Enacts the "omnibus obesity and respiratory illness reduction act"

Further, this bill attempts to integrate activities that are currently being conducted by state agencies and to encourage:

A) the Department of Health to better track areas of the state that have high incidences of childhood obesity and encourage health care facili- ties and health care providers to identify and treat such conditions at an earlier time of a patient's life

B) the Financial Services Department, to encourage health insurers and their insureds to more actively participate in Wellness Programs that combat the high incidence of adult and childhood obesity. Further, altering the eating and exercise habits of parents can have positive effects on the eating and exercise habits of their children,

C) the Education Department to better educate students and parents on the important economic and health reasons for consuming a balanced and nutritious diet. In addition to teaching such subjects in Health class, the scientific reasons for the importance of having a balanced diet should be presented in science classes such as biology and chemistry. Further, the Department will more actively provide for more opportu- nities for physical recreational activities to foster physical fitness and create an environment so that students are more capable to learn because they have "burned off" energy during recess,

D) the Office of Children and Family Services with regard to its regula- tory powers over the provision of child care by child day care centers should become more proactive in encouraging such centers to provide more low calorie foods to children and encourage more physical activity. In addition, help to increase the awareness of the problem of childhood obesity by teenage mothers will go a long way to help reduce the inci- dence of childhood obesity, and

E) better integrate the work of the Departments of Agriculture & Markets, Education, and Health, and the Office of Children & Family Services with activities conducted by local volunteer groups, health care providers, local governments, schools and cooperative Extension Services.

Summary of provisions

This bill is a comprehensive inter-disciplinary approach to address the high incidence of childhood obesity in New York State. Further, this bill amends many sections of law, so it is broken down into Parts A through R, depending on the laws to be amended.

Part a

Section 1: Amends Public Health Law section 206 (1) which relates to the general powers and duties of the Commissioner of Health. This provision adds a new subdivision to authorize that the Department of Health may promulgate rules and regulations to restrict the use of artificial trans fats in the preparation of certain foods served by food service estab- lishments that offer the immediate sale of food to the general public. Foods that DOH could regulate that have trans fat include those prepared

foods that contain vegetable shortening, margarine, or partially hydro- genated vegetable oil in quantities above .5 grams per serving. Such regulations cannot apply to foods that are served to the public in pack- ages sealed by the manufacturer. Further such regulations cannot apply to the City of New York or any other municipality that has adopted a local law to regulate such products. This bill provision does not mandate DOH to promulgate such rules, but establishes a framework should the Department deem it appropriate to promulgate such regulations.

This section also authorizes DOH to establish a voluntary artificial trans fat reduction or program. Such a program can include a public information dissemination program to inform the public about the health risks associated with the over consumption of foods that have signif- icant amounts of artificial trans fats.

This section also authorizes DOH to require chain owned food service establishments that have over 25 sites to disclose on their product offerings the total number of calories, grams of carbohydrates, satu- rated fats, and milligrams of sodium contained in each food offered for sale at such establishment. Such information may, in the discretion of the Department, be offered to the public upon request.

Section 2: This Part A shall take effect one year after this bill shall have become law.

Part b

Section 1: Adds a new Article 13-I to the Public Health Law to establish a program to prevent in-utero exposure to tobacco smoke. Under this program, health care providers, health insurers, and pregnancy programs shall distribute information on the adverse effects of smoking during pregnancy, both first hand and second hand smoke. In-utero exposure to tobacco smoke leads to lower birth rates, higher incidences of asthma and childhood obesity, and can lead to cognitive and developmental damage to the child. Under this article, individualized smoking cessa- tion programs would be established to help increase the success rates for mothers who smoke tobacco or live in households where others smoke tobacco. This program will help to reduce the incidence of asthma.

Section 2: The effective date for this provision is 180 days after it shall have become law.

