MSSNYeNews: Raymond J. Donovan’s Good Name – January 17, 2019

Arthur Fougner MSSNY Presiident

Arthur Fougner, MD
MSSNY President

January 17, 2020

Vol. 23  Number 3



In 1987, Reagan’s former Secretary of Labor Raymond J. Donovan was accused of corruption and mob connections in a case involving NY subway contracts. Needless to say, the press had a field day with a Reagan cabinet official linked to organized crime. After a brief trial, in which the defense called no witnesses, the jury quickly returned an acquittal on all counts. Following the verdict, Donovan famously asked, “Which office do I go to to get my reputation back?

In his State of the State, Governor Andrew Cuomo announced he was calling for streamlined physician discipline proceedings with transparency as well. While no details have been revealed as of yet, this seems at first blush, quite concerning. And sure enough, right on cue, the media is already jumping in. The Syracuse Post-Dispatch featured anecdotes of physicians’ criminal activity, damning with a broad brush. So, I call out the media here and now— “Balance, Reporters – You Need Balance.”

Let me assist in providing such balance. There are over 100,000 physicians in NY State. In 2016, about 10,000 reports were made to NY’s Office of Professional Medical Conduct. Out of those, about 300 resulted in serious actions. You read it right – 300 out of 10,000 or less than 3%. And the time it took was the result of painstaking investigation with full due process rights provided.

Again, without details, it is difficult to know just what cases would trigger this transparency or result in summary loss of license. A physician’s license can already be pulled if he/she is deemed an imminent threat to public safety. I am quite sure no one would argue. However, plastering a physician’s name on the front page of every newspaper in the state for any claim by a disgruntled patient is quite a different matter, especially before all the facts are known. The allegations against Donovan were serious, yet a jury quickly concluded after the prosecutors’ weak case that the indictments should never have been brought. Should all NY physicians be now treated as badly as Donovan? A claim of misconduct from the state is more than just a bad Yelp Review. It can be a career ending. Is this truly what the governor is asking for? Drop a dime and cover a doctor with slime?

In these days of record physician burnout, the last thing NY State needs is a Salem, Part Deux. Feel free to let me know how you feel. I urge everyone reading this to make plans to let all of Albany know how we feel on March 4.

We must all hang together for assuredly we will all hang separately.
Benjamin Franklin

Comments?; @sonodoc99

Arthur Fougner, MD
MSSNY President

Capital Update

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The Week’s Legislative Podcast

SAVE THE DATE: MSSNY‘s Annual “Physician Advocacy Day” (3/4) Please Plan to be in Albany!
On January 8th the New York State Legislature returned to Albany for the 2020 session. As the New Year rings in and a new session begins, the need for physician advocacy and grassroots involvement is greater than ever. With the Governor’s State of the State Address teeing up items for potential concern such as Medicaid cuts, legalized marijuana and changes to the physician disciplinary process, but also supported reforms such as regulating PBMs and a flavored tobacco ban, it is imperative that physicians be in contact with their local legislators to ensure the physician community’s message is well-represented.

One opportunity is to participate in MSSNY’s “Physician Advocacy Day” that will be held on Wednesday, March 4th in the Lewis Swyer Theatre in the Egg located at the Empire State Plaza, Albany NY. Click here to register!

Join your colleagues from all around New York State and come to MSSNY’s Physician Advocacy Day to speak with your legislators and key policymakers to ensure they’re making the right choices for New York’s physicians and their patients.

A brief luncheon to which members of each House are invited to speak with their constituents will follow the morning program.  Please work with your County Medical Societies to schedule appointments for physicians to meet with their elected representatives.  If you have any questions/comments, please contact Raza Ali at                  (ALI)

MSSNY Continues to Push Back Against Troubling Proposal to Bypass Disciplinary Due Process
With the Governor’s proposal to bypass important due process protections for physicians during disciplinary proceedings likely to be part of the 2020-21 Executive Budget, all physicians are urged to contact their legislators please click here to urge that the Legislature reject this proposal.

MSSNY President Dr. Art Fougner issued a statement (statement) and has been quoted in numerous media outlets across the State of New York (read here) that MSSNY is anxious to work to address gaps in the disciplinary process to protect the public, but also has strong objections to what has been publicly announced.

