OCT 12 1994

The Honorable Howell Heflin

United States Senate
Washington, D.C. 20510-0101
Dear Senator Heflin:

This letter is in response to your inquiry on behalf of

XX . The XX inquired as to whether
certain tax credits are available to dentists who participate in
a pilot program to provide home-based care to persons with
disabilities who are unable to leave their residences. These
dentists must acquire portable equipment for the program. They
would like to receive tax credits to offset the high cost of the
equipment. The XX have already directed their inquiry to
the Internal Revenue Service ("IRS"), who responded that the tax
credits are available only for expenses incurred in complying
with the Americans with Disabilities Act ("ADA"). The IRS was
unable to determine whether the proposed in-home services were
required by the ADA and so was unable to determine whether the
credit applied to expenses related to the in-home services.

The tax provision about which the XX inquire applies to

"Expenditures to Provide Access to Disabled Individuals" ("Access
Credit"). The Access Credit, established at 26 U.S.C. S 44,
allows an eligible small business1 to claim a credit worth up to
$5,000, to be reimbursed for fifty percent of certain
expenditures associated with meeting the requirements of the ADA.

"Eligible access expenditures" are costs incurred, inter

alia, to remove architectural barriers that would prevent a
facility from being accessible to, or usable by, persons with
disabilities, and to acquire or modify equipment or devices for
individuals with disabilities. 26 U.S.C. SS 44 (c)(1),
4 (c)(2)(A), 44 (c)(2)(D). Expenditures are eligible, however,
only to the extent that they are paid or incurred by an eligible
_______________________

1 A business is eligible for the Access Credit if, during

the preceding taxable year, it (a) had gross receipts not
exceeding $1,000,000, or (b) employed not more than 30 full-time
employees.

01-03467
 -2-
business "for the purpose of enabling such eligible small
business to comply with [the ADA]." 26 U.S.C. S 44 (c)(1). The
question underlying the XX inquiry, therefore, is whether
private dentists must purchase portable dental equipment and
offer in-home dental care to comply with the ADA. For the
reasons given below, only in limited circumstances can this
question be answered in the affirmative.

Generally, title III of the ADA prohibits public

accommodations, such as dentists and other health care providers,
from discriminating on the basis of disability. Please see the
enclosed title III regulation at sections 36.104 and 36.201,
pages 35594-95, for further discussion of this issue. This
prohibition of discrimination entails several specific
requirements, two of which are particularly relevant here.

First, public accommodations are required to remove

architectural barriers to accessibility if the barrier removal is
readily achievable, i.e. easily accomplished and able to be
carried out without much difficulty or expense. Please see the
enclosed title III regulation at section 36.304, page 35597.

Whether barrier removal is readily achievable depends on a

host of factors which include, but are not limited to, the nature
and cost of the action, the overall financial resources of the
site involved, the number of persons employed at the site, the
existence of a parent organization, and the type of activity
conducted at the site. The Department has declined to establish
any kind of numerical formula for determining whether an action
is readily achievable. Instead, the Department has approved a
flexible case-by-case balancing of the listed factors. Please
refer to the regulation at section 36.104, pages 35594 and 35553-
54, for further discussion.

Second, public accommodations are required to utilize

readily achievable alternatives to barrier removal when removal
of barriers is itself not readily achievable. Please refer to
the regulation at section 36.305, page 35598. For instance, if
it were not readily achievable for the owners of a drug store to
install a ramp to make the store accessible to people with
mobility impairments, they could satisfy their ADA obligations by
providing home delivery of prescription drugs and other items.
Please see the enclosed regulation at section 36.305, pages 35598
and 35570-71.
 Generally, the ADA does not require public accommodations to
provide home delivery services to their customers. However, as
the prescription drug example illustrates, public accommodations
may engage in home-based services as a readily achievable
alternative to removing existing architectural barriers at the
service providers' facility, when removing existing architectural
barriers at the facility is itself not readily achievable. While
01-03468

-3-

the ADA does not require dentists to purchase portable dental

equipment or to provide in-home dental care to persons with
disabilities, expenses related to in-home care may be eligible
for the Access Credit if they are incurred as a readily
achievable alternative to removing barriers at the dentists'
offices.

I have also enclosed this Department's Title III Technical

Assistance Manual which was written to guide individuals and
entities having rights and obligations under the Act toward a
fuller understanding of the law. Pertinent discussion is found
at page two (definition of a place of public accommodation),
pages 28-32 (readily achievable barrier removal), and pages 37-42
(readily achievable alternatives to barrier removal).

I hope this information is useful to you in responding to

your constituent.

Sincerely,

Deval L. Patrick
Assistant Attorney General
Civil Rights Division

Enclosures
01-03469
 July 17, 1994

The Honorable Howell Heflin

United States Senate
Washington, D.C.

Dear Senator Heflin,

I have been directed to your office by the IRS concerning

legislative definition about tax codes and credits covering the
removal of architectural barriers as defined under the Americans
with Disabilities Act tax advantages for compliance with the mandate
of the Act to seek to make available services for the entire
handicapped population.

