The Eleventh Circuit Ruling That Calls Autism Policies Across The Industry Into Question

Well, it has now been just over two years since my last entry on The Legal Roller Coaster.  Much has happened since then, and I’ll tell you about a lot of it very soon, but suffice it to say that it has never been my intention that The Legal Roller Coaster would be shelved permanently.  A brief (or not so brief, depending on your perspective) hiatus was, however, required.  Nonetheless, I’m pleased to say that I’m back and that there will be some changes (for the better) coming soon.  But in the meantime, a new long-awaited decision has been issued that makes now the best time in two years to return to the blogosphere. 

In mid-August, the 11^th Circuit Court of Appeals issued its ruling in A.L. v. Walt Disney Parks and Resorts US, Inc..  A copy of the decision can be found here in case you are interested in reading it.  I wrote about this case before on a number of occasions (and I encourage you to read at least this piece before you read the rest of this one as it contains a much more fulsome explanation of the lower court ruling than I’m going to provide here), and I’ve been waiting for quite some time for the Court of Appeals’ ruling.  And now, having read it, I regret that I’m not sure its much help to the industry.  Why?  Let’s get into it.

What is this case about?

The case presents the question:  Does the Americans With Disabilities Act require amusement parks to allow guests with cognitive disabilities, such as autism, to have unfettered, on-demand access to rides and attractions? 

The decision is actually the culmination of thirty separate lawsuits against Walt Disney Parks and Resorts, each alleging identical facts.  The Plaintiffs are individuals with severe autism who allege that they are incapable of waiting for Disney’s attractions without experiencing a meltdown – a situation which can result in uncomfortable, embarrassing, and potentially dangerous outcomes for the autistic guest, family members or other guests. 

In an attempt to accommodate these plaintiffs, and others similarly situated, Disney adopted the Disability Access Service program.  The DAS program allows guests who cannot wait in lines to make an appointment for a ride.  Appointment times mirror the length of the line (with no appointment needed for rides with less than a 15-minute wait).  When the appointed time arrives, the autistic guest and his / her party can board the ride through the FastPass+ boarding queue with a minimal wait.  Once the ride is over, another appointment may be given – again based on the length of the line at the next attraction.  In between appointments, DAS guests are welcome to visit any other ride, shop, eat, watch a parade or show, or do anything else they would like in the park.  There is no limit to the number of appointments that a guest may receive and these appointments are in addition to the three FastPass+ reservations that all Disney guests receive. 

The Plaintiffs contended that the DAS policy did not satisfy the ADA’s requirement for “reasonable” and “necessary” modification of policies and procedures because it still required them to wait – just not in the queue.  They, instead, requested that the park allow them immediate, unlimited, and on-demand access to all rides and attractions.  When Disney said no, they sued.

Disney Wins … At First

The first decision rendered in these cases issued from Federal District Court in Florida in May 2016.  Disney prevailed in that case. In reaching its decision, the Court correctly found that that the Plaintiffs could only prevail if they proved two things first:

1).  That their requested accommodation (i.e. immediate, on-demand access to all rides and attractions at all Disney parks) was “necessary” to afford them a “like experience” in the park as compared to nondisabled guests; and

2).  That their requested accommodation was reasonable. 

Even if the Plaintiffs were able to prove both of those things, Disney could still prevail, however, if it could show that the requested accommodation “fundamentally altered” the nature of the service Disney provided.

With these three requirements in mind, the District Court decided not to focus on the reasonableness of the requested accommodation or whether it fundamentally altered Disney’s services, and instead focused exclusively on whether on-demand ride access was necessary.  The Court found it was not because the DAS system, in combination with “readmission passes” (a pass that provided immediate access to a limited number of rides), afforded the Plaintiffs an equal or better experience compared to nondisabled guests.  The Court also credited evidence that the Plaintiffs generally travelled long distances to get to Disney’s parks, either by car or plane, and were capable of waiting in those environments without having a meltdown – undercutting, in the District Court’s view, the claim that they could not wait between ride appointments.  In the 29 other cases that followed, the District Court issued nearly identical rulings.  The Plaintiffs appealed.

