The State Legislature finished the 2019 Legislative Session two days later than scheduled and was one of the most memorable in recent years given the breadth of issues the Legislature decided to address following the power-shifting election which occurred last November.  Despite the many threats we faced, the Session produced several “wins” for physicians and their patients, though some adverse bills were also passed that will require MCMS/MSSNY and others to request vetoes from the Governor. 

Thanks to all who took the time to make phone calls, write letters, send tweets and personally meet with their local legislators on the myriad of issues which we prioritized our advocacy.  Moreover, we thank the numerous specialty societies we regularly partnered with to help achieve these outcomes.  Among the highlights of the last few weeks of Session:

See below for a more detailed summary of these issues from MSSNY's Division of Governmental Affairs:

Physician Advocacy Urged to Prevent Congressional Attempts to Undermine New York “Surprise Bill” Law

Physicians are urged to send a letter Please click Here: to Senators Schumer and Gillibrand, as well as your local US Representative, urging your member of Congress to fight for a “surprise medical billing” law that is consistent with New York’s approach. This week, US Senators Lamar Alexander (R-TN) and Patty Murray (D-WA) released a bill that would seriously undermine New York’s proven model and greatly diminish the ability of physicians to fairly negotiate patient care terms with market dominant health insurers.

Instead of the disastrous Alexander-Murray bill, MSSNY and many other physician advocacy organizations have praised a proposal advanced by Representative Joe Morelle (D-Rocheseter) together with Representative Dr. Phil Roe (R-TN) and Dr. Raul Ruiz (D-CA), that seeks to mirror New York’s law, which uses a “baseball arbitration” Independent Dispute

Resolution (IDR) system to determine payment for out of network medical care, and uses charge data collected by an independent database as a leading benchmark to guide the IDR.

Specifically, the Alexander-Murray bill would require an insurer determined in-network based default rate for out of network surprise medical bills. This would give enormous new powers to already market dominant insurers, and fails to recognize the insurance industry’s fault in creating this problem due to their narrow networks. MSSNY has written to New York’s Congressional delegation praising the approach set forth by Representatives Morelle, Roe and Ruiz, and raising strong concerns with other proposals. Specifically, New York’s letter raised concerns with the insurance industry’s own notorious history in establishing benchmarks for out of network payment, and the history of then-Attorney General Cuomo’s investigation which found that by using a flawed and conflicted database to determine reimbursement rates for out-of-network care, insurers were increasing profits at the expense of patients and physicians. Moreover, it was noted that New York’s law struck a tenuous balance among various health care stakeholders that protected patients from surprise medical bills and assured that hospital emergency departments had access to needed on-call specialty care.

MSSNY has been working with several other state medical associations and national specialty societies in its advocacy to Congress. Please see here for a short “Fact Sheet” developed by the Physicians Advocacy Institute that sets forth key principles for Congress to consider in this debate Please click Here: (AUSTER)

NYS Legislature Moves To Decriminalize Marijuana; Does Not Permit Legalization of Marijuana

Legislation to permit the legalization and commercial sales of recreational use marijuana did not happen this year. However, a measure to decriminalize possession of small amounts of marijuana was successful. A.8420A/S.6579A, sponsored by Assembly Majority Leader Crystal Peoples-Stokes and Senator Jamaal T. Bailey, provides for further decriminalization of certain low level marijuana possession offenses and for expungement of the records. Governor Cuomo has indicated that he will sign this measure. The Medical Society had also indicated for support of the measure as it was consistent with MSSNY policy. The legislature also did not act on legislation to expand the medical marijuana program, through a bill opposed by MSSNY that would eliminate the "serious condition" threshold for certifying a patient for medical marijuana, enable smoked versions of medical marijuana, and allow any "practitioner" who is authorized to prescribe controlled substances with the state to certify a patient for medical marijuana use. MSSNY worked with the New York State Association of County Health Officials (NYSCHO), the PTA, the NYS Sherriff’s Association and Smart Approaches to Marijuana (SAM) in getting a unified message to the legislature about the potential impact of marijuana on young people as well as the adverse public health impacts in other states. MSSNY also credits several members of the Legislature with bringing those concerns back to the members of their respective houses. (CLANCY, AUSTER)

