recreation accessibility consultants (rac)

Pools age…some more gracefully than others.  As pools enter the second or third decade of use, some elements require more attention than others.  This article addresses some of the difficult issues surrounding accessibility compliance for an existing pool, and will discuss factors applicable to both public and privately owned pools.

For reference, this article refers to the Americans with Disabilities Act (ADA) title II regulation for local governments (see 28 CFR Part 35), and the title III regulation for businesses and nonprofits (see 28 CFR Part 36).  Local governments are also subject to the Architectural Barriers Act (ABA) if using federal funds for a project, such as LAWCON, FEMA, or CDBG.  We also refer to the 2004 US Access Board ADA/ABA Guidelines, which incorporates final guidelines regarding many recreation environments (including pools), and the Americans with Disabilities Act Accessibility Guidelines (see Appendix A to 28 CFR Part 36).

When is a Pool Project a Pool Alteration?

This question has a practical answer.  If a pool modification changes the way in which a pool is used, it is an alteration (35.150(d) for governments, 36.304 for businesses and nonprofits).  Examples here include, but are not limited to:

* A modification that adds lockers to an existing locker room, thereby increasing capacity, thereby changing use, is an alteration and triggers access requirements.

* The conversion of a dive tank to a slide plunge pool, and the addition of a water slide changes the use of that tank and is therefore, an alteration.  It triggers access requirements.

* The conversion of a wading pool to a sprayground changes the use of the old wading pool, and is now an alteration.  That, too, triggers access requirements.

* The addition of a concession stand, where none existed before changes the use of a pool area and is therefore an alteration.  That also triggers access requirements.

When is a Pool Project Just Simple Maintenance?

There are many examples of maintenance in ADAAG that do not rise to the level of an alteration.  Examples here include, but are not limited to:

* Repainting a pool is maintenance.  It does not change the way in which a pool is used.

* Replacing drains for VGB compliance does not change the way in which the pool is used, so it is maintenance and should not trigger accessibility modifications.

* Repairing crumbling or eroding concrete to eliminate leaking water is maintenance.  It does not change the way in which a pool is used.

* Installing a pool liner is maintenance; it does not change the way the pool is used.

* Replacing a broken tread on a ladder out of a pool, with a new tread, is maintenance.  It doesn’t change the way in which the pool is used.

What are the Access Requirements if a Pool Project is an Alteration?

This is actually a pretty common-sense issue.  First, the element being altered must comply with the accessibility guidelines.  Second, a path of travel must connect this newly altered element to other accessible elements at the site.  As an example, let’s use the addition of 48 lockers to a locker room that already has 52 lockers.

First, the swimming pool technical requirements are found at Section 1009 of the ADA/ABA Guidelines.  Second, locker room guidelines are found at sections 222 (scoping) and 803 (technical requirements).  These sections may also refer to other sections.

Your first step is to realize you now have 100 lockers in the locker room.  Section 222 requires that where locker rooms are provided, 5% or at least one, shall meet the technical requirements for access in section 803.  In our hypothetical 100-locker locker room, we need at least 5 to comply with section 803.

The next step is to look at the locker room and compare it to section 803.  Answer these questions:

* Are 5 of the lockers designated as accessible lockers?

* Is there adequate turning space?

* Is the door configured so that it does not swing into clear floor or ground space required by the ADA?

* Is a locker bench that complies with Section 903 of the ADA/ABA Guidelines available in the room (this is one of the most frequent failures…typical benches are not compliant).

* Are coat hooks and shelves in the locker room compliant with the reach ranges in Section 308 (54” aff for a side reach and 48” for a forward reach…by the way, as a best practice save yourself the trouble and use 48”)?

The path of travel is a bit more complex.  Let’s imagine that there are other accessible elements at the pool…restrooms, showers, a pool lift into the water, a concession stand, the manager’s office, the first aid office, and the picnic tables.  In its simplest sense, the path of travel from the newly altered (and now accessible) lockers would connect to other accessible features, like the accessible restrooms in that locker room, the accessible shower in that locker room, an accessible drinking fountain, the manager’s office, and even all the way out to accessible parking stalls.  This part is simple.

The complex part of this discussion is the concept of disproportionality.  A swimming pool alteration project may (it does not have to) limit the path of travel costs to 20% of the cost of the alteration.  Let’s keep this simple…with a $100,000 alteration project, an entity (hotel, local government, YMCA) could limit path of travel costs to $20,000.

What About State or Local Access Codes?

Some states have a state accessibility code that may, in some instances and in relation to some elements, be more stringent than federal codes.  Some of these states with access requirements include Illinois, New Jersey, Florida, California, New Mexico, and Wisconsin. 

Be sure to know your own state requirements.  And, some large counties and cities have developed access codes.  Access does begin at the local level.

