Launch Slideshow

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Capitol Punishment

Capitol Punishment

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    DENISE BAKER

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    REGULATION WITHOUT REPRESENTATION? Pool operators have been forced to comply with a number of federal regulations in the past several years, but have they had enough of a say in the laws?

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    MIKE STINSON

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    MIKE STINSON

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The Barbara Morse Wackford Community and Aquatic Complex was a beautiful facility when it opened in 2004. Located in Elk Grove, Calif., it features a state-of-the-art 25-meter-by-25-yard competition pool, a zero-depth entry recreation pool with water slide and water-play features, and a spraypad for small children. But the Cosumnes Community Services District Parks & Recreation Department had to spend thousands on retrofits.

“We spent upwards of $25,000 on compliance [with the Virginia Graeme Baker Pool & Spa Safety Act], which was completely unexpected,” says Tom Hellmann, recreation supervisor at the CCSD Parks & Recreation Department.

Hellmann wasn’t the only operator hit hard by federal mandates such as VGB, of course. Many have found it difficult, if not impossible, to come up with the money for retrofits. Understanding the true cost of compliance is problematic because facilities are so varied, and no organization closely tracks aquatics. But based on an Aquatics International survey and the most conservative estimates, it appears the industry has spent a staggering $3 billion in required federal retrofits since 2008.

At a local level, those compliance costs have effectively shut the doors of many facilities. No good data exists on how many facilities were forced to close, but anecdotal evidence suggests that without access to funding for upgrades, an untold number of aquatic operations have been wiped from existence.

“In light of the recent recession and the compliance costs placed on the public pool, it is very likely that hundreds or thousands of pools have been closed,” says Tom Lachocki, CEO of the National Swimming Pool Foundation in Colorado Springs, Colo.

Federal laws and requirements have been in place for some time, governing broad matters such as energy efficiency and chemicals, but direct aquatics facility regulation has always been handled at the state or local level. VGB is essentially the first federal law to directly impact day-to-day pool operation. It was followed by ADA regulations. While the upcoming Model Aquatic Health Code won’t have the force of law, it’s likely to have a big impact on future regulations.

Out of nowhere

Many frustrated operators feel these federal mandates and guidelines have come from seemingly nowhere. And they seem to be written by people who neither understand the complexities of aquatics facility operation, nor the variation of facility types. What’s more, they appear heavily influenced by those with vested business interests.

Based on extensive research and interviews, it appears some fear and suspicion is warranted. In fact, experts and those involved in the creation of these new laws say day-to-day operators were, for the most part, minimally involved in the codes formation. People with business interests often were. And even though something such as MAHC offers operators a way to make their voices heard, many have not done so, leaving business interests to fill the void. Meanwhile, lawmakers are largely unfettered by any aquatics lobby when it comes to writing far-reaching laws such as VGB.

Why?

An investigation reveals that the answer is a tangled web of factors: a lack of “on-the-ground” experience on the part of many of those most involved in crafting the legislation; advocacy efforts that need more support; communication that created confusion; and the need for greater involvement on the part of operators.

Beaten down

If operators are a bit apathetic about federal mandates, they’re clear about their role in those codes. Less than 1 percent of aquatics facility operators believe they had the biggest voice in passing VGB and the pool accessibility requirements under ADA, according to an online survey of approximately 250 Aquatics International readers. That sentiment illustrates one of the central issues, particularly in the case of VGB.

“I don’t think operators had much of a voice at the table,” says Sam Fruia, natatorium coordinator for the Conroe Independent School District, Conroe Texas.

The impetus for VGB was the death of Virginia Graeme Baker. She died in June 2002 at age 7, after becoming entrapped in a residential hot tub.

The law was an effort that came about “because of a few influential players,” says Jennifer Hatfield, director of government affairs for the Association of Pool & Spa Professionals.

