# 189

II-1.2000
II-5.1000
II-5.2000
II-5.3000


DJ XXXXXXXXXXXXX                                  April 8, 1996




Ms. Rhonda L. Daniels
Senior Counsel
National Association of Home Builders
1201 15th Street, N.W.
Washington, D.C.  20005-2800

Dear Ms. Daniels:

     I am responding to your inquiry of January 19, 1995, on
behalf of the National Association of Home Builders, regarding
the application of the Americans with Disabilities Act of 1990
(ADA) to the home building industry.  We apologize for the delay
in responding to your letter.

     The ADA authorizes the Department of Justice to provide
technical assistance to individuals and entities that have rights
or obligations under the Act.  This letter provides informal
guidance to assist you in understanding the ADA's requirements. 
It does not, however, constitute a legal interpretation or
advice, and it is not binding on the Department.

     Your letter notes that questions have arisen about the
application of the ADA to housing "as a result of the proposed
accessibility guidelines published by the Architectural and
Transportation Barriers Compliance Board . . . . "  Therefore,
you have requested clarification of the ADA's requirements as
they apply to residential construction.  Specifically, you have
asked the Department to declare: 1) that privately owned
residential housing is not subject to title II of the ADA;  2)
that only buildings for which a State or local government holds
the title are subject to title II; and, 3) that sidewalks in
residential areas are not subject to the cross slope requirements
contained in the Interim Final ADA Accessibility Guidelines.

     Title II of the ADA, 42 U.S.C.  12132, provides that

     [N]o qualified individual with a disability shall, by
     reason of such disability, be excluded from
     participation in or be denied the benefits of the
     services, programs, or activities of a public entity,
     or be subjected to discrimination by any such entity.

departments, agencies, or instrumentalities of State and local
governments are public entities subject to title II.  Under these
definitions, it is clear that only public entities and
individuals acting on behalf of public entities have an
obligation to comply with title II.  Residential properties that
are owned and operated by private entities as purely private
residential properties are not within the scope of title II.

     However, when a State or local government establishes a
program that involves providing housing to its residents, that
public entity has the obligation to ensure that its program is
operated in a non-discriminatory manner whether the program is 
provided directly by the public entity or through "contractual,
licensing, or other arrangements."  Because the ADA recognizes
that public entities employ many different methods of operating
their programs, the Department's regulations do not attempt to
limit the types of arrangements that public entities may utilize
to ensure effective delivery of programs or services.  The
regulation merely requires public entities to ensure that when
public services or programs are provided through other entities
those services or programs meet the same standard of
accessibility that would be required if the public entity
provided the service directly.  28 C.F.R.  35.130.  In cases
where funding is provided to a private entity to facilitate the
operation of a State or local program, such accessibility is
required.  In addition, it should be noted that even if title II
would not require a specific facility to be made accessible, a
public entity may have the authority under State or local law to
require the facility to be accessible.  

     Your second assertion, that only buildings to which a public
entity holds title should be subject to the ADA accessibility
requirements is clearly inconsistent with title II and with the
title II implementing regulation.  Because title II prohibits
discrimination in any program, service, or activity of a public
entity, the title II regulation (28 CFR  35.151(a)) requires

     [E]ach facility or part of a facility constructed by,
     on behalf of, or for the use of a public entity
     . . . ." (emphasis added) to be designed and
     constructed so that it is ". . . readily accessible to
     and useable by individuals with disabilities. 

A similar requirement applies to alterations to existing
facilities that are commenced after January 26, 1992.  28 CFR
 35.151(b).  Buildings and facilities covered by title II may be
designed and constructed in accordance with either the Uniform
Federal Accessibility Standards (UFAS) or the Americans with
Disabilities Act Standards for Accessible Design (ADA Standards). 
28 CFR  35.151(c).  These requirements will remain in effect
until this Department publishes a final regulation adopting new
accessibility standards for title II entities.

     Finally, because sidewalks in residential areas are
"facilities" within the meaning of the ADA, residential sidewalks
that are constructed with the expectation that they will be
turned over to  the local government are required to be
accessible to people with disabilities.  As you know, the Access
Board has published interim final guidelines that contain
technical requirements applicable to public sidewalks.  These
requirements are the subject of a Notice of Proposed Rulemaking
published by the Department, but they are not yet included in the
Department's regulation.  Therefore, compliance with the
requirements of section 14 of the Access Board's Interim Final
Rule is not required.  Until this Department publishes a final
regulation that establishes specific requirements for accessible
public sidewalks, public entities may elect to meet their
obligation to provide accessible sidewalks by using the technical
provisions applicable to accessible exterior routes under the ADA
Standards or UFAS, or they may follow any other accessibility
standard in effect in their jurisdiction.  In addition, public
entities must provide curb ramps or other sloped areas at
intersections between the pedestrian walkway and streets, roads,
or highways.  28 CFR  35.151(c) and (e).

     I hope that this information assists you to understand the
responsibility of public entities to apply title II in the
operation of their programs.  Please be advised that to the
extent that your letter raises issues with respect to the
technical and scoping requirements for residential properties or
public rights of way contained in the notice of proposed
rulemaking that was published by the Department in June 1994,  we
will consider your comments in our review of the responses to
that notice.  Both the Department and the Access Board are now
completing the review of the proposed rule and making appropriate
revisions.  Your comments may be further addressed in the final
publication of the rule.   

                            Sincerely,



                         John L. Wodatch
                              Chief
                    Disability Rights Section