PKR-11-10-00012-P Access Pass - a Program That Waives Base Patron Fees for New York State Residents with Certain Disabilities

3/17/10 N.Y. St. Reg. PKR-11-10-00012-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 11

March 17, 2010

RULE MAKING ACTIVITIES

OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PKR-11-10-00012-P

Access Pass - a Program That Waives Base Patron Fees for New York State Residents with Certain Disabilities

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Repeal of Part 382 and addition of new Part 382 to Title 9 NYCRR.

Statutory authority:

Parks, Recreation and Historic Preservation Law, sections 3.09(8), 13.15(1), (3) and 13.19

Subject:

The Access Pass - a program that waives base patron fees for New York State residents with certain disabilities.

Purpose:

To conform the Access Pass Program to statutory requirements in PRHPL Section 13.19 and reduce its annual cost.

Text of proposed rule:

Part 382 of 9 NYCRR is repealed and a new Part 382 is added as follows:

Part 382

ACCESS PASS

Section 382.1 Definitions.

Whenever used in this Part:

(a) Access Pass shall mean the authorization issued under this Part to an individual who qualifies for free use of a park facility under the jurisdiction of the Office of Parks, Recreation and Historic Preservation or the Department of Environmental Conservation.

(b) Commissioner shall mean the commissioner of Parks, Recreation and Historic Preservation.

(c) Department shall mean the Department of Environmental Conservation.

(d) Free use shall mean waiver of the base fees (excluding amenities) assessed by the office or the department at a park facility.

(e) Office shall mean the Office of Parks, Recreation and Historic Preservation.

(f) Park facility shall mean a campsite, cabin, park, other public place of recreation or historic site under the jurisdiction of the office or the department.

(g) Person who has a mental disability shall mean a person who is eligible to receive services from a program licensed, operated, certified or funded by the Office of Mental Retardation and Developmental Disabilities or the Office of Mental Health.

(h) Person who is blind shall mean a person who has a central visual acuity of 20/200 or less or limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than twenty degrees in the better eye with the use of a correcting lens.

(i) Person who is deaf shall mean a person with profound hearing loss causing the person to primarily rely on visual communications (sign language, lip reading, gestures) and assistive technology.

(j) Person who is nonambulatory shall mean a person who is permanently disabled, requires use of a wheelchair and who has severely limited mobility.

(k) Person who has an amputated arm or leg shall mean a person who has a fully or partially amputated or congenitally absent arm or leg, excluding the extremities of the hands and feet.

(l) Physician's certification shall mean a physician's attestation on a form provided by the office that the applicant is a person who has an amputated arm or leg or a person who is blind, deaf or nonambulatory. The certification must be made within six months of the application date by a physician currently practicing in and licensed to practice by New York State. The certification must accompany the first application, and may be required to accompany subsequent renewal applications.

(m) Resident shall mean a person whose primary residence or whose legal guardian's primary residence is located within New York State as identified by copies of the following documents that must accompany the application: the New York State tax return (IT 201) for the preceding tax year or a valid New York State driver's license or a New York State non-driver's identification card that show the person's name and a New York State address.

(n) Veteran who has a disability shall mean any veteran of the wars of the United States with a 40 percent or greater disability as certified by the United States Veterans Administration, or who has at any time been awarded by the Federal government an allowance towards the purchase of an automobile or who is eligible for such an award.

Section 382.2 Free use of park facilities.

(a) Any resident of the State who is (1) a person who is blind, deaf, or nonambulatory; (2) a person who has an amputated arm or leg; (3) a veteran who has a disability; or (4) a person who has a mental disability shall be entitled to receive an Access Pass from the office that shall provide for free use of a park facility defined in this Part upon the same terms and conditions as apply to the general public.

(b) Subdivision (a) of this section shall not apply to any park facility operated by a concessionaire pursuant to a license agreement with the office or the department, nor shall it be interpreted to require the waiver of any fee charged by an agent of the office or the department for services rendered to the public.

(c) The commissioner shall create a written application for a person to request an Access Pass, which shall be available on line on the office's public website (http://www.nysparks.state.ny.us), and at all regional park headquarters and such other places as the commissioner may designate. The commissioner shall require a physician's certification and any other proof necessary to establish the eligibility of any person to receive an Access Pass. No person shall be deemed eligible to receive or shall receive free use of a park facility defined in this Part prior to receiving an Access Pass. No person who has been issued an Access Pass shall make it available for use by any other person.

Text of proposed rule and any required statements and analyses may be obtained from:

Kathleen L. Martens, Associate Counsel, Office of Parks, Recreation and Historic Preservation, Empire State Plaza, Agency Building 1, 19th Floor, Albany, New York 12238, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

This Regulatory Impact Statement (RIS) describes and analyzes proposed changes to 9 NYCRR Part 382 (rule) – known as the "Access Pass" program that waives base patron fees for New York State residents with certain disabilities who use campsites, cabins, parks, other public places of recreation or historic sites under the jurisdiction of the Office of Parks, Recreation and Historic Preservation (State Parks or OPRHP) or the Department of Environmental Conservation (DEC).

