DATCP Docket No. 19-R-06 Final Hearing Draft
Rules Clearinghouse No. 21-109 April 6, 2022
THE DEPARTMENT OF AGRICULTURE, TRADE AND CONSUMER PROTECTION’S PROPOSED ORDER TO ADOPT PERMANENT RULES
PROPOSED ORDER
The Wisconsin Department of Agriculture, Trade and Consumer Protection proposes an order to repeal and recreate ATCP 78, relating to the regulation of recreational and educational camps and affecting small business.
Analysis Prepared by the Department of
Agriculture, Trade and Consumer Protection
The Wisconsin Department of Agriculture, Trade and Consumer Protection (department) proposes an order to repeal and recreate Wis. Admin. Code ch. ATCP 78 (Recreational and Educational Camps), formerly DHS 175. Chapter DHS 175 had not been significantly modified by the Wisconsin department of health services since 2001. Chapter ATCP 78 has also not been significantly modified since the program was brought to the department on July 1, 2016. This new rule, if adopted, will bring Wisconsin into substantial accord with the current industry technology, innovations, and camper experiences. Statutes Interpreted
Statutes Interpreted: Sections 93.07 (1) “Department of agriculture, trade and consumer protection;” 97.30 (2) (a) “Retail food license requirement;” 97.625 “Powers of the department and local health departments;” 97.67 (1) and (4) “Recreational licenses and fees;” and 227.11 (2) (a) “Agency rule-making authority,” Stats.
Statutory Authority
Statutory Authority: Sections 93.07 (1), 97.30 (2) (a), 97.625, 97.67 (1) and (4), and 227.11 (2) (a), Stats. Explanation of Statutory Authority
The department has broad general authority, pursuant to s. 93.07 (1), Stats., to adopt rules to implement programs under its jurisdiction. The department has specific authority for the requirements for retail food establishment operations, pursuant to s. 97.30 (2) (a), Stats. The department and local health departments have the power to administer and enforce rules, pursuant to s. 97.625, Stats. The department has specific authority, pursuant to ss. 97.67 (1) and (4), Stats., to adopt rules for recreational and educational camps dealing with fees; license issuance, pre-licensing inspection fees, reinspection fees, fees for operating without a license, and late fees for untimely license renewal. The department has specific authority for rule making, pursuant to s. 227.11 (2) (a), Stats. Related Statutes and Rules
Since the transfer of several programs from the Wisconsin department of health service’s food safety and recreational licensing section in July of 2016, the department has regulated recreational and educational camps. A recreational and educational camp holds supervisory responsibility for campers that stay overnight using temporary and permanent structures where food or lodging are provided. Campers participate in planned program activities established for the primary purpose of providing indoor or outdoor group living experience for campers with social, recreational, spiritual, and educational objectives during one or more seasons of the year.
Recreational and educational camps are regulated, pursuant to ch. 97, Stats., as well as various, interrelated administrative rules. The recreational and educational camp license types proposed in this rule will coordinate and enhance alignment across multiple relevant environmental health administrative rule chapters including retail food establishments (ATCP 75 and its Appendix), campgrounds (ATCP 79), bed & breakfast establishments (ATCP 73), hotels, motels and tourist rooming houses (ATCP 72). Rules enforced by the Wisconsin department of natural resources are referenced in ch. ATCP 78, particularly boating safety rules related to training required to operate a motorboat, ss. 30.678 and 30.74, Stats., and chs. NR 809 and 812 are also referenced for water supply and drinking water standards. Reference to Wisconsin department of safety and professional services rules can also be found in ch. ATCP 78 for new construction or building modifications plan approval per state building code, plumbing, and private onsite wastewater treatment systems and toilet and shower facilities per chs. SPS 382, 384, and 361-365. Rules related to life safety protection in structures with fuel burning appliances by installation and maintenance of carbon monoxide and smoke detectors are referenced in ss. 101.145 and 101.149, Stats. Finally, ch. ATCP 78 revision took measures to assure health, safety and security of campers with a developmental disability by expanding the definition of ‘camper’ and by adding a definition for ‘developmental disability’ per s. 51.01(5) (a)-(b), Stats. Plain Language Analysis
The department and its agent local health departments combined license approximately 221 recreational and educational camps throughout the state. The estimated direct annual Wisconsin economic impact of these camps, based on the 2020 American Camp Association Wisconsin Camp Economic Impact Findings Report, is 5,003 employees and $109.2 million in labor income. Wisconsin recreational and educational camps have a rich history, with 73% in operation for more than 50 years. A recreational and educational camp holds supervisory responsibility for campers who stay overnight using temporary and permanent structures where food or lodging are provided. Camps also conduct planned program activities for the primary purpose of providing indoor or outdoor group living experience for campers. The activities meet social, recreational, spiritual, and educational objectives, and are offered during one or more seasons of the year.
