It’s All in Your Head

Categories: Community Life, Health

By Guest Bloggers Wayne Connell, Founder & President, Invisible Disabilities Association, and Jeff Vankooten, Professional Speaker and Invisible Disabilities Association Executive Board Member 
It’s all in your head!” What a familiar refrain for those living with chronic illness, pain or disability. Doctors, friends, co-workers and family often make this statement when they can’t “see” what you are going through or find a diagnosis. The invisible nature of many illnesses and disabilities creates an atmosphere of suspicion or disbelief, even by those who are closest to you. People may say, “It’s all in your head” to imply that the person is just making up or exaggerating his or her condition. Many people live with the stigma of this label. Some even feel shame and believe so much that they themselves are to blame that they take their own lives.
Maybe it is “all in your head.” There are many conditions that exist as a dysfunction or disease of the brain. Depression, Alzheimer’s, schizophrenia, bipolar, autism, post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), epilepsy, dyslexia, multiple sclerosis, Parkinson’s and ADHD to name a few. These are real disorders and diseases even though they are unseen, and in many cases go undiagnosed or misdiagnosed for years.
Jeff Vankooten, a professional speaker and Invisible Disabilities Association executive board member shares his story below:
I have bipolar disorder. It has been my constant companion most of my life. It’s like a storm cloud that hovers nearby threatening every day to rain. I’m a different person now than I was before it “kicked in.” I’m more serious and less jovial. I’m more guarded with people. I mistrust my ability to make decisions. The varying highs and lows have created an inconsistent approach to life. Yet, in some ways, it has been a blessing. That may sound counter-intuitive, but I am a richer person because of it.
Here are what I find to be the benefits of living under the description of bipolar disorder:
• Depth of Empathy: I can uniquely understand the despair of others, and listen with an attentive ear to those who are suffering. That depth of empathy resonates with people who seek me out to be a compassionate ear and persistent source of hope. God has used this illness and redeemed it for the benefit of others.
• Strength of Relationships: When I was in college, my roommate learned how to monitor my emotional health. He was not intimated by, or afraid of, my invisible disability. When he sensed I was beginning to spiral into depression, he would get me up and we would walk around the neighborhood together. The walks were special because he would always provide “Swisher Sweet” cigars. They are thin, short cigars with a flavored plastic tip. I’m not sure why, but they played a big role in my recovery. Regardless if you have an invisible disability or not, ask yourself who or what are your “Swisher Sweets”?
Though having bipolar disorder has strained some relationships and ruined others, the one with my wife has been solidified. Often marriages dealing with spousal bipolar end in divorce. It can be too much and take its toll on the stability of the relationship. It hasn’t been easy. Nothing of significance ever is. But my wife’s “Swisher Sweets” of patience, compassion, and yes, a swift kick in the butt from time to time, has been invaluable to my life. She gives me the strength to carry on and the joy to participate in life. I love her deeply.
• Embracing of Moments: Depression has a tight logic. I can make a pretty convincing case as to why everyone ought to be bummed out. It’s critical to me that I don’t stay in my argument. I need to break through the closed system of despair by embracing each moment of every day that makes up the totality of my time. I relish the moments spent with my children and friends. I savor every dinner and I enjoy every ride at the amusement park. They are all precious moments.
Education is a real key in learning about the illnesses people are living with each day. The best way to get this education is to ask the people with the disorder or disease themselves. Take time to learn the language of invisible disabilities. Take time to listen and not pre-judge. Be a friend and comforter, not an accuser. We all need to make it a safe place for people living with brain illnesses, disorders and disease to share their difficulties and triumphs. Let’s remove the stigma and shame and be supportive in any way we can.
They can’t just “get over it” or stop being depressed. If someone breaks an arm or a kidney fails, we don’t tell them to simply “snap out of it.” They need real help, and we need to make this world a safe place for them to ask for and to receive it. By listening, learning and loving, we can help them be Invisible No More!
Wayne Connell, the founder and president of the Invisible Disabilities Association, established IDA in 1997 out of the desire to educate friends and family about his wife’s debilitating illness. Soon afterwards, people around the globe began sending emails sharing how IDA had changed their relationships with their loved ones. He is co-author of the booklet, “But You LOOK Good, How to Encourage and Understand People Living with Illness and Pain.” Wayne’s background fueled his passion for helping people living with illness, pain and disability. His experience includes that of a professional, multitasking husband caregiver with an extensive background in management, media and technology. This man on a mission quickly launched IDA into a world-wide outreach for millions living with invisible disabilities.
Jeff Vankooten is a professional speaker who helps people thrive in disruption and change. He also coaches people over 40 who want to harness their life’s experience into talks and products that leave a legacy. He is a native of Denver, Colorado where he lives with his wife, three kids and really big dog.


Source: http://usodep.blogs.govdelivery.com/2012/05/30/its-all-in-your-head/

Details for: HEALTH CARE LAW SAVED PEOPLE WITH MEDICARE OVER $3.5 BILLION ON PRESCRIPTION DRUGS

Press Releases

Details for: HEALTH CARE LAW SAVED PEOPLE WITH MEDICARE OVER $3.5 BILLION ON PRESCRIPTION DRUGS
For Immediate Release:	Thursday, May 24, 2012
Contact:	CMS Office of Public Affairs 202-690-6145

HEALTH CARE LAW SAVED PEOPLE WITH MEDICARE OVER $3.5 BILLION ON PRESCRIPTION DRUGS
IN THE FIRST FOUR MONTHS OF 2012, MORE THAN 416,000 PEOPLE WITH MEDICARE SAVED AN AVERAGE OF $724 ON PRESCRIPTION DRUGS AND 12.1 MILLION USED A FREE PREVENTIVE SERVICE

Under the new health care law – the Affordable Care Act --   seniors and people with disabilities in Medicare have saved a total of $3.5 billion on prescription drugs in the Medicare drug benefit coverage gap or “donut hole” from the enactment of the law in March 2010 through April of 2012.  The Centers for Medicare & Medicaid Services (CMS) released data today showing that, in the first four months of 2012 alone, more than 416,000 people saved an average of $724 on the prescription drugs they purchased after they hit the prescription drug coverage gap or “donut hole,” for a total of $301.5 million in savings.  These savings build on the law’s success in 2010 and 2011, when more than 5.1 million people with Medicare saved over $3.2 billion on prescription drugs.   

In addition, CMS announced that this year, from January through April, 12.1 million people in traditional Medicare received at least one preventive service at no cost to them – including over 856,000 who have taken advantage of the Annual Wellness Visit provided in the Affordable Care Act.  In 2011, over 26 million people in traditional Medicare received one or more preventive benefits free of charge.   

“Thanks to the health care law, millions of people with Medicare have paid less for health care and prescription drugs,” said CMS Acting Administrator Marilyn Tavenner.  “The law is helping people with Medicare lower their medical costs, and giving them more resources to stay healthy.”   

People with Medicare who hit the coverage gap “donut hole” in 2010 received a one-time $250 rebate.  In 2011, people with Medicare began receiving a 50 percent discount on covered brand name drugs and 7 percent coverage of generic drugs in the “donut hole.”  This year, Medicare coverage for generic drugs in the coverage gap has risen to 14 percent.  Coverage for both brand name and generic drugs in the gap will continue to increase over time until 2020, when the coverage gap will no longer exist.   

For more information on how the Affordable Care Act closes the Medicare drug benefit coverage gap “donut hole,” please visit: http://www.healthcare.gov/law/features/65-older/drug-discounts/index.html.  

Prior to 2011, people with Medicare faced cost-sharing for many preventive benefits like cancer screenings and smoking cessation counseling.  Now, many of these benefits are offered free of charge to beneficiaries, with no deductible or co-pay, so that cost is no longer a barrier for seniors who want to find and treat problems early.   

For more information on Medicare-covered preventive services, many of which are now provided without charge to beneficiaries thanks to the Affordable Care Act, please visit: http://www.healthcare.gov/law/features/65-older/medicare-preventive-services/index.html. 

To learn what screenings, vaccinations and other preventive services doctors recommend for you and those you care about, please visit the myhealthfinder tool at www.healthfinder.gov.

Affordable Care Act supports families of children with special health care needs

News Release

FOR IMMEDIATE RELEASE May 23, 2012

Contact: HHS Press Office (202) 690-6343

Affordable Care Act supports families of children with special health care needs

Health and Human Services (HHS) Secretary Kathleen Sebelius today announced $4.9 million in Affordable Care Act funding to support Family-to-Family Health Information Centers, primarily non-profit organizations run by and for families with children with special health care needs.
“These centers provide the information that families need to make health care decisions that are right for their children,” Secretary Sebelius said. “Family-to-Family Health Information Centers are a good investment, and have a measurable and positive impact on families, and communities.”
Created in 2005, the centers are state-wide, family-led organizations that provide information, education, training, outreach, and peer support to families of children and youth with special health care needs and the professionals who serve them.
The centers are staffed by trained family leaders who have children with special health care needs, and expertise in navigating federal, state and local public and private health care systems. HHS’ Health Resources and Services Administration (HRSA) oversees the centers.
“The centers benefit all families and especially those with the greatest needs,” said HRSA Administrator Mary K. Wakefield, Ph.D., R.N.  “They reach out to families and help them and their children thrive.”
The centers have served hundreds of thousands of families and health care providers. Today’s funding will support 51 centers, one in each state and the District of Columbia.  Each grantee will receive $95,700.  A list of awards can be found at www.hrsa.gov/about/news/2012tables/120523familyvoices.html
For more information on the program, and other HRSA maternal and child health programs, visit http://www.mchb.hrsa.gov/.
Information on the Affordable Care Act can be found at www.HealthCare.gov.

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Note: All HHS press releases, fact sheets and other press materials are available at http://www.hhs.gov/news.
You can follow HHS on Twitter @HHSgov and sign up for HHS Email Updates.