Legislature Passes Bill to Curtail Mid-Year Formulary Changes by Health Plans

The Senate and Assembly gave final passage to legislation this week that would substantially limit the ability of health insurers to make changes to their prescription medication formularies during a policy year. The legislation (A.2969, People-Stokes/S.2849, Breslin) would prohibit a health insurer from removing a prescription drug from a formulary during the patient’s policy year. Moreover, if the plan's drug formulary has two or more tiers of drug benefits with different deductibles, copayments or coinsurance, the plan may not move a drug to a tier with higher patient cost sharing during the policy year. It also prohibits the plan from adding new or additional formulary restrictions during the policy year. The legislation does permit an insurer to move a prescription drug to a tier with a larger copayment, coinsurance and different deductible only if an AB-rated generic equivalent drug or interchangeable biological product is added to the formulary at the same time. MSSNY supported this legislation and worked with several patient advocacy organizations to advocate for its passage. (AUSTER, AVELLA)

Pharmacy Benefit Manager Licensure and Regulation Passes Both Houses

Legislation that will require licensure for pharmacy benefit managers (PBMs) and outline their duties and responsibilities has passed both houses and awaits the governor’s signature. Senator Breslin and Assemblymember Gottfried’s bill (S.6531/A.2836A) passed the final week of session and will implement measures to provide clarity and oversight of PBMs and requires PBMs to act in the best interest of covered individuals, health plans and providers.

PBMs will be required to register with the Superintendent of Insurance and will require renewal of their license every three years. Licensure will be contingent upon meeting minimum standards established by DFS and the Commissioner of Health. PBMs will be required to address any conflicts of interest, deceptive practices, anti-competitive practices, and unfair claims practices. They will also be required to disclose plans with whom they contract and terms and conditions placed on their pharmacy networks. Per Trish Riley, the Executive Director of the National Academy for State Health Policy, New York’s policy will go the furthest in the nation toward regulating PBMs. (AVELLA)

Legislature Passes Bill to Reduce Certain Prior Auth Requirements to Prevent Interruption of Patient Care Services

The Assembly and Senate gave final passage this week to a measure to reduce insurer prior authorization (PA) requirements when a PA for a related procedure has already been received. The bill, A.2880-B, Hunter/S.5328-B, Breslin, would ensure that if a physician providing a treatment to a patient for which a PA has been received determines that providing an additional or related service or procedure is “immediately necessary as part of such treatment” and would not be “medically advisable to interrupt the provision of care to the patient” in order to obtain a PA, then the insurer shall not deny the claim, except under limited circumstances. Specific patient scenarios this legislation is seeking to address include when a patient receiving chemotherapy needs to quickly receive treatment for related health issues, such as nausea, low platelet count or allergic reactions, without the need for the physician to ask and receive an additional PA from the insurance company. MSSNY supported this legislation. (AUSTER)

Partial-Fill Legislation Passes New York State Legislature; Bill Goes To Governor

Assembly Bill 3918 and Senate Bill 1813, Which was sponsored by Assemblymember John McDonald and Senator Gustavo Rivera would allow physicians to prescribe a controlled substance, on a partially filled basis and has passed the New York State Legislature. The measure will now go before Governor Cuomo for his consideration. Passage of this measure allows New York State to align itself with the federal law; partial fills were authorized on a federal level under the Comprehensive Addiction and Recovery Act (CARA). This measure would allow physicians/prescribers, in consultation with their patient, to prescribe up to a 30 - day supply of a controlled substance with a notation to the pharmacist that he/she should only dispense the agreed - to amount. Each partial filling would be dispensed and recorded in the same manner as a refilling (i.e., date refilled, amount dispensed, initials of dispensing pharmacist, etc.), and the total quantity dispensed in all partial fillings may not exceed the total quantity prescribed. The Medical Society of the State of New York believes that this measure will now allow prescribers to help patients balance the need to relieve pain with an adequate supply of medication by only filling part of the prescription. Should they need additional pain relief; patients will be able to return to the pharmacy to fill the remaining portion of their prescription. (CLANCY)

