Since Title III of the Americans with Disabilities Act (ADA)[i], with some exceptions[ii], generally requires integrated access to programs for individuals with disabilities, camps and other outdoor programs have faced several challenges.
Importantly, campers seeking access may or may not have a legally protected disability.
They may nonetheless have a significant health issue, or simply not be ready or willing to handle what the programs have to offer.
This article examines the value in developing Essential Eligibility Criteria (EEC) for camp programs as a practical and ethical way to address this issue.
EEC includes both the cognitive (thinking, processing) and physical criteria necessary to engage in a particular activity, generally focused on risk-management considerations.
EEC allow applicants to determine whether they can participate in an activity based on their ability to perform the activity’s essential skills.[iii]
EEC should not be discriminatory, should be listed in order, should indicate whether a companion can assist, and should be simple and straightforward.
EEC can include general criteria applicable to all camp activities (e.g., the ability to understand and follow instructions) as well as additional specific criteria applicable to each activity (e.g., the ability to respond to verbal or visual signals when rock-climbing).
Importantly, if developed, EEC should be applied equally to all applicants, regardless of disability. Ultimately, in developing EEC, the camp is striving for a good fit between the camp and its campers.
Title III provides individuals with disabilities, under appropriate circumstances, “integrated” access to programs and facilities. Privately run programs are required to comply with the ADA if, among other things, they “operate a place of public accommodation” that affects commerce.
Title III prohibits discrimination against individuals with disabilities in the “full and equal enjoyment of the goods, services, facilities, privileges of any place of public accommodation.”
Qualifying organizations are required to consider reasonable modifications to “policies, practices and procedures” to provide access to those with disabilities. An organization is, however, entitled to limit participation in light of legitimate safety requirements or, in light of any other “legally” legitimate issues (see below).
Under Title III, an organization is permitted to develop EEC for its activities. The organization can make these criteria available on its website or in other materials.
This information can help prospective participants determine whether participation is possible, and at the same time begin an early dialogue with the organization to consider any concerns or appropriate modifications.
Organizations cannot impose eligibility criteria that screen out, or tend to screen out individuals with disabilities, unless those criteria are necessary for the provision of services.
An organization can impose legitimate requirements that are “necessary for safe operation,” which can logically be incorporated into any EEC. However, any safety criteria must be based upon “actual risks” and not on speculation, stereotypes, or assumptions about people with disabilities.
Ultimately, an organization must allow people with disabilities access to programs in the most integrated setting “appropriate to the needs of the individual.” Title III law and regulations provide, however, that separate programs may be appropriate in limited circumstances.
Organizations are allowed to ask applicants questions about whether or not they can participate in the program. Questions that elicit information about the applicant’s health or medical conditions allow the organization to understand any health concerns or limitations and consider risk-management issues.
In addition, this screening is consistent with the organization’s effort to align with its own non-discriminatory safety/risk-management focused EEC (if it has developed those), and with its need to determine whether or not it can implement modifications to allow access.
As described above, qualifying organizations are required to allow people with disabilities integrated access to their programs—and make reasonable modifications, if necessary.
Access is not required, however, if it would:
- Result in an undue burden on the entity
- Fundamentally alter the nature of the program or activity
- Compromise the safety of others attending the program.
Pair With Medical Screening
To better manage risks, inherent or otherwise, many camps obtain information from prospective campers (and/or require campers to obtain a physician’s examination), on various aspects of the campers’ health before these individuals participate in programs.
Wherever your camp is on the “screening” spectrum, obtaining some medical information from campers/families assists the camp in understanding—ahead of time—certain medical issues relating to camper participation and emergency-response issues[iv], and allows camps to address potential ADA modifications for those with disabilities (if applicable).
Developing EEC can be an excellent way to supplement existing “medical screening.” EEC can back up and ”tie-in” to your medical inquiries, equipping camp leaders with proactive solutions to avoid difficult issues arising at the front gate on opening day.
Importantly, EEC will provide direction to an inquiring public, giving the prospective camper and family the chance to assess upfront—not only whether the camper meets the camp’s essential “participation” criteria[v], but whether the camper wants to (“Is this the camp for me?”).
Medical screening and EEC can be combined to increase an accurate, informed, and healthy information exchange between camp and camper, resulting in attendees who are able and excited to participate, and staff that understand the general make-up of the group.
Commonly, organizations in the business of providing adventure or recreational activities—like camps—raise concerns about providing individuals with disabilities access to activities already infused with inherent and other risks. Camps fear that allowing such access may create increased risks for both the individual as well as for other campers.
The reality is that risk-management concerns can exist whether a particular camper has a protected disability or not. Developing EEC in tandem with thoughtful collection of medical information can be a proactive and common-sense way to approach access to your programs for all campers—not just for those with disabilities.
As a result, camps can endeavor to comply with any ”access” legal requirements, provide avenues for healthy information exchange, and be better prepared to appropriately address risk-management considerations for all campers.
*This article contains general information only, and is not intended to provide specific legal advice. Camps and related organizations should consult with a licensed attorney regarding application of relevant state and federal law, as well as considerations regarding their specific business or operation.
Catherine Hansen-Stamp is a practicing attorney in Golden, Colo. She consults with and advises recreation- and adventure providers and related organizations on law, liability, and risk-management issues. She speaks and writes frequently on these issues, both regionally and nationally. She is a member of both the Wyoming and Colorado Bar Associations and can be reached at (303) 232-7049, or firstname.lastname@example.org.
[i] All references to the ADA come from U.S. law, 42 USC 12101, et seq., accompanying regulations and Technical Assistance Manuals.
[ii] ADA Title III contains a limited exemption for religious organizations and private clubs. 42 U.S.C. 12187.
[iii] A camp’s EEC should consider a statement or disclaimer that clarifies the limits of the EEC. For example, prospective applicants should understand that EEC are not the only criteria for admission (they must pay, clear any required medical screening, etc.), that EEC may not contain ALL criteria for participation, and that meeting EEC does not equate to a guarantee of participants’ safety (impossible to guarantee in any case).
[iv] Obviously, whatever information the camp collects, it should be clear about the purpose and use of that collected information. The camp should confirm there is a structured and reliable system in place for collecting the information, and distributing it to appropriate individuals for their review. Importantly, in collecting information, the camp does not want to give the individual the impression that, having reviewed the information and allowed the individual to participate, the camp is assuring the individual’s safety, or providing an incident-free experience. Furthermore, from a practical perspective, a camp can never be certain it has obtained all information (individuals don’t know, refuse to disclose, disclose partially, or simply lie).
[v] Importantly, EEC may eliminate a later need for a camp to determine access for an individual with a disability based upon the three ADA-limiting criteria because the EEC have allowed the individual to accurately make this assessment upfront—on his or her own.