Last revised: May 23, 2012

Metro - About Metro - News - Metro unveils new MetroAccess vehicles

Metro - About Metro - News - Metro unveils new MetroAccess vehicles

FEMA Urges Preparedness for Hurricanes and Severe Weather 

Mobile wireless emergency alerting capabilities will be available nationwide through participating carriers

Release Date: May 24, 2012
Release Number: HQ-12-038
WASHINGTON, D.C. -- Hurricane Season begins June 1, 2012, FEMA is providing additional tools for federal, state, local, tribal and territorial officials to alert and warn the public about severe weather.  Using the Commercial Mobile Alert System, or CMAS, which is a part of FEMA’s Integrated Public Alert and Warning System, this structure will be used to deliver Wireless Emergency Alerts (WEA) to wireless carriers for distribution to the public. 

The CMAS system will allow the National Weather Service to soon begin issuing WEAs for the most dangerous weather through participating wireless carriers directly to cell phones. The alerts will be broadcast by cell towers much like an AM/FM radio station, and cell phones within range will immediately pick up the signal, provided they are capable of receiving these alerts. The availability of WEA alerts will be dependent on the network status of the wireless carriers and handset availability, since not all cell phones can receive WEAs.  People should check with their cellular carriers to see if WEA alerts are available in their area.
“The wireless emergency alert capability provides an additional opportunity for the public to receive life-saving information needed to get out of harm’s way when a threat exists,” said Timothy Manning, FEMA deputy administrator for protection and national preparedness.  “The public also has a critical role in their personal preparedness. There are a few simple steps that everyone can take to be prepared, like knowing which risks exist in your area and making a family emergency plan.  Information and resources to help individuals and families prepare can be found at ready.gov.”
WEAs will look like a text message, and will automatically appear on the mobile device screen showing the type and time of alert along with any action that should be taken.  The message will be no more than 90 characters, and will have a unique tone and vibration, indicating a WEA has been received.  If an alert is received, citizens should follow the instructions and seek additional information from radio, television, NOAA Weather Radio, and other official sources for emergency information.  Citizens should only call 911 in a life threatening situation.
Only authorized federal, state, local, tribal or territorial officials can send WEA alerts to the public. As with all new cellular services, it will take time for upgrades in infrastructure, coverage, and handset technology to allow WEA alerts to reach all cellular customers.
FEMA urges individuals and businesses to take action to prepare themselves in advance of severe weather and hurricanes such as taking the pledge to prepare at www.ready.gov/pledge.  This is the first step in making sure  you and your family are ready for an emergency  This includes filling out your family communications plan that you can email to yourself, assembling an emergency kit , keeping important papers and valuables in a safe place, and getting involved.
With the start of hurricanes season it is even more important to know your risk, take action, and be an example. While hurricanes often offer some warning that a threat is approaching, severe weather can occur at anytime and in any place, including high winds, inland flooding, severe storms and tornadoes. 
For more on family preparedness, visit www.ready.gov/hurricanes for more planning information and safety tips.
FEMA's mission is to support our citizens and first responders to ensure that as a nation we work together to build, sustain, and improve our capability to prepare for, protect against, respond to, recover from, and mitigate all hazards.

Last Modified: Thursday, 24-May-2012 13:35:51

Source: http://www.fema.gov/news/newsrelease.fema?id=62940

DOT 60-12
Thursday, May 24, 2012

DOT Fines Virgin America for Incomplete Disability Complaint Reports, Not Properly Responding to Complaints

            The U.S. Department of Transportation (DOT) today assessed a civil penalty against Virgin America for filing incomplete reports with the Department about complaints registered by passengers with disabilities and for not responding adequately to these complaints.  The carrier was ordered to cease and desist from further violations and assessed a civil penalty of $100,000.

            “We expect airlines to respond individually to disability-related complaints and to report those complaints to us,” said U.S. Transportation Secretary Ray LaHood.  “These are important parts of our rules protecting the rights of passengers, and we will continue to take enforcement action when they are violated.”

            DOT rules require airlines to record disability-related complaints, categorize them by the type of disability and nature of the complaint, and submit an annual report on these complaints to the Department.  If a single consumer correspondence covers more than one issue, each issue must be counted as a separate complaint.  In addition, if an airline receives a written complaint alleging a violation of the Department’s disability rules, the carrier must provide a written response within 30 days that specifically discusses the complaint, gives the carrier’s view of whether a violation occurred, and states that the complaint may be referred to DOT for an investigation.

In July 2011, the Department’s Aviation Enforcement Office conducted a routine on-site inspection at Virgin America’s corporate headquarters, where it reviewed all disability-related complaints received by the carrier. The Enforcement Office found that in many instances, Virgin America failed to provide a written response that addressed the consumer’s complaint.  In addition, Virgin America failed to properly categorize and account for all the disability-related issues that were raised in the complaints the carrier received during 2008 and 2009.  As a result, a number of complaints were missing from Virgin America’s annual reports submitted to the Department in 2009 and 2010. 

            The consent order is available on the Internet at www.regulations.gov, docket DOT-OST-2012-0002.  The Department’s annual report on disability-related air travel complaints may be found at  http://airconsumer.dot.gov/publications/gateway1.htm. 

-END-
Contact: Bill Mosley •  Tel: (202) 366-4570
Source: http://www.dot.gov/affairs/2012/dot6012.html

U.S. Department of Justice
Civil Rights Division
Disability Rights Section

 

ADA Requirements: Accessible Pools - Updated May 24, 2012

Accessible Pools
Means of Entry and Exit

The Department of Justice published revised final regulations implementing the Americans with Disabilities Act (ADA) for title II (State and local government services) and title III (public accommodations and commercial facilities) on September 15, 2010, in the Federal Register. These requirements, or rules, clarify and refine issues that have arisen over the past 20 years and contain new, and updated, requirements, including the 2010 Standards for Accessible Design ("2010 Standards").

Overview

Providing equal opportunity to people with disabilities is the fundamental principle of the Americans with Disabilities Act. This publication is designed to help title II and title III entities understand how new requirements for swimming pools, especially existing pools, apply to them.
People with disabilities were, for too long, excluded from participating in many recreational activities, including swimming. The revised 2010 Standards change that. For the first time, the 2010 Standards set minimum requirements for making swimming pools, wading pools, and spas (pools) accessible. Newly constructed and altered pools must meet these requirements. Public entities and public accommodations also have obligations with respect to existing pools. State and local governments must make recreational programs and services, including swimming pool programs, accessible to people with disabilities. Public accommodations must bring existing pools into compliance with the 2010 Standards to the extent that it is readily achievable to do so.
The requirements for newly constructed and existing pools will ensure that, going forward, people with disabilities can enjoy the same activities—a community swim meet; private swim lessons; a hotel pool—at the same locations and with the same independence, ease, and convenience as everyone else.
The 2010 Standards establish two categories of pools: large pools with more than 300 linear feet of pool wall and smaller pools with less than 300 linear feet of wall. Large pools must have two accessible means of entry, with at least one being a pool lift or sloped entry; smaller pools are only required to have one accessible means of entry, provided that it is either a pool lift or a sloped entry.
There are a limited number of exceptions to the requirements. One applies to multiple spas provided in a cluster. A second applies to wave pools, lazy rivers, sand bottom pools, and other pools that have only one point of entry. For more information on the specific requirements and exceptions, see sections 242 and 1009 of the 2010 Standards.

Existing Pools

Title II Program Accessibility

Individuals with disabilities cannot be excluded from or denied participation in State and local government programs, services, or activities because a facility is inaccessible or unusable. This means that all programs, services, and activities, when viewed in their entirety, must be accessible to individuals with disabilities unless doing so results in a fundamental alteration in the nature of the program or in an undue financial and administrative burden. This requirement is known as "program accessibility."
Program accessibility applies to all pool-related programs, services, and activities (swimming programs). Program accessibility does not typically require that every pool be made accessible. However, if a public entity has only one existing pool, it must take steps to ensure that its swimming program at that pool is accessible.
A public entity determines which method it will use for meeting its program accessibility obligations. When structural changes are made to existing pools, including installation of a fixed pool lift, the changes must comply with the 2010 Standards. If a public entity chooses to acquire equipment (e.g., a portable lift) to provide program accessibility, the entity should select equipment that includes features required by the 2010 Standards, including independent operation by individuals with disabilities. Sharing accessible equipment between pools is not permitted, unless it would result in undue burdens to provide equipment at each one. Accessible pool features must be available whenever the facility is open to the public. When choosing to purchase equipment or to make structural changes, the public entity should factor in staff and financial resources required to maintain program accessibility.
Over time, a public entity will need to reassess its compliance with program accessibility, and it may become necessary to acquire new accessible equipment or make structural modifications. For more information about program accessibility, see the title II regulations at Section 35.150.

To determine which pools must be made accessible, public entities should consider the following factors:

• How to provide swimming programs in the most integrated setting appropriate;
• The ways in which people participate in the programs (e.g., individually, in families, in youth groups);
• Locations where the programs are offered;
• What programs are offered at each pool and to which constituencies (e.g., family swims, children's swimming lessons, older adult exercise classes, high school swim meets);
• Which pools are accessible and to what extent; and
• Level of dispersion of the accessible locations and convenience to reach them (e.g., one pool in each quadrant of the town, all on accessible mass transit).

Title III Readily Achievable Barrier Removal

Title III of the ADA requires that places of public accommodation (e.g., hotels, resorts, swim clubs, and sites of events open to the public) remove physical barriers in existing pools to the extent that it is readily achievable to do so (i.e., easily accomplishable and able to be carried out without much difficulty or expense).
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.
For an existing pool, removing barriers may involve installation of a fixed pool lift with independent operation by the user or other accessible means of entry that complies with the 2010 Standards to the extent that it is readily achievable to do so. 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 the 2010 Standards. It is important to note that the barrier removal obligation is a continuing one, and it is expected that a business will take steps to improve accessibility over time. When selecting equipment, the public accommodation should factor in the staff and financial resources needed to keep the pool equipment available and in working condition at poolside. For more information about barrier removal, see the title III regulations at Section 36.304.
If you have purchased a non-fixed lift before March15 ^th that otherwise complies with the requirements in the 2010 Standards for pool lifts (such as seat size, etc.), you may use it, as long as you keep it in position for use at the pool and operational during all times that the pool is open to guests. Because of a misunderstanding by some pool owners regarding whether the use of portable pool lifts would comply with barrier removal obligations, the Department, as a matter of prosecutorial discretion, will not enforce the fixed elements of the 2010 Standards against those owners or operators of existing pools who purchased portable lifts prior to March 15, 2012 and who keep the portable lifts in positon for use at the pool and operational during all times that the pool is open to guests so long as those lifts otherwise comply with the requirements of the 2010 Standards.  Generally, lifts purchased after March 15, 2012 must be fixed if it is readily achievable to do so.  