Legislature Rejects Liability Expansion Legislation With Huge Premium Impacts; Passes Others Affecting Cases With Multiple Defendants

Despite trial lawyers aggressively pushing the State Legislature on a litany of adverse bills in the Session’s final days, the Legislature left Albany without taking action on many of their priority bills that would have significantly driven up already excessive liability costs for physicians, hospitals and other business entities, and made it far more difficult for a physician to defend themselves in a medical liability action. These bills included legislation that would have: exponentially expanded awardable damages in wrongful death lawsuit (S.4006/A.5612); prohibited a defendant physician’s defense counsel from interviewing a medical malpractice plaintiff’s treating physician (S.6194/A.2370); and permitted the admissibility of certain “hearsay” statements of employees in civil actions (A.7599/S.6335).

With significant objections from MSSNY, numerous specialty societies, HANYS and GNYHA, the Legislature did pass 2 bills affecting certain cases involving multiple defendants where the jury has awarded a judgment for the plaintiff, including:

• A.2372/S.6081 – would permit a plaintiff to collect on a court judgment directly against a third party defendant that had been sued by the original defendant for contribution and indemnification. The concern is that this type of practice could encourage those parties unable to satisfy their apportioned share of liability to dodge their responsibility, while allowing a plaintiff to target a deep-pocketed third party.
• A.2373/S.6552 – would require a non-settling co-defendant in a tort action, where another co-defendant has settled, to choose whether to reduce his/her liability exposure by the stated settlement amount or the settling tortfeasor's equitable share prior to a trial, instead of after a jury verdict has been reached. The concern is that it forces the non-settling defendants to make a blind choice without knowing the ultimate outcome of the trial, with the risk that if the co-defendant makes the “wrong choice”, a plaintiff could receive a recovery above what the jury awarded.

MSSNY will be working with other groups to request that the Governor vetos these 2 bills given their likely inflationary impact on overall medical liability costs, which already are by far and away the highest in the country. (AUSTER)

Maternal Mortality Board Fine-Tuned on Last Day of Session

Senator Rivera and Assemblymember Joyner passed legislation (S.6529/A.8338) to make technical changes to the maternal mortality legislation board that was passed earlier this year, & supported by MSSNY & ACOG. This bill will ensure that the board’s makeup is representative of the racial, ethnic and socioeconomic diversity of women and mothers in the state and to the extent possible, representative of areas that are medically underserved and areas with high occurrences of maternal mortality and morbidity. It also clarifies how committee members will be appointed and what information the commissioner may request from health departments and other public authorities. (AVELLA)

Cesarean Section Mandate Fails To Pass In 2019

Legislation that would have required physicians and other health care providers to provide maternity patients with written information regarding the risks associated with Cesarean section passed the Assembly, but not the Senate. This bill, S.2888/A.318, which is sponsored by Senator Salazar and Assembly member Paulin is opposed by MSSNY and the American College of Obstetricians and Gynecologists (ACOG).

This bill was opposed by MSSNY and ACOG for a variety of reasons, including the fact that the bill’s terminology is not consistent with accepted medical practice. Additionally, physicians already seek informed consent – this bill would interfere with the physician-patient relationship by requiring boilerplate, pre-determined written communication. This goes against the concept of patient-centered, custom provision of care that differs from patient to patient.

