The below article was written by John N. McGovern and originally published in the Fall issue of Texas Recreation & Park Society Magazine.
The nation celebrated a birthday of sorts this past summer. On July 26, 2019, the signing of the Americans with Disabilities Act (ADA) turned 29 years old. Texan George Herbert Walker Bush, then the President of the United States, wielded the pen in 1990 in the White House Rose Garden. Flanked by advocates for people with disabilities, he proudly signed into law a piece of legislation that was years in the making.
In the ensuing 29 years, we have seen regulations issued by the US Department of Justice (USDOJ), design standards developed by the US Access Board, and countless lawsuits and settlement agreements. There are many smart practices in this area. The nationwide parks and recreation agency accreditation process has adopted ADA requirements too. These address policies, programs, parks, and facilities.
The ADA establishes workplace protections for employees and candidates with disabilities, mandates access and inclusion by businesses and nonprofits, and importantly for Texas parks and recreation agencies, mandates access to facilities and sites and inclusion of people with disabilities in the rich and diverse recreation programs offered in the Lone Star State. We can learn a lot about the right way to implement the ADA by taking a peek at some good and bad strategies by parks and recreation agencies across the country.
President Bush signed into law a bill that provided extraordinary tools to enforce this new civil right for people with disabilities. There are four principal means of enforcement:
The most effective and efficient way to beat an ADA complaint is to avoid an ADA complaint. This is not a surprise...discriminating on the basis of disability is wrong. It is not the best way to meet your mission and improve the quality of life in your community. The simplest way to beat an ADA dispute is to embrace the ADA mandates. In every year, make sites more accessible and make programs inclusive. Do this:
Ask every risk manager you know: avoidance or prevention is better than resolving a problem years later. Every PARD will want to spend fewer dollars today to avoid spending unnecessary funds years later to fix a site or facility.
Enter into a settlement agreement. Going to court is unpredictable and expensive. Stubborn people wind up in court. The ADA mandates for state and local governments is not going away. If US DOJ, US DOI, or a plaintiff in federal district court knocks on your door, propose a settlement. It will help if your agency can show some good faith, such as a CIP that includes access work, a completed access audit, and a functioning transition plan that is funded every year. You are likely at this level of the process because something wasn’t done. A parks and recreation director told this author “I thought it was enough to have the transition plan, I didn’t think we actually had to budget for the work every year!”
A caution here is necessary. We have seen many cities with a transition plan that was prepared by the Engineering or Planning departments. Those plans make curb ramps and sidewalks the priority, instead of parks and recreation facilities. Do be certain that your jurisdiction has a transition plan that does not make parks or recreation facilities second class citizens, with a low priority for retrofit. A blended plan, that makes curb ramps and sidewalks that serve important parks and facilities, is the right way to go.
Go ahead, go to federal district court. Roll the dice. Will the judge know the trend in ADA decisions about programs, sites, and facilities is in favor of the plaintiff, not the defendant local government? Your agency is likely in court because the plaintiff thinks the agency failed to do something. Do you have rock-solid proof that you did do the task the plaintiff says you did not do? Let’s look at some examples.
Program Issue: if your PARD will not provide one-to-one staff for a child with a disability in our programs, we have one question. Why? The title II regulation calls for agencies to make “...assignment of aides to beneficiaries...”. The regulation does not say “...except no one-to-one is required.” Do not test this regulatory language. Follow the eight-step inclusion process and if after conducting an assessment, determine the appropriate staff level for the registrant. That may be one-to-one, it may be one-to-three.
Policy Issue: if your PARD has not yet adopted a service animal policy, or a policy about Other Power Driven Mobility Devices, and where both can go, make it a priority before you lose in court. Convene meetings of user groups and risk managers and adhere to the title II 35.136 and 35.137 requirements to create a disability-neutral policy on these topics.
New Construction: in Texas, projects of more than $50,000 require plan review by a Registered Accessibility Specialist (RAS) and a walkthrough by that RAS before occupancy. The RAS must be independent and cannot be one of your employees. Know your RAS access experts and ask more often for their help and advice.
Existing Facilities: the title II 35.105 access audits were to be completed by January 26, 1993. That is a long time ago. Many parks and recreation agencies did not audit existing facilities until after 2010, when the US DOJ adopted scoping and technical requirements for parks and recreation assets such as playgrounds, boating and fishing areas, golf courses, sports fields and courts, shooting ranges, and exercise facilities. The 35.150(d) transition plan requirement is that agencies have a plan by July 26, 1992, and complete all access retrofits by January 26, 1995. We will suggest that fewer than 5% of the roughly 1,500 general purpose governments (cities and counties) and special districts in Texas met this 1995 deadline. If your PARD does not have a transition plan, and did not complete access audits, these tasks ought to be in your budget for this year or the coming year. Every day that passes without these is another day of exposure.
Put your head in the sand and believe that an ADA complaint won’t come your way. While this won’t help when the dispute does arrive at your doorstep, you may feel less stress until it does. It is not unusual to see legal fees top $1,000,000in an ADA dispute. Remember that a losing PARD will pay the legal fees of the winning complainant.
Exceed the minimum requirements, and remember that the ADA sets a floor, not a ceiling. The interface between design and construction is never perfect. Instead of specifying ramp slops at a maximum of 8.33%, target 7.9%, leaving room for error in the field or unforeseen circumstances.
In programs, there is no reason why a PARD cannot have a nurse on call, to administer insulin, anti-seizure medication, and perform other tasks that enable a person with a disability or health condition to stay in your programs. The incidence of disability is rising, not decreasing, as Texans live longer and stay in their home communities. Agencies will get requests for supports that you have never heard of before.
The impact of disability on PARD programs, policies, existing sites, and new sites can be managed in a positive way. Embrace theADA requirements. That is the only way to stay ahead of the curve. Ask often about the access preferences and priorities of your residents, and make no plan without discussing ADA requirements first, not last.
Stay current on how technology is changing the way people with disabilities and health conditions receive treatment. Anti-seizure nasal sprays, blood sugar reads with a sensor, not a finger prick, and more innovations are not just coming...they are here.
Finally, make this a priority for every employee in the Department. From park operations staffs to lifeguards to center directors to planners to administrators, treat this like we did when risk management became the issue of the day. Include access and inclusion in every staff meeting agenda, and every report to elected officials. The agency that complies reluctantly is the agency that is sued and loses three years later. Don’t take that risk. All of your community will benefit from a proactive stance.