Letter to Governor Tainted Process

Child Performers Coalition [personal contact information removed]

December 29, 2010

New York Governor David A. Paterson State Capitol Albany, NY 12224

cc: New York Governor Elect, Andrew Cuomo Governor’s Office of Regulatory Reform, Amelia Stern New York Assemblymember Susan John New York Assemblymember Helene Weinstein New York Assemblymember Jose Rivera Office of the Counsel to the Governor, Peter Kiernan Office of Communications, Peter Kaufmann NYC Mayor Michael Bloomberg Mayor’s Office for Film, Theatre & Broadcasting, Dean McCann NYS Governor’s Office for Motion Picture and Television Development, Pat Swinney Kaufman Screen Actors Guild, Young Performers, Nancy Fox Motion Picture Association, State Government Affairs, Melissa Patack Department of Labor, Division of Labor Standards, Jeffrey Shapiro New York Economic Development Corporation, Edawn Burnett Stage & Pictures Operators, AFL-CIO, President John Ford BizParentz Foundation, Anne Henry

Add: New York Department of Labor, Colleen Crawford Gardner New York Department of Labor, Maria Colavito

Re: DOL Pending changes to 2 NYCRR Part 186 Rules Regarding Child Performers Dear Governor Paterson,

Something is not right at the NYS Department of Labor and I would like your help in sorting out this mess before a bunch of bad ideas become a very bad law. I’m going back to the long standing, often applied, good old fashioned “smell test” and declaring the changes proposed by the NYS Department of Labor (DOL) to 2 NYCRR Part 186 Rules Regarding Child Performers, and the manner in they are being promulgated, do not pass the “smell test.” Or better yet, they don’t pass the proverbial “newspaper test.” Obviously, it gives me pause to write this letter and offer it up publicly but the process leaves few options and the clock is ticking.

DOL Attorney Shapiro has a Bee in his Bonnet or is Extraordinarily Misguided

If adopted, New York will be by far the most restrictive and costly state in the country for child performers or their employers (i.e. production companies) to work. Instead helping performers and production companies, the proposed changes will increase production costs and headaches driving film, television and theatrical productions away from New York and jeopardizing the physical, mental and financial well being of child performers. I don’t get it. Is NYS DOL Associate Attorney Jeffrey Shapiro, who is single handedly spear heading this effort, out to get child performers, their parents, the production companies, New York City, New York State or all of the above? Everyone does what they do for a reason, I will assume for now, Mr. Shapiro is either extraordinarily misguided or has a bee in his bonnet about one or all of the affected groups.

On November 22 of this year, I was notified through a mass email by BizParentz Foundation, a child performer advocacy agency based in California, that the NYS Department of Labor had published proposed changes to the Child Performer rule in the November 10 publication of “The Register,” setting in motion a process that could cause the new rule or rule changes to become law on or about Christmas Day.

Child Performers Coalition

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I founded Child Performers Coalition (CPC) in December in response to the DOL proposed rule changes. As a former lobbyist, felony prosecutor, child advocate, and now strategic communications consultant to private equity clients, I have tried to make sense of the proposed rule changes and the sweeping, game changing effect these changes will have on the lives of child performers and the New York City and New York State entertainment production economy. To that end, CPC has set up a comprehensive and informative web site, drafted six position statements, drafted another five spreadsheets comparing old and new law, circulated an on-line petition with signatures reaching close to 600 in a few weeks time, made phone calls and sent emails to change makers, and established a widely read email style newsletter to keep industry reps and concerned individuals informed of our efforts. (www.childperformerscoalition.org)

Mayor’s Office & 6,000 Child Performers Had No Notice of the Proposed Changes

After receiving news of the proposed changes, the first phone call I made was to the Mayor’s Office of Film, Theatre & Broadcasting, the oldest film commission in the United States, that supports an industry that generates billions of dollars annually and employers approximately 100,000 New Yorkers. I spoke with Director Dean McCann who explained that I was the first person to notify him of the proposed changes. He requested, and I provided, copies of our position statements, old rule/new rule comparison spreadsheets and any other information I believed would be helpful. Suffice it to say, it is inconceivable that the Child Performers Coalition, and not the DOL, was the first to notify the most important industry office in the state of the proposed changes. This blatant failure epitomizes the Department of Labor’s handling of their proposed changes to the Child Performer rules now in place.

