MSSNY eNews: January 5, 2022

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Governor Identifies Legislative Priorities in State of State Message:
Supports Increased Telehealth Payments, Expanded Insurance Coverage, and Loan Support for Physicians, but also Concerning Scope Changes
This afternoon, Governor Kathy Hochul presented her legislative priorities for the year in her first State of the State Address.  As outlined in her briefing book 2022StateoftheStateBook.pdf (ny.gov), among the most notable items relating to health care:

• Require health insurers to reimburse Telehealth Services at the same levels as traditional Services

• Increase Funding for the Doctors Across New York Program to provide loan forgiveness up to $120,000 for doctors who work in underserved areas for three years.

• Expand the SUNY Pre-Medical Opportunity Program and the Diversity in Medicine Program which recruits and trains a diverse healthcare workforce that represents the diversity of the patients in underserved communities

• Expand from 200% FPL to 250% FPL eligibility for New York’s Essential Plan coverage for those who make too much to qualify for Medicaid.

• Eliminate the $9 premium for CHIP coverage for children in families between 160 and 222% FPL

• Expand Medicaid coverage for post-partum care for one year after birth

• Expanding naloxone and buprenorphine access by mandating pharmacies to maintain a stock of these medications

• Create a new Pharmacy Benefits Bureau to begin licensing PBMs and hire a new compliance team to investigate PBM business practices and review complaints of misconduct. Additionally, this team will expand DFS’s ongoing efforts to investigate significant spikes in prescription drug prices and to require drug manufacturers — or whoever is responsible for the price increase — to show a reasonable justification for sudden increases.

• Advance regulations to ensure that New Yorkers are not charged surprise out-of-network costs when a healthcare provider is incorrectly listed as in-network in the insurer’s provider directory, an insurer provides incorrect information about a provider’s network participation status in response to a request from a consumer, or the insurer fails to respond to a consumer’s request for such information. 

• Eliminating remaining statutory written practice agreement requirements for nurse practitioners to practice in collaboration with a physician

• Joining the Interstate Medical Licensure Compact to permit out of state physicians to be licensed in New York and New York physicians to be licensed in other states more easily

• Updating the definition of “emergency medical services” to include community paramedicine, which permits EMTs to provide some non-emergency health care services  

Many of these items will be included within the Executive Budget that is presented by Governor Hochul on or about January 18^th.

Tools to Assist with Compliance with the No Surprises Act
The AMA has developed a toolkit to assist physicians in implementation of various aspects of the federal No Surprises Act (NSA) that took effect on January 1, 2022.  The NSA prohibits out-of-network health care providers and facilities from balance billing commercially insured patients, in certain circumstances. The NSA and its implementing regulations set a method for determining the patient cost-sharing for these out-of-network situations, and when state law does not establish a payment methodology, the NSA establishes an independent dispute resolution (IDR) system to determine provider payment. The toolkit assists with situations involving: non-emergency services at in-network facilities, emergency services and post-stabilization care at hospitals or free-standing emergency departments; and Good Faith estimates (GFE) required to be provided to self-pay patients and uninsured patients.

Throughout the fall, MSSNY has been in continuous discussions with the New York Department of Financial Services (DFS) regarding how the federal law will co-exist with the comprehensive New York surprise billing law that was enacted in 2014. To the end, the DFS has issued a series of “circular letters” that seek to clarify how various aspects of the NSA will be reconciled with potentially incongruous New York State laws.

Physicians should familiarize themselves with these DFS implementation guides:

• Implementing the NSA requirements for 90-day continuity of care for patients after a physician or hospital leaves a health plan network: Insurance Circular Letter No. 11 (2021): | Department of Financial Services (ny.gov)

• Provider Directory Update Requirements for Health Insurers and Health Care Providers as well as IDR for Provider Directory Misinformation: Insurance Circular Letter No. 12 (2021): Provider Directory and Health Insurance Identification Card Requirements under the No Surprises Act and State Law | Department of Financial Services (ny.gov)

• Implementing the NSA requirements for Independent Dispute Resolution (IDR) of out of network surprise medical bills: Insurance Circular Letter No. 10 (2021): The No Surprises Act, Independent Dispute Resolution Process, and Disclosure of Protections from Balance Billing | Department of Financial Services (ny.gov)

Physicians are further reminded that beginning January 1, 2022, the NSA requires that each health care provider and facility must make publicly available, post on their public websites, and provide to insureds, a one-page notice in clear and understandable language containing information on:  the requirements and prohibitions of such provider or facility relating to prohibitions on balance billing for emergency services and surprise bills; any other applicable state law requirements on such provider or facility prohibiting out-of-network balancing billing; and information on contacting appropriate state and federal agencies in case an individual believes that such provider or facility has violated any state or federal prohibitions on balance billing for emergency services and surprise bills.  The New York DFS has developed a state-developed model notice that adheres to the requirements of the federal law.

