Health Certificates Increase Production Costs & Do Not Provide Any Safeguards to Child Performers
186-3.2(10) Application for child performer permit, is nothing more than another obstacle for production companies considering working in New York, increasingly the likelihood of child performer permitting delays as well as possible “production risks” form. The proposed rule imposes a burdensome tax on child performers does not provide any safeguards to the physical and mental well being of child performers. Valuable safe guards are already in place.
“(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.
(11) an acknowledgement by the child performer’s parent or guardian that he or she has reviewed any and all guidelines on the prevention of eating disorders among child performers issued on the Department’s website pursuant to Section 154 of the Labor Law; . . .”
No Evidence That Child Actors Are At Elevated Risk
Child actors are at no more increased risk than the general population for eating disorders. Neither the DOL proposed rule nor their published synopsis of the rule, provides any evidence that child performers, particularly actors, are at greater risk than the general population for eating disorders. Although the media has recently begun to focus attention on eating disorders in children, including rampant obesity, there are no news stories referencing a national epidemic of eating disorders specific to child performers. Even the few celebrities recently acknowledging an eating disorder are adults and not subject to permitting requirements.
In the December 2010 volume of Pediatrics, Official Journal of the American Academy of Pediatrics, The Committee on Adolescence, addressed those children most at risk for developing eating disorders in an article entitled “Clinical Report Identification and Management of Eating Disorders in Children and Adolescents.” It should be noted that actors were not included even within those children at risk for partial-syndrome eating disorders with dance and modeling falling behind athletes:
“Athletes and performers, particularly those who participate in sports and activities that reward a lean body habitus (e.g. gymnastics, running, wrestling, dance, modeling) may be at particular risk of developing partial-syndrome eating disorders. The etiology of eating disorders is multifactorial, and there is increasing evidence from both family and twin studies for a strong genetic component that is shared between AN [anorexic nervosa] and BN [bulimia nervosa]. (page 1241) Partial-syndrome eating disorders or “eating disorder not otherwise specified” are “[p]eople with eating disorders do not meet the strict criteria set forth in the America Psychiatric Association’s Diagnostic and Statical Manual of Mental Disorders . . .” (page 1240-1241)
American Academy of Pediatrics Not Consulted & Doctors May Not Agree to Evaluate
There is no indication that the DOL consulted with the American Medical Association or the American Academy of Pediatrics prior to publishing their proposed rule changes. It is easy to imagine that physicians would have substantial concerns when asked to evaluate the physical health and mental fitness of a child performer against a set of unknown variables. More competent physicians may even refuse to perform such an evaluation. A production company or parent could easily result to “doctor shopping” or forgery if their pediatrician refused to evaluate the child or believed the child “unfit” to perform. Little to no value exists to this proposed rule change.
Increased Cost For Production Companies
Requiring physical and mental health evaluations may have unintended consequences for production companies. Child Performers may find it difficult to meet the timing demands of this new requirement and other of state performers may find it extremely difficult to do so. Permitting delays will create production delays and drive production costs up. In addition, the American Academy of Pediatrics, or physicians themselves, may require that each production company, prior to evaluation, submit a lengthy form outlining:
- all the potential dangers that the child may face on set
- including what contingencies are set in place to protect the physical and mental health of the child, and
- and request that should those dangers or contingencies change, a new form be submitted for reexamination of the child with respect to this new dynamic.
Without such an accompanying document to provide context, the proposed language anticipates that the evaluating physician possess the power to magically gaze into a crystal ball and anticipate all the physical dangers and mental challenges that the child performer will face within the given six month permit period. Very few people outside of the entertainment industry fully understand the dynamics of a film, television and theatrical set while in production rendering an interpretation of such a document difficult, if not impossible, for a physician with no prior production knowledge.
No Health Certificate Included To Evaluate Reasonableness of Request & Violations To HIPPA
The proposed rule gives the DOL complete discretion in creating the physician certificate as no health certificate is included within the proposed rule or the synopsis such that an informed decision can be made as to the reasonableness of information solicited and the potential violations of privacy. The information requested by the proposed rule is Protected Health Information (PHI) under HIPPA (Health Insurance Portability and Accountability Act) as it includes information specific to a minor child’s health status. The proposed rule contains no language to protect such information and, by default, is public information easily accessed and disseminated in violation of HIPPA. In California, the tabloid press has accessed and published the personal information of minor celebrities, not through the California permitting process as such information is not requested but through the court system. Identity Theft is of particular concern in California. Questions:
- What specific physical and mental health information would be requested?
- What HIPPA protections would be in place to protect against dissemination child’s health information and penalties upon such disclosure?
- Who is allowed access to the child’s physical and mental health information?
- How are children will disabilities provided for within the form?
- Many child performers are small for there age. Will they be evaluated against a “normal” population or against a child performer population
Already Screened By Schools And/Or Production Companies
There are established safe guards in place within the medical community and the entertainment industry to provide a safety net for child actors who may be at risk for physical or mental health issues. School systems routinely mandate that each child submit a standard health evaluation report. On larger scale productions where child performers may typically be required to be on set for multiple days and subjected to more dangerous working conditions, a physical exam is required before production insurance will clear a performer. A physician retained by the production’s insurance company would be highly invested in accessing the child as the cost of delayed production due to the inability of the child to perform can easily run into the millions of dollars depending on the production.
Tax Upon Child Performers
One physical examination is typically covered at no cost or reduced cost per year if the child performer has health insurance. A second physical examination would not be covered and, depending on the physician’s fee, tests conducted, etc., could easily cost hundreds of dollars resulting in a makeshift tax upon child performers.
Certificates Will Result In Permitting & Production Delays
The DOL proposed rule makes the permitting process unduly complicated and burdensome. Physical examinations are routinely scheduled months in advance to allow for additional time spent with the patient. These exams are very different from “sick child” walk-in exams. If a child is unavailable for the scheduled physical, the process is delayed, possibly for months, until another “physical exam” appointment is available. Waiting for laboratory results could delay the process even further. The result, “doctor shopping” for a “quickie” exam with no lab tests rendering this rule of no value to child safety.
Barrier To “Out Of State” Workers
This requirement presents a very real barrier to performers in other parts of the country from working in New York. As it stands, a child performer may be allowed only one temporary work permit lasting 15 days. It would be next to impossible for a child to receive a physical and mental health evaluation to comply for the certificate requirement on an expedited basis if production ran over the 15 days allotted for temporary permits. Again, “doctor shopping” would result. Such a “rubber stamp” is of little effect in preventing health consequences to the child performer.
Increased DOL Work Load
Child Work Permits, under the proposed language would only be issued upon receipt of a health certificate signed by a physician providing a very real incentive to forged health certificates. Knowing this dynamic, the DOL would be negligent in failing to confirm the legitimacy of these certificates. More work means more employees. and an increase in DOL Budget.