"Only an extension is being considered, not stripping the requirement..."
Written by Staff and wire reports
May. 5, 2012
WASHINGTON -- A federal rule that requires installation of permanent mechanical pool chairs for the disabled at public swimming pools and spas will cost too much and expose small business owners to lawsuits, the hotel industry says. Disability advocates argue that the alternative -- portable pool lifts -- can limit access and enjoyment of pools by disabled people.
As a result of widespread misunderstanding about the rule and complaints from hotel owners, the Department of Justice has extended the original March 15 deadline for compliance to May 15, and is considering delaying it until September.
The department is reviewing comments submitted in March and April.
A spokesman said the department is considering only extending the deadline -- not stripping the requirement altogether.
"If a fixed lift is affordable and easy for that hotel, they need to provide a fixed lift," DOJ spokesman Mitchell Rivard wrote in an email. "If only a portable lift is affordable and easy for that hotel, they can use a portable lift. If they already have a portable lift, they should explore whether it is affordable and easy to attach the lift. If no lift is achievable, they should make a plan to achieve access when it becomes readily achievable for them."
The rule change was expected to affect the city of Chillicothe's efforts to open the Donald M. Smith Memorial Pool in Yoctangee Park. City officials say the cost wasn't the biggest issue, but getting the mechanical chair and installing it likely would delay the pool's opening for weeks.
Private clubs and pools owned by neighborhood associations are not affected by these Americans with Disabilities Act regulations, which would affect as many as 300,000 public pools nationwide and cost as much as $1 billion to implement.
For Christa Bucks Camacho, an Ellicott City, Md., woman with muscular dystrophy, having access to a swimming pool is "more than having a recreational alternative."
"It is a quality-of-life-issue," Camacho said at a hearing April 24 in front of the House Judiciary Committee.
In January, the DOJ released technical standards that tell hotels how to make sure their pools comply with the ADA.
The 2010 ADA standards did not specify whether mechanical pool lifts must be portable or "fixed" -- permanently installed to the pool. The latest requirements specify that owners of large public pools may install fixed lifts "to the extent that it is readily achievable to do so."
This last phrase has drawn concerns from many hotel association representatives, who fear it will lead to a flood of fines and civil lawsuits.
The DOJ could charge $55,000 for the first violation and $110,000 for any subsequent violation. The Justice Department has said it will investigate any complaints of non-compliance but will give pools with financial hardship and a savings plan more time to comply.
The high cost of installation already has forced some hotel owners to close their pools rather than pay for the chair lifts.
When Camacho spent a year in a full-body brace after her surgery, swimming helped her regain muscle strength and independence. She said that her experience with portable lifts -- a more popular and less expensive alternative -- has been largely negative.
"When I ask, a portable lift is not always made available even when there is one," she said.
Fixed lifts are "there and ready whenever a person with a disability wants to swim," testified Ann Cody, director of policy and global outreach for BlazeSports America.
Costs for fixed lifts can range from $2,500 to $10,000, with installation depending on local regulation, said Tim Jensen, director of vendor relations for national supplier Wilkins Solutions.
Installation can cost $500 to about $3,000 in states such as California, testified Hemant Patel, chairman of the Asian American Hotel Owners Association, representing 20,000 U.S. hotels.
Jensen said ADA compliance is "not a new thing" and hotels should try to meet the May deadline.
"The general consensus is that it's the right thing to do," Jensen said. "The challenge is with the economics of investing per pool lift."
ADA regulations instruct hotels to buy one fixed lift for each large pool, hot tub and sauna. The 235,000 to 310,000 hotels needing to upgrade may face total costs of $1 billion, according to the Association of Pool and Spa Professionals.
A special tax credit is available to help smaller employers make ADA-related accommodations, according to the 2012 ADA pool requirements.
Patel said members of the AAHOA said their pool lifts are rarely used.
Minh Vu, counsel for American Hotel and Lodging Association, said the cost of defending a lawsuit, along with increased liability from children and disabled people unfamiliar with pool lifts hurting themselves, could end up forcing some hotel owners to close public pools.
Camacho and Cody said lifeguards could help disabled people use the lift and that previous studies have not indicated that pool lifts endanger children.
"Aren't pools inherently dangerous for children to begin with?" Cody asked.
Several bills have been introduced in Congress to force the Justice Department to allow pool owners to decide if a portable lift is better suited to their pool needs. A bill sponsored by Republican Rep. John Mulvaney of South Carolina would allow small businesses to install portable lifts even if they are otherwise able to install a permanent lift.
House Judiciary Committee member Jerrold Nadler, D-N.Y., said such bills are unnecessary.
A "mom-and-pop outfit that operates three hotels will never be required to take the same steps as the Marriott," Nadler said. "While these delays are being granted, Americans with disabilities are still waiting, and they already have been waiting a very long time."