In fact, Baker was the granddaughter of former Secretary of State James Baker III. Her mother, Nancy Baker, championed the legislation, along with representatives from Safe Kids Worldwide, a global advocacy network of organizations dedicated to preventing unintentional childhood injury.

“We weren’t sophisticated on the issue,” says Alan Korn, then a representative with Safe Kids USA. “We didn’t know about pool and spa engineering, but we knew we could help [Nancy Baker] in some way.” Korn was later named executive director of the Abbey’s Hope Charitable Foundation, a pool safety organization founded by the parents of Abigail Taylor. She died at age 6, as the result of an entrapment, less than nine months before VGB took effect.

Korn and Baker actively lobbied Congress to win support for VGB, sponsored by U.S. Rep. Debbie Wasserman Schultz (D-Fla.). As a politician, Wasserman Schultz has been actively involved in pool safety — she was influential in ensuring passage of the Florida Residential Pool Safety Act, when she served in the Florida state legislature — but that’s where her pool experience ends.

“With VGB, you can tell nobody who knows anything about running a pool was involved,” says Alison Osinski, Ph.D., owner of Aquatic Consulting Services, an Avalon, Calif.-based aquatics facility design/risk management company. “They just didn’t think about the variety of pools. …”

According to Korn, one aquatics industry voice that was involved in writing the original VGB text was the Pool Safety Consortium, now known as the Pool Safety Council. No one from PSC responded to inquiries about participation, but the Washington, D.C.-based advocacy group was founded by Paul Pennington, an SVRS manufacturer. Pennington is owner of Santa Rosa, Calif.-based Vac-Alert Industries. SVRS devices are listed in VGB as secondary options for single-drain pools or multi-drain pools that have drains less than 3 feet apart.

The Pool Safety Council clearly was involved in decisions regarding unblockable drains, according to Anne Northup, a member of the U.S. Consumer Product Safety Commission.

In 2010, CPSC officials determined that an “unblockable” drain cover could be installed over a smaller sump to comply with the Virginia Graeme Baker Pool & Spa Safety Act.

In issuing that ruling, “the commission acted in accordance with the expert advice of its technical staff,” said CPSC Commissioner Northup, testifying in August at a hearing before the Subcommittee on Commerce, Manufacturing and Trade, which is under the U.S. House of Representatives’ Committee on Energy and Commerce.

Giving pool operators a say

“It did so only after also considering the contrary views presented by the inventor of the vacuum release system, who wanted the commission to mandate the use of his product; pool safety advocates, many of whom were influenced and mobilized by the backup system manufacturer; and a few members of Congress, who had been lobbied by the backup system manufacturer,” Northup says.

So where was the representation for pool operators?

Several national organizations do lobby on behalf of operators. These include the Association of Pool & Spa Professionals, the World Waterpark Association, and the National Recreation and Park Association.

According to Hatfield, APSP was involved, beginning with a 2006 entrapment bill put forth by then-Sen. George Allen (R- Va.).

That bill died, but was reintroduced as VGB the following year and, Hatfield says, “APSP was actively involved again.” The group hired lobbying firm DLA Piper and met with Safe Kids, Congresswoman Debbie Wasserman Schultz, and staff members in multiple senators’ offices.

When the law was passed, another group, the National Swimming Pool Foundation, contacted CPSC and issued a press release calling for an extension of the Dec 18, 2008, deadline. But NSPF is limited in its ability to lobby because of its 501(c)(3) tax status. The Association of Aquatic Professionals, another industry professional association, was not yet established.

All told, it’s not clear that individual pool operators had much of a say — or that industry groups had much impact on the final laws.

Fruia has seen it firsthand. “I’ve worked on several committees with APSP,” he says. “ … I don’t see a lot of commercial operators involved.”

Where’s the lobby?

When swimming pool accessibility requirements were scheduled to take effect earlier this year under the Americans with Disabilities Act, it became clear that operators need a stronger voice.

