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Department of Health and Mental Hygiene
Codified Title: 
Title 24: Department of Health and Mental Hygiene

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

 

Smoking is banned in certain indoor and outdoor locations both by the City’s Smoke-Free Air Act (SFAA) and by New York State’s Clean Indoor Air Act (CIAA).  These laws are enforced in New York City by the Department.  Pursuant to New York State Public Health Law §1399-u, the Department has the discretion to waive in a specific instance any provision of the CIAA if satisfied that its application will cause undue hardship or that there are other factors that make compliance with the provision unreasonable.

The Department enacted section 24 RCNY §10-15 in 2004 setting forth how the Department would consider requests for such waivers.  The rule allows any entity where smoking is permitted by the CIAA, but allowed by the SFAA, to request a waiver.  Requests based on financial hardship must include financial records and demonstrate financial losses attributable to the State restriction.  If claiming that compliance with the State provision is otherwise unreasonable, an applicant must clearly demonstrate the existence of factors that make this so.  The rule also imposes a fee for an application and limits the term of a waiver to two years.   

The stated basis and purpose of §10-15 was to provide a mechanism for harmonizing enforcement of the CIAA, which had just taken effect, with the restrictions on smoking that were already in place in New York City under the SFAA.[1]  In fact, the CIAA and SFAA are largely harmonious and there are no waivers currently in place.  While one was granted to a tobacco company operating a product testing room in 2005, and renewed thereafter until 2012, no other entity has even requested a waiver.  The Department does not foresee any situation in the future where it would waive a provision of the CIAA and thus is proposing to repeal §10-15 as unnecessary.

Working with the City’s rulemaking agencies, the Law Department, and OMB, the Office of Operations conducted a retrospective rules review of the City’s existing rules, identifying those rules that will be repealed or modified to reduce regulatory burdens, increase equity, support small businesses, and simplify and update content to help support public understanding and compliance. This proposed rule repeal was identified as one that should be repealed through this initiative.

 


[1] City Record, March 24, 2004.  RCNY Volume 8, Statements of Basis and Purpose at page 492.   

Effective Date: 
Mon, 08/21/2017

Proposed Rules: Closed to Comments (View Public Comments Received:5)

Agency:
Comment By: 
Thursday, July 27, 2017
Proposed Rules Content: 
 
                                                                 Statement of Basis and Purpose

 

 Pursuant to New York Public Health Law Section 580(c), the City has the authority to regulate clinical laboratories. The Department’s Division of Disease Control enforces Article 13 (Clinical Laboratories) of the Health Code, which regulates the manner in which laboratory tests must be performed and the reporting of test results.

To conduct more effective, timely, and complete disease surveillance and control in regard to Hepatitis C, the Department is proposing that the Board amend Health Code Article 13 as follows:

                                                                 Hepatitis C Testing and Reporting

            The Department is requesting that the Board amend Health Code §13.03(b)(3) to require laboratories to routinely perform a confirmatory RNA hepatitis C virus (HCV) test if an antibody tests is positive for hepatitis C virus.. The confirmatory test must be performed on the same specimen or a second specimen collected at the same time as the initial specimen. This requirement completes diagnostic testing and helps ensure that patients infected with HCV are aware of their status, linked to appropriate medical care and treatment, and cured, thus reducing the risk of further transmission.

Most patients are first screened for HCV via an antibody test, which shows whether the patient has ever been infected with HCV. When a patient tests positive, a confirmatory RNA test is required to establish whether the individual is currently infected with the virus. If the provider does not order the confirmatory test at the same time as the antibody test, the patient must return for an additional blood draw for the RNA test. This multi-step testing process results in treatment delays and patients being lost to care.

In 2016, only 48% of patients newly diagnosed and testing antibody positive who were reported to the Department had a confirmatory RNA test on the same specimen; and a review of 2015 data shows that 22% of New York City patients newly reported as HCV antibody positive never received confirmatory RNA testing at all. A 2016 Department survey found that 33% of 21 acute care NYC hospitals do not automatically order confirmatory RNA testing for patients with a positive antibody test.

Routine performance of a confirmatory RNA tests is aligned with Centers for Disease Control and Prevention guidelines, and will ensure that patients are accurately diagnosed, promptly treated for HCV,  and receive critical related care, such as regular liver cancer screening.  (Centers for Disease Control and Prevention. Testing for HCV infection: an update of guidance for clinicians and laboratorians. MMWR. 2013; 62(18):362)

                                                                     Statutory Authority

The authority for these proposed amendments is found in Sections 556 and 558 of the New York City Charter (the “Charter”). Sections 558(b) and (c) of the Charter empower the Board to amend the Health Code and to include all matters to which the Department’s authority extends. Section 1043 grants the Department rule-making authority.

Section 556 of the Charter provides the Department with jurisdiction to protect and promote the health of all persons in the City of New York.

                                                                 Statement pursuant to Charter §1043

This proposal was not included in the Department’s Regulatory Agenda for FY 2017 because the need for the proposal was not known at the time the Regulatory Agenda was promulgated.

