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

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

Statement of Basis and Purpose

 

 

Statutory Authority

 

These amendments to the New York City Health Code (the Health Code) are promulgated pursuant to §§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 rule-making authority. 

 

Background

 

In 1971, the Board of Health amended New York City Health Code Section 207.05 of Article 207 to allow the Department to file a new birth certificate for a person who had legally changed his or her name and who had undergone “convertive” surgery.  The Department has interpreted the requirement for convertive surgery in paragraph (a)(5) of Section 207.05 to mean genital surgery.  As a result, the Department has required transgender applicants who desire a new birth certificate with corrected gender to submit a surgical operative record including the date of the operation; a post-operative examination report signed by a physician attesting to the applicant’s surgical change of sex; and a post-operative psychiatric evaluation signed by a psychiatrist or clinical psychologist.  Until December 2006, the Department issued new birth certificates listing the applicant’s new name, but omitting reference to any gender, to anyone who submitted acceptable documentation.  Since December 2006, when the Board of Health approved a change to the birth certificate form, the Department has provided new birth certificates that list not only an applicant’s new name but also the corrected sex designation.  Applicants are still required, however, to obtain a court ordered name change and undergo convertive surgery. 

 

This amendment eliminates the requirement that an individual must obtain a court ordered name change and undergo convertive surgery.

 

Other jurisdictions similarly have amended their laws to allow transgender people to obtain new birth certificates with corrected sex on birth certificates without having to undergo surgery.[1]  In May 2014, New York State Department of Health changed its procedures for correcting gender on birth certificates in the rest of the state (outside of New York City).  For people born in New York outside of New York City, the State Department of Health will now issue a new certificate to an applicant who submits a notarized affidavit from a physician, nurse practitioner or physician assistant licensed in the United States that either states that the applicant has undergone appropriate clinical treatment for a person diagnosed with gender dysphoria or transsexualism, or confirms that surgical procedures have been performed on the applicant to complete sex reassignment.

 

At the federal level, the U.S. Department of State in June 2010 announced a change in policy allowing the gender designation on passports to be changed for applicants producing certifications from attending internists, endocrinologists, gynecologists, urologists or psychiatrists stating that the provider has a doctor/patient relationship with the applicant and that the applicant has undergone appropriate clinical treatment for gender transition.  Likewise, as of September 2013, the Social Security Administration no longer requires proof of surgery in order to change the gender on Social Security (SSN) records.  The Social Security Administration now authorizes medical certifications of appropriate clinical treatment for gender transition from a licensed physician or doctor of osteopathy.

 

This trend reflects an understanding of the diverse expression of transgender identity, and that not all transgendered persons want surgery in order to express their gender identity.[2]  Indeed, in June 2014 the American Medical Association expressed its support for eliminating any requirement that an individual undergo surgery in order to change the sex indicated on a birth certificate.

 

The Board is amending Section 207.05 to authorize the Department to issue an applicant a new birth certificate with a changed gender marker without requiring such applicant to have undergone convertive surgery.  An affirmation from a physician licensed to practice in the United States, or an affidavit from a doctoral-level psychologist, master social worker, clinical social worker, physician assistant, nurse practitioner, marriage and family therapist, mental health counselor, or midwife, licensed to practice in the United States, is required in order to ensure the integrity of birth records when gender has been amended.  The Department recognizes it is critically important for individuals to have birth records that accurately reflect their gender for many purposes including obtaining access appropriate to care and facilities.  The rationale is as follows:  (1) birth certificates are foundational documents upon which all other official documents are based, including United States passports, driver licenses, and Social Security cards, are proof of United States citizenship, and should only be amended upon presentation and acceptance of the required documentation; (2) physicians and doctoral-level psychologists, along with master social workers, clinical social workers, physician assistants, nurse practitioners, marriage and family therapists, mental health counselors, and midwives are licensed by issuing authorities in the United States, their credentials can be evaluated and validated, and they can be subject to professional sanctions, penalties and prosecution for providing false information; and (3) New York City, as an independent vital records jurisdiction, along with New York State and the other 55 vital records jurisdictions, works in close partnership with the federal government, and federal government agencies must rely on the integrity of birth records to accurately represent the facts of birth. Without birth record integrity, passports, driver licenses and other core identity documents would be questionable.  The integrity of the birth records will be maintained with this change while making it easier for transgender individuals to obtain birth records that accurately reflect their gender. 

 

Section 207.05 is also being amended to eliminate the requirement that applicants for new birth certificates with corrected gender also change their names.  The Department recognizes that some applicants may want to change their name on their birth certificate, and such applicants would still need to show that the new name was legally changed by a court order.  Some people transitioning from one gender to another, however, may want to continue using the same name.  These applicants should not be required to go to court and legally change their names in order to obtain new birth certificates.

 

Finally, the Board is amending Section 207.13 regarding fees to simply reflect the removal of the “convertive surgery” requirement and replace it with the language consistent with the changes to Section 207.05. 

 




[1] See, e.g., California (Cal. Health & Safety §103425), Iowa (Iowa Code §144.23(3)), and Vermont (Vt. Stat. §5112).

[2] See World Professional Association for Transgender Health (WPATH), “Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People”, 7th Version (2012) at www.wpath.org.

 

 

Effective Date: 
Mon, 01/12/2015

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

 

Statement of Basis and Purpose

 

These amendments to the New York City Health Code (the Health Code) are promulgated pursuant to sections 556, 558, and 1043 of the New York City Charter (the Charter).  Section 556 of the Charter grants the Department jurisdiction to supervise and control the registration of deaths.  Sections 558(b) and 558(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 558(c) of the Charter also empowers the Board of Health to provide for the examination and issuance of death certificates.  Section 1043 grants the Department rule-making authority.        

 

The amendments to sections 205.7, 207.11, and 207.13 of Articles 205 and 207 of the Health Code are intended to: (1) expand access to confidential medical reports of death for deaths that occurred prior to January 1, 2010; (2) clarify who may obtain a copy of a death certificate; and (3) expand access to fact-of-death information for specified benefit-paying parties, licensed doctors and attorneys, upon payment of a fee. 

 

The amendments amend Health Code section 205.07(a) to add siblings, grandparents, and grandchildren to the list of people who may access confidential medical reports of death.  Currently, section 205.07(a) allows the Department to release confidential medical reports of death for deaths occurring on or after January 1, 2010.  Because there is no reason to treat reports of deaths occurring earlier differently, the amendments also delete the reference to that date and would allow the Department to release any available confidential medical report of death to an entitled person.

