Accommodating the ADA: Americans with Disabilities Act requires day care program to accommodate autistic child

Accommodating the ADA: Americans with Disabilities Act requires day care program to accommodate autistic child – NRPA Law Review

James Kozlowski

As illustrated by the case of Burriola v. Greater Toledo YMCA, 1138 F. Supp. ed 1034 (N. Dist. Ohio 2001), the Americans with Disabilities Act (ADA) requires entities offering services or facilities to the public to reasonably accommodate disabled individuals. In this case, the mother of an 8-year-old with autism alleged a violation of the ADA after her son was terminated from a YMCA day care program.

Jordan Burriola attended a charter school to serve the needs of autistic children, the M.O.D.E.L. Community School. After school, Jordan attended a licensed group day care facility at the Calvary United Methodist Church. The facility was operated by West Family YMCA, an affiliate of the YMCA of Greater Toledo. The license for the day care facility required a minimum ratio of one counselor to every 18 children.

The symptoms of Jordan’s autism manifested itself at Calvary in the form of repetitive activities, movements such as flapping his hands, pounding his chest, pounding his head and running into walls. Moreover, when noises or other stimuli created sensory overload, Jordan would cry, run in circles or run to hide from the noise.

On several occasions, Jordan exhibited violent and destructive behavior when he became extremely frustrated. Such behavior included hitting himself or other children, hitting a counselor, biting other children, cursing, throwing objects, chasing children and urinating on the floor. During the 20 months that Jordan participated in the YMCA day care program, his mother, Melissa Burriola, was made aware of several incidents involving these inappropriate behaviors.

Ms. Burriola spoke with defendant Kathy Miley, the director of family services for the West Family YMCA, regarding Jordan’s autism. Burriola told Miley that Jordan required special attention, such as providing written activity schedules, offering explanations when Jordan was to transition from one activity to another and providing him with a quiet place to gather himself when he became frustrated. Moreover, Burriola told Miley that professionals from the M.O.D.E.L. School were available to help the YMCA day care staff if the need arose.

In response to a request from Burriola, Joan McCarthy, a representative from the M.O.D.E.L. School, came to observe Jordan at Calvary and assisted the staff in working with Jordan. After observing Jordan at Calvary, McCarthy made several recommendations to the Calvary staff that she believed would help to make Jordan’s experience at Calvary successful. McCarthy also made free training available to all of the YMCA employees who worked with Jordan. The training wasn’t made mandatory for the employees, and only two Calvary counselors attended the training.

The training taught techniques for working with autistic children, and offered information on Jordan’s specific manifestations of autism. The two counselors who attended the training learned techniques, such as using visual redirection signs, for working successfully with Jordan. McCarthy and the counselors discussed modifications, or “supports,” that would work well for Jordan at Calvary, and that could easily be implemented. The supports were never implemented for Jordan at Calvary. In fact, one of the counselors who attended the training said Miley instructed the staff not to implement any of the supports.

The counselors who attended the training left Calvary shortly after the training occurred, and before any other supports were implemented. Thus, by late August 2000, there were no counselors at Calvary who were trained in working with autistic children, and no counselors attempted to implement the suggested supports. Shortly thereafter, Jordan’s inappropriate behavior, and apparently the staff’s inability to help Jordan avoid such behavior, increased.

Upon learning that the two trained counselors were leaving Calvary, McCarthy sent a letter to Miley outlining a written schedule, supports, activities and other information available in Jordan’s school file folder. McCarthy indicated that Jordan’s teacher would share these activities with Calvary Moreover, McCarthy offered another training session, free of cost, to YMCA employees who would be working with Jordan. The training would take a minimum of two-and-one-half hours, but McCarthy stated she would be willing to spend more time with any employees who were interested or willing. Miley never responded to the letter. None of the suggested supports were implemented, and no additional counselors were trained.

Two weeks after the trained counselors left Calvary, Burriola received a letter from Miley informing her that Jordan was to be terminated from the day care program. The letter was dated Sept. 6, 2000. Jordan’s termination was effective two days later.

Reasonable Accommodations?

To establish a claim under the ADA, Burriola had to demonstrate that Jordan could succeed at Calvary with reasonable modifications, and that the YMCA failed to make such modifications. In light of Jordan’s experience at Calvary, the federal district court judge found a “substantial likelihood” that Jordan could succeed at Calvary with reasonable modifications.

