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

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, October 25, 2016
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 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 Department is proposing that the Board amend Health Code Articles 11 and 13 as follows:

Hepatitis D and E and Other Suspected Infectious Viral Hepatitides Reporting

The Department is requesting that the Board remove hepatitis D and E and “other suspected infectious viral hepatitides” from Health Code §11.03(a)’s list of reportable diseases and amend §13.03(b)(3), regarding reportable laboratory findings, to remove references to these infections. 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 Department is requesting that the Board amend 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 Department is requesting that the Board amend 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, the Department is requesting that §13.03(b)(1) of the Health Code, regarding laboratory reporting of tuberculosis, be 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 laboratory 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

            The Department is requesting that Health Code §11.07(a)(3) be 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 Department is requesting that the Board amend 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. 

Syphilis Testing and Reporting

The Department is requesting that the Board amend 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 will provide for more complete reporting.

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 were made to simplify and clarify §13.03(b)(2).

Enteric Disease Testing and Isolate Submission

            The Department is requesting that the Board amend 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 Department is also requesting that laboratories submit all resulting isolates to the Department. For Shiga toxin-producing Escherichia coli (STEC), laboratories would be required to submit Shiga toxin-positive broth and stool or an isolate.

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.

Statement pursuant to Charter §1043

This proposal was not included in the Department’s Regulatory Agenda for FY 2017 in part because of an administrative oversight and in part because the need for the proposal was not known at the time the Regulatory Agenda was promulgated.

 

Subject: 

Proposed resolution to amend Article 11 (Reportable Diseases, 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 14-31
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

Background

            The Board of Health is repealing as redundant, no longer needed, or no longer enforced, the following provisions of the New York City Health Code (“Health Code”): sections 139.05 (Littering prohibited) and 139.07 (Smoking prohibited) of Article 139; sections 153.01 (Littering prohibited) of Article 153; and section 181.03 (Spitting prohibited) of Article 181, all of Title 24 of the Rules of the City of New York.

Repeal sections 139.05 (Littering prohibited) and 153.01 (Littering prohibited)

Section 139.05 of the Health Code prohibits littering or the creation of an unsanitary condition in or on a public transportation facility.  The New York City Administrative Code (“Administrative Code”) prohibits littering in the City generally. Specifically, Administrative Code § 16-118(1) prohibits littering in public spaces. Originally, when promulgated in 1991, Health Code § 139.05 was intended to encompass littering in “any public transportation facility which may not be a ‘public place’ within the meaning of the local law” to distinguish it from the more general Administrative Code § 16-118(1).  However, Health Code § 139.05 is redundant as it is duplicative of Administrative Code § 16-118(1) inasmuch as a public transportation facility can be considered a “public space” within the meaning of Administrative Code § 16-118(1). 

            Similarly, Health Code § 153.01 prohibiting littering by a person or an employee is duplicative of Administrative Code § 16-118(1) which also prohibits littering by persons or their employees “upon any street or public place, vacant lot, air shaft, areaway, backyard court or alley.”

Repeal section 139.07 (Smoking prohibited)

            Health Code § 139.07(a) prohibiting smoking or the carrying of “an open flame or a lighted match, cigar, cigarette or pipe in or on a public transportation facility” is duplicative of Administrative Code § 17-503 of the City’s Smoke-Free Air Act which prohibits smoking in public transportation facilities. In addition, New York City Fire Code (“Fire Code”) § 308(3) makes it unlawful to “place or discard, or cause to be placed or discarded, an open flame, lighted match…where it can cause the ignition of combustible material or combustible waste…”  The plain meaning of Fire Code § 308(3) would cover public transportation facilities.

Similarly, Health Code § 139.07(b) allowing owners or persons in charge of public transportation facilities to designate areas where smoking is permitted is not necessary as Administrative Code § 17-503 and the New York State Public Health Law § 1399-o prohibit smoking in all areas of public transportation facilities.

Repeal section 181.03 (Spitting prohibited)

            Health Code § 181.03(a) and (b) prohibiting spitting in common public areas or in any public transportation facility and requiring the posting of signs prohibiting spitting at public transportation facilities is no longer enforced and no longer needed as there are rules prohibiting spitting in public transportation facilities and conveyances servicing the city such as Metropolitan Transportation Authority conveyances and facilities (21 NYCRR § 1050.7(a)), Staten Island Rapid Transportation Authority facilities (21 NYCRR § 1040.7(a)), Metro-North facilities and trains (21 NYCRR § 1085.7(a)), and Long Island Railroad terminals, stations, and trains (21 NYCRR § 1097.7(a)).  In addition, it is expected that the City Council will amend Administrative Code § 16-118 to prohibit spitting in common areas of private and public buildings and in public transportation facilities.

