Home » 2013 Issues » January 23, 2013 » PDD-46-12-00016-A Smoking Policy Inside and on Grounds of OPWDD Operated and Certified Settings
PDD-46-12-00016-A Smoking Policy Inside and on Grounds of OPWDD Operated and Certified Settings
1/23/13 N.Y. St. Reg. PDD-46-12-00016-A
NEW YORK STATE REGISTER
VOLUME XXXV, ISSUE 04
January 23, 2013
RULE MAKING ACTIVITIES
OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES
NOTICE OF ADOPTION
I.D No. PDD-46-12-00016-A
Filing No. 34
Filing Date. Jan. 08, 2013
Effective Date. Jan. 23, 2013
Smoking Policy Inside and on Grounds of OPWDD Operated and Certified Settings
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 633.23; and amendment of Subpart 635-7 of Title 14 NYCRR.
Statutory authority:
Mental Hygiene Law, sections 13.07, 13.09(b) and 16.00
Subject:
Smoking policy inside and on grounds of OPWDD operated and certified settings.
Purpose:
To prohibit smoking at OPWDD operated and certified settings and to delineate the exceptions to the prohibition.
Text or summary was published
in the November 14, 2012 issue of the Register, I.D. No. PDD-46-12-00016-EP.
Final rule as compared with last published rule:
No changes.
Text of rule and any required statements and analyses may be obtained from:
Barbara Brundage, Director, Regulatory Affairs Unit, OPWDD, 44 Holland Avenue, Albany, NY 12229, (518) 474-1830, email: barbara.brundage@opwdd.ny.gov
Additional matter required by statute:
Pursuant to the requirements of the State Environmental Quality Review Act, OPWDD, as lead agency, has determined that the action described herein will have no effect on the environment, and an E.I.S. is not needed.
Assessment of Public Comment
OPWDD received comments from the New York City Department of Health and Mental Hygiene (DOHMH), the NYC Coalition for a Smoke-Free City, a member of the public, and the family of a person receiving residential services from OPWDD.
Comment: DOHMH expressed full support for the proposed regulations regarding smoking restrictions inside and on the grounds of OPWDD operated and OPWDD certified facilities. DOHMH commented that "reducing smoking prevalence and exposure to secondhand smoke is one of the key priorities of DOHMH, and the proposed regulations will help further these goals." DOHMH noted that it encourages all OPWDD operated and OPWDD certified programs to adopt smoke-free policies and advised that it can provide resources to assist the programs toward that end.
Response: OPWDD appreciates the support from DOHMH and thanks the agency for guidance on resources available to New York City provider agencies.
Comment: The NYC Coalition for a Smoke-Free City expressed support for adoption of the proposed regulations regarding smoking restrictions inside and on the grounds of OPWDD operated and OPWDD certified facilities. The Coalition believes that the new rules will complement the existing New York State Clean Indoor Air Act by covering more OPWDD operated and OPWDD certified facilities, thereby protecting the health of more New York State residents.
Response: OPWDD appreciates the support from the NYC Coalition for a Smoke-Free City.
Comment: A member of the public expressed full support of emergency and permanent adoption of provisions that will curtail the use of tobacco products on any OPWDD property and its immediate surroundings.
Response: OPWDD appreciates the support from this member of the public.
Comments: The family of an individual who resides in an OPWDD residence noted that, although the stated purpose of the regulations is to "protect the health, safety, and welfare of individuals receiving services in residential … facilities certified or operated by OPWDD," all persons receiving services may smoke outdoors and persons who reside in certain certified facilities may also smoke indoors. The family commented that the regulations will not meet the stated purpose under these circumstances. The family, which expressed concern about an individual's right to smoke in a supervised home, also posited that smoking in supervised homes "probably is safer" than smoking in supportive homes.
Response: OPWDD acknowledges these comments. OPWDD is committed to protecting the health, safety, and welfare of all individuals receiving services. These regulations seek to balance health and safety concerns with individual choices, as well as differences in living arrangements.
Comment: In the context of fire safety, the family noted that the regulations address a problem that does not exist. The family noted that no fires in the OPWDD system have been attributed to smoking by persons receiving services.
Response: OPWDD disagrees with this perspective. According to the United States Fire Administration, approximately 1,000 people die every year in their homes from fires caused by cigarettes and other smoking materials. There is ample evidence that smoking is a potential, but preventable, cause of fires. The indoor smoking prohibition and outdoor smoking limitations included in the regulations address fire safety risks and are in keeping with OPWDD's commitment to protecting the safety of individuals receiving services.
Comment: The family commented that the regulations are in violation of OPWDD's Guiding Principle to "Put People First," in violation of the Willowbrook Permanent Injunction, and in violation of the federal Americans with Disabilities Act because the indoor smoking prohibition does not sufficiently accommodate a smoker's interests.
Response: OPWDD disagrees with these comments. OPWDD must balance accommodation of individual interests with protections to address the rights and safety of others.
