Government Affairs Update for:
The New York State Radiological Society
August 7, 2020
July Special Session
In late July, the State Legislature returned to Albany for four days of a remote Legislative Session to address local bills, confirmation of appointees to State bodies, and a number of policy issues. The State Capitol remained closed to the public and only a few people were permitted in the chambers. Many legislators participated virtually from home. Although they did not set a date for a return to Albany, lawmakers may need to reconvene in August to address the State’s budget deficit estimated at between $13 and $15 billion.
Republicans in both houses pushed for a repeal of powers given to Governor Andrew Cuomo in March to amend any state law, regulation, or rule during the COVID-19 pandemic emergency but the issue was not brought up for a vote in either house.
Summarized below is legislation of interest to Society members considered by the Legislature during the July Session.
Medical Liability Protections (A10840 Kim/S8835 Sepulveda)
Legislation passed both houses to narrow the medical liability protections put in place in the final 2020-21 State Budget for physicians and health care facilities during the COVID-19 pandemic. This legislation limits the liability protections prospectively only to health care workers treating or diagnosing suspected or confirmed COVID-19 patients. The sponsors of the bill did not get a full repeal of the liability protections which they sought up until the final days of the July Session.
The Society worked with MSSNY and other physician specialty societies to strongly oppose this legislation. It will prevent hospitals and other health care facilities from re-developing capacity in case of a second “surge” of the virus. A second surge is possible given the lack of effective treatments and a vaccine as the State reopens, as well as huge spikes in the virus in numerous states. This legislation opens the floodgates to litigation arising from extraordinarily challenging circumstances and “second guesses” the decisions of emergency physicians and all frontline healthcare providers.
This bill was transmitted to the Governor on July 24 and was signed by the Governor on August 3, 2020, Chapter 134 of the Laws of 2020.
Physician Practice Notice of OPMC Complaints (S6678-A Salazar/A7991-A Simotas)
Legislation passed both houses to require all physicians to post information in their practices on how a patient can report a complaint about a physician to the Office of Professional Misconduct (OPMC). It would also require the OPMC to post information on its website on how patients can file a complaint against a particular physician, including information on reporting instances of misconduct involving sexual harassment and assault.
The Society worked with MSSNY and other physician specialty societies to strongly oppose this legislation as unnecessary and potentially counterproductive to patient care because it could undermine the trust essential to the patient-physician treatment relationship.
This bill has not yet been transmitted to the Governor.
Wrongful Death (A5612 Weinstein)/S4006 Hoylman)
Legislation strongly opposed by the Society to greatly expand the possible damages in “wrongful death” actions did not pass in either house of the Legislature during the July Session. This legislation would significantly increase costs to emergency physicians and hospitals at a time when many are struggling due to COVID-19 pandemic financial strains. One actuarial estimate found that passage of this legislation could further increase premiums by nearly 50%.
The Assembly bill is on the floor and the Senate bill is in the Finance Committee.
“Good Samaritan” Naloxone Administration (S8259 Harkham/A7812-A Rosenthal)
New legislation was passed during the July Session to allow “Good Samaritans” to administer overdose reversal drugs such as naloxone in stores, restaurants, and other public places without being subject to civil, criminal, or administrative liability solely by reason of such action.
This bill has not yet been transmitted to the Governor.
Status of State’s Fiscal Condition
The State is currently facing a $13 to $15 million deficit. The emergency powers granted to the Governor in March include significant authority to adjust or reduce funds as necessary on a periodic basis to ensure a balanced budget. Adjustments are to be done uniformly, across the board, or by specific appropriations, as needed. The Division of the Budget (DOB) is required to notify the Legislature 10 days prior to any reduction or adjustment. The Legislature may, by concurrent resolution, reject the proposed action(s) and present an alternative plan. Failure to present an alternative within 10 days will result in the implementation of DOB’s plan.
