T. 9/30/92 SK:SBO:kgf DJ# 192-06-00009 NOV 5 1992 Mr.

Evan Gifford Smith Illinois Department of Mental Health and Developmental Disabilities State of Illinois Center 100 West Randolph Street, Suite 6-400 Chicago, Illinois 60601 Dear Mr. Smith: This responds to your request for an interpretation of the Americans with Disabilities Act (ADA). The ADA authorizes the Department to provide technical assistance to entities that are subject to the Act. This letter provides informal guidance to assist you in understanding how the ADA may apply to the situation you describe. However, this technical assistance does not constitute a determination by the Department of Justice of your rights or responsibilities under the ADA and does not constitute a binding determination by the Department of Justice. As discussed in S II-1.1000 of the enclosed Title II Technical Assistance Manual, title II of the ADA prohibits discrimination on the basis of disability in all services, programs, and activities provided or made available by "public entities," i.e., State and local governments or any of their instrumentalities or agencies, whether or not they receive Federal financial assistance. Title II does not apply to private entities and does not authorize or require State or local governments to enforce its requirements for private businesses. (The obligations of private entities that operate places of public accommodation, including health care providers, are discussed in the enclosed Title III Technical Assistance Manual.) Section 35.130(b)(6) of the title II regulation prohibits discrimination by public entities in administering certification and licensing programs. However, the programs or activities of private entities licensed or certified by a public entity are not :udd:kaltenborn:smith.ill cc: Records, CRS, FOIA, Friedlander(2), Kaltenborn, Breen 01-01713​ -2-

themselves programs or activities of the public entity merely because they are licensed by the public entity. Section II3.7000 of the Manual for title II discusses licensing. On the other hand, section 35.130(b) of the title II regulation prohibits discrimination in all governmental activities of public entities, even if they are carried out indirectly through other entities. Section 35.130(b)(3) states that public entities may not, directly or through contractual, licensing, or other arrangements, utilize criteria or methods of administration that have the effect of discriminating. Thus, as a public entity, the Illinois Department of Mental Health and Developmental Disabilities must ensure nondiscrimination by entities, such as community agencies, with whom it enters into contractual or other arrangements to carry out its programs. I hope this information is helpful to you. Sincerely, Stewart B. Oneglia Chief Coordination and Review Section Civil Rights Division Enclosures (2) 01-01714​Illinois Department of Mental Health and Developmental Disabilities Central Office March 2, 1992 Ms. Stewart B. Oneglia Chief, Coordination and Review Section U.S. Department of Justice Civil Rights Division P.O. Box 66118 Washington, D.C. 20035-6118 Re: Request for Assistance in Resolving Issues under Title II of the American with Disabilities Act Dear Ms. Oneglia: I am a staff attorney with the Illinois Department of Mental Health and Developmental Disabilities (DMHDD). On February 24, 1992, I called the Americans with Disabilities Act Help Line and had the

pleasure of discussing some issues regarding the ADA at some length with a Department of Justice attorney, Bill Worthen. I later spoke again with Wonder Moore, a DOJ investigator, who suggested that I write or FAX you to possibly obtain some written clarification of issues under the ADA. The main issue that Mr. Worthen and I discussed concerned S 35.130(b)(6) of the Regulations pertaining to Title II of the ADA. Mr. Worthen was very helpful in clarifying a misunderstanding that we at DMHDD had concerning that section. The Department takes a very active role in the monitoring of community agencies that it funds, certifies and licenses. As such, we were under the impression that DMHDD would be responsible in large part for the compliance of community agencies with the ADA. As Mr. Worthen explained, this issue was considered in depth when the ADA was being drafted, and the clear intent of section 35.130(b)(6) is not to extend such a responsibility to government agencies. As stated in the preamble to the Regulations at page 35704, "Paragraph (b)(6) does not extend the requirements of the Act or this part directly to the programs or activities of licensees or certified entities themselves. The programs or activities of licensees or certified entities are not themselves programs or activities of the public entity merely by virtue of the license or certificate." Based on that section of the preamble, as well as Mr. Worthen's discussion of the history and intent of section 35.130(b)(6), it does not appear that DMHDD should integrate ADA compliance into its requirements for certification or licensure or make certification or licensure dependent upon ADA compliance (at least, not beyond ensuring that DMHDD certification and licensure standards do not subject qualified individuals with disabilities to discrimination on the basis of disability). State of Illinois Center 100 West Randolph Street Suite 6-400 Chicago, Illinois 60601 312-814-2735 01-01715​ Ms. Stewart Oneglia March 2, 1992 Page Two This is clearly a significant departure from our original approach to S 35.130(b)(6), which would have assumed DMHDD responsibility for ADA compliance for all the agencies it licenses or certifies. Given the significant impact this recent information has on DMHDD policies regarding the ADA, I hope you understand our request for written confirmation concerning the interpretation of S 35.130(b)(6) of the Regulations. I would greatly appreciate it if you could send to me anything in writing concerning the interpretation and intent of this section that was explained to me by Mr. Worthen. Legislative history and comments that were submitted would be very helpful.

