Prior to the start of the 2011-12 legislative session, the Legislative Committee was gearing up to focus on two major issues: mandated maternal mortality reporting and home-birth standards. However, early in the session, a Medicaid Redesign Team (MRT) was formed by the Governor to cut Medicaid costs – with a commitment to include medical liability reform.
District II quickly submitted the no-fault neurologically impaired infant fund proposal, which was first drafted in 1991. District II met with the Commissioner of Health, the Executive Branch and Legislature to gain support for the no-fault fund. However, it was not proposed for the Budget. Instead a $250,000 CAP on non economic damages and a neurologically impaired indemnity fund was proposed. Once it was determined that ACOG's no-fault neurologically impaired infant fund was not going to be included in the budget, District II Executive Officers decided that ACOG would support the CAP and join a coalition of hospitals, unions and insurers to support Governor Cuomo and his tort reform package. District II launched a media campaign which included newspaper ads, editorial board meetings, and letters to the editors – as well as membership advocacy and a call to action for members and their patients to reach out to their legislators.
While the state budget was being drafted, eight ob-gyns at Bronx-Lebanon Hospital Center were notified that their medical liability insurance would not be renewed as of July 1, 2011. District II lobbied the Legislature to help the ob-gyns find medical liability insurance. Meetings were held with the entire Bronx Delegation, executive staff, Assembly Speaker Sheldon Silver and Senate Majority Leader Dean Skelos.
While lobbying for the CAP and for our Bronx ob-gyns, a last-hour, 3-way leaders' negotiation omitted the $250,000 CAP. An indemnity fund that helps only hospitals, and a Hospital Quality Initiative including an Obstetrical Patient Workshop Task Force, was passed with the budget. These proposals still need to be drafted at the Department of Health.
District II is in the planning stages of a new campaign which will focus on women and ob-gyns working together through advocacy and outreach. The Well-Woman website will allow patients and ob-gyns to get involved in the political arena of medical liability reform. Letters to the leadership and Governor Cuomo will be part of a media campaign and a call to action component will allow patients and ob-gyns to have direct contact with their legislators.
District II would like to take this opportunity to thank our members for putting the pressure on NYS legislators in regard to medical malpractice legislation during the last few weeks of the legislative session. As a direct result of your phone calls, emails and letters, we were able to defeat legislation that would have been devastating to the practice of obstetrics and gynecology across the state. For an update on issues that District II lobbied for and against...keep reading...
Here is a glimpse of our efforts this past year:
Medical Liability Reform MRT Budget
Medicaid Redesign Task Force (MRT)
Governor Andrew Cuomo announced on January 7, 2011 a Medicaid Redesign Team would address ways to save money within the Medicaid program for the 2011-2012 fiscal year.
The Medicaid Redesign Team – charged with reducing costs through program redesign rather than across-the-board cuts – held public hearings across the state. Over 500 organizations participated in oral testimony and over 1000 recommendations were submitted to the task force for consideration.
- District II submitted written testimony to the task force, recommending the establishment of a no-fault neurological impairment program to provide compensation for neurologically impaired infants.
2011-12 Executive Budget Omits Medical Liability Reform
- On Thursday, March 30, Governor Cuomo and legislative leaders passed the on-time $132.5 billion budget. This one year budget will eliminate a $10 billion deficit in New York State.
- District II lobbied the Executive, the Legislature, and the Commissioner of Health in SUPPORT of a $250,000 CAP on non-economic damages.
- The CAP proposal was omitted from the final version of Governor Cuomo’s budget. A New York State Medical Indemnity Fund for neurologically impaired infants passed within the budget and was signed into law. Unfortunately, this new indemnity fund for birth related impairments is NOT ACOG’s long sought-after neurologically impaired infant (no-fault) proposal. Under this new indemnity fund program, impaired newborn cases would proceed through the court system and still require a finding of negligence/causation. The fund offers a source of revenue (other than physicians and hospital insurance carriers) to pay for future health care costs associated with birth related neurological injuries. Hospital malpractice insurance premiums have been lowered as a result of this indemnity fund. Presumably the indemnity fund will reduce premium costs for physicians by lowering medical malpractice insurance carriers’ exposure to the payment of lifelong medical care; health care is often a very large portion of the pay-outs for birth related injury lawsuits. To date, physician premiums have not been affected by the indemnity fund. There remains a strong commitment by the state to ameliorate the liability crisis for obstetricians and hospitals. For more information on the medical indemnity fund Click Here.
Hospital Quality Initiative in the State Budget
- District II has lobbied the state for the adoption and implementation of a statewide quality agenda for perinatal care which would identify essential components of an effective hospital perinatal safety program. District II will be asked to participate in this new statewide hospital quality initiative along with the new Obstetrical Patient Safety Workgroup. The workgroup will be comprised of medical, hospital and academic experts and other stakeholders chosen by the health commissioner.