For nearly 20 months, Jordan was enrolled at Calvary with no mention of

termination. During this time period, there was at least one counselor who

made sincere efforts to work with Jordan and to accommodate his needs. This

counselor never had the chance to implement the simple supports that were

suggested for Jordan, yet, with the efforts he did make, Jordan was able to

participate in the program. After this counselor left, no other counselors

attempted to accommodate Jordan, and it was at this time that Jordan’s

inappropriate behavior caused defendants to want to terminate him.

Moreover, the judge found that “the counselors, and specifically Miley, were unwilling to try to accommodate Jordan.” Had they tried, the judge believed, Jordan wouldn’t have been terminated from the program.

Fundamental Alteration?

The YMCA contended that it didn’t unlawfully discriminate against Jordan in refusing to implement the proposed modifications because the modifications would fundamentally alter its program. Specifically, the YMCA asserted that Jordan required one-on-one supervision to succeed at Calvary, and that to provide such supervision would fundamentally alter the nature of the defendants’ group care facility.

In response, the district court judge noted that Burriola didn’t ask that Jordan be provided with a one-on-one assistant. Moreover, even if one-on-one care was requested, the judge found such one-on-one attention to Jordan wouldn’t result in a fundamental alteration of the services provided by the day care facility.

In any group child care setting, a group counselor may be required, at

times, to provide one-on-one care to an individual child. Counselors must

give individual attention to children who become upset or injured; they may

he called upon by any child to answer a question or help with a task.

It is noted here that a one-on-one assistant was hired for an extremely

brief period to work with Jordan and other special needs children. This

person was paid for by outside funding, and thus worked no hardship to

defendants. Also, there is another autistic child at Calvary who has a

one-on-one assistant. Thus, the mere presence of a one-on-one assistant

cannot fundamentally alter the nature of defendants program.

Moreover, the judge found that the requested accommodation of preparing a daily schedule for Jordan was a reasonable modification and wouldn’t fundamentally alter the day care program.

As Melissa Burriola testified, these schedules can be made up in a few

minutes. Additionally, there is nothing to suggest that the same schedule

could not be used on multiple days. The effort of preparing a schedule for

Jordan may vary from the norm of what counselors do, but it cannot be said

to fundamentally alter the program.

Additionally, plaintiffs assert that, with the schedule, Jordan can work

independently and occupy himself with tasks for longer periods of time.

Thus, the schedule may actually reduce the amount of time counselors have

to spend giving one-on-one attention to Jordan.

Direct Threat?

The YMCA also argued that its refusal to implement the proposed modifications was justified under the ADA because Jordan would pose a direct threat to the heath and safety of others if he remained in the day care program. In so doing, the YMCA pointed to the fact that Jordan had demonstrated physically aggressive behavior that created a danger of harm to other children in the program. In response, Jordan’s mother asserted that none of the requested supports were in place when Jordan acted aggressively. The YMCA, however, maintained that no one could ensure that Jordan wouldn’t act aggressively in the future, no matter what modifications were made at Calvary.

Burriola countered that no parent could guarantee the behavior of any child at Calvary

Moreover, she noted that Calvary staff had testified that there were several children at Calvary who frequently hit other children, and that none of these children had been terminated from the day care program.

In the opinion of the federal district court judge, it was significant that Jordan had never had the benefit of any of the proposed modifications at Calvary. Moreover, the judge noted that the professionals who worked with Jordan at school felt the requested modifications would significantly reduce the chances that Jordan would become frustrated at Calvary, and thus lose self control and act aggressively. Accordingly, the federal district court judge concluded that the requested modifications would mitigate the risk that Jordan would pose a direct threat to others.

Having found that Jordan could succeed with reasonable modifications, the federal district court judge found that the YMCA had unlawfully discriminated against Jordan in violation of the ADA in refusing to make any of the requested modifications.

Therefore, the federal district court judge ordered the YMCA to reinstate Jordan in the Calvary day care program. Further, the judge ordered all Calvary counselors and staff working with Jordan to undergo the free training offered by the M.O.D.E.L. School.

Dr. Kozlowski is an associate professor in the health, fitness and recreation resources program at George Mason University, in Fairfax, Va., and legal/legislative counsel to the NRPA Division of Public Policy. He can be reached at jkozlows@gmu.edu or http://mason.gmu.edu/~jkozlows.

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