 

 

Subject: 

Proposed resolution to amend Article 13 (Laboratories) of the New York City Health Code regarding the performance of confirmatory Hepatitis C RNA testing.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street 14th Floor, Room 3-32
Queens, NY 11101
Contact: 

Svetlana Burdeynik at (347) 396-6078 or resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, July 26, 2017
Proposed Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

 

Health Code §3.11 currently limits the monetary penalty that can be imposed for a violation of the Health Code to two thousand dollars.  In egregious cases, where dangerous conduct is repeated or a violation results in serious physical harm, a more severe penalty is warranted.  New York State Public Health Law §12, for instance, authorizes the New York State Department of Health to impose a penalty of five thousand dollars against recidivists who violate rules in cases where the violation poses a serious threat to health or safety.  The Public Health Law also authorizes a penalty of ten thousand dollars if the violation of a rule results in serious physical harm to a patient. 

 

The Department proposes that two new subdivisions be added to Health Code §3.11 to enhance penalties in similar circumstances.  Similar to Public Health Law §12, a new subdivision (d) would allow a maximum penalty of five thousand dollars for a repeat violation of any section of the Health Code that poses a serious risk of harm to others, and a new subdivision (e) would authorize a penalty of up to ten thousand dollars in cases where a violation of the Health Code causes serious physical injury to any person. The Department also proposes to amend Health Code §3.11(c) to delete a reference to Article 7 of the Health Code, which has been repealed since 2012.

 

The Board of Health’s authority to make changes to the Health Code is found in § 558 of the New York City Charter.

 

 

Subject: 

Proposed resolution to amend Article 3 (General Provisions) of the New York City Health Code to increase monetary penalties.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street 14th Floor, Room 14-43
Queens, NY 11101
Contact: 

Svetlana Burdeynik at (347) 396-6078 or resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, July 24, 2017
Proposed Rules Content: 
 

Statement of Basis and Purpose

Service Dog Tags

As part of a comprehensive review and update of the Health Code, on March 16, 2010, the Board of Health adopted several amendments to Article 161 of the Health Code.  The amendments included  adding a definition of the term “service dog” in section 161.02 and a new subdivision (d) in section 161.04 that authorizes the Department to provide, at an additional cost, a second tag in addition to a regular license to the owner of a service dog.  Such tags were available in other parts of the State.  The amendments were intended to make them similarly available to people with disabilities residing in the City who might want to alert others that their dogs were service animals and thus should be allowed to accompany them.

             While the provisions of the Health Code allowing the Department to issue service dog tags were well-intentioned, their existence may actually be frustrating the purposes of the ADA[1] and New York State and City Human Rights Laws.[2][3]  The ADA prohibits places of business or other public accommodation, landlords, and employers from discriminating against people with disabilities.  Such discrimination includes refusal to allow entrance of a service animal, which the ADA defines as any dog that is individually trained to do work or perform tasks for the benefit of an individual with disabilities, without regard to whether the animal has a specific tag identifying it as a service dog.[4]  Because the Department offers the optional service dog tags, some entities are confused and mistakenly only accommodate individuals whose service dogs are wearing them.  Similarly, the Department has been informed that some individuals with disabilities mistakenly believe they must have service dog tags in order to exercise their rights under the law.  Indeed, the ADA regulations specifically provide that a public accommodation or entity “shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal.”[5]  Thus, rather than facilitating compliance with disability laws, the tags may impede individuals from exercising their rights and might inadvertently lead a business to refuse service to a person with a disability whose dog does not have a tag.

   In order to remove the inadvertent barriers created by the service dog tag provision of the Health Code, the Department therefore proposes that the Board of Health repeal the provision and remove the definition of “service dog” from Article 161 of the Health Code. The Mayor’s Office for People with Disabilities and the City Commission on Human Rights agree that the Department should stop issuing service dog tags because the tags are not necessary; both agencies are concerned that the tags could actually work to the disadvantage of people with disabilities and tend to confuse some business owners, leading them to unintentionally violate the ADA.

 Simplifying language and other amendments

 

            The Mayor’s Office of Operations, working with the City’s rulemaking agencies, the Law Department, and the Office of Management and Budget, conducted a retrospective review of the City’s rules to identify rules that should be, among other possible changes, simplified to help support public understanding and compliance. The proposed amendments to sections 161.15 and 161.17 were identified through this initiative. 

             As part of this text simplification process, the Department proposes to alleviate confusion whether small animals may be sold, groomed, trained, or boarded in homes.  This confusion has arisen due to the use of the word “room” in Health Code subdivision 161.15(a) rather than the word “dwelling.” The definition of “home occupation” in section 12-10 of the New York City Zoning Resolution[6] specifically provides that commercial animal kennels are not permitted as “home occupations.”  Health Code section 161.02 defines a “boarding kennel business” as a facility other than an animal shelter where animals not owned by the proprietor are sheltered, harbored, maintained, groomed, exercised, fed, or watered in return for a fee.  The Department therefore proposes that the Board amend subdivision 161.15(a) to replace the word “room” with the word “dwelling” and adding the phrase “in return for a fee” to clarify where the sale, boarding, grooming, and/or training of small animals for a fee is allowed.

Similarly, the other changes in this proposed rule, except the following two amendments, would improve clarity.  The two substantive changes being proposed are:

     1.     Proposed changes to Health Code subdivision 161.15(d)

            Currently, subdivision (d) only prohibits the sale or holding for sale, boarding, grooming or training any dog or cat that has, or has been exposed to, a communicable disease.  The Department proposes the Board replace the phrase “a dog or cat” with “any animal” so that communicable disease among all types of animals can be better controlled and avoided.

