©2006 Catherine Hansen-Stamp and Charles R. Gregg*
A teen who is deaf 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 a deaf individual apply. She understands that the Americans with Disabilities Act (ADA) applies, and so she checks into the cost of interpreters — it appears staggering. She is also concerned about safety and communication with the instructors and other campers in the camp and loss of revenue if she has to fill a camp slot with a non-paying interpreter. Or two! But she wants to comply with the law, and assist this teen. Time is ticking away. What is she required to do? Where can she turn for assistance?
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 sensitive area for day and resident camps, outdoor program centers, conference and retreat centers, and outdoor adventure education programs. Qualifying programs must consider allowing individuals with disabilities 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 a person 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, have HIV, diabetes or cerebral palsy, or who suffer from a psychological or mental condition. Federal regulations5 that accompany the law provide 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 individuals with disabilities? 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
One approach is to develop essential eligibility criteria for your programs and activities (discussed below), breaking out the essential components of the activity, and its physical and cognitive requirements. A camp can make these criteria available on its Web site or with the health form (relevant for applicants with or without disabilities). Whether or not you have developed these criteria, you should consider describing the types of activities that participants will be engaging in, including location, altitude, climate, etc. (in your health form, or provided with the health form). This information can assist the camp and the family (and any licensed medical personnel) in determining whether participation is possible, and if so, any appropriate modifications. It provides an important context for camper families, both for questions seeking general health information or information about potential disabilities. [Note that developing essential eligibility criteria and collecting health information is not just about determining access to programs for those with disabilities. It allows programs to screen all applicants — to understand and effectively deal with any medical or health concerns before participation and to screen out (or refer to another program) applicants who, for medical reasons or otherwise, cannot or should not attend the program.7 If developed, essential eligibility criteria should not be applied selectively, but equally to all applicants, regardless of disability].
In addition to asking specific questions in your health form about medications, allergies, and health history, etc., you can consider a couple of catch-all questions towards the end, like:
- Does camper have any condition (e.g., mental, physical, emotional), either identified above or otherwise, which might affect their health or well-being, the well-being of others, or affect their ability to engage in camp activities? If so, please describe.
- Are there any limitations on camper's ability to participate in any camp activities? If so, please describe (including any adaptations or modifications appropriate or necessary).
Of course, it is important for camps to check with their legal counsel and consulting physician to understand special issues and local law and practice, as they develop these materials.
These types of questions should elicit honest information from camper families, allowing the camp to begin a valuable dialogue with the family about how to consider participation, with or without potential modifications to the activity(s).
Once you have identified an applicant with a disability, one of your greatest resources will be a dialogue with the family, and potentially, with the applicant's physician, school counselor, or others familiar with the applicant's disability and modifications utilized in the past. Consider a meeting or telephone conference involving these various individuals, to discuss the issues, potential modifications and how you might arrive at a productive solution. (See resources listed at the end of this article). This partnering effort will likely allow the camp to arrive at a quicker and more favorable resolution.
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 a person with a disability even though they are not disabled. Be careful not to make assumptions about people, and treat everyone on an individualized, nonstereotyped basis.
Friends tell me that I have to allow individuals with disabilities "mainstream" access to my programs, but what does that mean?
That means that you must allow people with disabilities access to your program in the most integrated setting "appropriate to the needs of the individual."8 Simply providing a separate program for people with disabilities is most likely not enough, and does not meet the overall intent of the law.9 If a person with a disability can participate, with or without 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.
Does the ADA Title III apply to my organization?
As mentioned in the introduction, qualifying organizations are private entities (as opposed to public (governmental) entities10 — 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"11 (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. Further, ACA Standards require compliance for accredited camps.12 The law contains an exemption for religious organizations and private clubs, although it is limited in its scope.13 Certainly check with your legal counsel if you have any question. Even if there is doubt, many organizations believe that accommodating individuals with disabilities is the right and ethical thing to do.
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. 14 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, a person 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 United States Attorney General can be notified and may choose to file suit against you in matters regarded as important to the general public. Organizations proven to have discriminated against people with disabilities are subject to civil penalties of $50,000 for the first violation and $100,000 for any subsequent violations.15 Bottom line, it behooves you to make a proactive effort to comply with the law and allow people 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 people with disabilities with access to your programs. Generally, qualifying organizations are required to allow people with disabilities mainstream (vs. separate) access to their programs (and make reasonable modifications, if necessary). Access (including proposed modifications) 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 program or activity (for the individual and others); or 3) compromise the safety of others attending the camp session or program.16
Defining each of these limitations can be a difficult 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.
