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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: 
Thursday, April 14, 2016
Proposed Rules Content: 

Statement of Basis and Purpose

Background

Administrative Code § 17-194 provides that any owner of a building that has a water tank as part of its drinking water supply system must have it inspected at least once annually and requires the inspection to comply with applicable provisions of the New York City Health Code (“Health Code”). Inspection results must be recorded in a manner prescribed by the Commissioner of the Department.

Article 141 of the Health Code regulates certain aspects of the purity and sanitary condition of the City’s potable water supply, including roof top water storage tanks. Water for thousands of New York City buildings is kept in these types of tanks. Health Code §141.07 (“Building Drinking Water Storage Tanks”) requires that these tanks be inspected annually and that the person in control of a building using  water storage tanks keep copies of the inspection records and make them available to the Department upon request.

Owners of buildings with water tanks are required to report annually to the Department the fact that the tanks have been inspected. Requiring annual reporting promotes building owner compliance with the inspection mandate and facilitates the Department’s ability to monitor compliance.  Data from these reports will be made publically available. 

Administrative Code provisions.  Administrative Code § 17-194, enacted as Local Law 11 for the year 2009, provides for the annual inspections of water tanks, with results to be recorded in accordance with Department rules, maintained for five years from the date of inspection, and made available to the Department within five business days of receiving a request. Administrative Code § 17-194(e) allows for penalties of $250 to $1,000 per violation for violations of Administrative Code § 17-194 (b), and for a maximum of $250 per violation for violations of Administrative Code § 17-194 (c).  This proposed rule would set the penalties for these violations within those ranges.

§ 17-194(b) requires that tanks be inspected annually for compliance with applicable laws; results of inspections be recorded in a manner prescribed by the Commissioner; results of inspections be maintained for five years; and results of inspections be made available to the Department within five business days of being requested.

§ 17-194 (c) requires  a building owner to post a notice in a building informing tenants how to obtain the results of inspections.

Health Code provisions.   Health Code Article 141 (“Drinking Water”) supports maintenance of the purity and sanitary condition of the City’s potable water supply. Health Code §141.07 regulates building drinking water storage tanks as follows:

§141.07 (b) requires that owners and other persons in control of buildings serviced by water storage tanks annually inspect the physical condition of tanks and sample tank water for bacteriological quality.   

§141.07(c)  requires written reports of these inspections to be maintained for at least five years, and provided to the Department within five business days of a request by the Department. As of January 1, 2015, documentation of the inspections must be submitted to the Department, indicating whether the results of the inspection were satisfactory.

§141.07(d) requires a building owner to post a notice in a building informing tenants how to obtain the results of inspections.

§141.07(e) requires owners to immediately correct any unsanitary conditions identified in the water tank inspections; to clean the tank when indicated in accordance with Health Code §141.09; and to report any unsatisfactory findings in bacteriological sampling to the Department within 24 hours of receipt of such findings.

§141.07(f) provides that failure to submit reports to the Department when requested, or failure to submit the required annual documentation of an inspection, is prima facie evidence that no inspection was done at that time, and that separate violations may be issued for each year for which a required inspection report was not submitted.  

§141.09 (“Building Water Tank Cleaning, Painting and Coating”) requires that when water storage tanks are cleaned, painted  or coated, that work be done in accordance with industry standards, incorporating appropriate disinfection processes, by a duly qualified person or entity.  

Department rules.  In April 2015, the Department adopted a new Chapter 31 (“Drinking Water Tank Inspections”) of Title 24 RCNY.   Section 31-02(a) of this new chapter requires building owners or their agents to report the results of the annual inspections of their drinking water storage tanks to the Department no later than January 15th of the following year.   

Proposed Changes

The proposed rule amends Chapter 31 to establish a penalty schedule for sustained violations adjudicated at the Office of Administrative Trials and Hearings of the City of New York (OATH).

Notices of violations will be written, and penalties will be requested for each violation related to each drinking water tank in a building, for each year to which the violation applies.  A new section 31-03 provides that penalties set forth in Appendix 31-A must be imposed for sustained violations. Violations related to record keeping will be $250, to be doubled to $500 if the owner or other person served with a notice of violation or a summons fails to appear at a hearing and is found in default. Penalties for failure to conduct inspections and to clean tanks, report conditions or otherwise correct violations are established at $500, and doubled if the owner or other person served with a notice of violation or a summons fails to appear at a hearing and is found in default to $1,000.

Statutory Authority

These amendments to Chapter 31 of Title 24 of the Rules of the City of New York are authorized under §§ 556 and 1043 of the Charter; § 17-194 of the Administrative Code; and §141.07 of the Health Code.  Pursuant to § 556 of the Charter, the Department has jurisdiction to regulate all matters affecting health in the City, and specifically to supervise and regulate the purity and public health aspects of the water supplied in the City. Section 1043 of the Charter gives the Department rulemaking powers. Administrative Code § 17-194(b) and Health Code §141.07(b) authorize the Commissioner of the Department to adopt rules for annual water tank inspection recording and reporting.

Subject: 

Penalties for violation of requirements relating to building drinking water tanks

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

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

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 


Statement of Basis and Purpose

Background

Repetitive or prolonged underwater swimming or breath-holding can be deadly. During these activities the levels of oxygen and carbon dioxide in the body can drop, delaying the breathing reflex. Coupled with the lack of oxygen to the brain, a swimmer can lose consciousness and drown. This risk is heightened when breath-holding is coupled with intentional hyperventilation caused by repeatedly taking deep breaths, or when done as a competitive activity.

