DOHMH Subscribe to RSS - DOHMH

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

Proposed Rules: Closed to Comments (View Public Comments Received:1)

Agency:
Comment By: 
Wednesday, October 25, 2017
Proposed 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 how laboratory tests must be performed and the reporting of test results. In addition, the Department must 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 Department is proposing that the Board amend Health Code Article 13 as follows:

Hepatitis B Reporting

The Department is proposing that the Board amend Health Code §13.03(b)(3)(A) to require laboratories to report all hepatitis B virus (HBV) DNA test results, including negative results. The Health Department currently requires laboratories to report only positive HBV DNA results, in addition to other positive HBV test results.

HBV DNA testing is performed on individuals who have tested positive for HBV. HBV DNA tests measure viral load and whether the patient has chronic (active) HBV, requiring treatment. For patients already diagnosed with chronic HBV, DNA test results provide important information regarding infectiousness, treatment eligibility, and risk for development of liver cancer. For patients being treated for HBV, DNA test results provide information regarding treatment outcome (i.e., the extent to which the patient cleared the infection).

The number of HBV cases is rising nationally and in New York City. More than 100,000 New Yorkers are estimated to be living with chronic HBV, with 8,439 new cases diagnosed in 2016, an increase of 18.8% since 2013. The majority of individuals infected with HBV as adults will clear the virus on their own but many New Yorkers will develop chronic HBV. Chronic HBV can lead to serious health issues, including cirrhosis and liver cancer. All persons with chronic HBV infection require linkage to care and regular monitoring for liver damage and other complications; a subset require treatment with antiviral medications.

Without negative HBV DNA test results, the Health Department has limited knowledge regarding whether patients who have tested positive for HBV are receiving appropriate follow-up testing and treatment. Mandated reporting of negative HBV DNA test results will allow the Health Department to estimate the proportion of New Yorkers infected with HBV who are appropriately tested and linked to care; identify gaps in access to care; develop targeted interventions to increase linkage to care and improve provider knowledge of HBV testing and treatment guidelines; and increase monitoring to reduce HBV-related morbidity and mortality.

Carbapenem-resistant Enterobacteriaceae Reporting

The Department is proposing that the Board amend Health Code §11.03(a) to require laboratories to report carbapenem-resistant Enterobacteriaceae (CRE), an emerging bacterial threat. CRE are a family of bacteria that are difficult to treat because they have high levels of resistance to many antibiotics including carbapenem antibiotics. Carbapenem antibiotics are often used as the last line of treatment for infections caused by highly resistant bacteria, including those in the Enterobacteriaceae family.

As explained by the Centers for Disease Control and Prevention (CDC): “The emergence and dissemination of carbapenem resistance among Enterobacteriaceae in the United States represents a serious threat to public health. These organisms cause infections that are associated with high mortality rates and they have the potential to spread widely. Decreasing the impact of these organisms will require a coordinated effort involving all stakeholders including healthcare facilities and providers, public health, and industry.”[1] CDC has designated CRE an “urgent” threat, the highest threat level in its list of antibiotic resistance threats in the United States.[2]

CRE infections are common in hospitals, nursing homes, and other healthcare settings. Patients whose care requires devices like ventilators, urinary catheters, or intravenous catheters, and patients who are taking long courses of certain antibiotics are most at risk for CRE infections.[3] In 2015, hospitals in NYS reported 3,618 CRE cases via the CDC’s National Healthcare Safety Network (NHSN); 1,727 of these were reported by the 51 participating New York City facilities.[4] As only hospitals submit data to the NHSN, the number of CRE infections in New York is probably significantly larger.

Mandated reporting will provide vital epidemiological information regarding incidence and evolution of CRE and assist in the identification of new strains, clusters, and outbreaks. This will enable the Health Department to help ensure infection control precautions are being taken. Mandated reporting of CRE is also aligned with recently released Council of State and Territorial Epidemiologists guidelines.[5] Based on a 2016 survey, 27 jurisdictions require some form of CRE reporting.[6]

Minor changes to other parts of §11.03(a) are proposed for purposes of consistency.

 

Statutory Authority

The Health Department’s authority to promulgate these proposed amendments is found in Sections, 556, 558, and 1043 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 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.




[1] Centers for Disease Control and Prevention, National Center for Emerging and Zoonotic Infectious Diseases. Facility Guidance for Control of Carbapenem-resistant Enterobacteriaceae (CRE). November 2015 Update – CRE Toolkit. https://www.cdc.gov/hai/pdfs/cre/cre-guidance-508.pdf.

