New York Register, Volume 39, Issue 27, July 5, 2017
| Jurisdiction | New York |
| Library | New York Register |
| Published date | 05 July 2017 |
| Year | 2017 |
RULE MAKING
ACTIVITIES
Each rule making is identified by an I.D. No., which consists
of 13 characters. For example, the I.D. No. AAM-01-96-
00001-E indicates the following:
AAM -the abbreviation to identify the adopting agency
01 -the State Register issue number
96 -the year
00001 -the Department of State number, assigned upon
receipt of notice.
E -Emergency Rule Making—permanent action
not intended (This character could also be: A
for Adoption; P for Proposed Rule Making; RP
for Revised Rule Making; EP for a combined
Emergency and Proposed Rule Making; EA for
an Emergency Rule Making that is permanent
and does not expire 90 days after filing.)
Itali cs con tain ed in text denote new material. Brackets
indicate material to be deleted.
Education Department
EMERGENCY
RULE MAKING
Epinephrine Auto-Injector Devices
I.D. No. EDU-04-17-00012-E
Filing No. 427
Filing Date: 2017-06-20
Effective Date: 2017-06-20
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following action:
Action taken: Amendment of section 136.6 of Title 8 NYCRR.
Statu tory a utho rity : Educ atio n Law, sec tion s 101( not su bdiv ided ),
207(not subdivided), 305(1), (2), 901(1), (2), 902(1), (2), 903(1), (2), (3),
904(1), 906(1), (2), (3), 921(1), (2), 3208(1), (2), (3), (4) and (5); L. 2016,
ch. 373
Finding of necessity for emergency rule: Preservation of general welfare.
Specific reasons underlying the finding of necessity: The proposed rule is
necessary to implement Chapter 373 of the Laws of 2016, which amends
section 3000-c of the Public Health Law,which became effective on March
28, 2017, which permits school districts, boards of cooperative educational
services (B OCES), cou nty vocati onal educa tion and ext ension boa rds,
charter schools, and non-public elementary and secondary schools in the
State to possess and use epinephrine auto-injector devices for emergency
treatment of a person appearing to experience anaphylactic symptoms.
Since the Bo ard of Regen ts meets at fix ed interva ls, the earl iest the
proposed rule can be presented for regular (non-emergency) adoption, af-
ter expiration of the required 45-day public comment period provided for
in the State Administrative ProcedureAct (SAPA) sections 201(1) and (5),
would be the September 11-12, 2017 Regents meeting. Furthermore, pur-
suant to SAPA section 203(1), the earliest effective date of the proposed
rule, if adopted at the September meeting, would be September 27, 2017,
the date a Notice of Adoption would b e published in the State R egister.
However, the provisions of Chapter 3 73 became effective on March 28,
2017 and section 3 of the statute directs the Commissioner to promulgate
necessary regulations for the t imely implementation of the st atute on its
effective date.
Therefor e, emergen cy action i s necessa ry at the Jun e 2017 Rege nts
meeting for the preservation of the general welfare in order to continue to
implement the provisions of Cha pter 373 of the Laws of 2016, and thus
ensure the continuous implementation of the statute.
It is also neces sary to ensur e that the emerge ncy rule adop ted at the
March meeting, which will expire on June 10, 2017, remains continuously
in effect until it can be adopt ed as a permanent rule. A Notice of Emer-
gency Adoption was published in the State Register onApril 12, 2017 and
will expire on June 25, 2017. It is anticipated that the proposed rule will be
presented for adoption as a permanent rule at the September 11-12, 2017
Regents meeting, effective September 27, 2017.
Subject: Epinephrine Auto-Injector Devices.
Purpose: To implement the provisions of ch. 373 of the Laws of 2016.
Text of emergency rule: 1. Section 136.6 of the Regulations of the Com-
missioner of Education is amended, effective March 28, 2017, as follows:
(a) Definitions. As used in this section:
(1) Epinephrine auto-injector device means [an au tomated injection
delivery device, approved by the United States Food and Drug Administra-
tion, for injecting a measured dose of the drug epinephrine ] a single-use
device used for the automatic injection of a premeasured dose of epineph-
rine into the h uman body fo r the purpos e of emergency t reatment of a
person appearing to experience anaphylacti c symptoms approved by the
United States Food and Drug Administration.
(2) Trained school personnel means any person employed by a school
district , board of co operati ve educat ional serv ices, cou nty vocat ional
education and extension b oard, charter school or no n-public elementary
and secondary school , including but not limi ted to, health profess ionals
who have successfully completed a training course in the use of epineph-
rine auto-injector devices approved by the Department of Health pursuant
to Public Health Law section 3000-c.