To determine which pools must be made accessible, public accommodations should consider the following factors:

• The nature and cost of the action;
• Overall resources of the site or sites involved;
• The geographic separateness and relationship of the site(s) to any parent corporation or entity;
• The overall resources of any parent corporation or entity, if applicable; and
• The type of operation or operations of any parent corporation or entity, if applicable.

New Construction and Alterations

New Construction

The 2010 Standards, which set requirements for fixed elements and spaces, require that all new pool facilities built by State and local governments, public accommodations, and commercial facilities must be accessible to and usable by persons with disabilities.

Alterations

A physical change to a swimming pool which affects or could affect the usability of the pool is considered to be an alteration. When pools are altered, the alterations must comply with the 2010 Standards, to the maximum extent feasible. Changes to the mechanical and electrical systems, such as filtration and chlorination systems, are not alterations. Entities must ensure that an alteration does not decrease accessibility below the requirements for new construction. For example, if a hotel installs a fixed pool lift powered by water pressure, it must ensure that the hose connecting to the lift does not create a barrier across the accessible route to the pool.

Compliance Dates

On or after March 15, 2012

All newly constructed or altered facilities of public entities and public accommodations, including pools, must comply with the 2010 Standards.

On or after March 15, 2012

All existing facilities of public entities and public accommodations, except pools, must comply with the 2010 Standards to the extent required under title II program accessibility or title III readily achievable barrier removal requirements.

On or after January 31, 2013

Subject to other provisions of this guidance, all existing pools of public entities and public accommodations must comply with the 2010 Standards to the extent required under title II program accessibility or title III readily achievable barrier removal requirements.
For more information on effective dates, see the Department's publication called ADA 2010 Revised Requirements: Effective Date and Compliance Date and the 2010 Standards for Accessible Design.

Maintenance of Accessible Features

Accessible pool features must be maintained in operable, working condition so that persons with disabilities have access to the pool whenever the pool is open to others. For example, a portable pool lift may be stored when the pool is closed but it must be at poolside and fully operational during all open pool hours.
An entity should recognize that certain types of equipment may require more staff support and maintenance than others (e.g. ensuring there are enough batteries for a pool lift to maintain a continued charge during pool hours). Entities should plan for these issues and modify operational policies as needed to provide accessible means of entry while the pool is open.

Staff Training

Ongoing staff training is essential to ensure that accessible equipment (particularly pool lifts) and pool facilities are available whenever a pool is open. Staff training should include instruction on what accessible features are available, how to operate and maintain them, and any necessary safety considerations.

Tax Credits and Deductions

Title III entities may be able to take advantage of federal tax credits for small businesses (Internal Revenue Code section 44) or deductions (Internal Revenue Code section 190) for barrier removal costs or alterations to improve accessibility regardless of the size of the business. See the IRS website www.irs.gov for more information.

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May 2012

ADA Requirements: Accessible Pools - Updated May 24, 2012

PDF Version of this Document

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last updated: May 24, 2012

QUESTIONS AND ANSWERS:
ACCESSIBILITY REQUIREMENTS FOR EXISTING
SWIMMING POOLS AT HOTELS AND OTHER PUBLIC
ACCOMMODATIONS

 

INTRODUCTION

In 2010, the Department of Justice published updated regulations under the Americans with Disabilities Act (ADA).  These regulations adopted the 2010 Standards for Accessible Design (2010 Standards), which, for the first time, contain specific accessibility requirements for a number of types of recreational facilities, including swimming pools, wading pools, and spas.
In January 2012, the Department issued guidance titled “ADA 2010 Revised Requirements: Accessible Pools—Accessible Means of Entry and Exit” to assist entities covered by Title III of the ADA, such as hotels and motels, health clubs, recreation centers, public country clubs, and other businesses that have swimming pools, wading pools, and spas, in understanding how the new requirements apply to them.
This Questions and Answers document provides answers to some common questions regarding requirements in the 2010 regulations and Standards as they apply to public accommodations with existing pools.  While the document answers a large number of questions, one of our key goals is to emphasize the flexibility of the standards for existing swimming pools. Three points are especially important. The first is that in response to public comments, we have extended the compliance date until January 31, 2013. The second point is that under the ADA, there is no need to provide access to existing pools if doing so is not “readily achievable.”  Providing access is not readily achievable if it would involve significant difficulty or expense. The third point is that the Department will not pursue enforcement of the fixed lift requirements against those who have purchased otherwise-compliant portable lifts before March 15, 2012 as long as they are kept in position for use at the pool and operational during all times that the pool is open to guests. In general, the Department plans to work collaboratively and constructively with all businesses that have questions about the meaning of the 2010 regulations and standards, with respect for their particular challenges, needs, and concerns, including the needs of small businesses that may be unfamiliar with the ADA.

1. What is the effective compliance date of the ADA standards for accessible pools?
The effective date of the 2010 Standards generally is March 15, 2012. However, and in response to public comments and concerns, the Department has extended the date for compliance for the requirements related to the provision of accessible entry and exit to existing swimming pools, wading pools, and spas to January 31, 2013. 

2. What does the ADA require for accessibility of pools?
Title III of the ADA prohibits discrimination on the basis of disability by places of public accommodation, including many private businesses.  Title III requires newly constructed and altered business facilities to be fully accessible to people with disabilities, applying the ADA Standards for Accessible Design.  In addition, Title III requires businesses to remove accessibility barriers in existing facilities when doing so is readily achievable.  
The 2010 Standards require that newly constructed or altered swimming pools, wading pools, and spas have an accessible way for people with disabilities to enter and exit the pool.   The Standards also provide technical specifications for when a means of entry is accessible, such as, for pool lifts, the location, size of the seat, lifting capacity, and clear floor space.  You can see the 2010 ADA Standards at http://www.ada.gov/2010ADAstandards_index.htm.  
For existing swimming pools built before the effective date of the new rule, the 2010 Standards provide the guide for achieving accessibility.  However, full compliance may not be required in existing facilities (see question 4).
The 2010 Standards explain whether a newly constructed or altered pool needs to have one or two accessible means of entry and exit.  Section 242 provides that large pools (pools with 300 linear feet of pool wall or more) must have two accessible means of entry and exit. One means of entry/exit must be a fixed pool lift or sloped entry; the other entry can be a transfer wall, transfer system, or pool stairs.  Small pools (pools with less than 300 linear feet of pool wall) must provide at least one accessible means of entry/exit, which must be either a fixed pool lift or a sloped entry.  
The 2010 Standards also provide details about what features an accessible means of entry or exit should have.  Specifically, section 1009 addresses the location, size of the seat, lifting capacity, and clear floor space required for fixed pool lifts, as well as the requirements for sloped entries, transfer walls, transfer systems, and pool stairs.  A copy of the 2010 ADA Standards is available at http://www.ada.gov/2010ADAstandards_index.htm.  
The 2010 Standards require that new or altered wading pools have a sloped entry. New or altered spas must have at least one accessible means of entry, which may be a transfer wall, a transfer system, or a pool lift.  See sections 242.3 and 242.4 of the 2010 Standards.

3. Does a community pool have to provide an accessible means of exit and entry?
Community pools that are associated with a private residential community and are limited to the exclusive use of residents and their guests are not covered by the ADA accessibility requirements.  On the other hand, if a swimming pool/club located in a residential community is made available to the public for rental or use, it is covered under Title III of the ADA.  If a community pool is owned or operated by a state or local government entity, it is covered by Title II of the ADA, which requires “program accessibility.”  See http://www.ada.gov/pools_2010.htm.


REQUIREMENTS FOR EXISTING POOLS

4. My pool already existed before the effective date of the new rule. What am I required to do to provide pool access to customers with mobility disabilities?
The ADA requires businesses to make existing pools accessible only when it is "readily achievable" to do so.  Readily achievable means that providing access is easily accomplishable without much difficulty or expense.  The 2010 Standards provide the benchmark, or goal, for accessibility in existing pools.  (See Question 2 for the 2010 Standards requirements for pools).  However, owners of existing pools need to comply with the 2010 Standards only to the extent that doing so is readily achievable for them. 
The 2010 Standards for pool lifts require lifts to be fixed and to meet additional requirements for location, size of the seat, lifting capacity, and clear floor space.  Therefore, if a business can provide a fixed lift that meets all of the 2010 Standards’ requirements without much difficulty or expense, the business must provide one. If no fully compliant lift is readily achievable for the business, the business is not obligated to provide a fully compliant lift until doing so becomes readily achievable. In addition, the business may provide a non-fixed lift that otherwise complies with the requirements in the 2010 Standards if doing so is readily achievable and if full compliance is not.

5. Are there any tax credits or deductions to help me comply?
Yes.  To assist businesses with complying with the ADA, Section 44 of the IRS Code allows a tax credit for small businesses and Section 190 of the IRS Code allows a tax deduction for all businesses. The tax credit is available to businesses that have total revenues of $1,000,000 or less in the previous tax year or 30 or fewer full-time employees. This credit can cover 50% of the eligible access expenditures in a year up to $10,250 (maximum credit of $5000). The tax credit can be used to offset the cost of undertaking barrier removal and alterations to improve accessibility; providing accessible formats such as Braille, large print and audio tape; making available a sign language interpreter or a reader for customers or employees; and for purchasing certain adaptive equipment.  The tax deduction is available to all businesses with a maximum deduction of $15,000 per year. The tax deduction can be claimed for expenses incurred in barrier removal and alterations.  To learn more about the tax credit and tax deduction provisions, contact the DOJ ADA Information Line (at 800-514-0301 (voice); 800-514-0383 (TTY).

