“…the Medicare Secondary Payer and Workers’ Compensation Settlement Agreements Act of 2012…deals only with workers’ compensation claims, and seeks to establish clear and consistent rules for workers’ compensation set-asides for claimants covered by Medicare…”
“…The Strengthening Medicare and Repaying Taxpayers Act…deals with issues related to the Medicare Secondary Payment Act. Specifically, it deals with mandates for providing timely information on conditional payments, penalties and statutes of limitations when claims are reported to the Centers for Medicare and Medicaid Services by insurers and self-insured and third-party payers on no-fault auto-insurance claims, workers’ compensation claims, and claims under liability insurance…”
Insurance and related industries are seeking to win support in the waning days of the current Congress for two pieces of legislation dealing with payment of injured worker claims to people whose primary insurance is Medicare. Officials of both the American Insurance Association and the Property Casualty Insurers Association of America are urging action on the bills this year.
Nathaniel Wienecke, PCI senior vice president, Wednesday asked officials of the Senate Finance Committee and the House Ways and Means Committee if it could act on the bill this year.
Currently, workers’ compensation claims that overlap with Medicare coverage are subject to lengthy, cumbersome review by the Centers for Medicare and Medicaid Services to establish the proper “set-side” coverage amounts for future medical expenses, according to PCI officials.
For more: http://www.propertycasualty360.com/2012/12/14/insurance-reps-push-for-action-on-medicare-seconda?t=commercial
“…(the State of Oregon) decided to remove the bare-hand contact prohibition from the proposed rules because this issue needs further discussion…the group will convene multiple times over the next few months. The state will continue to enforce its double hand-washing rule for food servers until any changes are announced…”
The Oregon Health Authority is shelving its proposed rule mandating that restaurant workers not prepare food with their bare hands. State health officials have decided to convene a work-group on standards to prevent food-borne illness. The group will work toward a substitute to the so-called “no bare hand contact” rule originally proposed by the Health Authority.
That provision was to take effect on July 1, but was delayed after protests from the food service industry. The work group will include restaurateurs, legislators, medical professionals and others.
Gail Shibley, the administrator of the OHA’s Public Health Division, said her agency is looking for diverse opinions. “We think we can get the wisdom from restaurateurs as well as a variety of other folks to really dig into the details of this specific provision, and move forward at a later date,” she said.
For more: http://www.mailtribune.com/apps/pbcs.dll/article?AID=/20120713/NEWS07/120719990/-1/NEWSMAP
”…(without) written ADA and local accessibility policies and procedures for your hotel or timeshare property, then you are taking unnecessary risks…New Guest Room Requirements for Mobility and Communication Features requirements apply to new and altered public accommodations…”
What Can You Do to Avoid Liability?
- Training – Training is critically important, and it can help prevent expensive litigation. Thought must go into the preparation of an accessible room, and the approach must be different depending on the disability of the individual who has booked the room. JMBM performs site inspection surveys and works with hotel operators to train the staff to address the needs and concerns of individuals with disabilities.
- ADA Surveys/Site Inspections - Even if you own or operate a newly constructed property, an ADA Survey will likely reveal areas of non-compliance and rooms for improvement in policies and procedures. By working with a CASp (Certified Access Specialist program) certified consultant, you may enjoy certain protections against liability while you seek to bring your property into compliance.
- Website Accessibility - This is an area of focus for the Department of Justice. This area is evolving, but your website must already comply with all current reservation requirements.
For more: http://hotellaw.jmbm.com/2012/05/ada_compliance_panel.html
- What is the effective compliance date of the ADA standards for accessible pools? The effective date of the 2010 Standards generally is March 15, 2012. However, and in response to public comments and concerns, the Department has extended the date for compliance for the requirements related to the provision of accessible entry and exit to existing swimming pools, wading pools, and spas to January 31, 2013.
