Summary:

The play area regulations drafted by the Access Board are quite good. We oppose any efforts to limit their applicability, or to reduce scoping in alterations. There is, in particular, no justification for any type of safe harbor for play areas or recreation facilities, as there have been no previous regulations with which to comply.

Comments/Responses to DOJ’s Questions:

Question 7: Should the Department exempt public entities (or owners and operators of public accommodations) from specific compliance with the supplemental requirements for play areas and recreation facilities, and instead continue to determine accessibility in these facilities on a case-by-case basis under existing law? Please provide information on the effect of such a proposal on people with disabilities and public entities.

No safe harbor should apply to elements for which there were no standards in the 1991 Standards. We believe that existing play and recreational facilities should not be provided with a safe harbor exception. Public entities should be required to bring these elements into compliance under existing facilities and program access standards. Facilities created between 1992 and 2008 should not be exempted from compliance simply because no standard existed in prior ADAAG versions. The rationale for other safe harbors – that entities that took action to comply should not be required to take further action to comply with new standards – simply does not exist here. And any concerns about burden are addressed through the program access, alterations and/or readily achievable standards.

Moreover, many title II entities have been covered by Section 504 for over 30 years with “program access” responsibilities. When the ADA became effective in 1992, there was no exemption for play and recreation facilities. Many have been working toward addressing the accessibility of their existing facilities. The Department itself has specifically addressed the lack of access to play areas and recreation facilities in settlement agreements and Project Civic Access. The Departments of Interior and Education have both, in response to ADA administrative complaints, entered into settlement agreements with municipalities (Interior) and school districts (Education) in which entities were required to adhere to Access Board guidelines for play areas. This exemption would be a major step backwards.

Further, there is no basis for this exemption in comments from the Department’s Advanced Notice of Proposed Rulemaking. The program access and readily achievable barrier removal standards should apply, and are already carefully crafted to take the needs of covered entities into account. Compliance with the new construction guidelines is what existing and altered facilities should be striving for.

Play areas and recreational facilities are facilities that have traditionally been inaccessible to people with disabilities. People with disabilities are often forced to go to wonderfully accessible, but segregated facilities that are provided by non-profit foundations (e.g. www.wildernessonwheels.org) in order to have access to fishing, hiking and camping. Children with disabilities and parents with disabilities are often forced to travel to far away playgrounds in order to access an accessible play area. Fifteen-year-old Jacob Honeyman, a wheelchair user from St. Charles, Illinois has only encountered accessible playgrounds while traveling in Missouri and Michigan. None of the seven playgrounds within walking distance of his home are accessible. Nine-year-old Adrianne Lucas, a wheelchair user from Denver, Colorado has to travel more than 90 minutes to play at an accessible playground. A recent New York Times article provided a number of examples in the New York metro area with few if any accessible playgrounds.

Other public entities have refused to make play areas accessible when local residents have requested it. Tammy Burton, a wheelchair user and mother of a toddler and preschooler in Boulder, Colorado, lobbied her city to make a local playground accessible. The city refused, claiming accessible swings created a liability risk.

Accessible play areas are used by children with disabilities, their siblings, friend and family members, as well as parents, grandparents, aunts, uncles, and child care providers who have disabilities but non-disabled children. The vast majority of playgrounds in this country provide no reasonable access to adults and children with disabilities and their family and friends. Michelle Gulmon, a wheelchair user in northern California, and mom to a five year old who also uses a wheelchair, has encountered many playgrounds that have accessible features that are blocked by inaccessible surface materials.

The 1991 Standards did not provide standards for play areas, and consequently play areas are over a decade behind other types of buildings and elements in providing access to people with disabilities and their family members. Play is a child’s work, and an essential element for optimal growth and development of children. Play is so important to children that it has been recognized by the United Nations High Commission for Human Rights as a right of every child. (Office of the United Nations High Commissioner for Human Rights. Convention on the Rights of the Child. General Assembly Resolution 44/25 of 20 November 1989. Available at: www.unhchr.ch/html/menu3/b/k2crc.htm. Accessed July 15, 2008). Play areas and recreational facilities serve a vital role in promoting free play, social interaction, and physical activity. Children with disabilities do not have consistent access to accessible play areas, nor do they have opportunities to play with non-disabled children at parks, schools and daycare centers.