Statutory Authority

            These amendments to the Health Code are promulgated pursuant to Sections 558 and 1043 of the New York City Charter (“the Charter”).  Section 558 of the Charter empowers the Board of Health (“the 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 (“the Department”) extends. Section 1043 grants the Department rulemaking authority. 

 

 

Effective Date: 
Fri, 10/21/2016

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 

Statement of Basis and Purpose

 Amendment of Article 161 relating to animal nuisances

The Department’s Bureau of Veterinary and Pest Control Services enforces Health Code Article 161 concerning the control of animals in the City.  Section 161.03(a) of Article 161 previously required that pet owners control their pets so that they do not “commit a nuisance on a sidewalk of any public place, on a floor, wall, stairway or roof of any public or private premises used in common by the public, or on a fence, wall or stairway of a building abutting on a public place.”

The Board now clarifies that this provision applies to any area used in common by the public, regardless of whether it is publicly or privately owned.   

 Statutory Authority

These amendments to Article 161of the New York City Health Code are authorized by sections 556, 558 and 1043 of the New York City Charter.  Section 556(c)(2) authorizes the Department to exercise control over and supervise the abatement of nuisances affecting or likely to affect the public health.  Sections 558(b) and (c) of the Charter empower the Board of Health to amend the Health Code and to include in the Health Code all matters to which the Department’s authority extends. Section 1043 grants the Department rulemaking authority. 

 

 

Effective Date: 
Fri, 10/21/2016

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose

 

The Department of Health and Mental Hygiene (the Department) Bureau of Child Care enforces Article 47 of the Health Code which regulates non-residential-based child care centers for children under six years of age) and Article 43 (School-Based Programs for Children Ages Three through Five) which regulates health and safety aspects of school-based programs for children ages three through five.  

The Board of Health has amended Article 43 of the Health Code as follows to enhance the health, safety and supervision of children under six years of age attending school-based programs.

Physical facilities: testing drinking water supplies for lead; installing window guards

            Health Code §47.43, applicable to non-school based freestanding child care centers, currently requires that “Drinking water from faucets and fountains shall be tested for lead content and the permittee shall investigate and take remedial action if lead levels at or above 15 parts per billion (ppb) are detected.”[1]  There is no similar requirement in Article 43 or in Article 45 (General Provisions Governing Schools and Children’s Institutions).  Although schools may be testing lead levels in water voluntarily, there is no general requirement that schools test potable water supplies for lead. While no water supplies should have lead levels above 15 ppb, the youngest children are most at risk for lead poisoning resulting from any environmental lead source. Article 43 is amended to require testing by school-based programs for children ages three through five of potable water supplies for lead. One change was made to the proposal, to extend the amount of time schools have to conduct drinking water lead testing from 30 days to 60 days after filing the required notice, to accommodate the amount of time needed for such testing.

            In addition, the Board is amending this article to require that window guards or other Department approved limiting devices be installed in windows in all areas of a school accessible to children under six years of age.  Since 1976, Chapter 12 of the Department’s rules has required window guards to be installed in all multiple dwelling units in which children 10 years of age and younger reside.  Section 47.41 (e) of Article 47 similarly requires window guards to be installed in child care services that are not located in school buildings. The Board finds that the same protections should be afforded the children of the same ages attending schools.

Teacher immunizations

            A new Recommended Adult Immunization Schedule was approved by the Centers for Disease Control and Prevention (CDC) Advisory Committee on Immunization Practices and published in February, 2016.  The Board is amending the immunization requirements for child care teachers and volunteers in Article 47 and for staff teaching early childhood education programs who are covered by Article 43 to be consistent with these recommendations. The major change is that having a history of measles and mumps will not be acceptable substitutes for measles and mumps vaccinations – vaccines must still be administered even if a health care provider indicates that an individual has a history of these diseases. Vaccinations are not needed if there is laboratory proof of immunity.

Statutory Authority

The authority for these amendments is found in §§ 556 and 558 of the New York City Charter (the “Charter”). Sections 558(b) and (c) of the Charter empower the Board of Health (the “Board”) to amend the New York City Health Code (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 New York City Department of Health and Mental Hygiene (the “Department”) with jurisdiction to protect and promote the health of all persons in the City of New York.

 




[1] This is the federal action level for lead in public drinking water supplies. See, US Environmental Protection Agency, “Lead and Copper Rule,” 40 CFR Part 141 Subpart I.

 

 

Effective Date: 
Fri, 10/21/2016

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 non-residential-based child care centers for children under six years of age.   

The Board of Health is amending Article 47 of the Health Code as follows to enhance the health, safety and supervision of children in Department regulated child care services.

