DEPARTMENT OF HEALTH [28 PA. CODE CH. 18] Public Swimming and Bathing Places [29 Pa.B. 820] The Department of Health (Department) proposes to amend Chapter 18 (relating to public swimming and bathing places) by adding definitions for ''certified lifeguard'' and ''recreational swimming establishment'' in § 18.1 (relating to definitions), and by amending § 18.42 (relating to lifeguards). The Department also proposes to include in § 18.42 the requirements for lifeguard certification and the factors to be considered in determining adequate lifeguard coverage.
A. Purpose
The Department is directed by the act of June 18, 1998 (P. L. 531, No. 75) (Act 75), amending the Public Bathing Law (35 P. S. §§ 672--680d) to determine appropriate authorities to certify lifeguards and to promulgate regulations to determine the number of lifeguards required at a recreational swimming establishment when the recreational swimming establishment is open to the public. The Department is to promulgate these regulations in consultation with approved certifying authorities and recreational swimming establishments.
The lifeguard requirements of Act 75 and the proposed amendments are intended to enhance public safety by requiring adequate lifeguard coverage at certain types of swimming facilities and by setting forth requirements for the certification of lifeguards. The regulation currently appearing in § 18.42, requiring lifeguard coverage for public bathing places, was struck by the Pennsylvania Supreme Court in 1990 as exceeding the promulgating agency's regulatory authority. Spooner v. Secretary of Commonwealth, 574 A.2d 600 (Pa. 1990). The act of June 28, 1995 (P. L. 89, No. 18), the Conservation and Natural Resources Act (71 P. S. §§ 1340.101--1340.1103), which dismantled the former Department of Environmental Resources and transferred certain powers and duties to other agencies, also required the Department to again administer the Public Bathing Law.
Act 75 granted authority to the Department to ensure that there is an adequate number of certified lifeguards at certain swimming establishments. The application of the proposed lifeguard requirements is limited to ''recreational swimming establishments'' as defined in Act 75. Two major limitations of Act 75's application are that the swimming establishment must be open to the public and charge a fee for admission. The Department therefore proposes to amend § 18.42 to delete the inoperative language and to add language which corresponds to the requirements of Act 75.
The Department conducted a stakeholder meeting on October 1, 1998, to consult with representatives of lifeguard certifying authorities and recreational swimming establishments on the development of regulations relating to the lifeguard requirements of Act 75. Information and suggestions provided by stakeholders have been included in these proposed amendments.
B. Requirements
§ 18.1 Definitions
A ''certified lifeguard'' is defined in Act 75 as an individual who has a current certificate in lifeguarding from a certifying authority recognized by the Department in a notice published in the Pennsylvania Bulletin. The Department proposes to add the statutory definition to this section.
A ''recreational swimming establishment'' is defined in Act 75 as:
A facility that is designed, constructed, and/or designated for use by individuals for the primary purpose of swimming, where a fee is charged for admission. This definition includes, but is not limited to, swimming pools, water rides, wave pools, swimming beaches and other outdoor swimming facilities. The term excludes those facilities owned by condominiums, other property owner associations, rental arrangements which include three or more families or social units, hotels or motels, campgrounds, private clubs and private organizations which do not provide access to the general public, swimming facilities used exclusively for hydrotherapy and residential swimming facilities used solely by the owner of a residence, his family and personal guests. 35 P. S. § 673
Since this definition enables a swimming establishment to change its status based upon whether a fee is charged, and since the amendment to section 4.1(a) of the Public Bathing Law (35 P. S. § 675.1(a)) requires only that an adequate number of certified lifeguards shall be on duty at a recreational swimming facility when it is ''open to the public,'' the Department is proposing the following addition to the statutory definition of a ''recreational swimming establishment:''
When a facility otherwise excluded by this definition provides access to the general public and charges a fee for admission, it shall be considered a recreational swimming establishment.