 

Health Code section 207.11 currently allows “persons or their representatives, who are agents of, or who otherwise have a legal or fiduciary obligation to such persons, as a relative, person in control of disposition, heir or beneficiary…” to inspect death records.  The current language has led to confusion about who is entitled to a decedent’s death record.  The amendments to section 207.11 clarify the classes of people entitled to inspect a confidential medical report of death, and align that list with the amendments to section 205.07.

 

Finally, Health Code section 207.13(e) allows the Department to issue verifications of information contained in death certificates and other vital statistics certificates to other governmental agencies upon request.  The amendments to that section will expand access to benefit-paying parties such as annuity companies and pension plans to terminate benefits upon death of a recipient, physicians and hospitals who demonstrate that such information is needed to determine whether a patient they are treating has died, and licensed attorneys who demonstrate that the information is necessary to administer an estate.  Additionally, because the Department anticipates providing verifications through an electronic system maintained by The National Association for Public Health Statistics and Information Systems, language has been added authorizing the Department to enact rules describing how the verifications will be provided.    

 

 

 

Effective Date: 
Mon, 01/12/2015

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

Agency:
Comment By: 
Monday, November 17, 2014
Proposed Rules Content: 

 

 

 

Statement of Basis and Purpose

 

In 1971, the Board of Health amended New York City Health Code Section 207.05 to allow the Department to file a new birth certificate for a person who had legally changed his or her name and who had undergone “convertive” surgery.  The Department has interpreted the requirement for convertive surgery in subsection (a)(5) of Section 207.05 to mean genital surgery.  As a result, the Department has required transgender applicants who desire a new birth certificate with corrected gender to submit a surgical operative record including the date of the operation; a post-operative examination report signed by a physician attesting to the applicant’s surgical change of sex; and a post-operative psychiatric evaluation signed by a psychiatrist or clinical psychologist.  Until December 2006, the Department issued new birth certificates listing the applicant’s new name, but omitting reference to any gender, to anyone who submitted acceptable documentation.  After December 2006, when the Board of Health approved a change to the birth certificate form, the Department has provided new birth certificates that list not only an applicant’s new name but also the corrected sex designation.  Applicants are still required, however, to obtain a court ordered name change and undergo convertive surgery.  This rule proposes to eliminate the requirement that an individual must obtain a court ordered name change and undergo convertive surgery.

 

Other jurisdictions similarly have amended their laws to allow transgender people to obtain new birth certificates with corrected sex on birth certificates without having to undergo surgery.[1]  In May 2014, New York State Department of Health changed its procedures for correcting gender on birth certificates in the rest of the state (outside of New York City).  For people born in New York outside of New York City, the State Department of Health will now issue a new certificate to an applicant who submits a notarized affidavit from a physician, nurse practitioner or physician assistant licensed in the United States that either states that the applicant has undergone appropriate clinical treatment for a person diagnosed with gender dysphoria or transsexualism, or confirms that surgical procedures have been performed on the applicant to complete sex reassignment.

 

At the federal level, the U.S. Department of State in June 2010 announced a change in policy allowing the gender designation on passports to be changed for applicants producing certifications from attending internists, endocrinologists, gynecologists, urologists or psychiatrists stating that the provider has a doctor/patient relationship with the applicant and that the applicant has undergone appropriate clinical treatment for gender transition.  Likewise, as of September 2013, the Social Security Administration no longer requires proof of surgery in order to change the gender on Social Security (SSN) records.  The Social Security Administration now authorizes medical certifications of appropriate clinical treatment for gender transition from a licensed physician or doctor of osteopathy.

 

This trend reflects an understanding of the diverse expression of transgender identity, and that not all transgendered persons want surgery in order to express their gender identity.[2]  Indeed, in June 2014 the American Medical Association expressed its support for eliminating any requirement that an individual undergo surgery in order to change the sex indicated on a birth certificate.

 

The Department proposes that the Board of Health amend Section 207.05 to authorize the Department to issue an applicant a new birth certificate with a changed gender marker without requiring such applicant to have undergone convertive surgery.  The Department proposes to require an affirmation from a physician licensed to practice in the United States, or an affidavit from a doctoral-level psychologist, clinical social worker, physician assistant, nurse practitioner, marriage and family therapist, mental health counselor, or midwife, licensed to practice in the United States, in order to ensure the integrity of birth records when gender has been amended.  The Department recognizes it is critically important for individuals to have birth records that accurately reflect their gender for many purposes including obtaining access appropriate to care and facilities.  The rationale is as follows:  (1) birth certificates are foundational documents upon which all other official documents are based, including United States passports, driver licenses, and Social Security cards, are proof of United States citizenship, and should only be amended upon presentation and acceptance of the required documentation; (2) physicians and doctoral-level psychologists, along with clinical social workers, physician assistants, nurse practitioners, marriage and family therapists, mental health counselors, and midwives are licensed by issuing authorities in the United States, their credentials can be evaluated and validated, and they can be subject to professional sanctions, penalties and prosecution for providing false information; and (3) New York City, as an independent vital records jurisdiction, along with New York State and the other 55 vital records jurisdictions, works in close partnership with the federal government, and federal government agencies must rely on the integrity of birth records to accurately represent the facts of birth. Without birth record integrity, passports, driver licenses and other core identity documents would be questionable.  The integrity of the birth records will be maintained with this change while making it easier for transgender individuals to obtain birth records that accurately reflect their gender.  

 

The Department is also proposing that the Board of Health amend Section 207.05 to eliminate the requirement that applicants for new birth certificates with corrected gender also change their names.  The Department recognizes that some applicants may want to change their name on their birth certificate, and such applicants would still need to show that the new name was legally changed by a court order.  Some people transitioning from one gender to another, however, may want to continue using the same name.  These applicants should not be required to go to court and legally change their names in order to obtain new birth certificates.

 

Finally, the Department is requesting that the Board of Health amend Section 207.13 regarding fees to simply reflect the proposed removal of the “convertive surgery” requirement and replace it with the language consistent with the proposed changes to Section 207.05. 

 

The proposal is 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.

 

 




[1] See, e.g., California (Cal. Health & Safety §103425), Iowa (Iowa Code §144.23(3)), and Vermont (Vt. Stat. §5112).

