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2011 Legislative Session Highlights


The New York State Legislature adjourned Friday, June 24 at 10:00 pm. It was a historic Legislative Session culminating with the passage of a bill legalizing gay marriage. Governor Cuomo was successful in convincing the Republican Senate and Democratic Assembly to pass virtually all of his priorities including an on-time, balanced State Budget with no tax increases, the first ever cap on local property taxes and an ethics reform bill that creates an independent body empowered to investigate both the executive and legislative branches and requires public disclosure of outside income by lawmakers.

The State Budget was a disappointment for organized medicine. Despite an unprecedented grass roots effort by New York ACEP members to achieve passage of the Medical Reform Taskforce (MRT) proposal to cap non-economic damages at $250,000, the cap was not included in the final budget deal. In a letter to Governor Cuomo, New York ACEP expressed deep concerns about the failure to include the cap in this year’s State Budget, and urged the Governor to re-engage the Legislature on the enactment of the cap this year.

New York ACEP was able to work to defeat a number of regressive liability measures including bills to create a date of discovery rule for the statute of limitations, expand wrongful death damages, eliminate the limitations on contingency fees, and others.

Provided below is a summary of pertinent bills that passed both houses. Legislation is transmitted to the Governor for signature or veto in “batches” on a biweekly basis. The Governor has 10 days from the date of transmission by the Legislature to sign or veto a bill. Also provided is an update of issues that New York ACEP is working on.

Update on Legislation Passed by Both Houses

Affordable Care Act (ACA) Compliance Bill (S5800 Seward/A8460 Stevenson)


Patient Cost-Sharing in Emergency Departments

A bill was introduced at the request of the State Insurance Department to bring New York State law into compliance with the provisions of the federal ACA. The ACA does not preempt state laws that meet or exceed protections in the federal law. However, state laws that do not meet or exceed the ACA protections must be amended for compliance. This bill was signed by the Governor, Chapter 219 of the Laws of 2011.

The ACA compliance bill contains provisions relating to patient cost-sharing imposed by health insurance plans in emergency departments for non-participating providers. The State Insurance Department advises that these provisions do not change the way that a “non-participating” doctor can bill a patient. The ACA imposes separate rules for Health Maintenance Organizations (HMOs) and indemnity plans as described below.

Specifically, the ACA provides that for HMOs that cover emergency services, the health plan must provide coverage regardless of the participating status of the provider at the in-network cost sharing level for patients. The ACA does not permit the HMO to bill a patient for the excess amount of the non-participating providers’ charges. Under current Department of Health rules, if the plan and the non-participating provider cannot agree on the charges, the HMO must make the nonparticipating provider whole.

For indemnity plans, the ACA requires coverage regardless of the participating status of the provider at the in-network cost sharing level for patients just as it does for HMOs. However, the plan can bill the patient for the excess of the amount a non-participating provider charges which is the greater of:• the amount the plan pays the participating provider;

  • the amount the plan pays the non-participating providers (without a reduction for patient co-pays or other patient costsharing); or
  • the amount paid under Medicare.

Again, the Insurance Department asserts that these rules are imposed on the plans, not the providers, and that there is no change in what doctors can bill patients.

Definition of Emergency Condition

The ACA compliance bill amends the definition of emergency condition in existing state law to delete the requirement that the “onset of the condition must be sudden.” This provision was interpreted by the State Insurance Department as more restrictive than the ACA.

In addition, the bill conforms to the ACA by inserting the term “acute” before the term “symptom” in the definition of emergency condition. After discussions between WRM and counsel at the State Insurance Department, the Department stated that the term “acute” includes the exacerbation of a current or chronic condition. It does not mean that the underlying disease or condition must be acute. The State Insurance Department is awaiting federal regulations on this issue. If a federal interpretation arises that causes the new State law to be more restrictive there will be adjustments made to address this through a circular letter and ultimately another change to the law.

Office of Inspector General (OMIG) Reform (S3184-A Little/A5686-A Gottfried)

This legislation which New York ACEP supports would provide transparency and due process for Medicaid providers who are audited by the Office of the Medicaid Inspector General (OMIG). This bill has not yet been transmitted to the Governor. Importantly, this bill would:

(1) prohibit the recovery of Medicaid funds for overpayments not less than 60 days following the issuance of a final audit report or notice of final agency action;

(2) prohibit audits or reviews by OMIG on claims that were the subject of a previous audit within the last three years except where there is new information or good cause to believe that the prior audit was erroneous;

(3) require OMIG to apply the laws, regulations, policies, etc. of the appropriate agency that were in place at the time the claim arose or conduct took place;

(4) prohibit recoveries by OMIG based on administrative or technical defects without intent to falsify or defraud in connection with Medicaid claims, and give providers an opportunity to correct the defect and resubmit the claim within 30 days;

(5) require OMIG to furnish to providers at audit exit conferences any draft audit findings and a detailed written explanation of the extrapolation method; and

(6) give providers 60 days to submit to the OMIG a satisfactory compliance program if they are found not to have one.