- What does the ADA require for accessibility of pools?Title III of the ADA prohibits discrimination on the basis of disability by places of public accommodation, including many private businesses. Title III requires newly constructed and altered business facilities to be fully accessible to people with disabilities, applying the ADA Standards for Accessible Design. In addition, Title III requires businesses to remove accessibility barriers in existing facilities when doing so is readily achievable.The 2010 Standards require that newly constructed or altered swimming pools, wading pools, and spas have an accessible way for people with disabilities to enter and exit the pool. The Standards also provide technical specifications for when a means of entry is accessible, such as, for pool lifts, the location, size of the seat, lifting capacity, and clear floor space. You can see the 2010 ADA Standards at http://www.ada.gov/2010ADAstandards_index.htm.For existing swimming pools built before the effective date of the new rule, the 2010 Standards provide the guide for achieving accessibility. However, full compliance may not be required in existing facilities (see question 4).The 2010 Standards explain whether a newly constructed or altered pool needs to have one or two accessible means of entry and exit. Section 242 provides that large pools (pools with 300 linear feet of pool wall or more) must have two accessible means of entry and exit. One means of entry/exit must be a fixed pool lift or sloped entry; the other entry can be a transfer wall, transfer system, or pool stairs. Small pools (pools with less than 300 linear feet of pool wall) must provide at least one accessible means of entry/exit, which must be either a fixed pool lift or a sloped entry.
The 2010 Standards also provide details about what features an accessible means of entry or exit should have. Specifically, section 1009 addresses the location, size of the seat, lifting capacity, and clear floor space required for fixed pool lifts, as well as the requirements for sloped entries, transfer walls, transfer systems, and pool stairs. A copy of the 2010 ADA Standards is available at http://www.ada.gov/2010ADAstandards_index.htm.
The 2010 Standards require that new or altered wading pools have a sloped entry. New or altered spas must have at least one accessible means of entry, which may be a transfer wall, a transfer system, or a pool lift. See sections 242.3 and 242.4 of the 2010 Standards.
- Does a community pool have to provide an accessible means of exit and entry?Community pools that are associated with a private residential community and are limited to the exclusive use of residents and their guests are not covered by the ADA accessibility requirements. On the other hand, if a swimming pool/club located in a residential community is made available to the public for rental or use, it is covered under Title III of the ADA. If a community pool is owned or operated by a state or local government entity, it is covered by Title II of the ADA, which requires “program accessibility.” See http://www.ada.gov/pools_2010.htm.
REQUIREMENTS FOR EXISTING POOLS
- My pool already existed before the effective date of the new rule. What am I required to do to provide pool access to customers with mobility disabilities?The ADA requires businesses to make existing pools accessible only when it is “readily achievable” to do so. Readily achievable means that providing access is easily accomplishable without much difficulty or expense. The 2010 Standards provide the benchmark, or goal, for accessibility in existing pools. (See Question 2for the 2010 Standards requirements for pools). However, owners of existing pools need to comply with the 2010 Standards only to the extent that doing so is readily achievable for them.The 2010 Standards for pool lifts require lifts to be fixed and to meet additional requirements for location, size of the seat, lifting capacity, and clear floor space. Therefore, if a business can provide a fixed lift that meets all of the 2010 Standards’ requirements without much difficulty or expense, the business must provide one. If no fully compliant lift is readily achievable for the business, the business is not obligated to provide a fully compliant lift until doing so becomes readily achievable. In addition, the business may provide a non-fixed lift that otherwise complies with the requirements in the 2010 Standards if doing so is readily achievable and if full compliance is not.
- Are there any tax credits or deductions to help me comply?Yes. To assist businesses with complying with the ADA, Section 44 of the IRS Code allows a tax credit for small businesses and Section 190 of the IRS Code allows a tax deduction for all businesses. The tax credit is available to businesses that have total revenues of $1,000,000 or less in the previous tax year or 30 or fewer full-time employees. This credit can cover 50% of the eligible access expenditures in a year up to $10,250 (maximum credit of $5000). The tax credit can be used to offset the cost of undertaking barrier removal and alterations to improve accessibility; providing accessible formats such as Braille, large print and audio tape; making available a sign language interpreter or a reader for customers or employees; and for purchasing certain adaptive equipment. The tax deduction is available to all businesses with a maximum deduction of $15,000 per year. The tax deduction can be claimed for expenses incurred in barrier removal and alterations. To learn more about the tax credit and tax deduction provisions, contact the DOJ ADA Information Line (at 800-514-0301 (voice); 800-514-0383 (TTY).
- What if I can’t afford to install a fixed lift in my pool, or it would be difficult to do so?In that case, installation is not required. If it is not readily achievable for a business to provide a fixed lift – that is, if it would be too difficult or expensive to make these changes – then a business may use other ways, such as a non-fixed lift, to provide access to the pool. If it is not readily achievable to provide access to the existing pool, even by way of a non-fixed lift, the business need not do so. Nonetheless, it should make a plan to achieve compliance with the pool access requirements when doing so becomes readily achievable.
