PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 52.42; and amendment of Subpart 79-4 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 207 (not subdivided), 212(3), 6504 (not subdivided), 6506(1), (2), (5), (6), (8), (9), (10), 6507(2)(a), 6508(1), (2), (3), (7) and 8505(5); and L. 2011, ch. 262
Finding of necessity for emergency rule:
Preservation of public health and general welfare.
Specific reasons underlying the finding of necessity:
The proposed amendment to the Regulations of the Commissioner of Education is necessary to implement Chapter 262 of the Laws of 2011, which amended Education Law section 8505 to authorize the provision of polysomnographic technology services, as defined by the Commissioner of Education, by individuals who meet standards promulgated by the Commissioner.
Because the Board of Regents meets at fixed intervals, and generally does not meet in the month of August, the earliest the proposed amendment can be presented for adoption, after expiration of the 45-day public comment period provided for in State Administrative Procedure Act (SAPA) section 202(1) and (5), is the October 9-10, 2012 Regents meeting. Furthermore, pursuant to SAPA, the earliest effective date of the proposed amendment, if adopted at the September meeting, would be October 31, 2012, the date a Notice of Adoption would be published in the State Register. However, the provisions of Chapter 262 of the Laws of 2011 will become effective on August 3, 2012.
Emergency action is necessary for the preservation of the public health and general welfare in order to enable the State Education Department to establish requirements for the authorized practice of polysomnographic technology, and thereby ensure the timely implementation of Chapter 262 of the Laws of 2011.
It is anticipated that the proposed amendments will be presented for adoption as a permanent rule at the October 2012 meeting of the Board of Regents, after publication in the State Register and expiration of the 45-day public comment period on proposed rule makings required by the State Administrative Procedure Act.
Subject:
Polysomnographic technologists.
Purpose:
To establish standards for the provision of polysomnographic technology services.
Text of emergency rule:
1. Section 52.42 of the Regulations of the Commissioner of Education is added, effective August 3, 2012, to read as follows:
§ 52.42 Polysomnographic technology.
(a) Definitions. As used in this section:
(1) Professional polysomnographic technology coursework shall mean didactic coursework and supervised clinical experiences. Such coursework and clinical experiences shall include, but shall not be limited to, the following curricular areas:
(i) polysomnographic procedures and protocols;
(ii) cardiopulmonary and neurological sciences, diagnostics, interpretation, and monitoring related to sleep disorders.
(iii) ethics of polysomnographic care;
(iv) infection control; and
(v) polysomnographic patient care and patient education related to sleep disorders;
(2) Equivalent shall mean substantially the same, as determined by the department.
(b) Program requirements. In addition to meeting all applicable provisions of this Part, to be registered as a program recognized as leading to the authorization in polysomnographic technology which meets the requirements in section 79-4.2(a) of this chapter, it shall be a program in polysomnographic technology leading to an associate degree or higher degree and shall meet the following requirements.
(1) An associate degree program in polysomnographic technology shall contain at least 60 semester hours, or the equivalent, including a minimum of 30 semester hours in professional polysomnographic technology coursework, or the equivalent, and additional semester hours in appropriate related basic sciences and clinical sciences related to polysomnographic technology.
(2) A baccalaureate degree program in polysomnographic technology shall contain a minimum of 40 semester hours of professional polysomnographic technology coursework, or the equivalent, and additional semester hours in appropriate related basic sciences and clinical sciences related to polysomnographic technology.
(3) The required semester hours in professional polysomnographic technology content areas shall include supervised clinical experience.
(4) Clinical facilities. A written contract or agreement shall be executed between the educational institution conducting the polysomnographic technology program and the clinical facility or agency which is designated to cooperate in providing the clinical experience. Such contract or agreement shall set forth the responsibilities of each party and shall be signed by the responsible officer of each party.