6. What if I can’t afford to install a fixed lift in my pool, or it would be difficult to do so?
In that case, installation is not required. If it is not readily achievable for a business to provide a fixed lift – that is, if it would be too difficult or expensive to make these changes – then a business may use other ways, such as a non-fixed lift, to provide access to the pool.  If it is not readily achievable to provide access to the existing pool, even by way of a non-fixed lift, the business need not do so. Nonetheless, it should make a plan to achieve compliance with the pool access requirements when doing so becomes readily achievable. 

7. What is the difference between a “portable” lift and a “fixed” lift?
The real issue is not whether a lift is “portable” versus “fixed,” but rather whether a lift is “fixed” versus “non-fixed.”  A fixed lift means that the lift is attached to the pool deck or apron in some way.  A non-fixed lift means that it is not attached in any way.  Therefore, a portable lift that is attached to the pool deck would be considered a fixed lift.  Thus, owners of portable lifts can fully comply with the access requirements by affixing their lifts to the pool deck or apron.  They are required to do so if that is readily achievable, except in certain circumstances discussed below.

8. How do I determine if it is readily achievable for me to install a lift in my existing pool?
Readily achievable means that providing access is easily accomplishable without much difficulty or expense.   This is a flexible, case-by-case analysis, with the goal of ensuring that ADA requirements are not unduly burdensome, including to small businesses.  The readily achievable analysis is based on factors such as the nature and cost of the needed action; all the financial, staff and other resources available to the business and any parent entity; and the impact on the operation of the site, including legitimate safety requirements that are necessary for safe operation.¹   Generally, a mere franchisor-franchisee relationship, where the franchisor does not own or operate the franchisee business, will not require consideration of the franchisor’s resources in determining what is readily achievable.
This is the same standard that places of public accommodation have been using for all covered elements of existing facilities since 1992.  Guidance on “Common Questions: Readily Achievable Barrier Removal” is available at http://www.ada.gov//adata1.htm (1996).

9. I already purchased a portable lift before March 15, 2012.  Can I still use it?
Yes.  If you have purchased a non-fixed lift before March 15th that otherwise complies with the requirements in the 2010 Standards for pool lifts (such as seat size, etc.), you may use it, as long as you keep it in position for use at the pool and operational during all times that the pool is open to guests.  Because of a misunderstanding by some pool owners regarding whether the use of portable pool lifts would comply with barrier removal obligations, the Department, as a matter of prosecutorial discretion, will not enforce the fixed elements of the 2010 Standards against those owners or operators of existing pools who purchased portable lifts prior to March 15, 2012 and who keep the portable lifts in position for use at the pool and operational during all times that the pool is open to guests so long as those lifts otherwise comply with the requirements of the 2010 Standards.  Generally, lifts purchased after March 15, 2012 must be fixed if it is readily achievable to do so. 
If a portable lift was purchased after March 15, 2012, the obligation to remove barriers is an ongoing one. If it becomes readily achievable to attach the lift to the pool at a later date you must do so.  Manufacturers, for example, are providing kits to attach portable lifts.

10. I do not have a lift at my pool and it is not readily achievable to provide one now.  Do I have to close the pool?
No.  If accessibility is not readily achievable, the Department recommends that businesses develop a plan to provide access into the pool when it becomes readily achievable in the future.  Because accessibility in existing facilities is an ongoing obligation, a covered entity must provide accessible features when it becomes readily achievable to do so. 

11. I’ve decided that it is readily achievable to provide a lift, but the lift I ordered is on back order. Do I have to close my pool until the lift arrives?
  No.  A business in this situation should order and install a compliant lift and install it when it becomes available. 


OTHER QUESTIONS

12. What if I have two pools or a pool and a spa?  Can I share a lift between pools?
In new construction, each pool or spa must provide accessible entry and exit.  For existing pools, whether each pool or spa must have its own lift (or other accessible means of entry) depends on whether it is readily achievable.  If it is not readily achievable for a business to provide a lift at each pool or spa, it does not mean the inaccessible pool or spa must be closed.  In these circumstances, the business should make a plan to purchase and install a compliant pool lift or other accessible entry when it becomes readily achievable to do so. 
Sharing non-fixed pool lifts between pools can pose safety risks to swimmers with disabilities because if a lift has been moved to another pool, a person with a disability might be unable to get out of the pool.  Sharing lifts between pools also requires people with disabilities to rely on staff assistance to find, move, and set up the lift each time.

13. If I can’t provide a lift at every pool, do I have to close the one(s) that has no lift?
No.  If it is not readily achievable to provide a lift at each pool, the inaccessible pool(s) may remain open. 

14.  Do I have to leave my pool lift out at poolside when my pool is closed?
No.  Pool lifts are required to be available only when the pool is open and available to the public.  If a pool is closed during the winter months or at night, the public accommodation is free to remove the lift from the pool and store it. 

15.  Can I store my lift and bring it out only when it is requested by a person with a disability?
No.  A pool lift must remain in place and be operational during all times that the pool is open to guests.  The ADA and its implementing regulations require equal and independent access for people with disabilities for all covered facilities (not just pools).  Allowing covered entities to store lifts and only take them out on request places unnecessary additional burdens on people with disabilities.  People with disabilities have long faced the challenges of dealing with portable accessibility features – e.g., staff are unavailable or too busy to help locate and set up the equipment, the equipment is missing, the equipment isn’t maintained, or staff do not know how to safely set up the equipment.  In addition, the ADA Standards specify that a lift must be located at the proper water depth and with the necessary space around it to maneuver a wheelchair.  Moving a portable lift around raises the likelihood that the lift will be improperly located, making it difficult or dangerous to use.

16. I think a lift poses a safety risk at an unattended pool.  I also have heard that my insurance rates will increase if I have a lift in my unattended pool. Can I consider safety risks?
The ADA allows businesses to consider “legitimate safety requirements” in determining whether an action is readily achievable, as long as the requirements are based on actual risks and are necessary for the safe operation of the business. However, a “legitimate safety requirement” cannot be based on speculation or unsubstantiated generalizations about safety concerns or risks.  We note that businesses cannot rely on limitations on coverage or insurance rates as a reason not to comply with the ADA. 

17. I’ve provided a pool lift.  Do I have any further legal obligations?   
Once an accessible means of entry to a pool, such as your lift, has been provided, it needs to remain available and in working condition while the pool is open to the public. Staff should also be trained so they will know how the lift works, where it is located, and how to operate and maintain it.  For example, a pool lift that operates on batteries may need to be recharged periodically.  To be sure that lift remains operable, staff should know how to charge the battery and be assigned to perform the task as necessary. 


ADDITIONAL INFORMATION ABOUT THE 2010 STANDARDS

18.  What is the Department's approach going to be to ensuring compliance with the new regulation pertaining to pool lifts?
As a general matter, the Department favors voluntary compliance with the ADA from covered entities. The Department seeks collaborative approaches.  To achieve these objectives, the Department has a robust outreach and technical assistance program designed to assist businesses and State and local governments to understand their obligations under the ADA. 


RESOURCES

19. If I have a question about the new requirements, where do I go?
The Department’s wide-ranging outreach, education and technical assistance program is designed to assist businesses and State and local governments to understand their obligations under the ADA. Additional information about the ADA’s requirements, including the 2010 ADA Standards, is available on the Department’s ADA Website at www.ada.gov. 
If you have questions and would like to speak to an ADA Specialist, please call the ADA Information Line at 800-514-0301 (voice); 800-514-0383 (TTY).  Specialists are available Monday through Friday from 9:30 AM until 5:30 PM (Eastern Time), except on Thursday when the hours are 12:30 PM until 5:30 PM. 
ADA experts are also available to present to conferences and training sessions through the ADA Speakers Bureau.

¹ Specifically, in determining whether an action is “readily achievable,” the following factors should be considered:
1) The nature and cost of the action;
2) The overall financial resources of the site or sites involved; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or any other impact of the action on 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.

« A Look behind the Scenes – Part III: Website Accessibility Isn’t an Exact Science

Success through Partnerships: Careers in Government for Urban Youth with Disabilities »

May 16, 2012

The Silver Scorpion: The First Ever Cross-Cultural Superhero with a Disability

Categories: Civil Rights, Community Life

By the Open Hands Initiative team
Imagine if we could bring American and international youth together to collaborate on projects that raise awareness about common social issues faced by people all over the world. That is exactly what we do at the Open Hands Initiative (OHI), a nonprofit organization founded in 2009 by American businessman and philanthropist, Jay T. Snyder. We create platforms for exchange that emphasize our common values rather than our differences, building a reservoir of goodwill and understanding that we hope can withstand even the most fundamental policy differences.
The Open Hands Initiative’s mission is to support people-to-people diplomacy by creating cross-cultural dialogue and building global friendships through exchanges between American and international youth. By focusing on our similarities and areas of commonality, we not only try to open young people’s eyes to new cultures, but also help to forge new solutions to tackle global challenges.
We work within three areas of concentration – Media and Democracy; Culture and Creativity; and Disability and Accessibility. Through each of these focuses we have conducted projects in Syria and Egypt, with plans to expand our programs throughout the Middle East and the greater Muslim and Arab world.
It is our mission to promote the rights of persons with disabilities. In pursuit of this goal, we designed an exchange program between 26 American and Syrian youth advocates with disabilities.
The “Youth Ability Summit,” held in Damascus in 2010, served as a platform to share stories, culture and ideas on how to promote the rights of people with disabilities around the world. During the Summit, youth worked closely with disability rights experts and Liquid Comics to create an original superhero. The result was one that reflected their cultural values as well as the challenges of living with a disability. Today, the “Silver Scorpion” is the first ever cross-cultural superhero with a disability; he represents the power of cross-cultural dialogue and collaboration.
The “Silver Scorpion” is the brainchild of the youth who collaborated during the Summit, and it tells the story of a Muslim boy named Bashir who loses his legs in a landmine accident and later gains the powerful ability to bend metal with his mind. This comic is an innovative approach to people-to-people diplomacy, turning a group of extraordinary young people with disabilities into unlikely diplomats. It encourages understanding, dialogue and tolerance not just for persons with disabilities, but also for people from different cultures around the world.
OHI’s Chairman and Founder, Jay Snyder, calls the Silver Scorpion project an “innovative approach towards bridging the gap between Americans and the Muslim world.” He also emphasizes the fact that this type of people-to-people diplomacy is increasingly valuable today. “The collaboration and understanding between regular citizens of the United States and Syria is ever more pressing today during these times of unrest.”
Since the Youth Ability Summit and the publication of the “Silver Scorpion,” the Open Hands Initiative has been distributing the comic book across the United States and the Muslim world. It has reached the hands of more than 30,000 Americans, 12,000 Egyptians and soon several thousand Lebanese and Syrian youth, teachers and disability experts. The comic book will also be used in classrooms in Egypt and Syria as a method of teaching about the rights and inclusion of persons with disability in schools.
To further the reach of the “Silver Scorpion,” the Open Hands Initiative is partnering with Liquid Comic and MTV Voices to launch an animated Web series based off of the comic book story created by the Syrian and American youth. This four-part series is available online in three languages across Europe, Latin America, Africa and Asia on MTV’s global websites.
In addition to the creation of the “Silver Scorpion,” the Youth Ability Summit also hosted a three-day writing workshop which produced the first cross-cultural guidebook for implementing the UN Convention on Rights of Persons with Disabilities. This manual was authored jointly by disability experts from Syria and America. The manual entitled “Ensuring Rights in Development,” focuses specifically on the development of rights for persons with disabilities in the Middle East/North Africa (MENA) region. Our intention is that activists, community leaders, professionals, policy makers, volunteers, nonprofit organizations and people with and without disabilities will use this manual to not only learn, but also to increase awareness and further reforms towards inclusion and development. The “Ensuring Rights in Development” manual can be found on the Open Hands Initiative website, along with a digital version of the Silver Scorpion.
For more information about the Open Hands Initiative, please visit http://www.openhandsinitiative.org/.