- What is the difference between a “portable” lift and a “fixed” lift?The real issue is not whether a lift is “portable” versus “fixed,” but rather whether a lift is “fixed” versus “non-fixed.” A fixed lift means that the lift is attached to the pool deck or apron in some way. A non-fixed lift means that it is not attached in any way. Therefore, a portable lift that is attached to the pool deck would be considered a fixed lift. Thus, owners of portable lifts can fully comply with the access requirements by affixing their lifts to the pool deck or apron. They are required to do so if that is readily achievable, except in certain circumstances discussed below.
- How do I determine if it is readily achievable for me to install a lift in my existing pool? Readily achievable means that providing access is easily accomplishable without much difficulty or expense. This is a flexible, case-by-case analysis, with the goal of ensuring that ADA requirements are not unduly burdensome, including to small businesses. The readily achievable analysis is based on factors such as the nature and cost of the needed action; all the financial, staff and other resources available to the business and any parent entity; and the impact on the operation of the site, including legitimate safety requirements that are necessary for safe operation.1 Generally, a mere franchisor-franchisee relationship, where the franchisor does not own or operate the franchisee business, will not require consideration of the franchisor’s resources in determining what is readily achievable.This is the same standard that places of public accommodation have been using for all covered elements of existing facilities since 1992. Guidance on “Common Questions: Readily Achievable Barrier Removal” is available at http://www.ada.gov//adata1.htm (1996).
- I already purchased a portable lift before March 15, 2012. Can I still use it?Yes. If you have purchased a non-fixed lift before March 15th that otherwise complies with the requirements in the 2010 Standards for pool lifts (such as seat size, etc.), you may use it, as long as you keep it in position for use at the pool and operational during all times that the pool is open to guests. Because of a misunderstanding by some pool owners regarding whether the use of portable pool lifts would comply with barrier removal obligations, the Department, as a matter of prosecutorial discretion, will not enforce the fixed elements of the 2010 Standards against those owners or operators of existing pools who purchased portable lifts prior to March 15, 2012 and who keep the portable lifts in position for use at the pool and operational during all times that the pool is open to guests so long as those lifts otherwise comply with the requirements of the 2010 Standards. Generally, lifts purchased after March 15, 2012 must be fixed if it is readily achievable to do so.If a portable lift was purchased after March 15, 2012, the obligation to remove barriers is an ongoing one. If it becomes readily achievable to attach the lift to the pool at a later date you must do so. Manufacturers, for example, are providing kits to attach portable lifts.
- I do not have a lift at my pool and it is not readily achievable to provide one now. Do I have to close the pool?No. If accessibility is not readily achievable, the Department recommends that businesses develop a plan to provide access into the pool when it becomes readily achievable in the future. Because accessibility in existing facilities is an ongoing obligation, a covered entity must provide accessible features when it becomes readily achievable to do so.
- I’ve decided that it is readily achievable to provide a lift, but the lift I ordered is on back order. Do I have to close my pool until the lift arrives? No. A business in this situation should order and install a compliant lift and install it when it becomes available.
- What if I have two pools or a pool and a spa? Can I share a lift between pools? In new construction, each pool or spa must provide accessible entry and exit. For existing pools, whether each pool or spa must have its own lift (or other accessible means of entry) depends on whether it is readily achievable. If it is not readily achievable for a business to provide a lift at each pool or spa, it does not mean the inaccessible pool or spa must be closed. In these circumstances, the business should make a plan to purchase and install a compliant pool lift or other accessible entry when it becomes readily achievable to do so.Sharing non-fixed pool lifts between pools can pose safety risks to swimmers with disabilities because if a lift has been moved to another pool, a person with a disability might be unable to get out of the pool. Sharing lifts between pools also requires people with disabilities to rely on staff assistance to find, move, and set up the lift each time.
- If I can’t provide a lift at every pool, do I have to close the one(s) that has no lift? No. If it is not readily achievable to provide a lift at each pool, the inaccessible pool(s) may remain open.
- Do I have to leave my pool lift out at poolside when my pool is closed?No. Pool lifts are required to be available only when the pool is open and available to the public. If a pool is closed during the winter months or at night, the public accommodation is free to remove the lift from the pool and store it.
