House Considers Stripping ADA Pool Lift Amendment Protection this Evening
AH&LA Members Urged to Contact Congress Supporting Carter Amendment
The House of Representatives this afternoon began consideration of the Commerce, Justice, State Appropriations bill, H.R. 5236, which includes an amendment prohibiting for one year the Department of Justice from enforcing the permanent pool lift requirements under the 2010 ADA.
We have recently learned that there may be an effort to strip this amendment from H.R. 5236 later this evening. AH&LA members are urged to contact Congress to request that this amendment remains in the final bill.
Contact your Representative this evening to ask them to prevent the Carter-Nunnelee-Flake Amendment from being removed from the CJS appropriations bill. Members of the House of Representative can be reached at (202) 225-3121.
Below are the key points to raise with your Representatives and several myth-v-fact issues.
- We support the Americans with Disabilities Act and have compiled with hundreds of regulations to accommodate our guests;
- Manufactures cannot produce enough lifts to meet the demands of the lodging industry in time for the May 21, 2012 compliance deadline;
- Fixed lifts are a hazard at unattended pools and spas where children are likely to use these lifts improperly risking injuries. Allowing portable lifts gives pool access to the disabled while protecting the safety of all guests;
- The cost of purchasing and installing lifts is substantial to your business;
- The Carter-Nunnelee-Flake Amendment does not repeal or weaken the ADA.
Myths V. Facts in support of Carter-Nunnellee-Flake Amendment to DJS Appropriations bill on ADA Pool Lift Regulations
Myth: This amendment rolls back the protections of the ADA
Fact: The amendment repeals no section of the ADA nor does it repeal the requirement for accessible pool and spa entries for public accommodations. The business community supports the goal of meeting reasonable entry requirements that will balance the needs of Americans with disabilities and keeping children safe. This amendment in no way affects a public accommodation’s obligation to provide a pool lift in a timely way to guests who request it. This amendment will only prevent DOJ from requiring that a pool lift be attached to the pool deck and kept at the pool or spa when no one needs it. This condition would be dangerous for children who will play and jump off of the lift. It would be irresponsible to ignore this risk.
Myth: The pool lift requirement has been around for 20 years—the business community waited till the last minute to protest.
Fact: There was no requirement under the ADA to provide accessible entries into pools and spas until DOJ published the 2010 ADA Title III regulations in September 2010. However, those regulations did not require fixed lifts. Thus, businesses could use portable lifts that can be promptly brought out upon request. On January 31, 2012, less than two months from the compliance deadline, DOJ issued a guidance stating that fixed lifts were the option types of lift that are acceptable, unless it is not readily achievable to install a fixed lift. This was a last-minute radical change in the regulations and the business community promptly objected to it.
Myth: Fixed pool lifts present no additional risks.
Fact: A fixed pool lift presents several significant risks that portable lift does not—particularly at unattended pools. Children and adolescents will use them as jumping or diving platforms into the shallow end of the pool; swimmers may become trapped under the seat when the seat is in the water; if a fixed lift fails during use no one will know that the lift is being used; lifts are not manufactured to endure environmental conditions which will have a greater adverse impact if the lifts are required to be fixed to an outside pool deck at all hours. According to one study published in the American Journal of Pediatrics in 2008, 111,341 children were injured in diving-related accidents at swimming pools from 1990 to 2006. Pool lifts are similar to diving boards in that they provide an elevated platform from which to dive into the pool. The fact that pool lifts must be placed at the shallow end of the pool or at shallow spas makes them potentially even more dangerous.
Myth: Fixed lifts are easily purchased and installed.
Fact: Not enough fixed lifts can be produced to equip the number of pools and spas in the United States that need them, and the installation of fixed lifts is considerably more complicated than the purchase of portable lift that can be used immediately. According to the Association of Pool and Spa Professionals (APSP), there are 85,284 swimming pools at lodging facilities, 55,311 community pools, and 26,883 pools run by parks and recreation departments in the United States. The APSP further estimates that a third of the number of hotels with pools also have a spa (i.e., 28,333), which means that there are more than 200,000 pools and spas that must be outfitted with pool lifts. DOJ has stated that there are at least 100,000 pools and spas that require pool lifts. The APSP reported to DOJ that the top three pool lift manufacturers can only produce anywhere from 2,500 to 5,000 lifts per month, or 15,000-30,000 in six months. While it is possible that at some point in the future these companies might be able to open new plants to increase production capacity, this is purely speculative at this time. Thus, in the absolute best case scenario and using DOJ’s numbers, there will only be enough lifts made to supply 30% of covered pools and spas by September 17, 2012.
