October 25, 2010

Senator Evan H. Jenkins
The Senate of West Virginia
Building 1, Room 216-W
1900 Kanawha Boulevard E
Charleston, West Virginia 25305-0880

Dear Senator Jenkins:

You have posed a number of questions that call for an interpretation of two provisions in West Virginia Board of Education Policy 6200 found in the opening paragraph of Section 205, entitled RECREATIONAL AREAS, that state:

? All centers housing kindergarten programs contain a segregated blacktop area and a large grassy area with climbing equipment and swings.

? The playground equipment must meet the standards of the Handbook of Playground Safety and be ADA compliant.

Your questions arise from a situation in which Cabell County Schools decided to remove its swings from elementary schools due to safety and insurance considerations. As you are aware, I made clear to the Cabell County Superintendent as well as to the media, that nothing in Policy 6200 prevented the Superintendent from taking such action. Likewise, it was made clear that nothing in Policy 6200 required the Superintendent to take such action.

Against this backdrop, I will try to respond to your questions.

1. Regarding the first provision [of Policy 6200] cited above, are all facilities (i.e., elementary schools) housing a kindergarten required to have swing sets?

As you have pointed out, there are two issues framed by this question: 1) Does this provision apply to all existing facilities or only new sites? 2) Does this provision require swing sets or recommend swing sets?
I interpret Section 205 to apply to new schools or to those recreational areas being newly constructed or undergoing major renovations. I also interpret this language to be recommending, rather than requiring, swing sets and climbing equipment and to be mandating that kindergartner?s recess be segregated by time or space from the rest of the elementary school students for safety considerations. I base my interpretation on the following:

Policy 6200 was developed as a handbook to, in its words, "assist public school officials in planning and constructing new facilities, additions and major renovations." Chapter 2, in which Section 205 is found, is devoted to ?School Site Planning.? In addition, the subsection immediately following the first paragraph, 205.01 begins ?The following represent the typical recreational spaces for new school site selection and planning.?

Portions of Policy 6200 contain requirements imposed by state statute, such as each county developing a ten-year Comprehensive Educational Facilities Plan that must be approved by the State Board and the State Building Authority. Some portions contain State Board requirements not necessarily mandated by state statute, such as Section 406: ?A physical education space or gymnasium is to be included.? Other portions of the Policy are clearly labeled recommendations or optional, such as Section 412, entitled ?ART FACILITIES.?

The wording of the first paragraph of Section 205, much of which has been in the Policy since at least 1994, does not use language that identifies it as either a mandate or a recommendation. In resolving this ambiguity, I have asked whether the activity or equipment referenced is necessary to carry out a curricular activity or whether there is a safety consideration. If the answer is yes, then I interpret the portion of the paragraph related to a curricular activity or a safety consideration to be mandatory.

In this case, swing sets are not necessary to carry out a curricular activity. Policy 2510, ?Assuring the Quality of Education: Regulations for Education Programs? sets forth a program of study for kindergartners through second graders of ?not less than 30 minutes of physical education, including physical exercise and age appropriate physical activities, for not less than three days a week.? Under this policy, elementary schools which do not have the number of certified physical education teachers or the required physical setting may develop alternate programs. Recess may satisfy this requirement, but schools may provide physical exercise and activities in many other ways besides having children swing on swing sets. In fact, Policy 2520.55, which details 21st Century wellness content standards and objectives for grades pre-K to four, sets forth a number of objectives for kindergartners in movement and motor skill development, such as running, hopping, jumping, that are not met by playing on a swing set. See pp. 9-10. Therefore, my interpretation is that facilities housing a kindergarten are not required to have swing sets.

However, the language about segregating kindergarten students from older students on a playground?whether by having separate space or separate recreational times?is a safety consideration. It is reasonable therefore to interpret this portion of the paragraph to mandate that, when a new school is planned, kindergartners who use playground equipment must be segregated from the older students.

2. Regarding the second provision cited above, if a school does have a playground or swing set, does this policy impose a specific mandate that the facility comply with the ?Handbook of Playground Safety.?

I interpret Policy 6200 to impose a specific mandate, since it uses the term ?must?: ?The playground equipment must meet the standards of the Handbook of Playground Safety.? However, the Policy to requires all school playground equipment to meet the guidelines of the Handbook for Public Playground Safety prepared by the U. S. Consumer Product Safety Commission staff in effect when the equipment is installed.

