DJ 202-PL-332 JAN 1993

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
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1) whether the entity is operated with public funds;

2) whether the entity's employees are considered

government employees;
3) whether the entity receives significant assistance from
the government by provision of property or equipment;
and

4) 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

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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

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