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Facility Management Focus ADA: Its Evolution and Current Implications for Public Entities by Susan A. Ladendorf The first nationwide poll of people with disabilities, conducted in 1986 by the Louis Harris organization, identified two major reasons for the isolation and nonparticipation of disabled persons in the ordinary activities of life: not feeling welcomed and the lack of safe access to public facilities. Public administrators play a vital role in reversing these feelings and creating safe access to public facilities. Discrimination has many forms but often stems from thoughtlessness or ignorance. It is everyone's responsibility to prevent this from occurring by becoming educated, acting responsibly and sharing their knowledge with others. This article attempts to do just that by providing an overview of the Americans with Disabilities Act's history and taking a look at its current implications on state and local government agencies that provide outdoor recreation facilities, services and programs. The Americans with DisabilitiesAct (ADA) was written to guarantee equal opportunities for individuals with disabilities in employment, state and local government services, transportation, public accommodations and telecommunications. The Act, otherwise referred to as the Equal Opportunity for Individuals with DisabilitiesAct, is landmark legislation designed to protect the civil rights of people with disabilities by eliminating discrimination against them. THE LEGISLATIVE EVOLUTION OF ADA
1948 The Act of June 10, 1948 Its roots are deep-seeded, tracing back to the Act of June 10, 1948, which prohibited employment discrimination based on physical handicaps within the United States Civil Service. Subsequent legislative acts that support the premise of the ADA are listed in the chart below. Despite the civil rights legislation, there remained a need to provide further protection in the areas of private employment, public accommodations, transportation and state and local governmental activities and services. In 1984, the National Council on the Handicapped, originally established under Title IV of the Rehabilitation Act of 1973, was reestablished as an independent federal agency to review all federal laws and programs that affect disabled people. The Council's task was to de Illinois Parks & Recreation * September/October 1995 * 27 velop and submit a report to the President and Congress, including recommendations for improving those laws and programs. The Council's report, Toward Independence, suggested development and enactment of the ADA. An important contributing factor to the inception of this initiative was the consideration of disabled persons' views regarding problems they face. Council members solicited feedback from disabled individuals nationwide through consumer forums. Feedback indicated that the primary problem facing people with disabilities was discrimination. A bill was proposed reflecting the Council's recommendations. It was revised numerous times and adopted by the 101st Congress in 1989. President Bush signed theADAinto law on July 26, 1990. Implications for State and Local Governments Employment Title I of the ADA addresses employment provisions that apply to state and local governments, as well as numerous other entities. Basically, this section prohibits discrimination against qualified individuals with disabilities (including applicants for employment and employees) in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment. It applies to recruitment, advertising, tenure, layoff, leave, fringe benefits, and all other employment-related activities. A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that she or he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation. A written job description, prepared before advertising or interviewing applicants for a job, is proof of the job's essential functions. These provisions represent the general premise of Title I but are not exhaustive. Public administrators are required to know and practice all of the employment requirements contained in Title I. Employers with 25 or more employees have been covered by Title I since July 26,1992. Employers with 15 or more employees have been covered since July 26, 1994. Programs and Services Public services provisions are addressed in Title II of the ADA, which specifically prohibits discrimination against qualified individuals with disabilities in all programs, activities, and services of public entities. In this case, the term qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies or practices, the removal of architectural, communication. or transportation barriers or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. The requirements of the ADA for state and local governments became effective on January 26,1992. This legislation affects how state and local government agencies provide outdoor recreation facilities, programs, and services to the public they serve. Public administrators face challenges relating to Title IIs requirements. These challenges stem from the law's language and the lack of resources to assist administrators in complying with the law. For example, one of the regulations authorized by the ADA pertains to accessible design of recreation facilities and outdoor developed recreation areas. The Access Board is the federal agency responsible for developing those accessibility design guidelines. It has prepared the Americans with Disabilities Act Accessibility Guidelines (ADAAG), which ensure that places of public accommodation and workplace become accessible but do not address recreation facilities. Realizing the need for such requirements, theAccess Board appointed an advisory committee to provide advise and inform board members on accessible design in these environments. The Recreation Access Advisory Committee (RAAC) prepared recommendations for accessibility guidelines relating to recreational facilities and
28 * Illinois Parks & Recreation * September/October 1995
