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DEPARTMENT OF JUSTICE’S GUIDANCE ON 

ACCESS TO POOLS AND SPAS UNDER THE ADA 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

APRIL 24, 2012 

Serial No. 112–112 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

RICHARD HERTLING, Staff Director and Chief Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

TRENT FRANKS, Arizona, Chairman 

MIKE PENCE, Indiana, Vice-Chairman 

STEVE CHABOT, Ohio 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

JERROLD NADLER, New York 

MIKE QUIGLEY, Illinois 

JOHN CONYERS, JR., Michigan 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

PAUL B. TAYLOR, Chief Counsel 

DAVID LACHMANN, Minority Staff Director 

(III) 

C O N T E N T S 

APRIL 24, 2012 

Page 

OPENING STATEMENTS 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Chairman, Subcommittee on the Constitution ....................... 1 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Ranking Member, Committee on the Judiciary, and 

Member, Subcommittee on the Constitution ..................................................... 5 

WITNESSES 

Hemant D. Patel, Chairman, Asian American Hotel Owners Association 

Oral Testimony ..................................................................................................... 9 

Prepared Statement ............................................................................................. 12 

Christa Bucks Camacho, Senior Executive Service Candidate Development 

Program, Social Security Administration 

Oral Testimony ..................................................................................................... 18 

Prepared Statement ............................................................................................. 20 

Ann Cody, Director, Policy and Global Outreach, Blazesports America 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 24 

Minh N. Vu, Partner, Seyfarth Shaw LLP 

Oral Testimony ..................................................................................................... 26 

Prepared Statement ............................................................................................. 29 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Ranking Member, Committee 

on the Judiciary, and Member, Subcommittee on the Constitution ................ 6 

Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on the Constitution .............................................................................................. 65 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Attachments to the Prepared Statement of Minh N. Vu, Partner, Seyfarth 

Shaw LLP ............................................................................................................. 68 

The bill, H.R. 4256, the ‘‘Pool Safety and Accessibility for Everyone (Pool 

SAFE) Act ............................................................................................................. 175 

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution .......................................................................................................... 179 

Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee 

on the Constitution .............................................................................................. 197 

(1) 

DEPARTMENT OF JUSTICE’S GUIDANCE ON 

ACCESS TO POOLS AND SPAS UNDER THE 

ADA 

TUESDAY, APRIL 24, 2012 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 4:38 p.m., in room 

2141, Rayburn House Office Building, the Honorable Trent Franks 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Franks, Nadler, Scott, and Conyers. 

Staff Present: (Majority) Holt Lackey, Counsel; Jacki Pick, Counsel; (Minority) David Lachmann, Subcommittee Staff Director; and 

Heather Sawyer, Counsel. 

Mr. FRANKS. I just want to welcome all of you today. You know, 

I usually have just a written opening statement, and I am going 

to read that in a moment, but if I could just speak to you just for 

a moment from my heart here. I know that there are a lot of people 

here that are trying to do every good thing that you can. And I 

want you to know there is nobody in the world on your side more 

than I am. 

One of the people in my office, a man named Brian Van Hovel, 

has worked for me for 10 years in this Congressional office. He is 

paralyzed from the neck down. And he is absolutely one of the most 

effective, best workers we have. 

Last year he was the staff member of the year in our office. And 

I want you to know that I care very much about your circumstances and the challenges that you have. And this isn’t about, 

this hearing today isn’t about some attempt to reduce access on 

anybody’s part. It is about making sure that the law is followed. 

And in the Administrative Procedures Act, that wasn’t done. And 

in a sense, that has two implications, I believe, for all of you—or 

for many of you. 

One, when the rule of law is ignored, it damages and hurts the 

rights of those who are either disabled or weaker than others, in 

the most profound way. Because otherwise, we would just have, 

you know, the survival of the fittest prevail if we don’t have the 

rule of law. And secondly, I believe that there are some implications to some of the policy here that could actually reduce the access of the handicapped and disabled in this situation. 

2 

So I just want you to know that. And I hope that we can find 

the best policy here. And this isn’t about—we are not hearing a bill 

as it were, we are trying to hear the truth from everybody. And I 

want everybody to have a chance to be heard. And I want you to 

have a chance to be heard. And if we do that, if we are respectful 

to each other, we have a chance do what only America has been 

able to do. With that, I am going to read my opening statement, 

and just want you to know that is just something I wanted to say 

to you. 

I want to welcome you all to this hearing on the Department of 

Justice’s Guidance to Access to Pools and Spas Under the Americans with Disabilities Act. This hearing is about transparency, 

open debate, and fairness in the regulatory process. Without objection, the Chair is authorized to declare a recess of the Committee 

at any time. Congress has given great power to Federal regulatory 

agencies, but we have done so within strict limits. A regulatory 

agency may not exceed the authority that Congress has given it, 

and it must abide by the Administrative Procedures Act, or the 

APA. 

Complying with Federal regulations is time consuming and very 

expensive. The least that Congress can do is to minimize the burden of regulation on American job creating and businesses to ensure that regulations are imposed according to the APA. 

In 2010, the Department of Justice issued a regulation, the ADA 

Standards for Accessible Design, which sets requirements to ensure 

that disabled Americans could access public accommodations. 

These standards were the result of a public rulemaking process 

dating back to 2004 guidelines adopted by the United States Access 

Board, an agency that develops design standards for disabled access. Like all new regulations, the 2010 Standards were subject to 

a comment period so that citizens could express their approval or 

their concerns, or perhaps even their ways of improving them. Like 

all proposed major regulations, the 2010 Standards were also submitted to the Office of Management and Budget for analysis of 

their costs and benefits, and then submitted to Congress so it could 

allow or reject them. 

One public accommodation that the 2010 Standards regulated 

was access into and out of swimming pools. Small swimming pools 

were required to have either a sloped entry or a pool lift. Larger 

pools were required to have two accessible means of entry, one of 

which must be a sloped entry or pool lift. 

On January 31 of this year, Department of Justice issued what 

it called a technical assistance document. DOJ claims that this document merely interprets the 2010 Standards, but it does more by 

detailing three new pool access requirements. The document states 

that pool lifts must generally be fixed rather than portable, pool 

lifts must remain at pool side and operational during all pool 

hours, and pool lifts cannot be shared between pools. Nothing in 

the 2010 Standards, the 2004 guidelines on which they were based, 

or the regulatory record drew any distinction between a portable 

pool lift and a fixed lift. The means of how a pool owner complied 

with the requirement to provide access into a pool, whether using 

a portable or a fixed lift, was not an issue, so it was not debated 

and analyzed during the rulemaking process. 

3 

Because DOJ invented these new requirements by circumventing 

the rulemaking process, there was no opportunity for the public, 

Office of Management and Budget, or Congress to comment, or any 

of you for that matter, to comment or analyze the DOJ’s guidance. 

This means that there is no adequate record of the cost, benefits, 

and impacts of this guidance. There is no record of the costs of buying portable lifts compared to construction necessary to install fixed 

lifts, or significantly, the potential risk that children playing 

around, like my 3-year old twins do on a moment’s basis, could 

hurt themselves in an elevator attached to a pool. 

DOJ skipped all of those steps that require them to show their 

work when making new requirements, and simply imposed their 

preferred policy. This policy will mean trial lawyers bringing more 

ADA lawsuits against businesses. It could actually impact you all 

in a very negative way. This is why a bipartisan group of Congressmen have called on DOJ to delay enforcing its so-called interpretations and begin a proper APA rulemaking process. Several bills 

have been introduced to address the issue directly, which may be 

necessary if DOJ will not comply with the APA. And I don’t know 

what else to add. 

I want to hear everyone here today. We are going to allow the 

Ranking Member to express his opinion. I am sure he is going to 

beat the tar out of me, and I am ready. Okay? So God bless you. 

And with that, I now yield to the Ranking Member of the Subcommittee, Mr. Nadler, for his opening statement. 

Mr. NADLER. Thank you, Mr. Chairman. Last week, the Subcommittee called a hearing on the Justice Department’s voting 

rights enforcement without inviting the Department of to testify. 

Now we have a hearing to examine Department of Justice regulations regarding the Americans with Disabilities Act and, once 

again, the Justice Department is not here to speak for itself, this 

time, having been invited much too late, less than a week ago, to 

be able to arrange for testimony today. Instead, we have a lawyer 

representing a hotel association who can speak to her clients’ interests, but unlike the Justice Department, is not obligated to make 

an objective assessment and issue regulations that serve all stakeholders, business owners and patrons alike, and achieves the law’s 

underlying purposes. 

As I said at last week’s hearing, holding hearings to examine the 

actions of a Federal agency without ensuring the agency’s presence 

might do for a kangaroo court, but it should not be the standard 

for the United States Congress. We should not be moving forward 

on this without hearing from DOJ, which made clear that if we 

would delay this hearing by a week they would be able to attend. 

Increasing access and opportunities are core goals of the ADA, and 

are critical to greater independence and community integration for 

people with disabilities. 

This law and these goals have always enjoyed widespread support. I hope that today’s hearing does not signal an erosion of our 

historic bipartisan commitment to the law’s guiding principles or to 

our promise of equality for our friends, families, co-workers, and 

neighbors with disabilities. One of the ADA’s guiding principles is 

that public entities and public accommodations must take ‘‘readily 

achievable’’ steps to increase access to existing facilities. The law 

4 

does not require that every step must be taken regardless of burden or expense. Rather, it requires only those that are ‘‘easily accomplishable and able to be carried out without much difficulty or 

expense,’’ which is exactly how ‘‘readily achievable’’ is defined in 

the ADA. 

This standard, established by Congress when it passed and the 

first President Bush signed the ADA 22 years ago, was sought and 

supported by the business community because it provides flexibility 

to determine what is achievable based on the covered entity’s particular circumstances. 

With this flexibility, of course, comes the responsibility for determining what is readily achievable for your own business. But a 

mom-and-pop outfit that operates three hotels will never be required to take the same steps as the Marriott chain. Given this, the 

current claim that every owner of an existing pool will have to install permanent or fixed lifts or pay civil penalties or cash settlements rests on an alarming and alarmist misreading of the ADA 

and the accompanying regulations. 

