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Mr. C. Todd Jones Assistant Counsel for Industrial Rehabilitation and ADA Issues National Association of Rehabilitation Facilities Post Office Box 17675 Washington, D.C. 20041 Dear Mr. Jones: This letter is in response to your inquiry of September 21, 1992, about the definition of "public entity" under the Americans with Disabilities Act ("ADA") and the application of that definition to institutions providing medical, vocational, and residential services. 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 or legal advice, and it is not binding on the Department of Justice. Your letter inquires whether public funding alone converts an otherwise private entity into a public entity for purposes of the ADA, and what other factors the Department of Justice might consider in determining whether a particular entity is public or private. In response, I wish to confirm that the answer you received over the ADA Information Line is correct: public funding alone does not convert an otherwise private entity into a public entity. In general, the Department of Justice looks to several factors in determining whether an entity that has both public and private features is covered by title II or title III. These include, but are not necessarily limited to: cc: Records, Chrono, Wodatch, Breen, Contois, Frieldander, FOIA Udd:Contois:policyletters:jones
01-01863 -21) 2) 3) whether the entity is operated with public funds; whether the entity's employees are considered government employees; whether the entity receives significant assistance from the government by provision of property or equipment; and whether the entity is governed by an independent board selected by members of a private organization, or a board elected by the voters or appointed by elected officials.
In many cases, different entities engaged in providing the same service may have different obligations. For instance, if a public entity, such as a State or local government, provides a service or program through a contract with a private entity, the public entity would be required to make sure that the program or service is accessible to persons with disabilities under the requirements of title II, while the private entity, if it qualifies as a public accomodation, would have to comply with the requirements of title III. I have enclosed a copy of the Department of Justice's Title II Technical Assistance Manual. The definition of a public entity is discussed on page one, and examples of its application to particular situations are given on page two. I hope this information is useful to you in understanding the requirements of the ADA. Sincerely,
John L. Wodatch Chief Public Access Section Enclosure
Title II Technical Assistance Manual 01-01864 NATIONAL ASSOCIATION OF REHABILITATION FACILITIES James S. Liljestrand, M.D. Robert E. Brabham, Ph.D. President Executive Director September 21, 1992 John Wodatch, Director Office of the Americans with Disabilities Act Civil Rights Division United States Department of Justice P.O. Box 66118 Washington, DC 20035 Dear Mr. Wodatch, I am writing to confirm my telephone conversation on September 14, 1992 with Lucille Johansen on the Americans with Disabilities Act Information Line. She asked me to write to the Office to receive an official response to my query. The National Association of Rehabilitation Facilities (NARF) is the principal national membership organization of institutions providing medical, vocational, and residential services. I am writing on their behalf to confirm an interpretation of the Americans with Disabilities Act as it relates to our facilities that work with state and local entities. ADA and its implementing regulations define a "public entity" as "any department, agency, special purpose district, or other instrumentality of a State or States or local government." (emphasis added) ADA S 201(1)(B), 28 C.F.R. SS 35.104, 36.104. Many NARF service providers receive funding and other support from state and local governments and agencies. The issue for those providers is whether they are "other instumentalit[ies]" based on state or local funding or any other support, making them public entities, or whether they are private entities, being defined as an entity other than a public entity. ADA S 301(6), 28 C.F.R. S 36.104. As you know, this distinction is critical for determining if an entity is governed by ADA Title II as a public entity or ADA Title III as a private entity.
During our telephone conversation, Ms. Johansen assured me that funding alone would not give rise to "public entity" status for a service provider as an "other instrumentality." She stated that this section was intended to apply to corporations owned by governments. NARF agrees with this interpretation of the law. The point in need of guidance, however, is in this principle's application. P.O. Box 17675, Washington, D.C. 20041 * (703) 648-9300 * Fax: (703) 648-0346 01-01865 For example, a corporation to promote and market services and products created by providers for use by state agencies might be created with the State itself as a minority or majority shareholder. The question to be determined in that case and, more generally, is at what point does an organization become an instrumentality and what factors would the Department of Justice examine in making that determination. I realize that this determination could also have implications for the application of section 504(B)(1)(A) of the Rehabilitation Act, which has language similar to that used in ADA. Your comments on the relationship between these two provisions would also be of service to our providers. NARF wishes to provide guidance to NARF member institutions based the Department of Justice's interpretation of ADA. If any further information is required for your response, please let me know. Cordially,
C. Todd Jones Assistant Counsel for Industrial Rehabilitation and ADA Issues 01-01866