2013 Legislative Session Highlights
The active and growing membership of New York ACEP continues to provide us an active voice for the College’s government agenda without which we would not be able to continue to achieve the back-to- back successes of exempting emergency physicians from the burdens of unworkable and unnecessary requirements on your practice as proposed and implemented on many by Albany.
The 2013 regular Legislative Session came to an end in the early morning hours of Saturday, June 22. Provided below is an update on current issues that Weingarten, Reid & McNally (WRM) is working on with New York ACEP and a summary of pertinent bills that passed both houses.
Out-of-Network S2551 (Hannon)/A7253 (Montesano)
New York ACEP strongly supports legislation to provide fair payment to emergency physicians. New York ACEP supports S2551 (Hannon)/A7253 (Montesano) to regulate billing, reimbursement and consumer disclosure for health care services provided to patients by “out-of-network (OON)” health care providers who do not participate in a patient’s health insurance plan. The OON bill passed the Senate. Unfortunately, the bill died in the Insurance Committee in the Assembly.
The bill defines Usual and Customary Cost (UCR) as the 80th percentile of all charges for health services performed by a provider in the same or similar specialty and provided in the same geographic area as reported by FAIR Health. Insurers that provide coverage for out-of-network services are required to provide significant coverage of the UCR for out-of-network services. Insurers that provide coverage for out-of-network services are required to offer at least one policy or contract option in each geographical region covered which provides coverage for at least 80% of the UCR cost of out-of-network services after imposition of a deductible.
In addition, the bill establishes an independent dispute resolution process for a health care plan or patient who alleges that a physician charged an “excessive fee” for emergency services. “Excessive fee” is defined as greater than the UCR.
A health plan may not submit a dispute for review unless they have fully paid the physician’s fee, except for the patient’s co-payment, coinsurance or deductible for the services rendered. If the independent dispute resolution entity determines that the fee charged is excessive, the entity shall determine a reasonable fee for the services which shall not be less than the UCR. The determination made is binding on the health care plan, physician and patient and is admissible in any court proceedings between the parties or any administrative proceedings between the state and the physician.
Nurse Practitioner Independent Practice S4611-A (Young)/A4648-A (Gottfried)
New York ACEP was successful this year in working to defeat legislation to eliminate the requirements for written collaboration agreements and practice protocols between Nurse Practitioners (NPs) and physicians. During the February 12 Lobby Day, New York ACEP and Weingarten, Reid & McNally met with key staff and legislators in opposition to NP independent practice. That effort led to the defeat of a State Budget proposal. An action alert was issued to New York ACEP members in the final weeks of the Legislative Session asking for phone calls to legislators in opposition to the bill. This bill remained in the Higher Education Committees in both houses.
Date of Discovery A1056 (Weinstein)/S744 (Fuschillo)
A last minute maneuver by the Trial Bar to change the statue of limitations for medical liability from two and half years to the “date of discovery” was also blocked. The bill, which received widespread media coverage from the Daily News and other publications, was discharged to the Assembly floor three days before the Legislative Recess. New York ACEP issued a memorandum in opposition. Weingarten, Reid and McNally lobbied against the bill at the Capitol until the Legislature gaveled out at 5:00 am on June 22. There was no vote taken on the bill on the Assembly floor. In the Senate, it remained in the Judiciary Committee.
Retail Clinics S4069 (Hannon)/A5124 (Paulin)
Legislation to allow for-profit health care clinics to be located in pharmacies, shopping malls, and other corporate establishments did not pass either house this Session. The Senate brought the bill to the floor but did not vote on it. In the Assembly, the bill died in the Health Committee. As noted below, legislation (S4493-A (Hoylman)/A6838-A (Gottfried) directing New York State Department of Health to study these models passed both houses.
Bills Passed Both Houses
Required Offering of Hepatitis C Testing S2750-A (Hannon)/A1286-A (Zebrowski)
The bill requires that individuals born between 1945-1965 be offered a hepatitis C screening test or hepatitis C diagnostic test by hospitals when patients are receiving inpatient or outpatient care or in a diagnostic and treatment center and by primary care practitioners in the fields of family medicine, general pediatrics, primary care, internal medicine, primary care obstetrics or primary care gynecology. The bill was amended to exempt emergency departments from these requirements. This amendment was made after New York ACEP issued a memo requesting it and Weingarten, Reid & McNally addressed the impracticality of offering this test in emergency departments with the bill sponsors.
Further under the bill practitioners are not required to offer such testing if they reasonably believe that the individual:
- is being treated for a life threatening emergency;
- has previously been offered or has been the subject of a test; or
- lacks capacity to consent for a test.
If the individual accepts the offer to be tested and the screening test is reactive, the bill requires health care providers to either offer follow up care or refer the individual to another provider for care. Such follow up shall include a hepatitis C diagnostic test. The bill requires the New York State Department of Health to evaluate and report on the impact of the legislation to the Governor and the Senate and Assembly Health Committee Chairs by January 1, 2016. The law sunsets on January 1, 2020.
Patient Notice of Observation Services S3926-A (Hannon)/A7257-A (People Stokes)
This bill requires hospitals to provide oral and written notice within 24 hours of a placement of a patient in observation services. The written notice must include:
- a statement that observation status may affect the patient’s Medicare, Medicaid and/or private insurance coverage for hospital services, including medications, and coverage for any subsequent discharge to a skilled nursing facility or home and or home and community based care; and
- that the patient should contact his or her insurance plan to better understand the implications of being placed in observation status.
The Commissioner of the New York State Department of Health is charged with developing and making available guidance on the notice.
