# 85 III-1.2000 II-1.

3000 202-PL-184

June 15, 1993

David L. Rollison Texas Department of Mental Health and Mental Retardation San Antonio State School P.O. Box 14700, Harlandale Station San Antonio, Texas 78214-0700 Dear Mr. Rollison: This letter is in response to your inquiry about the application of the Americans With Disabilities Act (ADA) to group homes provided for persons with mental retardation. 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 you in understanding the ADA's requirements. However, it does not constitute a legal interpretation and it is not binding on the Department. Your letter states that your organization, an agency of the State of Texas, contracts with private citizens for placement of persons with mental retardation into their homes. You ask if these homes are considered places of public accommodation under the ADA, and, if so, what are the State's and owners' obligations to upgrade the accessibility of these homes. The ADA is implicated in your group home program in several respects. Title II prohibits discrimination on the basis of disability by State and local governments. Because your program involves a State agency contracting 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 enclosed title II regulation and further explained in the preamble to the regulation at page 35696. In existing facilities, title II requires the State to ensure "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 every facility used in the program accessible. Your agency, then, must ensure that its group homes program, but not necessarily each individual home, is accessible to persons with disabilities. One method of creating program access might be to determine the number of homes that should be made accessible based on past accessibility needs of applicants, residents, and their guests. Title II also requires the State to administer its services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. The homes themselves are not covered by title II. They would fall under title III if they fit into one of twelve categories of places of public accommodation listed in the Act. Strictly residential facilities are not included in this list and are not covered by title III. The homes would only be covered by title III if they are social service center establishments, i.e., if they provide a significant enough level of such social services as medical care, meals, transportation, and counseling. The homes would not be subject to title III if they provide simply a family-like living arrangement, without significant social services. Title III requires owners and operators to remove architectural barriers to access from existing places of public accommodation where their removal is readily achievable. "Readily achievable" means easily accomplishable 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 in whether a barrier is readily achievable to remove, can be found at pages 35553-35554 of the enclosed title III regulation, and at pages

28-32 of the enclosed title III Technical Assistance Manual. I hope this information has been helpful to you. Sincerely,

John L. Wodatch Chief Public Access Section Enclosures (4)