Assembly Health Committee End-of-Session Review

June 29, 2018

Thirty bills approved by the Assembly Health Committee passed both the Assembly and Senate this year. Eight of them have already been signed into law, one has been vetoed, and the other 21 will be acted on by the Governor over the summer and fall. The Committee reported a total of 88 bills, 44 of which passed the Assembly.1

Bills passed by both Houses include:

  • Enacting a “Sexual Assault Survivors Bill of Rights” informing victims of their legal rights and available services.
  • Authorizing use of medical marijuana as a substitute for opioids in pain treatment.
  • Requiring drug manufacturers to operate local drug take-back programs.
  • Authorizing standing orders for hospital treatment of healthy newborns.

The Health Committee also held hearings this spring on allowing adult use of marijuana; medical aid in dying; access to opioid overdose drugs; New York’s outdated surrogate parenting laws; and CVS’ plan to purchase Aetna.

For more information on a particular bill, please contact the sponsor listed after the description. For the text of a bill, supporting memorandum, and information on its status, go to: http://public.leginfo.state.ny.us/menuf.cgi For video and transcripts of hearings, go to: http://nyassembly.gov/av/hearings/

Hearings

Regulated Adult Use of Marijuana – On January 11, the Assembly Codes, Health, and Alcoholism and Drug Abuse Committees held a hearing on allowing, regulating, and taxing adult use of marijuana. A bill to do so - http://nyassembly.gov/leg/?default_fld=&leg_video=&bn=A03506&term=2017&Summary=Y&Actions=Y&Committee%26nbspVotes=Y&Floor%26nbspVotes=Y&Memo=Y&Text=Y – which I co-sponsor – is carried by Assembly Member Crystal Peoples-Stokes and Senator Liz Krueger.

People hear the term "recreational use" and think the bill is about people having fun. The reality is that it’s about a punitive criminal justice approach, enforced with massive racial disparity, that destroys tens of thousands of lives a year. Support is growing around the country, including a recent Quinnipiac University Poll showing 63% of New Yorkers in favor.

Medical Aid in Dying – The Health Committee held two hearings on April 23 and May 3 on the Medical Aid in Dying Act, a bill I co-sponsor which would enable terminally ill patients with decision-making capacity to request and receive medication to end their lives. Similar laws have been enacted in several states, and there is growing interest in NY. The public hearings provided an important chance for arguments to be heard, questioned, and put into perspective. Over 70 witnesses over 17 hours testified for and against the bill in Albany and New York City, speaking as medical and legal experts, ethicists, religious leaders, and individuals telling their personal stories.

I support the bill. I believe this issue is about patient autonomy and human dignity. For over a hundred years, New York law has recognized that adults with mental capacity have the right to refuse life-saving treatment. Morally and legally, they should have the right to end their suffering through medication if that is their own choice.

Access to Opioid Overdose Drugs – The Health, Alcoholism and Drug Abuse, and Insurance Committees held a hearing on May 17 on access to opioid overdose drugs. Opioid antagonists such as naloxone are potentially life-saving medications that can reverse heroin and opioid overdoses. New York has made progress expanding access to opioid antagonists through a 2006 law authorizing non-medical personnel to administer naloxone, and a 2014 law creating non-patient specific orders for it.

However, potential gaps in access remain. Public locations such as college campuses and homeless shelters do not have universal access. And while pharmacies are now able to dispense naloxone without patient-specific prescriptions, a recent New York Times article suggests that actual availability varies. With millions of Americans suffering from substance use disorders in the past year, access to a potentially life-saving medication is a crucial step towards combatting this epidemic

Surrogate Parenting – The Health and Judiciary Committees held a hearing on May 24 on surrogate parenting who gives birth is compensated. Witnesses including legal experts, fertility clinic representatives, and LGBT advocates spoke to the ethical and legal aspects of the issue.