Our community has been blindsided by news of the proposed rule change. The Department of Labor, and the industry groups in conversation with the DOL, failed to notify the 6,000 permitted child performers of their discussions or the impending changes. It is my understanding that the industry groups solicited by the DOL spoke in opposition to all but a few of the changes being discussed. That being said, I know that some organizations have expressed their interest in a few key provisions that would provide their particular organization or company with a significant financial benefit. Still, those involved believed that the process had stalled, a process that began either in 2003, 2007 or 2008 depending on where your place the marker.

The proposed changes are led by Department of Labor, Division of Labor Standards, Associate Attorney Jeffrey Shapiro. I would characterize the manner in which he has conducted his due diligence and language drafting as arrogant, sophomoric, rash and harmful. In short, the process has been disingenuous at best, deceptive at worst. I have noted just a few examples of Mr. Shapiro’s work process below and direct you to the Child Performers Coalition web site for more information on our position statements:

Failure to Include Change Making Provisions in the Summary of the Rule

Mr. Shapiro, in his “Notice of Proposed Rule Making” “Summary of the Rule” offered to the Governor’s Office of Regulatory Reform (GORR), failed to include any of industry changing provisions and instead included insignificant provisions or represented provisions that are already included in the “old” rule as “new” provisions. Yet, Mr. Shapiro signed the Notice “I have reviewed this form and the information submitted with it. The information contained in this notice is correct to the best of my knowledge.” Perhaps, this language should be amended to include “correct and represents an accurate portrayal of the rule and it’s impact.” Examples of provisions excluded from the Summary are:

• Employer right to deny child “sight and sound” access to parent on set and in the schoolroom (applies to children 6 years of age and older)

• Employer appointment of a “responsible person,” with no regulation imposed qualifications or proper vetting, as guardian of the child (applies to children 6 years of age and older)

• Permitting mandate of two physical and mental health evaluations of child per year

• Keeps antiquated “loop hole” filled Trust Account provisions in place jeopardizing finances.

• Ends paid background work for child actors by allowing for an “undefined” Group Permit

• Substantially increases production costs creating adverse impact to New York City & New York State production economy

Failure to Properly Investigate, Take Into Account Old California Law or Include Mayor’s Office of Film, Theatre & Broadcasting in Development of Regulatory Impact Statement The Regulatory Impact Statement (RIS) sites only anecdotal evidence and is void of any research, data collection, reports, alternatives, etc. that would assist in “assessing the quality of [the] agency’s analysis and the validity of

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[their] conclusions and recommendations” as [the agency’s] “presentation . . . must include a reasonably detailed description of the agency’s methodology, data sources, assumptions, [and] findings.” Cost-Benefit Assessment in Rulemaking: A Guide For State Agencies, July 2008, page 17

Further, Mr. Shapiro’s Job Impact Statement states: “This [the rule changes] should increase the availability of child performers for the arts, entertainment, and advertising industries and bring more of this work to New York. It is apparent from the nature and purpose of the rule that it will not have a substantial adverse impact on jobs or employment opportunities, therefore no Job Impact Analysis is required.”

I have emailed Mr. Shapiro and made a formal FOIL Request asking for documents in support of the RIS including, but not limited to, research, reports, studies, data collection, analysis, interviews and alternatives explored. It is clear from all industry representatives that Mr. Shapiro’s analysis of the entertainment industry’s reaction to the proposed changes is contrary to rational belief. If adopted, New York will be by far the most restrictive and costly State in the country for a child performer or their employer (i.e. production companies) to work.