Source: http://usodep.blogs.govdelivery.com/2012/05/16/the-silver-scorpion-the-first-ever-cross-cultural-superhero-with-a-disability/

Success through Partnerships: Careers in Government for Urban Youth with Disabilities

 

By Guest Blogger Madjid (MJ) Karimi, Policy Analyst, Administration for Community Living, Administration on Intellectual and Developmental Disabilities, President’s Committee for People with Intellectual Disabilities, U.S. Department of Health and Human Services
The 2012 National Transition Conference, hosted by the U.S. Department of Education, Office of Special Education and Rehabilitative Services (OSERS), will take place from May 30 – June 1, 2012 in Washington, D.C. This conference will bring together partners in the transition community, including young adults and families, to promote practices, policy and research that lead to successful employment outcomes and self-sufficiency for young people with disabilities, including Intellectual and Developmental Disabilities (IDD).
As part of the conference, on Thursday, May 31, 2012, from 3:30 to 5:00 p.m., an interactive panel presentation will highlight Project SEARCH, a high school transition program for urban youth with disabilities, which, three years ago, expanded its implementation sites to include five sites within four federal government agencies (the departments of Labor, Health and Human Services, Education and the Interior). A panel of partners in this initiative, including now-employed youth with disabilities, will review the program and discuss successful marketing, recruitment and implementation strategies; accomplishments; challenges; best practices and lessons learned; and opportunities for replication in federal, state and local governments.
Each project site is a partnership among a federal agency, a school or local education agency, a community rehabilitation agency and the District of Columbia’s Department on Disability Services and its vocational rehabilitation agency. Youth, who have successfully completed the program and are now employed, will share their stories and the difference the program has made in their lives and prospects for attaining their current customized or competitive jobs with competitive salaries and benefits.
Also during the panel discussion, representatives of host employers will share their experiences supporting a Project SEARCH Program, and the benefits to their federal agency, individual offices and the culture of their organization. School and vocational rehabilitation partners will discuss their collaborative role in promoting employment outcomes in the federal government or public/private sectors for youth with disabilities, and offer the strategies and services they employ to promote job retention. In addition, the co-director of Project SEARCH USA will review the national program model and discuss ways in which it has been supported in a number of employment sectors, including healthcare, banking, universities and more. Panelists will share resource materials that describe and facilitate development of Project SEARCH programs, including a description of the interagency agreements that support these public-private collaborative partnerships.
Panelists will include:

• Denise Ford, Project SEARCH Liaison for the National Institute of Health, and Chief, Office of Hospitality Services
• Martin Pursley, Project SEARCH Liaison for the Department of the Interior (DOI), and Program Manager, Strategic Employment Programs
• Laverdia Taylor Roach, President’s Committee for People with Intellectual Disabilities, Administration on Community Living, Project SEARCH Program Business Liaison Emeritus, U.S. Department of Health and Human Services
• Rebecca S. Salon, Ph.D., Liaison to D.C. Government partners and Consultant, D.C. Department on Disability Services
• Susie Rutkowski, Project SEARCH Co-Director, Cincinnati Children’s Hospital Medical Center
• Vander Cherry, Former Project SEARCH Student and current Clerical Assistant, Federal Student Aid Office, U.S. Department of Education, Office of Federal Student Aid
• Diandra Garnett, Project SEARCH student, soon to be employed at the National Institutes of Health
• Michelle Lucas, Director, Workforce Development, Goodwill Industries of Greater Washington

After the presentation, panelists will participate in a question and answer session with the audience.

In the words of Vander Cherry, one of the students from the first year of the Project SEARCH Program at the U.S. Department of Education, “My goal on my job is being able to be a role model to a lot of people, and being able to better myself every day for the workplace so I won’t have anybody coming up to me and telling me how to do my job. I want to be an asset to the office. I want them to call me in to be there because they need me to be there in the office for a specific reason, because they cannot do without me.”

Vander represents the many successful students who have participated in Project SEARCH. After finishing the program, he was hired into a full time position at the U.S. Department of Education.

This year’s Project SEARCH participants will be marking the end of their journey in the program at a joint graduation ceremony on June 5. It is our hope that the panel discussion during the National Transition Conference will encourage further participation in this important program by employers and students alike, and help open the doors of opportunity to young people with disabilities.

Mr. Karimi is responsible for assisting the President’s Committee for People with Intellectual Disabilities (PCPID) in the collection of epidemiological data in areas that impact the daily lives of people with intellectual and developmental disabilities, including: health, education, housing, community living, individual family support, employment and aging. He often works as part of multidisciplinary teams to plan and execute epidemiological surveillance, analytical projects, and behavioral and social health investigations. From April 2007 through August 2009, Mr. Karimi served as the Executive Assistant to the PCPID Executive Director. He assisted senior staff in analyzing new and proposed regulations and legislative policies to determine impact on agency’s procedures and practices in the context of interoperability. From 1999 to 2006, Mr. Karimi served as the Quality Control Manager and Research Data Analyst at the Food and Drug Administration, Office of Drug Registration and Listing System.

http://www.youtube.com/watch?feature=player_embedded&v=duaBDGzvX48

DOJ extension on pool lift requirement until January 2013

Billing Code: 4410-13

DEPARTMENT OF JUSTICE
28 CFR Parts 35 and 36
CRT Docket No. 123; A.G. Order No. 3332-2012
RIN 1190-AA69

