28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

Play areas. (Section-by-Section Analysis)

Sections 206.2.17, 206.7.8, and 240.1 of the 2004 ADAAG provide a detailed set of requirements for newly constructed and altered play areas.  At least one ground level play component of each type provided (e.g., for different experiences such as rocking, swinging, climbing, spinning, and sliding) must be accessible and connected to an accessible route.  In addition, if elevated play components are provided, entities must make at least fifty percent (50%) of the elevated play components accessible and connect them to an accessible route, and may have to make an additional number of ground level play components (representing different types) accessible as well.  There are a number of exceptions to the technical specifications for accessible routes, and there are special rules (incorporated by reference from nationally recognized standards for accessibility and safety in play areas) for accessible ground surfaces. Accessible ground surfaces must be inspected and maintained regularly and frequently to ensure continued compliance.

The Department is concerned about the potential impact of these supplemental requirements on existing play areas that are not otherwise being altered.  Consequently, the Department is proposing several specific provisions and posing additional questions in an effort to both mitigate and gather information about the potential burden of the supplemental requirements on existing facilities.

State and local governments may have already adopted accessibility standards or codes similar to the 2004 ADAAG requirements for play and recreation areas, but which might have some differences from the Access Board's guidelines.

Question 30:  The Department would welcome comment on whether there are state and local standards specifically regarding play and recreation area accessibility.  To the extent that there are such standards, we would welcome comment on whether facilities currently governed by, and in compliance with, such state and local standards or codes should be subject to a safe harbor from compliance with applicable requirements in the 2004 ADAAG.  We would also welcome comment on whether it would be appropriate for the Access Board to consider implementation of guidelines that would permit such a safe harbor with respect to play and recreation areas undertaking alterations.

Question 31:  The Department requests public comment with respect to the application of these requirements to existing play areas.  What is the "tipping point" at which the costs of compliance with the supplemental requirements for existing play areas would be so burdensome that the entity would simply shut down the playground?

The Department notes that section 240.1 of the 2004 ADAAG specifies that play areas located in family child care facilities where the proprietor actually resides are exempt from the scoping and technical requirements for play areas.  Thus, such family child care facility owners have no obligation to make similar changes for their existing facilities for purposes of barrier removal.    According to the Access Board, these family child care facilities are typically located in private homes, serve a relatively small number of children (usually no more than twelve) at any given time, and install simple and inexpensive playground equipment for which accessible products are less likely to be readily available.  For such facilities, moreover, the cost of providing an accessible ground surface could far exceed the cost of the equipment itself, increasing the likelihood that the home owner will simply decide not to provide any playground equipment.  While this exception may limit the accessibility of play areas in home-based child care facilities, such facilities would remain subject to the ADA's general requirement to ensure that individuals with disabilities have an equal opportunity to enjoy the services of their facilities.

The Department proposes to add § 36.304(d)(4)(i) to provide that, for purposes of the readily achievable barrier removal requirement, existing play areas that are less than 1,000 square feet in size are exempt from the scoping and technical requirements for play areas in the 2004 ADAAG found in § 240 of the proposed standards.  The Department selected this size based on the provision in § 1008.2.4.1 of the 2004 ADAAG, Exception 1, permitting play areas less than 1,000 square feet in size to provide accessible routes with a reduced clear width (44 inches instead of 60 inches).  In its 2000 regulatory assessment for the play area guidelines, the Access Board assumed that such "small" play areas represent one hundred percent (100%) of the play areas located in restaurants, the largest proportion (between sixty to eighty percent (60-80%)) of the play areas located in hotels and day care facilities, and about twenty percent (20%) of the play areas located in schools.  (The Access Board assumed that play areas in city and state parks are typically larger than 1,000 square feet.)  If these assumptions are correct, the proposed exemption would have the greatest impact upon existing play areas located in restaurants, hotels, and day care facilities and would have relatively little impact on existing play areas located in schools or parks.

Question 32:  The Department would like to hear from public accommodations and individuals with disabilities about the potential effect of this approach.  Should existing play areas less than 1,000 square feet be exempt from the requirements applicable to play areas?

The Department also proposes to add § 36.304(d)(3)(i) to provide that, for purposes of the readily achievable barrier removal requirement, existing play areas will be permitted to meet a reduced scoping requirement with respect to their elevated play components.  Elevated play components are play components that are approached above or below grade and that are part of a composite play structure consisting of two or more components that are attached or functionally linked to create an integrated unit providing more than one play activity.  The proposed standards provide that a play area that includes both ground level and elevated play components must ensure that a specified number of the ground level play components and at least fifty percent (50%) of the elevated play components are accessible.

Many commenters advised the Department that making elevated play components accessible in the barrier removal context would exceed what is readily achievable for most facilities. Given the nature of the element at issue, retrofitting existing elevated play components in play areas to meet the scoping and technical specifications in the alteration standard would be difficult and costly, and in some instances, infeasible.  In response to expressed concerns, the Department proposes to reduce the scoping for existing play areas undertaking barrier removal by permitting entities to substitute ground level play components for elevated play components.  Entities that provide elevated play components that do not comply with the 2004 ADAAG section 240.2.2 would be deemed in compliance with their barrier removal obligations as long as the number of accessible ground level play components is equal to the sum of (a) the number of ground level play components required to comply with the 2004 ADAAG section 240.2.1 (as provided by Table 240.2.1.2, but at least one of each type) and (b) the number of elevated play components required to comply with the 2004 ADAAG section 240.2.2 (namely, fifty percent (50%) of all elevated play components).  In existing play areas that provide a limited number of ground level play components, qualifying for this exception may require providing additional ground level play components.

While this provision may result in less accessibility than the application of the alteration standard where readily achievable, public accommodations will likely be more willing to voluntarily undertake barrier removal measures in play areas if they anticipate that compliance will be straightforward and readily achievable in most instances.  In addition, for existing play areas with limited resources, it will often be more efficient to devote resources to making the ground surface of the play area accessible, which is necessary to provide an accessible route to any play components.  Reduced scoping for elevated play components could also minimize the risk that covered entities will delay compliance, remove elevated play components, or simply close the play area.  It also provides a bright-line rule for which compliance can be easily evaluated.

Question 33:  The Department would like to hear from public accommodations and individuals with disabilities about the potential effect of this approach.  Should existing play areas be permitted to substitute additional ground level play components for the elevated play components it would otherwise have been required to make accessible?

Question 34: The Department would welcome comment on whether it would be appropriate for the Access Board to consider implementation of guidelines for play and recreational facilities undertaking alterations that would permit reduced scoping of requirements or substitution of ground level play components in lieu of elevated play components, as the Department is proposing with respect to barrier removal obligations for certain play or recreational facilities.

The Department is also considering reducing the scoping for sites with multiple existing play areas designed for the same age group.  Where separate play areas are provided within a single site, even if each play area serves the same age group and provides the same types of play components, the 2004 ADAAG would require each play area to comply.  In existing facilities that are not being altered, where multiple play areas designed for a particular age group are provided, the Department is considering requiring only one play area to be made accessible.

Question 35:  Should the Department require only one play area of each type to comply in existing sites with multiple play areas? Are there other select requirements applicable to play areas in the 2004 ADAAG for which the Department should consider exemptions or reduced scoping?