A Look at ADA Rules Governing Pools
By John Caden
or the last three miles of his 10-mile workout, Tom could think of nothing but plunging into the cool water of the pool located across the street from his new house. With a half-mile to go, Tom picked up his pace and reached the pool drenched in sweat, savoring the feeling that accompanies the completion of a strenuous workout. Tom approached the check-in desk, and the lifeguard working there gave him a funny look and told him that he would be unable to swim here.
Tom had no choice but to turn his wheelchair around, roll across the street and sit under the shower to cool off. Tom changed his clothes and went back to the pool. He learned from the aquatics director that his community operated five swimming pools, but only one was accessible. Unfortunately for Tom, the accessible pool was located on the other side of town, about a 30-minute drive.
Let's rerun this scenario, but use different players.
For the last three miles of her 10-mile workout, Sally could think of nothing but plunging into the cool water of the pool located across the street from her new house. With a half-mile to go, Sally picked up her pace and reached the pool drenched in sweat, savoring the feeling that accompanies the completion of a strenuous workout. Sally approached the check-in desk, and the lifeguard working there gave her a funny look and told her that she would be unable to swim here.
Sally had no choice but to turn, walk across the street and sit under the shower to cool off. Sally changed her clothes and went back to the pool. She learned from the aquatics director that her community operated five swimming pools, but only one was open to women. Unfortunately for Sally, the women's pool was located on the other side of town, about a 30-minute drive.
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."
|PROPOSED RULE CHANGES TO ADA/ABA 2004|
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 Sally's situation?
This example discusses only one of the changes to ADA/ABA 2004 proposed by the Department of Justice. But all of the changes, especially the provision that exempts existing pools under 300 linear feet in size from the need to provide accessibility, will result in fewer accessible pools. Fewer accessible pools creates de facto segregation.
By proposing these changes in the first place, the Department of Justice seems to have lost its focus with respect to the stated goals of the ADA. In 1992, the DOJ wrote the following 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.
The Department of Justice should be more interested in finding ways to provide universal accessibility, rather than proposing stipulations that create loopholes that allow discrimination to persist.
So, where are we today? Following the release of the proposed rules in June 2008, the DOJ opened a period of public comment that ended in mid-August. Originally, it had been hoped that the Department would sort through the comments and a final ruling would be released during the Bush administration. Unfortunately, this did not happen. On Jan. 21, 2009, at the direction of President Obama's Chief of Staff, all proposed rules have been put on hold until appointees of the new administration can review them.
If pool operators are waiting for a government mandate to make their pools accessible, they are, once again, left hanging. However, these operators could also consider both the civil rights implications of accessibility, along with the fact that 50 million disabled Americans have over $200 billion in discretionary income. These two facts make a good case for not waiting to become accessible. Both Tom and Sally should be able to swim together in that pool across the street.
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