# 189 II-1.2000 II-5.1000 II-5.2000 II-5.

3000 DJ XXXXXXXXXXXXX April 8, 1996

Ms. Rhonda L. Daniels Senior Counsel National Association of Home Builders 1201 15th Street, N.W. Washington, D.C. 20005-2800 Dear Ms. Daniels: I am responding to your inquiry of January 19, 1995, on behalf of the National Association of Home Builders, regarding the application of the Americans with Disabilities Act of 1990 (ADA) to the home building industry. We apologize for the delay in responding to your letter. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that have rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the ADA's requirements. It does not, however, constitute a legal interpretation or advice, and it is not binding on the Department. Your letter notes that questions have arisen about the application of the ADA to housing "as a result of the proposed accessibility guidelines published by the Architectural and Transportation Barriers Compliance Board . . . . " Therefore, you have requested clarification of the ADA's requirements as they apply to residential construction. Specifically, you have asked the Department to declare: 1) that privately owned residential housing is not subject to title II of the ADA; 2) that only buildings for which a State or local government holds the title are subject to title II; and, 3) that sidewalks in residential areas are not subject to the cross slope requirements

contained in the Interim Final ADA Accessibility Guidelines. Title II of the ADA, 42 U.S.C. 12132, provides that [N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. departments, agencies, or instrumentalities of State and local governments are public entities subject to title II. Under these definitions, it is clear that only public entities and individuals acting on behalf of public entities have an obligation to comply with title II. Residential properties that are owned and operated by private entities as purely private residential properties are not within the scope of title II. However, when a State or local government establishes a program that involves providing housing to its residents, that public entity has the obligation to ensure that its program is operated in a non-discriminatory manner whether the program is provided directly by the public entity or through "contractual, licensing, or other arrangements." Because the ADA recognizes that public entities employ many different methods of operating their programs, the Department's regulations do not attempt to limit the types of arrangements that public entities may utilize to ensure effective delivery of programs or services. The regulation merely requires public entities to ensure that when public services or programs are provided through other entities those services or programs meet the same standard of accessibility that would be required if the public entity provided the service directly. 28 C.F.R. 35.130. In cases where funding is provided to a private entity to facilitate the operation of a State or local program, such accessibility is required. In addition, it should be noted that even if title II would not require a specific facility to be made accessible, a public entity may have the authority under State or local law to require the facility to be accessible. Your second assertion, that only buildings to which a public entity holds title should be subject to the ADA accessibility requirements is clearly inconsistent with title II and with the title II implementing regulation. Because title II prohibits discrimination in any program, service, or activity of a public

entity, the title II regulation (28 CFR 35.151(a)) requires [E]ach facility or part of a facility constructed by, on behalf of, or for the use of a public entity . . . ." (emphasis added) to be designed and constructed so that it is ". . . readily accessible to and useable by individuals with disabilities. A similar requirement applies to alterations to existing facilities that are commenced after January 26, 1992. 28 CFR ​ 35.151(b). Buildings and facilities covered by title II may be designed and constructed in accordance with either the Uniform Federal Accessibility Standards (UFAS) or the Americans with Disabilities Act Standards for Accessible Design (ADA Standards). 28 CFR 35.151(c). These requirements will remain in effect until this Department publishes a final regulation adopting new accessibility standards for title II entities. Finally, because sidewalks in residential areas are "facilities" within the meaning of the ADA, residential sidewalks that are constructed with the expectation that they will be turned over to the local government are required to be accessible to people with disabilities. As you know, the Access Board has published interim final guidelines that contain technical requirements applicable to public sidewalks. These requirements are the subject of a Notice of Proposed Rulemaking published by the Department, but they are not yet included in the Department's regulation. Therefore, compliance with the requirements of section 14 of the Access Board's Interim Final Rule is not required. Until this Department publishes a final regulation that establishes specific requirements for accessible public sidewalks, public entities may elect to meet their obligation to provide accessible sidewalks by using the technical provisions applicable to accessible exterior routes under the ADA Standards or UFAS, or they may follow any other accessibility standard in effect in their jurisdiction. In addition, public entities must provide curb ramps or other sloped areas at intersections between the pedestrian walkway and streets, roads, or highways. 28 CFR ​ 35.151(c) and (e). I hope that this information assists you to understand the responsibility of public entities to apply title II in the operation of their programs. Please be advised that to the extent that your letter raises issues with respect to the technical and scoping requirements for residential properties or

public rights of way contained in the notice of proposed rulemaking that was published by the Department in June 1994, we will consider your comments in our review of the responses to that notice. Both the Department and the Access Board are now completing the review of the proposed rule and making appropriate revisions. Your comments may be further addressed in the final publication of the rule. Sincerely,

John L. Wodatch Chief Disability Rights Section