The Centers for Disease Control and Prevention has estimated that the adverse health effects from cigarette smoking account for an estimated 443,000 deaths, or nearly one of every five deaths, each year in the United States. Smoking not only harms the smoker’s body but it also causes harm to non-smokers from exposure to secondhand smoke. Smoking is also a leading cause of fires.

The emergency/proposed regulations prohibit smoking inside all day programs and clinics, and inside nearly all residential sites, that are certified or operated by OPWDD. While smoking in some of these facilities is already prohibited by the New York State Clean Indoor Air Act (CIAA), the CIAA does not fully prohibit smoking inside all facilities certified or operated by OPWDD. The regulations also exceed the CIAA by imposing limitations on smoking on the grounds of residential, day, and clinic facilities. The restrictions on outdoor smoking will protect individuals from second-hand smoke in outdoor environments and protect against fires.

OPWDD has issued an Administrative Memorandum (ADM) which includes many of the requirements in the emergency/proposed regulations, but the regulations exceed the ADM requirements in several important ways to further limit smoking, and promote smoking safety and smoking cessation. The regulations require policies and procedures to address exemptions to the smoking prohibition in supportive living environments and to address smoking safety and smoking cessation efforts for individuals in all certified residential facilities (except family care) who continue to smoke.

OPWDD expects that the imposition of the requirements in these emergency/proposed regulations will lead to a general reduction in smoking by individuals who receive services that are operated or certified by OPWDD, especially those who live in certified residential facilities. These changes will benefit individuals who smoke and others in their environments who might be exposed to second-hand smoke. OPWDD also considers that these requirements will enhance fire safety and reduce the potential for fires, which can obviously endanger the health, safety, and welfare of individuals receiving services and staff.

If these regulations were not promulgated on an emergency basis, OPWDD considers that the health, safety and welfare of individuals who smoke, and those exposed to second hand smoke and/or fire safety risks due to smoking, would be compromised during the period of time required by the State Administrative Procedure Act for the regular rulemaking process. The promulgation of these regulations on an emergency basis will enhance the health, safety, and welfare of individuals and staff without delay. Any delay will result in continued exposure to avoidable health and safety risks.

• A new paragraph 635-7.3(c)(8) is added as follows:

• A new paragraph 635-7.4(b)(4) is added as follows:

1. Statutory authority:

a. OPWDD has the statutory responsibility to provide and encourage the provision of appropriate programs and services in the area of care, treatment, rehabilitation, education and training of persons with developmental disabilities, as stated in the New York State Mental Hygiene Law Section 13.07.

b. OPWDD has the statutory authority to adopt rules and regulations necessary and proper to implement any matter under its jurisdiction as stated in the New York State Mental Hygiene Law Section 13.09(b).

c. OPWDD has the statutory authority to adopt regulations concerning the operation of programs and provision of services and facilities pursuant to the New York State Mental Hygiene Law Section 16.00.

2. Legislative objectives: These emergency/proposed amendments further the legislative objectives embodied in sections 13.07, 13.09(b) and 16.00 of the Mental Hygiene Law. The emergency/proposed amendments concern limitations on smoking inside and on the grounds of OPWDD operated and certified settings.

3. Needs and benefits: The Centers for Disease Control and Prevention has estimated that the adverse health effects from cigarette smoking account for an estimated 443,000 deaths, or nearly one of every five deaths, each year in the United States. Smoking not only harms the smoker’s body but it also causes harm to non-smokers from exposure to secondhand smoke. One of OPWDD’s core values is to promote the health and well-being of individuals with developmental disabilities and those who support them. The emergency/proposed regulations prohibit smoking and exposure to second hand smoke inside all day programs and clinics and inside nearly all residential sites certified or operated by OPWDD. The regulations also impose limitations on smoking on the grounds of these facilities.