Amendment of Americans with Disabilities Act Title II and Title III Regulations to Extend
Compliance Date for Certain Requirements Related to Existing Pools and Spas Provided
by State and Local Governments and by Public Accommodations
AGENCY: Department of Justice, Civil Rights Division.
ACTION: Final rule.
SUMMARY: This final rule revises the Department of Justice regulations implementing the
Americans with Disabilities Act to extend until January 31, 2013, the compliance date for the
application of sections 242 and 1009 of the 2010 Americans with Disabilities Act (ADA)
Standards for Accessible Design for existing pools and spas.
EFFECTIVE DATE: This rule will take effect on May 21, 2012.
FOR FURTHER INFORMATION CONTACT: Allison Nichol, Chief, Disability Rights
Section, Civil Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY).
This is not a toll-free number. Information may also be obtained from the Department’s toll-free
ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).
SUPPLEMENTARY INFORMATION:
Background
The Department of Justice published its revised final regulations implementing the
Americans with Disabilities Act (ADA) for title II (State and local government services) and title
2
III (public accommodations and commercial facilities) on September 15, 2010. See 75 FR
56164, 56236 (September 15, 2010). The revised ADA rules were the result of a six-year
process to update the Department’s ADA regulations. As part of this process, the Department
sought public comment, issuing an Advance Notice of Proposed Rulemaking (ANPRM) on
September 30, 2004, 69 FR 58768, and two Notices of Proposed Rulemaking (NPRM) on June
17, 2008, 73 FR 34466 (title II) and 73 FR 34508 (title III). The Department also held a public
hearing on the NPRMs and received more than 4,435 written public comments. This process
culminated with publication of the Department’s final rules on September 15, 2010.
As part of this revision, the Department adopted the 2010 ADA Standards for Accessible
Design (“2010 Standards”). A copy of the 2010 ADA Standards is available at
http://www.ada.gov/2010ADAstandards_index.htm. The 2010 Standards replace the 1991 ADA
Standards for Accessible Design and, for the first time, contain specific accessibility
requirements for certain types of recreational facilities, including the requirement to provide
accessible means of entry and exit to swimming pools, wading pools, and spas. With limited
exceptions, the Department’s revised ADA title II and title III regulations went into effect on
March 15, 2011. The regulations provided that covered entities were not obligated to comply
with the 2010 Standards until March 15, 2012 (the compliance date).
The 2010 Standards are based in large part on the 2004 ADA Accessibility Guidelines,
which were adopted by the United States Access Board (“Access Board”) in 2004 following a
decade-long effort to revise the Board’s 1991 ADA Accessibility Guidelines. See 69 FR 44084
(July 23, 2004). The ADA requires the Department to issue regulations that include enforceable
accessibility standards applicable to facilities subject to title II or title III that are consistent with
the “minimum guidelines” issued by the Access Board, 42 U.S.C. 12134(c), 12186(c). The
3
Attorney General has sole responsibility for promulgating accessibility standards that fall within
the Department’s jurisdiction and enforcing the Department’s regulations, which include the
accessibility standards.
The 2010 Standards set minimum scoping and technical requirements for accessible
means of entry (and exit) for newly constructed and altered swimming pools, wading pools, and
spas (collectively, “pools”). The 2010 Standards include requirements for accessible means of
entry for large and small pools. These requirements are found at sections 242 and 1009 of the
2010 Standards. Specifically, section 242 provides that large pools (pools with 300 linear feet of
pool wall or more) must have two accessible means of entry, one of which must be a pool lift or
sloped entry; the other accessible means of entry include a transfer wall, transfer system, or pool
stairs. Small pools (pools with less than 300 linear feet of pool wall) must provide at least one
accessible means of entry, which must be either a pool lift or a sloped entry.
The 2010 Standards also provide details about what features an accessible means of entry
should include. Specifically, section 1009 addresses pool lift requirements such as the location,
size of the seat, lifting capacity, and clear floor space, as well as the requirements for sloped
entry, transfer wall, transfer system, or pool stairs.
Sections 35.151(d) and 36.406(b) of the respective title II and title III regulations specify
that the 2010 Standards only apply to fixed or built-in elements. Sections 35.151(c) and
36.406(a) provide that the 2010 Standards apply to new construction and alterations of covered
buildings and facilities.
With regard to existing facilities, the title II rule published in 2010 provided that, as of
March 15, 2012, the 2010 Standards apply whenever public entities choose to meet their title II
ADA program accessibility obligations by making structural alterations to their existing
4
facilities, 28 CFR 35.150(b)(1).1 The title III rule published in 2010 provided that on or after
March 15, 2012, public accommodations must generally use the 2010 Standards as the
benchmark for their ongoing obligation to remove architectural barriers in existing facilities to
the extent such compliance is readily achievable. 28 CFR 36.304(d).2 As discussed below, with
respect to the provision of title II program accessibility and title III readily achievable barrier
removal, the Department has postponed the compliance date for the specific requirements in the
2010 Standards relating to accessible means of entry for existing pools until May 21, 2012.
Under the ADA, the Department is responsible for providing technical assistance to
entities covered by titles II and III to help them understand their obligations under the ADA.
42 U.S.C. 12206(c)(1). Since issuing its revised rule, the Department has developed and
published technical assistance documents to assist entities to understand the revised regulations.
To help educate pool owners and operators concerning the requirements imposed by the
Department’s 2010 regulations, the Civil Rights Division published a technical assistance
document entitled “ADA 2010 Revised Requirements: Accessible Pools—Means of Entry and
Exit” (the “TA Document”) on January 31, 2012. Available at
http://www.ada.gov/pools_2010.htm. This document provided an overview of the new
accessibility requirements for pools and discussed the application of the requirements in the
context of the longstanding obligations of covered entities to provide readily achievable barrier
removal (title III) and program accessibility (title II).
1 Section 35.150(b)(1) of the title II regulation, which addresses program accessibility in existing facilities, provides
state and local governments with flexibility to use other means such as acquisition or redesign of equipment, or
reassignment of programs or services to accessible buildings, in lieu of making structural alterations to facilities
when they are providing program accessibility in their existing programs, services, or activities.
2 Section 36.304(d)(1) requires covered entities to apply the alterations provisions of the regulations (except the path
of travel provisions) when removing barriers, but only to the extent that it is readily achievable to do so. Section
36.304(d)(2)(iii) provides that elements in existing facilities that are subject to the supplemental requirements,
including the accessible means of entry requirements for pools and spas, must be modified to the extent readily
achievable to comply with the 2010 Standards.
5
Inquiries received by the Department both prior to the TA Document’s publication and in
response to the TA Document revealed that there were significant concerns and
misunderstandings among a substantial number of pool owners and operators with respect to
what was required for title III entities in order to engage in readily achievable barrier removal, or
for title II entities to provide program accessibility with respect to their existing pools now that
the ADA regulations included minimum scoping and technical requirements for accessible
means of entry for pools. Some pool owners and operators believed that taking certain steps
would always satisfy their obligations when in fact those steps would not necessarily result in
compliance with the ADA regulations. For example, some pool owners and operators believed,
incorrectly, that providing non-fixed lifts (lifts that are not attached to the pool deck and often
referred to as portable lifts) would in all circumstances achieve compliance with the ADA
regulations, even in circumstances where providing a fully compliant lift is readily achievable.
Others expressed the view that they would have to close pools due to an inability to provide
access, even though the regulations allow pool owners and operators to use non-fixed lifts or no
lifts at all in circumstances where the provision of access is not readily achievable. The vast
majority of pool owners and operators expressing these concerns were title III entities.
Recognizing the extent of the misunderstandings in determining appropriate compliance
when faced with an immediate compliance date, and consistent with Executive Order 13563,
“Improving Regulation and Regulatory Review” (with its emphasis on promoting predictability
and public participation), the Department determined that it would be impracticable and contrary
to the public interest to retain the March 15, 2012, compliance date for application of these
requirements to existing pools. 77 FR 16163, 16164 (March 20, 2012). Thus, the Department
issued a Final Rule extending the date for compliance with sections 242 and 1009 of the 2010
6
Standards as they relate to existing pools (pools built before March 15, 2012) from March 15,
2012, to May 21, 2012. 77 FR 16163, 16163 (March 20, 2012).3 The Department’s action had
no effect on the compliance date for these requirements as they applied to newly constructed
pools or pools altered for purposes other than to provide program accessibility or barrier removal
(e.g., scheduled alterations or improvements).
Contemporaneously with issuing the rule extending the compliance date for existing
pools until May 21, 2012, the Department issued an NPRM seeking public comment regarding
whether a longer extension of the compliance date would be appropriate to allow pool owners
and operators additional time to meet their obligations with regard to providing access into their
existing pools. 77 FR 16196 (March 20, 2012). Specifically, the Department requested
comment on a proposed extension that would postpone the required compliance date for sections
242 and 1009 of the 2010 Standards until September 17, 2012—a total of just over 180 days
from the original March 15, 2012, compliance date specified in the September 2010 final
regulations. The NPRM proposed that this extension would “provide pool owners and operators
additional time to evaluate and comply with their program accessibility and readily achievable
barrier removal obligations with respect to sections 242 and 1009 of the 2010 Standards.” 77 FR
at 16198. The Department also anticipated that an extension would serve “the interest of
promoting clear and consistent application of the ADA’s requirements to existing facilities.” 77
FR at 16196. The proposed extension would have no impact on the March 15, 2012, compliance
date for new construction and alterations of swimming pools and spas. In addition, the NPRM
made it clear that, although the Department was considering extending the compliance date for
3 See 77 FR at 16163 (“Effective on March 15, 2012, the compliance date for 28 CFR 35.150(b)(1), (b)(2)(ii), and
28 CFR 36.304(d)(2)(iii) for sections 242 and 1009 of the 2010 Standards is delayed to May 21, 2012.”). The
referenced sections in 28 CFR for which the compliance date was delayed apply only to existing facilities, not to
new construction or alterations.
7
the application of the requirements to existing pools, the NPRM was not proposing to change
those requirements or modify the ADA regulations in any other way and, thus, the Department
was not soliciting comments on the merits of the requirements. 77 FR at 16197.
Discussion of Public Comments
In response to its proposal, the Department received approximately 1,915 public
comments from individuals with disabilities, organizations representing individuals with
disabilities, pool owners and operators, and other entities covered by the regulations.
Approximately 1,420 commenters supported the proposal and approximately 495 commenters
opposed it. While the vast majority of commenters were concerned about the impact of the
requirements on title III public accommodations, there were some comments from title II
entities.
Organizations representing the hotel industry and individual owners and operators of
hotels and campgrounds provided the largest number of comments in support of postponing the
compliance date. Of these comments, approximately 520 were form comments submitted
anonymously. Other commenters who supported the proposal included homeowners
associations, pool lift manufacturers, individual owners and operators of pools and spas, and
some title II entities. Commenters opposed to the proposed extension included many
organizations representing persons with disabilities, including veterans with disabilities,
numerous individuals with disabilities, and some title II entities. Many comments illustrated the
kinds of misunderstandings and concerns that led to the Department’s decision to propose the
extension. This final rule will not address specific comments about the merits of the
requirements for accessible means of entry for pools, except to the extent that they illustrate
these misunderstandings or provide support or opposition for the proposed compliance date
8
extension.
The Department received numerous comments opposing a further extension of the
effective date for the provisions requiring an accessible means of entry for existing pools.
Commenters with disabilities and their families, as well as organizations representing individuals