1. Statutory Authority:

Section 13.19 of the Parks, Recreation and Historic Preservation Law (PRHPL) provides as follows:

§ 13.19 Free use of campsites. Notwithstanding the provisions of any other law, any person who is blind, non-ambulatory, or an amputee or any veteran of the wars of the United States, who has at any time been awarded by the federal government an allowance towards the purchase of an automobile or is eligible for such an award shall be permitted to use any of the public campsites, parks and other public places of recreation in this state, upon the same terms and conditions as apply to the general public, but without the payment of any fees or other charges for the use of such campsites, parks and other public places of recreation.

Additionally, the Commissioner of State Parks has general authority to repeal and adopt regulations under PRHPL § 3.09(8). State Parks also has general authority to adopt fees under PRHPL § 13.15(1), and to decrease fees with the director of the budget's approval under PRHPL § 13.15(3).

2. Legislative Objectives:

In the original enactment of PRHPL § 13.19 and the first amendments in the early 1970s, the State Legislature provided free use of state campsites and parks to veterans who were amputees or who had received or were eligible for a federal allowance to purchase a car.

In 1977, the Legislature extended the benefit to non-veterans who are blind, non-ambulatory or amputees.

State Parks created the Access Pass to implement PRHPL § 13.19. The Agency adopted the existing Part 382 regulation in 1978 and extended the benefit to other groups of people with disabilities that are not listed in § 13.19: recipients of social security disability or supplemental security income; persons with developmental disabilities; persons who are deaf; and persons who are semi-ambulatory or require assistance for walking.

The rule repeals the existing regulation and proposes a new Part 382 that removes two of the eight categories that currently receive the waiver of base fees under the existing regulation: a) individuals who are semi-ambulatory; and b) individuals receiving social security disability or supplemental security income.

The proposed rule also incorporates "individuals first" language throughout (as required by Chapter 455 of the Laws of 2007) and makes technical revisions to some of the definitions of categories of individuals with disabilities.

This rule recognizes advances in State policy since the original Access Pass regulation was adopted more than thirty years ago. Today, New York's focus is not on providing free access to individuals with disabilities, but rather ensuring equal access. Equal access means that accommodations are implemented to assure, to the greatest extent possible, that people with disabilities can participate in the services, programs and activities enjoyed by non-disabled users of public facilities. Over the past several decades, State Parks and DEC have made significant capital investments and have taken advantage of technological innovation, consistent with the Americans with Disabilities Act, to facilitate equal access to their recreational facilities.

Under the rule the Access Pass program would continue to provide free access to individuals who are blind, deaf, non-ambulatory, amputees, disabled veterans or who have a mental disability.

3. Needs and Benefits:

The proposed new Part 382 is required and appropriate for the following reasons:

A. The existing regulation is more than thirty years old. OPRHP has concluded that Part 382 should be revised to reflect changed circumstances since its original adoption three decades ago.

B. Social Security Disability (SSD) is not included in the statutory list of categories eligible to receive free access to park facilities. SSD is a broad federal occupational designation that relates to individuals' abilities to function in the workplace; it is too broad a category for identifying individuals who qualify for the waiver of base fees at campsites, cabins, parks and other recreational facilities under the existing State law. To the extent that individuals previously qualifying under the Social Security Disability criteria have one of the six specific disabilities retained in the new rule, they remain eligible for an Access Pass under those specific categories.

C. Supplemental Security Income (SSI) also is not included in the statutory list of categories of individuals eligible to receive a waiver of base fees at park facilities. SSI provides support to individuals with limited income and resources who are disabled, blind, or age 65 or older. To the extent that individuals previously qualifying under the SSI criteria have one of the six specific disabilities retained in the new rule they remain eligible for an Access Pass under those specific categories. Also, individuals age 62 or older currently qualify for free entrance on weekdays to state parks and historic sites under OPRHP's existing Golden Park Program. The Golden Park Program, however, does not provide entrance on weekends, nor does it provide a waiver of base fees and charges at campsites or cabins.

D. Individuals who are semi-ambulatory require a cane, crutches, walker, leg braces, joint replacement, or other mobility aid. Over the past several decades, OPRHP has made significant capital investments to improve access to state parks pursuant to the Americans with Disabilities Act. These improvements have greatly improved access for people who are semi-ambulatory.

E. Statewide, current Access Pass holders play an average of 57,000 rounds of free golf in state parks each year, which equates to $1.55 million annually. While individuals with serious disabilities can and do play golf, the sheer number of free golf rounds indicates potential abuse of the current system and necessitated a more in-depth review of the underlying rationale and statutory basis for the scope of the current Access Pass program.

F. The State's fiscal situation requires State Parks to absorb large reductions to our annual operating budget, requiring the Agency to either close or implement public service reductions at 100 state parks and historic sites across the state. To mitigate service reductions, the Agency is continually reviewing the fees charged for all park amenities, and is seeking ways to reduce the cost of delivering public services – including this proposed rule that reduces the annual cost of the Access Pass program.