 

The Department has identified four drowning incidents in New York City and 12 other incidents in New York State between 1988 and 2011 that were confirmed or suspected to have been caused by a loss of consciousness underwater due to lack of oxygen caused by intentional hyperventilation or by competitive, repetitive or prolonged underwater swimming or breath-holding. Four of the sixteen swimmers involved died in incidents associated with intentional hyperventilation. Yet, many swimmers are unaware of the risks associated with these activities.[1]

 

The Department has also studied relevant policies, practices and guidance of multiple jurisdictions and organizations with respect to these specific swimming behaviors. Several jurisdictions require pool operators to post signs regarding the risks associated with prolonged breath-holding activities and extended underwater swimming. These signage requirements can be found in the rules of local governmental jurisdictions that regulate pool facilities and in the policies of large governmental entities and non-governmental organizations that own and operate pool facilities. Additionally, governmental agencies and safety awareness organizations have developed guidance and educational materials that promote swimming behavior rules and signage requirements to reduce the risks associated with these activities.

 

Article 165 of the New York City Health Code regulates bathing establishments, including swimming pools, spa pools and spray grounds. Health Code §165.41(u)(2)(K) was added by the Board of Health on September 10, 2013, and authorizes the Department to design and mandate posting of a pictogram that informs swimmers of the dangers of underwater breath-holding behaviors—taking deep breaths, one after the other, before swimming underwater—and of breath-holding contests, to warn and prevent swimmers from engaging in these deadly swimming activities.

 

Changes Being Made

 

            The Department is amending Chapter 1 of Title 24 of the Rules of the City of New York to require pool operators to post signs warning of the dangers of prolonged underwater breath-holding behaviors. Chapter 1 currently only requires signage about the risks of drinking alcohol during pregnancy in food service establishments. The Department has amended the Chapter so that its provisions now apply to various signs required by the Department in various settings. The requirement for a sign warning of use of alcohol in pregnancy is in section 1-01 of the Chapter, and the requirements for the new underwater breathing sign are in section 1-02 of the Chapter.  The Department has made minor changes in section 1-01 of the Chapter regarding alcohol use warning signs to make the section more consistent and readable, though the substantive requirements will remain unchanged from the former Chapter 1.

 

Pool operators are required to post signs with the specific design and warning text indicated in the proposed rule. 

 

Statutory Authority

 

 New York City Charter (“Charter”) §§ 556 and 1043 authorize these amendments.  Pursuant to § 556 of the Charter, the Department has jurisdiction to regulate all matters affecting health in the City of New York. Section1043 of the Charter gives the Department rulemaking powers. Section 165.41(u)(2)(K) of the New York City Health Code authorizes rulemaking related to posting warning signs at pools of the dangers of repetitive or prolonged underwater swimming or breath-holding.




[1] C. Boyd, et al., Fatal and nonfatal drowning outcomes related to dangerous underwater breath-holding behaviors – New York State, 1988-2011, CDC MMWR, May 22, 2015, 64, 19, 518-521.

 

 

Effective Date: 
Mon, 02/15/2016

Proposed Rules: Closed to Comments (View Public Comments Received:32)

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


Statement of Basis and Purpose


Statutory Authority

This amendment to Title 24 of the Rules of the City of New York (“RCNY”) is promulgated pursuant to sections 556 and 1043 of the New York City Charter (“the Charter”).  Section 556 of the Charter broadly authorizes the Department of Health and Mental Hygiene (“the Department”) to regulate all matters pertaining to the health of the City, including the City’s food supply.  Section 1043 grants the Department rule-making authority.

Background

A new §1352-e of the New York State Public Health Law (“PHL”) authorizes operators of food service establishments to allow companion or pet dogs to accompany owner-patrons in certain outdoor dining areas of their establishments, subject to control measures approved by a locality’s enforcement agency.

In the City of New York (“the City”), the Department is such enforcement agency, and the Commissioner of the Department is the “permit issuing official” designated in the New York State Sanitary Code (10 NYCRR Chapter 1) to enforce provisions of the Sanitary Code applicable to the operation of food service establishments.  Food service establishments in the City are also subject to provisions of the New York City Health Code, Chapter 23 (Title 24 of the RCNY) and various provisions of the New York City Administrative Code and the State Public Health Law.  The Department’s Division of Environmental Health enforces the provisions of the Administrative, Sanitary and Health Codes and Department rules applicable to food service establishments.

PHL §1352-e overrides New York City Health Code §81.25 and New York State Sanitary Code §14-1.183, which together prohibit any live animals other than service animals and food fish in tanks in such establishments.  PHL §1352-e authorizes the owners and operators of food service establishments to decide whether to allow  dogs other than service animals in their establishments  provided that the “owner ensures compliance with local ordinances related to sidewalks, public nuisance and sanitation; and … such other control measures approved by the enforcement agency are complied with.”   These proposed amendments to the Department’s rules would constitute the “control measures approved by the enforcement agency.”

Proposed Rule

These control measures are necessary to safeguard public health and safety. The proposed rule amends Title 24 of the Rules of the City of New York (“RCNY”) to: 

  • Define terms used in the Chapter in accordance with definitions used in the New York City Health Code and other applicable law;
  • Authorize owners of food service establishments to continue to prohibit dogs;
  • Require certain policies to be established if owners allow dogs in their establishments, such as only licensed and currently vaccinated dogs may enter establishments;  
  • Require signage as to whether dogs are being allowed;
  • Specify how sanitary conditions are to be maintained and require fencing; and
  • Provide that any violation of this Chapter will be cited as a violation of and bear the same penalties as a violation of §81.25 of the Health Code.

 

 

Subject: 

The Department of Health and Mental Hygiene is proposing to add a new Chapter 32 (Dogs in Outdoor Dining Areas) to Title 24 of the Rules of the City of New York. A new §1352-e of the New York State Public Health Law (“PHL”) authorizes operators of food service establishments to allow companion or pet dogs to accompany patrons in certain outdoor dining areas of food service establishments subject to control measures approved by a locality’s “enforcement agency.”