“Recognizing that there are enormous professional implications when disciplinary action is taken against a physician, or even when there has been an accusation, we must also ensure that fair due process is provided when a physician is accused of professional misconduct” Dr. Fougner stated. In fact, very few complaints made to the Office of Professional Medical Conduct ever result in any findings of misconduct.

More information about this proposal will be released next week.  (AUSTER)

Please Urge Your Legislators to Reject Unfair Medicaid Cuts
With the Governor’s soon to be released Executive Budget likely to include significant cuts to the State’s Medicaid program to address its estimated $4 billion Budget deficit, physicians are urged to contact their legislators (here) ask that they restore the recent 1% cut to Medicaid payments and to reject further cuts.

MSSNY recently joined on to a letter with several other physician and health care provider associations to protest the recent 1% across the Board Medicaid cuts announced New Years’ Eve.  MSSNY has publicly stated (MSSNY response) that these cuts are particularly offensive given the already grossly inadequate payments for physician care under Medicaid and Medicaid Managed Care in New York, and that New York physicians were not the beneficiaries of increases given last year to other health care sectors.  Indeed, New York Medicaid physician payment is a microscopic part of New York’s overall Medicaid Budget, with New York ranking 46th in the nation for reimbursement for Medicaid physician payment generally and 47th for primary care.   In short, the already tiny amount we currently spend for community based physician care helps to reduce costs in the Medicaid program, and should not be forced to share in the burden of addressing this deficit.

We must do more to assure patients have access to timely needed care.  However, this cut will do nothing to assure adequate care for New York’s neediest patients, and in fact, make this problem even worse.  Please urge your legislators to reverse the cuts, and to prevent future cuts (click here)                                                                                      (AUSTER)

MSSNY Joins Effort to Enact Comprehensive Law to Prohibit Flavored Nicotine and Tobacco Products
Gregory Threatte, MD, President of Albany County Medical Society and MSSNY President Arthur Fougner, MD participated in a press conference this week calling upon the NYS Legislature to enact bills that would ban all flavored e-cigarettes, including menthol. The groups also called for legislation that would also ban all flavored tobacco products, such as chewing tobacco and cigarillos. The press conference included Senator Brad Hoylman, Assemblymembers Linda Rosenthal, Rodneyse Bichotte and Tremaine Wright and other public health groups. MSSNY supports S. 428-B/A. 47-
A, sponsored by Senator Hoylman and Assemblywoman Rosenthal, which would prohibit the sale of flavored e-cigarettes, including menthol, and S.6809/A.8808, sponsored by Senator Hoylman and Assemblymember Bichotte, which would ban flavored tobacco products.  Passage of this legislation is now more critical since a state Supreme Court judge struck down New York State regulations called for by Governor Cuomo that would have banned flavored vaping products.  Physicians are encouraged to send a letter to their legislators and to the Governor about these bills through MSSNY Grassroots Action Center (GAC) here.

NYS Senate Health Committee Moves Package of Bills on E-cigarettes
The Senate Health Committee this week moved several legislative e-cigarette proposals to the Senate Rules Committee.   S.428B, sponsored by Senator Brad Hoylman, would prohibit the sale and distribution of flavored e-cigarettes.  S.3905A, sponsored by Senator Gustavo Rivera, would regulate electronic cigarettes in the same way as tobacco products to prevent access to products by persons younger than 21 years. S.4249A, sponsored by the Senator Monica Martinez, would create restrictions for the locations of tobacco stores and electronic cigarette stores to be at least 200 feet away from a school or place of worship.              (CLANCY)

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Legislation to Expand Mandate For Pain Management For All DEA Prescribers on Senate Calendar
A measure that would expand the coursework under the current pain management requirement has moved to the Senate calendar.  S.7102, sponsored by Senator Brian Benjamin, would expand the topics within the three hour course to include techniques that would reduce the likelihood of overdose and spread of blood-borne diseases by those who use drugs; medications used for the treatment of addiction and information about becoming a buprenorphine prescriber.

The Medical Society of the State of New York is opposed to this measure.  MSSNY staff has been discussing the implications of this measure with Senators and Senate staff and its effect on prescribers who may have already taken course work to meet the requirement.   Physicians and other health care providers who have a DEA license were required to take a three hour course on pain management, palliative care, addiction that included the state and federal requirement for prescribing controlled substances, appropriate prescribing, managing acute pain, palliative medicine, prevention, screening and signs of addiction, responses to abuse and addiction and end of life care.

