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WHAT TO DO WITH NON-RESIDENTS

An old friend of ours at Recreation Accessibility Consultants emailed a common question about the treatment of non-residents in inclusive recreation placements. Below is the email, and our response (references to specific agencies have been removed). This vexing problem arises because of the differences in community attitudes toward inclusion…some support it, and some don’t, even though it is mandated by title II of the Americans with Disabilities Act (ADA).

As a reminder for those readers from outside Illinois, an SRA is a special recreation association. An SRA is an intergovernmental partnership authorized by state statute. An SRA coordinates and provides recreation programs for people with disabilities and assists the partner governments in supporting recreation inclusion. Each SRA is governed by a board comprised of (usually) one person from each partner community. This collaborative model has been wildly successful since its inception in Illinois in 1970, with 29 partnerships existing today that serve more than 200 Illinois communities.

THE LETTER

May 7, 2009

Hi John,

I was hoping you might be able to help me better answer a question raised by one of my Board Members.

At our last meeting, we did an inclusion review, and I reminded them that inclusion services need to be provided for any individual they accept in their programs (including non-residents). Because most park districts accept non-residents, I see that this situation could happen in three different ways.

1.    The person they accept could be a non-resident from a neighboring SRA.
2.   The person they accept could be from another agency that is a partner within   our SRA.
3.    The person they accept could be from a community, not in an SRA at all.

It is the third situation that warrants further discussion. One of our Board Members has asked if his community could assess a fee to them (the family) for inclusion services, because the family doesn't pay tax dollars for SRA services. I suspect the answer to this is "no," but is there something specific I can say to answer this question more effectively? Thanks for your help.

Janet Porter, CTRS
Executive Director
South Suburban Special Recreation Association

After a phone conversation about her inquiry,
Here is our response:

Hi Janet,

I’d be happy to give you an answer. The title II regulation issued by the US Department of Justice can be found at 28 CFR Part 35. Or, click on this link (http://www.ada.gov/reg2.html) and you’ll see the version published with preamble and text in 1991.

The title II regulation has many “do’s” and “don’ts” and one of the “don’ts” relates to surcharges or higher fees.

In section 35.130(f) of that regulation, the subject is specifically addressed. It says:

“A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with a disability to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part (the word “part” refers to the federal regulation).”

So what does 35.130(f) mean?

It means that if Greenacre Park District accepts non-residents without disabilities, and charges a non-resident fee of, as examples, $25 more, or 10% more, it must use the same approach for non-residents with disabilities.

In our discussion on the phone you raised a couple of different scenarios. I would like to comment on those.

Scenario 1: Park District in your SRA receives registration from resident of another park district in SSSRA and the registration requires inclusion support.

Approach: You have two options here. First, many of your SRA partner governments have agreed to treat residents of other communities in your SRA as residents (that’s what it sounded like to me). So the non-resident (but resident of another community in your SRA) could be allowed in at resident rates. Second thought, there is absolutely nothing wrong with charging a higher fee so long as it is the same higher fee charged to non-residents without disabilities.

Scenario 2: Park District in your SRA receives a registration from a resident of a park district outside your SRA boundaries and the registration requires inclusion support.

Approach: Based on what I know from our discussion, you have one option here. Pursuant to 35.130(f), there is absolutely nothing wrong with charging a higher fee so long as it is the same higher fee charged to non-residents without disabilities. But the Park District that received the registration cannot charge a non-resident fee for the program and then pass on the cost of, let’s say extra staff, to the non-resident registrant.

Thoughts

Here are several things to consider:

First, if a park district or village bans all non-residents from programs it conducts, they could arguably ban non-residents with disabilities. But this must be an all-or-nothing scenario. And from a practicality perspective, few if any park districts ban non-

residents. So although it is a hypothetical solution it is probably impractical.

Second, during my time at NSSRA, probably in the early 2000’s, we entered into reciprocal agreements for inclusion support with the three SRAs that surrounded us. It worked well. If a resident of SRA Z, outside the NSSRA communities, registered for a recreation program at one of the NSSRA communities, we assessed, staffed, and supported him or her as if he or she were a resident of a NSSRA partner. But, pursuant to the reciprocal agreement, we then sent a bill for the staff cost or sign language interpreter costs to the home SRA of the registrant. Might a reciprocal agreement work with the SRAs that are your neighbors?

Third, continued registration by people in communities outside your SRA might mean that those communities are logical potential partners of your SRA. This is perhaps more of a political question than an issue with a logical solution. But I raise it anyway.

Fourth, the phrase in 35.130(f) regarding “group” of people with disabilities would concern me too. A park district should be very careful about applying different sets of non-resident requirements. Therefore, if one of your SRA partner park districts permits non-residents from other partner agencies in your SRA to register at one rate, but then requires a higher non-resident rate for registrants from outside the boundaries of your SRA, that may too violate 35.130(f).

Fifth, a park district can certainly regulate nonresident registration. For example, give residents first crack at programs, with non-resident registration starting a week later. This neutral administrative requirement is fair. What a district can’t say is that non-residents with disabilities must wait a week, while non-residents without disabilities can register whenever they choose.

This is a deep subject but I’ll stop here. Non-resident policies attract a lot of attention for other discriminatory reasons too, like race, gender, religious belief, and age. So whatever this park district does, it should be done with considerable thought about all of the potential consequences.

recreation accessibility consultants (rac)