Model Aquatic Health Code
American Society of
Law, Medicine &
Ethics
Network for Public
Health Law
Public Health Law
Association
Public Health Law
Research Program
The legal information and assistance provided in this webinar does not constitute legal advice or legal representation, nor reflect the opinion of
the series partners.
How To Use Webex
If you can hear us through your computer, you do not
need to dial into the call. Just adjust your computer
speakers as needed.
If you need technical assistance, call Webex
Technical Support at 1-866-863-3904.
All participants are muted. Type a question into the Q
& A panel for our panelists to answer. Send your
questions in at any time.
This webinar is being recorded. If you arrive late,
miss details or would like to share it, we will send you
a link to this recording after the session has ended.
Introducing the
Public Health Law Webinar Series

A series focused on providing substantive knowledge on
important issues in public health law


Webinar series partners include:






May qualify for CLE credits, details will be sent after the webinar
American Society of Law, Medicine & Ethics
Network for Public Health Law
Public Health Law Association
Public Health Law Research Program
Next webinar is Thursday, September 20 from 1-2pm ET on
the “Examining the Impact of Lead Laws on Housing Quality
and Children’s Health”
For more information on a wide-range of topics, attend the
2012 Public Health Law Conference. Find more details at
www.networkforphl.org/conference.
Panel:
Jasen Kunz
Lieutenant Commander (LCDR) Commissioned Officer,
United States Public Health
Service
Doug Farquhar
Program Director, National Conference of State
Legislature’s Environment, Energy,
and Transportation Area,
The Model Aquatic Health Code:
A Tool to Improve Health In Your
Jurisdiction
LCDR Jasen Kunz
Environmental Health Services Branch
Network for Public Health Law Webinar
August 16, 2012
Centers for Disease Control and Prevention
Model Aquatic Health Code
Health Benefits of Swimming



One of the most popular sports in the US – more than
300 million visits a year
2 ½ hours / week can decrease risk of chronic illness
and improve health for those with diabetes & heart
disease
People report enjoying water-based exercise more
than exercising on land and can exercise longer
without increased effort or joint or muscle pain
MODEL AQUATIC HEALTH CODE
(MAHC):
GENESIS AND BEGINNINGS
Healthy Swimming
Beginnings

What made CDC think there was an issue?
 Drinking water outbreaks caused by
Cryptosporidium
 1994, CDC investigated large lake-associated
outbreak of cryptosporidiosis in NJ
 1995, CDC investigated a large (>5000 people) of
cryptosporidiosis at a waterpark in GA
 Increases in # of outbreaks, particularly GI illness
 Large, high profile outbreaks
Number of outbreaks
Recreational Water Illness Outbreaks of
Cryptosporidiosis, by Water Treatment and Year
United States, 1988–2008
Treated: Pool, water parks, interactive fountains
45
40
35
30
25
20
15
10
5
0
Untreated: Lakes, oceans, rivers
88
91
94
97
2000 2003 2006
Year
* N=153, Hlavsa MC et al. 2011. MMWR 60(SS-12):1–39.
MAHC Genesis


2004, CSTE Position Statement called for CDC to
sponsor a national workshop
2005, CDC held “Recreational Water Illness
Prevention at Disinfected Swimming Venues”;
Atlanta, Georgia
 Create resource to assist state/local health
departments in creating or updating their codes
 Cover disease, injuries, & drowning prevention
 Make it data-driven, knowledge-based
 Update regularly based on new data
 Give open access to all users
MAHC DATA IMPACT VIGNETTES
Operator Training

Issue
 Operating a pool is a complex job requiring
knowledge of engineering/plumbing, pool
chemistry, filtration and flow calculations, disease
transmission, injury prevention
 Many codes require no pool operator training,
particularly for hotels, motels, apartments,
condos
RWI Outbreaks of Gastroenteritis Associated
with Treated Recreational Water
United States, 1999–2008 (n=164)
Chlorine sensitive:
Poor pool operation
& maintenance
Shigella 4.9% E. coli 2.4%
Norovirus 5.5%
Giardia 3.0%
Other 3.0%
Unknown 6.7%
Other includes
Campylobacter, Salmonella,
Plesiomonas, and multiple
pathogens
Cryptosporidium
(“Crypto”)
74.4%
Source: Hlavsa MC et al. 2011. MMWR 60(SS-12):1–39.
Chlorine
tolerant
Inadequate Pool Operation
and Maintenance is Common

