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Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose

 

Statutory Authority

Section 17-325.3 of the Administrative Code, as added by Local Law 108 of 2017, requires the Department to “establish and implement a system for grading and classifying inspection results for each vending vehicle or pushcart using letters to identify and represent a vending vehicle or pushcart’s degree of compliance with laws and rules that require such vending vehicle and pushcart to operate in a sanitary matter to protect public health.” That section also requires that the system be consistent with the letter grading system established for restaurants in section 81.51 of the New York City Health Code where practicable. Moreover, section 17-324 of the Administrative Code provides authority for the Department to promulgate any rules deemed necessary for the proper implementation and enforcement pursuant to Subchapter 2 of Chapter 2 of Title 17 of the Administrative Code (Food Vendors).

Background

Since July 2010, pursuant to the mandate of section 81.51 of the New York City Health Code, the Department has been grading restaurants to provide information about how well the restaurants follow food safety requirements, as reflected by a grade of “A,” “B,” or “C” depending on the results of sanitary inspections. Inspections are conducted in prescribed cycles with a process in place for when a grade is to be posted based on the outcome of the inspection. This rule implements a substantially similar grading program for mobile food vendors, with certain exceptions as described below.

Mobile Food Vending Unit Grading Program Amendments

Amendments made to the mobile food vending grading program by this rule comprise of additional and revised definitions in section 6-02, new sections 6-16 to 6-21, and new appendices, which are described below.

§6-02 Definitions.

This section is amended to add or revise definitions of certain terms to be consistent with those used in the restaurant grading program (Chapter 23 of the Department’s rules) and the Health Code.

§6-16 Scoring mobile food vending unit inspections.

This section is new. It requires the Department to grade mobile food vending units to indicate their degree of compliance with the New York City Health Code, New York State Sanitary Code, and these rules. It also provides for assessment of points for certain violations for the purposes of grading. 

§6-17 Letter grading.

This section is new. It provides for a system of assigning letter grades of either “A,” “B” or “C” to mobile food vending units. This system is the same as is used for restaurants: a score of less than 14 points earns an “A” grade, a score between 14-27 points earns a “B,” and a score of more than 27 earns a grade of “C.”

§6-18 Intervals between inspection cycles.

This section is new. It describes the time intervals in various phases in an inspection cycle applicable to mobile food vending units. Notably:

  • Initial inspection commencing a new cycle will be conducted after about a year from the previous initial inspection if in that previous initial inspection the unit earned 0-13 points.
  • Initial inspection commencing a new cycle will be conducted 150-210 days from the reinspection in the previous cycle if at any inspection during that previous cycle the unit earned between 14 and 27 points, and did not earn more than 27 points at any inspection in the same cycle.
  • Initial inspection commencing a new cycle will be conducted 90-150 days from the final inspection in the previous cycle if at any inspection during the previous inspection cycle the unit earned a score of more than 27 points.

This section also describes the inspection cycles under certain other circumstances, such as after closure of a unit or where the operation of the unit poses an increased risk to public health.

§6-19 Posting letter grades.

This section is new and prescribes a system for posting letter grades. Notably:

  • If a unit receives an “A” at the initial inspection (0-13 points), the Department will post the A grade on the unit at the inspection.
  • If a unit scores 14 or more points and thus does not earn an “A” at the initial inspection, no grade will be posted and the Department will reinspect the unit seven or more days later.
  • If, at the reinspection, a unit receives an “A” (0-13 points), the Department will post the “A” on the unit at the reinspection.
  • If a unit scores 14 or more points at the reinspection, the Department will post a “grade pending” card on the unit until the summons is adjudicated at OATH. Alternatively, the unit’s operator may choose to bring the unit to the Department and have the grade of “B” or “C” earned at the reinspection posted on the unit instead of a “grade pending” card.[1] A unit with a “grade pending” will be required to post its final grade after a final decision by OATH.

§6-20 Position of grade cards on mobile food vending units; tampering prohibited.

This section is new. It requires the Department to post letter grades or “grade pending” cards on top of the permit decal and prohibits the removal, obstruction, or defacing of a decal or letter grade once it has been posted on the unit.

§6-21 Location sharing.

This section is new. It authorizes the Department to install a location sharing device on each mobile food vending unit for the purposes of inspection and grading.

The Department took special care in its design of the location sharing component of the grading program to protect the privacy of individuals who work as mobile food vendors. The rule includes protective features and mandates to protect location information against unwarranted use or disclosure. Specifically, section 6-21  prohibits the Department from continuously tracking a unit’s location and limits the use of the location tracking device to enforcement of directly related laws and rules; requires that all location data be deleted within 24 hours and be protected during transmission and storage; ensures that the location sharing device identification number be different from the associated unit’s permit, decal or license number; and specifies limits on the data’s use and disclosure. With these protections, the Department believes that location sharing will not risk the privacy of mobile food vendors.

Appendices 6-A, 6-B, 6-C, 6-C-2 and 6-C-3.

These appendices are new.  Appendices 6-A and 6-B implement scoring of inspection results. Appendices 6-C, 6-C-2 and 6-C-3 are set out penalties for civil violation summonses for mobile food vending violations that are adjudicated and sustained at OATH, using a schedule similar to that of Chapter 23 Appendix C (Food Service Establishment and Non Retail Food Service Establishment Penalty Schedule) in the Department’s rules.

