MRD-46-06-00015-A Environmental Requirements for Certified Residential and Non-Residential Facilities

7/25/07 N.Y. St. Reg. MRD-46-06-00015-A

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 30

July 25, 2007

RULE MAKING ACTIVITIES

OFFICE OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES

NOTICE OF ADOPTION

 

I.D No. MRD-46-06-00015-A

Filing No. 669

Filing Date. Jul. 10, 2007

Effective Date. Aug. 01, 2007

Environmental Requirements for Certified Residential and Non-Residential Facilities

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Repeal of Subpart 635-7; addition of new Subpart 635-7; and amendment of sections 635-99.1, 686.15 and 686.16 of Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.07, 13.09(b) and 16.00

Subject:

Environmental requirements for OMRDD certified residential and non-residential facilities, including family care homes.

Purpose:

To revise and update the physical plant standards for facilities certified and/or operated by OMRDD.

Substance of final rule:

• Applies to all residential and non-residential facilities certified and/or operated by OMRDD, including family care homes and individualized residential alternatives (IRAs).

• Requires the application of the 2002 edition instead of the 1984 edition of the NYS Uniform Fire Prevention and Building Codes (a.k.a. Uniform Code). The codes apply to all communities across New York State, except in New York City.

• Existing certified facilities will not have to make any changes to meet the new codes. Any new construction or renovations to existing facilities will be required to meet the new codes.

• Adds new regulatory language to assist OMRDD in establishing the compliance of existing, non-documented buildings with the 2002 edition of the Uniform Code by the utilization of the identified Life Safety Code (LSC) requirements.

• Revises terminology. Previously, residential occupancy classifications (outside of New York City) were identified as A-1 for a one family dwelling, A-2 for a two-family dwelling or B-1 for a multiple dwelling. The new code references occupancy classifications, R-3 for a one or two family dwelling and R-2 for a multiple dwelling. The occupancy classifications for those facilities where the Building Code of New York City is applied are changed to “mirror” the revisions regarding the application of the Uniform Code in the various facility classes.

• Deletes requirements which already are contained in the Uniform Code.

• Developmental centers. Adds “Institutional” occupancy classification to allow OMRDD to apply the corresponding codes when the capabilities and/or numbers of the occupants warrant it.

• Private schools. Deletes former single occupancy classification for Private Schools. Adds new occupancy classifications which reflect current and future use of buildings.

• Requires the application of the 2000 edition instead of the 1985 edition of the Life Safety Code (LSC) as mandated by the federal Centers for Medicaid and Medicare Services (CMS) in ICF/DDs and Specialty Hospitals.

• Requires the application of the 2000 edition of the LSC in the following facilities that currently apply the 1985 edition of the LSC:

- Community residences (excluding IRAs housing eight or fewer persons) for which the 1985 edition of the LSC already applies.

- New private school buildings.

- Day treatment facilities.

- Diagnostic and research clinic facilities.

• Requires, for evacuation requirements, the compliance with policies and procedures, as described in NFPA 101A, Guide on Alternative Approaches to Life Safety, 2001 edition, rather than the Life Safety Code, appendix F, with regards to E-scores maintained by the residential facility.

• IRAs. Since the regulation was originally promulgated before IRAs existed, language was added throughout the section identifying which requirements are applicable to IRAs.

• Extends the application of requirements for facilities with landlocked courtyards statewide.

• Adds a requirement that land line telephone service be provided in each facility, including family care homes.

• Adds the requirement for annual tests of private water sources in family care homes and IRAs for eight or fewer people.

• Adds a requirement that all new handrails terminate into the ground or the wall.

• Increases minimum bedroom size (in new residential facilities) to 70 square feet from 60 square feet per person.

• Incorporates numerous technical revisions (including the deletion of dated material) to make the regulation current or for purposes of clarification.

Final rule as compared with last published rule:

Nonsubstantive changes were made in sections 635-7.1(d), (e)(1)–(3), (g), (h), (h)(1)(i)(a)(1), (ii)(a)(1), (iv)(a)( 1), (v)(a)(1), 637-7.2(a)(1)(i), (iv)(c), (2), 635-7.3(a), (b), (d), (h)(9), 635-7.4(a)(3), (i), (i)(a), (b), (b)(1), (2), 635-99.1(cb) and 686.16(a)(3).

Text of rule and any required statements and analyses may be obtained from:

Barbara Brundage, Director, Regulatory Affairs Unit, Office of Mental Retardation and Developmental Disabilities, 44 Holland Ave., Albany, NY 12229, [phone]; e-mail: barbara.brundage@ omr.state.ny.us

Additional matter required by statute:

Pursuant to the requirements of the State Environmental Quality Review Act (SEQRA) and in accordance with 14 NYCRR Part 622, OMRDD has on file a negative declaration with respect to this action. Thus, consistent with the requirements of 6 NYCRR Part 617, OMRDD, as lead agency, has determined that the action described herein will not have a significant effect on the environment, and an environmental impact statement will not be prepared.

Regulatory Impact Statement and Regulatory Flexibility Analysis

Minor changes made to the last published rule, for clarification purposes only, do not necessitate revision to the previously published RIS or RFA.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis for the proposed amendments has not been submitted. OMRDD has determined that the amendments will not impose any adverse impact, reporting, recordkeeping, or other compliance requirements on public or private entities in rural areas. The amendments propose to revise and update the physical plant standards for facilities certified and/or operated by OMRDD. There is no impact specific to rural areas anticipated.

Job Impact Statement

A Job Impact Statement is not submitted because the amendment will not present an adverse impact on existing jobs or employment opportunities. The amendments propose to revise and update the physical plant standards for facilities certified and/or operated by OMRDD. OMRDD anticipates that there will be no impact on the existing or future employment opportunities.

Assessment of Public Comment

OMRDD received one set of comments from an architect in a private architectural firm. The comments and OMRDD's responses are as follows:

1. Comment: For clarification purposes the commentor suggested that all regulatory references to the “Uniform Code” be changed to “Building Code,” or reference “the Building Code and the Residential Code.”

Response: Since the term “Uniform Code” includes 19 NYCRR Parts 1220 – 1227, not just the Building Code (19 NYCRR Part 1221) and the Residential Code (19 NYCRR Part 1220), OMRDD considers it to be a more inclusive regulatory reference and will continue to use it.

2. Comment: The commentor requested clarification regarding standards applicable to pre-existing buildings which are initially certified.

Response: OMRDD has added additional clarification to paragraph 635-7.1(e).

3. Comment: Again, for purposes of clarification the commentor suggested that the regulation when listing occupancy classifications for one and two family dwelling or multiple single-family dwellings add language that specifies the Residential Code of New York State when the occupancy classification is designated “R-3.”

Response: OMRDD agrees and the necessary revisions have been included in the regulation.

4. Comment: The commentor recommended that OMRDD add requirements for carbon monoxide detectors and alarms to the regulations for residential facilities even though such requirements are in the Uniform Code.

Response: One of the changes in the new 14 NYCRR Subpart 635-7 is the deletion of those requirements which duplicate the requirements of the Uniform Code. OMRDD does not want to duplicate carbon monoxide detectors and alarm requirements in its regulations.