Photo by Denise Baker

On July 29, 2009,Seattle was blazing.

The Emerald City had just reached 103 degrees Fahrenheit for the first time in recorded history.

Municipal workers were mobilized to deliver water to the homeless and check on elderly residents, while the Meals on Wheels program offered extra fluids with its regular food distribution.

There may never have been a better time to seek relief in one of the city’s 25 shallow-water pools. Why on earth then were nearly half of those pools closed?

The answer, simply, is the Virginia Graeme Baker Pool and Spa Safety Act.

Signed by President Bush on Dec. 19, 2007, the law took effect one year later. VGB, as it is known, has forever changed the pool and spa industry.

The intentions of the law were noble, but serious questions have been raised as to its effectiveness and the consequences it has wrought. The question at hand is whether a law intended to reduce the number of childhood drownings is having the desired effect. And if not, exactly how and why did it go astray?

Tragedy strikes

By all accounts, Virginia Graeme Baker was a vibrant, healthy 7-year-old. Graeme, as she was called, was one of five children of Nancy and James Baker and granddaughter to James Baker III, the former Secretary of State.

On June 15, 2002, Graeme accompanied her mother and four sisters to a backyard graduation party at a friend’s home in McLean, Va. It wasn’t long after their arrival that the day took a tragic turn.

“My youngest girls were in the water with the other children,” Nancy Baker recalled. “I was talking to the hostess when I saw [Graeme’s sister] running toward me. Her eyes were like saucers. She said, ‘Mommy, Mommy, Graeme’s in the hot tub.’”

What happened next is any parent’s worst nightmare. Nancy dashed outside to see Graeme on the bottom of the spa, her limbs moving with the bubbles. “I tried pulling her up, but I couldn’t,” Baker said. “I kept coming up for air, and I was screaming bloody murder. I pulled and pulled, not understanding what was holding her down.”

It took two men to get Graeme out, and they used enough force to shatter the flat 8-inch drain grate, which had suctioned her body to the bottom of the hot tub. She died shortly after the incident.

 

Her daughter’s passing propelled Nancy Baker into a world she never dreamed she’d inhabit — the complicated, contentious issue of suction entrapment. Graeme’s death, and the horrifying story behind it, is the inspiration for the law that now bears her name.

Suction entrapment

Occasionally, the drain cover of a pool or spa will break or be removed by someone who doesn’t know the possible repercussions. When this happens, a swimmer playing with the drain can become stuck to the outlet much the way the hose of a vacuum cleaner sticks to your palm. The force of this suction can be tremendous — 350 pounds of pressure for an 8-inch main drain with a standard pump. This suction entrapment will hold the bather in its grip until the vacuum is broken. Wading pools and spas pose the biggest entrapment danger because their drains are easiest to access.

There are a variety of ways to lessen the danger of entrapment.

One is by installing dual main drains to eliminate single-source suction. Using the vacuum cleaner hose analogy, imagine now that there are two hoses connected to the same motor, and one is covered by your palm. Air would travel through the other hose, interrupting the force of the suction to your hand. The same concept can be applied to pools and spas by building more than one drain. Many states require that all pools be constructed with dual main drains, however thousands of older vessels remain with single drains.

There are also other, less common ways of designing or constructing a vessel to avoid entrapment. These include gravity-fed systems, atmospheric vent systems and drainless pools.

Another solution to entrapment lies in various types of safety vacuum release systems, or SVRS’s. These products are designed to let air into the system when they sense excessive vacuum buildup. Some equipment manufacturers now sell pumps with SVRS devices inside. There are also a number of free-standing products that can be installed on existing pools or spas.

Finally, there are safety drain covers. These come in a variety of shapes and sizes and are designed to prevent a vacuum from forming between the drain’s surface and a human body.

While the effectiveness of each of these devices has been hotly contested, one thing is certain: The Virginia Graeme Baker Pool and Spa Safety Act was the first piece of federal legislation pertaining strictly to the industry.

Sponsored by Congresswoman Debbie Wasserman Schultz , D-Fla., the bill imposed federal mandates aimed at preventing entrapment. Chief among them was the requirement that all commercial pools and spas be outfitted with a drain cover that meets standards outlined by the American Society of Mechanical Engineers and the American National Standards Institute .

The law also stated that other anti-entrapment safeguards were needed. It called upon the Consumer Product Safety Commission to determine a number of further requirements.

And though VGB became complicated very fast, one thing was supposed to be crystal clear: The law would make pools and spas a lot safer for children.

Or would it?

