Are public accommodations required to admit personal care providers for free? That’s the question that the lawyers in our Disability Access Practice Group have been hearing with increasing frequency since the U.S. District Court for the Eastern District of Pennsylvania issued a decision in May of 2016 holding that The Franklin Institute, a nonprofit museum, was required to offer complimentary admission to the personal care attendant of a severely disabled individual. Below we provide a brief overview of the case and its currently narrow reach, an even shorter critique of the decision, and finally a summary of what your public accommodation may want to consider in the wake of the decision. Anderson v. The Franklin Institute, No. 13-5374 (May 6, 2016).
Overview of the Court’s Decision
Michael Anderson is a severely disabled individual who requires an around-the-clock personal care attendant (PCA) to assist him in eating, bathing, and performing other activities of daily living. Anderson and a nonprofit disability rights organization sued The Franklin Institute (TFI) under Title III of the Americans with Disabilities Act (ADA) on the grounds that the institute discriminated on the basis of disability by charging an admission fee to PCAs whose sole purpose was to assist severely disabled individuals while they enjoyed the museum. The plaintiffs contended that complimentary admission for PCAs would constitute a “reasonable modification” of TFI’s policy of charging each visitor that would permit the disabled to access and enjoy the museum.
In opposition, TFI argued that complimentary admission for PCAs would result in lost revenue, especially for those special exhibits that have a limited number of tickets or limited capacity. TFI further argued that providing complimentary admission for PCAs would also constitute a “fundamental alteration” to its current operations by compelling it to eliminate services to prevent sizable financial deficits.
The court rejected TFI’s arguments, holding that the plaintiffs’ requests were “manifestly reasonable,” especially in light of the de minimis costs imposed on TFI. In its holding, the court noted:
The ADA sometimes requires substantial investment in elevators, ramps, or special seating. These modifications result in real costs. If the ADA can require such affirmative expenditures, then certainly it can require an entity simply to forego charging a fee. In a cruel irony, the crux of [TFI’s] objection is that it cannot profit from the entrance of one who is there only because of another’s disability. To credit such a theory would not only render the ADA meaningless, but endorse a result inimical to its purposes.
Narrow Reach
The decision of a single judge at the trial court level has no binding effect—even in the Eastern District of Pennsylvania (centered in Philadelphia), let alone in other trial or appellate courts in the rest of the country. However, attorneys for the disabled can and probably will attempt to use this as persuasive authority on this important question. Any judge analyzing a similar question will likely read this decision at some point in his or her own decision-making process.
A (Very Brief) Critique
While the court’s opinion addresses and rejects many of the arguments against complimentary admission for PCAs, it fails to consider some important ones:
The court does not mention or address 28 CFR Section 36.306, which expressly states that public accommodations are not required to provide “personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; … or services of a personal nature including assistance in eating, toileting, or dressing.” By mandating complimentary admission for PCAs, the court is effectively requiring the public accommodation to subsidize the personal services that the regulation expressly does not require.
In evaluating the financial burden of the plaintiff’s proposed modification (a potential defense), the court assumed that requests for complimentary admission would be infrequent. However, according to the Centers for Disease Control and Prevention, 53 million adults—or one out of every five—have a disability and, therefore, may have a basis to argue that they require some personal assistance while attending a ticketed event. Public accommodations that provide other accommodations and advantages for disabled guests understand just how wrong it was for the court to assume that the use of PCAs would be infrequent.
The court did not evaluate the administrative burden in assessing requests from individuals with disabilities. First, Title III regulations in certain areas plainly prohibit public accommodations from making inquiries about even the existence of a guest’s disability, let alone the specific abilities or limitations that a guest may have. Second, making individualized assessments as to whether an individual’s specific limitations are sufficiently severe to merit complimentary admission would likely present a serious risk of inconsistent assessments. Third, many places of public accommodation do not have a large enough staff, or one with adequate expertise, to handle any significant volume of requests for complimentary admission. And for a large venue, the administrative burden to assess requests could be overwhelming.
A more thorough evaluation of one or more of the above factors could have changed the outcome of this case, or a future case.
What Could This Decision Mean for Places of Public Accommodation?
Even though the Philadelphia district court’s decision has no binding effect beyond the single judge’s courtroom, public accommodations should consider the following moving forward:
Whatever type of business or public accommodation you operate, you may want to have a policy or protocol in place to evaluate, on a case-by-case basis, any requests for complimentary admission for a PCA.
If the event for which you charge admission has excess capacity, or no practical limits on tickets sold, you may want to seriously consider accommodating requests for complimentary admission or be prepared to justify the financial and/or administrative burdens associated with permitting complimentary admission. On the other hand, if your event regularly sells out, or has limited seating, you will likely find it easier to demonstrate that permitting complimentary admission constitutes an undue burden.
If a disabled guest has such severe disabilities that a PCA is truly required for the duration of your ticketed event, you may want to give more serious consideration to permitting complimentary admission.
It is a best practice to keep a complete record of disabled guests’ requests for complimentary admission (and other requests for preferential treatment), whether or not you provide complimentary admission. Being able to document the volume and nature of requests will be critical to defending whatever course of action you take.
You may want to periodically evaluate the bases for your chosen course of action. A decision to provide (or refuse to provide) complimentary admission for a certain period can be reversed, but only if an adequate record is maintained and careful consideration is given to the reversal of action.
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