This requirement passed the Legislature in 2016 and physicians were required to have taken this program by July 1, 2017.  The law also requires that DEA prescribers take the course every three years—2020 is the start of a new cycle and physicians are again required to take this course.      (CLANCY)

MSSNY Opposes Legislation to Allow Estheticians & Others to Perform Laser Hair Removal
A bill (S.2834/A.821) that would allow estheticians, and others, to perform laser hair removal with only minimal physician oversight, was reported out of the Senate Committee on Consumer Protection at its first meeting of 2020, on Tuesday, January 14. MSSNY has long opposed this legislation as it would essentially legitimize a currently unregulated practice to perform a procedure that should only be done by an appropriately trained and educated individual, under physician supervision.

MSSNY indicated in its’ memo of opposition that it appreciates the intent of the legislation to increase safety and oversight and is working with the sponsors to make changes to the bill that establishes critical physician oversight and ensures patients’ safety.          (CARY)

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Partial Fill Prescribing Moves Forward in Senate
Legislation that would enable the dispensing of a partially filled controlled substances prescription, is moving forward quickly and is now on the Senate calendar for a vote.  The measure, S. 7115/A.9034, sponsored by Senator Gustav Rivera and Assemblymember John McDonald, would allow a prescriber to issue a partially filled prescription for a Controlled Substance II, III, IV, V to a patient.  The prescription would be recorded in the same manner as a refill and the remaining quantity of the prescription may be dispensed separately.

In 2016, Congress passed legislation that would enable partial fill prescription under the Comprehensive Addiction and Recover Act (CARA).  This state measure would allow New York State to conform to what is allowable under federal law.   A similar measure had passed during the 2019 legislative session, but was vetoed by Governor Andrew Cuomo.  This new bill addresses concerns expressed by the administration in its veto message. The Medical Society supports this measure and believes that it will help to reduce the amount of unused pain medication and will allow prescribers to help patients balance the need to relive pain with an adequate supply of medication.   (CLANCY)

Physicians Ordering Home Care for Your Patients – Are You Aware of the Impact of the New Medicare PDGM Methodology?
Physicians should be aware that Medicare has just implemented a new system for how it pays for patient home care services through a new methodology known as the Patient-Driven Groupings Model (PDGM).  The PDGM relies more heavily on clinical characteristics and other patient data to classify home health services into defined payment categories. While part of CMS’ effort to shift Medicare payment away from volume-based payment towards value-based payment, it could also produce new documentation responsibilities for physicians.

In particular, the PDGM will break up the standard 60-day episode of care into one of two 30-day periods. That means 30-day periods will be implemented as a basis for payment vs. the 60-day periods used now. Each 30-day period is grouped into one of 12 clinical categories based on the patient’s main diagnosis. Moreover, the PDGM will increase the number of payment groupings and unique case-mix potential from 153 to 432. The current system allowed for 153 combinations, but with PDGM each 30-day period can be categorized into one of 432 case-mix groups.

The Home Care Association of New York State has shared with MSSNY a suite of resources for physicians interested in learning more about the PDGM.  To read more about what physicians ordering home care services need to know about this program, please review: Brochure  and Physicians Toolkit Guide

At the November 7, 2019 meeting of the MSSNY Council, a resolution was adopted to monitor implementation of the PDGM “to determine whether this new program will impose additional administrative burdens on physicians certifying home care services for their patients, and/or whether it will impede patients from receiving needed home care services”.  To that end, please let us know if this system is causing new difficulties in ensuring your patients get the home care services they need.         (AUSTER)

Registration now open for Medical Matters: Virtual Drill: Incident Command System & Crisis Communications
MSSNY’s next Medical Matters will feature a Virtual Drill on the Incident Command System and Crisis Communications on February 19th from 6:00-8:00pm. Faculty for this program are: Arthur Cooper, MD; Pat Anders, MS, MEP; William Valenti, MD and Lorraine Giordano, MD.

