Legislative and Counsel Report
Government Affairs Update for:
The New York State Radiological Society
April 9 & 10, 2021
2021-22 Final State Budget Update
The final 2021-22 State Budget passed in the early morning hours of April 7. The $212 billion plan includes taxes on the wealthy, $2.3 billion in federal funds to help tenants late on rent, $1 billion in grants and tax credits to help small businesses, $29.5 billion in school aid, and a $2.1 billion fund to provide one-time payments for undocumented workers who did not qualify for federal stimulus checks or unemployment benefits. The plan legalizes mobile sports betting and establishes a plan to make broadband internet affordable.
The enacted budget also establishes minimum thresholds for nursing home spending on direct resident care and staffing. It provides $32 million annually to implement the proposal and imposes caps on profits.
Below are highlights of interest to the Society.
Excess Medical Malpractice Program
The Legislature rejected the Governor’s proposal to reduce funding by more than a half of the final budget last year (from $105 million to $51 million) and to require physicians and dentists to pay half of the premium. Funding levels for the program in the final budget are $102,100,000.
Office of Professional Misconduct Program
The Legislature rejected the Governor’s OPMC proposal including provisions that would allow the New York State Department of Health (NYS DOH) to disregard essential due process protections when a complaint has been filed against a physician, and make information public about a physician under disciplinary investigation.
1% Across the Board Medicaid Cuts
The 1% across the board Medicaid cuts were fully restored in the final State Budget.
Extension of the Nurse Practitioner (NP) Modernization Act through 2022
The final plan includes an extension of the NP Modernization Act through June 30, 2022. The Governor’s proposed budget had provided for an extension until June 30, 2027. There is a stand-alone bill (S3056 Rivera/A1535 Gottfried) described later in this report that would extend and expand the existing law.
May 4 Lobby Day
The Society will hold a virtual Lobby Day on Tuesday, May 4, 2021. Meetings will be scheduled with the offices of the Senate and Assembly Chairpersons for the Health, Higher Education, Insurance, and Judiciary Committees and central staff to the leaders in the Senate and Assembly for health issues. An agenda is in the process of being formulated.
Advocacy Effort: Legislation to Require Insurance Coverage of Colonography
The Society is working in collaboration with the ACR and MSSNY to require insurance coverage for colorectal screenings, including but not limited to, colonography or “virtual colonoscopy.” We are utilizing MSSNY Policy on Colon Cancer Screening and Appropriate Treatment which was recently updated to align with guidelines of the American Cancer Society.
There are no specific provisions in current New York State law requiring coverage of colorectal cancer screening. However, the Affordable Care Act (ACA) requires coverage of all evidenced-based services for preventive care and screenings that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force (USPSTF) without patient cost sharing. ACA “grandfathered plans” in place prior to 3-23-10 are not required to cover preventive care and screenings at $0 cost sharing. The current USPSTF guidelines recommend beginning screening at age 50, while ACS and MSSNY policy recommend starting at age 45. However, the USPSTF is currently considering changing their guidelines to give a grade of ‘A’ for colorectal cancer in adults staring at age 45.
If the draft USPSTF recommendations are adopted, New York State will be required to cover colorectal cancer screenings beginning at age 45. However, it is not clear whether specific types of screening, e.g., colonography, will be mandated or insurance companies will have the discretion to deny a particular test. Our firm is working to clarify this issue to meet the Society’s goal of ensuring comprehensive coverage of colorectal cancer screening.
Cannabis Regulation and Taxation Act (S854-A Krueger/A1248-A Peoples-Stokes) Chapter 92 of the Laws of 2021
Legislative leaders and Governor Cuomo recently reached agreement on a new law to legalize adult-use cannabis and create a consolidated Office of Cannabis Management (OCM) within the State Liquor Authority responsible for governing and regulating medical cannabis, adult-use cannabis, and cannabinoid hemp.
The new law sets an effective date of the tax structure for retail sale of adult-use cannabis for April 1, 2022, however it is anticipated that implementation of the legislation may take 18 months to two years at which point retail sales may commence. Home grow for medical patients may begin 6 months following the bill’s enactment and home grow for adults over the age of 21 may begin 18 months following the first date of retail sale in the State.