Unlike portable lifts, fixed lifts must be attached to the pool deck. Installing a fixed lift requires a contractor, permits, partial demolition of the pool deck, electrical bonding, and deck reconstruction.
Myth: Portable lifts will force guests into lengthy delays before they can have access to pools and spas.
Fact: A study conducted by the federal U.S. Access Board found that individuals with disabilities reported having to wait only an average of 6.1 minutes for the pool lift to be brought out, and there was no requirement for any lifts at all when the study was conducted. Now that pool lifts are a legal requirement, businesses will be much more informed about pool lifts and have procedures in place to ensure that lifts are brought out promptly.
Myth: Americans with disabilities should not have to ask for any accommodation.
Fact: The ADA is a law that seeks to balance legitimate business and safety concerns with the goal of providing equal access. In some cases, immediate access can be provided without compromising any countervailing concerns. In pool lift situation, leaving a pool lift out next to the pool or spa at all times when these facilities is open increases the risk that children will injure themselves while using it a jumping or diving platform, particularly at pools that do not have lifeguards. A portable lift that is promptly brought out upon request minimizes this risk while at the same time providing access to the pool.
It is important to keep in mind that the ADA contemplates many instances where individuals with disabilities must request specific accommodations needed for access. For example, not all guest rooms must be accessible. Individuals with disabilities must request an accessible guest room. Individuals who are deaf must ask for a sign language interpreter. Blind individuals must ask for Braille or large print menus in restaurants, or Braille or large print statements from a bank. There are many instances under the ADA where a person with a disability must request an item needed for access.
Myth: The cost for pool lifts are nominal and a one-time expense.
Fact: A fixed pool lift can cost upwards of $9,000 including installation. In constrast, the cost of a portable lift is not likely to exceed $6,300. This is not a one-time expense. A business will have to expend resources on maintaining the lift on a daily basis (charging and changing out the battery), training employees on the lift, monitoring the lift’s condition to make sure it is functioning properly, and repairing the lift. In addition, if an accident does take place on a lift, a business will pay higher insurance premiums. A business may also lose revenue from having to close the pool and spa during the installation process.
Myth: Because businesses only have to install a lift if it is readily achievable, businesses that do not have the resources to install a fixed lift will not have to do so
Fact: Because the Justice Department has announced that fixed lifts must be installed unless they are not readily achievable, plaintiffs looking to file lawsuits will assume that there is a violation if no fixed lift is present and file a lawsuit. The business will then have to hire an attorney to defend the lawsuit and pay his or her fees which would certainly exceed the cost of the lift itself, at a minimum. Because determining whether an action is “readily achievable” is a difficult case-by-case analysis involving multiple factors, no business will be certain as to whether it really qualifies for this exemption. If a business wins the lawsuit it will have paid its own attorneys’ fees. If it loses it will pay its own fees, the plaintiff’s attorneys’ fees, and the cost of installing a fixed lift as well. Thus, the idea that the “readily achievable” provision removes the burden from businesses is a fallacy.
To make matters worse, DOJ has repeatedly told businesses that if they cannot purchase and install a fixed lift at this time, their obligation to install a fixed lift at a future date remains when it does become readily achievable. DOJ expects all businesses to install lifts at some future date.
Myth: Regulated property owners had the advanced notice required by law regarding the permanent pool lift requirements.
Fact: The Justice Department has circumvented the “notice and comment” rulemaking process required by the Administrative Procedure Act (APA), as amplified by Executive Orders issued by both Presidents Obama and Clinton for open and transparent regulations. The first time the Justice Department told the regulated community that it expected ADA compliance by installing fixed pool and spa lifts was through a January 31, 2012 technical “guidance” document. Never before had DOJ expressed a requirement for fixed pool lifts to the exclusion of all other options unless a business can demonstrate that a fixed pool lift is not readily achievable. By failing to ask regulated stakeholders to comment on the requirement for fixed pool lifts, the Justice Department has ignored the notice and comment requirements of the APA that must attend any rulemaking – and, as a result, DOJ has also avoided analyzing the economic impacts on small businesses otherwise required by the Regulatory Flexibility Act.