The department is proposing to modernize ch. ATCP 78 with a significant overhaul of the definitions section, modernization of health services qualifications and data management options, updating of the licensing and fee structure, and enhancement of provisions ensuring camper health, safety and security through camp staff background checks and camper sexual abuse prevention training. Rule revisions also support safe camp operations by addressing prevention and control of diseases spread by animals such as mosquitoes, bats, and ticks, along with provision of safe food and drinking water, both on premises and during primitive camping activities. Modernization also reflects inclusion and equity considerations with the revision of pronoun use to terms like “camper,” and “their,” in place of “he” or “she.” The proposed modernized license and fee model will promote fairness to small business, with fees that will correspond to the number and type of camp experiences offered, through a tiered model. Camps would be placed into simple, moderate, or complex categories, in place of the existing one-size-fits-all model. More complex camps, which generally are larger operations, would pay a higher license fee. In addition, the licensing structure accommodates additional hospitality activities such as lodging, retail food service and camping offered to families and other adult guests within the confines of the recreational and educational camp, utilizing the same camp structures. When a camp adds hospitality to its category it does not have to meet the normal requirements for health and supervision when providing the hospitality activities, i.e. when the recreational and educational camp is only used for families or for non-developmentally disabled adults. Obtaining the proposed license is much less expensive than obtaining the additional applicable licenses separately. Licensing fees have not increased since 2007, and basing the licensing fee on risk and hospitality activity will help to moderate the impact of a fee increase. The modernized license and fee model will include six possible categories: simple, simple with hospitality, moderate, moderate with hospitality, complex, complex with hospitality.
As previously stated, the proposed updates to ch. ATCP 78 contain an overhaul of definitions that includes amendments, modernization and expansion of terms used in the rule for clarification. Expansion of the definitions section includes over 50 newly defined terms. This expansion is beneficial because it creates efficiency and an opportunity for both small business and authorized representatives conducting inspections to speak the same language used within the rule. An amended definition of ‘recreational and educational camp’ deregulates camps that only serve families or non-developmentally disabled adults because supervision and health services requirements are not needed for groups of adults and families who know their children’s health needs. Modernization of obsolete terms includes replacing ‘high risk activity’ with ‘specialized program activity’ and defining ‘trained adult’ requirements for those adults supervising campers in specialized program activities. Minimum safety standards were also proposed for camps offering a ‘challenge course’, firearms, archery, horseback riding, program aquatics, and motorized vehicle programming to campers. These terms align with industry voluntary standards of the American Camp Association to create greater consistency and efficiency.
Users of a recreational and educational camp coming as an organized group are known by the American Camp Association as a ‘rental group’ so that standardized terminology has also been included in this revised rule, again to create greater consistency. A newly created section also outlines the use of a written agreement between a camp and each rental group to ensure accountability to meet health and safety standards of campers on behalf of the licensee.
