28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Swimming pools. (Section-by-Section Analysis)

As noted earlier, the program accessibility requirement does not require public entities to make structural modifications to existing facilities except where such modifications may be necessary to make the program or service, when considered as a whole, accessible to individuals with disabilities.  Although swimming pools, like play areas, may be more likely than other types of facilities to require structural modifications, this does not mean that every existing swimming pool operated by a city or county must be made accessible.  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.  Where a public entity provides and maintains multiple swimming pools as part of its program of providing public swimming pools, for purposes of the program accessibility requirement, only a reasonable number but at least one of such swimming pools would be required to undertake structural modifications to provide access for individuals with disabilities.  The same reasoning would apply where an existing site (e.g., a city recreation center) provides multiple swimming pools serving the same purpose.

Question 30:  Is a "reasonable number, but at least one" a workable standard for determining the appropriate number of existing swimming pools that a public entity must make accessible for its program to be accessible?  Should the Department provide a more specific scoping standard?  Please suggest a more specific standard if appropriate.  In the alternative, should the Department provide a list of factors that a public entity could use to determine how many of its existing swimming pools to make accessible, e.g., number of swimming pools, travel times or geographic distances between swimming pools, and the size of the public entity?

The Department is proposing two specific provisions to minimize the potential impact of the new requirements on existing swimming pools that undertake structural modifications pursuant to the program accessibility requirement.  First, the Department is proposing to add § 35.150(b)(5)(ii) to provide that swimming pools that have over 300 linear feet of swimming pool wall and are not being altered will be required to provide only one (rather than two) accessible means of entry, at least one of which must be a sloped entry or a pool lift.  This provision represents a less stringent requirement than the requirement in 2004 ADAAG section 242.2, which requires such pools, when newly constructed or altered, to provide two accessible means of entry.  Under this proposal, for purposes of the program accessibility requirement, swimming pools operated by public entities would be required to have at least one accessible entry.

Commenters responding to the ANPRM noted that the two-means-of-entry-standard, if applied to existing swimming pools, will disproportionately affect small public entities, both in terms of the cost of implementing the standard and anticipated litigation costs.  Larger public entities benefit from economies of scale, which are not available to small entities.  Although complying with the alteration standard would impose an undue burden on many small public entities, the litigation-related costs of proving that such compliance is not necessary to provide program access may be significant.  Moreover, these commenters argue, the immediacy of perceived noncompliance with the standard--it will usually be readily apparent whether a public entity has the required accessible entry or entries--makes this element particularly vulnerable to serial ADA litigation.  The reduced scoping would apply to all public entities, regardless of size.

The Department recognizes that this approach could reduce the accessibility of larger swimming pools compared to the requirements in the 2004 ADAAG.  Individuals with disabilities and advocates were particularly concerned about the accessibility of pools, and noted that for many people with disabilities, swimming is one of the few types of exercise that is generally accessible and, for some people, can be an important part of maintaining health.  Other commenters noted that having two accessible means of egress from a pool can be a significant safety feature in the event of an emergency.  It may be, however, that as a practical matter the reduction in scoping may not be significant, as the measures required to meet the alteration standards for accessible entries would often impose an undue burden even if considered on a case-by-case basis.

Question 31:  The Department would like to hear from public entities and individuals with disabilities about this exemption.  Should the Department allow existing public entities to provide only one accessible means of access to swimming pools more than 300 linear feet long?

Secondly, the Department proposes to add § 35.150(b)(5)(ii) to provide that existing swimming pools that have less than 300 linear feet of swimming pool wall and are not being altered need not undertake structural modifications to comply with the scoping and technical requirements for swimming pools in section 242.2 of the 2004 ADAAG.  In its 2002 regulatory assessment for the recreation guidelines, the Access Board assumed that pools with less than 300 feet of linear pool wall would represent ninety percent (90%) of the pools in public high schools; forty percent (40%) of the pools in public parks and community centers; and thirty percent (30%) of the pools in public colleges and universities.  If these assumptions are correct, the proposed exemption would have the greatest impact on the accessibility of swimming pools in public high schools.

Question 32:  The Department would like to hear from public entities and individuals with disabilities about the potential effect of this approach.  Should existing swimming pools with less than 300 linear feet of pool wall be exempt from the requirements applicable to swimming pools?