The Americans with Disabilities Act (ADA) Title II regulation applies to the more than 89,000 units of state and local government — many of which operate park and recreation programs. Two important concepts govern how agencies respond to requests from people with disabilities when it comes to supporting them in programs. Both of these concepts relate to providing recreation in the most inclusive setting, where people with and without disabilities can interact together.
While the concepts are related, I have always treated the two terms differently. Let’s talk about both.
What is Essential Eligibility?
Essential eligibility is, in my view, a minimum set of circumstances that determines who can be in a program (regardless of ability). I say there are three key factors: capacity, charges and conduct.
- Capacity: If the ceramics class has space for only 10 and I am the 11th to register, I don’t get in. It isn’t because I am male, of Irish descent, or use a wheelchair. It is because I registered after the class was filled and there is no room to take other registrants.
- Charges: If there is a fee for ceramics, I have to pay it or it has to be paid for me. In the alternative, I must be eligible for whatever type of reduced-fee program the department operates. I am not a fan of free registrations.
- Conduct: If there are conduct expectations, such as no hitting, I must be able to meet those with or without a reasonable modification. Many people forget the last part of this requirement and focus only on the issue of conduct. That is not the right approach. This conduct issue is of course related to the assessment process. We regularly advise agencies that when they want to pause participation on a registrant due to behavior, that unless they did an assessment and have a behavior plan, it is unwise to do so.
Depending on the program and other circumstances, there may be more than the 3 C’s.
- Age might be one, but be careful here. A child with a disability that is one year out of the maximum age range should be admitted, in my opinion. But, I don’t think it is appropriate for a sexually mature 18-year-old to be in a program for preschool kids.
- Gender might be one, but be careful here, too. In recreation league or club wrestling, this is changing quickly on this issue. I see more and more girls wrestling on what used to be boy’s teams, against boys. I applaud that. Also, more and more schools and colleges are seeing it as a women’s team sport. I applaud that too.
- Residency might be one, but be careful here, too. Residency is often seen by the courts as a pretext for racial discrimination. I am not saying there can’t be a nonresident rate; I do advocate for that. But excluding nonresidents is problematic.
What is Prerequisite Skill?
To the other concept, I see prerequisite skill as very different than essential eligibility. In Parks & Recreation magazine’s February issue, James C. Kozlowski, J.D., Ph.D. wrote an article about a court decision. In a nutshell, a coach had a player with a disability who wanted to be a pitcher. A prerequisite skill for a pitcher is that strikes must be thrown…the ball has to be in the strike zone. The court ruled against the parents of the player and went with the argument of the coach, who said the player chosen was a better pitcher. I’d have been happier if a pitch chart, showing where the pitcher with a disability threw, was contrasted to the other pitching candidates. But, it wasn’t brought up in court.
Therefore, I say yes, prerequisite skill can be required in some instances. I can’t get into swimming 2 until I have completed swimming 1. I can’t kayak alone until I have demonstrated effective kayak skills in a pool (of course, along with all other kayak 2 registrants). I can’t play saxophone in the orchestra until I have demonstrated my mastery of it in the stage band.
I do not think prerequisite skill is a factor in summer camps, afterschool programs, drop-in programs, and other general content programs or beginner level skill programs. Agencies, on a fairly regular basis, admit registrants with little interest or skill in the activity.
Finally, I feel strongly about the phrase “…with or without a reasonable modification.” I wish it had been written like this: “A person with or without disability, and with or without a reasonable modification, must meet the essential eligibility requirements for the program.” That opens the door to everything — staff, training, behavior plans, program plans, etc. Instead, the statement about essential eligibility ends with “with or without” language and is often not heard by staff.
Resources
Here is the definition language from title II:
"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."
Importantly, here is the US Department of Justice explanation of that three-line definition, found in the title II section-by-section analysis:
"Qualified individual with a disability." The definition of "qualified individual with a disability" is taken from section 201(2) of the Act, which is derived from the definition of "qualified handicapped person" in the Department of Health and Human Services' regulation implementing section 504 (45 CFR {84.3(k)). It combines the definition at 45 CFR 84.3(k)(1) for employment ("a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question") with the definition for other services at 45 CFR 84.3(k)(4) ("a handicapped person who meets the essential eligibility requirements for the receipt of such services").
Some commenters requested clarification of the term "essential eligibility requirements." Because of the variety of situations in which an individual's qualifications will be at issue, it is not possible to include more specific criteria in the definition. The "essential eligibility requirements" for participation in some activities covered under this part may be minimal. For example, most public entities provide information about their operations as a public service to anyone who requests it. In such situations, the only "eligibility requirement" for receipt of such information would be the request for it. Where such information is provided by telephone, even the ability to use a voice telephone is not an "essential eligibility requirement," because §35.161 requires a public entity to provide equally effective telecommunication systems for individuals with impaired hearing or speech.
For other activities, identification of the "essential eligibility requirements" may be more complex. Where questions of safety are involved, the principles established in §36.208 of the Department's regulation implementing title III of the ADA, to be codified at 28 CFR Part 36, will be applicable. That section implements section 302(b)(3) of the Act, which provides that a public accommodation is not required to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of the public accommodation if that individual poses a direct threat to the health or safety of others.
Conclusion
Understanding these concepts help park and recreation agencies make programs safe, inclusive and enjoyable. I hope this helps make these concepts clear for NRPA members — if you’d like to discuss this topic further, feel free to email me at jmcgovern@wtgroup.com.
John McGovern leads the Accessibility Practice at The WT Group, LLC. The WT Group is the exclusive member benefit provider of accessibility audits for NRPA members. Known across the country as an ADA expert, his parks and recreation career and law degree give him a perspective on ADA compliance that is unique.