Specifically, Mr. Shapiro’s Regulatory Impact Statement or Job Impact Statement fails to account for the following variables:

Costs to Child Performers:

or provide data

• Cost to secure two physical and mental health evaluations by physician per year • Cost due to loss of background work income • Cost due to loss of 15% of income for failure to close Trust Account loopholes • Cost due to loss of income if parent refuses to consent to employer’s denial of “sight and sound” access to child

over the age of six or schoolroom access • Cost due to loss of income due to permit delays • Cost due to loss of income if productions chose to leave NY in favor of “production friendly” states

Cost to Employers:

• Cost to retain and manage tutor • Cost of oversight of educational hours and paperwork • Cost for orientation training of child performer • Cost to retain and manage nurse • Cost to collect and manage medical, food allergy & emergency information • Cost to notify DOL of production changes and child performer information • Cost to maintain two distinct payroll systems

Cost to Off-Site Education Tutors

• Cost due to loss of income as education instruction shifts to “on location” education only

Cost to NY Economy:

• Cost to NY economy if productions using child performers choose to not to work in NY • Cost to NY economy/revenue for change from paid background work to unpaid background work via group


Cost to NYC Economy:

• Disparate geographic impact to NYC as host to vast majority of productions

Cost to Department of Labor:

• Cost to increase staff and resources to meet the demands of increased paperwork, oversight of productions, and to confirmation of veracity of physician certificates

Documents Requested:

• Copy of Physician Certificate Form • Copy of Employer Certificate of Group Eligibility Form • Copy of procedures to protect against HIPPA violations • Copy of Eating Disorders Guidelines to be reviewed by child performer parents

The Entertainment Industry is Highly Mobile and Looks for Production Friendly States

It is apparent that some of the principles found in the proposed rules are modeled after an old California law, a law that was subsequently corrected, once entertainment industry jobs left the state. Without conducting a thoughtful investigation, taking into account the history of California law, or speaking with the Mayor’s Office on Film, Theatre & Broadcasting, Mr. Shapiro flagrantly dismisses the need for a Job Impact Statement as not required in his

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Notice of Proposed Rule Making form: “the rule will not have a substantial adverse impact on jobs and employment opportunities (as apparent from its nature and purpose) and explains the agency’s finding that the rule will have a positive impact or no impact on jobs and employment opportunities . . .”

It is impossible for Mr. Shapiro to conclude without the benefit of an investigation that any adverse economic impact will be insignificant. The entertainment industry is nuanced and highly mobile, jumping from state to state in search of tax incentives and production friendly rules. States such as New Mexico, Georgia, North Carolina, Florida and Michigan are fast becoming rivals to the California and New York markets. Connecticut has no child performer regulations.

Mr. Shapiro’s failure to include game changing provisions in his Summary together with his failure to provide a viable Regulatory Impact Statement or Job Impact Statement tainted the rule making process and caused the Governor’s Office of Regulatory Reform (GORR) to approve the DOL’s request to move forward in the rule making process without an accurate understanding of the rule or its impact. In short, the proposed rule changes should not have moved forward towards public commentary and adoption. The rule change should have been stopped by the GORR.

Failure to Properly Communicate Rule Making Process: DOL Without Checks & Balances

The DOL’s Child Performer web site now contains an expanded Frequently Asked Questions. “What happens after the public hearings and after all comments are submitted on the proposed rule?” is answered without any reference whatsoever to a final review and approval by the Governor’s Office of Regulatory Reform. The answer ends with: “At the end of this comment period, the Department will assess the comments received and decide whether to adopt the Revised Rule as proposed or revise it further.”

It is my understanding, based on a review of the “New York State Rule Making Process” found on the DOL Child Performer web site but since removed, that once the DOL has completed the public commentary process the DOL then submits the final rule text, if no substantial changes, for Executive Review to The Governor’s Office of Regulatory Reform (GORR). The GORR then “reviews proposed rules for necessity, clarity consistency and efforts to reduce burdensome effects. The Office may extend the comment period, require an agency to provide more information or require a public hearing.”

Mr. Shapiro’s failure to note the involvement of the Governor’s Office makes it appear that he now controls the Department of Labor as well as the Governors’ Office. Our constituency and industry leaders are concerned about our inability to turn around a process that is acutely foreign to them, riddled with what appears to be selective outreach and racked with a procedural process that makes adoption of a reasonable regulation appear impossible at this point. Language that dramatically inflates Mr. Shapiro’s power as without a check and balance component diminishes our ability to rally our newly founded coalition and get the attention of media outlets and change makers.