- Undue burden: In determining whether the proposed modification (such as an auxiliary aid or service) results in an undue burden, regulations identify that 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.17
- Direct threat to safety: In order to deny access based upon the notion that access would be a "direct threat to safety," regulations and case law clarify that 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.18
- Fundamental alteration: Recent case law has clarified when (and when not) allowing access to those with disabilities "fundamentally alters" the nature of the program or activity. If allowing access, including any proposed modification, would alter the "essential character" of the game or activity, denial may be justified. In a recent case involving a health club, the court found that allowing a member who uses a wheelchair to have two bounces in a racquetball game . . . was inconsistent with the fundamental character of the game . . . , and so affirmed the health club's denial of the requested modification.19 Alternatively, in a well publicized golf case, the U.S. Supreme Court held that disabled golfer Casey Martin should be allowed to use a golf cart in a golf competition, and that allowing the modification would not fundamentally alter the competition. The Court found that the tournament's "walking rule" . . . was neither an essential element of the game, nor an indispensable feature of tournament golf.20
I've just received an application for a child who is deaf. Is this individual a person with a disability? 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.21 Whether or not you must accept them into your program is another matter. You may find that you cannot accept the applicant based upon one of the three grounds discussed above — undue burden, fundamental alternation of the camp program, or direct 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.22 A practical and beneficial approach is to include the applicant, early on, in a discussion about potential modifications. As mentioned above, oftentimes, the individual is quite familiar with potential modifications, and/or organizations or services that can assist. Engaging the individual or family in a dialogue is an excellent way to partner, develop a rapport, and achieve a mutually acceptable solution.
Can I charge the parent extra if I decide to hire an interpreter to assist the deaf child during the program?
The federal regulations state that you cannot "impose a surcharge" on an individual with a disability to cover the costs of modifications.23 However, let's say you have determined that it is going to be financially challenging for your organization to hire an interpreter for a child who is deaf. Under the ADA, you can consider other alternatives (auxiliary aids and services) for effective communication. Maybe there is a qualified counselor, proficient in sign language that could assist in the situation. Maybe you can consider a complimentary camp experience 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 that of an individual 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 below). 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 those 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 (either with your camp or another camp) would better suit the experience the applicant is seeking — particularly if a large percentage of the selected program's activities will be problematic. Talking with the child and his or her parent/s can assist you in understanding what the applicant is looking for. The ADA regulations outline that referrals are okay, as long as you would refer disabled and nondisabled individuals in the same situation.24 Of course, if you conclude that you have a legitimate basis to deny access, 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" is a protected disability 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 depends. Many organizations that do not provide a therapeutic experience include language in their marketing materials, outlining that their program is not geared to address or rectify severe 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 previous explanation).
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 include analyzing the fundamental elements of each activity and the fundamental skills necessary to participate in each activity. Some programs break this down into 1) activity; 2) essential components; and 3) performance criteria (physical and cognitive). Make those criteria available on your Web site. This can assist organizations in determining whether individuals can participate, with or without modifications (including any auxiliary aids or services).
In addition, consider these ideas in developing a proactive system:
- Develop questions that can elicit information from participants about potential conditions or limitations (often included in the health form request for information).
- Engage the individual, early on, in a dialogue about potential modifications that may allow participation.
- Assure your admissions policies, including the camp application and related forms (or eligibility criteria) do not discriminate against individuals with disabilities; and importantly, do not "screen out" or exclude individuals with disabilities, unless you have a specific, legitimate (for example, safety) reason for doing so.
- Train staff, including your camp registrar, to deal with these issues fairly, sensitively, and consistently, and in an individualized, non-stereotyped manner. In difficult cases, potentially consider having 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, adaptive equipment manufacturers/sellers, associations for specific disabilities, the individual's physician) in making decisions about potential modifications/safety issues.
- If you determine that an individual has a medical condition or disability, decide whether they can participate in the program, with or without modifications to the program. In considering modifications, analyze those three factors. That is, will allowing access with or without modifications 1) fundamentally alter the nature of the program; 2) result in an undue burden on the camp; or 3) create a direct threat to safety? To assist here, you can refer to that break down of "essential eligibility requirements" you already have in place!
- When considering potential modifications, consider consistency (for example, 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 camp facilities, in addition to any alterations to existing facilities (after January, 1993), must comply with outlined accessibility requirements.25 Importantly, existing public accommodations are required to remove barriers (architectural, communication, transportation) to the extent it is "readily achievable."26 The regulations give excellent examples of how to remove these barriers.27
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; www.ada.gov
- "Meet the Challenge": 800-949-4232
- Disability & Business Technical Assistance Center: 800-949-4232 (connects you to one of the ten regional centers closest to you); www.adata.org
- Internet resources including www.ada-infonet.org (tax credits available!)
