HLT-29-14-00012-A State Aid for Public Health Services: Counties and Cities
12/31/14 N.Y. St. Reg. HLT-29-14-00012-A
NEW YORK STATE REGISTER
VOLUME XXXVI, ISSUE 52
December 31, 2014
RULE MAKING ACTIVITIES
DEPARTMENT OF HEALTH
NOTICE OF ADOPTION
I.D No. HLT-29-14-00012-A
Filing No. 1070
Filing Date. Dec. 16, 2014
Effective Date. Dec. 31, 2014
State Aid for Public Health Services: Counties and Cities
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Repeal of Parts 30 and 40; and addition of new Part 40 to Title 10 NYCRR.
Statutory authority:
Public Health Law, sections 201, 602, 603, 619, 2201, 2202 and 2276
Subject:
State Aid for Public Health Services: Counties and Cities.
Purpose:
To modernize certain regulations, including standards of performance for eligible public health services.
Substance of final rule:
Article 6 of the Public Health Law (PHL) sets forth the statutory framework for the Departments’ State Aid program, which partially reimburses local health departments (LHDs) for eligible expenses related to specified public health services. The objectives of these amendments is to conform the State Aid regulations to recent statutory changes to PHL Article 6; clarify, simplify, and reorganize all of the regulations; and to modernize certain regulations, including standards of performance for eligible public health services.
The Department does not expect the non-conformance amendments to result in any significant increased costs. The proposed regulations were developed with considerable input from New York State Association of County Officials (NYSACHO), through numerous meetings. NYSACHO has not indicated that these regulations, which aim to reduce administrative burdens on LHDs, will result in any significant increased costs.
The regulations implementing the State Aid program are set forth in 10 NYCRR Part 39 and Subparts 40-1 and 40-2. Part 39 and Subpart 40-1 establish the administrative aspects of State Aid, including the application and payment mechanisms. Subpart 40-2 establishes the standards of performance for eligible public health services.
These regulations repeal Part 39 and Subparts 40-1 and 40-2 in their entirety. New Subparts 40-1 and 40-2 are issued. The relevant provisions of Part 39 are incorporated into a new Subpart 40-1; accordingly, Part 39 is not being reissued.
With this in mind, these regulatory amendments can be organized into three categories:
• Conformance Changes, for changes necessary to conform the regulations to the recent statutory changes to Article 6 of the PHL;
• Non-conformance Changes – Administrative, for changes to the administrative aspects of State Aid, currently set forth in Part 39 and Subpart 40-1, and now provided solely in Subpart 40-1; and
• Non-conformance changes – Standards of Performance, for changes to the performance standards for core public health services, set forth in Subpart 40-2.
The conformance changes can be summarized as follows:
• All references to the “Municipal Public Health Services Plan” (MPHSP) and Fee and Revenue Plan are removed.
• The regulations describing the State Aid Application (SAA) are amended to reflect that the SAA is now comprised of the following sections: an organizational chart and list of the number of employees providing public health services; a proposed budget; a description of how the LHD will provide public health services; an attestation by the chief executive officer of the municipality that sufficient funds have been appropriated to provide public health services; an attestation by the public health commissioner or director that the LHD has exercised due diligence in reviewing the SAA and that the application seeks State Aid only for eligible public health services; a list of public health services provided by the LHD that are not eligible for State Aid; a projection of fees and revenues to be collected for public health services eligible for State Aid and any other information or documents required by the commissioner.
• The regulation describing the duties of the local commissioner of health or public health director is revised to reflect that such official may serve as the head of a merged agency or multiple agencies if approved by the commissioner, or serve as the local commissioner of health or public health director of additional counties when authorized pursuant to section 351 of the PHL.
• The definition of “maintenance of effort”—i.e., the funding level at which an LHD must maintain services—and the calculation of the penalty for failing to comply, have been simplified.
• Subpart 40-2, which provides the standards of performance for public health services required for State Aid eligibility, is updated to include the following six core public health services: Family Health, Communicable Disease Control, Chronic Disease Prevention, Community Health Assessment, Environmental Health, and Emergency Preparedness and Response. In particular, Chronic Disease Prevention and Emergency Preparedness, which had been a subset of “Disease Control”, are now distinct core services. Public Health Education, which was a distinct core service, has been eliminated and the activities incorporated into each of the core services.