A Reversal On Appeal

The appeal was brought before the 11^th Circuit Court of Appeals, which has jurisdiction over federal courts in Florida, Alabama, and Georgia.  The Court’s opinion looked primarily at two issues.  First, whether the DAS policy was an impermissible “blanket policy” implemented without regard to the individual need of each Plaintiff (or other guests for that matter).  Second, whether the District Court was correct in holding that the Plaintiffs’ requested accommodation – on-demand immediate access to rides and attractions - was not necessary to give autistic guests a “like experience” compared to nondisabled guests.

With regard to the first question, the Court upheld the ruling of the District Court that this was not necessarily an unlawful blanket or “one size fits all” policy.  The Court found that, while blanket policies were not usually permissible because they may deny accommodations to a group that should have them, they are fine if they are geared to the most severe disability.   The Court credited Disney’s argument that it has chosen to assume that all autistic guests are equally severely disabled rather than try to individually assess each guest – which would be quite burdensome given the tens of thousands of guests in each Disney park every day.  The logic goes that if Disney’s DAS program is sufficient to accommodate the needs of the most severely disabled guests in the park, it will necessarily be sufficient to accommodate those less severely disabled guests as well.  The question, then, was not whether the DAS policy was an impermissible blanket policy, but whether it actually accommodated the most severely disabled guests such that a blanket policy was legally acceptable.

The Court of Appeals parted ways with the District Court, though, when it came to the question of whether immediate, on-demand ride access was necessary to accommodate the needs of the Plaintiffs.  Here, the Court found that the DAS policy might, but might not, be an insufficient accommodation because it did not address the alleged need of the Plaintiffs to avoid waiting at all.  The Court found that the Plaintiffs had presented evidence that the issue for the Plaintiffs was not the inability to wait in line, but the inability to wait anywhere. 

“The claimed disability is waiting at all.  Disney’s DAS program accommodates the need to avoid physical lines, but not the need to avoid waits.  It addresses the geographic burden but not the temporal one.  Plaintiffs must still wait.”

Recognizing that there was conflicting evidence as to the extent of the impairments at issue – i.e. whether the Plaintiffs “are able to transition to other activities without meltdown or other behavioral challenges when they cannot access rides in their already-fixed routine order or cannot access the same ride repeatedly” – the Court held that this question had to be resolved by the District Court.  It thus remanded the cases, all of them,  to the District Court for trial. 

So Where Does This Leave The Industry?

The Court’s ultimate decision, in my view, takes the industry back to square one - right where we were two years ago before the District Court issued its ruling.  Are appointment-based policies lawful under the ADA?  We don’t know. 

A ruling affirming the District Court would have been a virtual blessing for other policies adopted by other park operators using similar appointment-based systems.  Such a ruling would have strongly indicated that these policies complied with the ADA and would have dissuaded future lawsuits challenging those policies.  But … that’s not what happened.

Instead, the Court’s ruling puts all three questions – necessity, reasonableness, and fundamental alteration – back on the table for this case and future cases.  The Court, not necessarily inappropriately, suggests that the lawfulness of the policy must be decided on a case-by-case basis that considers the specific needs of each disabled guest in the park.  It is therefore conceivable that some of the thirty plaintiffs will ultimately be found entitled to immediate, on-demand ride access and others won’t be.  And while there is an academic appeal to this kind of individualized application of the ADA, it does not lend itself well to administering a policy in light of the huge volume of business that is conducted at an amusement park every day.

Disney’s DAS policy, like similar policies all over the industry, are designed to accommodate the needs of disabled guests while also being administratively manageable given the number of guests and the relative lack of expertise of the typical Guest Relations or Park Operations staff member.  If, as the Court suggests, the DAS policy may not pass muster as a blanket policy because it does not actually address the needs of the most severely disabled guests, then the Court’s ruling implicitly suggests that individualized assessment of every disabled guest would, in fact, be necessary to satisfy the ADA.  Unfortunately, as a practical matter, that is a very burdensome undertaking and one fraught with potential error given the typical expertise of the park employee doing the assessment.     

For that reason, I do not believe that this case will ultimately be decided on either the necessity or the reasonableness prongs of the ADA.  Those are the prongs that turn most on the individual assessment of the plaintiff – something that will, by definition, change in every case.  Instead, I think the real battle ground for the DAS policy will be whether on-demand, immediate boarding access “fundamentally alters” the services that Disney is providing.  Because the “fundamental alteration” prong does not focus on the guest at issue, but on the requested accommodation – something that does not necessarily change from case to case - a ruling on “fundamental alteration” would provide much needed guidance to the parties and the industry on how to move forward in a truly manageable fashion. 

