer must save
all personnel records related to the charge until final disposition of the charge.

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Q. Does the ADA require that an employer post a notice explaining its requirements?
A. The ADA requires that employers post a notice describing the provisions of the ADA. It must be
made accessible, as needed, to individuals with disabilities. A poster is available from EEOC
summarizing the requirements of the ADA and other Federal legal requirements for
nondiscrimination for which EEOC has enforcement responsibility. EEOC also provides guidance
on making this information available in accessible formats for people with disabilities.
Q. What resources does the Equal Employment Opportunity Commission have available to
help employers and people with disabilities understand and comply with the employment
requirements of the ADA?
A. The Equal Employment Opportunity Commission has developed several resources to help
employers and people with disabilities understand and comply with the employment provisions of
the ADA.
Resources include:
A Technical Assistance Manual that provides "how-to" guidance on the employment
provisions of the ADA as well as a resource directory to help individuals find specific
information.
A variety of brochures, booklets, and fact sheets.
For information on how to contact the Equal Employment Opportunity Commission, see page 29.

State and Local Governments
Q. Does the ADA apply to State and local governments?
A. Title II of the ADA prohibits discrimination against qualified individuals with disabilities in all
programs, activities, and services of public entities. It applies to all State and local governments,
their departments and agencies, and any other instrumentalities or special purpose districts of State
or local governments. It clarifies the requirements of section 504 of the Rehabilitation Act of 1973
for public transportation systems that receive Federal financial assistance, and extends coverage to
all public entities that provide public transportation, whether or not they receive Federal financial
assistance. It establishes detailed standards for the operation of public transit systems, including
commuter and intercity rail (AMTRAK).
Q. When do the requirements for State and local governments become effective?
A. In general, they became effective on January 26, 1992.
Q. How does title II affect participation in a State or local government's programs, activities,
and services?
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A. A state or local government must eliminate any eligibility criteria for participation in programs,
activities, and services that screen out or tend to screen out persons with disabilities, unless it can
establish that the requirements are necessary for the provision of the service, program, or activity.
The State or local government may, however, adopt legitimate safety requirements necessary for
safe operation if they are based on real risks, not on stereotypes or generalizations about individuals
with disabilities. Finally, a public entity must reasonably modify its policies, practices, or
procedures to avoid discrimination. If the public entity can demonstrate that a particular
modification would fundamentally alter the nature of its service, program, or activity, it is not
required to make that modification.
Q. Does title II cover a public entity's employment policies and practices?
A. Yes. Title II prohibits all public entities, regardless of the size of their work force, from
discriminating in employment against qualified individuals with disabilities. In addition to title II's
employment coverage, title I of the ADA and section 504 of the Rehabilitation Act of 1973 prohibit
employment discrimination against qualified individuals with disabilities by certain public entities
Q. What changes must a public entity make to its existing facilities to make them accessible?
A. A public entity must ensure that individuals with disabilities are not excluded from services,
programs, and activities because existing buildings are inaccessible. A State or local government's
programs, when viewed in their entirety, must be readily accessible to and usable by individuals
with disabilities. This standard, known as "program accessibility," applies to facilities of a public
entity that existed on January 26, 1992. Public entities do not necessarily have to make each of their
existing facilities accessible. They may provide program accessibility by a number of methods
including alteration of existing facilities, acquisition or construction of additional facilities,
relocation of a service or program to an accessible facility, or provision of services at alternate
accessible sites.
Q. When must structural changes be made to attain program accessibility?
A. Structural changes needed for program accessibility must be made as expeditiously as possible,
but no later than January 26, 1995. This three-year time period is not a grace period; all alterations
must be accomplished as expeditiously as possible. A public entity that employs 50 or more persons
must have developed a transition plan by July 26, 1992, setting forth the steps necessary to complete
such changes.
Q. What is a self-evaluation?
A. A self-evaluation is a public entity's assessment of its current policies and practices. The selfevaluation identifies and corrects those policies and practices that are inconsistent with title II's
requirements. All public entities must complete a self-evaluation by January 26, 1993. A public
entity that employs 50 or more employees must retain its self-evaluation for three years. Other
public entities are not required to retain their self-evaluations, but are encouraged to do so because
these documents evidence a public entity's good faith efforts to comply with title II's requirements.
Q. What does title II require for new construction and alterations?
A. The ADA requires that all new buildings constructed by a State or local government be
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accessible. In addition, when a State or local government undertakes alterations to a building, it
must make the altered portions accessible.
Q. How will a State or local government know that a new building is accessible?
A. A State or local government will be in compliance with the ADA for new construction and
alterations if it follows either of two accessibility standards. It can choose either the Uniform
Federal Accessibility Standards or the Americans with Disabilities Act Accessibility Guidelines for
Buildings and Facilities, which is the standard that must be used for public accommodations and
commercial facilities under title III of the ADA. If the State or local government chooses the ADA
Accessibility Guidelines, it is not entitled to the elevator exemption (which permits certain private
buildings under three stories or under 3,000 square feet per floor to be constructed without an
elevator).
Q. What requirements apply to a public entity's emergency telephone services, such as 911?
A. State and local agencies that provide emergency telephone services must provide "direct access"
to individuals who rely on a TDD or computer modem for telephone communication. Telephone
access through a third party or through a relay service does not satisfy the requirement for direct
access. Where a public entity provides 911 telephone service, it may not substitute a separate sevendigit telephone line as the sole means for access to 911 services by nonvoice users. A public entity
may, however, provide a separate seven-digit line for the exclusive use of nonvoice callers in
addition to providing direct access for such calls to its 911 line.
Q. Does title II require that telephone emergency service systems be compatible with all
formats used for nonvoice communications?
A. No. At present, telephone emergency services must only be compatible with the Baudot format.
Until it can be technically proven that communications in another format can operate in a reliable
and compatible manner in a given telephone emergency environment, a public entity would not be
required to provide direct access to computer modems using formats other than Baudot.
Q. How will the ADA's requirements for State and local governments be enforced?
A. Private individuals may bring lawsuits to enforce their rights under title II and may receive the
same remedies as those provided under section 504 of the Rehabilitation Act of 1973, including
reasonable attorney's fees. Individuals may also file complaints with eight designated Federal
agencies, including the Department of Justice and the Department of Transportation.

Public Accommodations
Q. What are public accommodations?
A. A public accommodation is a private entity that owns, operates, leases, or leases to, a place of
public accommodation. Places of public accommodation include a wide range of entities, such as
restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks,
private schools, and day care centers. Private clubs and religious organizations are exempt from the
ADA's title III requirements for public accommodations.
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Q. Will the ADA have any effect on the eligibility criteria used by public accommodations to
determine who may receive services?
A. Yes. If a criterion screens out or tends to screen out individuals with disabilities, it may only be
used if necessary for the provision of the services. For instance, it would be a violation for a retail
store to have a rule excluding all deaf persons from entering the premises, or for a movie theater to
exclude all individuals with cerebral palsy. More subtle forms of discrimination are also prohibited.
For example, requiring presentation of a driver's license as the sole acceptable means of
identification for purposes of paying by check could constitute discrimination against individuals
with vision impairments. This would be true if such individuals are ineligible to receive licenses and
the use of an alternative means of identification is feasible.
Q. Does the ADA allow public accommodations to take safety factors into consideration in
providing services to individuals with disabilities?
A. The ADA expressly provides that a public accommodation may exclude an individual, if that
individual poses a direct threat to the health or safety of others that cannot be mitigated by
appropriate modifications in the public accommodation's policies or procedures, or by the provision
of auxiliary aids. A public accommodation will be permitted to establish objective safety criteria for
the operation of its business; however, any safety standard must be based on objective requirements
rather than stereotypes or generalizations about the ability of persons with disabilities to participate
in an activity.
Q. Are there any limits on the kinds of modifications in policies, practices, and procedures
required by the ADA?
A. Yes. The ADA does not require modifications that would fundamentally alter the nature of the
services provided by the public accommodation. For example, it would not be discriminatory for a
physician specialist who treats only burn patients to refer a deaf individual to another physician for
treatment of a broken limb or respiratory ailment. To require a physician to accept patients outside
of his or her specialty would fundamentally alter the nature of the medical practice.
Q. What kinds of auxiliary aids and services are required by the ADA to ensure effective
communication with individuals with hearing or vision impairments?
A. Appropriate auxiliary aids and services may include services and devices such as qualified
interpreters, assistive listening devices, notetakers, and written materials for individuals with
hearing impairments; and qualified readers, taped texts, and Brailled or large print materials for
individuals with vision impairments.
Q. Are there any limitations on the ADA's auxiliary aids requirements?
A. Yes. The ADA does not require the provision of any auxiliary aid that would result in an undue
burden or in a fundamental alteration in the nature of the goods or services provided by a public
accommodation. However, the public accommodation is not relieved from the duty to furnish an
alternative auxiliary aid, if available, that would not result in a fundamental alteration or undue
burden. Both of these limitations are derived from existing regulations and caselaw under section
504 of the Rehabilitation Act and are to be determined on a case-by-case basis.
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Q. Will restaurants be required to have brailled menus?
A. No, not if waiters or other employees are made available to read the menu to a blind customer.
Q. Will a clothing store be required to have brailled price tags?
A. No, not if sales personnel could provide price information orally upon request.
Q. Will a bookstore be required to maintain a sign language interpreter on its staff in order to
communicate with deaf customers?
A. No, not if employees communicate by pen and notepad when necessary.
Q. Are there any limitations on the ADA's barrier removal requirements for existing
facilities?
A. Yes. Barrier removal need be accomplished only when it is "readily achievable" to do so.
Q. What does the term "readily achievable" mean?
A. It means "easily accomplishable and able to be carried out without much difficulty or expense."
Q. What are examples of the types of modifications that would be readily achievable in most
cases?
A. Examples include the simple ramping of a few steps, the installation of grab bars where only
routine reinforcement of the wall is required, the lowering of telephones, and similar modest
adjustments.
Q. Will businesses need to rearrange furniture and display racks?
A. Possibly. For example, restaurants may need to rearrange tables and department stores may need
to adjust their layout of racks and shelves in order to permit access to wheelchair users.
Q. Will businesses need to install elevators?
A. Businesses are not required to retrofit their facilities to install elevators unless such installation is
readily achievable, which is unlikely in most cases.
Q. When barrier removal is not readily achievable, what kinds of alternative steps are
required by the ADA?
A. Alternatives may include such measures as in-store assistance for removing articles from
inaccessible shelves, home delivery of groceries, or coming to the door to receive or return dry
cleaning.
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Q. Must alternative steps be taken without regard to cost?
A. No, only readily achievable alternative steps must be undertaken.
Q. How is "readily achievable" determined in a multisite business?
A. In determining whether an action to make a public accommodation accessible would be "readily
achievable," the overall size of the parent corporation or entity is only one factor to be considered.
The ADA also permits consideration of the financial resources of the particular facility or facilities
involved and the administrative or fiscal relationship of the facility or facilities to the parent entity.
Q. Who has responsibility for ADA compliance in leased places of public accommodation, the
landlord or the tenant?
A. The ADA places the legal obligation to remove barriers or provide auxiliary aids and services on
both the landlord and the tenant. The landlord and the tenant may decide by lease who will actually
make the changes and provide the aids and services, but both remain legally responsible.
Q. What does the ADA require in new construction?
A. The ADA requires that all new construction of places of public accommodation, as well as of
"commercial facilities" such as office buildings, be accessible. Elevators are generally not required
in facilities under three stories or with fewer than 3,000 square feet per floor, unless the building is a
shopping center or mall; the professional office of a health care provider; a terminal, depot, or other
public transit station; or an airport passenger terminal.
Q. Is it expensive to make all newly constructed places of public accommodation and
commercial facilities accessible?
A. The cost of incorporating accessibility features in new construction is less than one percent of
construction costs. This is a small price in relation to the economic benefits to be derived from full
accessibility in the future, such as increased employment and consumer spending and decreased
welfare dependency.
Q. Must every feature of a new facility be accessible?
A. No, only a specified number of elements such as parking spaces and drinking fountains must be
made accessible in order for a facility to be "readily accessible." Certain nonoccupiable spaces such
as elevator pits, elevator penthouses, and piping or equipment catwalks need not be accessible.
Q. What are the ADA requirements for altering facilities?
A. All alterations that could affect the usability of a facility must be made in an accessible manner
to the maximum extent feasible. For example, if during renovations a doorway is being relocated,
the new doorway must be wide enough to meet the new construction standard for accessibility.
When alterations are made to a primary function area, such as the lobby of a bank or the dining area
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of a cafeteria, an accessible path of travel to the altered area must also be provided. The bathrooms,
telephones, and drinking fountains serving that area must also be made accessible. These additional
accessibility alterations are only required to the extent that the added accessibility costs do not
exceed 20% of the cost of the original alteration. Elevators are generally not required in facilities
under three stories or with fewer than 3,000 square feet per floor, unless the building is a shopping
center or mall; the professional office of a health care provider; a terminal, depot, or other public
transit station; or an airport passenger terminal.
Q. Does the ADA permit an individual with a disability to sue a business when that individual
believes that discrimination is about to occur, or must the individual wait for the
discrimination to occur?
A. The ADA public accommodations provisions permit an individual to allege discrimination based
on a reasonable belief that discrimination is about to occur. This provision, for example, allows a
person who uses a wheelchair to challenge the planned construction of a new place of public
accommodation, such as a shopping mall, that would not be accessible to individuals who use
wheelchairs. The resolution of such challenges prior to the construction of an inaccessible facility
would enable any necessary remedial measures to be incorporated in the building at the planning
stage, when such changes would be relatively inexpensive.
Q. How does the ADA affect existing State and local building codes?
A. Existing codes remain in effect. The ADA allows the Attorney General to certify that a State law,
local building code, or similar ordinance that establishes accessibility requirements meets or
exceeds the minimum accessibility requirements for public accommodations and commercial
facilities. Any State or local government may apply for certification of its code or ordinance. The
Attorney General can certify a code or ordinance only after prior notice and a public hearing at
which interested people, including individuals with disabilities, are provided an opportunity to
testify against the certification.
Q. What is the effect of certification of a State or local code or ordinance?
A. Certification can be advantageous if an entity has constructed or altered a facility according to a
certified code or ordinance. If someone later brings an enforcement proceeding against the entity,
the certification is considered "rebuttable evidence" that the State law or local ordinance meets or
exceeds the minimum requirements of the ADA. In other words, the entity can argue that the
construction or alteration met the requirements of the ADA because it was done in compliance with
the State or local code that had been certified.
Q. When are the public accommodations provisions effective?
A. In general, they became effective on January 26, 1992.
Q. How will the public accommodations provisions be enforced?
A. Private individuals may bring lawsuits in which they can obtain court orders to stop
discrimination. Individuals may also file complaints with the Attorney General, who is authorized to
bring lawsuits in cases of general public importance or where a oepattern o practiceî of
discrimination is alleged. In these cases, the Attorney General may seek monetary damages and
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civil penalties. Civil penalties may not exceed $55,000 for a first violation or $110,000 for any
subsequent violation.

Miscellaneous
Q. Is the Federal government covered by the ADA?
A. The ADA does not cover the executive branch of the Federal government. The executive branch
continues to be covered by title V of the Rehabilitation Act of 1973, which prohibits discrimination
in services and employment on the basis of handicap and which is a model for the requirements of
the ADA. The ADA, however, does cover Congress and other entities in the legislative branch of
the Federal government.
Q. Does the ADA cover private apartments and private homes?
A. The ADA does not cover strictly residential private apartments and homes. If, however, a place
of public accommodation, such as a doctor's office or day care center, is located in a private
residence, those portions of the residence used for that purpose are subject to the ADA's
requirements.
Q. Does the ADA cover air transportation?
A. Discrimination by air carriers in areas other than employment is not covered by the ADA but
rather by the Air Carrier Access Act (49 U.S.C. 1374 (c)).
Q. What are the ADA's requirements for public transit buses?
A. The Department of Transportation has issued regulations mandating accessible public transit
vehicles and facilities. The regulations include requirements that all new fixed-route, public transit
buses be accessible and that supplementary paratransit services be provided for those individuals
with disabilities who cannot use fixed-route bus service. For information on how to contact the
Department of Transportation, see page 29.
Q. How will the ADA make telecommunications accessible?
A. The ADA requires the establishment of telephone relay services for individuals who use
telecommunications devices for deaf persons (TDD's) or similar devices. The Federal
Communications Commission has issued regulations specifying standards for the operation of these
services.
Q. Are businesses entitled to any tax benefit to help pay for the cost of compliance?
A. As amended in 1990, the Internal Revenue Code allows a deduction of up to $15,000 per year for
expenses associated with the removal of qualified architectural and transportation barriers. The 1990
amendment also permits eligible small businesses to receive a tax credit for certain costs of
compliance with the ADA. An eligible small business is one whose gross receipts do not exceed
$1,000,000 or whose workforce does not consist of more than 30 full-time workers. Qualifying
businesses may claim a credit of up to 50 percent of eligible access expenditures that exceed $250
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but do not exceed $10,250. Examples of eligible access expenditures include the necessary and
reasonable costs of removing architectural, physical, communications, and transportation barriers;
providing readers, interpreters, and other auxiliary aids; and acquiring or modifying equipment or
devices.

Telephone Numbers for ADA Information
This list contains the telephone numbers of Federal agencies that are responsible for providing
information to the public about the Americans with Disabilities Act and organizations that have
been funded by the Federal government to provide information through staffed information centers.
The agencies and organizations listed are sources for obtaining information about the law's
requirements and informal guidance in understanding and complying with the ADA.
ADA Information Line
U.S. Department of Justice
For ADA documents and questions
800-514-0301 (voice)
800-514-0383 (TTY)
www.ada.gov

U.S. Equal Employment Opportunity Commission
For publications
800-669-3362 (voice)
800-800-3302 (TTY)
For questions
800-669-4000 (voice)
800-669-6820 (TTY)
www.eeoc.gov
U.S. Department of Transportation
ADA Assistance Line for
regulations and complaints
888-446-4511 (voice)
TTY: use relay service
www.fta.dot.gov/civilrights/civil_rights_2360.html
Federal Communications Commission
888-225-5322 (voice)
888-835-5322 (TTY)
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www.fcc.gov/cib/dro

U.S. Architectural and Transportation Barriers Compliance Board
800-872-2253 (voice)
800-993-2822 (TTY)
www.access-board.gov
U.S. Department of Labor
Job Accommodation Network
800-526-7234 (voice & TTY)
www.jan.wvu.edu
U.S. Department of Education
Regional Disability and Business Technical Assistance Centers
800-949-4232 (voice & TTY)
www.adata.org

Addresses for ADA Information
U.S. Department of Justice
Civil Rights Division
Disability Rights Section
P.O. Box 66738
Washington, DC 20035-6738
U.S. Equal Employment Opportunity Commission
1801 L Street, NW
Washington, DC 20507
U.S. Department of Transportation
Federal Transit Administration
400 Seventh Street, SW
Washington, DC 20590
Federal Communications Commission
1919 M Street, NW
Washington, DC 20554
Architectural and Transportation Barriers Compliance Board
1331 F Street, NW Suite 1000
Washington, DC 20004-1111
This document is available in the following alternate formats:
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- Braille
- Large print
- Audiocassette
- Electronic file on computer disk.
- Internet www.ada.gov
Note: Reproduction of this document is encouraged.

February 24, 2017

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 ,, • ••• , .

t

27 CFR 181.41: GENERAL

SECTION

Requirements for descriptions of
e.YJJlosives storage /acilitics arc re·
vised.

This ATF Procedure prescribes ad·
ditional information required to be
submitted by applicants intending to
store explosive materials.

ATF Proc. 75-4

1.

PunPosE,

79

 Ste. 2.

BACKGROUND.

.01 Title XI of Public Law 91-452
( 18 U.S.C. Chapter 40) establishes
Federal control over explosive ma·
terials. Part 181 of Title 27> Code of
Federal Regulations, contains the
regulations which implement Title
XI. The Commerce in Explosives
regulations were recodificd from 26
CFR Part 181 into 27 CFR Part 181
on April 15, 1975.
.02 The Director has determined
that additional descriptive informa·
tion of explosives storage facilities is.
required in order to insure compliance
with law and regulations. According·
ly, Form ·1705, Application for Li­
cense, and Form 4707, Application
for Permit, have been revised.
SEC.

3. LICENSES.

A person intending to engage in
business as an importer, a manufac·
turer of, or a dealer in, explosive ma·
terials shall complete Form 4705,
Application for License, in accord·
ance with the instructions on the
form, and forward the forms wil.h the
license fee to the office specified on
the form. If approved, the Regional
Director (ATF) will issue a liceme
and return a copy of the application
to the applicant. At the time of re·
newal of a license the Regional Direc·
tor may require the licensee to file a
new or amended application, or addi­
tional descriptive pages to be at·
tachcd to the application, upon a
dctcnnination that the licensee's cur­
rently approved application is inac­
curate or docs not fully describe the
storage facilities. If the application is
denied, the applicant will be advised
in writing of the reasons for the
denial.
SEC.

4. PER?iUTS,

A person intending to acquire,
transport, ship, import or receive ex·
plosive materials in interstate or for-

80

eign commerce for his own use and
not for resale shall complete Form
4707, Application for Permit, in ac·
cordance with the instructions on the
form and forward the forms with the
permit foe to the office specified on
the fom1. If approved, the Regional
Director (ATF) will issue a permit
and return a copy of the application
lo the applicant. At the time of re­
newal of a permit the Regional Dircc·
tor may require the pcrmittec to file
a new or amended application, or ad·
ditional descriptive pages to be at·
tachcd to the application, upon a
determination that the pennittec's
currently approved applicatio� is in­
accurate or docs not fully describe the
storage facilities. If the application is
denied, the applicant will be advised
in writing of the reasons for the de·
nial.
SEC.

5.

STORAGE.

.01 If explosive materials arc to be
slorcd, the requirements of 27 CFR
Part 181, Subpart J-Storage, must
be complied with before the applica·
tion will be approved. An applicant
for a license or permit who intends to
store explosive materials shall fully
describe the intended storage facilities
to support the applicant's affirmation
that the storage facilities meet the
requirements set forth in 27 CFR
Part 181, Subpart J-STORAGE.
.02 The description should, as a
minimum, include the following in·
formation:
(a) The type of magazine (build­
ing, igloo, tunnel, portable
box, portable trailer, etc.).
(b) The location and distance
from applicant's place of busi·
ness.
(c) The distance to the next near­
est storage magazine.

 (d) A description of sign ificant
terrain features and physical
structures, such as buildings,
roads, utilities and other
facilities which could he dam·
aged if the magazine exploded.
Indicate the distance between
the magazine and the feature.
(c} The materials (including di­
mensions and thicknesses)
used for the structure ( e.g.
concrete, corrugated iron over
wood, plywood, tin and earth,
etc.).
(f) The security, physical safe­
guards, locks, safety equip­
ment, and anti·thcft measures.
( g) The dimensions and capacity
of each magazine.
(h) The class of explosive mate­
rials to be stored in each maga­
zine.

(i) The owner(s) of the maga­
zine, if other than the appli­
cant.
(j) The names and telephone
numbers of individuals who
could open the magazines for
inspection by ATF officers.
(k) Any special conditions, such

as inaccessibility in winter, etc.

SEC. 6 EFFECTIVE DATE
The effective date of this procedure
is November 1, 1975.
SEc. 7 lNQUmIES
Inquiries regarding this ATF Pro­
cedure should refer to its number and
be addressed to the office of your
Regional Director.

·

81

 27 cm 178.96: OUT-OF-S'JME AND MAIL OIIDER SALES
(Also 178.29, 178.96, 178.99 and 178.124)
'lbe prohihi.t.im a�te shipnents of. fireat:ms to nailicensees is
of ccntiguous state sales.
not affected by the
ATP� 85

-J

'.lhe Bureau of ATF has been asked whether a nailioensee who purchases a rifle
or shotgun fran a licensee in a o:mtiguous State must take delivery of the
fireann in the State wherein the licensee's premises is located, or whether the
licensee could lawfully ship the fireaxm in interstate � to the
unlicensed purchaser.
Section 922(a) (3) (B) of Title 18, United states Code, allc:Ms a nonlicensee to
acquire a rifle or shotgun fran a licensee whose business is in a contiguous
state if the acquisitioo is in accordance with Secticn 922(b) (3) (A). Section
922(b)(3)(A) all.aw a Federal fireams licensee to make a sale or delivery of a
rifle or shotgun to an unlicensed resident of a state contiguous to the State
in which the licensee's place of oosiness is located if the purchaser's State
of residence pennits such sale or delivery by law; the sale fully cx:q:,lies with
the legal cooditions of sale in both contiguous states; and the purchaser and
the licensee have, prior to the sale or delivery for sale of the rifµ! or
shotgmi, carplied with all of the requiranents of sectiai 922(c) ai;plicable to
intrastate transactialS other than at the licensee's business premises.
'lhese statutes do not address the actual transfer or delivery of the rifle or
shotgun to the nonlicensee. However, section 922(a)(2) provides that it is
unlawful for a licensee to ship or transport in interstate or foreign ccmneroe
any fireann to any person other than another licensee. l!i'le statute makes no
exception for the shipnent of fireams sold under the cx:ntiguous State
provisions.
Section 922(c) provides for a delay of the shipnent or delivery of a firecmn
sold to a nonlicensee who does not appear in perscn at the licensee's business
premises. rm.le the procedures prescribed by section 922(c) apply to contigu-

 ous

State transactioos as well

"ship:nent or delivery"

the use of the language
authorize the interstate
limited to cases
aver,

as to non-over-the-cx,unter, intrastate sales,

shipoent

or delivery of

"*** not otbeJ:Wise prohibited by

the report of the

Senate

in this

not

does

section

fireanns and is expressly

this

Judiciary Carmi.ttee

chapter

"'**."

M:>re­

on the Gtm Control Act
the

related that the contiguous state sale provision was not intended to affect
prohibition

in

section

922(a)(2)

or transportatiai of fireatms

to

pertaining to licensees' interstate shipnent
nonlloensees.

Senate Report

Congress, 2d Sessioo., pages 24, 34 (1968).

J:t is, therefore, � that the Gun Control Act does not authorize

selling a

rifle or
In

a

ccmnerce

licensee
to

the

cmler to effect a lawful delivery of such a fireamt, the fireann

must either be delivered to the purchaser in the state in which the
licensed

9oth

shotgun to a nonlicensee under the contiguous State provi­

sims to ship, transport or deliver the fireann in interstate
purchaser.

1501,

seller

is

to do business, or be delivered to a licensee in the purchaser's state

of residence fran whan the purchaser may acquire the fireaxm.

REVIEWER
-SUR�
NAME

A'Tfi'F'132S.li (2•7SI
CORRES ONDENCE APPROVAL AND CLEA
REPl.:ACES ATF FORM 92 (9•731 WHICH MAY BE USED

REVIEWER

 18 U.S.C. 921(a)(4): DESTRUCTIVE DEVICE

26 U.S.C. 5845(l)(2): DESTRUCTIVE DEVICE (Non-sporting shotgun having a bore of
more than one-half inch in diameter)

The registration period for the USAS-12, Striker-12, and Streetsweeper shotguns will close on
May I, 2001.

ATF Ruling 2001-1

Pursuant to ATP Rulings 94-1 (ATF QB. 1994-], 22) and 94-2 (ATF Q.B. 1994-1, 24), the
Bureau of Alcohol, Tobacco and Firearms (ATF) classi?ed the Striker 12, and
Streetsweeper shotguns as destructive devices under the National Firearms Act (NFA), 26 U.S.C.
Chapter 53. The NFA requires that certain "?rearms" be registered and imposes taxes on their
making and transfer. The term "?rearm" is de?ned in section 5845 to include "destructive
devices." The term "destructive device" is de?ned in section 5845(t)(2) as follows:

[T]he term 'destructive device? means . . . (2) any type of weapon by whatever name known
which will, or which may be readily converted to, expel a projectile by the action of an explosive
or other propellant, the barrel or barrels of which have a bore of more than one-half inch in
diameter, except a shotgun or shotgun shell which the Secretary ?nds is generally recognized as
particularly suitable for Sporting purposes; . . .

The USAS-IZ, Striker 12, and Streetsweeper shotguns were classi?ed as destructive devices
pursuant to section 5845(f) because they are shotguns with a bore of more than one-half inch in
diameter which are not generally recognized as particularly suitable for Sporting purposes.

Pursuant to 26 U.S.C. 7805(b), ATP. Ruls. 94-1 and 94-2 were issued prospectively with respect
to the making, transfer, and special (occupational) taxes imposed by the NFA. Thus, although the
classi?cation of the three shotguns as NFA weapons was retroactive, the prospective application
of the tax provisions allowed registration without payment of tax. ATF has contacted all
purchasers of record of the shotguns to advise them of the classi?cation of the weapons as
destructive devices and that the weapons must be registered. ATF has registered approximately
8,200 of these weapons to date.

Held, the registration period for the Striker-12, and Streetsweeper shotguns will close
on May 1, 2001. No further registrations will be accepted after that date. Persons in possession of
unregistered NFA ?rearms are subject to all applicable penalties under 26 U.S.C. Chapter 53.

Date signed: February 2, 2001

•

'

l

18 U.S.C. 922(b)(3): TRANSFER OF FIREARMS
27 CFR 478.11, 478.124(c)(3)(ii): DEFINITIONS, TRANSFER OF FIREARMS
A Federal firearms licensee (FFL) may not lawfully transfer a firearm to a
nonimmigrant alien who has not resided in a State continuously for at least 90
days immediately prior to the FFL conducting a National Instant Criminal
Background Check System (NICS) check.

ATF Rul. 2004-1
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has received
questions from nonimmigrant aliens concerning how aliens satisfy the Gun Control
Act's (GCA) State of residence requirement. Several nonimmigrant aliens have
asked why they have been prohibited from purchasing a firearm from a Federal
firearms licensee (FFL), even though the aliens believe they have lived in the
State where the FFL is licensed for more than 90 days.
The GCA provides that an FFL generally may not transfer a handgun to an
unlicensed person who does not reside in the State where the licensee's premises
are located. 18 U.S.C. 922(b)(3). FFLs may transfer long guns to residents of
other States in over-the-counter transactions, if the sale, delivery, and receipt of
the firearm comply with the laws of the FFL's State and the buyer's State. Id. In
order to satisfy these long gun sale requirements, the buyer must reside in a State
within the United States.
The regulations implementing the GCA define "State of residence" as: "[t]he State
in which an individual resides. An individual resides in a State if he or she is
present in a State with the intention of making a home in that State." For aliens,
the definition also provides that a legal alien "shall be considered to be a resident
of a State only if the alien is residing in the State and has resided in the State for a
period of at least 90 days prior to the date of sale or delivery of a firearm:• 27 CFR
478.11.
Moreover, the GCA regulations require that after an alien completes ATF Form
4473 (Firearms Transaction Record), the FFL shall have the alien present
documentation establishing that the alien is a resident of the State (as defined in
section 478.11) in which the FFL's business premises are located. The regulation
states that "[e]xamples of acceptable documentation include utility bills or a lease
agreement which show that the transferee has resided in the State continuously
for at least 90 days prior to the transfer of the firearm." 27 CFR 478.124(c}(3)(ii}.
ATF interprets these provisions to mean a nonimmigrant alien must reside in the
State continuously for 90 days immediately preceding the NICS check. If this
temporal requirement is not imposed, the purpose of the 90 continuous days
requirement will be defeated. Documentation that a nonimmigrant alien resided in

 -2-

a State continuously for 90 days at some point in the past does not establish the
alien's State of residence at the time of the NICS check.