[2] See World Professional Association for Transgender Health (WPATH), “Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People”, 7th Version (2012) at www.wpath.org.

Subject: 

Proposed resolution to amend Article 207, section 207.05 of the New York City Health Code to remove convertive surgery requirement for transgender birth certificate applicants.

Location: 
New York City Department of Health and Mental Hygiene, Gotham Center
42-09 28th Street, 3rd Floor, Room 3-32
Queens, NY 11101-4132
Contact: 

Svetlana Burdeynik at (347) 396-6078 or resolutioncomments@health.nyc.gov
New York City Department of Health and Mental Hygiene
Gotham Center, 42-09 28th Street, CN 31
Long Island City, NY 11101-4132

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Friday, November 14, 2014
Proposed Rules Content: 

 

 

Statement of Basis and Purpose

 

These amendments to the New York City Health Code (the Health Code) are promulgated pursuant to sections 556, 558, and 1043 of the New York City Charter (the Charter).  Section 556 of the Charter grants the Department jurisdiction to supervise and control the registration of deaths.  Sections 558(b) and 558(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 558(c) of the Charter also empowers the Board of Health to provide for the examination and issuance of death certificates.  Section 1043 grants the Department rule-making authority.        

 

The proposed amendments to sections 205.7, 207.11, and 207.13 of Articles 205 and 207 of the Health Code are intended to: (1) expand access to confidential medical reports of death for deaths that occurred prior to January 1, 2010; (2) clarify who may obtain a copy of a death certificate; and (3) and expand access to fact-of-death information for specified benefit-paying parties, licensed doctors and attorneys, upon payment of a fee. 

 

The proposed amendments amend Health Code section 205.07(a) to add siblings, grandparents, and grandchildren to the list of people who may access confidential medical reports of death.  Currently, section 205.07(a) allows the Department to release confidential medical reports of death for deaths occurring on or after January 1, 2010.  Because there is no reason to treat reports of deaths occurring earlier differently, the proposed amendments also delete the reference to that date and would allow the Department to release any available confidential medical report of death to an entitled person.

 

 

Health Code section 207.11 currently allows “persons or their representatives, who are agents of, or who otherwise have a legal or fiduciary obligation to such persons, as a relative, person in control of disposition, heir or beneficiary…” to inspect death records.  The current language has led to confusion about who is entitled to a decedent’s death record.  Therefore, the Department proposes to clarify the classes of people entitled to inspect a confidential medical report of death, and align that list with the proposed amendments to section 205.07.

 

Finally, Health Code section 207.13(e) allows the Department to issue verifications of information contained in death certificates and other vital statistics certificates to other governmental agencies upon request.  The proposed amendments will expand access to benefit-paying parties such as annuity companies and pension plans to terminate benefits upon death of a recipient, physicians who demonstrate that such information is needed to determine whether a patient he or she is treating has died, and licensed attorneys who demonstrate that the information is necessary to administer an estate.  

 

The resolution is 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.

 

 

Subject: 

Proposed resolution to amend Articles 205 and 207 of the New York City Health Code regarding records of death information.

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
New York City Department of Health and Mental Hygiene
Gotham Center, 42-09 28th Street, CN 31
Long Island City, NY 11101-4132

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, September 15, 2014
Proposed Rules Content: 

 

 

 

Statement of Basis and Purpose

 

 

On December 30, 2013, Local Law 152 was enacted.  It amended sections 17-502, 17-503, 17-504, 17-505, 17-506, 17-507, 17-508, 17-510, 17-512 and 17-513.2 of Chapter 5 of Title 17 of the New York City Administrative Code (Smoke-Free Air Act).  It also added sections 17-513.3 (Retail Tobacco Store and Retail Electronic Cigarette Store Registration), and 17-513.4 (Retail Tobacco Store and Retail Electronic Cigarette Store Verification) to Chapter 5. These changes to the Smoke-Free Air Act took effect on April 29, 2014.  The local law prohibits the use of electronic cigarettes in all locations where smoking is currently prohibited and requires establishments to post signage informing customers of these new restrictions.  Local Law 152 also requires both retail tobacco stores and retail electronic cigarette stores to register with the Department of Health and Mental Hygiene (“DOHMH”), and grants the Department authority to establish a system for verifying the total annual gross sales of retail tobacco stores and retail electronic cigarette stores to determine their eligibility for certain smoking and electronic cigarette use exemptions.

 

The Department is proposing to amend Chapter 10 of Title 24 of the Rules of the City of New York (RCNY) to reflect the amendments to the Smoke-Free Air Act in Local Law 152, and repeal provisions of Chapter 10 that are no longer applicable due to these amendments to the Smoke-Free Air Act.  The amendments proposed here will also clarify certain provisions in Chapter 10 to facilitate compliance with, and enforcement of, the Smoke-Free Air Act.  These proposed amendments, together with the provisions of Chapter 5 of Title 17 of the Administrative Code, affect the use of electronic cigarettes in enclosed areas in public places and in places of employment in New York City.

 

The proposed amendments:

·          Specify the locations where electronic cigarette use is prohibited;

·          Specify the content of the  signage required in locations where electronic cigarette use is prohibited;

·          Describe the registration requirements for retail tobacco stores and retail electronic cigarette stores; and

·          Repeal obsolete provisions of the Department’s Rules related to separate smoking rooms in bars and owner operated bars that have been repealed in the Smoke-Free Air Act.

 

DOHMH’s authority to promulgate these rules is found in section 1043 of the New York City Charter and sections 17-503, 17-504, 17-505, 17-506(a), 17-513, 17-513.3 and 17-513.4 of the New York City Administrative Code.

 

 

 

Subject: 

Proposed resolution to amend Chapter 10 (Smoking Under the New York City Clean Indoor Air Act) of Title 24 of the Rules of the City of New York to: (1) reflect amendments to the Smoke-Free Air Act made by Local Law 152 of 2013 prohibiting the use of electronic cigarettes in certain places; (2) facilitate enforcement of the Smoke-Free Air Act; and (3) repeal provisions that are out of date.

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: 
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 New York City Health Code (the Health Code) are promulgated pursuant to §§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 rule-making authority.  Further, New York State Public Health law §580(3) permits the Department to “enact or enforce additional laws, codes or regulations affecting clinical laboratories…related to the control, prevention or reporting of diseases or medical conditions or to the control or abatement of public health nuisances.”