These new appendices replace the current penalty schedules for the same violations currently in OATH’s rules.

Other Amendments to Chapter 6

§6-03 Mobile food vending unit classifications.

This section is amended to re-letter and re-number the paragraphs with no substantive changes to the text.

§6-04 Mobile food vending units: pre-permit construction and equipment requirements for all classes of mobile food vending units.

This section is amended to delete “pre-permit” from the title and to add “and grade card” to the title of paragraph (3).

Paragraph (3) of subdivision (b) is also amended to require all mobile food vending units to have a permit decal space that is a flat, smooth metal surface, which is the best material for the permit decal adhesive.

Subdivision (f) is amended to clarify and extend the deadline for water tank upgrades, and include a new requirement for a mechanical or electronic device to allow vendors to monitor water levels.

§6-05 Mobile food vending units: supplies and equipment required for different classes of mobile food vending units. 

The section is amended to add a reference to the location sharing device that must be installed on each unit.

§6-06 Size and placement of mobile food vending units.

Paragraphs (1) and (2) of subdivision (a) of this section are amended to remove expired provisions related to the allowable sizes of units other than trucks.

§6-07 Green carts.

Paragraph (a) is amended to remove the requirement that decals be placed on two sides of a green cart and carves out an exception to the ban on decal removal to authorize the Department to remove them from mobile food vending units. Paragraph (b) is also amended to eliminate the requirement of a green cart umbrella.

§6-11 Inspections; permit issuance and renewal.

Subdivisions (d) and (h) are amended to delete the references to reinspection.

Subdivision (l) is also amended to allow for revocation or denial of a permit for failing to have or tampering with grade cards or location sharing devices.

 


[1] Unlike at a restaurant inspection, the Department will require operators that choose to post a “B” or “C” grade following a reinspection to bring the unit to the Department to post the grade because the vendor staffing a unit at the time of the reinspection may not be the permit-holder with authority to make the decision. The Department’s experience grading restaurants demonstrates that the preference is typically for the Department to post the “grade pending” card following a reinspection that does not result in an “A” grade rather than the B or C card. Accordingly, posting the grade pending card will be the default for mobile food vending grading and permit-holders who would prefer a letter grade will be able to arrange for it to be posted on the unit by the Department. 

 
 
Effective Date: 
Mon, 12/10/2018

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 
 

Statement of Basis and Purpose

Statutory Authority

The repeal and restatement of Chapter 7 of Title 24 of the Rules of the City of New York and repeal of   Title 25 of the Rules of the City of New York is authorized by §§555(b)(2), 556, 558(b) and (e), and 1043 of the New York City Charter (the “Charter”) and §3.11 of the New York City Health Code.

• Section 556 of the Charter authorizes the Department of Health and Mental Hygiene (the “Department”) to regulate all matters affecting health in the City of New York. 

• Section 555(b)(2) of the Charter authorizes the Commissioner of Health and Mental Hygiene to assess penalties for health-related regulations.

• Section 558 of the Charter authorizes the Board of Health to set civil penalties for the enforcement of the Health Code.

• Section 1043 of the Charter gives the Department rulemaking powers.

Background

1. Repeal and restate Chapter 7 of Title 24 of the Rules of the City of New York

Historically, civil violations of the Health Code were adjudicated at a tribunal established by the Board of Health pursuant to §558(e) of the New York City Charter.  On November 2, 2010, however, New York City voters approved an amendment to the Charter authorizing the Mayor to consolidate certain administrative tribunals into the Office of Administrative Trials and Hearings (OATH) by Executive Order.

On July 3, 2011, the Department’s Administrative Tribunal established by the Board of Health was transferred to OATH by Executive Order No. 148 (June 8, 2011) (the “Executive Order”) and renamed the Health Tribunal at OATH. Subsequently, in 2015, the Tribunal became part of the OATH Hearings Division, which now hears and adjudicates violations issued by other City agencies as well as the Department.   

After the Department’s Administrative Tribunal was transferred into OATH, on December 13, 2011 the Board of Health repealed Article 7 (“Administrative Tribunal”) of the Health Code, which contained provisions for conduct of the Administrative Tribunal.  OATH has its own rules of procedure for the Health Tribunal at OATH, which are found in Chapter 6 of Title 48 of the Rules of the City of New York. Subdivision (b) of Health Code §3.12 (“Administrative Tribunal and Environmental Control Board proceedings”) now confers jurisdiction on the Health Tribunal at OATH  and the Environmental Control Board (“ECB”) to hear all violations of the Health Code or any other State or local law or regulation that the Department enforces by seeking fines and monetary penalties. The same subdivision also provides that any such proceeding will be adjudicated in accordance with applicable procedures of the Health Tribunal at OATH or ECB. 

Chapter 7 of the Department’s rules pre-dates the transfer of the Administrative Tribunal to OATH and the Board of Health’s repeal of Article 7 of the Health Code.  Accordingly, Chapter 7 referred to the Department’s former Administrative Tribunal and required amendment to accurately reflect that OATH’s Hearings Division now adjudicates all cases where the Department is seeking monetary penalties for violations of the Health Code.  

Chapter 7 also authorizes the Commissioner to delegate authority to OATH to hear cases and make findings of fact and recommendations in due process or “show cause” hearings.  These adjudications request reports and recommendations to the Commissioner of Health regarding such matters as permit and license revocations and employee misconduct and discipline and will continue to be held at the OATH Trials Division, and thus this authorization will remain in the restated Chapter 7.  