[(3) Collabo rative agree ment means a wr itten agreem ent with an
emergency hea lth care provi der pursuan t to Public Heal th Law section
3000-c th at incor porate s writte n practi ce proto cols, an d polici es and
procedur es that sha ll ensure c omplian ce with the pr ovision s of Public
Health Law section 3000-c.
(4) Emergency health care provider means:
(i) a physician with knowledge and experienc e in the delivery of
emergency care; or
(ii) a hospital licensed under Article 28 of the Public Health Law
that provides emergency care.
(5) Regional Council means a regional emergency medical services
council established pursuant to Public Health Law section 3003.
(6)] (3) Instructional school facility means a building or other facility
maintained by a school district, board of cooperative educational services,
a county vocational education and extension board, charter school, or non-
public elementary and secondary school where instruction is provided to
students pursuant to its curriculum.
(b) Each scho ol district , board of coop erative edu cational se rvices,
county vocational education and extension board, charter school, and non-
public elementary and secondary school may provide and maintain on-site
in each instructional school facility epinephrine auto-injectors for use dur-
ing emergencies in ac cordance with Pub lic Health Law sect ion 3000-c.
Each such facility shall ha ve sufficient epinephri ne auto-injectors avail -
able to ensure ready and appropriate access for use during emergencies to
any student or staff having symptoms of anaphylaxis whether or not there
is a previous history of severe allergic reaction. In determining the quantity
1
and placeme nt of epinep hrine auto -injecto rs [in colla boration w ith the
emergency health care provider,] consideration shall be given to:
(1) the number of students, staff and other in dividuals that are cus-
tomarily or reasonably anticipated to be within such facility; and
(2) the physical layout of the facility, including but not limited to:
(i) location of stairways and elevators;
(ii) number of floors in the facility;
(iii) location of cla ssrooms and other ar eas of the facility wh ere
large congregations of individuals may occur; and
(iv) any other unique design features of the facility.
[(c) The sc hool dist rict, boa rd of coo perative educ ational s ervices ,
county vocational education and extension board, charter school, or non-
public elementary and secondary school shall file a copy of the collabora-
tive agree ment with t he appropr iate Regi onal Counc il. Trained sc hool
personnel shall not administer an epinephrine auto-injector in accordance
with Public Heal th Law 3000-c pri or to the filing of th e collaborati ve
agreement with the Regional Council.
(d)] (c) In the event of an emergency,trained school personnel or school
personne l directed in a s pecific in stance to us e an epinep hrine aut o-
injector device by a health care practitioner as defined in P ublic Health
Law section 3000-c, may administe r an epinephrine auto-injector t o any
stude nt or sc hool pe rson nel hav ing sy mpto ms of ana phyl axis in a n
instructional school facility, whether or not there is a previous history of
severe allergic reaction pursuant to Public Health Law section 3000-c.
[(e) Every use of an epinephri ne auto-injector device p ursuant to this
sectio n and Pub lic Hea lth Law se ction 3 000-c s hall imm ediat ely be
reported to the emergency health care provider.]
This notice is intended to serve only as a notice of emergency adoption.
This agency intends to a dopt the provisions o f 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-04-17-00012-RP, Issue of
May 24, 2017. The emergency rule will expire August 18, 2017.
Text of rule and any required statements and analyses may be obtained
from: Kiri Goswami, New York State Education Department, 89 Washing-
ton Avenue,Albany, NY 12234, (518) 474-4817, email: legal@nysed.gov
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Ed.L. § 101 charges SED with the general management and supervision
of public schools and the educational work of the State.
Ed.L. § 207 empowers the Bo ard of Regents(R egents) and the Co m-
missioner to adopt rules and regulations to carry out the laws of the State
regarding education and the functions and duties conferred on the Depart-
ment by law.
Ed.L. § 305(1) and (2) provide that the Commissioner, as chief execu-
tive officer of the State system of education and of the Regents, shall have
general supervision over all schools and institutions subject to the provi-
sions of the Education Law, or of any statute relating to education.
Ed.L. § 901(1) and (2 ), as amended b y Ch. 58 of the Law s of 2006,
requires school health services to be provided by each school district for
all students attend ing the public school s in this State, except i n the city
school district of the city of New York.
Ed.L. § 902(1) and (2) prov ide for the employm ent of health profe s-
sionals by school districts , and requires districts to em ploy a director of
school health services to perform a nd coordinate the provision of hea lth
services in the public schools and to provide health appraisals of students
attending its schools.