I do not interpret Policy to have required all schools whose playground equipment was installed prior to September 2001, when the State Board first adopted the Handbook as a standard in Section 205, to meet the Handbook?s standards; nor does the Policy require all playground equipment to be upgraded or replaced every time the Handbook has been revised. Rather, if a county constructs a new school site, adds a new playground or renovates an existing playground significantly, it must meet the Handbook?s current guidelines. Again, once swings are installed, a county is not required to make upgrades each time the Handbook is revised.

This interpretation is consistent with my interpretation of other portions of Policy 6200, which reference compliance with ASHRAE standards for heating, ventilation and air conditioning. See, for example, Section 601.12 Optional Spaces: ?All of the following spaces shall have a heating, ventilating, and air conditioning (HVAC) system which meets ASHRAE standards.? ASHRAE stands for the American Society of Heating, Refrigerating, and Air-Conditioning Engineers, a professional organization that publishes voluntary consensus standards defining minimum values or acceptable performance.

The West Virginia Board of Education expects a county school system that built a school in 1975 to have installed a boiler that met the 1974 ASHRAE standards. Policy 6200 does not require that the county replace the boiler every time a different standard is adopted. The Policy would require, however, if all of the boilers needed replacing in 2010, that the county purchase new boilers meeting the most recent ASHRAE standards if they could be installed without necessitating other major renovations.

3. Please identify the ?Handbook of Playground Safety.? I can find no definition in the Policy making specific reference to this document. It is generally assumed the document being referenced is the ?Public Playground Safety Handbook? published by the U. S. Consumer Product Safety Commission. Please indicate if this is your interpretation.

It is. The name of this document is a little confusing. On page 1, Section 1.4, which gives the Handbook?s history, it states that the Handbook was first published in 1981 under the name ?Handbook for Public Playground Safety.? It was updated in 1991, 1997 and 2008. Although the cover of the 2008 document reads, ?Public Playground Safety Handbook,? the header on each subsequent page reads, ?Handbook for Playground Safety.?

4. Similar to Issue 3, under 205.01 it states ?The playground must meet the standards of the Handbook of Playground Safety of the Access Safety Council....? [emphasis added] I am unaware of any such organization and ask for your interpretation. Does such an organization exist and if not is this a drafting error that needs to be corrected?

As previously explained the Policy?s reference to the Handbook of Playground Safety is essentially correct, although technically it should read ?Handbook of Public Playground Safety.? The reference in 205.01 to the Access Safety Council is a mistake. It should read the U.S. Consumer Product Safety Commission (?CPSC?). The drafter may have confused the name with the National Safety Council. The CPSC is sometimes referred to erroneously as the U. S. Consumer Product Safety Council.

5. I have carefully reviewed the latest version (2008) of the ?Public Playground Safety Handbook? published by the U.S. Consumer Product Safety Commission. Assuming this is the handbook referenced in the Policy, several concerns arise as a result of the Policy wording that states that the ...playground must meet... the standards of the handbook. The cover of the Commission?s Handbook clearly states: ?This draft document was prepared by CPSC staff and has not been reviewed or approved by, and may not necessarily represent the views of, the Commission.? Does our Policy mandate compliance with an unapproved draft document?

You have questioned Policy 6200's reliance upon a document that describes itself as a draft that may not represent the position of the CPSC. Despite this language, the Handbook is one of two nationally publicized documents that set forth in detail safety guidelines and voluntary standards for public playground safety. The second is the ASTM (American Society for Testing and Materials) standards for playground safety. The Handbook references ASTM?s standards and there is significant overlap. According to the National Program for Playground Safety (?NPPS?), http://www.playgroundsafety.org/standards/state.htm, sixteen states have adopted all or parts of the Consumer Product Safety Commission?s guidelines or the ASTM standards. The NPPS website states, ?NPPS believes that all states should adopt the CPSC guidelines.?

According to the NPPS website, some states have mandated that all existing public playgrounds comply with CPSC guidelines within a set number of years. Others, like Texas, require compliance with CPSC guidelines for the purchase and installation of new playground equipment and surfacing if public funds are used. This is comparable to West Virginia?s Policy 6200 requiring new playgrounds or renovated playgrounds to comply with the current guidelines, but not requiring existing playgrounds to conform.

The Handbook itself notes:

Some states and local jurisdictions may require compliance with this handbook and/or ASTM voluntary standards. Additionally, risk managers, insurance companies, or others may require compliance at a particular site; check with state/local jurisdictions and insurance companies for specific requirements.