Pool inspection data from 4 state and 11 local U.S.
pool inspection programs
 Data from >120,000 pool inspections1
 Conducted January 1–December 31, 2008

12.1% (1 of 8) of routine inspections resulted in
immediate closure pending correction of violation
CDC. MMWR Morb Mortal Wkly Rep. 2010;59;582-587.
Operator Training

Data supporting action
 Trained operators have fewer critical disinfectant
violations such as pH/chlorine (e.g., pH/free Cl,
aOR 2.2; 95%CI=1.1-4.3) (Buss)
 Training significantly reduces pH, combined
chlorine violations (p<0.05) (Johnston)
 Certified kitchen manager (CKM) on duty reduces
some critical inspection violations (p<0.05)
(Cates)
 CKM on duty protects against outbreaks (OR 0.2;
95% CI = 0.1 to 0.5) (Hedberg)
Operator Training

MAHC Response
 “A QUALIFIED OPERATOR shall be available onsite during all hours of operation at the following
aquatic facilities:…”
 “All other AQUATIC FACILITIES as specified must
have an on-site QUALIFIED OPERATOR or a
contract with a QUALIFIED OPERATOR for a
minimum of weekly visits and assistance
whenever needed. ”
Can Basic Hygiene Make a Difference?
Did the water just get
warmer around here?
Basic Hygiene:
Clean it Up America!

Issue
 Swimming is communal bathing
 >300 million annual visits in US
 Cater to young children-- incontinent
 20% of adults don’t know that people should not
swim when ill with diarrhea
 Few people shower or bathe before swimming
Basic Hygiene: There are Some
Things You Would Rather Not
Share!

Data
 5% of general public had diarrhea in past
month1
• 0.1–3.5 cases of diarrhea/person/year (higher
for young children)2
 ~0.14g of feces on peri-anal surface/person
• Range: 0.01g (adults)–10g (children)3
 1 of 5 adult respondents admit peeing in the pool,
78% believe others do it4
 >300 million annual communal bathing visits in
Jones TF
et al. 2007. Epidemiol Infect 135(2):293–301.
US
Roy SL et al. 2006. J Water Health 4(Suppl 2):31–69.
1.
2.
3. Gerba CP. 2000. Quant Microbiol 2(1):55–68.
4. Wiant C. Int J Aquatic Res Ed 2011;5:244-245.
Swallowing Recreational Water is
Common: Water Swallowed While
Swimming, by Age Group1
Group
Average Amount of
Water Swallowed (mL)*
Range (mL)
Adults
16
(0.5 fluid ounces)
0–53
Non-adults
37
(1.3 fluid ounces)
0–154
* Swimmers stayed in pool and actively swam for >45 minutes.
1. Dufour AP et al. 2006. J Water Hlth 4(4):425–30.
Basic Hygiene and
Pool Etiquette

MAHC Response
 Diaper changing “station” required
(based on child care experience)
• Safe area, adjacent sink, soap dispenser, footoperated trash can, disinfectant to clean up,
signage
 Rinse showers by pool approved along with
cleansing showers
 Minimum distances to restrooms (200-300 ft)
 Employee illness policy required
 Pool breaks, signage
 Patron education suggested
Drowning

Issue
 2nd leading cause of unintentional death from
injury (behind motor vehicle crashes) for ages 114
 More than 50% of drowning victims treated in
emergency departments require hospitalization or
transfer for further care. These injuries can cause
severe brain damage and long-term physical and
mental disabilities
 Deaths more common in males and African
Americans (particularly ages 5-14)
Sampling of Recent Drowning Headlines
“Massachusetts Woman Dead in Public Pool for Two
Days”
– ABC News, June 30, 2011
“Student drowns in high school pool in Conn.”
-Eyewitness News, January 13,
2012
“Man reported hospitalized after near drowning”
-Times Record News, July 15,
2012
“Child drowns in Brooklyn Park pool”
Drowning

Data supporting action
 Death and injury most common among 0-4 year
olds
 Pools most common location for drowning for 0-4
year olds
 Not just residential pools
 Environmental protections - including fencing and
lifeguards - are key to prevention
CDC. Drowning — United States, 2005–2009. MMWR May 18, 2012 / 61(19);344-347.
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6119a4.htm?s_cid=mm6119a4_w
Drowning

MAHC Response (Lifeguarding and Bather
Supervision):
 Standards for which aquatic facilities need
professional lifeguarding versus other supervision
 An Aquatic Facilities Safety Plan guide
 Requirements to define and document zones of
patron surveillance
 Determination of proper staffing (lifeguards need to
be able to reach all within their zone quickly)
 Required lifesaving equipment, communications
standards, and training requirements
Drowning