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 8th Floor, Room 8-25
Queens, NY 11101-4132
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:28)

Agency:
Comment By: 
Monday, January 4, 2016
Proposed Rules Content: 


Statement of Basis and Purpose

 

Background

Legionellosis is an illness that must be reported to the Department in accordance with New York City Health Code §11.03 and State Sanitary Code (SSC) §2.1 (found in title 10 of NYCRR). The more serious form of legionellosis is a pneumonia known as Legionnaires’ disease (LD); a less serious form, Pontiac fever, is a flu-like illness.  LD has case fatality rate of 5-30%.  The US Centers for Disease Control and Prevention (CDC) estimates that there were between 8,000 and 18,000 cases of LD in the United States annually, and that more than 10% of cases are fatal.[1]

 

People are exposed to Legionella through the inhalation or aspiration of aerosolized water (droplets or mist) that contain the bacteria.  Person-to-person transmission of Legionella has not been demonstrated. Susceptible people at higher risk for LD include the elderly, people who are immune compromised or have other medical conditions, and heavy smokers.  In New York City, there were 301 cases of LD in 2013 and 225 cases in 2014.  Between 2000 and 2014 there were, on average, 165 confirmed cases a year with the number of annual cases ranging from 44 to 301.  This year, there have been 374 confirmed cases of LD as of October 7, 2015.  In July and August, the Department investigated an unusually large cluster of 133 cases of LD that occurred in the Bronx and resulted in 16 deaths.[2] The Department determined that this outbreak was associated with aerosolized Legionella bacteria emanating from one or more building cooling towers to which susceptible persons were exposed.  Responding to the outbreak, the City Council and Mayor enacted Local Law 77 of 2015.  At the same time, the State Public Health and Health Planning Council (PHHPC) adopted a new Part 4 of the State Sanitary Code (“SSC”), found in 10 NYCRR Chapter 1, on an emergency basis, citing other instances of LD outbreaks and fatalities occurring in other parts of the State that are believed to be associated with cooling towers.[3]

 

Both Local Law 77 and the SSC §4.2(c) define a cooling tower as “a cooling tower, evaporative condenser or fluid cooler that is part of a recirculated water system incorporated into a building’s cooling, industrial process, refrigeration or energy production system.”  As the PHHPC’s Emergency Justification for Part 4 of the State Sanitary Code states:

 

Because water is part of the process of removing heat from a building, cooling towers require treatment with biocides – chemicals that kill or inhibit bacteria (including Legionella)—as means of controlling bacterial overgrowth. Overgrowth may result in the normal mists ejected from the tower having droplets containing Legionella.

 

Local Law 77 added a new Article 317 to Title 28 of the Administrative Code that required owners of cooling towers to register them with the Department of Buildings (“DOB”) by September 17, 2015. Towers must be inspected, tested, cleaned and disinfected in accordance with new Administrative Code §17-194.1 and rules adopted by the Department.  Owners and operators of cooling towers must annually certify to DOB that their cooling towers have been inspected, tested, cleaned and disinfected and that a management and maintenance program has been developed and implemented in accordance with Administrative Code §17-194.1.  Statewide, including in New York City, owners of all cooling towers must also comply with SSC Part 4, which includes registration with and reporting requirements to the State Department of Health. 

 

This proposed new Chapter sets forth specific requirements for the operation and maintenance of cooling towers in New York City comply with and further those contained in Part 4 of the SSC.  The Chapter’s provisions that are equivalent to the SSC are noted below. This Chapter is organized in a differently than the SSC requirements; more terms are defined in this Chapter and more detailed instructions for management and maintenance are provided than those contained in SSC Part 4 to facilitate compliance with both the City and State rules and requirements. 

 

Proposed Changes

The Department is proposing to add a new Chapter 8 to Title 24 of the Rules of the City of New York to include:

            §8-01   Scope and applicability: applicable to all owners and operators of buildings and other premises that are equipped with cooling towers.

            §8-02   Definitions: to facilitate compliance with and enforcement of these rules, more terms are defined in this Chapter than in the corresponding sections of either Administrative Code or SSC Part 4.

            §8-03   Maintenance program and plan: the requirements of this section exceed those of SSC Part 4, including specific routine maintenance tasks; identification of persons responsible for various functions; identifying system components; and establishing a system risk management assessment to identify areas that may create problems and lead to proliferation of Legionella bacteria.

            §8-04   Process control measures: this section establishes requirements for routine monitoring, to be conducted at least weekly by a “responsible person” under the supervision – remote or on-site -- of the “qualified person” identified in SSC Part 4, and for compliance inspections, to be conducted at least every 90 days, by the qualified person. It specifies standards for maintenance, cleaning, and parts replacement; and requires installation of high efficiency drift eliminators in all new and retrofitted cooling tower systems and in existing ones, where practicable.

            §8-05   Water treatment: this section specifies requirements for automatic treatments, use of chemicals and biocides, and monitoring water quality characteristics/parameters, and establishes a schedule for sampling for Legionella and other bacteria including requiring additional sampling when certain events occur.  This section also mandates the use of certain qualified laboratories for analysis and requires reporting levels of Legionella at a certain magnitude to the Department within 24 hours of obtaining test results; and specifies corrective actions for various levels of bacteria. Although the 2014 New York City Plumbing Code Appendix C authorizes use of rainwater or recycled water as makeup water for cooling towers, it does not require disinfection for Legionella bacteria before use. These rules prohibit such use unless owners use additional control measures approved by the Department that protect against cooling tower system contamination since the Department believes that this water may not meet public health standards and may tend to support microbial growth.

            §8-06 System shutdown and start-up; commissioning new cooling towers: this section sets forth requirements for pre-seasonal cleaning and disinfection and for new cooling towers being placed into use.

            §8-07 Records: this requires the maintenance of records of all activities and that such records be made available for immediate inspection by the Department at the premises where the cooling tower is installed.

            §8-08 Modification: authorizes the Commissioner to modify the application of a provision of these rules where compliance imposes an undue hardship and would not otherwise be required by law, provided that the modification does not compromise public health concerns.