This addition anticipates a situation in which a facility (for example, hotel, motel) which is typically excluded from the definition of a recreational swimming establishment, is operating for a time in a manner which renders it a recreational swimming establishment subject to the requirements of Act 75.
§ 18.42 Lifeguards
The Department proposes to change the title of this section to ''certified lifeguards'' to reflect the Act 75 directive. Current subsections (a) and (b) would be replaced with new subsections (a) and (b).
Subsection (a) recognized lifeguard certifying authorities.
This subsection proposes criteria that would require a lifeguarding course of a lifeguarding certifying authority for that certifying authority to be recognized by the Department. The criteria are based on Nationally-recognized lifeguard certifying authority standards.
Subsection (b) facilities requiring lifeguards.
This subsection would provide the Department's criteria for determining that an adequate number of certified lifeguards are on duty at a recreational swimming establishment to protect the safety of the public when that establishment is in operation. Traditionally, the number of lifeguards required at public bathing places under National standards has been based upon the surface area of the facility, user load (number of swimmers in the pool), or a combination of both. This approach to determining an adequate number of lifeguards at a given facility does not take into consideration the proliferation of uniquely designed pools and types of facilities (for example, wave pools).
A number of Nationally-recognized lifeguard certifying authorities (for example, The American Red Cross, YMCA, Ellis and Associates, Inc.) have addressed the need for adequate lifeguard coverage by recognizing that each facility is different and that any attempt to protect user safety must account for individual facility size, design and utilization. Furthermore, while it is important to have an adequate number of lifeguards, swimmers' safety is further protected when those lifeguards have been trained and situated so they can visually monitor, detect, react and reach a victim within an acceptable amount of time. This subsection would incorporate current certifying authority standards for ensuring adequate lifeguard coverage.
C. Who is Affected by the Proposed Amendments
The proposed amendments requiring adequate coverage by certified lifeguards at recreational swimming establishments would affect swimming and bathing facilities when they are open for use by the general public and a fee is charged for admission. These establishments include, water parks, municipal pools, State park pools and natatoria. The proposed amendments would affect establishments which do not usually meet the statutory definition of a recreational swimming establishment (for example, hotels or motels) but may on occasion operate as a recreational swimming establishment when that facility is open to the general public and charges a fee for admission. The proposed amendments would also enhance the safety of the public when it uses recreational swimming establishments.
D. Cost and Paperwork Estimates
These proposed amendments are projected to have little fiscal impact on the Commonwealth, local government, the private sector and the general public. Most recreational swimming establishments, as defined by Act 75, currently employ lifeguards to protect the safety of their patrons. Facilities which comply with these regulations may derive a benefit from lower liability insurance rates which may offset potential costs incurred. The proposed amendments will not significantly increase paperwork.
E. Effective Date/Sunset Date
These proposed amendments will be effective immediately upon final adoption. There is no sunset date.
F. Statutory Authority
The amendments are proposed under Act 75. Act 75 requires that the Department determine appropriate authorities to certify lifeguards and promulgate regulations to determine the number of lifeguards required at a recreational swimming establishment.
G. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department will submit a copy of the proposed amendments to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Health and Human Services and the Senate Committee on Public Health and Welfare. In addition to submitting the proposed amendments, the Department will provide IRRC and the Committees with a copy of a Regulatory Analysis Form prepared by the Department in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed amendments, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review prior to final publication of the amendments, by the Department, the General Assembly and the Governor, of objections raised.
H. Contact Person
Interested persons are invited to submit all comments, suggestions or objections regarding the proposal to William M. Williams, Environmental Health Administrator, Bureau of Community Health Systems, Room 628, Health and Welfare Building, Harrisburg, PA 17120, (717) 787-4366 within 30 days after publication of this proposal in the Pennsylvania Bulletin. A person with a disability may submit comments, suggestions or objections regarding the proposed amendments to William Williams in alternative formats, such as audiotape, braille or V/TT: (717) 783-6514 or the Pennsylvania AT&T Relay Service at (800) 654-5984 [TT]. A person with a disability may request an alternative format of this document by contacting William Williams so that he may make the necessary arrangements.