There is another related issue which you may be able to help us resolve. As discussed in the preamble to the Regulations at page 35704, S 35.130(b)(1)(v) of the Regulations "provides that a public entity may not aid or perpetuate discrimination against a qualified individual by providing significant assistance to an agency, organization, or person that discriminates on the basis of a disability in providing any aid, benefit, or service to beneficiaries of the public entity's program." This may be significant for DMHDD, as the Department funds a vast number of community agencies and programs. DMHDD involvement with these agencies ranges from merely funding through contracts or agreements to funding as well as certifying and licensing. DMHDD merely audits or provides technical assistance with specific problems at those agencies that only receive DMHDD funding, while agencies that are certified or licensed are thoroughly surveyed annually by the Department. It may be significant for purposes of this subsection that these agencies do not provide services to direct beneficiaries of DMHDD's services. When a recipient is discharged from a state operated facility, he or she may choose to go to one of these agencies. The facility will help facilitate that process, but the individual is no longer receiving services directly from the state. To what extent is DMHDD required to ensure that it is not funding agencies that do not comply with the ADA? Is a clause in the funding contract or agreement in which the agency certifies that it is in compliance with the ADA sufficient for purposes of S 35.130(b)(v)? We are planning to train DMHDD auditors, surveyors, and technical assistance staff as to the general requirements of the ADA for the purpose of observing clear ADA violations on site visits, but again, we are unclear as to the sufficiency of this course of action. The last area with which we have concern also relates to community agencies. Section 35.130(b)(1) provides, generally, that a public entity may not, directly or through contractual means, provide its services to beneficiaries in a way that would discriminate against a qualified individual on the basis of disability. DMHDD operates 21 01-01716​ Ms. Stewart Oneglia March 2, 1992 Page Three mental health and developmental disability facilities in Illinois. As discussed above, many of our recipients are discharged and placed in community agencies. While the services received by these individuals are not provided directly by DMHDD in state operated facilities, it could be argued that DMHDD is "providing" those services indirectly by placing individuals in community agencies that are licensed, certified, or funded by DMHDD. Our concern is whether the Department may be liable under S 35.130(b)(1) for placing individuals upon discharge into

agencies where, without DMHDD knowledge, ADA violations may occur. If this is the case, is DMHDD then, in a sense, responsible for ADA compliance by these agencies, as we originally thought we were under S 35.130(b)(6)? As you can see, making our way through the ADA is a complicated and, at times, circular task. On behalf of the Illinois Department of Mental Health and Developmental Disabilities, I greatly appreciate any assistance you can give us in resolving these issues as we develop policies to comply with the ADA. If you have any questions, please feel free to contact me directly at 312/814-2752 (FAX: 312-814-3793). If I am not available, you may contact our ADA Coordinator, David Neff, at 217/782-5018. As I will be out of town for most of March, would it be possible to also send Mr. Neff a copy of your response? His address is 100 N. Ninth Street, 1st Floor, Springfield, IL, 62765. Thank you again for your time and assistance in this matter. Sincerely, Evan Gifford Smith EGS/dc cc: Owen M. Field David Neff Sue Rentsch George Bengel 01-01717