- Can I store my lift and bring it out only when it is requested by a person with a disability?No. A pool lift must remain in place and be operational during all times that the pool is open to guests. The ADA and its implementing regulations require equal and independent access for people with disabilities for all covered facilities (not just pools). Allowing covered entities to store lifts and only take them out on request places unnecessary additional burdens on people with disabilities. People with disabilities have long faced the challenges of dealing with portable accessibility features – e.g., staff are unavailable or too busy to help locate and set up the equipment, the equipment is missing, the equipment isn’t maintained, or staff do not know how to safely set up the equipment. In addition, the ADA Standards specify that a lift must be located at the proper water depth and with the necessary space around it to maneuver a wheelchair. Moving a portable lift around raises the likelihood that the lift will be improperly located, making it difficult or dangerous to use.
- I think a lift poses a safety risk at an unattended pool. I also have heard that my insurance rates will increase if I have a lift in my unattended pool. Can I consider safety risks?The ADA allows businesses to consider “legitimate safety requirements” in determining whether an action is readily achievable, as long as the requirements are based on actual risks and are necessary for the safe operation of the business. However, a “legitimate safety requirement” cannot be based on speculation or unsubstantiated generalizations about safety concerns or risks. We note that businesses cannot rely on limitations on coverage or insurance rates as a reason not to comply with the ADA.
- I’ve provided a pool lift. Do I have any further legal obligations? Once an accessible means of entry to a pool, such as your lift, has been provided, it needs to remain available and in working condition while the pool is open to the public. Staff should also be trained so they will know how the lift works, where it is located, and how to operate and maintain it. For example, a pool lift that operates on batteries may need to be recharged periodically. To be sure that lift remains operable, staff should know how to charge the battery and be assigned to perform the task as necessary.
ADDITIONAL INFORMATION ABOUT THE 2010 STANDARDS
- What is the Department’s approach going to be to ensuring compliance with the new regulation pertaining to pool lifts? As a general matter, the Department favors voluntary compliance with the ADA from covered entities. The Department seeks collaborative approaches. To achieve these objectives, the Department has a robust outreach and technical assistance program designed to assist businesses and State and local governments to understand their obligations under the ADA.
- If I have a question about the new requirements, where do I go? The Department’s wide-ranging outreach, education and technical assistance program is designed to assist businesses and State and local governments to understand their obligations under the ADA. Additional information about the ADA’s requirements, including the 2010 ADA Standards, is available on the Department’s ADA Website at http://www.ada.gov.If you have questions and would like to speak to an ADA Specialist, please call the ADA Information Line at 800-514-0301 (voice); 800-514-0383 (TTY). Specialists are available Monday through Friday from 9:30 AM until 5:30 PM (Eastern Time), except on Thursday when the hours are 12:30 PM until 5:30 PM.ADA experts are also available to present to conferences and training sessions through the ADA Speakers Bureau.
For complete information: http://www.ada.gov/qa_existingpools_titleIII.htm
Under the bill, sponsored by Democrat Michael Allen of Santa Rosa, restaurants would be required to post signs informing customers that food is not allowed on play structures and to provide adults who ask copies of their playground inspection and cleaning plans.
Fast-food restaurants in California could face new sanitation and safety requirements for the playgrounds they install to attract children. The Assembly on Monday approved a bill that would expand food safety laws to cover the indoor and outdoor playgrounds.
Allen says the bill was promoted by research showing that restaurant playgrounds can be breeding grounds for illness-causing bacteria and are not always well-maintained.
Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2012/05/14/state/n151405D10.DTL#ixzz1ux75aeHF
“…in Redlands, 22 businesses were sued by the same attorney for allegedly failing to post a sign next to the handicapped parking spaces that informed parking violators they would be towed. The business owners settled the cases in amounts ranging from $5,000 to $14,000, Feinstein wrote…”
The bill would require those seeking disabled access to first notify the business of a violation, and then give it 120 days to correct the problem, during which time the firm could not be sued.
Sen. Dianne Feinstein (D-Calif.) has written to the leader of the California Senate, calling for the state to adopt legislation that would curb what she calls abusive lawsuits filed by private attorneys against small businesses for minor violations of disabled-access laws, and warning that if the state doesn’t act, she will.