A Veto, a Signing and a Compromise – Governor Hochul Takes Action on Several Trial Lawyer Bills
MSSNY thanks the many physicians who took the time to send letters to Governor Hochul to raise objections to three problematic pro-trial lawyer bills opposed by MSSNY and many other groups but passed by the State Legislature that could further hamper all defendants generally in litigation in New York State.     Governor Hochul vetoed one of the bills, signed one of the bills and reached an agreement with the Legislature on the third bill to significantly limit its impact.

• Importantly, one bill (S.2199/A.473) was vetoed by Governor Hochul which would have expanded the time period for the imposition of New York’s excessive 9% judgment interest in cases where a plaintiff’s request for summary judgment was not initially granted, but then overturned on appeal.  Her veto message raised concerns regarding the “significant negative impact on defendants in litigation” including health care providers and state and local governments, “all of which are already under a great amount of strain due to COVID-19.”

• The second bill (S.7052/A.8041 “The Comprehensive Insurance Disclosure Act”) was signed into law, which imposes a much more detailed list of requirements for any defendant to provide with respect to the insurance that may be responsible to pay for any award in a personal injury action.  However, Governor Hochul engaged in negotiations with the Legislature for “chapter amendments” that will significantly reduce the burden this law would otherwise impose on defendants in these actions.  The chapter amendments include eliminating the requirement that the insurance application be provided in discovery, eliminating the requirement to provide information on any lawsuits that may erode the applicable insurance policy’s limits, and eliminating the bill’s required disclosure of the amount of any payment of attorney fees that erode or reduce the insurance limits.

• The third bill (S.7093/A.8040) was signed into law which modifies the current NY law governing the “hearsay” exception for a statement made by an employee to now permit the introduction into evidence of any statement by the employee within the course of their employment and during that employment relationship.

MSSNY will continue to coordinate with MLMIC and other allied groups to ensure physicians are further informed about the implications of these new laws.

As Opponents of COVID Vaccine Mandate Rally in Albany Today, MSSNY Amplifies its Support of Vaccines
MSSNY sent the following statement to the press today, 1/5:

Statement Attributable to:
Joseph R. Sellers, MD, FAAP, FACP
President, Medical Society of the State of New York

“MSSNY continues to be grateful for the science that has made the COVID-19 vaccines a reality. The importance of getting every eligible New Yorker vaccinated and boosted against this virus cannot be overstated. The vaccine not only slows the spread of the disease, but also improves outcomes and reduces the stress on our health care system.

“In addition, we unreservedly support the COVID-19 vaccine mandate for all healthcare workers. The SCOTUS ruling in December upholding the vaccination requirement for health care workers—which denied a request to block New York’s vaccination mandate for health care workers—was an important win for our collective public health.

“With new cases in children in the U.S. continuing at a high level, we encourage parents to vaccinate their school-aged children and those with questions or concerns to discuss the vaccine with their trusted physician.

“MSSNY once again encourages every eligible New Yorker to roll up their sleeves and get vaccinated and boosted against COVID-19.”

Governor Hochul Signs Bills to Increase PBM Transparency & Limit Insurers’ Ability to Make Mid-Year Formulary Changes
Governor Hochul signed two bills into law in late December that are critical to helping patients access the medications they need and to ensure greater oversight of pharmacy benefit formulary development practices.  MSSNY thanks the many physicians who took the time to send letters to Governor Hochul in support of these bills over the last several months.

The first piece of legislation, (A.1396, Gottfried/S.3762, Breslin), signed at the 11^th hour on New Year’s Eve, will provide greater accountability and transparency of the practices of Pharmacy Benefit Managers (PBMs). The bill was amended from the version that passed the Legislature in 2019, but was vetoed by Governor Cuomo, to address concerns raised in the Governor’s veto message two years ago. Governor Hochul signed the legislation with an agreement that there will be several chapter amendments to the law by the Legislature in the coming legislative session.

The bill requires that PBMs be licensed by the Department of Financial Services (DFS) and adhere to standards established by DFS. It also calls for disclosure of all possible revenue streams, terms, and conditions, that they place on their networks of pharmacies. One of the chapter amendments will ensure that the DFS is the entity that will be responsible for ensuring that the law is enforced.  MSSNY has supported greater oversight and regulation of PBMs as one way to address restrictive formularies and excessive prior authorization requirements that interfere with patients obtaining needed medications. The law takes effect on or about March 31, 2022.

The second bill, (A.4668, People-Stokes/S.4111, Breslin), is going to significantly limit the ability of health insurers to move medications to higher cost-sharing tiers for their prescription drug formularies during a policy year. The bill was revised from the version that passed both the Assembly & Senate two years ago, but was vetoed by then Governor Cuomo. To address concerns raised in his veto message, the new law will prohibit the applicability of a mid-year formulary change to a patient who was on the medication at the beginning of the policy year, or suffers from a condition for which the medication is part of a treatment regimen for that condition. However, other mid-year formulary changes could still occur.  Based upon a chapter amendment negotiated by Governor Hochul with the State Legislature, the provisions will take effect for policies beginning January 1, 2023.