As for the merits of such an argument, I continue to believe – as I’ve previously explained in some detail – that there are good arguments that avoiding all lines does, in fact, fundamentally alter the nature of the services offered by a theme park.  I won’t rehash my previous analysis of this point in great detail, but I think there are strong arguments that a guest that never has to wait in line, can ride anything he / she wants, anytime he / she wants, and as many times as he/she wants is going to have a fundamentally different experience in the park as compared to a guest who spends, conservatively, half the time in the park standing in a line.  I also think that, from an economic standpoint, this brand of access would force the business to give away its product at a much lower price on a per-attraction basis.  Whether Disney proffers similar arguments, or others, I think it is likely that this will be the place where this decision will ultimately center.

Are There Any Alternatives That Might Avoid Challenge?

So what if you, Mr. or Mrs. Park Operator, want to avoid the fight and a lawsuit altogether, but don’t think it is fair to simply allow unfettered access to rides and attractions?  Are there any alternatives that might pass legal scrutiny in light of this opinion?  While we don’t know definitively, I think there could be some lessons lurking in the opinion that might be helpful.

The first is to focus on what the Plaintiffs allege here (and what future plaintiffs will almost certainly allege as well).  There are two basic components:  1) They cannot wait for the rides they want to ride.  At all.  Anywhere.  2) They have to go in a very specific sequence from ride-to-ride.  This is, in the Court’s apparent view, the worst-case scenario that a blanket policy should be tailored toward.  Presumably, then, finding a way to satisfy these needs, and thus accommodating the most severely disabled autistic guests, would lawfully accommodate all other guests in an administratively manageable way.  So how could you do it?

I think planning may well be the key. I’m not talking about planning by the families of disabled guests before they arrive.  I’m talking about giving disabled guests the ability to schedule their necessary sequence of rides for immediate boarding at the beginning of the day at the park, but with a limit on the number of rides for which immediate access is granted.  And what’s the limit?  I think that (subject to one caveat discussed below) is defined by the guest’s required sequence.  Let me put some more meat on those bones.

If we accept that the most severely autistic guests have to ride in a particular sequence, it follows that this sequence must have an end.  After the last ride in the sequence, the next step is to leave the park.  That too must logically be part of the sequence. If it’s not, it frankly calls the entire need for sequencing into question, doesn’t it?

So why not permit the guest to schedule, at the very beginning of the day, his / her sequence in the park but nothing else.  In other words, couldn’t a park simply allow immediate access to the rides in the sequence but, once the sequence is over, immediate access is over too?  If the problem that parks have is that some unscrupulous guests abuse the policy to get unlimited ride access and to take unfair advantage over other guests, doesn’t this take care of that concern?  An autistic guest that has to have immediate access to 10 rides in a specific order can get that sequence – but nothing else.  Once the sequence is over, the guest is free to stay, but immediate, on-demand access is over.

Now, I can already hear someone out there pointing out a giant loophole in my suggestion.  Erik, you say, what’s to stop one of these unscrupulous people from simply creating a sequence that takes the whole day to get through?  What’s to stop abuse by guests who claim that their autistic child must visit 38 rides in a row, every time, without stopping?  I think there is an answer to that as well:  limit the sequence to the number of rides (maybe plus an additional two or three) a nondisabled guest is expected to ride each day.  Parks know that number for any given level of attendance.  Limiting the guest’s sequence to the lower of either the sequence itself or the number of rides any other guest gets would seem to address the concerns of all parties.  Disabled guests would get immediate access and would not have to go out of sequence.  Parks could rest assured that abuse of the policy would be limited since no one would get free run of the park all day and all their guests would have a similar experience in the park.  Everyone wins.

The bottom line from the Eleventh Circuit’s decision is that parks that have an appointment-based admission policy should no longer feel comfortable that they comply with the ADA.  Hopefully, round three of this case will bring some clarity, but in the meantime, I recommend that parks give serious thought to whether their policies truly address the “worst case” disability or whether they have sufficient flexibility built into the policy to provide on-demand, immediate ride access for a particular guest that might need it.  I don’t think we can, as an industry, argue any longer that on-demand, immediate ride access simply is not necessary for any disabled guest.