The ADA was originally passed in 1990. Guidelines addressing recreation venues were published in 2004 and formally codified in 2010. Officially, all operators had until March 15, 2012, to comply with the rules. But in January, the Department of Justice released a guidance document that essentially nullified compliance plans that included portable lifts.

The DOJ fundamentally mandated fixed lifts for Title III facilities (including hotels, motels nonprofits, swim clubs and other such facilities) and said sharing a portable lift between multiple pools is not permitted unless it would result in undue burdens to provide equipment at each Title II (municipal) facility. Furthermore, DOJ said portable lifts must be available and operable during all hours that the pool is open to the public.

All told, it appears that the hotel and lodging industry took the lead in speaking out about the revised interpretation of ADA requirements. Established more than a century ago, the Washington, D.C.-based American Hotel & Lodging Association is “the sole national association representing all sectors and stakeholders in the lodging industry, including individual hotel property members, hotel companies, student and faculty members, and industry suppliers,” according to its Web site.

“The pool lift issue was of great concern to the lodging industry and a top regulatory priority …,” says Eric Reller, director of legislative communications at AH&LA.

AH&LA launched a comprehensive campaign earlier this year. The organization educated and mobilized members to voice opinions by contacting their congressional leaders and DOJ. AH&LA leadership also met with DOJ and the White House to explain concerns. AH&LA representatives met with almost every member of Congress as well.

It was part of an annual visit to Capitol Hill, says Kevin Maher, senior vice president for governmental affairs.

The list of supportive lawmakers included Congressman Mick Mulvaney (R-S.C.), and Sen. Jim DeMint (R-S.C.), both of whom introduced legislation to circumvent DOJ’s position on ADA requirements.

“Generally, regulators will be more likely to pay attention to an issue that has widespread impact,” says Minh Vu, an attorney with Seyfarth Shaw, LLP, who represents the hotel and lodging industry and has served as AH&LA’s outside counsel on Title III of ADA since 2006. “But there are situations where regulations are crafted to accommodate very specific groups as well.”

Mulvaney’s bipartisan “Pool Safety and Accessibility for Everyone Act,” aka Pool SAFE Act, would require a one-year

extension for compliance with the ADA pool-lift requirement, allow portable lifts and prohibit lawsuits against facilities for violations of “revised regulations for Title II and III facilities between March 15, 2012, and one year from the enactment date.”

Sen. DeMint proposed bill S. 2186 with co-sponsors Lindsey Graham (R-S.C.) and Roy Blunt (R-Mo.) to prohibit federal government officials from enforcing ADA with respect to public pools and spas.

So what made the voice of AH&LA so powerful? Money is at least one part of the answer.

According to experts, representing an $127 billion industry may have made it a lot easier for the hoteliers to be heard. The AH&LA lobbying budget is around $300,000 quarterly, according to Reller. It’s also worth noting that the Federal Election Commission records a donation of $1,500 from the American Hotel & Lodging Association Political Action Committee to the Mulvaney campaign.

“It is very expensive to have talented, bright and connected people engaged with legislators involved with federal legislation,” Lachocki says. “Investment in such an effort is more difficult since pool and spa legislation is relatively rare. ...”

All the activities of AH&LA are fairly common advocacy practices, and some operators say they feel somewhat powerless because the aquatics industry is lacking that type of focused leadership.

The AI survey found that only 12 percent think industry associations do a good job of lobbying for aquatics when it comes to government regulations.

“Sometimes it doesn’t feel like there’s somebody watching out for us as the operators,” says Jimmy Gibbs, aquatics manager at the Lawrence, Kan., Parks and Recreation Department.

It’s the diversity within the industry that makes advocacy a challenge, according to Carvin DiGiovanni, APSP senior director, standards and government relations. “We’re made up of a much broader cross section [including manufacturers and builders],” he says.