The First District Dental Chapter of Mobile presided over this

year by Dr. Langly D.M.D. asked Dr. George Allen D.M.D. to begin
the process of organizing a Dental Access Program for the homebound
handicapped in our area. Dr. Allen contacted me and my husband as
interested consumers to participate in formulating a design for an
access program which would attempt to best address our community's
particular needs in this area of outreach.

As we have begun tackling this challenge to develop a dental

access program for our homebound handicapped, we have discovered that
purchasing the special portable equipment, incurring the maintenance
and management cost of this effort, and the calculated out of office
time required to reach the homebound handicapped with dental care is
an expense not specifically addressed or defined under the tax credits
allotted under the Americans with Disabilities Act for the removal
of architectural barriers.

For the homebound handicapped the home is the architectural

barrier which denies access to dental care. To remove this architect-
ural barrier for these handicapped citizens, home services must be
provided. In the case of dental care there is completely portable
dental equipment available capable of providing comprehensive dental
treatment to the homebound. With this portable dental equipment and
the service to attend a patient in the home, the architectural barrier
to this specific group of handicapped citizen is removed. This
certainly appears to comply with the intent of the Americans with
Disabilities Act under the provisions outlined regarding the removal
of architectural barriers. The IRS representative assigned my inquiry
regarding this matter conceded our position had merit and if only
under the intent of the Act might certainly qualify. But, because of
lack of legislative definition and prescription concerning the issue
of architectural barriers and the homebound, IRS would have to have
legislative determination. I was referred to my senior representative.

01-03470

According to IRS we need a few definitions:

1) What specifically constitutes the removal of architectural

barriers for the homebound handicapped with regard to
tax codes and credits as outlined under the Americans
with Disabilities Act?

2) What tax credits will apply for services rendered which

are provided in the home for the purpose of meeting the
specific needs of the homebound handicapped under the
tax incentives for removal of architectural barriers
as outlined in the Americans with Disabilities Act?

3) How will equipment be defined as necessary for the removal

of architectural barriers for the homebound handicapped
as mandated under the Americans with Disabilities Act?

In our own local effort we are finding that the reference to

'homebound handicapped' is a large umbrella which can eventually
include patients from many if not all disabling conditions, particular-
ly those which are by nature progressive.

Though our local dental chapter is being responsive to the

community's need for dental care for all its handicapped citizens
and all involved surely want this effort to be a success, it is to
be noted that not every dentist is necessarily eager to participate
in a program for the homebound handicapped. To provide care to this
special group of citizens can be time consuming reducing in office
opportunities for patients and income and costly in other areas of
supplies and equipment.
 We have many homebound citizens in our area and though our numbers
are not fully compiled, our Area Agency on Aging gives a rough
estimate of 500 to 600 homebound elderly and handicapped now receiving
some services through their agency alone. This, as you can see, is not
an insignificant number. And though not all of these citizens are
immediate candidates necessarily for homebound dental services, the
number is felt to be a reasonable reflection of the kind of large
numbers of patients who could ultimately benefit from homebound
dental care in some capacity. To have a few dentists trying to meet
such a load is a burden so great as to swamp this effort and doom
it to failure quickly. As an inducement to increase participation
in the effort and encourage all the dentists in our area to consider
providing homebound care for some patients, permitting dentists full
and fair use of tax credits offered under the already established
tax credits for the removal of architectural barriers might well provide
that balance and incentive to make participation cost effective.

One of the considerations mentioned by the IRS representative

was a concern that such tax credits would be more costly to the
public than cost effective. There are anecdotes to illustrate the
cost advantages of providing ongoing preventive dental care. The
mouth being a part of the body when left unattended simply does not
heal itself. Disease of teeth and gums usually becomes progressively
worse when untreated, and ultimately more than dental health can be
compromised.
01-03471
The ensuing health problems can often be of great expense to public
and private institutions, hospitals, private citizens and insurance
companies forced to pay for complex treatments which could have been
avoided had timely attention to the problem been available. All
information to which laypeople are privy seem to consistently prove
that prevention is indeed cheaper when bought by the ounce than
when the pound price is extracted for the cure.

If IRS is correct in its assessment of the tax law as it stands,

the special architectural barriers and considerations of the homebound
handicapped seem to have been utterly overlooked in the present
tax code, though stated in essense in the Americans with Disabilities
Act itself. This neglect is perhaps fostered by the reality of
the seclusion of the members of the homebound handicapped population
who cannot be physically present during debates and organizational
activities to let their unique limitations and restrictions be known.
Individual health issues of the homebound handicapped population
are carefully covered under the many banners provided for in the Act.
But when a citizen under any of these banners becomes homebound,
all become restricted by the same architectural barrier, the home
or place of residence. We truly feel we need the tax code to reflect
an awareness of this particular architectural barrier and open
the tax credits to include responsible and on-going efforts organized
beyond regular and standard business practices to meet the needs
of the homebound.

I hope this letter is satisfactory in explaining our request.

If not please call XX and we will try to do better. Thanks
so much for your help. We await hearing from your office on this
matter.

Sincerely,
XX

Mobile, AL XX

01-03472