Moreover, for all non-US. citizens, NICS checks include a check of Bureau of
Immigration and Customs Enforcement (ICE) databases. These databases
generally contain records of when nonimmigrant aliens enter and exit the United
States. Accordingly, when a nonimmigrant alien attempts to receive a ?rearm from
an FFL. the background check generally will show if the nonimmigrant alien has
left the United States in the preceding 90 days.

ATF recognizes that some nonimmigrant aliens who temporarily leave the United
States may have an intent to reside in a State within the United States, and are
simply going on a trip abroad. However, ATF has determined that evidence of a
nonimmigrant alien leaving the country represents a break in residency that
requires a subsequent 90-day residence in a State before the alien can lawfully
purchase a ?rearm from an FFL.

Accordingly, if the ICE records show the nonimmigrant alien has left the United
States in the preceding 90 days, NICS will tell the FFL to cancel the transaction
because the 90 day residency requirement has not been met. The transaction is
canceled (rather than denied) because. since the nonimmigrant alien did not meet
the residency requirement, 3 NICS check was not appropriate. Further, a denial is
not appropriate because the 90 day residency requirement is not a prohibited

category under 18 U.S.C. 922(g) or and so is not grounds for NICS denying a
transaction.

Held. pursuant to 18 U.S.C. 922(b)(3), 27 CFR 478.11, and 
Federal ?rearms licensees may not lawfully transfer ?rearms to nonimmigrant
aliens who have not resided in the State where their business premises are
located (or in the case of a long gun, in any State) for at least 90 continuous days
immediately preceding the National Instant Criminal Background Check System
(NICS) check.

Held further, that if a National Instant Criminal Background Check System
check demonstrates a nonimmigrant alien has left the United States during the 90
days immediately preceding the NICS check, the nonimmigrant alien does not
satisfy the 90 day State of residency requirement. This is the case even if the
nonimmigrant alien has provided other documentation, such as utility bills or a
lease, to demonstrate 90 days of continuous residency immediately preceding the
NICS check.

Date signed: MAR 22 2004

 

U.S. Department of Justice
Civil Rights Division
Disability Rights Section

Common ADA Errors and Omissions
in New Construction and Alterations

Introduction
The ADA requires that new
construction and alterations to
existing facilities comply with the
ADA Standards for Accessible
Design1 (Standards). ADA
requirements for new construction
and alterations include detailed
provisions for elements, spaces,
and facilities. Successful accessibility is often measured in inches,
so attention to detail can make the
difference between achieving
access and excluding or injuring
someone. When the ADA’s
minimum
requirements are
not met, the
results can limit
or exclude a
person with a
disability and
can be dangerous. For example, when a curb
ramp extends into an
access aisle at an
accessible parking space,
a person using a wheelchair
may not be able to get out of
the car or van. When the slope
of a sidewalk that is an accessible
route becomes steeper than 1 to 20,
railings and edge protection are

required for safe use. Objects that
project into circulation spaces from
the side or that do not provide at
least 80 inches of head clearance
can be extremely hazardous to
people who are blind or who have
low vision.
This document lists a sampling of
common accessibility errors or
omissions that have been identified
through the Department of
Justice’s ongoing enforcement
efforts. The specific requirement
of the Standards
that has not been
met follows each
error/omission.
All references to
figures can be
found in the
Standards. The
list of errors/
omissions provides examples of
common deficiencies. It is not
intended to be
comprehensive or
exhaustive. Any
failure to comply with the Standards violates the ADA.

For additional information about
the design and construction
requirements of the Americans
with Disabilities Act (ADA),
contact the Department of Justice
ADA Information Line. This free
service provides answers to
general and technical questions
about ADA requirements and is a
source for free ADA materials
including the ADA Standards for
Accessible Design. You may reach
the ADA Information Line at:
800 - 514 - 0301 (voice) or
800 - 514 - 0383 (TTY).
ADA information is also available
on the Department’s ADA Home
Page on the World Wide Web at
(http://www.usdoj.gov/crt/ada/
adahom1.htm).
Reproduction of this document is
encouraged.

6/97
1

State and local governments currently have the option to choose the
Standards or the Uniform Federal Accessibility Standard (UFAS).
1

 Parking
Error/Omission:
The built-up curb ramp projects into the access aisle.
The accessible parking space and access aisle is not level in all
directions.
Result:

Requirement:

When an access aisle has a sloped
surface, a wheelchair may roll
away from a car or van preventing
the wheelchair user from getting
out of the vehicle. The sloped
surface also prevents a vanmounted wheelchair lift from being
fully-lowered to the access aisle
surface.

4.6.3* Parking Spaces. ...Parking
spaces and access aisles shall be
level with surface slopes not
exceeding 1:50 (2%) in all directions.

Error/Omission:
There is no accessible route from accessible parking to an
accessible entrance.
Result:

Requirement:

A person using a wheelchair,
scooter, or walker has no way of
getting from the accessible parking
space to the building entrance.
Often when there is an inaccessible
walkway provided for others,
wheelchair users must use a
roadway or vehicular route which
can be dangerous.

4.6.3* Parking Spaces. ...Parking
access aisles shall be part of an
accessible route to the building or
facility entrance and shall comply
with 4.3.

Error/Omission:
No van accessible spaces are provided in the parking area.
Result:

Requirement:

A person who uses a van equipped
with a wheelchair lift has inadequate space to lower the wheelchair lift and get out of the vehicle.

4.1.2 (5)(b) One in every eight
accessible spaces, but not less than
one, shall be served by an access
aisle 96 in (2440 mm) wide.

* Asterisk denotes that related, non-mandatory material is in the
Appendix to the Standards.
2

 Van-accessible (continued)
Requirement:
minimum and shall be designated
“van accessible” as required by
4.6.4. The vertical clearance at
such spaces shall comply with
4.6.5. All such spaces may be
grouped on one level of a parking
structure.

Accessible Route - Exterior
Error/Omission:
The pedestrian routes on a site from public transportation stops,
accessible parking spaces, passenger loading zones, and public
streets and sidewalks to the accessible entrance(s) are not
accessible.
Result:

Requirement:

People with disabilities cannot
travel from the site entry points to
the accessible entrance(s). In some
cases, people must use vehicular
routes which can be dangerous.

4.1.2 (1) At least one accessible
route complying with 4.3 shall be
provided within the boundary of
the site from public transportation
stops, accessible parking spaces,
passenger loading zones if provided, and public streets or sidewalks, to an accessible building
entrance.

Curb Ramps
Error/Omission:
Curb ramp that is located across a circulation path has steep
unprotected side flares.
Result:

Requirement:

People walking across the curb
ramp may trip and be injured.
People who use wheelchairs can
tip over if they accidentally roll
over the non-flared sides.

4.7.5 Sides of Curb Ramps. If a
curb ramp is located where pedestrians must walk across the ramp,
or where it is not protected by
handrails or guardrails, it shall
have flared sides; the maximum
slope of the flare shall be 1:10 (see
Fig. 12(a)). Curb ramps with
returned curbs may be used where
pedestrians would not normally
walk across the ramp (see Fig.
12(b)).

3

 Ramps
Error/Omission:
Landing areas where ramps change direction (e.g., switchbacks
or 90° turns) are too small.
Result:

Requirement:

Wheelchair users are unable to go
up or down the ramp because there
is not enough space to turn on a
level surface. This makes the ramp
unusable.

4.8.4* (3) If ramps change direction at landings, the minimum
landing size shall be 60 in by 60 in
(1525 mm by 1525 mm).

Error/Omission:
Parts of an accessible route with slopes that exceed 1:20 lack
required features including handrails and edge protection.
Result:

Requirement:

When a walkway or other pedestrian surface has a slope greater
then 1:20, it is more difficult to
maintain control of a wheelchair.
Wheelchair users may also not be
able to climb up the sloped route
without railings. Lack of edge
protection may result in injury if a
wheelchair user rolls off the side of
the route. People who use a
mobility device such as crutches, a
cane, or a walker may lose their
balance or fall while using a sloped
section that does not have handrails
or edge protection.

4.8.1* General. Any part of an
accessible route with a slope
greater than 1:20 shall be considered a ramp and shall comply with
4.8.

Stairs
Error/Omission:
Handrail extensions are not provided at the top and bottom
risers.
Result:

Requirement:

People who use crutches or a cane
or who have limited balance may
fall at the top or bottom of the
stairs because they have no railing
to hold onto as they make the
transition from the steps to the
landing.

4.9.4(2) If handrails are not
continuous, they shall extend at
least 12 in (305 mm) beyond the
top riser and at least 12 in (305

4

 Stairs (continued)
Requirement:
mm) plus the width of one tread
beyond the bottom riser. At the
top, the extension shall be parallel
with the floor or ground surface.
At the bottom, the handrail shall
continue to slope for a distance of
the width of one tread from the
bottom riser; the remainder of the
extension shall be horizontal (see
Fig. 19(c) and (d)). Handrail
extensions shall comply with 4.4.

Doors
Error/Omission:
Adequate maneuvering clearance is not provided at doors,
including doors to accessible toilet stalls.
Result:

Requirement:

A person using a wheelchair
cannot open the door without a
clear level area in front of and
adjacent to the door that provides a
place to maneuver.

4.13.6 Maneuvering Clearances at
Doors. Minimum maneuvering
clearances at doors that are not
automatic or power-assisted shall
be as shown in Fig. 25. The floor
or ground area within the required
clearances shall be level and clear.
4.17.5* Doors. Toilet stall doors,
including door hardware, shall
comply with 4.13. If toilet stall
approach is from the latch side of
the stall door, clearance between
the door side of the stall and any
obstruction may be reduced to a
minimum of 42 in (1065 mm) (Fig.
30).

5

 Error/Omission:
The shape of the door hardware requires tight grasping,
pinching, and twisting of the wrist to use.
Result:

Requirement:

The door cannot be opened if the
user cannot operate the latch or
handle.

4.13.9* Door Hardware. Handles,
pulls, latches, locks, and other
operating devices on accessible
doors shall have a shape that is
easy to grasp with one hand and
does not require tight grasping,
tight pinching, or twisting of the

wrist to operate. Lever-operated
mechanisms, push-type mechanisms, and U-shaped handles are
acceptable designs. When sliding
doors are fully open, operating
hardware shall be exposed and
usable from both sides. Hardware
required for accessible door
passage shall be mounted no
higher than 48 in (1220 mm)
above finished floor.

Circulation Paths
Error/Omission:
Objects protrude into circulation paths from the side or from
posts.
Objects that overhang circulation paths do not provide clear
headroom.

6

 Circulation Paths (continued)
Result:

Requirement:

People who are blind or who have
low vision can be seriously injured
when they cannot detect an object
by using the sweep of their cane.

4.1.2 (3) All objects that protrude
from surfaces or posts into circulation paths shall comply with 4.4.
4.1.3 (2) All objects that overhang
or protrude into circulation paths
shall comply with 4.4.
4.4.1* General. Objects projecting
from walls (for example, telephones) with their leading edges
between 27 in and 80 in (685mm
and 2030 mm) above the finished
floor shall protrude no more than 4
in (100 mm) into walks, halls,
corridors, passageways, or aisles
(see Fig. 8(a)). Objects mounted
with their leading edges at or
below 27 in (685 mm) above the
finished floor may protrude any
amount (see Fig. 8(a) and (b)).
Free-standing objects mounted on
posts or pylons may overhang 12
in (305 mm) maximum from 27 in
to 80 in (685 mm to 2030 mm)
above the ground or finished floor
(see Fig. 8(c) and (d)). Protruding
objects shall not reduce the clear
width of an accessible route or
maneuvering space (see Fig.8(e)).
4.4.2 Head Room. Walks, halls
corridors, passageways, aisles, or
other circulation spaces shall have
80 in (2030 mm) minimum clear
head room (see Fig. 8(a)). If
vertical clearance of an area
adjoining an accessible route is
reduced to less than 80 in (nominal
dimension), a barrier to warn blind
or visually-impaired persons shall
be provided (see Fig. 8(c-1)).

Toilet Rooms and Bathrooms
Error/Omission:
Where toilet rooms or bathrooms are provided, not all public
and common use toilet rooms and bathrooms (including locker
rooms and toilet rooms for employee use) are accessible.

7

 Toilet Rooms and Bathrooms (cont'd)
Result:
People with disabilities are restricted to a limited number of
toilet rooms and may have to travel
long distances to the accessible
toilet room while others can use
any toilet room.

Requirement:
4.1.3(11) Toilet Facilities: If toilet
rooms are provided, then each
public and common use toilet
room shall comply with 4.22.
Other toilet rooms provided for the
use of occupants of specific spaces
(i.e., a private toilet room for the
occupant of a private office) shall
be adaptable. If bathing rooms are
provided, then each public and
common use bathroom shall
comply with 4.23. Accessible
toilet rooms and bathing facilities
shall be on an accessible route.

Error/Omission:
Toilet rooms with 6 or more toilet stalls lack a 36" wide
“ambulatory” toilet stall.
Result:

Requirement:

Too few accessible stalls are
provided for people with mobility
disabilities. People who walk with
crutches, a cane, a walker, or who
have limited balance generally
find it easier and safer to use a
stall that has parallel grab bars.

4.22.4, 4.23.4 Water Closets. If
toilet stalls are provided, then at
least one shall be a standard toilet
stall complying with 4.17; where 6
or more stalls are provided, in
addition to the stall complying
with 4.17.3, at least one stall 36 in
(915 mm) wide with an outward
swinging, self-closing door and
parallel grab bars complying with
Fig. 30(d) and 4.26 shall be
provided. Water closets in such
stalls shall comply with 4.16. If
water closets are not in stalls, then
at least one shall comply with
4.16.

8

 Error/Omission:
The door to the toilet room swings into the required clear floor
space at accessible fixtures, controls, and dispensers.
Result:

Requirement:

The entry door to the toilet room
cannot be fully opened when a
wheelchair user is using the
accessible fixture, control, or
dispenser. For example, if a
person using a wheelchair is
positioned in the clear floor space
at the paper towel dispenser and
that clear floor space overlaps the
space needed to swing the door
open, the door cannot be fullyopened.

4.22.3*, 4.23.3* Clear Floor
Space. The accessible fixtures
and controls required in 4.22.4,
4.22.5, 4.22.6, 4.22.7 and 4.23.4,
4.23.5, 4.23.6, and 4.23.7 shall be
on an accessible route. An
unobstructed turning space
complying with 4.2.3 shall be
provided within an accessible
toilet room. The clear floor space
at fixtures and controls, the
accessible route, and the turning
space may overlap.

Error/Omission:
When a transfer shower is used, it is often larger than the
required 36" x 36" size.
Result:

Requirement:

People with disabilities may be
injured when using a transfer
shower that is too large. Users
may slide off the seat and fall onto
the floor of the shower while
reaching for the shower controls
and hand-held showerhead.

4.21.2 Size and Clearances.
Except as specified in 9.1.2,
shower stall size and clear floor
space shall comply with Fig. 35(a)
or (b). The shower stall in Fig.
35(a) shall be 36 in by 36 in (915
mm by 915 mm). Shower stalls
required by 9.1.2 shall comply
with Fig. 57(a) or (b). The shower
stall in Fig. 35(b) will fit into the
space required for a bathtub.

9

 Signage
Error/Omission:
Where permanent room identification signage is provided, it is
mounted in the wrong location.
Result:

Requirement:

People who are blind or visually
impaired are trained to look in a
consistent location for tactile signs.
They cannot find the sign if it is
not mounted in the correct location.

4.1.3(16)(a) Signs which designate permanent rooms and spaces
shall comply with 4.30.1, 4.30.4,
4.30.5 and 4.30.6.
4.30.6 Mounting Location and
Height. Where permanent
identification is provided for
rooms and spaces, signs shall be
installed on the wall adjacent to
the latch side of the door. Where
there is no wall space to the latch
side of the door, including at
double leaf doors, signs shall be
placed on the nearest adjacent
wall. Mounting height shall be 60
in (1525 mm) above the finish
floor to the centerline of the sign.
Mounting location for such
signage shall be so that a person
may approach within 3 in (76
mm) of signage without encountering protruding objects or
standing within the swing of a
door.

Visual Alarms
Error/Omission:
No visual alarms are provided although an audible alarm
system is installed.
Result:

Requirement:

People who are deaf have no way
of knowing that a building emergency has been declared while
others who can hear are alerted by
the audible alarm. This is especially true of toilet rooms, and
study carrel areas where occupants
cannot observe others leaving the
facility.

4.1.3(14) If emergency warning
systems are provided, then they
shall include both audible alarms
and visual alarms complying with
4.28. Sleeping accommodations
required to comply with 9.3 shall
have an alarm system complying
with 4.28. Emergency warning
systems in medical care facilities
may be modified to suit standard
health care alarm design practice.

10

 Visual Alarms (continued)
Requirement:
4.28.1 General. Alarm systems
required to be accessible by 4.1
shall comply with 4.28. At a
minimum, visual signal appliances
shall be provided in buildings and
facilities in each of the following
areas: restrooms and any other
general usage areas (e.g., meeting
rooms), hallways, lobbies, and any
other area for common use.

Drinking Fountains
Error/Omission:
All drinking fountains are mounted with the spout at 36” A.F.F.
Result:

Requirement:

People who have difficulty stooping or bending over are not able to
get a drink from the accessible 36"
high drinking fountain.

4.1.3(10)* Drinking Fountains:
(a) Where only one
drinking fountain is provided on a
floor there shall be a drinking
fountain which is accessible to
individuals who use wheelchairs in
accordance with 4.15 and one
accessible to those who have
difficulty bending or stooping.
(This can be accommodated by the
use of a “hi-lo” fountain; by
providing one fountain accessible
to those who use wheelchairs and
one fountain at a standard height
convenient for those who have
difficulty bending; by providing a
fountain accessible under 4.15 and
a water cooler; or by such other
means as would achieve the
required accessibility for each
group on each floor.)
(b) Where more than one
drinking fountain or water cooler is
provided on a floor, 50% of those
provided shall comply with 4.15
and shall be on an accessible route.

11

 Restaurants
Error/Omission:
Food service queuing areas are too narrow and do not provide
adequate clear width for turns.
Result:

Requirement:

People who use wheelchairs
cannot get to the counter to
purchase or pick up food. Sometimes they get into the queuing
area and get trapped.

4.3.3 Width. The minimum clear
width of an accessible route shall
be 36 in (915 mm) except at doors
(see 4.13.5 and 4.13.6). If a person
in a wheelchair must make a turn
around an obstruction, the minimum clear width of the accessible
route shall be as shown in Fig. 7(a)
and (b).

Error/Omission:
Condiment or utensil items are placed above the reach range or
are not located on an accessible route.
Result:

Requirement:

Wheelchair users cannot obtain
condiments and other items
because the items are out of reach
or there is no way to get to the
items.

5.6 Tableware and Condiment
Areas. Self-service shelves and
dispensing devices for tableware,
dishware, condiments, food and
beverages shall be installed to
comply with 4.2 (see Fig. 54).

Transient Lodging
Error/Omission:
In hotels, motels, or other lodging facilities of 50 or more
sleeping rooms, no rooms with roll-in showers are provided, or
the roll-in showers that are provided lack a fold-down seat.
Result:

Requirement:

People who must use a roll-in
shower or a shower with a folddown seat cannot bathe. When a
roll-in shower is provided without
a folding seat, guests may resort to
using guest room furniture in the
shower.

9.1.2 Accessible Units, Sleeping
Rooms, and Suites. Accessible
sleeping rooms or suites that
comply with the requirements of
9.2 (Requirements for Accessible
Units, Sleeping Rooms, and
Suites) shall be provided in
conformance with the table below.
In addition, in hotels, of 50 or
more sleeping rooms or suites,
additional accessible sleeping
rooms or suites that include a rollin shower shall also be provided in
conformance with the table below.
Such accommodations shall
comply with the requirements of
9.2, 4.21, and Figure 57(a) or (b).
12

 Error/Omission:
Wheelchair-accessible rooms are not equipped with visual
alarms and notification devices.
Result:

Requirement:

People who are deaf or hard of
hearing and who also need to use a
guest room with accessible features have no accommodation.

9.2.2 (8) Sleeping room accommodations for persons with hearing
impairments required by 9.1 and
complying with 9.3 shall be
provided in the accessible room or
suite.

Error/Omission:
Doors into and within guest rooms that are not accessible guest
rooms do not provide at least 32" clear opening width.
Result:
People who use a wheelchair, scooter, or walker are unable to enter
standard guest rooms and are excluded from accommodations when
accessible guestrooms are occupied.

Requirement:
9.4 Other Sleeping Rooms and
Suites. Doors and doorways
designed to allow passage into
and within all sleeping units or
other covered units shall
comply with 4.13.5.

13

 NOTICE
The document is out of date and does not fully reflect the current ADA regulations. The
ADA Standards for Accessible Design (ADA Standards) were revised on September 15,
2010. New construction or alternations occurring after March 15, 2012 are subject to the
revised 2010 ADA Standards. This document is maintained for reference purposes.

 U.S. Department of Justice
Civil Rights Division
Disability Rights Section

Common ADA Problems
at Newly Constructed Lodging Facilities

Introduction
Hotels, motels, inns, and other
places of lodging designed and
constructed after January 26,
1993 must comply with the
Americans with Disabilities Act
(ADA). To comply with the
ADA and to make it possible for
persons with disabilities to use
lodging facilities like everyone
else, lodging facilities must meet
specific requirements set out in
Justice Department regulations,
28 C.F.R. pt. 36. These
regulations include detailed
architectural requirements
known as the ADA Standards
for Accessible Design (ADA
Standards), 28 C.F.R. pt. 36,
Appendix A. The ADA
Standards are designed to make
lodging facilities usable by
persons with a wide variety of
disabilities, including persons
who are blind or who have low
vision, persons who are deaf or
hard of hearing, persons with
mobility impairments who use
wheelchairs, canes, crutches, or
walkers, and persons with other
disabilities or with combinations
of disabilities.

The Justice Department is the
government agency responsible
for enforcing the ADA at
lodging facilities. As part of
ADA enforcement efforts, the
Department has conducted
numerous on-site investigations
of hotels, motels, inns, and
other places of lodging. During
these investigations, the
Department has observed certain
common ADA problems at
newly constructed lodging
facilities. This publication
describes those problems so that
owners, franchisors, architects,
and building contractors can
avoid these common ADA
mistakes and comply with the
law when designing and
constructing new facilities. This
document is not intended to be
comprehensive or exhaustive.
Any failure to comply with the
ADA Standards violates the
ADA.

For additional information about
the design and construction
requirements of the ADA,
contact the Department of
Justice ADA Information Line.
This free service provides
answers to general and technical
questions about ADA
requirements and is a source for
free ADA materials including
the ADA Standards for
Accessible Design, "Five Steps
to Make New Lodging Facilities
Comply with the ADA," and
"ADA Checklist for Newly
Constructed Lodging Facilities,"
and "Common ADA Errors and
Omissions in New Construction
and Alterations." You may
reach the ADA Information Line
at: 800-514-0301 (voice) or
800-514-0383 (TTY). ADA
information is also available on
the Department’s ADA Home
Page on the World Wide Web at
(http://www.usdoj.gov/crt/ada/
adahom1.htm).

Reproduction of this document
is encouraged.
11/99
1

 Guestroom Doors
Common Problem:
Doors and doorways into and within all guestrooms and suites,
including bathroom doors and doorways, do not allow 32 inches of
clear opening width.
Result:

Requirements:

Doors and doorways into and
within guestrooms and suites and,
in particular, bathroom doors and
doorways within these spaces are
too narrow to allow persons who
use wheelchairs, crutches, walkers,
and other mobility aids to pass
through them. As a result, persons
with disabilities are excluded from
accommodations when accessible
guestrooms are sold out and also
are unable to visit other guests in
their rooms.

All doors and doorways (except
shallow closets) into and within all
guestrooms and suites (including
guestroom bathrooms, kitchens, and
connecting room doors) shall
provide 32 inches of clear opening
width measured when a hinged door
is open 90 degrees or a sliding door
is fully opened.
ADA Standards 9.4; 4.13.5.

Measuring Clear Width

2

 Guestroom Types and Features
Common Problem:
Accessible guestrooms are not dispersed among the various classes
of rooms available at a lodging facility and do not provide people
with disabilities the same range of amenities available to others.
Result:

Requirements:

Persons with disabilities who desire
or may need different classes of
accessible guestrooms are denied
the range of lodging options that
other guests without disabilities
can take for granted (e.g., rooms
with one or two beds, suites).

In order to provide persons with
disabilities the same range of
options that are available to other
persons at the facility, lodging
facilities must disperse accessible
guestrooms/suites among the
various classes of guestrooms/
suites available at the facility.
Factors to be considered in
dispersing accessible guestrooms
among different classes of rooms
include room size, cost, amenities
provided (e.g., smoking and
nonsmoking rooms, suites,
kitchenettes, rooms with preferred
views, connecting rooms), and the
number of beds provided.
ADA Standards 9.1.4.

Accessible Guestroom Choices

✍

Rooms with One Bed

✓

Rooms with Two Beds

✓

Suites

✓

Smoking and Nonsmoking Rooms

✓

3

 Guestrooms with Roll-in Showers
Common Problem:
In hotels, motels, or other lodging facilities of 50 or more sleeping
rooms, no rooms with roll-in showers are provided, or the roll-in
showers that are provided lack a permanently attached fold-down
seat.

(a)

(b)

Fig. 57
Roll-in Shower
with Folding Seat

4

Result:

Requirements:

Some people with mobility
impairments, such as persons who
use wheelchairs, walkers, crutches,
and other mobility aids, must use a
roll-in shower or a shower with a
fold-down seat in order to shower.
When a roll-in shower is not
provided or when the roll-in
shower lacks a folding seat,
these guests may not be able
to shower or may resort to
using guestroom furniture in
the shower.

Lodging facilities must provide a
specific number of accessible
guest rooms based on the table
provided below. Bathing facilities
in these rooms must comply with
the Standards. In addition, in
lodging facilities with more than
50 guestrooms or suites, the
facility must provide a specified
number of accessible guestrooms
that have a roll-in shower with a
permanently attached fold-down
seat. The roll-in shower in these
rooms must comply with specific
requirements contained in Figure
57 of the Standards, shown on
this page.
ADA Standards 9.1.2; 9.2; 4.21;
Figure 57(a) or (b).

Total Guestrooms

Required Accessible Guestrooms

1 to 25
26 to 50
51 to 75
76 to 100
101 to 150
151 to 200
201 to 300
301 to 400
401 to 500
501 to 1000

1
2
4 (1 with roll-in shower)
5 (1 with roll-in shower)
7 (2 with roll-in showers)
8 (2 with roll-in showers)
10 (3 with roll-in showers)
12 (4 with roll-in showers)
13 (4 with roll-in showers)
2% of all rooms (plus 1 room with a
roll-in shower for each 100 rooms)
20 plus 1 for each 100 over 1000
(plus 1 room with a roll-in shower
for each 100 rooms)

1001 and over

 Visual Alarms
Common Problem:
Accessible guestrooms and suites (and an additional number of
rooms specifically for individuals who are deaf or hard of hearing)
are not equipped with visual alarms and other visual notification
devices.

Total Guestrooms

Result:

Requirements:

People who are deaf or hard of
hearing cannot hear fire alarms,
ringing telephones, knocking at
doors or ringing doorbells.
Consequently, when accessible
guestrooms and other guestrooms
do not have visual fire alarms and
visual notification devices, people
who are deaf or hard of hearing
have no notice of fires or other
life-threatening emergencies and
have no means of knowing when
the telephone is ringing, when
someone is knocking on the door,
or when someone is ringing the
doorbell.

All accessible guestrooms and a
specific number of additional
guestrooms for use by persons
who are deaf or hard of hearing
must be equipped with visual fire
alarm strobes that are connected
to the building’s fire alarm system
and visual notification devices to
alert guests who are deaf or hard
of hearing to telephone calls and
to persons knocking on the door
and/or ringing the doorbell. While
visual alarms must be connected
to the fire alarm system,
notification devices (for doors and
telephones) may be provided in
kits available at the lodging
facility’s registration desk. In
addition to accessible guestrooms,
lodging facilities must provide
additional guestrooms for persons
who are deaf or hard of hearing
following the table on this page.
ADA Standards 9.1.3; 9.2.2 (8);
9.3; 9.3.2.

Guestrooms for Use by Persons
Who Are Deaf or Hard of Hearing*

1 to 25
26 to 50
51 to 75
76 to 100
101 to 150
151 to 200
201 to 300
301 to 400
401 to 500
501 to 1000

1
2
3
4
5
6
7
8
9
2% of all rooms

1001 and over

20 plus 1 for each
100 over 1000

*Rooms for persons who are deaf or hard of hearing
are required in addition to accessible guestrooms.
5

 Operating Hardware
Common Problem:
The shape of the hardware on accessible doors, and on faucets,
fixed lamps, drapery controls, and heating and air conditioning
controls in spaces required to be accessible requires tight grasping,
pinching, and twisting of the wrist.
Result:

Requirements:

Persons who have the use of only
one hand or who have limited use
of hands, wrists, or arms are
unable to open doors to get into
rooms, lock doors for security, use
sinks or showers to wash, adjust
draperies for privacy, turn on
lamps, or adjust heating or air
conditioning levels for comfort.

Handles, pulls, latches, locks, and
other operating devices on
accessible doors; faucets; fixed
lamps; and drapery, heating, and
air conditioning controls shall
have a shape that is easy to grasp
with one hand and does not
require tight grasping, tight
pinching, or twisting of the wrist
to operate. Lever-operated
mechanisms, push-type
mechanisms, and U-shaped
handles are acceptable designs.
ADA Standards 4.13.9; 9.2.2(3);
9.2.2(5).

single-lever handle that is
easy to reach and operable
with one hand

6

 Signage
Common Problem:
For permanent rooms and spaces, identification signage is
mounted in the wrong location and cannot be read by persons who
are blind or have low vision.
Result:

Requirements:

Blind persons and persons with
low vision will have difficulty
locating rooms. If Braille and
raised letter signs are mounted on
doors instead of walls, blind
persons and persons with low
vision may be hurt by someone
who is pushing a door open while
they are trying to read a sign or
they may not be able to find the
sign.

Signs that are provided for all
permanent rooms and spaces in
the lodging facility must be
mounted on the wall (not the
door) adjacent to the latch side of
the door and centered 60 inches
above the floor so that they can be
easily located by persons who are
blind or who have low vision.
Signs must include the same
information in Braille, with raised
lettering that forms a high contrast
with the background of the sign.
Signs should not be made of
reflective materials such as brass,
silver, gold, glass, or mirrored
surfaces unless there is an
additional properly located sign
that complies with the Standards.
ADA Standards 4.1.3(16)(a);
4.30.4; 4.30.5.