New Construction

In 2002 the Access Board published a final guideline on swimming pool access.  That’s 7 years ago.  There is no reason not to know these guidelines, and hold your designer to these guidelines.  Call it a best practice if you want, but it is also good risk management.  The Department of Interior, in complaints against local governments, does start dispute resolution with the Access Board guidelines.  This is a good example of a $7,000 investment for a pool lift saving you hundreds of thousands of dollars in legal fees.

There is some debate as to what date triggers new construction.  However, again as a best practice or risk management practice, start now. 

Designing or constructing a small pool of less than 300 linear feet of pool wall?  Install a sloped entry or a pool lift.

Designing or constructing a big pool with 300 linear feet or more of pool wall?  Install a sloped entry or lift, and then install a second different means of access.  The second means of access can include a transfer system, transfer wall and pool stairs, as well as either a pool lift or sloped entry, as long as this second means of access is different than the first installed. 
 

The technical requirements for these means of access are spelled out clearly in section 1009 of the ADA/ABA Guidelines.  Don’t forget that pool lifts must be independently operable and installed and ready to use during the normal pool hours of operation.
 

The Access Board provides excellent technical assistance regarding the swimming pool final guideline.  Reach them at www.access-board.gov at 202/272-0080.

Don’t Forget Title II and Title III Requirements

Now that you have relaxed and think that pool issues are all about bricks and mortar, let’s add another layer.  Existing pools must also meet ongoing obligations for access.  In this arena though, the rules for private pools are different than for governments.

Governments (counties, cities, special purpose park districts, states, townships, etc) that have a pool are subject to the title II section 35.150(b) program access test.  In a nutshell, this requires entities to, if it operates a swimming pool, to make certain that the program of swimming is accessible.  At least one existing pool would have to be renovated for access.  So a city or a park district with two pools would probably select the one most heavily used, or most recently constructed, and retrofit it for access.

But what about a county or a park district with 10 existing pools?  Is it enough to just select one pool and make it accessible?  Likely not.  This author suggests a minimum of 1 of every 3 similar sites, like swimming pools, be renovated for accessibility. 

Finally, what about a small village or park district with only one swimming pool?  Unless a pool is on the drawing boards for the immediate future, stop procrastinating, stop arguing, and make it the highest priority to make that unique site accessible.

This reflects the intent of Congress, which was to require states and local governments to do more with regards to access than businesses and nonprofits.

Businesses and nonprofits have a completely different test for existing facilities, one that is considerably easier to meet.  Called ready achievability, it requires a business or nonprofit to retrofit an existing site if it is “easily accomplishable and able to be carried out without much difficulty or expense”.  Found in the title III regulation at 36.304, it imposes an ongoing obligation for a hotel, health club, or nonprofit to continually evaluate the accessibility of the swimming pool and, when to do so is readily achievable, remove barriers at the pool.

Section 36.304(b) lists 21 examples, some of which are found in aquatics environments, such as replacing turnstiles, removing stairs, making curb cuts, lowering shelves, or installing offset hinges to widen doorway width.  Do note these 21 items are just examples and are not an all-inclusive list.

Unlike governments, Congress gave businesses a way to pay for access modifications.  Both a tax credit and tax deductions are available to qualifying businesses.  Visit your tax consultant on this issue or check the Department of Justice website at www.ada.gov.  The Department of Justice also offers great technical assistance for businesses, nonprofits, and governments at 202/514-0301.

This author believes that the larger the corporation and the bigger the operating budget and profit, the harder it is to claim that barrier removal at an existing site is not readily achievable.

Conclusion

The ADA became the law of the land almost 20 years ago.  The swimming pool guidelines have been final since 2002.  Failure to make new pools accessible is inexcusable.

When altering existing pools, pay attention to title II and title III requirements and add access features when required to do so.

If a government, complete the required self-evaluation of pools and determine which will be made accessible.  If a business or nonprofit, identify barriers at your pools and determine if removal is readily achievable.  Be certain to distinguish the program access test for governments from the ready achievability test for businesses and nonprofits.

Since 2000, the National Recreation and Parks Association has conducted a 3-day school on recreation inclusion.  Drawing upwards of 250 professionals every year, it targets parks and recreation professionals as well as therapeutic recreation professionals in community settings.  The idea behind NIRI is to provide practical information…job descriptions, case studies, funding proposals, and real success stories.  NIRI doesn’t feature theory…you can go somewhere else for that.  This year the conference is September 10 to 13 in beautiful San Antonio.  RAC President John McGovern was one of the co-founders of NIRI and has spoken every year at this conference.  This year he’ll be involved in three sessions.  First, he will moderate a session with two Department of Justice attorneys.  Second, he’ll coordinate a role-playing case study in which an aggressive parent of a child with a disability encounters a reluctant parks and recreation administrator.  Third, he’ll co-present in a session on ways public agencies can fund recreation inclusion.