MAHC Response – Design & Construction
 Fencing
 Drain covers
 Design and construction elements such as depth
markings, floor slopes, lighting requirements,
material colors and rest ledges.
FUTURE CONSIDERATIONS
Progress




14 modules
 12 posted for public comment, 2 in CDC clearance
 2 in final editing
Text available: ~833 pages
 Code: 335 pages, Annex: 498 pages
Currently addressing all public comments for
revision
Timeline
 All modules posted by end of summer 2012
 Complete synthesized MAHC posted by end of
2012
 Complete 1st edition of MAHC by 2013 swim
season
Implementation Expectations



2001 CDC Fecal Incident Response guidelines
 2002: 25 states instituted new policy in past year,
21% used CDC policy
 2006: all states have policy, all follow basic CDC
parameters
Engaged Public Health Law Program
Informational materials for boards of health and
other implementers to explain intent and use of
MAHC
 User Guide forthcoming
 NALBOH involvement
Interactions with Other
Codes




ICC/IAPMO (International Code Council; International
Association of Plumbing and Mechanical Officials)
Work to minimize conflict and overlap
CDC recently signed MOUs with both groups
CDC voting member of both groups and will begin to
engage on committees for code writing
Potential Health Outcomes





Fewer outbreaks of waterborne illnesses resulting from
exposure to contaminated swimming water
Fewer drowning injuries & deaths in aquatic facilities
Fewer emergency room visits for swimming-related
issues
Fewer injuries associated with pool chemicals
Fewer closures of pools due to imminent health hazards
Measuring Impact