     2.     Proposed changes to Health Code section 161.17

            The Department proposes that the Board add parasites communicable to other animals and humans to the conditions prohibited for dogs and cats in group socialization or play areas operated by permitted entities.  The goal of this addition is to better protect the health of animals and humans from communicable conditions.

Statutory Authority

            These amendments to the Health Code are promulgated pursuant to Sections 558 and 1043 of the New York City Charter.  Section 558 of the Charter empowers the Board to amend the Health Code and to include in the Health Code all matters to which the authority of Department extends. Section 1043 grants the Department rulemaking authority. 

 




[1] Americans with Disabilities Act of 1990, Pub. L. No. 101-336 (1990).

[2] NYS Executive Law § 290, et seq.; see §§ 296(2) and 296(14); NYS Civil Rights Law §§ 47 and 47-b.

[3] NYC Administrative Code § 8-107(4).

[4] 28 C.F.R. § 36.104; see also at § 35.104.  As noted recently by the New York City and State Bar Associations Joint Task Force on Service Animals in New York State (accessible online at http://documents.nycbar.org/files/guide-to-the-use-of-service-animals-in-new-york-state.html#_edn1), the New York City Human Rights Law does not define “service animal.”

 

[5] 28 C.F.R. § 36.302(c)(6); see also at § 35.136(f). 

Subject: 

Proposed resolution to amend Article 161 (Animals) of the New York City Health Code regarding service tags for animals.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 3rd Floor, Room 3-32
Queens, NY 11101
Contact: 

Svetlana Burdeynik at (347) 396-6078 or resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments (View Public Comments Received:7)

Agency:
Comment By: 
Tuesday, July 25, 2017
Proposed Rules Content: 

Statement of Basis and Purpose

The Department’s Bureau of Child Care enforces Article 47 of the Health Code, which regulates non-residential-based child care centers for children under six years old. The Department is proposing that the Board amend Article 47 of the Health Code as follows to also regulate the provision of child supervision services in family homeless shelters in order to enhance the health, safety, and supervision of children receiving care in such facilities.

Proposed Changes

Tier II homeless shelters for families are required by 18 NYCRR 900.10(c)(5) to provide access to child care services to enable the resident parent or caretaker relative of a child to seek employment and/or permanent housing or to attend school or training. For Tier II homeless shelters that choose to provide such child care services on site, the Department proposes to regulate the programs to provide for the health, safety, and supervision of the children receiving the services. Unlike those child care programs that are currently regulated by the Department, these on-site programs are not designed to provide for the early education or full-time, long-term care of children; accordingly, the proposal limits the number of hours per week that any child may attend such a program. The proposed rule change would also establish health and safety standards for family shelter-based drop-off child supervision programs similar to those for the child care programs currently regulated by the Department.

Statutory Authority

The authority for these proposed amendments is found in Sections 556, 558, and 1043 of the New York City Charter (the “Charter”). Section 556 of the Charter provides the Department with jurisdiction to protect and promote the health of all persons in the City of New York. Section 1043 grants the Department rule-making authority. Sections 558(b) and (c) of the Charter empower the Board to amend the Health Code and to include all matters to which the Department’s authority extends.

Statement pursuant to Charter §1043

This proposal was not included in the Department’s Regulatory Agenda for Fiscal Year 2017 because the need for the proposal was not known at the time the Regulatory Agenda was promulgated.

Subject: 

Proposed resolution to amend Article 47 (Child Care Services) of the New York City Health Code regarding care for children in shelter.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 3rd Floor, Room 3-32
Queens, NY 11101
Contact: 

Svetlana Burdeynik at (347) 396-6078 or resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, May 15, 2017
Proposed Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

 

Smoking is banned in certain indoor and outdoor locations both by the City’s Smoke-Free Air Act (SFAA) and by New York State’s Clean Indoor Air Act (CIAA).  These laws are enforced in New York City by the Department.  Pursuant to New York State Public Health Law §1399-u, the Department has the discretion to waive in a specific instance any provision of the CIAA if satisfied that its application will cause undue hardship or that there are other factors that make compliance with the provision unreasonable.

The Department enacted section 24 RCNY §10-15 in 2004 setting forth how the Department would consider requests for such waivers.  The rule allows any entity where smoking is permitted by the CIAA, but allowed by the SFAA, to request a waiver.  Requests based on financial hardship must include financial records and demonstrate financial losses attributable to the State restriction.  If claiming that compliance with the State provision is otherwise unreasonable, an applicant must clearly demonstrate the existence of factors that make this so.  The rule also imposes a fee for an application and limits the term of a waiver to two years.   

The stated basis and purpose of §10-15 was to provide a mechanism for harmonizing enforcement of the CIAA, which had just taken effect, with the restrictions on smoking that were already in place in New York City under the SFAA.[1]  In fact, the CIAA and SFAA are largely harmonious and there are no waivers currently in place.  While one was granted to a tobacco company operating a product testing room in 2005, and renewed thereafter until 2012, no other entity has even requested a waiver.  The Department does not foresee any situation in the future where it would waive a provision of the CIAA and thus is proposing to repeal §10-15 as unnecessary.

Working with the City’s rulemaking agencies, the Law Department, and OMB, the Office of Operations conducted a retrospective rules review of the City’s existing rules, identifying those rules that will be repealed or modified to reduce regulatory burdens, increase equity, support small businesses, and simplify and update content to help support public understanding and compliance. This proposed rule repeal was identified as one that should be repealed through this initiative.