Disingenuous Analysis of Rule Language on Child Performer Web Site

Again, under the Child Performer web site’s Frequently Asked Questions the DOL writes: “I’ve been told that the proposed regulations will require all child performers to have two physicals a year. Is that true? A[nswer]: No, it is not. The proposed regulations do not require child performers to have two physicals each year.” Here is the balance of Mr. Shapiro’s incomprehensible answer:

“The proposed regulations (Part 186-3.2(10)) require that when a child performer’s parents apply for a child performer permit, they must present a statement from a physician that the child has been examined within six months before the date of application and is physically capable of engaging in employment without endangering his/her health. The regulations require an examination only, not a complete physical. This examination may occur when the child is in the doctor’s office for an annual physical, an office visit regarding any health matter, to receive flu shots, or other routine preventative measures. A physician may make a judgment regarding all the issues set forth in the regulations through conversation with the child, through physical observation of the child, through medical assessments, through information received from third parties, or a combination of these. This is left up to the physician.

As mentioned above, the physician has to have examined the child within six months prior to the time the application for a child permit is made. Depending upon when the examination is conducted, one examination may be used for both the application for a child performer permit and the renewal of that permit. For example, consider a case where a child is examined in May, her parents apply for a permit shortly thereafter, and the permit is issued in June. This permit will expire in December. In November, the child’s parents apply for their permit renewal. Under the proposed regulations, the original physician’s certificate would still be acceptable for

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the renewal application because it was issued within six months prior to the date of application. Still, we understand this will not be true in cases where the first examination was conducted well in advance of the first application for the child performer permit, thereby taking it outside the six month window when the renewal application is made. We appreciate the concerns of those who have already commented on this, and we expect to receive other comments before the close of the rulemaking period on the issue. When we assess all comments received, we will consider how best to address this issue.”

The rule as written:

§ 186-3.2 Application for child performer permit.

(10) A certificate signed by a physician licensed to practice medicine within the state in which the child performer resides or is employed, stating that the minor was examined within six months prior to the date of application and has been found to be physically capable of engaging in employment without endangering the child’s health. In reaching such conclusion, the physician shall:

(i) Assess the overall health and fitness of the child, keeping in mind the types of artistic services in which the child will typically engage; (ii) Where the child will be performing in a role or long-term performance, determine whether the child’s overall health indicates that he or she would have the physical stamina to allow the child to perform without endangering his or her health;

(iii) Assess whether the child appears to exhibit symptoms of ongoing physical or mental health related issues such as eating disorders, substance abuse, or emotional problems that may interfere with the child’s ability to undertake employment without endangering his or her health; and (iv) Address any other issues that the physician believes are relevant to the child’s ability to undertake employment without endangering his or her health.

§ 186-3.3 Renewal of child performer permit.

(4) A certificate signed by a physician licensed to practice medicine within the state in which the child performer resides or is employed, stating that the child performer has been examined within six months prior to the date of renewal application that such examination addressed the factors and assessments established in this part for the physical examination required for issuance of the original permit.

It defies logic, given the information required in the rule and the state of insurance requirements ~ that annual physicals be separated by one calendar year, medical code indicating the reason for the appointment and what care or assessment provided, etc. ~ that the physical and mental health certificate could be satisfied without two mental and physical health examinations per year. Mr. Shapiro is living in a fantastical land if he believes, as he as proffered, that two physicals per year are not required under his own rule.

Further, the DOL writes: “Is my child’s physician required to share detailed information about his/her examination of my child with the Department of Labor under this proposed regulation?” Answer: No. Balance of text:

“The proposed rule does ask the physician to take into account certain criteria in reaching a determination of fitness on the part of the child performer. However, there is absolutely no requirement found in the proposed rule requiring the physician to disclose his/her specific findings regarding these criteria to the Department. The physician would merely send a certification to the Department stating his/her conclusion that the child performer is or is not capable of performing the tasks associated with employment as a child performer without endangering the child’s health. The Department will provide a sample physician’s certification form on its web site that physicians may use.”

Although the DOL has had ample opportunity to provide a copy of their proposed Physicians Health Certificate, they have not. I have requested such a copy through email and through a formal FOIL Request and have not yet received said document. Under the proposed changes, physicians will be responsible for sending their findings “that the child performer is or is not capable of performing the tasks . . .” directly to the DOL. To understand the direction of the DOL’s inquiry is is necessary to look to the DOL’s own Child Performers Advisory Board established in response to a 21 year old Brazilian models death due to anorexia and disbanded in 2009. The Board recommends a laundry list of variables including assessing the child’s Body Mass Index and monitoring the menstrual cycles of female performers.