            §8-09 Penalties: establishes a schedule of penalties for initial and subsequent violations within the limits set forth in Administrative Code §17-194.1.    

 

Statutory Authority

This amendment to Title 24 of the Rules of the City of New York (“RCNY”) is promulgated pursuant to Local Law 77 of 2015, and sections 556 and 1043 of the New York City Charter (“the Charter”).  Section 556 of the Charter broadly authorizes the Department of Health and Mental Hygiene (“the Department”) to regulate all matters pertaining to the health of the City.  Section 1043 grants the Department rule-making authority.  Local Law 77 of 2015, enacted August 18, 2015, added a new §17-194.1 to the New York City Administrative Code (“Administrative Code”) requiring owners of buildings to clean and disinfect cooling towers and authorizing the Department to adopt rules to implement these requirements. Many of Local Law 77’s substantive provisions for inspection and disinfection become effective upon the promulgation of these Department rules. 

 

 

 




[3] The State’s emergency rules originally were scheduled to expire November 18, 2015 but have been reissued, and permanent rules are expected.

 

 

Subject: 

Proposed resolution to add new Chapter 8 (Cooling Towers) to Title 24 of the Rules of the City of New York to establish rules for maintenance of cooling towers to minimize potential contamination by Legionella bacteria to prevent outbreaks of Legionnaires’ disease, a type of pneumonia with a high case fatality rate.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street 14th Floor, Room 14-43
Queens, NY 11101-4132
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:1)

Agency:
Comment By: 
Tuesday, November 24, 2015
Proposed Rules Content: 

 

Statement of Basis and Purpose

Background

Repetitive or prolonged underwater swimming or breath-holding can be deadly. During these activities the levels of oxygen and carbon dioxide in the body can drop, delaying the breathing reflex. Coupled with the lack of oxygen to the brain, a swimmer can lose consciousness and drown. This risk is heightened when breath-holding is coupled with intentional hyperventilation caused by repeatedly taking deep breaths, or when done as a competitive activity.

 

The Department has identified four drowning incidents in New York City and 12 other incidents in New York State between 1988 and 2011 that were confirmed or suspected to have been caused by a loss of consciousness underwater due to lack of oxygen caused by intentional hyperventilation or by competitive, repetitive or prolonged underwater swimming or breath-holding. Four of the sixteen swimmers involved died in incidents associated with intentional hyperventilation. Yet, many swimmers are unaware of the risks associated with these activities.[1]

 The Department has also studied relevant policies, practices and guidance of multiple jurisdictions and organizations with respect to these specific swimming behaviors. Several jurisdictions require pool operators to post signs regarding the risks associated with prolonged breath-holding activities and extended underwater swimming. These signage requirements can be found in the rules of local governmental jurisdictions that regulate pool facilities and in the policies of large governmental entities and non-governmental organizations that own and operate pool facilities. Additionally, governmental agencies and safety awareness organizations have developed guidance and educational materials that promote swimming behavior rules and signage requirements to reduce the risks associated with these activities.

 Article 165 of the New York City Health Code regulates bathing establishments, including swimming pools, spa pools and spray grounds. Health Code §165.41(u)(2)(K) was added by the Board of Health on September 10, 2013, and authorizes the Department to design and mandate posting of a pictogram that informs swimmers of the dangers of underwater breath-holding behaviors—taking deep breaths, one after the other, before swimming underwater—and of breath-holding contests, to warn and prevent swimmers from engaging in these deadly swimming activities.

 Proposed Changes

             The Department is proposing to amend Chapter 1 of Title 24 of the Rules of the City of New York to require pool operators to post signs warning of the dangers of prolonged underwater breath-holding behaviors. Chapter 1 currently only requires signage about the risks of drinking alcohol during pregnancy in food service establishments. The Department is proposing to reorganize this Chapter so that its provisions will apply to various signs required by the Department in various settings. The requirement for a sign warning of use of alcohol in pregnancy is proposed in section 1-01 of the Chapter, and the requirements for the new underwater breathing sign are proposed in section 1-02 of the Chapter.  The Department is proposing minor changes in section 1-01 of the Chapter regarding alcohol use warning signs to make the section more consistent and readable, though the substantive requirements will remain unchanged from the current Chapter 1.

 Pool operators will be required to post signs with the specific design and warning text indicated in the proposed rule. 

 Statutory Authority

 New York City Charter (“Charter”) §§ 556 and 1043 authorize these amendments.  Pursuant to § 556 of the Charter, the Department has jurisdiction to regulate all matters affecting health in the City of New York. Section1043 of the Charter gives the Department rulemaking powers. Section 165.41(u)(2)(K) of the New York City Health Code authorizes rulemaking related to posting warning signs at pools of the dangers of repetitive or prolonged underwater swimming or breath-holding.

 


[1] C. Boyd, et al., Fatal and nonfatal drowning outcomes related to dangerous underwater breath-holding behaviors – New York State, 1988-2011, CDC MMWR, May 22, 2015, 64, 19, 518-521.

 

Subject: 

Proposed resolution to amend Chapter 1 (Posting Regulations for Vendors of Alcoholic Beverages) of Title 24 of the Rules of the City of New York to require signage at swimming pools that indicates competitive breath holding is prohibited and warns swimmers of the risks involved.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street 14th Floor, Room 14-31 Queens
New York, NY 11101-4132
Contact: 

Svetlana Burdeynik at resolutioncomments@health.nyc.gov

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Friday, October 23, 2015
Proposed Rules Content: 

Statement of Basis and Purpose

 

Background and New Requirements

           

  1. Section 201.07(a) of Article 201 (Confidential medical report of birth; not subject to compelled disclosure or inspection), Section 203.07(a) of Article 203 (Confidential medical report of spontaneous termination of pregnancy and certificate of induced termination of pregnancy; not subject to compelled disclosure or inspection), Sections 205.07(a) and 205.07(c) of Article 205 (Confidential medical report of death; not subject to compelled disclosure or inspection)          

The Department proposes to amend Section 201.07(a) of Article 201, Section 203.07(a) of Article 203, and Sections 205.07(a) and 205.07(c) of Article 205 of the Health Code, to authorize, in addition to the Commissioner, the Commissioner’s designee to approve inspection of confidential medical reports of birth, spontaneous terminations of pregnancy (miscarriages), and death.  This will ensure greater consistency among Health Code provisions requiring the approval of the Commissioner or the Commissioner’s designee to grant requests to inspect these documents and make it easier to process requests requiring the Commissioner’s approval.

