HLT-13-11-00004-A Children's Camps, Swimming Pools, Bathing Beaches  

  • 7/6/11 N.Y. St. Reg. HLT-13-11-00004-A
    NEW YORK STATE REGISTER
    VOLUME XXXIII, ISSUE 27
    July 06, 2011
    RULE MAKING ACTIVITIES
    DEPARTMENT OF HEALTH
    NOTICE OF ADOPTION
     
    I.D No. HLT-13-11-00004-A
    Filing No. 564
    Filing Date. Jun. 21, 2011
    Effective Date. Jul. 06, 2011
    Children's Camps, Swimming Pools, Bathing Beaches
    PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
    Action taken:
    Amendment of Subparts 6-1, 6-2 and 7-2 of Title 10 NYCRR.
    Statutory authority:
    Public Health Law, section 225
    Subject:
    Children's Camps, Swimming Pools, Bathing Beaches.
    Purpose:
    The amendments incorporate PHLs, including a new day camp definition, and amend standards for swimming and camp cabins.
    Substance of final rule:
    The proposed code amendments contain the following major provisions:
    The summer day camp definition and fee for a children's camp permit have been revised to be consistent with Public Health Law (PHL);
    A definition for nonpassive recreational activities with significant risk for injury has been added, as mandated by Chapter 439 of the Laws of 2009;
    The list of operations exempt from regulation has been expanded to include "pre-college," school, and certain classroom based educational programs;
    Course curriculum standards for first aid and cardiopulmonary resuscitation (CPR) certifications have been added and references to American Red Cross (ARC) courses removed;
    The first aid course accepted for day camps with minimal physical activity was eliminated;
    Camp Aquatic Directors minimum experience, certification, and training requirements have been clarified and improved;
    The percent of on-duty 16-year-old lifeguards allowed to supervise the camp's aquatic activities has been increased from 20 percent to 50 percent;
    An alternative to the requirement for camps to provide a lifeguard during camp trip swimming activities to lifeguarded facilities has been added;
    The number of staff certified in CPR that are required for wilderness swimming activities has been clarified;
    Public Health Law (PHL) requirements are incorporated for the use of the State Sex Offender Registry to determine if staff are listed (Article 13-B PHL) and providing meningococcal meningitis information to parents of children at certain overnight camps (PHL Section 2167);
    Reflective triangles have been added as an acceptable alternative to flares in camp vehicles used to transport campers and staff;
    Certain types of summer camp cabins have been exempted from the Uniform Fire Prevention and Building Code (Uniform Code) requirements for fire extinguishing sprinkler systems and minimum occupant floor area requirements;
    Public Health Law reference defining the term "officers" has been corrected;
    Course curriculum standards for "Lifeguard Supervision and Management" have been added to Subpart 6-1 and Subpart 6-2 of the SSC.
    Final rule as compared with last published rule:
    Nonsubstantive changes were made in section 7-2.2(l).
    Text of rule and any required statements and analyses may be obtained from:
    Katherine Ceroalo, DOH, Bureau of House Counsel, Regulatory Affairs Unit, Room 2438, ESP, Tower Building, Albany, NY 12237, (518) 473-7488, email: regsqna@health.state.ny.us
    Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement
    Changes made to the last published rule do not necessitate revision to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement.
    Assessment of Public Comment
    In response to the March 30, 2011 notice in the State Register, a total of 41 written comments were received during the comment period. Written comments were received from one town, two counties, NYCDOHMH, two legislators, four camp associations and from over 30 private individuals. Many comments addressed multiple topics.
    The following reflects the concerns expressed by those who commented and the Department's response:
    Summer Day Camp Definition and Activities:
    Comments:
    The majority of comments received did not relate to the proposed regulations, but guidance that the Department (also referred to herein as "DOH") had withdrawn. Those comments largely pertained to a misconception that the guidance restricted or prohibited certain activities at day camps and other children's recreation programs/playgrounds. Some commenters questioned the appropriateness of categorizing certain activities as "having a significant risk for injury" in an associated guidance document and others said that there should be no new regulations and/or a reduction in regulations pertaining to indoor and outdoor camps.
    Two comments questioned the legal authority for the Department to promulgate the proposed regulations. Other commenters indicated the definition of nonpassive recreation activity with a significant risk of injury (NPRASRI) was too vague, difficult to assess, or inflexible. One commenter indicated that additional DOH guidance to implement the day camp definition was necessary to clarify the types of activities considered to be NPRASRI and expressed concern that the Department had rescinded guidance. Also, the commenter suggested that local health departments have flexibility to determine the types of activities that are NPRASRI instead of limiting the authority to the Department.
    Another commenter expressed concern that the proposed exemption for classroom based educational programs does not specifically exclude traveling as part of the program.
    A commenter expressed concern that few new camps will actually be subject to DOH oversight given the exemption for single-purpose activities and activities not categorized as NPRASRI.
    DOH Response:
    The majority of the comments did not relate to the proposed regulations, but guidance that has been withdrawn by the Department. Proposed amendments to the regulation do not restrict, limit, or mandate activities that a camp or other children's programs can or cannot conduct. The amendments also do not remove current exemptions for activities at unscheduled or drop-in neighborhood-center settings, or single purpose athletic events or programs.
    The proposed summer day camp definition is consistent with the Public Health Law ("PHL"), and the Department has made some minor clarifying edits to the definition. The ability to determine the types of activities that are NPRASRI is intentionally limited to the Department to ensure consistent implementation throughout New York State.
    It is unnecessary to include a travel prohibition from the proposed exemption for classroom based education programs. Travel for the purpose of recreation is neither prohibited, nor considered part of the classroom portion of the program. Educational programs with travel and recess beyond the specified parameters do not qualify for the exemption.
