• Gregory A. Anderson founded the Florida based law firm AndersonGlenn in 1990. He is a board-certified business litigation and civil trial attorney.
    Gregory A. Anderson founded the Florida based law firm AndersonGlenn in 1990. He is a board-certified business litigation and civil trial attorney.

My specialty includes aquatic safety, so I was interested to learn that the Centers for Disease Control and Prevention were “nationalizing” the entire area.

The CDC convened a number of committees devoted to the development of a non-binding national aquatic safety code. The language sets national standards, not just for combatting waterborne pathogens, an area where the CDC excels, but also arenas such as waterpark construction, pool equipment, and even coaching practices.

So far, there has been no outcry that the present system of state and local regulations combined with standards developed by the American Heart Association, the American Red Cross and the YMCA are not enough. Why, then, are we seeing federalization when there have been no issues raised that present standards are inadequate? What is the history behind the Model Aquatic Health Code? What will the future likely hold?

These are all important questions and I aim to answer them here.

First of all, there is admittedly some divergence in aquatic safety regulation. State and local codes tend to focus more on mechanical issues, such as water quality and lifeguard stand requirements. Standards developed by the YMCA, USA Swimming and the U.S. Life Guard Association generally involve training and necessary equipment and are designed to fulfill the specific needs of the particular organization. Though there is overlap of the similar standards in each, there are also significant differences arising out of their differing missions.

While there are already some federal regulations concerning aquatics, such as those developed for physically challenged individuals, the CDC has not historically been a “go to” authority for regulating pools.

Founded immediately following World War II, the CDC’s initial assignment was to battle malaria, which at the time was a significant problem even in the United States. The present location of the CDC in Atlanta, rather than next to its parent administration, the Department of Health and Human Services in Washington, is the result of the South being the region most affected by the disease. The CDC, in conjunction with other agencies, effectively eradicated malaria by the mid-1950s, and then moved on to successfully address tuberculosis. Given a new assignment in 1957, its name was changed to the Venereal Disease Division of the U.S. Public Health Service. In 1967, it was again renamed to the National Communicable Disease Center. Understandably concerned with its name as its mission broadened, the CDC received its current title in 1970.

Beginning with The Andromeda Strain through “Contagion,” popular culture has portrayed the CDC, with a great deal of truth, as a savior from exotic diseases such as Ebola and Marburg. It has been instrumental in developing vaccines for more mundane, but still potentially lethal, diseases such as the avian flu. For the majority of its efforts, the CDC is an exemplary government agency.

But aquatics is not a part of its history and the CDC’s knowledge base in the practical aspects of water safety is built entirely on outside consultants and studies. Clearly, its mission includes, and should include, preventing waterborne poisoning or disease transmission. A good case can even be made for the CDC taking the lead in regulating pool water chemistry insofar as it affects the transmission of waterborne pathogens. But the MAHC goes much further. This “mission creep” into areas where the feds have had minimal involvement and little experience came about from a simple change of a definition.

In 2005, the World Health Organization published a bulletin reclassifying drowning as a “disease.” WHO’s Web page “Drowning — the Disease and How it Affects People” can be summarized by saying that it recommends, among a great many things, to not swim in water over your head, especially after that second Rum Runner. Also that year, the World Congress on Drowning proposed a single term for drowning, calling it:

“The process of experiencing respiratory impairment as the result of submersion/immersion in a liquid medium.”

But what harm is there in classifying drowning as a disease? After all, it’s the leading cause of death in children under the age of 5, so shouldn’t every possible effort be made to reduce it? The answer is yes, as long as adding the extra layers actually creates value rather than complexity and is not simply justification for an increase in an agency’s budget.

Within months after the “drowning is a disease” was announced, the CDC adopted WHO’s definition. The language only included drownings that occurred in lakes, rivers and oceans, so technically, pool-related drownings are not part of its focus. Confusingly, WHO’s definition also uses statistical analysis that leaves out any drowning arising from natural disasters, hurricanes, transportation-related events (for example, Titanic) and criminal acts.

