General Issues

General issues pertaining to the application of the play area guidelines are discussed below. The specific provisions of the guidelines are discussed under the Section-by-Section Analysis.

Child Care Facilities

Comment. The National Child Care Association (NCCA) questioned the estimated cost impact of the play area guidelines on child care facilities. NCCA claimed that the cost would be prohibitive for child care facilities. Child care providers who testified at the public hearing in Denver reiterated NCCA's concerns and noted that the guidelines would have the greatest impact on family child care providers. NCCA requested that carrying and lifting children on play areas be permitted as "alternative accessibility" or "equivalent facilitation," or that play areas in child care facilities for children ages 5 and under be exempted from the guidelines.

Response. NCCA was a member of the regulatory negotiation committee that reached consensus on the play area guidelines. The regulatory negotiation committee discussed various issues associated with play areas within child care facilities at great length. The regulatory negotiation committee limited application of the guidelines to play areas designed and constructed for children ages two and over. The regulatory negotiation committee also included provisions in the guidelines to address concerns related to smaller facilities, including child care facilities. For example, transfer systems are permitted instead of ramps to provide access to composite play structures with less than 20 elevated play components. Accessible routes at ground level are permitted to be 44 inches minimum wide, instead of 60 inches minimum wide, in play areas with less than 1,000 square feet. These provisions lessen the cost impact of the guidelines on smaller facilities.

For the NPRM, it was estimated that there would be no cost impact on child care facilities. This estimate was based on several assumptions. First, it was assumed that all child care facilities would have small play areas. The economic assessment for the NPRM used a model of a small play area to represent play areas typically found in child care facilities. The model included two separate play areas totaling 920 square feet: one for infants and toddlers under age two, which is not covered by the guidelines; and one for pre-school children ages two through five, which is covered by the guidelines.(10) The play area for the pre-school children included a composite play structure with 4 elevated play components on a single deck, 4 ground level play components, and a moveable play activity. The economic assessment assumed that, in the absence of the guidelines, if such a play area was designed and constructed in the future, it would have a transfer platform and steps that would make the composite play structure accessible.(11) Thus, the guidelines would not have any cost impact on the composite play structure. The economic assessment also assumed that, in the absence of the guidelines, the play area would have a ground surface of engineered wood fiber, or a combination of rubber and loose fill materials that would provide an adequate accessible route to the composite play structure and to a sufficient number of ground level play components. Thus, the guidelines would not have any cost impact on the ground surface.

NCCA claimed that play areas in child care facilities are much larger than the model used in the economic assessment because most States require child care facilities to provide more than 1,000 square feet of play space. The Access Board has reviewed each State's licensing requirements for child care facilities. About two-thirds of the States require that a minimum of 50 square feet to 75 square feet of play space be provided for each child. (12) However, the State requirements are expressed generally in terms of "play space," not "playgrounds." The Access Board contacted over 125 child care facilities around the country and found that most of their playgrounds have 4 to 7 play components (the average number of play components was 4.7 components). Furthermore, all the children enrolled in a child care facility do not use the playground at the same time, but rather the children use the playground in smaller groups. Play area equipment catalogues show designs similar to the model used in the economic assessment for pre-school children. This additional information supports the assumption made in the economic assessment regarding the size of play areas and number of play components in child care facilities. (13)

Based on comments from child care facilities, the assumption made in the economic assessment for the NPRM regarding the type of ground surface materials used for play areas in child care facilities has been changed. For the final rule, the economic assessment assumes that, in the absence of the guidelines, the ground surface material will be a loose fill such as sand or wood chips. The cost difference between using loose fill and engineered wood fiber is $300 to $950, and the cost difference between using loose fill and a combination of rubber and loose fill is $946 to $2,215. When maintenance costs for the various ground surface materials are factored in, the cost difference over a fifteen year life cycle range from a cost savings of $190 to a cost increase of $460 for engineered wood fiber, and from a cost savings of $260 to a cost increase of $1,000 for a combination of rubber and loose fill. These cost savings or cost increases are not prohibitive. Additionally, small businesses that have revenues of $1 million or less, or 30 or fewer full-time workers are entitled to a 50 percent tax credit for expenses to remove architectural barriers in their facilities, up to a maximum expenditure of $10,250; and a tax deduction of $15,000 a year is also available for architectural barrier removal, regardless of business size.(14) Child care facilities that remove architectural barriers in their existing play areas by replacing loose fill with accessible ground surfaces and by providing ramps and transfer systems to composite play structures may use the tax credit and tax deduction in combination. In addition, federal funds are available through the Community Development Block Grant Program to remove architectural barriers in existing facilities. (15) State and local governments may use these funds to remove architectural barriers in existing play areas in publicly operated and privately operated child care facilities.

It has been a long standing interpretation of civil rights laws for individuals with disabilities that carrying and lifting are ineffective and unacceptable methods for providing accessibility, and thus NCCA's request in this regard cannot be accepted. (16) Challenge and skill development are both a part of the play experience, and children with disabilities are capable of enjoying this experience.