60"

7

 Accessible Routes -- Interior and Exterior
Common Problem:
Both the exterior pedestrian routes (e.g., sidewalks, walkways and
plazas) on a site that people use to travel from public
transportation stops, from accessible parking spaces, from
passenger loading zones, and from public streets and sidewalks to
the accessible entrance(s), and the interior routes (e.g., hallways
and corridors) throughout the lodging facility, are not usable by
persons who use wheelchairs or other mobility aids, or who are
unable to climb steps or stairs.
Result:

Requirements:

Because people who use
wheelchairs, walkers, scooters or
other mobility aids cannot climb
steps or negotiate curbs, people
with disabilities are
often unable to
travel safely into
the lodging facility
from public
transportation,
parking lots,
passenger drop-off
areas, and public
streets and
sidewalks without
using a vehicular
way. Once inside
the lodging facility,
people with
disabilities cannot
get through the
facility to the
guestrooms,
conference rooms, toilet rooms,
restaurants, or other various
accessible elements and spaces.

At least one route that is a
minimum of 36 inches wide
without steps, stairs, or other
abrupt level changes must be
provided within the boundary of
the lodging facility’s property
from an accessible entrance to the
building to public transportation
stops, accessible parking spaces,
accessible passenger pick-up/
drop-off areas, if provided, and
public streets or sidewalks. Once
inside the facility, an accessible
route must be provided between
an accessible entrance, lobby and
the various accessible elements
and spaces in the lodging facility.
ADA Standards 4.1.2 (1);
4.1.3(1); 4.3.

At least one route that is a minimum
of 36 inches wide without steps,
stairs, or other abrupt level changes
must be provided

8

 Protruding Objects
Common Problem:
In areas inside and outside the lodging facility where people are
expected to walk, objects protrude too far from the side, from
posts, or hang down too low from overhead.
Result:

Requirements:

People who are blind or who have
low vision can be seriously injured
when they are unable to detect an
object in their path by using the
sweep of their cane.

All objects that protrude from
surfaces or posts and all
overhanging objects in areas
where people walk shall comply
with the following requirements:
Objects mounted on walls at a
height above 27 inches and below
80 inches (e.g., fire extinguishers,
telephones) shall protrude no
more than 4 inches into walks,
halls, corridors, passageways,
aisles, or any other areas where a
person walks.
Free-standing objects mounted on
posts or pylons may not project
more than 12 inches into walks,
halls, corridors, passageways,
aisles, or any other area where a
person walks at heights between
27 inches and 80 inches above the
ground or finished floor.
Stairways and escalators with
undersides that are not enclosed
and all objects hanging above
walks, hallways, corridors,
passageways, aisles, and lobbies
cannot hang down below a height
of 80 inches above the ground or
finished floor, unless there is a
cane-detectible barrier that would
alert a person who is blind or who
has low vision to the hazard.
ADA Standards 4.1.2(3); 4.1.3(2);
4.4.

9

 Elevators
Common Problem:
Lodging facilities with more than two floors of occupiable space -including any basement levels -- do not have full-size passenger
elevators available for use by guests.

10

Result:

Requirements:

People with disabilities who are
unable to use stairs and steps
cannot gain access to floors above
and below the ground level and, in
many instances, do not have access
to the amenities provided in the
lodging facility.

At least one passenger elevator
must serve each level of a facility
that has more than two floors of
occupiable space, including
basement levels. If a facility has
less than 3,000 square feet per
floor, an elevator exemption
applies. All passenger elevators
must meet the requirements of the
Standards.
ADA Standards 4.1.3(5); 4.10.

 Parking
Common Problem:
There are an insufficient number of accessible parking spaces
provided, including van-accessible parking spaces, in the proper
locations.
Result:

Requirements:

Persons with disabilities are
unable to park their vehicles and
do not have convenient access to
the lodging
facility. Persons
who use vans
equipped with a
wheelchair lift
have inadequate
space to lower the
lift and exit the
vehicle.

When a lodging facility offers
“self-parking,” it must have the
proper number of standard
accessible parking spaces and
van-accessible parking spaces as
shown in the table below.
Standard accessible parking
spaces must be at least 8 feet wide
and have or share an access aisle
that is at least 5 feet wide.
Van-accessible spaces must be at
least 8 feet wide and have or share
an access aisle that is at least 8
feet wide. The vertical clearance
for van accessible parking spaces
shall be at least 98 inches. The
surface of all standard accessible
parking spaces and all
van-accessible parking spaces
should be level (i.e., no greater
than 1:50 or 2%). Accessible
parking spaces should be
dispersed so that some of those
spaces are the nearest to the lobby
and others are the nearest spaces
to accessible entrances that serve
accessible guestrooms. All
accessible spaces in a parking
garage may be grouped on one
level of the structure. All
accessible parking spaces must
have signs with the international
symbol of accessibility that are
mounted high enough so that they
are not obscured by parked cars.
ADA Standards 4.1.2 (5); 4.6.2;
4.6.3; 4.6.4.

Total Spaces in
Parking Lot

Required Number of Accessible
Parking Spaces

1 to 25
26 to 50
51 to 75
76 to 100
101 to 150
151 to 200
201 to 300
301 to 400
401 to 500
501 to 1000

1 van space
1 standard space + 1 van space
2 standard spaces + 1 van space
3 standard spaces + 1 van space
4 standard spaces + 1 van space
5 standard spaces + 1 van space
6 standard spaces + 1 van space
7 standard spaces + 1 van space
7 standard spaces + 2 van spaces
2 % of total spaces; 1 in every 8
accessible spaces must be vanaccessible
20 + 1 extra space for each hundred
spaces over 1000; 1 in every 8
accessible spaces must be
van-accessible

1001 and over

11

 Commonly Asked Questions About Service Animals in Places of Business

Page 1 of 3

NOTICE: ARCHIVED DOCUMENT
Portions of this document may not fully reflect the current ADA regulations. This document is maintained for reference
purposes. For the current version of this document, please go to Frequently Asked Questions about Service Animals and
the ADA.
U.S. Department of Justice
Civil Rights Division
Disability Rights Section

COMMONLY ASKED QUESTIONS ABOUT
SERVICE ANIMALS IN PLACES OF BUSINESS

1. Q: What are the laws that apply to my business?
A: Under the Americans with Disabilities Act (ADA), privately owned businesses that serve the public,
such as restaurants, hotels, retail stores, taxicabs, theaters, concert halls, and sports facilities, are prohibited
from discriminating against individuals with disabilities. The ADA requires these businesses to allow
people with disabilities to bring their service animals onto business premises in whatever areas customers
are generally allowed.
2. Q: What is a service animal?
A: The ADA defines a service animal as any guide dog, signal dog, or other animal individually trained to
provide assistance to an individual with a disability. If they meet this definition, animals are considered
service animals under the ADA regardless of whether they have been licensed or certified by a state or
local government.
Service animals perform some of the functions and tasks that the individual with a disability cannot
perform for him or herself. Guide dogs are one type of service animal, used by some individuals who are
blind. This is the type of service animal with which most people are familiar. But there are service animals
that assist persons with other kinds of disabilities in their day-to-day activities. Some examples include:
 Alerting persons with hearing impairments to sounds.
 Pulling wheelchairs or carrying and picking up things for persons with mobility impairments.
 Assisting persons with mobility impairments with balance.
A service animal is not a pet.
3. Q: How can I tell if an animal is really a service animal and not just a pet?
A: Some, but not all, service animals wear special collars and harnesses. Some, but not all, are licensed or
certified and have identification papers. If you are not certain that an animal is a service animal, you may
ask the person who has the animal if it is a service animal required because of a disability. However, an
individual who is going to a restaurant or theater is not likely to be carrying documentation of his or her
medical condition or disability. Therefore, such documentation generally may not be required as a
condition for providing service to an individual accompanied by a service animal. Although a number of
states have programs to certify service animals, you may not insist on proof of state certification before
permitting the service animal to accompany the person with a disability.

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4. Q: What must I do when an individual with a service animal comes to my business?
A: The service animal must be permitted to accompany the individual with a disability to all areas of the
facility where customers are normally allowed to go. An individual with a service animal may not be
segregated from other customers.
5. Q: I have always had a clearly posted "no pets" policy at my establishment. Do I still have to allow service
animals in?
A: Yes. A service animal is not a pet. The ADA requires you to modify your "no pets" policy to allow the
use of a service animal by a person with a disability. This does not mean you must abandon your "no pets"
policy altogether but simply that you must make an exception to your general rule for service animals.
6. Q: My county health department has told me that only a guide dog has to be admitted. If I follow those
regulations, am I violating the ADA?
A: Yes, if you refuse to admit any other type of service animal on the basis of local health department
regulations or other state or local laws. The ADA provides greater protection for individuals with
disabilities and so it takes priority over the local or state laws or regulations.
7. Q: Can I charge a maintenance or cleaning fee for customers who bring service animals into my business?
A: No. Neither a deposit nor a surcharge may be imposed on an individual with a disability as a condition
to allowing a service animal to accompany the individual with a disability, even if deposits are routinely
required for pets. However, a public accommodation may charge its customers with disabilities if a service
animal causes damage so long as it is the regular practice of the entity to charge non-disabled customers for
the same types of damages. For example, a hotel can charge a guest with a disability for the cost of
repairing or cleaning furniture damaged by a service animal if it is the hotel's policy to charge when nondisabled guests cause such damage.
8. Q: I operate a private taxicab and I don't want animals in my taxi; they smell, shed hair and sometimes have
"accidents." Am I violating the ADA if I refuse to pick up someone with a service animal?
A: Yes. Taxicab companies may not refuse to provide services to individuals with disabilities. Private
taxicab companies are also prohibited from charging higher fares or fees for transporting individuals with
disabilities and their service animals than they charge to other persons for the same or equivalent service.
9. Q: Am I responsible for the animal while the person with a disability is in my business?
A: No. The care or supervision of a service animal is solely the responsibility of his or her owner. You are
not required to provide care or food or a special location for the animal.
10. Q: What if a service animal barks or growls at other people, or otherwise acts out of control?
A: You may exclude any animal, including a service animal, from your facility when that animal's behavior
poses a direct threat to the health or safety of others. For example, any service animal that displays vicious
behavior towards other guests or customers may be excluded. You may not make assumptions, however,
about how a particular animal is likely to behave based on your past experience with other animals. Each
situation must be considered individually.
Although a public accommodation may exclude any service animal that is out of control, it should give the
individual with a disability who uses the service animal the option of continuing to enjoy its goods and
services without having the service animal on the premises.
11. Q: Can I exclude an animal that doesn't really seem dangerous but is disruptive to my business?
A: There may be a few circumstances when a public accommodation is not required to accommodate a
service animal--that is, when doing so would result in a fundamental alteration to the nature of the business.
Generally, this is not likely to occur in restaurants, hotels, retail stores, theaters, concert halls, and sports

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facilities. But when it does, for example, when a dog barks during a movie, the animal can be excluded.
If you have further questions about service animals or other requirements of the ADA, you may call the U.S.
Department of Justice's toll-free ADA Information Line at 800-514-0301 (voice) or 800-514-0383 (TDD).

July 1996

Reproduction of this document is encouraged.

February24, 2017

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12/21/2017

 U.S. Department of Justice
Civil Rights Division
Office for Access to Justice
Washington, D.C. 20530

March 14, 2016

Dear Colleague:
The Department of Justice (“the Department”) is committed to assisting state and local
courts in their efforts to ensure equal justice and due process for all those who come before them.
In December 2015, the Department convened a diverse group of stakeholders—judges, court
administrators, lawmakers, prosecutors, defense attorneys, advocates, and impacted
individuals—to discuss the assessment and enforcement of fines and fees in state and local
courts. While the convening made plain that unlawful and harmful practices exist in certain
jurisdictions throughout the country, it also highlighted a number of reform efforts underway by
state leaders, judicial officers, and advocates, and underscored the commitment of all the
participants to continue addressing these critical issues. At the meeting, participants and
Department officials also discussed ways in which the Department could assist courts in their
efforts to make needed changes. Among other recommendations, participants called on the
Department to provide greater clarity to state and local courts regarding their legal obligations
with respect to fines and fees and to share best practices. Accordingly, this letter is intended to
address some of the most common practices that run afoul of the United States Constitution
and/or other federal laws and to assist court leadership in ensuring that courts at every level of
the justice system operate fairly and lawfully, as well as to suggest alternative practices that can
address legitimate public safety needs while also protecting the rights of participants in the
justice system.
Recent years have seen increased attention on the illegal enforcement of fines and fees in
certain jurisdictions around the country—often with respect to individuals accused of
misdemeanors, quasi-criminal ordinance violations, or civil infractions.1 Typically, courts do not
sentence defendants to incarceration in these cases; monetary fines are the norm. Yet the harm
1

See, e.g., Civil Rights Division, U.S. Department of Justice, Investigation of the Ferguson Police Department
(Mar. 4, 2015), http://www.justice.gov/crt/about/spl/documents/ferguson_findings_3-4-15.pdf (finding that the
Ferguson, Missouri, municipal court routinely deprived people of their constitutional rights to due process and equal
protection and other federal protections); Brennan Center for Justice, Criminal Justice Debt: A Barrier to Reentry
(2010), available at http://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf
(reporting on fine and fee practices in fifteen states); American Civil Liberties Union, In for a Penny: The Rise of
America’s New Debtors’ Prisons (2010), available at https://www.aclu.org/files/assets/InForAPenny_web.pdf
(discussing practices in Louisiana, Michigan, Ohio, Georgia, and Washington state).

1

 caused by unlawful practices in these jurisdictions can be profound. Individuals may confront
escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no
danger to the community2; lose their jobs; and become trapped in cycles of poverty that can be
nearly impossible to escape.3 Furthermore, in addition to being unlawful, to the extent that these
practices are geared not toward addressing public safety, but rather toward raising revenue, they
can cast doubt on the impartiality of the tribunal and erode trust between local governments and
their constituents.4
To help judicial actors protect individuals’ rights and avoid unnecessary harm, we discuss
below a set of basic constitutional principles relevant to the enforcement of fines and fees. These
principles, grounded in the rights to due process and equal protection, require the following:
(1) Courts must not incarcerate a person for nonpayment of fines or fees without first
conducting an indigency determination and establishing that the failure to pay was
willful;
(2) Courts must consider alternatives to incarceration for indigent defendants unable to
pay fines and fees;
(3) Courts must not condition access to a judicial hearing on the prepayment of fines or
fees;
(4) Courts must provide meaningful notice and, in appropriate cases, counsel, when
enforcing fines and fees;
(5) Courts must not use arrest warrants or license suspensions as a means of coercing the
payment of court debt when individuals have not been afforded constitutionally
adequate procedural protections;
(6) Courts must not employ bail or bond practices that cause indigent defendants to
remain incarcerated solely because they cannot afford to pay for their release; and
(7) Courts must safeguard against unconstitutional practices by court staff and private
contractors.
In court systems receiving federal funds, these practices may also violate Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d, when they unnecessarily impose disparate harm on the
basis of race or national origin.
2

Nothing in this letter is intended to suggest that courts may not preventively detain a defendant pretrial in order to
secure the safety of the public or appearance of the defendant.
3
See Council of Economic Advisers, Issue Brief, Fines, Fees, and Bail: Payments in the Criminal Justice System
that Disproportionately Impact the Poor, at 1 (Dec. 2015), available at
https://www.whitehouse.gov/sites/default/files/page/files/1215_cea_fine_fee_bail_issue_brief.pdf (describing the
disproportionate impact on the poor of fixed monetary penalties, which “can lead to high levels of debt and even
incarceration for failure to fulfil a payment” and create “barriers to successful re-entry after an offense”).
4
See Conference of State Court Administrators, 2011-2012 Policy Paper, Courts Are Not Revenue Centers (2012),
available at https://csgjusticecenter.org/wp-content/uploads/2013/07/2011-12-COSCA-report.pdf.

2

 As court leaders, your guidance on these issues is critical. We urge you to review court
rules and procedures within your jurisdiction to ensure that they comply with due process, equal
protection, and sound public policy. We also encourage you to forward a copy of this letter to
every judge in your jurisdiction; to provide appropriate training for judges in the areas discussed
below; and to develop resources, such as bench books, to assist judges in performing their duties
lawfully and effectively. We also hope that you will work with the Justice Department, going
forward, to continue to develop and share solutions for implementing and adhering to these
principles.

1. Courts must not incarcerate a person for nonpayment of fines or fees without first
conducting an indigency determination and establishing that the failure to pay was
willful.
The due process and equal protection principles of the Fourteenth Amendment prohibit
“punishing a person for his poverty.” Bearden v. Georgia, 461 U.S. 660, 671 (1983).
Accordingly, the Supreme Court has repeatedly held that the government may not incarcerate an
individual solely because of inability to pay a fine or fee. In Bearden, the Court prohibited the
incarceration of indigent probationers for failing to pay a fine because “[t]o do otherwise would
deprive the probationer of his conditional freedom simply because, through no fault of his own,
he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness
required by the Fourteenth Amendment.” Id. at 672-73; see also Tate v. Short, 401 U.S. 395,
398 (1971) (holding that state could not convert defendant’s unpaid fine for a fine-only offense
to incarceration because that would subject him “to imprisonment solely because of his
indigency”); Williams v. Illinois, 399 U.S. 235, 241-42 (1970) (holding that an indigent
defendant could not be imprisoned longer than the statutory maximum for failing to pay his fine).
The Supreme Court recently reaffirmed this principle in Turner v. Rogers, 131 S. Ct. 2507
(2011), holding that a court violates due process when it finds a parent in civil contempt and jails
the parent for failure to pay child support, without first inquiring into the parent’s ability to pay.
Id. at 2518-19.
To comply with this constitutional guarantee, state and local courts must inquire as to a
person’s ability to pay prior to imposing incarceration for nonpayment. Courts have an
affirmative duty to conduct these inquiries and should do so sua sponte. Bearden, 461 U.S. at
671. Further, a court’s obligation to conduct indigency inquiries endures throughout the life of a
case. See id. at 662-63. A probationer may lose her job or suddenly require expensive medical
care, leaving her in precarious financial circumstances. For that reason, a missed payment
cannot itself be sufficient to trigger a person’s arrest or detention unless the court first inquires
anew into the reasons for the person’s non-payment and determines that it was willful. In
addition, to minimize these problems, courts should inquire into ability to pay at sentencing,
when contemplating the assessment of fines and fees, rather than waiting until a person fails to
pay.

3

 Under Bearden, standards for indigency inquiries must ensure fair and accurate
assessments of defendants’ ability to pay. Due process requires that such standards include both
notice to the defendant that ability to pay is a critical issue, and a meaningful opportunity for the
defendant to be heard on the question of his or her financial circumstances. See Turner, 131 S.
Ct. at 2519-20 (requiring courts to follow these specific procedures, and others, to prevent
unrepresented parties from being jailed because of financial incapacity). Jurisdictions may
benefit from creating statutory presumptions of indigency for certain classes of defendants—for
example, those eligible for public benefits, living below a certain income level, or serving a term
of confinement. See, e.g., R.I. Gen. Laws § 12-20-10 (listing conditions considered “prima facie
evidence of the defendant’s indigency and limited ability to pay,” including but not limited to
“[q]ualification for and/or receipt of” public assistance, disability insurance, and food stamps).

2. Courts must consider alternatives to incarceration for indigent defendants unable to pay
fines and fees.
When individuals of limited means cannot satisfy their financial obligations, Bearden
requires consideration of “alternatives to imprisonment.” 461 U.S. at 672. These alternatives
may include extending the time for payment, reducing the debt, requiring the defendant to attend
traffic or public safety classes, or imposing community service. See id. Recognizing this
constitutional imperative, some jurisdictions have codified alternatives to incarceration in state
law. See, e.g., Ga. Code Ann. § 42-8-102(f)(4)(A) (2015) (providing that for “failure to report to
probation or failure to pay fines, statutory surcharges, or probation supervision fees, the court
shall consider the use of alternatives to confinement, including community service”); see also
Tate, 401 U.S. at 400 n.5 (discussing effectiveness of fine payment plans and citing examples
from several states). In some cases, it will be immediately apparent that a person is not and will
not likely become able to pay a monetary fine. Therefore, courts should consider providing
alternatives to indigent defendants not only after a failure to pay, but also in lieu of imposing
financial obligations in the first place.
Neither community service programs nor payment plans, however, should become a
means to impose greater penalties on the poor by, for example, imposing onerous user fees or
interest. With respect to community service programs, court officials should consider
delineating clear and consistent standards that allow individuals adequate time to complete the
service and avoid creating unreasonable conflicts with individuals’ work and family obligations.
In imposing payment plans, courts should consider assessing the defendant’s financial resources
to determine a reasonable periodic payment, and should consider including a mechanism for
defendants to seek a reduction in their monthly obligation if their financial circumstances
change.

3. Courts must not condition access to a judicial hearing on prepayment of fines or fees.
State and local courts deprive indigent defendants of due process and equal protection if
they condition access to the courts on payment of fines or fees. See Boddie v. Connecticut, 401
U.S. 371, 374 (1971) (holding that due process bars states from conditioning access to
4

 compulsory judicial process on the payment of court fees by those unable to pay); see also
Tucker v. City of Montgomery Bd. of Comm’rs, 410 F. Supp. 494, 502 (M.D. Ala. 1976) (holding
that the conditioning of an appeal on payment of a bond violates indigent prisoners’ equal
protection rights and “‘has no place in our heritage of Equal Justice Under Law’” (citing Burns v.
Ohio, 360 U.S. 252, 258 (1959)).5
This unconstitutional practice is often framed as a routine administrative matter. For
example, a motorist who is arrested for driving with a suspended license may be told that the
penalty for the citation is $300 and that a court date will be scheduled only upon the completion
of a $300 payment (sometimes referred to as a prehearing “bond” or “bail” payment). Courts
most commonly impose these prepayment requirements on defendants who have failed to
appear, depriving those defendants of the opportunity to establish good cause for missing court.
Regardless of the charge, these requirements can have the effect of denying access to justice to
the poor.

4. Courts must provide meaningful notice and, in appropriate cases, counsel, when
enforcing fines and fees.
“An elementary and fundamental requirement of due process in any proceeding which is
to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314-15 (1950); see also
Turner, 131 S. Ct. at 2519 (discussing the importance of notice in proceedings to enforce a child
support order). Thus, constitutionally adequate notice must be provided for even the most minor
cases. Courts should ensure that citations and summonses adequately inform individuals of the
precise charges against them, the amount owed or other possible penalties, the date of their court
hearing, the availability of alternate means of payment, the rules and procedures of court, their
rights as a litigant, or whether in-person appearance is required at all. Gaps in this vital
information can make it difficult, if not impossible, for defendants to fairly and expeditiously
resolve their cases. And inadequate notice can have a cascading effect, resulting in the
defendant’s failure to appear and leading to the imposition of significant penalties in violation of
the defendant’s due process rights.
Further, courts must ensure defendants’ right to counsel in appropriate cases when
enforcing fines and fees. Failing to appear or to pay outstanding fines or fees can result in
incarceration, whether through the pursuit of criminal charges or criminal contempt, the
imposition of a sentence that had been suspended, or the pursuit of civil contempt proceedings.
The Sixth Amendment requires that a defendant be provided the right to counsel in any criminal
proceeding resulting in incarceration, see Scott v. Illinois, 440 U.S. 367, 373 (1979); Argersinger
v. Hamlin, 407 U.S. 25, 37 (1972), and indeed forbids imposition of a suspended jail sentence on
a probationer who was not afforded a right to counsel when originally convicted and sentenced,
5

The Supreme Court reaffirmed this principle in Little v. Streater, 452 U.S. 1, 16-17 (1981), when it prohibited
conditioning indigent persons’ access to blood tests in adversarial paternity actions on payment of a fee, and in
M.L.B. v. S.L.J., 519 U.S. 102, 107 (1996), when it prohibited charging filing fees to indigent persons seeking to
appeal from proceedings terminating their parental rights.

5

 see Alabama v. Shelton, 535 U.S. 654, 662 (2002). Under the Fourteenth Amendment,
defendants likewise may be entitled to counsel in civil contempt proceedings for failure to pay
fines or fees. See Turner, 131 S. Ct. at 2518-19 (holding that, although there is no automatic
right to counsel in civil contempt proceedings for nonpayment of child support, due process is
violated when neither counsel nor adequate alternative procedural safeguards are provided to
prevent incarceration for inability to pay).6

5. Courts must not use arrest warrants or license suspensions as a means of coercing the
payment of court debt when individuals have not been afforded constitutionally adequate
procedural protections.
The use of arrest warrants as a means of debt collection, rather than in response to public
safety needs, creates unnecessary risk that individuals’ constitutional rights will be violated.
Warrants must not be issued for failure to pay without providing adequate notice to a defendant,
a hearing where the defendant’s ability to pay is assessed, and other basic procedural protections.
See Turner, 131 S. Ct. at 2519; Bearden, 461 U.S. at 671-72; Mullane, 339 U.S. at 314-15.
When people are arrested and detained on these warrants, the result is an unconstitutional
deprivation of liberty. Rather than arrest and incarceration, courts should consider less harmful
and less costly means of collecting justifiable debts, including civil debt collection.7
In many jurisdictions, courts are also authorized—and in some cases required—to initiate
the suspension of a defendant’s driver’s license to compel the payment of outstanding court
debts. If a defendant’s driver’s license is suspended because of failure to pay a fine, such a
suspension may be unlawful if the defendant was deprived of his due process right to establish
inability to pay. See Bell v. Burson, 402 U.S. 535, 539 (1971) (holding that driver’s licenses
“may become essential in the pursuit of a livelihood” and thus “are not to be taken away without
that procedural due process required by the Fourteenth Amendment”); cf. Dixon v. Love, 431
U.S. 105, 113-14 (1977) (upholding revocation of driver’s license after conviction based in part
on the due process provided in the underlying criminal proceedings); Mackey v. Montrym, 443
U.S. 1, 13-17 (1979) (upholding suspension of driver’s license after arrest for driving under the
influence and refusal to take a breath-analysis test, because suspension “substantially served” the
government’s interest in public safety and was based on “objective facts either within the
personal knowledge of an impartial government official or readily ascertainable by him,” making
the risk of erroneous deprivation low). Accordingly, automatic license suspensions premised on
determinations that fail to comport with Bearden and its progeny may violate due process.

6

Turner’s ruling that the right to counsel is not automatic was limited to contempt proceedings arising from failure
to pay child support to a custodial parent who is unrepresented by counsel. See 131 S. Ct. at 2512, 2519. The Court
explained that recognizing such an automatic right in that context “could create an asymmetry of representation.”
Id. at 2519. The Court distinguished those circumstances from civil contempt proceedings to recover funds due to
the government, which “more closely resemble debt-collection proceedings” in which “[t]he government is likely to
have counsel or some other competent representative.” Id. at 2520.
7
Researchers have questioned whether the use of police and jail resources to coerce the payment of court debts is
cost-effective. See, e.g., Katherine Beckett & Alexes Harris, On Cash and Conviction: Monetary Sanctions as
Misguided Policy, 10 CRIMINOLOGY & PUB. POL’Y 505, 527-28 (2011). This strategy may also undermine public
safety by diverting police resources and stimulating public distrust of law enforcement.

6

 Even where such suspensions are lawful, they nonetheless raise significant public policy
concerns. Research has consistently found that having a valid driver’s license can be crucial to
individuals’ ability to maintain a job, pursue educational opportunities, and care for families.8 At
the same time, suspending defendants’ licenses decreases the likelihood that defendants will
resolve pending cases and outstanding court debts, both by jeopardizing their employment and
by making it more difficult to travel to court, and results in more unlicensed driving. For these
reasons, where they have discretion to do so, state and local courts are encouraged to avoid
suspending driver’s licenses as a debt collection tool, reserving suspension for cases in which it
would increase public safety.9

6. Courts must not employ bail or bond practices that cause indigent defendants to remain
incarcerated solely because they cannot afford to pay for their release.
When indigent defendants are arrested for failure to make payments they cannot afford,
they can be subjected to another independent violation of their rights: prolonged detention due to
unlawful bail or bond practices. Bail that is set without regard to defendants’ financial capacity
can result in the incarceration of individuals not because they pose a threat to public safety or a
flight risk, but rather because they cannot afford the assigned bail amount.
As the Department of Justice set forth in detail in a federal court brief last year, and as
courts have long recognized, any bail practices that result in incarceration based on poverty
violate the Fourteenth Amendment. See Statement of Interest of the United States, Varden v.
City of Clanton, No. 2:15-cv-34-MHT-WC, at 8 (M.D. Ala., Feb. 13, 2015) (citing Bearden, 461
U.S. at 671; Tate, 401 U.S. at 398; Williams, 399 U.S. at 240-41).10 Systems that rely primarily
on secured monetary bonds without adequate consideration of defendants’ financial means tend
to result in the incarceration of poor defendants who pose no threat to public safety solely
because they cannot afford to pay.11 To better protect constitutional rights while ensuring
defendants’ appearance in court and the safety of the community, courts should consider
transitioning from a system based on secured monetary bail alone to one grounded in objective
risk assessments by pretrial experts. See, e.g., D.C. Code § 23-1321 (2014); Colo. Rev. Stat. 168

See, e.g., Robert Cervero, et al., Transportation as a Stimulus of Welfare-to-Work: Private versus Public Mobility,
22 J. PLAN. EDUC. & RES. 50 (2002); Alan M. Voorhees, et al., Motor Vehicles Affordability and Fairness Task
Force: Final Report, at xii (2006), available at http://www.state.nj.us/mvc/pdf/About/AFTF_final_02.pdf (a study
of suspended drivers in New Jersey, which found that 42% of people lost their jobs as a result of the driver’s license
suspension, that 45% of those could not find another job, and that this had the greatest impact on seniors and lowincome individuals).
9
See Am. Ass’n of Motor Veh. Adm’rs, Best Practices Guide to Reducing Suspended Drivers, at 3 (2013),
available at http://www.aamva.org/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=3723&libID=3709
(recommending that “legislatures repeal state laws requiring the suspension of driving privileges for non-highway
safety related violations” and citing research supporting view that fewer driver suspensions for non-compliance with
court requirements would increase public safety).
10
The United States’ Statement of Interest in Varden is available at
http://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/02/13/varden statement_
of_interest.pdf.
11
See supra Statement of the United States, Varden, at 11 (citing Timothy R. Schnacke, U.S. Department of Justice,
National Institute of Corrections, FUNDAMENTALS OF BAIL: A RESOURCE GUIDE FOR PRETRIAL PRACTITIONERS AND
A FRAMEWORK FOR AMERICAN PRETRIAL REFORM, at 2 (2014), available at http://nicic.gov/library/028360).

7

 4-104 (2014); Ky. Rev. Stat. Ann. § 431.066 (2015); N.J. S. 946/A1910 (enacted 2015); see also
18 U.S.C. § 3142 (permitting pretrial detention in the federal system when no conditions will
reasonably assure the appearance of the defendant and safety of the community, but cautioning
that “[t]he judicial officer may not impose a financial condition that results in the pretrial
detention of the person”).

