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THE ADA INCLUSION MANDATE: IMPLICATIONS IN SOUTH CAROLINA. Presented at the South Carolina Recreation and Parks Association Southern Leisure Management and Trends Institute on February 2, 2018. Prepared and Presented by John N. McGovern, JD, Owner and Principal, WT Group Accessibility Practice.
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THE ADA INCLUSION MANDATE: IMPLICATIONS IN SOUTH CAROLINA Presented at the South Carolina Recreation and Parks Association Southern Leisure Management and Trends Institute on February 2, 2018
Prepared and Presented by John N. McGovern, JD, Owner and Principal, WT Group Accessibility Practice Want this PowerPoint? Email McGovern at john.mcgovern@rac-llc.com or do it the old-fashioned way and exchange business cards.
OUR CONTENT TODAY... • Recreation Inclusion Mandate • Just what is a reasonable modification? • Guidance: Court and Administrative Decisions and Smart Practices • Conclusion and Resources
Who is a Person with a Disability? • Three part test • Condition or disorder • Substantial affect • One or more major life areas
THE EIGHT-STEP RECREATION INCLUSION PROCESS • The title II 35.130 mandate that programs are available in the “most integrated setting” • California to Connecticut, South Carolina to Illinois, Florida to New Jersey • Incidence of disability in South Carolina • Three-part definition of disability
What is Inclusion? • Title II Definition • All programs offered are open to inclusion • Appropriate professional staff oversee process • Cannotrequire participation in special and adaptive programs, instead of inclusive programs
Steps in the Inclusion Process • Invitation • Registration process • Assessment • Plan • Staff Training • Ongoing Communication • Implementation • Evaluation
The Inclusion Process: the Invitation • Welcome your residents with and without disabilities with something like this: • The Greenacre County Parks & Recreation Department invites people with and without disabilities to enjoy our programs, parks, and facilities. For more information call Dana Brown at xxx-xxx-xxxx or email her at dbrown@greenacreparks.org. • Relates to the 35.106 Notice requirement
The Inclusion Process: the Registration Process • Every registration form…important warning for decentralized registration systems • Consistent language, something like this: I need a modification because of disability to enjoy this program. Y N • Relates to the 35.130 supports requirement
An examplefrom New Jersey...fails title II “If you require a reasonable accommodation for any type of disability to participate in City of Greenacre Recreation, please contact Dana Black at xxx-xxx-xxxx. Three business days advance notice is requested.”
Let’s Talk… • Modification, not accommodation… • Why do I have to call Dana? • Is advance notice permitted under title II?
Registration Form… I need a modification because of disability. YES NO
The Inclusion Process: the Assessment • Parks and recreation agencies must conduct an assessment when asked for modifications • Anderson v Little League • Staff it…barter it…partner it…but do it! • A Certified Therapeutic Recreation Specialist is the best person to evaluate the interface between recreation and disability
The Inclusion Process: The Plan • What must happen in the program? • What prerequisite skills, if any, are needed? • What conduct expectations exist in the program? • What did you find out in the assessment? • What supports will enable participation?
The Plan (continued) • Clear list of supports you will and will not provide? • What support generates the greatest success? • What support is least intrusive? • What support is preferred by the registrant? • What supports change the nature of the program?
The Plan (continued) • Does the Department have staff that can provide the selected supports? • If not, where can you get them, because get them you will! • Does the leader of the program have a good attitude regarding inclusion? • Are staff experienced in supporting inclusion?
The Inclusion Process: Staff Training • Whatever the plan is, support staff must be trained • The staff leading the program must be trained • Other staff, including supervisory staffs, must have at least an awareness of the plan • Remember to protect the right to privacy
The Inclusion Process: Communication • Lead staff reaches the registrant and describes the plan and introduces, if necessary, the support staff • When possible, defer to the wishes of the registrant, but in the end the Department makes the decision • Document your decisions…use a master grid that shows all supports being provided, in which programs, and by whom • Keep a log of all communications
The Inclusion Process: Implementation • Support staff must follow the plan • With experience, staff can respond to variations comfortably and effectively • Support staff must follow the plan
The Inclusion Process: Evaluation • Use formative evaluations to assure quality control during the program • Use summative evaluations after the program • Ask support staff, the program leader, other program staffs, participants too! • Change your process, or planning, or supports, based on the evaluations
Just what is a Reasonable Modification? • Mandated Supportsinclude… • Changes to rules and policies • Acquiring and providing adaptive equipment (Marriott) • Providing a lower staff ratio (Pocantico Hills, Burriola, Barrington) • Auxiliary aids and services (sign language interpreter)
Just what is a Reasonable Modification? Should you provide this? • Personal Supports include… • Changing clothes of a registrant (swimming, fitness) • Holding and providing prescription medicine • Hygiene support (toileting) • Cleaning or feeding through a feeding tube
Just what is a Reasonable Modification? Mustyou provide these? • Quasi-Medical or Medical Supportsinclude… • Removing or inserting a feeding tube • Injecting insulin or other medicine • Rectal administration of anti-seizure medication (US v NISRA)
BAR T Year Round Programs for Kids DOJ settlement (10/5/17) • BAR T is a nfp subject to title III, using 30 public schools as sites for summer and afterschool programs • BAR T terminates boy from programs because of disability related behavior, without ever considering and implementing reasonable modifications • “Ensuring that childcare providers do not discriminate on the basis of disability is an issue of general public importance.”