Governor Cuomo has repeatedly urged Congress to provide funds for aid to State and local governments when they return for their July Session. The Governor said that the failure to do so would be “devastating news for the entire country.” If sufficient funds are not forthcoming, the Governor will impose across the board cuts of 20% or more in education, health care and other sectors.
In Washington, the Senate Republicans and the House Democrats are at an impasse with neither side budging on the issue of unemployment insurance benefits that expired on July 31, 2020. In May, the House Democrats passed a $3 trillion budget package which included an extension of the $600 weekly unemployment insurance benefit. Senate Republicans countered at the end of July with a $1 trillion package which included a $200 weekly benefit.
Authorization for Physician Assistants (PAs) to Independently Perform Fluoroscopy (A2982 Gottfried/S1812 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 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 in either 2017 or 2018.
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. The Senate Health Committee did not schedule the bill for a vote in 2019.
Last year, in 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.
Reid, McNally & Savage, MSSNY, Dr. Rapoport and Peter Millock have met with many members of the Assembly Health Committee this year both before and after the COVID-19 shutdown. In addition, several members of the Board have reached out to legislators by phone to discuss the Society’s position on the bill.
This bill is currently in the Health Committees in both houses.
Scope of Practice Expansion, Podiatrists (S5395 Jackson/A6185 Pretlow)
Legislation passed the Senate last year 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.
Reid, McNally & Savage, MSSNY, and the NYS Society of Orthopedic Surgeons worked together to keep the bill from advancing in the Assembly Higher Education Committee. After meeting with every member of the Committee, the bill was removed from the agenda the day of the vote by the Assembly sponsor due to a lack of votes.
This bill is in the Senate and Assembly Higher Education Committees.
Prohibition on Interviewing Plaintiff’s Treating Physician (S6194 Parker/A2370 Dinowitz)
Legislation was introduced in 2019 to amend the Civil Practice Law and Rules to prohibit a physician’s defense counsel in a medical liability action from conducting an interview with the plaintiff’s treating physician.
This legislation would overturn a very important New York State Court of Appeals decision that affirmed a long-standing principle in our legal system that no party has a proprietary interest in a particular witness in a civil liability action. If this decision is overturned through legislation it will present significant problems for a physician defendant in a medical liability action by unfairly limiting the opportunity to fully examine the plaintiff’s health condition to evaluate the merits of the claim.
The bill was reported from the Assembly Codes Committee to the floor but was not scheduled for a vote. It is in the Judiciary Committee in the Senate.
Affidavit of Merit and Expert Witnesses in Malpractice Actions (A5018 Abbate)
The Society strongly supports this bill which would provide some needed balance to the current procedural rules relating to the adjudication of medical malpractice lawsuits by requiring the plaintiff’s attorney in such lawsuits to submit an affidavit of merit from the appropriate medical provider outlining the applicable standard of care with a description of the breach of this standard. This would be a significant improvement over the current law, which simply requires the plaintiff’s attorney to provide a conclusory affirmation (after discussion with a doctor) that there is a reasonable basis for the suit to go forward. Moreover, the bill would establish similar rules for disclosure of expert witnesses in medical malpractice lawsuits that apply in every other jurisdiction besides New York, in particular the ability to depose an opposing party’s expert witness expected to testify at trial.
This bill is in the Assembly Judiciary Committee.
Patient Medical Debt Protection Act (S6757 Rivera/A8639 Gottfried)
Legislation was introduced last October 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 bill amends several sections of State law including the Surprise bill law enacted in 2014. It 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 or a bill detailing in plain language, the specific nature of charges or expenses provided to the patient during the hospitalization, including all professional services. 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 and health care professionals under Title VIII of the State Education Law 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.
- Requires all hospitals and health care professionals to participate in the State All Payer Data Base.
- Reduces the Statue of Limitations on medical debt for consumers from six years to two years, and reduces the percentage rate on medical debt to three percent per year.
