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Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose 

Health Code §3.11 currently limits the monetary penalty that can be imposed for a violation of the Health Code to $2,000.  In egregious cases, where dangerous conduct is repeated or a violation results in serious harm, a more severe penalty is warranted.  New York State Public Health Law § 12, for instance, authorizes the New York State Department of Health to impose a penalty of $5,000 against recidivists who violate rules in cases where the violation poses a serious threat to health or safety.  The Public Health Law also authorizes a penalty of $10,000 if the violation of a rule results in serious physical harm to a patient. 

The Board is amending Health Code §3.11 to add two new subdivisions to enhance penalties in similar circumstances.  New subdivision (d), similar to Public Health Law § 12, allows a maximum penalty of $5,000 for a repeat violation of any section of the Health Code that poses a serious risk of harm to others.  New subdivision (e) authorizes a penalty of up to $10,000 in cases where a violation of the Health Code causes serious physical injury to any person, also similar to Public Health Law § 12.

The Board is also amending subdivision (c) of §3.11 to delete a reference to Article 7 of the Health Code, which has been repealed since 2012 and making other technical edits to the section.

 

 

Effective Date: 
Fri, 10/20/2017

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Wednesday, July 26, 2017
Proposed Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

 

Health Code §3.11 currently limits the monetary penalty that can be imposed for a violation of the Health Code to two thousand dollars.  In egregious cases, where dangerous conduct is repeated or a violation results in serious physical harm, a more severe penalty is warranted.  New York State Public Health Law §12, for instance, authorizes the New York State Department of Health to impose a penalty of five thousand dollars against recidivists who violate rules in cases where the violation poses a serious threat to health or safety.  The Public Health Law also authorizes a penalty of ten thousand dollars if the violation of a rule results in serious physical harm to a patient. 

 

The Department proposes that two new subdivisions be added to Health Code §3.11 to enhance penalties in similar circumstances.  Similar to Public Health Law §12, a new subdivision (d) would allow a maximum penalty of five thousand dollars for a repeat violation of any section of the Health Code that poses a serious risk of harm to others, and a new subdivision (e) would authorize a penalty of up to ten thousand dollars in cases where a violation of the Health Code causes serious physical injury to any person. The Department also proposes to amend Health Code §3.11(c) to delete a reference to Article 7 of the Health Code, which has been repealed since 2012.

 

The Board of Health’s authority to make changes to the Health Code is found in § 558 of the New York City Charter.

 

 

Subject: 

Proposed resolution to amend Article 3 (General Provisions) of the New York City Health Code to increase monetary penalties.

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

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

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 

 

 

Statement of Basis and Purpose of Rule

 

Background of Rule Amendments

 

On November 2, 2010, New York City voters approved a number of Charter revisions including an amendment authorizing the Mayor, by executive order, to consolidate City administrative tribunals into the Office of Administrative Trials and Hearings (“OATH”). In addition, they required the establishment of a committee whose mandate was to recommend which tribunals or types of cases should be transferred to OATH. The Mayor's Committee on Consolidation of Administrative Tribunals issued its "Report and Recommendations," dated June 7, 2011, containing an Appendix with recommended modifications to rules of the various tribunals ("Report" and "Appendix"). The set of rules contained in the Appendix that were designated as OATH rules, referred to below as "interim rules," would be continued until OATH conducted rulemaking governing the procedures of the tribunals to be under its jurisdiction.

 

As further authorized by the Charter amendments, on June 8, 2011, the Mayor issued E.O. 148, which, among other things, transferred to OATH the administrative tribunals then located within the Department of Health and Mental Hygiene (“DOHMH”) and the Taxi and Limousine Commission, effective July 3, 2011.

 

With respect to the Health Tribunal, E.O. 148, by approving the Report and adopting its Appendix, provided that the rules and procedures governing adjudication at the DOHMH Administrative Tribunal would generally be continued with some modifications as interim rules of OATH applicable to the Health Tribunal within OATH. These rules and procedures were contained in Article 7 of the Health Code. This set of interim rules would be continued until such time as OATH completed rulemaking in accordance with the Charter. See E.O. 148, § 1(b) and (c).