Feinstein said some attorneys are filing “abusive lawsuits,” and “coercive demand letters” to force small businesses to pay thousands of dollars over often-minor noncompliance with the federal Americans With Disabilities Act and the state Unruh Civil Rights Act.
Steinberg wrote back that the California Legislature shares her concerns and approved a measure in 2008 that helps businesses come into compliance and makes it tougher to sue. The state leader disputed Feinstein’s contention that SB 1186 by state Sen. Bob Dutton (R-Rancho Cucamonga) is a possible answer.
For more: http://www.fox40.com/news/headlines/ktxl-sen-feinstein-calls-on-state-to-curb-abusive-lawsuits-over-ada-20120404,0,7811356.story
”…The federal government sought to make public pools, including hotel pools, accessible for people with disabilities in 2010. There are about 51,000 hotels in the USA, and the majority have some kind of a pool…”
The U.S. Justice Department will grant the hotel industry at least a 60-day extension for complying with a new rule aimed at making existing hotel pools compliant with the 22-year-old Americans With Disabilities Act. It’s a decision that the hotel industry lobbied hard for at the 11th hour, as a number of hotel owners and managers suggested they might close their pools or fill in their whirlpools due to the uncertainty the new rules created.
For more: http://travel.usatoday.com/hotels/post/2012/03/hotel-pool-lifts-deadlines-her-confusion-persists/648998/1
New revisions to the Americans with Disabilities Act are bringing hotel recreational areas under the watchful eye of the U.S. Department of Justice for the first time. And unlike other guidelines covered by the 1991 ADA Standards for Accessible Design, recreation areas do not qualify for safe harbor.
- The key issue in exercise rooms is clearance space, the moderators said.
- “At least one of each type of equipment is required to be on an accessible route and have clear floor space adjacent to the equipment so that somebody is able to park their mobility device there and then get out of that device and transfer or may be able to walk and get on to this piece of equipment,” Salmen said.
- More than one piece of equipment can share the same clear floor space, he said.
- “This is going to have implications on how your fitness rooms are laid out, and (in) a lot of small fitness rooms you will have to do rearranging or potentially may even have to lose a piece of equipment in order to try to provide these clear floor areas,” Anderson added.
Saunas and steam rooms:
- Hotels must have accessible routes into saunas and steam rooms. Further, they must have enough space within the rooms so guests with disabilities can turn around and get out, Salmen said.
- “So doors have to be compliant as per the door criteria with 32 inches of minimum clear opening width. The pressure on that door can’t be more than five pounds. The thresholds for those doors have to be compliant,” he said.
- Benches in hotel locker rooms and steam rooms can be as little as 42 inches with a depth of 20 inches to 24 inches, Salmen said.
- “But in these new rules we are now required to have a maneuvering space in front of the bench and at one end of the bench so that it is (easier to slide over) from the wheelchair seat onto the seat of the bench,” he said.
- Benches must be attached to a wall or provide a back rest so users will have something to lean against, Salmen added.
For more: http://www.hotelnewsnow.com/Articles.aspx/7732/ADA-standards-call-recreation-areas-into-focus
The 2010 ADA Standards for pool access have significantly changed the requirements for municipal and private pools by requiring, for the first time, that they be equipped with independently useable pool lifts during all operating hours.
Since the DOJ announced its intention to require lifts in nearly all pools, the hotel industry and others have opposed or sought clarification of this provision.
In October, 2010, the American Hotel & Lodging Association sought clarification of the pool lift requirements which become mandatory on March 15, 2012. The AH&LA noted that pool lifts, particularly fixed devices, are potentially dangerous to users and children playing around pools. Moreover, they can be quite costly to most pool operators. The industry’s concerns apparently fell on deaf ears as evidenced by the DOJ’s position issued this week.
The DOJ has officially confirmed that:
- The mandatory date for installation of pool lifts is March 15, 2012.
- Pool lifts need to be installed at each pool during all operating times and be independently operable by disabled persons.
- Pool lifts must be “fixed” unless the operator can prove that doing so would not be “readily achievable” as defined in the ADA, in which event, a portable lift meeting all of the ADA Guidelines could be deployed.
- Accessible lifts cannot be shared between a pool and a spa, each would seem to require a separate device.
- Pool lifts must be properly maintained and in good repair, with any battery components charged for use.
- Staff must be trained in the use and safety of pool lifts.
For more: http://hotellaw.jmbm.com/2012/02/doj_flash_on_pool_lifts.html