Protection of Public Health Generally (Article 181, Section 21)
Proposed Rules: Closed to Comments (View Public Comments Received:1)
Statement of Basis and Purpose
The Charter provides the Department of Health and Mental Hygiene (the “Department” or “DOHMH”) 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 consent requirement has generated opposition in the Orthodox Jewish community by persons who practice DOS. This opposition has made it difficult to enforce the consent requirement. 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 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. A signed consent form was provided by the mohel in only one of the two cases where the mohel was identified. There have also been reports in news media of mohels who overtly ignored the signed consent reform requirement and pledge to continue to do so.
The consent requirement was passed with the goal of educating parents about the risks associated with the practice of DOS. The opposition that the rule has generated has impeded and frustrated the Department’s goal of educating parents about the risks associated with DOS. The Department hopes that it can educate more parents about DOS by distributing materials in certain hospitals and pediatric and OB/GYN practices. This educational initiative will be more effective if the Department can restore a strong relationship with this community. Repealing the consent requirement will serve as an important step in restoring this relationship. Accordingly, the Department is asking the Board to repeal section 181.21 of the Health Code.
These proposed amendments to the Health Code are promulgated pursuant to §558 and §1043 of the Charter. Sections 558(b) and (c) of the Charter empower the Board of Health to amend the Health Code and to include in the Health Code all matters to which the authority of the Department extends. Section 556 of the Charter provides the Department with broad jurisdiction over all matters affecting health in the City. Section 1043 grants the Department rule-making authority. The amendment is also proposed pursuant to the Department’s historic power to supervise the control of communicable disease in New York City.