An exception has been added to the final rule that exempts family child care facilities where the proprietor actually resides from the play area guidelines. These family child care facilities are located in private homes. State licensing requirements generally set a maximum capacity of 12 children for these home based child care facilities and they usually care for a smaller number of children. There are important differences, besides size, between home based child care facilities and center based child care facilities. Center based child care facilities typically purchase public playground equipment costing an average of $7,000, for which accessible products are available. Family child care facilities on the other hand typically purchase home playground equipment costing from $100 for a simple swing set to $1,000 for more elaborate systems, for which accessible products may not be readily available. Family child care facilities place the playground equipment in the front or back yards of their homes, which typically consist of grass or dirt and may not provide the types of ground surfaces used at public playgrounds. The cost of providing ground surfaces complying with the play area guidelines could far exceed the cost of purchasing home playground equipment and result in the home owner deciding not to provide any playground equipment or to purchase moveable playground equipment, which would not be covered by the guidelines.

Family child care facilities must still comply with all the other requirements of the ADA, including the general obligation to provide equal opportunity to individuals with disabilities to enjoy the services of their facilities and to remove architectural barriers in existing facilities where it is readily achievable (i.e., easily accomplishable and able to be carried out without much difficulty or expense). (17)

Amusement Attractions

Comment. The International Association of Amusement Parks and Attractions (IAAPA) requested that amusement attractions and amusement rides be exempt from the play area guidelines.

Response. An exception has been added to the final rule that exempts amusement attractions located in amusement parks and theme parks from the play area guidelines, except the provisions for soft contained play structures. The exception is limited and applies to amusement attractions such as fun houses and barrels. If an amusement park or theme park has an eating place or picnic area that provides commonly used playground equipment, the playground equipment is not considered an amusement attraction and must comply with the play area guidelines.

Amusement attractions are not exempt from the other provisions of ADAAG. For example, assembly areas with fixed seats where entertainment is provided must provide wheelchair seating spaces complying with ADAAG 4.33 (Assembly Areas). Amusement attractions which have unique designs and features that are not adequately addressed by ADAAG must comply with ADAAG to the extent possible. Where ADAAG cannot be fully applied to amusement attractions, operators of amusement parks and theme parks are still subject to all the other requirements of the ADA, including the general obligation to provide individuals with disabilities an equal opportunity to enjoy the goods and services provided by their facilities.

The play area guidelines do not apply to amusement rides. The NPRM on recreation facilities proposed to add scoping and technical provisions to ADAAG for amusement rides.(18)

Comment. IAAPA also claimed that the play area guidelines conflict with a Department of Justice regulation for title III of the ADA, which provides that public accommodations are not required to alter their inventory to include accessible or special goods that are designed for individuals with disabilities, such as books in alternate formats (e.g., Braille or audio tape), closed-captioned videotapes, specially sized or designed clothing, and special foods to meet particular dietary needs. (19)

Response. The Department of Justice regulation referenced by IAAPA applies to retail merchandise sold by public accommodations, and not to the design, construction, or alteration of facilities. Amusement rides are not retail merchandise. The regulation does not limit the other requirements of the ADA, including the requirement that new construction and alterations of facilities be readily accessible to and usable by individuals with disabilities.

Water Play Components

Comment. Commenters requested that the play area guidelines address water play components. Water play components incorporate water into the play experience. Water play components may be stand alone or part of a composite structure, and may be located in shallow water or pools.

Response. With regard to water play components located in shallow water or pools, the NPRM on recreation facilities requested additional information on those water play components. (20) Water play components located in shallow water or pools will be addressed in the final rule on recreation facilities.

With regard to water play components not located in shallow water or pools, the play area guidelines apply to these water play components. Where these water play components are located at the ground level, the provisions for ground level play components apply, including locating one of each type on an accessible route. Where these water play components are elevated, the provisions for elevated play components apply.

Unique Play Areas

Comment. Commenters requested clarification regarding application of the guidelines to play areas with unique designs and features. They provided examples of children's gardens, challenge courses, rock climbing walls, and tree houses. A manufacturer of interactive play systems claimed that the scoping and technical provisions were not appropriate for its play areas.