Educational directors

            Department experience has shown that the consistent presence of an educational director is an important factor in providing quality safe child care. The educational director is charged with developing a child care service’s curriculum, implementing teacher training and ensuring that all staff are aware of and compliant with the child care service’s written safety plan and the requirements of the Health Code. When there is no educational director present, or there is constant turnover in the educational director position, child care quality is diminished.

The Department attempts to routinely inspect all the 2,000+ child care services annually. When it finds on inspection that there is no educational director present, it is often told that the person holding the position is “temporarily absent,” a statement which the Department cannot always corroborate.  The Health Code requires that a fully qualified State-certified group teacher be designated as an acting educational director when the educational director is temporarily absent.  The Department has no way of knowing, however, how long the educational director’s absence has been or will last.  To address these concerns, Health Code §§ 47.13, 47.15 and 47.17 have been amended to require that child care service permittees notify the Department when educational directors are terminated or resign.  Notification means that Department staff can timely follow up with the child care service to determine if the educational director has been replaced, and whether there is an appropriate certified teacher supervising other teachers and assuming the duties required of the educational director.  When there is a temporary absence of an educational director, the Health Code will require the permittee to notify teaching staff in writing that there will be a temporary substitute educational director, and make such communication available for Department inspection.

Teacher and trainer qualification verification

      All teaching staff in Article 47 programs are required to hold certain educational credentials and certifications, and many teaching staff in current child care programs present foreign and domestic education institution credentials and teacher certifications that require Department staff to spend a great deal of time checking and verifying such credentials and certifications. Equally important are the qualifications of trainers.  Health Code §§47.13, 47.15, 47.17 and 47.37 have been amended to require child care permittees to submit teachers’ and trainers’ documentation and certifications for review to an agency designated by the Department. The agent would review teaching staff certifications, diplomas, educational transcripts and trainers’ credentials to determine that education and training are in compliance with the Health Code.  

Teacher immunizations

      A new Recommended Adult Immunization Schedule was approved by the Centers for Disease Control and Prevention (CDC) Advisory Committee on Immunization Practices and published in February 2016.  The Department’s requirements for child care staff and volunteer immunizations in Health Code §47.33(c) have been amended to be consistent with these recommendations. The major change is that having a history of measles and mumps will not be allowed to substitute for the vaccines for measles and mumps – the vaccines must still be administered even if a health care provider indicates that an individual has a history of these diseases. Vaccinations are not needed if there is laboratory proof of immunity.  Vaccinations are also not needed for people born on or before December 31, 1956, regardless of their vaccination history, as such old vaccination histories are unreliable and most people were already exposed to these diseases.

Permit suspensions and revocations

            These amendments also clarify circumstances that may result in suspension and revocation of child care service permits, provide child care services with more concrete information about the Department’s expectations and describe how the Department evaluates performance.

The Department evaluates a child care service’s performance by comparing it to that of other child care services. Child care services found performing below standards may voluntarily enroll in a Department program to improve performance.  As part of this program, Department staff help permittees identify and address administrative and other factors that compromise child safety.  Department staff also work with the permittee to create a corrective action plan to remedy these factors. This voluntary improvement process is being made mandatory, amending §§47.21 and 47.77 and failure to make changes required by the corrective action plan would result in a child care service being required to defend its permit at a hearing at the Office of Administrative Trials and Hearings (OATH).

Health Code §47.77 has been amended to provide that, in addition to actions authorized by other provisions of the Health Code, the Commissioner may revoke a child care service permit in certain circumstances, including but not limited to:

  • having a history of prior or current child care permit,

license or registration suspensions,

  • revocations or suspensions (whether by the Commissioner or other government agencies) or
  • failing to implement required corrective action plans.

Section 47.77 has been amended to add that when a child care service permit is revoked by the Commissioner, any application for a new permit by any of the service’s individual or corporate managers or directors will not be accepted for at least five years following the date of revocation. In response to a comment, new subdivision (j) has been amended to authorize the Commissioner to exercise discretion in determining the circumstances in which to invoke this sanction.  

            These measures will enable the Department to take expedited action against unsafe facilities and clarify the bases for taking regulatory actions.  

