Guest Column - May 2009
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Equal Access

A Look at ADA Rules Governing Pools

By John Caden

These examples represent two clear-cut cases of discrimination. However, if Tom and Sally reported them to the Department of Justice they would get two different reactions. In Sally's case, the DOJ would launch investigations, issue subpoenas, and would generally cause heads to roll. In Tom's case, they would do nothing.

The Department of Justice would do nothing, that is, if the changes they have proposed to the ADA law take effect.

The original ADA law is pretty clear: Any facility open to the public needs to provide access for disabled citizens. Defining exactly what "providing access" means has been going on since the law was signed in 1990.

The U.S. Access Board is the government agency tasked with defining accessibility guidelines to help implement the ADA law. These guys decided what percentage of a hotel's rooms have to be accessible, how many handicapped parking places have to be provided, and what the maximum slope of a ramp should be.

For the past 10 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 (ADA/ABA) Accessibility Guidelines, was passed along to the DOJ in late 2007.

The Access Board included specific guidelines for swimming pool design in their draft of ADA/ABA 2004. Their obvious intent was to make every swimming pool accessible, consistent with the spirit of the ADA law.

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

Perhaps the most significant change is the proposed softening the program accessibility requirement for municipal pools governed by Title II of the ADA Law. Although any newly constructed pool or any pool that undergoes modifications will need to comply with ADA/ABA 2004 as it is written, existing pools can possibly escape the need to become accessible.

The DOJ is proposing 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, the DOJ made this statement: "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."