    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

    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

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                           COMMITTEE ON THE JUDICIARY

                          LAMAR SMITH, Texas, Chairman
    F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
        Wisconsin                        HOWARD L. BERMAN, California
    HOWARD COBLE, North Carolina         JERROLD NADLER, New York
    ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT,
    BOB GOODLATTE, Virginia                  Virginia
    DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
    STEVE CHABOT, Ohio                   ZOE LOFGREN, California
    DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
    MIKE PENCE, Indiana                  MAXINE WATERS, California
    J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
    STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
    TRENT FRANKS, Arizona                  Georgia
    LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
    JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
    TED POE, Texas                       JUDY CHU, California
    JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
    TIM GRIFFIN, Arkansas                LINDA T. SANCHEZ, California
    TOM MARINO, Pennsylvania             JARED POLIS, Colorado
    TREY GOWDY, South Carolina
    DENNIS ROSS, Florida
    SANDY ADAMS, Florida
    BEN QUAYLE, Arizona
    MARK AMODEI, Nevada

               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                   JERROLD NADLER, New York
    J. RANDY FORBES, Virginia            MIKE QUIGLEY, Illinois
    STEVE KING, Iowa                     JOHN CONYERS, Jr., Michigan
    JIM JORDAN, Ohio                     ROBERT C. ``BOBBY'' SCOTT,
                                         Virginia

                         Paul B. Taylor, Chief Counsel

                    David Lachmann, Minority Staff Director

                                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

    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.
        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.
        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 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 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 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.
        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.
        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 expired. 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.
        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 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:]

                                   __________

        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.
        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 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:]

                                   __________

        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
    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 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:]

                                   __________

        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.
        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.
        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
    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:]*
    ---------------------------------------------------------------------------
        *See Appendix for the attachments submitted with this statement.

    ---------------------------------------------------------------------------
                                   __________

        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 maintaining 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
    private-sector 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 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 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
    expenses 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 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.
        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 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?
        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.
        Mr. Nadler [continuing]. Asking that they always have 2
    weeks notice for appearing at these hearings.
        [The information referred to follows:]

                                   __________

        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.]

                                A P P E N D I X

                                  ----------

                   Material Submitted for the Hearing Record

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

                                  ATTACHMENT A

                                  ATTACHMENT B

                                  ATTACHMENT C

                                  ATTACHMENT D

                                  ATTACHMENT E

                                  ATTACHMENT F

                                  ATTACHMENT G

                                  ATTACHMENT H

                                  ATTACHMENT I

     Material submitted by the Honorable Trent Franks, a Representative in
     Congress from the State of Arizona, and Chairman, Subcommittee on the
                                  Constitution

                                   __________

                                   __________
        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. Sec. Sec. 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\
    ---------------------------------------------------------------------------
        \1\ DOJ 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).
    ---------------------------------------------------------------------------
        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. Sec. 551(4) (APA
    definition of a ``rule'').
    ---------------------------------------------------------------------------
        \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/2010ADAstandards_index.htm).
    ---------------------------------------------------------------------------
        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/aahoa_letter.htm; DOJ, Letter to American Hotel and Lodging
    Association (Feb. 21, 2012), available at http://www.ada.gov/
    ahla_letter_2_21.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.
        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.
    Sec. Sec. 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.
    Sec. 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. Sec. 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 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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