Sunday, May 20, 2012

DOJ Extends Deadline for Pool-Access Compliance Until January 31, 2013

Tomorrow's Federal Register will contain a final rule delaying the date by which existing swimming pools must comply with the new accessibility requirements until January 31, 2013.  The final rule is a curious document, to be sure.  It actually does a quite effective job of explaining why the hotel industry's arguments for an extension make no sense.  See, for example, the following excerpts:

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, (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 stated that the ADA Standards did not apply to freestanding (e.g., non-fixed, moveable, or portable) equipment.  
* * * 
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. 
* * * 
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.
Nonetheless, the rule states that DOJ has decided to grant an extension largely because the hotel industry was mistaken in those very respects:

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 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. 

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