7. Courts must safeguard against unconstitutional practices by court staff and private
contractors.
In many courts, especially those adjudicating strictly minor or local offenses, the judge or
magistrate may preside for only a few hours or days per week, while most of the business of the
court is conducted by clerks or probation officers outside of court sessions. As a result, clerks
and other court staff are sometimes tasked with conducting indigency inquiries, determining
bond amounts, issuing arrest warrants, and other critical functions—often with only perfunctory
review by a judicial officer, or no review at all. Without adequate judicial oversight, there is no
reliable means of ensuring that these tasks are performed consistent with due process and equal
protection. Regardless of the size of the docket or the limited hours of the court, judges must
ensure that the law is followed and preserve “both the appearance and reality of fairness,
generating the feeling, so important to a popular government, that justice has been done.”
Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980) (internal quotation marks omitted); see also
American Bar Association, MODEL CODE OF JUDICIAL CONDUCT, Canon 2, Rules 2.2, 2.5, 2.12.
Additional due process concerns arise when these designees have a direct pecuniary
interest in the management or outcome of a case—for example, when a jurisdiction employs
private, for-profit companies to supervise probationers. In many such jurisdictions, probation
companies are authorized not only to collect court fines, but also to impose an array of
discretionary surcharges (such as supervision fees, late fees, drug testing fees, etc.) to be paid to
the company itself rather than to the court. Thus, the probation company that decides what
services or sanctions to impose stands to profit from those very decisions. The Supreme Court
has “always been sensitive to the possibility that important actors in the criminal justice system
may be influenced by factors that threaten to compromise the performance of their duty.” Young
v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 810 (1987). It has expressly prohibited
arrangements in which the judge might have a pecuniary interest, direct or indirect, in the
outcome of a case. See Tumey v. Ohio, 273 U.S. 510, 523 (1927) (invalidating conviction on the
basis of $12 fee paid to the mayor only upon conviction in mayor’s court); Ward v. Village of
Monroeville, Ohio, 409 U.S. 57, 61-62 (1972) (extending reasoning of Tumey to cases in which
the judge has a clear but not direct interest). It has applied the same reasoning to prosecutors,
holding that the appointment of a private prosecutor with a pecuniary interest in the outcome of a
case constitutes fundamental error because it “undermines confidence in the integrity of the
criminal proceeding.” Young, 481 U.S. at 811-14. The appointment of a private probation
company with a pecuniary interest in the outcome of its cases raises similarly fundamental
concerns about fairness and due process.
*****

8

 The Department of Justice has a strong interest in ensuring that state and local courts
provide every individual with the basic protections guaranteed by the Constitution and other
federal laws, regardless of his or her financial means. We are eager to build on the December
2015 convening about these issues by supporting your efforts at the state and local levels, and we
look forward to working collaboratively with all stakeholders to ensure that every part of our
justice system provides equal justice and due process.

Sincerely,

Vanita Gupta
Principal Deputy Assistant Attorney General
Civil Rights Division

Lisa Foster
Director
Office for Access to Justice

9

 a9 
DEPARTMENT OF
THE TREASURY
Bureau of Alcohol, Tobacco and Firearm:
Washington, n.c. 20226
Plumber: 7540 Due: September 22, 1975

 

EXPLOSIVES APPLICATIONS AND EXPLOSIVES STORAGE
FACILITIES

Explosives licensees and permittees,
and others concerned:

The purpose of this Industry Circular is to advise you of an ATF
Procedure to be published soon in the ATP Bulletin. The procedure
reads substantially as follows:

ATF Proc. 75?4
Section 1. PURPOSE.

This ATF Procedure prescribes additional information required to
be submitted by applicants intending to store explosive materials.

Sec. 2 . BACKGROUND.

. 01 Title XI of Public Law 91?452 (18 U. S. C. Chapter 40) estab-
lishes Federal control over explosive materials. Part 181 of Title 27,
Code of Federal Regulations, contains the regulations which implement
Title XI. The Commerce in Explosives regulations were recodified
from 26 CFR Part 181 into 27 CFR Part 181 on April 15, 1975.

. 02 The Director has determined that additional descriptive infor-
mation of explosives storage facilities is required in order to insure
compliance with law and regulations. Accordingly, Form 4705, Appli?
cation for License, and Form 4707, Application for Permit, have been
revised.

Sec. 3. LICENSES.

A person intending to engage in business as an importer, a manu-
facturer of, or a dealer in, explosive materials shall complete Form
4705, Application for License, in accordance with the instructions on
the form, and forward the forms with the license fee to the office
specified on the form. If approved, the Regional Director (ATF) will
issue a license and return a copy of the application to the applicant.

At the time of renewal of a license the Regional Director may require
the licensee to file a new or amended application, or additional
descriptive pages to be attached to the application, upon a determination
that the licensee's currently approved application is inaccurate or does
not fully describe the storage facilities. If the application is denied, the
applicant will be advised in writing of the reasons for the denial.

Fund ?Sec. 4. PERMITS. .1,

A person intending to acquire, transport, ship, import or receive 
explosive materials in interstate or foreign commerce for his own use
and not for resale shall complete Form 4707, Application for Permit,
in accordance with the instructions on the form and forward the forms
with the permit fee to the office specified on the form. If approved
the Regional Director (ATF) will issue a permit and return a copy of
the application to the applicant. At the time of renewal of a permit
the Regional Director may require the permittee to file a new or
amended application, or additional descriptive pages to be attached to
the application, upon a determination that the permittee's currently
approved application is inaccurate or does not fully describe the storage
facilities. If the application iS'denied, the applicant will be advised in
writing of the reasons for the denial.

Sec. 5. STORAGE.

. 01 If explosive materials are to be stored, the requirements of 27
CFR Part 181, Subpart - Storage, must be complied with before the
application will be approved. An applicant for a license or permit who
intends to store explosive materials shall fully describe the intended
storage facilities to support the applicant's affirmation that the storage
facilities meet the requirements set forth in 27 CFR Part 181, Subpart
J- Storage.

. 02 The description should, as a minimum, include the following
information:

The type of magazine (building, igloo, tunnel, portable
box, portable trailer, etc. 

The location and distance from applicant's place of
business.

The distance to the next nearest storage magazine.

A description of significant terrain features and physical
structures, such as buildings, roads, utilities and other
facilities which could be damaged if the magazine exploded.
Indicate the distance between the magazine and the feature.

The materials (including dimensions and thicknesses) used
for the structure g. concrete, corrugated iron over wood,
plywood, tin and earth, etc.).

The security, physical safeguards, locks, safety equipment,
and anti?theft measures.

The dimensions and capacity of each magazine.

Page 2

:lz: ?sight-"H tie-EU um? 
-mrhn n?



 The class of explosive materials to be stored in each mega-
zine.

The owner(s) of the magazine, if other than the applicant.

The names and telephone numbers of individuals who could
open the magazines for inspection by ATF officers.
Any special conditions, such as inaccessibility in winter, etc.
Sec. 6. EFFECTIVE DATE.
The effective date of this procedure is November 1, 1975.

Sec. 7. INQUIRIES.

Inquiries regarding this ATF Procedure should refer to its number
and be addressed to the office of your Regional Director.

Kw GM

Rex D. Davis
Director

Page 3

GPO 895-433

 

fay

DEPARTMENT OF
THE TREASURY
Bureau of Alcohol. Tobacco and Firearms
D. C. 20226
Number: 35?3 Date: May 15 1985
cm or PM '10 mammals
memos mm 



{the Bureau 
State must take delivery of
the firearm 
the firearm in interstate cannerce to the
unlicensed purchaser. ElheRuling will appearinthenext issue oftheAlcohol,
'Ibbaccoand Firearms Bulletin, andwillbe substantially as follows:

Sectim 922(a)(3)(B) of Title 18, United States Code, a nonlicensee to
acquire a rifle or shotgun a licensee whose4business is in a contiguous
State if the acquisition is in accordance with Sect-[en Section
922(b)(3)(A) allows a Federal firearms licensee to make a sale or delivery of a
rifle or shotgun to an unlicensed resident of a State contiguous to the State
in which the licensee's place of business is located if the purchaser's State
of residence permits such sale or delivery by law; the sale fully cmplies with
the legal conditions of 
thelicenseehave, priortothesale or delivery for sale of the rifle or
shotgun, cmplied with all of the requirermts of section 922(c) applicable to
intrastate transactions other than at the licensee's business premises.

These statutes do not address the actual transfer or delivery of the rifle or
shotgun to the nonlicensee. Hmever, sectim 922(a)(2) provides that it is
unlawful for a licensee to ship or transport in interstate or foreign cmnerce
any firearm to any person otherthananotherlicensee. 'mestatuteMesno
excepticn for the shipment of firearms sold under the contiguous State
provisions.

Section 922(c) provides for a delay of the shipment or delivery of a firearm
sold to a nonlicensee who does not appear in persm at the licensee's business
prenises. While the procedures prescribed by section 922(c) apply to contigu-
ous State transactions as well as to nm-pver-?e-mmter, intrastate sales,
the use of the language ?shipment or delivery" in this section does not
authorize the interstate shipment or delivery of firearms and is expressly
limited to cases not otherwise prohibited by this chapter More-
over. the reportofqthe' Senate Judiciary Carmittee on the Gun Control Act
related that the contiguous State sale provision was not intended to affect the
prohibition in section 922(a)(2) pertaix?ng to licensees' interstate shipment
or transportatim of firearms to nmlicensees. Senate Report 1501, 90th
Cmgress, 2d Session, pages 24, 34 (1968).

Therefore, the 
to ship, trans
port or deliver murder
toet'fectalawfuldellivezyof such a firearm, the fireann must either be
delivered to the parameter 
1118111288. orbedeliveredtoalicenseeinthe purchaser's State of residence


Inquiries cmcen?ng this 

to the Associate Director (Carpliance Cperatims), Bureau of Alcohol, ?Ibbacco
and Firearms, P.0. Box 189, Wanl?nghm, II: 20226.

Tm

DeputyDirector

Guidance Manual


Office of Juvenile Justice and Delinquency Prevention
Version 3.0 - Issued September 2000

 Roberta Dorn

Director

State Relations and Assistance Division


Questions regarding the JAIBG program may be directed to staff of the
State Relations and Assistance Division.

 The principal authors of this document have included:

Rodney L. Albert, former Deputy Director, State Relations and Assistance Division

John A. Tuell, Deputy Director, State Relations and Assistance Division

Christopher Holloway, State Representative, SRAD

Shirley Martin, State Representative, SRAD

Mark Matese, Comprehensive Strategy Program Manager, SRAD

Elena Tompkins, Special Assistant to the Acting Administrator


 JAIBG Guidance Manual

Table of Contents
Section 1. Introduction.................................................................................................................. 1

Section 2. Overview of the Juvenile Accountability Incentive Block Grants Program.......... 3

2.1 Legislative Origin................................................................................................................... 3

2.2 Program Administration......................................................................................................... 3

2.3 Fiscal Year Appropriations .................................................................................................... 3

2.4 Program Purpose Areas.......................................................................................................... 4

2.5 Eligibility Requirements ........................................................................................................ 5

State Eligibility...................................................................................................................... 5

Local Eligibility..................................................................................................................... 5

Areas of Certification............................................................................................................ 5

2.6 Allocation of Funds................................................................................................................ 8

2.7 Uses of Program Funds........................................................................................................ 11

2.8 Utilization of Private Sector................................................................................................. 11

2.9 Technical Assistance............................................................................................................ 11

2.10 National Evaluation............................................................................................................ 12

Section 3. Application Process ................................................................................................... 13

3.1 Application Kit..................................................................................................................... 13

3.2 Cash Match Requirement..................................................................................................... 13

3.3 Cash Match Waiver.............................................................................................................. 14

3.4 Cash Match Computation.................................................................................................... 14

3.5 Allowable Sources of Match................................................................................................ 15

3.6 State Single Point of Contact............................................................................................... 16

3.7 Civil Rights Requirements................................................................................................... 16

3.8 Immigration and Naturalization Service Requirements....................................................... 16

3.9 Audit Requirements ............................................................................................................. 16

3.10 Certification Regarding Lobbying; Debarment, Suspension, and Other Responsibility

Matters; and the Drug-Free Workplace Requirement........................................................... 17

3.11 Office of Justice Programs Financial Guide ...................................................................... 17

3.12 National Environmental Policy Act ................................................................................... 17

Section 4. Award Process ........................................................................................................... 21

4.1 State Trust Fund Requirement ............................................................................................. 21

4.2 Juvenile Crime Enforcement Coalition................................................................................ 22

4.3 Additional Award Package Attachments ............................................................................. 22

Section 5. Role of the Designated State Agency and Requirements of State Recipients

and Local Subgrantees ............................................................................................................... 23

5.1 The Designated State Agency (DSA) .................................................................................. 23

5.2 State-Level Award Process .................................................................................................. 23

5.3 Requirements To Be Fulfilled Prior to the Obligation of Program Funds........................... 23

5.4 Program Reporting Requirements........................................................................................ 24


iv

 JAIBG Guidance Manual

5.5 Nonsupplanting Requirement .............................................................................................. 25

5.6 Suspension of Funding......................................................................................................... 25

Section 6. Definitions ................................................................................................................... 27

6.1 State...................................................................................................................................... 27

6.2 Unit of Local Government ................................................................................................... 27

6.3 Juvenile ................................................................................................................................ 27

6.4 Law Enforcement Expenditures........................................................................................... 27

6.5 Part 1 Violent Crimes........................................................................................................... 27

6.6 Serious Violent Crime.......................................................................................................... 27

6.7 Designated State Agency (DSA) ......................................................................................... 28

6.8 Primary Financial Burden.................................................................................................... 28

6.9 Nonsupplanting.................................................................................................................... 28

6.10 Juvenile Crime Enforcement Coalition.............................................................................. 28

6.11 Juvenile Detention Facility................................................................................................ 28

6.12 Juvenile Correction Facility............................................................................................... 28

6.13 Coordinated Enforcement Plan for Reducing Juvenile Crime........................................... 29


v

 JAIBG Guidance Manual

Section 1. Introduction
In Fiscal Year (FY) 1998, Public Law 105-119, November 26, 1997, Making Appropriations for
the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies for the
Fiscal Year Ending September 30, 1998, and for other Purposes (Appropriations Act)
appropriated $250,000,000 for the Juvenile Accountability Incentive Block Grants (JAIBG)
program described in Title III of H.R. 3, as passed by the House of Representatives on May 8,
1997. Subsequent years funding has continued through the Appropriations process.
In FY 1998, Public Law 105-119 directed the Attorney General to establish guidelines, in
consultation with Congress, to assist States (see Section 6.1, “Definitions”) in determining
whether they may certify eligibility for the JAIBG program in FY 1998. Eligibility is based on
certification by the Governor (or other chief executive) that the State is actively considering, or
will consider within one year from the date of certification, legislation, policies, or practices that,
if enacted, would qualify such State for a grant under Section 1802 of H.R. 3. The criteria for
eligibility during the first year of the JAIBG program (FY 1998) was used to determine
eligibility for second year funding (FY 1999). Eligibility for subsequent year funding is
established by completion of the FY 1998-1999 requirements, until such time as a full JAIBG
program is authorized and permanent eligibility requirements are established.
In addition, the Conference Report on the FY 1998 Appropriations Act (H. Rept.105-405,
November 13, 1997, appendix B) directed that the Attorney General’s guidelines include
“accommodations, which provide for a reduction in the local distribution requirement of Section
1803 of H.R. 3, with respect to any State which bears the primary financial burden within the
State for the administration of juvenile justice and which provide for local distribution consistent
with H.R. 728 for the State of Louisiana.”1
This Guidance Manual, which incorporates the Attorney General’s JAIBG program guidelines
established in consultation with Congress, is intended to assist States in applying for, receiving,
obligating, and expending, by the State and through subgrants, JAIBG funds. An accompanying
regulation, published in the Federal Register on April 21, 1999 (28 CFR Part 31, Section 500),
establishes the procedure for States and units of local government (see Section 6.2, “Definitions”)
to provide notice to OJJDP of the proposed uses of JAIBG funds. Responsibility for
administering the block grant, on the federal level, has been delegated by the Attorney General,
through the Assistant Attorney General for the Office of Justice Programs (OJP), to the
Administrator of the Office of Juvenile Justice and Delinquency Prevention (OJJDP).
The JAIBG Guidance Manual is designed to be the primary reference for State and local
program managers on program-related matters. It provides an overview of the legislation that
created the JAIBG program, and reviews the major requirements for program participation.
1

For the State of Louisiana, parish sheriffs will be considered a “unit of local government” under Section 1803(b)(1)
of H.R. 3 for the purpose of funding for law enforcement activities under their jurisdiction. Parish sheriffs will be
required to appoint a local juvenile crime enforcement coalition (JCEC) as required under the Appropriations Act.
Parish sheriffs will be required to follow the recommendations made by their local coalitions in the allocation and
expenditure of funds for activities under their jurisdiction in the parishes.

1

 JAIBG Guidance Manual

Section 2. Overview of the Juvenile Accountability
Incentive Block Grants Program
2.1 Legislative Origin
The JAIBG program is based on Title III of H. R. 3, The Juvenile Accountability Block Grants
Act of 1997, as passed by the House of Representatives on May 8, 1997. The FY 1998
Appropriations Act directed the Attorney General to establish guidelines, in consultation with
Congress, to assist States in determining whether they may certify eligibility for JAIBG funds in
FY 1998. Eligibility requirements are set forth in Section 2.5 Eligibility Requirements.

2.2 Program Administration
Congress has authorized the Attorney General to provide grants under the JAIBG program for
use by the States and units of local government to promote greater accountability in the juvenile
justice system. The Office of Juvenile Justice and Delinquency Prevention (OJJDP), one of five
program bureaus in the Office of Justice Programs (OJP), has been delegated the authority to
administer the JAIBG program.
The JAIBG program is managed by the State Relations and Assistance Division (SRAD). One of
OJJDP’s seven organizational components, SRAD also manages the Formula Grants program
under Part B of the Juvenile Justice and Delinquency Prevention (JJDP) Act of 1974, as
amended; the State Challenge Activities program under Part E of the JJDP Act; the Community
Prevention Grants program, established under Title V of the JJDP Act; the Enforcing the
Underage Drinking Laws (EUDL) Program (formerly the Combating Underage Drinking
program), established by the Appropriations Act; and the Tribal Youth Program, also established
by the Appropriations Act. Working with the Juvenile Justice Specialist, the Supervisory
Board/State Advisory Group, JAIBG Coordinator, and EUDL Coordinator in each program’s
Designated State Agency, SRAD assists States and territories in the prevention and control of
delinquency and the improvement of their juvenile justice systems.

2.3 Fiscal Year Appropriations
Each Fiscal Year allocation is determined by the Appropriations Act. After deducting statutory
set asides (program administration up to 1% of the Authorized Appropriation; research,
evaluation, and demonstration 3% of each Fiscal Year Appropriation; and training and technical
assistance 2% of each Fiscal Year Appropriation), the balance is available for distribution to
eligible States. For this purpose, the term “State” includes commonwealths, territories, and the
District of Columbia (see Section 6.1, “Definitions”). Funds are available on a formula basis.
This formula provides a minimum allocation of 0.5 percent of the available funds to each State,
with the remaining funds allocated to each eligible State based on relative share of the aggregate
of all States’ population of people under the age of 18.

3

 JAIBG Guidance Manual

2.4 Program Purpose Areas
The purpose of the JAIBG Program is to provide States and units of local government with funds
to develop programs to promote greater accountability in the juvenile justice system. Funds are
available for the following eleven program purpose areas, as enumerated in H.R. 3. In addition,
the FY 1998 Appropriations Act provided a twelfth area for which may be expended: the
implementation of a State or local policy of controlled substance testing for appropriate
categories of juveniles within the juvenile justice system.
•  Purpose Area 1—Building, expanding, renovating, or operating temporary or permanent
juvenile correction or detention facilities, including training of correctional personnel
(see Section 6.11, 6.12, “Definitions”);
•  Purpose Area 2—Developing and administering accountability-based sanctions for
juvenile offenders;
•  Purpose Area 3—Hiring additional juvenile judges, probation officers, and courtappointed defenders, and funding pre-trial services for juveniles, to ensure the smooth
and expeditious administration of the juvenile justice system;
•  Purpose Area 4—Hiring additional prosecutors, so that more cases involving violent
juvenile offenders can be prosecuted and backlogs reduced;
•  Purpose Area 5—Providing funding to enable prosecutors to address drug, gang, and
youth violence problems more effectively;
•  Purpose Area 6—Providing funding for technology, equipment, and training to assist
prosecutors in identifying and expediting the prosecution of violent juvenile offenders;
•  Purpose Area 7—Providing funding to enable juvenile courts and juvenile probation
offices to be more effective and efficient in holding juvenile offenders accountable and
reducing recidivism;
•

Purpose Area 8—The establishment of court-based juvenile justice programs that target
young firearms offenders through the establishment of juvenile gun courts for the
adjudication and prosecution of juvenile firearms offenders;

•

Purpose Area 9—The establishment of drug court programs for juveniles so as to
provide continuing judicial supervision over juvenile offenders with substance abuse
problems and to provide the integrated administration of other sanctions and services;

•  Purpose Area 10—Establishing and maintaining interagency information-sharing
programs that enable the juvenile and criminal justice system, schools, and social services
agencies to make more informed decisions regarding the early identification, control,
supervision, and treatment of juveniles who repeatedly commit serious delinquent or
criminal acts;

4

 JAIBG Guidance Manual

•  Purpose Area 11—Establishing and maintaining accountability-based programs that
work with juvenile offenders who are referred by law enforcement agencies, or which are
designed, in cooperation with law enforcement officials, to protect students and school
personnel from drug, gang, and youth violence; and,
•  Purpose Area 12—Implementing a policy of controlled substance testing for appropriate
categories of juveniles within the juvenile justice system.

2.5 Eligibility Requirements
State Eligibility
In order to be eligible for JAIBG funds, the Chief Executive Officer of each State certified to the
OJJDP Administrator consideration of the requirements outlined below.
Local Eligibility
Units of local government (see Section 6.2, “Definitions”) are eligible to receive an allocation as
provided in Section 2.6, concerning subgrants by States. Absent the submission of an application
that qualifies the State to receive an award, no JAIBG program funds will be available for direct
awards to units of local government in such State from JAIBG funds.
Areas of Certification
To establish initial eligibility to the JAIBG program, States were required to consider the
following four areas. “Consideration” means the deliberation or debate of policies that would
result in a State’s compliance with the requirements of H.R. 3, as referenced in the
Appropriations Act.
(1) Prosecution of Juveniles as Adults
States were required to consider legislation, policies, or practices to ensure that juveniles who
commit an act after attaining 15 years of age that would be a serious violent crime (see Section
6.6 , “Definitions”) if committed by an adult are treated as adults for purposes of prosecution as a
matter of law or that the prosecutor has the authority to determine whether to prosecute such
juveniles as adults.
Treatment as an adult for purposes of prosecution “as a matter of law” refers to statutory
exclusion of these charges from the jurisdiction of a court exercising delinquency jurisdiction.
For example, States that circumscribe the jurisdiction of their juvenile courts to exclude charges
of murder, aggravated sexual assault, and assault with a firearm for juveniles 15 and over would
be in compliance with this requirement.
States with presumptive jurisdiction of a criminal court for such offenders would also comply
with this requirement. In other words, States that have placed jurisdiction of juveniles 15 or older
charged with such offenses in criminal court, but permit the prosecutor or the juvenile to move
for transfer to juvenile court, in the discretion of the criminal court judge, would be considered in
compliance with this requirement.

5

 JAIBG Guidance Manual

States in which the prosecutor “has the authority to determine whether or not to prosecute such
juveniles as adults” would include any State in which the prosecutor may file in criminal court
without the necessity of judicial approval. Consequently, States that require prosecutors to seek
judicial waiver or approval to transfer such juveniles from a juvenile court exercising only
delinquency jurisdiction to criminal court, whether or not waiver is presumptive, would not meet
this requirement. By contrast, as stated above, States that permit prosecutors to initiate
proceedings in criminal court, even where the possibility exists that the juvenile defendant may
seek transfer to juvenile court, would be deemed in compliance.
A few States permit delinquency proceedings with the option of criminal disposition and adult
sentencing, in appropriate circumstances. States that permit such proceedings against juveniles
age 15 and older for serious violent offenses would also be deemed to qualify.
(2) Graduated Sanctions
States were required to consider legislation, policies, or practices that impose sanctions on
juvenile offenders for every delinquent or criminal act, or violation of probation, ensuring that
such sanctions escalate in severity with each subsequent, more serious delinquent or criminal act,
or violation of probation, including such accountability-based sanctions as restitution;
community service; punishment imposed by community accountability councils comprising
individuals from the offender’s and victim’s communities; fines; and short-term confinement.
This requirement is intended to refer to every adjudication of delinquency, conviction of a crime,
or judicial finding of a probation violation. It is not intended to deter States or units of local
government from implementing diversion programs, drug court programs, or other alternative
disposition or treatment options that permit authorities to decline to proceed with a delinquency
adjudication or criminal conviction when they deem it appropriate. Nor is it intended to direct
States’ behavior concerning subsequent offenses that are not more serious than prior ones.
The concept of “sanctions” includes a full range of dispositions and sentences, including those
traditionally available to juvenile and criminal courts, such as restitution, fines, supervised
release, drug testing, probation, mandatory treatment (e.g., for sex offenders, drug abusers), outof-home placement, and short- or long-term incarceration. The accountability-based sanctions
enumerated in the statute are examples of such options and are not intended to serve as an
exhaustive list.
The determination of how sanctions “escalate in severity” shall be left to each State. In general,
sanctions that require a general period of probation are the least severe, although the specific
terms of probation or assignment to an intensive probation program can increase the severity of a
probation sanction. Sanctions that require only commitments of money and/or time, including
restitution and community service, are generally considered the next level of sanction severity.
Sanctions that limit personal freedom, including intensive probation, placement, commitment,
confinement, and incarceration, are generally considered the most severe. The determination of
escalating severity within each jurisdiction may be accomplished by legislation, by executive
branch policy, if applicable, or by court rules or policies. In imposing such sanctions, judges
would continue to be responsible for ensuring that the sanction is proportionate to the juvenile’s
offense, taking into account the juvenile’s history, circumstances, and needs.

6

 JAIBG Guidance Manual

(3) Juvenile Recordkeeping
States were required to consider legislation, policies, or practices to establish, at a minimum, a
system of records relating to any adjudication of a juvenile who has a prior delinquency
adjudication and who is adjudicated delinquent for conduct that, if committed by an adult, would
constitute a felony under Federal or State law, which is a system equivalent to that maintained
for adults who commit felonies under Federal or State law. States must also consider making
such records available to the Federal Bureau of Investigation (FBI) in a manner equivalent to
adult records.
Maintaining delinquency records in a system “equivalent” to the criminal system would mean,
for purposes of meeting the minimum statutory requirement: (1) providing a delinquency data
base that captures adjudications of juveniles for delinquent acts (acts that would be crimes if
committed by an adult); (2) matching delinquency adjudication information for felony offenses
with that delinquency data base in order to identify repeat offenders; and (3) for those juveniles
identified under (2), above, compiling the basic identifying information that the State criminal
history record system compiles on convicted criminal offenders (e.g., name, alias(es), date of
birth, address, charge(s), place of adjudication, offense(s) for which adjudicated, and
disposition). The juvenile record may also maintain information specific to juvenile records, such
as names of parents or guardians and name of school attending. If a State uniquely identifies its
criminal offenders, e.g., by fingerprint or photograph, an equivalent system would be required
for delinquent offenders subject to this requirement.
The expanded recordkeeping requirement is triggered if a second or subsequent delinquency
adjudication is for conduct that, if committed by an adult, would constitute a felony under
Federal or State law. This provision does not require States to identify and include conduct that
constitutes a felony only under Federal law.
States would make the applicable juvenile delinquency records available to the FBI in a manner
equivalent to the way they make adult records available; e.g., by conveying the records to a
central repository that then submits them to the FBI data base or by direct submissions from
individual units of local government. (This provision is not intended to require that juvenile
records be maintained in the same central State repository that maintains criminal history
records). Pertinent delinquent history information should be accessible to law enforcement and
other authorized parties under the same circumstances as adult criminal history record
information is accessible under State law.
(4) Parental Supervision
States were required to consider legislation, policies or practices to ensure that State law does not
prevent a juvenile court judge from issuing a court order against a parent, guardian, or custodian
of a juvenile offender regarding the supervision of such an offender and from imposing sanctions
for a violation of such an order.
States need not take affirmative steps to encourage or require such orders, but rather must ensure
that their law does not prevent such orders from being issued and enforced.

7

 JAIBG Guidance Manual

Controlled Substance Testing
In addition to consideration of the four areas of certification listed above, the Appropriations Act
also required that a State or unit of local government, to be determined eligible to receive a
JAIBG award or subgrant, must have implemented, or agree to implement by January 1, 1999, a
policy of testing appropriate categories of juveniles within the juvenile justice system for use of
controlled substances.
The categories of juveniles within the juvenile justice system that are “appropriate” for testing
shall be determined by the Chief Executive Officer of the State certifying compliance or by the
applicant unit of local government. It is expected that appropriate categories will vary among
jurisdictions depending on their needs and resources. States and units of local government are
encouraged to include drug treatment in their overall plan to reduce juvenile drug use. Each State
and sub-recipient unit of local government must have an established policy for controlled
substance testing in order to receive a FY 1999 or later JAIBG award. Policies for units of local
government should be submitted to and approved by the State.

2.6 Allocation of Funds
State Allocation
The Appropriations Act allocated 0.5 percent of the available funds for each State and, of the
total funds remaining, allocated to each State an amount that bears the same ratio as the
population of people under the age of 18 living in each State for the most recent calendar year in
which the data are available.
Allocation From State to Units of Local Government
Absent a waiver (see page 13, Waiver of Local Pass-Through), each State shall distribute not less
than 75 percent of the State’s allocation received among all units of local government in the
State. In making such distribution, the State shall allocate to each unit of local government an
amount, by formula, based on a combination of law enforcement expenditures (see Section 6.4,
“Definitions”) for each unit of local government and the average annual number of Uniform
Crime Report part 1 violent crimes (see Section 6.5, “Definitions”) reported by each unit of local
government for the three most recent calendar years for which data are available. Two-thirds of
each unit of local government’s allocation will be based on the law enforcement expenditure data
and one-third will be based on the reported violent crime data, in the same ratio to the aggregate
of all other units of general local government in the State. OJJDP, in cooperation with the Bureau
of Justice Statistics (BJS) and the Justice Research and Statistics Association (JRSA), will
continue to provide to the States, information to assist the States in determining the appropriate
allocation to each unit of local government, including available statistical information, such as
Uniform Crime Report data; information available from the Bureau of the Census regarding local
law enforcement expenditures; and contacts in each State that may assist in providing
information already collected or available within the State. The State shall be responsible for
obtaining, from State and local sources, any additional data needed to allocate funds among units
of local government and for determining, in cooperation with units of local government, and
organizations representing such units, the final allocation of funds among units of local
government in the State.