Entrapment vs. drowning

From 1999 to 2008, there were 83 incidents of suction entrapment, according to the CPSC. This includes 11 deaths.

While this is horrific, those numbers pale when weighed against the statistics on accidental drowning. By comparison, as of Aug. 4, 2009, the state of Texas alone had lost 84 children to drowning for the year, and not a single one by suction-entrapment.

Strictly speaking, entrapment is drowning, yet they also are undeniably separate events.

Tom Griffiths, founder of the Aquatic Safety Research Group , has spent more than two decades as director of the Aquatics and Safety Office for Athletics at Penn State University in State College, Pa.

Griffiths believes a more effective law would have focused on teaching children to swim.

“That would have saved many more lives than changing the drain grates,” he says. “The bottom line is, you now have a huge law to prevent double-digit deaths. And the sad thing is, we accept thousands of drownings each year. We just shrug it off.”

While entrapment is a devastating event that should be prevented, no one can argue that the number of incidents remains quite low. But, as is often the case, a strange thing happened on the way to Capitol Hill.

Slowly but surely, lawmakers a nd others began to replace entrapment statistics with drowning statistics — so much so that in the “Findings” section of the VGB Act, there’s not a single reference to suction-entrapment. There are, however, references to drowning as the second leading cause of death in American children ages 1 to 14; and the act does note that “in 2004, 761 children aged 14 and under died as a result of unintentional drowning.”

“I think those findings utilize the numbers and emotion of drownings,” says Johnny Johnson, president of the National Drowning Prevention Alliance and founder of the Blue Buoy Swim School in Tustin, Calif. “It’s misrepresenting the issue — there’s no mention of entrapment there. You’re comparing apples to oranges.”

Others agree.

“The intent of the VGB Act was to protect against suction-entrapment, and the goal was noble,” says Dan Johnson, past president of the Florida Swimming Pool Association and founder of Swim Inc. in Sarasota, Fla. “But it’s not an effective drowning-prevention act.… I’ve been told the chances of a child being entrapped on a drain are 40 times less than they would be for that child to be struck by lightning.”   

Who was in (and who wasn’t)

VGB was created to address entrapment, a tragic, but also extremely rare, occurrence. Certainly pool and spa drains should be safe, but why wasn’t this law part of a larger drowning-prevention effort? Why was the number of child drowning victims cited again and again rather than the actual entrapment statistics, which are much lower?

The answer may lie in who wrote the law.

SVRS’s are made by various manufacturers. The devices send air into the system and/or power down the pump motor when a vacuum increase is sensed. They are relatively easy to install, and cost about $500 to $1,000.

Though VGB doesn’t require that these products be fitted on every pool, they are listed as one of only a few permissible options. Before the law passed, SVRS’s were virtually unknown outside the pool industry. But the new legislation changed that.

Jennifer Hatfield, director of government and public affairs for the Florida Swimming Pool Association, recalls a meeting she attended in Washington, D.C. Also at the gathering were Wasserman Schultz, the Congresswoman who sponsored the act, Bill Weber, CEO of the industry’s national trade association , and Alan Korn, an official with Safe Kids USA , a Washington, D.C.-based advocacy group.

Hatfield went into the meeting believing it was an opportunity to discuss the language of what would become VGB. But the playing field, she says, was noticeably uneven.

“[Our organization] really had no part in drafting the original bill,” Hatfield says. “Our understanding was that it had already been done by Safe Kids and the Pool Safety Consortium.”

The PSC was a group of safety equipment manufacturers founded by Paul Pennington, owner of Vac-Alert , an SVRS-maker in Santa Rosa, Calif. The organization has since been expanded and renamed the Pool Safety Council .

Korn confirms his group was involved in the bill’s drafting, though not in the “hyper-technical aspects.”

“The Baker family helped craft a legislative response,” Korn says. “A few pool service companies from Florida, drain manufacturers, Vac-Alert and Stingl Products (another SVRS manufacturer) were also brought in. And the Association of Pool & Spa Professionals was there representing the industry.”

Pennington declined to be interviewed for this story. Calls to David Stingl of Stingl Products were not returned.

According to Carvin DiGiovanni, APSP senior director, standards and government relations, the association did review drafts and provide guidance on certain technical aspects of the act.  

But to suggest the trade group played a significant role in writing the bill conflicts with the accounts of those who entered the discussions along with it.

“My involvement came late — the same time as APSP,” says Larry Caniglia, executive director of the Northeast Spa & Pool Association . “I just knew it was very late in the process. At that point, what was written was written, and we were just trying to get the language fixed.… But we knew it was an uphill battle.

