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Swimming Through the Regs

Reprinted from PN April 2009

It's almost summer; time to think about enjoying the refreshing water at your local pool. But wait-you may have to think again!

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Harold lives in a nice neighborhood in a mid-sized, Midwestern city. He bought his house because it’s right across the street from one of the town’s five municipal swimming pools. Since Harold’s accident 12 years ago, swimming is one of the few types of exercise he can enjoy. Unfortunately, if he wants to go swimming, he has to drive for 20 minutes across town and use the town’s only accessible pool.

Betsy is a 40-something English professor at a small college and loves to travel. Since her multiple sclerosis (MS) has progressed to the point of her needing to use a scooter to get around, she makes it a point to stay in hotels that feature swimming pools so she can get in some exercise during her frequent trips. Although all hotels do provide special accommodations for people with disabilities, only a small percentage of them have accessible swimming pools, and Betsy must make a number of phone calls prior to each trip to find a hotel with a pool she can use.

Although clearly contrary to the goals of the Americans With Disabilities Act (ADA), both scenarios are likely if the Department of Justice (DOJ) has its way.

The U.S. Access Board (the Access Board) is the government agency tasked with defining accessibility guidelines to help implement ADA. These are the guys who decided what percentage of a hotel’s rooms have to be accessible, how many handicap-parking places must be provided, and what the maximum slope of a ramp should be.

For the last ten years, the Access Board has been working on a revision to the current ADA rules that would add recreational facilities to the mix. This revision, commonly called the 2004 Americans With Disabilities Act/Architectural Barriers Act Accessibility Guidelines, was submitted to DOJ in late 2007. DOJ has the responsibility to adopt the guidelines as the enforceable standard—and enforce them.

After spending more than six months reviewing ADA/ABA 2004, DOJ published proposed rules in June 2008. These rules addressed how the new construction and alteration provisions would affect “existing facilities” and contained a number of suggested revisions to ADA/ABA 2004. With respect to accessible swimming, DOJ suggested several significant changes to how existing swimming pools would be treated.

The Loophole

The Access Board’s goal was a simple one: to develop guidelines for designing accessible swimming pools. The board realized that to make someone like Harold drive across town to use the accessible city pool is discriminatory, especially when he lives across the street from a perfectly good pool.


DOJ, however, has proposed softening the program accessibility requirement for cities that are governed by ADA’s Title II. Although any new construction or any pools that undergo modifications will need to comply with ADA/ABA 2004, existing pools can escape the need to become accessible under the department’s proposed changes.

One of these changes states that in order to meet their program accessibility requirement, entities governed by Title II only need to have a reasonable number (but at least one) of their existing facilities comply with ADA/ABA 2004. In discussing this particular proposed change, DOJ makes the incredible statement that “Compliance with the program accessibility requirement turns on the accessibility of the program—i.e., the program of providing and maintaining public swimming pools—rather than the accessibility of each particular facility used to provide that program.”

Their logic is that if one pool within a city is accessible, the entire city’s program is considered to be accessible. (Can you imagine the outcry if this logic was applied to school integration?)

In Harold’s case, if it were determined that the reasonable number was, in fact, one, he would have no recourse but to make the trek across town. In effect, DOJ is saying it is okay to make Harold drive across town to use the “accessible” pool.

DOJ’s revisions to ADA/ABA 2004 have a similar impact on Betsy’s lifestyle. Title III of ADA relates to public facilities owned by nongovernmental entities such as hotels, community centers, and the like. One of DOJ’s proposed changes to Title III is to remove any obligation to make existing pools less than 300 linear feet in size, accessible.

As with Title II, any new construction or pool undergoing modifications must comply with ADA/ABA 2004. Existing pools in this size category—accounting for more than 80% of hotel pools, 90% of those in schools, and 70% of the ones in sports and fitness clubs—would be exempt. This is why, if DOJ has its way, before she leaves on one of her trips Betsy will need to spend a lot of time on the phone, trying to locate a hotel with an accessible pool.

These examples discuss two of the changes to ADA/ABA 2004 proposed by DOJ. The chart above provides a summary of all the changes relating to swimming pools.

The most disappointing aspect of these proposed changes is that DOJ seems to have lost its focus with respect to ADA’s stated goals. In a DOJ publication dated January 26, 1992, the department wrote the following in providing clarification of section 35.130 of the ADA law that enumerates General Provisions Against Discrimination:

“Taken together, these provisions are intended to prohibit exclusion and segregation of individuals with disabilities and the denial of equal opportunities enjoyed by others… . Integration is fundamental to the purposes of the Americans with Disabilities Act. Provision of segregated accommodations and services relegates persons with disabilities to second-class status.”

Reviewing the actual language of the original ADA law, which spells out the requirements for providing accessible facilities, it is clear there are only two reasons to avoid being required to provide accessibility. One relates to maintaining the historical significance or integrity of a facility. Obviously, the Statue of Liberty would look a little silly with an elevator running up her side.

The other reason stipulates that the public entity does not have to take action that would result in an undue financial burden, so long as the entity can prove the burden exists.

However, any existing inaccessible swimming pool can be made accessible with the simple addition of a lift. The average installed cost of such a device is under $5,000, which is less than one half of one percent of the cost to build a pool in the 300-linear-feet size category. Given these facts, the financial-hardship argument seems to go out the window with respect to providing access to swimming pools.

DOJ should be more interested in finding ways to provide universal accessibility, rather than proposing stipulations that create loopholes that allow discrimination to persist.

Status

So, where are we today? Following the release of the proposed rules in June 2008, DOJ opened a period of public comment that ended in mid-August. Originally, it had been hoped the department would sort through the many comments regarding their proposals and a final ruling would be released during the Bush administration.

Unfortunately, this did not happen, and, as of January 21, 2009, at the direction of the President’s chief of staff, all proposed rules have been put on hold until appointees of the new administration can review them.

So, for now, Harold, Betsy, and 50 million other people with disabilities are waiting for the gears of government to grind, in the hope that they will grind quickly—and fairly.

 

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Swimming Through the Regs

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