The Regulatory Impact Analysis badly discounts these opportunities. While recognizing the “social development benefits” of integrated play, it qualifies that conclusion by stating both that “there is no guarantee that accessibility will generate play opportunities between children with and without disabilities” and that “there may be substantial overlap between other opportunities for these two groups to interact, such as schools and religious facilities.” RIA at 102. The first of these qualifications is the only place that the RIA looks for a guarantee that accessible facilities will be used as intended. Naturally, there is never any guarantee that any particular facility will be used by anyone, disabled or not. What is guaranteed, however, is that the status quo promotes and maintains segregation and that there will be very few opportunities for integrated play unless the Department is willing to promulgate the play area and recreation standards and to do so without safe harbors. The second qualification overlooks the widely-recognized importance of play. Interaction at school and religious facilities is not a substitute for integrated play. The RIA’s conclusions concerning the costs and benefits of accessible play and recreation areas are significantly undermined by these two misguided qualifications.

While the ADA has not had specific standards for the accessibility of play areas, public entities still had an obligation to ensure programs and services were accessible, however these attempts have largely been ineffective. Jacob Honeyman has been to several playgrounds in his community west of Chicago. Flooding recently forced his community to rebuild a playground. Jacob was thrilled to find that the new playground had an accessible surface, but was dismayed to discover that there were no ground level play components, and none of the elevated components were accessible. The mother of 2 year old Elisabeth, a wheelchair user from St. Lucie County, Florida, described her frustration after navigating Elisabeth’s wheelchair through grass and sand, only to discover that no single play component in the play area was accessible. Many people with disabilities have encountered situations where the local recreation center has access into and through the building, but finds the exercise room has no accessible equipment. A sled hockey player described his frustration at being able to access the ice arena, but having to be carried over barriers to access the ice. Others have described the frustration of planning a morning of fishing, only to discover the only accessible fishing platform in the community is already occupied by many other people with disabilities, both leaving no space to fish, and destroying all hopes of actually catching fish if space opens up due to crowding.

While some public entities have made efforts to make play areas and recreational facilities accessible, the efforts have largely been ineffective. An accessible play area remains a rare gem, and primarily those that exist were built after extensive advocacy by community members. Many wheelchair using parents have described the frustration of planning the vacation of a lifetime to Disney World, only to discover that the park’s policy of disallowing any power wheelchair on any ride prevents them from riding any rides with their children.

Question 24: Is a reasonable number, but at least one, a workable standard for determining the appropriate number of existing play areas that a public entity must make accessible for its program to be accessible? Should the Department provide a more specific scoping standard (what, when and how many)? Please suggest a more specific standard if appropriate. In the alternative, should the Department provide a list of factors that a public entity could use to determine how many of its existing play areas to make accessible, e.g., number of play areas, travel times, or geographic distances between play areas, and the size of the public entity?

No, this is not a workable standard. The question of what constitutes program access depends on a number of factors that render the formulation “but at least one” virtually meaningless and, moreover, open to abuse and misinterpretation.

First, we are concerned that the Department appears to identify play areas as a “program” in an inflexible, one-size-fits-all way. While in some circumstances, the program at issue may be providing and maintaining play areas, in many circumstances, the play area is integral to a different program, e.g. providing drop-in child care for a courthouse. The play area in the child care program is part of the child care program, and must be accessible regardless of the accessibility of other nearby play areas. Thus, alterations to such an area should be considered separately from alterations to play areas in that same public entity’s park system, for example. The play area associated with a soccer field complex should not be considered to be in the same program as the play area in a nearby park.

We do believe a list of factors to be considered is the best approach for determining program access. At a minimum, what is reasonable must include considerations such as what programs and services are available in the park, school or buildings containing accessible play areas versus inaccessible play areas. Do the accessible play areas offer equal convenience of location and amenities to other, inaccessible, play areas?

Numbers of accessible play areas should not be the only guiding principle. While the NPRM mentions access to public transportation, travel time, size, and location as considerations, in addition to these areas, disability rights advocates believe public entities must also give consideration to the following topics:

• Pedestrian access: Two play areas may only be one quarter mile apart but separated by a major highway without pedestrian access between the two. The nature of play areas is that children often go to them unaccompanied. While having a public transportation system is the norm in most medium to large sized communities, most small communities do not have any public transportation system. People with disabilities in these communities rely on pedestrian access.

• Transportation: In communities with public transportation, is there public transportation access to the play area? Is that public transportation available with reasonable frequency during weekends, on holidays and other times when families will be more able to travel to the play area? Is it safe for older children to take public transportation independently to the play area? If there is no public transportation, is there adequate parking, including accessible parking?

• Comparable amenities and services surrounding the play area: In addition to considerations of size and locations, communities should evaluate whether the play areas have comparable amenities and services surrounding the play area. An accessible play area may be located at a park without picnic and restroom facilities, while inaccessible play areas are located in parks with picnic, restroom and other recreational facilities. People with disabilities will not have equal or equivalent access to the amenities and services that the overall program provides if these other factors are not included in the evaluation.

