Summary of the Department’s Proposed Reduced Scoping for Existing Swimming Pools:
The Department is proposing to create reduced scoping requirements (scoping requirements describe what, when and how many) for both state and local government operated existing pools under ADA Title II and existing pools operated by public accommodations under ADA Title III for providing access. The Department proposes to reduce the requirements from two accessible means of entry to swimming pools with greater than 300 linear feet of pool wall to only one accessible means of entry for both state and local government operated pools and pools operated by public accommodations. The Department proposes to exempt small facilities with existing swimming pools with less than 300 linear feet of swimming pool wall under both Title II and Title III from the requirement to provide at least one accessible means of entry to the pool.
Summary of Proposed Comments:
We strongly oppose both the reduced scoping requirements for accessible entry for existing swimming pools greater than 300 linear feet of pool wall and the total exemption for providing an accessible means of entry for small facilities with existing swimming pools of less than 300 linear feet of pool wall. Both public entities under Title II and public accommodations under Title III have options to achieve the accessible means of entry to existing swimming pools, both large and small, as stated in the new ADA/ABA standards, that do not require structural modifications to the swimming pools, such as pool lifts, transfer steps, transfer walls, or transfer platforms. For many public entities and public accommodations, providing these non-structural modifications, in the number set forth by ADA/ABA, will be feasible and readily achievable. We believe strongly that it is sufficient to require public entities and public accommodations to provide the options for existing pools that are non-structural to achieve access and to allow the current program accessibility and readily achievable standards to be applied on a case-by-case basis rather than to create wholesale exemptions that will seriously impede the progress of increased accessibility.
Swimming Pools
Question 31: The Department would like to hear from public entities and individuals with disabilities about this exemption. Should the Department allow existing public entities to provide only one accessible means of access to swimming pools more than 300 linear feet long?
Question 32: The Department would like to hear from public entities and individuals with disabilities about the potential effect of this approach. Should existing swimming pools with less than 300 linear feet of pool wall be exempt from the requirements applicable to swimming pools?
Department’s Proposed Rulemaking:
ADA Title II
Subpart D – Program Accessibility
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§35.150 Existing Facilities
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(b)
(4) Reduced scoping for existing facilities. For measures taken to comply with the
program accessibility requirements of this section, existing facilities shall comply with the applicable requirements for alterations in § 35.151 of this part, except as follows:
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(ii) Swimming pool of at least 300 linear feet of swimming pool wall public entity need only provide one accessible means of entry that complies with 1009.2 or 1009.3 of proposed standards (pool lift or gradual sloping entry).
(5) Exemption for small facilities. For measures taken to comply with the program accessibility requirements of this section, existing facilities shall comply with the applicable requirements for alterations in § 35.151 of this part, except as follows:
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(ii) Swimming pool of less than 300 linear feet of swimming pool it shall be exempt from providing any accessible entry into the pool. (242.2 of proposed standards)
ADA Title III
§ 36.304 Removal of barriers
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(d)(2) Safe harbor. Elements in existing facilities that are not altered after [insert effective date of final rule], and that comply with the 1991 Standards, are not required to be modified in order to comply with the requirements set forth in the proposed standards.
(3) Reduced scoping for public accommodations. For measures taken to comply with the barrier removal requirements of this section, existing facilities shall comply with the applicable requirements for alterations in § 36.402 and §§ 36.404 through 36.406 of this part for the element being altered, except as follows:
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(ii) Where an existing swimming pool has at least 300 linear feet of swimming pool wall, it shall comply with the applicable requirements for swimming pools, except that it shall be required to provide only one accessible means of entry that complies with section 1009.2 or section 1009.3 of the proposed standards.