Part c

Section 1: Amends Public Health Law section 2111 to expand the scope of disease management demonstration programs administered by DOH to enhance the quality and cost-effectiveness of care rendered to Medicaid-eligible persons who do not participate in Medicaid Managed Care who have chronic health problems. Under current law, demonstration programs can include chronic conditions related to congestive heart failure, chronic obstruc- tive pulmonary disease, asthma and diabetes. This provision expands the

scope of demonstration programs to include obesity, chronic bronchitis, and other chronic respiratory diseases.

Part d

Section 1: Amends Public Health Law section 2599-b to expand the scope of programs administered by DOH to reduce the incidence and prevalence of obesity in children and adolescents, especially among populations with high rates of obesity. Under current law, the program looks to address obesity related health complications such as diabetes, heart disease, cancer, osteoarthritis, and asthma. This bill would expand such programs to include obesity-related health complications such as chronic bronchitis, and other chronic respiratory diseases.

In addition a new paragraph (h) is added to encourage DOH to coordinate with the Education Department, Office of Temporary and Disability Assistance, Office of Children and Family Services, and other federal, state, and local agencies to incorporate strategies to curtail the inci- dence of asthma, and chronic respiratory diseases to enable adults and children to safely increase physical activity to help curb the incidence of obesity.

Section 2: Amends Public Health Law section 2599-c that relates to the Department's role in encouraging more school-based childhood obesity prevention and physical activity programs. This bill adds that the Department in advancing school-based childhood obesity prevention and physical activity programs should cooperate with the Commissioners of Agriculture & Markets and Education, and county boards of cooperative extension.

Part e

Section 1: Amends Public Health Law section 263 that relates to an already authorized obesity study. This provision cross references a new Public Health Law section 2500-k and the information received from the childhood obesity prevention and screening program established pursuant to that section of the law.

Part f

Section 1: Amends Public Health Law section 2411 which relates to the powers and duties of the Commissioner. This provision authorizes the Commissioner to act in an advisory and supervisory capacity with regard to the Health Research Science Board as it relates to childhood obesity, asthma, and chronic bronchitis or other respiratory diseases. Further it expands the jurisdiction of such Board to research issues related to childhood obesity, asthma, and other respiratory diseases in addition to already being authorized to research breast, prostate or testicular cancer.

Section 2: Amends Public Health Law section 2500 (1) which relates to the Commissioner's duties as it relates to maternal and child health to also include childhood obesity.

Section 3: Amends Public Health Law section 2500-k to establish a child- hood obesity prevention and screening program. This provision authorizes the Department to establish a childhood obesity prevention and screening program so that trends may be ascertained with regard to the incidence and location of populations that have childhood obesity conditions. This research information may be shared with hospitals that provide obstetric services and pediatric primary care providers. Ultimately, this informa- tion can be used to review and improve quality of care provided by such health care providers.

Part g

Section 1: Amends Public Health Law section 2505-a to add child day care facilities to the list of facilities that must post the "statement of rights of breast feeding mothers". The goal of this provision is to disseminate the statement of rights of breastfeeding mothers to places where such mothers may frequent. Studies have shown that encouraging the breast feeding of children reduces the risk that such infants become obese later on in life.

Section 2: Amends Public Health Law section 2505, which relates to the general powers of the Commissioner to regulate the collection, storage and distribution of human breast milk. This provision authorizes the Commissioner to adopt regulations or guidelines to encourage and facili- tate employers and child day care centers to establish environments that do not discourage the practice of breast feeding.

Section 3: Amends Public Health Law section 2515 (2) that relates to Adolescent Pregnancy Prevention and Services Program to add to "services for eligible adolescents" vocational and education counseling on preg- nancy and child nutrition counseling for expectant mothers to help curtail the incidence of childhood obesity.

Section 4: Amends Public Health Law section 2515-a(2) that relates to the administration of community service project plans. The purpose of these demonstration plans is to develop new methodologies to advance the provision of health care that reduces adolescent pregnancy and provide services to assist teenage mothers. These demonstration programs tend to be located in geographical areas where there is a high incidence of infant. mortality and low income families. This provision expands the demonstration program areas to also include geographical areas that have low birth weight babies or childhood obesity.