When DOJ announced its interpretation of ADA pool access requirements, several industry groups banded together to draft a unified written response and inform aquatics professionals. These included APSP, WWA and NRPA. On behalf of the coalition, representatives attended meetings with DOJ and White House officials, and sent letters.

However, DiGiovanni notes that creating this type of collaboration often has been difficult. On other occasions, when APSP has reached out to work with other organizations, it has been turned down, he says.

Double talk

Once laws were passed, more problems became clear. Many operators say they were left in the dark about how to proceed, and as officials made efforts to correct issues, changes only added to the confusion. Once again, industry groups did little to quell the confusion.

“We were aware that something was happening, but like so many other operators, we weren’t sure exactly what was going on,” Gibbs says.

VGB stipulated that an education program be funded to inform pool operators and the public; however, Aquatics International survey results indicate that less than 10 percent found out about VGB from a government official. The same is true for the ADA pool access requirements.

“It seemed like there were a lot of people with a lot of different opinions. There was a lot of ambiguity,” says Charles Logan, director of Lee and Joe Jamail Texas Swimming Center at the University of Texas at Austin. “Vendors would put out guideline books ... in my opinion, to help them sell their product.”

Fruia blames the system. He says the chain of communication appears to have broken down, and information simply did not get passed down properly from one level to the next. When it comes to VGB, he’s aware of only one facility that was visited by a federal agent, the one inspector assigned to the entire state of Texas.

“I don’t think that the feds had enough personnel to get the job done,” he recalls. “I think there were gaps even as enforcement was required.”

One agency that has added to the confusion is CPSC itself. In September 2011, after operators spent more than a year complying with CPSC’s 2010 ruling that defined an unblockable drain as one with an unblockable cover, the commission reversed itself. In a 3-2 vote, the two Democratic commissioners and Democratic Chairman Inez Tenenbaum passed a new ruling that requires sumps to also meet certain “unblockable” criteria.

“[The Democratic members of the commission] even refused my colleague Nancy Nord’s request to at least notify, prior to the vote, the state agencies responsible for pool administration and safety, and obtain their input,” Northup noted in her testimony earlier this year. “And after the majority rushed through this significant change, the chair took the virtually unprecedented step of choosing not to issue a press release even informing the public of the commission’s decision.”

Paying the price

Today, the combined repercussions from the numerous difficulties have made compliance with VGB and ADA a serious financial challenge.

“I can tell you there are still operators who are struggling with exactly what do [regarding VGB],” Fruia says. “They have yet to be compliant.”

VGB took effect Dec. 18, 2008. Then, more than two years later, just before Memorial Day weekend 2011, CPSC announced a federal recall of approximately 1 million drain covers. The far-reaching recall — the largest in industry history — included products from 10 manufacturers and affected hundreds of thousands of pools, according to CPSC.

And pool operators are left paying the price.

Earlier reports indicate that an analysis by the Congressional Budget Office estimated the cost of VGB would be minimal. However, according to the AI survey, 80 percent indicated that compliance with regulations has cost their operation $10,000 or more. Multiply that by 300,000 — currently the best estimate of the number of total commercial pools in the United States — and the total cost to the industry is approximately $3 billion.

The reinterpreted definition of an “unblockable drain” has only made compliance more of a financial challenge, Northup told the Subcommittee on Commerce, Manufacturing and Trade.

“At the pool to which I belong, the price of compliance went from an original price of several thousand dollars to almost $50,000 for final installation,” she stated. “It is therefore not surprising that we later learned … as a result of the commission’s precipitous and inexplicable action, many state, municipal and other public pool operators will be unable to afford this new and expensive mandate coming shortly on the heels of the expensive work required to come into compliance with the commission’s original interpretation. As a result, many public pools opened late or closed, with the brunt of the losses suffered by economically disadvantaged regions. … Children cannot learn to swim in closed pools, and economically disadvantaged children are at the greatest risk of drowning. To date, over 1,100 pools have closed throughout the country as a result of the cost of maintaining their operation. This outcome is inconsistent with even the most basic concepts of rational cost-benefit based rule-making.”