Remedial Action by BAR T • Invite people with disabilities and make reasonable modifications for participation • If behavior is an issue, consult with family, attempt behavior supports, before temporary suspension • Name agency coordinator, develop inclusion policies • Name on person at each site who can receive requests and either grant it or ask for more info
Lessons Learned... • The eight-step inclusion process! • Cloudy connection between countywide schools and nonprofit results in title II and III hybrid • Do not just say no, go through the process, do an assessment, make a plan, try it, and if it doesn’t work...then consider saying no • Most of this settlement was already required of BAR T, knowing ADA requirements saves human and fiscal resources
YMCA Augusta settlement • Family YMCA of Greater Augusta (GA) is title III • Family of boy with cognitive impairment provides aide for son while at YMCA, and YMCA accepts the aide as a change to rules and policies • Title III prohibits the charging of a fee or surcharge for making a reasonable modification • YMCA then says the aide must be a YMCA member too...
Remedial Action by YMCA • Draft policy allowing home-sent aide acceptable without YMCA membership, and post policy on website • Distribute policy to all YMCA branch employees • YMCA will require no membership payments from complainant from the time it implemented the unfair policy to the date of the settlement • YMCA sends all policies on this subject to US DOJ
Lessons Learned... • The eight-step inclusion process! • The YMCA already had an obligation to provide additional staff and the family was saving the YMCA real money... • Critical here to know what is, and is not, a reasonable modification... • Most of this settlement was already required of the YMCA, knowing ADA requirements saves human and fiscal resources
Others... • Pocantico Hills NY • Barrington, IL • Burriola v. Greater Toledo YMCA
The Centralized Inclusion Model • Efficient use of resources • Consistency regarding supports & communication • One source for compliance answers, risk management data • Inclusion support line items across the Department, not in one area (aquatics, golf, sports, centers, etc.)
The Inclusion Model: Staffing • Preferred: FT to manage inclusion and conduct assessments • Preferred: this person should be a CTRS • Preferred: PT employees who, with training, are inclusion support staffs • Do NOT: make community TR supervisor also oversee inclusion…two different skill sets • Opinion: if agency does not have a CTRS managing inclusion services this ought to be a budget priority
Five Key Elements • Poor Customer Service: better response, even if saying no • Lack of Options: none or few other services available • Support Provided Grudgingly: don’t act like you are doing the registrant a favor • Lack of Understanding of title II: pretending you know it or ignoring title II does not help…embrace it! • Follow the Leader, not the Loser: many agencies have adopted smart practices, follow them, not those that have lost court and administrative decisions
Title II 35.130 advance notice • Title II 35.135 personal services • Title II 35.136 service animal policy • Title II 35.137 other power driven mobility devices
Title II 35.139 direct threat clause • Title II 35.130(d) most integrated setting requirement • Title II 35.138 ticketing requirements • Title II 35.133 maintenance requirement
Lean towards yes • Citizen advisory committees are essential as both communication and risk management • Exceed the minimum
Complete access audits of policies • Complete access audits of programs and services, and how the town, city, or county supports people with disabilities • Develop a transition plan that moves promptly to retrofit assets
Mandate annual training for program contractors and professionals • Provide annual training for employees • Fund and implement the transition plan
Have not yet experienced an ADA lawsuit? Learn from those who have... • Fire drills: use the Project Civic Access cases as in-house risk management scenarios for towns, cities, and counties • Address the unusual elements that towns, cities, and counties develop (community gardens, dog parks, disc golf parks, skate parks, and more) • Do address domestic abuse and emergency shelters • Do address polling places
RESOURCES... • US DOJ is an excellent source at 202-514-0301 or www.ada.gov for program and policy advice • US Access Board is best for interpretation of the 2010 Standards for Accessible Design at 202-272-0080 or www.access-board.gov • DBTACs great second or third opinion at 800-949-4232
The WT Group, LLC Accessibility Practice • Doing business as Recreation Accessibility Consultants, LLC • Two Certified ADA Coordinators, one RAS, one CASp • One attorney licensed in IL • John McGovern at 224-293-6451 or john.mcgovern@rac-llc.com
Conclusion... • Access and inclusion is everyone’s job • As the types of disabilities and treatments we see become more complex, expect more unusual requests for reasonable modification • With the static status of guidance in Washington, realize you may have to solve the problem without authoritative federal guidance • Invite, ask, and listen before doing...
