Recreation Programs and the ADA

C. Christine Fillmore

Recreation programs are an important piece of the services municipalities offer.  During summer, they may include swimming programs and sports.  During the school year, there may be programs for before and after school.  In any of those cases, a municipality may have special obligations to accommodate children (and adults, for that matter) with special needs under the ADA.

 

Q:  A dad signed his son up for our summer recreation program. "Joey" has special needs and has a one-on-one aide at school.  This recreation program is designed and funded with the assumption that each child will move from activity to activity with little to medium supervision.  After personally working with Joey for his first few days, I do not believe he will be able to navigate the program as necessary.

 

Does the recreation department have to provide a special aide for Joey?

 

A:  If a one-on-one aide or counselor is a reasonable accommodation that is required for this child to participate in the program in a meaningful way, then the answer is probably “yes.”  This is an issue faced by most municipal recreation programs at one time or another.  The federal Americans with Disabilities Act of 1990 (“ADA”) is the primary law to be concerned about in this situation.

 

Q:  I thought the ADA applied only to hiring and employment.  How does it apply to recreation programs?

 

A:  The ADA (42 U.S.C. §§12131-12134) prohibits discrimination in employment based on physical or mental disability.  In particular, no qualified individual with a disability may be discriminated against if they can perform the essential functions of the job, with or without reasonable accommodation.

 

However, access to civic life is fundamental to American society.  Title II of the ADA and its implementing regulations (28 C.F.R. Part 35) also require that state and local governments make their programs and services accessible to all citizens, including those with physical and mental disabilities, so that they can take part in and benefit from those programs and services.  28 C.F.R. §35.104.  Municipalities must also ensure that they provide “effective communication,” including aids and services, so that people with disabilities can participate in civic life.

 

Q:  Who is a “qualified person with a disability?”

A:   A “disability” is a physical or mental impairment that places substantial limitations on one or more of an individual’s major life activities.  This includes 1) individuals who have a physical or mental impairment that substantially limits one or more major life activities; 2) individuals who have a record of a physical or mental impairment that substantially limited one or more of the individual's major life activities; and 3) individuals who are regarded as having such an impairment, whether they have the impairment or not.  28 C.F.R.§35.104.

Physical impairments include physiological disorders or conditions, cosmetic disfigurement, or anatomical loss, affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs (which would include speech organs that are not respiratory such as vocal cords, soft palate, tongue, etc.); respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine.  Specific examples include orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV, tuberculosis, drug addiction, and alcoholism.

Mental impairments include mental or psychological disorders such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

To constitute a "disability," a condition must substantially limit a major life activity. Major life activities include such activities as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.  42 U.S.C. § 12102.

The other part of the definition is that the person must be a “qualified” person with a disability.  To be qualified, the individual with a disability must meet the essential eligibility requirements for receipt of services or participation in a public entity's programs, activities, or services with or without 1) reasonable modifications to a public entity's rules, policies, or practices; 2) removal of architectural, communication, or transportation barriers; or 3) provision of auxiliary aids and services.  42 U.S.C. § 12131(2).

Q:  If we have a qualified person with a disability, what is our obligation?

 

A:  The “services and programs” for which accommodations must be made include things like town meeting or voting in elections, as well as library services and, importantly for purposes of this article, recreation programs.  The ADA provides for equality of opportunity, but does not guarantee equality of results.  The foundation of many of the specific requirements in the Department of Justice’s regulations is the principle that people with disabilities must be provided an equally effective opportunity to participate in or benefit from a municipality’s aids, benefits, and services.  28 C.F.R. § 35.130.

 

Q:  Can you give some specific examples of what we may have to provide?

 

A:  A qualified person with a disability may require auxiliary aids and services to participate meaningfully in the activities that are offered.  42 U.S.C. § 12103.  The most common disabilities recreation programs are likely to face include hearing impairment, vision impairment, speech impediments, mobility impairments, disabilities that require intermittent medical attention such as diabetes, and cognitive/behavioral issues:

 

  1. Hearing Impairment:  A deaf individual does not receive an equal opportunity to benefit from attending a program if he or she does not have access to what is said.  Reasonable accommodation might include qualified interpreters who use the same system of sign language as the impaired person.  This communication must be conveyed effectively, accurately, and impartially, through the use of any necessary specialized vocabulary.  Other accommodations might include notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunication devices for deaf persons (TTDs), videotext displays, and exchange of written notes.  28 C.F.R. §§35.160-.164.

 

  1. Vision Impairment:  Examples of accommodations for those with vision impairment may include qualified readers, taped texts, audio recordings, Braille materials, large print materials, and assistance in locating items.

 

  1. Speech Impediments:  When someone has a speech impediment, accommodations might include TTD, computer terminals, speech synthesizers, and communication boards.  Sometimes, a person with a speech impediment can be understood if the people working with them simply listen carefully and take the extra time that is necessary for understanding.