 

Background

 

The Charter provides the Department with jurisdiction over all matters concerning health in the City of New York.  The Department’s Division of Disease Control conducts disease surveillance and control activities for most of the infectious diseases listed in Article 11 of the New York City Health Code (Health Code). The Department’s Divisions of Epidemiology, Healthcare Access and Improvement, Health Promotion and Disease Prevention and Environmental Health also conduct surveillance and control activities for noninfectious reportable diseases and conditions.  The Department is also required to comply with various provisions of Chapter 1 of the New York State Sanitary Code (the Sanitary Code), found in Title 10 of the Codes, Rules and Regulations of the State of New York (10 NYCRR), with respect to control of communicable diseases.

 

The lists of reportable diseases in the Health Code and Sanitary Code are periodically modified in response to emerging infections and changing priorities for disease surveillance and control.

 

In addition to reportable disease surveillance, the Department has successfully implemented several different and complementary syndromic surveillance systems to improve outbreak detection capacity as well as provide situational awareness of a wide variety of public health conditions, both routinely and during emergencies.

 

Since implementation of the Article 13 requirement that clinical laboratories report electronically (approved by the Board in 2006), the Department has greatly enhanced its capacity for receiving more complete and timely reports on notifiable diseases to monitor disease trends and conduct effective investigations. 

 

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

 

A.     Amend Health Code §11.03(a) to update the current list of reportable diseases:

1)     Change reporting of “Severe Acute Respiratory Syndrome” to “severe or novel coronavirus” – also changed in paragraph (1) of subdivision (b)

2)     Delete reporting requirement for Kawasaki syndrome

3)     Delete  requirement to report “viral and aseptic meningitis” from reporting of meningitis

 

B.     Amend Health Code §11.03(e) to clarify the authority of the Department to obtain information necessary for public health investigations.

 

C.    Amend Health Code §§11.15 and 11.19 to lower the age for exclusion of children with enteric infections in daycare from less than six years of age to less than five years of age.

 

D.    Amend Health Code §11.17 to clarify Department authority to order health care providers, hospitals and other medical facilities to isolate individuals with certain communicable diseases that may pose imminent and significant threats to public health until action can be taken by the Commissioner or designee.

 

E.     Amend Health Code §13.03(a) (1) to add data elements to be included, if known, on all laboratory reports.

 

F.     Amend Health Code §13.03(b)(1) to require reporting of results of all subsequent TB test results (negative or positive) on samples collected within one year from patients with a prior positive acid fast bacilli (AFB) smear or test for M. tuberculosis complex (e.g., culture or nucleic acid amplification [NAA]).

 

G.    Amend Health Code §13.03(b)(3) to require reporting of all hepatitis B virus (HBV) test results (positive, negative and indeterminate) for hepatitis B surface antigen (HBsAg) and hepatitis B surface antibody (anti-HBs), both qualitative and quantitative, for children ages 0 days to 1,825 days (birth up to the fifth birthday), when a patient’s age is known. The Department will require only laboratories that electronically submit through the Electronic Clinical Laboratory Reporting System (ECLRS) to report negative HBV laboratory test results through ECLRS. Healthcare providers will not be required to report these results.

 

H.    Amend Health Code §13.03(b)(3) to add to hepatitis C reporting all positive and negative hepatitis C (HCV) nucleic acid tests (NAT) laboratory test results. The Department will require only laboratories that electronically submit through the Electronic Clinical Laboratory Reporting System (ECLRS) to report negative HCV NAT laboratory test results through ECLRS. Blood bank laboratories are exempted from compliance, and healthcare providers will not be required to report these results.

 

I.       Amend Health Code §13.05(b)(1) and add a new paragraph (8) to require reporting of all subsequent TB test results on samples collected within one year from persons with a prior positive AFB smear or positive test for M. tuberculosis complex by culture or NAA .

 

 

Reasons for the changes

 

A)    Changes to the reportable disease list in Health Code §11.03.  Health Code §11.03 (a) and (b) has been amended as follows:

 

1)     Change reporting of “Severe Acute Respiratory Syndrome (SARS)” to “severe or novel coronavirus.” The 2003 epidemic of Severe Acute Respiratory Syndrome (SARS) was due to a novel coronavirus that emerged from mainland China and then spread internationally. In response, the Department added SARS to the list of reportable diseases in Health Code §11.03 to monitor for the re-emergence and potential introduction of this virus into New York City. In 2013, a different coronavirus emerged in the Middle East and resulted in several importations into Europe and hospital outbreaks in both the Middle East and Europe. As of May 16, 2014, there have been 572 confirmed cases, 173 of which were fatal, in 14 countries; this includes two imported cases in the United States. The syndrome caused by this novel coronavirus has been named Middle East Respiratory Syndrome or MERS. To enable the Department to monitor for the introduction of SARS-related, MERS-related, and other novel or severe coronaviruses, the Board has amended “SARS” in §11.03(a) to “severe or novel coronavirus”.  Both suspect and confirmed cases of this disease are listed in Health Code §11.03 (b) (1) as being immediately reportable.

 

2)     Delete Kawasaki syndrome.  Kawasaki syndrome is a rare but serious rash illness that most commonly occurs in children less than 5 years of age. The etiologic agent(s) responsible for Kawasaki syndrome remain unknown despite intensive investigations during prior outbreaks, and the disease does not appear to be spread from person to person. From 2002 to 2012, there has only been a median of 20 cases (range 2 to 35 cases) of Kawasaki syndrome reported in New York City per year. There is no public health response to an individual case other than confirming that the case meets clinical criteria. Kawasaki syndrome is not currently listed as reportable in either the State Sanitary Code or the Centers for Disease Control and Prevention (CDC) National Notifiable Disease Surveillance System. As the Health Code §11.03 (a) requires reporting of suspected or confirmed outbreaks of any disease or condition (defined as 3 or more cases), the Department would still respond to reports of outbreaks of Kawasaki syndrome after it is removed from the list. There is no reason, however, to continue to make individual cases reportable. Therefore, the Board is removing Kawasaki syndrome from the list of reportable diseases.

