OCT 28 1992 (b)(6) Dear Mr.

(b)(6: This letter is in response to your inquiry concerning the responsibilities of a private, non-profit organization that intends to build a foster care home for children under the Americans with Disabilities Act (ADA). 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. Senator Harkin has informed us that your organization, The Baptist Children's Home and Family Ministries, Inc. (BCH), is privately owned and non-profit, and is licensed by the State of Iowa. You further informed us that BCH has no affiliation with State or local government entities, other than its State license, and it receives no funding from Federal, State, or local government entities. Senator Harkin stated that you seek information about BCH's ADA responsibilities in building a foster home for eight children. This letter concerns BCH's responsibilities as a public accommodation under title III of the ADA. BCH may also have ADA obligations as an employer, under title I of the ADA. You may contact the Equal Employment Opportunity Commission at 1801 "L" Street, N.W., Washington, D.C. 20507, (800) 669-4000 for further information about BCH's title I obligations. Because BCH is a private organization and has no affiliation to State or local governmental entities, the applicable ADA provision is title III, which applies to private entities cc: Records; Chrono; Wodatch; Novich; McDowney; FOIA, MAF. :udd:novich:congress:harkin2. (b)(6) 01-01672

-2operating places 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. If the BCH home is strictly residential, is not covered by title III of the ADA. It will, however, be covered by title III if it provides a significant enough level of social services that it can be considered a social service center establishment. Social services in this context include, for example, medical care, meals, transportation, counseling, and social activities. You may consult the enclosed title III regulation, at pages 3555135552 for further discussion of social service center establishments. Even if the BCH home is a social service center establishment, title III will not apply if the home is controlled by a religious entity. Section 307 of the Act exempts religious or religiously controlled entities from their title III obligations, even where those entities operate facilities that would otherwise be covered as places of public accommodation. You informed us that BCH receives 80% of its funding from Baptist churches and individuals in those churches, and that the entire BCH Board of Directors is Baptist, including both pastors and laypersons from Baptist churches. Although we are unable to determine whether BCH would qualify for title III's religious exemption, funding sources and the composition of a board of directors are relevant factors in such a determination. You may consult section 36.102(e) at page 35593 of the enclosed title III regulations, with further discussion at page 35554, for explanation of the religious entity exemption. Please be aware that religious entities are not exempt from their responsibilities under title I. Therefore, if the foster care home BCH intends to build is a

social service center establishment, and if BCH is not religiously controlled, the BCH home would be subject to the title III requirements for new construction, found in section 303 of the ADA. Section 303 governs new construction of facilities for which: (a) the last application for a building permit or permit extension was certified to be complete after January 26, 1992; and (b) the first certificate of occupancy is issued after January 26, 1993. Section 303 requires that such facilities be designed and constructed to be readily accessible to and usable by individuals with disabilities. The effective dates and requirements for new construction can be found in section 36.401 of the enclosed title III regulation, at pages 35599-35600, with further discussion at pages 35574-35580. A facility will be considered readily accessible and usable if it is designed and constructed in strict compliance with the technical specifications found in the Americans with Disabilities Act Accessibility Guidelines, which are appended to the enclosed title III regulation, beginning at page 35605. 01-01673 -3Once the BCH home is built and operational, it must comply with section 302 of the ADA, which prohibits discrimination on the basis of disability in existing facilities. Pursuant to that section, the BCH home must: (a) eliminate discriminatory eligibility criteria for the home's participants; (b) make reasonable modifications to discriminatory policies, practices, and procedures; (c) provide auxiliary aids and services when necessary for effective communication with participants with disabilities; and (d) remove architectural barriers to access where such removal is readily achievable. Please consult Subparts B and C of the enclosed title III regulation, at pages 35595-35599, with further discussion at pages 35555-35574, for explanation of the ADA responsibilities for existing facilities. I hope this information is helpful to you. Sincerely, John L. Wodatch Chief Public Access Section Enclosure cc: The Honorable Tom Harkin

United States Senate 01-01674



John Wodatch, Director

Office of the Americans with Disabilities Act Civil Rights Division United States Department of Justice P.O. Box 66738 Washington, DC 20035-498 Dear Mr. Wadotach: A constituent of mine, (b)(6) contacted my Des Moines office to request information pertaining to the Americans with Disabilities Act of 1990. (b)(6) is employed with the Baptist Children's Home and Family Ministries, Inc. This is a private/non-profit organization which is licensed by the State to provide foster care services. They are presently in the process of planning to build a foster care home in order to provide services for eight children. (b)(6) would like to know what the agencies' obligations are under the Americans with Disabilities Act. I would appreciate any assistance you could provide to (b)(6) regarding this issue. His address is (b)(6). The telephone number is (b)(6). Thank you, in advance, for your assistance regarding this matter. Sincerely, Tom Harkin United States Senator TH/ds