Yesterday, Congressman Jerrold Nadler (D-NY), the Ranking Member of the House Judiciary Subcommittee on the Constitution, expressed concerns that GOP Members are attempting to undermine the guiding principles of the Americans with Disabilities Act (ADA).  At a Constitution Subcommittee hearing on “The Department of Justice’s Guidance on Access to Pools and Spas Under the ADA,” Nadler also chided his Judiciary colleagues – again – for holding a hearing on the Department of Justice without ensuring the presence of a witness from the Department of Justice.

“The current claim that every owner of an existing pool will have to install permanent lifts or pay civil penalties or cash settlements rests on an alarming and alarmist misreading of the ADA and accompanying regulations,” said Nadler.  “The ADA and the new regulations require a hotel to consider whether installing a sloped entry into a pool or a fixed/permanent lift is ‘readily achievable.’…. I hope that today’s hearing does not signal an erosion of our historic bipartisan commitment to the law’s guiding principles or our promise of equality for our friends, families, co-workers and neighbors with disabilities.”

Below is the text of Nadler’s opening statement, as prepared:

“Last week, the Subcommittee called a hearing on the Justice Department’s voting rights enforcement without inviting the Department to testify.  Now we have a hearing to examine DOJ regulations regarding the Americans with Disabilities Act (the ‘ADA’) and, once again, the Justice Department is not here to speak for itself.  Instead, we have a lawyer representing a hotel association who can speak to her client’s 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 achieve the law’s underlying purpose.

“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.

“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 our promise of equality for our friends, families, co-workers and neighbors with disabilities. 

“One of the ADA’s guiding principles is that the 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 a covered entity’s particular circumstances.  With this flexibility does, of course, come the responsibility for determining what is ‘readily achievable’ for your own business.  But a ‘mom & pop’ outfit that operates three hotels will never be required to take the same steps as the Marriott.  

“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 accompanying regulations.

“The ADA and the new regulations require a hotel to consider whether installing a sloped entry into a pool or a fixed/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 guidance provides:

‘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/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/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 that if they are too hard to too expensive, the law doesn’t require either and there is no possibility of civil penalties.  The ADA requires courts to take account of 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.  This 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 already has delayed the effective date another two months (to May 21, 2012) and is proposing to delay yet again, until September 2012.

“While these delays are being granted, Americans with disabilities are still waiting, and they already have 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.”

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