28-B-4. Your Right to "Reasonable Modifications" of Prison Policy under the ADA
The ADA requires state and local entities to make "reasonable modifications" to policies, rules, and practices so that people with disabilities can participate in public programs and services.124 A reasonable modification should allow you, as a person with a disability, to take part in a program or activity, or gain access to a facility. Reasonable modifications may be simple-for example, creating an exception to the rule forbidding prisoners from storing food in their cells, so a diabetic person can keep his "blood sugar at an appropriate level."125 Other modifications are more complicated.
Whether a modification is considered reasonable depends on the specific circumstances and modification you ask for. To decide what a "reasonable modification" is, courts weigh the needs of prisoners with disabilities against the structural, financial, and administrative concerns of the prison. In particular, courts look at:
(1) whether the modification will "fundamentally alter" a program or activity,126
(2) the cost of the modification, and
(3) the burden the modification would have on administration of the prison.127 Some courts also look at concerns relating to prison management and prisoner rehabilitation, such as safety.128
The prison has the burden of showing that a modification would "result in a fundamental alteration in the nature of a service, program, or activity or in undue [extreme] financial and administrative burdens."129 But you have to be prepared for the prison to make these kinds of arguments. Even if the prison succeeds in showing that changes would fundamentally alter a program, or cause an undue financial or administrative burden, it must still "take any other action" that would "ensure that individuals with disabilities receive the benefits or services provided" by the prison.130 This means they are supposed to come up with other ways for you to get the benefits offered. The following Subsections describe the fundamental alteration defense, the undue burden defense, and the "penological interests" (relating to prison management or prisoner rehabilitation) defense to prisoners' ADA and Section 504 claims.
(a) Modifications Are Not Reasonable if They Result in a Fundamental Alteration to the Prison's Programs, Services, or Activities
A prison does not have to make modifications to a service, program, or activity if doing so would "fundamentally alter the nature of the service, program, or activity."131 A fundamental alteration has to be so big that something essential is lost. This allows prisons to balance the rights of disabled prisoners against the integrity of its services, programs, and activities.132 If you are seeking a change that would make it difficult for the prison to provide the particular service, program, or activity to other prisoners, this could be considered a fundamental alteration that the prison does not have to provide.133
Courts will likely consider the circumstances surrounding a modification when determining if such modification is a fundamental alteration,134 and will expect the prison to provide support for their claim that a modification is a fundamental alteration.135 Examples of modifications that might not be considered fundamental alterations include the provision of a shower chair, a non-slip shower floor, and installation of shower handrails.136 The determination of whether a modification is a fundamental one is very dependent on the facts of a given case, and courts will look closely to the specific circumstances surrounding your situation.137
(b) Modifications Are Not Reasonable if They Cause Undue Financial or Administrative Burden
Prisons also do not have to make modifications that would result in "undue financial and administrative burdens."138 For example, in Onishea v. Hopper, the court found that hiring additional guards to prevent high-risk behavior (so that HIV-positive prisoners could participate in programs with the general population) would not be a "reasonable accommodation," because it would be too expensive, causing undue financial burden.139
The DOJ seems to have thought that the undue burden test would be hard for the prison to pass-that it would apply only in "the most unusual cases."140 While some courts (as in Onishea and Spurlock) may allow defendant prisons to pass the test in situations the DOJ would not consider unusual; others are requiring more than "administrative or fiscal convenience" to segregate services under Title II.141 For example, in Pierce v. County of Orange, the Court found no evidence that allowing prisoners access to an adjacent "Inmate Programming Building" would impose undue financial or administrative burdens.142 As with the "fundamental alteration" defense, the determination of whether a modification will cause undue financial or administrative burden is very dependent on the facts of a given case, and courts will look closely to the specific circumstances surrounding your situation.143
(c) Modifications Are Not Reasonable if They Impact Overall Institutional Concerns (Penological Interests)
The ADA regulations only mention fundamental alterations and undue burdens as the two arguments prisons can use to avoid making modifications for prisoners with disabilities. However, courts have permitted prisons to make a third argument to avoid making those modifications: "overall institutional requirements," such as "[s]ecurity concerns, safety concerns, and administrative" needs.144 In considering these institutional requirements, some courts strongly presume that prison policies are acceptable. 145 (This is called "deference to prison management.") In jurisdictions that use this approach, you will have to overcome this strong presumption that the prison's concerns are legitimate.146
Not all courts recognizing the defense of "overall institutional concerns" will show deference to prison officials. For example, in Armstrong v. Schwarzenegger, defendants argued that they had legitimate "penological" (relating to prison management or criminal rehabilitation) reasons to house a class of prisoners in county jails rather than state prisons, and that they were entitled to deference. The Court, however, found that prison management "demand[ed] deference to which they are not entitled" and did not find any penological reasons for such housing.147 Additionally, not all courts will find that penological interests alone make a modification not reasonable. For example, in Henderson v. Thomas, the court stated that prior cases did not "require this court to treat penological interests as a trump on the plaintiffs' [ADA] statutory rights," before finding that while the defendant had a legitimate penological interest in diminishing the spread of HIV to other prisoners, they could prevent HIV transmissions while still allowing reasonable modifications for the plaintiff prisoner.148 Because of the variety of approaches used by courts, as well as the fact-specific nature of the courts' determinations, you should see how courts have ruled in your jurisdiction when making a claim.
(d) The Turner Test in ADA and Section 504 Claims for Prisoners with Diabetes.
Circuit courts have used the Turner v. Safley149 test in ADA and Section 504 cases to decide when a prison policy can legally discriminate against prisoners with disabilities. Under this test, prison policies are acceptable if they are "reasonably related to legitimate penological interests," meaning that the policies make sense and are related to a valid prison concern or goal.150 Some courts have used this test to decide what is a reasonable modification under the ADA for prisoners with disabilities.151
The Turner test is usually used to decide prisoners' constitutional claims, not statutory claims like the ADA and Section 504. Some experts believe the Turner test is inappropriate in ADA cases.152 It is better for prisoners when courts do not use Turner, because the ADA and Section 504 require defendants to make any reasonable accommodations for prisoners' disabilities. Also, reasonable accommodations or modifications under the ADA often include expensive physical renovations or other expenditures.153 In comparison, the Turner v. Safley reasonableness standard prescribes only "de minimis cost" (minor cost) solutions. (So a prison would have to make more accommodations for you under the ADA and Section 504, and fewer and cheaper accommodations under Turner.) However, some courts have held that the ADA/Section 504 standard must be interpreted consistently with the Turner standard,154 or at least may...