• Location/Other community amenities and services: If an impoverished neighborhood has no other amenities for children, accessibility of the neighborhood play area is more crucial. Not only does the neighborhood play area experience greater usage, but the children in that neighborhood are less likely to be able to travel to an accessible play area miles away. Another neighborhood may be highly accessible, and have a higher percentage of people with disabilities. Placement of an accessible play area in these neighborhoods should be a priority.

• Size: Is the playground large enough to provide individuals with disabilities an equal opportunity to play? Does the playground offer enough different play stations to provide variety for children with disabilities?

Question 25 (Title II NPRM) and Question 30 (Title III NPRM): The Department would welcome comment on whether there are state and local standards specifically regarding play and recreation area accessibility. To the extent that there are such standards, we would welcome comment on whether facilities currently governed by, and in compliance with, such state and local standards or codes should be subject to a safe harbor from compliance with applicable requirements in the 2004 ADAAG. We would also welcome comment on whether it would be appropriate for the Access Board to consider implementation of guidelines that would permit such a safe harbor with respect to play and recreation areas undertaking alterations.

We are opposed to any state or local standards or codes being subject to a safe harbor from ADA compliance. There are very few state or local codes that address specific requirements for play or recreation facilities. Local and state code enforcement is very poor in some locations. But most importantly, one of the leading reasons that the United States enjoys perhaps the best reputation world-wide for disability access is our system of both federal (ADA) and state/local (code) requirements, each with their own systems of implementation and enforcement, which complement each other. There is no reason why these complementing systems should not both apply to recreation facilities and play areas as well.

Special treatment of altered play areas is not needed. There are very significant exemptions already in place that address issues related to altering existing play areas. (i.e. limit of obligations when moving equipment to create safe use zones, etc.)

Question 26 (Title II NPRM) and Question 31 (Title III NPRM): The Department requests public comment with respect to the application of these requirements to existing play areas. What is the “tipping point'' at which the costs of compliance with the new requirements for existing play areas would be so burdensome that the entity would simply shut down the playground?

The tipping point has to be balanced with the “quality of life” benefits that are difficult to quantify. If the factors to be used to determine how to reach program access (question 24) are refined, a cost tipping point will not be necessary. In many cases, closing a playground is not going to be a viable threat. Schools and parks are unlikely to close play areas rather than make them accessible. In other circumstances, a public entity may make the decision to close a small under-used play area in favor of making a larger play area accessible.

Question 27 (Title II NPRM) and Question 32 (Title III NPRM): The Department would like to hear from public entities (or public accommodations) and individuals with disabilities about the potential effect of this approach. Should existing play areas less than 1,000 square feet be exempt from the requirements applicable to play areas?

As stated above, economic concerns must be balanced with the “quality of life” benefits that are difficult to quantify. If the factors to be used to determine how to reach program access (question 24) are refined, a cost tipping point will not be necessary.

This proposal would eliminate any access in existing play areas located in small neighborhood parks, fast serve restaurants, and even day care facilities. In some small towns, there may only be small play areas connected with these facilities. The exemption would be taking many steps backwards.

We question the RIA’s numbers and assumptions. The play area requirements are already crafted to take the needs of covered entities into account, and are quite minimal requirements.

If the Department must impose a limitation, it must be modified to state that an existing play area less than 1,000 square feet may be exempt from the requirements, unless it is the program’s only play area. In those circumstances, the play area must be required to provide an accessible route and access to one-half of the ground level play components.

Question 28(Title II NPRM) and Question 33 (Title III NPRM): The Department would like to hear from public entities (or public accommodations) and individuals with disabilities about the potential effect of this approach. Should existing play areas be permitted to substitute additional ground level play components for the elevated play components it would otherwise have been required to make accessible? Are there other select requirements applicable to play areas in the 2004 ADAAG for which the Department should consider exemptions or reduced scoping?

The impact of this approach needs to be reconsidered. The Access Board’s 2000 play area guidelines should be the benchmark for achieving program access and barriers removal, used over time. Anything else is likely to be too complex and misunderstood.

Question 29 (Title II NPRM) and Question 34 (Title III NPRM): The Department would welcome comment on whether it would be appropriate for the Access Board to consider implementation of guidelines for play and recreational facilities undertaking alterations that would permit reduced scoping of requirements or substitution of ground level play components in lieu of elevated play components, as the Department is proposing with respect to barrier removal obligations for certain play or recreational facilities.

We oppose further exemptions or reduced scoping (what, when and how manu) when altering existing play areas and recreation facilities. When the Access Board was engaged in this rulemaking, there was significant negotiation and balancing of costs. Further exemptions will only ensure that there will continue to be children like five-year-old Caleb Gulmon, a wheelchair user in Northern California, who has never played on a playground in his life. As noted above, play is essential to optimal child development. If children with disabilities cannot access play areas, then these children miss out on an essential tool for child development and an essential opportunity for integration and interaction with non-disabled peers.