ADA Title III
What Does it Mean for Camp Programs?

by Catherine Hansen-Stamp, Esq

A teen who is hearing impaired and her parents e-mail an application, seeking admission into a summer adventure camp. There are only a few weeks before the application deadline. The camp director has never had an individual who is deaf apply. She understands that the American with Disabilities Act (ADA) applies, and so she checks into the cost of interpreters — it appears staggering. She is concerned about safety and communication with the instructors and other campers in the camp. However, she is also concerned about complying with the law, and assisting this teen. Time is ticking away. What is she required to do? Where can she turn for assistance?

As you probably know, Title III of the ADA provides individuals with disabilities mainstream access to programs.¹ Privately run recreational programs are required to comply with the ADA if, among other things, they own, lease, lease to, or operate a . . . place of public accommodation . . . that affects commerce.² Title III prohibits discrimination against individuals with disabilities in the . . . full and equal enjoyment of the goods, services, facilities, privileges of any place of public accommodation.³ This can be a delicate area for day and resident camps, outdoor program centers, conference and retreat centers, and outdoor adventure education programs. Qualifying programs must consider allowing disabled individuals access to activities already infused with inherent and other risks.

The following questions and answers are intended to provide you with some general, practical information about what the law requires should an individual with a disability seek access to your program and how you can proactively deal with compliance. Again, you should plan to have a licensed attorney, experienced in these issues, advise you regarding the ADA’s (and any state public accommodation laws’) application to your own specific operation.

First of all, who is considered “disabled” under the ADA?

An individual with a disability is one who: has a physical or mental impairment that substantially limits one or more major life activity(s) (e.g., caring for one’s self, walking, seeing, hearing, speaking, breathing, learning); has a record of such an impairment; or is regarded as having such an impairment.⁴ This can include individuals who, for example, are blind or deaf or who suffer from a psychological or mental condition. Federal regulations⁵ that accompany the law provide some examples of what are and are not considered disabilities under the ADA. However, the list is not exclusive. For example, disorders resulting from current illegal drug use are not considered disabilities.

How do I figure out whether those applying to my programs are disabled? Isn’t it wrong for me to ask them if they have a disability?

Under Title III, you are not prohibited from asking program applicants questions about whether or not they can participate in your program. Questions that elicit information about the applicant’s background and potential limitations can assist you in obtaining the information you need to begin a dialogue about whether or not you can implement modifications to allow access. However, you cannot ask questions that screen out, or tend to screen out, individuals with disabilities, unless such criteria are necessary for the provision of those services.⁶

A tricky situation occurs when someone claims they are disabled because they are “regarded as having an impairment.” That is, an individual claims they are treated like an individual with a disability even though they are not disabled. Be careful not to make assumptions about people and treat everyone on an individualized, non-stereotyped basis.

Friends tell me that I have to allow disabled individuals “mainstream” access to my programs, but what does that mean?

That means that you must allow the individuals with disabilities access to your program in the most integrated setting “appropriate to the needs of the individual.”⁷ Simply providing a separate program for individuals with disabilities is most likely not enough. If they can be successfully accommodated (or, alternatively, if they need no modifications), you must allow them access to your regular “mainstream” sessions and programs. Of course, you are entitled to deny access based upon the ADA’s limitations, discussed below.

How do I know if ADA Title III applies to my organization?

As mentioned in the introduction, qualifying organizations are private entities — however large or small — that own, lease, lease to, or operate a . . . place of public accommodation. The statute (and accompanying regulations) defines a variety of private entities that are considered public accommodations — those public accommodations must “affect commerce”⁸ (not usually an issue). The categories are quite broad — everything from inns, hotels, zoos, parks, and schools to gymnasiums, health spas, and other “places of exercise or recreation.” Organizations that fall within those categories or something analogous should consider that Title III probably applies to them. Certainly check with your legal counsel if you have any question. Even if there is doubt, many organizations think it is the “right thing to do” to try to accommodate individuals with disabilities.

Some courts have been picky about the notion that there has to be a physical “place” where individuals have been denied access to services, in order for Title III to apply. Others urge that Title III is intended to be broad in its application and that no physical “place” is necessary.⁹ However, camps generally have a fixed base operation, so that should not be an issue.

Why should I be so concerned about the law? I know it isn’t a criminal law so I can’t be thrown in jail. I’ve got so many other things to worry about in trying to run a responsible program . . . .