Because the changes to Chapter 7 are so extensive, the Chapter was repealed and restated. 

2. Codify violation penalties

Section 6-02 of OATH’s rules requires that it impose fines and other penalties in accordance with applicable law. Penalties for the violations adjudicated in ECB have been established in ECB’s (and now OATH’s) rules for many years. 

The Health Code establishes penalty ranges for violations adjudicated in the OATH Hearings Division.  OATH hearing officers continue to exercise discretion in deciding penalty amounts to be imposed for violations they sustain, provided the amounts are within the range prescribed by the Health Code.

OATH, however, is requesting that all City agencies establish by rule fixed penalties for the violations they are adjudicating in its Hearings Division.  OATH has also indicated that it will be repealing the penalty schedules in its rules for ECB cases and that agencies should also adopt by rule penalties for violations being adjudicated in that tribunal.

In 2014, the Department amended Chapter 23 of Title 24 to establish penalties for violations issued to food service establishments.  The Department has amended Chapter 7 to set penalties for other violations of the Health Code, Department rules and other applicable law enforced by various Department programs. The new fixed penalties include those for violations currently adjudicated at the OATH Hearings Division.  Food service establishment penalties will remain in Chapter 23. Mobile food vending penalties are not included in this Chapter, but the Department expects to incorporate them in a new appendix to Chapter 6 of these rules.

To further promote compliance and prompt correction of hazardous conditions, the Department’s penalties are heightened for some repeat offenses, considered continuous for others and, in the case of standing water violations, reflect the magnitude of the violation.  These terms are defined in the rules and specified in the violation descriptions.  Sustained repeat violations citing rats, rat signs, rat harborage and conditions conducive to rats carry minimum, maximum and accelerated penalties in accordance with §17-133.1 of the Administrative Code of the City of New York. 

Penalties for violations of repealed Health Code and other provisions of law contained in current ECB rules have been excluded from the penalty table, including those for violations of Article 153 and §§139.05, 139.07 and 181.03. Also excluded are penalties for violations that are already specified in a provision of the Health Code or Administrative Code, or in a particular Department rule or other applicable law.

3. Repeal Title 25 of the Rules of the City of New York

In the November 2001 general election, New York City voters approved an amendment of the Charter to establish a “Department of Public Health” (later changed to the “Department of Health and Mental Hygiene”) combining the former Departments of Health (DOH) and Mental Health, Mental Retardation, and Alcoholism Services (DMHMRAS). All employees of both agencies became employees of the combined DOHMH.  The only existing provision in Title 25 of the Rules of the City of New York of the former DMHMRAS is §1-01 (Conduct of Adjudicatory Hearings) of Chapter 1 (Adjudications), relating to employee fitness and disciplinary hearings. Title 25 is no longer necessary because of the merger of the two agencies, and the Department has now repealed it.

 

 

 
Effective Date: 
Mon, 12/10/2018

Proposed Rules: Open to Comments

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Agency:
Comment By: 
Tuesday, December 11, 2018
Proposed Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

PHL section 3502 was amended by Chapter 313 of the 2018 Laws of New York on October 2, 2018, to add subdivision (6) permitting the use of body scanners by DOC and requiring DOHMH to adopt rules governing them that meet at least the minimum requirements in PHL section 3502(6)(c).  The rules proposed by the Department meet those requirements and incorporate by reference certain definitions and portions of New York City Health Code Article 175, which governs the use of radiation producing equipment.  The proposed rules also incorporate relevant definitions, processes, and requirements established by the American National Standards Institute (“ANSI”) for such equipment.  The federal National Institute for Standards and Technology, part of the U.S. Department of Commerce, has officially recognized ANSI’s role as the country’s representative on international standards setting bodies. By incorporating ANSI standards into these rules, the Department seeks to promote maximum protection, for both DOC personnel and DOC detainees, from radiation exposure and reduce the risk associated with the operation of body scanners.

 

Subject: 

Proposal to add a new Chapter 33 to Title 24 of the Rules of the City of New York to establish rules for the use of body imaging scanning equipment that use ionizing radiation to screen individuals committed to the custody of the NYC DOC.

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

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

Download Copy of Proposed Rule (.pdf): 

Adopted Rules: Closed to Comments

Adopted Rules Content: 

City of New York

Office of Administrative Trials and Hearings

Environmental Control Board

Notice of Promulgation of Rule

NOTICE IS HEREBY GIVEN PURSUANT TO THE AUTHORITY VESTED in the Office of Administrative Trials and Hearings’ Environmental Control Board (OATH ECB) in accordance with Sections 1049-a and 1043 of the New York City Charter. OATH ECB repeals its Food Vendor Penalty Schedule, Health Code and Miscellaneous Food Vendor Violations Penalty Schedule, Health Code Lead Abatement Penalty Schedule, and Public Health Law Penalty Schedule rules, found in Sections 3-107, 3-110, 3-112, and 3-117 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York (RCNY). The proposed rule repeal was published in The City Record on July 6, 2018, and a public hearing was held on August 7, 2018. 

No one attended or testified at the public hearing concerning this rule repeal and OATH did not receive any written comments. 