2. The title of Subpart 79-4 of the Regulations of the Commissioner of Education is amended, effective August 3, 2012, as follows:
Respiratory Therapy, [and] Respiratory Therapy Technician, and Polysomnographic Technologist
3. Sections 79-4.8 through 79-4.17 of the Regulations of the Commissioner of Education are added, effective August 3, 2012, as follows:
§ 79-4.8 Definitions of the practice of polysomnographic technology and use of the title.
(a) Only a person authorized under this Subpart shall participate in the practice of polysomnographic technology as an authorized polysomnographic technologist, and only a person authorized under this Subpart shall use the title "authorized polysomnographic technologist."
(b) The term "practice of polysomnographic technology" shall mean the process of collecting, analyzing, scoring, monitoring and recording physiologic data during sleep and wakefulness to assist the supervising physician in the clinical assessment and diagnosis of sleep/wake disorders and other disorders, syndromes and dysfunctions that either are sleep related, manifest during sleep or disrupt normal sleep/wake cycles and activities. The practice of polysomnographic technology shall include the non-invasive monitoring, diagnostic testing, and initiation and delivery of treatments to determine therapeutic levels of inspiratory and expiratory pressures for individuals suffering from any sleep disorder, as listed in an authoritative classification of sleep disorders acceptable to the department, under the direction and supervision of a licensed physician who is available for consultation at all times during the provision of polysomnographic technology services in any setting. Such services shall not include the use of mechanical ventilators. Such services shall include, but shall not be limited to:
(1) application of electrodes and apparatus necessary to monitor and evaluate sleep disturbances, including application of devices that allow a physician to diagnose and treat sleep disorders, which disorders shall include, but shall not be limited to, insomnia, sleep breathing disorders, movement disorders, disorders of excessive somnolence, and parasomnias, provided, however, that such services shall include the use of oral appliances, but shall not include the use of any artificial airway or the drawing of arterial blood gasses;
(2) implementation of any type of physiologic non-invasive monitoring applicable to polysomnography, including monitoring the therapeutic and diagnostic use on non-ventilated patients of oxygen, continuous positive airway pressure (CPAP) and bi-level positive airway pressure;
(3) implementation of cardiopulmonary resuscitation, maintenance of patient's airway (which does not include endotracheal intubation), and transcription and implementation of physician orders pertaining to the practice of polysomnographic technology;
(4) implementation of non-invasive treatment changes and testing techniques, as described in paragraphs (1) and (2) of this subdivision, and as required for the application of polysomnographic protocols under the direction and supervision of a licensed physician; and
(5) education of patients, family and the public concerning the procedures and treatments used during polysomnographic technology or concerning any equipment or procedure used for the treatment of any sleep disorder.
§ 79-4.9 Requirements and procedures for professional authorization.
To qualify for authorization as a polysomnographic technologist, an applicant shall be at least 18 years of age, file an application together with the applicable fees with the department, and meet the education, experience, examination and moral character requirements set forth in sections 79-4.10, 79-4.11, 79-4.12, and 79-4.13 of this Subpart, respectively.
§ 79-4.10 Professional study of polysomnographic technology.
To meet the professional education requirement for authorization as a polysomnographic technologist in this State, the applicant shall present evidence of:
(a) completion of an associate or higher degree in polysomnographic technology:
(1) in a program registered by the department; or
(2) in a program determined by the department to be substantially equivalent to a registered program; or
(b) completion of a course of study which is substantially equivalent to a program determined to be acceptable pursuant to subdivision (a) of this paragraph and which is satisfactory to the department.
§ 79-4.11 Experience requirements for polysomnographic technologist authorization.
To meet the professional experience requirement for authorization as a polysomnographic technologist in this State, the applicant shall complete such experience as is required in section 52.42 of this Title.
§ 79-4.12 Examination for authorization as a polysomnographic technologist.
(a) Each candidate for authorization as a polysomnographic technologist shall pass an examination that is determined by the department to measure the applicant's knowledge, judgment and skills concerning the practice of polysomnographic technology and such other matters of law and/or ethics as may be deemed appropriate by the department.
