Assembly Health Committee Year in Review

Assembly Health Committee Year-End Update

The Assembly Health Committee wrapped up 2017 with 34 bills signed into law and 19 vetoed, including four which were vetoed with specific agreement for further administrative actions. Some bills were signed or vetoed based on agreements to enact changes in 2018. (A governor often raises concerns and wants changes in a bill after it has been passed by the Legislature. This usually happens after the Legislature has adjourned for the year. It is not widely known to the public, but in New York it is common for a governor to insist that the leaders of the Legislature agree to changes in a bill as a condition of the governor signing it. If the legislative leaders and the bill’s sponsors agree, the governor then signs the bill and the Legislature enacts the changes early in the following year.)

The Assembly Health Committee also held public hearings including:

  • Home care workforce adequacy.
  • Adult home oversight and funding.
  • Health care services in state prisons and local jails.
  • Nursing home quality of care and enforcement.
  • Water quality budget implementation.
  • Immigrant access to healthcare.

Below are summaries of bills acted on by the Governor as well as the public hearings.

For more information on a particular bill, please contact the sponsor listed.  For the text of a bill and supporting memorandum, go to: http://public.leginfo.state.ny.us/menuf.cgi

Transcripts and video of public hearings can be found at: http://nyassembly.gov/av/hearings/

Signed into law

Newborn Medical Indemnity Fund Reform – Amends a 2016 law relating to the “medical indemnity fund” for neurologically impaired newborns. Clarifies that home modifications may be paid for even if other members of the household may benefit, provided that the primary benefit is for the injured child. Repeals amendments concerning appeals of denials of coverage and eligibility to participate in the program. The Governor insisted on these changes when he signed the 2016 bill. (A378, Abinanti, chapter 4)

Criteria for WIC Vendors Selling Specialty Formula – Directs the Department of Health to establish criteria for which vendors are eligible to sell specialty formula under the Women, Infants, and Children (WIC) program. (A379, Crespo, chapter 12)

E-Cigarette Regulation – Adds “electronic” cigarettes to Clean Indoor Air Act provisions regulating smoking in certain public areas; prohibits using e-cigarettes in any place where smoking tobacco is banned by law.  (A516A, Rosenthal, chapter 335)

E-Cigarettes on School Grounds – Prohibits the use of e-cigarettes on school grounds.  (A611, Rosenthal, chapter 102)

Lead Hazard Clean-up – Requires the New York State Commissioner of Health to take action when an area of lead poisoning has been designated.  Current law allows action but does not require it. The bill was signed with an agreement to pass legislation in 2018 clarifying the enforcement process. (A1809, Dinowitz, chapter 411, approval memo 16)

Restroom Access – Gives patients with Crohn’s disease and other eligible medical conditions the right to use employee restrooms in businesses open to the public that do not have a public restroom. The bill was signed with an agreement to pass legislation in 2018 moving the statute from Public Health Law to General Business Law. (A1982, Paulin, chapter 471, approval memo 42)

Sudden, Unexpected Death in Epilepsy (SUDEP) Reporting – Requires that autopsies of individuals with epilepsy or a history of seizures include a determination of whether the deceased suffered a sudden, unexpected death in epilepsy, and, if so, reporting to the North American SUDEP registry. (A2380, Brindisi, chapter 175)

Adult Home Death and Felony Reporting – Improves reporting by adult care facilities of resident deaths and attempted suicides and any felony in the facility. The bill was signed with an agreement to pass legislation in 2018 addressing technical concerns. (A2702, Gottfried, chapter 459, approval memo 35)

Telemedicine Site Expansion – Authorizes the delivery of Medicaid telehealth services at adult homes. Other health insurance does not have telemedicine site restrictions. (A1464B, Jenne, chapter 238)

Medical Marijuana Practitioner List – Difficulty finding practitioners (physicians, nurse practitioners, physician assistants) who have registered for the medical marijuana program has been a major obstacle for patients. Without easy access to a list, patients have had to cold-call health care providers, rely on social media, etc. This bill puts into law the recently-adopted Health Department policy of making the practitioner list public on its website, while allowing individual practitioners to opt out. (A2882, Peoples-Stokes, chapter 438)

Telemedicine Site Expansion – Authorizes the delivery of Medicaid telehealth services at any elementary or secondary school, or child care program or center. Other health insurance does not have telemedicine site restrictions. (A4703, Jenne, chapter 285)