GARY L. GURIAN,
Acting SecretaryFiscal Note: 10-155. No fiscal impact; (8) recommends adoption.
Annex A TITLE 28. HEALTH AND SAFETY PART II. LOCAL HEALTH CHAPTER 18. PUBLIC SWIMMING AND BATHING FACILITIES GENERAL PROVISIONS § 18.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly idicates otherwise:
* * * * * Certified lifeguard--An individual who has a current certificate in lifeguarding, from a lifeguard certifying authority, as recognized by the Department in a notice published yearly in the Pennsylvania Bulletin.
* * * * * Recreational swimming establishment--A facility that is designed, constructed or designated for use by individuals for the primary purpose of swimming, if a fee is charged for admission. The term includes swimming pools, water rides, wave pools and swimming beaches and other outdoor swimming facilities. The term excludes those facilities owned by condominiums, other property owner associations, rental arrangements which include three or more families or social units, hotels or motels, campgrounds, private clubs and private organizations which do not provide access to the general public, swimming facilities used exclusively for hydrotherapy, and residential swimming facilities used solely by the owner of a residence, the owner's family and personal guests. When a facility otherwise excluded by this definition provides access to the general public and charges a fee for admission, it shall be considered a recreational swimming establishment.
* * * * * GENERAL SAFETY § 18.42. Certified [Lifeguards] lifeguards.
(a) [Number. One or more competent lifeguards in adequate number shall be on duty at the waterside at all times the public bathing place is open to use by bathers, and may not be assigned other tasks which will divert attention from the safety of the bather.
(b) Qualifications. Lifeguards shall be capable swimmers, skilled in lifesaving methods and in methods of artificial resuscitation as evidenced by the possession of a currently valid certificate or other proof of proficiency from a recognized agency offering instructions in these fields.]
Recognized lifeguard certifying authorities. The Department will recognize a lifeguard certifying authority if the certifying authority's lifeguard training course satisfies the following requirements:
(1) The course is conducted pursuant to a written training plan, instructors' manual and textbook.
(2) It provides for instruction in cardiopulmonary resuscitation.
(3) It provides for instruction in first aid.
(4) It includes a system for evaluating swimming ability.
(5) It provides for instruction in lifeguarding responsibilities and pool operation.
(6) It provides a method for testing and certification.
(7) It includes a certificate which expires if renewal criteria are not satisfied.
(8) Its instructors have completed an approved lifeguard instructors' certification program.
(9) Upon successful completion of the course, the names of certified individuals are entered into an accessible information system.
(b) Required number of lifeguards. A recreational swimming establishment shall have on duty an adequate number of certified lifeguards to protect the safety of users. To ensure an adequate number of certified lifeguards, the operator of a recreational swimming establishment shall:
(1) Develop, write and adhere to a lifeguard coverage plan for the recreational swimming establishment incorporating the standards of a Department-recognized lifeguard certifying authority which specifies how the recreational swimming establishment shall provide an adequate number of certified lifeguards at relevant times. This plan shall be posted in an area commonly utilized by lifeguard staff and shall be available to the Department and any member of the public upon request.
(2) Consider facility size, design and utilization.
(3) Station one or more lifeguards at waterside when the recreational swimming establishment is open and not assign other tasks which could divert the attention of lifeguards from the safety of users.
(4) Ensure that the entire area of the recreational swimming establishment can be visually monitored by lifeguards at least every 10 seconds.
(5) Ensure that the lifeguard-to-victim response time is 20 seconds or less.
(6) Monitor and evaluate lifeguard staff performance during actual or simulated operational conditions, and modify the lifeguard coverage plan as necessary to ensure the safety of users.
(7) Provide appropriate lifeguard orientation and regular inservice training at least yearly on the topics of lifesaving techniques, safety equipment and emergency procedures.
[Pa.B. Doc. No. 99-226. Filed for public inspection February 12, 1999, 9:00 a.m.]
