February 3, 2017

Office of the General Counselc/o LouAnn StantonDepartment of Public Health250 Washington StreetBoston, MA 02108

To Whom It May Concern:

Please accept the attached testimony on the revised Christian’s Law regulations (105 CMR 432.000) on behalf of the Massachusetts Alliance of Boys & Girls Clubs, representing 42 Boys & Girls Clubs serving over 169,000 youth across the state each year.

First, we would like to thank the Department of Public Health and its dedicated staff for their responsiveness to our concerns in developing and revising these regulations. We particularly appreciate the thoughtful addition of section 432.020(c), which addresses the tensions between the requirements of DPH and the rules of some municipal ocean beaches. Despite welcome changes, however, we are concerned that certain aspects of these regulations still present obstacles for some Boys & Girls Clubs who wish to provide beach and pond experiences to their summer campers. Of particular concern are certain aspects of the swim test requirement and the PFD requirement.

The type of Boys & Girls Club most impacted is one which: conducts its summer camp at its year round facility, does not have access to its own swimming facilities, and does not employ swim instructors or lifeguards. Clubs falling into this category include the Boys & Girls Club of Chicopee, the Boys & Girls Club of Newton, and the Boys & Girls Club of Arlington, among others. Instead, these Clubs take advantage of the many DCR and municipally-run beaches with on-duty lifeguards. For some of the disproportionately low-income and minority population that we serve, this is the only time they experience a day at the beach or by a pond.

In consideration of the foregoing, we offer the following comments on the proposed regulations. Our suggestions, taken alone or in conjunction, would mitigate the impacts of these regulations.

105 CMR 432.000: Minimum Requirements for Personal Flotation Devices for Minor Children at Municipal and Recreational Programs or Camps

432.020: Applicability

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As currently written, these regulations apply to all camps using beaches for “bathing or swimming activities”. There is a great practical difference between programs that only allow children to bathe, wade, and splash in shallow waters – as opposed to those that allow and encourage free swimming in open waters. The two situations present very different levels of potential danger. In most cases, the children our Clubs take to the beach are only allowed into the water up to their thighs or waists and are surrounded by a “human horseshoe” of staff that physically contain them to the shallows. Requiring a PDF be available in these circumstance does not appear to address the safety concerns envisioned in the enabling legislation.

The statute makes no reference to bathing or wading activities; it only uses the word “swimming”. We would suggest that it would be consistent with the statute to omit all references to bathing in the regulation, and to define “a swimming or diving area” as an area which is intended to be used for swimming or diving. This would have the effect of making 105 CMR 432 inapplicable to programs that only allow wading and bathing. We see this as a sensible approach that balances safety considerations against the practical challenges for some Boys & Girls Clubs and other programs across the state.

432.100: Swim Test Requirements

There are a number of logistical challenges to conducting swim tests for every minor: lack of access to swimming facilities for conducting tests, lack of staff with the training necessary to conduct swim tests, and a camper population that changes not just week-to-week but sometimes day-to-day. While the new “swim assessor” category makes it more likely that there may be a staff member who technically qualifies to conduct swim tests, there is an understandable hesitancy on the part of staff members to assume the responsibility for this task without full and adequate training. As an alternative, we would suggest that programs be permitted to waive the swim test requirements if they preemptively classify all minors as non-swimmers.

This approach would be consistent with the statute, which requires not that an actual swimming test be administered, but instead directs that “A determination shall be made of each minor's swimming ability at the first swimming session at municipal and recreational programs and camps in order to identify and classify non-swimmers and at-risk swimmers”.

432.110: Confinement to Certain Swimming AreasIt is not clear from the regulations what confinement would mean in practice. While it varies from Club to Club, many of our youth are non-swimmers in reality, and Clubs already have systems in place that treat all campers as non-swimmers. This includes rules against wading deeper than one’s knees (or in another Club’s case, waist), and the use of “human horseshoes” to physically contain campers within a

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shallow area. We would appreciate more information from the Department on the mentioned guidelines.

432.120: Personal Flotation Devices Made Available by the OperatorThis section leaves us with a few questions. First we ask what it means for there to be an “adequate” number of PFDs available. Does this require that there be a PFD for every non or at-risk swimmer in the swimming area? We are also seeking clarification on what it means to “make available” PFDs to swimmers. What does this look like in practice?

From the perspective of the Clubs, purchasing, transporting, and storing PFDs for every non-swimmer would be a substantial burden. The up-front cost of purchasing PFDs is a one-time event that budgets may be able to absorb. Transportation and storage, however, is an ongoing expense. Programs travel to the beach in everything from school buses, to minivans, to public transportation. The Boys & Girls Club of Newton, for example, takes an average of 100 children to the beach on any one trip. Would they need to transport 100 PFDs? That would necessitate another van, with all its attendant costs, just to transport the life jackets. There is also the labor of physically carrying 100 PFDs from the parking area to the beach itself, sometimes a not inconsiderable distance. Storage presents an additional logistical and financial headache.

We would suggest an alternate method of compliance with the availability requirement: that programs “make available” PFDs by providing the option to parents and guardians when their child first attends the summer camp. At the request of the parent/guardian, programs could provide a PFD for their child and have it accessible at the bathing site, or indeed require that the child wear it. Programs would meet the availability requirement and provide PFDs to those who need and choose them, but would have a less unwieldy number of PFDs to track and transport.

In closing, we would like to thank you again for all the responsiveness and openness to dialogue has shown throughout this process. While we have been discussing these regulations as they specifically relate to Boys & Girls Clubs, the challenges we identify are surely shared by other small recreational and youth development programs across the Commonwealth. We do not want to deprive any of our youth of the opportunity of experiencing our wonderful Massachusetts beaches, especially those who may not get other opportunities to do so. We believe that, as suggested, there are less burdensome routes to protecting children and fulfilling the letter and spirit of Christian’s Law.

We appreciate your consideration of our comments, and look forward to continuing to work together to make these the best regulations possible. Thank you.

Respectfully submitted by:

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Ruth ProvostPresident, MA Alliance of Boys & Girls Clubs

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