Fraud prevention

Individuals who work or volunteer in or are in control of any child care service must be fingerprinted in accordance with Health Code §47.19.  Fingerprints are forwarded by the City Department of Investigation (DOI) to the New York State Division of Criminal Justice Services (DCJS). DCJS then reports on the individual’s criminal history to DOI, and DOI informs the permittee of the individual’s relevant criminal background.  In recent years, there have been a number of incidents where permittees claimed as staff members people who did not work in a child care service. Several permittees fraudulently submitted credentials of qualified persons or created false documents and certifications to show the Department that they have a full complement of cleared and/or qualified staff. One permittee allowed an otherwise unidentified individual to assume the identity and credentials of another person and passed her off as a qualified group teacher for many years.  In these cases, the fraud eventually results in revocation of the permits, in accordance with Health Code §5.13.  Requiring permittees to include identification numbers assigned to fingerprints (the New York State Identification or “NYSID” number) by DCJS when applications for permits and staff qualifications are submitted for approval will enable the Department to  more readily verify individuals’ identities.  Accordingly, Health Code § 47.09 (a) has been amended to require permittees to provide NYSID numbers for persons with ownership and other interests in child care services, and any other persons whose credentials the Department is being asked to approve.  

Early Intervention and CPSE services for disabled children

            Health Code §47.19 requires that all staff, volunteers, contractors and others in child care services obtain clearances every two years from the State Central Register of Child Abuse and Maltreatment (SCR), be fingerprinted and have employment references checked unless “such person is working under the direct supervision and within the line of sight of a screened employee of the child care service.”  The Department has been asked to exempt from these requirements persons conducting assessments of or providing services to individual children who are disabled or at risk for disability under the Department’s Early Intervention (EI) program (children under three years of age) or the City Department of Education’s committee on preschool special education (CPSE) (ages three through five). Since these individuals are already cleared, it is unnecessary that child care service permittees also clear them, and this provision is being amended accordingly. 

Lead in water

            Health Code §47.43(a), requiring child care service permittees to test water for lead, has been amended to specify that such testing must be done every five years and to require that test results be sent to the Department.  Any elevated test results that are submitted must be accompanied by a plan for remediation and until remediation is completed alternate sources of potable water provided. The original proposal was changed to extend the amount of time child care service permittees have to conduct drinking water lead testing from 30 days to 60 days after filing the required notice, to accommodate the amount of time needed for such testing.

Fire alarms and sprinklers

            Health Code §47.59 (c), which requires that all child care services attended by 30 or more children have fire alarms, has been amended to require all newly permitted child care facilities and those undergoing extensive renovation (i.e., material alterations requiring a revised certificate of occupancy) to have fire alarms approved by the Fire Department.  Also added is a requirement of the current Building Code that all new infant-toddler child care services and those undergoing material alterations be fitted with sprinkler systems. These requirements will significantly enhance safety.  

Permit posting

Health Code §47.73, which requires that a child care service permit must be posted “in a conspicuous place near its public entrance where staff, parents and others may review” it, has been amended to specify that the permit must be posted in a location where it will be more readily visible to parents and caregivers dropping off and picking up children. It is critical that parents know that a service has a Department permit and is not operating illegally and without oversight.

Statutory Authority

The authority for these amendments is found in §§ 556 and 558 of the New York City Charter (the “Charter”). Sections 558(b) and (c) of the Charter empower the Board of Health 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 ’16 since the need for the proposal was not known at the time the Regulatory Agenda was promulgated.

 

 

Effective Date: 
Fri, 10/21/2016

Proposed Rules: Closed to Comments (View Public Comments Received:2)

Agency:
Comment By: 
Tuesday, July 26, 2016
Proposed Rules Content: 
 

Statement of Basis and Purpose

 

             The Department’s Bureau of Veterinary and Pest Control Services enforces Health Code Article 161 pertaining to the control of animals in the City.  Section 161.03(a) of Article 161 currently requires that pet owners control their pets so that they do not commit a nuisance on a “sidewalk of any public place, on a floor, wall, stairway or roof of any public or private premises used in common by the public, or on a fence, wall or stairway of a building abutting on a public place.”

             A question arose recently as to whether the provision applies to sidewalks and lawns in large residential communities in the City that are open to and used by the public as well as the residents of the local community. The Department is asking the Board to clarify that this provision applies to any area used in common, outdoor or indoor and regardless of whether it is publicly or privately owned.  

Statutory Authority

             These amendments to the New York City Health Code (the Health Code) are authorized by sections 558 and 1043 of the New York City Charter (the Charter).  Sections 558(b) and (c) of the Charter empower the Board of Health (the 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 (the Department) extends. Section 1043 grants the Department rulemaking authority. 

 

 

Subject: 

Proposed resolution to amend Article 161 (Animals) to clarify applicability of section 161.03 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 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 20, 2016
Proposed Rules Content: 
 

Statement of Basis and Purpose

 

Background

             The Department is proposing to repeal as redundant, no longer needed, or no longer enforced, the following provisions of the New York City Health Code (the “Health Code”): sections 139.05 (Littering prohibited) and 139.07 (Smoking prohibited) of Article 139; sections 153.01 (Littering prohibited) of Article 153; and section 181.03 (Spitting prohibited) of Article 181, all of Title 24 of the Rules of the City of New York.