In 1992, following a highly publicized case in New Jersey (the “Baby M” case), New York State made paid surrogate parenting contracts void and unenforceable. In the 26 years since, there have been major shifts in surrogacy practice and social attitudes. Traditional surrogacy, in which a surrogate becomes pregnant via artificial insemination using her own egg and therefore is biologically related to the child, has largely been replaced by gestational surrogacy, in which the surrogate carries an embryo created through in vitro fertilization so that the resulting child is not biologically related to the surrogate. The growth of civil unions, and then same-sex marriage, has created great demand for surrogate parenting.

I believe it’s time to reconsider New York’s outdated restrictions, and I support A6959/S17 to do so.

CVS/Aetna Purchase – In December, CVS Health announced plans to acquire Aetna, Inc., a transaction that would create one of the largest health conglomerates in the United States. The proposed acquisition remains under review by the United States Department of Justice. On June 4, the Assembly Health and Insurance Committees held a hearing on the potential impact on New Yorkers and the role that New York State regulators will play.

I am deeply troubled by the merger’s creation of what economists call “vertical integration” in health care. Having a major insurance plan, pharmacy chain, and pharmacy benefit manager in one company – at the same time it is expanding into broader health care delivery – will increase insurance company control over patient care and unfairly threaten competing health care providers, including independent pharmacies and the traditional family doctor. Witnesses including Consumers Union also raised significant concerns about patient privacy. The Health Department and Department of Financial Services must act to protect us and our health care.

Passed Both Houses

Prohibiting Smoking in Home Child Care Facilities - Current law prohibits smoking in child care facilities in a private home, but allows it when children are not present. This bill would bar smoking even if no child in the program is present, except in any room that is not used for child care purposes. (A397A, Gunther)

Cytomegalovirus Screening – Cytomegalovirus (CMV) is a congenital virus that can lead to deafness in children. This bill requires testing for CMV, with parental consent, of any newborn suspected of having a hearing impairment. (A587C, Rosenthal)

Prohibiting Distribution of Free E-Cigarettes to Minors - Current law prohibits the sale of electronic cigarettes to minors, but does not specifically prohibit the distribution of free ones by sellers. This bill corrects this oversight. (A8014, Rosenthal, signed April 18)

Veterinary Exemption for hCG – Human chorionic gonadotropin (hCG) is a controlled substance under New York law. It is safe and effective for treating reproductive conditions in cattle and fish. Many states do not treat hCG as a controlled substance at all, and most states at least exempt hCG products formulated for use in animals from controlled substances schedules. This bill would enact that exemption, which will benefit veterinarians and farmers, without affecting the law as to humans. (A8383, Woerner)

Sexual Assault Survivor Bill of Rights – New York has made progress addressing the backlog of rape kits statewide, including language in this year’s budget for improved storage processes. This bill requires DOH, in consultation with the Office of Victims’ Services and Department of Criminal Justice Services, to publish a sexual assault victim bill of rights document informing victims of their rights under State law. The document shall include, but not be limited to, information on local rape crisis and other support organizations, post-exposure prophylaxis, emergency contraception, forensic examinations, and the State’s process for handling rape kits. (A8401C, Simotas)

State Veterans' Homes Board of Visitors Vacancies – Each State veterans’ home has a board of visitors that plays an important role in supporting and monitoring the homes. Unfortunately, the boards have struggled with prolonged vacancies. This bill would authorize each board to appoint interim members if there has been a vacancy for nine months. (A8703, D'Urso, vetoed April 18)

Pharmacy Benefit Manager Gag Rules - Pharmacy Benefit Managers (PBMs) manage pharmacy benefits for health plans, employer-sponsored self-insured plans, and other payers. PBMs too often engage in practices that limit transparency for consumers, including "gag clauses" in contracts with pharmacies that prohibit pharmacists from telling consumers the actual price of medications, or telling customers when drugs would actually cost less if they paid out of pocket. This bill prohibits such language in contracts between PBMs and pharmacies. (A8781, Rosenthal)

Lymphedema Information – Lymphedema and lymphatic diseases affect nearly 10 million people in the United States. This bill requires hospitals to provide information to patients at high risk for developing lymphedema. (A8819B, Rosenthal)