Section 5: Amends Public Health Law section 2522 to empower the Health Department to provide funds, if it deems appropriate, to finance health and nutritional education and services to both parents regarding child- hood and adult obesity and asthma, and the prevention or mitigation thereof.

Part h

Section 1: Amends Education Law section 916 to expand the number of students who can have and use an inhaler at school to maintain appropri- ate airflow to their lungs or suppress an asthmatic attack. The medical community maintains that it is better to monitor and address those who are susceptible to asthma conditions and treat such conditions before an asthmatic attack occurs, This bill increases the number of persons who can have and use an inhaler at school to include not only those who have a "severe asthmatic condition", to also include those who have a "moder- ately severe asthmatic condition" or have other potentially life-threat- ening respiratory illnesses".

Section 2: Adds a new Education Law section 921 to authorize school districts to posses and use nebulizers for those students that need such treatments. As the number and severity asthma attacks increases in the student body, it is important that such students have access not only to their inhalers, but nebulizers as well. The bill provides safeguards to ensure that only students that have a physician's treatment plan can use such nebulizers on school grounds. Further, such nebulizer treatment must be monitored by the school nurse or other person authorized by regulation. The underlying justification to enact the provisions of Part I is that if students are not able to engage in physical activity because of restricted breathing patterns and asthma, any treatment that encourages such students to maintain physical activity may help to reduce the incidence of childhood obesity.

Part i

Section 1: Adds Real Property Law section 235-h to require that every rental agreement for an apartment in a building that has 20 units or more must disclose the smoking policy of such building. The landlord is still free to either fully ban, partially ban, or generally permit smok- ing in such building's apartments and common areas. It is the purpose of this section to encourage landlords to think about the building's smok- ing policy and to give tenants notice of such policies. This in turn may encourage non-smoker tenants to seek out apartment buildings that have a no smoking policy and encourage landlords to at least minimize smoke exposure to those tenants who do not smoke to increase the marketability of their apartments. While this bill is a comprehensive bill to address adult and childhood obesity issues, there is a correlation between those who are exposed, either voluntary or otherwise, to first and second hand tobacco smoke, and asthma and the incidence of obesity. It would be difficult to address obesity and asthma issues without looking at the incidence of tobacco smoking and exposing, particularly children, to such conditions that can trigger asthma attacks and increase the inci- dence of obesity conditions generally because children are not able to conduct physical activity to maintain a proper weight.

Part j

Section 1: Adds a new State Finance Law section 91-h to establish the Obesity and Respiratory Disease Research Fund. This fund is established to support the financing of projects and research provided for in PHL sections 2411, 2500, and 2500-k.

Part k

Section 1: Amends Social Services Law section 390(2-a) to authorize the Office of Children and Family Services may promulgate rules and regu- lations on appropriate levels of physical activity, nutritional offer- ings, and low calorie foods and beverages to lower the incidence of childhood obesity for child day care homes, programs, and facilities.

Section 2: Amends Social Services Law section 390-a to prohibit any family day care home, group family day care home, or school age child care program or child day care center to discriminate against any child who is breast fed or who is fed with expressed breast milk.

Part l

Section 1: Amends the Education Law to add a new section 414(1) (1) to authorize school districts to permit not-for-profit and charitable organizations to sponsor after school programs on school grounds that provide educational instruction or physical education.

Section 2: Amends Education Law section 414(2) to permit such school districts to provide such school space at either no or a minimal fee as long as educational or physical education programs are being provided.

Sections 3 and 4: Amends both Education Law sections 2590-h (27) to add to the authority of the Chancellor of the New York City School District the authority to allow a not-for-profit or charitable organization to offer after school programs on school grounds as long as such programs provide some form of educational programming or physical education. The District may charge no or a minimal fee as long as such programs are educational or promote physical fitness.

Part m

Section 1: Amends Education Law section 901 which relates to school health services to be provided. This section expands the types of services that can be provided by school health services to include exam- ining students for the existence, in addition to diseases or disabili- ties, to include childhood obesity as defined pursuant to existing Education Law standards contained in section 904.