Repeal sections 139.05 (Littering prohibited) and153.01 (Littering prohibited)

Section 139.05 of the Health Code prohibits littering or the creation of an insanitary condition in or on a public transportation facility.  The New York City Administrative Code (“Administrative Code) prohibits littering in the City generally. Specifically, Administrative Code §16-118(1) prohibits littering in public spaces. Originally, when promulgated in 1991, Health Code §139.05 was intended to encompass littering in “any public transportation facility which may not be a ‘public place’ within the meaning of the local law” to distinguish it from the more general Administrative Code §16-118(1).  However, Health Code §139.05 is redundant as it is duplicative of Administrative Code §16-118(1) inasmuch as a public transportation facility can be considered a “public space” within the meaning of Administrative Code §16-118(1). 

             Similarly, Health Code §153.01 prohibiting littering by a person or an employee is duplicative of Administrative Code §16-118(1) which also prohibits littering by persons or their employees “upon any street or public place, vacant lot, air shaft, areaway, backyard court or alley.”

Repeal section 139.07 (Smoking prohibited)

             Health Code §139.07(a) prohibiting smoking or the carrying of “an open flame or a lighted match, cigar, cigarette or pipe in or on a public transportation facility” is duplicative of Administrative Code §17-503 of the City’s Smoke-Free Air Act which prohibits smoking in public transportation facilities. In addition, New York City Fire Code (“Fire Code”) section 308(3) makes it unlawful to “place or discard, or cause to be placed or discarded, an open flame, lighted match…where it can cause the ignition of combustible material or combustible waste…”  The plain meaning of Fire Code §308(3) would cover public transportation facilities.

Similarly, Health Code §139.07(b) allowing owners or persons in charge of public transportation facilities to designate areas where smoking is permitted is not necessary as Administrative Code § 17-503 and the New York State Health Law § 1399-o prohibit smoking in all areas of public transportation facilities.

Repeal section 181.03 (Spitting prohibited)

            Health Code §181.03(a) and (b) prohibiting spitting in common public areas or in any public transportation facility and requiring the posting of signs prohibiting spitting at public transportation facilities is no longer enforced and no longer needed as there are rules prohibiting spitting in public transportation facilities and conveyances servicing the city such as Metropolitan Transportation Authority conveyances and facilities (21 NYCRR § 1050.7(a)), Staten Island Rapid Transportation Authority facilities (21 NYCRR § 1040.7(a)), Metro-North facilities and trains (21 NYCRR § 1085.7(a)), and Long Island Railroad terminals, stations, and trains (21 NYCRR § 1097.7(a)).  In addition, it is expected that the City Council will amend Administrative Code § 16-118 to prohibit spitting in common areas of private and public buildings and in public transportation facilities.

 Statutory Authority

             These amendments to the Health Code are promulgated pursuant to Sections 558 and 1043 of the New York City Charter (“the Charter”).  Section 558 of the Charter empowers the Board of Health (“the 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 (“the Department”) extends. Section 1043 grants the Department rulemaking authority. 

 

Subject: 

Proposed resolution to repeal sections 139.05 and 139.07 of Article 139, section 153.01 of Article 153, and section 181.03 of Article 181 of the New York City Health Code as no longer needed.

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 (View Public Comments Received:7)

Agency:
Comment By: 
Wednesday, July 27, 2016
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 of age.   

          The Department is proposing that the Board amend Article 47 of the Health Code as follows to enhance the health, safety and supervision of children in regulated child care services.

Educational directors

            Department experience has shown that the consistent presence of an educational director is an important factor in providing quality, safe child care. The educational director is charged with developing a child care service’s curriculum, implementing teacher training and ensuring that all staff are aware of and compliant with the child care service’s written safety plan and the requirements of the Health Code. When there is no educational director present, or there is constant turnover in the educational director position, child care quality is diminished.

           The Department attempts to routinely inspect all the 2,000+ child care services annually. When it finds on inspection that there is no educational director present, it is often told that the person holding the position is “temporarily absent,” a statement which the Department cannot always corroborate.  The Health Code requires that a fully qualified State-certified group teacher be designated as an acting educational director when the educational director is temporarily absent.  The Department has no way of knowing, however, how long the educational director’s absence has been or will last.  To address these concerns, the Department is requesting that the Board amend Health Code §§ 47.13, 47.15 and 47.17 to require that child care service permittees notify the Department when educational directors are terminated or resign.  Notification means that Department staff can timely follow up with the child care service to determine if the educational director has been replaced, and whether there is an appropriate certified teacher supervising other teachers and assuming the duties required of the educational director.  When there is a temporary absence of an educational director, the Department is asking the Board to require that the permittee communicate in writing to teaching staff that there will be a temporary substitute educational director, and make such communication available for Department inspection.