We will provide further updates on the implementation of these important new laws as well as the negotiated chapter amendments.

NYS Department of Financial Services (DFS) Makes Audio-Only Telehealth Coverage Policy Permanent
After ongoing, temporary emergency regulations from DFS, the department has made permanent policy that requires private commercial insurance plans to cover Telehealth services delivered via audio-only. An insurer may still engage in reasonable fraud, waste and abuse detection efforts, including to prevent payments for services that do not warrant separate reimbursement.

The new policy was adopted to mitigate health and safety risks during the ongoing pandemic and because Telehealth has proven to be an effective tool in providing quality care for patients around the state. View the permanent regulation.

Additionally, it is important to note that a statute was enacted in 2020 that requires Medicaid to cover audio-only Telehealth services. The New York State Department of Health (DOH) also issued guidance for how Medicaid will continue to cover Telehealth services, including audio-only.

New York Attorney General Letitia James Warns Companies to Stop Misrepresenting Turnaround Times for COVID-19 Test Results
On January 3, 2022, NY AG Letitia James sent warning letters to EZ Test NY and Keep Health Safe, two companies providing COVID-19 testing in New York City. According to the AG’s press release, this is because the two companies have been making false promises regarding turnaround times for COVID-19 test results. The press release notes that, despite claiming to deliver results within 24 hours (EZ Test NY) or 48-72 hours (Keep Health Safe), both companies have made customers wait as long as 11 days for test results. AG James has instructed both companies to stop their false advertising by updating their websites and signage, and by notifying patients of realistic timelines in which they will receive results. AG James is also asking consumers to report labs or testing facilities that are making false promises about turnaround times for COVID-19 test results by filing a complaint online with the Office of the Attorney General’s Consumer Frauds and Protection Bureau or by calling the office at 1-800-771-7755.

Read the full press release.

Legislation Signed into Law to Remove Prior Auth Requirements for MAT
Governor Hochul has signed legislation (A.2030/S.649-A) into law that will eliminate prior authorizations for all Medication Assisted Treatment (“MAT”) for patients enrolled in Medicaid or Medicaid Managed Care plans that are prescribed “in accordance with national professional guidelines for the treatment of substance use disorder.” Similar legislation to eliminate prior authorization requirements for MAT prescribed to patients enrolled in state-regulated commercial insurance plans became law in 2019.

MSSNY together with several other patient advocacy groups supported this important legislation, which will take effect on or about March 22, 2022.

Legislation Signed into Law to Require Co-Prescribing Naloxone for Certain Patients Taking Opioid Medications
Governor Hochul has signed legislation (A.336-A/S.2966-A) into law that will require physicians and other health care practitioners to co-prescribe an opioid antagonist for the first opioid prescription of the year to a patient where the patient 1) has a history of substance abuse disorder; 2) has concurrent use of a benzodiazepine or non-benzodiazepine sedative hypnotics or 3) is taking at least 90 MME per day in prescribed opioids.  The requirement does not apply to patients in a hospital, nursing home, mental health facility, or hospice.

While MSSNY is a strong proponent for ensuring patients have access to opioid antagonists with a minimum of hassles, it raised concerns with the potential overbroad nature of this requirement as it was being considered by the State Legislature.  Importantly, the sponsors of the legislation amended the bill by significantly narrowing the applicable patient cohort to whom the co-prescribing requirement applies, which had set at 50 MME daily under the original version of this legislation.

The law will take effect on or about June 27, 2022.

MSSNY Member Obituaries
ABDELAZIM, Mohamad I.; Binghamton NY.  Died December 15, 2021, age 83.  Broome County Medical Society
COUCH, George G.; Watertown NY.  Died October 01, 2020, age 92.  Jefferson County Medical Society
FAUST, Robert Roy; Arlington MA.  Died June 23, 2020, age 84.  Medical Society County of Albany
FEIGELSON, Eugene B.; Brooklyn NY.  Died August 30, 2020, age 89.  Medical Society County of Kings
HOROWITZ, Lawrence; Lawrence NY.  Died January 16, 2021, age 89.  New York County Medical Society
HUH, Chung Ho; Westbury NY.  Died February 19, 2020, age 90.  Medical Society County of Kings
KLINGON, Gerald Harvey; New York NY.  Died October 31, 2021, age 101.  New York County Medical Society
MARMOR, Bruce M.; Las Vegas NV.  Died December 26, 2021, age 82.  Onondaga County Medical Society
MOSHER, Paul W.; Voorheesville NY.  Died September 14, 2021, age 84.  Medical Society County of Albany
RAKOFF, Saul Julian; White Plains NY.  Died May 11, 2020, age 87.  Bronx County Medical Society
RIZZO, Charles Anthony; New Rochelle NY.  Died December 21, 2018, age 90.  Bronx County Medical Society
ROSENBERG, Benjamin A.; Brooklyn NY.  Died December 12, 2021, age 96.  Medical Society County of Kings
SADLER, Arthur H.; Tarrytown NY.  Died May 09, 2020, age 89.  Bronx County Medical Society

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