Section 2: Amends Education Law section 903 to add that school health exams may include a diabetes risk analysis if such child has risk factors for type 1 or type 2 diabetes, such as obesity, family history of type 2 diabetes, or other factors that heighten the risk of diabetes.

Section 3: Amends Education Law section 904 which relates to examina- tions by health appraisal to include obesity.

Section 4: Amends Education Law section 912 which relates to health and welfare services to all children, may also include childhood obesity screening.

Section 5: Amends Education Law section 918 (4) and (5) which relates to the formation of school district nutrition advisory committees. Under this provision, such advisory committees can study and make recommenda- tions on current nutritional policies of the school district to reduce the incidence of childhood obesity. Further, such advisory committees can make recommendations on educational information that can be provided to parents and guardians of students regarding healthy nutrition and health risks associated with asthma, chronic bronchitis, and other chronic respiratory diseases. Provided further, make recommendations to teachers and other staff as to the dangers of childhood obesity.

Section 6: This Part M shall take effect 2 years after it shall have become law.

Part n

Section 1: Amends Education Law section 2556(5) to add a new sentence to encourage certain secondary and primary schools in New York City to provide for other types of recreational play spaces if existing play- grounds are subsequently used for school construction or siting of temporary classroom units. Under current law, Section 2556(5) requires open-air playgrounds be attached to all schoolhouses constructed in the city of New York. The purpose of this provision is to encourage the retention of adequate outdoor playground space for New York City school children. Further, that if existing playgrounds are sold, leased, trans- ferred or used for school building construction in a way that eliminates such playground space, that the school establish a plan to secure suit- able and adequate playground space for the physical recreation needs of such pupils.

Part o

Section 1: Amends Education Law section 803 (1) and (5) which relates to the instruction of physical education in all elementary and secondary schools to foster the increased overall physical fitness and good health of its students and to foster a reduction in the incidence of childhood obesity. Further, it encourages the regents to ensure that all students in elementary and secondary schools have daily physical activity to increase their physical wellbeing and to increase their ability to absorb what is being taught in school.

Section 2: Amends Education Law section 804(1) to alter the material taught in health, physical education, and appropriate science classes to include information on the health risks associated with childhood obesi- ty and ways to combat the incidence of childhood obesity.

Section 3: Amends Education Law section 804-a which relates to the comprehensive School Health Education Demonstration Program. These demonstration programs can be established by individual schools for the development, implementation, evaluation, validation, and replication of exemplary comprehensive health education programs. This bill expands this demonstration program to include conveying knowledge to students on a host of social conditions to include in addition to adolescent preg- nancy, alcohol abuse, truancy, suicide, and substance abuse to also include obesity, asthma, or other chronic respiratory diseases.

Section 4: Amends Education Law section 813 to ensure that during a primary and secondary student's lunch period that ample time is devoted so that such student can consume his lunch and have time to engage in physical exercise or recreation.

Part p

Section 1: Amends section 11 of the public buildings law to expand on the existing bicycle parking pilot program at state office buildings in Albany, New York.

Subdivision 1 recognizes the role in which bicycles can serve as valu- able transportation mode with energy conservation, health, physical fitness, and environmental benefits and declares it the official policy of the state to provide for adequate and safe bicycle facilities, including the use of present facilities for safe and secure bicycle parking and storage, be included in the planning, development, construction or re-construction of all state facilities.

Subdivision 2 clarifies the role of the commissioner of general services in undertaking a program for the provision and promotion of safe and secure bicycle parking facilities at state office buildings for state employees and visitors at such buildings. Within two years of the effec- tive date, the commissioner must make an inventory of all existing bicy- cle parking and storage facilities at all state office buildings in which the state leases or occupies space and which have over 50 state employees or in which the visitation rate by the general public is an average of over 500 visitors per month.