That’s true — it isn’t a criminal law. However, an individual with a disability who believes you have discriminated against them in denying them access to your program can file a lawsuit against you and seek an order (injunction) from the court to stop the discrimination and allow access. In addition, the Attorney General can be notified and choose to file suit against you in matters regarded as important to the general public. Organizations proven to have discriminated against an individual with a disability are subject to civil penalties of $50,000 for the first violation and $100,000 for any subsequent violations.¹⁰ Bottom line, it behooves you to make a proactive effort to comply with the law and allow individuals with disabilities mainstream access to programs.

What if there is a safety issue — can I reject a disabled applicant? What if I can’t afford the accommodation or, it just isn’t practical?

You do have some options — ADA Title III does provide some limitations on your requirement to provide individuals with disabilities with access to your programs. Generally, qualifying organizations are required to allow individuals with disabilities mainstream (versus separate) access to their programs (and make reasonable modifications, if necessary). Access is not required, however, if it would 1) result in an undue burden (e.g., “significant” cost, training, etc.) on the entity; 2) fundamentally alter the nature of the camp session or program (for the individual and others); or 3) compromise the safety of others attending the camp session or program.¹¹

Defining each of these limitations can be a delicate matter. Precise definitions have been left out of the law and accompanying regulations, probably because Congress wants entities to look at each individual with a disability on a case-by-case basis. Case law and regulations have shed some light on the subject. For example, regulations provide that in determining whether the proposed modification results in an undue burden, factors to consider include the overall financial resources of the site or sites involved, the number of employees at the site, whether the site is geographically isolated and the existence, financial resources, and size of any parent corporation or related entity.¹²In addition, regulations and case law have clarified that in order to deny access based upon the notion that access would be a “direct threat to safety,” the organization must make an individual assessment grounded in current medical knowledge — taking into consideration the severity of the risk and the likelihood of harm. The organization cannot simply reach a vague, general conclusion that access would compromise safety.¹³

I’ve just gotten an application for a child who is deaf. Is this a “disabled” individual? Do I have to accept them?

As much as the definition of “disability” is not always clear-cut under the law, those that are deaf are specifically included in the definition of disability.¹⁴ Whether or not you must accept them into your program is another matter. As mentioned previously, you basically have three grounds on which to reject the applicant — undue burden, fundamental alteration of the camp program, and threat to safety. In making decisions about access, your organization must consider reasonable modifications for the individual, including the feasibility of any auxiliary aids or services.¹⁵

Can I charge the parent extra if I decide to hire an interpreter to assist the child who is hearing impaired during the program?

The federal regulations indicate that you cannot “impose a surcharge” on individuals with disabilities to cover the costs of modifications.¹⁶ However, let’s say you have determined that it is going to be financially challenging for your organization to hire an interpreter for the child who is deaf. Under the ADA, you can consider other alternatives for effective communication — auxiliary aides and services. Maybe there is a counselor, proficient in sign language that could assist in the situation. Maybe you can consider a complimentary camp fee for a friend or sibling that could accompany the child. In addition, your organization (if it has enough lead time) may be able to obtain grants or funds from state or private organizations to cover all or part of the cost of an interpreter. As always, check with qualified legal counsel to analyze these issues for your own operation.

How do I decide whether the camp is an appropriate place for a child with a disability? What if I think the child would truly be happier somewhere else — can I refer them?

Your definition of what is “appropriate” (maybe “comfortable” from your viewpoint) may not be the same as a child with a disability wanting access to your program. It is a good idea to develop essential eligibility requirements for the various aspects of your programming (see “What kind of system should I establish to evaluate who we can serve?” on page 10). This will allow you to be more proactive in determining what is appropriate, and what modifications may be feasible, when faced with a child with a disability (and his or her parents) wanting access to your program. As mentioned above, the law requires that qualifying organizations allow individuals with disabilities mainstream access to their programs, unless the organization can justify denying access based upon one of the limitations outlined above.

However, sometimes, whether or not the individual has a disability, it can become clear that another program would better suit the experience the applicant is seeking. Talking with the child and her parent(s) can assist you in understanding what they are looking for. The ADA regulations indicate that referrals are okay, as long as you would refer individuals with disabilities and without disabilities in the same situation.¹⁷ Of course, if, for example, you find that making modifications to allow access would result in an undue burden on your organization, you can certainly assist the individual in finding another program.

