ADA Pool Lift News, Questions, Answers and Tips
Letter from Department of Justice to the American Hotel and Lodging Association regarding Pool Lifts.
March 9, 2012
Senior Vice President for Governmental Affairs American Hotel and Lodging Association
Dear Mr. Maher:
This letter is in response to your letter on behalf of the American Hotel & Lodging Association (AH&LA), dated February 27, 2012, to Attorney General Eric Holder and myself regarding the requirements of the Americans with Disabilities Act (ADA) to remove architectural barriers in existing swimming pools and spas, We appreciate hearing your views, as well as your affirmation of AH&LA members' commitment to ensuring that individuals with disabilities have equal access to hotel and resort swimming pools and spas.
Your letter raised a number of issues regarding the ADA regulation that was published 18 months ago, including the 2010 ADA Standards for Accessible Design (2010 Standards) that go into effect on March 15, 2012. Many of your concerns were previously addressed in a February 8 meeting between the Department and representatives of AH&LA, as well as in a letter sent to you on February 21, 2012 by Allison Nichol, Section Chief of the Disability Rights Section, memorializing that meeting.
Your current letter relays AH&LA’s view that the Department’s January 31, 2012 Technical Assistance document, entitled “AD A 201 0 Revised Requirements: Accessible Pools-Means of Entry and Exit,” contains new requirements that were not addressed in the 2010 revisions to the title III ADA regulation and that these ''new requirements" significantly change the compliance obligations of AH&LA's members. Specifically, you contend that, contrary to the description of the requirements in the Technical Assistance document, the 2010 regulation did not require swimming pool lifts to be fixed or built-in, and, rather, permitted portable pool lifts~ that the 2010 regulation permitted such portable pool lifts to be shared among multiple pools; and that the 2010 regulation permitted public accommodations to store their portable lifts and make them available only upon request. Based on this view, you requested that the Department rescind the Technical Assistance document, stay the March 15, 2012 effective date for the 2010 regulations as applied to pools, and engage in new rulemaking on this issue. In addition, you asserted that the Department failed to adequately explain the basis for the title Ill requirements as they relate to pool lifts or to consider the evidence in the rulemaking record on this issue.
In the Technical Assistance document the Department reiterated its longstanding position, explicitly codified in the revised regulation, that the ADA Standards for new construction and alterations apply to fixed or built-in elements, including, as of the March 15 effective date, accessible means of entry into swimming pools, such as pool lifts_ For existing facilities, including hotels with swimming pools, removal of architectural barriers need only be done if it is readily achievable, i.e., easily accomplished without significant difficulty or expense.
Thus, although the ADA Standards provide the benchmarked for barrier removal at existing facilities, portable lifts can be used at existing pools if affixing the portable lift or installing a fixed lift is not readily achievable. Should it become readily achievable to affix a portable lift to the pool deck at a future time, we would expect that the entity would take steps to do that as part of its ongoing barrier removal obligation. In response to your specific questions, we also affirmed that equal opportunity and independent access for people with disabilities require that the lift must be at poolside and operational at all times the pool is open. Finally, we confirmed that legitimate safety requirements are, and always have been, appropriate considerations in determining whether barrier removal is readily achievable. As noted in our letter of February 21, 2012, however, the U.S. Access Board, in adopting the Guidelines on which the Department’s 2010 Standards are based> did not find evidence of safety risks from fixed pool lifts. I hope this information was helpful to AH&LA members. AH&LA members may obtain additional technical assistance from the Department’s ADA Information Line at (800) 514-0301 (voice) (800) 514-0383 (TTY). ADA specialists are available Monday through Friday from 9:30 AM til 5:30 PM (eastern time) except on Thursday when the hours are 12:30 PM until 5:30PM.