Statement of Basis and Purpose of Rule

The Office of Administrative Trials and Hearings’ Environmental Control Board (OATH ECB) repeals its Food Vendor Penalty Schedule, Health Code and Miscellaneous Food Vendor Violations Penalty Schedule, Health Code Lead Abatement Penalty Schedule, and Public Health Law Penalty Schedule rules. These schedules are found in §§ 3-107, 3-110, 3-112, and 3-117 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York (RCNY), and it contains penalties for violations of provisions in Title 17 of the Administrative Code of the City of New York, New York State Public Health Law, the New York City Health Code and Chapter 6 of Title 24 of the RCNY. At the same time, the Department of Health and Mental Hygiene (DOHMH) adopts rules, adding similar penalty schedules to Chapters 6 and 7 of Title 24 of the Rules of the City of New York.

The context for this repeal is that OATH ECB is in the process of repealing all penalty schedules in its rules codified at Subchapter G of Chapter 3 of Title 48 of the RCNY so that they can be incorporated into the rules of the agencies having rulemaking and policymaking jurisdiction over the laws underlying the violations.

Although OATH ECB is empowered to impose penalties under the New York City Charter and has until now promulgated penalty schedules, the regulatory and enforcement agencies have the necessary expertise to determine appropriate penalties for violation of the rules and of the laws within their jurisdiction based on the severity of each violation and its effect on City residents. Moving the penalty schedule will also make it easier for the public to find the penalties, which will be located within the same chapter as the rules supporting the violations alleged in the summonses. Finally, the rule repeal will speed up the rulemaking process by eliminating the need for OATH ECB approval of proposed or amended penalties for agency rules that have already been established by the legislature and/or that have already undergone the City Administrative Procedure Act (CAPA) process by the enforcement agency.  The public will still have the opportunity to comment on proposed penalties during that process.

Working with the City’s rulemaking agencies, the Law Department, the Mayor’s Office of Management and Budget, and the Mayor’s Office of Operations conducted a retrospective rules review of the City’s existing rules, identifying those rules that could be repealed or modified to reduce regulatory burdens, increase equity, support small businesses, and simplify and update content to help support public understanding and compliance. This rule repeal was identified as meeting the criteria for this initiative.

Section 1. The Food Vendor Penalty Schedule rule, found in Section 3-107 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, is REPEALED.

Section 2. The Health Code and Miscellaneous Food Vendor Violations Penalty Schedule rule, found in Section 3-110 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, is REPEALED.

Section 3. The Health Code Lead Abatement Penalty Schedule rule, found in Section 3-112 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, is REPEALED.

Section 4. The Public Health Law Penalty Schedule rule, found in Section 3-117 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, is REPEALED.

Effective Date: 
Sun, 12/09/2018

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 

Statement of Basis and Purpose

 

Statutory Authority

The Board’s authority to codify these proposed amendments is found in Sections, 556, 558, and 1043 of the New York City Charter (the “Charter”). Sections 558(b) and (c) of the Charter empower the Board to amend the Health Code and to include all matters to which the Department’s authority extends. Section 556 of the Charter provides the Department with jurisdiction to protect and promote the health of all persons in the City of New York. Section 1043 grants the Department rule-making authority.

Background

The Department is responsible under the Charter for supervising matters affecting the health of New Yorkers. This includes supervision of the reporting and control of chronic diseases and conditions hazardous to life and health.[1] The Department also has specific responsibilities with regard to mental health.  Pursuant to Section 552 of the Charter, the Department’s Division of Mental Hygiene (MHy) is the local government unit (LGU) for the City of New York under New York State Mental Hygiene Law, and the executive deputy commissioner who directs the Division is the City’s director of community services.  As the LGU, MHy is responsible for administering, planning, contracting, monitoring, and evaluating community mental health and substance use services within the City of New York. It also is charged with identifying needs and planning for the provision of services for high-need individuals, such as persons with schizophrenia and other psychotic illnesses. In 2013, the Board of Health amended the Health Code to require hospitals to report when persons between the age of 18 and 30 are first admitted with a psychotic illness so that DOHMH can make appropriate linkages to services through the NYC Supportive Transition and Recovery Team (NYC START).  The Department of Health and Mental Hygiene has successfully implemented hospital reporting with time-limited linkage to care for individuals 18 to 30 years of age with a first-episode psychosis hospital admission. However, in order to best account for and intervene in episodes of early psychosis and address health disparities, it is necessary to expand the age criteria for the reporting requirement to those aged 16 and over, collect data on race and ethnicity, and retain collected information past the current 30-day time limit.

Current Linkages to Care for First-Episode Psychosis

When the Health Code was amended in 2013 to address inadequate linkages to care for people with first-episode psychosis, we pointed out that New Yorkers with psychotic illnesses often do not seek care or become disengaged from care in part due to:

  • Fragmentation in the current mental health treatment system (patients being lost to care in transitions from hospitalization);
  • Exchange of patient information unsupported by technology infrastructure or current administrative practices;
  • Mental health treatment providers lacking resources to ensure links are established between patients and community supports; and
  • Challenges such as stigma, denial, fear, lack of support, and confusion related to benefits and insurance

While NYC START has improved these linkages to care for those who are reported with first-episode psychosis and accept services, the Board is further amending the Health Code to improve the health of all New Yorkers with first-episode psychosis. In particular, there were three areas that needed to be addressed in order to more fully account for the needs of individuals with psychosis:

  1. Until the adoption of these amendments to Health Code Section 11.04, MHy could retain identifiable information of individuals reported with first-episode psychosis for only 30 days unless they accepted care through NYC START, making psychosis the only reportable illness that placed a limit on the amount of time the information can be seen by the Department. After 30 days, this information had to be de-identified and could not be used to follow up with the individual or to identify possible re-reporting. Given the many reasons that people with first-episode psychosis disengage from care, it is necessary to retain this information past 30 days to ensure that outreach can continue to those who have been unreachable during the initial 30-day period, to comprehensively assess the needs of communities, and to work with providers to develop successful interventions.                                                                    
  2. DOMMH estimates that approximately 2,000 new cases of psychotic illness develop each year in New York.[2],[3]  Our analysis of NYC hospital admissions found that six percent of probable first-episode admissions occurred among persons between 16 and 17 years of age.[4]  There has been an expansion in the availability of specialized services for individuals 16 to 30 years of age.  However, due to past restrictions in the Health Code limiting the reporting age to between 18 and 30, we did not account for individuals who developed first-episode psychosis before the age of 18.                                                            
  3. Race and ethnicity were not among the factors that hospitals identify when making a report of first-episode psychosis. Because there are racial disparities in the diagnosis and treatment of psychotic disorders, however, this information is especially pertinent to collect and utilize to improve interventions and address health inequity.[5]

 Amendments

To improve interventions, linkages to care, and outcomes for New Yorkers experiencing first-episodes of psychosis, the Board of Health is amending Article 11 of the Health Code. The changes will facilitate participation in early intervention services by requiring hospitals to report when individuals over 16 and under 31 years of age are admitted with a first-episode of psychotic illness. The changes will further facilitate the creation of a database of reported cases of first-episode psychosis that will permit the Department to monitor trends of the illness.

Evaluating these trends can be used to:

  • Develop targeted, culturally-competent interventions in the NYC START program
  • Measure outcomes of first-episode psychosis care, and thereby direct more efficient interventions to health care institutions, health care providers and people with psychosis.

Reporting will continue to be required within 24 hours of admission and will include hospital name, patient name, age, gender, address, telephone, date of admission, insurance type, diagnosis, race, and ethnicity. All patient information reported to the Department will be kept confidential and will not be shared with unauthorized individuals.

The amendments have been revised to include the name and contact information of a parent or guardian among information to be reported when the patient is a minor; to clarify the exception to the reporting requirement; to clarify confidentiality provisions; and to include an effective date of January 1, 2019.




[1] Charter §556(c)(2).

[2] Kirkbride JB et al.  Int J Epi.  2009; 38-1255-64.

[3] Baldwin P et al. Schiz Bull 2005 31;3, 624-38.

[4] DOHMH internal analysis of NYC hospital admissions in 2009 for probable first-episode psychosis among 16 – 29 year olds.

[5] Schwartz, R et al. World J Psychiatry. 2014 4(4): 133-140

 
Effective Date: 
Tue, 01/01/2019

Adopted Rules: Closed to Comments

Adopted Rules Content: 

Statement of Basis and Purpose

Background

Amendments to sex designation on Birth Records

            In 1971, the Board of Health amended Section 207.05 of the Health Code to allow the Department to file a new birth certificate with a corrected gender marker of male or female for a person who both obtained a court order changing his or her name and who underwent “convertive” surgery. The Department had, generally but not exclusively, interpreted the requirement for convertive surgery to mean genital surgery. As a result, transgender applicants requesting new birth certificates were required to submit medical records demonstrating that they had undergone genital surgery to change sex and the number of requests for a corrected birth certificate was relatively small. For example, in 2012, the number of new birth certificates approved and issued to transgender applicants was 20 and, in 2013 only 22 new birth certificates were issued.

            In 2014, the Board of Health amended Section 207.05(a)(5) to eliminate the requirement for convertive surgery. This amendment allowed applicants to request a new birth certificate with a changed gender marker of male or female based on 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. Eliminating the requirement to demonstrate genital surgery led to a dramatic increase in requests for new birth certificates; from January 2015, when the amendment became effective, through February 2018, the Department issued 1,047 new birth certificates to transgender applicants.

            Most recently, the Department, in discussion with other states and advocates, found that having practitioners affirm or attest to a person’s gender identity is both a potential barrier and does not add sufficient value in the process of deciding whether a new birth certificate should be issued. Anecdotal evidence suggests that practitioners simply comply with their patients’ requests when asked to affirm or attest to a patient’s request for a change of gender. 

            The Board is now (1) eliminating the requirement that a person requesting a change to the sex designation on a birth certificate present proof from a health professional and instead allow applicants to self-attest as to their gender, and (2) approving “X” as an additional sex designation gender option that is not exclusively female or male for birth certificate sex change requests. The sex designation on the US Standard Certificate of Live Birth is completed by the hospital or attendant at the time of birth. The four choices are male, female, unknown and undetermined. These are “sex” categories and not gender categories. The original public health data reported by the hospital is not changed under this amendment.  “Gender” categories are only applied on the birth certificate during an amendment process. When the gender on a birth certificate is amended the original record is placed under seal and a new record is created. There is no indication on the record of the amendment history. A sex designation of “X” will be allowed for those applicants who want a designation other than female or male on their birth certificate.

