Program Access and the ADA

One of the most common misperceptions about the Americans with Disabilities Act is that buildings are “grandfathered in.” In other words, because they are old, people believe the buildings do not have to comply with the ADA. Although there may be grandfather clauses under other local codes, there is no grandfather clause under the ADA. We simply treat buildings differently based on whether they were constructed before or after the standards took effect. In new construction, there is a higher expectation to meet the accessibility standards. Without exception, new construction must be accessible. For example, in new construction, all restrooms should include the larger wheelchair accessible toilet compartment. In existing facilities, the alteration should meet the new construction standard unless there are constraints, such as placement of load-bearing walls, HVAC systems, or plumbing, which would make the application of the standard technically infeasible. For example, a building constructed in the 1960s likely does not have an accessible restroom, and a section of a wall may need to be removed to enlarge the space. If the wall is load-bearing, affecting the structural integrity of the building, it could be considered technically infeasible to remove the wall and therefore not required. However, there is still a need to provide an accessible restroom in the building and other design options should be investigated.

Under Title III of the ADA, applying to the 12 categories of public accommodations, businesses shall remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense (§ 36.304 Removal of barriers). This requirement for readily achievable barrier removal is an ongoing requirement that is based on the individual resources of the business. What is considered “readily achievable” for a mom and pop restaurant may be very different from what is considered readily achievable for the McDonalds Corporation. The Title III regulations go on to list 20 different examples of readily achievable barrier removal. DOJ also goes on to suggest the priorities for removing barriers under Title III:

Priority 1 – Accessible approach and entrance.
Priority 2 – Access to goods and services.
Priority 3 – Access to public toilet rooms.
Priority 4 – Access to other items such as water fountains and public telephones.

But in Title II of the ADA, applying to units of state and local government, the emphasis for barrier removal is on the concept of “program access” instead of “readily achievable” referenced in Title III for businesses.

No qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.

ADA Title II. 28 CFR Part 35. Subpart D—Program Accessibility. § 35.149 Discrimination prohibited.

Program access is the foundational principle for Title II of the ADA relative to physical accessibility. When viewed in its entirety, programs, services, and activities must be accessible to people with disabilities. In parks and recreation, we generally think of programs as being staffed and structured with a registration process or program hours. But the term program under the ADA is a much more broad concept. Under U.S. federal law and specifically the ADA, program access extends to all of the experiences offered in park and recreation settings by units of state and local governments. The Title II program access standard requires that all programs, services, and activities are accessible. What follows are just a few examples of programs and experiences offered in parks and recreation settings:

• Baseball and softball
• Basketball
• Biking
• Birding
• Canoeing and kayaking
• Concessions
• Curb ball
• Disc golf
• Dog park
• Environmental education
• Exercise
• Fishing
• Golf
• Hiking
• Historical preservation
• Horseback riding
• Ice skating
• Interpretation of nature and history
• Nature area use
• Pavilion use
• Pickleball
• Picnic and grilling
• Playground
• Restroom
• Skateboarding
• Skiing and snowboarding
• Snowshoeing
• Sports fields
• Swimming
• Tennis

These activities are the experience or programs in which the public engages at a public park, nature area, or recreation facility. The public entity should have a thorough understanding of the primary and secondary experiences offered at each site, visitor use patterns, the length of time visitors use a site, the volume of use, and the frequency of use. For instance, the primary activity at a park could be baseball, and using hiking trails could be a secondary experience. At other sites, more than one or even several primary activities may bring people to that site. This data will help to guide prioritization of accessibility improvements.

A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.

§ 35.150 Existing facilities (a) General.

At sites where programs, services, and activities are offered but currently not physically accessible, the public entity must either (1) make the physical environment accessible to facilitate participation in the program, service, or activity, or (2) relocate the program, service, or activity to an accessible location. The program access standard for public entities under Title II is a more stringent standard and does not apply to public accommodations covered under Title III.

This paragraph does not—

(1) Necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities;

(2) Require a public entity to take any action that would threaten or destroy the historic significance of an historic property; or

(3) Require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with §35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public entity.

§ 35.150 Existing facilities

(1) General. A public entity may comply with the requirements of this section through such means as redesign or acquisition of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. A public entity, in making alterations to existing buildings, shall meet the accessibility requirements of § 35.151. In choosing among available methods for meeting the requirements of this section, a public entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.

§ 35.150 Existing facilities

Title II is also more stringent in that it requires units of state and local governments with more than 50 employees to create transition plans for barrier removal to achieve program access. The purpose of the transition plan is to identify barriers, the method to remove the barrier, and the timeline for removal. Many park and recreation departments have been working diligently over the last several years to update transition plans to achieve program access based on the 2010 ADA Standards that include recreation facilities along with other proposed rules. An ADA transition plan demonstrates the entity’s good faith effort to comply with the law. It is recommended that transition plans are available for public inspection until such time that all physical and communication barriers to programs, services, and activities have been removed.

Excerpted from Skulski, J. “Best Practices in Physical Inclusion.” Inclusive Leisure: A Strengths-Based Approach edited by Mary Ann Devine and Lynn S. Anderson, Human Kinetics, 2023, pp 125-151.