While the Rehabilitation Act prohibitions only apply to parks and recreation agencies or units of local government which receive or have received federal funds, the ADA prohibitions apply to all 85,000 plus units of state and local government, whether these entities have ever received federal funds.

Many parks and recreation agencies have been attempting to comply with the broad requirements of the Americans With Disabilities Act (ADA), which prohibits discrimination on the basis of disability. Prohibited discrimination can occur in recreation programs, parks and facilities, or in rules or policies. One of the problems in compliance has been the lack of court or administrative decisions to guide our decisions. Two recent administrative decisions are discussed in this article, and these should help parks and recreation agencies review our own compliance efforts.

ADA ENFORCEMENT OVERVIEW
A quick primer on who can file an ADA complaint, and for what purpose, is in order. The ADA is unique in several ways, one of which being that administrative remedies do not have to be exhausted before filing a complaint in court. While neither of the decisions discussed here are court decisions, this ability to "go straight to court" can cause agencies to pay more heed to administrative decisions. Why? Because a potential litigant who can be satisfied in an administrative process will likely save an agency several thousand dollars in attorney's fees and court costs.

Administrative complaints can be filed with the United States Department of Justice (DOJ). These are to be filed within 180 days of the date the complainant believes he experienced discrimination. For example, if Greenacre Park District refused to allow a person that was qualified to obtain a permit, the person would have 180 days from that date to file a complaint. However, if Greenacre Park District has a facility which is inaccessible, every day the facility remains in that condition is a potential violation, and a complaint may be filed within 180 days.

DOJ is not the only agency which can receive a complaint. The ADA "designated" other federal agencies in recognition of these agencies' experience in certain areas. For example, regarding a complaint against a parks and recreation agency, the United States Department of Interior can receive and decide a complaint. Regarding a complaint against a public school, the United States Department of Education can receive and decide a complaint. DOJ can also refer complaints which it receives to these agencies. Generally, each of these designated agencies has a civil rights office which handles complaints under the ADA, as well as Section 504 of the Rehabilitation Act and other federal civil rights laws. And remember, while the Rehabilitation Act prohibitions only apply to parks and recreation agencies or units of local government which receive or have received federal funds, the ADA prohibitions apply to all 85,000 plus units of state and local government, whether these entities have ever received federal funds.

Administrative decisions can require injunctive relief and the payment of fees and costs associated with the complaint, if the complainant wins. Winning is defined as an order to the defendant agency to do something it would not otherwise have done, or to stop doing something it does now. In other words, a hearing officer could demand an agency to install some specific product for accessibility, or stop enforcing a policy, or provide additional staff trained in how to work with a particular person with a disability.

Administrative decisions are not subject to appeal, but a defendant agency could elect to ignore the decision. This may subject the agency to a civil action brought by the person who filed the complaint, or an action in court brought by the Department of Justice, or both.

Do administrative decisions have the force of a decision in federal district court? No. But, administrative decisions are powerful tools in the shaping of a body of law, particularly in an emerging area of law such as we have with the ADA. Now, on to the decisions!

DAY CAMPS AND STAFF:
WHAT'S REASONABLE?
The New York Regional Office for Civil Rights (OCR) of the United States Department of Educa-

20 • Illinois Parks & Recreation • March/April 1994

tion (DOE) has issued a decision regarding provision of additional staff in day camp programs. DOE has told the Pocantico Hills, New York Central School District, which had denied registration for a child with disabilities in a summer camp program because of his disability, that such denial on grounds of economic difficulty was a violation of this child's civil rights, and the District has agreed to make reasonable accommodations for this child to participate in the summer day camp program, which may include providing additional staff.

Background
DOE received a complaint after the summer of 1992 against the Pocantico Hills, New York Central School District. The District conducted an annual summer recreational program for students in the District. The program was like a parks and recreation agency day camp, including arts & crafts and sports, and was not educational in nature.

Essential eligibility for the camp included attendance in grades K-8, completion of a registration form, and residence within the District. A child who met these criteria attempted to register and was denied a place in the camp. This child has disabilities, including a learning disability, weakened visual acuity, poor motor and memory integration, and impulsive and reactive behaviors. Children with these conditions are found in many of our programs.

The child participated in the two prior years, and his behavior was better the second year than the first. In prior years, an additional staff had been assigned to this child, and camp activities had been modified to accommodate his impulsive behavior. The application for the 1992 camp was received, and after consultation with the District Superintendent, the application was denied.