The CDC’s mission statement to the public includes the promise that it will “base all public health decisions on the highest quality scientific data that is derived openly and objectively.” Question: If drowning is the disease, what is the pathogen causing it? How does an agency designed to combat Ebola and avian flu inoculate the public to prevent the spread of drowning?

The answer lies in the practical consequences of such a broad definition. Having now designated drowning as a “disease,” the CDC’s next step was to develop federal guidelines to prevent the spread of the “disease.” The result of this effort is MAHC.

The MAHC Regulatory Module lists the following goals:

1. Establishment of an independent Aquatic Health Advisory Committee.

2. Delineation of imminent aquatic health hazards and corresponding remediation and enforcement procedures.

3. Establishment of facility staffing requirements based on facility size and type.

4. Aquatics facility operator training

5. Plans and permits guidelines

6. Record-keeping requirements

7. Swimmer empowerment methods

The obvious question is whether the above is a good thing for the aquatics community. When most people hear “enforcement procedures” from a government agency, their reaction is not usually one of “Well, it’s about time!” And why, given the present layers of state, local and industry regulations, do we need the CDC to wrap further and probably conflicting recommendations around them? There are organizations with decades of experience in developing aquatic safety guidelines. Does a federal agency need to get involved in all of these areas? Swimmer empowerment?

The statistics involved in drowning are tragic, and new efforts are needed to reduce the frequency of drowning accidents. But thus far, there’s nothing in MAHC that doesn’t already exist in state and local building codes, pool management regulations and organizational safety codes. But to be fair, if the goal is to increase safety, what harm does it do to the industry and populace to have more rules? Possibly none. But the likely consequences of federal guidelines in the aquatics arena are cause for concern.

While MAHC is a voluntary guideline today, the odds of it actually remaining a non-binding regulation are slim. If this were the goal, why begin creating an enforcement division? One doesn’t have to enforce voluntary guidelines. The history of federal regulation is one of expansion to fill every nook and cranny. The typical progression is a three-step process.

First, after organizing an investigative committee or two, the agency issues non-binding or “advisory” regulations. These do not have the force of law, but they are still admissible in court as evidence of what the federal government thinks about a subject. Second, after a test period while the agency lawyers are doing the drafting and the legislative liaisons are liasoning, the suggested guidelines can become the big stick for the federal funding carrot.

Once guidelines are tied to funding, it is relatively easy to codify them into law. After a few years, they’ve been effectively implemented anyway. And if the federal regulations are comprehensive enough to appear to a court that the CDC intended to supplant state laws and regulations, bye-bye state, local and common law protections.

While at first blush federal pre-emption may sound enticing to waterpark owners, associations and risk managers, two concerns come to mind.

The first is the practical consequence of not adhering to the letter of MAHC. Violations, even technical and patently irrelevant ones, can serve as an added “gotcha” in the event there is an accident and subsequent injury claim.

Second, you could eventually be at the “enforcement” end of the federal regulations, specifically, federal agents looking into your operation, and depending on the political winds, finding reasons to look further.

Third is the matter of practical consequences. I interviewed an industry “hands-on” person about his concerns, who said, “…I can’t even get my [mostly teen] guards to show up on time. How am I supposed to make sure they are wearing their [safety equipment containing] fanny pack?!”

And, not to add too much joy to the process, in the event of an accident, you could come to the attention of the CDC’s planned enforcement division, and appearing on the radar of a federal regulatory agency isn’t even remotely good. If the CDC cites you for a violation and there is an accident that’s even in the same hemisphere as the charge, your defense counsel may have no alternative but what we quietly call the “checkbook defense.”

In the movie “Jurassic Park,” the brilliant but eclectic mathematician Dr. Ian Malcolm questioned whether it was a good idea to genetically engineer dinosaurs: “… your scientists were so preoccupied with whether or not they could, that they didn't stop to think if they should.” MAHC is the latest apatosaurus to lumber out of a well-intentioned bureaucracy.