“Honestly, I wish I knew who in the industry was involved in writing it,” he adds.

When asked recently about who was responsible for the language contained in the bill, Wasserman Schultz remembered a different list of contributors.

“In drafting the bill, we worked with the staffs of the Energy and Commerce committees, the CPSC and Safe Kids Worldwide — that’s it,” she said. “We didn’t have a legislative writing party.”

Wasserman Schultz’s bill didn’t become law on its first trip through Congress. In fact, H.R. 5850 never made it out of the House Subcommittee.

A Senate version, S. 3718, moved through the Senate but failed to garner the two-thirds House majority necessary for passage. It died with the close of the legislative session.

In the end, VGB was attached as a rider on the omnibus energy bill that was approved by Congress in 2007. “[It was] a vehicle to pass it,” Wasserman Schultz says.

Warning shots

After VGB was signed into law, numerous organizations — including the National Recreation and Park Association and the YMCA of the USA —  contacted the CPSC requesting that the deadline for compliance be postponed.

They were joined by Thomas Lachocki, Ph.D., a longtime industry expert and CEO of the National Swimming Pool Foundation in Colorado Springs, Colo. Shortly before the compliance date, Lachocki issued a press release titled “Controversial New Pool & Spa Safety Act Will Create Public Pool Closures Nationwide.”

“Suction entrapment claims about one to two victims per year based on historic data from the CPSC,” he wrote. “In contrast, drowning claimed the lives of 761 children aged 14 and under in 2004, and those numbers may increase since fewer children will attend swim lessons when pools are closed.”

Lochocki went on to explain that pool and spa operators across the nation would be unable to comply with the VGB Act for a number of reasons.

First was education. Despite the act having budgeted $5 million a year for a sweeping educational program directed toward the pool industry, no such program existed. The result, Lachocki said, would be confusion or outright ignorance of the law.

Next was the question of drains. Though manufacturers were working diligently, compliant drain covers still were not available in the quantities required to satisfy the needs of 300,000 public pools nationwide.

Moreover, the act required that the area below the cover (the sump) may have to be excavated and replaced to be compliant. This could add thousands of dollars to the cost of repairs at a time when budgets already were stressed.

In addition, under state laws, local health departments must review and approve changes before work on pools could begin. But health departments didn’t have the resources to inspect all public pools in their jurisdictions before the Dec. 19, 2008, deadline. Operators would be forced to either break state law by making the changes before local departments could inspect them, or violate the federal statute by first seeking approval from the state.

In each case, the only other alternative would be to close the pool.

Lachocki argued that a delay would create time to “resolve technical issues and solve the entrapment problem — without creating a drowning problem, reducing public services, and hurting our fragile economy.”

However, no delay was granted, and on the day of the deadline, hundreds of thousands of public swimming pools and spas suddenly found themselves under the jurisdiction of the VGB Act.

Parts and labor

With the law’s compliance date quickly approaching, drain cover manufacturers struggled to certify their products in time.

Though the issue was discussed prior to the bill’s passage, Wasserman Schultz says there was no concern over whether the supply of compliant drain covers would be able to meet an expected spike in demand.

But in the weeks before and the months after VGB took effect, scores of swimming pool and spa operators had little choice but to close down as manufacturers strained to fill a backlog of orders.

In Florida, public pools in Martin, Port St. Lucie and Indian River counties sent away for new drain covers in fall 2008. By Dec. 20, 2008, those deliveries still had yet to arrive. The manufacturer, according to published news reports, was bogged down with orders.

The following month, the El Paso Parks and Recreation Department was fielding 20 calls a day from residents asking when their area pools would reopen after at least three were closed due to a delay in the shipment of compliant drain covers, according to reports in the El Paso Times .

Similar scenarios played out, again and again, from Maine to California.

Jeremy Shoffner has been working with local suppliers for months to find drain covers that fit the nine pools he oversees for the aquatics program in San Jose, Calif.

“All of our pools had different covers,” Shoffner says. “It wasn’t a cookie-cutter method of getting the new grates.”

But obtaining compliant drain covers wasn’t the only issue. Many pool operators had trouble finding qualified professionals to install them.

Paul Norris was one of them.

“This thing was massive,” says the director of recreation and leisure services for the town of Windsor, Conn . “It was hitting hotels, condo associations, YMCAs.… We couldn’t get a vendor to open our pools on time. We were late. There just aren’t a lot of contractors around who can do the work.”