 

As further background, two sets of rules containing provisions that are being amended by this rule are included as an endnote to this publication: (1) the interim rules applicable to the Health Tribunal that were contained in the Appendix to the Report, and (2) Article 7 (Administrative Tribunal) of the Health Code as it existed prior to the promulgation of E.O. 148.

 

Moreover, the Board of Health has proposed repealing the remaining provisions of

Article 7 of the Health Code within its jurisdiction and making certain other conforming changes to the Health Code, including adding a new § 3.12 concerning the operations of the Health Tribunal at OATH. The rulemaking actions of DOHMH, the Board of Health, and OATH are being coordinated so that the amendments enacted by each entity will take effect on the same date.

 

Health Code provisions, as described in this proposal, are set forth in a separate portion of Title 24 of the Rules of the City of New York. Unless otherwise specified, references to the Health Code that are included here refer to provisions modified in accordance with E.O. 148.

 

Summary of Rule Amendments

 

OATH will codify these interim rules by incorporating them, with some further modifications reflecting OATH practice, into a new Chapter 6 in Title 48 of Rules of the City of New York. The interim rules will now be renumbered and further modified, and they cover the following areas:

 

·         Replacing all references to the existence and jurisdiction of the DOHMH Tribunal with references to OATH;

 

·         Modifying various hearing procedures relating to adjournments, notifications, defaults, appeals, and other matters in order to reduce the burden on OATH and respondents, as well as to improve record-keeping;

 

·         Providing language assistance services to respondents when needed; and

 

·         Where appropriate, making these procedural rules consistent with OATH's practices generally and with respect to other tribunals.

 

Specific Amendments to be Enacted

 

Section 6-01(“Definitions Specific to this Chapter”) sets forth the meanings of terms specifically applicable to the Health Tribunal.

 

Section 6-02 (“Jurisdiction, powers and duties of the Health Tribunal”) closely tracks the interim rule (Health Code § 7.03) that transferred the jurisdiction from DOHMH to OATH.

 

Health Code § 7.05 (“Director/Chief Administrative Law Judge”) is repealed and not re- enacted because the position “Director of the Administrative Tribunal” would no longer exist and therefore there would no longer be references to such position in the OATH rules.

 

 

Section 6-03 (“Proceedings before the Health Tribunal”) continues, with technical changes, interim rule Health Code § 7.07, which retained the existing DOHMH rule while reflecting the transfer to OATH. The new rule reflects the transfer by specifying that the reference to the “Department” refers to the Health Tribunal at OATH.

 

 

Section 6-04 (“Appearances”) continues, with several changes, interim rule Health Code

§ 7.09, which retained the former DOHMH rule (except for subdivision (e) governing DOHMH’s settlement authority, which will remain with DOHMH with the added requirement that DOHMH notify OATH of all notices of violation that are withdrawn once DOHMH receives payment from respondents). The new rule makes several substantive changes to the interim rule, described below:

 

·         It moves the provision in subdivision (a) for adjourning telephone or electronic hearings for live hearings to Section 6-05 (h). This section addresses procedures for hearings by phone or other electronic media. It also provides that DOHMH, in addition to the respondent and respondent’s authorized representative, may request an adjournment of a scheduled hearing.

 

·         It removes requirements from former § 7.09(e) for certain findings by the hearing examiner before a default judgment is issued, to make them consistent with procedures currently in place at the Environmental Control Board.

 

·         It replaces the requirement for notice of default judgments by certified mail with notice by regular mail. OATH has found that requiring default decisions to be sent by certified mail is an administrative and financial burden on the Tribunal and, in addition, has downsides for respondents, who often do not follow the extra procedures necessary to claim certified mail. The new rule is consistent with procedures currently in place at the Environmental Control Board.

 

·         Finally, it changes the requirement for when motions for vacating default judgments must be received. The original rule requires receipt within 60 days of the Tribunal's mailing of the judgment to the respondent; the new rule requires receipt within 60 days of the date of the decision, resulting in improved record keeping at the Tribunal.