 

3)     Delete viral and aseptic meningitis.  Viral meningitis is a clinical syndrome that can be caused by a wide variety of viruses, most of which do not represent a public health concern, especially for single cases.  Aseptic meningitis is when a patient has the clinical syndrome of meningitis, but the laboratory identifies no microorganisms. Most cases of aseptic meningitis are due to viruses. Arboviral diseases, including arboviral meningitis, are currently listed and reportable separately in Health Code §11.03 (a) and will remain reportable given the need to monitor for diseases like West Nile virus to ensure prompt detection and control of mosquito borne viruses in New York City. There is no public health response to an individual case for most other causes of viral or aseptic meningitis. For many, the specific etiologic agent remains unknown once more common causes of bacterial or viral meningitis are ruled out by laboratory testing. Neither viral nor aseptic meningitis are currently listed in the CDC’s National Notifiable Disease Surveillance System. The New York State Department of Health has also indicated they intend to request that the State Public Health and Health Planning Council remove this disease from the State Sanitary Code at some time in the future.  However, even if deleted from the Health Code list, until the disease is deleted from the State Sanitary Code, it will remain reportable in New York City. Lastly, as Health Code §11.03(a) requires reporting of suspected or confirmed outbreaks of any disease or condition (defined as 3 or more cases), the Department would still respond to clusters of viral or aseptic meningitis even after this disease is removed from the list. Therefore, the Department is requesting the Board remove viral and aseptic meningitis from the list of reportable diseases.

 

B)    Amend Health Code §11.03(e) to clarify the Department’s authority to obtain medical information for public health investigations. Currently, this provision authorizes the Department to obtain additional information concerning any report made by required reporters listed in Health Code §11.05(a) or other individuals required to submit reports in accordance with other applicable law. However, this limits the Department’s authority to obtain information necessary for public health investigations when information about a public health problem originates not with a required reporter of a case or condition, but with other individuals or entities. In dangerous dog investigations, for example, the health care provider treating the bite victim is required to report the bite pursuant to Health Code §11.03(a) and (e). However, other sources may also report on the bites, such as the person bitten, the owner of the dog, a police officer, a bystander, or local media.  In the course of such an investigation, the Department may learn about other bites inflicted by a particular dog that were not reported by a treating health care provider. Medical information about the other bite victim’s injuries is also vital to such an investigation. As currently drafted, §11.03(e) could limit the ability of the Department to obtain necessary medical information regardless of whether the case was reported in accordance with §11.03(a). The Board is amending this provision to clarify its authority to obtain necessary medical information for public health investigations. Although New York City Charter §555 (b) authorizes the Commissioner to issue subpoenas to compel production of witnesses, records, and other documents in any proceeding before the Commissioner, there are so many reported diseases and conditions being investigated at any one time, that requiring subpoenas to be issued is unnecessarily cumbersome. It should also be noted that HIPAA authorizes disclosure of medical information for public health purposes to public health agencies, such as the Department, without patient consent. In most reportable disease and condition investigations, it is important to be able to investigate and intervene appropriately, based on the best available information, as quickly as possible to prevent further transmission of a communicable disease or injuries from poisonings or other conditions the Department has the duty to investigate.   

 

Another reason to amend this provision is the emergence of organizations that manage the exchange of health information in a defined geographic area for outpatient clinics, provider offices, hospitals, laboratories, and other healthcare entities, currently referred to as regional health information organizations (RHIOs) or Qualified Entities (QEs). With the increasing use of electronic health records and health information exchanges, the Department recognizes health information exchange organizations as potential sources of information necessary for investigations of reportable diseases and conditions listed in Health Code §11.03.  Accordingly, the Board is adding a requirement to §11.03(e) that affords the Department access to electronically stored patient health information by entities such as health information exchange organizations for any confirmed or suspected cases, contacts, or carriers of reportable diseases that is necessary for the Department to conduct its surveillance and epidemiologic investigations, including in response to suspected or confirmed outbreaks. 

 

C)    Amend Health Code §§11.15 and 11.19 to change the age of exclusion for children with enteric infections in daycare and pre-kindergarten from under six years of age to under five years of age. Health Code §11.15 currently requires exclusion of a child under the age of six or staff member who has contact with children under the age of six in a school, day care facility, camp, or other congregate care setting who has been diagnosed with one of the following gastrointestinal illnesses: amebiasis, Campylobacteriosis, cholera, Cryptosporidiosis, E. coli O15:H7 or other Shiga toxin producing Escherichia coli (STEC) infections, Giardiasis, Hepatitis A, Paratyphoid fever, Salmonellosis (other than typhoid), Shigellosis, Typhoid fever, and Yersiniosis.

 

Age criteria are being lowered from under six to under five years, so that control efforts are focused on the children at highest risk in daycare or pre-kindergarten settings. Outbreaks or person-to-person spread are much less common among children who are toilet trained and no longer require diaper care.  Excluding children from kindergarten requires children to miss educational services and a parent or caregiver to stay home from work creating a significant burden for families.  Changing the threshold from under 6 years to under 5 years will allow the Department to focus enforcement efforts in children attending daycare or pre-kindergarten settings, and not children attending kindergarten or elementary school where the risk of disease transmission is less.  For the same reasons, Health Code §11.19 (a) and (b) are being amended with regard to exclusion of children under age five  who are  cases of paratyphoid and typhoid fever or staff persons in institutions or schools who are such cases and who may have contact with children under age five.

 

D)    Amend Health Code §11.17 to clarify the Department’s authority to order the isolation of persons with communicable diseases that may pose an imminent and significant threat to public health. Subdivision (a) of Health Code §11.17 (Control measures; duty to isolate; and isolation, quarantine and examination orders) requires that suspected or confirmed cases and carriers of specific contagious infectious diseases and “any other contagious disease that in the opinion of the Commissioner may pose an imminent and significant threat to the public health … shall be isolated in a manner consistent with recognized infection control principles and isolation procedures in accordance with State Department of Health regulations or guidelines.” The Health Code provision does not explicitly impose a duty upon the physicians attending these cases or carriers to isolate them until the Commissioner or designee takes further action. The proposed amendment clarifies that physicians attending to these patients are required to isolate them.    

 

A similar provision in the State Sanitary Code §2.27 imposes a duty upon attending physicians to isolate persons with “highly communicable diseases,” pending public health action. It refers to Sanitary Code §2.1 for a definition of “highly communicable diseases.”  However, Sanitary Code §2.1 lists only certain reportable diseases and does not indicate that there may be other emergent diseases of public health concern that are not listed. The amendment to Health Code §11.17(a) clarifies that physicians, hospitals, and other medical facilities attending patients with diseases listed in Health Code §11.17, as well as those with emergent diseases that are not currently reportable but are of public health concern, are also required to isolate them pending further action by the Department.

