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Legislation increases aquatics opportunities for individuals with disabilities

by Monica Lepore, G. William Gayle, and Shawn Stevens


Federal legislation has mandated the demise of architectural barriers and has served as a catalyst for encouraging school and agency programming to accommodate all members of the community. In addition, legislation has created funding opportunities to subsidize local and state fiscal concerns for renovating existing structures and constructing new facilities. Individuals with disabilities not only are more visible but also are more vocal, as the laws have empowered them to make their own decisions and achieve greater independence. The motto "nothing about us, without us" has resulted in individuals with disabilities demanding more stringent laws and landmark access decisions. As accommodating people with disabilities is a rapidly developing area of the law, programs should seek professional advice as to current regulations and allowable exceptions.

Architectural Barriers Act of 1968 and Rehabilitation Act of 1973

In 1968, the U.S. Congress passed the Architectural Barriers Act (ABA), which required U.S. buildings and facilities to be accessible if they were designed, built, or altered with certain federal funds or if they were leased for occupancy by federal agencies (www.access-board.gov/ada-aba/index.htm). In 1973, section 504 of the Rehabilitation Act was enacted. It mandated that all programs and facilities receiving federal support must be made accessible to individuals with disabilities. Consequently, federally funded organizations removed architectural barriers to people with disabilities and the U.S. Architectural and Transportation Barriers Compliance Board developed accessibility codes. Many services became available for the first time to people with disabilities. For example, federally funded organizations made parking spaces, bathrooms, university classrooms, government offices, and recreational facilities accessible. Specific to aquatics, all federally funded facilities had to make their pools accessible through such means as hydraulic lifts or sloped entries (figure 1.4).

Individuals With Disabilities Education Act

The Individuals with Disabilities Education Act (IDEA) began as the Education for All Handicapped Children Act in 1975. This federal legislation continued the thrust of the ABA and the Rehabilitation Act in integrating individuals with disabilities into society. It mandated free and appropriate public education, including special education, in the least-restrictive environment. As stated in the U.S. Federal Register, a government publication that contains regulations pertaining to laws, special education is defined as instruction that is specially designed to meet the unique needs of children with disabilities. This instruction includes physical education. Physical education is defined as

(I) the development of: (A) physical and motor fitness; (B) fundamental motor skills and patterns; and (C) instruction in aquatics, dance, individual and group games, and sports (including intramural and lifetime sports). (Federal Register, 1977a)

Including aquatics in the definition of physical education provides schools with the option of including swimming in the curriculum for students with disabilities (figure 1.5) and gives families the right to access school swimming programs in which children without disabilities are granted instruction.

Another important aspect of this law is the Individualized Education Program (IEP), which helps to make a child’s education appropriate. This document, assembled by educators, related service professionals, and parents, plots the goals a student is expected to accomplish within the educational environment as well as the steps necessary to achieve these goals. Small group instruction, one-on-one assistants, and modifications to the general curriculum may be spelled out in the IEP. If aquatics is not specifically mentioned on the IEP, it is not a required school service.

It would be remiss to mention Public Law (PL) 94-142, the Education for All Handicapped Children Act, without discussing some of its important amendments and reauthorizations: PL 99-457, PL 101-476, PL 105-17, and PL 108-446 (Individuals with Disabilities Education Inprovement Act, or IDEIA). PL 99-457, the Education for All Handicapped Children Act (reauthorization of 1980), expanded the age range covered by the law from 3 to 21 to include infants and toddlers from birth to 3 years old. Accordingly, parents of young children with disabilities and personnel of early intervention programs may seek community aquatics programs as appropriate motor activities for young children. By becoming familiar with these laws, you can better meet the special needs of infants and toddlers with disabilities.

You should also be familiar with the Individualized Family Service Plan (IFSP), which was a result of PL 99-457. The IFSP contains individual goals, objectives, and methods for infants and toddlers with disabilities and their family and service providers. Some tips for working with children under 3 years old are given on page 63.

PL 101-476, IDEA, was enacted in 1990 as an amendment to the Education for All Handicapped Children Act. PL 101-476 changed the term handicapped to individuals with disabilities, added autism and traumatic brain injury as disability categories, and stressed the importance of transitional services within the IEP. Thus, the IEP must now include goals, objectives, and a plan for the transition into the community. This plan, called the Individualized Transition Plan, projects what skills participants should have when they leave the school. Transition refers to crossing the gaps (a) between infant, toddler, and preschool programs and school programs and (b) between high school programs and lifetime pursuits. As an aquatics instructor in a school or community facility, you might be called on to contribute to such a plan, especially for a young adult. Seize these opportunities whenever possible. After all, what better lifetime recreational pursuit is there than aquatics?