Ed.L. § 903(1) req uires that h ealth cert ificates be fu rnished by e ach
student in the public schools upon entrance into school and in the grades
pres crib ed by th e Comm issi oner i n regu lati ons. S ecti on 903 (2), a s
amended by Ch. 57 of the Laws of 2013, requires schools to request that
students furnish dental health certificates at the same time a health certifi-
cate is required. Section 903(3) provides that failure to furnish health cer-
tificates within 30 days of en trance will result in noti ce to the person in
parental relationship to such student that if the certificate is not provided
within 30 days of notice, a health appraisal will be made pursuant to the
provisions of Article 19.
Ed.L. § 904(1) provides that the principal or principal’s designee shall
report to the director of schoo l health services the names of a ll students
who have not furnished heal th certificates or who are ch ildren with dis-
abilities and the director shall cause such students to be examined.
Ed.L. § 905(1) requires screening examinations for vision, hearing and
scoli osis a t such t imes a nd as de fined i n the re gula tion s of the
Commissioner.
Ed.L. § 906(1), (2) and (3), provides for the exclusion and examination,
and examin ation upon r eadmitt ance of stud ents showi ng sympto ms of
communicable o r infectious di sease reporta ble under the Pub lic Health
Law, and for the evaluation of teachers and other sc hool employees and
school buildings and premises as deemed necessary to prot ect the health
of students and staff.
Ed.L. § 911(1) provides tha t it be the duty of t he Commissi oner to
enforce the p rovision s of Ed.L.Ar ticle19, an d the Commis sioner may
adopt rules and regulat ions not inconsisten t herewith, after consu ltation
with the Commi ssioner of He alth, for the pu rpose of carr ying into ful l
force and effect the objects and intent of such Article.
Ed.L. § 914(1) provides that each school shall require every child enter-
ing or attending school to s ubmit proof of immunizat ion against certain
specified diseases.
Ed.L. § 921(1) and (2), as amended by Ch. 57 o f the Laws of 2016
authorizes school districts, BO CES, CVEEBs, charter schools, an d non-
public elementary and secondary schools, or any person employed by any
such entity, to adm inister epi nephrine au to-inject ors in the even t of an
emergency pursuant to the requirements of Public Health Law § 3000-c.
Ed.L. § 3208(1-5) provides for attendance and student mental/physical
examination requirements.
Public Health Law 2164(7) prescribes the req uired immunizations for
attendance in school.
2. LEGISLATIVEOBJECTIVES:
The proposed amendment is consistent with the authority conferred by
the above statutes and is necessary to implement and otherw ise conform
Commissioner’s Regulations to Ch. 373 of the Laws of 2016.
3. NEEDS AND BENEFITS:
On-site epinephrine auto-injectors
On September 29, 2016, the Governor sign ed Ch. 373 of the Laws of
2016, which made certai n changes to the use of emergen cy epinephrine
auto-injectors. The proposed amendment makes the following conforming
changes to § 136.6:
DAmends the definition of epinephrine auto-injector device to conform
to the new definit ion in law(a sin gle-use devi ce used for the au tomatic
injection of a premeasured dose of epi nephrine into the human body for
the purpose of emergency treatment of a person appearing to ex perience
anaphylactic symptoms approved by the FDA)
DEliminates the re quirement for a sch ool district to en ter into a col-
laborative agreement with an emergency health care provider in order t o
purchase, acquire, possess and use epinephrine auto-injector devices.
DSchool dis tricts ar e no longer re quired to r eport eve ry use of an
epineph rine auto -inject or to the emer gency hea lth care pr ovider (w ith
whom they would have had the collaborative agreement prior to the statu-
tory amendments).
4. COSTS:
(a) Costs to State government: none.
(b) Costs to local governme nt: In general, the propos ed rule does not
impose any costs beyond those required by Education Law Article 19 and
those inherent in Ch. 373 of the Laws of 2016.
(c) Costs to private regulated parties: none.
(d) Costs to the regulating agency for implementation and administra-
tion of this rule: none.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment does not impose any new costs on the State,
local governments, private regulated parties or the State Education Depart-
ment, but merel y implements a nd otherwise co nforms Commi ssioner’s
Regulations to Ch. 373 of the Laws of 2016.
6. PAPERWORK:
This proposed amendment does not impo se any additional paperwork
requirements. The proposed amendment merely implements and otherwise
conforms Commissioner’s Regulations to Ch. 373 of the Laws of 2016.