   2.   Section 207.01(a) and 207.01(c) (Correction of records; application and approval; accompanying documents)

The Department proposes to amend Section 207.01(a) of Article 207 of the Health Code to allow the Department, consistent with its current ability to correct confidential medical reports of death, to correct confidential medical reports of birth and confidential medical reports of spontaneous terminations of pregnancy (miscarriages) based on new or corrected information it receives from medical facilities. Furthermore, the Department proposes to remove the reference to deaths occurring on or after January 1, 2010, to be consistent with Section 205.07(a). 

The Department also proposes to amend Section 207.01(c) of Article 207 of the Health Code to allow funeral directors and undertakers to make certain corrections to death certificates using the Electronic Death Registration System (EDRS) without first obtaining the Department’s approval. This will expedite the processing of death records and burial permits. Funeral directors and undertakers will be able to correct only the name of the funeral establishment or the method, place (e.g., cemetery or crematory), location (e.g., city, state, or foreign country), or date of disposition (e.g., burial, cremation or transport out of the city). To maintain record integrity, the EDRS will not allow funeral directors and undertakers to change fields like date of birth, usual residence (e.g., state, county, city, town, or street number of residence) and Social Security number.

    3.  Section 207.13 (Fees for vital statistics services)

The Department proposes to amend Section 207.13 of Article 207 of the Health Code to provide specific processes for verifying information contained in birth certificates, death certificates, and certificates of spontaneous termination of pregnancy (miscarriages). The Department is proposing that, in addition to agencies of the City or State of New York, other government bodies, annuity companies, medical providers and attorneys representing estates be able to verify facts contained in the Department’s records. Verifications would be provided through the National Association for Public Health Statistics and Information System (NAPHSIS) Electronic Verification of Vital Events (EVVE), and entities seeking verification must be authorized users of the system.

Statutory Authority

             These amendments to the New York City Health Code (“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 amend sections 201.07, 203.07 and 205.07 of the Articles of the New York City Health Code regarding Vital Statistics and medical records.

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

 

Statutory Authority

 

These amendments to the Health Code are promulgated pursuant to sections 558 and 1043 of the Charter.  Sections 558(b) and (c) of the Charter empower 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 556 of the Charter authorizes the Department to supervise and regulate the City’s food supply.  Section 1043 grants the Department rule-making authority. 

 

Background

 

The Commissioner of the Department is the “permit issuing official” designated in the State Sanitary Code (10 NYCRR Chapter 1, Subpart 14-1) to enforce provisions of the Sanitary Code applicable to the operation of food service establishments in New York City.  In the City, food service establishments are also subject to provisions of the City’s Health Code and to Chapter 23 of the Department’s rules, found in Title 24 of the Rules of the City of New York.  The Department’s Division of Environmental Health enforces the provisions of the State Sanitary Code and the City’s Health Code, as well as the Department’s rules applicable to such establishments.  

 

In 2006, the Board adopted a Health Code provision requiring certain restaurants to post calorie information in an effort to combat the emerging epidemic of obesity and associated diseases, including, type 2 diabetes.  After that provision was found to be unenforceable by a federal court, the Board adopted the current version of section 81.50 on January 22, 2008.  The authority of the Board to require that chain restaurants provide this information to their customers was upheld by the courts (N.Y. State Rest. Ass'n v. N.Y. City Bd. of Health, 556 F.3d 114 (2d Cir. 2009)) and, in 2008, the City became the first jurisdiction in the United States to require chain restaurants to post calorie information on menus and menu boards.

 

Other jurisdictions around the country soon followed by enacting similar provisions and, in 2010, Congress included language in the Patient Protection and Affordable Care Act (the ACA) which mandated nationally that chain restaurants post calorie information and have other nutrition information available on premises for their customers.  (Pub.L. No. 111-148 §4205 (2010)).  The ACA directed the FDA to adopt regulations implementing nutrition labeling for restaurants that include calorie information.  Those regulations were published in December, 2014 and will take effect on December 1, 2015.  (21 CFR 101.11).  Although they will be in effect, the FDA recently announced that it will be issuing additional guidance for covered establishments which will not have to comply with the rules until December 1, 2016.  (80 FR 39675).  Establishments in the City that are covered by these federal regulations will be required to comply with them.

 

Although the federal requirements for menu labeling are largely similar to the requirements in the Health Code, there are some differences.  Restaurants with 20 or more locations nationally will be subject to the federal regulations, while the current Health Code requirements apply to restaurants with 15 or more locations nationally. For example, restaurants covered by the new federal regulations will have to include a statement on their menus advising patrons about the number of calories that should be consumed daily.  These restaurants also will have to advise patrons that additional nutrition information is available on premises for anyone who wishes to see it.  The Department can enforce posting requirements in the Health Code that are identical to the federal requirements and will continue to enforce such provisions for all restaurants with 15 or more locations nationally after the federal regulations take effect on December 1, 2015.  Where the Health Code currently requires a posting that the federal regulations will not, the Department will be preempted from enforcing the Health Code requirements in restaurants subject to the federal regulations.