Concussion Management Awareness (S3953-B Hannon/A8194 Nolan)

This bill requires the Commissioner of the State Education Department (SED), in conjunction with the Commissioner of the State Department of Health (DOH), to promulgate rules and regulations relating to students who suffer mild traumatic brain injuries (concussions) in school sponsored or related activities. As of this writing, this bill has not yet been transmitted to the Governor.

The commissioners must consider comments from stakeholders including parents, teachers, students, school administrators, school athletic trainers, medical and health professionals and athletic associations in developing the regulations.

The regulations must include requirements that 1) all coaches, physical education teachers, nurses and athletic trainers in the schools complete a course on a biennial basis on recognizing the symptoms and proper monitoring and medical treatment of concussions; 2) information developed by DOH and SED must be part of any parent permission or consent form and posted on the DOH and SED websites; 3) any student believed to have a concussion must be immediately removed from athletic activity; and 4) a return to physical activity must be authorized by a licensed physician. School districts are authorized, at their discretion, to establish a concussion management team.

911 Calls, Alcohol/Drug Use (S4454-B DeFransico/A2603-C Gottfried)

Legislation passed both houses to encourage a witness or a victim of a drug or alcohol overdose to call 911 or seek emergency assistance to save the life of the overdose victim. The bill protects the victim or witness from arrest, charge, prosecution and conviction for drug possession, drug paraphernalia possession, and certain alcohol related offenses. The bill does not provide protections for drug trafficking or interference with law enforcement protocols to secure the scene of an overdose. This bill was signed by the Governor, Chapter 154 of the Laws of 2011.


State Emergency Medical Advisory Committee (S4621-A Young/ A7311-A Gabryszak)

This bill increases the number of members on the state emergency medical advisory committee from twenty-nine to thirty-one members. It also specifies that twenty-three members shall be physicians appointed by the Commissioner of Health including one nominated by each regional emergency medical services council, an additional physician from the City of New York, one pediatrician, one trauma surgeon, one psychiatrist and a chairperson appointed by the Commissioner. As of this writing, this bill has not yet been transmitted to the Governor.



Balance Billing

For several years, New York ACEP has aggressively fought a campaign by the health insurance industry to enact, either by regulation or legislation, a proposal to limit reimbursement for out-of-network emergency care. In the past, proposals have ranged from an outright ban on balance billing to the imposition of default rates on providers of emergency care. This year, legislation was under discussion in the State Health and Insurance Departments to impose penalties on out-of-network emergency providers charging “unconscionably high” fees, similar to the Price Gouging Law.

At this time, the State Insurance Department has not submitted a proposal to the Legislature. New York ACEP and WRM will continue to work proactively to defeat detrimental proposals.


Hospital Crowding

New York ACEP has worked for a number of years with officials at the New York State Department of Health to find solutions to hospital crowding. Efforts have included surveys conducted by New York ACEP, the introduction of legislation in the Senate and Assembly, member participation in a DOH Task Force and the development of a white paper. Last year, the Department announced that it will be using data collected through the Health Emergency Response Data System (HERDS) to identify a sample of hospitals to complete a comprehensive survey on the issue of crowding. New York State DOH said in a letter to all hospital CEOs that “Emergency Department (ED) overcrowding is a hospital wide problem and demands the priority attention of hospital administration as well as the hospital’s medical staff and nursing personnel.” Unfortunately, the survey was put on hold due to budget issues.


Physician Collective Bargaining Passes Senate, Stalls in Assembly (S3186 Hannon/A2474 Canestrari)

Legislation to allow independently practicing physicians to collectively negotiate participation terms with health insurers passed the Senate by a bipartisan vote of 43-19. The legislation was fiercely opposed by the health insurers and the business community. This is the first time that this bill has passed either house of the Legislature. The bill ultimately died in the Assembly Ways and Means Committee where concerns were raised about its impact on the State’s public health insurance programs.