Maternal Depression Provider Education - This bill requires the Commissioner in consultation with the Commissioner of Mental Health to inform health care providers about how to locate appropriate services, peer support, and community resources for patients at risk for maternal depression. Pursuant to an agreement with the Governor, this bill modifies a law enacted last year (Chapter 463 of the laws of 2017). (A8953, Richardson, signed June 1)

Newborn Safe Sleep Study - This bill requires the Commissioner to conduct a study on safe sleep practices, including the use of "baby boxes" and other products to encourage safe and healthy sleep practices. Following completion of the study, DOH shall conduct a pilot program aimed at improving safe sleep practices in areas with high infant mortality rates. Pursuant to an agreement with the Governor, this bill modifies a law enacted last year (Chapter 401 of the laws of 2017). (A8957, Simotas, signed April 18)

Rural Health Council –In 2017, a bill was signed establishing an advisory council within DOH'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. Pursuant to an agreement with the Governor, this bill makes minor technical changes. (A8988, Jones, signed April 18)

Restroom Access - In 2017, a bill was signed giving 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. Pursuant to an agreement with the Governor, this bill moves that statute from Public Health Law to General Business Law. (A8989, Paulin, signed April 18)

Lead Hazard Clean-up - In 2017, a bill was signed requiring the Commissioner to take action when an area of lead poisoning has been designated. Previous law had allowed action, but not required it. Pursuant to an agreement with the Governor, this bill clarifies that enforcement actions would not necessarily require formal hearings. (A8992, Dinowitz, signed April 18)

Medicaid Trust Information - Individuals with disabilities whose incomes would be too high to qualify for Medicaid can currently qualify by putting money into a trust. In 2017, a bill was signed requiring the Department to notify individuals eligible for the excess income program of the trust option, including information on how to participate. Pursuant to an agreement with the Governor, this bill clarifies the information to be provided. (A9004, Gottfried)

Adult Home Death and Felony Reporting - In 2017, a bill was signed improving reporting by adult care facilities of resident deaths and attempted suicides and any felony in the facility. Pursuant to an agreement with the Governor, this bill clarifies these requirements including in relation to the Justice Center for the Protection of People with Special Needs. (A9034, Gottfried,signed June 1)

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 the Department. In 2017, a bill was signed moving the effective date to January 1, 2018. Pursuant to an agreement with the Governor, this bill gives the Department an additional 30 days in order to ensure a smooth process. (A9035, Gottfried, signed April 18)

Drug Take Back – Leftover medication is a major contributor to the availability of dangerous opioids. This bill requires manufacturers of certain drugs to either submit drug take back programs to the Department for approval or enter into agreements for the Department to operate drug take back programs on the manufacturers’ behalf. The costs for these programs, including administrative and operational fees, would be borne by the manufacturer. The bill also requires chain and mail-order pharmacies to provide for collection of covered drugs by Drug Enforcement Agency-approved methods. (A9576A, Gunther)

Autism Screening Protocols – Current law requires the Department to establish best practices for early screening of children for autism spectrum disorders. This bill requires these protocols to include best practices for screening children under the age of three. (A9868A, Santabarbara)

Standing Orders for Healthy Newborns -- This bill allows hospitals to establish standard protocols, known as standing orders, for the care of healthy newborns by registered nurses (RNs). There are several evidence-based treatments that all newborns receive as soon as possible after birth, such as antibiotic eye prophylaxis and vitamin K drops. This bill allows an RN to initiate the administration of the tests and treatments called for in the hospital’s protocol when there are no circumstances requiring deviation from the protocol, such as low birth weight or other conditions established by the hospital. (A9950B, Gottfried)

Health Department Program Extenders – This bill enacts several extenders of existing policies governing the State Board for Professional Medical Conduct, energy audits for residential facilities, licensure of home care agencies, and other programs. (A10221A, Gottfried; signed July 1)

