T. 6-7-94 DJ 202-PL-454 JUN 20 l994 Gregory G.

Brooker Associate City Attorney City of Bloomington 2215 West Old Shakopee Road Bloomington, Minnesota 55431 Charles L. LeFevere City Attorney City of Richfield 470 Pillsbury Center Minneapolis, Minnesota 55402 Roger Pauly City Attorney City of Eden Prairie 370 Suburban Place Building 250 Prairie Center Drive Eden Prairie, Minnesota 55344 Dear Messrs. Brooker, LeFevere, and Pauly: I am responding to your letter concerning the Americans with Disabilities Act (ADA). I apologize for the delay in responding. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities that have rights or responsibilities under the Act. Pursuant to that authority, this letter provides informal guidance to assist you in understanding the ADA. However, this technical assistance does not constitute a legal interpretation of the statute, and it is not binding on the Department. You have asked about the application of the ADA to the activities of a joint powers organization (JPO) among three cities. The JPO is covered by title II of the ADA, which prohibits discrimination on the basis of disability by public (i.e., State or local government) entities and instrumentalities.

Your letter specifically addresses recreational programs provided by the JPO for individuals with disabilities, including "adaptive" programs that serve only individuals with

cc: Records, Chrono, Wodatch, Blizard, Hill, FOIA, Friedlander n:\udd\hille\policylt\brooker.ltr 01-03148 -2disabilities, and "integrated" programs that serve individuals both with and without disabilities together. Your questions focus on the JPO's dealings with non-residents of the participating cities, and particularly on whether such nonresidents can legally be excluded from the programs or charged a higher fee for participation therein. The ADA prohibits discrimination on the basis of disability. It does not address other bases for treating people differently. Therefore, the primary consideration in answering your questions is whether the JPO's proposed actions would treat an affected person differently from other people in similar situations on the basis of the person's disability. A public entity may not impose eligibility criteria that screen out individuals with disabilities from fully and equally enjoying any program, unless such criteria are necessary for the provision of the program. Thus, the JPO may not legally exclude non-residents with disabilities from any particular activity while permitting non-residents without disabilities to participate. Nor may the JPO legally charge a higher fee to nonresidents with disabilities than it charges to non-residents without disabilities, even if the higher fee is based on the higher cost of providing service to the individuals who have disabilities. 28 C.F.R. 35.130(f). Rather, the ADA requires that such costs be absorbed by the service provider or

distributed to all users of the program, regardless of disability. Thus, all non-resident participants in an integrated activity must be charged the same fee, regardless of whether or not they have disabilities. Further, non-resident participants in an adaptive activity may not be charged a higher fee than nonresident participants in the comparable integrated activity. If an activity, such as basketball, were offered only in an integrated setting, the JPO would be free to exclude all nonresidents from participating in the activity. Similarly, if the activity were offered only in an adaptive setting, the JPO would be free to exclude all non-residents. If the activity were offered in both integrated and adaptive settings, again, the JPO could exclude all non-residents from both settings without violating the ADA. However, the JPO may not legally be able to exclude non-residents from the adaptive basketball program while allowing non-residents to participate in the integrated basketball program. Such a distinction may constitute an eligibility criterion that screens out individuals with disabilities from full enjoyment of the JPO's programs while allowing similarly situated (i.e., non-resident) individuals without disabilities to benefit fully. 28 C.F.R. 35.130(b)(8). A similar analysis would apply to the issue of a higher fee for non-resident participants. 01-03149 -3-

The JPO is free, under the ADA, to adopt different residence criteria for different activities. For example, the basketball program could permit non-resident participation, while the swimming program excludes all nonresidents, as long as the criteria do not screen out individuals with disabilities. For your further information, I am enclosing a copy of the regulation implementing title II of the ADA and the Department's Title II Technical Assistance Manual. I hope that this information is helpful to you and that this letter fully addresses your question.

Sincerely,

John L. Wodatch Chief Public Access Section Enclosures 01-03150