Educational Objectives are:

  • Obtain information about local, state and national chain of command in a public health emergency and learn how to access resources
  • Understand the importance of planning for medical surge and triage of patients, as well as staff and family considerations, in the office-based practice setting during a health emergency
  • Develop an understanding that all public health emergencies can potentially have mental health implications for survivors and others connected with the event
  • Acquire skills for the management of patients in a public health emergency

Please note that there are recommended pre-course materials to be viewed prior to this virtual drill. You will be sent a link with your registration confirmation. We encourage all participants to examine these prior to the Virtual Drill.  Register by clicking   here Additional information or assistance with registration may be obtained by contacting Melissa Hoffman at

The Medical Society of the State of New York is accredited by the Accreditation Council for Continuing Medical Education (ACCME) to provide continuing medical education for physicians.

The Medical Society of the State of New York designates this live activity for a maximum of 2.0 AMA/PRA Category 1 credits™.  Physicians should claim only the credit commensurate with the extent of their participation in the activity.



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Three US Airports (JFK Included) Screen for Novel Virus from China
Today, in response to an outbreak of novel coronavirus, public health screening will begin at three major U.S. airports that receive travelers from Wuhan, China, the CDC announced. Starting today, airports in San Francisco (SFO), New York (JFK), and Los Angeles (LAX) will screen for symptoms associated with this virus in travelers arriving from direct or connecting flights from Wuhan, where the outbreak originated, the agency said in a statement.

Officials said that they expect to see cases of this novel virus “around the world” as people start to look for it more and that it is highly plausible at least one case will occur in the U.S.

Screening will begin Friday night at JFK for a flight that arrives around 10 p.m., CDC officials said in a conference call on Friday. JFK is one of two airports, along with SFO in San Francisco, that receive travelers on flights directly from Wuhan. Officials said that LAX was included because of the large volume of passengers coming from indirect flights.

Passengers will be screened about symptoms and fever at the airport and people of concern will be triaged for evaluation, including a more detailed exam and questions about exposures. Then, they will be referred to a facility where, ultimately, diagnostic tests can be performed. CDC said its lab “already has the ability to identify the pathogen,” with the exact sequence of the virus, which is publicly available. They added that they are working on a test to identify the virus to distribute to state health departments.

In the statement, CDC said it is deploying about 100 additional staff at the three airports to supplement staff at CDC quarantine stations.


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When you subscribe to the Medical Society of the State of New York Grassroots Action Center, the Division of Governmental Affairs will alert you when legislation and issues of importance to physicians and patients, either in the NYS legislature or in Congress, are at critical stages.

Accordingly, contact from constituents would be vital to influencing the path and future of that legislation or issue.

Alerts will be accompanied by recommended actions you or your designee can take to have maximum impact such as calling, tweeting and emailing a customizable letter to your legislators.

If you are concerned with health care policy formation in New York State, please subscribe today by texting MSSNY to 52886 and you will be prompted to enter your email address.  When you sign up, it is best to use your NY-based voting address or practice address (if you do not reside in NY) for your alerts.

Contact the Division of Governmental Affairs at 518-465-8085 or if you have questions or comments.  Thank you.

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Survey: Gen-X physicians More Likely to Report Burnout
Physicians ages 40 to 54, grouped together as Generation X, were more likely to report feeling burned out than the millennial and baby boomer doctors surveyed by Medscape in its latest report on job-related stress and suicide risk among doctors.

The survey was completed by about 15,000 physicians in 29 specialties. Medscape defines burnout as “long-term, unresolved, job-related stress leading to exhaustion, cynicism, detachment from job responsibilities and lacking a sense of personal accomplishment.”

Dr. Carol Bernstein, vice chair of faculty development and well-being at Montefiore Medical Center and the Albert Einstein College of Medicine, said in the report that the midcareer period, which Gen Xers are in, can be particularly stressful.

“In addition, I suspect that group is juggling multiple roles outside of work, including caring for children as well as elderly parents, and working as well as planning for retirement,” Bernstein said in the report.

Overall, the rate of physician burnout, at 42%, has fallen slightly from a rate of 46% five years ago. Forty-eight percent of women said they felt burned out, compared with 37% of men. About half of physicians said they would take a pay cut if it meant more free time.

Doctors said bureaucratic tasks such as charting and long hours were leading drivers of stress.

Specialists in urology, neurology and nephrology reported the highest rates of burnout, with about half of those respondents saying they have experienced it. (Crain’s Health Plus Jan. 15) Public health and preventive medicine doctors, ophthalmologists and orthopedists reported the lowest rates, approximately 3 in 10.