The regulations allow for exceptions to the smoking prohibition and limitations in supportive residential facilities, which do not provide twenty-four hour supervision to facility residents. The rationale for any exemption must be based on a site-specific appraisal, including a review of local laws, building policies and lease agreements, the smoking practices of the facility resident(s), and each resident's interest in or objection to smoking at the site. These exceptions allow agencies the flexibility of balancing health and safety risks with respect for individual choices, as well as accommodating any other applicable requirements.

The regulations also require agencies to develop policies and procedures to address smoking safety, and smoking related health care issues, for each facility resident who smokes. These policies and procedures must include mechanisms to evaluate individuals' smoking habits (as well as health and safety risks); to develop, implement, and monitor individualized smoking safeguards; and to offer and provide smoking cessation services. This will address the particular needs of individuals who smoke and further enhance the health and safety of individuals receiving services.

Finally, the regulations address smoking on the grounds of facilities. The regulations require designated smoking areas to be located at least 30 feet from the facility, if possible, and require the use of non-combustible disposal receptacles. This will help prevent fires.

With the implementation of the emergency/proposed regulations OPWDD is proactively promoting healthier and safer environments for individuals receiving services and for the employees and volunteers providing those supports and services.

4. Costs:

a. Costs to the Agency and to the State and its local governments:

The emergency/proposed amendments do not change reimbursement levels. Most of the new requirements contained in the emergency/proposed regulations were previously imposed by OPWDD through an Administrative Memorandum, which addressed smoking in residential facilities and certified day programs. However, the emergency/proposed regulations also include new requirements mandating policies and procedures to address exemptions to the smoking prohibition in supportive living environments and to address smoking safety and smoking cessation efforts for individuals in all certified residential facilities (except family care) who continue to smoke. The development and implementation of these policies and procedures will have some impact on staff time in OPWDD operated facilities; however, OPWDD expects that the changes can be accomplished using existing staff.

Regarding the requirement for use of non-combustible receptacles in designated outdoor smoking areas, it is expected that that the vast majority of OPWDD operated facilities already have the required receptacles and that it will result in the need to purchase a receptacle in very few circumstances.

There are no costs to local governments.

b. Costs to private regulated parties:

The emergency/proposed amendments do not change reimbursement levels. Most of the new requirements contained in the emergency/proposed regulations were previously imposed by OPWDD through an Administrative Memorandum, which addressed smoking in residential facilities and certified day programs. However, the emergency/proposed regulations also include new requirements mandating policies and procedures to address exemptions to the smoking prohibition in supportive living environments and to address smoking safety and smoking cessation efforts for individuals in all certified residential facilities (except family care) who continue to smoke. The development and implementation of these policies and procedures will have some impact on staff time in not-for-profit provider agencies; however, OPWDD expects that the changes can be accomplished using existing staff.

Regarding the requirement for use of non-combustible receptacles in designated outdoor smoking areas, it is expected that that the vast majority of agencies already have the required receptacles and that it will result in the need to purchase a receptacle in very few circumstances.

5. Local government mandates: There are no new requirements imposed by the rule on any county, city, town, village; or school, fire, or other special district.

6. Paperwork: The emergency/proposed amendments may result in modest additional paperwork to develop and implement policy and procedures in accordance with new requirements.

7. Duplication: Smoking is already prohibited in some facilities by the New York State Clean Indoor Air Act (CIAA), but the CIAA does not fully prohibit smoking inside all facilities that are certified or operated by OPWDD. The emergency/proposed regulations prohibit smoking in all day program and clinic facilities and in all supervised residential facilities (as well as many supportive residential facilities). The regulations also impose limitations on smoking on the grounds of residential, day, and clinic facilities and impose policy and procedure requirements that are not included in the CIAA.

There is no duplication of federal requirements that are applicable to services for persons with developmental disabilities.

8. Alternatives: OPWDD considered extending the scope of the regulation to include restrictions on the use of all tobacco products (e.g., chewing and dipping tobacco). However, OPWDD decided against regulating personal choices, such as use of tobacco products that present risk to the user but do not affect the well-being of others, at this time. The emergency/proposed regulations address the fire safety and health care risks associated with smoking that affect the health and safety of others.