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Further, in attempting to determine the mental and physical health of the performer, the Board suggests that physicians pose an array of intimate questions to their patients. Child Performer responses to these questions could easily be made public in notations on the Health Certificate itself or in an attach letter. A physicians, in defending his or her reason for denying a child performer their right to work/work permit, would be compelled for liability reasons or otherwise, to explain their findings. California has had numerous episodes in which the paparazzi has gained personal information of child performers through court documents and the like.

It is little comfort that parents may not become aware of the physician’s findings until after the certificate has been received by the DOL. The proposed rule changes provide no ability for a child performer to contest a physician’s findings. It is one giant mess of a provision complicated by the DOL’s incomprehensible and disingenuous answers.

Failure to Allow Opposition to Develop Momentum as Critical 45 Days Falls During Holidays & Lack of Notice to Child Performers I have tried to operate under the assumption that Mr. Shapiro and the DOL have had the best interests of children and the health of the production economy in mind when the rule changes were drafted but this position has been difficult been to maintain. The changes were published on November 10 setting in motion the critical 45 day notice period. Certainly, Mr. Shapiro noted that the notice period ended on Christmas Day with legal adoption possible a few days later.

Through the DOL’s own admission, the public commentary hearings are not mandatory. The DOL’s December 27th hearing was held even though most, if not all, impacted by these changes could not attend due to the winter blizzard. A second hearing has been set for January 10th with commentary extended to January 18th.

During this 45 day period, it has been extraordinarily difficult to get the attention of parents, key organizations, governmental employees, and media outlets whose attention has been diverted by the following child and family oriented holidays: Thanksgiving, Hanukkah, Christmas, and Kwanzaa. Moreover, the new Governor is being installed on January 1st. It is inexplicable why a rule seven years in the making has been forced during the last six weeks of the year.

We have asked that the rule be tabled but have been told by the Governor’s Office of Regulatory Reform, that the process is now in motion and cannot be derailed. I have to believe, given the totality of the circumstances, that the rule publication and it’s timing was meant to thwart any opposition. Mr. Shapiro or any number of government officials can ask that the rule be tabled for additional study.

Unfortunately, child performers and their parents have garnered an unattractive reputation as a result of a few bad apples, a reputation I hope has not be held against us. The vast, vast, vast majority of parents are keenly tuned in to the needs of their performing children and are acutely protective and nurturing.

Child performers work incredibly hard yet make very little money and most never “break even.” So why do child performers do it? It’s their “thing” like football is another kid’s thing. Why do their parents do it? Because it’s their kids’ “thing.” The distinction being that child performers are subjected to an amazing amount of public scrutiny and, if the Department of Labor has their way, treated like a pariah.

In Summary

To all that I have read, heard and witnessed over the course of 5 weeks I say ~ are you kidding me? Is this how the State of New York does business? A deceptive, disingenuous process racked with covert communications, restrictive access and tactics bent on bullying and misleading child performers and an industry that New York and New York City has fought hard to keep. Is this how it all goes down ~ are you kidding me? I would invite Mr. Shapiro to actually meet the parent of a child performer or speak with a child performer about how his rules will hurt and not help. I would welcome the opportunity. I would also invite Mr. Shapiro to walk on a production set, understand the very real dangers and the ever changing production dynamic.

This process highlights the need for more inclusion and dialogue between affected groups and rulemakers. It also highlights the need for greater oversight by the Governor’s Office of Regulatory Reform to stop an incompetent process from proceeding forward. Child Performers Coalition will continue to work towards a healthy rule ~ one that promotes New York productions and protects child performers.

I encourage you to read our six position statements and review our five comparison spreadsheets to better understand why the proposed rule changes will hurt and not help child performers and the entertainment industry in New York. I hope you will use whatever means you have available to table these rule changes until a reasonable rule can be substituted. I have also copied a number of stakeholders and change makers, individuals, organizations and government officials on this letter and ask for their meaningful assistance as well.

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Please feel free to contact me by phone or email for any reason. Thank you for your consideration. Best Regards,

Kelly Crisp, Founder Child Performers Coalition [personal contact information removed]

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