Transplant Council Powers – The Transplant Council makes recommendations to the Health Department on matters relating to organ procurement organizations, banks, and storage facilities. This bill authorizes the Council to make recommendations on organ donation issues as well. (A5132, Gottfried, chapter 26)

 Medicaid Trust Information – Individuals with disabilities whose incomes would be too high to qualify for Medicaid can currently qualify through three excess income programs: by returning money to the Local Social Service Department; by incurring enough medical expenses to lower their income sufficiently (“spend-down”); or by putting money into a trust. This bill requires DOH to notify individuals eligible for the excess income program of the trust option, including information on how to participate. This bill was signed with an agreement to include brief notice about such trusts in Medicaid eligibility letters while directing individuals to further information on the Department’s website. (A5175A, Gottfried, chapter 475, approval memo 46)

Encouraging Organ Donation – “Lauren’s Law” requires an applicant to fill out the organ donation section on a driver’s license or non-driver identification card application. The law was scheduled to expire in 2019 unless it was renewed. This bill makes it permanent. (A5179, Ortiz, chapter 332)

 Newborn “Baby Box” Demonstration Program – Establishes a demonstration program to provide “baby boxes” – safe sleep boxes for newborn infants – including newborn care essentials and information on safe sleeping practices, through public-private partnerships. The bill was signed with an agreement for DOH to conduct a study on safe sleep practices and a pilot program on such practices and caregiver education. (A6044A, Simotas, chapter 401, approval memo 9)

Special Needs Trust Establishment – The law allows a “special needs trust” to be set up for a person with disabilities, to help the person qualify for Medicaid. New York required the trust to be set up by the person’s parent or guardian or a court. This bill also allows the person himself or herself to set up the trust. (A6743, Barrett, chapter 187)

Medical Marijuana for Post-Traumatic Stress Disorder (PTSD) – This bill makes PTSD an eligible condition under the medical marijuana law. The only FDA-approved drugs for PTSD currently have serious side effects including suicide risks, weight gain, and diabetes, and other drugs are used “off-label.” Studies have shown that cannabinoid treatments may reduce nightmares, flashbacks, and overall levels of post-traumatic stress. (A7006, Gottfried, chapter 403)

Rural Health Council – Establishes an advisory council within the Department’s Office of Rural Health, to advise the commissioner on rural health issues including the impact of proposed programs and to report on rural health care workforce issues. This bill was signed with an agreement to pass legislation in 2018 making minor technical changes. (A7203, Jones, chapter 419, approval memo 21)

Consumer-Directed Home Care Fiscal Intermediary (FI) Authorization Effective Date – The 2017 State budget created a process for registering FIs in the Consumer Directed Personal Assistance Program, but the effective date was inadvertently made immediate, without notice to current FIs or rule-making by DOH. This legislation moves the effective date to January 1, 2018. The bill was signed with an agreement to pass legislation in 2018 giving the Department an additional 31 days to process applications. (A7216, Gottfried, chapter 488, approval memo 54)

Nurse Practitioners (NPs) and End-of-Life Care – Currently, only attending physicians are authorized to take various actions pertaining to life sustaining treatment, including signing a do-not-resuscitate (DNR) order. Given the deeply personal nature of the decision to refuse life-sustaining treatment, it is important that patients and their families have the opportunity to make these decisions in consultation with their most trusted health care provider. In many cases, this is an NP rather than a physician. This bill provides that an NP can be the patient’s “attending” health care practitioner for these purposes, when acting within his or her scope of practice. (A7277A, Gottfried, chapter 430)

Physician Assistant and Nurse Practitioner Automated External Defibrillator Operation – Current law allows individuals or entities to purchase and operate automated external defibrillators (AEDs) if the individual or entity has a collaborative agreement with a physician or a hospital. This bill authorizes the collaborative agreement to be with a physician assistant or nurse practitioner with knowledge and experience in the delivery of emergency cardiac care as well. (A7532, Gottfried, chapter 119)

Pediatric Acute-onset Neuropsychiatric Syndrome (PANS) Awareness – Expands authority for DOH’s education and outreach programs to include information on PANS, an immune response that causes the sudden onset of neuropsychiatric symptoms in a child, and creates an advisory council. (A7614, Jones, chapter 199)

School Contractors and Epi-Pens – A 2015 law authorized schools to stock epi-pens for use by school employees. However, this law only covered direct employees, leaving out contractors, which excluded many school bus drivers among others. This bill allows administration of epi-pens by school contractors while those contractors are performing services for the school. (A7635, Buchwald, chapter 200)

