A revised Regulatory Impact Statement, Job Impact Statement, Rural Area Flexibility Analysis, and Regulatory Flexibility Analysis are not attached because the change made to the regulation is non-substantive.

The change consists of adding a subsection to the regulation referencing the discharge criteria contained in Part 823.12(b) which was inadvertently left out of the original submission because of a typographical error.

Positive reactions to the policy:

The American Cancer Society applauded the regulation and confirmed the research and statistical data that shows tobacco dependence is a major health care issue, especially among the population served by OASAS. They recommended strengthening the language in regard to “treatment modalities”. OASAS believes the current language allows each treatment program to create their own tobacco treatment modality that will fit into their program.

A provider in Madison County also congratulated OASAS for its tobacco policy, and stated that in their program “supporting tobacco use in an inpatient setting consumed more than 30% of staff time”, and severely interfered with attendance and attentiveness. Therefore, they believe that the policy will decrease illness, disability and death, and it will strengthen the chance of success for their clients.

Retention issues: Providers are afraid that the tobacco policy will keep people from seeking treatment, cause people to sign themselves out of treatment, and that people will seek admission at an inappropriate level of care, or out of state. As a result of these retention issues, providers point out that should these patients continue to use drugs; their health concerns will not be prevented or addressed.

OASAS response: OASAS did not see a severe retention problem when the agency run Addiction Treatment Centers became tobacco free. Since this regulation will be instituted statewide there is less chance that retention issues will occur or persist. The cost of health care and the health related issues that accompany continued use of tobacco outweigh the amount and extent of health care issues stemming from the continued use of drugs by the small portion of persons who may not remain in treatment.

Discharge issues: Providers fear that a zero tolerance policy will force programs to discharge clients for any evidence of smoking which will negatively impact clients housing, public assistance, drug court status, probation or parole.

OASAS Response: The regulation does not mandate that you should adopt a zero tolerance policy. The policy regarding discharge is solely within the discretion of the individual program.

Census issues: Providers fear that their census will diminish, and persons will seek treatment outside of New York State.

OASAS response: OASAS runs several Addiction Treatment Centers throughout the state, all of whom went tobacco free a few years ago. The drop in census corrected itself within a short time. There were no long term fiscal problems as a result. This was achieved at a time when persons could choose to go to a facility that did allow smoking. Therefore service providers are in a much better position now that all facilities must be tobacco free because patients do not have a smoking alternative within the State.

Fiscal impact issues: Providers believe that the regulatory mandate will be a financial burden on the service, both, in terms of cost for compliance, and a reduced census. Providers have stated that “ … Implementation of the regulations will come with an economic impact because of staff related expenses (the cost of staff time to develop the new policy, receive necessary training, and make necessary program modifications).” (Taken from a letter received from the New York Association of Alcoholism and Substance Abuse Providers, Inc. (ASAP), commenting on the regulation). Additional comments by ASAP concern compliance and implementation issues rather than proposed changes to the regulation.

Funding. Providers are afraid that the cost to them will result in an unfunded mandate.

OASAS response is that no additional staff is needed to implement this regulation because the objective of nicotine recovery will necessarily be incorporated into a patient's treatment plan as another drug for which they are treating as a symptom of the larger disease of addiction. NYS DOH Bureau of Tobacco Prevention and Control allotted 8 million dollars of their budget to pay for training of all OASAS certified provider staff and free NRT to both patients and staff that do no have a prescription plan to pay for it. The program can be accessed on our website and programs can sign up for delivery of the NRT. There is also a training calendar on our website.

Religious use of Tobacco: A provider who operates on an Indian Reservation where the patients are Native American and use pure tobacco in religious observation is concerned about strict adherence to the regulation.

OASAS response: OASAS will help this program ensure that the spirit of the regulation is adhered to while preserving and respecting the religious use of tobacco during ceremony.

Location issues: Community residences will be negatively affected because persons may go out into the community to smoke in less than desirable locations that may trigger their other addictions.

OASAS Response: Community residences will be required to have a policy regarding tobacco dependency, provide support, treatment, and education regarding nicotine dependency and maintain a smoke free environment. How this is achieved will be dependent on how the program designs their policy.

Co-located Facilities: Providers who are co-located with other programs not licensed by OASAS are concerned with compliance issues.

OASAS response: OASAS is cognizant of the special circumstances of co-located programs and will not require that OASAS licensed programs control what happens on the grounds or space not controlled by the OASAS program.

Staff smoking: Many providers want guidance on how to deal with staff smoking issues, and OASAS has been providing that guidance and support. One comment stated that there was an inconsistency in the regulation in that the regulation requires a policy on staff relapse, but does not require that staff quit smoking. Another comment opposed excluding staff from the section that prohibits carrying tobacco products on the service.

OASAS Response: The issues around staff smoking are only in regard to on site smoking because the policy requires smoke free grounds. Addressing staff relapse only refers to those staff that choose to use the services made available to all members of the service who want or need them. The regulation does not require that staff quit smoking. The regulation only requires that staff refrain from smoking on the grounds of the service.

Training Issues: Providers complain that the DOH training contract awarded to the University at Albany is behind schedule and therefore training has not been provided to all persons affected by the regulation.

OASAS response: The agency will consider this factor and work with individual service providers to get them the training they need, and to avoid penalizing a service provider for not being in full compliance should that failure be directly related to not receiving the training on time. Additionally OASAS has provided training through workshops, conference calls, webinars, and workbooks.

Nicotine Dependency alone: Utilization review may not take into account the need for treatment to continue solely for nicotine dependence.

OASAS response: In fact our certified programs cannot treat for nicotine dependency alone, there must be a primary diagnosis of chemical dependency. Therefore if the sole reason for continued treatment is nicotine dependency this will not justify a continuation of treatment.