First Study by CDC: Evidence of Links Between Lung Injury with Use of E-Cigarettes
The Centers for Disease Control and Prevention said Tuesday that a new study, along with state-based evidence, strengthens the link between lung injury associated with the use of e-cigarettes or vaping products and the use of THC-containing products obtained from informal sources, including family and friends as well as online sellers.

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Statistics Indicate Alcohol Use Been Rising for Two Decades
The AP (1/14) reports a new federal health statistic indicates “Americans are drinking more now than when Prohibition was enacted;” moreover, “it’s been rising for two decades, and it’s not clear when it will fall again.” The stats “show a rise in per-person consumption and increases in emergency room visits, hospitalizations and deaths tied to drinking,” but teen drinking is down. The article details history of alcohol use in the U.S., and cultural attitudes surrounding drinking.

The Hill (1/14) reports “Americans drink, on average, 2.3 gallons of alcohol per year in the form of beer, wine and mixed beverages, according to a new analysis of federal health statistics.” This “news comes just a day after it was announced by beverage industry trackers that U.S. wine consumption dropped in 2019 for the first time since 1994.”

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As of December 5, 2019, Influenza is Prevalent in NYS
At this time, Section 2.59 of the New York State Sanitary Code (10 NYCRR § 2.59) requires all health care and residential facilities and agencies regulated pursuant to Article 28, 36, or 40 of the Public Health Law to ensure that all personnel, as defined in the regulation, not vaccinated against influenza for the current influenza season wear a surgical or procedure mask while in areas where patients or residents are typically present. See Influenza Activity, Surveillance and Reports for to access the full weekly report. For information about the “flu mask regulation” and the current status of the Commissioner’s declaration, please visit Download the data used in this dashboard at Health Data NY.

Pan-Resistant Candida auris in New York Detailed
Three cases of pan-resistant Candida auris in New York highlight the need for continued C. auris surveillance, researchers write in MMWR.

From August 2016 through June 2019, some 800 cases of C. auris were identified in the state. Of isolates that underwent susceptibility testing, nearly all were resistant to fluconazole, two-thirds to amphotericin B, and 4% to echinocandins. For three patients, isolates were resistant to all three antifungal classes:

  • The three patients were 50 or older with multiple comorbidities; none had traveled recently.
  • Pan resistance appeared to develop after treatment with echinocandins, the first-line treatment for C. auris.
  • There was no epidemiologic link among the three.
  • These patients did not appear to transmit pan-resistant C. auris to others or to the environment.

The authors advise, “Patients on antifungal treatment for C. auris should be monitored closely for clinical improvement, and follow-up cultures should be obtained. Repeat susceptibility testing should also be conducted, especially in patients previously treated with echinocandins.”

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Background: HIV and ID Observations post on C. auris and antimicrobial resistance (Free)

DEA Data: More Than 100 Billion Pain Pills Saturated the Nation Over Nine Years
The Washington Post (1/14) reports that data from the Drug Enforcement Administration “shows that more than 100 billion doses of oxycodone and hydrocodone were shipped nationwide from 2006 through 2014 – 24 billion more doses of the highly addictive pain pills than previously known to the public.” In July, The Post “reported that the data revealed that the nation’s drug companies had manufactured and distributed more than 76 billion pain pills.” The “two additional years of information – 2013 and 2014 – was recently posted by a data analytics company managed by lawyers for the plaintiffs in a massive lawsuit against the opioid industry.”

press conference on January 13

Dr. Gregory Threatte, president of the Albany County Medical Society and Dr. Art Fougner, MSSNY President, participated in a press conference on January 13 calling for the elimination of all flavored e-cigarettes and tobacco products, including menthol flavors.   Dr. Hazel Dukes, President of the NAACP New York State conference, Senator Brad Hoylman, Assemblymembers Linda Rosenthal, Rodneyses Bichotte and Tremaine Wright, joined with more than 40 organizations from across the state to call for a full and immediate end to the sale of flavored tobacco products in NYS.

Doctors and NAACP President: Ban All Forms of Flavored Tobacco
Public health officials, leaders of the state NAACP and other advocates urged Albany lawmakers on Monday to target all forms of flavored tobacco — including menthol combustible cigarettes — in their expected crackdown on vaping.