outdoor areas such as court and rink sports facilities, golf courses, and trails. During the last year, the committee's recommendations were being reviewed to formulate the proposed rule. The final rule was expected to be published mid-year in 1997. At the July 12,1995, board meeting, a work plan was approved to address the board's overall rule-making agenda and the next steps to be completed for rule-making issues. The Access Board's plan for the recreation rulemaking involves convening regulatory negotiation or "reg neg" committees on two of the six sections: play areas and outdoor developed areas. Other sections will be completed in a more traditional rulemaking format. (See explanation below.) How To Apply ADA Today The absence of official specific accessibility guidelines relating to outdoor recreation facilities presents a dilemma for administrators that are renovating existing or constructing new facilities or areas. They may apply the guidelines available (i.e., ADAAG for structural facilities) and may refer to the recommendations in the advanced notice of proposed rule prepared by the RAAC, but they are taking a chance that design changes may be mandated by future legislation. An important point to present is that the Department of Justice (DOJ) may consider good intentions and may not assign punitive damages when significant efforts are made to make a facility accessible to all populations. However, there is no documented position statement issued by the DOJ at this time. Existing Facilities With regard to existing facilities, Title II requires a public entity to ensure that individuals with disabilities are not excluded from services, programs, and activities because existing buildings are inaccessible. State or local government programs, when viewed in their entirety, must be readily accessible to and usable by disabled people. This standard of program accessibility applies to facilities of a public entity that existed on January 26, 1992. This does not imply that public entities necessarily have to make each of their existing facilities accessible. They may provide program accessibility by numerous methods, including altering existing facilities, acquiring or constructing additional facilities, relocating a service or program to an accessible facility, or providing services at alternate accessible sites. The law states that structural changes required to ensure program accessibility must be made as expeditiously as possible, but no later than January 26, 1995. A public entity that employs 50 or more persons must have developed a transition plan by July 26, 1992, identifying the steps necessary to complete such changes. Public entities were required to complete a self-evaluation of their current policies and practices by January 26, 1993. The purpose of the self-evaluation was to assist agencies in identifying and correcting policies and practices that are inconsistent with Title II's requirements. Public entities with 50 or more employees must retain their self-evaluation for three years. These documents are evidence of a public entity's good faith efforts to comply with Title II's requirements; therefore, it behooves all agencies to retain this record. New Facilities or Alterations to Existing Buildings State or local governments that construct new buildings or make alterations to an existing building must make them accessible. To be in compliance with the ADA for new construction or alterations, public entities must use ADAAG or more stringent standards identified in local, state or federal codes. For new construction and alterations, government entities are not entitled to the elevator exemption, which permits certain private buildings under three stories, or under 3,000 square feet per floor, to be constructed without an elevator. It is important that public administrators understand the meaning of alteration and act within the guidance of the ADA. By being proactive, they can save time and money by avoiding unnecessary lawsuits. The decision in the case of Kinney vs. Yerusalim supports this premise. In this case, disabled individuals sued the Secretary of Pennsylvania's Department of Transportation and Philadelphia's Commissioner of Streets Illinois Parks & Recreation * September/October 1995 * 29 Department under the ADA. Plaintiffs sought to compel the city to install curb ramps or other sloped areas on all streets that had been resurfaced since the effective date of the ADA. The U.S. District Court held that street surfacing was an "alteration" affecting usability and the city was obligated to install curb ramps. The city's obligation to install curb ramps applied to resurfacing contracts for which bids were let after the effective date of the ADA. Had the defendants been well-versed in the ADA'S language and requirements, they would have known that installing curb ramps in this situation was mandated by the ADA. Programs and Services All recreation professionals involved with providing programs, activities and services should be knowledgeable about the ADA'S requirements and should obtain training related to making their services accessible to all people. In order to comply with the ADA, a state or local government must eliminate any eligibility criteria for participation in programs, activities, and services that screen out or tend to screen out persons with disabilities, unless it can establish that the requirements are necessary for the provision of the service, program or activity. The state or local government may adopt legitimate safety requirements necessary for safe operation, if they are based on real risks, not on stereotypes or generalizations about individuals with disabilities. Also, a public entity must reasonably modify its policies, practices or procedures to avoid discrimination. If the public entity can demonstrate that a particular modification would fundamentally alter the nature of its service, program or activity, it is not required to make that modification. There are two law cases which relate to these requirements. The first is Coleman vs. Zatechka. where a university student, Kristy M. Coleman, brought suit against the University of Nebraska's Director of Housing, alleging that the university's refusal to assign her a roommate violated the ADA and the RehabilitationAct. The U.S. District Court held that Kristy Coleman was qualified under both the ADA and the Rehabilitation Act to participate in the university's roommate assignment program. It also ruled the eligibility requirements, that students use no more than