Impact
 CDC has a direct and continuing role in the effort
to be evaluated
Monitoring and evaluation
 Developing plan for monitoring dissemination of
MAHC (codes, bill introductions/enactments)
 Plan for monitoring impact on critical pool
inspection parameters, injuries, drowning,
waterborne illness, outbreaks
Research Plan
 Gaps apparent when writing code but gaps offer
opportunity for seeking further information to
strengthen or change code
Website: http://www.cdc.gov/mahc
Email: MAHC@cdc.gov
"The findings and conclusions in this presentation have not been formally disseminated by CDC and should not be construed to
represent any agency determination or policy."
Centers for Disease Control and Prevention
Model Aquatic Health Code
Legal Concerns regarding
Aquatic Venues
Doug Farquhar, J.D.
August 17, 2012
National Conference of State Legislatures (NCSL)
 Non-profit, bi-partisan organization of state legislatures
 Members are all 50 state legislatures, 7,400 legislators
and 30,000 legislative staff in 50 states, D.C. and U.S.
territories. Quebec, Alberta and Scotland are members
 Offices in Denver and D.C.
 Among our goals - To provide legislatures with
information and research about policy issues, both
state and federal.
 NCSL tracks state policy developments in all public
policy areas.
Risks to Public/Private Venues
o How can an Aquatic Venue be liable?
• By operating a venue that is accessible
oto the public
oto paying patrons
oto trespassers
o Aquatic Venues are, by their nature,
dangerous
• Injuries from drownings
• Slips and falls
• Chemical maintenance
• Public health threats
Can you Limit Liability?
o Signage
• "There is no Lifeguard Present"
• "No Diving"
o Supervision
• Properly trained lifeguards
• Properly trained operators
o Restricting Access
• Fences, Gates, Enclosed Facilities
o Signing away rights
• Country Club members promise not to sue
Lawsuits against Aquatic Venues
o August 2010, Arizona attorney Kristin Rooney filed a $26
million wrongful death claim on behalf of the family of
16-year-old Jesus “Jesse” Prado, who died May 14,
2010
o April 2008,Vincent Agwouke, 17, drowned in the
swimming pool at Westside High School after he and
several other students jumped in, following a science
experiment.
o 12 yr old drowned on a field trip, parents sued the city
of New York for $20 million.
• No Lifeguard on duty
Lawsuits Against Aquatic Venues
o Mt. Laurel, PA pool sued for $100,000
• Man was running, injured while jumping into pool
• Pool closed due to fear of lawsuits
o Improper Pool Markings Lead to Quadriplegia: $5.2
million verdict for a young man who dove into the
shallow end of a hotel swimming pool
• The pool was not properly marked to identify the depth and
restrictions on diving
o Improper Supervision at Daycare leads to Neardrowning: 6 yr old girl who was attending "swim time"
at her day care, she was left unsupervised in the pool
Lawsuits Against Aquatic Venues
o Seneca Lake State Park, Geneva, NY
• Spray Park with Cryptosporidium
• 4000 cases before closed by the NY DoHealth
• 2538 patrons represented by one lawfirm – Marler Clark
o Wading Pool in Cobb County, GA
• E. coli 0157:H7
• Ga. DofHealth found no Chlorine
• Violation of County Rules
• County Negligent
Legal Standard of Care
o Plaintiff was injured
o The product was defective
o The defect caused the injury
“Legal Precedence has a wider application in
areas without statutory standards”
CA Parks and Recreation Society
Legal Standard of Care
o Reasonable Person: the degree of care that a person
or ordinary prudence would exercise in the same or
similar circumstances; the standard which a property
owner must observe to avoid liability for injuries to
patrons
o Determined by court cases (legal precedence), the
foreseeability of harm to the plaintiff
• Did the owner know or should they have known that their
venue could cause an injury?
• ‘But-for’ the actions by the operators of the venue, would the
plaintiff be injured?
Statutory Standard of Care
o Based on Statutory or Regulatory law; takes
precedence over legal standard of care
o Determined either by agency personnel
through regulatory process, or mandated by
legislature, local council or Congress in
statute/ordinance
• Specifies the standard of care that an aquatic venue should
meet
• Sets requirements for local/state enforcement
• Defines the legal standard of care
Industry Standard of Care
o The Model Aquatic Health Code (MAHC)
• Developed by CDC and industry leaders
• Available for adoption by jurisdictions
• Sets a new standard of care
o International Code Council Aquatic Standard
• Available for adoption by jurisdictions
• Jurisdictions can adopt ICC standards by reference
o Illegal Delegation of Authority
• Sets a new standard of care
Efforts to Adopt the MAHC
o Jurisdictions with antiquated aquatic codes
•Kentucky – last major update 1988
•California – last updated 1986
o Jurisdictions in process of code revisions
•Iowa Pool Code Revision
o Req's OT, MAHC Operator Training Module
•Michigan has discussed Operator Training
•Ohio Legislature had hearing on Operator Training
o HB 416 - Public Pools, Spas, Special Use Pools
Efforts to Adopt the MAHC
o California Swimming Pool Code Regimen
•The state regulates pools via a series of regulations
o 5 H&S Codes
o 1 Code of Regs (CCR tit. 22)
o 1 Building Code (CBC tit. 24)
•CCR tit. 22 does not require O&M training
•Doesn't address current health & safety stds
o no rules for fecal/vomit/blood releases
Efforts to Adopt the MAHC
o California A.B. 1726 (2012 Sess.)
• Sponsor Assemblyman Michael Allen
•Required O&M Training for Aquatic Venues
o exempted Apts, RV Parks and Special Water Attractions
o Counties could be more stringent (LA County)
•Survived Health Committee; stalled in
Appropriations
Efforts to Adopt the MAHC
o Kentucky Code Revision
• Dept. of Public Health has authority to revise codes
o No fecal accident policy (CDC 2000)
o does not cover splash pads
• Discussed MAHC as option
•Louisville Metro has OT requirements; Lexington does
not
Policy Implications
o Insurance may require a property to meet
state/federal /industry standards
• Coverage determined by adoption of standard
o Lending Institutions may require properties
meet a standard
• Mortgage affected by adoption of standard
o Courts may accept a state/federal/industrial
standard as legal standard of care
• Juries may find that standard available, not followed, led to
injury
• Aquatic Venue at fault – pay up!
Policy Implications
Who is at fault?
Owner of the Venue
Operator of the Venue
State Health Department
Local Health Department
Product Manufacturer
Product Applicator
Construction Company
Architect
Insurance Company
States That Don’t Require Operator
Training
Certification Required
Knowledge Required
No Requirement
26 States don’t require Operator Training
Conclusion
 Adoption of a standard lessens liability and insurance
risk.
 Creates a uniform standard of care.
 Defines assumable risk for aquatic venues v. relying on
juries or judges.
 Many questions linger…
This is inherently a state/local issue, not federal
Will the MAHC take precedence?
Will the MAHC be able to address novel outbreaks?
Can the MAHC protect the aquatic industry from
being sued out of existence?
Contact Information/Questions
Doug Farquhar, JD
National Conference of State
Legislatures
Doug.farquhar@ncsl.org
303-856-1397
Question & Answer
Type your question in
through the Q and A panel