Madam Chair, I move to strike the last word. Madam Chair, over two decades ago, the first President Bush signed into law the bipartisan and historic Americans with Disabilities Act. I was proud to sponsor that legislation and have worked…
Madam Chair, I move to strike the last word.
Madam Chair, over two decades ago, the first President Bush signed into law the bipartisan and historic Americans with Disabilities Act. I was proud to sponsor that legislation and have worked over the last 20 years to make sure that it was effective and strengthened.
Contained in the bill before us in an unprecedented measure that would significantly erode the Justice Department's authority to protect access for those with disabilities to swimming pools.
Now, one might say, Access to swimming pools? But I want my colleagues to think about, if you have a mobility impairment, if you have some neurological impairment, that swimming is one of the most effective activities in which you can participate to get your motor skills back in an environment that will not allow you to sink. Therefore, you have an environment in which you can exercise your muscles. So many of you have seen that and know that to be the case.
This is an incredibly important accessible facility for those with disabilities. In any event, those with disabilities ought to have access, certainly, to public facilities; and we can make it so.
Now, I'm not going to offer an amendment to strike this language; but I hope, Mr. Chairman and Mr. Ranking Member, that this will be struck. I hope that we will listen to the literally tens of letters that you've gotten and that I've gotten.
For many Americans with disabilities, swimming pools are an important source of physical activity and emotional comfort. The provision in question would roll back the Justice Department's 2010 accessibility regulations, undermining standards for new pool construction and for the upgrading of existing facilities. This would constitute a serious setback to Americans with disabilities, including many of our veterans--and I want you to think about this--many of our veterans wounded while serving our Nation overseas. As all of you know, many of these injuries they've received are to their limbs. Again, their exercise programs are facilitated in swimming pools, supported by water. So this would constitute, as I said, a serious setback.
The 2010 accessibility regulations this provision would eliminate do not place an undue burden on pool operators who cannot afford to make their facilities accessible. Some of you will remember Steve Bartlett, who was a Member of this Congress, a mayor of Dallas, still in town--a wonderful friend of mine--and a conservative Republican from Texas. He and I spent literally hundreds of hours working on this legislation together. One of the things we did was to make sure that businesses would know that what they were asked to do was affordable and that they could do it with relative ease, realizing full well that one can't expect a small business, in particular, to incur a large expense notwithstanding the objective is a worthy one. So we had a practical approach to this, and we had language that said it had to be readily achievable and affordable for the enterprise. Certainly, we can continue to do that for these facilities which are so important to so many people with disabilities.
I want to say that Mr. Wolf is one of the most conscientious Members of this House and one of the most courageous Members of this House. He and I have had the opportunity to work together for over three decades on legislation.
I hope, Mr. Chairman, the House and Senate conferees will look carefully at the damage this provision will cause in the lives of so many Americans with disabilities and will strike it from the final version.
I commend my colleagues who have come here to draw attention to it, and I thank them for continuing to stand up for those with disabilities, including veterans and their right to equal access and opportunity.
When George Bush signed on July 26, 1990, the Americans with Disabilities Act, he said it was the most significant civil rights act in over a quarter of a century, since the sixties. He said it ensured that all individuals would have access to the full enjoyment of facilities in this country of opportunity and of freedom.
This amendment may be well intended, but its effect would be very detrimental. Again, I urge the chairman and the ranking member--and I will certainly be working with my Senate colleagues as well--to make sure this language is not in the final bill because this would be detrimental. As I will remind you once again, so many veterans are coming back in need of this kind of access.
I yield back the balance of my time.
National Council
on Independent Living,
Washington, DC, May 8, 2012.
Trent Franks, Chairman,
Subcommitee on the Constitution, Committee on the Judiciary,
House of Representatives, Washington, DC.
Jerrold Nadler, Ranking Member,
Subcommittee on the Constitution, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Chairman Franks and Ranking Member Nadler: These
comments are submitted by the National Council on Independent
Living (NCIL) for the record of the April 24, 2012 hearing on
``The Department of Justice's Guidance on Access to Pools and
Spas Under the ADA.''
NCIL is the longest-running national, cross-disability,
grassroots organization run by and for people with
disabilities. Founded in 1982, NCIL represents thousands of
organizations and individuals including: Centers for
Independent Living (CILs), Statewide Independent Living
Councils (SILCs), individuals with disabilities, and other
organizations that advocate for the human and civil rights of
people with disabilities throughout the United States. There
are currently over 700 physical locations across America
actively providing Independent Living services to people with
disabilities.
This hearing was held to address the proposed legislation
in the House that is set to address the concerns of the DOJ's
decision to extend the rule RIN 1190 NYD Delaying the
Compliance Date for Certain Requirements of the Regulations
Implementing Titles II and III of the Americans with
Disabilities Act. We have serious concerns with Congress
preventing an executive branch agency from enforcing its own
regulations such as what is written in H.R. 4256 and H.R.
4200. We must let you know that we find both these bills to
be intrusive.
We disagree with both bills. They try to accomplish giving
the hospitality and hotel industry an opportunity to provide
accessibility to the public in the least efficient manner or
even at all. H.R. 4256 attempts to address technical
requirements that have been negotiated over years in the
rulemaking process that has worked well for all other aspects
of accessibility. This bill is broader than H.R. 4200 because
it prohibits any court enforcement of the new regulations for
a year (while DOJ is changing the standards, as required by
this bill), including enforcement by private plaintiffs.
To include Title II in the language of the resolution, even
though it would appear by the rest of the language that the
resolution concerns Public Accommodations only, under 28 CFR
Part 36; creates confusion and uncertainty about exactly how
far this resolutions impact and jurisdiction could be
interpreted to go. The resolution calls for a one year
extension to the effective date, which we in the community
disagree with its necessity.