The ADA and the new regulations require a hotel to consider 

whether installing a sloped entry into a pool or a fixed or permanent lift is ‘‘readily achievable.’’ While we have heard and anticipate that some of the witnesses will testify today that the DOJ has 

demanded that all pool owners install a permanent or fixed lift in 

every pool, that simply is not the case. Here, in fact, is exactly 

what the Justice Department’s January 2012 guidelines provide. 

‘‘For an existing pool, removing barriers may involve installation of 

a fixed pool lift with independent operation by the user to the extent that it is readily achievable to do so.’’ ‘‘May,’’ not ‘‘must’’ install 

a fixed lift, and then only to the extent that doing so is readily 

achievable. 

There are compelling reasons why installing a permanent lift is 

preferable to a portable lift, and something that should be done if 

it can be done easily and inexpensively. A fixed or permanent lift 

is available at all times a pool is open without the need for staff 

to locate the lift, ensure it is in operating condition, and provide 

timely and safe installation. An underlying goal of the ADA is to 

achieve equality of access and independence. A fixed lift is far superior in achieving this goal, as it allows a person with a disability 

to access a pool on the same terms as everyone else. A fixed lift 

also poses no greater safety risk than any other means of entry or 

exit into a pool, and is no more likely to be misused by children 

or others, particularly as lifts become a more commonplace feature 

of our everyday landscape. 

Of course, while a fixed lift or a sloped entry, which is another 

possibility, may be the best options, they simply are not required 

unless ‘‘readily achievable,’’ which means if they are too hard or too 

expensive, the law doesn’t require either, and there is no possibility 

of civil penalties. The ADA requires courts to take into account the 

size and financial resources of the business in determining what is 

readily achievable, which means that small family-owned hotels 

are especially unlikely to have to install new lifts in their existing 

pools. Moreover, the DOJ has always focused enforcement of new 

ADA standards on education and technical assistance, making it 

5 

additionally unlikely for the Department to sue any business that 

has engaged in a good faith effort to comply with the law. 

It is also important to remember that this is not something that 

the Obama administration rushed through the regulatory process. 

The foundations for this rule originated under the second President 

Bush. The hotel industry has known about this issue for a decade, 

and has participated at every step of the way. Once the rules were 

finalized in September 2010, the hotel industry had an additional 

18 months to prepare before the pool standards were set to go into 

effect this month. 

Responding to concerns of some hotel groups, the DOJ has already delayed the effective date another 2 months to May 21, and 

is proposing to delay it again until September 2012. While these 

delays are being granted, Americans with disabilities are still waiting, and they have already been waiting a very long time. 

For these Americans, as for everyone else, access to water and 

the opportunity to swim provides tremendous physical, emotional, 

and social benefits. It allows, for example, a teenager in a wheelchair to get in the water and play with her peers. A mother can 

teach her children to swim so that the family all can enjoy this activity together. Swimming builds strength and self-confidence that 

translates in other critical and practical ways to one’s ability to 

gain greater independence by, for example, increasing one’s physical strength to perform self-care tasks like transferring from a 

wheelchair to a bed. 

We should never lose sight of these and the many other benefits 

that are gained when we live up to the ADA’s promises. And we 

certainly should not consider enacting legislation like H.R. 4200 or 

H.R. 4256 that would override a nearly decade-long regulatory 

process that merely sets the guidelines for what should be done by 

a business if readily achievable, and that would roll back critical, 

balanced, and negotiated civil rights standards. With that I look 

forward to hearing from the witnesses. I yield back the balance of 

my time. 

Mr. FRANKS. And I thank the gentleman. And since the Chairman of the full Committee is not available, we will now yield to the 

distinguished Ranking Member of the full Committee, Mr. Conyers. 

Mr. CONYERS. Thank you very much, Mr. Chairman. And I want 

to welcome all the witnesses. But I especially want to welcome all 

of the citizens who are concerned with this question of how we deal 

with the disabled and these regulations and whether they ought to 

be changed. 

Now, I want everybody to know, because I want to put most of 

my statement in the record, that two bills have been introduced 

that would nullify the Department of Justice’s regulation regarding 

access to swimming pools, and I oppose both these bills. Now, the 

fact that every seat in this place is taken, we have a couple hundred people outside in the hallway trying to get in; we have the access room, 2237, already filled up to capacity, it tells everybody on 

this Committee that this is a very important subject and that we 

want to move on it with great care and caution. 

Now, the disabled deserve extra attention, not less attention. 

And what we want to do is try to have a civil hearing. We got to 

remember that everybody on the Committee has a right to their 

6 

own opinion. And you as well have a right to your opinion. The 

only problem is that in a hearing, you can’t express your opinion, 

and we express ours and the witnesses express theirs. 

So we have to be cordial. It is not like at a baseball game, where 

you cheer when somebody does something that you like or you boo 

when somebody does something you don’t like. So please bear with 

us. And if necessary, we will have a follow-up to this hearing, or 

if we don’t have another hearing, I haven’t talked with the Chairman about this, but I am gratified that so many people have come 

to this hearing. It demonstrates how important access guaranteed 

under the Disability Act is to all of you. 

And so I welcome you all and thank you for being here. And I 

ask that the rest of my statement be included in the record, Mr. 

Chairman. And I yield back the balance of my time. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, Ranking Member, Committee on 

the Judiciary, and Member, Subcommittee on the Constitution 

Thank you, Mr. Chairman. 

Today’s hearing will examine regulations issued by the Department of Justice in 

2010 to enforce the Americans with Disabilities Act of 1990. That civil rights law 

was passed with overwhelming bipartisan support in both chambers of Congress 

and has enjoyed the support of both parties since, with this Committee voting 

unanimously to report favorably the ADA Amendments Act of 2008. Those bills 

sought to achieve equality of access and opportunity for people with disabilities. 

Both are protective civil rights measures that also take into account and balance 

the practical and financial needs of entities that must comply with its requirements. 

Unlike those bipartisan efforts, today we are considering whether Congress should 

undermine the DOJ’s ability to enforce one of this nation’s most important civil 

rights laws. This effort does not enjoy bipartisan support. 

I am especially disappointed that the Justice Department is not testifying at today’s hearing. It is my understanding that DOJ was invited to participate a week 

ago. As my colleagues are well aware, seven days is not nearly enough notice to obtain a witness from DOJ. This is the second time in as many weeks that this Subcommittee has invited hear critics of DOJ policies without the benefit of a DOJ witness. That is not the way to do oversight. There is no way members can get a clear 

and balanced understanding of the issue without hearing from the agency that is 

the subject of the hearing. 

In order to ensure that the Members are fully informed, I would ask the distinguished Chairman to commit to holding another hearing on this topic so that the 

Justice Department can participate before there is any effort to move legislation on 

this issue through the Committee. I believe that failing to do so would undermine 

the credibility of any legislative action we might take in the future. 

Despite my disappointment that DOJ is not here to provide its perspective, I am 

heartened that we have here with us today two witnesses who can speak to the very 

real harm that congressional interference in the enforcement of the ADA’s accessibility standards will cause for people with disabilities. One of these witnesses was 

invited by the Minority, and the other was invited by the Majority. That should not 

go without being noted. Their testimony should remind all of us why it is critical 

for us to move forward—not backwards—on enforcing the ADA. 

We need to keep three very important points in mind as we consider today’s testimony: 

First: The regulations at issue did not come out of the blue. They reflect two decades of public policy, and a decade of work on the particular standards. They have 

been the subject of public notice, public comment, and extensive scrutiny. 

Second: Legislation that would undercut or eliminate this rule is ill-considered 

and lacks the carefully crafted balance that is reflected in the Americans with Disabilities Act and the rule itself. 

Third: The rule itself is carefully crafted, flexible, and will not—contrary to many 

concerns that have been raised—impose an undue burden on affected businesses. Indeed, that burden is precluded not just by the rule, but by the ADA itself. 

7 

These regulations are not something that the Obama Administration cooked up 

and rammed through the regulatory process. The hotel industry has known about 

this issue for a decade, and the guidelines incorporated in the 2010 regulations were 

developed during the Bush Administration. The Access Board first issued pool lift 

standards in its accessibility guidelines for recreation facilities issued in 2002, which 

it then incorporated into its 2004 ADA Accessibility Guidelines. 

The pool lift standards of the 2010 ADA regulations come directly from those 2004 

guidelines, and follow a 6-year public notice and comment period, which started 

with issuance of an Advanced Notice of Proposed Rulemaking in 2004 and a two 

Notices of Proposed Rulemaking in 2008. The hotel industry and other key stakeholders participated in this process every step of the way. 

Once the regulations were finalized in September 2010, the hotel industry had another 18 months to prepare for the pool lift standards to go into effect, which was 

scheduled to happen on March 15, 2012. That date has now been delayed, with likely extension to September 2012, to provide additional guidance requested by the industry. 

Two bills have now been introduced in the House—H.R. 4200 and H.R. 4256— 

that would nullify DOJ regulations regarding access to swimming pools. H.R. 4200 

currently has 18 co-sponsors; all are Republicans. H.R. 4256 has 57 cosponsors, only 

one of whom is a Democrat. 

H.R. 4200 would strip DOJ entirely of its ability to enforce any of its regulation 

regarding access to swimming pools. H.R. 4256 would leave some of the DOJ’s regulatory guidance on swimming pools intact but would excuse public accommodations 

from providing a fixed lift for entry into a pool—that is, a lift that is affixed to the 

deck and available whenever a pool is open to guests—even where installing such 

a lift is ‘‘readily achievable.’’ That term—‘‘readily achievable’’—is defined in the ADA 

as meaning ‘‘easily accomplishable without much difficulty or expense’’ (42 U.S.C. 

12181(9)). Thus, H.R. 4256 excuses a hotel from installing a fixed lift even where 

it would be easy and inexpensive. 

It is important to make clear that, contrary what we have heard, neither the regulations, nor the January 2012 guidance require a fixed permanent lift in all cases, 

and the Justice Department already has taken steps to make this additionally clear. 

