Notice Of Adoption

New York
Issue 3
Volume XLIV
Published January 19, 2022
Rule Type
Final Rule
Issuing Body
Department of Health

Notice Text

NOTICE OF ADOPTION Abortion Services I.D. No. HLT-32-21-00001-A Filing No. 2 Filing Date: 2022-01-03 Effective Date: 2022-01-19 PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action: Action taken: Amendment of sections 756.3 and 756.4 of Title 10 NYCRR. Statutory authority: Public Health Law, section 2803 Subject: Abortion Services. Purpose: To protect and promote the health of New Yorkers seeking to access abortion services. Text of final rule: Pursuant to the authority vested in the Commissioner of Health by Public Health Law section 2803, Section 756.3 of Title 10 of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR) is amended and Section 756.4 is repealed and replaced, to be effective upon publication of a Notice of Adoption in the New York State Register, to read as follows: Section 756.3 is amended to read as follows: The operator shall ensure that: (a)prior to [performing] the [procedure] abortion service, the patient receives a [complete physical examination] clinically relevant examina- tion, which may be satisfied, when clinically appropriate, through a review of the patient's medical history and discussion of patient symptoms conducted through telemedicine. [with appropriate tests for a positive pregnancy diagnosis and sonography if there is a question of gestational age, and] T[t]he results [are] of such examination shall be documented in the patient's medical record; (b)after [the] a procedure, an evaluation of the [physical and emo- tional] status of the patient is made and documented in the patient's medi- cal record; (c)information and counseling about [alternative] methods of [birth control] contraception are made available [by a health care professional] to all patients who want such information; (d)referral is made to another facility for family planning services, if not available at the center, and if desired by the patient; and (e)[the determination of blood group and Rh type is made prior to the termination of pregnancy. The patient is evaluated for the risk of sensitiza- tion to Rho(D) antigen and,] a determination of blood group and Rh type, if clinically indicated, is made in accordance with evidence based clinical guidelines. [i]If the use of Rh immune globulin is indicated and the patient consents, an appropriate dosage is administered within 72 hours after the termination of pregnancy. Section 756.4 is REPEALED and a new section 756.4 is added to read as follows: 756.4Health care practitioner services The operator shall ensure that: (a) a health care practitioner licensed, certified, or authorized under title eight of the education law, acting within such practitioner's lawful scope of practice, performs the abortion; and (b)an abortion is performed only when, according to the practitioner's reasonable and good faith professional judgment based on the facts of the patient's case, the patient is within twenty-four weeks from the commence- ment of pregnancy, or there is an absence of fetal viability, or the abortion is necessary to protect the patient's life or health. Final rule as compared with last published rule: Nonsubstantive changes were made in section 756.3(a). Text of rule and any required statements and analyses may be obtained from: Katherine Ceroalo, DOH, Bureau of Program Counsel, Reg. Affairs Unit, Room 2438, ESP Tower Building, Albany, NY 12237, (518) 473- 7488, email: Revised Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement Changes made to the last published rule do not necessitate revision to the previously published Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement. Initial Review of Rule As a rule that does not require a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2027, which is no later than the 5th year after the year in which this rule is being adopted. Assessment of Public Comment Fifteen (15) public comments were received from various stakeholders including but not limited to reproductive rights advocates, health care providers, civil rights advocates, individuals, and members of the New York State Assembly. The comments and the Department's responses are summarized below. Note: Of the 15 comments received, 13 contained the same content in support of these regulatory changes. The content of those comments are summarized in the first two comments below. COMMENT: Numerous comments were received in support of the regulatory changes, highlighting the positive impact these updates will have in removing barriers to abortion access. Commenters noted that the proposed regulatory updates will better re?ect current clinical standards of care, remove any unnecessary barriers that may impede access to abortion services, and better support provision of abortion through telehealth. RESPONSE: These comments in support are noted by the Department. No change was made to the regulation in response to these comments. COMMENT: Numerous comments were also received in support of removing the assessment of a person's emotional status following an abortion. Commenters praised that this change helps to eliminate abortion stigma from New York's Public Health Law. RESPONSE: These comments in support are noted by the Department. No change was made to the regulation in response to these comments. COMMENT: One commenter recommended that the Department repeal Section 756.3 in totality. This commenter stated that specific regulations for medical care that are clinically comparable to abortion do not exist and by keeping this language in regulation the Department is perpetuating the notion that the law regards abortion as a disfavored process. RESPONSE: The Department views this regulation as an important af- firmation of the rights of individuals to obtain abortion care in New York State. This regulation sets a minimum standard of care for abortion services which aligns with other nationally recognized standards of care developed by academic and professional service organizations. These standards are not meant to be punitive or restrictive in any way, but to ensure any individual obtaining an abortion in New York State is afforded quality care. COMMENT: One commenter recommended that as part of this regulatory update and amendment, the Department should also update language in section 755.3(b)-(d) which outlines requirements related to the distribution of blood and blood products. This commenter suggests that the Department should expand the list of providers allowed to provide blood and blood products. RESPONSE: This comment is outside of the scope of proposed regulatory changes. No changes were made as a result of this comment. COMMENT: Comments were received that focused on the use of the term "abortion procedure" in the updated regulatory language. Commenters suggested minor updates to the proposed regulatory language in sec- tion 756.3 including replacing the phrase, "prior to performing the proce- dure" with "prior to the abortion service" and striking and replacing "the" with "a" when referring to abortion services. RESPONSE: The Department appreciates this feedback and agreed that language used in this regulation should be affirming in tone and impact. In response to these comments the Department has made insubstantial amendments to section 756.3 to more accurately re?ect the purpose and intent of the regulation.