Teacher and trainer qualification verification

      All teaching staff in Article 47 programs are required to hold certain educational credentials and certifications, and many teaching staff in current child care programs present foreign and domestic education institution credentials and teacher certifications that require Department staff to spend a great deal of time checking and verifying such credentials and certifications. Equally important are the qualifications of trainers.  The Department is proposing that the Board amend Health Code §§47.13, 47.15, 47.17 and 47.37 to require child care permittees to submit teachers’ and trainers’ documentation and certifications for review to an agency designated by the Department. The agent would review teaching staff certifications, diplomas, educational transcripts and trainers’ credentials to determine that education and training are in compliance with the Health Code.  

Teacher immunizations

      A new Recommended Adult Immunization Schedule was approved by the Centers for Disease Control and Prevention (CDC) Advisory Committee on Immunization Practices and published in February 2016.  The Department’s requirements for child care staff and volunteer immunizations in Health Code §47.33(c) are being amended to be consistent with these recommendations. The major change is that having a history of measles and mumps will not be allowed to substitute for the vaccines for measles and mumps – the vaccines must still be administered even if a health care provider indicates that an individual has a history of these diseases. Vaccinations are not needed if there is laboratory proof of immunity.  Vaccinations are also not needed for people born on or before December 31, 1956, regardless of their vaccination history, as such old vaccination histories are unreliable and most people were already exposed to these diseases.

Permit suspensions and revocations

            These amendments also clarify circumstances that may result in suspension and revocation of child care service permits, provide child care services with more concrete information about the Department’s expectations and describe how the Department evaluates performance.

           The Department evaluates a child care service’s performance by comparing it to that of other child care services. Child care services found performing below standards may voluntarily enroll in a Department program to improve performance.  As part of this program, Department staff help permittees identify and address administrative and other factors that compromise child safety.  Department staff also work with the permittee to create a corrective action plan to remedy these factors. The Department proposes that this currently voluntary improvement process be made mandatory, amending §§47.21 and 47.77 and that failure to make required changes would result in a child care service being required to defend its permit at a hearing at the Office of Administrative Trials and Hearings (OATH).

          The Department also requests that the Board amend Health Code §47.77 to provide that, in addition to actions authorized by other provisions of the Health Code, the Commissioner may revoke a child care service permit in certain circumstances, including but not limited to:

  • having a history of prior or current child care permit, license or registration suspensions,
  • revocations or suspensions (whether by the Commissioner or other government agencies) or
  • failing to implement required corrective action plans.

It is also proposed that section 47.77 be amended to add that when a child care service permit is revoked by the Commissioner, any application for a new permit by any of the service’s individual or corporate managers or directors will not be accepted for at least five years following the date of revocation.

           

These measures would enable the Department to take expedited action against unsafe facilities and clarify the bases for taking regulatory actions.  

Fraud prevention

           Individuals who work or volunteer in or are in control of any child care service must be fingerprinted in accordance with Health Code §47.19.  Fingerprints are forwarded by the City Department of Investigation (DOI) to the New York State Division of Criminal Justice Services (DCJS). DCJS then reports on the individual’s criminal history to DOI, and DOI informs the permittee of the individual’s relevant criminal background.  In recent years, there have been a number of incidents where permittees claimed as staff members people who did not work in a child care service. Several permittees fraudulently submitted credentials of qualified persons or created false documents and certifications to show the Department that they have a full complement of cleared and/or qualified staff. One permittee allowed an otherwise unidentified individual to assume the identity and credentials of another person and passed her off as a qualified group teacher for many years.  In these cases, the fraud eventually results in revocation of the permits, in accordance with Health Code §5.13.  The Department would like to be able to require permittees to include identification numbers assigned to fingerprints (the New York State Identification or “NYSID” number) by DCJS when applications for permits and staff qualifications are submitted for approval, so that it can more easily verify individuals’ identities.  Accordingly, the Department requests that the Board amend Health Code § 47.09 (a) to authorize the Department to require provision of NYSID numbers by persons with ownership and other interests in child care services, and persons whose credentials the Department is being asked to approve.  