There will be a 13% tax on adult-use retail cannabis sales, with 9% going back to the state and 4% split between cities and counties. Once mature, tax revenue from retail sales is estimated to bring in $350 million annually to New York. All cannabis taxes would be directed to the “New York State Cannabis Revenue Fund.” The revenue would cover the costs to administer the program. 40% of the remaining money would go to a community grants reinvestment fund, 40% to education, and 20% to drug treatment and public education programs.
The legislation includes a Municipality Opt-Out provision which would allow cities, towns, and villages to opt-out of allowing adult use cannabis retail dispensaries or on-site consumption licensees by passing a local law by December 31, 2021 or nine months after the effective date of this legislation.
The NYS Drug Treatment and Education Fund
The NYS Drug Treatment and Education Fund will be administered by the Commissioner of the Office of Addiction Services and Supports (OASAS) in consultation with the Commissioners of NYS DOH, the Office of Mental Health (OMH), the Office of Cannabis Management and the New York State Education Department (SED) for the following purposes:
- Development and implementation of a Youth-Focused Public Health Education and Prevention Campaign, including school-based prevention, early intervention, and health care services and programs to reduce the risk of cannabis and other substance use by school-aged children;
- Development and implementation of a Statewide Public Health Campaign, focused on the health effect of cannabis and legal use, including education of the general public on legal use of cannabis and importance of preventing youth access, preventing secondhand cannabis smoke exposure, information for pregnant or breastfeeding women, and the overconsumption of edible cannabis products; and
- For Substance Use Disorder Treatment Programs for Youth and Adults, with an emphasis on programs that are culturally and gender competent, trauma-informed, evidence-based and provide a continuum of care for behavioral health needs.
OASAS is required under the law to issue a written annual report by February of each year related to the dispersal of monies from this new Fund.
- Except for opt-out provisions, detailed above, all municipalities including counties, are preempted from adopting any law, rule, ordinance, regulation, or prohibition pertaining to the operation or licensure of adult-use, medical, or cannabinoid hemp licenses.
- Towns, cities, and villages are permitted to pass local laws and regulations governing the time (hours of operation), place (local zoning and location of licenses), and manner (adherence to local building codes) of adult-use retail dispensaries and on-site consumption licenses provided that the local law and regulations do not make the operation of the license unreasonably impracticable.
- Municipalities may not issue local licenses to cannabis licensees.
The State Department of Health is required to launch a research study, partnering with different universities, evaluating methodologies and technologies that could detect cannabis-impaired driving. Once a test is discovered NYS DOH would be able to approve and certify the use of this test. Additional funding for drug recognition experts would also be made available.
Restrictions on Where Cannabis Can Be Used
While the legislation allows public use of cannabis in the form of smoking or vaping, smoking or vaping of cannabis is prohibited anywhere smoking tobacco is prohibited, pursuant to the Clean Indoor Air Act. Municipalities and local governments are permitted to make laws that are more restrictive than the Clean Indoor Air Act. Cannabis consumption in the form of smoking or vaping will be allowed at licensed adult-use on-site consumption premises. Property owners, landlords, and rental companies can ban the use of cannabis on their premises. Cannabis cannot be consumed when operating a motor vehicle.
Criminal Justice and Record Expungement
- Unlawful possession of cannabis = more than 3 ounces to 1 pound: violation, $125 fine
- Criminal possession of cannabis in the third degree = 1 pound or more: misdemeanor
- Criminal possession of cannabis in the second degree = over 5 pounds: Class E felony
- Unlawful sale of cannabis = any amount: violation, $250 fine
- Criminal sale of cannabis in the third degree = sells over 3 ounces or knowingly sells or gives to a person less than 21 years of age: misdemeanor
- Criminal sale of cannabis in the second degree = over 5 pounds: Class E felony
The legislation creates automatic expungement or resentencing for anyone with a previous marijuana conviction that would now be legal under the law.