half the space in a room and that students do not receive frequent daily visitors, which might disrupt their roommate's solitude, were unnecessary to the program. It determined that they could not be considered essential eligibility requirements for purposes of the Rehabilitation Act and ADA. Additionally, the Court held that the university's blanket policy of prohibiting roommate assignment to students with disabilities, who require personal attendant care, violated both Acts. This precedent stresses the need for sound policy development by administrators of public entities. The other case, Anderson vs. Little League Baseball. Inc.. involved a youth baseball coach filing civil rights action claiming that his exclusion from the field would violate the ADA. The U.S. District Court held that the coach's exclusion from the playing field, without an individual assessment, fell short of the standards required under the ADA. The Court stated that "it was necessary for league to make individualized assessment on nature, duration, and severity of risk posed by coach in wheelchair, probability that potential injury could actually result, and whether reasonable modifications of policies, practices or procedures would mitigate risk." This precedent exemplifies the need for public entities to make case-by-case decisions regarding policy issues. Playground Surfaces Perhaps one of the most talked about and often confusing issues in the Americans with Disabilities Act relates to accessibility in a play area. In an article published in the March/April 1994 issue of Illinois Parks & Recreation, John McGovern states, "Park 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 in connecting accessible play elements and play events. Do not use wood chips for this purpose and, most certainly, do not use sand or pea gravel. What McGovern is referring to is that the 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 on playgrounds cannot be made of products such as wood chips. While the Department of Interior would quickly agree that there are no specific design standards for playgrounds, the Department would also be quick to highlight that playgrounds are not exempt from the ADA. Title II's (Section 35.130) regulations require that qualified individuals with disabilities be given an equal opportunity to participate in public entities' programs. (Note: The Department of Interior is the designated agency for enforcement of complaints filed in the federal government through Title II. Individuals also have the ability to use a private court to render a decision on their state and local government case.) The City of Green Bay asked the Department of Interior permission to wait until the Federal Access Board's RecreationAccessAdvisory Committee completes its guidelines for access in recreation areas, which will include outdoor play environments. The DOI elected not to wait. Currently the requirements in specific are: the surface must be firm, stable, slip resistant and—in the fall zone—resilient.. This is a requirement for all accessible routes as stipulated in the ADAAG and recommendations of the American Society for Testing and Materials (ASTM). The industry will continue to evolve and new products for play area surfaces will be created. Professionals and elected officials alike must follow the current guidelines established by the Access Board, use common sense, and tread carefully in this area. Local, State and National ADA Policy One of the stipulations in Title IV of the ADA addresses its relationship to other laws. Basically, it states that any 30 * Illinois Parks & Recreation * September/October 1995 other law which provides greater or equal protection for the rights of disabled people than what the ADA provides will not be invalidated or limited by the ADA. This creates policy problems for state and local governments. If a state code or local ordinance establishes a more stringent requirement than what is stipulated in the ADAAG, the more stringent requirement should be enforced. However, individuals who develop state and local codes write them to be more stringent from some perspectives and the codes do not always reflect the needs of disabled people in the community. For example, a building code may require that metered water faucets be installed in public entity facilities. Metered water faucets represent a more stringent requirement and are allowed to be used according to the ADAAG; however, many disabled people do not like the design and many cannot even use them. The people who wrote the building code were thinking about water conservation and vandalism issues. This illustrates the need for public policy makers to communicate with each other, be knowledgeable about a variety of codes and be able to effectively balance all considerations. Conclusion In the words of former U.S. Senator Lowell P. Weicker, Jr. (the original sponsor of Senate Bill 2345 or the Americans with Disabilities Act, 100th Congress, Second Session 1988), "It is high time that we as a society formally and forcefully prohibit the discrimination that is the greatest handicap to Americans with disabilities." The Americans with DisabilitiesAct represents the social movement aimed towards that goal. We, the leaders in public service and professionals devoted to improving the quality of life for others, have an obligation to uphold its rulings. The process presents challenges and opportunities. Let us fulfill our responsibility and commit as individuals to removing barriers, both attitudinal and architectural. Susan A. Ladendorf is a graduate in parks and recreation administration from Indiana University and a professional from Bloomington, Indiana. She is currently completing her master's work in the School of Public and Environmental Affairs at Indiana University. Fora complete listing of sources, -write to the author at Thompson-Room 403, Bloomington, IN 47406. Contributing author to this article is Lorry Reiner, CLP, executive director of the Northeast DuPage Special Recreation Association and commissioner for the Buffalo Grove Park District. Peggy H. Greenwell, an accessibility specialist/or the Access Board supplied the information about the Access Board and its "reg neg" initiatives. 31 * Illinois Parks & Recreation * September/October 1995 |