LEGISLATURE FINALIZES $175 BILLION BUDGET; SEVERAL POSITIVE ITEMS FOR PHYSICIANS

Overnight Sunday into Monday morning, the New York State Legislature completed passage of a $175.5 Billion Budget for the 2019-2020 Fiscal Year.  The State Budget contained a number of positive items for physicians and their patients in terms of new proposals adopted, and adverse proposals defeated.  We thank the many physician leaders and county society staff who took the time to meet, send letters and make phone calls to their local legislators on these issues.  

Some of these positive outcomes include:  

• Rejection of the proposed $80/patient Medicaid cut for deductibles for patients covered by Medicare and Medicaid that had been strongly opposed by MSSNY.  This action prevents the imposition of potentially tens of thousands of dollars in cuts to physicians who treat many such "dual eligible" patients as part of their practice. 
• Rejection of a proposed measure opposed by MSSNY that would have placed new prior authorization on physicians prescribing medications to their patients covered by Medicaid. 
• A proposal to legalize recreational or "adult use" marijuana was not included in the final Budget, though discussions on this issue will continue for the remainder of the Legislative Session. 
• Funding the Excess Medical Malpractice Insurance Program was continued at its historical level, as well as continuation of the authority of the DFS Superintendent to set medical liability premium rates. 
• Comprehensive reforms to better ensure insurance coverage parity for mental health conditions (MHC) substance use disorders (SUD) and Autism Spectrum Disorder (ASD):
  • Prohibits prior authorization for formulary forms of prescribed medications for treatment of SUD.
  • Provides coverage for ALL MHCs, SUDs, and ASDs as each is defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) or the most recent edition of another generally recognized independent standard of current medical practice such as the International Classification of Diseases (ICD).
  • Prohibiting preauthorization and concurrent utilization review of SUD services during the initial 28 days of treatment.
  • Medical necessity criteria with respect to benefits for MHCs/SUDs and ASDs shall be made available to patients and their physicians (and other health care providers) upon request. 

Perhaps one of the most significant provisions of this section is an expanded "Anti-retaliatory" measure that prohibits a health insurer from taking "any adverse action, including but not limited to refusing to renew or execute a contract or agreement with a health care provider as retaliation against a health care provider for filing a complaint, making a report or commenting to an appropriate governmental body regarding policies or practices of such insurer... " 

• Greater oversight on pharmacy benefit managers (PBMs) in their dealings with Medicaid Managed Care plans including imposing new disclosure requirements and limits on PBM fees.  
• Health Insurance policies for groups with 100 or more full-time employees will be required to cover at least three cycles of in vitro fertilization.
• A new 20% tax on the sale of "vapor products" to be used in e-cigarettes, e-cigars and vaping pens, and requiring sellers of such products to register with the NYS Tax Department. 
• A new $150,000 grant for MSSNY's Veterans Mental Health Training Initiative physician educational programming. 
• Continued funding of $990,000 for MSSNY's Committee for Physician's Health. 
• A re-appropriation of $100,000 to MSSNY to continue its educational programming for physician regarding women's health issues. 
• While not specifically in the State Budget, the Senate was expected to give final passage today to legislation already passed by the Assembly and supported by MSSNY that would raise the tobacco and e-cigarette purchase age from 18 to 21. 

Other Provisions of Note Include: 

Opioid Tax - The final Budget contained a $100 million tax on opioid manufacturers and distributors.  Last week, MSSNY, the NYS Academy of Family Physicians and the NY Chapter of the American College of Emergency Physicians joined patients, pharmacists and several legislators to raise concerns with the possibility that the cost could be passed on to pharmacies, hospitals and, in some cases, patients. 

Medicaid Cuts - The proposed 0.8% across-the-board cut in Medicaid payments was not included in the final Budget, however, there is language in one of the Budget bills that provides authority to the state to reduce Medicaid payments during the fiscal year (up to $190 million across the board) in the event of an unexpected drop in revenue such as  federal cuts.  MSSNY will continue to monitor the potential implementation of this provision. 

Health Insurance Exchange - The Budget codified the New York State of Health into law, including its structure for providing health insurance products at the bronze, silver, gold and platinum levels, as well as appealing health plan formulary restrictions.  It also sets forth in statute the 10 essential benefits that Exchange plans had been required to cover and assures no prohibitions on coverage for pre-existing conditions. 

Workers' Compensation  - With a new medical fee schedule to begin Monday, April 1 that will provide long-overdue increases to physicians treating their patients covered by Workers' Compensation (WC), the Legislature and Governor agreed to a WC package that would expand the types of practitioners who can treat and be reimbursed for treating injured worker patients while at the same time seeking to reduce some of the carrier-imposed barriers to injured workers receiving needed medical care and treatment. 

MSSNY raised concerns during negotiations regarding the lack of express requirement for some of these professionals to coordinate with a specialized physician for the care of injured workers.  While, that concern was not fully addressed.  We note that the bill would prohibit these newly listed health care professionals from performing Independent Medical Examinations.  

Importantly, the bill also contains provisions designed to reduce delays in injured workers receiving needed treatment, and physicians being paid for delivering this care:

• Specify that the purpose of the pre-authorized procedures list maintained by the WCB is for "expediting authorization of treatment of injured workers" and "shall not prohibit varied treatment when the treating provider demonstrates the appropriateness and medical necessity of such treatment."
• Expressly prohibiting an employer, carrier, or third-party administrator from attempting to interfere with the selection by the injured employee of an authorized medical provider.
• Eliminating the 3-arbitrator panels for review of disputed medical bills, so that every dispute would only need to be reviewed by a single arbitrator in the same profession as the professional bringing the dispute (the arbitrator can continue to be a physician recommended by MSSNY). 

Staff is continuing its review of the thousands of pages of Budget documents and will provide further updates on these and many other issues. 

(MSSNY DIVISION OF GOVERNMENTAL AFFAIRS)