Early Intervention and CPSE services for disabled children

            Health Code §47.19 requires that all staff, volunteers, contractors and others in child care services obtain clearances every two years from the State Central Register of Child Abuse and Maltreatment (SCR), be fingerprinted and have employment references checked unless “such person is working under the direct supervision and within the line of sight of a screened employee of the child care service.”  The Department has been asked to exempt from these requirements persons conducting assessments of or providing services to individual children who are disabled or at risk for disability under the Department’s Early Intervention (EI) program (children under three years of age) or the City Department of Education’s committee on preschool special education (CPSE) (ages three through five). These individuals are already cleared and the Department would like to avoid unnecessary delay by requiring that child care service permittees also clear them.  The Department is asking the Board to amend this provision accordingly. 

Lead in water

            The Department is requesting that the Board amend Health Code §47.43(a) (requiring child care service permittees to test water for lead) to specify that such testing must be done every five years and to require that test results be sent to the Department.  Elevated test results would have to be accompanied by a plan for remediation and until remediation is completed alternate sources of potable water provided.

Fire alarms and sprinklers

            Health Code §47.59 (c) requires that all child care services attended by 30 or more children have fire alarms. The Department is proposing that the Board amend this provision to require all newly permitted child care facilities and those undergoing extensive renovation (i.e., material alterations requiring a revised certificate of occupancy) to have fire alarms approved by the Fire Department, and to incorporate in the Health Code a requirement of the current Building Code that all new infant-toddler child care services and those undergoing material alterations be fitted with sprinkler systems. The Department believes that these requirements will significantly enhance safety.  

 

Permit posting

           Health Code §47.73 currently requires that a child care service permit must be posted “in a conspicuous place near its public entrance where staff, parents and others may review” it.  The Department is requesting that the Board amend this to specify that the permit be posted in a location where it will be more readily visible to parents and caregivers dropping off and picking up children. It is critical that parents know that a service has a Department permit and is not operating illegally and without oversight.

Statutory Authority

           The authority for these proposed amendments is found in §§ 556 and 558 of the New York City Charter (the “Charter”). Sections 558(b) and (c) of the Charter empower the Board of Health (the “Board”) to amend the New York City Health Code (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 New York City Department of Health and Mental Hygiene (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 ’16 since 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.

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 25, 2016
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 of age) in accordance with Article 47 of the Health Code, and Article 43 (School-Based Programs for Children Ages Three through Five) which regulates health and safety aspects of school-based programs for children ages three through five.  

The Department is proposing that the Board amend Article 43 of the Health Code as follows to enhance the health, safety and supervision of children under six years of age attending school-based programs.

Physical facilities: testing drinking water supplies for lead; installing window guards

            Health Code §47.43, applicable to non-school based freestanding child care centers, currently requires that “Drinking water from faucets and fountains shall be tested for lead content and the permittee shall investigate and take remedial action if lead levels at or above 15 parts per billion (ppb) are detected.”[1]  There is no similar requirement in Article 43 or in Article 45 (General Provisions Governing Schools and Children’s Institutions).  Although schools may be testing lead levels in water voluntarily, there is no general requirement that schools test potable water supplies for lead. While no water supplies should have lead levels above 15 ppb, the youngest children are most at risk for lead poisoning resulting from any environmental lead source. The Department is requesting the Board to amend Article 43 to require testing by school-based programs for children ages three through five of potable water supplies for lead.

            In addition, the Department is requesting the Board to amend this article to require that window guards or other Department approved limiting devices be installed in windows in all  areas of a school accessible to children under six years of age.  Since 1976, Chapter 12 of the Department’s rules has required window guards to be installed in all multiple dwelling units in which children 10 years of age and younger reside.  Section 47.41 (e) of Article 47 similarly requires window guards to be installed in child care services that are not located in school buildings. The Department believes that the same protections should be afforded the children of the same age attending schools.

Teacher immunizations

            A new Recommended Adult Immunization Schedule was approved by the Centers for Disease Control and Prevention (CDC) Advisory Committee on Immunization Practices and published in February, 2016.  The Department is requesting that the Board amend the immunization requirements for child care teachers and volunteers in Article 47 and for staff teaching early childhood education programs who are covered by Article 43 to be consistent with these recommendations. The major change is that having a history of measles and mumps will not be allowed to substitute for the vaccines for measles and mumps – the vaccines must still be administered even if a health care provider indicates that an individual has a history of these diseases. Vaccinations are not needed if there is laboratory proof of immunity.

Statutory Authority

The authority for these proposed amendments is found in §§ 556 and 558 of the New York City Charter (the “Charter”). Sections 558(b) and (c) of the Charter empower the Board of Health (the “Board”) to amend the New York City Health Code (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 New York City Department of Health and Mental Hygiene (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 ’16 since the need for the proposal was not known at the time the Regulatory Agenda was promulgated.

 




[1] This is the federal action level for lead in public drinking water supplies. See, US Environmental Protection Agency, “Lead and Copper Rule,” 40 CFR Part 141 Subpart I.