- If an insured assigns benefits for emergency services in writing to a non-participating physician or hospital, the non-participating physician or hospital shall not bill the insured except for any applicable copayment, coinsurance, or deductible that would be owed if the insured utilized a participating physician or hospital. Under current law, patients are held harmless from such bills, but providers are not prohibited from billing patients.
- The Patient Rights and Responsibilities Statement which is required under current law must include information to the patient of his or her right to be held harmless for out-of- network bills for emergency services.
The bill is in the Senate and Assembly Health Committees.
Single Payor Legislation (A5248 Gottfried/S3577 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 did not pass in either house.
Governor Cuomo voiced concerns about the cost of the plan and the lack of success in other States who have tried to implement a “State-only” program such as Vermont. Vermont passed the first single payor bill in the country in 2011 but abandoned it in 2014 citing the high taxes on small businesses. 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 (A2393 Gottfried/S3462 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 in the Ways and Means Committee in the Assembly and the Health Committee in the Senate.
Prior Authorization Reform (S2847 Breslin/A3038 Gottfried)
This legislation contains several principles outlined in a report, Prior Authorization and Utilization Management, authored by the American Medical Association (AMA) and over one hundred state and national health and patient advocacy associations, to assure that patients receive timely and appropriate medical care and medications. The legislation would:
- require utilization review criteria to be evidence-based;
- require UR determinations for prior authorization to be provided within 48 hours, or 24 hours in an emergency;
- prohibit midyear formulary changes;
- assure that once a prior authorization is received it will not need to be repeated and is valid for the duration of treatment; and
- require health plans to cover a service that was prior authorized with eligibility determined on the date of service, and prohibit the denial of a claim on the basis that the patient’s coverage was terminated retroactively.
Practices by insurance companies such as prior authorization and changes in prescription drug coverage often serve as barriers to patient access to care. This bill will reduce denials and delays in care by establishing time frames and evidenced based criteria to be utilized by insurance companies when patients and physicians file appeals with the insurer. In addition, the bill prohibits mid-year formulary changes and denials of claims on the basis that the patient’s coverage was terminated retroactively.
In 2019 the Senate the bill was advanced to the floor but was not scheduled for a vote. In the Assembly it remained in the Assembly Insurance Committee. The bill is currently in the Senate Rules and Assembly Insurance Committee.
Note: A stand alone bill, (A2969-A People-Stokes/S2849-A Breslin), which prohibited mid-year formulary changes passed both houses and was vetoed by the Governor. In his veto message, the Governor stated that “health care plans can currently adjust their formularies accordingly to keep the benefit within the premium set at the beginning of the plan year. This legislation would prevent mid-year adjustments and pharmaceutical companies would be able to raise their prices with impunity.”
BOARD MEMBER REGISTRATON: STATE LOBBY COMMISSION
Effective January 1, 2019, the New York Joint Commission on Public Ethics (JCOPE) requires any board member or officer of an organization to register with JCOPE if they engage in lobbying activity. Volunteer members of an organization who are not board members or officers are not required to register. Society members who are not on the Board don’t need to register.
The definition of lobbying includes:
- face to face meetings
- telephone calls (e.g. response to Action Alerts)
- distribution of written materials (e.g. letters)
Therefore, any board member who engages in the above referenced activities must be registered. These activities include calling, e-mailing, or distributing written materials to public officials or their staff to influence state legislation, rules or regulations, rate making procedures, or governmental procurements. In addition to attendance at an Albany Lobby Day, the most common activities that would trigger a board member to be required to register would be responding to an Action Alert by writing, e-mailing, or calling a legislator or staff, or visiting your legislator in their local office. Attendance at fund raisers is exempt from the definition of lobbying.
For Board members who registered in 2019, your registration is valid until December 31, 2020.
Any new Board members who plan to engage in any activities in 2020 that are defined as lobbying should register with JCOPE. If you wish to register, please contact me at email@example.com and my office will assist you with the registration process.