What if I am unsure about whether a particular condition is a defined ‘disability’ under the ADA? It doesn’t seem clear to me.

You are right, it isn’t clear. As mentioned earlier, Title III regulations give some examples of disabilities (a physical or mental impairment that substantially impairs one or more major life activities). However, the list is not exclusive. In addition, sometimes it can be difficult — on the front end — to determine whether an individual’s “condition” puts him or her in the protected “disabled individual” category under the ADA. Importantly, many conditions may not qualify as ADA protected “disabilities” but clearly present a medical or other screening concern for your organization. In any close case, it is valuable to go through the steps and analysis to determine whether you can realistically allow the individual to come. If you go through an ADA-type analysis, you can address any ADA concerns as well as handle any medical or safety concerns (see below).

What if a child was kicked out of her last three camps for behavior problems? Do I have to accept her?

It probably depends. Many programs that do not provide a therapeutic experience include language in their marketing materials, outlining that their program is not geared to address or rectify behavior or emotional issues (other programs are geared for this). However, if the root of the behavior or emotional issue is a protected “disability” under the ADA, you probably have an obligation to go through an ADA analysis to determine whether you can take the child, with or without modifications to your program (in such a case, you could ultimately deny access if you found undue burden, threat to safety, or fundamental alteration — see explanation above).

What kind of system should I establish to evaluate who we can serve?

Many organizations develop essential eligibility criteria that focus on the physical and cognitive requirements for participation in their programs. This can assist organizations in determining whether individuals can participate, with or without modifications or accommodations.

In addition, consider these ideas in developing a proactive system:

• Develop questions that can elicit information from participants about potential conditions/problems. If problems come up, engage the individual in a dialogue about potential modifications that will allow participation.
• Assure that your camp application and related forms (including any eligibility criteria) do not “screen out” or exclude individuals with disabilities, unless you have a specific, legitimate (e.g., safety) reason for doing so.
• Train staff to deal with these issues fairly, sensitively, and consistently, and in an individualized, non-stereotyped manner. In difficult cases, potentially have one or two individuals who can handle the call/inquiry. Make careful decisions, and take the time to think through the potential options.
• Use outside resources (e.g., a consulting physician, interest groups or associations for specific disabilities, the individual’s physician) in making decisions about potential modifications/safety issues. (see the resources mentioned in this article).
• If you find an individual has a medical condition or disability, determine whether they can participate in the program with or without modifications to the program. To assist here, you can refer to that break down of “essential eligibility requirements” you already have in place! These requirements can include both cognitive and physical requirements.
• When considering potential modifications, consider consistency (e.g., can you allow the same modification in the future?).
• Accurately document any screening decisions you make, whether you allow an individual to participate or not, and, whether or not you believe it involves the ADA. In close cases or gray areas, consider undertaking an ADA analysis. Document your analysis of the issues and the basis for the acceptance or denial.

Medical screening issues can incorporate an ADA piece, or turn into an ADA analysis. Again, in the case of a gray area, it is probably best to take a conservative course and go through steps to analyze ADA issues. Remember, in many cases, you may not be sure if a condition will ultimately be determined a “protected disability” under the ADA. If appropriate and sensitive steps are taken, potential legal exposure can be minimized.

Do my new buildings need to be accessible?

In a nutshell — yes. Newly constructed places of public accommodation in addition to any alterations to existing facilities (after January 1993) must comply with outlined accessibility requirements.¹⁸ Importantly, existing public accommodations are required to remove barriers (architectural, communication, transportation) to the extent it is “readily achievable.”¹⁹ The regulations give excellent examples of how to remove these barriers.²⁰

What are some good resources for me to access in order to figure out ADA compliance? Help, I don’t know where to turn!

There are many resources available to you — both those on the Internet, and those that are a phone call away. It doesn’t cost you a cent to access most of these resources. The Department of Justice has established a comprehensive program to provide technical assistance to the general public (and has a Title III Technical Assistance Manual available at no charge). In addition, grants are awarded to organizations wanting to provide technical assistance — there are many. For example:

• The Justice Department’s “Disability Rights Section” — 800-514-0301
• “Meet the Challenge” — 800-949-4232
• Rocky Mountain Disability & Business Technical Assistance Center — 800-949-4232
• Internet resources, including www.ada-infonet.org

How can I help camps to adopt an attitude of partnering with parents to find a solution?

