# 31 III-1.2000 II-1.

3000 August 20, 1992

The Honorable Tom Harkin United States Senate 531 Senate Hart Building Washington, D.C. 20510-6025 Dear Senator Harkin: This letter is in response to your inquiry on behalf of your constituent, Lynn Ferrell, who seeks information about the application of the Americans with Disabilities Act (ADA) to a privately owned social services organization providing small group homes for persons with mental disabilities. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist your constituent in understanding the ADA's requirements. However, it does not constitute a legal interpretation and it is not binding on the Department. According to Ms. Ferrell's description, Polk County Health Services (PCHS) plans to house persons with mental disabilities in small group homes, located in existing houses that it will purchase. PCHS has informed us that it is a private non-profit organization. At present, the organization plans to make six out of its nine homes accessible because it has identified participants from six homes who will need wheelchair accessibility. Because of questions raised by the State of Iowa, Ms. Ferrell asks whether renovation of the six homes will satisfy ADA requirements. The requirements of title III of the ADA apply to a private entity operating a place of public accommodation. Title III defines a place of public accommodation as a facility that is

privately owned, affects commerce, and fits into one of twelve categories. Strictly residential facilities are not included in this list and are not covered by title III. If the PCHS homes are strictly residential, they will not be covered by title III of the ADA. The PCHS homes may, however, be covered by title III if they are social service center establishments. Facilities are considered social service center establishments under the ADA if they provide a significant level of such social services as medical care, meals, transportation, and counseling. Title III requires that a public accommodation remove architectural barriers to access to existing facilities where their removal is readily achievable. "Readily achievable" means easily accomplished and able to be done without significant difficulty or expense. If each group home is considered a social service center establishment, then title III requires that each one be made accessible to the extent that it is readily achievable to do so. Discussion of these provisions, including the factors to be considered, can be found at pages 35553-54 of the enclosed title III regulation, and at pages 28-32 of the enclosed Title III Technical Assistance Manual. Ms. Ferrell's letter describes the group homes as ICF/MR facilities. If so, they may be part of a State or local government program and may, as a result, have to consider accessibility issues because of this relationship. Title II of the ADA prohibits discrimination on the basis of disability by State and local governments. If the State of Iowa contracts with private entities for the provision of services, the State must ensure that the contract activities are carried out in a way consistent with the State's title II responsibilities. This principle is set out in sections 35.102(a) and 35.130(b) of the title II regulation and further explained in the preamble to the Department's regulation at page 35696 (first column). Title II and the regulation adopt the principles established under section 504 of the Rehabilitation Act of 1973, as amended, which applies to programs and activities receiving Federal financial assistance. If the PCHS group homes are part of a State program, your constituent should consider sections 35.149 and 35.150 of the title II regulation, which requires the provision of "program access," which means that the program, when viewed as a whole, must be accessible to qualified persons with disabilities. Achieving program access does not necessarily entail making all

facilities used in the program accessible. In addition, sections 35.130(d) and (e) require the government entity to administer services, programs, and activities in the most integrated setting appropropriate to the needs of qualified individuals with disabilities. Relevant information may also be found in {{ 35.130, 35.149, 35.150, and 35.151 of the enclosed title II regulation and {{ 36.104, 36.203, 36.304, 36.305, and 36.402 of the enclosed title III regulation. I hope this information is helpful to you in responding to your constituent. Sincerely,

John R. Dunne Assistant Attorney General Civil Rights Division

Enclosures (4)