 

E)    Amend Health Code §13.03(a) to require additional data elements to be submitted with electronic laboratory reports of notifiable diseases and conditions. Electronic laboratory reporting has greatly improved the timeliness and completeness of reportable disease surveillance. As more health care information is now available with enhancements and improved linkages in electronic health record systems, it is possible to obtain more complete information on the case-patient and the health care provider who requested testing to facilitate case investigations. The Board is adding the following data elements to the list of information that should accompany all electronic laboratory reports, if known, in Health Code §13.03: 

 

Patient email

Patient mobile phone number

Provider email

Provider fax number

Provider mobile phone number

Provider National Provider Identification (NPI) number

Facility National Provider Identification (NPI) number

 

In addition, paragraph (1) of Health Code §13.03(a) currently requires the pregnancy status to be indicated if known and if clinically relevant (e.g., for hepatitis B and syphilis).  Although the laboratory may not know the patient’s pregnancy status based on information provided by the requesting health care provider, the laboratory would know that a pre-natal panel of laboratory tests was ordered. Therefore, this provision only applies to situations in which  pregnancy status is known and indicated or when pregnancy is probable (e.g., a pre-natal panel is ordered).

  

These additional data elements will enhance the Department’s disease surveillance efforts by improving its ability to contact patients and/or providers to obtain additional information required for a case investigation.

 

F)     Amend Health Code §13.03(b)(1) and §13.05 to require reporting of all tuberculosis test results of subsequent samples for patients with either an initial positive acid fast bacilli (AFB) smear or positive culture or other test for M. tuberculosis complex. Health Code §13.03(b)(1) is being amended to require the reporting of all subsequent test results for a patient within one year of a previous positive test result for AFB smear, nucleic acid amplification (NAA), mycobacterial culture, or other test for M. tuberculosis complex. Currently negative results are only reported when results are from samples with an AFB positive smear. This amendment will enable the Department to more quickly rule out a suspected diagnosis of TB and discontinue unnecessary treatment and to better monitor treatment.

 

Cases and suspect cases of TB disease residing in New York City are managed by the Department, sometimes in partnership with private providers. Currently, laboratories are required to report to DOHMH all results from biological samples found positive for AFB, cultures and NAA tests positive for M. tuberculosis complex, drug susceptibility tests performed on M. tuberculosis complex cultures, pathology findings indicative of TB, and any culture or NAA result associated with an AFB-positive smear sample even if negative. Current reporting is not, however, timely enough to identify persons who were suspected as having TB, started treatment, and later found not to have TB disease, nor is it adequate enough to track TB patients’ response to treatment.

 

Test results on initial samples collected from patients are used to diagnose TB disease and determine infectiousness. Test results from subsequent samples collected after an initial positive sample are used to monitor a patient’s response to treatment. Receiving timely test results, either positive or negative, is critical for these purposes.

 

Current required test results are reported electronically or via fax to the Department when they become available. To obtain negative test results that are not currently reportable, Department staff must visit hospitals to perform chart reviews and visit or call providers and laboratories. Getting a negative result can take multiple attempts over months. Patients suspected of TB are placed on treatment until TB diagnosis is ruled out, which is generally based on laboratory test results. Reducing the time to obtain negative test results can reduce the time the patient is on unnecessary treatment. More importantly, negative results are critical for monitoring patients on treatment. In general, patients on appropriate treatment are expected to have negative culture results within 60 days of treatment. Extending treatment may be necessary if patients do not have a documented negative culture conversion. Having negative results automatically reported to the Department will decrease the time it takes for patients to be deemed non-infectious and will assist the Department in determining the optimal treatment length for TB patients.

 

G)  Amend Health code §13.03(b)(3) to require reporting of negative hepatitis B virus (HBV) test results for children for children ages 168 days to 1,825 days (six months of age up to the fifth birthday). The addition of required reporting of HBsAg (hepatitis B surface antigen) and anti-HBs (hepatitis B surface antibody) test results for children up to five years of age, when the child’s age is known, will support the Department’s efforts to help prevent perinatal HBV among children born to HBV-infected mothers and to conduct surveillance for this nationally notifiable disease. Children born to HBV-infected mothers are at high risk of acquiring this infection. If infected, 90% will develop chronic hepatitis infection, placing them at risk for cirrhosis and hepatic carcinoma at an early age.

 

Each year, the Department case manages approximately 1,800 babies born to HBV positive pregnant women in New York City. Through individual patient education and case management, the Department helps to ensure that the newborns receive HBV immune globulin and HBV vaccine within 12 hours of birth and two more doses of HBV vaccine by six months of age to prevent HBV infection. These high-risk children should have post-vaccination serology testing performed at nine months of age to assess if they are infected, susceptible, or immune. Interpretation requires the test results for both HBsAg and anti-HBs. Children who are found to be infected have to be referred to a specialist for evaluation and treatment.  Children who are found susceptible after the first immunization series have to immediately begin a second three dose series of HBV vaccination.

 

Currently, the Department contacts the pediatric provider who administered the HBV vaccinations to provide reminders and to obtain post-vaccination serology testing results. This activity consumes approximately 25% of staff time. In addition, the Department is frequently unable to obtain all test results due to not being able to locate the family or the pediatric provider. The Department does not obtain test results for approximately 40% of the 1,800 babies managed annually. By requiring reporting of all test results for HBsAg and anti-HBs for children up to five years, the Department will receive post-vaccination serology test results more efficiently and completely. The Department will be better able to manage cases lost to follow-up either by the Department or by other health jurisdictions, which may have cases that have moved to New York City.

 

H)  Amend Health code §13.03(b)(3) to require reporting of negative hepatitis C virus (HCV) nucleic acid tests (NAT) (electronic laboratory reporting only). The Department is proposing that the Board amend Health Code §13.03(b)(3) to require reporting of all HCV NAT results. This provision currently specifies only that HCV (and other hepatitis) reports made by clinical laboratories be accompanied by results of alanine aminotransferase testing (ALT). The addition of required reporting of NAT results will support the Department’s 2013 HCV strategic plan[1] to reduce illness and death from HCV. One component of this plan involves strengthening the Department’s capacity to manage and utilize data for evidence-based policies and practice. By receiving reports of both positive and negative test results for HCV NAT, the Department will be able to estimate the number of persons tested, the burden of chronic HCV infection in New York City, the number of persons treated for and cured of chronic HCV infection, and monitor changes over time, similar to what is currently authorized for human immunodeficiency virus (HIV) infection.