Spreading the word at meetings and conferences is the quickest way to assist. Really, the law requires that you partner with the child/parent to determine if successful modification or accommodation is possible to allow the child access to your program. An added benefit to this partnering effort is that, hopefully, you develop a rapport with the parent that will assist you in more fully understanding the child’s needs, sensitively integrating the child into the group, and importantly, addressing any added safety issues, should the child ultimately enroll in your program.

Conclusion

Don’t stick your head in the sand and be afraid to address the ADA’s access to program requirements. The last thing you want is to be unprepared when you get that first call. Yes, some of your activities are already infused with inherent and other risks that pose safety issues — even for those without disabilities. However, access can be appropriately allowed, in many cases — and the law requires it! By addressing ADA access requirements proactively, you will be better able to determine whether disabled individuals can participate in your program — when the time comes. Oh — and if you want a great introduction to crafting reasonable modifications for those with disabilities, read E.B. White’s The Trumpet of the Swan. Published in 1970, this lesser known White classic about a unique Trumpeter Swan would be an excellent read for you and your campers!

© 2002 Catherine Hansen-Stamp

About the Author: Cathy Hansen-Stamp is an attorney in private practice in Golden, Colorado. She consults with and advises recreation providers, recreational product manufacturers/sellers, and related organizations on risk management and legal liability issues. Cathy speaks and writes on these issues, both regionally and nationally, and coauthors the Outdoor Education and Recreation Law Quarterly with Charles R. ‘Reb’ Gregg (www.lawquarterly.com). She is a member of the Wyoming, Colorado, and American Bar Associations and can be reached at 303-232-7049 or e-mail reclaw@hansenstampattorney.com. Web site: www.hansenstampattorney.com.

References
¹ See, 42 U.S.C. 12182, et seq. Title III also covers access and design for buildings and other structures. Title I provides disabled individuals access to employment opportunities if the individual can perform the essential functions of the job ‘with or without reasonable accommodation.’ (See 42 U.S.C. 12111, et seq). Title II contains requirements for public entities.
² See 42 U.S.C. 12181 and 12182(a).
³ See generally, 42 U.S.C. 12182.
⁴ 42 USC 12102(2).
⁵ 28 Code of Federal Regulations (CFR) 36.104.
⁶ See, 42 U.S.C. 12182(b)(2)(A)(i).
⁷ See 42 U.S.C. 12182(b)(1)(A), (B) & (C); 28 CFR 36.203.
⁸ 42 U.S.C. 12181(1) and accompanying regulations at 28 CFR 36.104.
⁹ Compare Brown v. Tenet ParaAmerica Bicycle Challenge, 959 F. Supp. 496 (D.C. Il 1997) and Elitt v. USA Hockey, et al., 922 F. Supp 217 (D.C. Mo. 1996) (ADA Title III does not apply if no physical place of accommodation or if simply membership organization) with Schultz v. Helmet Youth Pony League, et al., 943 F. Supp. 1222 (D.C. Ca. 1996) (…[d]efendants are “a place of public accommodation” under the ADA irrespective of their link to any physical facilities).
¹⁰ See 42 U.S.C 12188(a) and (b).
¹¹ See generally, 42 U.S.C. 12182.
¹² See 28 CFR 36.104.
¹³ See 28 CFR 36.208; See also, Montalvo v. Radcliffe, et al., 167 F. 3d 873 (4th Cir. 1999) (highlighted in the Spring 2002 issue of the Outdoor Education & Recreation Law Quarterly — www.lawquarterly.com.)
¹⁴ See 28 CFR 36.104 defining ‘physical or mental impairment’ to include those with hearing impairments. Other conditions mentioned (the list is not exclusive) include: orthopedic, visual and speech impairments, cerebral palsy, epilepsy, muscular dystrophy, cancer, heart disease, diabetes, mental retardation or illness, learning disabilities and HIV disease.
¹⁵ See 42 U.S.C. 12182(b)(2)(A)(iii); 28 CFR 36.303.
¹⁶ See 42 U.S.C. 12182(b)(2) 28 CFR 36.301.
¹⁷ See 28 CFR 36.302.
¹⁸ See 42 U.S.C. 12183 and accompanying regulations.
¹⁹ 42 U.S.C. 12181(9), 12182(b)(2)(A).
²⁰ See 28 CFR 36.304.

Originally published in the 2002 Fall issue of The CampLine.