OPRHP's enacted FY2009-10 budget includes a $1 million reduction in the cost of the Access Pass program. If we fail to realize these savings, the Agency will need to further cut public services in our facilities to make up the $1 million shortfall.

4. Costs:

Approximately 34,000 individuals currently hold an Access Pass. The two discretionary eligibility categories OPRHP proposes to eliminate from the Access Pass program would affect recipients of Social Security Disability/SSI and individuals who are semi-ambulatory. These groups account for 65% of all Access Pass holders.

Individual potential costs to "regulated" parties are the patron fees that individuals who no longer qualify for the waiver will be required to pay if they choose to continue visiting State recreational facilities without the Access Pass (note: State Parks is currently advancing a separate rule-making that includes the increased fees used below to calculate costs and savings). They break down as follows:

Campsites – Base fees are $13-15 per campsite per night.

Cabins – Base fees range from $145 to $255 per cabin per week.

Golf – Fees range from $7 to $60 per person for 18-hole courses, and from $11 to $28 for 9-hole courses.

Park Entrance Vehicle Use Fees – Day use fees are assessed per vehicle, ranging from $6 to $8 dollars per car depending on the recreational amenities offered at a particular facility.

State Park fees are modest and would continue to provide affordable outdoor recreation opportunities to all New York residents.

Currently, Access Pass holders receive approximately $3,000,000 in waived fees and charges for use of state recreational facilities, as follows:

Camping = $1,085,000

OPRHP campsites $ 484,703

OPRHP cabins $ 251,432

DEC campsites $ 350,603

Access Pass users do not pay the base rate portion of the nightly campsite fee nor the weekly cabin fee.

Golf = $1,550,000

Golf course fees are assessed and reported per round of golf, per individual. New York State resident fees range from $7-$60 for 18-hole courses and $11-$28 for 9-hole courses including variations for weekend/weekday and senior/junior rates. Total annual number of Access Pass user rounds equals 57,435 (43,245 for 18-hole usage + 14,190 for 9-hole usage). That figure was multiplied by an average fee to determine the estimated value.

Park Entrance Vehicle Use Fees = $395,000

($314,385 OPRHP + $80,019 DEC)

Entrance fees for day use of State Parks and boat launches are $6 to $8 per vehicle. Those figures were multiplied by the entrance fees for each facility to obtain the estimated value.

Conclusion

Approximately 65% of existing Access Pass holders qualify under the two categories proposed for elimination. Some of these individuals may be eligible for the Access Pass under one of the six remaining categories or they will be eligible for the Golden Park Program that provides individuals age 62 and above with free park entrance on weekdays. A conservative estimate, therefore, is that the State could realize $1 million to $1.5 million in increased revenue from the proposed rule, which is roughly 50% of the $3 million in waived fees under the current Access Pass program. This assumes that many former Access Pass holders would continue to visit State Parks, and now would pay the required fees, and that new patrons would utilize camping, cabin rentals, and golf tee times that previously had been reserved by Access Pass holders no longer eligible for the program.

5. Local Government Mandates:

The rule would not impose any additional program, service, duty or responsibility beyond those imposed by State and federal statutes.

6. Paperwork:

This rule does not create any new paperwork requirements. Eligible applicants would continue to submit applications on forms supplied by State Parks and would continue to be required to submit supplemental material.

7. Duplication:

The rule does not duplicate, overlap or conflict with State and federal requirements.

8. Alternatives:

State Parks provided a draft version of the Access Pass rule to five involved state agencies and nine non-profit organizations active in disability and parks issues.

As a result of the informal input from many of these organizations, State Parks changed the rule to use "people first" language throughout as required by Chapter 455 of the Laws of 2007, and updated the definitions for categories of persons with disabilities. OPRHP also accepted the recommendation to retain Access Pass eligibility for persons receiving services through OMH and OMRDD.

OPRHP rejected recommendations to continue to offer the Access Pass to individuals eligible for SSD and/or SSI because including these categories does not meet the legislative objectives of PRHPL § 13.19. State Parks also rejected revising the fees structure to assess differential fees depending on the nature of a person's disability because this approach also does not meet the legislative objectives of PHRPL § 13.19.

Finally, OPRHP considered but rejected re-defining the statutory phrase "other public places of recreation" to exclude cabin and golf course usage from the Access Pass program. At this time, State Parks' goal is to continue to maintain the range of public recreation programs available under the Access Pass within the fiscal constraints facing the agency.

9. Federal Standards:

The rule does not exceed any minimum standards of the federal government for the same or similar subject areas and is necessary to conform to the controlling statute.

10. Compliance Schedule:

The changes to the Access Pass program will become effective immediately upon adoption of the regulation. OPRHP proposes to implement the changes in advance of the 2010 summer operating season.

Regulatory Flexibility Analysis

A Regulatory Flexibility Analysis is not submitted with this notice because the rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis is not submitted with this notice because the rule will not impose any adverse impact or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas.

Job Impact Statement

A Job Impact Statement is not submitted with this notice because the rule will not have an impact on jobs and employment opportunities.