Study on Health Care Delivery Models S4493-A (Hoylman)/A6838-A (Gottfried)
The bill directs the New York State Department of Health to conduct a study of current innovations in the delivery of health care services not presently required to undergo state certificate of need processes or required to obtain authorization to conduct office based surgery. Entities to be studied shall include, but not be limited to, clinics operating within pharmacies, medical offices open for extended hours without an appointment (urgent care centers), and physician practices (whether in one location or multiple locations) whose physicians are linked directly or indirectly in an economic relationship.
The study is required to examine the impact or impacts of the respective entities on the delivery, quality and cost of health care in the respective communities and regions in which they are found. The New York State Department of Health shall report its findings to the Governor and Legislative Leaders within one year of the effective date.
Surgical Technologists S5185-A (Savino)/A7419-A (Cahill)
The bill establishes requirements for certification of surgical technologists working in healthcare facilities and defines surgical technology to mean the following surgery related tasks and functions:
- assisting healthcare professionals to prepare the operating room and sterile field for surgical procedures, including assisting health care professionals to set up sterile supplies, instruments and equipment using sterile technique and ensuring that surgical equipment function properly and safely;
- assisting healthcare professionals to move and position patients for surgery;
- assisting healthcare professionals to perform non-invasive prepping of the skin’s surface and draping patients for surgery;
- assisting the surgeon’s provision of hemostasis during surgery by handing instruments;
- holding a retractor after placement by a healthcare professional;
- anticipating instrument needs of a surgeon; and
- other tasks incidental to surgery that do not fall within the scope of practice of a licensed profession, as directed by the surgeon.
The bill requires surgical technologists to perform surgical technology under the direction and supervision of an appropriately licensed healthcare professional participating in a surgery. Also the bill requires surgical technologists functioning in healthcare facilities to be certified or complete an appropriate training program for surgical technology in the U.S. military and to complete 15 hours of continuing education annually, with some exceptions.
Licensure of Perfusionists S5353-A (DeFrancisco)/A526-B (Magnarelli)
The bill extends the existing authorization of temporary permits for perfusionists until 2016, provides for the licensure of perfusionists in the Education law and sets forth licensure requirements including application, education, examination and fees and establishment of a State Committee for Perfusion.
“Perfusion” is defined as the provision of extracorporeal or intracorporeal patient care services to support or replace the circulatory or respiratory function of a patient, including the administration of pharmacological and therapeutic agents, and blood products, and the management, treatment and monitoring of the physiological status of a patient during the operation of extracorporeal circulation equipment or intracorporeal equipment that replaces or supports circulatory or respiratory functions.
The bill requires that all perfusion services shall be pursuant to the order and direction of a physician and such services may be performed in a general hospital or during the transport of patients or organs supported by extracorporeal or intracorporeal equipment.
Qualifications of Central Services Technicians S697-A (Grisanti)/A878-A (Bronson)
This bill requires central service technicians to meet certain requirements including successfully passing a nationally accredited exam, obtaining accreditation from a national accrediting central body and annually completing 10 hours of continuing education. The legislation contains limited exceptions to these requirements. A central service technician is defined as a person who provides for the decontamination, preparation, packaging, sterilization, and storage and distribution of reusable medical instrumentation or devices in a hospital or a diagnostic and treatment center (D&TC) that provides ambulatory surgery services.
Certification of Clinical Nurse Specialists (CNS) S3145 (Krueger)/A826 (Lifton)
The bill establishes a certification for a clinical nurse specialist and criteria for such, including application filing, license requirements, education (master’s or doctoral degree, or a post-master’s certificate from a program acceptable to the department which prepares graduates to practice as CNSs and which is accredited by a national nursing accredited body acceptable to the department) and certification fees.
Signed into Law
Accountable Care Organizations (ACO) S2080 (Hannon)/A1989 (Gottfried)
Chapter 461 of 2012 created a workgroup to be convened by the Commissioner of Health to develop a proposal whereby an ACO could directly serve Medicaid, Family Health Plus or Child Health Plus enrollees. Prior to Governor Cuomo signing the bill, he and the Assembly and Senate leadership agreed to pass legislation to adjust that charge so the workgroup will consider whether such activity should be enabled, rather than directing it to develop such a proposal.
The agreement also called for adding representatives of health plans that serve those programs, as well as advocates for persons enrolled in those programs to the ACO workgroup.
This bill enacts these changes that were agreed to by all parties.
Excess Medical Malpractice Insurance S5704 (Seward)/A7388 (Cymbrowitz)
The bill extends the excess medical malpractice insurance program for five years to July 1, 2018. The legislation was transmitted to the Governor for consideration June 26, 2013.
Emergency Medical Technician Extension S5152 (Seward)/A7170 (Sweeney)
This bill extends until July 1, 2018, the emergency technician five-year re-certification demonstration program. This demonstration program was enacted in 2001 to change the re-certification requirements from three to five years for emergency medical technicians and advanced emergency medical technicians. This bill was transmitted to the Governor on June 24 for consideration.
Emergency Services Loan Account S3728-B (Seward)/A5120-B (Magee)
The bill increase the amounts of loans allowable under the emergency services loan account for the purchase and repair of firefighting and rescue equipment, vehicles and facilities. All caps on loans (usually 75% of project costs) remain in place.
Finally, all of us at Weingarten, Reid & McNally( Partners: Marcy Savage, Shauneen McNally & Bob Reid) look forward to continuing to work with the New York ACEP Board, Government Affairs Committee and entire membership on your legislative goals and priorities to ensure patient access to the highest quality emergency services throughout the State.