What is required by the ADA and the DOJ’s regulatory guidance is for pool owners to take steps to accomplish what is ‘‘readily achievable’’ based on the financial 

and other resources of the covered entity. The best option, if ‘‘readily achievable,’’ 

is a fixed, permanent lift or sloped entry into a pool, but if it is not ‘‘readily achievable,’’ it is not required. 

There are important reasons why fixed and permanent pool lifts are preferable 

where they are readily achievable. 

• A compliant fixed pool lift ensures that the lift will be consistently mounted 

for safe and independent use in an accessible location that complies with the 

requirements in the 2010 Standards and that persons with disabilities will 

not experience discrimination on the basis of their disability. 

• Prior to the pool requirements in the 2010 Standards, many older portable 

lifts were not independently operable and difficult to use by the swimmer. Because of these inherent flaws, individuals with disabilities did not feel safe 

using them and ultimately stopped asking for these lifts to be deployed. 

• The use of non-fixed portable lifts that are made available only on the request 

of a person with a disability raises safety concerns because of the possibility 

that the lift will not be assembled and located properly in relationship to the 

pool for the safe and independent use of a person with a disability. 

• In addition to safety concerns, the use of non-fixed portable lifts only on the 

request of a person with a disability significantly increases the likelihood that 

persons with disabilities will not be provided the equal opportunity the ADA 

requires in order to prevent discrimination on the basis of disability. 

But even though fixed/permanent is the better option, it is not legally required 

in all cases. While businesses that can install a permanent lift relatively easily and 

inexpensively should, those that cannot must simply consider what else might be 

‘‘readily achievable.’’ This might be, for example, providing a portable lift or transfer 

wall. Or it may mean doing nothing for the time being as the ADA also recognized 

that sometimes a business simply is not in a position to do anything until its financial circumstances change. 

It is therefore false to claim that all owners of existing pools are legally required 

to install permanent lifts. 

8 

It is also not the case that businesses face heavy monetary penalties if they do 

not install permanent lifts. While a court may assess civil penalties in a suit 

brought by the Justice Department to enforce Title III’s public accommodation requirements, a court must first consider ‘‘any good faith effort or attempt to comply 

with [Title III] by the entity,’’ making both the pursuit and imposition of civil penalties unlikely in any case involving a public accommodation that has made a good 

faith effort to comply with the law. Private parties are not entitled to money damages and may only obtain attorneys fees if they prevail in court. Businesses that 

voluntarily take corrective action may thus avoid liability for attorneys’ fees. 

So, Mr. Chairman, I hope that, if there is any effort to move legislation on this 

important issue, that we have the opportunity to hold another hearing first and 

have the most complete record we can assemble. The longstanding, bipartisan commitment to the ADA is too important to do anything else. 

With that, I yield back the balance of my time. 

Mr. FRANKS. I certainly thank the gentleman. Just for the record, 

the rule that we are discussing here today becomes effective May 

21 in part because of the circumvention of the regular process. So 

the time was of essence. If we were going to have any input in this 

at all, we had to hold a hearing earlier. And the DOJ was invited, 

but because of this time frame it was too late for them to come. 

We have invited them, and we look forward to their written comments just for the record. Without objection, other Members’ opening statements will be made part of the record. 

And our first witness, Hemant Patel, has owned and operated an 

independent hotel and franchise hotel outside Miami since 1989. 

Long active in his community, he serves as chairman of the Asian 

American Hotel Owners Association. Mr. Patel. 

Our second witness, Christa Bucks Camacho, has worked for the 

Social Security Administration in Maryland since 1999. Currently, 

she is the director of the Center for Records Management. Ms. 

Camacho has a significant disability which requires her to use a 

wheelchair, and she has been swimming throughout her life. Previously, she was a volunteer in the Peace Corps in Paraguay. 

Our third witness, Ann Cody, is currently the director of policy 

and global outreach for BlazeSports America, and a member of the 

International Paralympic Committee’s governing board. She is a recipient of the Congressional Award from the National Consortium 

for Physical Education and Recreation for Individuals With Disabilities. That is a nice short name. She represented the United States 

in three paralympics. And welcome, Ms. Cody. 

Our final witness, Minh Vu, is a partner with the law firm 

Seyfarth Shaw, where her practice focuses on labor and employment law. Previously, Ms. Vu served as counselor to the Assistant 

Attorney General for Civil Rights in the Department of Justice, 

where she represented the DOJ on the U.S. Access Board. She is 

testifying today as counsel for the American Hotel and Lodging Association. 

And I would just thank all of the witnesses for appearing before 

us today. And each of the witnesses’ written statements, your full 

statements, will be entered into the record in its entirety. So I 

would ask each of you as witnesses to summarize his or her testimony in 5 minutes or less. To help you stay within that time, there 

is a timing light on your table. When the light switches from green 

to yellow, you will have 1 minute to conclude your testimony. When 

the light turns red, it signals that the witness’ 5 minutes have exVerDate Aug 31 2005 09:59 Aug 02, 2012 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6601 H:\WORK\CONST\042412\73962.000 HJUD1 PsN: 73962
9 

pired. And I would also, because it always happens, admonish the 

witnesses to turn on your microphone before you talk. So Mr. Patel, 

you are recognized for 5 minutes, sir. 

TESTIMONY OF HEMANT D. PATEL, CHAIRMAN, 

ASIAN AMERICAN HOTEL OWNERS ASSOCIATION 

Mr. PATEL. Thank you. Honorable Judiciary Committee Chairman—Subcommittee Chairman Mr. Franks, Ranking Member Mr. 

Nadler, and the Members of the Committee. Thank you for the opportunity to discuss the need for safe access to public pools for all 

Americans. My name is Hemant Patel. I am the chairman of Asian 

American Hotel Owners Association, also known as AAHOA. Our 

nearly 11,000 members own in excess of 20,000 hotels in the 

United States, which is more than 40 percent of all hotels in this 

country. Many of our members own independent hotels, or limited 

service brands, with less than 100 rooms. 

The majority of our members have small outdoor swimming 

pools. These pools are largely unattended. They are principally 

used by our guests with children. AAHOA members are dedicated 

to providing excellent service to the traveling public, including the 

disabled community. We care deeply about our guests. We do all 

we with can to provide an enjoyable stay. We support the Americans with Disabilities Act. We spend a substantial amount of time 

and resources to remove barriers and provide accessibility to our 

hotels. We have always been good actors in complying with the 

Federal law, and we will continue to lead the way. However, we 

have serious concerns about the manner in which recent pool lift 

requirements from the Department of Justice will impact a struggling sector of our economy which has taken a beating in the last 

4 years. These concerns include whether actual safety and feasibility studies were considered, and whether a cost-benefit analysis 

would support the implementation of permanent pool lift requirements. The hotel guests who use our pools are typically families 

with children, and most of the pools are unattended by a lifeguard. 

Because of this, our first major concern is this permanent pool 

lift would become a safety hazard. It is highly likely that a pool lift 

would be used by children for playing or diving into the shallow 

end of the pools. With no one to monitor these activities, pool lifts 

could present a serious safety concern and issue for our children. 

The unattended pool lifts could also be a target of vandalism. If a 

guest with a disability subsequently uses a pool lift that has been 

broken or damaged because of acts of vandalism, this could pose a 

safety concern. The ability to offer disabled guests a portable pool 

lift instead of a permanent one would answer the serious concern. 

The second major concern is the costs of purchasing and installing permanent pool lifts. In speaking with hotel owners and pool 

lift manufacturers in recent weeks, the costs of pool lifts can range 

from $2,400 to $9,700, depending on the manufacturer, model, and 

type of lift ordered. The cost of installation can range from $500 

to $3,000 in the case of such a State like California. If a hotel 

owner with a small pool and a hot tub in California needs to install 

two permanent lifts, the costs of purchasing and installing two lifts 

could range from $11,000 to more than $25,000. 

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The Department of Justice will not allow owners to include the 

maintenance costs of the pool lifts when determining if it is readily 

achievable to install them. But to disallow the high cost of installation poses serious concerns. The costs of a pool lift alone is significant, but to add the additional costs of permitting, electrical bonding, and other installation requirements raises the bar even higher. 

It is significant to note that for those hotels that have had pool lifts 

in place for years, we have reported guests with disabilities have 

not been using the lifts. One of our board members reported that 

12 years ago he constructed a pool at the city of Austin, Texas. 

[Disturbance in the hearing room.] 

Mr. FRANKS. Ladies and gentlemen, speech is a civil right, too. 

Speech is a civil right, too. Speech is a civil right, too. Ladies and 

gentlemen. Ladies and gentlemen. Free speech used to be a civil 

right, too, ladies and gentlemen. The hearing is about making sure 

that all voices of Americans with an interest in this rule are heard. 

And I would appreciate the respect and order for the people that 

are talking here. This doesn’t reflect well on anyone. This doesn’t 

reflect well on anyone. All right, Mr. Patel, if you would proceed, 

sir. If you would proceed, Mr. Patel. 

Mr. PATEL. Thank you, sir. It is significant to note that for hotels 

that have had pool lifts in place for years, we have reports guests 

with disabilities have not been using the lifts. One of our board 

members reported that 12 years ago, he constructed a pool at his 

hotel in the city of Austin, Texas. At that time—— 

[Disturbance in the hearing room.] 

Mr. FRANKS. Ladies and gentlemen. Ladies and gentlemen. Access to the process is a civil right, too. Access to the process is a 

civil right, too. You were given access to this hearing. Ladies and 

gentlemen, I am going to have to call upon security here. If you 

don’t have respect for the civil rights of access to government, then 

we will have to clear it. I know that is what you want. 

[Disturbance in hearing room.] 

Mr. FRANKS. If security would close the door. Let me state for the 

record that the people who just left the room left of their own accord, and were not forced to leave by anyone. The reason that the 

Chair maintained restraint in a situation like this which you would 

normally not do, is because he is very aware that there are certain 

people who have exploited these individuals in a very despicable 

way that does not serve their cause or serve the cause of freedom 

in any way for anyone. 

And for those people I have great disdain. But with that, I would 

just say that the people being exploited were doing what they 

thought would bring attention to their issue, and I understand 

that. And that is why we did not clear the room by using security. 

And if security would please close the door, I would appreciate it. 