Medicare Maximization Extender – There are several State laws to maximize Federal Medicare reimbursement for home care and nursing home care, thereby reducing the need to spend State Medicaid funds. This bill extends their sunset dates. (A7746, Gottfried, chapter 49)

Reporting Requirements – The Public Health Law, Social Services Law, and various other laws impose dozens of outdated reporting requirements on DOH – including reports on programs that no longer exist, mandated reports that were completed but the law never repealed, and reports whose information is currently available elsewhere. This bill deletes these reporting requirements. (A7747A, Gottfried, chapter 121)

Certificate of Public Advantage Extender – “Certificate of Public Advantage” (CoPA) is a State regulatory structure to facilitate cooperation, affiliation and mergers of health care providers when needed to maintain health care provider access. This bill extends its sunset date. (A7748, Gottfried, chapter 80)

Hospice Residence “Swing Beds” Dual Certification – “Swing beds” in hospice residences are dual-certified for use for either residential or inpatient levels of care. They must comply with federal regulations from nurse staffing to drug dispensing. Swing beds are currently capped at 25% of all beds in a facility, which disrupts patient access to appropriate hospice care. This bill doubles the cap to 50%. (A7775A, Gottfried, chapter 205)

Medical Records for Applying for Government Benefits – Individuals applying for various government programs including Social Security disability and 9/11 survivor health benefits need copies of their medical records to document their claims. They generally cannot afford to pay a health care provider the statutory rate of seventy-five cents per page for what may be hundreds of pages of medical records. This bill eliminates provider charges for copies of patient records necessary to apply for government benefits or programs. (A7842, Gottfried, chapter 322)

Hospice Employment Registry – Hospice programs are required to perform criminal background checks on employees. Other home care providers may provisionally employ a worker while the background check is pending, subject to direct observation of the employee. This bill extends that to hospice programs. (A7846, Gottfried, chapter 206)

Eating Disorder Center Certification – New York’s Comprehensive Care Centers for Eating Disorders provide care to individuals with eating disorders. The Centers are required to re-certify with the State every two years, an unnecessary administrative burden on providers who are regularly supervised by the State. This bill changes that to once every five years. (A7949, Ortiz, chapter 259)

 Consumer Protection Extender – Provisions adopted in 2007 require that if a health plan or a hospital terminates or fails to renew a contract, the parties shall abide by the terms of the contract for 60 days from termination and provide notice to affected enrollees. This bill extends the sunsetting of the law to June 2019. (A8061, Gottfried, chapter 82)

Foster Family Demonstration Extender – The foster family demonstration program serves individuals who are medically eligible for residential or personal care services but who lack a home or family support. These individuals are placed with families who provide room and board, supervision, and assistance, with funding from Social Security Income and Medicaid or private pay. This bill extends the sunsetting of the program to December 2021. (A8131, Lupardo, chapter 153)

Maternal Depression Treatment Access – Requires DOH and the Office of Mental Health to maintain a list of providers who treat maternal depression and ensure adequate investment in resources for treatment, including a hotline, referral networks, and telehealth services.   This bill was signed with an agreement to pass legislation in 2018 addressing technical concerns. (A8308, Richardson, chapter 463, approval memo 39)

Summer Camp Bug Repellent Requirement – Allows children in overnight camps, summer day camps, and traveling summer day camps to carry and use insect repellent with written permission of a parent or guardian. (A8420, Jones, chapter 163)

Vetoed with further agreement

Expanding Collection of Unused Controlled Substances – A 2015 law allows pharmacies and other authorized providers to accept unused controlled substances for proper disposal. This bill would require chain pharmacies with four or more locations to do so. This bill was vetoed with an agreement that the Governor will direct the Department of Environmental Conservation to engage local stakeholders and report on the feasibility of such a program by May, 2018. (A387B, Gunther, veto memo 247)

School-based Health Services – This bill would protect access to school-based health centers by carving them out of Medicaid managed care requirements permanently. This bill was vetoed, but the Governor agreed to postpone the transition to managed care to January 1, 2021. (A7866, Gottfried, veto memo 235)

Medicaid Access to Non-Profit Pharmacies – New York has two non-profit pharmacies operated by a pharmacy college, both in the Albany area. These pharmacies provide access to health care services in underserved communities while training pharmacy students. This bill would provide that these pharmacies shall be considered “in-network” for Medicaid Managed Care plans. This bill was vetoed following an agreement by the local Managed Care plan to voluntarily include these pharmacies in-network. (A7922, Steck, veto memo 240)

