The Distinction Between ‘Prerequisite’ and ‘Essential’ Eligibility Regarding Programs for People with Disabilities

By John McGovern, Principal-in-Charge, Accessibility Consulting

WT Group recommends treating the terms ‘prerequisite’ and ‘essential’ eligibility differently. In this blog post, we will explain why.

What is Essential Eligibility?

Essential eligibility is a minimum set of circumstances that determines who can be in a program (regardless of ability).  There are three key factors: capacity, charges, and conduct.

• ‍Capacity: If the ceramics class has space for only 10 and I am the 11thto register, I don’t get in. It isn’t because I am male, or of Irish descent, or use a wheelchair. It is because I registered after the class was filled and there is no room to take other registrants.‍
• Charges: If there is a fee for ceramics, I have to pay it or it has to be paid for me. In the alternative, I must be eligible for whatever type of reduced fee program the department operates. ‍
• Conduct: If there are conduct expectations, such as no hitting, I must be able to meet those with or without a reasonable modification. Many people forget the last part of this requirement and focus only on the issue of conduct. That is not the right approach and this issue is of course tied up in the assessment process. WT Group regularly advises agencies when they want to pause participation by a registrant due to behavior, that unless they did an assessment and have a behavior plan, it is unwise to do so.
  
  

And there may be more:

Depending on the program and other circumstances, essential eligibility may include more than the 3 C’s:

• Age might be one. For example, a child with a disability that is one year out of the max age range should possibly be considered for admission. But it may not be appropriate for a mature 18-year-old to be in a program for preschool kids.
• Gender might be one. For example, sports such as wrestling are changing quickly on this issue. More and more girls are wrestling on what used to be boy’s teams, against boys. Also, more and more schools and colleges are seeing it as a women’s team sport.
• Residency might be one. For example, it is possible to have a nonresident rate that is the same for nonresidents with and without disabilities. In fact, we encourage doing so. However, residency can often be seen by the courts as a pretext for racial discrimination, and excluding nonresidents entirely can be problematic.

What is a Prerequisite Skill?

Prerequisite skill is very different than essential eligibility.  In NRPA magazine, Jim Kozlowski wrote an article about a court decision. In a nutshell, a coach had a player with a disability who wanted to be a pitcher.  A prerequisite skill for a pitcher is that strikes must be thrown; i.e., the ball has to be in the strike zone. The court ruled against the parents of the player and went with the argument of the coach, who said another player chosen was a better pitcher. A better approach may have been to present a pitch chart showing where the pitcher with a disability threw, and contrasting that to the other pitching candidates.  But it wasn’t brought up in court.

Therefore, perquisite skill can be required in some instances.  I can’t get into swimming 2 until I have completed swimming 1. I can’t kayak alone until I have demonstrated effective kayak skills in a pool (of course, along with all other kayak 2 registrants). I can’t play saxophone in the orchestra until I have demonstrated my mastery of it in the stage band.

Prerequisite skill is not a factor in summer camp, afterschool programs, drop-in programs, and other general content programs or beginner level skill programs.  Agencies on a fairly regular basis admit registrants with little interest or skill in the activity.

Finally, the phrase “…with or without a reasonable modification” could have been better written like this: “A person with or without disability, and with or without a reasonable modification, must meet the essential eligibility requirements for the program.”  That opens the door to everything…extra staff, more training, behavior plans, program plans, etc. Instead, the statement about essential eligibility ends with “with or without” language, and is often not heard by staffs.

Here is the definition language from title II (see it at 28 CFR Part 35):

“Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”

Here is the US DOJ explanation of that three-line definition, found in the title II section-by-section analysis:

"Qualified individual with a disability." The definition of "qualified individual with a disability" is taken from section 201(2) of the Act, which is derived from the definition of "qualified handicapped person" in the Department of Health and Human Services' regulation implementing section 504 (45 CFR {84.3(k)). It combines the definition at 45 CFR 84.3(k)(1) for employment ("a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question") with the definition for other services at 45 CFR 84.3(k)(4) ("a handicapped person who meets the essential eligibility requirements for the receipt of such services").

Some commenters requested clarification of the term "essential eligibility requirements." Because of the variety of situations in which an individual's qualifications will be at issue, it is not possible to include more specific criteria in the definition. The "essential eligibility requirements" for participation in some activities covered under this part may be minimal. For example, most public entities provide information about their operations as a public service to anyone who requests it. In such situations, the only "eligibility requirement" for receipt of such information would be the request for it. Where such information is provided by telephone, even the ability to use a voice telephone is not an "essential eligibility requirement," because §35.161 requires a public entity to provide equally effective telecommunication systems for individuals with impaired hearing or speech.

For other activities, identification of the "essential eligibility requirements" may be more complex. Where questions of safety are involved, the principles established in §36.208 of the Department's regulation implementing title III of the ADA, to be codified at 28 CFR Part 36, will be applicable. That section implements section 302(b)(3) of the Act, which provides that a public accommodation is not required to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of the public accommodation, if that individual poses a direct threat to the health or safety of others.”

Conclusion

WT Group urges agencies to distinguish between pre-requisite skills and essential eligibility, regarding the analysis of when to provide support for people with disabilities in recreation programs.

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