PL 105-17 and PL 108-446 were the IDEA amendments and reauthorizations of 1997 and 2004. PL 105-17 extended developmental delay to ages 3 to 9 years (you can now place preschool and elementary school children within this disability category rather than just infants and toddlers). PL 108-446 slightly modified the benchmark and objectives section of the IEP and emphasized that highly qualified professionals provide service to students with disabilities. It also added Tourette’s syndrome to the list of other health impairments for students who are considered to have a disability.

The laws thus far described in this section focused on school or federally funded programs and buildings. The Americans with Disabilities Act, described in the next section, has implications for all school and community, public, and private facilities that are open to the public.

Americans With Disabilities Act

The Americans with Disabilities Act (ADA), PL 101-336, was passed in 1990 and mandated the elimination of discrimination against 54 million American citizens with disabilities. Its standards are enforced by the federal government (Center for an Accessible Society, 2004). The ADA has widespread implications for almost every area of life in the United States, including recreation and aquatics. The law makes illegal all discrimination based on disability and provides for access to the goods and services of the United States. It covers employment, public services, transportation, public accommodations, services of private entities, telecommunications, and activities of state and local governments (www.usdoj.gov/crt/ada/ pubs/ada.txt). The section of the ADA dealing with public accommodations (Title III) has the greatest effect on aquatics participation by individuals with disabilities. The specific terminology and intent of Title III clearly apply to the aquatic realm. In the following sections, we’ll look closely at the specific terminology of this all-encompassing law and then summarize its minimum requirements.

Qualified Individual

The U.S. Congress adopted the definition of disability first used in the Rehabilitation Act of 1973 (Federal Register, 1991). The law defines a qualified individual as a person with a physical or mental impairment that substantially limits one or more of life’s major activities (www.ada.gov). Major life activities include self-care, manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Individuals with mobility or sensory impairments, mental retardation, and other mental and physical impairments as well as those with hidden disabilities such as diabetes, cancer, epilepsy, heart disease, mental illness, and HIV are all covered by this law. In addition, the law includes people who have a previous record of having an impairment (e.g., cancer in remission) and people perceived by others as disabled, such as those who are HIV positive but asymptomatic (Scott, 1990).

In Title III, a qualified person is one who meets the ADA definition of being a person with a disability and who has the prerequisite skills for participation in a given physical activity (Dummer, 2003a). An individual assessment of skills is the gold standard for determining who is a qualified person under Title III. Some experts use an informed consent document to advise participants of the risks of a physical activity if an individual assessment is impossible (Dummer, 2003a).

Reasonable Accommodation

Although reasonable accommodation is not firmly defined in the ADA, experts consider it to be an action that provides access to individuals with disabilities by modifying previous policies, procedures, and practices. The law specifically addresses discrimination in public accommodations and in services operated by private entities. An organization cannot exclude a person from participating in services, programs, or activities solely because of her disability. If the person is otherwise qualified for a reasonable accommodation, then an organization, school, place of business, or community agency must allow the individual access to the programs and facilities (Sullivan, Lantz, & Zirkel, 2000). The U.S. Supreme Court has interpreted reasonable accommodations as those that do not require organizations "to lower or to effect substantial modifications of standards to accommodate" students with disabilities (Southeastern Community College v. Davis, 1979, p. 413) and that do not "impose undue financial and administrative burdens or require a fundamental alteration in the nature of the program" (School Board of Nassau County v. Arline, 1987).

There are certain exceptions to having to provide reasonable accommodations that must be judged one case at a time. Some exceptions include the following:

  • When an individual does not meet the criteria of a qualified person with a disability
  • When an individual does not meet the qualifications to participate in the activity (i.e., a time cut in the swim trials)
  • When an individual’s participation creates reasonable probability of substantial risk to himself or others
  • When program modifications significantly alter the primary purpose of the set aquatics program (e.g., a competitive diving meet may not be able to reasonably accommodate a person with atlantoaxial instability, for whom diving is contraindicated)

Must-read materials on this subject include the article "Reasonable Accommodations for Swimmers with Disabilities" by Gail Dummer in Palaestra (Dummer, 2003a, pp. 44-45) and the article "Leveling the Playing Field or Leveling the Players? Section 504, the Americans with Disabilities Act, and Interscholastic Sports" in the Journal of Special Education (Sullivan et al., 2000).

