Adjusting for Access:
Reasonable Modifications in Policies, Practices, and Procedures
One of the central requirements of both Title II and Title III of the ADA is the obligation to make “reasonable modifications in policies, practices, and procedures” to avoid unnecessary exclusion of individuals with disabilities.
The regulations for Title II, which cover state and local government programs, and Title III, which cover a variety of private businesses that offer goods and services to the public, both include similar language about this obligation.
It is important to understand the distinction between policies or practices that are themselves discriminatory, and policies which are neutral but which may need to be modified on a case-by-case basis.
Discriminatory policies are those that specifically exclude people because of disability and are often based on assumptions or generalizations.
For example: A recreation department or a fitness center prohibits all people with apparent mobility disabilities from participating in swimming classes. Individuals who use wheelchairs or other mobility devices, individuals missing limbs, and those who have noticeable limitations in walking or manual dexterity are not allowed to take any type or level of swimming class because management regards all such individuals as incapable of participating safely.
This policy, based on generalized fears about people with mobility disabilities, should simply be eliminated. If qualifications are needed for specific swimming classes or programs, they should be based on meaningful criteria and applied to everyone. For example, to take an advanced swimming class, all potential participants may need to demonstrate basic swimming abilities, or show evidence of passing a beginning class. Individuals with disabilities can be required to meet this standard, but cannot be subjected to additional or more stringent conditions.
Policies that are neutral, on the other hand, may need to be modified only on an individualized, as-needed basis in order to avoid unnecessarily denying opportunities to people with disabilities. The regulations for Title II and/or Title III address several specific examples:
Modifying “no pets” or “no animals” policies to allow individuals with disabilities who use service dogs, or in some cases miniature horses, to access public places;
Modifying “no vehicles,” “no coasting devices,” or “walk-only zone” policies to enable people with disabilities, in some circumstances, to use non-traditional mobility devices, such as golf carts or Segway® personal transporters;
Modify ticket sales and seating procedures for assigned-seat events in assembly areas such as arenas or performance venues, in order to help ensure that accessible seating locations are available for those who need them, and people can get information and purchase tickets for accessible seating the same ways tickets are purchased for other types of seating;
Modifying hotel reservation practices to ensure that individuals with disabilities can reserve available guest rooms with specific accessibility features, and be assured the specific rooms will be available upon arrival.
The fact that the regulations address these specific issues does not mean they are the only types of reasonable modifications that may be needed. There are countless examples of requests individuals with disabilities might make for adjustments to rules or changes in the way things are usually done, depending on the nature of programs or businesses.
These examples are based on technical assistance materials and regulatory analysis from the Department of Justice (DOJ):
A department store may need to modify a policy of only permitting one person at a time in a dressing room, if an individual with a disability needs assistance from a companion.
A town may need to grant a zoning variance to allow a business owner to install an entrance ramp that encroaches three feet into a normally required 12-foot set-back from the curb.
A county may need to help an individual with a mental disability understand and complete a complex, lengthy application for social services, even though applicants are typically expected to complete the application on their own.
Requests only need to be granted if they are disability-related and “reasonable.” Modifications do not need to be made if they would compromise legitimate safety rules or “fundamentally alter” the essential nature of services or programs.
The DOJ provides some examples of fundamental alterations:
A zoo would not need to permit a service dog in specific areas where the animals on display are the natural prey or natural predators of dogs, and the presence of a dog would cause the displayed animals to behave aggressively or become agitated.
A museum would not be required to allow an individual who is blind to touch delicate works of art if the art would be damaged or its integrity threatened.
Often, finding the balance between reasonable modifications and fundamental alterations means understanding the nature of the services and programs in question. Again, these examples based on DOJ materials may be helpful:
A restaurant is not required to prepare special dishes for customers who have disabilities. This would be a fundamental alteration in the nature of the restaurant’s services. However, if it is easy to omit a sauce or ingredient from a dish that is listed on the menu, a customer can request that the item be omitted. This would not be considered a fundamental alteration.
A testing agency may be required to allow an individual to use a basic calculator during an exam even if test-takers are not typically allowed to do so. If the objective of the test is to measure one’s ability to solve algebra equations, and the ability to perform basic math computations (e.g., addition, subtraction, multiplication, and division), is secondary to the objective of the test, then a basic calculator may be an appropriate testing accommodation. If, however, the objective of the test is to measure the ability to perform math computations, then it likely would not be appropriate to permit the use of the calculator, as it could fundamentally alter the purpose of the test and the value of the test results.
Determining when, where, and how to implement appropriate modifications of policies and practices often necessitates a process of engagement and interaction between individuals with disabilities and the operators of programs and businesses.
Operators can get ahead of the curve by reviewing their policies, practices, and procedures to ensure they are meaningful and up-to-date. Training employees so they know and understand policies, as well as how to respond to requests from individuals with disabilities (which, in some cases, may mean contacting a supervisor or manager), is also important.
As always, contact us (800-949-4232) with your questions about the ADA. We’re here to help you understand your rights and responsibilities and find your answer.