The jury is still out on the final cost of ADA compliance.

Ultimately, on March 15, 2012, the deadline for compliance, DOJ announced its decision to extend the deadline 60 days, until May 2012. At the same time, the agency opened a 15-day public comment period, seeking input on whether to extend the deadline further. Two months later, just before Memorial Day, DOJ officials essentially reversed their interpretation and extended the deadline for compliance until Jan. 31, 2012.

DOJ now says that for Title III facilities, portable lifts purchased before March 15, 2012, are allowed. But they must be kept in position for use at the pool, and operational during all times that the pool is open to guests.

The next shoe

What’s more, there’s concern that the same challenges that dogged VGB and ADA are impacting the Model Aquatic Health Code.

Like the federal legislation, the MAHC project got under way with the best of intentions. This CDC-led project is an effort to create a uniform, science-based road map “for local and state agencies needing guidance to update or implement standards governing the design, construction, operation and maintenance of swimming pools …, ” according to the MAHC Web site.

But once again, some are questioning who is involved.

“I think there’s a general mood that the vendors have more input than the operators,” Logan adds. “The feeling of not being able to have any input that’s meaningful is frustrating.”

Approximately 160 individuals serve on 12 technical committees drafting code for various aspects of operation. The intent was to include operators on every single committee, says Doug Sackett, assistant director of the New York State Department of Health, Bureau of Community Environmental Health & Food Protection He is overseeing the MAHC project for CDC.

A review of the committee members indicates that alongside health officials, manufacturers and designers, operators are on each committee. However, many of the operators involved are with large organizations, notes Shawn DeRosa, manager of aquatics facilities at Penn State University in University Park, Pa., and owner of Aquatics Consulting. Committees include representatives from Walt Disney World Co., YMCA of the USA and Great Wolf Resorts.

“I don’t think there is enough operator representation on the MAHC committees from the standpoint that there are all kinds of operators,” says Judith Sperling, principal of Sperling Aquatic Consulting in Los Angeles. “I have no idea whether there was consideration of public vs. nonprofit operators, but each one has their own niche, with different needs and concerns. I don’t think we have a real solid variety there.”

DeRosa adds that the public comment opportunities provide an important chance for all operators to contribute. Drafts of each piece of the code, one from each committee, are posted online for a 60-day period.

“Committee members depend upon comments from the ‘average, everyday pool operator’ to help bring a sense of balance to the guidelines,” DeRosa says. “The public comment period also allows for operators to weigh in on local codes and regulations that committee members may not even be aware of.”

As of press time, all but two of the 12 MAHC committees had posted draft modules for public comment, but a review of responses indicates that the majority of the feedback is from health department officials and manufacturers.

Sackett acknowledges that disseminating information and obtaining operator feedback has been challenging. “It still comes up that there’s more room for awareness,” he says.

To increase awareness, Sackett and his team have created a 13th committee, but encouraging operators to act will take more than just information. If there was one lesson learned from VGB and ADA, it’s that operators also need to be more proactive, Sperling says.

“Communication is a two-way street. You can’t just sit back in your office and not connect with the outside world and expect to stay up to date in aquatics,” she notes.

Active participation might mean anything from becoming part of a social network, such as AI Connect, to getting involved in industry organizations and joining operators such as Fruia on committees that need more representation.

Though joining an association can be more of a challenge than ever, with many facing tight budgets and heavy workloads as a result of staff cuts, Hellmann is one operator who believes it’s worth it.

It was his experience with VGB that pushed Hellmann to get involved in legislative issues, and today he is the California Park & Recreation Society Aquatic Section president.

“… If you can start out small and begin to connect with fellow professionals about the topic, then it can be manageable,” he says. “A word can change everything. You’ve got to look at [legislation] to make sure you don’t get blindsided.”

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