S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9193
 
                             I N  S E N A T E
 
                             November 19, 2018
                                ___________
 
 Introduced  by Sen. BENJAMIN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the public health law, the education law and  the  penal
   law,  in  relation  to  requiring anaphylactic policies for child care
   services
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as "Elijah's Law".
   §  2. Section 2500-h of the public health law, as added by chapter 579
 of the laws of 2007, is amended to read as follows:
   § 2500-h.  Anaphylactic  policy  for  [school  districts]  CHILD  CARE
 SERVICE PROVIDERS. 1.  FOR PURPOSES OF THIS SECTION "CHILD CARE SERVICE"
 OR "CHILD CARE SERVICE PROVIDER" SHALL MEAN CARE FOR ANY CHILD UNDER THE
 AGE  OF EIGHTEEN PROVIDED ON A REGULAR BASIS AWAY FROM THE CHILD'S RESI-
 DENCE FOR LESS THAN TWENTY-FOUR HOURS PER DAY BY SOMEONE OTHER THAN  THE
 PARENT,  STEP-PARENT,  GUARDIAN,  OR RELATIVE WITHIN THE THIRD DEGREE OF
 CONSANGUINITY OF THE PARENTS OR STEP-PARENTS OF SUCH  CHILD;  AND  SHALL
 INCLUDE,  BUT  NOT  BE LIMITED TO: ALL PUBLIC AND PRIVATE ELEMENTARY AND
 SECONDARY SCHOOLS; GROUP FAMILY DAY CARE HOME, FAMILY DAY CARE HOME  AND
 SCHOOL AGE CHILD CARE AS SUCH TERMS ARE DEFINED IN SECTION THREE HUNDRED
 NINETY  OF  THE  SOCIAL SERVICES LAW; A DAY CAMP AS DEFINED IN THE STATE
 SANITARY CODE; AN AFTER-SCHOOL PROGRAM OPERATED FOR THE PURPOSE OF RELI-
 GIOUS  EDUCATION,  SPORTS,  OR  RECREATION;  A  FACILITY  PROVIDING  DAY
 SERVICES  UNDER  AN  OPERATING CERTIFICATE ISSUED BY THE DEPARTMENT, THE
 OFFICE OF MENTAL HEALTH OR OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABIL-
 ITIES; A KINDERGARTEN, PRE-KINDERGARTEN OR NURSERY SCHOOL  FOR  CHILDREN
 THREE  YEARS OF AGE OR OLDER; AN AFTER-SCHOOL PROGRAM FOR CHILDREN OPER-
 ATED BY A PUBLIC SCHOOL DISTRICT OR BY A PRIVATE SCHOOL OR ACADEMY WHICH
 IS PROVIDING ELEMENTARY OR SECONDARY EDUCATION OR BOTH.
   2. The commissioner[, in consultation with the commissioner of  educa-
 tion,  shall  establish  an  anaphylactic  policy  for  school districts
 setting forth guidelines and procedures to be followed for  both]  SHALL
 ADOPT AN ANAPHYLACTIC POLICY WHICH SHALL CONFORM TO THE VOLUNTARY GUIDE-
 LINES  FOR  MANAGING FOOD ALLERGIES IN SCHOOLS AND EARLY CARE AND EDUCA-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD14998-04-8

