The Wisconsin Policy Research Institute

Despite the effort of government at all levels to protect us from ourselves, it fails utterly to protect us from the Law of Unintended Consquences.

Take the Virginia Graeme Baker Act, for example. This federal law is designed to prevent swimming pool users from getting sucked into pool drains.

Trial lawyer (and former Democratic Party presidential hopeful) John Edwards made his bones on a suction entrapment personal-injury case: a gruesome 1993 incident in which a child was disemboweled by the suction from a drain in a wading pool. Other children had apparently removed the pool’s drain cover just moments before the accident happened. The drain and its cover had been manufactured by Sta-Rite Industries of Delevan, Wis., which was found negligent to the tune of $25 million – the largest tort verdict in North Carolina at the time.

The act itself is named after the granddaughter of former Secretary of State James Baker, who drowned in 2002 when she became stuck underwater to another drain missing its cover. The Baker family teamed up with an organization called Safe Kids, enlisted the aid of the Consumer Product Safety Commission, and successfully lobbied Congress to pass a law requiring that all public pools install special drain covers to prevent suction entrapment incidents.

I have a couple of problems with this law. For one thing, it’s one-size-fits-all. That means that even newer pools whose drains posed no suction-entrapment danger whatsoever still had to install the special drain covers.

The second problem is, at the time the law went into effect, no such drain covers existed. They hadn’t been invented yet, but the CPSC, charged by Congress with enforcing the law, refused to back off on the deadline. (The drain covers have since been invented, but manufacturing and installing them is taking far longer than originally anticipated.)

My third objection is, many of the unnecessary repairs are costing pool operators thousands of dollars.

Take my hometown of Monona, for example. The drains in our municipal pool and adjoining wading pool were incapable of generating enough suction to hold anyone underwater, but required new covers nonetheless – at an estimated cost of up to $20,000. That’s about $3.50 per taxpayer to prevent drownings that could not have occurred.

The same goes for our high school pool: an estimated $10,000 to fix a non-existent safety hazard. And Monona’s two hotels, each of which has a pool and spa, must spend up to $20,000 to fix their non-dangerous drains as well.

It’s even worse at the Madison East YMCA, where my two children honed their swimming skills to the point where both are college swimmers. Because of the age and configuration of the pool, Dane County YMCA Director Pat O’Brien estimated installing the new drain covers may cost up to $60,000. Furthermore, the pool – which is home to the nation’s largest swimming program for disabled individuals -- may have to be closed for weeks or even months while the repairs are done.

In fact, across the country, some pools are closing permanently due to the costs of the repairs.

Aah, but who cares about the costs when lives are at stake? Why, according to the CPSC, in just the 10 years between 1999 and 2008, there were… 11 deaths from suction entrapment.

That’s right: Eleven. Nationwide. About one a year. Compare that to the estimated 250 baby boys who die each year from complications after circumcision. Or the 810 kids of both sexes who drown each year – the second-leading cause of death (behind car accidents) in children under 14.
And of the 11 incidents of suction-entrapment deaths, only four took place in public pools and spas – which are those pools and spas undergoing expensive repairs whether they need them or not. Existing private pools and spas, which claimed nearly twice as many suction-entrapment victims, are not covered by the act.

It would not surprise me one bit if the number of drowning deaths increases because pool closings force children to swim in unsupervised streams, ponds and lakes, or never get to take swimming lessons because their aging pool had to shut down or because their pool manager had to take money from the instructional fund to fix a pool that wasn’t broken to begin with.

There are 3,700 public pools and spas in Wisconsin alone. And while the state Department of Commerce has been doing what it can to ease pool operators’ pain – including reducing inspection fees and giving pools extra time to achieve compliance as long as operators can prove they’re working on it – life would have been a lot simpler if Congress had not rushed into the swimming pool business, imposing a draconian solution for an almost non-existent problem.

When I first learned about this act last spring, I was so outraged that I fired off letters to all three of my congress persons: U.S. Rep. Tammy Baldwin, and U.S. Sens. Russ Feingold and Herb Kohl.

From Feingold, I got nothing.

From Baldwin, I received an intelligent and thoughtful answer that indicated her office was aware of problems with this law.

From Kohl, I got a form letter that still makes me laugh, because it not only didn’t answer any of my questions, but it wished me success “in providing safe recreation services to the people of New London.”

Hunh. I’m an angry swim mom in Monona. I wonder what letter the senator sent to the real recreation director in New London.

But I guess such sloppiness on Kohl’s part should not surprise me. Sloppy thinking is what got us into this mess. After all, if members of either house had stopped to consider the enormous cost of this bill relative to the little amount of good it would do, I doubt if it would have passed.

But I could be wrong. Is it any wonder the thought of Congress running our health care system fills me with fear and trepidation?

-December 21, 2009

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