Nurse Practitioner Acting Under Health Care Proxies – In 2017, a law was enacted authorizing nurse practitioner (NP) involvement in end of life issues such as determinations of capacity and orders not to resuscitate. This bill is a conforming amendment allowing NPs to implement health care proxies. (A10345, Gottfried)

Assisted Living Facility Hospice Care – Current Medicaid policy prevents terminally ill patients in assisted living facilities from accessing hospice services. This bill would authorize delivery of hospice services in these settings. (A10459A, Lupardo)

Epidiolex Reclassification – Epidiolex is a cannabis-based drug for epilepsy currently undergoing Federal Food and Drug Administration (FDA) review. This bill would require that if the drug is rescheduled by the Federal government, the Health Commissioner may reschedule it by regulation under New York law to the same or less punitive State schedule so it can be sold in New York. (A10468B, Ryan)

Early Intervention Coordinating Council (EICC) and Maternal Child Health Services Block Grant Advisory Council Quorum – These Councils advise DOH's work on these programs. This bill re-defines a quorum on these Councils as a majority of appointed members (i.e. not the full body counting vacant seats), which will help the Councils’ functioning. (A10675, Gottfried (Departmental)

Residential Off-Site Demonstration Program Extender – Current law allows DOH to approve up to three residential health care facilities to provide physical, occupational, and speech therapy at off-site facilities in order to assess reimbursement and delivery methods. This bill extends the program. (A10758, Morelle)

Clinical Laboratory Supervision – Current State law requires on-site supervision of every clinical lab, a much more onerous requirement than in other States. Without evidence that this ensures better outcomes, it poses significant difficulty and costs both for rural labs and for urban multi-site facilities such as Memorial Sloan Kettering Cancer Center. This bill authorizes off-site supervision via phone or two-way audiovisual communications under regulations made by the Department, with a cap on the number of labs an individual can supervise. (A10781A, Gottfried)

Emergency Medical Technician (EMT) Certification Extender – Emergency Medical Technicians are required to re-certify every 3 years. A pilot program since 2001 has allowed re-certification every 5 years instead in certain counties, in order to help address EMT staffing shortages. The program expires July 1, 2018, and this bill extends the existing program to 2023. (A10830, Stern)

Emerging Contaminant Reporting – The 2017 budget required DOH to establish levels to trigger notification of emerging contaminants in drinking water and develop educational materials for these contaminants. This bill requires posting of these levels on the Department’s website. (A10927, Gottfried)

Medical Marijuana as Opioid Substitute – With the ongoing opioid abuse crisis, it is important that practitioners be able to offer alternatives to opioids for pain management. This bill allow medical marijuana to be used to treat pain when the use of medical marijuana is as an alternative to opioids. The bill also adds substance use disorder to the list of conditions for which a practitioner may authorize medical marijuana use. (A11011B, Gottfried)

Funeral Director Due Process – Following an examination scandal at a major mortuary school, DOH refused to grant licensure to almost 100 New York funeral directors who had taken that exam without having produced specific evidence against any of these individuals – many of whom had been practicing for several years without incident. This bill ensures that these funeral directors can continue practicing unless DOH determines, after a proper hearing process, that the licensees did actually commit misconduct. (A11068, Dinowitz)

Passed Assembly

New York Health Act - Single-Payer Plan - Establishes "New York Health," a universal, single-payer health care program that would cover all New Yorkers. New York Health would replace insurance companies, premiums, deductibles, co-pays, restricted provider networks and out-of-network charges with a publicly-funded benefit package more comprehensive than commercial health plans, funded by broad-based progressively-graduated taxes based on ability to pay. (A4738A, Gottfried)

Central Venous Line Patient Information - This bill would require hospitals to consult with family or other informal caregivers to determine if they are able and willing to do the tasks involved in maintaining a central venous line for a patient about to be sent home from the hospital. (A5514C, Galef)