The District denied the placement on the grounds that because of this child's behavior disability, staff believed that it would be "...a good idea..." to keep the child out of the camp program. In retrospect, it was not a good idea. The District "...Superintendent informed OCR that he considered modifying the Program by assigning a camp counselor to the student, in accordance with District practice." "The Superintendent stated that he decided not to assign a counselor to the student for budgetary reasons." Making such a decision because of economics is very difficult to justify, as we see in this decision.

Elsewhere in the District's material promoting the camp, it was indicated that children with disabilities would be permitted to register and that reasonable accommodations, such as additional staff or alternative programs, would be made. The District made no effort to provide an alternative program.

Decision
OCR determined that the fiscal issue was a key concern of the District. A review of the total payroll for the camp program was necessary to determine if providing additional staff for this child would constitute an ADA "undue economic burden" on the District. The total salaries paid to the 94 employees hired by the District for the camp program was $153,839, with an average salary for a camp counsellor at $1,000. OCR noted that "...therefore, the hiring of another counselor would have increased the Program's budget by approximately 0.6%," or less than one-half of one percent.

The District did not consider other changes in rules or policies to make it possible for the child to participate, or consider an alternative summer camp placement for the child. Incredibly, the Superintendent stated to OCR "...that he believed that the student's behavioral problems would continue regardless of the camp program and that the District did not want to expend the additional money an alternative program would cost." This willingness to give up on the value of camp for this child seems to show a low appraisal of the value of recreation for this child.

When confronted with a child in a camp who may require additional staff supervision to participate, a parks and recreation agency is hard pressed to justify excluding that child solely because of economics.

Needless to say, OCR determined that the District denied the child the opportunity to participate in the camp program on the basis of disability, in violation of his rights under the ADA and Section 504 of the 1993 Rehabilitation Act. The District, on May 5,1993, signed a written assurance that it would take the necessary steps to come into compliance with the Section 504 and the ADA regulations, and to cease this discriminatory practice. OCR then closed this complaint, but will monitor compliance.

In its decision, OCR reminded the District that no employee or participant may be retaliated against for any connection to this complaint. This is important for parks and recreation agencies as well, as employees are often required to provide information about an event or the agency to someone with a complaint against an agency. This practice is protected under the ADA.

Analysis
What impact does this have on a parks and recreation agency? Certainly, when confronted with a child in a camp who may require additional staff supervision to participate, a parks and recreation agency is hard pressed to justify excluding that child solely because of economics. In this complaint, had the District provided additional staff (with adequate training), and the child still posed behavior problems that could not be resolved, perhaps at that point could a different placement been sought. And, if severe behaviors which posed a threat of imminent physical harm to others could not be accommodated by additional staff, perhaps at that time could the

Illinois Parks & Recreation • March/April 1994 • 21

Parks and recreation agencies planning new playgrounds, or planning to alter existing playgrounds, should heed this warning regarding materials used for surfaces forming an accessible route and connecting accessible play elements and play events. Don't use wood chips for this purpose, and most certainly, don't use sand or pea gravel.

child be excluded from the program.

This decision is one of the first to provide an analysis of the essential eligibility issue as well. This important title II concept appears here to include only the grade in which the child was enrolled, residency in the community served by the agency, and whether a registration form had been properly completed. If a child could meet these requirements with or without a reasonable accommodation, your agency would have to make such an accommodation.

Perhaps day camp managers should increase staff budgets incrementally to include the addition of an accommodation staff, or perhaps we should plan for a lower staff-to-participant ratio, and in effect have additional staff available. Whatever approach we take to prepare for the time this situation occurs in our camps, it is clear that the old argument of "I can't afford a staff member just for him" may be in jeopardy.

AN ACCESSIBLE ROUTE IN PLAYGROUNDS: WHAT'S AN ACCESSIBLE SURFACE?
The Washington, DC U.S. Department of Interior (DOI) Civil Rights Office has issued a decision in a complaint against the City of Green Bay, Wisconsin, Parks and Recreation Department which will have a substantial impact on playground design and construction. The DOI has told Green Bay that an accessible route of travel in playground cannot be made of products such as wood chips.

Background
A Green Bay family filed a complaint with the Department of Justice (DOJ) on March 4,1993, alleging a violation of the ADA by the City for failing to use an accessible surface in creating a route to play events in a newly constructed playground. The City purchased commercial cedar wood chips for use as the surface. DOJ referred the complaint to DOI as a designated agency under the ADA. DOI National Park Service officials investigated and issued a determination on November 29,1993.