Health Code Amendment

            The Board is eliminating the requirement that a person requesting a change to the sex designation on a birth certificate present proof from a health professional. Instead, applicants will be able to self-attest as to their gender. Additionally, the Board has approved “X” as an additional designation for persons who do not identify as exclusively female or male.  The Department believes that the amendments are important steps in enabling people to obtain official documents that accurately reflect their gender identity.  The Board is making these amendments effective January 1, 2019.       

Statutory Authority

           Pursuant to section 556(c) of the Charter and section 17-166 of the Administrative Code, the Department is responsible for supervising and controlling the registration of births and deaths that occur in New York City. Section 558(c) of the Charter requires the Board to include in the Health Code provisions related to maintaining a registry of births and deaths, as well as provisions related to changes or alterations of any birth or death certificate upon proof satisfactory to the Commissioner of Health and the manner in which these certificates may be issued and otherwise examined.  Section 17-167.1 of the Administrative Code and Health Code section 207.05 delineate the requirements to change the sex designation on birth records  Section 558(b) of the Charter specifically authorizes the Board to add to, alter, and amend the Health Code.

            

Effective Date: 
Tue, 01/01/2019

Adopted Rules: Closed to Comments

Adopted Rules Content: 
 

Statement of Basis and Purpose

  

Tobacco use is a leading cause of premature, preventable death in the City, killing an estimated 12,000 people annually. All tobacco products — including cigars, smokeless tobacco, tobacco containing shisha and others — are inherently dangerous, and contain nicotine, which is addictive. Despite the City’s progress in reducing cigarette smoking among youth and adults, an increasing percentage of youth are using other tobacco products (OTP) like cigars, waterpipes (hookahs), and smokeless tobacco.

According to the World Health Organization, raising prices through tobacco taxes is the single most effective way to decrease tobacco use. Taxation reduces tobacco use by reducing youth initiation, encouraging tobacco users to quit, and reducing consumption among those who do not quit. Similarly, increased minimum prices for tobacco products can also decrease tobacco consumption. Given relatively high levels of taxation on cigarettes at the federal, state, and local levels, OTP are generally less expensive than cigarettes, increasing their attractiveness as cheaper alternatives. In 2017, Local Law 145 was enacted to reduce the prevalence of OTP use, particularly among youth, utilizing two strategies: first, it establishes price floors for OTP and second, it imposes taxes on OTP. 

Local Law 145 establishes minimum package sizes for cigarettes, tobacco products and non-tobacco shisha that complement the price floors. In contrast to cigarettes, which are required to be packaged and sold in packages of 20, the OTP regulated by Local Law 145 are not packaged or sold in a standardized manner, with the exception of little cigars which are sold and packaged like cigarettes. When OTP is offered for sale in relatively small, inexpensive quantities, it may facilitate experimentation with tobacco by non-tobacco users, potentially contributing to addiction, and help tobacco users to sustain their addiction at little cost.  To address this, Local Law 145 prohibits retail dealers from selling little cigars, snus, shisha and non-tobacco shisha, and loose tobacco unless such products are sold in the prescribed package size. 

To bring the Department’s rules into agreement with Local Law 145, two sections of Chapter 13 of Title 24 of the Rules of the City of New York are being repealed and readopted. Specifically, section 13-02, which prohibits the sale of cigarettes or the sale of tobacco products for less than the listed price, is repealed and readopted to add definitions for terms used in the rule that are consistent with those in Local Law 145. Section 13-03 is repealed and readopted to reflect the price floors required by Local Law 145 for OTP products in a range of quantities to account for the variation in the packaging and quantity of the products sold.

In addition, the Department is repealing section 13-04 of chapter 13, which prohibited retail dealers from selling cigars unless they were sold in a package of at least four cigars, because Local Law 145 eliminated this requirement and replaced it with a prohibition on the sale of any cigarette or tobacco product outside of the package provided by the manufacturer.  The Department is also repealing section 13-05 of chapter 13, which prohibits the sale of cigarettes and tobacco products to persons less than twenty-one years of age, because the rule does not elaborate on the prohibition imposed by the Administrative Code and, since the Department of Consumer Affairs (DCA) enforces this prohibition, there is no need for it to be repeated in the rules of the Department.  

 
Effective Date: 
Thu, 10/11/2018

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Tuesday, August 7, 2018
Proposed Rules Content: 

Statement of Basis and Purpose of Proposed Rule

The Office of Administrative Trials and Hearings’ Environmental Control Board (OATH ECB) is proposing to repeal its Food Vendor Penalty Schedule, Health Code and Miscellaneous Food Vendor Violations Penalty Schedule, Health Code Lead Abatement Penalty Schedule, and Public Health Law Penalty Schedule rules. These schedules are found in Sections 3-107, 3-110, 3-112, and 3-117 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York (RCNY), and contain penalties for violations of provisions in Title 17 of the NYC Administrative Code, New York State Public Health Law, the NYC Health Code, and Chapter 6 of Title 24 of the Rules of the City of New York. At the same time, DOHMH is proposing two companion rules adding to its rules a Mobile Food Vending Unit Penalty Schedule and a penalty schedule for the remaining violations issued by DOHMH.

The context for this proposed repeal is that OATH ECB is in the process of repealing all penalty schedules in its rules codified at Subchapter G of Chapter 3 of Title 48 of the RCNY so that they can be incorporated into the rules of the agencies having rulemaking and policymaking jurisdiction over the laws underlying these penalties.