The ADA has been in effect for 21 years, and all the ADA
pool rules have undergone extensive review for more than 10
years, with multiple comment periods and many opportunities
for hotels to learn about their responsibilities. The new
requirements already had a generous phase-in period of 18
months. Congress should not restrict enforcement of these, or
any, ADA requirements.
In response to comments that referred to the hospitality
industry not having adequate time to implement this rule, the
burden of providing access to swimming pools and the cost for
implementing this rule, we strongly disagree with all of
these claims. Providing access to swimming pools is
achievable and not burdensome. The ADA's accessibility
requirements for barrier removal in existing facilities are
very reasonable--they only require what is ``easily
accomplishable'' and able to be carried out without much
difficulty or expense. The rules are carefully crafted to
take the needs of covered entities, such as small businesses
including hotels, into account. In other words, hotel owners
need not comply with the standards in the new regulations
unless doing so would be inexpensive and simple. No extension
or enforcement ban is needed.
We also believe that it is not acceptable for the
Department of Justice to backtrack on ADA requirements
because an industry exerts pressure. To do so is an
invitation to other industries to say, ``Roll back our
requirements, too.'' Today it's the hotel industry. What
weakening changes will come tomorrow? What other human and
civil rights laws will be adjusted? In reference to the
expense this would cause for the hospitality industry, there
are Tax Incentives which have always been available and
under-utilized by businesses. IRS Tax code 44 and 190 provide
generous credits (dollar for dollar) and deductions
(reduction in gross reported to IRS) that let the hotel owner
get the money back (1/2 in credit the rest in deductions) so
cost should not be an issue.
The Disability and Business Technical Assistance Centers
(DBTACs) has done a targeted education project for the
``hospitality'' industry for several years now and have
repeatedly reached out to the organizations representing
hotels. They can be reached at 800 949 4232 anywhere in the
country.
The House bill H.R. 4256 represents an extraordinarily
prejudicial precedent. This bill would deny any federal
official, which can include judges, U.S. attorneys, and other
enforcing authorities, any power to administer or enforce the
new DOJ ADA regulations regarding pools. It removes the
waiting period and adds a clause that dismisses any suits
filed after March 15, 2012. It also tries to clarify their
portable vs. fixed lifts concern, something that should be
done by DOJ.
The amendment would affect Title II State and Local
Governments, which have been covered for access into the
water since 1990. This is seen as a targeted process to
undermine the strong federal enforcement role urgently needed
and sometimes reached under the ADA. Passage of this bill
could initiate a trend to render civil rights laws completely
powerless and ineffective, even though they remain public
law. This amendment would firmly take this part of the ADA
backward. It is our belief that congress should craft strong
civil rights protections to end discrimination, not remove
the government's enforcing authority.
In the notice of proposed rulemaking, the Department of
Justice requested comments on extending the compliance date
``in the interest of promoting clear and consistent
application of the ADA's requirements to existing
facilities.'' The NCIL community has serious concerns with
the number of years it has taken to explain ``readily
achievable barrier removal''. Extensive technical assistance
has been provided to explain to many public accommodation
pool owners that the requirements are based on what they can
afford to do today on their existing structures, with an
obligation to provide better access when it can be afforded.
Nothing has changed with that concept since the ADA was
passed in 1990. It should not take another 6 months to
``understand''.
To include Title II entities in this extension is a huge
step backward! Program access has been a requirement all
along, and most state and local government-run pools and
swimming facilities should already have addressed access into
to the water for their programs. An extension is
inappropriate as they have already been responsible for equal
access to the water for years.
The part that is confusing is not for new construction and
altered facilities having pools and spas, but at existing
pools there is some confusion that has been partly created by
the DOJ, as the Department responded in a letter February
21st to the American Hotel and Lodging Association (AHLA)
when they asked for clarification on the provision of pool
lifts. In that letter, the Department addresses several
concerns raised in the ``eleventh hour'' of the rulemaking
process by AHLA representatives--including some regarding
``fixed'' pool lifts versus ``portable'' pool lifts. The
Department has created part of the problem in its convoluted
definition of why a pool lift must be ``fixed'' which is not
addressed in the rule, the scoping, or in the technical
requirements of the 2010 ADA Standards for Accessible Design.
In addressing concerns by AHLA regarding existing hotels,
the DOJ stated that where it is not readily achievable for a
hotel owner to install a fixed pool lift, that a portable
pool lift may be used if it can be attached to the pool deck
while in use. That seems like a good idea to reduce liability
for the hotel owner, and makes the unit more stable for the
user, who also must be able to use the unit independently.
However, it is a matter of technical assistance advice that,
with additional helpful information could be given without an
extension in the effective date for compliance. Many of these
discussions should have already taken place multiple times,
given the length of time this rulemaking has taken, and to
reiterate the principles of readily achievable barrier
removal once again to the organizations pleading ignorance
should not take an additional 6 months.
The NCIL membership is very disappointed that an exception
was made in the rulemaking process by the current
Administration, and strongly objects to the proposed rule
extending the compliance date for public accommodations and
effectively abolishing the program access requirements
including pool lifts at swimming pools, parks, and resorts
run with State funds through yet another swimming season--to
September 2012. We insist the rulemaking proceed and become
effective immediately following the 60 day extension.
Submitted by: L. Dara Baldwin, MPA--Policy Analyst, The
National Council on Independent Living.
Submitted For: Mark Derry--Chair of the ADA/Civil Rights
Committee for The National Council on Independent Living.