- U.S. Access Board: physical barrier accessibility standards: www.access-board.gov; 800-USA-ABLE or 202-272-5434.
United States Forest Service Accessibility Guidebook for Outfitters/Guides Operating on Public Lands: 2004 Edition, find it in PDF at: www.fs.fed.us/recreation/programs/accessibility/; or contact Janet Zeller at firstname.lastname@example.org. This resource provides some good examples ofessential eligibility criteria and lists additional resources. Note that those operating their facilities — or even those just running a program — on Federally owned lands under a permit issued by a National Forest or other Federal agency may have additional compliance requirements under applicable laws, as referenced in their permit (see discussion in Guidebook).
How can I help camps to adopt an attitude of partnering with parents to find a solution?
I think that spreading the word at meetings and conferences is the quickest way to assist. The law encourages you to partner with the child/parent to determine if successful modification 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.
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, many recreational 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 individuals with disabilities 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 (than White's Charlotte's Web) classic about a unique Trumpeter Swan would be an excellent read for you and your campers!
*This article contains general information only and is not intended to provide specific legal advice. Recreation providers should consult with a licensed attorney regarding application of state and federal laws specific to their business or operation.
Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers, recreational product manufacturers, and related organizations on legal liability and risk management issues. Hansen-Stamp speaks and writes on these issues, both regionally and nationally. She has co-chaired (with Reb Gregg) the first three CLE International conferences on Recreation & Adventure Law & Liability held in Vail and Denver, Colorado, in 2003, 2004, 2005, and (to be held in) 2006. She serves on the High Mountain Institute boards of directors and is a member of the Wyoming, Colorado, and American Bar Associations. She can be reached at 303-232-7049, or e-mail email@example.com;
Charles R. "Reb" Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. Gregg is an active speaker and author in the field of managing risks of legal liability in education and recreation programs. He has served as legal counsel to The National Outdoor Leadership School since the late 1970s and serves as legal counsel to numerous other education, recreation, and study abroad programs. Gregg is a member of the Wilderness Risk Managers' Committee and the Accreditation Council of AEE. He is President of Friends of Big Bend National Park. He can be reached at 713-982-8415 or e-mail firstname.lastname@example.org; www.rebgregg.com.
Reprinted with updates from the Fall 2002 issue of The CampLine.
|1. See, 42 U.S.C. 12182, et seq. Title III also covers access and design for buildings and other structures. Title I provides individuals with disabilities 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 Medical Screening: How Far Do You Go?, Charles R. Gregg & Catherine Hansen-Stamp, Spring 2002 issue of the (now inactive) Outdoor Education & Recreation Law Quarterly.
|8. See 42 U.S.C. 12182(b)(1)(A), (B) & (C); 28 CFR 36.203.
|9. The law and regulations indicate that separate programs may be appropriate in limited circumstances, but only after a thorough consideration of mainstream access. 42 U.S.C. 12182(b)(1)(A)(iii) states: "It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability . . . with a good, service . . . that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service . . . that is as effective as that provided to others."
|10. 42 U.S.C. 12181(6).
|11. 42 U.S.C. 12181(1); 28 CFR 36.104.
|12. See ACA Accreditation Standards for Camp Programs and Services (1998 Ed.), SF-12 and SF-14, and p. 197 "Accessibility Guidelines."
|13. 42 U.S.C. 12187 and see discussion in The Americans With Disabilities Act Title III Technical Assistance Manual, pp. 4-6 (1992), Dept. of Justice.
|14. 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).
|15. See 42 U.S.C 12188(a) and (b).
|16. See generally, 42 U.S.C. 12182.
|17. See 28 CFR 36.104.
|18. 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 (now inactive) Outdoor Education & Recreation Law Quarterly, Chares R. Gregg & Catherine Hansen-Stamp).
|19. See Kuketz v. Petronelli, et al., 821 N.E.2d 473 (Mass. Sup. Ct. 2005).
|20. See Martin v. PGA Tours, 532 U.S. 661 (U.S. Supreme Court 2001).
|21. 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.
|22. See 42 U.S.C. 12182(b)(2)(A)(iii); 28 CFR 36.303.
|23. See 42 U.S.C. 12182(b)(2); 28 CFR 36.301.
|24. See 28 CFR 36.302.
|25. See 42 U.S.C. 12183 and accompanying regulations.
|26. 42 U.S.C. 12181(9), 12182(b)(2)(A).
|27. See 28 CFR 36.304.
Originally published in the 2006 Winter issue of The CampLine.