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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.
cc: Records, Chron, Wodatch, Breen, Magagna, Novich, Friedlander, FOIA, Cager Udd:Novich:Policy:184 01-02383
-2In 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) 01-02386 Texas Department of Mental Health and Mental Retardation San Antonio State School P.O. Box 14700, Harlandale Station San Antonio, TX 78214-0700 (512)-532-9610 Tom Deliganis. Ph.D. Superintendent May 18, 1992 U.S. Department of Justice, Civil Rights Division Office on the Americans with Disabilities Act P.O. Box 66118 Washington, D.C. 20035-6118
Dear Sir/Madam: In brief, this agency (the San Antonio State School), often seeks contracts with private citizens for the purpose of placing mentally retarded citizens in their home. This facilitates the assimilation of the mentally retarded citizen into the mainstream of the community, and; permits continued quality of care and support for
that citizen. Homes selected as a "private provider home" are of typical (local) residential construction and are evaluated for occupancy based on the standards outlined in the National Fire Protection Association's, 1988 Edition, "Life Safety Code" 101 (LSC), Chapters 21 or 22. The distinguishing feature between a chapter 21 and a chapter 22 occupancy (for our purpose) is the number of non-related (nonfamily member) occupants residing in the home. Chapter 21, "Residential Board and Care Occupancy," is divided into two sections; Small and Large Facilities. A "small" Chapter 21 facility would have at least four non-family occupants, but not more than 16. Chapter 22, "One- and Two-Family Dwellings" are those homes with three or less non-family occupants. Most of the "private provider homes" selected in our program are of a chapter 22 occupancy. All homes in our program which are of a chapter 21 occupancy have less than eight non-family residents and the home is of typical residential construction. Is it the intent of the Americans with Disabilities Act (ADA) to identify these homes as a "public accommodation?" And, therefore require compliance for a "barrier free" environment? 01-02385 As a point of comment; bathrooms in most existing (local) private residential homes have not been designed to accommodate citizens with disabilities. To convert a bathroom in a private residence to meet ADA "barrier free" standards would require significant costs to the home owner for renovation. A difficulty, with bathrooms, is in the requirements for "clear floor space" as illustrated and stated in Appendix A of the ADA Standard. Normally, the swing of the door penetrates the "clear floor space" or the area is insufficient. Another concern is that most sinks in bathrooms are placed in a "vanity" style cabinet which does not permit a straight-in approach or the available floor place hampers a side approach. If all other standards, grab bars, seats, mirrors, etc., are met, can exceptions be made for clear floor space requirements?
Lastly, homes that are currently under contract. Is it a requirement to renovate (upgrade) them to ADA standards? Even if there are no physically challenged persons (non-family) residing in the residence. I realize it is difficult to develop a written standard that meets the needs of everyone, for all situations, and; that ours is a unique situational effort for citizens who are not just physically challenged but who have the added challenge associated with being mentally retarded as well. Thank you in advance for any assistance or guidance you can provide me in this matter. Sincerely, David L. Rollison Safety Director
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