Today is March madness. So, I want to wish everyone and their teams good luck in both the men’s and women’s tournament as well is in the men’s and women’s NIT tournament. Also, congratulations to an alum of my high school, Merrick Garland, on being nominated to the United States Supreme Court. While we attended the same high school, he was actually several years ahead of me, though I did serve in student government with a sister of his.

Today’s case asks the question whether a reasonable modification request can be per se unreasonable regardless of whether it is an undue burden or a fundamental alteration on the governmental entity. One would think that the answer would be logically no because a reasonable modification is only unreasonable when it constitutes an undue burden or results in a fundamental alteration to the nature of the program or activity. Therefore, one would think that unless a fundamental alteration or an undue burden was present, the reasonable modification request would be reasonable. Even so, the case of the day, United States v. Northern Illinois Special Recreation Association, 2016 U.S. Dist. LEXIS 31565 (N.D. Ill. March 2, 2016), leads one to wonder whether a reasonable modification request can be per se unreasonable regardless of whether an undue burden or a fundamental alteration exists. As is my usual practice, the blog entry is divided into categories: facts; court’s reasoning for deciding that the reasonable accommodation request is simply not reasonable; the court shoots down the affirmative defenses; and thoughts and takeaways. The reader is free to focus on any or all of the sections of the blog entry.

I

Facts:

The facts are pretty involved, but I think I can simplify them. What you have in this case is an agency in northern Illinois that provides year-round recreational activities for children and adults with disabilities. It is a governmental agency created through an intergovernmental agreement between 13 local park districts and municipalities. For the summer camps, the agency has part-time staff that includes the positions of site coordinators, site directors, and camp counselors. The site coordinator is assigned to oversee and supervise four or five camps in the summer and may only spend an hour at each camp per day. The site directors are in charge of making sure that the camp runs smoothly, and typically one site director is assigned for each camp location. The camp counselors are typically in their late teens or early 20s, and it is often their first job. They are not required to have experience with individuals with disabilities to be hired and most of them have not worked with an individual with a disability prior to working at the camp. The full-time recreation staff, site coordinators, site directors, and program leaders are required to be certified in basic first aid and CPR. They also learn how to administer epipen shot and dispense asthma medication. The part-time staffers, which include the camp counselors and program assistants, are not required to be certified in basic first aid or CPR. The employees also receive training in responding to seizures.

In this particular situation, you had a person with a disability that wanted the camp to be able to administer Diastat if she were to have emergency epileptic seizures. This particular drug is the only FDA approved medication for out of hospital treatment of emergency seizures. It is administered rectally. It is prefilled with a single dose prescribed by the participant’s treating physician and packaged in a plastic applicator. It is generally prescribed for convulsive seizures lasting five minutes or more and for cluster seizures. Roughly 30 current campers list the medicine as a current medication they are taking. The drug works most effectively if administered within five minutes of the onset of the convulsive seizure. If given at the five minute mark, it works only about 80% of the time to stop a prolonged seizure even if given correctly. After the five minute mark, the sooner the drug is administered, the more effective it is. Although it does not always work, the risk of adverse reactions from the rectal administration of the medication is extremely low. The drug contains a warning label saying that it should only be administered by caregivers who in the opinion of the prescribing physician: can distinguish between the different clusters of seizures from the patient’s ordinary seizure activity; have been instructed and judged to be competent to administer treatment rectally; understand explicitly which seizure manifestations may or may not be treated with the medication; and are able to monitor the clinical response and recognize when that response is such that immediate medical evaluation is required. The label goes on to say that the successful and safe use of the drug depends in large measure on the competence and performance of the caregiver and that the caregiver needs to be fairly versed in epileptic seizures. Administering the medication is actually a quite involved process and much of the trial was spent discussing how to administer it.

The agency’s current seizure policy requires the agency staff member to follow basic first aid protocol and move other participants away from the area to preserve the person’s privacy. Staff member are trained to ease the person on the ground, turn the person onto his or her side, and monitor a person’s breathing. Additionally, the staff member is directed to follow the person’s seizure plan to the best of his or her ability and call 911 as directed. Nowhere in the Medic/first aid training materials or basic first aid response, does the training discuss giving Diastat or any other medication in response to a seizure. Since the agency does not allow its employees to administer Diastat, the agency began offering families other accommodations, including asking if the parent or family could provide a family member or personal aide at the program, who would not be charged program fees. The agency also offers scholarship assistance (up to 100% of the participant’s programmer can cost), to offset some of the costs to provide a personal aide. The agency has also offered to keep participant Diastat on-site in a lock medication bag carried by the program leader for the site director though that the paramedic could administer the medication upon arrival. With respect to the particular plaintiff, she has sisters employed by the agency, and the agency offered to allow her sister to come off the clock and provide Diastat to her as a family member should the need arise.