The way to make modifications and reasonable accommodations depends on many variables, such as the specific disability issues for each person, the programs and facilities that the person wants to access, the amount of time given to make the accommodation, the dollar amount of the accommodation, and the amount of support in the program and facility administration. These variables may affect the method that a pool operator uses to make a change for a given participant, but the pool operator must make accommodations no matter what the variables.

The spirit of the ADA suggests that we should do what we can to allow people with disabilities to participate as much as possible in a given program while ensuring the safety of all participants and maintaining the intent of the program. The safety of all participants is an important concept in the aquatic realm. While some program accommodations might seem reasonable to a participant with a disability, a safety rule might prevent these accommodations. You need to judge whether the rule is for the actual safety of participants and cannot be modified or whether it is in place for crowd control. For example, a person who uses a prosthetic limb might want to remove her prosthesis in the locker room and then hop to the pool edge, but doing so would be a safety hazard because of wet pool decks. Making an accommodation such as providing a sitting bench close to the steps or poolside would allow this person to use her prosthesis while approaching the pool edge and it would also give her a place to keep it dry while she is swimming.

Sometimes the aquatics staff may be unsure of what to do about a request for an accommodation or may believe that the accommodation is unreasonable. The staff may feel that the participant is not appropriate for the program or class for which the accommodation is being requested due to a lack of prerequisites or that the request is outside of the realm of the class or program. An example of this is a person who has Down syndrome with atlantoaxial instability who wishes to dive but because of the instability in the cervical area of his neck is not allowed to dive. His family applied to a diving camp and asked for reasonable accommodations for the child. They stated that the child could learn the basics of the approach, hurdle, and streamlined entry with a jump. While the spirit of the ADA suggests that using a jump as a modification to a dive might be possible, an accommodation does not need to be made if it subverts the fundamental nature of the activity. Diving is diving, not jumping. In good faith, the child could be served if he understands that he is not allowed to dive, but as a person with cognitive involvement who may make a poor decision and try to dive from the board, it is not in his best interest to be at this camp.

Courts consider it discrimination to place a person in a segregated aquatics program based on her disability rather than on her ability. This means that a facility cannot offer a person with a disability only the segregated, adapted program. The segregated program may be the one that is chosen by the participant, caregivers, and aquatics instructor, but stereotyping an individual and forcing her to accept an adapted program is not permissible. One of the purposes of the ADA is to integrate individuals with disabilities into the mainstream of society. Therefore, the staff of each facility needs to assess program admission policies, looking for possible barriers to participation. Some examples of reasonable accommodations in aquatics programs include the following:

  • Providing flotation devices for individuals who cannot stand on the bottom of the pool while they wait for instructions during swim lessons (e.g., for people with paraplegia or dwarfism)
  • Allowing a person who has a urine bag to wear long, baggy shorts over the swimsuit to avoid embarrassment
  • Allowing an aide to participate, at no additional cost, with an individual who needs support
  • Providing a water chair and incorporating arm movements into water aerobic classes for people with lower-body impairments
  • Designating an area on deck for guide dogs, crutches, wheelchairs, and other mobility equipment
  • Installing nonskid carpet from the shower area to the pool ladder for individuals who need such help for balance, crutch traction, orientation, or mobility
  • Providing auxiliary aids and services, such as alternative formats (e.g., braille, computer disk), for registrations, handouts, and certificates
  • Providing family and caregiver restrooms and changing areas for caregivers of the opposite gender so that they are able to provide assistance
  • Removing requirements that discriminate, such as a height requirement of being able to stand on the bottom of the pool, which individuals who use wheelchairs or have dwarfism may not be able to meet

It is not acceptable to claim the inconvenience or inaccessibility of a facility as an inhibitor to participation. You cannot claim that a program is unavailable because the staff is untrained. Further, your program must avoid barriers of omission, or overlooking the special needs of certain individuals. An example of omission is circulating a program flyer that does not include accessibility information and therefore will not attract individuals with disabilities. The ADA supports that a program should have an attitude of accessibility and should seek knowledge of how to serve individuals with disabilities.