The Department’s authority for this repeal is found in section 1043 of the New York City Charter. Because the Department is not required to provide waivers under the CIAA, there is no reason to have public testimony on whether this rule should be repealed.  

 


[1] City Record, March 24, 2004.  RCNY Volume 8, Statements of Basis and Purpose at page 492.   

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Thursday, March 2, 2017
Proposed Rules Content: 
 

 

Statement of Basis and Purpose

 

Background

Local Laws 5, 7 and 8 of 2015, as amended by Local Laws 53 and 55 of 2015, added a new Chapter 17 and amended Chapters 3 and 8 of Title 17 of the Administrative Code regarding the sale of dogs and cats in pet shops. The Administrative Code now requires that pet shops selling dogs or cats acquire them only from holders of USDA Class A licenses.  Additionally, pet shops must document and maintain information about the sources, sales, health and breeding histories of the dogs and cats they sell.  The shops must sterilize dogs and cats that are at least eight weeks old and two pounds in weight, and dogs and cats must have microchips implanted before being sold.

 

Proposed Changes

The Department is proposing to add a new Chapter 5 to Title 24 of the Rules of the City of New York to implement these recently enacted provisions of the Administrative Code. To implement the recordkeeping and consumer disclosure requirements of the Administrative Code, the proposed rules require pet shops to collect and maintain required information, and to provide it to prospective purchasers as mandated, using only forms provided by the Department. The forms are listed on the checklist below. Requiring standardized forms promotes compliance by assuring that pet shops completing the documents will have collected all of the information required by the Administrative Code, and facilitates Department review and pet owners’ understanding of records.

 

The Administrative Code directs the Department to set fees that the pet shop may collect for providing prospective purchasers with USDA inspection reports. The proposed rules set nominal copying fees of up to $.25 per page.

To enable the Department to promptly issue dog license tags to people purchasing dogs at pet shops, the proposed rules require that the pet shop submit any dog license application completed in paper copy to the Department within 10 days of the sale. Pet shops enrolled in the Department’s online dog licensing system may avoid this paperwork.

Dogs and cats offered for adoption at pet shops by permitted animal shelters and incorporated not-for-profit animal rescue groups are exempt from these new laws.  To assist enforcement officers in determining when this is the case, the proposed rules require the pet shop to maintain, on site and available for inspection, a copy of the animal shelter’s permit issued by the Commissioner or the rescue group’s proof of not-for-profit status, for as long as these organizations are using the pet shop’s space.

Finally, these provisions do not apply when a cat or dog is sold by a person who breeds and sells fewer than a total of 25 dogs and cats per calendar year directly to where such dogs and cats are born and raised on the breeders residential premises.

The Administrative Code establishes penalties of $500 per violation per day.

Below is a summary of the documents that would satisfy the requirements of the proposed rule. 

  

Checklist of Required Documents

 

DOHMH Form Number

Document

Recordkeeping, Subject to Inspection

(Maintain for 5 years unless otherwise noted)

Provide to Purchaser

 

USDA, Animal and Plant Health Inspection Service (APHIS)

 

 

201-D-USDA 7001

Form 7001

201-D-USDA 7006

Form 7006

 

n/a

Copy of source’s USDA APHIS inspection reports from last 3 years

 

NYS Agriculture and Markets, Division of Animal Industry

 

 

204-D-AGMKT-Form A

Veterinary Health Certificate

Pet shop to keep original

 

205-D-AGMKT-Form C

Receipt

206-D-AGMKT-Form E

Information Statement

207-D-AGMKT-Form H

Pedigree (for animal capable of being registered)

(if applicable)

(if applicable)

208-D-AGMKT-Form I

Consumer Rights/NYS Article 35-D

 

New York City-Only Documents

 

 

209-D-VPHS-Purchaser Statement

Purchaser Statement

Maintain statement for 10 years and attachments for 5 years

n/a

Microchip usage instructions provided by the manufacturer or registration company

n/a

Sterilization Certification

(Record from the veterinarian of sterilization procedure performed on dog or cat)

n/a

Receipt log showing sale of dog license (if the pet shop does not use the online dog license system and the dog will live in NYC) 

 

213-D-VPHS-Source Affidavit

Affidavit from source

 

214-D-VPHS-38

Self-inspection of Animal Holding Facilities

 

203-D-AGMKT-Vet Care Plan

Veterinary Care Plan

 

 

 

 

  

Subject: 

Proposed resolution to add new Chapter 5 (“Pet Shops”) to Title 24 of the Rules of the City of New York to implement the new requirements set forth in Subchapter 9 of Chapter 3, Chapter 8 and Chapter 17 of Title 17 of the Administrative Code of the City of New York.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 3rd Floor, Room 3-32
Queens, NY 11101
Contact: 

Svetlana Burdeynik at (347) 396-6078 or ResolutionComments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose

 

            On September 13, 2016, the Board of Health promulgated a notice of adoption to repeal, among other sections of the Health Code, §153.01 (Littering prohibited) of Article 153 (Littering and Disposal of Refuse) of the Health Code.  The Statement of Basis and Purpose for that repeal noted that §153.01 duplicated provisions in Title 16 of the New York City Administrative Code  (“Administrative Code”), which are currently enforced by the NYC Department of Sanitation (“DSNY”). The Board of Health is now repealing all of the remaining sections of Article 153 since they also are redundant and no longer needed nor enforced.[1]    

 

Throughout the City’s history, regardless of the City’s form of government, safe, efficient and effective garbage and waste disposal has presented legal and practical difficulties and is considered an important aspect of public health.  Most of Article 153 was adapted from earlier provisions of the City’s Sanitary Code, the precursor of the Health Code, and reflect even earlier colonial ordinances predating the formation of the City, the Health Department and the Board of Health.  For example, a 1657 New Amsterdam ordinance is generally credited as the first attempt to prohibit the 1,000 or so inhabitants of that colony from throwing garbage and refuse into the streets.[2]  The City’s various councils and temporary boards of health regulated and enforced waste disposal regulations as a public health matter, even after formation of the City Department of Street Cleaning, the predecessor of DSNY, in the 1890’s.  

