School-Based Programs for Children Ages Three through Five (Article 43 of the NYC Health Code)

Adopted Rules: Closed to Comments

Effective Date: 
Friday, October 21, 2016
Download Copy of Adopted Rule (.pdf): 

Statement of Basis and Purpose


The Department of Health and Mental Hygiene (the Department) Bureau of Child Care enforces Article 47 of the Health Code which regulates non-residential-based child care centers for children under six years of age) and Article 43 (School-Based Programs for Children Ages Three through Five) which regulates health and safety aspects of school-based programs for children ages three through five.  

The Board of Health has amended Article 43 of the Health Code as follows to enhance the health, safety and supervision of children under six years of age attending school-based programs.

Physical facilities: testing drinking water supplies for lead; installing window guards

            Health Code §47.43, applicable to non-school based freestanding child care centers, currently requires that “Drinking water from faucets and fountains shall be tested for lead content and the permittee shall investigate and take remedial action if lead levels at or above 15 parts per billion (ppb) are detected.”[1]  There is no similar requirement in Article 43 or in Article 45 (General Provisions Governing Schools and Children’s Institutions).  Although schools may be testing lead levels in water voluntarily, there is no general requirement that schools test potable water supplies for lead. While no water supplies should have lead levels above 15 ppb, the youngest children are most at risk for lead poisoning resulting from any environmental lead source. Article 43 is amended to require testing by school-based programs for children ages three through five of potable water supplies for lead. One change was made to the proposal, to extend the amount of time schools have to conduct drinking water lead testing from 30 days to 60 days after filing the required notice, to accommodate the amount of time needed for such testing.

            In addition, the Board is amending this article to require that window guards or other Department approved limiting devices be installed in windows in all areas of a school accessible to children under six years of age.  Since 1976, Chapter 12 of the Department’s rules has required window guards to be installed in all multiple dwelling units in which children 10 years of age and younger reside.  Section 47.41 (e) of Article 47 similarly requires window guards to be installed in child care services that are not located in school buildings. The Board finds that the same protections should be afforded the children of the same ages attending schools.

Teacher immunizations

            A new Recommended Adult Immunization Schedule was approved by the Centers for Disease Control and Prevention (CDC) Advisory Committee on Immunization Practices and published in February, 2016.  The Board is amending the immunization requirements for child care teachers and volunteers in Article 47 and for staff teaching early childhood education programs who are covered by Article 43 to be consistent with these recommendations. The major change is that having a history of measles and mumps will not be acceptable substitutes for measles and mumps vaccinations – vaccines must still be administered even if a health care provider indicates that an individual has a history of these diseases. Vaccinations are not needed if there is laboratory proof of immunity.

Statutory Authority

The authority for these amendments is found in §§ 556 and 558 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 New York City Health Code (the “Health Code”) and to include all matters to which the Department’s authority extends. Section 1043 grants the Department rule-making authority.

Section 556 of the Charter provides the New York City Department of Health and Mental Hygiene (the “Department”) with jurisdiction to protect and promote the health of all persons in the City of New York.


[1] This is the federal action level for lead in public drinking water supplies. See, US Environmental Protection Agency, “Lead and Copper Rule,” 40 CFR Part 141 Subpart I.