Prohibitions on Unlawful Discrimination: General
The legislation prohibits unlawful discrimination for the use of cannabis and provides the following:
- No school or landlord may refuse to enroll or lease to a person for conduct allowed under this chapter. Lays out several exceptions including smoke-free policies related to federal requirements (provided that such restriction may not be construed to limit the certified medical use of cannabis), and/or schools/colleges/universities that have adopted a code of conduct prohibiting cannabis use on the basis of a sincere religious belief of the institution.
- Protections for certified medical patients and for the purpose of medical care including organ transplants. A certified medical patient’s use of medical cannabis must be considered the equivalent of the use of any other medication under the direction of a practitioner and does not constitute the use of an illicit substance or otherwise disqualify a registered qualifying patient from medical care.
- No person may be denied custody of or visitation or parenting time with a minor under the family court act, domestic relations law, or social services law, solely for conduct permitted under this chapter.
- A person currently under parole, probation or other state supervision, or released on recognizance, non-monetary conditions, or bail prior to being convicted, shall not be punished or otherwise penalized for conduct allowed under this chapter unless the terms and conditions of said parole, probation, or state supervision explicitly prohibit a person’s cannabis use or any other conduct otherwise allowed under this chapter. A person’s use of cannabis or conduct under this chapter shall not be prohibited unless it has been shown by clear and convincing evidence that the prohibition is reasonably related to the underlying crime.
Prohibitions on Unlawful Discrimination Workplace
- Prohibits employers from discriminating against employees for the use of cannabis outside of work (the law does not permit impairment during work hours).
- Employers may still implement policies prohibiting cannabis use for select exemptions, including if it would cause an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding.
Public Health and Education Campaign
The Office is directed to establish a Public Health and Education campaign including evaluation of evidence-based prevention and education programs that deformalize cannabis use among youth, develop standards for regulating characteristics of legal cannabis that may appeal to youth (i.e. flavors, shapes, forms, names), restrict advertising and promotion of commercial cannabis products, safeguard pregnant and breastfeeding women through education about the potential harms related to cannabis use.
Nurse Practitioner (NP): Independent Practice Legislation (S3056 Rivera/A1535 Gottfried)
Legislation was introduced in both houses of the Legislature to authorize independent practice of nurse practitioners. The New York State Radiological Society is strongly opposed to this legislation.
The legislation eliminates requirements in the current State Education law for NPs who have practiced more than 3600 hours to have a collaborative relationship with a physician in the same or similar specialty, and permits NPs with less than 3600 hours of practice to train under an NP instead of a physician.
The bill eliminates existing patient protection laws that require NPs to complete and maintain a form created by the State Education Department (SED) and attested to by the NP that: 1) describes the collaborative relationship with the physician (s); and 2) acknowledges that if there is a dispute between an NP and the collaborating physician about a patient’s care with no successful resolution that the recommendation of the physician shall prevail. Provisions subjecting NPs to professional misconduct for failure to comply with these requirements are also repealed.
The New York State Radiological Society is very concerned that authorizing independent practice for nurse practitioners represents a safety threat to patients and would undoubtedly lead to an increase in health care costs and has issue a memorandum in opposition to both houses of the State Legislature.
A number of studies have found that non-physician practitioners order more diagnostic imaging than physicians for the same clinical presentation, which increases health care costs and threatens patient safety by exposing them to unnecessary radiation and possibly contrast dye. In a study by the Journal of the American College of Radiology that analyzed skeletal x-ray utilization for Medicare beneficiaries from 2003 to 2015, ordering of diagnostic imaging increased substantially-more than 400% by non-physicians, primarily NPs and Physician Assistants (PAs) during this time frame.  Additionally, a study published in JAMA Internal Medicine found that NPs ordered more diagnostic imaging than primary care physicians following an outpatient visit.
Nurse practitioners are a valued member of the health care team but they do not have training and experience equal to that of physicians. Nurse practitioners have less training in the form of didactic and clinical education. In addition, they rarely participate in any formal specialty or subspecialty training, and therefore are not required to obtain a specialty board certification.
Health care is a team effort that is optimized when the team members, including the patients, work together-communicating, merging observations, expertise, and decision-making responsibilities-with the common goal of providing the safest, best possible care. Effective teams, whether in health care, sports, or other arenas, have leaders. In health care, those leaders are the physicians who have 7 years or more of postgraduate education and at least 10,000 hours of clinical experience. In the midst of the COVID-19 pandemic, it is more important than ever to ensure that patients have access to high quality medical care.