 

However, current day-to-day management and regulation of these matters are the responsibility of State and other City agencies. As noted above, DSNY is responsible for enforcement of street cleanliness, littering and dumping laws in accordance with Title 16 of the NYC Administrative Code and Title 16 of the Rules of the City of New York.  The NYS Department of Environmental Conservation and City Department of Environmental Protection monitor and maintain the cleanliness of the navigable waters surrounding the city and, in compliance with the federal Clean Waters Act and the NYS Environmental Conservation Law, limit and treat sewage contaminants that may find their way into the city’s waters.  The NYC Department of Buildings enforces the Building Code and its rules concerning management of dust and debris at building construction sites.[3]

While the Board of Health now repeals the remaining portions of Article 153, which has not been enforced for many years, the Department continues to take very seriously its responsibilities under the NYC Charter which authorizes the Department to “supervise and regulate the public health aspects of sewage disposal and water pollution.”[4]  The Board of Health and the Commissioner supervise and regulate these areas by using their authority under Title 17 of the NYC Administrative Code to order abatement and remediation of any nuisances that might contaminate the City’s navigable waters and streets and that endanger the health of any person or the public health.   

 

Following are brief descriptions of the provisions of Article 153 and the reasons for their repeal:

 

  • §153.01-Littering prohibited.   As noted above, on September 13, 2016, this section was repealed by the Board as duplicative and no longer needed nor enforced.
  • §153.03-Exposure or agitation of certain materials prohibited

This section is essentially the same as NYC Administrative Code §16-118 (3), enforced by DSNY.

  • §153.05-Precautions during construction or demolition work

Chapter 33 of the NYC Building Code (Safeguards during construction or demolition) comprehensively regulates all matters related to debris and dust created as part of construction or demolition, rendering this provision no longer necessary.

  • §153.07-Exposure of rags, barrels, boxes and other materials prohibited.

This is a very archaic provision that essentially duplicates prohibitions on littering.

  • §153.09-Throwing or dropping offensive matter into streets, public places, rivers and other places prohibited.

This provision duplicates provisions of Administrative Code §§16-118 (4) and 16-119 (a).

  • §153.11- Spilling or scattering from vehicles prohibited

This provision duplicates NYC Administrative Code §16-118(4) and NYS Vehicle and Traffic Law §380-a (1).

  • §153.13- Interference with Department of Sanitation employees prohibited

This provision is identical to NYC Administrative Code §16-118 (7) and subdivision (8) of this section provides for criminal penalties for violations.

  • §153.15- Interference with refuse placed for collection prohibited

This provision is similarly incorporated in NYC Administrative Code §16-118 (7).

  • §153.19- Duties of owners or persons in charge of premises.  

Duties of owners are specified in NYC Administrative Code §16-118 (2).

  • §153.21- Removal of dead or diseased animals and offensive materials regulated; use and condition of vehicles.

DSNY is charged with removal of dead animals and other offensive material, e.g., “night soil.”  See, e.g., NYC Administrative Code §16-113.

  • §153.23- Filling of land; use of materials.

DSNY regulations (16 RCNY Chapter 3 – Lands, land under water and landfills) provide for management of landfills in detail.

  • §153.25- Interference with the use of docks, piers and bulkheads for the disposal of offensive materials prohibited

Matters relating to use of docks, piers and bulkheads surrounding the city are the responsibility of the City’s Department of Small Business Services. See, NYC Charter §1301(2).

 

 

Statutory Authority

            This repeal of Article 153 of the Health Code is promulgated pursuant to Sections 558 and 1043 of the New York City Charter.  Section 558 of the Charter empowers the Board of Health to amend the Health Code and to include in the Health Code all matters to which the authority of the New York City Department of Health and Mental Hygiene extends. Section 1043 grants the Department rulemaking authority. 

 




[1] Since the Board separately repealed §153.01 on September 13, 2016, that section is not included in this repeal of the remaining sections of Article 153.

[2]  There are many descriptions of the City’s history of struggles with waste disposal.  See, e.g., Edwin G. Burrows and Mike Wallace, Gotham: A History of New York City to 1898, Oxford University Press, 1999; John Duffy, A History of Public Health in New York City 1625-1866, Russell Sage Foundation, 1968; and Robin Nagle, Picking Up, On the Streets and Behind the Trucks with the Sanitation Workers of New York City, Farrar, Straus and Giroux, 2013.  Professor Nagle is anthropologist in residence at the City Department of Sanitation.

[3]  It should be noted that the NYC Department of Health & Mental Hygiene continues to enforce Health Code §173.14 mandating safe work practices in renovations that may disturb lead-based paint.

