The U.S. Department of Justice threw private park operators a curve ball earlier this year when it published dramatic changes in accessibility requirements for swimming pool lifts under the Americans with Disabilities Act (ADA).
New regulations published Jan. 31 gave park owners only 45 days to install swimming pool lifts at their facilities, an unrealistic timetable by any stretch of the imagination, given the size of the campground industry and the relatively small numbers of pool lift providers, according to a news release from the National Association of RV Parks and Campgrounds (ARVC).
Department of Justice officials also gave park operators differing interpretations of the new regulations, with some saying permanent pool lifts are required at every pool or body of water, while others said portable pool lift devices would suffice.
The 2010 ADA Standards gave park operators the option of installing either permanent or portable pool lifts to provide their disabled guests with access to pool, wading pool and spa facilities.
Given these contradictions, and the looming enforcement deadline, ARVC joined forces with the American Hotel & Lodging Association and other groups to call on the Department of Justice to revise its regulations to make it easier for small and medium size businesses to comply with the new regulations using portable pool lifts. ARVC and its industry partners have also asked the federal government to extend the deadline for compliance with the new regulations by six months.
ARVC submitted its latest comments on the ADA pool lift compliance issue to the Department of Justice on April 4th, less than two weeks after ARVC joined its industry partners at a White House meeting to encourage the Department of Justice to revise its pool lift requirements.
Jeff Sims, ARVC’s director of state relations and program advocacy, is working closely with the Washington, D.C. law firm of McDermott Will & Emery on the ADA pool compliance issue. In a recent Q & A, Sims addressed several key questions involving the history of the pool lift issue, where we’re at today, and what park operators can expect ARVC to do on this issue in the coming months:
Q: Were campgrounds, RV parks and resorts previously required by the Americans with Disabilities Act to make swimming and wading pools and spas accessible for the disabled?
Sims: No. Not until now. The ADA regulations and Standards for Accessible Design that were originally published in 1991 set the standard for what makes a facility accessible. And while the updated 2010 standards retain many of the original provisions of the 1991 standards, they do contain some significant differences. They are also used differently depending on whether you are altering an existing building, building a new facility or removing architectural barriers that have existed for years.
Q: When did the U.S. Department of Justice first indicate that portable pool lifts may not be compliant in some circumstances with ADA regulations?
Sims: On January 31st of this year – Just two months before the deadline for compliance!
Q: Why is it important for ARVC members to be aware of these standards?
Sims: These standards can have a direct effect on parks’ cost of doing business. This is also a civil rights issue about accessibility. The ADA’s regulations and the ADA Standards for Accessible Design, originally published in 1991, set the standard for what makes a facility accessible. While the updated 2010 Standards retain many of the original provisions in the 1991 Standards, they do contain some significant differences. These standards are the key for determining if a small business’s facilities are accessible under the ADA. However, they are used differently, depending on whether a small business is altering an existing building, building a brand new facility, or removing architectural barriers that have existed for years.
Q: Are there other facilities besides swimming pools that are subject to new ADA regulations?
Sims: Yes. The 2010 ADA Standards also set new accessibility requirements for exercise machines and equipment; fishing piers and platforms; miniature golf and regular golf facilities; play areas; recreational boating facilities; and residential facilities and dwelling units.
Q: Campground operators have received conflicting information from federal officials over what the Justice Department really required, particularly on the question of whether private parks could get by using portable pool lifts or whether they would be required to install permanent pool lifts for each swimming pool. Do we know even now what the federal government really required?
Sims: We asked the Department of Justice to revisit and revise its Jan. 31, 2012, guidance, which required a fixed pool lift (if readily achievable). The guidance also stated that a portable pool lift is not compliant in some circumstances. In expressing a preference for and requiring a fixed pool lift, the federal guidance is at variance with the 2010 Final Rule, which did not distinguish between fixed and portable lifts. Furthermore, we believe there has been no evidence presented during the rulemaking that demonstrably shows the superiority and necessity of a fixed pool lift. In our experience, a portable pool lift is functionally equivalent to a fixed lift in that it provides entry and exit from the pool or spa. It’s also a more affordable option for park operators in meeting these new requirements.
Q: When did ARVC get involved in monitoring the pool lift issue and intervening on behalf of private park operators on this issue?
Sims: I was hired on Jan. 15th 2011, and became aware of the issue nearly immediately. ARVC hired McDermott, Will & Emery in Washington, D.C., to head up our legal and lobbying efforts in April of 2011. They issued their first “Guidance for ARVC Members Regarding the New ADA Requirements for Pools and Spas” on May 11th, 2011. On June 16th, they provided additional guidance to ARVC members concerning the term “readily achievable” in Department of Justice parlance. They have since helped us develop an effective grass roots campaign on this issue.