The revised ADA regulation is the result of a six year process to update the Department's ADA regulations, including the ADA Standards for Accessible Design As part of this process, the Department sought extensive public comment, resulting in the receipt of over 4000 public comments, and held a public hearing. The Department carefully considered the evidence in the rulemaking record (including the comments provided by AH&LA) and made a reasoned decision to adopt the U.S. Access Board's revised technical and seeping requirements for access to pools, a decision that took into account the concerns and comments provided by the full range of commenters who said they would be affected by the proposed rule. In addition, we are confident that the Department's revised regulation, which is grounded in longstanding and well-established ADA barrier removal principles, provides public accommodations, including hotels and motels, with the information they need to meet their ADA obligations. The regulation provides such entities flexibility to evaluate whether and how to remove architectural barriers to access, and to take only those actions that are “readily achievable.” Public accommodations. including hotels and motels, have been applying that standard for nearly 20 years.
This regulatory balance is reflected in the Department’s Technical Assistance document on accessible pool entry and exit, which, contrary to your characterization, imposes no new requirements on covered entities. Rather, the document explains and reiterates the duties of public accommodations with respect to swimming pools and spas as set forth in the regulation.
Therefore, the Department does not intend to withdraw the Technical Assistance document or delay the effective date for the 2010 regulation beyond March 15, 2012.
Thank you for contacting the Department on this matter. Please do not hesitate to contact the Department if we may be of assistance with this or any other matter.
Sincerely,
Thomas E. Perez
Assistant Attorney General
Civil Rights Division
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Pool Lift Questions, Clarification and Concerns
Question
Are religious organizations exempt from the ADA pool lift requirements?
Answer
Yes and No, Per title III, http://www.ada.gov/taman3.html, religious organizations are exempt if the pool is religiously run and operated. However, if a religious organization rents out the pool, or opens the pool up to the public, then they would not be exempt and would have to comply with ADA pool lift regulations.
Question
Will pools with water slides with designated slide areas need a pool lift?
Answer
If you’re talking about a catch pool for the slide, then no, they will not need any means of access. However, if it is a swimming pool that happens to have a slide, then yes, they will need a means of access.
Answer
According to section 203.11 water slides do not need to comply with the ADA requirements. Also according to 242.2 the catch pools at the end of the slides do not need to be made compliant.
Question
If a location has 2 spas in one pool area, do they need a lift for each spa?
Answer
Yes, spas are included. If spas are in a cluster, only one or 5% need to be accessible. So, if you have 21 spas in a cluster, two will have to be accessible. Under 20, only one has to comply. I haven’t seen too many facilities with 20 spas in a cluster, so pretty much only one spa will need to be accessible.
Question
We have a resort, that is a condo association, that rents cabins. However we have no handicap accessible rentals as all our cabins were built in the 1940s. Do we still need to install a pool lift?
Answer
Without seeing the facility, I would assume that a lift would be needed for the pool. By renting out the cabins to the general public, your facility becomes a public accommodation. Even though the cabins were built in the 40’s, my assumption would be that adding a lift would be readily achievable.
Question
If a location has more than one pool, will they need to leave the lift in place during business hours, or can they move it into place upon a request to use the lift? For example: A hotel with a pool and a spa. Will they need to leave the two lifts in place during business hours?
Answer
The law only requires the facility to have a lift available. The lift does not need to be on the deck at all times during business hours. In fact, some may argue that having a lift on the deck all the time may provide something for kids to play on. My personal recommendation is to provide a lift that can easily be stored when not in use and can then easily be brought out to deck side when needed.
Question
Is it true that all bodies of water need a separate lift? For example a hotel has a sap and a pool, both need a separate lift?
Answer
Actually, each body of water is required to have its own means of access. A spa can have a transfer wall or transfer system as its primary means, so you don’t necessarily need two lifts.
However, under the law, one lift that can be relocated does not satisfy the requirements.
Having said that, I think this will be something that gets litigated over time. If a facility writes an implementation plan and specifies that they feel one movable lift for both bodies of water will meet the requirements, they will most likely not get penalized. At worst, the
DOJ would probably just make them provide a primary means for each.