Worse yet, in many cases just because a contractor can’t do the work, doesn’t mean he won’t. Rick Earnhardt knows this firsthand.

As one of only a few licensed service professionals in Western Pennsylvania, he’s completed upwards of 50 retrofits this year — from large-scale college pools to private country clubs.

“What’s happening now is, people are making the situation more dangerous than before,” he says. “And nobody’s checking it.”

“I’ve seen everything,” he adds. “I saw one pool where the covers were literally welded onto the bottom, which is illegal. Other pools are now less safe hydraulically. It’s a little scary.”

The price

Before the VGB Act was passed, the Congressional Budget Office conducted an analysis of its projected financial impact.

The CBO’s study concluded the law would not adversely affect those who would be subject to its regulations, according to Wasserman Schultz. “It was given an insignificant score,” she says. “The drains are not expensive … and the renovation requirements were minimal. I would say $5,000 is a rare exception.”

But across the country, the fixes required of countless public pools and spas have varied wildly in price, with some vessels requiring tens of thousands in certified repairs. Again, the only viable option for many has been closure. 

In Seattle, where 11 of the parks and recreation department’s 25 public wading pools were shuttered on the hottest day on record, officials still are scrambling to locate the funds to pay for needed repairs.

“It’s been a big effort,” says Kathy Whitman, aquatics manager for the department. “Some of our bigger pools have three full replacement drains. We’re looking at about $10,000 per pool just for parts. And that doesn’t include application fees, paying an engineer to conduct an analysis of the pools’ mechanical systems, and the labor to install the parts.

“Clearly it’s going to be in the range — just for the physical pieces and labor — of $400,000,” she says.

And Seattle is far from the exception. Renovations to 21 public pools in Phoenix cost the city about $350,000 (average price for each pool: $16,000).

Parks and recreation officials in Dickinson, N.D., were quoted $55,000 to bring a single outdoor pool up to code, according to The Dickinson Press . No fewer than 10 public pools in Georgia were closed for the season after state officials said they couldn’t afford the $150,000 required to make the necessary repairs.  

And in Woodbridge, Conn., families this winter were locked out of the town’s indoor swimming facility at Beecher Road. The pool was built in 1971 and carried L-shaped drains, recreation department officials said. Because no compliant covers could be located, the town instead planned to install new drains at an estimated cost of up to $80,000.

But Wasserman Schultz believes it’s a matter of priorities.

“The entities that haven’t [made the fixes], quite simply, don’t want to,” she says. “The pool and spa industry continues to resist safety requirements. It’s frustrating and it’s irresponsible.… It’s the law, it’s time — get over it.”

       

The best effort?

There’s consensus among many of the nation’s leading water safety experts over how the VGB Act could have been made more effective. Besides properly funding an educational element, and perhaps adding a component for child swim lessons, a graduated methodology would have at least identified and targeted pools that posed the greatest risk, they say.

“This really was a hot tub and wading pool problem,” Griffiths says. “The law has merits, but to say in one calendar year that all pools needed to change out their [drain covers], to me was way out of line.”

He adds that a phased approach based on pool depth might have been better. “I would have started at pools that are 5 feet or less. More than 5 feet deep and it’s very hard to get entrapped.”

For his part, Dan Johnson would have liked to have seen the law incorporated over two years with clearly defined, staggered goals, such as creating an effective delivery system to disseminate information from the federal level down the chain. That, he says, also would have allowed manufacturers sufficient time to produce enough compliant equipment.

Year two could have been dedicat ed to educating the right people about the act, namely health departments, building officials and the pool industry.

“And I think [the law] went astray in that it was fast-tracked,” Johnson says. “The language was unfocused — they didn’t even consider all the issues involved in suction-entrapment avoidance.”

But there’s another, darker truth that should not escape mention. According to 2007 statistics collected by the Phoenix Children’s Hospital , 85 percent of all child drownings occur in backyard pools and spas.

So perhaps there should be a greater sense of urgency, in light of the fact the CPSC still is yet to release its residential guidelines for the new federal law; as of early fall there was no defined mandate covering private vessels.

Which means, tragically, that the same spa, in the same backyard, that claimed the life of Virginia Graeme Baker more than 7 1/2 years ago, is no safer today than it was the day she died.


RELATED LINKS

  • Case Study: Florida
Florida continues to be at the forefront of pool and spa safety legislation.
  • On the Clock
Was six months enough time to comply with the VGB Act?

MORE INFORMATION

  • VGB Resource Center
Find a variety of resources on the VGB Act ? from archived articles and news headlines to multimedia presentations and related links.