Subdivision 3 explains that, once the inventory has been completed, the commissioner has 18 months to develop a plan to expand bicycle parking and storage facilities to encourage the use of such facilities by state employees and the general public. To encourage the use of bicycles by state employees and visitors, the plan must contain and address the following elements: (a) the inventory must be ranked from highest to lowest based on existing unfulfilled demand while considering increased future demand; (b) in urban settings, a plan must be developed to secure ample covered and uncovered off street or alternate indoor parking and storage; (c) adequate posting must be provided to encourage utilization of parking and storage facilities; (d) a marketing plan and community outreach effort must be provided; and (e) other elements as the commis- sioner deems appropriate.

Subdivision 4 stipulates the role of the office of general services (OGS) in consulting and cooperating with the NYSDOT regional bicycle coordinator, local bicycle planning groups, and other organizations interested in the study. All other departments, divisions, boards, bureaus or commissions must help the office carry out its responsibil- ities by providing assistance and data Upon request.

Subdivision 5 lays forth the requirement for bicycle parking or storage space to comply with any applicable building and fire codes.

Subdivision 6 establishes a temporary bicycle commuting task force to examine the development of sheltered bicycle parking in public spaces. The task force shall be comprised of ten members, five of which are appointed by the governor, and the other five by various members of the New York State Legislature. The chairperson of the task force shall be the commissioner of general services; members of the task force shall serve without compensation and meet when deemed necessary by the chair.

Within 18 months of its establishment, the task force shall issue a report to the governor and offer suggestions on expanding the OGS to local, municipal, and private office buildings. The report shall be posted the website of each state agency involved, and the task force shall cease to exist after 3 months after the issuance of its report.

By building on New York's existing pilot program, the bill expands park- ing and storage facilities to support bicycle commuters and visitors of public office buildings. The measure is intended to improve public health and physical fitness, reduce carbon emissions, provide a cheaper commute and build towards a sustainable transportation infrastructure.

Part q

Section 1: Amends Agriculture and Markets Law section 16 to authorize the Commissioner of Agriculture and Markets to cooperate with the Commissioner of Education in developing guidelines for a voluntary program to coordinate the donation of excess, unused, edible food derived from school meal programs to voluntary food assistance programs for the poor and disadvantaged, including community food pantries, soup kitchens, and other community or not-for-profit organizations that distribute food.

Section 2: Adds a new Education Law section 305 (32) to ask the Commis- sioner of Education to develop voluntary guidelines to encourage and facilitate the ability of school districts and institutions of higher learning to donate excess, unused, edible food from meals served at such facilities to local voluntary food assistance programs. To minimize any potential mandates on school districts, and the Department of Education, all that is being asked to be done is to establish some form of channel of communication between such educational institutions and nearby volun- tary food assistance programs for the poor or disadvantaged so that if it is advantageous, that surplus food can be donated to the poor. This section also interrelates the communication between schools and food

pantries with the farm-to-school program and the New York Harvest for New York Kids week program, which already is a line of communication on food and nutrition between the schools and Agriculture and Markets.

The United States Department of Agriculture (USDA) has encouraged the creation of programs that collect food that would otherwise be discarded and donate it to voluntary feeding programs such as food pantries and soup kitchens. There are existing efforts to collect food leftovers from food service operations such as restaurants, fundraising dinners, corpo- rate lunchrooms and even airlines. school meal programs are also poten- tial donors. There is funding for food gleaning through the Department of Health's Hunger Prevention Nutrition Assistance Program (HPNAP) which provides State support for emergency food programs.

Schools are required to carefully plan menus to meet the nutritional needs of children and minimize food waste. However, at times when there is bad weather or high absenteeism or other unusual circumstances there may be significant unserved food that could be used by emergency food programs. Nearly 2 million school lunches and breakfasts are served every day in New York State.

Part r

Section 1: Amends Insurance Law section 3231 to permit insurers and HMOs that offer individual or small group insurance policies to offer an actuarially appropriate premium discount or other benefits or enhance- ments to those individuals that participate in a qualified wellness program. Such qualified wellness program must be approved by the Finan- cial Services Department. Further, such qualified Wellness program can be either a risk management system that identifies at-risk populations or any other systematic program or course of medical conduct which helps to promote physical and mental fitness, helms to prevent or mitigate acute or chronic sickness, disease or pain, or which minimizes adverse health consequences due to lifestyle. To protect all covered persons, the insurer or HMO shall not require specific medical outcomes as a result of an insured's adherence to the approved wellness program.