(b) Grade retention. The grade retention limitations of section 59.5(f) of this Title shall not be applicable to the examination for authorization to practice polysomnographic technology.
(c) Passing standard. The passing standard for the examination shall be determined by the State Board for Respiratory Therapy.
§ 79-4.13 Moral character for polysomnographic technologist authorization.
Applicants shall be of good moral character, as determined by the department.
§ 79-4.14 Student authorization. The practice of polysomnographic technology as an integral part of a program of study by students enrolled in a polysomnographic technology education program approved by the department shall not be prohibited. All such student practice shall be under the direction and supervision of a licensed physician and under the direct and immediate supervision of an authorized polysomnographic technologists or another health care provider licensed under Title VIII of the Education Law, provided that all tasks or responsibilities supervised by the health care provider are within the scope of his or her practice.
§ 79-4.15 Limited permit authorization. Authorizations limited as to eligibility, practice and duration shall be issued by the department to eligible applicants as follows:
(a) Eligibility. A person who fulfills all requirements for authorization as a polysomnographic technologist except that related to the examination shall be eligible for a limited permit.
(b) Limit of practice. All practice under a limited permit shall be under the direction and supervision of a licensed physician and under the direct and immediate supervision of a health care provider licensed under Title VIII of the Education Law, provided that all tasks or responsibilities supervised by the health care provider are within the scope of his or her practice.
(c) Duration. A limited permit shall be valid for one year and may be renewed for one additional year.
(d) An application for a limited permit in polysomnographic technology shall be submitted on a form provided by the Department and shall be accompanied by a fee of $70.
§ 79-4.16 Special provisions for authorization for polysomnographic technologists.
Except as otherwise provided in subdivision (d) of this section, an individual who is at least 18 years of age shall be authorized to practice polysomnographic technology without satisfying the education, experience, and examination requirements set forth in sections 79-4.10, 79-4.11 and 79-4.12 of this Subpart; provided that no later than February 3, 2014, such individual shall meet the requirements of subdivisions (a), (b), and (c) of this section. In order to be authorized to practice polysomnographic technology pursuant to this section, the applicant shall:
(a) file an application and pay the appropriate fees to the department; and
(b) be of good moral character, as determined by the department; and
(c)(1) be certified by a national certifying or accrediting board for polysomnographic technology acceptable to the department, and have practiced polysomnographic technology under the direction and supervision of a licensed physician at least 21 clinical hours per week for not less than 18 months in the three years immediately preceding the receipt of his or her application; or
(2) have practiced polysomnographic technology under the direction and supervision of a licensed physician at least 21 clinical hours per week for not less than three years within the five years immediately preceding the receipt of his or her application.
(d) If at least four licensure qualifying programs in polysomnographic technology have not been registered by the department by February 3, 2014, the applicant shall meet the requirements of subdivisions (a), (b), and (c)(1) of this section prior to the date that a total of four such programs have been registered by the department.
§ 79-4.17 Disciplinary authority for polysomnographic technologists.
Authorized polysomnographic technologists shall be subject to the full disciplinary and regulatory authority of the Board of Regents and the department, as if such authorization were a professional license. Authorized polysomnographic technologists shall be subject to all applicable provisions of the Education Law and of this Title relating to professional misconduct. For purposes of professional misconduct procedures relating to authorized polysomnographic technologists, the State Board for Respiratory Therapy shall serve as the state board responsible for all such procedures.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-31-12-00006-P, Issue of August 1, 2012. The emergency rule will expire October 31, 2012.
Text of rule and any required statements and analyses may be obtained from:
Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Section 207 of the Education Law grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.
Section 212 of the Education Law authorizes the department to charge fees for certifications or permits for which fees are not otherwise provided.
Section 6504 of the Education Law provides that admission to the professions shall be supervised by the Board of Regents, and administered by the Education Department, assisted by a state board for each profession.
Section 6506 of the Education Law provides that the Board of Regents shall supervise the admission to and the practice of the professions.