[4]  NYC Charter §556 (c)(7).

 

 

Effective Date: 
Thu, 01/12/2017

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 

Statement of Basis and Purpose

 

 The Department’s Division of Disease Control conducts disease surveillance and control activities for most of the diseases listed in Article 11 (Reportable Diseases and Conditions) of the Health Code. The Division of Disease Control also enforces Article 13 (Clinical Laboratories) of the Health Code, which regulates the manner in which laboratory tests must be performed and the reporting of test results. In addition, the Department is required to comply with various provisions of Part 2 of the New York State Sanitary Code, found in Title 10 of the New York Codes, Rules and Regulations, with respect to control of communicable diseases.

To conduct more effective, timely, and complete disease surveillance and control, the Board is amending Health Code Articles 11 and 13 as follows:

Hepatitis D and E and Other Suspected Infectious Viral Hepatitides Reporting

Hepatitis D and E and “other suspected infectious viral hepatitides” are being removed from Health Code §11.03(a)’s list of reportable diseases and §13.03(b)(3)’s requirements regarding reportable laboratory findings. The New York State Sanitary Code does not require reporting of either hepatitis D or E, nor do a majority of United States jurisdictions.

Hepatitis D and E and “other suspected infectious viral hepatitides” were added to the list of reportable diseases in 2005, largely due to outbreaks of hepatitis D and E observed abroad.  After 10 years of surveillance, the Department has determined that these viruses no longer need to be monitored. Hepatitis D is uncommon in the United States. It is an “incomplete virus” in that it can replicate in the presence of hepatitis B virus; thus, hepatitis D is usually detected in connection with hepatitis B infection or outbreak and need not be separately reported. Since hepatitis D cannot be transmitted in the absence of the hepatitis B virus, hepatitis B immunization and treatment are the best approaches to reduce hepatitis D incidence. There were only 21 reports of hepatitis D in New York City from 2013 to 2015.

Hepatitis E outbreaks have not occurred in New York City. Most hepatitis E cases are linked to foreign travel and most persons infected with the virus recover completely. There is no specific vaccine or antiviral therapy for acute hepatitis E. In addition, hepatitis E cases are often misreported, for reasons including the high false-positive rate of hepatitis E tests. Of 86 hepatitis E cases reported 2006-2009, 67 percent were determined not to be actual cases and 89 percent of confirmed cases had a history of foreign travel. For these reasons, and to redirect Department resources to address more urgent public health threats, the Department stopped routine investigation of hepatitis E cases in 2010. 

Any novel strains of viral hepatitis are reportable as part of providers’ obligation to report unusual manifestations of disease and any newly apparent or emerging disease under Health Code §11.03(c)(1). Thus, it is unnecessary and redundant to have a separate reporting requirement for these hepatitis strains.

Zika Reporting

Pursuant to Health Code §11.03(a), all confirmed cases and carriers of an acute arboviral infection must be reported to the Department within 24 hours. Although Zika virus is currently reportable as an acute arboviral infection, the Board is amending Health Code §11.03(a) to expressly include Zika virus in the list of named acute arboviruses for clarity. For reportable conditions, the Department can monitor New Yorkers to ascertain where the infection was acquired, helping the Department implement prevention strategies. The Department can also investigate to promptly recognize novel forms of transmission, including by local mosquitos.

Tuberculosis Reporting for Children Less Than Five Years of Age 

            Children less than five years of age infected with tuberculosis (TB) are at increased risk for progressing to active disease and developing life-threatening forms of the disease, such as disseminated TB and TB meningitis. For this reason, the Health Code requires providers to report a positive reaction to the purified protein derivative Mantoux test or other recognized TB diagnostic test for this age group.

The Board is amending Health Code §11.03(a) and §11.21, regarding tuberculosis reporting, to further augment the reporting requirements for children less than five years of age to require providers to submit qualitative and quantitative test results and radiology reports where there is a positive test for TB infection, and report initiation of treatment for TB infection. This information will enable the Department to help ensure that providers have ruled out active TB disease and that they initiate appropriate treatment in patients. Further, requiring routine submission of radiology reports will save the Department time and resources currently spent to obtain such reports.

In addition, §13.03(b)(1) of the Health Code, regarding laboratory reporting of tuberculosis, is being amended to require laboratories to report positive results for TB infection obtained from a blood-based test (e.g., interferon-gamma release assays) or other laboratory test when performed on children less than five years of age. Currently, only providers submit positive TB test results for this age group. Requiring reporting by both laboratories and providers will help ensure the Department is made aware of all children less than five years of age with a positive test for TB infection.

Immunization Reporting

            Health Code §11.07(a)(3) is being amended to allow for adult patients’ non-written consent for immunization reporting (currently, consent must be in writing). State Public Health Law § 2168 was amended in 2013, with the support of the Department, to similarly allow non-written consent for reporting to the State-run registry, and subparagraph 2168(3)(b)(i) allows non-written consent for reporting to the City registry. Written consent is a barrier to immunization reporting and eliminating this requirement will help increase provider reporting.  

Isolation of Suspected and Confirmed Varicella Cases

            The Board is amending Health Code §11.17(a), regarding control and isolation of certain diseases, to require isolation of patients with suspected or confirmed varicella in hospitals and other clinical facilities, as is required for other communicable diseases that pose a significant threat to public health. Since varicella can be spread by air, isolation is important to reduce the risk of transmission in healthcare facilities. As a recent example, in June 2016, a one-year-old baby developed varicella infection after being exposed to patients with varicella at a medical facility. The proposed language has been modified to clarify that varicella includes both primary varicella (chickenpox) and disseminated zoster, and that patients with either disease must be isolated.