Further troubling to MSSNY is the recent trend in New York and across the nation to mandate discussions and/or certain actions by physicians. While these measures are well-intended, they do patients a disservice by interfering with their relationship with their doctor and often may prove to be more harmful than helpful. (AVELLA)

Legislature Passes Bill to Provide Greater Clarity to Medical Record Disbursement When Physician Retires

The Senate and Assembly gave final passage this week to legislation setting forth procedures to follow when a physician or other health care practitioner decides to cease to stop providing patient care in New York State. The goal of the legislation (A.2349/S.5367) is to address the often-asked question of where patient records should be sent when a physician or other care provider retires from medical practice or moves to another state. Specifically, the legislation requires the practitioner, at least 30 days prior to ending their practice, to make a good faith effort to notify the practice’s “current patients” of the impending closure and of the patient's right to request their patient information or medical records be sent to the health care provider, facility, or practitioner of their choice or returned to the patient. The bill does not define what is considered to be a “current patient”. The bill does, however, clarify that the provisions of the bill do not apply to situations where a physician’s practice is acquired or merged with another entity, and the physician continues to deliver care to patients. MSSNY is continuing to review the legislation with its General Counsel and will submit comments to the Governor’s office when the bill is delivered to the Governor. (AUSTER)

Opioid Measures Not Acted on By Legislature

There were several measures that related to opioid prescribing that would have imposed even more requirements on physicians prior to prescribing opioids that failed to win passage. The bills are:

• A.8256/S.5867A, moved to the Assembly calendar but was not voted on by the full Assembly. This legislation would have amended the public health law to require health practitioners, before prescribing an opioid medication, to consider discussing with the patient and refer or prescribe alternative services such as chiropractic, massage therapy or behavioral therapy.
• A.5603/S.5150, moved to the Assembly Ways and Means Committee and to the Senate calendar but was not acted on by either house. This legislation would have amended the public health law to require that prescribers, who prescribe opioids for the first time must also co-prescribe an opioid antagonist with the prescription. 
• A.7285A/S.4277A, passed the Senate but was not acted upon in the Assembly. The legislation would have amended the public health law to require health practitioners who prescribe an opioid or other Schedule II Controlled Substance to discuss with the patient the risks of being prescribed a CSII drug, other co-prescribe an opioid antagonist. (CLANCY, AUSTER)

Efforts to Expand Scope of Practice Legislation Pending on Senate Calendar For A Vote

There are several bills that would have expanded the scope of practice of various professions that moved forward in the New York State Senate but failed to win approval in the Assembly. MSSNY worked together with several specialty societies to advocate on these issues. The Medical Society had opposed the following measures:

• S.5395/A.6185, would have inappropriately expanded the scope of practice of podiatrists the following ways: by reducing certification requirements for podiatrists seeking to have advanced surgical privileges; removing the requirement that a podiatrist seeking either standard ankle surgery or advanced ankle surgery privileges be directly supervised by a podiatrist with an advanced license from the NYSED or a physician; and enabling podiatrists to treat wounds that are not contiguous with structures of the foot or ankle. This measure was approved by the Senate, but failed in the Assembly.
• A.1193, would have permitted Optometrists to prescribe oral antibiotic and other medications. The bill failed to advance out of the Higher Assembly Ed committee.
• S.5092/A.3867, would have added pharmacists to the list of licensed health care professionals authorized under public health law to perform non-invasive laboratory tests as an adjunct to their professional services, without an order from a physician. The measure advanced in the Senate, but failed to move in the Assembly.
• S.5227/A.6511A, would have allowed pharmacists to provide ALL immunizations on the Advisory Committee on Immunizations Practices (ACIP) list recommended for adults.This would more than double the number of immunizations pharmacists would be permitted to provide. The measure advanced in the Senate, but failed to move in the Assembly.
• S. 4975/A.6486, would have authorized a pharmacist to administer vaccines for hepatitis A, hepatitis B, and human papillomavirus to adults via a patient or non-patient specific script. The measure advanced in the Senate, but failed to move in the Assembly. (CLANCY, AUSTER)

Joint Statement Issued by DOH, Office of Children and Family Services, SED on Non-Medical Exemptions—Measles Outbreak Continues

The New York State Department of Health, the Office of Children and Family Services, and the State Education Department has issued a joint statement on the law that removed non-medical exemption from school vaccination requirements. According to the statement, as of June 13, 2019, “there is no longer a religious exemption to the requirement that children be vaccinated against measles and other diseases to attend either a public, private or parochial school (for students in pre-kindergarten through 12th grade or child day care settings.” For those children that have had a religious exemption to required immunizations, they must receive their first age appropriate dose in each immunization series by June 28, 2019 to attend or remain in school or child care. A copy of the joint statement and Frequently Asked Questions about the legislation can be found at: Please click Here.