(4) Exemption for small facilities. For measures taken to comply with the barrier
removal requirements of this section, existing facilities shall comply with the applicable requirements for alterations in § 36.402 and §§ 36.404 through 36.406 of this part, except as follows:
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(ii) Where an existing swimming pool has less than 300 linear feet of swimming pool wall, it shall be exempt from the provisions of section 242.2 of the proposed standards; and
Proposed Comments:
We strongly oppose the reduced scoping for existing swimming pools of greater than 300 linear feet of swimming pool wall proposed for both Title II and Title III of the ADA. This reduced scoping is unnecessary because under the current regulations public entities are entitled to an impracticability and undue burden defense, and public accommodations are subject to the readily achievable standard for barrier removal for public accommodations. The ADA/ABA standards are for new construction and alterations only, not existing facilities. Therefore, if a situation arose where an individual demanded two accessible entry methods for a pool either under Title II’s program accessibility requirements or under Title III’s readily achievable barrier removal requirement, then the public entity or public accommodation could still argue that it is not required to do both because it is either an undue burden or it is not readily achievable.
We also strongly oppose the proposed total exemption for small facilities, especially since the Access Board indicated in its research that swimming pools with less than 300 linear feet of swimming pool wall would represent 90% of pools in public high schools; 40 % of pools in public parks and community centers; and 30% of the pools in public colleges and universities. It should be left up to either the public entity or public accommodation to argue that it is either an undue burden under Title II or not readily achievable under Title III if someone demanded full compliance with the swimming pool standards.
We oppose the exemptions proposed by the Department for both Title II and Title III because they will severely impede the progress of accessibility of pools, which runs counter to the ADA’s goal of increasing accessibility over time. Pools are not altered frequently, with the average life cycle of a public pool being 50 or more years. As such, accessibility requirements for alterations are not going to be triggered and many existing pools will remain inaccessible for decades to come. This is simply unacceptable. Further, it is unclear why public entities under Title II should be given a total exemption for pools less than 300 linear feet of pool wall as they have already had 30 years to address existing swimming pools pursuant to the program accessibility requirements for existing facilities under Section 504 of the Rehabilitation Act.
We understand that adding a sloped entry into existing pools is most likely not going to be feasible unless they are planning to reconfigure the pool. However, the proposed ADA/ABA standards already provide less costly options to achieve the two accessible entry methods that do not require structural modifications to the pool for both large and small pools. For instance, a public entity or public accommodation could add two pool lifts, or a pool lift and either a transfer wall, transfer steps, or a transfer platform, and it would be in full compliance with the standards. None of those methods require structural modifications to the pool. It seems that it could be reasonable for many public entities and readily achievable for many places of public accommodation to add these non-structural accessibility modifications. The same goes for small facilities with pools less than 300 linear feet of pool wall. They can comply with their requirements again by installing a pool lift, which does not require structural modifications. Swimming pool lifts can be purchased for just a few thousand dollars, with some costing as low as $4000.00. We believe strongly that it is sufficient to require public entities and public accommodations to provide the options for existing pools that are non-structural to achieve access and to allow the current program accessibility and readily achievable standards to be applied on a case-by-case basis rather than to create wholesale exemptions that will seriously impede the progress of increased accessibility.
Question 30: Is a ‘‘reasonable number, but at least one’’ a workable standard for determining the appropriate number of existing swimming pools that a public entity must make accessible for its program to be accessible? Should the Department provide a more specific scoping standard? Please suggest a more specific standard if appropriate. In the alternative, should the Department provide a list of factors that a public entity could use to determine how many of its existing swimming pools to make accessible, e.g., number of swimming pools, travel times or geographic distances between swimming pools, and the size of the public entity?
In reference to Question 30, the reasonable number, but at least one is not a workable standard. The question of what constitutes program access depends on a number of factors that render the formulation “but at least one” virtually meaningless and, moreover, open to abuse and misinterpretation. The number of community pools should not be the only guiding factor. Additional factors to consider include the availability of accessible public transportation and particularly availability and frequency of weekend and off-peak service.
The current program access requirement is a reasonable standard that already takes the government's resources into account and this analysis is also not necessary. Further, each person with a disability should have the same right as non-disabled people to use the swimming pool that is closest to their home and that is used by their friends and family members; anything else would constitute discrimination. |