with disabilities, urged the Department not to extend the deadline further. These commenters
provided a variety of reasons why the deadline should not be extended. Some commenters
objected on the grounds that the regulatory process, which included numerous opportunities for
public comment, had yielded carefully constructed regulations and accessibility standards.
Several commenters noted that entities have had nearly two years to plan for and comply with
the revised requirements for access into existing pools and, thus, additional time was
unnecessary. One organization representing individuals with disabilities noted that the barrier
removal concept has not changed since the ADA was passed in 1990 and that title III entities
have had over 20 years and extensive technical assistance on the concept to understand their
obligations. The organization believed an additional four months would not yield a better
understanding. The same organization felt strongly that the extension was inappropriate for title
II entities, which have long been required to address access into their existing pools under the
program access requirement.
Many commenters emphasized the negative impact that an extension would have for
individuals with disabilities. Commenters stated that an extension would require them to
continue to pay full price for a hotel room during the extension period while not having full
access to the amenities of the facilities. One commenter took issue with the categorization of
pool access as a luxury, stating that access to other amenities, such as restaurants, could similarly
be considered luxuries, yet access to such amenities is required for all paying customers.
9
Some of the most moving comments came from families with individuals with
disabilities. Parents of children with disabilities shared their stories of how their children were
getting too big for them to carry in and out of the pool safely or with dignity. Several recounted
how their older children loved to swim and wanted to partake in family outings to the pool, but
then explained that it was difficult to safely transfer a wet and slippery child across a slick pool
deck. Parents with disabilities also lamented their inability to join their children in the pool. For
these families, an extension of the compliance date for the pool requirements would mean
another year of summer vacations without access.
The Department also heard from organizations representing veterans with disabilities
who indicated that, after a decade of war, a significant number of service members have returned
with injuries and are reintegrating into their communities by participating in adaptive sports and
that these individuals should have access to pools and spas in their communities without further
delay. One veteran with a disability stated that he had very few methods of exercise that he
could use to stay in shape and expressed frustration about having to travel long distances to a
pool with a compliant lift for his weekly swim. Many other commenters also stated that
swimming was one of the few exercises available to many individuals with disabilities and that
the extension would further delay pool access that has been long sought.
Several state-level advisory organizations on disability issues provided comments
opposing the extension. These organizations stated that they believed that there had been ample
time for title II and title III entities to comply and that delaying implementation further would
constitute a roll-back of the ADA. These organizations were especially concerned about the
resistance of public accommodations in their states to implement the new requirements and the
impact this would have on residents and visitors with disabilities.
10
The Department also received numerous comments supporting a further extension of the
effective date for the provisions requiring an accessible means of entry for existing pools,
primarily as they apply to the obligations of title III entities to engage in barrier removal. Many
of these commenters supported a longer extension for the compliance period, for a minimum of
six additional months. These commenters believed that an extension of the compliance date was
necessary in order to give public accommodations sufficient time to fully understand and
implement the pool access requirements and to arrange for installation of fixed lifts (lifts that are
attached to the pool deck), given that many pool owners and operators had previously believed
that portable lifts were permissible even when it was readily achievable to provide a fixed lift.
Two other categories of comments, primarily provided by owners and operators of
pools at public accommodations who supported the Department’s proposal to extend the
compliance date, further underscored the misunderstandings and concerns that have arisen about
the pool accessibility requirements adopted in the 2010 Standards. First, some commenters
suggested that the requirement that the pool lift be fixed was not part of the title III regulation
published by the Department in September 2010, but was, instead, an interpretation the
Department later developed outside of the rulemaking process. However, the Department has
had a longstanding position that the ADA Standards apply to fixed and built-in elements. See,
e.g., Department of Justice, Americans with Disabilities Act, ADA Title III Technical Assistance
Manual Covering Public Accommodations and Commercial Facilities (Supp. 1994), III-5.3000,
available at http://www.ada.gov/taman3up.html, (providing that “[o]nly equipment that is fixed
or built in to the facility, is covered by the accessibility standards”). The Department codified
that position in both the revised title II and title III regulations, see 28 CFR 35.151(d) and
36.406(b). Throughout the six-year process of revising the ADA regulations, the Department
11
stated that the ADA Standards did not apply to freestanding (e.g., non-fixed, moveable, or
portable) equipment. For example, the 2004 ANPRM included a section entitled, “Application
of ADA Standards and ADA to Free-Standing Equipment,” in which the Department stated that
the ADA Standards do not apply to portable equipment. See 69 FR 58768, 58775 (Sept. 30,
2004) (providing that “the revised ADA Standards will apply directly only to fixed equipment—
as described above, equipment that becomes built into the structure of a facility—and not to freestanding
equipment”). The 2008 title III NPRM and the 2010 Final Rules reiterated this point.
See 73 FR 34508, 34543 (June 17, 2008) (“The Department is proposing a new § 36.406(b) that
would clarify that the requirements established by this section, including those contained in the
proposed standards (and the 2004 [ADA Accessibility Guidelines]) prescribe the requirements
necessary to ensure that fixed or built-in elements in new or altered facilities are accessible to
people with disabilities.”); 75 FR 56236, 56303 (Sept. 15, 2010) (“The final [title III] rule
contains a new § 36.406(b) that clarifies that the requirements established by this section,
including those contained in the 2004 [ADA Accessibility Guidelines], prescribe the
requirements necessary to ensure that fixed or built-in elements in new or altered facilities are
accessible to individuals with disabilities.”).4
Section 36.304(d) of the title III regulation specifies that measures taken to comply with
the readily achievable barrier removal requirement must comply with the applicable
requirements for alterations as set forth in § 36.402 and §§ 36.404 through 36.406, which
4 Moreover, the Regulatory Impact Analysis (RIA) for the final rule looked at the costs with respect to fixed and
built-in elements when analyzing the provisions of the 2010 Standards. With respect to pools, the RIA included
both the cost of purchasing a lift as well as the cost of installing the lift for barrier removal in existing pools. See
Final RIA at pp. 59-60, 283 (July 23, 2010), available at
http://www.ada.gov/regs2010/RIA_2010regs/DOJ%20ADA%20Final%20RIA.pdf.
12
reference the 2010 Standards. Given that the ADA Standards apply only to fixed or built-in
elements, the title III regulation requires the use of fixed elements when removing barriers in
existing facilities unless it is not readily achievable to do so. Thus, it follows that public
accommodations engaged in barrier removal must provide a fixed or built-in lift in existing pools
as long as it is readily achievable.
A second group of commenters who owned or operated public accommodations and who
supported the extension mistakenly believed that if they could not comply with the pool access
requirements of the 2010 Standards (because compliant pool lifts were unavailable or they could
not afford to provide a lift, for example), they would be forced to close their pools. This is also a
misunderstanding of the ADA regulations. Compliance with the 2010 Standards is only required
to the extent that it is “readily achievable”—a term that means “easily accomplishable and able
to be carried out without much difficulty or expense.” See 28 CFR 36.104. Thus, title III of the
ADA does not require that a public accommodation close its pool facility if, for example,
compliant pool lifts are not available or if the facility cannot afford such a lift. In such
circumstances, a public accommodation can achieve compliance with its ADA obligations
without installing a fully compliant pool lift, because that measure would not be “easily
accomplishable” or “able to be carried out without much difficulty or expense.” Id. The revised
2010 title III regulation, like the 1991 regulation that preceded it, implements the “readily
achievable” definition established by Congress in the statute and maintains unchanged the
definition of “readily achievable” incorporated in the 1991 regulation.
To determine whether providing an accessible means of entry to an existing pool is
readily achievable, businesses must use the same general barrier removal analysis that has
always applied to other covered elements in existing facilities. Both the ADA statute, which
13
Congress passed in 1990, and the Department’s ADA title III regulation, which was originally
published in 1991, set out a case-by-case analysis to be used in determining whether removing
certain barriers is readily achievable. Specifically, the regulations provide at § 36.104 that in
determining whether an action is readily achievable, the factors to be considered include:
(1) The nature and cost of the action;
(2) The overall financial resources of the site or sites involved, the number of persons
employed at the site, the effect on expenses and resources, legitimate safety requirements
necessary for safe operation, including crime prevention measures, and any other impact of the
action on 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, and
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.5
Under this standard, which has applied to places of public accommodation since 1991,
5 Since the title III regulation first took effect, the Department has provided extensive technical assistance regarding
the readily achievable barrier requirement for existing facilities. The technical assistance material provided by the
Department contains examples of the application of this requirement. Pool owners and operators can access
information on barrier removal on the Department’s ADA website, www.ada.gov. Publications that address barrier
removal include, but are not limited to, the 1993 ADA Title III Technical Assistance Manual (Section III-4.4200),
available at http://www.ada.gov/taman3.html, the 1996 ADA Guide for Small Businesses (revised and reissued in
1999), which was published in conjunction with the Small Business Administration (“SBA”), available at
http://www.ada.gov/smbusgd.pdf, and a 2005 online course entitled “Reaching Out to Customers With Disabilities,”
which is available at http://www.ada.gov/reachingout/intro1.htm.
14
hotels and other public accommodations will not be required to close their existing pools if
compliance with the applicable ADA Accessibility Standards is not easily accomplishable or
able to be carried out without much difficulty or expense. Similarly, the inability of a public
accommodation to install a lift due to insufficient space at the side of the pool deck would be
addressed by using the barrier removal analysis, which does not require entities to undertake
changes that cannot be accomplished without much difficulty or expense.
Several commenters, including a pool lift manufacturer, supported an extension on the
basis that there is currently a significant backlog in availability of compliant lifts. They were
concerned that if the pool access requirements took effect, pool owners and operators who could
not acquire a lift because of a manufacturing backlog would be in violation of the ADA.
However, the lack of availability of a compliant lift because of limitations in manufacturing
capacity would demonstrate that it is not readily achievable to comply with the requirements,
until such time as a lift becomes available.
The Department received a small number of comments from title II entities, the majority
of which were from small local governments. Most of these commenters favored the proposed
extension. A number of them believed a moveable lift was appropriate to comply with the
revised ADA requirements and had not accounted for the costs associated with a fixed pool lift in
their yearly budgets. As a result, these entities supported the extension in order to secure
additional funding. However, the title II program accessibility requirements allow the use of
equipment as an alternative to making structural changes to an existing facility; thus these
entities would not necessarily have to provide a fixed lift in order to satisfy their program
accessibility obligation.6
6 Section 35.150 requires that title II entities operate each service, program or activity, so that when viewed in its
entirety, the service, program or activity is readily accessible to and usable by individuals with disabilities.
15
Some title II entities stated that they would have to close down community pools rather
than incur the expense of complying with the regulation. To the contrary the title II program
accessibility regulation does not require title II entities to make changes to their programs,
services, or activities if the changes would constitute a fundamental alteration or would impose
