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2012 Legislative Session Highlights

A Very Successful Session for New York ACEP. And More Work to Be Done

The State Senate and Assembly completed their 2012 regular Legislative Session late in the evening of June 21. Legislators returned to their districts to spend the next four months campaigning for the Novem­ber 6 elections.

This year, several veteran legislators announced their retirement including Sena­tors Owen Johnson (R-Babylon), James Alesi (R-I, Monroe), Thomas Duane (D-W, Manhattan) and Susan Oppenheimer (D-W, Westchester), and three Democratic As­sembly members from the Capitol District area, Majority Leader Ron Canestrari, Jack McEneny and Robert Reilly. In addition, there will be a new 63rd Senate seat in the Capitol District under the new district lines that were drawn earlier this year.

There is speculation that the Legislature will return to Albany after the November elections to take up outstanding issues in­cluding additional tax credits for businesses and an increase in the minimum wage. Also it has been reported that legislative pay raises could be considered during a special session in November.

The 2012 session was very challenging but successful for New York ACEP. Below we have provided a summary and status of New York ACEP’s priority issues.

New York ACEP and Other Partners in Medicine Defeat Nurse Practitioner Independent Practice Bill A.5308A, Gottfried/ S.3289A, Young

As a result of all of the strong grass roots efforts by members locally and advocacy in Albany, New York ACEP was able to defeat legislation to eliminate the requirement for a written collaborative agreement between nurse practitioners (NP) and physicians. Beginning last year, the nurse practitioner association joined by the State nurses union made a major push for this measure through the Governor’s Medicaid Redesign Team (MRT) claiming that NP independence was the solution to the state’s healthcare workforce shortage issues. While the MRT approved the mea­sure, New York ACEP and others weighed in with the Governor in strong opposition and unlike most MRT proposals, NP inde­pendent practice was not included in the Governor’s budget released in January.

New York ACEP then made this legisla­tion a top priority for discussions with legislators during the Albany lobby day in late February, as well as other meetings, action alerts and other activities through­out the session. While the bill was passed by the Assembly in the final days of the session, we defeated it in the State Senate. This could not have happened without all of New York ACEP’s efforts. We thank members for all of your assistance with opposing this bill. Unfortunately, despite our success, this issue is not going away. We will continue to work with New York ACEP on strategies and efforts to defeat it in the coming year.

New York ACEP Achieves Five-Day Exemption from Prescription Drug Reform (I-STOP) Legislation S.7637, Lanza/ A.10623, Cusick

A second priority for New York ACEP this session was to work with Governor Cuomo, Attorney General Schneider­man and state legislative leaders to make emergency medicine a part of the solution to the serious controlled substance abuse and diversion problem in New York but to do so in a reasonable way that does not overburden the State’s emergency departments and which protects access to pain and other medications for patients who legitimately need them. In early June, New York ACEP was successful in doing both. When the Governor and Legislative Leaders announced a deal on the I-STOP legislation, New York ACEP was able to get one of the few exemptions from the mandatory consultation of the prescrip­tion monitoring program requirement in the bill for five-day prescriptions written in emergency departments. This was the result of numerous meetings and local efforts by New York ACEP members. In particular, we would like to thank JoAnne Tarantelli and Drs. Joel Bartfield, Dan Mur­phy, Sam Bosco and Brahim Ardolic for their extensive efforts in this regard which led to New York ACEP’s success.

As further background, the enacted I-STOP legislation enhances the State Prescription Monitoring Program (PMP) to require more frequent pharmacy reporting on controlled substance dispensing. Also it requires that health care prescribers consult the PMP for all schedule II, III and IV controlled substances with a few exemp­tions as mentioned above. The bill also requires all prescriptions to be transmitted electronically by December 2014, updates the State’s controlled substance schedules including making hydrocodone schedule II and scheduling tramadol as a IV, expands the duties and membership of the work­group established under the Prescription Pain Medication Awareness Program, and requires the Department of Health to establish a safe drug disposal program for controlled substances.

Out-Of-Network Legislation Passes State Senate S.7754, Hannon

On March 7, Ben Lawsky, Superin­tendent of the Department of Financial Services (DFS), held a press conference to announce the release of a report “An Unwelcome Surprise. How New York­ers Are Getting Stuck with Involuntary Medical Bills from Out-of-Network Providers.” The report focused on medical bills received by consumers from “out-of-network” health care providers who do not participate in the consumer’s health insurance plan.

Following the release of the report and in response to the issues identified, DFS quietly circulated drafts of Out of Network legislation to key legislators and interest groups for comments. Weingarten, Reid & McNally was able to gain access to the drafts which we shared with New York ACEP leadership. Upon review, New York ACEP held a series of meetings with the Governor’s office including DFS officials, Senate and Assembly Health and Insurance Committee Chairs and key staff to discuss the College’s position and concerns with new york american college of emergency physicians 11 this issue. The DFS bill was not proposed formally nor introduced in the Legislature. However in the final days of the session, Senate Health Committee Chair Kemp Hannon introduced and passed legislation in this area (S.7754) which was very simi­lar to the DFS bill drafts.

Below we have provided a summary of the legislation, which was not introduced or advanced in the Assembly. We will continue to closely monitor this issue for the College.