 S. 9193                             2
 
 TION PROGRAMS PROMULGATED BY THE UNITED STATES DEPARTMENT OF HEALTH  AND
 HUMAN  SERVICES  FOR  ALL  CHILD CARE SERVICES. SUCH ANAPHYLACTIC POLICY
 SHALL BE FOLLOWED FOR BOTH the prevention of anaphylaxis  and  during  a
 medical  emergency  resulting from anaphylaxis. Such ANAPHYLACTIC policy
 shall be [developed] IMPLEMENTED after consultation with representatives
 of pediatric physicians, [school nurses] and other health care providers
 with expertise in treating children with anaphylaxis, parents  of  chil-
 dren  with life threatening allergies, [school administrators, teachers,
 school food service directors]  and  appropriate  not-for-profit  corpo-
 rations representing allergic individuals at risk for anaphylaxis.
   [2.]  3.  The  anaphylactic policy established by [subdivision one of]
 this section shall include the following:
   (a) a procedure and treatment  plan,  including  responsibilities  for
 school  nurses  and  other  appropriate school personnel AND EVERY CHILD
 CARE SERVICE PROVIDER, for responding to anaphylaxis;
   (b) a training course for appropriate [school] personnel for  prevent-
 ing and responding to anaphylaxis;
   (c)  a  procedure and appropriate guidelines for the development of an
 individualized emergency health care plan for children with  a  food  or
 other allergy which could result in anaphylaxis;
   (d)  a  communication plan for intake and dissemination of information
 regarding children with a food or other allergy which  could  result  in
 anaphylaxis; [and]
   (e) strategies for the reduction of the risk of exposure to anaphylac-
 tic causative agents, including food and other allergens;
   (F)  A  COMMUNICATION  PLAN  FOR DISCUSSION WITH ANAPHYLACTIC CHILDREN
 ABOUT FOODS THAT ARE SAFE AND UNSAFE FOR THE CHILD, AND ABOUT STRATEGIES
 TO AVOID EXPOSURE TO UNSAFE FOOD; AND
   (G) A REQUIREMENT THAT EACH CHILD CARE SERVICE PROVIDER SHALL HAVE  AN
 ONSITE  MECHANISM,  INCLUDING BUT NOT LIMITED TO AUTO INJECTORS THAT ARE
 CURRENT AND NOT EXPIRED, THAT WILL IMMEDIATELY REDUCE THE EFFECTS OF ANY
 LIFE-THREATENING ALLERGIES.
   [3. On or before June thirtieth, two thousand  eight]  4.  SIX  MONTHS
 AFTER  THE  EFFECTIVE  DATE  OF  THE CHAPTER OF THE LAWS OF TWO THOUSAND
 EIGHTEEN THAT AMENDED THIS SECTION,  an  anaphylactic  policy  shall  be
 jointly  forwarded by the commissioner and the commissioner of education
 to each [local school board of education, charter school, and  board  of
 cooperative  educational  services]  CHILD  CARE SERVICE PROVIDER in the
 state. [Each such board and charter school]  EVERY  CHILD  CARE  SERVICE
 PROVIDER  shall [consider and take action in response to] IMPLEMENT such
 anaphylactic policy WITHIN NINETY DAYS OF  RECEIVING  SUCH  ANAPHYLACTIC
 POLICY FROM SUCH COMMISSIONERS.
   5.  (A)  ANY WILLFUL OR NEGLIGENT VIOLATION OF THIS SECTION BY A CHILD
 CARE SERVICE PROVIDER SHALL RESULT IN A CIVIL PENALTY NOT TO EXCEED FIVE
 THOUSAND DOLLARS FOR EACH VIOLATION.
   (B) IF A CHILD CARE SERVICE PROVIDER FAILS TO IMPLEMENT THE GUIDELINES
 AND ANAPHYLACTIC POLICY  PURSUANT  TO  THIS  SECTION,  SUCH  CHILD  CARE
 SERVICE  PROVIDER'S  LICENSE  OR  REGISTRATION SHALL BE REVOKED. A CHILD
 CARE SERVICE PROVIDER MAY, BY WRITTEN REQUEST TO THE COMMISSIONER AND IN
 THE COMMISSIONER'S DISCRETION, BE GRANTED AN EXTENSION OF TIME TO IMPLE-
 MENT THE ANAPHYLACTIC POLICY REQUIRED PURSUANT TO THIS SECTION.
   6. THE COMMISSIONER, IN CONSULTATION WITH THE COMMISSIONER  OF  EDUCA-
 TION  AND THE COMMISSIONER OF THE OFFICE OF CHILDREN AND FAMILY SERVICES
 SHALL DEVELOP AND IMPLEMENT A PLAN FOR REPORTING, INSPECTING  AND  MONI-
 TORING OF CHILD CARE SERVICES TO ENSURE COMPLIANCE WITH THIS SECTION.

 S. 9193                             3
 
   §  3.  Paragraph  (f) of subdivision 2 of section 3000-c of the public
 health law, as added by chapter 373 of the laws of 2016, is  amended  to
 read as follows:
   (f)  [Nothing  in]  THE  PROVISIONS  OF this section shall NOT require
 [any] AN eligible person or entity WHICH IS NOT A CHILD CARE SERVICE  AS
 DEFINED  IN  SECTION  TWENTY-FIVE  HUNDRED-H OF THIS CHAPTER to acquire,
 possess, store, make available, or administer an epinephrine auto-injec-
 tor.
   § 4. Section 921-a of the education law, as amended by chapter 200  of
 the laws of 2017, is amended to read as follows:
   §  921-a.  On-site  epinephrine  auto-injector.  1.  School districts,
 boards of cooperative educational services, county vocational  education
 and  extension  boards,  charter  schools, and non-public elementary and
 secondary schools in this state [may] SHALL provide and maintain on-site
 in each instructional  school  facility  epinephrine  auto-injectors  in
 quantities  and  types  deemed by the commissioner, in consultation with
 the commissioner of health, to be adequate to ensure ready and appropri-
 ate access for use during emergencies to any  student  or  staff  having
 anaphylactic  symptoms  whether  or  not  there is a previous history of
 severe allergic reaction.
   2. School districts, boards of cooperative educational services, coun-
 ty vocational education and extension boards, charter schools, and  non-
 public  elementary  and  secondary  schools  in  this  state, any person
 employed by any such entity, or employed by  a  contractor  of  such  an
 entity  while performing services for the entity may administer epineph-
 rine auto-injectors in  the  event  of  an  emergency  pursuant  to  the
 requirements of section three thousand-c of the public health law.
   § 5. Section 260.10 of the penal law is amended by adding a new subdi-
 vision 4 to read as follows:
   4. BEING A CHILD CARE SERVICE PROVIDER, HE OR SHE FAILS TO COMPLY WITH
 THE  PROVISIONS OF THE ANAPHYLACTIC POLICIES ADOPTED BY THE COMMISSIONER
 OF HEALTH PURSUANT TO SECTION TWENTY-FIVE HUNDRED-H OF THE PUBLIC HEALTH
 LAW, INCLUDING THE REQUIRED AVAILABILITY AND USE OF AN EPINEPHRINE AUTO-
 INJECTOR, WHICH RESULTS IN HARM TO A CHILD UNDER THE CARE OF SUCH  CHILD
 CARE SERVICE PROVIDER.
   § 6. This act shall take effect immediately.