With the Senate and Assembly set to advance a package of e-cigarette bills as early as next week, advocates said that menthol cigarettes, smokeless tobacco, hookah and other products should be included in any statewide flavor ban.

“Don’t confuse the delivery device with the underlying toxin,” Gregory Threatte, president of the Medical Society of the County of Albany, told lawmakers during an afternoon news conference at the Legislative Office Building.

Hazel Dukes, president of the NAACP New York State Conference, argued that a ban on all flavored tobacco products “is long overdue” given the industry’s history of using these products to target children and minorities.

“This is nothing new,” she said at the news conference. “The device may have evolved but the deceptions have not. For generations the tobacco industry has been targeting our youth, and particularly African American kids, with flavor products, especially menthols.”

Dukes urged lawmakers to “immediately end this immoral, discriminatory practice of targeting kids” by ending sales of all flavored tobacco products in New York.


Upcoming QPP Service Center Hold Times
Due to the opening of the 2019 MIPS data submission period, the Quality Payment Program (QPP) Service Center is projecting an increase in volume of calls and emails between January and March 2020, resulting in longer wait times.

CMS recommends the following to minimize wait times and ensure successful 2019 submission:

  • Use One Method to Report Issues— Due to the increase in volume at the QPP Service Center, to minimize backlog, please use only one method of reporting for the same issue (email or phone). Note: Cases are processed in the order in that they are received regardless of the manner in which the Service Center was contacted. Please allow time for processing.
  • Submit Your Data Early— We encourage you to submit your 2019 MIPS performance period data early during the submission period. Early submission will allow you plenty of time for Service Center assistance if needed.
  • Call the Service Center at Off-Peak Hours— We strongly recommend calling the Service Center during off-peak hours (8:00 AM-10:00 AM ET OR 2:00 PM-8:00 PM ET).

For More Information

  • Visit the QPP Resource Library to review new and existing QPP resources.
  • Contact the Quality Payment Program at 1-866-288-8292, Monday through Friday, 8:00 AM-8:00 PM ET or by e-mail at: Reminder: to receive assistance more quickly, consider calling during non-peak hours—before 10:00 AM and after 2:00 PM ET.
  • Customers who are hearing impaired can dial 711 to be connected to a TRS Communications Assistant.

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Great Career Opportunities for Clinical Physicians
Physicians, are you looking for a change?  Tired of working long shifts with an overwhelming patient load?  Come work at a well-equipped and staffed correctional facility where you can MAKE a difference, working with a smaller number of patients for reasonable hours.

Starting salary is $143,381 – $171,631 *Additional $20,000 geographical differential for Clinton & Franklin CF, and $10,000 for Five Points, Greene and Groveland CFs. We offer full-time, part-time & hourly/per-diem positions.

We have openings in the following counties offering a choice of urban, suburban or rural living:

Clinton*                 Clinton Correctional Facility (sporting and recreational outlets)
Chemung               Elmira and Southport Corrl Facilities (Gateway to the Finger Lakes)
Columbia*             Hudson Correctional Facility (antiquing, arts & collectables)
Dutchess                Green Haven Correctional Facility (Hudson River Valley Beauty)
Franklin*                Franklin & Upstate Corrl Facilities (North Country, 1 hour to Montreal)
Greene*                 Greene Correctional Facility (rural charm yet only 2 hours to NY City)
Livingston*            Groveland Correctional Facility (State Parks, hiking, fishing)
Oneida                   Mohawk Correctional Facility (Cooperstown, breweries)
Orleans                  Albion Correctional Facility (Greater Niagara Region & Canal Town Culture)
Sullivan                  Woodbourne Correctional Facility (mountains, outlets, entertainment)
Seneca*                 Five Points Correctional Facility (heart of wine country)
St. Lawrence          Riverview Correctional Facility (hiking, boating and museums)
Ulster                     Shawangunk and Wallkill Corrl Facility (Catskill Mountains, Casinos)
Washington           Great Meadow Corrl Facility (Between Vermont & Green Mountains)
Westchester           Bedford Hills Correctional Facility (Less than 1 Hour to NYC)
Wyoming               Wyoming Correctional Facility (waterfalls, family farms, natural beauty)

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