    We note that the inclusion of indoor camps, which meet certain criteria, in the definition of a summer day camp is mandated by PHL.
    Permit Fee:
    Comment:
    Five comments were received which addressed permit fees and suggested that the regulation was intended to enhance revenue.
    DOH response:
    No change is proposed. The fee associated with a permit is established by the PHL. The Department of Health estimates that the cost to regulate a day camp is significantly more than what the amount that the permit fee generates. The proposed amendments do not alter the current exemption from the permit fees for municipal, charitable, philanthropic, and religious camps.
    Exemption for Municipal Program:
    Comment:
    Others expressed concern that the regulations were burdensome and could result in the elimination of municipal recreational programs. The commenters suggested that the Department should consider an exemption for municipalities from the regulations. Two also requested a year delay for municipal programs and one that municipal programs be provided more flexibility.
    DOH Response:
    No change is proposed. The proposed amendment to the day camp definition is mandated by PHL to provide the same level of protection to children participating in recreational activities indoors as would be provided when these activities are conducted outdoors. The amendments do not broaden regulatory oversight to new outdoor programs or remove current exemptions for activities at unscheduled or drop-in neighborhood-center settings, or single purpose athletic events and programs.
    Department of Health's analysis of past incidents at municipal recreation programs has demonstrated the benefit and need to continue to regulate municipal programs that meet the criteria for a day camp. The children's camp regulations have applied to municipally-operated outdoor day camps since 1984. Prior to 1984, municipally-operated summer camps were exempt from the requirements of the PHL and State Sanitary Code. Chapter 314 of the Laws of 1984 eliminated the exemption.
    Costs to Local Health Departments to Implement the Day Camp Definition:
    Comment:
    One county department of health questioned whether the amendments to the summer day camp definition would result in an estimated 284 new summer day camps coming under the regulations. The commenter estimated that the regulations would capture an additional 150-260 summer day camps in just one county alone and create an inadequate staffing situation with respect to overseeing summer camp program functions.
    DOH Response:
    The estimated increase in the number of new summer day camps was based on a 2010 survey of local health departments. The regulations implement the PHL change, which is to apply the same level of regulatory oversight to indoor summer programs as outdoor programs. The Department does not believe that excessive numbers of new camps will suddenly require oversight.
    Camp Aquatic Director
    Comments:
    One letter of comment pertained to the Camp Aquatic Director (CAD) qualifications, e.g. experience, recruitment, etc.
    DOH Response:
    No change is proposed to the current amendment. CADs are responsible for establishing and overseeing swimming programs at children's camps and not boating or other aquatic programs. The Department's investigation of drowning incidents that occurred at camps during a swimming activity identified that in all but one of the incidents since 1987 the CADs lacked a thorough understanding of lifeguarding management practices, aquatic injury prevention, and/or DOH regulations to adequately oversee the camps swimming program and staff. The proposed amendments were established with water safety experts and the camping industry to ensure that CADs will have the necessary knowledge to establish safe swimming programs. Training or experience as a progressive swimming instructor or in boating does not provide the necessary knowledge.
    The current regulation is already protective for boating and other aquatic activities in that a competent activity leader must oversee each activity being conducted. A CAD may oversee boating and other activities in which he/she is competent. Applicants with out-of-state experience can qualify for a variance as a CAD if they demonstrate an equivalent level of experience as a NYS CAD.
    Camp Cabin Comment:
    Comment:
    One comment expressed concern that the minimum floor area for altered or renovated sleeping quarters that do not qualify as a camp cabin is being increased to 50 square feet per occupant. The comment also recommended that porches and exterior hallways should be included in the calculation of the minimum floor area.
    DOH Response:
    No change is proposed to the current amendment. Department of State Uniform Fire Prevention and Building Construction Code (Uniform Code) establishes criteria for renovation and alteration and includes the minimum square footage standards for sleeping quarters that do not qualify as camp cabins. The proposed amendments make the children's camp regulations consistent with the Uniform Code.
    Guidance used as regulation:
    Comment:
    One letter noted that agencies should avoid using guidelines unless absolutely necessary.
    DOH Response:
    The PHL defines a camp to include nonpassive activities with a significant risk for injury (NPASRI) and required the Department to define the term in the regulation. The regulation defines NPASRI and includes criteria that activities must meet to be considered NPRASI. Any guidance that will be provided will not re-define the law or regulation. It will provide information to assist programs and to otherwise answer frequently asked questions.
    Dental Mouth Guard:
    Comment:
    One commenter, a dentist, proposed adding an additional requirement for mouth guards to be worn for all softball activities.
    DOH Response:
    No change is proposed to the current amendment. At this time, children's camps regulations do not specify safety equipment standards for sports; however, the regulation requires camp operators themselves to develop and implement a written safety plan that must address safety requirements for all activities at the camp, including required safety equipment.
    Comment:
    One comment recommended that the Department add pertussis to the list of immunization records that must be kept on file for each camper.
    DOH Response:
    The Department intends to add pertussis to required immunization records the next time the regulation is amended.

Document Information

Effective Date:
7/6/2011
Publish Date:
07/06/2011