S.7754 contains a number of provisions including:

Consumer Disclosure

  • Requiring insurers to provide consum­ers a listing of the languages spoken and the insurers affiliation with participating hospitals posted on the insurers web site;
  • A description of the method by which an insured may submit a claim for health care services (internet, fax, mail);
  • A clear description of the method the insurers use to determine reimburse­ment for out- of-network services as a percentage of the usual and customary cost for out-of-network services and examples of anticipated out of pocket costs for out-of-network health care services;
  • An insurer must disclose whether the provider is an in-network provider or if an out-of-network provider the anticipated costs the insurer will pay for the out-of-network health care service; and
  • An insurer must provide in writing and through a website information that allows an insured to determine the anticipated out of pocket cost for out-of-network health care services by zip code based upon what the insurer will pay and the usual and customary cost of a out-of-network health care service.

Usual and Customary Cost Definition

  • Usual and Customary cost is defined in the bill as the eightieth percentile of all charges for a particular health care service performed by a provider in the same geographic area as report­ed and tracked by a benchmarking database maintain by a not-for-profit organization specified by the DFS.

Adequate Network Coverage

  • The DFS shall ensure that an insur­ers network is adequate to meet the health needs of insureds and provide appropriate choice of providers suf­ficient to render services; and
  • With the exception of emergency services, an insurers policy must provide coverage for at least fifty percent of the usual and customary cost of out of network health care services after imposition of any deductible or any permissible benefit maximums;


  • An insured may appeal a denial of an out-of-network referral by an insurer by submitting a written statement from the insured’s attending physician on the basis of lack of appropriate training or experience for in-network providers and recommends out-of- network providers with such; and
  • Details the grounds for an external appeal regarding out-of-network referrals.

Disclosure by Physicians and Hospitals for Non Emergency Services

  • A physician (or health care provider) must disclose to patients and prospec­tive patients in writing or through an internet website which health care plans and hospitals the physician is a participating provider;
  • If the physician does not participate they must, upon request, provide in writing to a patient or prospective pa­tient the amount or estimated amount the physician will bill the patient for health care services or anticipated health care services;
  • A physician must provide a patient or prospective patient with the name, mailing address and telephone num­ber of any physician or health care provider of lab, anesthesia, radiology, surgical or pathology services;
  • A physician must provide a patient or prospective patient with the name, mailing address and telephone number of any physician whose services will be arranged and or scheduled during the time of pre-admission testing, reg­istration or admission or health care provider of lab, anesthesia, radiology, surgical or pathology services;
  • A hospital shall establish and make public a list of the hospital’s standard charges for items and services by DRG groups;
  • A hospital shall post on their website which plans they participate and the names, addresses, etc. of physicians who will not be billed as part of the hospital charges; and
  • A hospital, at pre-admission, out­patient registration or earlier for non-emergent hospital admissions or visits, must provide a patient or prospective patient with the name, mailing address, telephone number of any physician or health care provider of lab, anesthesia, radiology, surgical or pathology services and whether their services will be billed as part of hospital charges.

Emergency Medical Services

  • A physician who provided health care shall not charge excessive fees. Under the legislation an independent dispute resolution entity shall decide whether the fee charged by a physician for services rendered is excessive by con­sidering the following factors:

          ◦whether there is a gross disparity between the fee charged by the physician for services rendered as compared to A) the fees paid by the health care plan to similarly qualified physicians and B) fees paid to the involved physician for the same services rendered by a physician to patients in health care plans in which the physician does not participate;

          ◦the level of training by a physician;

          ◦the usual charge for comparable services with regard to patients in health care plans in which the physician does not participate;

          ◦the circumstances and complexity of the particular case including the time and place of service;

          ◦individual patient characteristics; and

          ◦the usual and customary cost of the service.

  • A physician will not be paid as the independent dispute resolution entity is considering an appeal; and
  • If the independent dispute resolution entity determines that the fee charged is excessive the independent dispute resolution entity will determine a rea­sonable fee provided the fee shall not be less than the usual and customary fee for such services.

Changes to Observation Services in Hospitals Bill Passes Both Houses A.10518-A, Rules (Gottfried)/ S.7031-A, Hannon

This bill makes changes to recently enacted Department of Health (NYSDOH) regulations related to observation services in hospitals. New York ACEP strongly supported and championed the NYSDOH regulations to require hospitals to set up separate observation units supervised by emergency physicians. Unfortunately, the regulation was strongly opposed by the state hospital associations and they were suc­cessful in getting legislation introduced and passed this session to eliminate most of the requirements in the regulation.

New York ACEP strongly opposed this legislation through a series of meetings, issuing a memo to the full Legislature and a number of action alerts requesting member action. When meeting with the bill spon­sors, we requested amendments to the bill to ensure that observation units are emergency physician directed but unfortunately our proposed amendments were not accepted. Despite all of New York ACEP’s efforts, the final bill did not mandate emergency physician supervision of observation units nor make such units mandatory. We thank all of the membership for your efforts in op­position to this measure and want to let you know that the fight is not over. The Depart­ment of Health still strongly backs our posi­tion and their regulation and we will contin­ue to oppose this bill when it comes before the Governor for consideration. Specifically, we will demonstrate that observational units and importantly those supervised by emer­gency physicians are important to improve patient care and they save hospitals money. We will need member assistance to help make this case by writing to the Governor to ask that he veto the bill once it is on his desk. We are closely monitoring the bill and will notify New York ACEP when it is time to take further action.