RPC Reg Spotlight March 20, 2012

 

Regulatory Action in the Spotlight:

 

Pool lift requirement under the Americans with Disabilities Act (ADA)

 

Adverse Effects:

 

  • Unnecessarily limits flexibility for public facilities. 
  • Poses financial hardship in order to comply.

 

 

Response of the Obama Administration:

 

On January 31, 2012, the Department of Justice released a clarification to a 2010 rule (RIN 1190-AA44) stating that the American with Disabilities Act requires all public wading pools, swimming pools, hot tubs and spas to be handicap accessible.  This regulation was set to go into effect on March 15, 2012, and states that “all existing facilities of public entities and public accommodations, including pools, must comply with the 2010 Standards.”  These standards require, for example, hotels to install fixed lifts for each pool and spa.  Each water feature, regardless if it is adjacent, must have its own lift.  In most circumstances, portable lifts will not be considered in compliance. 

 

Initially, the Obama administration says it would not consider a delay of the regulation being implemented: “They've had quite a bit of time to do their planning,” says Eve Hill, deputy chief of the Justice Department's civil rights division. “If they have legitimate reasons in good faith that they can't comply, then that will be taken into account.”  However, on March 15, 2012, the day the regulation was due to take effect, the Department of Justice released a statement saying that requirements for existing swimming pools will be extended for 60 days.  Additionally, the statement said that the department will publish a Notice of Proposed Rulemaking with a 15-day comment period on a potential six-month extension to allow extra time to deal with “misunderstandings regarding compliance with these ADA requirements.” 

 

 

Impact on the United States:

 

This regulation will require state and local governments, resorts, swim clubs and sites of events that operate public swimming pools to be handicap accessible.  There are about 51,000 hotels in the United States alone, and most of them have pools.  If pools open to the public do not provide pool lifts, or have a plan in place to put into service the lifts, they can face fines up to $55,000 for a first time offense.  Each mechanical lift costs about $6,000 not including installation costs. 

 

With a short amount of time given to implement the new regulation, several hotels are considering shutting down their pools or whirlpools.   “Our costs went from $18,000 to $28,000, plus installation — whatever that is,” hotel owner Mark Foster said. “It’s just a backbreaker. We’re scrambling. We’ve ordered two, we’ll see if they come in time.”

 

 

In Closing:

 

Since the Department of Justice did not clarify the requirements of the regulation until January 31, 2012, there originally was less than two months to comply.   Though this time has recently been extended by a further two months, many facilities will likely have to close their pools temporarily or permanently, or face steep fines or lawsuits if they do not comply by the new deadline.  The Department of Justice has so far refused to consider several legitimate concerns regarding the potential safety concerns of the lifts, the rule being vague and overbroad, and not addressing sufficiently why a portable lift could not be used in place of a fixed lift.  Perhaps with the adoption of this new extension, and with a promise of a new comment period for an additional extension, the Obama Administration will address these justifiable apprehensions. 

 

 

Relevant Legislation:

 

Rep. Tim Griffin and Rep. Mick Mulvaney are currently circulating letters in the House of Representatives asking for an extension of the regulation deadline.  Rep. Mulvaney’s letter states, “There is still uncertainty for hotels in our districts about the proper means to implement and operate pools lifts for their guests, and the costs associated with compliance.”  Six Members of the House of Representatives have signed on to Rep. Griffin’s letter, while Rep. Mulvaney’s letter has 40 signatories.