Syphilis Testing and Reporting

The Board is amending Health Code §13.03(b)(2) to require laboratories to report indeterminate syphilis test results and, where a result is indeterminate, perform a second test on the same specimen and report the result of that test. If the result of the second test is also indeterminate, the laboratory would not be required to perform additional testing. While many laboratories already report indeterminate test results, it is not explicitly required in the Health Code. The amendment provides for more complete reporting. Based on a comment received, the proposal has been modified to clarify that “indeterminate” results do not include instances in which two separate tests have conclusive but discordant results.

In 2015, there were 1,968 indeterminate syphilis test results reported to the Department. The standard approach to resolving an indeterminate test is for a laboratory to retest the same specimen with the same or an alternate diagnostic test or for a healthcare provider to collect another specimen from the patient and test that specimen. To help ensure prompt initiation of treatment of individuals with syphilis, the Department classifies indeterminate test results as positive. This results in the initiation of case investigation and field activities, which include Department staff contacting providers, laboratories, patients, and sex partners of patients.

Requiring laboratories to routinely perform a second syphilis test at the time an indeterminate result is obtained will enable prompt treatment initiation and reduce the risk of disease progression and transmission if the test is positive. The Department will also be able to focus its resources on those New Yorkers with confirmed infections or exposure to infected persons.

Other minor language changes that have no bearing on provider reporting obligations are being made to simplify and clarify §13.03(b)(2).

Enteric Disease Testing and Isolate Submission

            The Board is amending Health Code §13.03(b) to require laboratories to perform culture testing on all specimens that are found to be positive by a culture-independent diagnostic test (CIDT) for certain enteric bacterial pathogens (Campylobacter, Listeria monocytogenes, Salmonella, Shigella, Vibrio, and Yersinia). Culture testing involves a laboratory using a specimen to grow the pathogen; a sample of the pathogen grown by culture is termed an “isolate.” The amendment also requires laboratories to submit all resulting isolates to the Department. For Shiga toxin-producing Escherichia coli (STEC), laboratories will be required to submit Shiga toxin-positive broth (if available) and stool or an isolate. In response to comments received, the proposed requirements have been modified to reflect that where no isolate is produced, only the negative result need be reported, and that the broth need be submitted only if available. The proposed requirements have also been modified to include a timeframe for initiating or ordering the culture testing.

Laboratories are increasingly using CIDTs and not performing culture testing. At least two New York City laboratories can no longer perform bacterial culture on stool specimens, and several New York City laboratories have limited capabilities. The Department and other public health agencies in the United States rely on testing isolates of enteric pathogens to detect and manage outbreaks. Isolates of enteric pathogens undergo testing at the Department laboratory by methods such as pulsed-field gel electrophoresis, colloquially known as ‘DNA fingerprinting.’ The Department combines the results of ‘DNA fingerprinting’ with patient interviews and environmental investigation to confirm and remediate sources of food contamination. CIDTs do not yield isolates for such testing.

The Centers for Disease Control and Prevention encourages laboratories to culture enteric specimens with a positive CIDT result (Morbidity and Mortality Weekly Report. Centers for Disease Control and Prevention. Bacterial Enteric Infections Detected by Culture-Independent Diagnostic Tests — FoodNet, United States, 2012–2014. MMWR. 2015;64(09):252-257). The Association of Public Health Laboratories (APHL) recommends that “all public health departments establish legal requirements for the submission of enteric bacterial disease isolates and/or clinical specimens by hospital and clinical laboratories. . . .” APHL’s position is based in part on its finding that “[t]he rapidly increasing availability of CIDTs for foodborne pathogens poses serious challenges for public health and is threatening to derail current laboratory-based surveillance systems” (APHL Position Statement: Establishing Legal Requirements for the Submission of Enteric Disease Isolates and/or Clinical Material to Public Health Laboratories, Approved by Membership February 2015).  Requiring laboratories to perform culture testing and submit resulting isolates is consistent with the APHL recommendation.

Statutory Authority

The authority for these proposed amendments is found in Sections 556 and 558 of the New York City Charter (the “Charter”). Sections 558(b) and (c) of the Charter empower the Board (the “Board”) to amend the Health Code and to include all matters to which the Department’s authority extends. Section 1043 grants the Department rule-making authority.

Section 556 of the Charter provides the Department with jurisdiction to protect and promote the health of all persons in the City of New York.

 

 

Effective Date: 
Thu, 01/12/2017

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, October 25, 2016
Proposed Rules Content: 
 

Statement of Basis and Purpose

 

            The Department published in the City Record on June 16, 2016 a notice of intention to repeal, among other sections of the New York City Health Code (“Health Code”), §153.01 (Littering prohibited) of Article 153 (Littering and Disposal of Refuse) of the Health Code.  The Statement of Basis and Purpose for that proposal noted that §153.01 duplicates provisions in Title 16 of the New York City Administrative Code  (“Administrative Code”), which are currently enforced by the NYC Department of Sanitation (“DSNY”). The Department now is proposing that the Board of Health repeal all of the remaining sections of Article 153 since they also are redundant and no longer needed nor enforced.  Since the proposal to repeal §153.01 is pending separately before the Board, that section is not included in this proposal. 