Camp staff are responsible for camper health and wellness, including direct oversight of camper medications, allergies, and urgent health treatment during their stay. In other words, the camp staff function as temporary parents or guardians of their campers. The revised rule will modernize the requirement for the bound-book medication log and thereby save time for the department, its local health department agents, and industry stakeholders by allowing camp operators to use the more efficient electronic systems widely available for medication documentation and data management. This update will allow existing medication bound book variances to sunset and decrease the need for new variance applications. This flexibility will simultaneously reduce the record-keeping burden on small business and drastically lower department time to process variance requests. The rule revision will also eliminate the existing requirement for camps to write and follow policies for EMS-15 minutes response time. Furthermore, the rule revision reduces the additional time and resources involved with resolving confusion created by the existing rule not keeping pace with changes that have occurred with camps and camper demographics over the years. The proposed rule will also enhance the safety of campers who need medications during their stay, by adopting use of a free online medication administration module already developed and maintained by another state agency. Use of this module is intended to give all designated camp and rental group health staff baseline knowledge necessary for dealing with a variety of medications campers may bring to camp. Utilizing an existing free training already hosted by the Wisconsin department of public instruction is one example of how the department is being a responsible steward of state resources and avoiding unnecessary expenses.
The proposed ch. ATCP 78 includes a new requirement for reporting death, injury or illness that require an emergency medical service (EMS) response. This data will assist in designing effective outreach and meaningful interventions and the data collected may help support future rule development. This data will be mutually beneficial to both small business and the department as they make continuous improvements in keeping campers safe and healthy. The proposed ch. ATCP 78 also seeks to streamline camper health requirements reflecting the variety of overnight accommodations made available to campers by the industry as both permanent and open air sleeping experiences. The proposed rule simplifies life safety and public health standards by removing the cubic footage by age provisions. This update has a positive impact on stakeholders by allowing for greater flexibility in setting cabin capacity and bed layout configurations while also promoting the reduction of respiratory illness. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations
There are no existing or proposed federal regulations that address the activities to be regulated by this proposed rule as a whole. However, federal rules and guidance documents are cited as these documents provide industry-accepted standards for certain aspects of camp. All Wisconsin recreational and educational camp kitchen design and food preparation activities are required to follow ch. ATCP 75 and its Appendix that references and mirrors much of the 2013 United States Food and Drug Administration (FDA) Model Food Code, as well as FDA Model Food Code updates accepted by the FDA since 2013. The newly proposed playground equipment section was developed through review of voluntary safety guidelines included in the United States Consumer Product Safety Commission’s Public Playground Safety Handbook, 2010 edition. Lastly, Code of Federal Regulation, 33 CFR part 175 is cited relative to the use of personal floatation devices at camps offering boating activities. Summary of Comments Received during Preliminary Comment Period and at Public Hearing on Statement of Scope
The department held a preliminary hearing on the statement of scope (SS 126-19) on February 14, 2020 in Madison and February 17, 2020 in Wausau, with comments open until February 24, 2020. The department received four oral comments during the preliminary hearings and seven written comments. In response to public comments, the department considered the comments received on the recognition of other standards such as the Professional Ropes Course Association and ANSI National Safety Standards, the importance of further standards and rules for ropes courses, the impracticality of third-party inspectors for ropes courses, and seeking general clarification of the scope. Comparison with Rules in Adjacent States
Illinois Youth camp health, safety and licensing are pursuant to Youth Camp Act 210 ILCS 100 and Ill. Admin. Code Title 77, part 810.
Camp health services pursuant to Ill. Admin. Code Title 77, s. 810.90 (d) only requires a minimum of one person with a current American Red Cross Standard First Aid Certificate or equivalent on the premises at all times when a youth camp is in operation. Camper health recordkeeping is broader than Wisconsin. Illinois requires each youth camp to maintain and keep current a record of first aid cases treated by designated first aid personnel during the camp operating period. Indiana is also similar to Illinois health services staffing per 410 IAC 6-7.2-17a., in requiring that there shall be an individual present who is designated as the health supervisor and who has completed at least the Red Cross Standard First Aid Course or its equivalent. Illinois requires a lifeguard for supervision at a swimming beach but does not provide any minimum ratio.
Iowa Resident camp licensing in Iowa is pursuant to childcare administrative rule, IAC ch. 109, 441-109.1, Resident camp programs may be exempt from attaining a child care license through several exemptions, including those that receive national accreditation.