Question
I have had a lot of people saying they are going to be Grand fathered in…? Looking for a deeper understanding I guess.
Answer
The term that the government uses in reference to “grandfathering” is Safe Harbor. Here is the text of a white paper I wrote on the subject that should help to answer your questions. Keep in mind that complying with accessibility regulations for existing facilities is required only when it readily achievable. For more information on that subject, please visit www.poollifts.com and look under the section on white papers:
Safe Harbor
The recently published revision to the Americans with Disabilities Act contains a provision that is known as “Safe Harbor.” There has been some confusion as how this safe harbor provision relates to swimming pools. The purpose of this document is to try to clear up any such confusion.
Following the passage of the Americans with Disabilities Act in 1990, the Department of Justice issued its initial set of accessibility guidelines in 1991. These 1991 guidelines covered items that had an immediate impact in removing barriers for people with disabilities. Although elements covered in the 1991 guidelines provided regulations for many parts of society, there were a number of areas that either were not included or were incomplete.
The 2010 revision to the ADA law provided some expansion to the 1991 guidelines and also introduced guidelines to many areas that were not covered in the 1991 version.
In order to ease the financial burden on existing facilities who completed modifications to meet the 1991 guidelines, these new regulations provide a safe harbor with respect to the 2010 requirements. If there is a requirement in the 2010 regulations that is either an enhancement or a change from the modifications made to comply with the 1991 guidelines, an existing facility would not be required to make that change until such time that he made alterations to the facility.
In the case of swimming pools, however, there were no technical or scoping requirements contained in the 1991 guidelines. According to the 2010 regulations, “…the safe harbor provided in § 36.304(d)(2)(i) does not apply to those elements in existing facilities that are subject to supplemental requirements (i.e., elements for which there are neither technical nor scoping specifications in the 1991 Standards), and therefore those elements must be modified to the extent readily achievable to comply with the 2010 Standards.”
The 2010 regulation further clarifies this issue with respect to swimming pools, by providing a list of elements that are specifically not eligible for the safe harbor provision. This list includes swimming pools, wading pools, and spas.
The bottom line is that swimming pools are not eligible for safe harbor and all regulated swimming facilities will need to provide accessibility as outlined in the 2010 regulations.
For more information on this issue or any other areas of swimming pool accessibility, please contact the ADA at www.ada.gov, or visit www.poollifts.com.
Any public accommodation should conduct a barrier removal analysis to determine what, if any, elements within their facility would need to comply with ADA regulations. Once that is complete, the facility should develop an implementation plan that lays out the steps they will take to bring their facility into compliance. If they determine that removing the identified barriers is not readily achievable, this should be explained in their implementation plan. This plan should be written and kept on file within the facility. In the event that any complaints are filed against the facility, this documentation will indicate that the facility has been proactive in recognizing their obligation, despite the fact that implementing barrier removal is not readily achievable. Keep in mind that barrier removal is an ongoing responsibility. What is not readily achievable today may change in the future. The facility should review their implementation plan periodically to make such a determination.
Question
Is there a minimum fine of $50,000 dollars if you don’t comply or are you just leaving yourself open to lawsuits and some sort of action of the department of justice?
Answer
Here is a quote from the ADA website:
The Department may file lawsuits in Federal court to enforce the ADA and may obtain court orders including compensatory damages and back pay to remedy discrimination. Under title III the Department may also obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation.
Now, the understanding I have is the fines are not likely to be assessed immediately. I think if someone were thumbing their nose at the DOJ, the fine might be a bit more likely, however, if a facility isn’t compliant, the most likely thing to happen is the DOJ require the facility to become compliant. If they don’t after that, then I imagine fines would start being levied.
Question
Who needs to comply with ADA pool lift regulations? Would the following need to comply?