9. Federal standards: The emergency/proposed regulations do not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance schedule: OPWDD has issued these regulations as emergency regulations and is planning to finalize the proposed regulations as soon as possible consistent with the timeframes set forth in the State Administrative Procedure Act. A number of the new requirements, including prohibitions and limitations on indoor and outdoor smoking, were previously mandated by policy and therefore have already been implemented. Some of the new requirements contain delayed effective dates in order to allow providers additional time to come into compliance with the requirements.

1. Effect on small business: The emergency/proposed regulations, which place limitations on smoking, apply to residential, day program, and clinic facilities that are certified by OPWDD.

OPWDD has determined, through a review of the certified cost reports, that most OPWDD certified services are provided by non-profit agencies that employ more than 100 people overall; however, there are some smaller agencies that employ fewer than 100 employees which would be classified as small businesses. Currently, there are approximately 700 agencies providing services that are certified by OPWDD; however, OPWDD cannot estimate the portion of these providers that may be considered small businesses.

The emergency/proposed amendments have been reviewed by OPWDD in light of their impact on small businesses and on local government. The regulations prohibit smoking inside most residential facilities and all clinic and day program facilities that are certified by OPWDD, and place limitations on smoking on the grounds of these facilities. The regulations also include smoking-related policy and procedures requirements and fire safety precautions. The limitations on smoking are being instituted in order to protect the health and safety of individuals receiving services, and those who support them, in facilities that are certified by OPWDD. OPWDD has determined that the emergency/proposed amendments will not cause undue hardship to small business providers due to increased costs or increased compliance requirements. The development and implementation of policies and procedures in accordance with the new requirements may result in some minimal costs to the provider agencies, but these costs are far outweighed by the long-term health and fire safety benefits that will result from implementation of the requirements.

The emergency/proposed regulations result in no new costs for local government.

2. Compliance requirements: Most of the new requirements contained in the emergency/proposed regulations were previously imposed by OPWDD through an Administrative Memorandum, which addressed smoking in residential facilities and certified day programs. OPWDD expects that providers are already in compliance with these requirements and therefore no new compliance activities are necessary concerning those provisions. The emergency/proposed regulations exceed the requirements that were previously imposed in several ways. First, the emergency/proposed regulations require agencies to develop policies and procedures if they operate supportive residences that serve individuals who smoke. In the event that an agency chooses to allow smoking inside a particular supportive residence, it must conduct an appraisal of the circumstances presented at that site. Further, when an agency that operates any type of certified residential facility (except family care) serves individuals who smoke, the agency must develop policies and procedures to address smoking safety, and smoking related health care issues, for each facility resident who smokes. These policies and procedures must incorporate specified mechanisms, such as mechanisms to offer and provide services and supports to promote smoking cessation. The emergency/proposed regulations also require that if an agency designates an outdoor smoking area, it must equip the area with a non-combustible receptacle.

OPWDD anticipates that agencies will use current staff to develop and implement the required policies. Agencies may also need to purchase new receptacles, if the agencies do not already have appropriate receptacles. OPWDD has determined that the proposed amendments will not cause undue hardship to small business providers due to increased costs or increased compliance requirements.

The proposed amendments contain no compliance requirements for local governments.

3. Professional services: No additional professional services are required as a result of these emergency/proposed regulations and the regulations will have no impact on the professional service needs of local governments.

4. Compliance costs: The limitations on smoking are being instituted in order to protect the health and safety of individuals receiving services, and those who support them, in certified settings. OPWDD has determined that the proposed amendments will not cause undue hardship to small business providers due to increased costs or increased compliance requirements. The development and implementation of policies and procedures in accordance with the new requirements may result in some minimal costs to the provider agencies, but these costs are far outweighed by the long-term health and fire safety benefits that will come from the implementation of the requirements. Regarding the requirement that agencies use non-combustible receptacles for designated outdoor smoking areas, OPWDD expects that the vast majority of agencies already have the required receptacles and that it will result in the need to purchase a receptacle in very few circumstances. In any case, the cost of receptacles is minimal and the benefit of avoiding fires outweighs the minimal costs.