Protecting Access to Nurse-Family Partnership (NFP) – The Nurse-Family Partnership program sends a nurse to the home of a pregnant woman or new mother to provide needed social and educational services for the woman and the newborn. DOH recently required a doctor’s order before a woman can receive NFP services, as if it was home health care. This bill would clarify that NFP is not home health care and therefore does not require such onerous and inappropriate medical orders. This bill was vetoed with an agreement that DOH will eliminate the requirement for a medical order for NFP services. (A8388, Gottfried, veto memo 234)

Vetoed without agreement

Bronx Asthma Study – Would direct DOH to study the high incidence of asthma in the borough of The Bronx. (A703, Sepulveda, veto memo 219)

Medicaid Blood Allergy Testing – Historically, allergies were diagnosed using a skin test that had to be done by an allergist. There are now widely-used blood tests for allergies that do not require a referral to a specialist. This bill would have Medicaid cover those blood tests. (A807, Perry, veto memo 183)

Brooklyn Asthma Study – Would direct DOH to study the high incidence of asthma in the borough of Brooklyn. (A947, Simon, veto memo 233)

Establishing Pediatric Day Respite Centers – Establishes the category of Pediatric Day Respite Centers (PDRCs) in social services law. PDRCs provide coordinated case management, patient education, and pediatric skilled nursing for children under six years old. (A2187A, Morelle, veto memo 190)

Medicaid Topical Oxygen Therapy – DOH is eliminating topical oxygen therapy when administered at home as a Medicaid benefit. This bill would requires it to be covered, subject to coverage criteria set by the Health Commissioner. (A2906, Ortiz, veto memo 189)

Electronic Cigarette Vendor Registration – Would require vendors of electronic cigarettes to register with the Health Department (to facilitate enforcement of electronic cigarette laws) unless they are already registered as tobacco vendors with the Department of Tax and Finance. (A4377A, Rosenthal, veto memo 186)

Adoptee Right to Know – Would allow adoptees who are at least 18 years old to obtain a non-certified copy of their original birth certificate (identifying the birth parent or parents) and medical history forms if available. (A5036B, Weprin, veto memo 252)

Protecting Access to Complex Rehabilitation Equipment – Would have DOH establish qualifications for equipment suppliers to ensure adequate supply, configuration, delivery, and repair of complex rehabilitation equipment as well as to establish minimum reimbursement rates; and have Medicaid apply any new Medicare billing codes for such equipment. (A6120B, McDonald, veto memo 165)

Hospice Residence Rates – Would update the hospice residence rate to reflect changes in nursing home reimbursement, such as the pricing methodology and the transition to managed care. (A6408A, Dinowitz, veto memo 230)

Manhattan Asthma Study – Would direct DOH to study the high incidence of asthma in the borough of Manhattan. (A7214, Seawright, veto memo 227)

Clotting Factor Managed Care Carve-Out – Blood clotting factor products and services in Medicaid are currently paid for through a fee-for-service system. DOH is moving these services to Medicaid Managed Care. This bill would have maintained the carve-out in order to ensure continued access to these products. (A7581, Gottfried, veto memo 156)

Assisted Living Bed Certificate of Need – The Assisted Living Program (ALP) provides home care services to residents of an adult home. It is a successful, lower-cost alternative to nursing home care. However, the current process for authorizing ALP slots disadvantages rural and upstate providers, resulting in shortages. This bill would set up a new certificate of need process that awards beds based on demonstrated community need. (A7727A, Lupardo, veto memo 214)

 Supplemental Reimbursement for Safety-Net Hospitals – Current criteria for funding hospital indigent care inadequately supports the neediest hospitals serving the largest numbers of poor and uninsured patients. This bill would target additional aid to hospitals meeting a focused definition of true safety-net hospitals. (A7763, Gottfried, veto memo 229)

TBI Clinic Rates – Until 2012, certain facilities providing services to individuals with traumatic brain injury (TBI) and individuals with developmental disabilities (DD) received enhanced payments to raise the Medicaid rate up to the higher Medicare rate. A 2012 statutory change ended this for TBI patients only, effectively causing a 20%-30% rate cut. This bill would authorize Medicaid payment up to the Medicare rate for both TBI and DD patients, restoring parity as before 2012. (A8241, Morelle, veto memo 202)

Restoring Bed Hold – “Reserved bed days” (“bed holds”) are payments to nursing homes to hold a resident’s bed when the resident is hospitalized or otherwise temporarily out of the facility. The 2017-2018 State budget cut funding for bed holds under certain circumstances, but a May 2017 “Dear Administrator” letter from the Department advised nursing homes that the Department would continue bed hold payments pending clarification “of the meaning and intent of the statute.” This bill would restore the bed hold payments as they existed before April 1, 2017 to ensure continuity of care. (A8338, Gottfried, veto memo 238)