- Mobile home parks
- Private country clubs
- Private swim clubs
Answer
Normally, any type of residential entity would be exempt from ADA jurisdiction. In the case of a mobile home park, if it is a long term facility that operates like a
HOA and restricts use of the pool to residents and their guests, they would be exempt from ADA. However, transient parks, that cater to campers and short term occupants, would be treated like a hotel, and subject to ADA requirements.
Private country clubs are exempt. However, there are strict criteria that defines a private club. In addition, the private club must restrict the use of their pool to members and their guests. If the club rents out the facility to outsiders for corporate outings and the like, this would be considered a public accommodation and would trigger the need to meet ADA requirements.
Who Must Comply white paper
Below is the section of the law that defines who is subject to ADA regulations:
II-1.2000 Public accommodations. The broad range of title III obligations relating to “places of public accommodation” must be met by entities that the Department of Justice regulation labels as “public accommodations.” In order to be considered a public accommodation with title III obligations, an entity must be private and it must —
- Own;
- Lease;
- Lease to; or
- Operate
a place of public accommodation.
What is a place of public accommodation? A place of public accommodation is a facility whose operations —
- Affect commerce; and
- Fall within at least one of the following 12 categories:
- Places of lodging (e.g., inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);
- Establishments serving food or drink (e.g., restaurants and bars);
- Places of exhibition or entertainment (e.g., motion picture houses, theaters, concert halls, stadiums);
- Places of public gathering (e.g., auditoriums, convention centers, lecture halls);
- Sales or rental establishments (e.g., bakeries, grocery stores, hardware stores, shopping centers);
- Service establishments (e.g., Laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);
- Public transportation terminals, depots, or stations (not including facilities relating to air transportation);
- Places of public display or collection (e.g., museums, libraries, galleries);
- Places of recreation (e.g., parks, zoos, amusement parks);
- Places of education (e.g., nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);
- Social service center establishments (e.g., day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and
- Places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses).
The question regarding private schools is covered under section 10. Camps would fall under Section 9.
Question
Will the pool lift manufactures reach a point where it will take a long time to ship orders as March 2012 nears?
Answer
Well, with a limited number of manufacturers and with as many pools that need to become compliant, I would say that would be a very likely possibility. We have been encouraging dealers to encourage their customers to buy early while demand is lower.
Question
Do any states have different requirements than the Federal ADA guidelines for pool lifts?
Answer
The only state that I am aware of that deviates from the ADA guidelines for swimming pool lifts is California. The California Builder’s Code stipulates that pool lifts should include are rests. Arm rests are not required in the ADA regulations.
Question
Do pool lifts need to be grounded?
Answer
Grounding requirements and procedures are subject to local code requirements. Contractors should contact their local authorities to find out exactly what is required in their jurisdiction.
For example, some areas will allow separate grounding rods, while others require the anchor to be added to the existing bonding grid.
Question
It is my understanding, in reading the ADA compliance requirement, that Pools/Spas open to the public are needing to install the lifts and ramps. Am I to assume that establishments that are NOT public do not need to install these new devices?
Answer
In general, any type of facility that restricts use of their pool to members/residents and their guests are exempt from ADA obligations. However, if any of these types of facilities (apartments, condos, HOA’s, or private clubs) allow their pools to be used as public accommodations, they would then be required to follow ADA regulations.
Who Must Comply white paper
Question
Does anyone have photos of anchors for pool lifts being installed that we can share?
Answer
Yes: http://gallery.me.com/johncaden#100167
Question
It appears that all wading pools will need to close or install a ramp. Is this correct?
Answer
No. This is not correct.
Any barrier removal modification must be “readily achievable.” This means, able to be done without much difficulty or expense. In order to provide a safe level of accessibility to an existing, flat bottom wading pool, the entire pool would need to be excavated and re-graded to provide the requires sloped entry. This process would likely cost as much as the original installation, and would not be considered to be readily achievable.
A portable ramp would not be a safe solution, considering the way wading pools are used. Since children frequently run through the water in a wading pool, this type of ramp would be an obstruction and potential tripping hazard.