 

Subject: 

Proposed resolution to amend Article 43 (School Based Programs for Children Ages Three through Five) 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 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: 
 

RESOLUTION DATED: JUNE 7, 2016

 

The Board of Health at its meeting on June 7, 2016, adopted the following Resolution, requiring that all owners of buildings and other premises take all necessary measures to prevent outbreaks of Zika viral disease.  In order to ensure proper public notification, the Department of Health and Mental Hygiene is publishing this Resolution in accordance with §17-148 of the Administrative Code of the City of New York.

          WHEREAS, Zika virus is an emerging threat to public health that is spreading widely through the Western Hemisphere primarily through the bite of infected Aedes aegypti mosquitos; and

          WHEREAS, the Aedes albopictus mosquito is a related species of mosquito that is present in New York City and which may be able to transmit Zika virus and other diseases as described below; and

          WHEREAS, the Aedes albopictus mosquito is known to lay its eggs in small amounts of water left standing in clogged gutters and debris or that has accumulated an been left standing on roofs; and

          WHEREAS, Zika virus is associated with serious birth defects in infants of mothers who were infected while pregnant; and   

          WHEREAS, water accumulating containers or in garbage, waste, refuse or clogged gutters that have not been cleaned are breeding grounds for live adult mosquitos that are capable of transmitting Zika virus as well as other acute arboviral infections caused by West Nile virus, Chikungunyavirus and dengue virus to persons, thereby exposing persons in areas adjacent to such water to illness; and

          WHEREAS, the Board of Health has taken and filed among its records reports that in buildings and other premises throughout the City there are containers holding water that are insufficiently or irregularly emptied which may serve as breeding places for the Aedes albopictus mosquito, a menace to public health capable of transmitting Zika virus and other diseases; and

           WHEREAS, lots containing garbage, refuse or waste material in or on which water may collect constitute public nuisances in that they may serve as breeding places for the Aedes albopictus mosquito, a menace to public health capable of transmitting Zika virus and other diseases; and

           WHEREAS, buildings with gutters that are clogged allowing water to collect or where water has been allowed to accumulate on rooftops constitute public nuisances in that they may serve as breeding places for the Aedes albopictus mosquito, a menace to public health capable of transmitting Zika virus and other diseases; and

            WHEREAS, the presence of such mosquitos can be immediately dangerous to life and health; and

            WHEREAS, at its March 15, 2016 meeting, the Board of Health took proof of the dangerousness of such mosquitos and regards the best way to prevent illnesses from mosquitos is to authorize the declaration that any accumulations of standing water that is not treated to prevent mosquito breeding, or the existence of conditions that may allow such water to accumulate, are in a condition and in effect immediately dangerous to human life and health and constitute a public nuisance; and

           WHEREAS, immediate abatement of such nuisance conditions is necessary to prevent the replication of mosquito-borne viral organisms; and    

           WHEREAS, personal service or service pursuant to subdivisions a or b of §17-148 of the Administrative Code of the City of New York of orders requiring the abatement of such nuisances and conditions in effect dangerous to life and health upon each of the persons who, pursuant to the provisions of Title 17 of the Administrative Code of the City of New York, has a duty or liability to abate such nuisances and conditions, would result in a delay prejudicial to the public health, welfare, and safety.          

          IT IS THEREFORE RESOLVED, that the Board of Health hereby declares that premises where standing water has or can accumulate are in a condition and in effect immediately dangerous to life and health and constitute a public nuisance; and be it further

           RESOLVED, that the Board of Health hereby declares that such nuisances are widespread throughout the City; and be it further

           RESOLVED, that all persons who, pursuant to the provisions of Title 17 of the Administrative Code of the City of New York and such other chapters, titles, sections, laws or rules as are applicable thereto, have the duty or liability to abate such nuisances and conditions in effect dangerous to life and health, are hereby ordered to abate such nuisances and conditions in effect dangerous to life and health by removing accumulations of standing water and adopting maintenance programs and plans for cleaning containers, disposing of such water accumulations, and preventing further water accumulation; and be it further

           RESOLVED, that in the event that such persons or any of them shall fail to comply with this order within five days after service thereof pursuant to §17-148 of the Administrative Code of the City of New York, the Department of Health and Mental Hygiene is hereby authorized and directed to take all necessary steps to forthwith secure the abatement of said nuisances and conditions in effect dangerous to life and health; and

           IT IS FURTHER RESOLVED, that this resolution shall be published in the City Record and at least one other newspaper for three days, and be effective in accordance with §17-148 of the Administrative Code of the City of New York, immediately after the third day of its publication.

 

 

Effective Date: 
Sat, 06/18/2016

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