28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

Swimming pools. (Section-by-Section Analysis)

The Department is proposing two specific provisions to minimize the potential impact of the supplemental requirements on existing swimming pools.  First, the Department is proposing to add § 36.304(d)(3)(ii) to provide that, for purposes of the readily achievable barrier removal requirement, swimming pools that have at least 300 linear feet of swimming pool wall will be required to provide only one (rather than two) accessible means of entry, which must be a sloped entry or a pool lift.  This provision represents a less stringent requirement than section 242.2 of the 2004 ADAAG, which requires such pools, when newly constructed or altered, to provide two accessible means of entry.  Under this proposal, for barrier removal purposes, public accommodations would be required to have at least one accessible entry where readily achievable to do so.

Commenters responding to the ANPRM noted that the two-means-of-entry-standard, if applied in the barrier removal context, will disproportionately affect small businesses, both in terms of the cost of implementing the standard and anticipated litigation costs.  Larger covered entities benefit from economies of scale, which are not available to small businesses.  Although complying with the alteration standard will not be readily achievable for many small businesses (at least not complete compliance), the litigation-related costs of proving that compliance is not readily achievable may be significant.  Moreover, these commenters argue, the immediacy of perceived noncompliance with the standard--it will usually be readily apparent whether a public accommodation has the required accessible entry or entries--makes this element particularly vulnerable to serial ADA litigation.  The reduced scoping would apply to all existing public accommodations, 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 not be readily achievable even if considered on a case-by-case basis.

Question 36:  The Department would like to hear from public accommodations and individuals with disabilities about this exemption.  Should the Department allow existing public accommodations to provide only one accessible means of access to swimming pools more than 300 linear feet long?

The Department also proposes to add § 36.304(d)(4)(ii) to provide that, for purposes of the readily achievable barrier removal requirement, existing swimming pools that have less than 300 linear feet of swimming pool wall will be exempt from the provisions of 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 high schools; eighty percent (80%) of the pools in hotels and motels; seventy percent (70%) of the pools in exercise and sports facilities; forty percent (40%) of the pools in public parks and community centers (e.g., YMCAs); and thirty percent (30%) of the pools in colleges and universities.

Question 37:  The Department would like to hear from public accommodations 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?

Finally, the Department is interested in collecting information regarding the number of existing facilities that provide more than one swimming pool on a site.  The Department is considering creating an exception that would permit existing facilities with multiple swimming pools on a site to make only one of each type of swimming pool accessible.

Question 38:  What types of facilities provide more than one swimming pool on a site?  In such facilities, do the pools tend to be identical or do they differ in type (e.g., in size, configuration, function, or use)?