 

 

Section 6-05 (“Hearings and Adjudications by mail, telephone or other electronic media”) continues, with several changes, interim rule Health Code § 7.11, which retained the existing DOHMH rule as a rule of OATH. The new subdivision (f) provides that if a motion is made at a hearing for the presence of the inspector who issued the violation in question, the hearing examiner must only grant the motion if he or she determines that the inspector’s presence would contribute to a full and fair hearing. This change will result in more efficient hearings and reduce unnecessary delay. The new rule is consistent with procedures currently in place at the Environmental Control Board.

 

As a result of a comment received in connection with the published proposal, subdivision (g) has been revised to correct an inadvertent omission relating to the right of any party (not only the respondent) to request the record of a hearing.

 

Subdivision (j) of § 6-05 provides that OATH will provide appropriate language assistance services to respondents when needed. This subdivision describes how the hearing examiner may make such a determination. The new rule is consistent with procedures currently in place at the Environmental Control Board.

 

Section 6-06 (“Subpoenas”) continues, with changes, interim rule Health Code § 7.13, which retained the existing DOHMH rule. To be consistent with OATH authority, the new rule broadens subpoena power by removing the limitation which restricts the issuance of subpoenas to records and witnesses solely within the control of DOHMH.

Section 6-07 (“Disqualification of hearing examiners”) continues, with changes, interim rule Health Code § 7.15, which retained the existing DOHMH rule as a rule of OATH. The new rule makes several substantive changes to the interim rule, described below:

 

·         It modifies the procedure for making a motion for disqualification by eliminating the need to submit supporting affidavits.

 

·         It shortens the time frame for the hearing examiner’s reply to the motion.

 

·         It allows for a brief adjournment for the purpose of prompt appeal to the Chief Administrative Law Judge or his/her designee in the event that a hearing officer denies the motion for disqualification.

 

·         It provides that a party may raise a denial of a motion for disqualification on appeal.

 

·         The new rule is consistent with procedures currently in place at the Environmental

§  Control Board.

 

Section 6-08 (“Appeals”) continues, with changes, interim rule Health Code § 7.17, which superseded the DOHMH provisions for appeals by a “Review Board” and established an Appeals Unit within the Health Tribunal. Having appeals decided by an Appeals Unit within the Health Tribunal rather than the DOHMH Review Board promotes more independent decisionmaking. Additionally, interim rule Health Code § 7.17 granted DOHMH the right to appeal adverse decisions. In addition to those changes, the new rule now does the following:

 

·         It re-orders some of provisions and adjusts some of the technical requirements for notice and filing in subdivision (c).

 

·         It provides that all appeals be decided on written submissions and the record of the hearing.

 

·         It no longer contains a provision of the prior rule that had allowed parties to make requests to appear before the Appeals Unit (in order to be consistent with the changes above).

 

·         In subdivision (d) of the new rule, it states that a respondent may apply for a waiver of prepayment of fines prior to appealing a decision, thereby making the appeals process more accessible to all respondents regardless of their ability to pay the fines.

 

·         Consistent with its experience with appeals at the ECB Tribunal, OATH anticipates that these changes will increase efficiency and mitigate scheduling difficulties and backlogs without an impact on due process.

 

Former Health Code §7.19 (“Disqualification of member of Review Board”) was superseded in the interim rule and is no longer in effect.

 

Section 6-09 (“Registration and disqualification of certain authorized representatives”) continues and makes technical conforming changes to interim rule Health Code § 7.21, which retained the DOHMH rule as a rule of OATH. The prior changes are contained in Article 7 of the Health Code and Chapter 7 of Title 24 of the Rules of the City of New York.

 

Section 6-10 (“Computation of time”) continues, with modification, interim rule Health Code § 7.23, which retained the existing DOHMH rule as a rule of OATH. Under the interim rule and the former DOHMH rule, when a party had the right or requirement to do an act within a period of time from the date of service of a document, and if service of the document was by mail, five days were added to the period of time. In the new Chapter 6 in Title 48 of RCNY, all such time periods, with the exception of a non-appealing party’s time to respond to an appeal, start from the date of a Tribunal decision instead of the date of service of the document. Accordingly, subdivision (b) of this section is modified to provide that if a Tribunal decision is mailed to a party, seven days will be added to period of time within which the party has the right or requirement to act. This change is made to account for the extra time it is expected to take the Health Tribunal to process and mail the decision.

 

 

Effective Date: 
Fri, 07/20/2012