The Handbook?s disclaimer that it was prepared by the CPSC staff and may not represent the CPSC?s position must be understood in light of the statutes and regulations concerning the CPSC. The statute directs the CPSC to rely upon voluntary consumer product safety standards, instead of adopting formal safety standards on a particular product, when voluntary compliance with the standards will eliminate or adequately reduce the risk of injury. The CPSC is to monitor compliance with voluntary standards that were developed with the participation of the Commission or the development of which the Commission monitored. 15 U.S.C ? 2056. The CPSC staff is directed by regulation to evaluate voluntary standards. 16 C.F.R. ? 1031.4(a)(3).

The Handbook is listed on the CPSC website as a technical report and handbook and is described as presenting ?playground equipment safety information in the form of guidelines. . . .? The Handbook uses the term ?guidelines? rather than ?standards,? because the CPSC would have to exercise its formal rule making power in order to issue safety standards and make a finding that voluntary compliance with existing standards is lacking. The Handbook was first published 10 years prior to ASTM standards being developed for playground surfaces and equipment. The Handbook was updated based on the staff?s review of the ASTM standards and on several other sources. It was updated again based on comments received from members of the ASTM Playground Committee in response to a CPSC staff request for suggested revisions. See pages 1 and 2.

The advantage of Policy 6200 relying upon the Handbook rather than the ASTM standards or developing its own specific safety requirements for playground equipment is that the CPSC staff has the ability to consider new developments and, should another entity develop standards, evaluate and incorporate those when desirable. Currently, the Handbook basically incorporates by reference the ASTM standards, as well as incorporating material from other sources, such as a playground roundtable conducted in 1996. Were the Policy to mandate its own specific safety requirements, West Virginia schools would not be able to benefit from new developments as quickly. There would always be a lag time between the Handbook?s revisions and the West Virginia Board of Education?s ability to update its policy. In the meantime, new playgrounds being built would not necessarily take those revisions into account.

6. Similar to Issue 5, assuming mandatory compliance with the Handbook is required, in the Handbook under section 1.1 Scope, it specifically states: ?This handbook presents safety information for public playground equipment in the form of guidelines....Because many factors may affect playground safety, the [CPSC] staff believes that guidelines rather than a mandatory rule, are appropriate. These guidelines are not being issued as the sole method to minimize injuries associated with playground equipment.? [emphasis added] Considering this provision, should our Policy be more appropriately drafted or interpreted to read that the Handbook may be used as a guide or reference rather than the current language that states the handbook must be followed.

Please see my response to your question number 5. Although the Handbook states, as you note, that its guidelines are not being issued as the sole method to minimize injuries, nothing prevents a county school system from implementing additional methods to minimize injures or setting more rigorous standards.

7. Other than the provisions discussed above, please identify any state rule, regulation or statue that may impose specific standards that are required to be met in constructing or maintaining an elementary playground facility or swing set.

I have referenced, in my answers above, other Board Policies where applicable.

As I have interpreted the Policy 6200, the Cabell County Board of Education was not required to remove swing set equipment from its schools for being out of compliance with the 2008 version of the CPSC Handbook. My understanding was that the Board of Risk Management adjusted its insurance rates, perhaps taking into account the fact that the equipment did not meet current industry guidelines or standards, not because those were mandated by the State Board of Education.

Having said that, Superintendent Smith?s decision to remove the swing sets until they can be replaced with safer equipment may be a prudent, if unpopular one. The Centers for Disease Control and Prevention has found that more than 200,000 children visit emergency rooms in the United States each year due to playground injuries. The issue of playground safety goes beyond swing sets, although the National Safety Council notes that swings are the pieces of moving equipment that are most likely to cause injuries to children. In fact, 79% of playground injuries are caused by falls to the ground, and perhaps more attention should be focused on appropriate surfacing.

I believe the Board of Education has weighed the safety benefits of requiring compliance with the Handbook?s guidelines with the disadvantages of economic hardship on the counties and of potential civil liability civil liability. It struck a realistic compromise by requiring compliance only when counties build new playgrounds or substantially renovate old ones.

I will certainly make the State Board aware of your concerns and of the need for clarification in the wording as discussed above. Hoping I have been of service, I remain

Sincerely,

/s/

Steven L. Paine
State Superintendent of Schools