Mr. Patel, we are going to go ahead and continue here the best 

that we can. Again, part of this process is about process. It is about 

giving everyone a chance to be heard. And unfortunately, that has 

been breached today in a fairly significant way. And I apologize to 

the witnesses. 

Mr. PATEL. Sure. It is significant to note that for hotels that have 

had pool lifts in place for many years, there are reports that guests 

with disabilities have not been using the lifts. One of our board 

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members reported that 12 years ago he constructed a pool at his 

hotel in the city of Austin, Texas. At that time, Austin had a requirement that all hotels must have a portable lift for their guests 

with disabilities. During the 12 years that he has maintained a 

portable pool lift at the hotel, he has never had a guest request to 

use the pool lift. He is also a board member of Austin Hotel and 

Lodging Association. 

Based on his information and beliefs, none of the hotels in Austin 

has ever had a guest use their pool lift. Further, we have testimony 

from a member in the Washington, D.C. area. He had a pool lift 

at six hotels. In the past 9 years, no one has ever used them. This 

is a just an example of the evidence and statements we have collected. Hotels with fewer than 100 rooms are most negatively impacted by the pool lift mandate. The high cost of purchase and installation, along with the nonuse by guests makes it economically 

unrealistic for those small business owners. The end result will be 

many simply close their pools, which is not a benefit to anyone. 

With this serious concern, we strongly support the Pool SAFE 

Act of 2012. The Pool SAFE Act strikes the appropriate balance between providing individuals with disabilities access to hotel pools 

and spas while taking into important factors such as child safety, 

feasibility, and costs. 

We thank this Committee for the opportunity to testify in support of the important Pool SAFE Act. I welcome your questions. 

Thank you. 

[The prepared statement of Mr. Patel follows:] 

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Mr. FRANKS. Ms. Camacho, before I recognize you, the Chair 

notes the irony that perhaps one of the persons on the panel here 

with a great credential is not being allowed to be freely heard. And 

there is a great irony there that I think is unfortunate. But if you 

will proceed the best you can. 


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If you will turn on your microphone, please. 

TESTIMONY OF CHRISTA BUCKS CAMACHO, SENIOR EXECUTIVE SERVICE CANDIDATE DEVELOPMENT PROGRAM, SOCIAL SECURITY ADMINISTRATION 

Ms. CAMACHO. Good afternoon, Chairman Franks, Vice Chairman Pence, and Subcommittee Members. Thank you very much for 

inviting me. My name is Christa Bucks Camacho, and I am a person with a significant disability. And I have been swimming for all 

of my life. Today, my goals are to illustrate, by sharing my personal experiences, one, how important swimming is to the quality 

of my life, and two, how the ability to share portable lifts can limit 

or deny access to a pool. 

My parents started taking me to the swimming pool when I was 

6 months old. Later, as my ability to walk progressed slowly, swimming became even more important. That exercise eventually did 

help me to walk for a period of time. During middle school, I spent 

roughly a year in a full body brace following surgery. When my 

doctor said I was allowed to get in the pool as long as I kept my 

brace on, I was able to resume socializing with my peers and get 

the necessary exercise that I would need when my brace would 

eventually come off. 

I did regain the muscle strength I had lost following the surgery. 

And I say thank you to my mom, who made me this great bathing 

suit that fit over my body jacket. It had this colorful jacket that 

I wore over the top of it. Swimming enabled me to begin doing 

things out of the water that I had been unable to do before. I mean, 

I could go to the bathroom by myself, I could independently get in 

and out of a car, I could get into and out of bed on my own. 

Swimming helped me to become independent, and it has helped 

me stay independent. In recent years, when I broke my legs, I 

could not swim. However, when the casts did eventually come off, 

the doctor said I could get right back in the pool. And you could 

find me every day for a month in the pool. And I gained back my 

independence. The pool provided me relief from pain, and gave me 

the ability to do things again. I also am a mother of two children. 

During pregnancy, I exercised in the pool all the time. It was great 

for my health and the health of my child. I swam to provide exercise and also to relieve my stress. I was a working mom. 

Swimming continues to be a very important part of my life. I 

started taking my children to the pool at 6 months of age. I would 

ride the pool lift. And when I got in the water, another parent 

would pass me my child. We would have a great time splashing, 

singing songs, learning to put our face in the water. We have become a swimming family. My son Antonio, he swims on the swim 

team, and we go all the time. When he is in one side of the pool, 

I am in the other getting my exercise. 

I share these stories to illustrate to you a point. While swimming 

can be good for anyone, it is extremely important to the physical, 

mental, and emotional health of many millions of people with significant disabilities. For us, access to a swimming pool promotes 

personal health, social interaction, and family fun, not to mention 

stress relief. For many of us, access to a swimming pool means 

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more than having a recreational alternative. It is a quality of life 

issue. 

For me, however, access to a swimming pool has not always been 

easy, and at some facilities, it has been denied. When I visit a new 

pool, which usually occurs when I travel, I first look for the lift. My 

experience with fixed lifts has been positive. They are there, they 

are easy to spot, I pull up my wheelchair, I transfer, the lifeguard 

typically knows how to turn it on, and I get in the pool. I want to 

mention something to you about safety concerns that I have heard 

expressed. In my opinion, a fixed lift is no more hazardous than 

any other pool equipment. I say this because I am a parent of 

young children, and I spent a considerable amount of time in the 

pool with other parents and their children, and as someone who 

has taught swimming to other children. My experiences with portable lifts, on the other hand, have not always been good. When 

near the pool, portable lifts sometimes are in locations where I 

can’t get my wheelchair close enough, so I can’t transfer, I can’t get 

in the water independently. 

When I ask for a portable lift, it is not always made available. 

I usually have to show a lifeguard, when they find the lift, how to 

hook up the hose, how to attach the battery. And for a person who 

does not know how to do this, the lift would be effectively unavailable. Every time that a portable lift has been made available upon 

request, there has been a time that one has not been made available. I have been told that although a portable lift existed, it had 

been loaned out, or was put in a closet, could not use it because 

the battery was not charged, which would take another set of 

hours. 

When no lift was available, lifeguards refused to help me get into 

the pool or out of the pool, so the pool was not available to me. My 

personal experiences are consistent with the years of post-ADA access issues that helped inform the Department of Justice rules for 

ensuring access to swimming pools. By negating these rules or the 

ability to enforce them, H.R. 4256 would, one, give permission to 

those who deny such access to continue doing so; and two, invite 

those who have been more careful about making these pools accessible to people like myself to not do so anymore. Thank you for considering my testimony, and I am available to answer your questions. 

Mr. FRANKS. Thank you, Ms. Camacho. 

[The prepared statement of Ms. Camacho follows:] 

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Mr. FRANKS. Ms. Cody, you are recognized for 5 minutes. 

TESTIMONY OF ANN CODY, DIRECTOR, POLICY AND 

GLOBAL OUTREACH, BLAZESPORTS AMERICA 

Ms. CODY. Good afternoon, Chairman Franks, Ranking Member 

Nadler, and distinguished Members of the House Subcommittee on 


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the Constitution. My name is Ann Cody, and I am the director of 

policy and global outreach for BlazeSports America. BlazeSports 

assists communities across the country with providing access to 

sports and recreation for people with disabilities. I also serve on 

the governing board of the International Paralympic Committee, 

and as vice chair of the U.S. Olympic Committee’s Paralympic Advisory Committee. I hold a master’s degree in therapeutic recreation, and have worked in the recreation and sports industry for 

more than 20 years. 

As a three-time Paralympian in the sport of track and field, I 

spent 10 years training and traveling to competitions all over the 

world. In my professional life, I travel extensively. And as a wheelchair user, I have experienced firsthand the inability to use swimming pools and hot tubs when I am on the road. Ironically, much 

of my travel is for the purpose of educating local recreation and 

sport professionals about how to include people with disabilities in 

their programs. When I am traveling, I can’t just slap on a pair of 

running shoes and exercise on the treadmill. While many facilities 

have made the necessary adaptations, I find that pool lifts in hotels 

are the exception and not the rule. This is disappointing nearly 22 

years after passage of the ADA. And frankly, I am stunned that we 

are having this conversation in 2012. I have used a wheelchair for 

32 years, and swimming is one of the best forms of exercise for me. 

In my family, weekends and vacations revolve around water activities. Before I became disabled, I swam every day in the summer, and so did my siblings, friends, classmates, and peers. The 

swimming pool in our community was the hub of social interaction 

and physical activity. Children and adults with disabilities have a 

fundamental right to engage in the very activities that shape our 

relationships, our bodies, our health, and our communities. 

The ADA is a civil rights statute that aims to maximize the independence of people with disabilities and to promote full integration 

into all aspects of society. The ability to access swimming pools and 

other facilities is critical to achieving greater independence and 

community integration. Just as for anyone, and as Christa mentioned, being physically active is critically important for people 

with disabilities. We are among the most sedentary, most obese minority groups in the country. Physical activity significantly enhances our physical, mental, social, and emotional well-being. 

Swimming is a highly desirable activity for many people with 

mobility impairments, including our returning veterans, who benefit from swimming with their families for rehabilitation, and for 

fitness. ADA’s accessibility requirements for barrier removal in existing facilities are very reasonable. The rules are carefully crafted 

to take the needs of covered entities like hotels into account. The 

regulations direct public accommodations to use a fixed or permanent lift, or a sloped entry into the pool only, and only if either can 

be done easily, without significant difficulty, or expense. 

In my experience, similar to Christa’s, the best way to ensure access to swimming pools is a fixed, permanent lift. A fixed lift is 

there and ready whenever a person with a disability wants to 

swim. The person doesn’t have to find a staff person who knows 

where the lift is, who has the key, who knows how to operate it. 

In my experience, the keys often reside with a staff person who has 

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to be paged. If the person with the key is in the middle of a job 

or on a meal break, then we are left wondering if we will be able 

to use the pool at all because we don’t know when that person is 

going to show up with the key. 

In conclusion, it is excellent that DOJ has finally addressed accessibility standards for recreation facilities. It has been a long 

time coming, including swimming pools so that people with disabilities have opportunities that have been available to the general 

public all along. Exercise and recreation opportunities should not 

be withheld on the basis of a disability. And I would encourage the 

hotel industry to begin marketing and figuring out ways to let people with disabilities know that their amenities are inclusive and accessible. 