This bill is in the Senate and Assembly Higher Education Committees.
Authorization for Physician Assistants (PAs) to Independently Perform Fluoroscopy (A1837 Gottfried/S1591 Rivera)
The Society is opposed to this bill as written because it is missing needed patient safety protections based on ACR-AAPM technical standards: 1) Direct supervision (physician in the department); and 2) Adequate training standards.
This current legislation was first introduced in 2015. In 2017 it was voted out of the Assembly Health Committee and sent to the floor of the Assembly but was not taken up for a vote.
The bill was reintroduced in both houses in 2019 and was scheduled for an Assembly Health Committee agenda in May but was removed during the Committee meeting due to a lack of votes to report the bill out of Committee. To date, the Senate Health Committee has not scheduled the bill for a vote.
In previous meetings with representatives of the New York State Society of Physician Assistants (NYSPA) the Radiological Society offered to compromise on the number of hours of training (which fall far short of what is required of physicians) with direct supervision. NYSPA refused this compromise saying that they could not, under any circumstance, accept direct supervision.
This year, Reid, McNally & Savage, MSSNY, and Dr. Rapoport have met with many members of the Assembly Health Committee. Most recently, the Ranking Republican member of the Assembly Health Committee removed his name as a co-sponsor of the bill after meeting with the Society and MSSNY. We will continue to reach out to legislators with the Society’s concerns on this bill.
This bill is currently in the Senate and Assembly Health Committees.
Scope of Practice Expansion, Podiatrists (S2019 Jackson/A2294 Pretlow)
The Society is opposed to legislation to expand the scope of practice of a podiatrist, increase patient exposure to radiation by podiatrists who not are required to undergo the necessary education and training to order and interpret imaging tests safely for patients, and increase health care costs due to unnecessary and increased ordering of tests. The bill would:
- Expand the scope of practice of a podiatrist for the treatment of wounds that are not contiguous with structures of the foot or ankle below the knee. This provision does not restrict treatment on the lower leg, except the exclusion of melanoma, mohs surgery, microvascular anastomoses and muscle flaps. It would allow podiatrists to care for almost all wounds on the leg including most cancer, trauma wounds, most plastic surgery procedures, ulcers (diabetic or otherwise) and potentially is inclusive of all other leg wounds such as treatment of tibial ulcers down to the bone. Podiatrists would essentially be granted legislative authority to practice radiology, dermatology, oncology, plastic surgery, surgery, internal medicine including infectious disease, family medicine and pediatrics. This would represent a significant increase in the current scope of podiatric practice.
- Lower the podiatric qualification threshold for education and training for surgery by permitting all podiatrists, not just those who receive certification, to perform standard or advanced ankle surgery. Authorizing a lesser standard will undermine quality of care for patients.
- Remove direct supervision requirements for podiatrists seeking either standard ankle surgery or advanced ankle privileges and replace it with general supervision. This lower standard does not require onsite oversight and in no way ensures that the trainee is either learning the proper techniques for advanced licensure or obtaining competence in the advanced procedures. Removing this requirement for direct supervision essentially allows podiatrists to train themselves and practice on their own. This does not ensure competence or knowledge.
This bill is in direct conflict with ACR practice guidelines which state that a physician should be responsible for all aspects of the studies.
The Society, Reid, McNally & Savage, MSSNY, and the NYS Society of Orthopedic Surgeons are working together to keep the bill from advancing in the Assembly Higher Education Committees.
This bill is in the Senate and Assembly Higher Education Committees.
Patient Medical Debt Protection Act (S6757-A Rivera/A8639-A Gottfried)
Legislation has been introduced for the 3rd year by the Chairs of the Senate and Assembly Health Committees, Senator Gustavo Rivera and Assemblyman Richard Gottfried, to enact the “Patient Medical Debt Protection Act.”
The Society is opposed to this bill as written. We have joined MSSNY and several physician specialty societies in asking for an amendment to the bill to strike provisions that prohibit a provider with any financial or contractual relationship with a hospital from separately billing a patient.