There are no compliance costs to local governments.

5. Economic and technological feasibility: The emergency/proposed amendments do not impose the use of any new technological processes on regulated parties.

6. Minimizing adverse economic impact: The emergency/proposed regulations impose minimal adverse economic impact on small businesses and no adverse economic impact on local governments. OPWDD has reviewed and considered the approaches for minimizing the adverse economic impact as suggested in section 202-b(1) of the State Administrative Procedure Act. OPWDD modified the emergency/proposed regulations to delay the effective date for the development of policies and procedures in order to enable providers to have adequate lead time for this activity and use existing staff to implement the changes. Further, OPWDD considers that the minimal adverse economic impact is more than justified by the enhancement to the health and safety of the individuals served in these facilities. In addition, OPWDD expects that agencies will realize savings in the future associated with fire prevention and improvement in the health of the individuals served.

7. Small business participation: A proposed revision to the OPWDD policy on fire safety, which included prohibitions and limitations on smoking, was shared with representatives of providers, including the New York State Association of Community and Residential Agencies (NYSACRA), and discussed at Provider Association meetings on March 27, 2012 and April 23, 2012. (NYSACRA represents a variety of non-profit agencies throughout the state; some of these agencies employ fewer than 100 employees and qualify as small businesses. NYSACRA representatives participate in Provider Association meetings.) The emergency/proposed regulations were developed, in part, based on the policy revision and comments from NYSACRA and other provider representatives at the March 27, 2012 and April 23, 2012 meetings. The specific provisions of the emergency/proposed regulations were discussed at a Provider Association meeting on May 21, 2012. Recommendations made at that meeting were incorporated into the regulations.

1. Description of the types and estimation of the number of rural areas in which the rule will apply: OPWDD services are provided in every county in New York State. 43 counties have a population of less than 200,000: Allegany, Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, Jefferson, Lewis, Livingston, Madison, Montgomery, Ontario, Orleans, Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Schenectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tompkins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. Additionally, 10 counties with certain townships have a population density of 150 persons or less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, Oneida, Onondaga, Orange, and Saratoga.

The proposed amendments have been reviewed by OPWDD in light of their impact on entities in rural areas. The regulations prohibit smoking inside most residential facilities and all clinic and day program facilities that are certified or operated by OPWDD, and place limitations on smoking on the grounds of these facilities. The regulations also include smoking-related policy and procedures requirements and fire safety precautions. The limitations on smoking are being instituted in order to protect the health and safety of individuals receiving services, and those who support them, in facilities that are certified or operated by OPWDD. OPWDD has determined that the emergency/proposed amendments will not cause undue hardship to provider agencies in rural areas due to increased costs or increased compliance requirements. The development and implementation of policies and procedures in accordance with the new requirements may result in some minimal costs to the provider agencies, but these costs are far outweighed by the long-term health and fire safety benefits that will result from implementation of the requirements.

The emergency/proposed regulations result in no new costs for local governments.

2. Compliance requirements: Most of the new requirements contained in the emergency/proposed regulations were previously imposed by OPWDD through an Administrative Memorandum, which addressed smoking in residential facilities and certified day programs. OPWDD expects that providers are already in compliance with these requirements and therefore no new compliance activities are necessary concerning those provisions. The emergency/proposed regulations exceed the requirements that were previously imposed in several ways. First, the emergency/proposed regulations require agencies to develop policies and procedures if they operate supportive residences that serve individuals who smoke. In the event that an agency chooses to allow smoking inside a particular supportive residence, it must conduct an appraisal of the circumstances presented at that site. Further, when an agency that operates any type of certified residential facility (except family care) serves individuals who smoke, the agency must develop policies and procedures to address smoking safety, and smoking related health care issues, for each facility resident who smokes. These policies and procedures must incorporate specified mechanisms, such as mechanisms to offer and provide services and supports to promote smoking cessation. The emergency/proposed regulations also require that if an agency designates an outdoor smoking area, it must equip the area with a non-combustible receptacle.