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Unavailability of Local Violent Crime or Law Enforcement Expenditure Data
If the State has reason to believe that the reported rate of part 1 violent crimes or law
enforcement expenditure data for a unit of local government are insufficient or inaccurate, the
State shall investigate the methodology used by the unit to determine the accuracy of the
submitted data and, if necessary, use the best available comparable data regarding the number of
violent crimes or law enforcement expenditure data for the relevant years for the unit of local
government.
Unit of Local Government Cap
No unit of local government shall receive an allocation that exceeds 100 percent of the average
law enforcement expenditures of such unit for the three most recent calendar years for which
data are available. The amount of any unit of local government’s allocation that exceeds 100% of
average law enforcement expenditures shall be available to other units of local government that
are not affected by the cap.
Allocation Less Than $5,000
If an allocation for a unit of local government is less than $5,000 during a fiscal year, the amount
allocated must be expended by the State on services to units of local government whose
allotment is less than such amount. States are encouraged to consult with these units to determine
the best use of the funds available in a manner that maximizes the number of such units receiving
services. A method of providing services to these units of local government may include
providing the amounts to a larger surrounding jurisdiction, such as a county or regional coalition,
to provide services to benefit the smaller units. Awarding of funds in this manner must include
an assurance by the State that funds available in this manner will be programmed in a manner
that maximizes the benefit to units of local government not eligible for an award, rather than
simply lumping the additional funding into the larger jurisdiction’s allocation.
Allocation of $5,000 or More—Nonparticipation or Waiver of Direct Award
Where a unit of local government qualifies for a subgrant of $5,000 or more but the unit of local
government determines that it is unable, unwilling, ineligible, or otherwise declines to participate
in the JAIBG program, such funds shall be retained by the State to be reallocated among all
eligible units of local government in the current or the following fiscal year.
A State may establish a policy and procedure under which a qualifying unit of local government
may waive its right to a direct subgrant award and request that such unit’s funds be awarded to
and expended for its benefit by a larger or contiguous unit of local government. Further, the State
may establish a policy and procedure to allow units of local government to enter into regional
coalitions utilizing combined allocations from all local governments agreeing to enter into the
coalition to expend JAIBG funds using a regional Juvenile Crime Enforcement Coalition (JCEC)
(see Section 4.2 for JCEC membership requirements). However, a unit of local government, a
legally authorized combination, or a State agency serving as the fiscal agent of an authorized
regional or local planning board must serve as the fiscal agent for receiving the award from the
State and obligating and expending funds for the benefit of the combined units. A legally
authorized combination could consist of those units of local government agreeing to enter into a
coalition and who determine how the JAIBG award will be obligated and expended under the
twelve purpose areas, or an existing planning board representative of the local governments.

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Participation in a regional coalition must be voluntary. “Legally authorized” combinations are
those established under State law or whose existence is permitted under State law.
Program Purpose Area Distribution of Funds
States applying for funding to OJJDP and units of local government receiving funds from States
must provide an assurance that, other than funds set aside for administration, not less than 45
percent is allocated for program purpose areas 3-9, and not less than 35 percent is allocated for
program purpose areas 1, 2 and 10. This allocation is required unless the State certifies to OJJDP
or a unit of local government certifies to the State that the interests of public safety and juvenile
crime control would be better served by expending its funds in a proportion other than the 45 and
35 percent minimums. Such certification shall provide information concerning the availability of
existing structures or initiatives within the intended areas of expenditure (or the availability of
alternative funding sources for those areas), and the reasons for the State or unit of local
government’s alternative use. However, with or without such certification, all program funds
must be expended for programs within the 12 authorized program purpose areas.
Waiver of Local Pass-Through
A waiver may be requested by a State for the 75 percent pass-through to units of local
government if the State demonstrates that it bears the primary financial burden (more than 50
percent) for the administration of juvenile justice within that State. The State must demonstrate
how the level of primary financial burden for services provided in each of the authorized
program purpose areas was established (see Section 6.8, “Definitions”) by comparing State and
local expenditures in each Purpose Area, and including this information in a waiver request to
the OJJDP Administrator. Juvenile justice expenditures that do not fall within any of the 12
purpose areas (such as general law enforcement expenditures) cannot be utilized in determining
primary financial burden. In submitting a waiver request, the State shall demonstrate that it has
consulted with units of local government in the State, either directly or through organizations
representing such units, regarding the proposed waiver, its statutory and fiscal basis, and the
State’s proposed or established priorities for use of the funds. OJJDP will review the request and,
in the Administrator’s discretion, may waive the 75% pass-through requirement and substitute a
lower local pass-through requirement in an amount that reflects the relative financial burden for
the administration of juvenile justice that is borne by the State.
Example:  State X demonstrates that it bears 90 percent of the total costs incurred
within that State for the administration of juvenile justice (versus 10 percent
for all units of local government). The State could request a reduction of the
required local passthrough from 75 to 10 percent.
States that were approved for a waiver in Fiscal Year 1998 and FY 1999 must reapply for a
waiver in each subsequent Fiscal Year. States should use the same format for which a FY 1998
waiver was approved, utilizing updated fiscal information. States that were approved for a 100%
waiver may certify in writing to the Administrator that the conditions that existed to establish a
100% waiver have not changed since submission of the preceeding Fiscal Year request.
However, all States requesting a waiver, regardless of the percentage requested, must
demonstrate consultation with units of local government or their representative organizations.

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Administration
A State may use up to 10 percent of the total grant award for administrative costs related to the
JAIBG program. A unit of local government may also use up to 10 percent of the subgrant
awarded to that unit of local government for administrative costs related to the JAIBG program.
All funds used for administrative costs are subject to the match requirement.
Repayment of Unexpended Amounts
A State must repay, not later than 27 months after receipt of JAIBG funds, any amount that is not
expended by the State and its subgrantees within 24 months after initial receipt of such funds
through a grant payment. The initial grant payment shall be deemed to be received on the date
that non administrative Federal funds are deposited to the trust fund.

2.7 Uses of Program Funds
Section 1803(a)(3) of H. R. 3 provides that:
No funds allocated to a State under this subsection or received by a State for
distribution under subsection (b) [to units of local government] may be distributed by
the Attorney General or by the State involved for any program other than a program
contained in an approved application.
The specific program areas allowed are identified in Section 2.4 of this Guidance Manual. All
programs must be funded within one or more of the 12 purpose areas. States must report
compliance with this requirement as provided by OJJDP’s JAIBG Regulation as published in the
Federal Register on April 21, 1999 (28 CFR Part 31 §500) and as provided in Section 4 of this
Guidance Manual.

2.8 Utilization of Private Sector
Section 1806 of H. R. 3 encourages States and units of local government to utilize private
nonprofit entities or community-based organizations to carry out the purposes specified under
Purpose Area 2. This provision does not limit utilization of the private sector in any of the other
purpose areas, but rather serves to highlight the strengths that the private sector may have to
offer within Purpose Area 2.

2.9 Technical Assistance
Training and technical assistance (T&TA) support is available from the National Training and
Technical Assistance Center (NTTAC). For information, call (703) 385-3200 or visit
www.nttac.org/index.cfm
To assist States and local government in the planning process, OJJDP has developed a Strategic
Planning Guide which has previously been distributed to all JAIBG Designated State Agencies.
Additional copies are available by contacting OJJDP’s Juvenile Justice Clearinghouse at (800)
638-8736 and requesting document number NCJ 172846. Additionally, OJJDP has developed a

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series of “best practices” bulletins discussing promising approaches in each of the twelve
Purpose Areas.

2.10 National Evaluation
OJJDP through a cooperative agreement with the National Institute of Justice (NIJ) has
competitively awarded a grant to Abt Associates of Cambridge Massachusetts to conduct an
evaluation of the implementation of the JAIBG program. Beginning with FY 1999, researchers
from Abt will contact each Designated State Agency to learn how each State has decided to
implement the JAIBG program. During the ongoing evaluation, they will also contact each State
to obtain information about a sample of specific programs which received JAIBG funding. To
reduce data requests, Abt will also obtain data from the information submitted to OJJDP under
Section 5.3 of this manual.

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Section 3. Application Process
3.1 Application Kit
OJJDP will send applications to each State agency designated by the State’s Chief Executive to
administer the Juvenile Accountability Incentive Block Grant.
Technical assistance on the application process is available to applicants from OJJDP’s State
Relations and Assistance Division (SRAD).
The following subsections address the important pre-award requirements that are part of the
JAIBG application process:

3.2 Cash Match Requirement
The JAIBG program provides that Federal funds may not exceed 90 percent of total program
costs, including any funds set aside for program administration, by a State or unit of local
government. Interest derived from the award does not have to be matched, but interest generated
from the State’s trust fund (see Section 4.1) cannot be used to match the Federal award. Finally,
other than as outlined in Section 3.4, there is no waiver provision for the cash match
requirement.
Matching contributions need not be applied at the exact time or in proportion to the obligation of
Federal funds. However, the full match amount must be provided and obligated by the end of the
project period as identified in each State’s award package.
Funds required to pay the non-Federal portion of the cost of each program or project for which a
grant is made, must be in addition to funds that would otherwise be made available for the
program or project.
Construction costs. If, under Purpose Area 1, a State or unit of local government uses funds to
construct a permanent juvenile corrections facility, the State or unit of local government must
provide at least 50 percent of the total cost of the project. The 50 percent match applies only to
construction costs for a permanent juvenile corrections facility. Construction of any other
allowed facility or other provisions of Purpose Area 1 have the same match requirement as all
other program purpose areas.
State award recipients. The State award recipient is the State agency designated by the Chief
Executive Officer of a State as eligible to apply for, receive, and administer JAIBG program
funds. The designated State agency (DSA) must certify, as part of its grant application, that the
funds required to pay the non-Federal portion of the cost of programs funded under the State’s
JAIBG allocation will be made available by the end of the project period. Regardless of how the
match is provided, it must be made available in the aggregate by the end of the project period.

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In meeting the cash match requirement, DSA’s may choose from the following options:
•

Unit of local government funds. Require each subrecipient unit of local government to
provide aggregate cash match at the prescribed level or provide State funds to some or all
such units to reduce the amount of required match.

•  State funds. Provide the cash match in the aggregate (statewide match basis) by requiring
some State fund recipients to “overmatch” so that other recipients can “undermatch” or
provide no match at all, provide the required match on a project-by-project basis, provide
the required match through a legislative appropriation, or use a combination of these
options.
Under JAIBG policy the premise of match is to demonstrate State or local buy-in to the
particular program being funded, whether on a project-by-project or on an aggregate basis.
Consequently, funds provided for a specific Purpose Area may be used as match for other
programs within related JAIBG program Purpose Areas. In order to maximize flexibility to the
State and units of local government under JAIBG, OJJDP will consider, on a case-by-case basis,
requests by States to provide match that is specific to one purpose area to meet the requirements
for match in another purpose area(s). The only exception to this provision is that funds
earmarked for capital expenditures (JAIBG Purpose Area 1) may only be utilized to match
construction costs. General funds available to a department or agency can be used as match for
any authorized JAIBG program Purpose Area on a project-by-project basis. Requests to deviate
from the general match provisions should be submitted to the OJJDP Administrator outlining the
source of proposed match and the intended use within one or more of the twelve purpose areas.
It is the State’s responsibility to ensure that the proper aggregate level of match is met.

3.3 Cash Match Waiver
Pursuant to 48 U.S.C. 1469a(d), Guam, American Samoa, the U.S. Virgin Islands, and the
Northern Mariana Islands are defined as Insular Areas. Insular Areas can be exempted from
providing the match requirement by the grantor agency if the match requirement is less than
$200,000. Because their individual match amounts are below this threshold, OJJDP will exempt
these jurisdictions from the match requirement.

3.4 Cash Match Computation
The State or local government recipient of a JAIBG award must contribute (in the form of a cash
match) 10 percent of the total program cost (other than costs of construction of permanent
corrections facilities, which require a 50 percent match, as provided in Section 3.3). The total
program cost is made up of the Federal award amount and the cash match. If only the Federal
award amount is known, the calculation of the match requirement is as follows:
1. Convert the Federal award amount percentage to a fraction (example, 90 percent = 9/10).
2. Invert the fraction from 9/10 to 10/9.

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3. Multiply the Federal award amount by the numerator (example, $80,000 x 10).
4.  Divide the result by the denominator to determine the total program cost (example
$800,000/9 = $88,889).
5.  Subtract the amount of the Federal award from the total program cost to determine the
cash match (example $88,889 - $80,000 = $8,889).

3.5 Allowable Sources of Match
Allowable sources of cash match under the JAIBG program are as follows:
1.  Funds from States and local units of government that have a binding commitment of
matching funds for programs or projects.
2. Funds from the following:
A. Housing and Community Development Act of 1974, 42 USC §5301, et seq. (subject to
the applicable policies and restrictions of the Department of Housing and Urban
Development).
B. Appalachian Regional Development Act of 1965, 40 USC §214.
3.  Equitable Sharing Program, 21 USC §881(e) (current guidelines developed by the DOJ
Asset Forfeiture Office apply). Forfeited assets used as match from the Equitable Sharing
Program would be adjudicated by a Federal court.
4. Funds contributed from private sources.
5.  Program income and the related interest earned on that program income generated from
projects may be used as match provided it is identified and approved prior to making an
award.
6.  Program income funds earned from seized assets and forfeitures (adjudicated by a State
court, as State law permits).
7.  Funds appropriated by Congress for the activities of any agency of a Tribal government
or the Bureau of Indian Affairs performing law enforcement functions on Tribal lands
may be used as matching funds.
8. Otherwise authorized by law.
Funds received from any federal fund sources other than those listed above may not be used as
the cash match required for the JAIBG program.

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3.6 State Single Point of Contact
Executive Order 12372 requires applicants from State and local units of government or other
organizations providing services within a State to submit a copy of the application to the State
Single Point of Contact (SPOC), if one exists, and if this program has been selected for review
by the State. Applicants must contact their State SPOC to determine if the JAIBG program has
been selected for review in their State. The date that the application was sent to the SPOC should
be entered on the application form.

3.7 Civil Rights Requirements
All recipients of Federal grant funds, including JAIBG awards, are required to comply with
Federal nondiscrimination laws. Specifically, the statute that governs OJP-funded programs or
activities (Section 809 (c), Omnibus Crime Control and Safe Streets Act of l968, as amended, 42
U.S.C. 3789d) prohibits such discrimination:
No person in any State shall on the ground of race, color, religion, national origin, sex
[or disability] be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under, or denied employment in connection with any
program or activity funded in whole or in part with funds made available under this
title.
Grantees receiving $500,000 or more must acknowledge that failure to submit an acceptable
Equal Employment Opportunity Plan, which must be approved by OJP’s Office for Civil Rights,
is a violation of its Certified Assurances and may result in the suspension of funding obligation
authority. If any court or administrative agency makes a finding of discrimination on grounds of
race, color, religion, national origin, gender, disability, or age against a recipient of funds after a
due process hearing, the recipient must agree to forward a copy of the findings to the OJP Office
for Civil Rights.
All grantees receiving a JAIBG award from OJJDP will receive additional instruction from the
OJP Office for Civil Rights upon award. All correspondence relating to Civil Rights
Requirements should be sent directly to the Office for Civil Rights at U.S. Dept of Justice, Office
of Justice Programs, Office for Civil Rights, 810 7th Street, NW, Washington, DC 20531.

3.8 Immigration and Naturalization Service Requirements
Organizations funded under the JAIBG program must agree to complete and keep on file, as
appropriate, the Immigration and Naturalization Service Employment Eligibility Form (I-9). This
form is to be used by the recipient of Federal funds to verify that persons employed by the
recipient are eligible to work in the United States.

3.9 Audit Requirements
State and local governments, nonprofit organizations, and institutions of higher education are
governed by OMB Circular A-133, as amended. Whether an audit is required under this circular
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is dependent upon the amount of Federal funds that can be audited during the recipient’s fiscal
year. If the organization receives $300,000 or more per year in Federal funds, the organization
shall have an organization-wide financial and compliance audit. Commercial (for-profit)
organizations shall have financial and compliance audits performed by qualified individuals who
are independent from those who authorize the expenditure of Federal funds. This audit must be
performed in accordance with Government Auditing Standards. The audit thresholds contained
in OMB Circular A-133, as amended, apply.
Applicants are required to provide the name of their organization’s cognizant Federal agency in
the application form. The cognizant Federal agency is generally determined to be the agency that
provides the preponderance of Federal dollars received by the applicant.

3.10 Certification Regarding Lobbying; Debarment, Suspension,
and Other Responsibility Matters; and the Drug-Free Workplace
Requirement
Applicants are required to review and sign the certification form included in the application kit.
Signing this form commits the applicant to compliance with the certification requirements under
28 CFR Part 69, “New Restrictions on Lobbying,” and 28 CFR Part 67, “A Government-Wide
Debarment and Suspension (Nonprocurement) and Government-Wide Requirements for DrugFree Workplace (Grants).” The certification will be treated as a material representation of the
fact upon which reliance will be placed by the U.S. Department of Justice in making awards.

3.11 Office of Justice Programs Financial Guide
The Office of Justice Programs Financial Guide serves as the primary reference for financial
management and grants administration for all programs administered under the Office of Justice
Programs, including the JAIBG program. The provisions of the Financial Guide, must be utilized
by direct recipients and subrecipients participating in the JAIBG program. To receive a copy of
the Financial Guide, contact the OJP Office of the Comptroller’s Customer Service Center at
(800) 458-0786, via Internet at www.ojp.usdoj.gov/oc or through E-mail at
askoc@ojp.usdoj.gov.

3.12 National Environmental Policy Act
The Assistant Attorney General for the Office of Justice Programs (OJP) has provided that
beginning with FY 2000, all recipients of federal grant awards under OJP must comply with the
requirements of the National Environmental Policy Act (NEPA) of 1969 (Pub. Law 90-190; 42
U.S.C. §4371 et seq). NEPA establishes a national goal of protecting the environment. NEPA
requirements apply to any federal project, decision, or action, including grants and subgrants,
that might have a significant impact on the quality of the human environment. NEPA is the
primary federal statute establishing protections for the environment. It establishes policy, sets
goals and provides the means for carrying out the policy. According to the Regulations for
Implementing the Procedural Provisions of the National Environmental Policy Act, issued by the
Council on Environmental Quality, “NEPA procedures must insure that environmental

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information is available to public officials and citizens before decisions are made and before
actions are taken. The information must be of high quality. Accurate scientific analysis, expert
agency comments, and public scrutiny are essential.....The NEPA process is intended to help
public officials make decisions that are based on understanding of environmental consequences,
and take actions that protect, restore, and enhance the environment.”
The policy requires that federal agencies, to the fullest extent possible:
•  Implement procedures to make the NEPA process more useful to decision makers and the
public; reduce paperwork and the accumulation of extraneous background data; and
emphasize real environmental issues and alternatives. Environmental impact statements
shall be concise, clear, and to the point, and shall be supported by evidence that agencies
have made the necessary environmental analyses.
•

Integrate the requirements of NEPA with other planning and environmental review
procedures required by law and by agency practice so that all such procedures run
concurrently rather than consecutively.

•  Encourage and facilitate public involvement in decisions which affect the quality of the
human environment.
•

Use the NEPA process to identify and assess reasonable alternatives to proposed actions
that will avoid or minimize adverse effects of these actions upon the quality of the human
environment.

•

Use all practicable means to restore and enhance the quality of the human environment
and avoid or minimize any possible adverse effects of the actions upon the quality of the
human environment.

All construction, expansion, and renovation projects initiated by State or local units of
government with grant funding from the Office of Juvenile Justice and Delinquency Prevention
(OJJDP) are subject to NEPA. These projects are also subject, where applicable, to the
requirements of the following environmental statutes and executive orders: Coastal Zone
Management Act of 1972; Coastal Barrier Resources Act of 1982; Clean Air Act of 1974; Safe
Drinking Water Act of 1974; Federal Water Pollution Control Act; Endangered Species Act of
1973; Wild and Scenic Rivers Act of 1968; National Historic Preservation Act of 1966;
Executive Orders related to protection of wetlands, flood plain management, and environmental
justice; Farmland Protection Policy Act; and the Relocation Assistance Requirements.
It is the policy of the U. S. Department of Justice, the Office of Justice Programs, and OJJDP to
minimize harm to the environment and OJJDP may reject requests or encourage the modification
of projects which have adverse environmental impacts. Unless there is no reasonable alternative,
projects completed with grant funds should not be placed in a flood plain or wetlands. Projects
which have an adverse impact on an endangered species will not be approved and grantee
agencies should avoid or work to mitigate negative impacts on historic properties or sites and on
low income and minority communities.

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Designated State Agencies (DSA) contemplating, or making sub awards to units of local
government for the construction or renovation of facilities, under the JAIBG program, with FY
2000 or later funding, should contact their OJJDP State Relations and Assistance Division
(SRAD) State Representative as soon as possible for additional guidance. OJJDP will make
available an instruction video in late Fall 2000 to provide additional training regarding NEPA
requirements. 2

2

Introduction to NEPA, excerpts OJP Corrections Program Office, Program Guidance on Environmental Protection
Requirements, March 1, 2000.

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Section 4. Award Process
OJJDP will use an automated grants management and tracking system to facilitate an efficient
and expedited process through which the grant awards may be processed. The following
subsections highlight key requirements that grant recipients must comply with prior to obligating
JAIBG funds.

4.1 State Trust Fund Requirement
A State that receives a grant award under the JAIBG program must establish an interest-bearing
trust fund to deposit program funds. For purposes of the JAIBG program, a trust fund is defined
as an interest-bearing account that is specifically designated for this program. The State must use
the amounts in the trust fund (including interest) during a period not to exceed 24 months from
the date of award. JAIBG funds will be available for award until September 30th of each Fiscal
Year. The funds may be used only for application in the 12 program purpose areas and for
authorized program administration purposes. This fund may not be used to pay debts incurred by
other activities beyond the scope of the JAIBG program. The trust fund must be established by
the recipient designated State agency. There is no provision for a trust fund at the local level.
Funds awarded to units of local government should be retained in the State trust fund and
distributed to the local level as obligations are incurred.
In order to be in compliance with the State trust fund requirement, a recipient’s account must
include the following four features:
1.
2.
3.
4.

The account must earn interest.
The recipient must be able to account for the Federal award amount.
The recipient must be able to account for the local match amount.
The recipient must be able to account for the interest earned.

If these requirements can be met within the recipient’s current financial management system,
there is no need to establish a separate account.
If State law prohibits a State agency recipient from establishing an interest-bearing account, the
grantee will need to submit to the OJJDP SRAD Division Director a letter requesting OJJDP’s
concurrence with the situation. The request must address:
1.  The situation that prevents the grantee from meeting the interest-bearing requirement
(i.e., cite the specific State law that bars the establishment of an interest-bearing account).
2.  The grantee’s plan to account for the Federal award and the State and local match in its
proposed financial accounting system.
OJJDP will review and make a final determination of the situation on a case-by-case basis. A list
of affected jurisdictions will be maintained by OJJDP and the OJP’s Office of the Comptroller
for monitoring purposes.

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The establishment by the State of an account that earns interest does not violate the provisions of
the Cash Management Improvement Act (CMIA) of 1991. The CMIA requires States to pay
interest on federal funds received in advance of need “when not inconsistent with program
purposes.” This exception recognizes that under certain programs interest on federal funds is to
be applied to program purposes or is legally required to be retained by the State. This exception
applies solely to the payment of interest from States to the federal government. Therefore, a State
may be excepted from paying interest to the federal government under the JAIBG program.
However, the remaining provisions of the CMIA, including the disbursement of funds from the
State to the local level, still apply.

4.2 Juvenile Crime Enforcement Coalition
States and units of local government that are eligible to receive JAIBG funds must establish a
coordinated enforcement plan for reducing juvenile crime (see Section 6.13, “Definitions”),
developed by a Juvenile Crime Enforcement Coalition (JCEC).
State Coalitions
State plans must be developed by a JCEC consisting of law enforcement and social service
agencies involved in juvenile crime prevention. To assist in developing the State’s enforcement
plans, States may choose to utilize members of the State Advisory Group (SAG) established by
the State’s Chief Executive under Section 223(a)(3) of Part B of the JJDP Act, if appropriate
membership exists, or some other planning group that constitutes a coalition of law enforcement
and social service agencies.
Local Coalitions
When establishing a local JCEC, units of local government must include, unless impracticable,
individuals representing (1) police, (2) sheriff, (3) prosecutor, (4) State or local probation
services, (5) juvenile court, (6) schools, (7) business, and (8) religious affiliated, fraternal,
nonprofit, or social service organizations involved in crime prevention. The eight listed groups
for establishing a JCEC is not an exhaustive list. Units of local government may add additional
representation as appropriate. Units of local government may utilize members of Prevention
Policy Boards established pursuant to Section 505 (b) (4) of Title V of the JJDP Act to meet the
JCEC requirement, provided that each such Coalition meets the membership requirements listed
in this paragraph.

4.3 Additional Award Package Attachments
In addition to the award document and special conditions, the JAIBG award package will also
contain an electronic Follow-up Information Form. Grantees must return the signed award
document and special conditions to OJJDP in order to receive a grant award. The Follow-up
Information Form is the mechanism OJJDP is using for the States to report their compliance with
the requirements of Section 31.503 of the JAIBG regulation.

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Section 5. Role of the Designated State Agency
and Requirements of State Recipients and Local
Subgrantees
5.1 The Designated State Agency (DSA)
The legislation creating the JAIBG Program requires each State Chief Executive Officer to
identify the Designated State Agency (DSA) to apply for, receive, and administer JAIBG funds.

5.2 State-Level Award Process
As provided for in Section 2.6, OJJDP will award a single grant directly to each DSA, which
will, absent a waiver, distribute not less than 75 percent of the total award among units of local
government to be expended for authorized purposes. Such distribution shall include services
provided in lieu of a subgrant award to units of local government that do not qualify for at least
$5,000 in any fiscal year.
The DSA will be responsible for submitting the State’s application, disbursing funds, monitoring
and reporting on programmatic and fiscal aspects of the program, and performing other
administrative functions related to the JAIBG Program. The DSA should have State employees
or equivalent contractual resources at an FTE level appropriate to allow the State to address each
of the program functions outlined in this Guidance Manual.
The DSA may use up to 10 percent of the total State award to pay for costs incurred in
administering the JAIBG program. The State is reminded that it is responsible for the match
required on administrative funds. Each State must provide on the forms included in the
application package, information indicating the amount of funds set aside for administrative
costs.

5.3 Requirements To Be Fulfilled Prior to the Obligation of
Program Funds
Following award of JAIBG funds to a State by OJJDP, but prior to obligation of program funds
by the State or a unit of local government in any of the 12 purpose areas, the State must provide
to OJJDP information that demonstrates that the State and each unit of local government that
receives JAIBG funds have established a coordinated enforcement plan for reducing juvenile
crime, developed by a Juvenile Crime Enforcement Coalition (JCEC). This information must
demonstrate that the membership requirements of Section 4.2 have been met.
Additionally, the State must provide information demonstrating that the requirements outlined in
Section 2.6, related to “Allocation of Funds”, have been met.

23

 JAIBG Guidance Manual

State recipients of JAIBG awards must comply with the applicable trust fund, JCEC coordinated
enforcement plan, and program allocation reporting requirements prior to obligating program
funds.
The obligation of program funds is defined as a formal commitment of funds by the recipient
organization for program costs. Examples of program costs include salary expenditures and
contracts for goods and/or services.
The mechanism to report on compliance with the above referenced provisions is by electronic
submission of the Follow up Information Form, included in the award package. The DSA shall
establish the process whereby each unit of local government receiving a JAIBG award, will be
required to report to the DSA, demonstrating how the requirements of the program have been
met by the unit of local government. Units of local government will not report directly to OJJDP.

5.4 Program Reporting Requirements
Recipients of funds are required to submit both programmatic progress reports and financial
status reports throughout the grant period. Both types of reports and their required submission
schedules are outlined below.
Program Progress Reports
The DSA is required to submit an initial progress report on either June 30 or December 31, based
on date of award, and semiannual program progress reports thereafter. Progress reports should
describe activities at the State and local level during the reporting period, the status of funding
within the program purpose areas as approved upon submission of the Follow up Information
Form, and updates on the “active consideration” requirement. Reports are due within 30 days
following the end of that reporting period. For example:
If the grant award date is September 30, 2000, the first report would cover the period
from the grant award date through December 31, 2000, and would be due January 30,
2001. The next report would cover the period of January 1 through June 30, 2001, and
would be due July 30, 2001.
A final report summarizing the program’s activities and significant results is due within 120 days
of the grant’s end date. Copies of the program progress report forms will be provided with the
award packet.
In order to assist with the submission of the reports described above, the DSA may establish the
procedures, requirements, and time lines for submission of information from the subgrantee units
of local government. However, at a minimum, information identified as necessary for the
administration of the program, by the DSA, must be submitted by units of local government to
the DSA at least quarterly.
Financial Status Reports
Financial status reports (SF 269A) are required quarterly, within 45 days following the end of
each calendar quarter. For example:

24

 JAIBG Guidance Manual

If the grant award date is September 30, 2000, the first financial status report would
cover the period October 1 through December 31, 2000, and would be due February 15,
2001. The next report would cover the period January 1 through March 31, 2001, and
would be due May 15, 2001.
This schedule should be followed for every quarter the award is active. The Office of the
Comptroller will include a copy of this form in each initial award package. In addition, the
Office of the Comptroller will provide guidance on how to account for interest generated by
program funds, to each grantee to report first quarter activity.

5.5 Nonsupplanting Requirement
JAIBG program funds cannot be used to supplant State or local funds. They must increase the
amount of funds that would otherwise be available from State and local sources. (see Section 6.9,
“Definitions”)

5.6 Suspension of Funding
OJJDP may suspend (in whole or in part) authority to draw down or expend funds, terminate a
grant, or impose another sanction on a grantee for the following reasons:
1.  Failure to adhere to the requirements, standard conditions, or special conditions of the
JAIBG program.
2. Failure to submit reports in a timely manner.
3. Filing a false certification in this application or in another report or document.
4. Other good cause shown.
Before taking action, OJJDP will provide reasonable notice to the grantee of its intent to impose
sanctions and will attempt to resolve the problem informally. Hearing and appeal procedures will
follow 28 CFR Part 18 of the Department of Justice Regulations.

25

 JAIBG Guidance Manual

Section 6. Definitions
6.1 State
The term “State” means any State of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Northern
Mariana Islands, except that American Samoa, Guam, and the Northern Mariana Islands shall be
considered as one State and that, for purposes of Section 1803(a), 33 percent of the amounts
allocated shall be allocated to American Samoa, 50 percent to Guam, and 17 percent to the
Northern Mariana Islands.

6.2 Unit of Local Government
A “unit of local government” means a county, township, city, or political subdivision of a
county, township, or city that is a unit of local government as determined by the Secretary of
Commerce for general statistical purposes; the District of Columbia; and the recognized body of
an Indian tribe or Alaskan Native village that carries out substantial governmental duties and
powers.

6.3 Juvenile
The term “juvenile” means an individual who is 17 years of age or younger. However,
individuals who are under the original or extended jurisdiction of the juvenile justice system
beyond the age of 17 are eligible to receive services under the JAIBG program.

6.4 Law Enforcement Expenditures
The term “law enforcement expenditures” means the expenditures associated with police,
prosecutorial, legal, and judicial services and corrections as reported to the Bureau of the Census
for the fiscal year preceding the fiscal year for which a determination is made.

6.5 Part 1 Violent Crimes
The term “part 1 violent crimes” means murder and nonnegligent manslaughter, forcible rape,
robbery, and aggravated assault as reported to the Federal Bureau of Investigation for purposes
of the Uniform Crime Reports.