 

Accordingly, the Health Code section 81.50 is being repealed and reenacted so that its requirements are identical to the federal requirements.  In order to allow covered establishments to benefit from the additional time allowed by the FDA for compliance, the effective date of the reenacted section 81.50 is being made effective on December 1, 2016.  Restaurant-like establishments, which are not yet required to provide calorie information, will benefit from the FDA’s guidance and this additional time as they plan to come into compliance.  Chain restaurants that currently post calorie information will continue to do so pursuant to the current version of section 81.50.  They, however, will not be required to post the additional signs and provide the additional nutrition information required by federal law, and incorporated into the new version of section 81.50, until December 2016.  In response to a comment, the definition of “similar food retail establishment” has been clarified.

 

 

Effective Date: 
Thu, 12/01/2016

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 

Statement of Basis and Purpose

 

Statutory Authority

Section 558 of the Charter authorizes the Board to amend the Health Code and to include in the Health Code all matters to which the authority of the Department of Health and Mental Hygiene (“the Department”) extends.  Section 556 of the Charter gives the Department jurisdiction to regulate all matters affecting health in New York City and makes the Department responsible for controlling disease and regulating the City’s food supply.

 

The regulation of food service establishments (“FSEs”), a category that includes both quick-service and sit-down restaurants, is a core public health function. The Department issues permits to and inspects FSEs in New York City to ensure safe and healthy dining options.

 

The Board is amending the Health Code to require FSEs that are part of chains with more than 15 locations across the nation to add a warning label to menus and menu boards, identifying food items that contain very high levels of sodium.   

 

Sodium and Cardiovascular Disease

Cardiovascular disease is the leading cause of death in New York City, claiming nearly 17,000 lives in in 2013.[i] Hypertension, or high blood pressure, is a major risk factor for heart disease and stroke. A 2013 survey conducted by the Department revealed that 29.1% of adult New Yorkers had been told they had hypertension by a healthcare professional.[ii] Although hypertension is a complex vascular disease with many origins, a well-established connection between sodium intake and blood pressure has been documented in the scientific literature. Specifically, there is a continuous relationship between sodium and blood pressure – typically, the higher an individual’s sodium intake, the higher the individual’s blood pressure.[iii] In addition, disparities exist in terms of sodium intake, hypertension control, and related risk of disease – for example, premature stroke mortality is nearly three times as high among non-Hispanic Blacks in NYC compared to Whites and Asians.

 

New Yorkers Consume Too Much Sodium

Americans consume excessive amounts of sodium.  More than 95% of American adults report consuming more than 2300 mg of sodium per day, the maximum recommended daily limit.[iv],[v]  On average, American adults consume approximately 3,400 mg of sodium daily, well above the recommended limit.[vi]  Sodium overconsumption is a reality in NYC as well. A 2010 study conducted found that average daily sodium consumption among New Yorkers was more than 3,200 mg.[vii] The NYC study also revealed disparities in consumption with higher sodium intake among non-Hispanic Blacks and Hispanics compared to non-Hispanic Whites.[viii]

 

Restaurant Food is a Primary Source of Sodium

The contemporary food retail environment is an important contributor to the epidemic of sodium overconsumption. Despite myriad efforts and initiatives to curb sodium consumption by public health and other organizations, the sodium content of fast food, in particular, appears to be on the rise. A 2013 study examining the change in the sodium content of menu offerings at 8 leading fast food chains found that the mean sodium content of menu items had increased more than 23% between 1997 and 2010.[ix] Heavily marketed and competitively priced, the food available in many restaurants contains very high levels of sodium. A 2014 study analyzing the nutritional profile of more than 2,500 items from chain restaurants in and near Philadelphia, Pennsylvania, found that adult meals contained an average of 3,512 mg of sodium, more than 50% above the daily recommended intake limit.[x] A similar study using receipt data collected in 2007 from over 6,500 transactions occurring at fast food chain outlets in NYC demonstrated that the sodium content of 20% of meals exceeded the daily recommended sodium intake limit.[xi] Today, nearly one-third of the sodium consumed by Americans comes from restaurant food.[xii]

 

New Yorkers Need to be Warned about High Sodium Foods

An additional factor that contributes to sodium overconsumption is the lack of awareness regarding the risks related to excess sodium intake. Consumers typically underestimate the sodium content of restaurant food[xiii] and are generally unaware of both sodium intake recommendations and the major sources of dietary sodium.[xiv] In addition, menu items that are promoted as healthy options, like salads, can contain high levels of sodium (Applebee’s Grilled Shrimp ‘n Spinach Salad with regular dressing contains 2,990 mg of sodium, Baja Fresh Mexican Grill’s Shrimp Tostada Salad contains nearly 2,500 mg of sodium), putting even the most health-conscious consumers at risk. Differences in formulation that result in similar foods containing highly variable amounts of sodium present another obstacle to consumers trying to comply with sodium intake recommendations. For example, Panera Bread offers a Smokehouse Turkey® Panini that contains 2,590 mg of sodium and a Roasted Turkey & Avocado BLT Sandwich that contains 960 mg of sodium.

 

It is imperative that consumers are readily able to identify menu items containing the recommended daily limit of 2,300 mg or more of sodium, because these items are clearly incompatible with recommendations regarding sodium consumption. The proposed consumer warning label will provide consumers with information about food items that contain exceedingly high sodium levels and will empower them to make well-informed decisions when making choices for themselves and their family members in the food retail environment.

 

Amendments to Article 81

Accordingly, Health Code Article 81 is being amended to add a new section 81.49 requiring chain FSEs (those with 15 or more locations nationally) to warn consumers about any menu items containing 2,300 mg of sodium or more.[xv] The schedule of section headings in Article 81 is also being amended to include the new section. 

 

These amendments affect FSEs with 15 or more locations nationally, capturing leading fast-food and fast-casual restaurants, which can easily make sodium information available.  The definition of a covered establishment in paragraph (2) of subdivision (a) has been made consistent with the definition in section 81.50.  In response to a comment, the definition for food with high sodium content in paragraph (3) of subdivision (a) has been clarified.