The City and the Green Bay School District entered into a joint agreement to develop a playground in Green Bay. As required by title II of the ADA, some pieces of equipment were selected for their usability by children with physical disabilities. At public meetings prior to construction, the complainant objected to the use of wood chips for the accessible surface to connect these pieces of accessible play equipment.

The City and the School District elected to use wood chips despite these comments. A daughter in the family of the complainant has cerebral palsy and uses a wheelchair and an assistive walker for ambulation. During the course of the investigation, the complainant included a video showing "...that his daughter's wheelchair cannot operate in the wood chip surfaces of other playgrounds," in his correspondence with DOI.

Decision
DOI cited the ADAAG requirements that accessible routes be "firm, stable, and slip-resistant..." as found in ADAAG. Answering the City's claim that this requirement does not apply to recreational area surfaces, DOI says it does and holds the City to surfaces which meet these characteristics. Acknowledging the safety issues present in the design of playground surfacing, DOI notes that "the technology for surface materials and designs which meet both cushioning and access standards are available. ..."

Specifically, DOI's decision says that in new construction, defined under the ADA as construction commencing after January 26,1992, an accessible route must be provided and that it must be firm. stable and slip-resistant An accessible route would likely be defined as a route which connects accessible play events in the playground. From DOI remarks in the decision, it would appear that the need for resiliency as per ASTM requirements where the accessible route is within a fall zone, is acknowledged.

DOI gave Green Bay through mid-January to determine what type of surface to use, and through early March to complete the changes as ordered by DOI. The DOI decision is a final administrative decision. The City can elect to ignore the decision and risk litigation by the complainant or by DOI and DOJ.

The City responded to DOI on December 9. 1993. Portions of the response follow. The City reminds DOI that this is a shared site with the School District. This is not likely to have any effect on the decision, as the allocation of responsibility for the changes ordered by DOI will be between the City and the School District

The City had asked to be able to wait until the Access Board Recreation Access Advisory Committee completes its effort and generates guidelines for access in recreation areas. DOI elected not to wait. This is a predictable approach, as federal agencies believe that states, counties, municipalities, and public parks and recreation agencies have long been aware of access requirements because of the obligation to adhere to Section 504 of the 1973 Rehabilitation Act and title II of the ADA.

The City challenges the DOI assertion that surfacing materials are available which address both safety and access concerns. Specifically, the City alleges that waffle-block surfaces and poured-in-place rubber are not tested for resiliency under present methods at temperatures less than 30 degrees. Green Bay is concerned about the unproven resiliency in winter months.

Finally, the City comments about the impossi-

22 • Illinois Parks & Recreation • March/April 1994

Whether we agree with decisions like these or not, they shape what we can and cannot do in the next several years.

bility of completing excavation as ordered by early March, because of weather conditions, assuming the City complies with the DOI order. Generally, DOI has no obligation to reply. However, the City raises a good point regarding excavation during the winter. An answer on the discrepancy between resiliency testing requirements and the temperature in Green Bay is likely beyond the purview of DOI, but is a very important issue for the parks and recreation industry.

Analysis
This decision does appear to eliminate wood chips (and almost certainly sand and pea gravel) as an option for the accessible route of travel within a playground. But the elimination of this type of material should be of no surprise to anyone. Existing design requirements, found in the Americans Wth Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG), stipulate that ground surfaces used as an accessible route be firm, stable and slip-resistant. The decision does not prohibit the use of mixed materials, e.g. loose fill around a path of poured rubber mats.

Importantly, the decision is consistent with the direction of the Access Board Recreation Access Advisory Committee. That Committee has been working on the premise that an accessible route to playground activities shall connect the elements of the playground and shall be a surface which is firm, stable, slip resistant and, where within the fall zone, resilient as per ASTM F1292. Eventually, the Access Board will issue such a guideline for the design of recreation facilities and outdoor developed recreation areas.

Parks and recreation agencies planning new playgrounds, or planning to alter existing playgrounds, should heed this warning regarding materials used for surfaces forming an accessible route and connecting accessible play elements and play events. Don't use wood chips for this purpose, and most certainly, don't use sand or pea gravel.

CONCLUSION
These decisions have tremendous implications for agencies which provide recreation services and recreation areas for the general public. As per the ADA, all of our programs are to be accessible to people with disabilities. And, as we know from the requirements for new construction, recreation facilities and outdoor developed recreation areas, even in the absence of a recreation design guideline, shall be accessible to people with disabilities. Whether we agree with decisions like these or not, they shape what we can and cannot do in the next several years.

John McGovern is Executive Director of the Northern Suburban Special Recreation Association.