7. DUPLICATION:
The proposed amendment does not d uplicate existing State or fed eral
regulations.
8. ALTERNATIVES:
The proposed a mendment is n ecessary to im plement and o therwise
conform Commissioner’s Regulations to Ch. 373 of the Laws of 2016. No
significant alternatives were considered.
9. FEDERAL STANDARDS:
There are no related federal standards.
10. COMPLIANCE SCHEDULE:
It is anticipate d regulated par ties will be able t o achieve compl iance
with the proposed rule by its effective date as required by the statute.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment merely implements and otherwise conforms
Comm issi oner ’s Reg ulat ions t o Ch. 37 3 of the L aws of 2 016. Th e
proposed a mendment d oes not impo se any adver se economi c impact,
reporting, record keeping or any other compliance requirements on small
businesses. Because it is evident from the nature of the proposed amend-
ment that it does no t affect small busi nesses, no furth er measures wer e
needed to ascertain that fact and none were taken. Accordingly, a regula-
tory flexibility analysis f or small businesses is not re quired and one has
not been prepared.
Local Government:
NYS Register/July 5, 2017Rule Making Activities
2
1. EFFECT OF RULE:
The proposed am endment appl ies to each of the 69 5 school distri cts
within the State.
2. COMPLIANCE REQUIREMENTS:
On-site epinephrine auto-injectors
On September 29, 2016, the Governor sign ed Ch. 373 of the Laws of
2016, which made certai n changes to the use of emergen cy epinephrine
auto-injectors. The proposed amendment makes the following conforming
changes to § 136.6:
DAmends the definition of epinephrine auto-injector device to conform
to the new definit ion in law(a sin gle-use devi ce used for the au tomatic
injection of a premeasured dose of epin ephrine into the human body for
the purpose of emergency treatment of a person appearing to ex perience
anaphylactic symptoms approved by the FDA).
DEliminates the re quirement for a sch ool district to en ter into a col-
laborative agreement with an emergency health care provider in order t o
purchase, acquire, possess and use epinephrine auto-injector devices.
DSchool dis tricts ar e no longer re quired to r eport eve ry use of an
epineph rine auto -injecto r to the emer gency hea lth care pr ovider (w ith
whom they would have had the collaborative agreement prior to the statu-
tory amendments).
3. PROFESSIONAL SERVICES:
The proposed amendme nt imposes no addition al professional serv ice
requirements.
4. COMPLIANCE COSTS:
In general, the proposed rule does not impose an y costs beyond those
required by Education Law Article 19 and those inherent in Ch. 373 of the
Laws of 2016.
5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment does not impose any tec hnological require-
ments or costs on school districts.
6. MINIMIZING ADVERSE IMPACT:
The propose d amendmen t is necessa ry to implem ent Ch. 373 of t he
Laws of 2016. No significa nt alternatives were c onsidered. Because t he
statute upon which the proposed amendment is based applies to all school
districts and BOCES in the State, except for the city school district of the
City of New York where exempted by statute, itis not possible to establish
differing compliance or reporting requirements or timetables or to exempt
schools in rural areas from coverage by the proposed amendment.
7. LOCAL GOVERNMENT PARTICIPATION:
Copies of th e proposed a mendment h ave been pro vided to Dis trict
Superi ntende nts wit h the requ est tha t they dis tribut e them to s chool
districts within their supervisory districts for review and comment. Copies
were also provided for review and comment to the chief school officers of
the five big city school districts.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OFRURAL AREAS:
The propos ed rule appl ies to scho ol distric ts, boards o f coopera tive
educational services (BOCES), county vocational education and extension
board, charter schools, and nonpublic elementary and secondary schools,
including those located in the 44 rural counties w ith fewer than 200,000
inhabitants and the 71 towns and urban counties with a population density
of 150 square miles or less.
2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE
REQUIREMENTS; AND PROFESSIONAL SERVICES:
The proposed rule generally does not impose any additional compliance
requirements upon local governments beyond those required by Education
Law Article 19 and those imposed by Chapter 373 of the Laws of 2016 .
The proposed rule does no t impose any additiona l professional servi ces
requirements on entities in rural areas.
3. COMPLIANCE COSTS:
In general, the proposed rule does not impose an y costs beyond those
required by Education Law Article 19 and those inherent in Ch. 373 of the
Laws of 2016.