Physicians and other providers who provide immunizations to children are advised to be prepared to see an increase in children who need these vaccines and to try their best to accommodate them into their practice. As summer and travel begins, there will be an increased demand for immunizations for both children and adults. The measles outbreak continues to grow in New York State. There is continued ongoing transmission of measles in communities in NYS with the majority of cases in those who are unvaccinated or under- vaccinated. The New York State Department of Health has issued a June 14, 2019 health advisory that says: Please click Here

• Since October 1, 2018, there have been 932 cases reported in NYS: including 267 in Rockland County, 49 in Orange County, 18 in Westchester County, 8 in Sullivan County, and 588 in New York City (NYC).
• Providers should NOT rely upon self-report of vaccination as evidence of immunity. If there is no record of vaccination or evidence of immunity (and no contraindication), the patient should be vaccinated.
• For adults in outbreak areas, the NYSDOH recommends administration of a second dose of a measles-containing vaccine (MMR) for adults with one documented dose of a measles-containing vaccine.
• For adults in non-outbreak areas, recommendations have not changed. One dose of a measles containing vaccine (or other presumptive evidence of immunity) is sufficient for most adults.
• Healthcare providers need to maintain vigilance for measles and immediately report any suspect cases by telephone to the local health department (LHD) where the patient resides. (CLANCY)

Measles Outbreak in New York State Continues to Spread Webinars Available at MSSNY CME Website

Did you know that 90% of the 1,044 measles cases in the United States are right here in New York? The number of measles cases in New York State in 2019 has again seen an uptick over the past week. 943 of the 1,044 confirmed cases nationwide are in New York State. In 2019 there have been 596 confirmed cases in New York City and 323 outside of New York City (268 in Rockland; 51 in Orange; 18 in Westchester; 8 in Sullivan; 1 in Suffolk and 1 in Greene counties) confirmed cases as of June 17th. MSSNY conducted a just-in-time Medical Matters webinar entitled “The Continued Public Health Threat of Measles 2018” in December, 2018. This webinar has now been posted to the MSSNY CME website. You can also view MSSNY’s latest Medical Matters webinar entitled “What’s Your Diagnosis? Infectious Diseases” which involves a patient with a fever and a rash. Please check these out and keep yourself informed about the growing measles outbreak throughout New York State. You can also listen to MSSNY’s newest podcasts on the current measles outbreak for both physicians and patients At as well as a brief podcast on the Measles, Mumps and Rubella vaccine at the same site. (HOFFMAN, CLANCY)

In collaboration with MSSNY, MCMS has developed a robust Physician Advocacy Network!  Whether you already have existing relationships with your state legislator OR have been looking for an opportunity to do more “hands-on” advocacy, MCMS wants to partner with you as Physician Advocacy Liaison.  

The Physician Advocacy Network will be the compilation and collaboration of physicians within EACH legislative district. Dubbed “Physician Advocacy Liaisons” (PAL) you will lead the physician – legislative outreach for your assembly person or senator. This PAL network makes advocacy more personal and ongoing.

The advocacy of MCMS / MSSNY is the single biggest benefit of your membership. As you’ve seen this year there is a near constant attack on physicians in NY State by well-intentioned (but non-medical) legislators. If we are not at the table we are on the menu!

If you are interested in the Physician Advocacy Network please contact:

Christopher Bell, MS, MBA
MCMS Executive Director
(585) 473-4072