6.6 Serious Violent Crime
The term “serious violent crime” means murder, aggravated sexual assault, or assault with a
firearm.

27

 JAIBG Guidance Manual

6.7 Designated State Agency (DSA)
The term “Designated State Agency” refers to that agency which is designated by the Governor
or other Chief Executive of a State to receive, manage, and administer JAIBG funds.

6.8 Primary Financial Burden
The term “primary financial burden” means that a State bears more than 50 percent of the
financial responsibility within that State for the administration of the juvenile justice functions
delineated in the program purpose areas under Section 1801(b) of H. R. 3. Example: State X
demonstrates that it bears 90 percent of the total costs incurred within that State for the
administration of juvenile justice (versus 10 percent for all units of local government). The State
could request a reduction of the required local pass-through from 75 to 10 percent.

6.9 Nonsupplanting
The term “nonsupplanting” means the prohibition on using Federal funds to substitute or replace
State or local funds that would otherwise be spent for a particular program or purpose. The
nonsupplanting requirement provides that funds shall be used to increase the amount of funds
that would be made available from State or local sources.

6.10 Juvenile Crime Enforcement Coalition
The term “crime enforcement coalition” means a group of individuals representing the police,
sheriff, prosecutor, State or local probation services, juvenile court, schools, business, and
religious affiliated, fraternal, nonprofit, or social service organizations involved in crime
prevention. The coalition is responsible for establishing a coordinated enforcement plan for
reducing juvenile crime within a unit of local government.

6.11 Juvenile Detention Facility
The term “ juvenile detention facility” means any public or private residential facility that
includes permanent and temporary construction fixtures designed to physically restrict the
movements and activities of juveniles or other individuals held in lawful custody and that is used
for the temporary placement of any juvenile who is accused of having committed an offense, of
any nonoffender, or of any other individual accused of having committed a criminal offense.

6.12 Juvenile Correction Facility
The term “juvenile correction facility” means any public or private residential facility that
includes permanent and temporary construction fixtures which are designed to physically restrict
the movements and activities of juveniles or other individuals held in lawful custody and that is
used for the placement, after adjudication and disposition, of any juvenile who has been
adjudicated as having committed an offense, any nonoffender, or any other individual convicted
of a criminal offense.

28

 JAIBG Guidance Manual

6.13 Coordinated Enforcement Plan for Reducing Juvenile Crime
A plan developed by a State or local Juvenile Crime Enforcement Coalition that is based on an
analysis of juvenile justice system needs. The analysis determines the most effective uses of
funds, within the twelve JAIBG program purpose areas, to achieve the greatest impact on
reducing juvenile delinquency, improving the juvenile justice system, and increasing
accountability for juvenile offenders.

29

 MYTHS AND FACTS ABOUT THE AMERICANS WITH DISABILITIES ACT

MYTH: ADA suits are flooding the courts.

FACT: The ADA has resulted in a surprisingly small number of lawsuits -- only about 650 nationwide in
five years. That's tiny compared to the 6 million businesses; 666,000 public and private employers; and
80,000 units of state and local government that must comply.

MYTH: The ADA is rigid and requires businesses to spend lots of money to make their existing facilities
accessible.

FACT: The ADA is based on common sense. It recognizes that altering existing structures is more costly
than making new construction accessible. The law _only_ requires that public accommodations (e.g.
stores, banks, hotels, and restaurants) remove architectural barriers in existing facilities when it is
"readily achievable", i.e., it can be done "without much difficulty or expense." Inexpensive, easy steps to
take include ramping one step; installing a bathroom grab bar; lowering a paper towel dispenser;
rearranging furniture; installing offset hinges to widen a doorway; or painting new lines to create an
accessible parking space.

MYTH: The government thinks everything is readily achievable.

FACT: Not true. Often it may not be readily achievable to remove a barrier -- especially in older
structures. Let's say a small business is located above ground. Installing an elevator would not, most
likely, be readily achievable -- and there may not be enough room to build a ramp -- or the business may
not be profitable enough to build a ramp. In these circumstances, the ADA would allow a business to
simply provide curbside service to persons with disabilities.

MYTH: The ADA requires businesses to remove barriers overnight.

FACT: Businesses are only required to do what is readily achievable at that time. A small business may
find that installing a ramp is not readily achievable this year, but if profits improve it will be readily
achievable next year. Businesses are encouraged to evaluate their facilities and develop a long-term
plan for barrier removal that is commensurate with their resources.

 MYTH: Restaurants must provide menus in braille.

FACT: Not true. Waiters can read the menu to blind customers.

MYTH: The ADA requires extensive renovation of all state and local government buildings to make them
accessible.

FACT: The ADA requires all government programs, not all government buildings, to be accessible.
"Program accessibility" is a very flexible requirement and does not require a local government to do
anything that would result in an undue financial or administrative burden. Local governments have been
subject to this requirement for many years under the Rehabilitation Act of 1973. Not every building, nor
each part of every building needs to be accessible. Structural modifications are required only when
there is no alternative available for providing program access. Let's say a town library has an inaccessible
second floor. No elevator is needed if it provides "program accessibility" for persons using wheelchairs
by having staff retrieve books.

MYTH: Sign language interpreters are required everywhere.

FACT: The ADA only requires that effective communication not exclude people with disabilities -- which
in many situations means providing written materials or exchanging notes. The law does not require any
measure that would cause an undue financial or administrative burden.

MYTH: The ADA forces business and government to spend lots of money hiring unqualified people.

FACT: No unqualified job applicant or employee with a disability can claim employment discrimination
under the ADA. Employees must meet all the requirements of the job and perform the essential
functions of the job with or without reasonable accommodation. No accommodation must be provided
if it would result in an undue hardship on the employer.

MYTH: Accommodating workers with disabilities costs too much.

FACT: Reasonable accommodation is usually far less expensive than many people think. In most cases,
an appropriate reasonable accommodation can be made without difficulty and at little or no cost. A
recent study commissioned by Sears indicates that of the 436 reasonable accommodations provided by

 the company between 1978 and 1992, 69% cost nothing, 28% cost less than $1,000, and only 3% cost
more than $1,000.

MYTH: The government is no help when it comes to paying for accessibility.

FACT: Not so. Federal tax incentives are available to help meet the cost of ADA compliance.

MYTH: Businesses must pay large fines when they violate the ADA.

FACT: Courts may levy civil penalties only in cases brought by the Justice Department, not private
litigants. The Department only seeks such penalties when the violation is substantial and the business
has shown bad faith in failing to comply. Bad faith can take many forms, including hostile acts against
people with disabilities, a long-term failure even to inquire into what the ADA requires, or sustained
resistance to voluntary compliance. The Department also considers a business' size and resources in
determining whether civil penalties are appropriate. Civil penalties may not be assessed in cases against
state or local governments or employers.

MYTH: The Justice Department sues first and asks questions later.

FACT: The primary goal of the Department's enforcement program is to increase voluntary compliance
through technical assistance and negotiation. Under existing rules, the Department may not file a
lawsuit unless it has first tried to settle the dispute through negotiations -- which is why most every
complaint settles.

MYTH: The Justice Department never files suits.

FACT: The Department has been party to 20 suits under the ADA. Although it tries extensively to
promote voluntary compliance, the Department will take legal action when entities continue to resist
complying with the law.

MYTH: Many ADA cases involve frivolous issues.

 FACT: The Justice Department's enforcement of the ADA has been fair and rooted in common sense. The
overwhelming majority of the complaints received by the Justice Department have merit. Our focus is
on fundamental issues related to access to goods and services that are basic to people's lives. We have
avoided pursuing fringe and frivolous issues and will continue to do so.

MYTH: Everyone claims to be covered under the ADA.

FACT: The definition of "individual with a disability" is fraught with conditions and must be applied on a
case-by-case basis.

MYTH: The ADA protects people who are overweight.

FACT: Just being overweight is not enough. Modifications in policies only must be made if they are
reasonable and do not fundamentally alter the nature of the program or service provided. The
Department has received only a handful of complaints about obesity.

MYTH: The ADA is being misused by people with "bad backs" and "emotional problems."

FACT: Trivial complaints do not make it through the system. And many claims filed by individuals with
such conditions are not trivial. There are people with severe depression or people with a history of
alcoholism who are judged by their employers, not on the basis of their abilities, but rather upon
stereotypes and fears that employers associate with their conditions.

 U.S. Department of Justice
Civil Rights Division

 

 

O?ice of Special Counsel for Immigration Related
Unfair Employment Practices - YA

950 Avenue, NW
Washington, DC 20530 

.-.

Ef?e-rm

VIA First Class Mail and E-Mail (AlainBaudrvd-Dmasloncom)

Alain Baudry, Esq.

Maslon Edelman Borman Brand, LLP
3300 Wells Fargo Center

90 South Seventh Street

Minneapolis, Minnesota 55402-4140

Dear Mr. Baudry: . 

Thank you for your e?mail inquiry of September 16, 2009. In your e?mail you state that
the human resources manager of a client employer, upon learning from the police department that
one of its employees is not authorized to work in the United States, revievVed the ?le of another
individual hired around the same time. In reviewing the photocopies of the documents presented
by this other employee for employment eligibility veri?cation 9) purposes, the human
resources manager identi?ed notable spelling err0rs on the photocopy of the Social Security card.

You then pose the following questions:

?First, is the client able to question the employee regarding this card, and 
request/require that another form of employment veri?cation be submitted, as the
document upon this review does not appear to be faCially valid? If not, what, if
any, other steps should be taken here?

?Second, can the client conduct a further review/ audit of other ?les and take
- similar steps assuming, upon inspection, there are such obvious errors??

Pleasenote that the Of?ce of Special Coimsel (OSC) cannot provide an advisory opinion
on any particular instance of alleged discrimination or on any set of facts involving a particular
individual or entity. However, we can provide some general guidelines regarding employer
compliance with the anti-discrimination provision of the Immigration and Nationality Act (INA),
8 U.S.C. 1324b, which OSC enforces.

The anti?discrimination provision prohibits hiring, ?ring, recruitment or referral for a fee,
and unfair documentary practices during the employment eligibility veri?cation (Form 1-9)
process (document abuse) on the basis of citizenship or immigration status or national origin. It

also prohibits retaliation for ?ling a charge, assisting in an investigation, or asserting rights under
the anti-discrimination provision.

An employer may choose to conduct an internal audit of its 1-9 forms as long as it is
conducted for every employee in the same manner. Consistent with the anti-discrimination
provision of the INA, the employer may not treat employees differently because they look or
sound foreign or possess a certain citizenship status during an audit. 8 U.S.C. 1324b(a)(l) and
(6). Selective audits, wherein an employer reviews only certain employees? previously
completed forms and accompanying photOCOpies,1 are therefore suspect. Further, during
audits employers may not scrutinize more closely the I- 9 forms and documentation of select
employees on the basis of national origin or citizenship status; employers are required to treat all
employees in the same manner Id.

If, during the course of conducting an audit in a non?discriminatory manner, an employer
discovers that its forms or accompanying documents for some employees are missing or
incomplete, the employer may re-verify those employees. United States v. Ojiel, 7 OCAHO 984,
*4 (1998) (?nding that the govermnent has a considerable interest in encouraging employers to
correct mistakes on the I-9 form, and that employers may correct paperwork mistakes at or before
government inspection).

Further, if the employee presented documentation that does not reasonably appear to be
genuine or to relate to the employee, an employer cannot accept that documentation. See
Handbook for Employers, at 39. 

I hope this information is of assistance to you. Should you have any further questions,
please contact employer hotline at (800) 255-7688.

 

Katherine A. Ba dwin
Deputy Special Counsel

 

1 At the time of veri?cation, employers are required to ?examine the original document
or documents that the employee presents to the employer? and may not rely upon photocopies.
Handbook274a. (requiring that individuals present only original and
unexpired documents).

 

US Department of Justice .
Civil Rights Division

 

O?ice of Special Counsel for Immigration-Related
Unfair Employment Practices - YA

95 Ave, NW

Washington, 20530

Main (202) 616-5594

Fax (202) 616-5509

MAY 3910 2012

Via First Class Mail and E?Mail (ezendeias@crla.org)

Esmeralda Zendej as

Migrant Attorney .

California Rural Legal Assistance, Inc.
145 E. Weber Avenue

Stockton, CA 95202

Dear Ms. Zendejasi

This is in response to your February 1, 2012, email seeking clarity as to when eligibility
for naturalization begins for a lawful permanent resident as applied under the anti-discrimination
provision. Speci?cally, you write in your email: ?Your website identi?es the exception to
protection to legal permanent residents is that citizenship status discrimination does not apply to
permanent residents who do not apply for naturalization within six months of eligibility. I was
wondering if you could clarify when eligibility would kick in for an You further ask

- Whether the eligibility timeframe is typically within three to ?ve years of obtaining LPR status or
whether that timeframe can vary.

As you know, the Of?ce of Special Counsel for Immigration?Related Unfair Employment
Practices investigates and resolves charges of national origin and citizenship status 
discrimination, as well as over-documentation in the employment eligibility veri?cation process
(?document abuse?) and retaliation under the anti?discrimination provision of the Immigration
and Nationality Act 8 U.S.C. ?1324b. Please note that OSC cannot provide an advisory
opinion on any particular instance of alleged discrimination or on any set of facts involving a
particular individual or entity; however, we can provide some general guidelines regarding 7
compliance with the anti?discrimination,provision of the Immigration and Nationality Act (INA).

As you correctly note, ?an alien who fails to apply for naturalization within six months of
the date the alien ?rst becomes eligible? is not a ?protected individual? under 8 U.S.C. 
1324b(3)(B) and is thus not protected from citizenship status discrimination; However, all work-
authorized individuals are protected against other forms of discrimination under the anti-
disc'rirni'nation provision, including document abuse ?"the request for more or different
decuments, or the rejection of reasonably genuine looking documents in the employment
eligibility veri?cation process based on national origin or citizenship status. United States v.
Townsend Culinary, Inc., 8 OCAHO no. 1032 (1999) (relief ordered for all victims of document
abuse without distinction as to status as a "protected individual?); United States v. Guardsmark,

United States V. Guardsmark, Inc., 3 OCAHO no. 5 72 (1993) (all work authorized individuals
are protected from document abuse).

The eligibility requirements for naturalization are discussed at length in the Immigration
and Nationality Act 8 U.S.C. 1421-59 and most speci?cally, at 8 U.S.C. 1427.
The six-month period under l324b(3)(B) begins tolling as soon as the alien meets all of the
requirements under the INA and is eligible to naturalize. Most often, a lawful permanent
resident becomes eligible after ?ve years of lawful permanent resident status, but still must meet
a number of additional criteria. Because the requirements differ according to those criteria, there
is no set length of time that every lawful permanent resident must hold permanent resident status
prior to becoming eligible. For instance, a permanent resident who has been married for three
years to the same US. citizen would become eligible after continuous residency for three years.
However, additional factors may in?uence the timeframe, such as periods of residence outside of
the United States. For more information about naturalization eligibility criteria you may visit the
USCIS website naturalization subpage, available at
http: uscis. 
id=598da2f39bl ab21 9b 1 ab21 
You may also contact USCIS by telephone atl-800-375-5283.

We hope this information is of assistance to you.

Sincerely,

gm.

Seema Nanda
Acting Deputy Special Counsel

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SECTION 4 OF THE VOTING RIGHTS ACT
• Section 4 of the Voting Rights Act
• The formula for coverage under Section 4 of the Voting Rights Act
• Terminating coverage under the Act's special provisions (bail-out)
SECTION 4 OF THE VOTING RIGHTS ACT

When Congress enacted the Voting Rights Act of 1965, it determined that racial discrimination in voting had
been more prevalent in certain areas of the country. Section 4(a) of the Act established a formula to identify
those areas and to provide for more stringent remedies where appropriate. The first of these targeted
remedies was a five-year suspension of "a test or device," such as a literacy test as a prerequisite to
register to vote. The second was the requirement for review, under Section 5, of any change affecting
voting made by a covered area either by the United States District Court for the District of Columbia or by
the Attorney General. The third was the ability of the Attorney General to certify that specified jurisdictions
also required the appointment of federal examiners. These examiners would prepare and forward lists of
persons qualified to vote. The final remedy under the special provisions is the authority of the Attorney
General to send federal observers to those jurisdictions that have been certified for federal examiners.
Section 4 also contains several other provisions, such as Section 4(e) and Section 4(f), that guarantee the
right to register and vote to those with limited English proficiency. Section 4(e) provides that the right to
register and vote may not be denied to those individuals who have completed the sixth grade in a public
school, such as those in Puerto Rico, where the predominant classroom language is a language other than
English. In Section 4(f), the Act addresses the ability of those persons who are members of language
minority groups identified in Section 4(f)(2), to register and vote as well as to get information relating to the
electoral process in a manner that will ensure their meaningful participation in the electoral process.
THE FORMULA FOR COVERAGE UNDER SECTION 4 OF THE VOTING RIGHTS ACT

As enacted in 1965, the first element in the formula was whether, on November 1, 1964, the state or a
political subdivision of the state maintained a "test or device" restricting the opportunity to register and vote.
The Act's definition of a "test or device" included such requirements as the applicant being able to pass a
literacy test, establish that he or she had good moral character, or have another registered voter vouch for
his or her qualifications.
The second element of the formula would be satisfied if the Director of the Census determined that less
than 50 percent of persons of voting age were registered to vote on November 1, 1964, or that less than 50
percent of persons of voting age voted in the presidential election of November 1964. This resulted in the
following states becoming, in their entirety, "covered jurisdictions": Alabama, Alaska, Georgia, Louisiana,
Mississippi, South Carolina, and Virginia. In addition, certain political subdivisions (usually counties) in four
other states (Arizona, Hawaii, Idaho, and North Carolina) were covered. In fully covered states, the state
itself and all political subdivisions of the state are subject to the special provisions. In "partially covered"
states, the special provisions applied only to the identified counties. Voting changes adopted by or to be
implemented in covered political subdivisions, including changes applicable to the state as a whole, are
subject to review under Section 5.
In 1970, Congress recognized the continuing need for the special provisions of the Act, which were due to
expire that year, and renewed them for another five years. It added a second prong to the coverage

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formula, identical to the original formula except that it referenced November 1968 as the relevant date for
the maintenance of a test or device and the levels of voter registration and electoral participation. This
addition to the formula resulted in the partial coverage of ten states, including Alaska, Arizona, California,
Connecticut, Idaho, Maine, Massachusetts, New Hampshire, New York, and Wyoming. Half of these states
(Connecticut, Idaho, Maine, Massachusetts, and Wyoming) filed successful "bailout" lawsuits.
In 1975, the Act's special provisions were extended for another seven years, and were broadened to
address voting discrimination against members of "language minority groups," which were defined as
persons who are American Indian, Asian American, Alaskan Natives or of Spanish heritage." As before,
Congress expanded the coverage formula, based on the presence of tests or devices and levels of voter
registration and participation as of November 1972. In addition, the 1965 definition of "test or device" was
expanded to include the practice of providing any election information, including ballots, only in English in
states or political subdivisions where members of a single language minority constituted more than five
percent of the citizens of voting age. This third prong of the coverage formula had the effect of covering
Alaska, Arizona, and Texas in their entirety, and parts of California, Florida, Michigan, New York, North
Carolina, and South Dakota.
In 1982, the coverage formula was extended again, this time for 25 years, but no changes were made to it.
In 2006, the coverage formula was again extended for 25 years.
TERMINATING COVERAGE UNDER THE ACT'S SPECIAL PROVISIONS

Section 4 also provides that a jurisdiction may terminate or "bailout" from coverage under the Act's special
provisions. Originally enacted in 1965 as a means to remedy any possible over inclusiveness resulting from
application of the trigger formula, Congress amended this procedure in 1982 so jurisdictions that meet the
statutory standards can obtain relief. The amendment, which took effect on August 5, 1984, establishes an
"objective" measure to determine whether the jurisdiction is entitled to "bailout".
A jurisdiction seeking to "bailout" must seek a declaratory judgment from a three-judge panel in the United
States District Court for the District of Columbia. On June 22, 2009, the Supreme Court held that any
jurisdiction currently required to make Section 5 submissions may seek to "bailout" from coverage if it meets
the statutory criteria set forth below.
The successful "bailout" applicant must demonstrate that during the past ten years:
• No test or device has been used within the jurisdiction for the purpose or with the effect of voting
discrimination;
• All changes affecting voting have been reviewed under Section 5 prior to their implementation;
• No change affecting voting has been the subject of an objection by the Attorney General or the
denial of a Section 5 declaratory judgment from the District of Columbia district court;
• There have been no adverse judgments in lawsuits alleging voting discrimination;
• There have been no consent decrees or agreements that resulted in the abandonment of a
discriminatory voting practice;
• There are no pending lawsuits that allege voting discrimination; and
• Federal examiners have not been assigned;
• There have been no violations of the Constitution or federal, state or local laws with respect to voting
discrimination unless the jurisdiction establishes that any such violations were trivial, were promptly
corrected, and were not repeated.
Before being allowed to "bailout", the jurisdiction must have eliminated those voting procedures and
methods of elections that inhibit or dilute equal access to the electoral process. It also must demonstrate
that it has made constructive efforts to eliminate intimidation and harassment of persons seeking to register

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and vote and expand opportunities for voter participation, such as opportunities for registration and voting,
and to appoint minority officials throughout the jurisdiction and at all levels of the stages of the electoral
process. The jurisdiction must also present evidence of minority electoral participation.
In addition, these requirements apply to all governmental units within the geographical boundaries of the
jurisdiction. Thus, if a county is seeking to "bailout", it must establish each criteria for every city, town,
school district, or other entity within its boundaries.
The jurisdiction seeking "bailout" must publicize the intended commencement and any proposed settlement
of the action; any aggrieved party may intervene in the litigation. After the granting of a declaratory
judgment, the statute requires a ten-year "recapture" period. During this time, the district court may reopen
proceedings should the jurisdiction engage in any conduct that would have prevented the jurisdiction from
bailing out in the first instance. Under such circumstances, the district court will review the evidence and
determine whether to reinstate coverage.
The Attorney General is also authorized to consent to an entry of judgment granting the "bailout" if the
Attorney General concludes after investigation that the jurisdiction has complied with all of these
requirements. Prior to actually filing a petition with the District of Columbia court, any jurisdiction interested
in seeking "bailout" may submit a request to the Attorney General with supporting documentation and
evidence. Upon receipt, the Voting Section of the Civil Rights Division will undertake an investigation to
determine whether the Attorney General would be willing to enter into a consent decree or would oppose
the "bailout" petition. If the Attorney General determines that consent to an entry of judgment is proper, the
Voting Section will work with the jurisdiction to agree on the terms of the consent decree to be filed with the
"bailout" petition when the litigation is actually filed.
JURISDICTIONS CURRENTLY BAILED OUT

The following jurisdictions were once subject to Section 5 of the Voting Rights Act, but have successfully
obtained a declaratory judgment under Section 4 of the Voting Rights Act, and are currently bailed out. The
date listed below is the date on which these jurisdictions were granted a declaratory judgment allowing
them to bail out. Also included below are some examples of a stipulation of facts and consent decree in
several bailout cases.
Wake County, North Carolina - January 23, 1967
Curry, McKinley and Otero Counties, New Mexico - July 30, 1976
Towns of Cadwell, Limestone, Ludlow, Nashville, Reed, Woodland, Connor, New Gloucester, Sullivan,
Winter Harbor, Chelsea, Sommerville, Carroll, Charleston, Webster, Waldo, Beddington, and Cutler, Maine
- September 17, 1976
Choctaw and McCurtain Counties, Oklahoma - May 12, 1978
Campbell County, Wyoming - December 17, 1982
Towns of Amherst, Ayer, Belchertown, Bourne, Harvard, Sandwich, Shirley, Sunderland, and Wrentham,
Massachusetts - September 29, 1983
Towns of Groton, Mansfield, and Southbury, Connecticut - June 21, 1984
El Paso County, Colorado - July 30, 1984
Honolulu County, Hawaii - July 31, 1984

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Elmore County, Idaho - September 22, 1966; July 31, 1984
City of Fairfax, Virginia, including the City of Fairfax School Board - October 21, 1997
Stipulation of Facts
Consent Decree
Frederick County, Virginia, including the Frederick County School Board the Towns of Middletown and
Stephens City; and the Frederick County Shawneeland Sanitary District - September 9, 1999
Stipulation of Facts
Consent Decree
Shenandoah County, Virginia including the Shenandoah County School Board, the Towns of Edinburg,
Mount Jackson, New Market, Strasburg, Toms Brook, and Woodstock, the Stoney Creek Sanitary District,
and the Toms Brook-Maurertown Sanitary District - October 15, 1999
Stipulation of Facts
Consent Decree
Roanoke County, Virginia, including the Roanoke County School Board and the Town of Vinton - January
24, 2001
Stipulation of Facts
Consent Decree
City of Winchester, Virginia - June 1, 2001
Stipulation of Facts
Consent Decree
City of Harrisonburg, Virginia, including the Harrisonburg City School Board - April 17, 2002
Stipulation of Facts
Consent Decree
Rockingham County, Virginia, including the Rockingham County School Board and the Towns of
Bridgewater, Broadway, Dayton, Elkton, Grottoes, Mt. Crawford, and Timberville - May 24, 2002
Stipulation of Facts
Consent Decree
Warren County, Virginia, including the Warren County School Board and the Town of Front Royal November 26, 2002
Stipulation of Facts
Consent Decree
Greene County, Virginia, including the Greene County School Board and the Town of Standardsville January 19, 2004
Stipulation of Facts
Consent Decree
Pulaski County, Virginia, including the Pulaski County School Board and the Towns of Pulaski and Dublin September 27, 2005
Stipulation of Facts
Consent Decree
Augusta County, Virginia, including the Augusta County School Board and the Town of Craigsville November 30, 2005
Stipulation of Facts
Consent Decree
City of Salem, Virginia - July 27, 2006
Stipulation of Facts
Consent Decree
Botetourt County, Virginia, including the Botetourt County School Board and the Towns of Buchanan,
Fincastle, and Troutville - August 28, 2006
Stipulation of Facts
Consent Decree
Essex County, Virginia including the Essex County School Board and the Town of Tappahannock - January
31, 2007
Stipulation of Facts (1)
Stipulation of Facts (2)
Consent Decree

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Middlesex County, Virginia, including the Middlesex County School Board and the Town of Urbanna January 7, 2008
Stipulation of Facts
Consent Decree
Amherst County, Virginia, including the Town of Amherst - August 13, 2008
Stipulation of Facts
Consent Decree
Page County, Virginia, including the Page County School Board and the Towns of Luray, Stanley, and
Shenandoah - September 15, 2008
Stipulation of Facts
Consent Decree
Washington County, Virginia, including the Washington County School Board and the Towns of Abington,
Damascus, and Glade Spring - September 23, 2008
Stipulation of Facts
Consent Decree
Northwest Austin Municipal Utility District Number One, Texas - November 3, 2009
City of Kings Mountain, North Carolina - October 22, 2010
Consent Decree
City of Sandy Springs, Georgia - October 26, 2010
Consent Decree
Jefferson County Drainage District Number Seven, TX - June 6, 2011
Consent Decree
Alta Irrigation District, CA - July 15, 2011
Consent Decree
City of Manassas Park, VA - August 3, 2011
Consent Decree
Rappahannock County, VA, including the Rappahannock County School Board and the Town of
Washington - August 9, 2011
Consent Decree
Bedford County, VA, including the Bedford County School Board - August 30, 2011
Consent Decree
City of Bedford, VA - August 31, 2011
Consent Decree
Culpeper County, VA, including the Culpeper County School Board and the Town of Culpeper - October 3,
2011
Consent Decree
James City County, VA - November 9, 2011
Consent Decree
City of Williamsburg, VA, including the Williamsburg-James City County School Board - November 28, 2011
Consent Decree
King George County, VA, including the King George County School Board - April 5, 2012
Consent Decree

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Prince William County, VA, including the Prince William County School Board and the Towns of Dumfries,
Haymarket, Occoquan, and Quantico - April 10, 2012
Consent Decree
City of Pinson, AL - April 20, 2012
Consent Decree
Wythe County, VA, including the County School Board and the Towns of Rural Retreat and Wytheville June 18, 2012
Consent Decree
Grayson County, VA, including the County School Board and the Towns of Independence, Fries and
Troutdale - July 20, 2012
Consent Decree
Merced County, CA, including some 84 other governmental units - August 31, 2012
Consent Decree
Craig County, VA, including the Craig County School District and the Town of New Castle - November 29,
2012
Consent Decree
Carroll County, VA, including the Carroll County School District and the Town of Hillsville - November 30,
2012
Consent Decree
Browns Valley Irrigation District in Yuba County, CA - February 4, 2013
Consent Decree
Towns of Antrim, Benton, Boscawen, Millsfield, Newington, Pinkham's Grant, Rindge, Stewartstown,
Stratford, and Unity, NH - March 1, 2013
Consent Decree
City of Wheatland in Yuba County, CA - April 25, 2013
Consent Decree
City of Falls Church, VA and the Falls Church City Public School District - May 29, 2013
Consent Decree
Updated December 20, 2017

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Title II Highlights

NOTICE: ARCHIVED DOCUMENT
Portions of this document may not fully reflect the current ADA regulations. The regulation implementing title
II of the ADA was revised as recently as 2016. Revised ADA Standards for Accessible Design were issued on
September 15, 2010 and went into effect on March 15, 2012. This document is maintained for reference
purposes.

U.S. Department of Justice
Civil Rights Division
Disability Rights Section

Department
of Justice
seal

Title II Highlights
I. Who is covered by title II of the ADA
II. Overview of Requirements
III. "Qualified Individual with a Disability"
IV. Program Access
V. Integrated Programs
VI. Communications
VII. New Construction and Alterations
VIII. Enforcement
IX. Complaints
X. Designated Agencies
XI. Technical Assistance

I. Who is Covered by Title II of the ADA
The title II regulation covers "public entities."
"Public entities" include any State or local government and any of its departments, agencies, or
other instrumentalities.
All activities, services, and programs of public entities are covered, including activities of State
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legislatures and courts, town meetings, police and fire departments, motor vehicle licensing, and
employment.
Unlike section 504 of the Rehabilitation Act of 1973, which only covers programs
receiving Federal financial assistance, title II extends to all the activities of State and
local governments whether or not they receive Federal funds.
Private entities that operate public accommodations, such as hotels, restaurants, theaters, retail
stores, dry cleaners, doctors' offices, amusement parks, and bowling alleys, are not covered by title
II but are covered by title III of the ADA and the Department's regulation implementing title III.
Public transportation services operated by State and local governments are covered by regulations of
the Department of Transportation.
DOT's regulations establish specific requirements for transportation vehicles and
facilities, including a requirement that all new busses must be equipped to provide
services to people who use wheelchairs.

