11th Circuit Asked to Force Change in Disney Policy for Autistic Guests

ATLANTA (CN) — Attorneys for more than 20 plaintiffs with autism asked the 11th Circuit on Friday to strike a ruling that stymied their efforts to secure a change in ride access policies  at Disney parks.

The plaintiffs, comprised of autistic children and their parents, sued Disney in 2014 claiming they were harmed by the entertainment giant’s revocation of its previous system for disability accommodations.

Under the “Guest Assistance Card”  program, guests with disabilities were able to skip the long lines at the park’s attractions and rides, and maximum wait times for guests under the GAC program were limited to 5 – 10 minutes.

This allowed guests with autism to move from ride to ride without deviating from their desired routine, according to the complaint.

According to the American Psychiatric Association, people with Autism Spectrum Disorder “may be overly dependent on routines [and] highly sensitive to changes in their environment.”

Many people who suffer from autism experience “meltdowns” when forced to deviate from a routine.

A person having a meltdown may make random noises, strike out, swing their arms, hit themselves or flail wildly.

According to the complaint, the GAC program ensured that disabled guests, specifically those with cognitive impairments including autism, could enjoy the park with little risk of over-stimulation or meltdown.

But Disney nixed the program in 2013 in favor of the new “Disability Access Service” system due to alleged rampant abuse by both guests who needed GACs and those that did not.

The company claimed that people were selling counterfeit GACs and requesting the accommodation even if they didn’t actually need it.

Under the new program, guests with disabilities may arrive at the attraction or ride of their choice, present their identification card and receive a scheduled time to return.

Guests are encouraged to visit other attractions in the park while they “virtually wait” for their return time, the complaint said.

Disney also issues some guests in the DAS program “readmission passes” permitting them to use the Fastpass line at any attraction without having to wait in line or wait virtually.

The plaintiffs argued that the DAS system is not an adequate accommodation under the Americans with Disabilities Act since it still requires them to wait and potentially suffer a meltdown.

They also claimed that Disney does not perform an individual assessment of their needs by using DAS.

The complaint stated that the new system was designed “with a goal or “benefit” in mind of substantially reducing the number of autistic and cognitively impaired persons who visit the Disney Parks.”

The plaintiffs sought injunctive relief requiring Disney to modify its policy for accommodating cognitive disabilities to mirror the former GAC system.

In 2016, U.S. District Judge Anne Conway denied the group’s request, ruling that the ADA does not require Disney to accommodate a guest’s preference to engage in a specific routine inside the park.

Conway also ruled that DAS and readmission passes gave disabled guests sufficient access to rides since they cut wait times down significantly.

On Friday, attorneys representing the group asked the 11th Circuit panel to reverse the lower court’s ruling.

“[One of the plaintiffs] is 6’6″ and 300 pounds. If he has a meltdown, mom can’t get him out of the park. Even with the readmission passes, she felt she couldn’t predict whether he would have a meltdown,” attorney Anthony Dogali argued on behalf of the plaintiffs.

“Even for those [with autism] who, unlike this plaintiff, don’t have a need for routine, they still have a need for a maximum wait time. The virtual wait is still a wait. It’s an excuse for having a line,” Dogali said.

“But for those without a need for routine, isn’t the DAS sufficient because they can go do other things in the park while in the virtual line?” U.S. Circuit Judge Kevin Newsom asked.

“Why can’t a guest just go online and look at the wait times for the rides? Kids without a disability melt down at Disney all the time. It’s hot, the lines are long, it’s over-stimulating. Why can’t the parents plan for this? Why is it not a reasonable accommodation to use the DAS and readmission passes to allow movement through the park if the parent plans?” Senior U.S. Circuit Judge Frank Hull said.

“Because that doesn’t help those who rely on routine. The rides may not be available in the order their routine requires,” Dogali explained. “It’s about reducing the risk of meltdown.”

“In regard to the inability to deviate from routine – do all the plaintiffs have an issue with this?” Senior U.S. District Court Judge C. Ashley Royal, sitting by designation, asked.

“All of them have an inability to defer gratification because they do not have the ability to understand time,” Dogali said. “If nothing is happening, they simply know that they’re doing nothing now. They don’t understand that something will happen in the future.”

But attorneys for Disney argued that all of the plaintiffs demonstrated flexibility from their prescribed routines while in the park.

“There’s not a single plaintiff who did not deviate from their routine in the park. The inability to wait is not part of the diagnostic criteria for autism. They don’t have a need for immediate gratification,” attorney Kerry Scanlon said. “In some cases, kids with autism have more difficulty waiting. But the facts show that the plaintiffs demonstrated the ability to wait under some circumstances, including during travel to the park.”

In the 2016 ruling, Conway pointed out that although one parent testified that their autistic child could only wait for periods of five to ten minutes, they acknowledged that the child traveled by air and car from Florida to Mexico and North Carolina–trips that would involve long periods of waiting.

Scanlon argued that Disney’s DAS program reasonably accommodates the group’s “insistence on sameness and routine” by giving them tools to adhere to their own plans.

“Disney has bent over backward,” Scanlon said.

Even if Disney wanted to make changes to its policy, Scanlon argued that the burden on the company would be prohibitive.

“Under the previous GAC system, 3 percent of visitors consumed 30 percent of the [park’s] ride capacity, increasing wait times for everyone and lessening guest satisfaction,” Scanlon said.

Scanlon also claimed that Disney fulfilled the individual assessment requirement under the ADA. Guests requesting DAS privileges meet with Disney Guest Services for an evaluation prior to receiving their DAS card.

But, according to Dogali, Disney’s policies surrounding the Guest Services evaluation remain problematic.

“Disney policy is not to tell you what accommodation you get before you get there. Disney won’t tell you over the phone. You are not told in advance as a matter of policy whether you’ll get readmission passes,” Dogali said.

Ultimately, attorneys for Disney argued that guests with disabilities need to remain flexible in regards to their accommodation requests.

“One of the fundamental treatments for autism is to teach children to be flexible and to cope with triggers, not to acquiesce to everything they want,” Scanlon said. “We can’t create an accommodation to these fluid preferences. It’s not required [under the ADA]. Everyone wants to support these kids, but it’s important to help them be flexible.”

“We don’t need Disney to be my clients’ therapist,” Dogali fired back. “Disney is an entertainment experience. We need that to be accessible.”

The three-judge panel requested that both parties collaborate to create and submit a document detailing the total number of rides in the park, typical wait times for each ride, and how many rides an average guest rides in a day.

The panel did not indicate when it would release its decision.

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