 

  1. Mobility Impairments:  A person who uses a wheelchair will not have an equal opportunity to participate in a program if they take place on the second floor of a building with no elevator because he or she would not be able to reach the room.  Examples of equipment that should be permitted include wheelchairs and manually-powered mobility aids, such as walkers, crutches, canes, braces, or other similar devices in any areas open to pedestrian use.  28 U.S.C. § 35.137.  For activities such as swimming, if the person cannot swim, a dedicated aide to help the person enjoy the water may be necessary.  If there is an alternate location for the program that is wheelchair-accessible, the program should be moved to that location.  If the municipality renovates that building, it should take care to follow the ADA guidelines for making the facility accessible in the future.  Physical changes to a building are required only when there is no other feasible way to make the program accessible.

 

  1. Medical Needs:  People who need monitoring and medication (such as those with ADHD or diabetes) must also be accommodated.  Generally speaking, as long as reasonable care is used in following the doctors’ and parents’ written instructions about administering medication, recreation programs should not be held liable for any resulting problems.  Municipalities should consult professionals or legal counsel whenever liability questions arise.

 

  1. Mental/Cognitive Disabilities:  Children generally may not be excluded because of a mental disability, such as autism.  The program must take reasonable steps to integrate that person into every activity provided to others.  If this requires a one-to-one aide who is not paid for by the parent, school system or state, the recreation program may be required to provide one if it is necessary.  Sometimes, all that is necessary is an additional staff person for that group, or some extra time and patience to help the child.  A good way to approach the issue is to talk with the parents about what would be most appropriate.

 

Q:  Do we have to provide exactly what the parent is requesting?

 

A:  No.  The municipality must give primary consideration to the type of aid or service that the person requests, but the final determination of the exact nature or extent of the aid or service is made by the governing body (board of selectmen, town council, or city council/board of aldermen).  28 C.F.R. §35.149-35.150.  This means the recreation director needs to consult with the governing body early in the process and keep an open line of communication about the issue.

 

When choosing a method of providing program access, the municipality must give priority to the one that results in the most integrated setting appropriate to encourage interaction among all users, including individuals with disabilities.

 

Q:  We do not allow participants to bring pets to the program.  Do we have to allow a child with a disability to bring his or her service dog?

 

A:  Yes.  A service animal is not a pet; it is an accommodation.  This does not mean other children can bring their pets, but it does require you to make an exception to the rule for service animals.  28 C.F.R. §35.136.

 

Q:  We are a very small town.  Do we have to comply with this requirement?

 

A:  Yes.  There is no exemption in the law for small towns.  However, there may be times when a municipality is excused from some kinds of accommodations that involve significant cost, as explained below.

 

Q:  Can we charge the participant for the costs we incur in making the accommodation?

 

A:  No.  It is illegal to charge the individual with the disability an extra fee to cover the cost of the aid or service, although it is acceptable to raise the fees for everyone who participates in order to cover the cost.  So, for example, if a hearing-impaired child wants to participate in a summer recreation program, the cost of hiring an interpreter to serve that child cannot be charged to that child’s parents.  Participation fees for all program participants may be raised across the board to cover the cost, but it cannot be borne entirely by the person with the disability.  28 C.F.R. §35.130(f).

 

Q:  We don’t have the budget to make these accommodations.  How far do we have to go to meet our obligation?

 

A:  The municipality is not required to take any action that would result in a “fundamental alteration of the nature of the service, program or activity,” or that would result in “undue financial and administrative burdens” for the municipality.  42 U.S.C. §12201(f); 28 C.F.R. §35.160-164.  If this is the case, the governing body (selectmen, town council, or city council/board of aldermen) must make a determination in writing about whether or not a particular accommodation would, in fact, fundamentally alter the program or would result in undue financial and administrative burdens.  In order to do that, the governing body should consider the request in the context of all of the resources “available for use” in that program, not simply the amount that the municipality had intended or expected to spend on it.  28 C.F.R. §35.150(a)(3).  The written decision must include the reasons supporting that conclusion.

 

If, for example, the accommodation necessary to permit a qualified person with a disability to participate would cost as much as the entire recreation program appropriation, and the governing body cannot find enough money from other places in the budget to supplement the recreation budget, it would probably be considered an “undue financial burden” that the municipality is not required to bear.

 

Q:  How can I learn more about specific accommodations?

 

A:  The federal Department of Justice has published a variety of materials on this subject, all of which are available on its Web site at www.ada.gov.  

 

There are several resources available on the internet for additional information, including the “ADA Guide for Small Towns” (www.ada.gov/smtown.htm) and “ADA Technical Manual” (www.ada.gov/taman2.html), both of which address questions regarding accessibility of programs and service under Title II of the ADA.  There is also an information line run by the federal Department of Justice for ADA matters (800.514.0301).

 

Local officials in NHMA-member municipalities may contact NHMA Legal Services attorneys for more information on this and other topics of interest, Monday through Friday, from 8:30 a.m. to 4:30 p.m., by calling 800.852.3358, ext. 3408.  School officials should contact the New Hampshire School Boards Association attorney at 800.272.0653.