ADA Deadline Nears for Compliance by Aquatic Facilities

Late next week, new provisions of the Americans with Disabilities Act regarding public pools and spas become law. Simply put, all public pools must be equipped with means of handicapped-accessible entry by Thursday, March 15, or face fines levied by the U.S. Department of Justice or lawsuits filed by individuals or advocacy groups.

For pools less than 300 linear feet in size, the ADA Standard for Accessible Design calls for one means of access, which must be either an ADA-compliant lift or a sloped entry. Pools with greater than 300 linear feet of pool wall must also have a second means of access - either another lift or ramp, or a transfer wall, a transfer system or pool stairs.

Given the huge number of pools that need to be brought into compliance - estimates put that number at approximately 100,000 - and the finite number of manufactured units and available installers, what's going to happen one week from today, after the law has taken effect? Will confusion reign?

To find out, AB's sister publication, AQUA, asked John Caden, founder (in 1996) of pool lift maker RehaMed and now an accessibility specialist for S.R. Smith. He suggests there may still be some wiggle room. Here are excerpts from that interview:

What is the level of awareness about the new requirements among facility operators?John Caden: It should be pretty high, especially with respect to swimming pools, because the regulations have actually been on paper since 2003. They were originally published in September of that year as "guidelines," and the document is called "The Americans With Disabilities Act Accessibility Guidelines," commonly referred to as "ADAAG 2004." These were originally published so that any new construction projects or facilities undergoing major modifications would be able to build to those standards, with the anticipation that eventually they'd become law.

So, it's been around a while. Probably the industry that's been slowest to react has been the hospitality industry. But I really can't say lack of awareness has been the issue. I think it's been more a case of that industry thinking they could make it go away, to be quite honest with you. In 2008, the Department of Justice put out what they call a Notice of Proposed Rulemaking, where they basically laid out all of the things they were intending to do to enable the public to comment on it. During the hearings that ensued after that, there was a lot of discussion by people in the hospitality industry that were trying to make the claim that they couldn't afford it, that they don't have that many disabled customers, one thing after another on reasons why they shouldn't have to comply with the regulations. Obviously, they were pretty much ignored.

Plus, the aquatics industry - the pool professionals that service pools and sell pools and take care of all the equipment - has also been out there since probably 2010 when the law was passed, telling people about it. Obviously for them it's an opportunity to sell equipment for accessibility and expand the scope of what their job is. So the initiative on their part has also created a lot of awareness about the regulations.

You've been at the forefront of efforts to educate the industry about these changes. Can you explain the importance of that?Caden: The main thing we're trying to do is get accurate information out and dispel a lot of the rumors and myths and misunderstandings so people have a clearer idea of what their responsibilities are and are not under the regulations. There are some people going around telling every swimming pool they have to be accessible by March 15 or they're going to get fined $50,000. Well, that's just not true. The main thing is to get all the information out there and to get it out correctly.

What are some of the things you've been doing to educate the industry?Caden: S.R. Smith has put together a website that's separate from the commercial site that's specifically set up to be a repository for anything we can find having to do with swimming pool accessibility, the ADA law, and anything that fits under that umbrella, and that's www.poollifts.com. We have a whole series of white papers that I've written to try to provide more detail on some of the issues that might be a little confusing in the law. It's got links to all the different websites that might have something to do with swimming pool accessibility. Any time a news item pops up on the Internet, we put it on our website so people can keep up to date on what's being said out there about swimming pool accessibility. And then, if all else fails, we have an "Ask An Expert" e-mail link, so if you can't find an answer to a question, we'll try to find it for you.

I've been speaking at a lot of seminars and trade shows and different types of industry events teaching people about the law and implementation of it: What can a pool professional do to help customers prepare for the ADA? I did a series of three webinars for the Association of Pool & Spa Professionals that are available on its website. These are accredited, and someone that takes it can get a CEU credit.

So the awareness is pretty high. How about the level of compliance?Caden: A lot of that depends on the facility. If it's a new facility that's just being built or if it's one that was started after March 15, 2011, or is undergoing major modifications, those types of facilities have to fully comply with the ADA requirements. So on March 15 of 2012, if they're open, they've got to fully comply with the ADA.

For existing facilities, the rules are a little bit different. If there's an existing facility, it has to comply to the extent that compliance is readily achievable. And "readily achievable" means being able to be accomplished without much difficulty or expense. So what any existing facility should do, and this is what we counsel people to do, is between now and March 15, go through the facility and conduct what we call a "barrier-removal analysis." That basically means to assess the facility to determine what your obligations are. Identify the pools, whether those pools fall under ADA jurisdiction, and determine if it's readily achievable to make the barrier removal, and if so what are the plans for doing that.

Does it mean that you have to have a pool lift in place on March 15? The answer is "no." What you have to have on March 15 is a plan. And if the plan is, "We don't have enough money in our 2012 budget to buy a pool lift, but we will put it in the budget for 2013, that will work pretty well. You just need to have all that information documented, because even though you don't necessarily have to have a compliant installation on March 15, it doesn't prevent you from being sued on March 16. But if you have a plan when somebody shows up to sue you, that's going to mitigate any kind of punitive action.

So the key thing we try to stress to everybody is whatever you do, have a plan in place, have it in writing and keep it on file in your facility, so if anybody does ever lodge a complaint, you can just reach in your desk drawer, pull out your plan, hand it to them and say, "This is our program." Then, at that point, let them challenge it.

What have you heard about enforcement?Caden: Only the Department of Justice has the authority to enforce the ADA. The primary way will be through a complaint filed with the DOJ or having a person come in as an individual and suing the facility for not being in compliance. That's going to be the most predominant way because there are a lot of people out there that are "professional plaintiffs," and they basically go around looking for violations.

Now, having said that, there are a lot of state building codes that have adopted the ADA standard as part of the building code. So depending on the state and what the requirements are, states could get involved, especially with new construction and major modifications - instances where the facilities are going to have to pull a permit and get a certificate of occupancy at the end. States can withhold those if the facilities are not in compliance with the state building codes. So, while states don't have the authority to go out and enforce the ADA per se, they can enforce it through enforcing their local building codes.

The other thing that happens is some states issue an annual operating permit. And as part of that, they may require that the existing pools be in compliance with the state building codes, and if they're not, they don't get their annual operating permit.

What was the industry's involvement in coming up with the regulations and deadlines? And do you feel the industry's concerns were addressed?Caden: Absolutely. The APSP is out there trying to educate their members and the rest of the industry on what the requirements are for ADA. There are some issues that have been coming up, and we're trying to get a meeting with the Department of Justice, because there are a couple of areas in the law that are a little unclear, and we're trying to get clarification on those to help our industry out a little bit. So it's an ongoing process.

AQUA: Any final thoughts?Caden: We're trying to advise everyone in the industry to be proactive. Even if you can't afford a pool lift today, or to make your pool accessible, or you're going to order one and it's a one-year wait for delivery, just get that done, get it in writing and keep it on file. Because, again, those professional plaintiffs are going to be out on the street on March 16. These are the guys that have been going around for years to the hotels and restaurants and clubs and any type of commercial facility measuring the slope of ramps, the width of doorways, and now they're going to be doing the same thing with swimming pools.

Read the full AQUA interview here.