January 2, 2012

ADA Compliance: What's the Big Deal About March 15, 2012?

When the U.S. Department of Justice adopted the 2010 ADA Standards for Accessible Design, there set into motion much information and MISinformation regarding compliance with the new standards. At NCA, we see a lot of marketing literature for "accessible" products and services. Recently there has been an influx of marketing to the parks and recreation field with misleading assertions about compliance with the new standards. Here is but one example aimed at aquatic facilities:

"Dear [Director]...Are you aware that as of March 15, 2011 the Department of Justice has adopted revised ADA Standards that effect Swimming pools, wading pools and Spas? The Department of Justice can impose fines of up to $110,000.00 and force you to comply if complaints are made, you may also be sued by individuals. Why take that chance, allow us the opportunity to bring you into compliance."

Here's some more information for you, the consumer, to use as you're wading through product literature with new claims about ADA compliance.

First, March 15, 2011 was the date designated by DOJ for the revisions to the Title II and Title III regulations to take effect. The update to the regulatory language included expanded the definition of service animals, wheelchairs and other power-driven mobility devices along with addressing other policy issues such as ticketing. At this 2011 date, DOJ also gives entities covered by Title II and Title III the option to begin using the new accessibility standards for new construction and alterations to existing facilities.

March 15, 2012 is designated by DOJ as the compliance date where all entities covered by Title II and Title III must use the new (2010) accessibility standards. This means all new construction and alterations to existing facilities should begin utilizing the new standards. Of special note to the park and recreation industry, Chapter 10 of the new standards includes technical provisions for amusement rides, swimming pools, golf courses, boating facilities, fishing piers, and playgrounds. This date is important to the recreation industry as it marks a new era – for the first time since the passage of the ADA more than 20 years ago, we have accessibility standards specific to the unique features for recreation facilities. This 2012 compliance date does NOT mean that all existing facilities have to conform to the new standards immediately or by March 15. Adherence to the new standards is triggered for all new construction covered by Title II and Title III. ALL new construction of these types of recreation facilities must begin using the new 2010 standards. The triggers for existing facilities are a little different. Remember, there is no "grandfather clause" under the ADA. Facilities are not "grandfathered" into compliance. We simply view exisitng facilities differently based upon 1) whether they are undergoing alteration or 2) if physical or communication barriers exist to the program, good, service, or activity offered at the facility. If any type of rennovation or alterations is being made to the existing facility, the alterations must follow the new 2010 ADA Standards. Now....here is where it gets cloudy....for Title II entities (public entities of state and local government)—are there barriers to your programs offered at the facility? These barriers, like lack of access to the fishing pier, golf course, playground or swimming pool, should be identified in your Transition Plan and prioritized for barrier removal as an active means to achieve the Program Access (28 CFR 35.149-35.150) standard under Title II. For Title III entities (public accommodations) barriers to goods, services and activities should also be identified and prioritized as part of the Readily Achievable standard (28 CFR 36.304).

So does this mean I need to get lifts for all my swimming pools by March 15, 2012?

No....but.... The new standards trigger access 1) if you are building a new pool or 2) making an alteration to an exisiting pool. In those first two cases you would need to provide a primary means of access to the swimming pool – either a pool lift or sloped entry.

And here's the BUT.....say you have an existing facility, but no alterations/rennovations planned. Are there barriers to participation by people with disabilities? Can a person with a disability enter/exit the swimming pool by an accessible means? You still have a proactive responsibility under the Program Access standard to remove barriers and make your programs, services and activities accessible. So if you don't currently have access into your swimming pool, that barrier should be indentified in your Transition Plan and prioritized for corrective action. Remember, transition planning under the ADA is an active responsibility until such time that you have removed all physical and communication barriers to programs, services and activities for people with disabilities.

Confused? No problem. Feel free to give NCA a call. Our accessibility specialists on staff would be happy to answer your questions and discuss practical approaches to transition planning to improve access. While March 15, 2012 is just around the corner, it doesn't have to be a cause for alarm. Instead it should be viewed as an opportunity to look at the "big picture" and status of accessibility for your recreation facilities. Where are they at in terms of access? What barriers still exist? What plans can we put into place to continue efforts towards barrier removal and achieving total program access?