Recreation facilities such as swimming pools are key features of 

the lodging industry. The ADA pool requirements are not unduly 

burdensome. In an existing hotel, all that is required is what is 

readily achievable. Congress should ensure strong civil rights protections and end discrimination against people with disabilities. 

The ADA must be enforced, and the DOJ must have the enforcement power to do so. Please do not weaken the enforcement we 

need. That concludes my oral testimony, Mr. Chairman. 

Mr. FRANKS. Thank you, Ms. Cody. 

[The prepared statement of Ms. Cody follows:] 

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Mr. FRANKS. Ms. Vu, you now have 5 minutes. 

TESTIMONY OF MINH N. VU, PARTNER, SEYFARTH SHAW LLP 

Ms. VU. Good afternoon, Mr. Chairman and Members of the Subcommittee. On behalf of the American Hotel and Lodging Association, thank you for the opportunity to testify on the new and arbitrary pool lift requirements that the Department of Justice has 

issued in January of this year. 


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The DOJ issued these requirements without following the requirements of the Administrative Procedures Act, the Small Business Regulatory Enforcement Fairness Act, and Executive Order 

12866. These new requirements affect hundreds of thousands of 

businesses, all State and local governments, and all Americans who 

use the facilities at these establishments. Many other business 

groups have joined the Association in objecting to the DOJ’s end 

run around laws that are designed to ensure that rules are only 

issued after a thoughtful process that considers factors such as 

public safety, the cost to society, reasonable alternatives, and impact on small businesses. 

The AH&LA represents a wide variety of hotel owners and operators, many of whom are small businesses. I have served as the Association’s ADA Title III counsel since 2006. 

I want to begin by reiterating that the lodging industry recognizes the importance of providing access to its pools and spas to 

guests with disabilities. The industry is fully committed to this effort. After DOJ issued new ADA Title III regulations on September 

15, 2010, which I will call the 2010 final rule, most of the Association’s members researched their pool lift options and planned on 

buying or had already purchased portable pool lifts which complied 

with all of the requirements of the 2010 Standards. 

Now, some here have expressed negative experiences in the past 

with portable pool lifts, and what we must remember is that, up 

until now, there have not been any pool lift requirements, nor have 

there been any particular specifications for pool lifts. Therefore, we 

can anticipate that in the future, now that the Department of Justice has actually mandated a requirement to have pool lifts, that 

in fact their availability and accessibility will be ensured. 

Now, much to the surprise and dismay of the Association’s members, the DOJ decided to change the rules of the game on January 

31, 2012, only 6 weeks before the compliance deadline. In a technical assistance document that I will refer to as the Pool Lift Requirements Document and in subsequent communications with the 

AH&LA, the DOJ announced the following requirements: 

First, instead of portable pool lifts that can be purchased and 

used immediately, businesses must install fixed or built-in pool lifts 

that are attached to the pool deck. 

Second, instead of being brought out upon request, the pool lifts 

must be poolside or spa-side at all times when the facilities are 

open. 

Third, a pool lift cannot serve more than one body of water, according to the Department of Justice, even if there is a pool and 

a spa right next to each other in the same facility. 

The DOJ violated the Administrative Procedures Act when it 

issued the substantive new requirements without public notice or 

comment. These requirements—let me emphasize this—were never 

mentioned by the DOJ at any time during the rule-making process 

that led to the 2010 final rule, and it is nowhere mentioned in the 

2010 final rule that there is a requirement for a fixed lift or that 

it be out there all the time. 

Now, the DOJ’s disregard of the rulemaking process in this case 

has very serious consequences, and I will just mention a few. 

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First, there has been no analysis about the impact of these new 

requirements on small businesses, as required by SBREFA, or a 

cost-benefit analysis, as required by Executive Order 12866. 

Secondly, the DOJ did not consider the difficulty and costs associated with installing fixed lifts at existing pools or spas and 

whether they are outweighed by any benefits that only a fixed lift 

can provide. 

Installing a fixed lift requires a contractor, permits, a feasibility 

assessment, partial pool deck demolition, electrical bonding, and 

deck reconstruction even before the lift can be put in place. This 

is a completely different process than the purchase of a portable 

pool lift. 

We have heard some of the benefits and burdens of a fixed lift 

today, but this discussion should have been part of a regulatory 

process that followed the Administrative Procedures Act. Our objection is not to pool lifts but rather to the fact that the DOJ decided 

to issue requirements without ever having notice and comment on 

the issue so that we could hear all of the concerns that would be 

expressed. 

Third, the DOJ did not consider the increased risk of injury to 

children who will play on and jump off of the pool lift into the shallow end of the pool, which is where the pool lift has to be installed. 

The DOJ dismisses these concerns because it says there is no evidence of injury. But the access board study in 1996 does show evidence of injury in connection with use of the lift. 

In addition, we have to remember that we have never had this 

condition before. Never have there been pool lifts that are permanent and left out at an unattended swimming pool for children to 

play with. This is not a condition we have ever had. So, therefore, 

there wouldn’t necessarily be evidence of children being injured on 

these lifts. Nonetheless, we should not wait. The DOJ should not 

wait until a child is catastrophically injured before saying, gee, we 

should study this issue. This should be done before the requirements are issued. 

In fact, we tried to convince DOJ of this fact, and they dismissed 

the concerns. So we actually went to a national aquatic safety expert who has investigated over 600 pool accidents, and this individual stated that the conditions posed by the pool lift being unattended and fixed pose serious safety concerns that must be studied. 

There are a host of other concerns, including the liability that 

businesses will face if in fact children and other people injure 

themselves using unattended lifts. There are issues concerns individuals with disabilities being injured while using the lift, particularly at an unfamiliar lift that they have not used before. And, of 

course, there is also the real possibility that, because there is increased liability, that businesses will close their pools and spas instead of essentially buying the fixed lift. 

Let me just say one thing, also. The readily achievable defense— 

or not readily achievable defense is not a silver bullet at all. Because, essentially, once there is a requirement for a fixed lift, a 

business will have to decide—if it decides it can’t afford to do the 

fixed lift, it is going to be subject to a lawsuit, and it is going to 

have to defend that lawsuit. And defending that lawsuit in the 

best-case scenario, which is a victory, will cost more than actually 

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*See Appendix for the attachments submitted with this statement. 

putting in the lift in the first place. In the worst-case scenario, the 

business loses and pays its fees, the other side’s fees, and the costs 

of the lift. So it is really not a silver bullet. It is a no-win situation. 

I know my time is up, and we encourage this Committee and 

Congress to act to essentially nullify the DOJ’s illegal actions. The 

Pool SAFE Act accomplishes this objective, and we support it. 

Thank you. 

[The prepared statement of Ms. Vu follows:]* 


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Mr. FRANKS. Thank you, Ms. Vu. 

I will now recognize myself for 5 minutes to begin questioning. 

Mr. Patel, I will begin with you. 

In Arizona some years ago we had environmentalists pressing 

very hard to make sure that we didn’t clear small trees away from 

close towns because of the fear of impacting the environment. But 

what it did, of course, was to create a tinderbox close, and we on 

several occasions lost whole forests. 

And I am asking this question sincerely. If as a small business 

owner like yourself you find that the cost of installing and mainVerDate Aug 31 2005 09:59 Aug 02, 2012 Jkt 000000 PO 00000 Frm 00061 Fmt 6633 Sfmt 6601 H:\WORK\CONST\042412\73962.000 HJUD1 PsN: 73962

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taining a fixed pool lift for a spa and pool is too great or the liability, the risk that potentially comes with it, is too great, or the fear, 

as Ms. Vu mentioned, of having to defend the lawsuits of not doing 

it just in the right way, is it possible that some hotel owners might 

conclude, all right, we just won’t have a pool at all and that that 

could affect the accessibility not only of the disabled but for all individuals as well? 

Mr. PATEL. Thank you, Mr. Chairman. 

Yes. You know, going back many years, back in the early ’80’s 

some of the hotel owners just gave up with the pool because the 

insurance costs of just insuring the hotel with pool and without 

pool became a huge difference in insurance costs of hotel owners. 

And in this particular case also some of the—you know, some of the 

older hotels, let’s say, for example, from Florida, where I come 

from, usually just the small mom and pop hotels had pools to fulfill 

the needs of guests who like to be in sunny Florida with pools. But 

those old hotels have no room to put a pool and accessibility the 

factor. Now, going through the huge cost of putting a pool, I am 

pretty sure some of the hotel owners will end up giving away the 

pool, if that answers your question. 

Mr. FRANKS. It does. We don’t know how many, but, yes, it will. 

Mr. PATEL. It will. I am pretty sure it will. 

And, as you know, in this last cycle of the economy, the hotel industry has been hit so hard that so many hotels have been foreclosed. So you add another $15,000, $20,000 worth of cost to put 

a pool lift, guess where the hotel owner is going to end up. And you 

know how the market has been in the hotel industry. 

Mr. FRANKS. Yes. Well, the unfortunate issue here is that somehow the DOJ I think very deliberately have tried to cast this as 

a struggle between business owners and the disabled, when really 

it is a struggle against the fire, ready, aim approach of the DOJ. 

Ms. Vu, I would turn to you now. 

Some argue that because only the Justice Department rather 

than private parties can bring a claim for money damages under 

the ADA then small businesses won’t have to worry about privatesector trial lawyers suing them based on the DOJ’s new requirements. Is that something that you agree with? Or help us understand that. 

Ms. VU. I absolutely disagree with that statement. Frankly, the 

greatest level of litigation activity is brought by private plaintiffs, 

not necessarily by DOJ. And, as I had stated, once you have a requirement for a fixed lift, even if a hotel owner decides legitimately 

that perhaps it is not readily achievable for that business to install 

a fixed lift and it doesn’t do so, it is not immune from lawsuits at 

all. As soon as a private plaintiff sees that there is no fixed lift 

there, there will be a lawsuit filed. And they don’t have to give notice or do anything. They just file the lawsuit. And that will instantaneously result in the business having to hire an attorney to defend the lawsuit. 