II. Overview of Requirements
State and local governments -May not refuse to allow a person with a disability to participate in a service, program,
or activity simply because the person has a disability.
For example, a city may not refuse to allow a person with epilepsy to use
parks and recreational facilities.
Must provide programs and services in an integrated setting, unless separate or different
measures are necessary to ensure equal opportunity.
Must eliminate unnecessary eligibility standards or rules that deny individuals with
disabilities an equal opportunity to enjoy their services, programs or activities unless
"necessary" for the provisions of the service, program or activity.
Requirements that tend to screen out individuals with disabilities, such as
requiring a driver's license as the only acceptable means of identification,
are also prohibited.
Safety requirements that are necessary for the safe operation of the
program in question, such as requirements for eligibility for drivers'
licenses, may be imposed if they are based on actual risks and not on mere
speculation, stereotypes, or generalizations about individuals with
disabilities.
Are required to make reasonable modifications in policies, practices, and procedures
that deny equal access to individuals with disabilities, unless a fundamental alteration in
the program would result.
For example, a city office building would be required to make an exception
to a rule prohibiting animals in public areas in order to admit guide dogs
and other service animals assisting individuals with disabilities.
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Must furnish auxiliary aids and services when necessary to ensure effective
communication, unless an undue burden or fundamental alteration would result.
May provide special benefits, beyond those required by the regulation, to individuals
with disabilities.
May not place special charges on individuals with disabilities to cover the costs of
measures necessary to ensure nondiscriminatory treatment, such as making
modifications required to provide program accessibility or providing qualified
interpreters.
Shall operate their programs so that, when viewed in their entirety, they are readily
accessible to and usable by individuals with disabilities.

III. "Qualified Individuals with Disabilities"
Title II of the Americans with Disabilities Act provides comprehensive civil rights protections for
"qualified individuals with disabilities."
An "individual with a disability" is a person who -Has a physical or mental impairment that substantially limits a "major life activity", or
Has a record of such an impairment, or
Is regarded as having such an impairment.
Examples of physical or mental impairments include, but are not limited to, such contagious and
noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments;
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes,
mental retardation, emotional illness, specific learning disabilities, HIV disease (whether
symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism. Homosexuality and
bisexuality are not physical or mental impairments under the ADA.
"Major life activities" include functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
Individuals who currently engage in the illegal use of drugs are not protected by the ADA when an
action is taken on the basis of their current illegal use of drugs.
"Qualified" individuals.
A "qualified" individual with a disability is one who meets the essential eligibility
reqirements for the program or activity offered by a public entity.
The "essential eligibility requirements" will depend on the type of service or activity
involved.
For some activities, such as State licensing programs, the ability to meet
specific skill and performance requirements may be "essential."
For other activities, such as where the public entity provides information to
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anyone who requests it, the "essential eligibility requirements" would be
minimal.

IV. Program Access
State and local governments-Must ensure that individuals with disabilities are not excluded from services, programs,
and activities because buildings are inaccessible.
Need not remove physical barriers, such as stairs, in all existing buildings, as long as
they make their programs accessible to individuals who are unable to use an
inaccessible existing facility.
Can provide the services, programs, and activities offered in the facility to individuals
with disabilities through alternative methods, if physical barriers are not removed, such
as -Relocating a service to an accessible facility, e.g., moving a public
information office from the third floor to the first floor of a building.
Providing an aide or personal assistant to enable an individual with a
disability to obtain the service.
Providing benefits or services at an individual's home, or at an alternative
accessible site.
May not carry an individual with a disability as a method of providing program access, except in
oemanifestly exceptionalî circumstances.
Are not required to take any action that would result in a fundamental alteration in the nature of the
service, program, or activity or in undue financial and administrative burdens. However, public
entities must take any other action, if available, that would not result in a fundamental alteration or
undue burdens but would ensure that individuals with disabilities receive the benefits or services.

V. Integrated Programs
Integration of individuals with disabilities into the mainstream of society is fundamental to the
purposes of the Americans with Disabilities Act.
Public entities may not provide services or benefits to individuals with disabilities through programs
that are separate or different, unless the separate programs are necessary to ensure that the benefits
and services are equally effective.
Even when separate programs are permitted, an individual with a disability still has the right to
choose to participate in the regular program.
For example, it would not be a violation for a city to offer recreational programs
specially designed for children with mobility impairments, but it would be a violation if
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the city refused to allow children with disabilities to participate in its other recreational
programs.
State and local governments may not require an individual with a disability to accept a special
accommodation or benefit if the individual chooses not to accept it.

VI. Communications
State and local governments must ensure effective communication with individuals with disabilities.
Where necessary to ensure that communications with individuals with hearing, vision, or speech
impairments are as effective as communications with others, the public entity must provide
appropriate auxiliary aids.
"Auxiliary aids" include such services or devices as qualified interpreters, assistive
listening headsets, television captioning and decoders, telecommunications devices for
deaf persons (TDD's), videotext displays, readers, taped texts, Brailled materials, and
large print materials.
A public entity may not charge an individual with a disability for the use of an auxiliary
aid.
Telephone emergency services, including 911 services, must provide direct access to individuals
with speech or hearing impairments.
Public entities are not required to provide auxiliary aids that would result in a fundamental alteration
in the nature of a service, program, or activity or in undue financial and administrative burdens.
However, public entities must still furnish another auxiliary aid, if available, that does not result in a
fundamental alteration or undue burdens.

VII. New Construction and Alterations
Public entities must ensure that newly constructed buildings and facilities are free of architectural
and communication barriers that restrict access or use by individuals with disabilities.
When a public entity undertakes alterations to an existing building, it must also ensure that the
altered portions are accessible.
The ADA does not require retrofitting of existing buildings to eliminate barriers, but does establish
a high standard of accessibility for new buildings.
Public entities may choose between two technical standards for accessible design: The
Uniform Federal Accessibility Standard (UFAS), established under the Architectural
Barriers Act, or the Americans with Disability Act Accessibility Guidelines, adopted by
the Department of Justice for places of public accommodation and commercial facilities
covered by title III of the ADA.
The elevator exemption for small buildings under ADA Accessibility Guidelines would
not apply to public entities covered by title II.
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VIII. Enforcement
Private parties may bring lawsuits to enforce their rights under title II of the ADA. The remedies
available are the same as those provided under section 504 of the Rehabilitation Act of 1973. A
reasonable attorney's fee may be awarded to the prevailing party.
Individuals may also file complaints with appropriate administrative agencies.
The regulation designates eight Federal agencies to handle complaints filed under title
II.
Complains may also be filed with any Federal agency that provides financial assistance
to the program in question, or with the Department of Justice, which will refer the
complaint to the appropriate agency.

IX. Complaints
Any individual who believes that he or she is a victim of discrimination prohibited by the regulation
may file a complaint. Complaints on behalf of classes of individuals are also permitted.
Complaints should be in writing, signed by the complainant or an authorized representative, and
should contain the complainant'sname and address and describe the public entity's alleged
discriminatory action.
Complaints may be sent to -Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
Complaints may also be sent to agencies designated to process complaints under the regulation, or
to agencies that provide Federal financial assistance to the program in question.

X. Designated Agencies
The following agencies are designated for enforcement of title II for components of State and local
governments that exercise responsibilities, regulate, or administer services, programs, or activities in
the following functional areas -Department of Agriculture: Farming and the raising of livestock, including extension
services.
Department of Education: Education systems and institutions (other than healthrelated schools), and libraries.
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Department of Health and Human Services: Schools of medicine, dentistry, nursing,
and other health-related schools; health care and social service providers and
institutions, including oegrass-rootsî and community services organizations and
programs; and preschool and daycare programs.
Department of Housing and Urban Development: State and local public housing,
and housing assistance and referral.
Department of Interior: Lands and natural resources, including parks and recreation,
water and waste management, environmental protection, energy, historic and cultural
preservation, and museums.
Department of Justice: Public safety, law enforcement, and the administration of
justice, including courts and correctional institutions; commerce and industry, including
banking and finance, consumer protection, and insurance; planning, development, and
regulation (unless otherwise assigned); State and local government support services;
and all other government functions not assigned to other designated agencies.
Department of Labor: Labor and the work force.
Department of Transportation: Transportation, including highways, public
transportation, traffic management (non-law enforcement), automobile licensing and
inspection, and driver licensing.

XI. Technical Assistance
The ADA requires that the Federal agencies responsible for issuing ADA regulations provide
"technical assistance."
Technical assistance is the dissemination of information (either directly by the Department or
through grants and contracts) to assist the public, including individuals protected by the ADA and
entities covered by the ADA, in understanding the new law.
Methods of providing information include, for example, audio-visual materials, pamphlets, manuals,
electronic bulletin boards, checklists, and training.
The Department issued for public comment on December 5, 1990, a government-wide plan for the
provision of technical assistance.
The Department's efforts focus on raising public awareness of the ADA by providing-Factsheets and pamphlets in accessible formats,
Speakers for workshops, seminars, classes, and conferences,
An ADA telephone information line, and
Access to ADA documents through an electronic bulletin board for users of personal
computers.

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The Department has established a comprehensive program of technical assistance relating to public
accommodations and State and local governments.
Grants will be awarded for projects to inform individuals with disabilities and covered
entities about their rights and responsibilities under the ADA and to facilitate voluntary
compliance.
The Department will issue a technical assistance manual by January 26, 1992, for
individuals or entities with rights or duties under the ADA.
For additional information, contact:
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division
Disability Rights Section, NYAV
Washington, D.C 20035-6738
(800) 514-0301 (Voice)
(800) 514-0383 (TDD)
www.ada.gov
last updated August 29, 2002

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Title III Highlights

NOTICE: ARCHIVED DOCUMENT
Portions of this document may not fully reflect the current ADA regulations. The regulation implementing title
III of the ADA was revised as recently as 2016. Revised ADA Standards for Accessible Design were issued on
September 15, 2010 and went into effect on March 15, 2012. This document is maintained for reference
purposes.
U.S. Department of Justice
Civil Rights Division
Disability Rights Section

Title III Highlights
I. Who is covered by title III of the ADA
II. Overview of Requirements
III. "Individuals with Disabilities"
IV. Eligibility for Goods and Services
V. Modifications in Policies, Practices, and Procedures
VI. Auxiliary Aids
VII. Existing Facilities: Removal of Barriers
VIII. Existing Facilities: Alternatives to Barrier Removal
IX. New Construction
X. Alterations
XI. Overview of Americans with Disabilities Act Accessibility Guidelines
for New Construction and Alterations
XII. Examinations and Courses
XIII. Enforcement of the ADA and its Regulations
XIV. Technical Assistance

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I. Who is Covered by Title III of the ADA
The title III regulation covers -Public accommodations (i.e., private entities that own, operate, lease, or lease to places
of public accommodation),
Commercial facilities, and
Private entities that offer certain examinations and courses related to educational and
occupational certification.
Places of public accommodation include over five million private establishments, such as
restaurants, hotels, theaters, convention centers, retail stores, shopping centers, dry cleaners,
laundromats, pharmacies, doctors' offices, hospitals, museums, libraries, parks, zoos, amusement
parks, private schools, day care centers, health spas, and bowling alleys.
Commercial facilities are nonresidential facilities, including office buildings, factories, and
warehouses, whose operations affect commerce.
Entities controlled by religious organizations, including places of worship, are not covered.
Private clubs are not covered, except to the extent that the facilities of the private club are made
available to customers or patrons of a place of public accommodation.
State and local governments are not covered by the title III regulation, but rather by the Department
of Justice's title II regulation.

II. Overview of Requirements
Public accommodations must -Provide goods and services in an integrated setting, unless separate or different
measures are necessary to ensure equal opportunity.
Eliminate unnecessary eligibility standards or rules that deny individuals with
disabilities an equal opportunity to enjoy the goods and services of a place of public
accommodation.
Make reasonable modifications in policies, practices, and procedures that deny equal
access to individuals with disabilities, unless a fundamental alteration would result in
the nature of the goods and services provided.
Furnish auxiliary aids when necessary to ensure effective communication, unless an
undue burden or fundamental alteration would result.
Remove architectural and structural communication barriers in existing facilities where
readily achievable.
Provide readily achievable alternative measures when removal of barriers is not readily
achievable.
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Provide equivalent transportation services and purchase accessible vehicles in certain
circumstances.
Maintain accessible features of facilities and equipment.
Design and construct new facilities and, when undertaking alterations, alter existing
facilities in accordance with the Americans with Disabilities Act Accessibility
Guidelines issued by the Architectural and Transportation Barriers Compliance Board
and incorporated in the final Department of Justice title III regulation.
A public accommodation is not required to provide personal devices such as wheelchairs;
individually prescribed devices (e.g., prescription eyeglasses or hearing aids); or services of a
personal nature including assistance in eating, toileting, or dressing.
A public accommodation may not discriminate against an individual or entity because of the known
disability of a person with whom the individual or entity is known to associate.
Commercial facilities are only subject to the requirement that new construction and alterations
conform to the ADA Accessibility Guidelines. The other requirements applicable to public
accommodations listed above do not apply to commercial facilities.
Private entities offering certain examinations or courses (i.e., those related to applications, licensing,
certification, or credentialing for secondary or postsecondary education, professional, or trade
purposes) must offer them in an accessible place and manner or offer alternative accessible
arrangements.

III. "Individuals with Disabilities"
The Americans with Disabilities Act provides comprehensive civil rights protections for
"individuals with disabilities".
An individual with a disability is a person who -Has a physical or mental impairment that substantially limits one or more major life
activities, or
Has a record of such an impairment, or
Is regarded as having such an impairment.
Examples of physical or mental impairments include, but are not limited to, such contagious and
noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments;
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes,
mental retardation, emotional illness, specific learning disabilities, HIV disease (whether
symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism. Homosexuality and
bisexuality are not physical or mental impairments under the ADA.
"Major life activities" include functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
Individuals who currently engage in the illegal use of drugs are not protected by the ADA when an
action is taken on the basis of their current illegal use of drugs.
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IV. Eligibility for Goods and Services
In providing goods and services, a public accommodation may not use eligibility requirements that
exclude or segregate individuals with disabilities, unless the requirements are necessary for the
operation of the public accommodation.
For example, excluding individuals with cerebral palsy from a movie theater or
restricting individuals with Down's Syndrome to only certain areas of a restaurant
would violate the regulation.
Requirements that tend to screen out individuals with disabilities, such as requiring a blind person to
produce a driver's license as the sole means of identification for cashing a check, are also prohibited.
Safety requirements may be imposed only if they are necessary for the safe operation of a place of
public accommodation. They must be based on actual risks and not on mere speculation,
stereotypes, or generalizations about individuals with disabilities.
For example, an amusement park may impose height requirements for certain rides
when required for safety.
Extra charges may not be imposed on individuals with disabilities to cover the costs of measures
necessary to ensure nondiscriminatory treatment, such as removing barriers or providing qualified
interpreters.

V. Modifications in Policies, Practices, and Procedures
A public accommodation must make reasonable modifications in its policies, practices, and
procedures in order to accommodate individuals with disabilities.
A modification is not required if it would "fundamentally alter" the goods, services, or operations of
the public accommodation.
For example, a department store may need to modify a policy of only permitting one
person at a time in a dressing room if an individual with mental retardation needs the
assistance of a companion in dressing.
Modifications in existing practices generally must be made to permit the use of guide dogs and
other service animals.
Specialists are not required to provide services outside of their legitimate areas of specialization.
For example, a doctor who specializes exclusively in burn treatment may refer an
individual with a disability, who is not seeking burn treatment, to another provider. A
burn specialist, however, could not refuse to provide burn treatment to, for example, an
individual with HIV disease.

VI. Auxiliary Aids
A public accommodation must provide auxiliary aids and services when they are necessary to
ensure effective communication with individuals with hearing, vision, or speech impairments.
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"Auxiliary aids" include such services or devices as qualified interpreters, assistive listening
headsets, television captioning and decoders, telecommunications devices for deaf persons (TDD's),
videotext displays, readers, taped texts, brailled materials, and large print materials.
The auxiliary aid requirement is flexible. For example, a brailled menu is not required, if waiters are
instructed to read the menu to blind customers.
Auxiliary aids that would result in an undue burden, (i.e., "significant difficulty or expense") or in a
fundamental alteration in the nature of the goods or services are not required by the regulation.
However, a public accommodation must still furnish another auxiliary aid, if available, that does not
result in a fundamental alteration or an undue burden.

VII. Existing Facilities: Removal of Barriers
Physical barriers to entering and using existing facilities must be removed when "readily
achievable."
Readily achievable means "easily accomplishable and able to be carried out without much difficulty
or expense."
What is readily achievable will be determined on a case-by-case basis in light of the resources
available.
The regulation does not require the rearrangement of temporary or movable structures,
such as furniture, equipment, and display racks to the extent that it would result in a
significant loss of selling or serving space.
Legitimate safety requirements may be considered in determining what is readily
achievable so long as they are based on actual risks and are necessary for safe
operation.
Examples of barrier removal measures include -Installing ramps,
Making curb cuts at sidewalks and entrances,
Rearranging tables, chairs, vending machines, display racks, and other furniture,
Widening doorways,
Installing grab bars in toilet stalls, and
Adding raised letters or braille to elevator control buttons.
First priority should be given to measures that will enable individuals with disabilities to "get in the
front door," followed by measures to provide access to areas providing goods and services.
Barrier removal measures must comply, when readily achievable, with the alterations requirements
of the ADA Accessibility Guidelines. If compliance with the Guidelines is not readily achievable,
other safe, readily achievable measures must be taken, such as installation of a slightly narrower
door than would be required by the Guidelines.
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VIII. Existing Facilities: Alternatives to Barrier Removal
The ADA requires the removal of physical barriers, such as stairs, if it is "readily achievable."
However, if removal is not readily achievable, alternative steps must be taken to make goods and
services accessible.
Examples of alternative measures include -Providing goods and services at the door, sidewalk, or curb,
Providing home delivery,
Retrieving merchandise from inaccessible shelves or racks,
Relocating activities to accessible locations.
Extra charges may not be imposed on individuals with disabilities to cover the costs of measures
used as alternatives to barrier removal. For example, a restaurant may not charge a wheelchair user
extra for home delivery when it is provided as the alternative to barrier removal.

IX. New Construction
All newly constructed places of public accommodation and commercial facilities must be accessible
to individuals with disabilities to the extent that it is not structurally impracticable.
The new construction requirements apply to any facility occupied after January 26, 1993, for which
the last application for a building permit or permit extension is certified as complete after January
26, 1992.
Full compliance will be considered "structurally impracticable" only in those rare circumstances
when the unique characteristics of terrain prevent the incorporation of accessibility features (e.g.,
marshland that requires construction on stilts).
The architectural standards for accessibility in new construction are contained in the ADA
Accessibility Guidelines issued by the Architectural and Transportation Barriers Compliance Board,
an independent Federal agency. These standards are incorporated in the final Department of Justice
title III regulation.
Elevators are not required in facilities under three stories or with fewer than 3,000 square feet per
floor, unless the building is a shopping center, shopping mall, professional office of a health care
provider, or station used for public transportation.

X. Alterations
Alterations after January 26, 1992, to existing places of public accommodation and commercial
facilities must be accessible to the maximum extent feasible.
The architectural standards for accessibility in alterations are contained in the ADA Accessibility
Guidelines issued by the Architectural and Transportation Barriers Compliance Board. These
standards are incorporated in the final Department of Justice title III regulation.
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An alteration is a change that affects usability of a facility. For example, if during remodeling,
renovation, or restoration, a doorway is being relocated, the new doorway must be wide enough to
meet the requirements of the ADA Accessibility Guidelines.
When alterations are made to a "primary function area", such as the lobby or work areas of a bank,
an accessible path of travel to the altered area, and the bathrooms, telephones, and drinking
fountains serving that area, must be made accessible to the extent that the added accessibility costs
are not disproportionate to the overall cost of the original alteration.
Alterations to windows, hardware, controls, electrical outlets, and signage in primary
function areas do not trigger the path of travel requirement.
The added accessibility costs are disproportionate if they exceed 20 percent of the
original alteration.
Elevators are not required in facilities under three stories or with fewer than 3,000 square feet per
floor, unless the building is a shopping center, shopping mall, professional office of a health care
provider, or station used for public transportation.

XI. Overview of Americans with Disabilities Act Accessibility Guidelines for New
Construction and Alterations
New construction and alterations must be accessible in compliance with the ADA Accessibility
Guidelines.
The Guidelines contain general design ("technical") standards for building and site elements, such
as parking, accessible routes, ramps, stairs, elevators, doors, entrances, drinking fountains,
bathrooms, controls and operating mechanisms, storage areas, alarms, signage, telephones, fixed
seating and tables, assembly areas, automated teller machines, and dressing rooms. They also have
specific technical standards for restaurants, medical care facilities, mercantile facilities, libraries,
and transient lodging (such as hotels and shelters).
The Guidelines also contain "scoping" requirements for various elements (i.e., it specifies how
many, and under what circumstances, accessibility features must be incorporated).
Following are examples of scoping requirements in new construction -At least 50 percent of all public entrances must be accessible. In addition, there must be
accessible entrances to enclosed parking, pedestrian tunnels, and elevated walkways.
An accessible route must connect accessible public transportation stops, parking spaces,
passenger loading zones, and public streets or sidewalks to all accessible features and
spaces within a building.
Every public and common use bathroom must be accessible. Only one stall must be
accessible, unless there are six or more stalls, in which case two stalls must be
accessible (one of which must be of an alternate, narrow-style design).
Each floor in a building without a supervised sprinkler system must contain an "area of
rescue assistance" (i.e., an area with direct access to an exit stairway where people
unable to use stairs may await assistance during an emergency evacuation).
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One TDD must be provided inside any building that has four or more public pay
telephones, counting both interior and exterior phones. In addition, one TDD must be
provided whenever there is an interior public pay phone in a stadium or arena;
convention center; hotel with a convention center; covered shopping mall; or hospital
emergency, recovery, or waiting room.
One accessible public phone must be provided for each floor, unless the floor has two
or more banks of phones, in which case there must be one accessible phone for each
bank.
Fixed seating assembly areas that accommodate 50 or more people or have audioamplification systems must have a permanently installed assistive listening system.
Dispersal of wheelchair seating in theaters is required where there are more than 300
seats. In addition, at least one percent of all fixed seats must be aisle seats without
armrests (or with movable armrests). Fixed seating for companions must be located
adjacent to each wheelchair location.
Where automated teller machines are provided, at least one must be accessible.
Five percent of fitting and dressing rooms (but never less than one) must be accessible.
Following are examples of specific scoping requirements for new construction of special types of
facilities, such as restaurants, medical care facilities, mercantile establishments, libraries, and hotels
-In restaurants, generally all dining areas and five percent of fixed tables (but not less
than one) must be accessible.
In medical care facilities, all public and common use areas must be accessible. In
general purpose hospitals and in psychiatric and detoxification facilities, ten percent of
patient bedrooms and toilets must be accessible. The required percentage is 100 percent
for special facilities treating conditions that affect mobility, and 50 percent for longterm care facilities and nursing homes.
In mercantile establishments, at least one of each type of counter containing a cash
register and at least one of each design of check-out aisle must be accessible. In some
cases, additional check-out aisles are required to be accessible (i.e., from 20 to 40
percent) depending on the number of check-out aisles and the size of the facility.
In libraries, all public areas must be accessible. In addition, five percent of fixed tables
or study carrels (or at least one) must be accessible. At least one lane at the check-out
area and aisles between card catalogs, magazine displays, and stacks must be
accessible.
In hotels, four percent of the first 100 rooms and approximately two percent of rooms
in excess of 100 must be accessible to persons with hearing impairments (i.e., contain
visual alarms, visual notification devices, volume-control telephones, and an accessible
electrical outlet for a TDD) and to persons with mobility impairments. Moreover, an
identical percentage of additional rooms must be accessible to persons with hearing
impairments.
Technical and scoping requirements for alterations are sometimes less stringent than
those for new construction. For example, when compliance with the new construction
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requirements would be technically infeasible, one accessible unisex bathroom per floor
is acceptable.

XII. Examinations and Courses
Certain examinations or courses offered by a private entity (i.e., those that are related to
applications, licensing, certification, or credentialing for secondary or postsecondary education,
professional, or trade purposes) must either be given in a place and manner accessible to persons
with disabilities, or be made accessible through alternative means.
In order to provide an examination in an accessible place and manner, a private entity must -Assure that the examination measures what it is intended to measure, rather than
reflecting the individual's impaired sensory, manual, or speaking skills.
Modify the examination format when necessary (e.g., permit additional time).
Provide auxiliary aids (e.g., taped exams, interpreters, large print answer sheets, or
qualified readers), unless they would fundamentally alter the measurement of the skills
or knowledge that the examination is intended to test or would result in an undue
burden.
Offer any modified examination at an equally convenient location, as often, and in as
timely a manner as are other examinations.
Administer examinations in a facility that is accessible or provide alternative
comparable arrangements, such as providing the examination at an individual's home
with a proctor.
In order to provide a course in an accessible place and manner, a private entity may need to -Modify the course format or requirements (e.g., permit additional time for completion
of the course).
Provide auxiliary aids, unless a fundamental alteration or undue burden would result.
Administer the course in a facility that is accessible or provide alternative comparable
arrangements, such as provision of the course through video tape, audio cassettes, or
prepared notes.

XIII. Enforcement of the ADA and its Regulations
Private parties may bring lawsuits to obtain court orders to stop discrimination. No monetary
damages will be available in such suits. A reasonable attorney's fee, however, may be awarded.
Individuals may also file complaints with the Attorney General who is authorized to bring lawsuits
in cases of general public importance or where a "pattern or practice" of discrimination is alleged.
In suits brought by the Attorney General, monetary damages (not including punitive damages) and
civil penalties may be awarded. Civil penalties may not exceed $50,000 for a first violation or
$100,000 for any subsequent violation.
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XIV. Technical Assistance
The ADA requires that the Federal agencies responsible for issuing ADA regulations provide
"technical assistance".
Technical assistance is the dissemination of information (either directly by the Department or
through grants and contracts) to assist the public, including individuals protected by the ADA and
entities covered by the ADA, in understanding the new law.
Methods of providing information include, for example, audio-visual materials, pamphlets, manuals,
electronic bulletin boards, checklists, and training.
The Department issued for public comment on December 5, 1990, a government-wide plan for the
provision of technical assistance.
The Department's efforts focus on raising public awareness of the ADA by providing-Fact sheets and pamphlets in accessible formats,
Speakers for workshops, seminars, classes, and conferences,
An ADA telephone information line, and
Access to ADA documents through an electronic bulletin board for users of personal
computers.
The Department has established a comprehensive program of technical assistance relating to public
accommodations and State and local governments.
Grants will be awarded for projects to inform individuals with disabilities and covered
entities about their rights and responsibilities under the ADA and to facilitate voluntary
compliance.
The Department will issue a technical assistance manual by January 26, 1992, for
individuals or entities with rights or duties under the ADA.
For additional information, contact:
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C 20035-6738
(800) 514-0301 (Voice)
(800) 514-0383 (TDD)
(202) 514-6193 (Electronic Bulletin Board)

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 Statement of the Department of Justice on Application of the Integration
Mandate of Title II of the Americans with Disabilities Act and Olmstead v.
L.C. to State and Local Governments’ Employment Service Systems for
Individuals with Disabilities
Nationally, millions of individuals with disabilities spend the majority of their daytime
hours receiving employment and day services in segregated sheltered workshops and segregated
day settings (including day treatment programs or facility-based day habilitation centers) where
they are segregated from non-disabled persons. Many of these individuals are capable of working
competitively and earning minimum wage or above in integrated employment and are not
opposed to doing so, but they have been unable to access the services and supports that would
allow them to find, obtain, and succeed in competitive integrated employment. In the
approximately seventeen years since the Supreme Court’s decision in Olmstead v. L.C. ex rel.
Zimring, 527 U.S. 581 (1999), regarding the integration mandate of Title II of the Americans
with Disabilities Act (ADA), some state and local service systems have begun to provide a
greater number of integrated community alternatives to individuals in or at risk of segregation in
institutions or other segregated settings; yet, despite these advances, many individuals with
disabilities who receive employment and day services that are planned, funded, and administered
by state and local governments continue unnecessarily to receive services, and spend the
majority of their daytime hours, in segregated settings.
A core purpose of the ADA is to “assure equality of opportunity, full participation,
independent living, and economic self-sufficiency” for individuals with disabilities. 1 The
integration mandate of Title II of the ADA is intended to allow individuals with disabilities to
live integrated lives like individuals without disabilities, including by working, earning a living,
and paying taxes. The civil rights of persons with disabilities, including individuals with mental
illness, intellectual or developmental disabilities, or physical disabilities, are violated by
unnecessary segregation in a wide variety of settings, including in segregated employment,
vocational, and day programs.
Since the passage of the ADA and the Supreme Court’s decision in Olmstead, the ADA’s
Title II integration mandate has been applied in a variety of contexts. The ADA’s integration
mandate applies to all the services, programs, and activities of state and local governments,
including their employment service systems. 2 This guide discusses and explains the requirements
of the ADA integration mandate and Olmstead as applied to employment service systems for
individuals with disabilities. It complements and supplements, but does not supersede, the

1

42 U.S.C. § 12101(a)(7) (2009).

2

Id. §§ 12131(1), 12132; 28 C.F.R. § 35.130(d) (2016); Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210-11 (1998);
Lane v. Kitzhaber, 841 F. Supp. 2d 1199, 1205-06 (D. Or. 2012) (holding that the ADA’s integration mandate
extends to employment services and prohibits the unnecessary segregation, and risk of unnecessary segregation, of
persons with disabilities in sheltered workshops).

1

 “Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of
the Americans with Disabilities Act and Olmstead v. L.C.” (June 22, 2011). 3
Date: October 31, 2016
The ADA and Its Integration Mandate
In 1990, Congress enacted the ADA “to provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with disabilities.” 4 In passing
the ADA, Congress recognized that “historically, society has tended to isolate and segregate
individuals with disabilities, and, despite some improvements, such forms of discrimination
against individuals with disabilities continue to be a serious and pervasive social problem.” 5
Therefore, the ADA and its Title II regulations require public entities to “administer services,
programs, and activities in the most integrated setting appropriate to the needs of qualified
individuals with disabilities.” 6 The preamble to the “integration mandate” regulation explains
that “the most integrated setting” is one that “enables individuals with disabilities to interact with
nondisabled persons to the fullest extent possible . . . .” 7
In Olmstead, the Supreme Court, interpreting the ADA and its integration mandate, held
that Title II prohibits the unjustified segregation of individuals with disabilities. The Supreme
Court held that public entities are required to provide community-based services to persons with
disabilities when (a) such services are appropriate; (b) the affected persons do not oppose
community-based treatment; and (c) community-based services can be reasonably
accommodated, taking into account the resources available to the entity and the needs of others
who receive disability services from the entity. 8
To comply with the ADA’s integration mandate, public entities must reasonably modify
their policies, procedures, or practices when necessary to avoid discrimination. 9 The obligation
3

A State’s obligations under the ADA are independent from the requirements of the Medicaid Act, including the
requirements of the Home and Community Based Services regulations, 70 Fed. Reg. 2947, 3039 (Jan. 16, 2014)
(codified at 42 C.F.R. §§ 440-47); see also “Statement of the Department of Justice on Enforcement of the
Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.” (June 22, 2011),
Question 7 (discussing the interplay between the requirements of Title II of the ADA and the Medicaid Act).

4

42 U.S.C. § 12101(b)(1). Section 504 of the Rehabilitation Act of 1973 similarly prohibits disability-based
discrimination. 29 U.S.C § 794(a) (“No otherwise qualified individual with a disability . . . shall, solely by reason of
her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance . . . .”). Claims under the ADA
and the Rehabilitation Act are generally treated identically.