Paragraph (a) of subdivision (2) of section 6507 of the Education Law authorizes the Commissioner of Education to promulgate regulations in administering the admission to and practice of the professions.
Section 6508 of the Education Law authorizes the Board of Regents to appoint a board for each profession for the purpose of assisting the board of regents and the department on matters of professional licensing, practice, and conduct.
Subdivision (5) of section 8505 of the Education Law, as added by Chapter 262 of the Laws of 2011, establishes an exemption from the Respiratory Therapy Practice Act for polysomnographic technologists and authorizes the Commissioner to define polysomnographic technology services and to establish standards for authorization to practice as a polysomnographic technologist.
2. LEGISLATIVE OBJECTIVES:
The proposed new section 52.42 of the Regulations of the Commissioner carries out the intent of the aforementioned statutes by outlining the coursework and clinical experience required for registration as a licensure-qualifying polysomnographic technology program.
The proposed amendment of the title of Subpart 79-4 of the Regulations of the Commissioner of Education carries out the intent of the aforementioned statutes by adding the new profession of Polysomnographic Technologist.
Proposed section 79-4.8 of the Regulations of the Commissioner carries out the intent of the aforementioned statutes by defining the practice of polysomnographic technology.
Proposed section 79-4.9 of the Regulations of the Commissioner carries out the intent of the aforementioned statutes by setting forth the general requirements and procedures for professional authorization.
Proposed sections 79-4.10, 79-4.11, and 79-4.12 of the Regulations of the Commissioner establish the educational, experience, and examination requirements, respectively.
Proposed section 79-4.13 of the Regulations of the Commissioner carries out the intent of the aforementioned statutes by mandating that applicants shall be of good moral character, as determined by the Department.
Proposed section 79-4.14 of the Regulations of the Commissioner carries out the intent of the aforementioned statutes by creating a student authorization to allow supervised students in an approved program to obtain clinical experience.
Proposed section 79-4.15 of the Regulations carries out the intent of the aforementioned statutes by creating a limited permit to allow a person who fulfills all requirements for authorization, except exam, to practice under supervision for one year. A limited permit could be renewed for one additional year.
Proposed section 79-4.16 of the Regulations of the Commissioner carries out the intent of the aforementioned statutes by setting forth grandparenting provisions to enable those who began practicing in the field prior to the new law and regulations, to receive authorization to continue to practice if they meet specified requirements, including experience requirements. Individuals applying under these special provisions must meet the grandparenting requirements by February 3, 2014 or by such time as four licensure-qualifying programs in polysomnographic technology have been registered by the Department, whichever is later.
Finally, proposed section 79-4.17 of the Regulations of the Commissioner carries out the intent of the aforementioned statutes by implementing the statutory provision that polysomnographic technologists be subject to the full disciplinary and regulatory authority of the Board of Regents and the Department by designating the State Board for Respiratory Therapy as the responsible state board.
3. NEEDS AND BENEFITS:
The proposed rule is necessary to implement the provisions of Chapter 262 of the Laws of 2011, which creates an exemption to the Respiratory Therapy Practice Act for the provision of polysomnographic technology services by persons authorized by the Department. Chapter 262 authorizes the Department to define, in regulation, the practice of polysomnographic technology and set forth the standards to be met for authorization.
4. COSTS:
(a) Cost to State: None.
(b) Cost to local government: None.
(c) Cost to private regulated parties: In accordance with the requirement that the Commissioner prescribe educational requirements for authorization as a polysomnographic technologist, applicants for authorization, after the expiration of the grandparenting period, will incur the cost of an associate's degree-level education. Chapter 262 of the Laws of 2011 requires an application fee of $300 and a triennial registration fee of $300. The proposed rule also imposes a limited permit fee of $70 to allow a person who fulfills all requirements for authorization, except exam, to practice under supervision for one year.
(d) Costs to the regulatory agency: It is anticipated that the costs to the State Education Department in implementing the requirements of Chapter 262 of the Laws of 2011 will be offset by the application fees, limited permit fees and registration fees discussed above under Costs to Private Regulated Parties.