Now, the readily achievable—or, rather, the not readily achievable defense is not a silver bullet, as I said, because it is a highly 

fact-specific analysis that requires the examination of at least five 

different factors. So essentially it is the kind of lawsuit that cannot 

be dismissed immediately. You have to go to the end basically for 

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an on-the-merits determination. That means that the fees will be 

high on both sides. And the hotel owner is essentially gambling 

that, in the best-case scenario, his position will be justified and so 

he will only have paid his own attorney’s fees, which could be 

maybe $50,000, $100,000. And if he didn’t pick correctly and he got 

bad advice the first go-around about whether it is readily achievable or not, then he is going to pay his own fees and the other 

side’s fees, and, of course, there will be injunctive relief that will 

be ordered and a fixed lift would have to be installed. 

So that is a very expensive proposition. The upshot is either you 

put in the lift or you close your pool. 

Mr. FRANKS. My last question is really for all of you, and I would 

like to thank you all for taking so much time here to come and talk 

to us and to shed light on the subject and the topic. But if the DOJ 

were to open a full rulemaking process, as they certainly should 

have for the new requirements, would each of you plan to participate so that any new rule would be informed by a full, transparent, 

and fair process and a fair record as possible? 

If it is all right, we will begin with you, Ms. Camacho, and you, 

Ms. Cody. Just quickly give me your answer. Would you be available to testify for a full, transparent process? 

Ms. CAMACHO. Mr. Chairman, I would be happy to, and I would 

welcome for people to come along with me on a swimming—— 

Mr. FRANKS. I am sorry you didn’t get that opportunity the first 

time. 

Ms. CAMACHO. And I think that we could answer a lot of questions with life experience. 

Mr. FRANKS. Ms. Cody? 

Ms. CODY. As I said, I am really concerned about the fact that 

we are here in 2012 having this conversation. I am happy to lend 

my expertise as an advisor, but I am not sure that a second hearing on this issue is warranted. 

Mr. FRANKS. I understand. 

Ms. Vu? 

Ms. VU. Yes. The Association would absolutely participate in 

such a proceeding. It is what we are really asking for. 

Mr. PATEL. Yes, Mr. Chairman. 

Mr. FRANKS. With that, I am going to just suggest that it is too 

bad that didn’t happen here. Because it certainly didn’t serve anyone well for the DOJ to proceed in sort of the lawless, again, fire, 

ready, aim approach that they took. 

Mr. Nadler, I recognize you for 5 minutes, sir. 

Forgive me, Mr. Scott first. 

Mr. SCOTT. Thank you, and I thank the gentleman for deferring. 

Ms. Camacho and Ms. Cody, what is wrong with the precedent 

that would be set if the normal regulatory process is bypassed? If 

we bypass the normal regulatory process with the legislation, what 

is wrong with that? 

Ms. CODY. Well, it presents an issue for us in terms of being able 

to enforce the Americans with Disabilities Act. If we look at the 

regulations and allow the Department of Justice, who has made 

their regulations clear and who has followed a very long process of 

getting public comment and input from everyone, I don’t understand why we would need to go back and force the Department to 

60 

again open up these regulations. We have been waiting a long time. 

There has been a lot of time and energy invested in developing 

these regulations, going back to the access board and the Bush administration and then when the Obama administration came in. 

Mr. SCOTT. Would every subsequent regulation be politicized if 

you went into legislation every time they came up with an enforcement? 

Ms. CODY. Yes. I think the answer is yes. 

Mr. SCOTT. Mr. Patel, what portion of an expense to comply with 

the ADA would be offset by tax credits? 

Mr. PATEL. I will say I don’t see any which will be offset by tax 

credits because of the fact, if there are any tax credits available 

from the Department of Justice to enforce this law, we haven’t 

been informed about it. 

Mr. SCOTT. Ms. Cody, are there tax credits available for compliance with ADA? 

Ms. CODY. Yes, there are. 

Mr. SCOTT. And what are they? 

Ms. CODY. Pardon? 

Mr. SCOTT. What are they? 

Ms. CODY. What are they? The tax credits are available. I don’t 

know the specific numbers and ratios, but they are available to 

business owners. 

Mr. SCOTT. The tax credit would pay 50 percent of eligible ex- penses up to a maximum of $10,000 after the first 250 for those 

who qualify. This would then cover half the cost of the lift. The rest 

would be a deductible. Is that right, Ms. Vu? 

Ms. VU. Congressman, there is a tax credit. There is also a tax 

deduction. It is limited. 

But that is not really the only issue here. It is not just about 

cost. The issue is also one about safety, child safety, the increased 

liability that would result from injuries that could happen to both 

individuals with disabilities and children. 

Mr. SCOTT. You have that with all pools. Is there any increase— 

Ms. Cody and Ms. Camacho, is there any danger with increased 

danger? 

Ms. CODY. Not in my experience. I know how to operate pool 

lifts. They are similar to other lifts. They are designed similarly to 

every accessibility mechanism that I use. And in my experience at 

my apartment complex, children who are there playing in the pool 

supervised by their parents, because they wouldn’t be there unsupervised, are curious about what the pool lift is, but once they understand what it is—I mean, they understand that it is not something to play with—just like an elevator or an escalator. And, besides, aren’t pools inherently dangerous for children to begin with? 

Ms. CAMACHO. May I offer some background based on my experience? 

I mentioned to you that we swam bright and early, my son and 

I, because he is on the swim team, and we have traveled to various 

pools throughout Maryland for swim meets this year. And when 

there are two pools at the facility, the swim meet will be going on 

in one and I will be swimming in the other one, and they have 

often open membership time in the other pools. And in my experience, when the lift is at the pool, there is no equipment being 

61 

moved around when there are lots of children all lining up to run 

their heats. They are constantly lining up and walking around the 

pool decks getting ready to swim a 100 meter dash. 

So in my experience, when you have to roll out a pool lift when 

you have many people around you, you are bringing in a hazard. 

When a lift is there, it is part of the facility. Kids see it as if they 

would see a diving board or they would see other pool equipment. 

In my experience with my children and being around their 

friends, we have not had issues with the lift. There will be questions of curiosity, maybe touching it to turn off the water valve. 

But it has been simply to explain to the children, well, that water 

valve is what makes the lift operate, and then I have had no further issues. 

Mr. SCOTT. Thank you, Mr. Chairman, and I thank the gentleman from New York for deferring. 

Mr. FRANKS. I thank the gentleman. 

I recognize the Ranking Member, Mr. Nadler, for 5 minutes. 

Mr. NADLER. Thank you. 

Ms. Vu, you testified that DOJ, the Department of Justice, did 

not know about and had never considered the work involved with 

the installation of a fixed lift before issuing the new requirements. 

You also testified that the January, 2012, guidance was the first 

time that your Association’s members knew that fixed lifts should 

be installed, if doing so is readily achievable. 

But the American Hotel and Lodging Association submitted comments to the DOJ in 2005, 7 years earlier, with cost estimates that 

included the cost of building permits for installing lifts. A building 

permit isn’t needed for a portable lift but only for a permanent lift. 

Doesn’t this cast doubt on whether the Association can truly claim 

surprise since your cost estimates were based on a fixed lift as the 

recommended standard back in 2005? 

Ms. VU. You asked several different questions in that—— 

Mr. NADLER. No, I asked one question. Don’t the facts that I outlined cast doubt on the statement that the Association was surprised, since you had cost estimates for this back in 2005? 

Ms. VU. Well, let me say this. If you look at both the proposed 

rule that eventually became the final rule and you also look at the 

entire regulatory record from the access board, every time—the 

only times that the term ‘‘pool lift’’ was ever defined, that was on 

three separate occasions in the access board rulemaking process. 

The definition of pool lift included portable lifts, fixed lifts, and also 

removable lifts. 

Mr. NADLER. Excuse me. Do you need a building permit for a 

portable lift? 

Ms. VU. That is—absolutely not. 

Mr. NADLER. Therefore, you were talking about a permanent lift 

in your testimony or in your submissions back in 2005. 

Ms. VU. With all due respect, let me say this. 

The way the final rule came out, there was no specific requirement for a fixed lift. It was basically the business owner that could 

choose whether it was going to go with a fixed lift, a portable lift, 

or some other type of lift. The 2010 Standards contain nine separate, very specific requirements about what a pool lift needs to do, 

and fixed being attached to the pool deck is not one of them. 

62 

Mr. NADLER. Okay. But a fixed lift was one of the alternatives, 

and you gave cost estimates—or your Association gave cost estimates back in 2005, which means you weren’t surprised by this in 

2012. 

Also, in 2005, AH&LA raised safety concerns describing lifts as 

an attractive nuisance to children, as you did a few minutes ago. 

Again, if this is a concern that you claim is limited to fixed or permanent lifts, doesn’t this also call into question your current claim 

of surprise over the fixed lift requirement—or recommendation, I 

should say? 

Ms. VU. Actually, not at all. In fact, obviously, those concerns 

were expressed, and in the final rule as well as the entire rulemaking there was never a requirement for a fixed lift. That would 

seem that DOJ actually heard the safety concerns at that point. 

Mr. NADLER. But there is still no requirement for a fixed lift. 

Ms. VU. Well, there is now after DOJ has announced it in the 

January 31st document. 

Mr. NADLER. Only if it is readily achievable. 

Ms. VU. Yes, but that means presumptively it is required, unless 

the business can demonstrate that it is not readily achievable, 

using a test that is virtually impossible to administer. And that 

subjects the business to a lawsuit it must defend to the bitter 

end—— 

Mr. NADLER. But why is DOJ now—if you had concerns about 

safety problems with this back in 2005, why did you wait until 

2012 to submit these concerns? 

Ms. VU. The Department of Justice never proposed fixed lifts as 

the only option. There was always the option—— 

Mr. NADLER. That is still not the only option. Only if it is readily 

achievable. 

Ms. VU. Well, the way the Department has—basically, readily 

achievable is only an option—is a defense. The presumption is you 

must follow the 2010 Standards unless you can demonstrate that 

it is not readily achievable. If the Department of Justice would like 

to issue a guidance today that says that you don’t have to put in 

a portable lift—I mean a fixed lift—and that it is not just only in 

the instances where it is readily achievable and you don’t have to, 

we would be delighted by that. 