The bill is supported by a number of patient advocacy groups, including the Community Services Society, who believe that provider billing systems are too difficult for patients to understand, patients often receive multiple bills for multiple services provided on the same day, and that bills are sometimes sent to patients long after the provision of services.
Major provisions of the bill are summarized below.
- Requires a general hospital to provide to the patient, patient survivor, or legal guardian, a consolidated, itemized statement detailing in plain language, the specific nature of charges or expenses provided to the patient during the hospitalization, including all professional services. The bill must be provided no more than seven days after the patient’s discharge, or release or completion of the episode or course of treatment, or after a request for such bill, whichever is earlier.
- A provider with any financial or contractual relationship with the hospital may not separately bill the patient.
- Bans hospitals and professional practices from charging patients for facility fees for “preventive care” as such term is defined by the United States Preventive Services Task Force, and from charging patients for a facility fee that is not covered by their health care plan.
- Requires all hospitals, health systems, hospital-based facilities, affiliated provider or other provider to use a Uniform Patient Financial Liability Form developed by the Commissioner of Health in consultation with the Commissioner of Education. The form must disclose to the patient whether their care is in-network or out-of-network, whether the care is covered under the patient’s insurance plan, and the exact nature and amount of the patient’s projected financial liability.
- Current law, enacted in 2007 requires all hospitals, as a condition of receiving funds from the hospital indigent care pool, to develop financial policies and procedures for financial aid for low-income individuals without health insurance, or who have exhausted their health insurance benefits, and who can demonstrate an inability to pay full charges. Part G of this bill amends current law to add eligibility for individuals who have health insurance that does not cover or limits coverage of the service or services provided. In addition, the bill provides new thresholds for patient eligibility based on the Federal Poverty level.
- Requires all hospitals and health care professionals to participate in the State All Payer Data Base.
The bill is in the Senate and Assembly Health Committees.
Single Payor Legislation (A6058 Gottfried/S5474 Rivera)
The New York Health Act has passed the Assembly four times since 2015. Although there was speculation that this legislation would pass the Senate in 2019 with the Democratic takeover of the Senate, the bill has not moved in either in the last two years. A 2018 study by RAND estimates that New York State would need to raise $139 billion in tax revenue to cover the NYH Act by 2022, a 156% increase.
The bill is in the Senate and Assembly Health Committees.
Collective Negotiations (A951 Gottfried/S1575 Rivera)
This bill authorizes collective negotiations by health care providers with health care plans in limited circumstances when the Commissioner of DOH and the Superintendent of the Department of Financial Services approve and closely monitor the negotiations.
Negotiations may be authorized for “non-fee” related issues including but not limited to: the definition of medical necessity; clinical practice guidelines used to make medical necessity decisions; drug formularies; physician liability for treatment or lack of treatment; quality assurance programs; and utilization review procedures. Negotiation on fee-related matters is prohibited unless an individual health plan controls a “substantial market share” in a particular region.
The bill prohibits boycotts, strikes, and collective show-downs.
This legislation would restore fairness in the contracting process between physicians and large health care plans which control significant shares of the insurance market. It will also provide physicians with the ability to advocate for quality patient care in areas such as prior authorization rules, utilization review, referrals to other physicians, and patient appeal rights.
This bill is currently in the Senate and Assembly Health Committees.
Wrongful Death (A6770 Weinstein/S74-A Hoylman)
Legislation has once again been introduced to expand the possible damages in a wrongful death action. The Society is opposed to this bill. It is unnecessary as current law allows the decedent’s estate and family members to bring separate actions for both economic damages and the pain and suffering caused to the decedent. While estimates vary, one actuarial estimate found that passage of this legislation could further increase premiums by nearly 50%.
This bill is in the Senate and Assembly Judiciary Committees.
 D.J. Mizrahi, et.al., “National Trends in the Utilization of Skeletal Radiography,” Journal of the American College of Radiology 2018: 1408-1414.
 D.R. Hughes, et al., “A Comparison of Diagnostic Imaging Ordering Patterns Between Advanced Practice Clinicians and Primary Care Physicians Following Office-Based Evaluation and Management Visits.” JAMA Internal Med. 2014; 175 (1):101-07.