Response. A play area is a portion of a site containing play components designed and constructed for children. Play components are defined broadly to include elements intended to generate specific opportunities for play, socialization, or learning. Play components may be manufactured or natural. The scoping and technical provisions of the play area guidelines were developed to address commonly used playground equipment and structures. There will be play areas that have unique designs and features which are not adequately addressed by the guidelines. In those situations, the play area guidelines and the rest of ADAAG are to be applied to the extent possible. An accessible route must be provided to the play area. Where there are multiple play components, the scoping provisions for ground level and elevated play components are to be used to determine how many play components must be located on an accessible route. Where a play area has unique features for which there are no applicable scoping provisions, then a reasonable number, but at least one, of the features must be located on an accessible route. Where there are appropriate technical provisions, they must be applied to the elements that are covered by the scoping provisions. Where a play area has unique designs for which the technical provisions are not appropriate, the operators of those play areas are still subject to all the other requirements of the ADA, including the general obligation to provide individuals with disabilities an equal opportunity to enjoy the goods and services provided by their facilities. (21)

Interactive play systems include a wide variety of structures. Some are similar to commonly used playground equipment and soft contained play structures, and can comply with applicable provisions of the play area guidelines. Others include water play components located in shallow water or pools. As discussed above, water play components located in shallow water or pools will be addressed in the final rule on recreation facilities. Still others are multi-level indoor structures that are supervised. Platform lifts may provide an appropriate design solution to provide access to those structures.

Alterations and Additions

Comment. Commenters requested clarification regarding how the play area guidelines apply to alterations, especially where play components are replaced in existing play areas and the existing ground surface is not accessible.

Response. ADAAG 4.1.6 (Accessible Buildings: Alterations) contains general scoping provisions relating to alterations. ADAAG 4.1.6(1)(b) provides that when an existing element or space is altered, the altered element or space must comply with the applicable provisions for new construction. If it is technically infeasible for the altered element or space to fully comply with the applicable new construction provisions, ADAAG 4.1.6(j) requires that the alterations provide for accessibility to the maximum extent feasible.

ADAAG 4.1.6(1)(b) also provides that when the applicable provisions for new construction require that an element or space be located on an accessible route, the altered element or space is not required to be located on an accessible route, unless required by ADAAG 4.1.6(2) (Alterations to an Area Containing a Primary Function). ADAAG 4.1.6(2) provides that, when an area containing a primary function is altered, an accessible path of travel must be provided to the altered area unless the cost and scope of alterations to provide an accessible path of travel is disproportionate to the overall alterations as determined under criteria established by the Department of Justice. The Department of Justice regulations for title III of the ADA deem alterations to provide an accessible path of travel disproportionate when the cost exceeds 20 percent of the cost of the overall alterations. (22)

When play areas are altered, the provisions of ADAAG 4.1.6 apply. For example, the swings are replaced in an existing play area that has a sand ground surface. The sand does not have to be replaced with an accessible surface to provide an accessible path of travel to the swings if the cost of altering the ground surface exceeds 20 percent of the cost of replacing the swings. An exception has been added to the final rule to clarify the application of ADAAG 4.1.6 to this situation. The exception is limited to alterations where the play components are altered, but the ground surface is not altered. An accessible ground surface does not have to be provided, unless required by ADAAG 4.1.6(2) (i.e., the ground surface does not have to be altered if the cost exceeds 20 percent of the cost of replacing the play components). The exception exempts operators from having to provide an accessible ground surface not only for accessible routes, but also for clear floor or ground spaces and maneuvering spaces adjacent to the altered play components since it would not be practical to provide discrete spaces of accessible ground surfacing without connecting the spaces with an accessible route. (23)

Normal maintenance activities performed on play areas such as replacing worn ropes or topping off ground surfaces are not considered alterations. However, if the entire ground surface is replaced, the ground surface must comply with the play areas guidelines and provide an accessible route to the required number and types of ground level play components and composite play structures. Replacing the entire ground surface would not require an additional number or types of ground level play components to be added, if there was not a sufficient number or types provided to comply with the guidelines prior to the alterations, nor would it require alterations to composite play structures that were not otherwise planned.

Comment. Commenters also requested clarification regarding how the guidelines apply to play areas designed and constructed in phases over several years.

Response. A provision has been added to the final rule to clarify that where play areas are designed and constructed in phases, the guidelines are to be applied so that when each successive addition is completed, the entire play area complies with all applicable provisions of the guidelines. For example, a play area is built in two phases. In the first phase, there are10 elevated play components; and 10 elevated play components are added in the second phase for a total of 20 elevated play components. When the first phase is completed, at least 5 elevated play components must be located on an accessible route, and at least 3 ground level play components, including at least 3 different types, must be provided on an accessible route. When the second phase is completed, at least 10 elevated play components must be located on an accessible route, and at least 7 ground level play components, including 4 different types, must be provided on an accessible route. Ramps must be used to connect at least 5 of the elevated play components and transfer systems are permitted to be used to connect the rest of the elevated play components required to be located on an accessible route.

Where ground level play components are added in phases, the additional ground level play components do not have to be located on an accessible route if the at least one of each type requirement is met and a sufficient number and types of ground level play components are provided on an accessible route based on the number of elevated play components. For example, a newly constructed play area has two spring rockers and one of the spring rockers is located on an accessible route. Two more spring rockers are later added to the play area. An accessible route is not required to connect to the additional spring rockers, provided that a sufficient number and types of ground level play components are provided on an accessible route based on the number of elevated play components.