Mr. NADLER. Since there seems to be a dispute between what we 

are told was required by the Justice Department and what you say, 

don’t you think we should hear from the Justice Department on 

this? 

Ms. VU. You know, we really were hoping that the Department 

of Justice would actually be here today. 

Mr. NADLER. So your answer is yes. 

Ms. VU. Absolutely. But, as I understand it, they were invited. 

Mr. FRANKS. They were invited. 

Mr. NADLER. They were invited a week ago, and they have told 

this Committee on previous occasions that they need at least 2 

weeks to prepare, and they then asked us to postpone this by 1 

week so they could be here, and they were told no. 

Mr. Patel and Ms. Vu—Mr. Patel, Ms. Camacho testified that her 

experience with portable lifts has often been negative and that she 

had been told by hotels that they have a lift but it has been loaned 

63 

to another hotel or it is broken or otherwise unavailable. What is 

your response to her in that situation, better luck next time? 

Mr. PATEL. I will disagree with her. As you know—— 

Mr. NADLER. Wait a minute. You will disagree with her? That 

never happened? 

Mr. PATEL. About the pool lift. 

Mr. NADLER. Yes, that she didn’t have that experience? That 

portable pool lifts, she wasn’t told they are unavailable now, they 

are loaned, they are not here? 

Mr. PATEL. If I may understand your question correctly, sir— 

sorry. 

Mr. NADLER. My question is, we are told that one problem with 

the portable pool lift is that it is often not there. It is unavailable. 

It has been lent to somebody else. Excuses are made. And if you 

don’t have a permanent pool lift but only a portable pool lift, it is 

often not available when it is needed. 

Mr. PATEL. I think I will disagree with her that, you know, we 

have made many corrections through the years, so many of our 

members own old properties, and we respect the community and 

we have made so many changes, which is not just because of the 

cost of retrofitting our rooms to the standards. We have spent 

money. So I don’t think we will ignore that fact. 

But as every hotel—if you are standing in a queue for a hotel to 

renting a room and if there are five people in front of you, obviously, you know, a 10-minute wait is much less a complicated issue 

than to have a pool lift, which can create a huge liability for a 

hotel. What would you prefer? 

Mr. NADLER. Well, you have gotten far afield of my question. 

Might she and the Justice Department—she having experienced 

the unavailability of portable lifts when needed on several occasions, might she and the Justice Department not also have legitimate concerns that while a fixed or permanent lift is guaranteed 

to be placed where it is safe in terms of water depth, location, et 

cetera, a particular staff person called upon to set up a portable lift 

might not know in a given case how to ensure safe setup, and 

shouldn’t this also be a safety and liability concern for hotel owners? 

It is easier, in other words, when you install a permanent lift to 

make sure it is done right than to be sure that every employee puts 

the portable lift in right every time. 

Mr. PATEL. I haven’t experienced that, you know, as I have some 

of my members who have lifts for many years. Especially in the 

case of Austin, they have installed the lift, and in 11 years nobody 

has used it. 

I will still say that a portable lift is a much better option and, 

you know, our employees will equally do the same to accommodate 

the needs if the portable lift is asked. I haven’t experienced that. 

Mr. NADLER. My last question is, since Mr. Patel just testified 

that many of his members installed a permanent lift and nobody 

ever used it, in other words, it is not necessary, when Ms. 

Camacho—— 

Mr. PATEL. That is not what I said. 

Mr. NADLER. That is not what you said? 

64 

Mr. PATEL. It is a portable lift, not permanent. A portable lift in 

Austin, Texas. We have so many hotel owners—— 

Mr. NADLER. You have put in lifts, and nobody ever used them? 

Mr. PATEL. Yes. 

Mr. NADLER. Okay. 

Now, Ms. Camacho and Ms. Cody, when you travel on your own 

or with your family, what steps do you take to ensure that the 

places you stay will be accessible and how highly do you rank having access to a pool? Have you chosen a particular hotel over another hotel because of accessibility and have there been times when 

you simply couldn’t find a hotel in the area that you were traveling 

to that was accessible that had a portable or permanent lift? 

Ms. CAMACHO. Yes. Am I on? 

Accessibility is of utmost importance to me, and when we make 

a reservation, we ask about the amenities. We ask about the accessibility in the hotel room, about the shower, and the bathroom facilities. We also ask about the pool and what is available at the 

pool. And I have to say that sometimes when you travel, you know, 

it is not always what people say on their Web site or what they 

say on the telephone. 

Mr. NADLER. Thank you. 

Mr. FRANKS. Thank you, Mr. Nadler. 

Just for the record, we did in fact, as I say, invite the DOJ. 

Given the way that they approached this, regardless of the outcome, not even speaking to that, the process here was so mishandled and completely disregarded the law, if I had been them 

perhaps I would have been ashamed to show up here as well. But 

the notion that they had to have 2 weeks to be here, they could 

have been here if they had wanted to be here. I certainly want 

to—— 

Mr. NADLER. Mr. Chairman, I must say I object to the tenor of 

your remarks just now. It is standard practice to give executive 

agencies 2 weeks. They have told this Committee on many occasions they require 2 weeks. They weren’t ashamed to show up here. 

They have done nothing improper. And they did ask for one additional week. If this hearing had been held next week, they would 

have been here. Obviously, the leadership of this Committee didn’t 

care whether they were here or not. 

Mr. FRANKS. If they weren’t ashamed to be here, they should 

have been, and your objection is noted. 

Without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses 

which will be forwarded; and I ask the witnesses to respond as 

promptly as they can so their answers may be made part of the 

record. 

Without objection, all Members will have 5 legislative days with 

which to submit any additional materials for inclusion in the 

record. 

Mr. NADLER. Mr. Chairman, before you finish—go ahead. 

Mr. FRANKS. Do you have additional—— 

Mr. NADLER. I ask unanimous consent to place in the record a 

letter from the Department of Justice from October, 2010—— 

Mr. FRANKS. Without objection. 

65 

Mr. NADLER [continuing]. Asking that they always have 2 weeks 

notice for appearing at these hearings. 

[The information referred to follows:] 


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Mr. FRANKS. With that, again, I sincerely thank the witnesses. 

The Chair has made a tremendous effort here to try to give everyone a chance to speak. In fact, as you note on the panel today, 

there are two people that are essentially in favor of the DOJ and 

two that are not. That is generally not the way that we do it. 

So I thank all of you for being here, and may the best policy prevail. 

With that, this meeting is adjourned. 

[Whereupon, at 6 p.m., the Subcommittee was adjourned.] 


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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

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Attachments to the Prepared Statement of Minh N. Vu, Partner, 

Seyfarth Shaw LLP 

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Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Chairman, Subcommittee on the 

Constitution 


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1DOJ published the final rule updating its regulations implementing the Americans with Disabilities Act (‘‘ADA’’). See, e.g., Nondiscrimination on the Basis of Disability in State and Local 

Government Services, 75 Fed. Reg. 56163 (Sept. 15, 2010). 2 Included with its revisions to the regulations, DOJ also adopted the 2010 ADA Standards 

for Accessible Design (Nov. 15, 2010) (available at www.ada.gov/2010ADAstandardslindex.htm). 

Prepared Statement of the National Association of Home Builders 

On behalf of the more than 140,000 members of the National Association of Home 

Builders (NAHB), we appreciate the opportunity to provide testimony on the Department of Justice’s Guidance on Access to Pools and Spas Under the ADA. 

The National Association of Home Builders (‘‘NAHB’’) is a Washington, D.C.-based 

trade association whose mission is to enhance the climate for housing and the building industry. NAHB helps promote policies that will keep housing a national priority. A federation of more than 800 state and local associations nationwide, 

NAHB’s membership includes over 140,000 members who will construct about 80 

percent of the new homes built each year in the United States. 

Residential construction is a highly regulated industry and home builders comply 

with numerous federal, state and local statutes and regulations during the course 

of operating their businesses. NAHB remains actively engaged on many fronts to 

ensure that its members receive up to date information and education on changing 

regulations and laws. As part of its advocacy efforts, NAHB seeks to ensure that 

proposed federal regulations are promulgated in accordance with all procedural requirements set forth under the Administrative Procedures Act (‘‘APA’’). 5 U.S.C. 

§§ 551 et seq. 

NAHB’s members take their obligations to comply with the Americans with Disabilities Act (‘‘ADA’’) seriously, and NAHB strongly supports the ADA’s goals in removing discriminatory barriers. Accordingly, NAHB welcomes the opportunity to 

speak out on Delaying the Compliance Dates for Certain Requirements of the Regulations Implementing Titles II and III of the Americans with Disabilities Act dealing 

with accessible pools and spas. NPRM, 77 Fed. Reg. 16196.1

NAHB agrees with DOJ that additional time is necessary to ensure consistent application of the rules to existing facilities and urges DOJ to, at a minimum, extend 

compliance until the proposed September 17, 2012 date. Additionally, for the reasons discussed below, NAHB calls upon members of Congress to urge DOJ to withdraw Revised ADA Requirements: Accessible Pools—Means of Entry and Exit (U.S. 

Dept’s of Justice, Jan. 31 2012) (hereinafter ‘‘TA Document’’) or, in the alternative, 

undertake a regulatory review of the TA Document pursuant to the APA and small 

business review analysis as required by the Small Business Review and Enforcement Act (‘‘SBREFA’’). 

DOJ’s TA Document substantively changes the requirements of the final regulations and the 2010 Standards,2 and does so without affording the public and regulated community an opportunity to participate fully through the rulemaking process. 

DOJ describes the TA Document as a means ‘‘[t]o help educate pool owners and operators concerning the requirements imposed by the regulations[.]’’ NPRM, 77 Fed. 