an undue financial and administrative burden. Title II does not require a facility to close when
compliance with the program accessibility requirements poses an undue financial and
administrative burden. This is the case whether the title II facility in question is a public office, a
school, or a swimming pool.
Some of the comments the Department received reflected misconceptions about the
abilities of persons with disabilities to participate in the same activities that are afforded persons
without disabilities. The ADA was intended, in part, to address these misconceptions.
Without the pool access requirement of the regulations, it is clear that many individuals
with disabilities would not be able to avail themselves of pool amenities offered by covered
entities. As noted by many commenters opposed to the proposed extension, individuals with
disabilities have long awaited the ADA Accessibility Standards that address access to
recreational facilities, such as pools. These comments illustrate the significant impact that a
further extension would have on many individuals with disabilities and their families during yet
another summer pool season. On the other hand, as stated above and in the Department’s
NPRM, it is clear to the Department that a significant number of pool owners and operators may
continue to have misunderstandings and concerns about their obligations with regard to
providing access to existing pools. These misunderstandings have affected pool operators and
owners in at least three ways that are relevant to the Department’s proposal. First, it appears that
some places of public accommodation initially proceeded on the misunderstanding that a
16
portable pool lift would in all circumstances satisfy the pool accessibility requirements of the
2010 Standards. Those pool operators and owners will need time to undertake a fact-specific
analysis about whether the installation of a fully compliant pool lift is “readily achievable,” and
to implement their compliance plan. Second, the comments suggested that at least some pool
owners and operators who generally speaking would find installation of a compliant pool lift to
be “readily achievable” currently are having difficulty locating compliant pool lifts that are
available for purchase. The Department believes that this circumstance provides an additional
reason to postpone the compliance date, thereby allowing a greater number of covered entities to
purchase and install compliant pool lifts. Third, comments received by the Department also raise
concerns that, absent an extension, some covered entities might respond to the compliance date
by taking steps that the law does not require and that would actually undermine the goal of
ensuring that individuals with disabilities obtain the benefits that the regulations sought to
ensure—safe and compliant pool access to existing pools when it is readily achievable to provide
it. For example, if pool owners and operators close pools because they incorrectly believe that
the 2010 Standards require that a fully compliant pool lift must be installed in all cases, those
closures will reduce access to pools for everyone, including individuals with disabilities.
Similarly, if pool owners and operators are unable to obtain compliant lifts because of the lack of
availability, they may unwittingly purchase non-compliant lifts that will not provide safe and
independent pool access to persons with disabilities.
After carefully considering all of these factors, including the unique burdens that an
additional postponement would impose on individuals with disabilities, the Department has
concluded that a further extension of the compliance date is warranted. Although the
Department originally proposed a four-month extension until September 17, 2012, based on the
17
breadth of the concerns and the misunderstandings about the requirements expressed in the
comments the Department received, the Department has decided to extend the compliance date
for sections 242 and 1009 of the 2010 Standards for existing pools subject to title III barrier
removal and to title II program access until January 31, 2013. That date is one year from the
date that the Department issued its initial guidance clarifying that the ADA regulations required
fixed pool lifts, and is still well in advance of next year’s swim season. The Department
emphasizes that this extension is consistent with Executive Order 13563, which emphasizes the
importance of promoting predictability and reducing uncertainty, and which also stresses the
value of public participation and an “open exchange of information and perspectives.”
This longer extension will provide additional time for the Department to continue to
educate covered entities about their obligations under the 2010 Standards with regard to
providing access into their existing pools, to respond to relevant concerns, and to address
misunderstandings that could lead covered entities to take unnecessary and counterproductive
steps, thereby allowing all stakeholders to have the same understanding of what is required by
the ADA and promoting broader compliance with the rule. The Department also believes that
the additional time will allow covered entities to complete the fact-specific evaluation required
by the “readily achievable” standard, and to implement their compliance plans, including by
taking the steps necessary to comply with the pool accessibility requirements of the 2010
Standards.
Section-By-Section Analysis
Section 35.150(b)(1)
18
Currently, § 35.150(b)(1) specifies that if a public entity chooses to make structural
alterations to existing buildings in order to meet its program accessibility obligations, it shall
comply with the accessibility requirements set forth in § 35.151. The current title II regulation
specifies, at § 35.151(c)(3), that all facilities that are newly constructed or altered on or after
March 15, 2012 must comply with the 2010 Standards.7 The final rule postpones the compliance
date, as applied to the requirements for accessible means of entry for existing pools, by adding a
new paragraph (b)(4) to § 35.150. The new paragraph reads: “The requirements set forth in
sections 242 and 1009 of the 2010 Standards shall not apply until January 31, 2013, if a public
entity chooses to make structural changes to existing swimming pools, wading pools, or spas
built before March 15, 2012, for the sole purpose of complying with the program accessibility
requirements set forth in this section.
Section 36.304
Section 36.304(d) currently specifies that on or after March 15, 2012, public
accommodations must generally use the 2010 Standards as the benchmark for their ongoing
obligation to remove architectural barriers in existing facilities to the extent such compliance is
readily achievable. The final rule extends the compliance date for applying the barrier removal
requirements for accessible means of entry for pools, by adding paragraph (g)(5), which states
the following: “The application of this requirement to facilities built before March 15, 2012, for
accessible means of entry for swimming pools, wading pools, and spas as set forth in sections
242 and 1009 of the 2010 Standards shall not apply until January 31, 2013.”
The final rule also modifies the Appendix to § 36.304(d) to reflect the extension of the
compliance date.
7 As discussed earlier, the Department issued a Final Rule extending the date for compliance with sections 242 and
1009 of the 2010 Standards as they relate to existing pools (pools built as of March 15, 2012), until May 21, 2012.
See 77 FR at 16163. However, the regulatory text was not revised.
19
Regulatory Certifications
Administrative Procedure Act
The Department finds good cause to make this regulation effective without a 30-day
delay in the effective date, pursuant to 5 U.S.C. 553(d), as it relieves a restriction by extending
the compliance dates for the title II program accessibility requirements pursuant to 28 CFR
35.150 and the title III barrier removal obligations pursuant to 28 CFR 36.304 as they relate to
accessible means of entry into existing swimming pools, wading pools, and spas, from May 21,
2012, until January 31, 2013.
Executive Order 13563 and Executive Order 12866—Regulatory Planning and Review
This regulation has been drafted and reviewed in accordance with Executive Order
13563, “Improving Regulation and Regulatory Review,” and Executive Order 12866,
“Regulatory Planning and Review” section 1(b), The Principles of Regulation. The Department
of Justice has determined that this rule is a “significant regulatory action” under Executive Order
12866, section 3(f), and accordingly this rule has been reviewed by the Office of Management
and Budget (OMB).
Executive Order 12988—Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of
Executive Order 12988.
Executive Order 13132—Federalism
This rule will not have substantial direct effects on the States, on the relationship between
the Federal Government and the States, or on distribution of power and responsibilities among
the various levels of government. Therefore, in accordance with Executive Order 13132, it is
20
determined that this rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C.
605(b), has reviewed this regulation, and by approving it certifies that it will not have a
significant economic impact on a substantial number of small entities. This rule merely extends
the compliance dates for the title II program accessibility requirements pursuant to 28 CFR
35.150 and the title III barrier removal obligations pursuant to 28 CFR 36.304 as they relate to
accessible means of entry into existing swimming pools, wading pools, and spas. The extension
provides regulated entities additional time to evaluate and comply with their program
accessibility and readily achievable barrier removal obligations.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on
the economy of $100,000,000 or more, a major increase in costs or prices, or significant adverse
effects on competition, employment, investment, productivity, innovation, or on the ability of
United States-based companies to compete with foreign-based companies in domestic and export
markets.
Unfunded Mandates Reform Act of 1995
Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1503(2), excludes
from coverage under that Act any proposed or final Federal regulation that “establishes or
enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex,
21
national origin, age, handicap, or disability.” Accordingly, this rulemaking is not subject to the
provisions of the Unfunded Mandates Reform Act.
Paperwork Reduction Act of 1995
This rule does not contain any information collection requirements that require approval
by OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects for 28 CFR Parts 35 and 36
Administrative practice and procedure, Buildings and facilities, Civil rights,
Communications, Individuals with disabilities, Reporting and recordkeeping requirements, State
and local governments, Business and industry.
By the authority vested in me as Attorney General by law, including 28 U.S.C. 509 and
510, 5 U.S.C. 301, and sections 204 and 306 of the Americans with Disabilities Act of 1990,
Public Law 101B336 (42 U.S.C. 12134 and 12186), chapter I of title 28 of the Code of Federal
Regulations is amended as follows:
PART 35––NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES
1. The authority citation for Part 35 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134.
2. In § 35.150, paragraph (b)(4) is added to read as follows:
§ 35.150 Existing facilities.
* * * * *
(b) * * *
(4) Swimming pools, wading pools, and spas. The requirements set forth in sections
242 and 1009 of the 2010 Standards shall not apply until January 31, 2013, if a public entity
22
chooses to make structural changes to existing swimming pools, wading pools, or spas built
before March 15, 2012, for the sole purpose of complying with the program accessibility
requirements set forth in this section.
* * * * *
PART 36––NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PUBLIC
ACCOMMODATIONS AND COMMERCIAL FACILITIES
3. The authority citation for part 36 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b).
4. Amend § 36.304 as follows:
a. Revise the Appendix to §36.304(d), and
b. Add paragraph (g)(5), to read as follows:
§ 36.304 Removal of barriers.
* * * * *
(d) * * *
Appendix to § 36.304(d)
Compliance Dates and Applicable Standards for Barrier Removal and Safe Harbor
Date Requirement Applicable
Standards
Before March
15, 2012
Elements that do not comply with the requirements for those
elements in the 1991 Standards must be modified to the
extent readily achievable.
Note: Noncomplying newly constructed and altered elements
may also be subject to the requirements of § 36.406(a)(5).
1991 Standards
or 2010
Standards
On or after
March 15,
2012
Elements that do not comply with the requirements for those
elements in the 1991 Standards or that do not comply with
the supplemental requirements (i.e., elements for which there
are neither technical nor scoping specifications in the 1991
Standards), must be modified to the extent readily
achievable. There is an exception for existing pools, wading
2010 Standards
23
pools, and spas built before March 15, 2012 [See §
36.304(g)(5)].
Note: Noncomplying newly constructed and altered elements
may also be subject to the requirements of § 36.406(a)(5).
On or after
January 31,
2013
For existing pools, wading pools, and spas built before
March 15, 2012, elements that do not comply with the
supplemental requirements for entry to pools, wading pools,
and spas must be modified to the extent readily achievable
[See § 36.304(g)(5)].
Sections 242
and 1009 of the
2010 Standards
Elements not
altered after
March 15,
2012
Elements that comply with the requirements for those
elements in the 1991 Standards do not need to be modified. Safe Harbor
* * * * *
(g) * * *
(5) With respect to facilities built before March 15, 2012, the requirements in this section
for accessible means of entry for swimming pools, wading pools, and spas, as set forth in
sections 242 and 1009 of the 2010 Standards, shall not apply until January 31, 2013.
* * * * *
May 17, 2012__________________________
Date
________________________________
James M. Cole
Acting Attorney General
[FR Doc. 2012-12365 Filed 05/17/2012 at 4:15 pm; Publication Date: 05/21/2012]