5. LOCAL GOVERNMENT MANDATES:
The proposed rule does not impose any program, service, duty, or responsibility upon local governments.
6. PAPERWORK:
The proposed rule requires the submission of an application and supporting documentation.
7. DUPLICATION:
The proposed rule is necessary to implement Chapter 262 of the Laws of 2011 and does not duplicate other existing State or Federal requirements.
8. ALTERNATIVES:
Alternatives were considered to various aspects of these regulations, particularly as to the eligibility qualifications for the grandparenting provisions and the duration of the grandparenting period. After discussion with stakeholders, the proposed regulations were modified to ensure a level of experience and qualification necessary for public protection, while not adversely impacting the pipeline of eligible polysomnographic technologists.
9. FEDERAL STANDARDS:
There are no Federal standards regarding the matters addressed by the proposed rule.
10. COMPLIANCE SCHEDULE:
The proposed rule takes effect on August 3, 2012, the effective date of Chapter 262 of the Laws of 2011 and must be complied with on the stated effective date. No additional period of time is necessary to enable regulated parties to comply.
Regulatory Flexibility Analysis
1. EFFECT OF RULE:
The purpose of the proposed rule is to implement Chapter 262 of the Laws of 2011, which created an exemption to the Respiratory Therapy Practice Act for the provision of polysomnographic technology services by persons authorized by the Department. Chapter 262 authorized the Department to define in regulation the practice of polysomnographic technology and set forth the standards to be met for authorization.
As of July 2012, the Board of Registered Polysomnographic Technologists website lists 547 registered or certified sleep technologists in New York State who have passed a national certifying examination. The number of uncertified persons currently providing poloysomnographic technology services is unknown. Reliable data on the number of individuals providing polysomnographic technology services and employed by a small business or by a local government is not available for New York State, although it is estimated that there are approximately 400 private sleep centers in New York State, most with fewer than 100 employees. Of these, it is estimated that there many be approximately 1,000 individuals providing polysomnographic technology services.
2. COMPLIANCE REQUIREMENTS:
The proposed rule implements Chapter 262 of the Laws of 2011, which created an exemption to the Respiratory Therapy Practice Act for the provision of polysomnographic technology services by persons authorized by the Department. Chapter 262 authorized the Department to define, in regulation, the practice of polysomnographic technology and set forth the standards to be met for authorization. Those wishing to be authorized to practice polysomnographic technology will be required to file an application and to meet the professional study, experience, and examination requirements specified in the proposed regulation. Those wishing to work after completing all requirements for authorization except the examination requirements will be required to file a limited permit application.
3. PROFESSIONAL SERVICES:
The proposed rule will require small businesses and local governments to use only authorized professionals to perform polysomnographic technology, but is not expected to impact the number of individuals employed to provide such services. It is not anticipated that small businesses or local governments will be required to obtain professional services to comply with the proposed rule.
4. COMPLIANCE COSTS:
The proposed rule does not impose any direct costs on small business or local governments. The proposed rule will require small businesses and local governments to use only authorized professionals to perform polysomnographic technology. In accordance with the requirement that the Commissioner prescribe educational requirements for authorization as a polysomnographic technologist, applicants for authorization, after the expiration of the grandparenting period, will incur the cost of an associate's degree-level education. Chapter 262 of the Laws of 2011 requires an application fee of $300 and a triennial registration fee of $300. The proposed rule also imposes a limited permit fee of $70 to allow a person who fulfills all requirements for authorization, except exam, to practice under supervision for one year.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed rule will not impose any technological requirements on regulated parties, including those that are classified as small businesses, and the proposed rule is economically feasible. See above "Compliance Costs" for the economic impact of the regulation.