2017 Health Committee hearings

Home care workforce adequacy – February 22 and 27

In eighteen hours over two days of testimony, the Committees on Health, Labor, and Aging heard testimony from home care providers, patients and DOH. Patient witnesses praised their programs as indispensable to their independence and wellbeing, while urging better pay for direct care workers. Providers testified to the challenges that they face recruiting, training, and adequately paying direct care workers. As a result of the hearings, legislation was introduced and advanced as part of State budget negotiations.

Among the budget outcomes were the addition of Consumer Directed Personal Assistance Program (CDPAP) providers to the home care wage parity law and requiring CDPAP fiscal intermediaries to be “authorized” by the Department to improve accountability of the program. In addition, the budget negotiations produced an agreement, stipulated in a “side letter,” for DOH to work with stakeholders and the legislature to improve patient assessment for services and to review rates for complex needs patients. Meetings have been held through the summer and autumn and may result in new legislation or budget actions in 2018.

Adult home oversight and funding – September 19 and 28

Adult homes are a type of adult care residential facility that provides supportive care services. They range in appearance from resort-like to dingy dormitory, and vary greatly in quality. Various bills are proposed each year to address one aspect or another, yet there had not been a systemic overview conducted in over a decade. The Assembly Health Committee held two hearings – one upstate and one downstate – to identify issues including quality, payment adequacy, and oversight. I will be using input from the hearings in bills and budget proposals in 2018 to improve adult homes for their residents.

Health care services in prisons and jails – October 30

The Committee held a joint hearing with the Corrections Committee regarding health care services in correctional settings, including both State Department of Corrections and Community Supervision prisons and local jails. Many inmates are at high risk for illnesses related to poverty, addiction, or mental illness, and women and transgender inmates have special needs. Witnesses raised issues including staffing, accessibility, and quality of care and continuity of care upon release.

I will work with Corrections Committee chair David Weprin on legislation to expand the Health Department’s role in correctional care. A broad range of witnesses praised the results of the 2009 law I wrote giving DOH a role in supervising HIV/AIDS and hepatitis C services in prisons and jails and I will be introducing legislation expanding this role to cover additional populations or health conditions.

Nursing Home Quality of Care – November 20

 The Assembly Committees on Health and Aging held a joint hearing on nursing home quality, enforcement, and handling of problems and complaints. Advocates for nursing home residents are concerned about inadequate staffing and lax DOH enforcement (especially involving violations resulting in patient injury, festering bed sores, and excessive use of psychotropic drugs). State support for the Long Term Care Ombudsman Program is also far from adequate. The hearing provided important input for action needed in 2018.

Water quality budget implementation – December 4

 Following discovery of drinking water contamination in Hoosick Falls, Newburgh, and elsewhere in the State, the Assembly and Senate held two joint hearings in 2016.  The 2017 state budget then included an historic $2.5 billion investment in new water quality infrastructure. In December, the Health Committee and Environmental Conservation Committee held a joint hearing on implementation of these programs, including: $110 million for land acquisition for source water protection; $1 billion for upgrades to municipal drinking water and wastewater infrastructure; $130 million for drinking water remediation; $75 million for septic system replacement; and $20 million for the replacement of lead drinking water service lines. Witnesses updated the legislature on current projects and emphasized the need for flexibility in funding, particularly for promoting projects across municipal lines.

Immigrant access to health care – December 13

The Health Committee, Hispanic/Puerto Rican Task Force, and Task Force on New Americans held a public hearing on Immigrant Access to Health Care.  It focused on obstacles immigrants face in accessing and using health care services, including language barriers, provider lack of cultural competency, obstacles to insurance coverage, and Federal laws and potential changes that could restrict access to care and coverage. New York is far ahead of almost all other states in providing Medicaid coverage, but this is in jeopardy for many immigrants.

Many witnesses spoke of the anxiety and uncertainty immigrants are experiencing due to the actions of the current administration in Washington. The State may be able to address some of these concerns by taking action to recognize the legal status of the “Deferred Action for Childhood Arrivals” (DACA) population regardless of federal treatment of DACA immigrants. The Assembly is also working to advance legislation allowing New Yorkers up to age 29 to participate in the Child Health Plus Insurance Program (CHIP), which could ensure coverage for additional undocumented young people.

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