Q: What has ARVC achieved to date on this issue?
Sims: ARVC has been the leader in providing information concerning the new ADA Standards to the campground industry. Working with our coalition partners and our members, we were able to convince U.S. Attorney General Eric Holder to delay the implementation of new ADA rules regarding swimming and wading pools for at least 60 days. That means the compliance deadline has been pushed back to May 15th. The Department of Justice also published a Notice of Proposed Rulemaking, which solicited comments on whether or not it should delay the implementation of the new rules for pools and spas 180 days. ARVC organized a letter writing campaign to provide NPRM input on behalf of campground owners to insure our common voice was heard.
Q: What other business groups are working with us on the ADA issue?
Sims: We are working with the U.S. Chamber of Commerce, the American Hotel & Lodging Association, the American Resort Development Association, the Asian American Hotel Owners Association, the International Association of Amusement Parks and Attractions, the National Apartment Association, the National Multi Housing Council, The Real Estate Roundtable, and the World Water Park Association. There is strength in numbers and that is how we have been able to leverage ARVC’s voice.
Q: What did ARVC request of the Justice Department in its April 4th letter?
Sims: We stated that our members are very strong supporters of the spirit and intent of the ADA. However, we noted that the technical assistance document or “guidance” published by the Department of Justice on January 31, 2012, is confusing, at variance with the 2010 Final Rule, and problematic for those of us who fully intend to comply with the ADA’s requirements. We, therefore, called on the Department of Justice to revisit and revise its January 31st guidance. We noted that the department had failed to consider the financial burden permanent pool lift requirements would place on our members, not only for the equipment itself but for the required electrical bonding under the National Electrical Code and for the reconstruction of pool decks. We also noted that the installation of fixed pool lifts also requires building permits and construction work that can take additional time, and that places public accommodations at risk of being sued for non-compliance. In any event, a sufficient supply of fixed pool lifts is simply not currently available, according to a representative of pool lift manufacturers who met with Obama administration officials on March 26th. We also urged the Department of Justice to make clear that public accommodations may store portable pool lifts and make them available after determining at check-in whether a disabled patron wishes to use the accommodation’s pool or spa. Additionally, we urged the Department of Justice to allow public accommodations to share portable pool lifts among pools and spas. In fact, such a requirement could make more pools and spas accessible to disabled patrons.
Q: What happens now?
Sims: The Department of Justice is considering nearly 1,400 comments that were submitted on the topic of extending the compliance date for 180 days, which leads us to believe the extension may be attainable. However, many advocacy groups for the disabled have argued that the compliance date should not be extended at all. Meanwhile, ARVC and other organizations are continuing to argue that the Justice Department should not require fixed pool lifts and that portable pool lifts should be compliant. Legislation has also been introduced in Congress to delay the implementation date and to the allow the use of portable pool lifts. But passage of such legislation seems unlikely. ARVC members should, therefore, continue to make their voices heard to their representatives on this issue. This will be a key topic ARVC members who are attending the National Issues Conference in Washington, D.C., on May 9th will be addressing in private Congressional meetings.
On Tuesday (Jan. 31), the U.S. Department of Justice (DoJ) issued further guidance on how revised final regulations implementing the Americans with Disabilities Act (ADA) apply to swimming pools. The National Association of RV parks and Campgrounds (ARVC) issued the following statement on that guidance:
As you know, public accommodations, such as RV parks and campgrounds, must bring existing pools into compliance with the 2010 Standards for Accessible Design to the extent it is readily achievable to do so.
There continues to be some confusion regarding the ADA requirements as pertain to public accommodations. This much, though, is clear from this guidance issued by DoJ on Jan. 31:
1. “Sharing accessible equipment between pools is not permitted, unless it would result in an undue burden to provide equipment at each one [pool],” according to DoJ’s guidance. In October 2011, the American Hotel and Lodging Association (AHLA) specifically asked DoJ whether a hotel with two or more existing pools would be in compliance if it has one pool lift for both pools and moves the lift around as needed upon request by a guest with a disability. Clearly, DoJ believes that using one pool lift for multiple pools at the same facility is not permitted — unless, of course, “it would result in an undue burden to provide equipment at each pool.” It should be noted that the passage quoted from the DoJ guidance in this paragraph above was made in reference to state and local facilities, not public accommodations. But on the issue of lift sharing between pools, there is no reason to believe that DoJ’s position would be any different for a public accommodation facility.
2. DoJ states: “Accessible pool features must be available whenever the facility is open to the public.” Thus, if an RV park with a swimming pool is closed from, say, December through March, the park’s swimming pool need not be accessible while the park is closed. That may seem obvious, but it’s worth clarifying.