Reg. at 16197. But, it is much more than an educational tool because it changes 

the regulations by requiring public accommodations choosing pool lifts as a means 

of removing barriers to install fixed pool lifts first, unless ‘‘installation of a fixed lift 

is not readily achievable[.]’’ See TA Document at 3. A public accommodation ‘may 

then consider alternatives such as use of a portable pool lift that complies with the 

2010 Standards.’’ Id. (emphasis added). This position contravenes the specific language in the 2010 Standards, which does not require that public accommodations 

go through that analysis—i.e., a portable pool lift only after determining a permanent fixed pool lift is not readily achievable. Moreover, DOJ’s newly stated position, 

encapsulated in the TA Document, is not merely the agency’s interpretation of existing requirements, but is itself an ‘‘agency statement of general or particular applicability and future effect’’ from which consequences will flow—compelling property 

owners and managers subject to the ADA to install fixed lifts at pools and spas— 

or face the consequences of noncompliance. 5 U.S.C. § 551(4) (APA definition of a 

‘‘rule’’). 

In letters to hotel pool owners associations, DOJ stated the ‘‘2010 Standards apply 

to a built-in or ‘fixed’ pool lift or sloped entry that complies with the 2010 

Standards[.]’’ DOJ, Letter to the Asian American Hotel Owners Association 2 (Feb. 

24, 2012), available at http://www.ada.gov/aahoalletter.htm; DOJ, Letter to 

American Hotel and Lodging Association (Feb. 21, 2012), available at http:// 

www.ada.gov/ahlalletterl2l21.htm. However, sections 242 and 1009.2 of the 

2010 Standards are silent as to the type of pool lift required and neither differentiates between fixed permanent lifts and portable lifts. 

185 

Moreover, DOJ seeks to circumvent public comment on the TA Document by specifically limiting the scope of the Notice of Proposed Rule Making (NPRM) and advising the public it will not entertain comments on anything other than the deadline. DOJ states in the NPRM that it does not ‘‘seek comments related to the merits 

of the requirements themselves. . . . [DOJ] will deem any such comments on this 

NPRM out of scope and will not consider them.’’ NPRM, 77 Fed. Reg. at 16197. 

DOJ’s position on the TA Document is contrary to the APA because DOJ never submitted this substantive change through the APA’s notice and comment rulemaking 

process, nor through SBREFA. 

DOJ’s intention to limit the ability of the public to have notice of and comment 

on the TA Document’s applicability creates an impermissible restriction on the 

public’s due process rights to participate fully in the regulatory process. See, e.g., 

5 U.S.C. §§ 551 et seq. APA section 553 mandates that agencies must publish a general notice of a proposed rule in the Federal Register at least 30 days before the 

proposed rule is to take effect. 5 U.S.C. § 553(c). The purpose of affording the public 

an opportunity to receive notice of proposed rules and allowing time for comments 

is ‘‘to reintroduce public participation and fairness to affected parties after governmental authority has been delegated to . . . agencies,’’ and ‘‘assure[s] that the agency will have before it the facts and information relevant to a particular administrative problem, as well as suggestions for alternative solutions.’’’ American Hosp. Ass’n 

v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987) (internal citations omitted). 

DOJ has denied the public and affected stakeholders the opportunity to participate fully in the rulemaking process and has circumvented the opportunity to provide information regarding reasonable alternatives, costs associated with compliance, and impacts on small businesses. The TA Document does not qualify as an 

exception to notice-and-comment rulemaking under the APA governing ‘‘interpretive 

rules, general statements of policy, or rules of agency organization, procedure or 

practice.’’ 5 U.S.C. § 553(b)(3)(A). That is because the TA Document imposes ‘‘substantive rules’’ from which legal obligations flow. Batterton v. Marshall, 648 F.2d 

694, 701–02 (D.C. Cir. 1980). In addition, merely because DOJ describes the TA 

Document as ‘‘technical assistance’’ developed to ‘‘help educate pool owners and operators,’’ this is not enough to cure its procedural defects. NPRM, 77 Fed. Reg. at 

16197. In fact, the document’s title, ‘‘ADA 2010 Revised Requirements . . .’’ puts 

stakeholders on notice that the agency views these as required for compliance. 

DOJ’s own description as ‘‘technical assistance’’ is unavailing as the TA Document 

purports to bind regulated entities. Gen. Elec. Co. v. EPA, 290 F.3d 377, 382–85 

(D.C. Cir. 2002). 

In conclusion, NAHB supports an extended deadline for compliance with certain 

requirements of the ADA Title II and III implementing regulations, until September 

17, 2012, as noted in the NPRM, for the purpose of rectifying the disparity between 

the regulations and 2010 Standards, and the TA Document. NAHB urges DOJ to 

withdraw the 2012 TA Document to ensure compliance with the APA, and consistency with the 2010 regulations and the 2010 Standards. In the alternative, if DOJ 

does not withdraw the TA Document, NAHB believes the subcommittee should examine DOJ’s compliance with the APA and SBREFA. 

NAHB appreciates the opportunity to provide this statement to members of the 

Subcommittee. NAHB looks forward to working further with members of Congress, 

regulatory agencies and other interested parties to find solutions to these issues. 

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Material submitted by the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution 


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Prepared Statement of the National Disability Rights Network 

As the nonprofit membership organization for the federally mandated Protection 

and Advocacy (P&A) Systems and Client Assistance Programs for people with disabilities, the National Disability Rights Network (NDRN) would like to thank Chairman Franks, Ranking Member Nadler and the Subcommittee for the opportunity to 

submit written testimony for today’s hearing on the Department of Justice’s Guidance on Access to Pools and Spas under the Americans with Disabilities Act. Over 

twenty years after the passage of the Americans with Disabilities Act (ADA), the 

accessibility of swimming pools and other recreational facilities remains a problem 

for people with disabilities around the country. NDRN encourages the Judiciary 

Committee to work with the Department of Justice and with swimming pool owners 

to ensure that people with disabilities are able to enjoy swimming pools and other 

recreational facilities to the same extent as others in our society. 

As a part of the training and technical assistance that NDRN provides to the Protection and Advocacy agencies, NDRN holds many face-to-face meetings in hotels 

throughout the country. As such, NDRN routinely books hotel rooms and wants our 

staff, the staff of the P&A agencies, and other participants to have the opportunity 

to enjoy all the amenities provided by the hotels. As a disability rights organization 

whose staff and membership include people with disabilities, we are committed to 

holding our conferences and meetings at locations that provide full accessibility. 

The effective date for swimming pool owners to become compliant with ADA 

standards was originally March 15, 2012, but the Department on its own chose to 

extend that time until May 21, 2012. Based on the history of these standards discussed below, NDRN believes that this first extension was unnecessary and sees no 

reason (politically, practically, or in the furtherance of public policy) to extend this 

compliance date any longer. The 2010 ADA Accessibility Standards did not create 

the requirement for accessibility for pools and spas; it only provides more detailed 

specifications of how to provide that accessibility. 

Protection and Advocacy programs across the country have represented people 

with disabilities seeking access to public swimming pools. For example, P&As in 

Pennsylvania, Ohio, and Colorado have successfully negotiated agreements with 

owners of pools to provide pool lifts to allow individuals with disabilities to use 

those pools. Despite these modest successes, most people with disabilities throughout the country continue to be unable to access swimming pools on the same basis 

as their non-disabled peers. 

The Department’s process to develop accessibility guidelines for swimming pools 

began over 7 years ago on September 30, 2004, when the Department published an 

Advance Notice of Proposed Rulemaking (ANPRM), 69 FR 58768. This ANPRM requested feedback about the Department’s proposal to adopt the Access Board’s 2004 

revisions to the ADA Accessibility Guidelines (ADAAG), which included provisions 

for swimming pool accessibility. The Department then published a Notice of Proposed Rulemaking almost 4 years ago on June 17, 2008 seeking public comment, 

73 FR 34508. The Final Rule was formally published in the Federal Register on 

September 15, 2010, 75 FR 56254, and gave owners and operators of existing pools 

18 months before the specific regulations became enforceable. 

Enough time has passed to allow swimming pool owners to make their pools comply with the ADA. Over 18 months has passed from the date the final rule was announced, over 4 years has passed from first proposal of a final rule, and over 7 years 

has passed from first the first proposal to adopt the ADAAG standards for pools and 

spas. Moreover, the requirement to remove barriers to accessibility to swimming 

pools for people with disabilities has been part of the statutory requirement under 

the Americans with Disabilities Act since it was passed in 1990, almost 22 years 

ago. The need for pools and spas to be accessible for people with a disability is not 

some new idea, but one that has been in federal law for more than 2 decades. 

Additionally, the Department’s regulations provide more than sufficient flexibility 

since the requirement is removal of physical barriers that is ‘‘readily achievable,’’ 

or easily accomplishable and able to be carried out without much difficulty or expense. 

The swimming pool owners have raised concerns about the Department of Justice 

requirement that they install fixed rather than portable lifts. The Americans with 

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Disability Act Accessibility Guidelines, or ADAAG, include specific guidelines regarding the installation of pool lifts. See http://www.access-board.gov/ada-aba/ 

final.cfm#a1009. Generally, portable pool lifts cannot meet the ADAAG standards, 

because they cannot be installed or independently operated by people with disabilities. As the Department of Justice has indicated, however, if an entity chooses to 

use a lift complying with the ADAAG standards that is removable or otherwise designated as ‘‘portable,’’ it may do so, as long as while the lift is provided at the pool, 

it is affixed in some manner to the pool deck or apron. 

NDRN is pleased that some members of the hotel industry have realized that over 

the course of 22 years the ADA applies to the accessibility of their pools and have 

taken a proactive approach and installed pool lifts. For example, in recent negotiations with a hotel chain to hold a conference, NDRN raised the issue of whether 

the swimming pools were accessible for people with disabilities, and were assured 

that all the hotels were in compliance with all current ADA laws and regulations 

concerning the pool and had a pool lift. In addition, they were prepared to comply 

with any and all revisions to Title 3 of the ADA that may occur, and took, ‘‘great 

pride in ensuring . . . our properties meet and exceed any government regulation.’’ 

As NDRN continues to contract for our business meetings as well as our staff 

making their own personal summer travel and vacation plans, we believe that people with disabilities should be able to enjoy the same recreational amenities and opportunities as every other American. Delaying the effective date of the regulations 

any further will mean another season where people with disabilities will be denied 

the opportunity to use pools when they travel on vacations with their families or 

on business. This is unacceptable. 

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