II

Court’s Reasoning for Deciding That the Reasonable Accommodation Request Is Simply Not Reasonable

  1. A decision forcing laypeople to administer an emergency rectal medication ignores the realities of administering the medicine in a real-life emergency situation, especially considering the majority of summer camp employees are part-time high school and college age students.
  2. Epi-pens, inhalers, and Gastro feeding tubes, tasks currently performed by agency staff, is a completely different kettle of fish than administering Diastat. To administer Diastat, the caregiver must remove a person’s clothing between the waist and knees. Instead of a needle, which is the case with epi-pens, it is administered through a plastic applicator that must be lubricated and inserted into a person’s rectum. Therefore, Diastat is a much more complex task than the epi-pen situation.
  3. The instructions for Diastat contemplate a system in which the caregiver and the doctor interact directly and come to agreement regarding the caregiver’s role and competence in the exact conditions when to treat with Diastat, such as what is and is not an episode appropriate for treatment and the timing for administration in relation to the onset of an episode. The instructions also contemplate the caregiver having an intimate knowledge of the individual patient’s condition sufficient to distinguish his or her ordinary seizures from the seizures requiring this drug. Disregarding cautionary instructions on the label for the drug is simply not a reasonable request.
  4. Camp participants have quick access to 911, and the agency had gone out of its way to give financial discounts to epileptic participants and other concession to make its refusal to administer the drug easier to deal with.
  5. The government presented no statistics on how a Diastat program under similar circumstances has worked and been successful.

III

The Court Shoots down the Affirmative Defenses

  1. With respect to fundamental alteration, the defense simply doesn’t apply because the agency already offers many similar health and emergency services. Furthermore, the agency failed to present sufficient evidence to show that they would be required to hire additional medical personnel and that the hiring of additional medical personnel would even be necessary.
  2. With respect to undue burden (liability and administrative costs), the fear of a lawsuit is not enough to constitute an undue burden under the ADA because otherwise the affirmative defense would swallow the rule. The agency did not present any specific evidence detailing how such an undue burden would be present.

IV

Thoughts and Takeaways:

  1. I find this decision very odd. It is very possible for the reasons laid out by the court that the correct decision was reached in terms of the result. My problem is that the reasoning of the case doesn’t seem to track the way the ADA is laid out. That is, a reasonable modification under title II of the ADA is whatever is not an undue burden or when it comes to policy, practices, and procedures, a fundamental alteration. Therefore, it would seem that you would not have an unreasonable modification request unless an undue burden or a fundamental alteration was present. Here, the court specifically finds the reasonable modification request to not be reasonable even though the court does not buy the undue burden and fundamental alteration defenses.
  2. One wonders whether the Department of Justice would not appeal because finding a per se unreasonable modification request regardless of the applicability of the affirmative defense just doesn’t seem to track the statutory scheme. On the other hand, one wonders whether an appeal would make a great deal of sense, because it would seem from reading the decision, that a strong argument could be made that requiring an agency to administer Diastat, which would include, among other things, ignoring the label instructions on the medicine, would be a fundamental alteration or an undue logistical burden on the agency. It is also possible, that requiring the agency to administer Diastat might result in an undue financial burden, but as we have mentioned before several times, such as in this blog entry, undue financial burden is really tough to show, and the agency did not put forth evidence here to make that showing.
  3. This decision appears to be unpublished and so its precedential value must be considered.
  4. In some ways, this blog entry reminds me of my blog entries discussing roller coasters where the reasoning of the courts can turn in large part on the manufacturer’s instructions for the particular ride with respect to determining whether the accommodation is reasonable.
  5. This case may open the way for convincing a court that certain reasonable modifications/accommodation requests are per se unreasonable. That is an approach that would be unfortunate and unnecessary. The same result could be reached by allowing the defense to prove its affirmative defense. It also arguably switches the burden of proof with respect to whether a request is reasonable from the defendant to the plaintiff. It will be very interesting to see whether this per se unreasonable modification request approach is persuasive in the courts. What is going on with some of the roller coaster cases, as referenced above, is strikingly similar to the reasoning of this case.

 

 

 

2 Responses to Can a Reasonable Modification Request Be Per Se Unreasonable?

I actually think the Court got it right, and put the burden in the right place. The “reasonable modification” requirement for Title II entities is not in the statute, but in the regulations at 28 CFR 35.130. DOJ copied the reasonable modification provision in Title III, which requires a “reasonable modification” unless there is a fundamental alteration. There is no mention of financial burden at all. In any case, a disabled person is not entitled a “modification unless there is a fundamental alteration or it is unreasonable.” Rather, the requested modification must be reasonable from the outset; that is, it is the burden of the person with the disability to show the requested modification is a reasonable one. Moreover, since there is no mention in the regulation of undue burden or financial burden the possible things that might make a modification unreasonable is really unlimited. I think a court can conclude a requested modification is not “reasonable” without considering its cost or whether it fundamentally alters the program.

I always appreciate Richard’s comments. He makes some very valid points. However, the reasonable modification requirement is contained within the statute. In particular, in 42 U.S.C. § 12131(2), https://www.law.cornell.edu/uscode/text/42/12131 , where the definition of qualified individual with a disability appears. I agree that the meat on the bones come from the regulations. While it is true that there is no discussion of financial burden, nevertheless financial burden can be a defense per the Olmstead case, https://scholar.google.com/scholar_case?case=1057318245348059744&q=olmstead+by+L.C.+v.+Zimring&hl=en&as_sdt=80006. Again, Richard’s points are well taken. My concern is that courts will start making sua sponte decisions as to what is a reasonable accommodation request rather than going through the analysis. Those kind of decisions would be made by jurists who generally do not have disabilities. It is a slope that may limit the rights of persons with disabilities because it forces the plaintiff to prove that the fundamental alteration defense is not possible when requesting a reasonable accommodation/modification.

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