        Throughout the City’s history, regardless of the City’s form of government, safe, efficient and effective garbage and waste disposal has presented legal and practical difficulties and is considered an important aspect of public health.  Most of Article 153 was adapted from earlier provisions of the City’s Sanitary Code, the precursor of the Health Code, and reflect even earlier colonial ordinances predating the formation of the City, the Health Department and the Board of Health.  For example, a 1657 New Amsterdam ordinance is generally credited as the first attempt to prohibit the 1,000 or so inhabitants of that colony from throwing garbage and refuse into the streets.[1]  The City’s various councils and temporary boards of health regulated and enforced waste disposal regulations as a public health matter, even after formation of the City Department of Street Cleaning, the predecessor of DSNY, in the 1890’s.  

    However, current day-to-day management and regulation of these matters are the responsibility of State and other City agencies. As noted above, DSNY is responsible for enforcement of street cleanliness, littering and dumping laws in accordance with Title 16 of the NYC Administrative Code and Title 16 of the Rules of the City of New York.  The NYS Department of Environmental Conservation and City Department of Environmental Protection monitor and maintain the cleanliness of the navigable waters surrounding the city and, in compliance with the federal Clean Waters Act and the NYS Environmental Conservation Law, limit and treat sewage contaminants that may find their way into the city’s waters.  The NYC Department of Buildings enforces the Building Code and its rules concerning management of dust and debris at building construction sites.[2]

    While the Department is proposing that the Board of Health repeal the remaining portions of Article 153, which has not been enforced for many years, the Department continues to take very seriously its responsibilities under the NYC Charter which authorizes the Department to “supervise and regulate the public health aspects of sewage disposal and water pollution.”[3]   The Board of Health and the Commissioner supervise and regulate these areas by using their authority under Title 17 of the NYC Administrative Code to order abatement and remediation of any nuisances that might contaminate the City’s navigable waters and streets and that endanger the health of any person or the public health.   

     Following are brief descriptions of the current provisions of Article 153 and the reasons for their repeal:

  • §153.03-Exposure or agitation of certain materials prohibited

This section is essentially the same as NYC Administrative Code §16-118 (3), enforced by DSNY.

  • §153.05-Precautions during construction or demolition work

Chapter 33 of the NYC Building Code (Safeguards during construction or demolition) comprehensively regulates all matters related to debris and dust created as part of construction or demolition, rendering this provision no longer necessary.

  • §153.07-Exposure of rags, barrels, boxes and other materials prohibited.

This is a very archaic provision that essentially duplicates prohibitions on littering.

  • §153.09-Throwing or dropping offensive matter into streets, public places, rivers and other places prohibited.

This provision duplicates provisions of Administrative Code §§16-118 (4) and 16-119 (a).

  • §153.11- Spilling or scattering from vehicles prohibited

This provision duplicates NYC Administrative Code §16-118(4) and NYS Vehicle and Traffic Law §380-a (1).

  • §153.13- Interference with Department of Sanitation employees prohibited

This provision is identical to NYC Administrative Code §16-118 (7) and subdivision (8) of this section provides for criminal penalties for violations.

  • §153.15- Interference with refuse placed for collection prohibited

This provision is similarly incorporated in NYC Administrative Code §16-118 (7).

  • §153.19- Duties of owners or persons in charge of premises.  

Duties of owners are specified in NYC Administrative Code §16-118 (2).

  • §153.21- Removal of dead or diseased animals and offensive materials regulated; use and condition of vehicles.

DSNY is charged with removal of dead animals and other offensive material, e.g., “night soil.”  See, e.g., NYC Administrative Code §16-113.

  • §153.23- Filling of land; use of materials.

DSNY regulations (16 RCNY Chapter 3 – Lands, land under water and landfills) provide for management of landfills in detail.

  • §153.25- Interference with the use of docks, piers and bulkheads for the disposal of offensive materials prohibited

Matters relating to use of docks, piers and bulkheads surrounding the city are the responsibility of the City’s Department of Small Business Services. See NYC Charter §1301(2).

                                                                                     Statutory Authority

            These amendments to the Health Code are promulgated pursuant to Sections 558 and 1043 of the New York City Charter (“Charter”).  Section 558 of the Charter empowers the Board of Health (“Board”) to amend the Health Code and to include in the Health Code all matters to which the authority of the New York City Department of Health and Mental Hygiene (“Department”) extends. Section 1043 grants the Department rulemaking authority. 




[1]  There are many descriptions of the City’s history of struggles with waste disposal.  See, e.g., Edwin G. Burrows and Mike Wallace, Gotham: A History of New York City to 1898, Oxford University Press, 1999; John Duffy, A History of Public Health in New York City 1625-1866, Russell Sage Foundation, 1968; and Robin Nagle, Picking Up, On the Streets and Behind the Trucks with the Sanitation Workers of New York City, Farrar, Straus and Giroux, 2013.  Professor Nagle is anthropologist in residence at the City Department of Sanitation.

[2]  It should be noted that the NYC Department of Health & Mental Hygiene continues to enforce Health Code §173.14 mandating safe work practices in renovations that may disturb lead-based paint.

[3]  NYC Charter §556 (c)(7).

 

 

Subject: 

There is no public hearing scheduled for this rule.

Contact: 

Svetlana Burdeynik at (347) 396-6078 or resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

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