Although OATH ECB is empowered to impose penalties under the New York City Charter and has until now promulgated penalty schedules, the regulatory and enforcement agencies have the necessary expertise to determine appropriate penalties for violation of the rules and laws within their jurisdiction based on the severity of each violation and its effect on City residents. Moving the penalty schedule to the enforcement agency’s rules will also make it easier for the public to find the penalties, which will be located within the same chapter as the rules supporting the violations alleged in the summonses. Finally, the proposed rule repeal will speed up the rulemaking process by eliminating the need for OATH ECB approval of proposed or amended penalties for agency rules that have already been established by the legislature and/or that have already undergone the City Administrative Procedure Act (CAPA) process by the enforcement agency. The public will still have the opportunity to comment on proposed penalties during that process.

Working with the City’s rulemaking agencies, the Law Department, the Mayor’s Office of Management and Budget, and the Mayor’s Office of Operations conducted a retrospective rules review of the City’s existing rules, identifying those rules that could be repealed or modified to reduce regulatory burdens, increase equity, support small businesses, and simplify and update content to help support public understanding and compliance. This proposed rule repeal was identified as meeting the criteria for this initiative.

Section 1. The Food Vendor Penalty Schedule rule, found in Section 3-107 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, is REPEALED.

Section 2. The Health Code and Miscellaneous Food Vendor Violations Penalty Schedule rule, found in Section 3-110 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, is REPEALED.

Section 3. The Health Code Lead Abatement Penalty Schedule rule, found in Section 3-112 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, is REPEALED.

Section 4. The Public Health Law Penalty Schedule rule, found in Section 3-117 of Subchapter G of Chapter 3 of Title 48 of the Rules of the City of New York, is REPEALED.

Subject: 

.OATH ECB Proposed Repeal of the Food Vendor Penalty Schedule, Health Code and Miscellaneous Food Vendor Violations Penalty Schedule, Health Code Lead Abatement Penalty Schedule, and Public Health Law Penalty Schedule rules

Location: 
10th Floor Conference Room
66 John Street 10th Floor
New York, NY 10038
Contact: 

OATH Rules (212) 436-0708

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Monday, August 6, 2018
Proposed Rules Content: 
 

Statement of Basis and Purpose of Proposed Rule

Statutory Authority

The repeal and restatement of Chapter 7 of Title 24 of the Rules of the City of New York and repeal of   Title 25 of the Rules of the City of New York is authorized by §§555(b)(2), 556, 558(b) and (e), and 1043 of the New York City Charter (the “Charter”) and §3.11 of the New York City Health Code.

    • Section 556 of the Charter authorizes the Department of Health and Mental Hygiene (the “Department”) to regulate all matters affecting health in the City of New York. 

    • Section 555(b)(2) of the Charter authorizes the Commissioner of Health and Mental Hygiene to assess penalties for health-related regulations.

    • Section 558 of the Charter authorizes the Board of Health to set civil penalties for the enforcement of the Health Code.

    • Section 1043 of the Charter gives the Department rulemaking powers.

 

Background of Proposed Rule

    1. Repeal and restate Chapter 7 of Title 24 of the Rules of the City of New York

Historically, civil violations of the Health Code were adjudicated at a tribunal established by the Board of Health pursuant to §558(e) of the New York City Charter.  On November 2, 2010, however, New York City voters approved an amendment to the Charter authorizing the Mayor to consolidate certain administrative tribunals into the Office of Administrative Trials and Hearings (OATH) by Executive Order.

On July 3, 2011, the Department’s Administrative Tribunal established by the Board of Health was transferred to OATH by Executive Order No. 148 (June 8, 2011) (the “Executive Order”) and renamed the Health Tribunal at OATH. Subsequently, in 2015, the Tribunal became part of the OATH Hearings Division, which now hears and adjudicates violations issued by other City agencies as well as the Department.   

After the Department’s Administrative Tribunal was transferred into OATH, on December 13, 2011 the Board of Health repealed Article 7 (“Administrative Tribunal”) of the Health Code, which contained provisions for conduct of the Administrative Tribunal.  OATH has its own rules of procedure for the Health Tribunal at OATH, which are found in Chapter 6 of Title 48 of the Rules of the City of New York. Subdivision (b) of Health Code §3.12 (“Administrative Tribunal and Environmental Control Board proceedings”) now confers jurisdiction on the Health Tribunal at OATH  and the Environmental Control Board (“ECB”) to hear all violations of the Health Code or any other State or local law or regulation that the Department enforces by seeking fines and monetary penalties. The same subdivision also provides that any such proceeding will be adjudicated in accordance with applicable procedures of the Health Tribunal at OATH or ECB. 

Chapter 7 of the Department’s rules pre-dates the transfer of the Administrative Tribunal to OATH and the Board of Health’s repeal of Article 7 of the Health Code.  Accordingly, Chapter 7 still refers to the Department’s former Administrative Tribunal and must be amended to accurately reflect that OATH’s Hearings Division now adjudicates all cases where the Department is seeking monetary penalties for violations of the Health Code.  

Chapter 7 also authorizes the Commissioner to delegate authority to OATH to hear cases and make findings of fact and recommendations in due process or “show cause” hearings.  These adjudications request reports and recommendations to the Commissioner of Health regarding such matters as permit and license revocations and employee misconduct and discipline and will continue to be held at the OATH Trials Division, and thus this authorization will remain in the restated Chapter 7.  

Because the changes to Chapter 7 are so extensive, the Chapter is being repealed and restated. 

