ADA Update

The revision to the Americans with Disabilities Act was signed into law on July 26, 2010, published in the Federal Register on September 15, 2010, and went into eect on March 15, 2011. Full compliance with the regulations was originally slated for March 15, 2012.

In January, 2012, the Department of Justice released a Technical Assistance Bulletin in an attempt to clarify several areas of confusion regarding swimming pool accessibility, specifically, the use of swimming pool lifts.

This document discusses requirements for both Title II (local and state government owned) and Title III (privately owned) facilities.

In providing access to their aquatic programs, this document gives Title II facilities the option to either use a fixed pool lift, or equipment such as a portable pool lift, providing the lifts met the requirements of the regulations. The document also states that sharing lifts between pools is not be permitted unless providing a lift at each pool would create an undue burden. The document also stipulates that accessible features must be available whenever the pool is open to the public.

Title III facilities were instructed that barrier removal can be accomplished by the use of a fixed lift or other means of access that conform with the regulations. If the installation of a fixed lift is not readily achievable, a facility can then consider alternatives, such as the use of a portable lift, as long as the lift conforms to the regulations.

This document was the first mention of any distinction between fixed lifts and non- fixed lifts dating back to the mid-1990’s and the initial study conducted by the National Center for Accessibility at Indiana University, which laid the groundwork for the eventual ADA regulations. As a result of the uproar generated by the January document, Allison Nichol, the Chief of the Disability Rights Section of the Department of Justice, sent a letter to the Hotel and Lodging Association to attempt to clarify the confusion. In this letter Ms. Nichol states:

The 2010 Standards apply to “fixed” or built-in elements. A “fixed” element is one that is attached to a covered building or facility. Therefore, for an existing pool with less than 300 linear feet of pool wall, for example, removing barriers will involve providing one accessible means of entry, meaning a built-in or “fixed” pool lift or a sloped entry that complies with the 2010 Standards to the extent that it is readily achievable to do so (larger pools with 300 or more linear feet of pool wall are required to have two accessible means of entry, with at least one being a pool lift or sloped entry). If, in our example, an entity chooses to use a lift complying with the 2010 Standards that is removable or otherwise designated as “portable,” it may do so, so long as while the lift is provided at the pool, it is axed in some manner to the pool deck or apron.

If installation of a fixed lift or sloped entry is not readily achievable, then a public accommodation may consider alternatives such as use of a portable pool lift that is not axed to the pool facility but incorporates features that in all other respects comply with the 2010 Standards, or the public accommodation may consider other readily achievable accessible means of entry, such as a transfer wall or pool stairs. However, the 2010 Standards’ emphasis on the provision of a lift or a sloped entry recognizes the fact that many people with mobility disabilities rely more heavily on these means to independently enter and exit a pool.

Rather than clarify the situation, this rather ambiguous comment added more confusion. Especially the passage that seemingly now requires portable lifts to be attached to the pool deck. I contacted the DOJ and asked them to provide some guidance on what they considered an acceptable way to attach a portable lift to the deck, for example, would they allow wheel clamps. To date, despite numerous calls and emails, I have received no reply to this question.

The furor and confusion created by these new interpretations of the regulations led to a great deal of public backlash, including legislation proposals in both houses of Congress to challenge them. In fact, a Congressional hearing was conducted in the House of Representatives to investigate the issue. The central question of the legislative concern was whether or not the Department of Justice was overstepping its authority and engaging in rulemaking without following the proper steps, including seeking public comment, prior to doing so.

Because of this uproar, the DOJ extended the compliance date for swimming pools into May, 2012. On May 24, 2012 it issued a follow up Technical Assistance Document. The language in the follow up document was basically the same as the January Bulletin, with this addition:

If you have purchased a non-fixed lift before March15 th that otherwise complies with the requirements in the 2010 Standards for pool lifts (such as seat size, etc.), you may use it, as long as you keep it in position for use at the pool and operational during all times that the pool is open to guests. Because of a misunderstanding by some pool owners regarding whether the use of portable pool lifts would comply with barrier removal obligations, the Department, as a matter of prosecutorial discretion, will not enforce the fixed elements of the 2010 Standards against those owners or operators of existing pools who purchased portable lifts prior to March 15, 2012 and who keep the portable lifts in positon for use at the pool and operational during all times that the pool is open to guests so long as those lifts otherwise comply with the requirements of the 2010Standards. Generally, lifts purchased after March 15, 2012 must be fixed if it is readily achievable to do so.

In addition, the compliance date for existing facilities was pushed back to January 31, 2013. New facilities and facilities undergoing renovations must adhere to the March 15, 2012 compliance date.

It is very likely that the final outcome on the issue of fixed and non-fixed will be decided in a courtroom, sometime after January 31, 2013. In the meantime, manufacturers of portable lifts are providing adaptor kits that allow these lifts to be fixed to the deck. In most cases, these attachment kits are designed so they will not require any bonding.

For now, here is the status:

•  Every pool has to be accessible. Lifts cannot be shared between pools, unless providing a lift at each pool would create an undue burden on the facility.

•  Lifts should be in place and ready for use whenever the pool is open.

•  Lifts should be attached to the pool deck, unless it is not readily achievable to do so. If this is the case, a lift that is not attached to the deck may be used.

•  The owner of a facility makes the decision as to what is readily achievable for that facility.

•  New facilities and those undergoing renovations must fully comply with the regulations as of March 15, 2012.

•  Existing facilities must comply with the regulations before January 31, 2013.

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