 

As many as 146,500 New York City residents may have chronic HCV. The disease is most prevalent in New York City neighborhoods with high poverty. Most persons living with HCV have few symptoms of illness until 10 to 30 years after initial infection, when life-threatening health complications, including cirrhosis and liver cancer, can develop. The annual number of deaths associated with HCV has been increasing yearly and, since 2007, has exceeded deaths associated with HIV in the United States. Highly effective HCV antiviral treatments have recently been approved, and more are expected in the coming years, making it likely that liver failure, cancer, and death from HCV can be averted in the future.

 

Antibody screening tests for HCV are recommended for all persons born between 1945 and 1965 and for patients with risk factors, including any history of injection drug use or receipt of a blood transfusion before 1992. However, 15-25% of patients who test HCV antibody positive have no detectable HCV nucleic acid in their blood, indicating that they do not have HCV infection. This is usually because they either resolved a prior HCV infection or had a false-positive HCV antibody test. Therefore, it is recommended that all patients with a positive HCV antibody test undergo HCV NAT testing to determine infection status.

 

The Department found that, from 2009 to 2012, 27% of patients with a positive HCV antibody never received an HCV NAT test, while an additional 9% only received NAT testing after the Department sent a reminder to the clinician that NAT testing is recommended.

 

Currently, both the Sanitary Code and Health Code §11.03 mandate reporting by health care providers and others of persons who are cases and carriers of HCV.  Laboratories must report positive HCV antibody screening tests and all positive confirmatory assays, e.g., recombinant immunoblot assay (RIBA) or NAT, that result from laboratory analysis of specimens in accordance with the “Laboratory Reporting of Communicable Diseases, 2010” guidance issued by the Department and the New York State Department of Health.  With nearly 10,000 new cases of HCV reported each year, the Department does not currently have sufficient staff resources to conduct individual case investigations by chart review and patient and provider interviews to determine infection and treatment status.  If the Department received results of both positive and negative tests for HCV NAT, this would provide more useful information for tracking the HCV epidemic in New York City. First, it would be possible to accurately classify patients as chronically infected by determining which antibody-positive patients are infected (NAT positive) versus not infected (NAT negative). Second, it would be possible to evaluate HCV testing patterns and focus outreach efforts toward providers who are not following HCV NAT testing recommendations. Third, by making all HCV NAT results reportable, the Department would also be able to estimate the proportion of patients who are receiving care for their diagnosis. For example, patients with only an antibody test but no NAT test would presumably not be in care. Patients who are NAT positive, but become NAT negative over time, would be presumed to be on treatment and, if the negative NAT tests are sustained, to be cured. The Department would be able to use these data to target interventions to those neighborhoods that have persistently higher levels of HCV viral loads based on HCV NAT results. These data could also be used to identify and prioritize linkage to care for persons who have been diagnosed with chronic HCV but have been lost to medical follow-up. Finally, these data will help the Department evaluate and, as needed, enhance our policies and programs on HCV prevention and control.

 

Accordingly, a new requirement has been added for laboratories to report negative HCV NAT test results through the Department’s electronic reporting mechanism set forth in Health Code §13.03(c). Blood bank laboratories are exempt from compliance with this requirement  because they perform large numbers of HCV NAT tests on persons who do not have positive HCV antibody test results. DOHMH is only interested in collecting negative HCV NAT results for persons with a prior positive test for HCV antibody.

 

 

 




[1] Hepatitis C in New York City: State of the Epidemic and Action Plan.  Available at http://www.nyc.gov/html/doh/downloads/pdf/cd/hepC-action-plan.pdf

 

Effective Date: 
Mon, 07/21/2014

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

 

Statement of Basis and Purpose of the Amendment

 

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

 

    The Charter provides the New York City Department of Health and Mental Hygiene (the “Department” or “DOHMH”) with jurisdiction to protect and promote the health of all New Yorkers.

The Bureau of Child Care, in the Department’s Division of Environmental Health, enforces Article 47 (Child Care Services) of the Health Code, which regulates all public and private group day care services providing care for children under six years of age. Health and safety standards for school-based programs for children ages three through five are established in Article 43 of the Health Code.     

At its meeting on December 10, 2013, the Board of Health amended Articles 43 and 47 to add a new requirement that children between 6 and 59 months of age attending school based programs and child care services receive annual influenza vaccinations.  The resolution as adopted contained a drafting error in §47.25(a)(2)(C), which used the term “school” instead of “permittee,” to refer to the entity holding a child care service permit.   

The Board of Health is amending Article 47 to correct the error and substitute the term “permittee” for “school” in this provision.

 

Effective Date: 
Mon, 07/21/2014

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

 

Statement of Basis and Purpose

 

Article 141 of the New York City Health Code concerns the maintenance of the purity and sanitary condition of the City’s potable water supply. Water for thousands of New York City buildings is kept in water storage tanks. Health Code section 141.07 (“Building Drinking Water Storage Tanks”) requires that these tanks be inspected annually and that the person in control of a building serviced by a water storage tank keep copies of the inspection records and make them available to the New York City Department of Health and Mental Hygiene (the “Department”) upon request.

 

This amendment requires owners of buildings with water tanks to report annually to the Department the fact that the tanks have been inspected as required by section 141.07 of the Health Code and section 17-194 of the Administrative Code of the City of New York. The amendment authorizes the Department to issue rules dictating the manner and form of these reports. Requiring annual reporting promotes building owner compliance with the inspection mandate and facilitates the Department’s ability to monitor compliance.  Data from these reports submitted to the Department will be made publically available.

 

The amendment is 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.

 

 

Effective Date: 
Mon, 07/21/2014

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

 

Statement of Basis and Purpose

 

Statutory authority

            These amendments to Title 24 of the Rules of the City of New York are issued pursuant to §§556 and 1043 of the New York City Charter (“Charter”), and §§17-176.1, 17-706, and 17-709.1 of the Administrative Code of the City of New York (“Administrative Code”).