The non-conformance administrative changes to Subpart 40-1 involve significant simplification, clarification, and reorganization of all related provisions. For example, the existing sections relating to fees and revenues are updated and clarified. The regulations clarify that LHDs must make reasonable efforts to collect fees and revenue. The provisions setting forth the activities that are ineligible for State Aid is moved to Subpart 40-2, reorganized and clarified. These and other administrative changes to Subpart 40-1 are described in more detail in the Regulatory Impact Statement.
The non-conformance changes to the performance standards in Subpart 40-2 can be summarized as follows:
• The Family Health core service is amended to focus services in the following areas: Child Health, Maternal and Infant Health, and Reproductive Health sections.
• The requirements of the Chronic Disease Prevention core service are revised to focus LHDs on working with community partners to implement policy rather than on providing direct patient care.
• In the Communicable Disease Prevention core service, the section relating to General Communicable Disease control is amended to reflect best practices, which include requiring LHDs to provide communications to health care providers, clinics and laboratories on how to decrease the spread of communicable disease. The sections on Sexually Transmitted Diseases and Human Immunodeficiency Virus are consolidated.
• The Community Health Assessment section now requires LHDs to create a Community Health Improvement Plan.
• The requirements of the Environmental Health core service are simplified.
• A new core service, Emergency Preparedness and Response, is added to reflect the LHD’s active role in assuring the community is adequately prepared to respond to emergencies.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 40-2.3, 40-2.11, 40-2.22 40-2.23, 40-2.53, 40-2.55, 40-2.58, 40-2.62 and 40-2.70.
Text of rule and any required statements and analyses may be obtained from:
Katherine Ceroalo, DOH, Bureau of House Counsel, Reg. Affairs Unit, Room 2438, ESP Tower Building, Albany, NY 12237, (518) 473-7488, email: regsqna@health.ny.gov
Revised Regulatory Impact Statement, Revised Regulatory Flexibility Analysis, Revised Rural Area Flexibility Analysis and Revised Job Impact Statement
Changes made to the last published rule do not necessitate revision to the previously published RIS, RFA, RAFA and JIS.
Assessment of Public Comment
The Department received comments from the New York State Association of County Health Officials (NYSACHO) and the New York City Department of Health and Mental Hygiene (DOHMH), during the public comment period ending September 9, 2014. A summary of the comments and the Department’s responses are as follows:
NYSACHO
Comment:
The Department has proposed several policies in relation to the State Aid Application process that would increase the administrative burden on local health departments.
Response:
NYSACHO refers to certain administrative actions undertaken by the Department which it believes has caused increased burden and costs to LHDs. The policies or actions referred to are not required by the proposed regulations. The Department will consider these concerns during the development of the State Aid Application.
Comment:
Proposed section 40-1.61 eliminates a provision that would permit the Commissioner to annually distribute excess State Aid funds to the Local Health Departments (LHDs). NYSACHO requests that this language be reinstated.
Response:
The State Aid program partially reimburses LHDs for eligible expenses related to specified public health services. The provision in regulation related to disbursement of funds appropriated but not utilized for reimbursement has not been used for many years. The Department declines to reinstate it.
Comment:
Proposed section 40-2.3(a)(2) would deem ineligible for State Aid activities under the following category: “Activities carried out by any other agency. The cost of activities for which any other government agency has been given legal responsibility.” NYSACHO commented that this language could be interpreted as prohibiting another county agency from providing public health services under the direct supervision of the local health official. The following revision was suggested: “The cost of activities for which any other government agency has been given legal responsibility and for which no legal responsibility otherwise exists for services provided under Public Health Law Article Six by local health departments.”
Response:
Article 6 funding is only available to LHDs and cannot be used to reimburse activities carried out by another agency. Accordingly, this provision was not revised.
Comment:
There is a discrepancy in the language in two provisions regarding the ineligibility of certain chronic disease related activities. Specifically, section 40-2.3(b)(1)(9) includes the word “prevention”, whereas section 40-2.30(b) does not. NYSACHO recommends that the word “prevention” be removed from section 40-2.3(b)(1)(9).