3. There is a clear preference in DoJ’s guidance for fixed pool lifts. The guidance states: “If installation of a fixed lift is not readily achievable, the public accommodation may then consider alternatives such as use of a portable pool lift that complies with 2010 Standards.” By implication, DoJ appears to be saying that a public accommodation must install a fixed lift if it is readily achievable to do so. Recall that “readily achievable” for purposes of the ADA means “easily accomplishable and able to be carried out without much difficulty or expense.” In addition, remember that the barrier removal obligation is a continuing one. So, what may not be readily achievable in one period may indeed be readily achievable in a later period.
4. While the 2010 Standards set minimum requirements for making swimming pools, wading pools and spas accessible, the DoJ guidance on Jan. 31 only explicitly addresses pools. Still, the principles in this guidance could apply to spas, too.
5. The compliance date for implementation of these requirements is March 15, 2012.
Finally, our attorney at McDermott, Will and Emery spoke with Kevin Maher of AHLA today. He said that AHLA is speaking with its counsel today and considering its options (e.g., a legal challenge, lobbying for relief on Capitol Hill) on this DoJ guidance. While AHLA has not made any decisions on a response to this guidance, it is in the process of determining what groups would likely oppose the guidance. It is very important that ARVC remain in close contact with large trade organization such as AHLA on this matter and work with like- minded groups as much as possible. That is exactly what we are doing over the next few days, i.e., finding out which groups oppose this guidance and working with them to devise a strategy to challenge it.
The National Association of RV Parks and Campgrounds (ARVC) requested McDermott, Will & Emery to further research questions concerning the ADA guidelines as to what is “readily achievable” with the Department of Justice concerning regulations for swimming pools and spas.
“ARVC is not in a position to give individual legal advice and we encourage our members to use the ADA Info Line: (800) 514-0301 for specific questions about the regulations,” ARVC stated in a recent e-mail to its members. “The DOJ will talk to individual property owners about their particular circumstances which should also provide sound and well qualified advice, however, when in doubt seek legal counsel.”
Meanwhile, the following is a response from Cecilia Showalter of MWE:
I spoke to someone at the ADA hotline, and I conducted case law research regarding the definition of “readily achievable” barrier removals. The case law was not particularly helpful in depicting exactly what kind of cost/effort courts consider “readily achievable.” The case law was instructive, however, in showing how lawsuits over accessibility are resolved. For instance, Plaintiffs bringing a suit against a business owner have to make an initial showing that there are barriers preventing disabled access and they have to detail the accommodations that the business owner would have to make. Through the course of litigation, a Plaintiff will then have to hire an expert to provide evidence of how much the required barrier removal would cost the business owner. Then, the burden of persuasion shifts to the defendant (business owner) to demonstrate that the scope of compliance (the proposed alterations and the estimated costs) would be disproportionate or not “readily achievable.”
We provided the following factors to ARVC, which is the only guidance DOJ gives on “readily achievable” (I’ve copied it here as a reminder). The hotline person told me two additional things about this (which appears below):
The regulations require only that barriers to entry are removed so that your pool conforms with the requirements for disabled access “to the extent readily achievable.” The DOJ has stated that “readily achievable” means that it is “easily accomplishable without much difficulty or expense.”
Specifically, the definitions section of the regulation at 28 C.F.R. § 36.104 provides the following factors to be considered when evaluating whether a barrier removal is readily achievable:
(1) The nature and cost of the action needed under this part;
(2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
(3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
(4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type and location of its facilities; and
(5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
28 C.F.R. §36.104
Furthermore, the U.S. Department of Justice guidance states: “Determining what is readily achievable will vary from business to business and sometimes from one year to the next. Changing economic conditions can be taken into consideration in determining what is readily achievable. Economic downturns may force many public accommodations to postpone removing some barriers. The barrier removal obligation is a continuing one and it is expected that a business will move forward with its barrier removal efforts when it rebounds from such downturns.” (Italics added.) U.S. Department of Justice, ADA Update: A Primer for Small Business (2011).
It is important to consult with an expert on what changes you will need to make under the new rules and how much of a financial burden it will be for your business.
1. The hotline DOJ staffer told me that the hotline itself was created so that businesses could call in with their specific questions about the regulations. She told me specifically that business owners may call to tell the hotline about their specific situation, and that they could provide guidance to the business owners about whether a proposed barrier removal would be readily achievable or not. Also, for specific, technical questions, business owners may call the Access Board, which drafted the technical requirements for elements like pools and spas. The numbers for each are below.
ADA Info Line: 800-514-0301
Access Board: 800-872-2253
2. She also told me that, by way of illustration, the DOJ has found that for most businesses with a pool, constructing a sloping entrance (ramp) is not readily achievable because it is so expensive and requires so much construction to accommodate. By contrast, pool lifts have generally been considered readily achievable because of their relatively low cost, because they take up relatively little space, and because they are easy to install.