 




[i]. Zimmerman R, Li W, Lee E, Lasner-Frater L, Van Wye G, Kelley D, Kennedy J, Maduro G, Sun Y. Summary Of Vital Statistics, 2013: Mortality. New York, NY: New York City Department Of Health and Mental Hygiene, Office Of Vital Statistics, 2015.

[ii] NYC DOHMH  Community Health Survey, 2013

[iii] U.S. Department of Agriculture and U.S. Department of Health and Human Services. Dietary Guidelines for Americans, 2010. 7th Edition, Washington, DC: U.S. Government Printing Office, December 2010.

[iv] Centers for Disease Control and Prevention. Trends in the Prevalence of Excess Dietary Sodium Intake – United States 2003-2010. MMWR 2013;62:1021-1025.

[v] U.S. Department of Agriculture and U.S. Department of Health and Human Services. Dietary Guidelines for Americans, 2010. 7th Edition, Washington, DC: U.S. Government Printing Office, December 2010.

[vi] Centers for Disease Control and Prevention. Trends in the Prevalence of Excess Dietary Sodium Intake – United States 2003-2010. MMWR 2013;62:1021-1025.

[vii] Angell SY, Yi S, Eisenhower D, Kerker BD, Curtis CJ, Bartley K, Silver LD, Farley TA. Sodium Intake in a Cross-Sectional, Representative Sample of New York City Adults. American Journal of Public Health. 2014;104(12):2409-16.

[viii] Angell SY, Yi S, Eisenhower D, Kerker BD, Curtis CJ, Bartley K, Silver LD, Farley TA. Sodium Intake in a Cross-Sectional, Representative Sample of New York City Adults. American Journal of Public Health. 2014;104(12):2409-16.

[ix] Rudelt A, French A, Harnack L. Fourteen-year trends in sodium content of menu offerings at eight leading fast-food restaurants in the USA. Public Health Nutrition. 2013;17(8):1682-88.

[x] Auchincloss AH, Leonberg BL, Glanz K, Bellitz S, Ricchezza A, Jervis A. Nutritional Value of Meals at Full-service Restaurant Chains. J Nutr Educ Behav. 2014;46:75-81.

[xi] Johnson CM, Angell SA, Lederer A, Dumanovsky T, Huang C, Bassett MT, Silver LD. JAMA Internal Medicine. 2010;170(8):732-34.

[xii] Drewnowski A, Rehm CD. Sodium Intakes of US Children and Adults from Foods and Beverages by Location of Origin and by Specific Food Source. Nutritients. 2013;5:1840-55.

[xiii] Burton S, Creyer E, Kees J, Huggins K. Attacking the obesity epidemic: The potential health benefits of providing nutrition information in restaurants. American Journal of Public Health. 2006;96:1669–1675.

[xiv] Sarmugan R, Worsley A. Current Levels of Salt Knowledge: A Review of the Literature. Nutrients. 2014;6:5534-559.

[xv] Food Labeling; Nutrition Labeling of Standard Menu Items in Restaurants and Similar Retail Food Establishments. Final Rule, 79 (230) Fed Reg 71156-71259. (December 1, 2014) (to be codified 21 CFR pt 11 and 101)

 

Effective Date: 
Tue, 12/01/2015

Adopted Rules: Closed to Comments

Adopted Rules Content: 


Statement of Basis and Purpose


Statutory Authority

These amendments to the Health Code are promulgated pursuant to sections 558 and 1043 of the Charter.  Sections 558(b) and (c) of the Charter empower 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 of the Charter grants the Department rule-making authority. The amendment is also made pursuant to the Department’s historic power to supervise the control of communicable disease in New York City. 

Background

The Charter provides the Department with broad jurisdiction to protect and promote the health of all New Yorkers. The control of communicable disease is a core public health function.  At its meeting on September 13, 2012, the Board of Health voted to amend Article 181 by adding a requirement that, prior to a circumcision involving direct oral suction (“DOS”) of infants less than 60 days of age, the person performing the circumcision obtain the written consent of a parent. In the consent, the parent acknowledges that he or she is aware that the Department recommends DOS, also known as metzitzah b'peh, not be performed because of the risk of brain damage and death.

 Circumcisions that include DOS involve direct contact between the mouth of the practitioner designated by the religious community to perform a circumcision, known as a mohel, and the infant’s circumcision wound. The opposition of some members of the Orthodox Jewish community who practice DOS has made enforcement of the consent requirement difficult. Since the provision went into effect, there have been six cases of herpes simplex-1 (HSV-1) infection reported in infants following DOS in New York City, including four cases reported in 2014.  In two of these six cases, the mohel who was associated with the case was identified in the course of the Department’s case investigation, and a signed consent form was provided by the mohel in one of these two cases. The limited effectiveness of the consent requirement at this time prompted the department to consider alternative approaches to address this problem.

In February, 2015, the Mayor announced a new strategy to address this problem.  As part of this approach, the Department will work cooperatively with leaders of the Orthodox Jewish community to educate parents about the risks of DOS. These educational efforts will include working with hospitals throughout the City to distribute educational materials about the risks of DOS to the parents of all newborn infant boys, as well as making this information available at other health care settings, such as obstetric and pediatric practices.  These materials, which include a Department telephone number for parents who may have questions, have been translated into Yiddish and are being distributed at hospitals and medical offices that service communities where DOS is practiced.  The Department’s educational initiative is more likely to succeed if the Department can restore a strong relationship with these communities.  Accordingly, the Board is repealing section 181.21 of the Health Code.   