Undue Hardship

An undue hardship defines situations in which trying to accommodate an individual or to provide general access would lead to profound costs or difficulty for an organization in respect to its size and financial resources. A small nonprofit organization, for example, might have such a narrow pool deck that it cannot fit a transfer lift into the area to make it accessible. To make the necessary accommodations, this organization would need to build a new addition, knocking down the wall to extend the deck. The organization may, in this case, plead undue hardship, although "federal tax credits and deductions are available to private entities for architectural barrier removal in existing facilities. Federal funds are also available through the Community Development Block Grant Program to remove barriers in existing facilities. Entities requesting guidance on their obligations for existing facilities should contact the Department of Justice" (www.access-board.gov). Organizations that believe that their financial situation would be overwhelmed by the cost of complying with the law can apply for an exception to the law and show how the modifications pose an undue financial burden. In many cases, however, organizations can make reasonable accommodations.

Readily Accessible

The ADA law uses the phrase readily accessible to describe a facility that is easily and immediately usable-in other words, a facility in which a person with a disability can move around and use well (Scott, 1990). A readily accessible aquatics facility is one that already has ample parking for people with disabilities, an easily identifiable route into the facility, pools with handrails and ramps, braille signs, family restrooms, and usable lifts or movable pool floors.

Readily Achievable

Readily achievable refers to the ease with which a facility can remove a barrier. If the barrier can be removed easily, it is considered readily achievable. Examples of readily achievable modifications that an aquatics facility can make include removing bolted-down benches and lowering hooks in locker rooms, purchasing a Transfer Tier for getting into the pool, printing aquatics manuals in braille, removing concrete door risers between shower and locker areas, and removing footbath or water-collection troughs on decks or in showers.

Minimum Requirements

The ADA has changed the face of architecture in the United States and has allowed persons with disabilities to access previously inaccessible areas and programs. So why are there still questions about what the ADA does and does not mandate after years of its existence? It is because every facility has its own unique issues. The ADA standards of 2004 eliminated some of the uncertainty that surrounded what is and what is not accessible in relation to pools. These new amendments to the original guidelines include specifics for swimming pools, wading pools, and spas.

The ADA Accessibility Guidelines (ADAAG) set the standard that is applied to buildings and facilities. They address only the built environment (structures and grounds). Reasonable accommodation in operational issues, procedures, and policies is not addressed in the ADAAG, but is a more nebulous area that relies on the spirit of the law and is not written in black and white. Best practice emerges from possible court decisions and standard of care in relation to health and safety practices. Program issues revolve around what is reasonable in reasonable accommodations, which is what the law intends for public accommodations in your aquatics facility. While the law attempts to level the playing field for persons with disabilities, providing them with equal accessibility to (in our case) aquatics programs, what is reasonable may differ from pool to pool, depending on the program. However, the ADA asks us to adapt our policies, facilities, and programs so that people with disabilities can participate with people without disabilities in mainstream American life.

To meet all pertinent legislation, where should you start? The first item on your list of things to do is to obtain a copy of Accessible Swimming Pools and Spas: A Summary of Accessibility Guidelines for Recreation Facilities, a manual published by the United States Access Board (2003). You may either download it (www.access-board.gov) or send for it by mail (1331 F Street NW, Suite 1000, Washington, DC 20004-1111). This manual will guide you through the specific guidelines that were published in the Federal Register at 67 FR 56352 on September 3, 2002, and summarizes the applicable issues published later in the July 23, 2004, Federal Register. The accessibility guidelines are for newly constructed and altered recreation facilities, including swimming pools, wading pools, and spas. The manual also includes information on wave-action pools, leisure rivers, and sand-bottom pools. For a summary of these minimum requirements, see the sidebar Accessibility Guidelines for Swimming Pools on this page.

You may be wondering how much a pool has to be altered in order for the work to be deemed an alteration by the ADA. Alterations are changes that affect the usability of a pool and are not just "safe maintenance" type of work (Peggy Greenwell, personal communication, April 26, 2004). The Access Board addresses the issue of accessibility for existing recreation facilities on its Web site (www.access-board.gov/recreation/final.htm) and in the Federal Register dated September 3, 2002. In summary, Title II of the ADA obliges state and local governments providing recreation facilities and Title III obliges private entities providing recreation facilities to remove architectural barriers in existing facilities where it is readily achievable. Existing pools have an obligation to the U.S. Justice Department to remove barriers over time to provide access.

 

This is an excerpt from Adapted Aquatics Programming, Second Edition.

 




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