Response:
The Department agrees that there is a discrepancy and has made this clarifying change.
Comment:
Proposed section 40-2.11, regarding Family Health services, is not clear as to the settings in which these services should be provided.
Response:
This section has been clarified to provide that the services listed in subdivisions (a), (c), (d) are to be provided in a clinic setting, whereas the services listed in subdivision (b) are public health home visits.
Comment:
Proposed section 40-2.70, relating to Emergency Preparedness and Response, should be amended to allow reimbursement for all emergency preparedness and response activities—not just those related to health emergency preparedness and response.
Response:
The Department intends that only health emergency and response activities are eligible for State Aid. Accordingly, this section was not revised.
DOHMH
Comment:
Section 40-2.22 (Communicable Disease Control)
The proposed section would require that LHDs maintain a program that complies with disease specific protocols, as established by the State Department of Health. DOHMH observed that New York City is statutorily exempt from much of Article 21 of the Public Health Law, which concerns communicable disease control, and that it has established its disease specific protocols pursuant to local regulation. DOHMH requested that this section be revised to provide that DOHMH may comply with its local requirements, rather than those established by the Department.
Response:
The Department agrees and has clarified this section to reflect DOHMH’s status under Article 21 of the Public Health Law.
Comment:
Section 40-2.23 (Immunization)
The proposed section would require all LHDs to ensure “compliance with the NYSIIS reporting requirements.” However, certain NYSIIS requirements do not apply to DOHMH (see, e.g., Public Health Law § 2168 and 10 NYCRR 66-1.2). DOHMH requested that the provision be amended to reflect DOHMH’s requirements with respect to NYSIIS reporting.
Response:
The Department agrees and has clarified this language to state that LHDs must improve compliance with NYSIIS reporting requirements “as applicable.”
Comment:
Section 40-2.53 (Realty subdivisions)
The proposed section would require all LHDs to maintain a program for approving realty subdivisions and assuring construction is in accordance with approved plans. In New York City, however, this activity is performed by the Buildings Department and City Planning, rather than DOHMH. DOHMH requested that the provision be qualified to reflect this arrangement.
Response:
The Department agrees and has qualified the provision to reflect this arrangement, which is specific to New York City.
Comment:
Section 40-2.55 (Nuisances)
The proposed section would require all LHDs to maintain a program that complies with the public health nuisance provisions set forth in Part 8 of the State Sanitary Code. DOHMH observed that New York City is exempt from much of Article 13 of the Public Health Law, concerning nuisances, and that it responds to nuisances in accordance with local regulations. DOHMH requested that the reference to Part 8 be removed.
Response:
The State Sanitary Code applies to all LHDs. However, LHDs may adopt provisions that are at least as protective as the State Sanitary Code. Accordingly, this section was clarified by requiring that LHDs maintain a program that is consistent with Part 8, “as applicable.” The Department does not interpret this regulation as requiring New York City to change its nuisance response activities. Nuisance abatement continues to be ineligible for State Aid.
Comment:
Section 40-2.58 (Lead Poisoning)
The proposed section provides that the local health department shall maintain a lead poisoning program that reports blood lead testing information in a manner acceptable to the State Commissioner of Health. DOHMH requested that this section be revised to clarify that it does not limit the jurisdiction of an LHD to require additional reporting in accordance with local law.
Response:
The intent of this provision in the proposed regulation was not to limit the jurisdiction of an LHD to require additional reporting in accordance with its own local law. The Department has clarified this section accordingly.
Comment:
Section 40-2.62 (Authorized Tanning Facilities)
The proposed section would require authorized LHDs to operate a tanning facility licensing and inspection consistent with 10 NYCRR Subpart 72-1. However, Subpart 72-1 allows the LHD to adopt local regulations that are at least as protective as the State regulations. DOHMH commented that this section should be clarified to reflect that, where the LHD has adopted such local regulations, it must comply with such regulations as a condition of State Aid eligibility.
Response:
The Department agrees and has clarified this section accordingly.