Section 2: Amends Insurance Law section 3239 which relates to Wellness Programs that can be sponsored by a health insurance plan. This provision expands the kinds of Wellness Programs that are covered under the Insurance Law to include substance or alcohol abuse cessation programs and programs to manage and cope with chronic pain. In addi- tion, the bill expands and provides for the full or partial reimburse- ment for the cost of participating in programs that are already current- ly authorized under this provision of the law, such as programs related to stress and or hypertension, worker injury prevention and nutrition education.

Section 3: Amends Insurance Law section 4235(h) to permit insurers and HMOs that offer accident and health insurance (large group policies) to offer an actuarially appropriate premium discount or other benefits or

enhancements to those persons that participate in a qualified wellness program approved by the Superintendent.

Section 4: Amends Insurance Law section 4317 to permit Article 43 insur- ers and HMOs that offer individual or small group contracts to offer, subject to the approval of the Superintendent, an actuarially appropri- ate premium discount or other enhancements to those persons that partic- ipate in a qualified wellness program.

Section 5: Amends insurance Law section 4326 to permit insurers and HMOs that offer the subsidized "Healthy New York" policies to offer an actu- arially appropriate premium discount or other enhancements to those persons that participate in a qualified wellness program.

Section 6: Amends Public Health Law section 4405 to provide for the same actuarially appropriate reduction in HMO health policies for those who participate in a Qualified wellness program.

Justification

The growing prevalence of overweight and obese children is a crisis that is facing the entire nation. Obesity related health care expenditures in New York are some of the highest in the nation. Further, contrary to the lower prevalence of obesity among adults, chil- dren in New York are more likely to be obese or overweight when compared to national trends. Obesity and overweight conditions in individuals are leading to higher incidences of life threatening conditions and substan- tial economic costs both to the State of New York for health care costs and to employers in lost work time and higher health care costs. Obesity in children tends to manifest itself more widely among poorer children and children whose parents have lower education levels.

The rising incidence of childhood obesity is a serious medical problem that continues to grow, especially among poorer and minority communi- ties. Further, obesity is known to cause or exacerbate a number of seri- ous chronic medical disorders including hypertension, dyslipidemia, cardiovascular disease, diabetes, and respiratory dysfunction. Nearly 80% of patients with diabetes mellitus are obese, while nearly 70% of diagnosed cases of cardiovascular disease are related to obesity. Obesi- ty ranks only second to smoking as a preventable cause of death. Unfor- tunately, preventable deaths caused by obesity conditions is rapidly approaching and will surpass those deaths caused by smoking tobacco.

While the high prevalence of obesity and overweight conditions is an important public health concern when it affects adults. It should be of heightened concern that this adult affliction is now becoming more common among children. When obesity conditions afflict children this poses, significant quality of life detriments to such persons, reduces the productivity of such individuals over a longer time of their life, and hastens the onset of many chronic conditions that can hurt the qual- ity of life of such persons and their families.

The provisions of this bill are derived from a report by the Independent Democratic Conference entitled "Childhood Obesity: Mitigation and

Prevention in the State of New York". This report outlines the trends of the increasing incidence of childhood obesity, some of the causes of this increase, and suggested courses of action that can be taken to help reduce this ever increasing public health problem. It is important for state agencies such as the Departments of Health, Education, Agriculture & Markets, and Financial Services, the Office of Children and Family Services coordinate their current activities to curb this problem. Further, once New York's state agencies have a more coordinated approach to curb childhood obesity, then other public stakeholders such as school educators and BOCES can combine forces with such state agencies and with private stakeholders such as health care providers, health care facili- ties, child day care centers, insurers, and community groups to provide a coordinated way to address this problem.

Prior legislative history

2012 - S. 6423 - Referred to Agriculture

Effective date

See relevant sections at the end of each Part of this bill.