 

 

Effective Date: 
Sat, 10/17/2015

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

 

Background

             The Department of Health and Mental Hygiene (the Department) regulates food service establishments, which include a broad range of businesses and not-for-profit operations that provide food in individual portion sizes for consumption by members of the public, and enforces Article 81 (Food Preparation and Food Establishments) of the New York City Health Code (the Health Code).  Health Code §81.51 authorizes the Commissioner of the Department to promulgate rules for establishing a system for grading and classifying inspection results. Chapter 23 (Food Service Establishment Sanitary Inspection Procedures and Letter Grading) of Title 24 of the Rules of the City of New York implements such a system, and consists of rules as well as three appendices:  Appendix 23-A (Food Service Establishment Inspection Worksheet); Appendix 23-B (Food Service Establishment Inspection Scoring Parameters-A Guide to Conditions) and Appendix 23-C (Food Service Establishments and Non Retail Food Service Establishments Penalty Schedule).

Reason for making changes

At its March 10, 2015 meeting, the New York City Board of Health amended Article 81, reorganizing and renumbering several sections. Renumbering the Health Code sections means that certain violations listed and described in Appendix 23-C must also be renumbered, and in a few cases the brief descriptions of violations updated to accurately reflect these amendments to the Health Code.  

Changes made   

All references are to the Health Code or, where indicated, to the State Sanitary Code (SSC), except as described below.  

The following is the list of the scored violations where the violation number and/or description must be changed:

 

Violation   Current                 Renumbered Citation

Code          Citation                   and/or Amended Description    

02A      81.09(a)(1) or (5)         81.09(c)(1) and 81.09(c )(5) – separates the violations for poultry and

poultry stuffings from those for stuffed and tenderized meats and meat stuffings      

02A      81.09(a)(2)                  81.09(c)(2) – pork heating temperature changed from 155 degrees F to 150 degrees F

02A      81.09(a)(3)                  81.09(c)(3)

02A      81.09(a)(4)                  81.09(c)(4)

02A      81.09(a)(6)                  81.09(c)(6)

02A      81.09(a)                      81.09(c) – other food heating temperature changed from 145 degrees F to 140 degrees F

02C     81.09(a)(7)                   81.09(d)

02D      81.09(a)(10)               81.09(d)(2)

02E       81.09(g)(5)                 81.09(f)(5)

02F       81.09(d)                     81.11

02G      81.09(c)                      81.09(a)(3)

02G      81.09(b)                     81.09(a)(2)

02I        81.09(f)                      81.09(e)(2)

03B      81.04(c)                       same – adds term “required” to describe shellfish tags

03C     81.04(c)                       same – deletes violation for “source of eggs”

03E      SSC14-1.121               NYCHC 141.13  

03E      81.20(d)                      81.20(c) – spelling error “impropse” corrected to “improper”

03F      81.07(K)                      81.07(k) – lower case subdivision referenced

03G      81.07 (a)(5)                81.07(a)(4)

04C     81.07(J)                       81.07 (j) – lower case subdivision referenced

04E       81.23(d)(3)                same  – deletes pesticides not properly “stored” and moves to 4E below;

04E       SSC14-1.60              deleted; duplicates a general violation 08C  

04H     81.07(a)(3)                  81.07 (a)(2)

04J      81.09(h)                       81.09(g) – deletes “used”)

05A      81.09(b) and (c)          81.09 (b)

05H     81.29(a)                       81.29

06B      81.13(g)                       same – adds “e-cigarettes” to smoking prohibition for food workers

06D     81.27(c)                       81.27(b)

06F      81.27(d)                       81.27(c) 

08B      81.24(a)(1)                  81.24(a)

08B      81.24(b)                      81.24(c)

08C     SSC14-1.60 (e)             81.23(d)(4)

08C     81.23(e)                       81.17(g)

09B      81.09(g)                       81.09(f)

10B      81.20(c)                      81.20(b) – term “maintain” corrected to read “maintained”

10E      SSC14-1.44                81.18(a)

10H     81.29(a)(1)                  81.29(a)

10H     81.29(a)(2)                  81.29(a)

10H     81.29(a)(3)                  81.29(b)(1)

10H     81.29(a)(4)                  81.29(b)(2)

10H     81.29(a)(2)                  81.29(a) – test kit for manual/chemical sanitizing

10H     81.29(a)(4)                  81.29(b)(2) – test kit for mechanical/chemical sanitizing

10I       SSC 14-1.110(e)         81.07(o)

In the list of unscored violations, a new violation code 22G containing a penalty for violations of Administrative Code §16-329 (c) which prohibits use of expanded polystyrene single service articles, is being added.   

One person commented on the brief descriptions of the violations during the comment period for this Rule, but no changes have been made to the penalties originally published or to the violations as described.  

In addition, the original publication of Appendix 23-C in June 2014 indicated, in the Statement of Basis and Purpose, that 

Eventually the Department will be proposing rules fixing penalties for all violations that are adjudicated at the Health Tribunal. Chapter 23 is being amended first to add a new Appendix C fixing penalties for any violation that can be cited against a food service establishment on  inspection because the majority of notices of violation heard at the Health Tribunal are against food service establishments. There are violations listed in Appendix C, however, that are cited more broadly than just against food service establishments.  Examples include failing to prevent a nuisance in violation of Health Code §§3.07 or 3.09, or obstructing an inspection in violation of Health Code §3.15(a).  The penalties proscribed for these violations … will apply in all notices of violation adjudicated at the Health Tribunal and not just when the respondent is a food service establishment. 

(emphasis added) 

However, a statement of this intent was not explicitly included in the published tables at that time. To  further clarify that penalties listed for violations of Article 3 of the Health Code must be applied to all sustained violations that are adjudicated at the OATH Health Tribunal, not just those cited and issued to food service establishments, a note to this effect is now being added to Appendix 23-C. 

The amendments are as follows.

“Shall” and “must” denote mandatory requirements and may be used interchangeably in the rules of this Department, unless otherwise specified or unless the context clearly indicates otherwise.

Deleted material is in [brackets]; new text is underlined.

 

 

Effective Date: 
Sat, 08/08/2015

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