Amendment to School Based Programs for Children Ages 3-5 (Article 43 of the NYC Health Code)

Proposed Rules: Closed to Comments

Comment By: 
Friday, November 15, 2019
Download Copy of Proposed Rule (.pdf): 

Statement of Basis and Purpose


The New York City Department of Health and Mental Hygiene (“Department”) is proposing that the Board of Health (“Board”) amend Article 43 of the New York City Health Code (“Health Code”).  Article 43 provides health and safety requirements for children ages 3 to 5 attending a kindergarten or pre-K program located within a school or that is part of a school.  These programs were previously regulated under Article 47 (“Child Care Programs and Family Shelter-Based Drop-Off Child Supervision Programs”) of the Health Code, and were, with certain exceptions, required to hold permits as day care services.  Article 43 is intended to supplement regulations in the Health Code that currently apply to all schools.  Many of the provisions in Article 43 have not been updated since 2008, whereas Article 47 is and has been far more frequently updated.  The proposed amendments would align Article 43 with the more current child health and safety requirements provided in Article 47.


The proposed amendments would also make changes to conform existing rules with recent legislative changes in state and local law, including updated immunization and lead-based paint hazards requirements.  On June 13, 2019, NYS Public Health Law § 2164 was amended to remove the exemption from childhood immunization requirements due to religious beliefs.  Article 43 (§43.17) of the Health Code is being amended to incorporate this state legislative change.  On March 13, 2019, the NYC Council passed multiple amendments to the NYC Administrative Code, which among other things, updated the requirements for conducting an annual survey for lead-based paint hazards for all day care services (See, for example, Local Laws 64, 66, 67 and 71 of 2019).  As per Local Law 64 of 2019, “day care service” means “a program or service regulated by articles 43 and 47 of the New York city health code.”  Accordingly, Article 43 (§43.23) of the Health Code is being amended to incorporate these updated annual survey requirements.


Legal Authority

These amendments to the Health Code are proposed pursuant to §§ 558 and 1043 of the NYC 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 Department extends.  Section 1043 grants the Department rule-making authority. 


“Shall” and “must” denote mandatory requirements and may be used interchangeably in the text below, unless otherwise specified or unless the context clearly indicates otherwise.


Public Hearing

Proposed resolution to amend Article 43 (School Based Programs for Children Ages 3-5) of the New York City Health Code.

Public Hearing Date: 
Friday, November 15, 2019 - 9:30am

Svetlana Burdeynik at (347) 396-6078,

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