Relates to referrals of patients for health related items or services.
TITLE OF BILL: An act to amend the public health law, in relation to referrals of patients for health or health related items or services
PURPOSE OR GENERAL IDEA OF BILL: To promote conformity between the federal Stark Law and New York's Health Care Practitioner Referrals Statute.
SUMMARY OF PROVISIONS: Amends Public Health Law §238-a (2) (g) to provide that a referral or arrangement that would be allowed under federal law, 42 D.S.C. 1395nn or its regulations would similarly be allowed under the New York law, unless the Public Health and Health Planning Council declares a type of arrangement to pose a substantial risk of payor or patient abuse, by regulation approved by the Health Commissioner.
Amends the list of exemptions in Public Health Law § 238-a (6) (c) to add any referral or arrangement allowed under federal law, unless the state Public Health and Health Planning Council declares a type of referral to pose a substantial risk of payor or patient abuse, by regulation subject approval of the Health Commissioner.
JUSTIFICATION: This bill is being introduced in order to determine what effect the federal Stark law (named for its congressional sponsor) establishes complex rules on referrals from one health care provider to another and the financial relationships between providers. The purpose is to avoid kickback arrangements and conflicts of interest that cost patients and third-party payers money and can lead to unnecessary and inappropriate services. New York State's law is similar but not the same. So some arrangements or referrals are permissible under the federal Stark law but not under the New York statute. This can create difficulties for health care providers.
For example, the New York statute does not contain exceptions for providing electronic medical record systems, donations of items and services to federally qualified health centers, and fair market value arrangements. Also, the New York exception for in-office ancillary services requires an employer/employee relationship, as compared to the Stark exception, which permits an independent contractor relationship.
The bill would provide that arrangements or referrals that are allowed under the federal law are also allowed under the New York law, unless the Public Health and Health Planning Council and the Health Commissioner designate particular types of arrangements or referrals that would not be allowed because they pose a substantial risk of payor or patient abuse. The bill was drafted in conjunction with the State Bar Association's health law section and has broad provider support.
The bill is being introduced in order to determine what practical effect making NYS' law uniform with the federal Stark law would have on business practices and consumer care.
PRIOR LEGISLATIVE HISTORY: 2009-10: A.9933 - Passed Assembly. S.6955/A.9933 of 2010
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: Immediately.
STATE OF NEW YORK ________________________________________________________________________ 4660 2011-2012 Regular Sessions IN SENATE April 14, 2011 ___________Introduced by Sen. HANNON -- read twice and ordered printed, and when printed to be committed to the Committee on Health AN ACT to amend the public health law, in relation to referrals of patients for health or health related items or services THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Paragraph (g) of subdivision 2 of section 238-a of the public health law, as added by chapter 803 of the laws of 1992, is amended to read as follows: (g)
[in the case of any other financial relationship which the public health council determines and specifies in regulations, subject to approval by the commissioner, does not pose a substantial risk of payor or patient abuse in relation to patient benefits consistent, to the extent practicable, with financial relationships specified in regu- lations adopted pursuant to federal law applicable to reimbursement pursuant to title XVIII of the federal social security act (medicare) for clinical laboratory services provided to beneficiaries of title XVIII of the federal social security act (medicare)]ANY ARRANGEMENT THAT, UNDER THE FEDERAL STATUTORY PROHIBITION ON CERTAIN REFERRALS CODI- FIED AT 42 U.S.C. 1395NN AND REGULATIONS PROMULGATED THEREUNDER, WOULD BE AN ARRANGEMENT BETWEEN A PRACTITIONER (OR IMMEDIATE FAMILY MEMBER) AND A HEALTH CARE PROVIDER THAT: (I) WOULD NOT BE A FINANCIAL RELATIONSHIP IF EXISTING BETWEEN A PHYSI- CIAN AND AN ENTITY, AS SUCH TERMS ARE DEFINED UNDER SUCH FEDERAL LAW OR REGULATIONS; OR (II) WOULD SATISFY THE REQUIREMENTS OF AN EXCEPTION RELATING TO FINAN- CIAL RELATIONSHIPS PROVIDED UNDER SUCH FEDERAL LAW OR REGULATIONS IF EXISTING BETWEEN A PHYSICIAN AND AN ENTITY, AS SUCH TERMS ARE DEFINED UNDER SUCH FEDERAL LAW OR REGULATIONS. AN ARRANGEMENT SHALL NOT BE EXCEPTED UNDER THIS PARAGRAPH IF IT IS A PARTICULAR TYPE OF FINANCIAL RELATIONSHIP THAT WOULD POSE A SUBSTANTIALEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02276-02-1 S. 4660 2
RISK OF PAYOR OR PATIENT ABUSE, AS DETERMINED AND SPECIFIED BY THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL IN REGULATIONS, SUBJECT TO APPROVAL BY THE COMMISSIONER. S 2. Paragraph (c) of subdivision 6 of section 238-a of the public health law, as added by chapter 803 of the laws of 1992, is amended to read as follows: (c) provided further, however, that the following shall not constitute a referral by a referring practitioner: (i) a request by a practitioner for practitioners' services consisting solely of professional services to be furnished personally by that prac- titioner, or under that practitioner's supervision; (ii) a request by a pathologist for clinical diagnostic laboratory tests and pathological examination services, if such services are furnished by or under the supervision of such pathologist pursuant to a consultation requested by another practitioner;
[and](iii) a request by a radiologist for diagnostic x-ray or imaging services, if such services are furnished by or under the supervision of such radiologist pursuant to a consultation requested by another practi- tioner [.]; AND (IV) A REFERRAL FOR ANY SERVICES EXCEPTED UNDER 42 U.S.C. S 1395NN AND REGULATIONS PROMULGATED THEREUNDER, UNLESS THE PUBLIC HEALTH AND HEALTH PLANNING COUNCIL DETERMINES AND SPECIFIES IN REGULATIONS, SUBJECT TO APPROVAL BY THE COMMISSIONER, THAT A PARTICULAR TYPE OF REFERRAL WOULD POSE A SUBSTANTIAL RISK OF PAYOR OR PATIENT ABUSE IN RELATION TO PATIENT BENEFITS. S 3. This act shall take effect immediately.