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DJ 202-PL-184

JUN 15 1993

David L. 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

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In 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)
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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 (non-
family 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?

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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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