[2] Centers for Disease Control and Prevention. Antibiotic Resistant Threats in the United States, 2013. https://www.cdc.gov/drugresistance/pdf/ar-threats-2013-508.pdf.

[3] Centers for Disease Control and Prevention. Carbapenem-resistant Enterobacteriaceae in Healthcare Settings. CDC website. https://www.cdc.gov/hai/organisms/cre/index.html.

[4] NYS Healthcare Associated Infections in New York State, 2015. Part 2: Technical Report. March 2017.

[5] Council of State and Territorial Epidemiologists. Infectious Disease Committee Position Statement 17-ID-04: Public Health Reporting and National notification of Carbapenemase Producing Carbapenem-Resistant Enterobacteriaceae for E. coli, Klebsiella spp. and Enterobacter spp. July 2017.

[6] Council of State and Territorial Epidemiologists. State Reportable Conditions Assessment (SRCA). http://srca.querytool.cste.org/.

 

 

Subject: 

Proposed resolution to amend Article 11 (Reportable Deceases and Conditions) and Article 13 (Laboratories) of the New York City Health Code.

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, (347) 396-6078, resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted 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 authorized the Department to provide, at no 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 tag 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 offered the optional service dog tags, some entities are confused and mistakenly only accommodated individuals whose service dogs are wearing them.  Similarly, the Department was informed that some individuals with disabilities mistakenly believed 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 have impeded individuals from exercising their rights and might have inadvertently led a business to refuse service to a person with a disability whose dog did not have a tag.

         In order to remove the inadvertent barriers created by the service dog tag provision of the Health Code, the Board of Health is repealing 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 Health Code and City rules to identify provisions that should be, among other possible changes, simplified to help support public understanding and compliance. The amendments to sections 161.15 and 161.17 were identified through this initiative. 

            As part of this text simplification process, the Board of Health is acting 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 section 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 Board is amending subdivision (a) of section 161.15 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 being made, except the following two amendments, improve clarity.  The two substantive changes are:

        1.     Changes to Health Code subdivision 161.15(d)

            Previously, subdivision (d) only prohibited 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 Board is replacing 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.     Changes to Health Code section 161.17

            The Board is adding 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

The authority for these amendments is found in sections 556, 558, and 1043 of 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 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). 

Effective Date: 
Fri, 10/20/2017

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose

          The Department of Health and Mental Hygiene (the “Department”) enforces Article 47 of the Health Code, which regulates certain child care services provided to children under six years of age.  

          The Board of Health is amending 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 services in such facilities.

Adopted 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 will regulate the programs to provide for the health, safety, and supervision of the children receiving the services. Unlike those child care programs 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 amendments limit the amount of time that any child may attend such a program. The amendments 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. In response to comments received, the Department has revised the amendments to extend the amount of time that a child may attend such programs, and has added additional responsibilities to the role of the child care liaisons working in such programs. The Department has also added training requirements for child care liaisons.

Statutory Authority

          The authority for these 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.

 

 

Effective Date: 
Fri, 10/20/2017

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose

             Pursuant to New York Public Health Law Section 580(3), 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 how laboratory tests must be performed and the reporting of test results.

To conduct more effective, timely, and complete surveillance and control of hepatitis C, the Board is amending Health Code Article 13 as follows:

Hepatitis C Testing and Reporting

            The Board is amending Health Code §13.03(b)(3) to require laboratories to routinely perform a confirmatory RNA hepatitis C virus (HCV) test if an antibody test 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, referred 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 in patients not receiving needed care.

           In 2016, only 48% of patients newly diagnosed and testing antibody positive who were reported to the Department had a confirmatory RNA test performed 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 test follows 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)

 

 

Effective Date: 
Fri, 10/20/2017

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose 

Health Code §3.11 currently limits the monetary penalty that can be imposed for a violation of the Health Code to $2,000.  In egregious cases, where dangerous conduct is repeated or a violation results in serious 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 $5,000 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 $10,000 if the violation of a rule results in serious physical harm to a patient. 

The Board is amending Health Code §3.11 to add two new subdivisions to enhance penalties in similar circumstances.  New subdivision (d), similar to Public Health Law § 12, allows a maximum penalty of $5,000 for a repeat violation of any section of the Health Code that poses a serious risk of harm to others.  New subdivision (e) authorizes a penalty of up to $10,000 in cases where a violation of the Health Code causes serious physical injury to any person, also similar to Public Health Law § 12.

The Board is also amending subdivision (c) of §3.11 to delete a reference to Article 7 of the Health Code, which has been repealed since 2012 and making other technical edits to the section.

 

 

Effective Date: 
Fri, 10/20/2017

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): 

Pages