   2. Codify violation penalties

Section 6-02 of OATH’s rules requires that it impose fines and other penalties in accordance with applicable law. Penalties for the violations adjudicated in ECB have been established in ECB’s (and now OATH’s) rules for many years. 

The Health Code establishes penalty ranges for violations adjudicated in the OATH Hearings Division.  OATH hearing officers continue to exercise discretion in deciding penalty amounts to be imposed for violations they sustain, provided the amounts are within the range prescribed by the Health Code.

OATH, however, is requesting that all City agencies establish by rule fixed penalties for the violations they are adjudicating in its Hearings Division.  OATH has also indicated that it will be repealing the penalty schedules in its rules for ECB cases and that agencies should also adopt by rule penalties for violations being adjudicated in that tribunal.

In 2014, the Department amended Chapter 23 of Title 24 to establish penalties for violations issued to food service establishments.  The Department is now proposing to amend Chapter 7 to set penalties for other violations of the Health Code, Department rules and other applicable law enforced by various Department programs. The new fixed penalties include those for violations currently adjudicated at the OATH Hearings Division.  Food service establishment penalties will remain in Chapter 23. Mobile food vending penalties are not included in this Chapter, but the Department expects to incorporate them in a new appendix to Chapter 6 of these rules.

To further promote compliance and prompt correction of hazardous conditions, the penalties proposed by the Department are heightened for some repeat offenses, considered continuous for others and in the case of standing water violations, the penalties reflect the magnitude of the violation.  These terms are defined in the rules and specified in the violation descriptions.  Sustained repeat violations citing rats, rat signs, rat harborage and conditions conducive to rats carry minimum, maximum and accelerated penalties in accordance with §17-133.1 of the Administrative Code of the City of New York. 

Penalties for violations of repealed Health Code and other provisions of law contained in current ECB rules have been excluded from the proposed penalty table, including those for violations of Article 153 and §§139.05, 139.07 and 181.03. Also excluded are penalties for violations that are already specified in a provision of the Health Code or Administrative Code, or in a particular Department rule or other applicable law.

   3. Repeal Title 25 of the Rules of the City of New York

In the November 2001 general election, New York City voters approved an amendment of the Charter to establish a “Department of Public Health” (later changed to the “Department of Health and Mental Hygiene”) combining the former Departments of Health (DOH) and Mental Health, Mental Retardation, and Alcoholism Services (DMHMRAS). All employees of both agencies became employees of the combined DOHMH.  The only existing provision in Title 25 of the Rules of the City of New York of the former DMHMRAS is §1-01 (Conduct of Adjudicatory Hearings) of Chapter 1 (Adjudications), relating to employee fitness and disciplinary hearings. Title 25 is no longer necessary because of the merger of the two agencies, and the Department proposes to repeal it.

 

 

Subject: 

Proposal to repeal and restate Chapter 7 (Adjudicatory Hearings) of Title 24 of the Rules of the City of New York regarding penalty schedule.

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

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

Download Copy of Proposed Rule (.pdf): 

Proposed Rules: Closed to Comments

Agency:
Comment By: 
Thursday, August 2, 2018
Proposed Rules Content: 
 
 

Statement of Basis and Purpose of Proposed Rule

Tobacco use is a leading cause of premature, preventable death in the City, killing an estimated 12,000 people annually. All tobacco products—including cigars, smokeless tobacco, tobacco containing shisha and others—are inherently dangerous, and contain nicotine, which is addictive. Despite the City’s progress in reducing cigarette smoking among youth and adults, an increasing percentage of youth are using other tobacco products (OTP) like cigars, waterpipes (hookahs), and smokeless tobacco.

According to the World Health Organization, raising prices through tobacco taxes is the single most effective way to decrease tobacco use. Taxation reduces tobacco use by reducing youth initiation, encouraging tobacco users to quit, and reducing consumption among those who do not quit. Similarly, increased minimum prices for tobacco products can also decrease tobacco consumption. Given relatively high levels of taxation on cigarettes at the federal, state, and local levels, OTP are generally less expensive than cigarettes, increasing their attractiveness as cheaper alternatives. In 2017, Local Law 145 was enacted to reduce the prevalence of OTP use, particularly among youth, utilizing two strategies: first, it establishes price floors for OTP and second, it imposes taxes on OTP.  The proposed rules address the OTP price floors.

In contrast to cigarettes, which are required to be packaged and sold in packages of 20, the OTP regulated by Local Law 145 are not packaged or sold in a standardized manner, with the exception of little cigars which are sold and packaged like cigarettes. The Department is proposing these rules to publicize the price floors of the OTP products for a range of quantities to account for the variation in the packaging and quantity of the products sold.

Local Law 145 sets minimum pack sizes for OTP, complementing the price floors. When OTP is offered for sale in relatively small, inexpensive quantities, it may facilitate experimentation with tobacco by non-tobacco users, potentially contributing to addiction, and help tobacco users to sustain their addiction at little cost. 

The proposed 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.

 

Subject: 

Proposal to amend Chapter 13 of Title 24 of the Rules of the City of New York to clarify requirements related to Local Law 145 of 2017, which imposes a tax on tobacco products other than cigarettes (OTP), creates minimum prices for cigarettes and OTP, and sets minimum pack sizes for various OTP.

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

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

Download Copy of Proposed Rule (.pdf): 

Pages