How the new ADA Regulations for Swimming Pools, Wading Pools, and Spas may affect your swimming pool facility

There is a lot of misinformation going on right now in the marketplace about what swimming pool facilities have to do with respect to the new ADA regulations for swimming pools, wading pools, and spas. There are also a lot of situations now where vendors, pool management companies, and others do not fully understand what facilities are subject to this law, and if subject to it, what they need to do come into compliance with it, and in many cases they are overstating the case for work that may or may not be necessary.

It is strongly encouraged that if you believe that you have a swimming pool facility that provides a public accommodation, as described below, and are thus subject to comply with the Standards of this new ADA regulation, that you contact NVblu to assist you in developing a plan to meet these standards. Many pool facilities will need a Pool Design-Build firm such as NVblu that can prepare professionally engineered permit and construction drawings in those situations where modifications to your Pool, Spa, or Wading Pool will be required and to allow you to come into compliance by March 15, 2012. Additionally, for those swimming pool or spa facilities who are only contemplating the installation of a Pool or Spa Lifter - there are also space and design criteria that must be met for the Lifter to be compliant - which we have already seen is being overlooked by many vendors.

We have a strong grip on what is required under the Standards under new ADA regulations, and how they may apply to community or commercial swimming pools and spas, particularly as it relates to Homeowner Associations, Condominiums, Apartments, and private Swim Clubs. In time, there will more clarifying information by the Department of Justice on some of the specifics, but for now there is a relative abundance of information already in place.

The regulation was issued on September 15, 2010, and for affected commercial swimming pools and spas, it becomes effective on March 15, 2012.

The first question that has to be answered is whether your swimming pool facility is subject to the Standards of this new regulation. And for commercial swimming pool facilities, to include Homeowner Associations (HOA's) and Condominiums, Apartments, and private Swim Clubs, the determination is premised upon whether your pool facility provides a "public accommodation", i.e., is open to the public. Swimming pool or spa facilities that are solely used for residents and their invited guests are not considered places of public accommodation, and thus not required to comply with the new ADA Standards. However, it seems clear that HOA's, Condominiums, Apartments, and private Swim Clubs swimming pool or spa facilities having swim and/or dive teams with swimming or diving meets open to the public are providing a public accommodations, or if other public accommodation are offered (such as those that charge some type of an entry fee like at country clubs, hotels, inns, etc. or those renting pool hours to a school or other outside group), thus elevating the pool or spa to a level of providing a public accommodation and making it subject to meeting the criteria of the Standards of the new ADA regulations. Some facility arrangements may seem somewhat more ambiguous such as where an otherwise private pool facility is integrated into a building where its community association transacts its business with the public, and the DOJ has administratively ruled that this act of integration makes all of the facilities subject to the ADA and its related requirements. You should consult your legal counsel to confirm you meet the criteria for providing a public accommodation, but in everything we have read these are some pretty clear criteria for whether or not your facility is providing a public accommodation.

If your pool facility is subject to the law, then you must assess what you are compelled to do under this law to make your pool or spa ADA accessible. The law requires that swimming pools and spas providing a public accommodation to make specific accessibility upgrades that are "readily achievable." This "readily achievable" language is language commonly found in other ADA regulations, is somewhat open to interpretation as to what this means, and will vary from facility-to-facility. In the commentary of the regulations leading to the passing of the new ADA regulations affecting pools and spas, there was a lot of discussion about the relative small cost (in the scheme of things) of installing Pool or Spa Lifters at swimming pools or spas at a current cost of $5,000.00 - $7,000.00, and that it was anticipated that for most public accommodation facilities, this should be a readily achievable. Adding a Pool or Spa Lifter as a primary means of ADA access is typically the most cost effective means of complying with the new ADA law for spas or for swimming pools with a perimeter of less than 300 Ln. Ft. For swimming pools over 300 Ln. Ft., a secondary means of access is also required, and typically is a more costly endeavor by having to add an accessible stairwell, handicapped ramp, or other more expensive means of compliance.

As to the Wading Pools, the law calls for all Wading Pools to have a "sloped entry" in accordance with the ADA design criteria. For many, there are possible physical/site layout considerations, as well as a wide range of potential costs, to modify or replace existing wading pools, in order to comply with this law. This conversion or replacement process will lead many Owners into having to make a determination of whether complying with the regulations is "readily achievable." As we understand it, this question of readily achievable goes to both the actual feasibility from a physical layout to make this change, as well as to viability of handling the associated costs.

Some facilities will have Wading Pools that can be more easily modified for a sloped/compliant entry than other, so the costs and viability may vary. For some public accommodation facilities, making such adjustments to make their Wading Pools compliant (sloped entry) may represent only a small fraction of their overall budget, and thus they might be more readily compelled to go ahead with making the renovation by the March 15, 2012 compliance date. For others, it might be physically impossible to make this change, or so costly that their budget just cannot afford it. At a minimum, for those facilities that where is it is not physically feasible or affordable to undertake these changes, they should at least have an ADA Compliance Plan prepared, and have this plan available for inspection, to reflect the anticipated costs of such a change and that it is on a plan to be done when it becomes feasible and/or affordable.

The ADA laws are enforced by the Department of Justice (DOJ), and they are complaint driven (that is, they are not going from facility-to-facility to inspect for compliance). As we understand it, a Complainant would file an ADA complaint with the DOJ, and if a ruling is found in favor of the Complainant, then the usual resolution is for the facility to provide the accommodation. The other side of the enforcement side typically comes from the Building Departments in their review of "accessibility" to and through a facility (e.g., bathhouse) or into the amenity (pool/spa/wading pool) when reviewing building plans submitted by the facility, irrespective of the project. In those cases, the Building Department typically requires that 20% of the total project cost be committed to ADA accessibility compliance, and we believe that will likely hold true in affecting pools, wading pools, and spas.

For more information on this new ADA Regulation, or to schedule an appointment, please contact us directly at 703-968-8888, ext. 101, or email us at ADA@nvblu.com

We provide the following links to learn more about the new regulations:

www.access-board.gov/ada-aba/ada-standards-doj.cfm#recreation

www.ada.gov/regs2010/titleIII_2010/reg3_2010_appendix_b.htm

NSPF Letter on ADA Requirements for Swimming Pools