4. MINIMIZING ADVERSE IMPACT:
The proposed a mendment is n ecessary to im plement and o therwise
conform Commissioner’s Regulations to Ch. 373 of the Laws of 2016. No
significant alternatives were considere d. Because the statute upon which
the prop osed am endmen t is base d appli es to all sc hool di strict s and
BOCES in the State, except for the city school district of the City of New
York where exempted by statute, it is not po ssible to establish di ffering
compliance or reporting requirements or timetables or to exempt schools
in rural areas from coverage by the proposed amendment.
5. RURAL AREA PARTICIPATION:
The prop osed ru le was su bmitt ed for re view an d comme nt to the
Depart ment’s Ru ral Edu catio n Advisory C ommit tee, wh ich inc ludes
representatives of school districts in rural areas.
Job Impact Statement
The purpose of the proposed rule is to statutes and is necessary to imple-
ment and otherwise conform Commissio ner’s Regulations to Ch. 373 of
the Laws of 2016. Because it is evident from t he nature of the proposed
rule that it will have no impact on the number of jobs or employment op-
portunities in New York State, no further steps were needed to ascertain
that fact and none were taken. Accordingly, a job impact statement is not
required and one has not been prepared.
Assessment of Public Comment
The agency received no public comment since publication of the last as-
sessment of public comment.
EMERGENCY/PROPOSED
RULE MAKING
NO HEARING(S) SCHEDULED
Academic Intervention Services
I.D. No. EDU-27-17-00010-EP
Filing No. 425
Filing Date: 2017-06-20
Effective Date: 2017-06-20
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following action:
Proposed Action: Amendment of section 100.2(ee) of Title 8 NYCRR.
Statu tory a utho rity : Educ atio n Law, sec tion s 101( not su bdiv ided ),
207(not subdivided), 305(1), (2), 308(not subdivided), 309(not subdivided)
and 3204(3)
Finding of necessity for emergency rule: Preservation of general welfare.
Specifi c reason s under lying th e findin g of neces sity: T he propo sed
amendment to section 100.2(ee) of the Regulations of the Commissioner
of Education is necessary to ensure school districts have sufficient notice
of the amendment s and are able to impl ement them begi nning with the
2017-2018 school year.
A Notice of Emergency Adoption and Proposed Rule Ma king will be
published in the State Register on July 5, 2017. Since the Board of Regents
meets at fixed intervals, the earliest the proposed rule can be presented for
regular (non-emergency) adoption, after expiration of the required 45-day
public comment period provided for in the State Administrative Procedure
Act (SAPA) for a propos ed rulemaki ng, would be th e September 2 017
Regents meeting. Furthermore, pursuant to SAPAsection 203(1), the earli-
est effective date of the proposed rule, if adopted at the September meet-
ing, would be September 27, 2017, the date a Notice of Adoption would
be published in the State Register. In order to have these provisions in ef-
fect prior to the next school year, emergency action is therefore necessary
for the preservation of general welfare to ensure that school districts have
sufficient notice of the amendments and are able to implement them begin-
ning with the 2017-2018 school year which commences on July 1, 2017.
Subject: Academic Intervention Services.
Purpos e: To revise t he metho dolog y by which s chool d istric ts shal l
identify students in grades 3-8 who receive AIS.
Text of emergency/propo sed rule: Paragr aph (2) of subdivi sion (ee) of
section 10 0.2 of the Reg ulations o f the Commi ssioner of E ducation i s
amended, effective July 1, 2017, as follows:
(2) Require ments for pro viding aca demic inter vention ser vices in
grade three to grade eight.
(i) For the 2016-17, 2017-18, and 2018-2019 school years, schools
shal l prov ide a cade mic i nter vent ion s ervi ces f ollo wing a t wo- step
identification process:
(a) First, st udents who sc ore below a me dian scale sc ore be-
tween a level 2/partially proficient and a level 3/proficient on a grade 3-8
English language arts or mathematics State assessment as determined by
the Commissioner, shall be considered for academic intervention services.
Students sco ring at or above t he median scal e score determ ined by the
Commissioner but below a level 3/proficient score shall not be required to
receive acad emic interv ention servi ces unless th e school dist rict, in its
discretion, determines that such services are needed.
(b) Districts shall then use a district-developed procedure, to be
applied un iformly at e ach grade le vel, for de terminin g which stud ents
identified in clause (a) shall receive academic intervention services after it
considers a student’s scores on multiple measures of student performance,
which may include, but need not be limited to, one or more of the follow-
ing measures, as determined by the district:
(1) developmental reading assessments for grades kindergar-
ten through grade 6;
(2) New York State English as a Second Language Achieve-
ment Test (NYSESLAT);
NYS Register/July 5, 2017 Rule Making Activities
3
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