 

            Pursuant to Section 556 of the Charter, the Department of Health and Mental Hygiene (the “Department” or “DOHMH”) has jurisdiction to regulate all matters affecting health in the City of New York.  Section 1043 of the Charter gives the Department rulemaking powers. Chapter 1 and Chapter 7 of Title 17 of the Administrative Code authorize the Department to make rules with regard to the sale of cigarettes, tobacco products, and electronic cigarettes.

 

Basis and purpose of the rule

Tobacco is a leading cause of preventable premature death in the United States and the City of New York.  Smoking-related illnesses cost New Yorkers billions of dollars annually in health care costs and lost productivity.  There is strong evidence that people who begin smoking at an early age are more likely to develop a severe addiction to nicotine than those who start at a later age.  Several studies also show that the availability of low-priced cigarettes and tobacco products increases demand for cigarettes and tobacco products and contributes to continued use, particularly among youth.  Local Law 94 of 2013 (“Tobacco 21”) and Local Law 97 of 2013 (“Sensible Tobacco Enforcement”) aim to reduce tobacco use and protect public health by raising the legal minimum sales age for cigarettes, tobacco products, and electronic cigarettes, and prohibiting the redemption of price reduction instruments in the purchase of cigarettes and tobacco products.

 

On November 19, 2013, the Mayor signed into law Tobacco 21 and Sensible Tobacco Enforcement, amending sections 17-176, 17-702, 17-704, and 17-706, and adding sections 17-176.1 (Prohibition on the Sale of Discounted Cigarettes and Tobacco Products), 17-703.1 (Sign Required), 17-703.2 (Requirements for Retail Dealers Concerning Cigarette Tax), and 17-709.1 (Rules) to Chapter 7 of Title 17 of the Administrative Code.  These laws amend the definitions of cigarette and tobacco product, and impose new licensing, sales, and signage requirements on cigarette and tobacco product retailers.

Local Law 94 raises the minimum sales age for cigarettes, tobacco products, and electronic cigarettes from eighteen to twenty-one, and requires retailers to post signage that informs consumers and establishments of this sales restriction.  Local Law 97 prohibits the redemption of price reduction instruments (such as coupons) for cigarette or tobacco products and the sale of cigarettes or tobacco products below the listed price.  In addition, Local Law 97 establishes a price floor (lowest price possible) for cigarettes and little cigars, imposes a packaging requirement on cigars priced at $3 or less, and requires cigarette retailers to post a sign stating that all cigarette packages must bear valid New York State and New York City tax stamps. 

These rules facilitate compliance with Chapter 7 by explaining the requirements Local Law 97 and Local Law 94 impose on retail dealers.  Anyone required to comply with the requirements for cigarette and tobacco product sales should read these rules together with Chapter 7 of the Administrative Code.

The rules:

·        Set forth the listed price requirements for cigarettes and other tobacco products;

·        Provide the minimum sales age for cigarettes, tobacco products, electronic cigarettes, herbal cigarettes, pipes, and rolling papers; and

·        Specify the format and content of the tax stamp and age restriction signs that all cigarette and tobacco product retailers are required to post under the new laws.

 

Changes made in response to comments

            At the public hearing, the Bodega Association of the United States requested that the Department provide retailers with sufficient time to comply with the rules, educational materials, and the required age restriction and tax stamp signs.

 

A second person expressed his support for the rules. 

No one requested any changes to the rules and none have been made. 

    

 

 

Effective Date: 
Mon, 07/21/2014

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose

 

Statutory Authority 

The authority for these rules is found in §§556, 558 and 1043 of the New York City Charter and §81.51 of the New York City Health Code (the Health Code).

 

Introduction

            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. The Department has amended Chapter 23 to establish a schedule of fixed penalties for violations sustained against food service establishments and to update some definitions used in the Chapter.

 

Establishment of fixed penalties for food service establishment violations

In accordance with §558(e) of the Charter, in 1971 the Board of Health adopted Article 7 of the Health Code containing provisions for operation of an administrative tribunal within the Department to enforce the provisions of the New York City Health Code.  By Executive Order No. 148 (June 8, 2011), the Mayor transferred this tribunal to the Office of Administrative Trials and Hearings (“OATH”).  Since July 3, 2011 OATH has operated the Health Tribunal, which is where violations issued to food service establishments, other than mobile food vending units, are adjudicated.

OATH’s rules for the Health Tribunal, found in Title 48 RCNY Chapter 6, (specifically 48 RCNY § 6-02) require it to impose fines and pecuniary penalties in accordance with Article 3 of the Health Code.  Unless otherwise specified, Health Code §3.11 requires that there be a penalty of at least $200 and no more than $2000 whenever a violation of the Health Code, or other law enforced by the Health Department, is sustained. Currently, the hearing examiners who adjudicate notices of violation at the Health Tribunal decide within these parameters what the penalty will be when they sustain a violation. At other City agencies’ administrative tribunals, including the Environmental Control Board at OATH where notices of violation issued to mobile food vendors are adjudicated, penalties are fixed by law and not left to the discretion of hearing examiners.  The Department believes that having fixed penalties at the Health Tribunal will similarly promote consistency and fairness in decision making and provide predictability for those whose notices of violation are decided there. 

 

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 issued to food service establishments. Some violations listed in Appendix C, however, are cited more broadly than just against food service establishments.  Examples include failing to prevent or maintaining 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 prescribed for these violations will apply to all notices of violation of these provisions adjudicated at the Health Tribunal, regardless of whether the respondent is a food service establishment.   In reviewing the published version, an error in the citation for scored violation code 10E was corrected, and the original citation to Health Code §81.18(a)(3) was amended to reference State Sanitary Code §14-1.44.

 

Amended definitions and references to the former Administrative Tribunal

Article 7 of the Health Code, which contained the procedural rules of the Administrative Tribunal when it was located within the Department, was repealed after the transfer to OATH.  The definitions of “Administrative Tribunal” and “notice of violation” in §23-01 of Chapter 23, and the references to the Department’s Administrative Tribunal in §23-07, have been amended to reflect this repeal and the fact that the Health Tribunal is now at OATH and is no longer operated by the Department.  The definition of “notice of violation” has been amended to be consistent with the definition in OATH’s rules at 48 RCNY §6-01, which currently reads:

 

Notice of Violation or “NOV” means the document issued by the petitioner to a respondent which specifies the charges forming the basis of an adjudicatory proceeding before the Tribunal.

 

The amended rule is 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.

 

 

Effective Date: 
Fri, 07/18/2014

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