5

42 U.S.C. § 12101(a)(2).

6

28 C.F.R. § 35.130(d) (the “integration mandate”).

7

28 C.F.R. pt. 35, app. B (addressing § 35.130(d)).

8

Olmstead, 527 U.S. at 607.

9

28 C.F.R. § 35.130(b)(7).

2

 to make reasonable modifications may be excused only where the public entity demonstrates that
the requested modifications would “fundamentally alter” its service system. 10
State and Local Governments’ Employment Service Systems
Employment service systems typically include services and supports that are available
through multiple state agencies and funding streams, including vocational rehabilitation,
Medicaid, and educational (e.g., youth transition services) service systems. Employment service
systems may include a range of service settings, including sheltered workshops; supported
employment services provided in competitive, integrated employment; small group or enclave
employment; facility-based day programs; and integrated day services provided in typical
community settings. 11

Questions and Answers on the Application of the ADA’s Integration Mandate
and Olmstead v. L.C. to State and Local Governments’ Employment Service
Systems
1. What is the ADA’s Title II integration mandate, and how does it apply
to state and local governments’ employment service systems?
The ADA’s integration mandate requires public entities to “administer services, programs, and
activities in the most integrated setting appropriate to the needs of qualified individuals with
disabilities.” 12 Accordingly, public entities must reasonably modify their policies, procedures, or
practices when necessary to avoid discrimination, unless the entity can demonstrate that making
the modifications would fundamentally alter the nature of the service, program, or activity. 13
The integration mandate is implicated when a state or local government administers the services,
programs, and activities of its employment service system in a manner that results in unjustified
segregation of persons with disabilities in segregated employment settings. 14 A public entity may
10

Id.; see also Olmstead, 527 U.S. at 603-07.

11

See, e.g., U.S. DEP’T OF HEALTH AND HUMAN SERVS., CTR. FOR MEDICAID, CHIP AND SURVEY & CERTIFICATION,
CMCS INFORMATIONAL BULLETIN 5 (Sept. 16, 2011), available at https://www.medicaid.gov/federal-policyguidance/downloads/CIB-09-16-2011.pdf [https://perma.cc/8B8P-3EH5]; see also Settlement Agreement, United
States v. Rhode Island and the City of Providence, 1:13-cv-00442 (D.R.I. June 13, 2013); Consent Decree, United
States v. Rhode Island, 1:14-cv-00175 (D.R.I. April 9, 2014); Consent Decree, Lane v. Brown (formerly Lane v.
Kitzhaber), 12-cv-00138 (D. Or. Sept. 8, 2015), available at https://www.ada.gov/olmstead/olmstead_
enforcement.htm.
12

28 C.F.R. § 35.130(d).

13

Id. § 35.130(b)(7)(i) (“A public entity shall make reasonable modifications in policies, practices, or procedures
when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can
demonstrate that making the modifications would fundamentally alter the nature of the service, program, or
activity.”).

14

This guidance addresses the obligations of state and local governments under Title II of the ADA. Title I of the
ADA covers public and private employers’ nondiscrimination obligations toward individuals with disabilities. Title

3

 violate the ADA’s integration mandate when it plans, administers, operates, funds, or
implements its employment service system in a way that unnecessarily relies on segregated
employment facilities or programs for individuals with disabilities. This includes the public
entity’s planning, service system design, funding choices, and service implementation practices
that require or promote segregated employment settings for persons with disabilities. 15

2. What is the most integrated setting under the ADA and Olmstead in the
context of a state and local government’s employment service system?
The “most integrated setting” is “a setting that enables individuals with disabilities to interact
with nondisabled persons to the fullest extent possible.” 16 In the employment services context,
state and local employment service systems provide services and supports that allow people with
disabilities to work. Providing those services in an integrated setting enables an individual with a
disability to work in a typical job in the community like individuals without disabilities. Such
settings are commonly referred to as competitive integrated employment settings. 17 An example
of a competitive integrated employment setting is work on a full- or part-time basis, at minimum
wage or above, at a location where the employee interacts with individuals without disabilities
and has access to the same opportunities for benefits and advancement provided to non-disabled
workers.
By contrast, segregated settings include settings that are managed, operated, or licensed by a
service provider to serve primarily people with disabilities or whose workers are exclusively or
primarily individuals with disabilities who are supervised by paid support staff. 18 Employment
III of the ADA covers the nondiscrimination obligations of public accommodations, including private providers of
goods and services to people with disabilities.
15

See 28 C.F.R. § 35.130(b)(1) (prohibiting a public entity from discriminating “directly or through contractual,
licensing or other arrangements, on the basis of disability”); id. § 35.130(b)(3)(i) (prohibiting a public entity from
“directly or through contractual or other arrangements . . . utiliz[ing] criteria or methods of administration . . . [t]hat
have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability”).

16

28 C.F.R. pt. 35, app. B.

17

“Competitive Integrated Employment,” consistent with the federal Workforce Innovation and Opportunity Act
(WIOA), means work that is performed on a full-time or part-time basis (including self-employment): (a) For which
an individual is compensated at a rate that: (1) Meets or exceeds state or local minimum wage requirements,
whichever is higher; and (2) Is not less than the customary rate paid by the employer for the same or similar work
performed by other employees who are not individuals with disabilities, and who are similarly situated in similar
occupations by the same employer and who have similar training, experience, and skills; or (3) In the case of an
individual who is self-employed, yields an income that is comparable to the income received by other individuals
who are not individuals with disabilities, and who are self-employed in similar occupations or on similar tasks and
who have similar training experience, and skills; and (b) For which an individual is eligible for the level of benefits
provided to other employees; and (c) Which is at a location where the employee interacts with other persons who are
not individuals with disabilities (not including supervisory personnel or individuals who are providing services to
such employee) to the same extent that individuals who are not individuals with disabilities and who are in
comparable positions interact with other persons; and (d) Which, as appropriate, presents opportunities for
advancement that are similar to those for other employees who are not individuals with disabilities and who have
similar positions. See WIOA, Pub. L. No. 113-128, 128 Stat. 1425, 1633-34 (2014).

18

See Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 198-216 (E.D.N.Y. 2009) (describing
characteristics of institutions to include, inter alia, large numbers of individuals with disabilities congregated

4

 services provided to a person with a disability performing work tasks in a sheltered workshop, 19
or to groups of employees with disabilities who routinely work in isolation from non-disabled
peers or coworkers or who do not interact with customers or the general public in a manner
similar to workers without disabilities performing similar duties, are examples of services
provided in a segregated employment setting.

3. How can state and local governments’ employment service systems
ensure that people with disabilities have access to competitive integrated
employment?
Over the past three decades, integrated supported employment services have emerged as a
leading model for enabling persons with disabilities to work in competitive integrated
employment settings. Supported employment can include various services based on the
individualized needs of workers with disabilities to support their entrance into and ongoing
sustainability in competitive integrated employment. 20
Research on supported employment services has yielded best practices for ensuring that
individuals with disabilities are able to engage in employment in the most integrated setting
appropriate, including ensuring that employment services are individualized, sufficiently intense
and of sufficient duration, provided in integrated settings, and designed to achieve competitive
integrated employment. 21
together with few opportunities to interact with individuals outside of the institution), vacated on other grounds sub
nom. Disability Advocates, Inc. v. N.Y. Coal. for Quality Assisted Living, Inc., 675 F.3d 149 (2d Cir. 2012); see also
id. at 223-24 (“Whether a particular setting is an institution is nonetheless a relevant consideration in determining
whether it enables interactions with nondisabled persons to the fullest extent possible. It is clear that, ‘where
appropriate for the patient, both the ADA and the [Rehabilitation Act] favor integrated, community-based treatment
over institutionalization.’ This echoes Olmstead’s recognition that ‘institutional placement of persons who can
handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are
incapable or unworthy of participating in community life . . . and institutional confinement severely diminishes
individuals’ everyday activities.’” (first quoting Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487, 491-92 (3d
Cir. 2004); then quoting Olmstead, 527 U.S. at 600)).
19

“Sheltered workshop” refers to a segregated facility where primarily or exclusively persons with disabilities
perform contract work or receive prevocational services. Sheltered workshops are usually center-based facilities that
possess institutional qualities in which persons with disabilities have little or no contact with non-disabled persons
besides paid staff. People with disabilities in sheltered workshops often earn wages that are well below minimum
wage.

20
“Supported Employment Services” refers to services that allow persons with disabilities to work in competitive
integrated employment. Such services may include person-centered employment planning, vocational assessments,
job development analysis, job placement, job training, job carving, job coaching, negotiation with prospective
employers, training and systematic instruction, benefits support, transportation, asset development, career
advancement services, and other workplace support services and ongoing supports.
21

See LEAD CENTER & U.S. DEP’T OF LABOR, OFFICE OF DISABILITY EMP’T POLICY (“ODEP”), EMPLOYMENT
FIRST TECHNICAL BRIEF #3: CRITERIA FOR PERFORMANCE EXCELLENCE IN EMPLOYMENT FIRST STATE SYSTEMS
CHANGE & PROVIDER TRANSFORMATION 8-9 (2016), available at
http://employmentfirst.leadcenter.org/employment-first-resources/criteria-for-performance-excellence-inemployment-first-state-systems-change-provider-transformation [https://perma.cc/VT6U-Q226] [hereinafter ODEP
Technical Brief #3] (“ODEP encourages state governments to prioritize and financially incentivize the following
types of employment services and evidence-based effective practices that lead to competitive, integrated

5

 In assessing whether a state or local government’s employment services system appropriately
supports integration, an important factor to consider is whether the system has sufficient capacity
to enable people with disabilities to work in competitive integrated employment instead of in
segregated settings. 22
a.

Individualization of Services

The success of a person with a disability in competitive integrated employment often depends on
the individual “matching” of the person’s skills, abilities, and interests with both a set of services
and a job. Individualization of services is achieved through a process by which a person with a
disability identifies his or her particular interests, preferences, strengths, skills, and support needs
for the purpose of finding, obtaining, and maintaining employment. This process includes: 1)
assessments that evaluate the individual’s skills, strengths, and support needs in an integrated
setting; and 2) person-centered planning. 23 Individualization typically depends upon a career
development plan developed by a qualified employment professional who is familiar with how to
support people with disabilities in competitive integrated employment and how to connect a
person with a disability with employment opportunities identified in the local job market.
Employment professionals, like job developers and job coaches, typically match a person’s
distinct interests and capabilities with an employer’s unmet needs to create a strong job match
and a potential employment opportunity.
b.

Intensity and Duration of Services

In employment, people with disabilities are generally most successful in achieving integration to
the fullest extent possible when they receive the amount, intensity, and duration of services and
supports that will allow them to work in an integrated employment setting for the maximum
number of hours consistent with their preferences and skills. Supported employment services that
are provided in a sufficient amount, intensity, and duration are more likely to meet the
employment for individuals with disabilities: Competitive Placement . . . Customized Employment . . . Supported
Employment . . . Self-Employment . . . [and] Entrepreneurship or Small Business.”).
22

See, e.g., U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIV., TITLE II ADA INVESTIGATION OF THE CITY OF PROVIDENCE
REGARDING THE HAROLD A. BIRCH VOCATIONAL PROGRAM AT MOUNT PLEASANT HIGH SCHOOL (“United States v.
Rhode Island and City of Providence Letter of Findings”) (June 7, 2013); U.S. DEP’T OF JUSTICE, CIVIL RIGHTS
DIV., UNITED STATES’ TITLE II ADA INVESTIGATION OF EMPLOYMENT, VOCATIONAL, AND DAY SERVICES FOR
PERSONS WITH INTELLECTUAL AND DEVELOPMENTAL DISABILITIES IN RHODE ISLAND (“United States v. Rhode
Island Letter of Findings”) (January 6, 2014), available at
https://www.ada.gov/olmstead/olmstead_docs_list.htm#Letters of Findings [https://perma.cc/N962-HYLX]; U.S.
DEP’T OF JUSTICE, CIVIL RIGHTS DIV., UNITED STATES’ INVESTIGATION OF EMPLOYMENT AND VOCATIONAL
SERVICES FOR PERSONS WITH INTELLECTUAL AND DEVELOPMENTAL DISABILITIES IN OREGON PURSUANT TO THE
AMERICANS WITH DISABILITIES ACT (“Lane v. Brown (formerly Lane v. Kitzhaber) Letter of Findings”) (June 29,
2012), available at https://www.ada.gov/olmstead/olmstead_docs_list.htm#Letters of Findings
[https://perma.cc/N962-HYLX].
23

See U.S. DEP’T OF HEALTH AND HUMAN SERVS., SECTION 2402(A) OF THE AFFORDABLE CARE ACT – GUIDANCE
FOR IMPLEMENTING STANDARDS FOR PERSON-CENTERED PLANNING AND SELF-DIRECTION IN HOME AND
COMMUNITY-BASED SERVICES PROGRAMS 4-8 (June 6, 2014), available at
http://www.acl.gov/Programs/CIP/OCASD/docs/2402-a-Guidance.pdf [https://perma.cc/4J8S-W3KF].

6

 requirements of the integration mandate and will better prepare people with disabilities for
integrated employment in the long run. The type, amount, and intensity of someone’s services
may change over time, but such services should be provided for a sufficient duration to ensure
that the person can continue to succeed after initial job stabilization to avoid placing the person
at risk of unnecessary segregation. The need for such services and supports may fade over time
as individuals become accustomed to their employment and become connected with natural
supports, including supports provided by co-workers and peers. However, particularly at the
beginning of a job, it is important that supported employment services be provided in a manner
that meets a person’s needs.
Understanding the resource limitations inherent to public systems, employment service systems
may wish to consider how to design models that invoke promising practices to provide such
supports in the most integrated setting while rewarding outcomes and efforts made based on
individual need. Additionally, state and local government entities may assess, rebalance, and
redistribute their resources to emphasize the provision of employment services in the most
integrated setting appropriate.
c.

Access to Integration During Non-Work Hours

In addition to integrated supported employment services on the job, integration in non-work
services also supports the achievement of competitive integrated employment. Many states
administer day service programs in combination with employment services, and sometimes such
programs are co-located in facilities with sheltered workshops. The ADA’s integration mandate
applies to public entities’ day service programs. Individuals with disabilities should have access
to integrated ways to spend the hours when they are not working, such as chosen activities in the
community at times and frequencies and with persons of their choosing, and interacting to the
fullest extent possible with non-disabled peers instead of being relegated to services in
segregated settings. For instance, integrated day services allow persons with intellectual and
developmental disabilities to participate in and gain membership in mainstream communitybased recreational, social, educational, cultural, and athletic activities, including community
volunteer activities and training activities. Such integrated non-work activities can allow
individuals with disabilities to develop autonomy and self-determination, networks of contacts,
models, and mentors that assist in improving employment opportunities and outcomes.

4. What evidence may a person with a disability rely on to establish that
an integrated setting is appropriate for him or her?
A considerable body of professional research shows that people with significant disabilities can
work in integrated employment settings. 24 Moreover, numerous states have adopted Employment
First policies that instruct states’ disability service systems to prioritize supports in competitive
integrated employment for individuals with disabilities. 25 Such policies frequently include the
24

See ODEP, INTEGRATED EMPLOYMENT TOOLKIT, available at https://www.dol.gov/odep/ietoolkit/researchers.htm
[https://perma.cc/7PCU-NFLM].

25

See ODEP Technical Brief #3, supra note 21 at 3.

7

 directive that state systems must be driven by the presumption that individuals with disabilities
can work, and that not working should be the exception. 26 A person with a disability may rely
upon a variety of evidence to establish that an integrated employment setting is appropriate. As
the Department has previously stated, a reasonable, objective assessment by a public entity’s
treating professional is one, but only one, such avenue. 27 For example, a vocational rehabilitation
counselor or a state-funded caseworker may conduct a vocational assessment to identify
individuals’ needs and the services and supports necessary for them to succeed in an integrated
employment setting. A professional involved in the assessment should be knowledgeable about
the range of supports and services available in integrated employment settings. 28
However, the ADA and its regulations do not require a person with a disability to have a medical
or vocational rehabilitation professional determine that he or she is capable of competitive
integrated employment. A person with a disability can also present his or her own independent
evidence of the appropriateness of an integrated employment setting. Evidence of
appropriateness of competitive integrated employment may include, but is not limited to: 1)
people with similar needs are working in integrated settings with appropriate supports; 2) he or
she has formerly worked in an integrated employment setting; or 3) he or she currently performs
work in a sheltered workshop that demonstrates his or her capability to perform work in a
competitive integrated employment setting with the appropriate services and supports. This
evidence may come from a person’s employment service provider, from community-based
organizations that provide supported employment services, from former employers, from family
members and friends, or from any other relevant source. Limiting the evidence on which people
with disabilities may rely would enable public entities to circumvent their Olmstead obligations

26

Id.

27

See U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIV., STATEMENT OF THE DEPARTMENT OF JUSTICE ON ENFORCEMENT
OF THE INTEGRATION MANDATE OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT AND OLMSTEAD V. L.C.
(JUNE 22, 2011), available at https://www.ada.gov/olmstead/q&a_olmstead.htm [hereinafter Department of Justice
Statement], at Question 4; see also Day v. District of Columbia, 894 F. Supp. 2d 1, 23 (D.D.C. 2012) (“[A]lthough
the Court in Olmstead noted that a State ‘generally may rely on the reasonable assessments of its own professionals,’
. . . it did not hold that such a determination was required to state a claim. Since Olmstead, lower courts have
universally rejected the absolutist interpretation proposed by defendants” (quoting Olmstead, 527 U.S. at 602).)
(citing Frederick L. v. Dep’t of Pub. Welfare, 157 F. Supp. 2d 509, 539-40 (E.D. Pa. 2001) (denying defendants’
motion to dismiss Olmstead claims and rejecting the argument that Olmstead “require[s] a formal ‘recommendation’
for community placement”)); Disability Advocates, Inc., 653 F. Supp. 2d at 259 (requiring a determination by
treating professionals, who are contracted by the State, “would eviscerate the integration mandate” and “condemn
the placements of [individuals with disabilities in adult homes] to the virtually unreviewable discretion” of the State
and its contractors); Joseph S. v. Hogan, 561 F. Supp. 2d 280, 291 (E.D.N.Y. 2008) (“I reject defendants' argument
that Olmstead requires that the State’s mental health professionals be the ones to determine that an individual’s
needs may be met in a more integrated setting.”); Long v. Benson, No. 08-0026, 2008 WL 4571904, at *2 (N.D. Fla.
Oct. 14, 2008) (refusing to limit class to individuals whom state professionals deemed could be treated in the
community, because a State “cannot deny the [integration] right simply by refusing to acknowledge that the
individual could receive appropriate care in the community. Otherwise the right would, or at least could, become
wholly illusory”)).
28

Department of Justice Statement, supra note 27, at Question 4.

8

 by failing to require professionals to make recommendations regarding the ability of individuals
to be served in more integrated settings. 29

5. What factors are relevant in determining whether an individual does
not oppose receiving services in an integrated employment setting?
People with disabilities in or at risk of entering segregated employment settings must have the
opportunity to make an informed decision about whether to work in integrated employment
settings. Individuals who have been segregated in sheltered workshops have often been told that
they cannot work, frequently have been tracked away from competitive integrated employment
or steered to sheltered workshops directly from secondary school settings, have been absent from
the competitive labor market for long periods of time, or been given scant information about
supported employment services, integrated employment settings, or how individuals with
disabilities can work in jobs in the community. Consequently, individuals and their families may
hesitate to explore work in an integrated setting, or they may not ask for or be aware of
supported employment services. 30 Public entities that have traditionally relied on segregated
work settings should take affirmative steps to remedy this history and to ensure that individuals
have a real opportunity to make an informed choice to work in integrated settings. Affirmative
steps may include providing information about the benefits of working in integrated employment
settings; providing vocational and situational assessments, career development planning, and
discovery in integrated employment settings; arranging peer-to-peer mentoring; facilitating
visits, conducting job exploration, interest inventories, and work experiences in integrated job
settings; and providing benefits counseling, and access to benefits plans, to explain the impact of
competitive work on an individual’s public benefits.

6. Do the ADA and Olmstead apply to persons at serious risk of
segregation in sheltered workshops?
The ADA and the Olmstead decision extend to persons at serious risk of institutionalization and
segregation and are not limited to individuals currently in segregated settings. In the employment
context, this includes individuals at risk of unnecessary segregation in sheltered workshops.
Individuals need not wait until the harm of unnecessary segregation in a sheltered workshop
occurs to receive the protections of the ADA and Olmstead. For example, public entities,
including state and local education agencies, may be contributing to a pipeline to segregation if
vocational rehabilitation counselors, caseworkers, and other supports are not available to assist
youth with disabilities to prepare for and transition to competitive integrated employment.
Moreover, such public entities need to ensure that students with disabilities can make informed
choices prior to being referred for admission to sheltered workshops by, for example, offering
timely and adequate transition services designed to allow students to understand and experience
the benefits of work in an integrated setting. For instance, factors relevant to whether students
with disabilities are at risk of institutionalization include whether a school, as part of the school
29

Id.

30

See Lane v. Kitzhaber, 283 F.R.D. 587, 600 (D. Or. 2012) (“Due to their disability, many individuals with
[intellectual or developmental disabilities] may not ask for supported employment services because they are not
aware of them or because they are not aware that they have any choices as to services that they are entitled to
receive.”).

9

 curriculum, trains students with disabilities in tasks similar to those performed in sheltered
workshops; encourages students with disabilities to participate in sheltered workshops; and/or
routinely refers students to sheltered workshops as a postsecondary placement without offering
such students opportunities to experience integrated employment. In the adult context, people
with disabilities could show risk of segregation if a public entity systematically screens out
adults with significant disabilities from vocational rehabilitation services, finding such persons
“not competitively employable” because of their disability status, increasing the likelihood that
such persons would have to receive employment services in a sheltered workshop in order to
receive employment services at all.

7. What remedies address violations of the ADA’s integration mandate in
the context of disability employment systems?
In the employment services context, a wide range of remedies may be appropriate to address
violations of the ADA and Olmstead. The Department has entered into settlement agreements
that require states to expand the services and supports available in integrated employment
settings. This typically means expanding the variety, intensity, and duration of supported
employment services made available to allow people to work in competitive integrated
employment.
Various indicators of integration are relevant to Olmstead employment remedies, such as
individuals with disabilities’ interaction with non-disabled persons to the fullest extent possible,
and parity of hours, compensation, and benefits. The use of such criteria has been recognized as
an appropriate mechanism “to measure the success of the [remedial] employment services
offered” by a public entity, including whether such employment services have allowed
individuals to receive services in the most integrated setting appropriate. 31
For individuals to be integrated in a workplace, they should have an opportunity to interact
regularly and consistently with their non-disabled peers to the same extent as their non-disabled
coworkers. The amount of time spent working in these settings is an important criterion for
measuring the extent to which individuals are integrated in employment. Therefore, individuals
should be offered supported employment services to allow them to work in integrated settings for
the maximum number of hours consistent with their abilities and preferences. 32
Another factor considered in assessing whether employment services are effective in allowing
individuals with disabilities to be integrated to the fullest extent possible with non-disabled peers
is whether they participate equally in the customary benefits of the employment setting. For
example, individuals with disabilities in integrated employment settings should be compensated
roughly equally to their nondisabled peers performing the same job. 33 They should have the
31

Lane v. Kitzhaber, No. 3:12-cv-00138 –ST, 2013 WL 6798470, at *2 (D. Or. Dec. 19, 2013).

32

It is important to note that the number of hours a person with a disability works in an integrated setting, not
necessarily the number of service hours provided, is most relevant to this inquiry.

33

Providing compensation and benefits to people with disabilities in an employment setting that are not equal to
those offered to peers without disabilities performing the same job may also violate Title I or Title III of the ADA or
other federal laws. Individual service provider entities, including sheltered workshops, have obligations not to
discriminate against individuals with disabilities. Title I of the ADA covers employers with 15 or more employees.

10

 same opportunities in the employment setting as their non-disabled peers, including: (1) access to
the community at lunch, during breaks, or before and after the work day; (2) promotion and/or
advancement; (3) privacy, autonomy, and the ability to manage one’s schedule, work
assignments, or breaks; and (4) other employment benefits. In addition, whether the setting is
integrated with other community businesses and employers, and whether the work performed by
persons with disabilities is matched to individuals’ preferences, strengths, or particular support
needs (in contrast to “make-work” or simulated tasks that do not correspond to an authentic
business necessity or purpose), are also factors relevant to whether the services are effective in
integrating individuals with their non-disabled peers. 34
Employment service system remedies include system-wide capacity-building, transition, and
ongoing support, based on measurable goals, outcomes, and timelines. A public entity may need
to expand service providers’ capacity to offer supported employment services in integrated
employment settings. This may involve, among other things, changes to what services and
supports are approved, changes to rates to encourage community-based services, and adjustments
to caps or durational limits on services. It may also require assistance to existing segregated
employment service providers to help them to transition to community-based models.
In cases involving individuals currently in segregated sheltered workshops, remedies are
designed so that individuals can access the services and supports necessary to allow them to find,
obtain, retain, and advance in employment in integrated settings. In addition, individuals
currently segregated in sheltered workshops often need information about supported employment
services in integrated settings and about opportunities that will allow them to make informed
decisions about working in integrated employment (including meeting with persons who
formerly were in sheltered workshops and now are working in integrated employment; speaking
with community service providers; and visiting integrated job sites).
State and local school educational service systems may need to adjust expectations and
strengthen transition planning and support for students preparing to exit school and enter
employment. Upon deciding to move from a school or a segregated setting to an integrated
setting, students may need a variety of supports and services to adjust to the change. Even those
As such, Title I’s coverage can include individual service provider entities or sheltered workshops in their capacity
as private employers. Title I prohibits employers from discriminating on the basis of disability in job application
procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of
employment and requires reasonable accommodations. 42 U.S.C. § 12112 et seq. Also, under Title III of the ADA,
individuals with disabilities cannot be discriminated against on the basis of disability in the “full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42
U.S.C. § 12182(a). A “social service center establishment” is a place of public accommodation, 42 U.S.C. §
12181(7), and can include an individual service provider entity or a sheltered workshop. Accordingly, individual
service provider entities may also have obligations not to discriminate against their clients as places of public
accommodation under Title III of the ADA.
34

See ODEP Technical Brief #3, supra note 21, at 9 (stating that “ODEP encourages states to assure the use of
individualized supported employment services (SES) to facilitate competitive, integrated employment outcomes as
opposed to focusing on group supported employment options. To be clear, competitive, integrated employment, by
definition, does not include work crews, enclaves, social enterprise, or other forms of group employment”).

11

 who decide to remain in segregated placements require periodic follow-up support and in-reach
so that the option for work in competitive, integrated employment remains open to them.
Throughout the decision making and transition processes, individuals may need assurance that
services in the integrated setting will be sufficient, flexible, and lasting. To continue to avoid
unnecessary segregation for the long term, states addressing a history of segregated employment
should engage in affirmative efforts at system transformation.

8. What is an Olmstead Plan in the state and local government
employment service system context?
An Olmstead plan is a public entity’s plan for implementing its legal obligation to provide
services to individuals with disabilities in the most integrated setting appropriate. 35 To be legally
sufficient, a plan must be comprehensive and effectively working. 36 A plan is neither
comprehensive nor effectively working if it merely provides vague assurances of future
integrated options or describes the public entity’s general history of increased funding for
community services and decreasing institutional populations. 37 For example, in the employment
context, a public entity cannot rely merely on the number or amount of supported employment
services that it provides to people with disabilities, if the entity cannot demonstrate in what type
of settings those services are provided or the success of those services in moving individuals
from sheltered workshops to integrated employment settings.
To be comprehensive and effective, the plan must include concrete, reliable, and specific
commitments for, and a demonstrated success of, actually moving individuals from segregated
sheltered workshops or other segregated settings to integrated employment settings. 38 In
assessing an Olmstead plan for a state’s employment service system, the Department will
consider criteria such as the number of individuals who have transitioned from sheltered
workshops to work in competitive, integrated employment 39 with appropriate services and
supports, their tenure in integrated jobs, the number of hours that such persons work in
competitive integrated employment, and the number of individuals who remain in segregated
settings. The Department also considers a public entity’s adherence to integration criteria such as
interaction with non-disabled persons to the fullest extent possible and individualization of
services.
Any Olmstead plan should be evaluated in light of the length of time that has passed since the
Supreme Court’s decision in Olmstead, including a fact-specific inquiry into what the public
entity could have accomplished in the past, and what it could accomplish in the future to prevent
the unnecessary segregation of persons with disabilities. Any plan must address the concrete
steps that will be taken in the future and how the entity plans on sustaining those steps beyond
the scope of any litigation or legal challenge. Plans should include specific and reasonable
35

Department of Justice Statement, supra note 27, at Question 12.

36

Olmstead, 527 U.S. at 605-06.

37

Day, 894 F. Supp. 2d at 26.

38

Department of Justice Statement, supra note 27, at Question 12.

39

See WIOA Definition of “Competitive Integrated Employment,” supra note 17.

12

 timeframes for the employment of persons with disabilities in integrated employment settings;
measurable goals for which the public entity may be held accountable; and funding to support
the plan, which may come from reallocating existing service dollars.

9. Is the ADA limited to segregation in employment settings when the
same individuals are also subject to segregation in other settings during
the day, like facility-based day programs?
No. The ADA and the integration mandate have a broad reach; Title II of the ADA covers all
services, programs, and activities of state and local government entities. For example, the
integration mandate covers residential, employment, and day services provided by a state. If
individuals with disabilities are unnecessarily segregated in sheltered workshops for part of the
day and in segregated facility-based day programs for other parts of the day or week, such
persons may be unnecessarily segregated in both sheltered workshops and facility-based day
programs in violation of the ADA and Olmstead. It also violates the civil rights of individuals
with disabilities, under the ADA and Olmstead, when such persons are unnecessarily segregated
in facility-based day programs for all of their daytime hours.
Moreover, public entities cannot evade their Olmstead obligations by limiting access to one
segregated setting while moving individuals into a different segregated setting. 40 For example, a
state could not cease referrals of individuals with disabilities to sheltered workshops while
instead referring those individuals to facility-based day or other segregated day programs, or
transferring individuals out of the sheltered workshops and into the facility-based day programs
(a process known as trans-institutionalization or re-institutionalization), without providing access
to alternative services, programs, and activities in the most integrated setting appropriate.
Additional Resources
For more information about the ADA, you may call the DOJ’s toll-free ADA information line at
800-514-0301 or 800-514-0383 (TDD), or access its ADA website at www.ada.gov. For more
information about DOJ’s enforcement of the integration mandate of Title II of the ADA, please
visit www.ada.gov/Olmstead.
Information regarding disability employment-related policies and practices can be found at:
www.dol.gov/odep/
Questions regarding the use of Medicaid funding for supported employment and states’
obligations under the Medicaid Act should be directed to the Centers for Medicaid and Medicare
Services.

40

See, e.g., Olmstead, 527 U.S. at 605 (“Nor is it the ADA’s mission to drive States to move institutionalized
patients into an inappropriate setting, such as a homeless shelter . . .”).

13