6. MINIMIZING ADVERSE IMPACT:
The proposed rule is necessary to implement the provisions of Chapter 262 of the Laws of 2011, which creates an exemption to the Respiratory Therapy Practice Act for the provision of polysomnographic technology services by persons authorized by the Department. Chapter 262 authorizes the Department to define, in regulation, the practice of polysomnographic technology and set forth the standards to be met for authorization. The proposed fee structure was determined by the legislature to be the minimum needed to support additional costs. It is on a par with fee structures in other professions. It was determined that the authorization of polysomnographic technologists who meet minimum requirements established in the proposed regulations best ensures the protection of the health and safety of the public.
7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:
The New York State Society of Sleep Medicine and the New York State Society for Respiratory Care, which represent physicians specializing in sleep medicine, polysomnographic technologists, respiratory therapists and respiratory therapy technicians, and include members who have experience in a small business environment, were consulted and provided input into the development of the proposed rule. The State Education Department also solicited comments on the proposed rule from the American Academy of Sleep Medicine and the American Association of Sleep Technologists and the comments that were received were considered in the development of the rule.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed rule applies to all polysomnographic technologists and physicians who supervise these professionals who live in the State, including those in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed rule implements Chapter 262 of the Laws of 2011, which created an exemption to the Respiratory Therapy Practice Act for the provision of polysomnographic technology services by persons authorized by the Department. Chapter 262 authorized the Department to define, in regulation, the practice of polysomnographic technology and set forth the standards to be met for authorization. Those wishing to be authorized to practice polysomnographic technology will be required to file an application and to meet the professional study, experience, and examination requirements specified in the proposed regulation. Those wishing to work after completing all requirements for authorization except the examination requirements will be required to file a limited permit application. It is not anticipated that professional services will be required to comply with the proposed regulation.
3. COSTS:
The proposed rule does not impose any direct costs on small business or local governments. The proposed rule will require small businesses and local governments to use only authorized professionals to perform polysomnographic technology. In accordance with the requirement that the Commissioner prescribe educational requirements for authorization as a polysomnographic technologist, applicants for authorization, after the expiration of the grandparenting period, will incur the cost of an associate's degree-level education. Chapter 262 of the Laws of 2011 requires an application fee of $300 and a triennial registration fee of $300. The proposed rule also imposes a limited permit fee of $70 to allow a person who fulfills all requirements for authorization, except exam, to practice under supervision for one year.
4. MINIMIZING ADVERSE IMPACT:
The proposed rule is necessary to implement the provisions of Chapter 262 of the Laws of 2011, which creates an exemption to the Respiratory Therapy Practice Act for the provision of polysomnographic technology services by persons authorized by the Department. Chapter 262 authorizes the Department to define, in regulation, the practice of polysomnographic technology and set forth the standards to be met for authorization. The proposed fee structure was determined by the legislature to be the minimum needed to support additional costs. It is on a par with fee structures in other professions. It was determined that authorization of polysomnographic technologists who meet minimum requirements established in the proposed rule will best ensure the protection of the health and safety of the public. Because these minimum requirements must uniformly apply to authorized polysomnographic technologists across the State in order to ensure public health and safety, it was not possible to prescribe lesser standards for individuals in rural areas, or to exempt them from the provisions of the proposed rule.
5. RURAL AREA PARTICIPATION:
The State Education Department solicited comments on the proposed rule from the New York State Society for Respiratory Care, the New York State Society of Sleep Medicine, the American Academy of Sleep Medicine, and the American Association of Sleep Technologists, and the comments that were received were considered in the development of the rule.
Job Impact Statement
The proposed rule is required to implement Chapter 262 of the Laws of 2011, authorizing the practice of polysomnographic technology. The proposed rule defines the practice of polysomnographic technology and establish the qualifications for the issuance by the Department of an authorization to provide polysomnographic technology services. It is not anticipated that the proposed proposed rule will increase or decrease the number of jobs to be filled. The proposed rule includes special provisions which will enable most current practitioners to become authorized polysomnographic technologists. Because it is apparent from the nature of the proposed rule that it will not adversely impact the number of jobs, a job impact statement is not required and one has not been prepared.