Pharmacy Benefit Manager Audit Rules - Pharmacy Benefit Managers (PBMs) manage pharmacy benefits for health plans, employer self-insured plans, and other payers. PBMs may audit pharmacy records, and these audits can be onerous and interfere with the normal functioning of the pharmacy. This bill provides rules for the auditing process and protections for pharmacies such as advance written notice and documentation standards. (A6733, Lavine)

Medication Synchronization – Medication synchronization enables partial prescription fills so that later refills are coordinated among multiple prescriptions. This bill authorizes, but does not require, partial fills for synchronized dispensing when the patient, prescriber, and pharmacist agree. (A7492A, Gottfried)

Alternative Identification for WIC Benefits - The Women, Infants, and Children (WIC) program provides supplemental nutrition benefits to low-income New Yorkers through redeemable vouchers or checks. Currently, cashiers cannot accept these payments unless the customer presents WIC identification. This bill authorizes DOH to develop an alternate methodology for customers to identify themselves, such as with drivers licenses. There is little risk of fraud since the vouchers or checks have the purchaser's name on them. (A8435, De La Rosa)

Early Intervention Coordinating Council (EICC) Quorum - The Early Intervention program provides services to 0-3 year olds with developmental delays. The EICC advises DOH's work on the program. This bill defines a quorum on the EICC as a majority of appointed members (i.e., not the full body counting vacant seats), which will help the Council's functioning. This provision was included in a later bill (A10675, Gottfried) that passed both houses. (A8656, Gottfried)

Prohibiting Mandatory Arbitration in Nursing Home Cases - This bill prohibits mandatory arbitration clauses in contracts between nursing homes and residents or their representatives. Mandatory arbitration clauses prohibit patients from suing in court. People entering a nursing home often sign contracts under physical and emotional duress and without real choice. They or their families should not be forced to sign away their rights in order to access necessary long-term care. (A8697, Titone)

Access to Breastfeeding Counseling Services - Medicaid currently covers lactation counseling by certified lactation consultants only upon referral by a physician, physician assistant, nurse practitioner, or licensed midwife. This bill would authorize Medicaid coverage for these services without requiring such medical orders. (A8788, Solages)

Opioid Information on Death Certificates – Current law requires that when a death is caused by an opioid overdose, it shall be noted on a death certificate. This bill requires that if the specific opioid is known to the person completing the death certificate, it shall also be noted. (A8870A, Jean-Pierre)

Medical Marijuana for Opioid Use Disorders - This bill makes opioid use disorders an eligible condition under the medical marijuana law. Patients who may benefit from marijuana substitution for far more dangerous opioids should be able to make that decision with their providers, and not be limited to the current eligible conditions list. Similar language was included in a later bill (A11011A, Gottfried) that passed both houses. (A9016, O'Donnell)

Electronic Death Record Implementation – A 2013 law required the Department to implement electronic death records by 2015. Three years after the deadline the system is still not functioning, partly due to non-participation by local governments, even as funeral directors are still charged $20 per record to support the program. This bill would require the system be fully implemented by January 1, 2019 and clarify that penalties will apply for non-participation, with exemptions for cases where non-compliance is due to circumstances beyond the control of the individual. (A9837A, Steck)

Protecting Access to Complex Rehabilitation Equipment – This bill 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. (A10604, McDonald)

Licensed Mental Health Practitioners (LMHP) Medicaid Coverage – LMHPs provide vital mental health services, including counseling and psychotherapy. Currently, LMHP services are only reimbursable by Medicaid if they are billed through a State mental or behavioral health agency. This bill makes LMHP services reimbursable when provided in other settings, increasing patient access to mental health care. (A10107, Bronson)

Hemp Product Clarification – Federal ambiguity has led to confusion about the legal status of hemp products and their relationship to marijuana. This bill would clarify that hemp products, produced under the State Department of Agriculture and Markets regulations, are not subject to the law that applies to marijuana. (A10826A, Lupardo)

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1. The Health Committee reported many fewer bills this year than last year. Under new Assembly rules, bills reported from the committee in the first year of a two-year session are no longer required to come back to the committee in the second year.