OCT 28 1992

(b)(6)

Dear Mr. (b)(6:

This letter is in response to your inquiry concerning the

responsibilities of a private, non-profit organization that
intends to build a foster care home for children under the
Americans with Disabilities Act (ADA).

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.

Senator Harkin has informed us that your organization, The

Baptist Children's Home and Family Ministries, Inc. (BCH), is
privately owned and non-profit, and is licensed by the State of
Iowa. You further informed us that BCH has no affiliation with
State or local government entities, other than its State license,
and it receives no funding from Federal, State, or local govern-
ment entities. Senator Harkin stated that you seek information
about BCH's ADA responsibilities in building a foster home for
eight children. This letter concerns BCH's responsibilities as a
public accommodation under title III of the ADA. BCH may also
have ADA obligations as an employer, under title I of the ADA.
You may contact the Equal Employment Opportunity Commission at
1801 "L" Street, N.W., Washington, D.C. 20507, (800) 669-4000
for further information about BCH's title I obligations.

Because BCH is a private organization and has no affiliation

to State or local governmental entities, the applicable ADA
provision is title III, which applies to private entities

cc: Records; Chrono; Wodatch; Novich; McDowney; FOIA, MAF.

:udd:novich:congress:harkin2. (b)(6)
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operating places of public accommodation. Title III defines a
place of public accommodation as a facility that is privately
owned, affects commerce, and fits into one of twelve categories.
Strictly residential facilities are not included in this list.
If the BCH home is strictly residential, is not covered by title
III of the ADA. It will, however, be covered by title III if it
provides a significant enough level of social services that it
can be considered a social service center establishment. Social
services in this context include, for example, medical care,
meals, transportation, counseling, and social activities. You
may consult the enclosed title III regulation, at pages 35551-
35552 for further discussion of social service center
establishments.

Even if the BCH home is a social service center

establishment, title III will not apply if the home is controlled by a
religious entity. Section 307 of the Act exempts religious
or religiously controlled entities from their title III
obligations, even where those entities operate facilities that
would otherwise be covered as places of public accommodation.
You informed us that BCH receives 80% of its funding from Baptist
churches and individuals in those churches, and that the entire
BCH Board of Directors is Baptist, including both pastors and
laypersons from Baptist churches. Although we are unable to
determine whether BCH would qualify for title III's religious
exemption, funding sources and the composition of a board of
directors are relevant factors in such a determination. You may
consult section 36.102(e) at page 35593 of the enclosed title III
regulations, with further discussion at page 35554, for explana-
tion of the religious entity exemption. Please be aware that
religious entities are not exempt from their responsibilities
under title I.

Therefore, if the foster care home BCH intends to build is a

social service center establishment, and if BCH is not
religiously controlled, the BCH home would be subject to the
title III requirements for new construction, found in section 303
of the ADA. Section 303 governs new construction of facilities
for which: (a) the last application for a building permit or
permit extension was certified to be complete after January 26,
1992; and (b) the first certificate of occupancy is issued after
January 26, 1993. Section 303 requires that such facilities be
designed and constructed to be readily accessible to and usable
by individuals with disabilities. The effective dates and
requirements for new construction can be found in section 36.401
of the enclosed title III regulation, at pages 35599-35600, with
further discussion at pages 35574-35580. A facility will be
considered readily accessible and usable if it is designed and
constructed in strict compliance with the technical specifica-
tions found in the Americans with Disabilities Act Accessibility
Guidelines, which are appended to the enclosed title III
regulation, beginning at page 35605.
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Once the BCH home is built and operational, it must comply
with section 302 of the ADA, which prohibits discrimination on
the basis of disability in existing facilities. Pursuant to that
section, the BCH home must: (a) eliminate discriminatory
eligibility criteria for the home's participants; (b) make
reasonable modifications to discriminatory policies, practices,
and procedures; (c) provide auxiliary aids and services when
necessary for effective communication with participants with
disabilities; and (d) remove architectural barriers to access
where such removal is readily achievable. Please consult
Subparts B and C of the enclosed title III regulation, at pages
35595-35599, with further discussion at pages 35555-35574, for
explanation of the ADA responsibilities for existing facilities.

I hope this information is helpful to you.

Sincerely,

John L. Wodatch
Chief
Public Access Section
Enclosure

cc: The Honorable Tom Harkin

 United States Senate

01-01674

TOM HARKIN (202) 224-3554

IOWA TTY (202) 224-4633

COMMITTEES

United States Senate AGRICULTURE

WASHINGTON, DC 20510-1502 APPROPRIATIONS
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LABOR AND HUMAN
RESOURCES

August 27, 1992

John Wodatch, Director

Office of the Americans with Disabilities Act
Civil Rights Division
United States Department of Justice
P.O. Box 66738
Washington, DC 20035-498

Dear Mr. Wadotach:

A constituent of mine, (b)(6) contacted my Des

Moines office to request information pertaining to the Americans
with Disabilities Act of 1990.

(b)(6) is employed with the Baptist Children's Home and

Family Ministries, Inc. This is a private/non-profit
organization which is licensed by the State to provide foster
care services. They are presently in the process of planning to
build a foster care home in order to provide services for eight
children.

(b)(6) would like to know what the agencies'

obligations are under the Americans with Disabilities Act. I
would appreciate any assistance you could provide to (b)(6)
regarding this issue. His address is (b)(6). The telephone number is (b)(6).

Thank you, in advance, for your assistance regarding this

matter.

Sincerely,

Tom Harkin
United States Senator

TH/ds

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