OPWDD anticipates that agencies will use current staff to develop and implement the required policies. Agencies may also need to purchase new receptacles, if the agencies do not already have appropriate receptacles. OPWDD has determined that the proposed amendments will not cause undue hardship to provider agencies in rural areas due to increased costs or increased compliance requirements.

The proposed amendments contain no compliance requirements for local governments.

3. Professional services: No additional professional services are required as a result of these emergency/proposed regulations and the regulations will have no impact on the professional service needs of local governments.

4. Compliance costs: The limitations on smoking are being instituted in order to protect the health and safety of individuals receiving services, and those who support them, in the certified settings. OPWDD has determined that the proposed amendments will not cause undue hardship to provider agencies in rural areas due to increased costs or increased compliance requirements. The development and implementation of policies and procedures in accordance with the new requirements may result in some minimal costs to the provider agencies, but these costs are far outweighed by the long-term health and fire safety benefits that will come from the implementation of the requirements. Regarding the requirement that agencies use non-combustible receptacles for designated outdoor smoking areas, OPWDD expects that the vast majority of agencies already have the required receptacles and that it will result in the need to purchase a receptacle in very few circumstances. In any case the cost of receptacles is minimal and the benefit of avoiding fires outweighs the minimal costs.

There are no compliance costs to local governments.

5. Minimizing adverse economic impact: The emergency/proposed regulations impose minimal adverse economic impact on provider agencies in rural areas and no adverse economic impact on local governments. OPWDD has reviewed and considered the approaches for minimizing the adverse economic impact as suggested in section 202-bb(2)(b) of the State Administrative Procedure Act. OPWDD modified the emergency/proposed regulations to delay the effective date for the development of policies and procedures in order to enable providers to have adequate lead time for this activity and use existing staff to implement the changes. Further, OPWDD considers that the minimal adverse economic impact is more than justified by the enhancement to the health and safety of the individuals served in these facilities. In addition, OPWDD expects that agencies will realize savings in the future associated with fire prevention and improvement in the health of the individuals served.

6. Participation of public and private interests in rural areas: A proposed revision to the OPWDD policy on fire safety, which included prohibitions and limitations on smoking, was shared with representatives of providers, including the New York State Association of Community and Residential Agencies (NYSACRA), and discussed at Provider Association meetings on March 27, 2012 and April 23, 2012. (NYSACRA represents a variety of non-profit agencies throughout New York State, including provider agencies from rural areas. NYSACRA representatives participate in Provider Association meetings) The emergency/proposed regulations were developed, in part, based on the policy revision and comments from NYSACRA and other provider representatives at the March 27, 2012 and April 23, 2012 meetings. The specific provisions of the emergency/proposed regulations were discussed at a Provider Association meeting on May 21, 2012. Recommendations made at that meeting were incorporated into the regulations.

OPWDD is not submitting a Job Impact Statement for this emergency/proposed rule making because the rule making does not have a substantial adverse impact on jobs or employment opportunities.

The regulations prohibit smoking inside most residential facilities and all clinic and day program facilities that are operated or certified by OPWDD, and place limitations on smoking on the grounds of these facilities. The regulations also include smoking-related policy and procedures requirements and fire safety precautions.

Most of the new requirements contained in the emergency/proposed regulations were previously imposed by OPWDD through an Administrative Memorandum, which addressed smoking in residential facilities and certified day programs. However, the emergency/proposed regulations also include new requirements mandating policies and procedures to address exemptions to the smoking prohibition in supportive living environments and to address smoking safety and smoking cessation efforts for individuals in all certified residential facilities (except family care) who continue to smoke. The development and implementation of these policies and procedures will have some impact on staff time in facilities that are certified or operated by OPWDD; however, OPWDD expects that the changes can be accomplished using existing staff.

One of OPWDD’s core values is to promote the health and well-being of individuals with developmental disabilities and those who support them. The new requirements may have a positive impact on employee health and wellbeing, but OPWDD does not anticipate any substantial impact on jobs or employment opportunities.