Keep in mind that barrier removal is an ongoing responsibility. What is not readily achievable today, may change in the future. In this case, if e wading poll were ever relocated to make way for future construction, at that time the pool would need to meet 2010 ADA requirements.
Question
Is there a legal form or process to follow to claim that compliance for wading pools, or other compliance issues, isn’t “readily achievable?” I would think facilities would want to be proactive in regards to this issue.
Answer
Any facility should perform a “barrier removal analysis” to determine:
- if their pool is under ADA jurisdiction
- what steps are necessary to provide compliant accessibility and if this compliance is readily achievable.
Once this analysis has been performed, the facility should develop an “implementation plan” to determine their course of action. This plan should be documented and kept on file within the facility in the event that any complaints are lodged against them in the future. Having a documented plan will demonstrate that the facility has been proactive with respect to their obligations under the law.
If we take your wading pool to use as an example, the analysis would show that they recognize that their wading pool falls under ADA jurisdiction. However, their implementation plan would show that they have determined that the cost to re-grade the pool in order to install the required sloped entry would cost $50,000 and they cannot afford this level of expense. Hence, in this case the barrier removal is not readily achievable. This documentation should be filed within the premises as a safeguard against any future complaints.
Read the Compliance Guide that we have developed to assist any facility in completing their barrier removal analysis.
Question
What does it take to be eligible for tax credits with ADA pool lifts?
Answer
Read the Tax Opportunities Fact Sheet that summarizes all information.
Answer
Basically, it is less than $1,000,000 in revenue or fewer than 30 employees. There are also tax deductions for most businesses.
Question
It is my understanding that most apartment buildings will not need to comply with the new ADA Pool Lift Regulations. Can anyone back this up?
Answer
This is correct. Unless apartments open their pools to the general public, they will not have to follow ADA. The ADA does not govern residences. Apartments qualify as a residence. They are, however, governed by the Fair Housing Act.
HOA and Condos fall under the same jurisdiction as apartments. If the HOA pool is only used by residents and their guests, they don’t fall under the ADA. The same for condos. However, if the HOA makes their pool available to the public, then they will have to comply. For example, the HOA next to us rents their pool out to various organizations. They will have to comply. Condos that regularly rent to the public, like beach condos, will have to comply.
Answer (Mark Hines)
Also as an example any HOA that has a summer swim team and allows other teams to come and compete at the pool would also have to comply. Or if they open the team up to swimmers outside the HOA.
Question
What thoughts should go into selecting a pool lift brand?
Answer
Some major things to consider are:
- Company history and reputation — do some research on the manufacturer AND the dealer of the ADA product you are looking to buy. The product is only as good as the companies behind it. Companies that have been around for a long time and have experience or have specialized in ADA products will generally know more about the ADA, build and provide better products and support them better in the field because they have already worked through the typical issues experienced with new products and start up companies.
- References for both company and product you are interested in. Some of the best information you can find is through your peers. Independent product testing and/or ADA verification. Any time you can get independent third party verification of ADA compliance, it puts your and/or your customers mind at ease. Experience — look for companies and people (both manufacturers and dealers) that have a lot of experience with the products you are looking to buy.
Question
Are mobile home parks exempt from complying with the ADA pool lift regulations?
Answer
Normally, any type of residential entity would be exempt from ADA jurisdiction. In the case of a mobile home park, if it is a long term facility that operates like a HOA and restricts use of the pool to residents and their guests, they would be exempt from ADA. However, transient parks, that cater to campers and short term occupants, would be treated like a hotel, and subject to ADA requirements.
Private country clubs are exempt. However, there are strict criteria that defines a private club. In addition, the private club must restrict the use of their pool to members and their guests. If the club rents out the facility to outsiders for corporate outings and the like, this would be considered a public accommodation and would trigger the need to meet ADA requirements.
Here is a link to a white paper that explains this subject in more detail:
http://poollifts.com/pdf/whitepapers/WhoMustComply.pdf