- The New York State quality initiative will work to improve obstetrical care outcomes and quality of care by identifying and implementing evidence based practices and clinical protocols which can be standardized and adopted by hospitals.
- ACOG will be involved in the development of this statewide perinatal safety strategy.
Budget Rates for Teaching General Hospitals
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State reimbursement for general teaching hospitals currently includes reimbursements for direct and indirect graduate medical education. New state regulations may now incorporate quality related measures pertaining to the inappropriate use of certain medical procedures including, cesarean deliveries.
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The new regulations shall now require reports and information to assess the cost, quality and health system needs for medical education funding. Such regulations may impose a fee on general hospitals sufficient to cover an amount needed to audit the institution’s cost reports.
2011-12 New York State Enacted Budget
Budget Fast Facts
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Total Medicaid spending including federal, state and local spending of $52.6 billion represents a decrease of $337 million, or minus 1 percent.
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The budget includes a CAP of $15.3 billion on Department of Health Medicaid state expenditures, which represent the largest and one of the fastest growing components of state spending.
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The budget process brought together health care providers, labor, government and other Medicaid stakeholders to form Governor Cuomo’s Medicaid Redesign Team (MRT). Tasked with identifying ways to provide critical health care services at lower costs with controlled growth, the MRT recommended a series of proposals to fundamentally restructure and reform New York’s extensive Medicaid program. The budget implements a majority of the MRT recommendations.
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The budget reflects $2.3 billion in spending reductions plus $425 million in lower-than-expected expenditures to achieve the Governor’s original savings target of $2.85 billion.
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The budget implements significant reforms including a major expansion of patient-centered medical homes, better control of home health care services, and care management for individuals with complex and continuing health care needs. New models of integrated care, such as Accountable Care Organizations, will help assure long-term control of health care spending.
2011 LEGISLATIVE SESSION
ACOG actively lobbied in support or opposition to several important proposals. Here is a list of bills ACOG engaged in:
Medical Malpractice
District II participated in several coalitions regarding tort reform this session including the New York Coalition of Specialty Care Physicians, Greater New York Hospital Association (GNYHA), Medical Society of the State of New York (MSSNY), Hospital Association of New York State (HANYS), New York State Osteopathic Society (NYSOMS), New York State Plastic Surgeons, New York State Podiatric Medical Association and the Lawsuit Reform Alliance of New York (LRANYS). The med mal tort reform legislation includes:
Medical Malpractice Litigation Legislation
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Increases contingency fees for attorneys in claims or actions for medical, dental or podiatric malpractice – OPPOSE
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Enacts the "patient privacy protection act" – OPPOSE
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S.3296 (DeFrancisco)/A694 (Lancman)
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Status: This bill passed the Assembly. In the Senate, it passed all committees and was on the docket, but never came for a vote on the floor.
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Strips doctors and hospitals of a basic legal right extended to everyone else in the legal system.
- Enacts the "patient privacy protection act"; prohibits interviews of other party's treating physicians or health care providers in personal injury, medical, dental, or podiatric malpractice or wrongful death actions
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Elimination of Statute of Limitations in Medical Malpractice Cases – OPPOSE
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S.5242 (Fuschillo)/A4852 (Weinstein)
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Status: Remained in the Senate Judiciary and Assembly Codes Committees.
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Gives plaintiffs and their lawyers an unlimited amount of time to discover illness or injury and initiate legal action.
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Lengthens the statue of limitations in medical malpractice cases.
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Alters the statute of limitations for medical malpractice to two years and six months from the time when a person knows or reasonably should have known of the alleged negligent act or omission and knows or reasonably should have known that such negligent act or omission has caused an injury.
- This legislation, if passed, would have altered the limitations of time within which an action for medical malpractice accrued and provided for a one-year revival of previously dismissed actions
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Provides, in tort cases where one defendant has settled, that remaining defendants must elect prior to trial as to reduction in liability – OPPOSE
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S.3766(Bonacic)/A.625(Weinstein)
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Status: In both the Senate and the Assembly, it passed all committees and was on the docket, but never came for a vote on the floor.
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Forces non-settling defendants in medical malpractice cases to make uniformed pre-trial decisions.
- In tort cases where one defendant has settled, that remaining defendants must elect, prior to trial, whether to reduce liability by the amount of the settlement or by the amount of the equitable share of damages delegated to the settler in the verdict.
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Medical Malpractice Reform Act – SUPPORT
- Adversarial Medical Examination Procedure Act - OPPOSE
- A.673 (Lancman)/ S.5373(DeFrancisco)
- Status: In both the Senate and the Assembly, it passed all committees and was on the docket, but never came for a vote on the floor.
- Enacts the "adversarial medical examination procedure act"; authorizes adversarial medical examinations and limits any physician-patient relationship resulting from such a medical examination; provides that the person subject to the examination shall have the right to representation.
Provider Issues
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Allow Collective Negotiations – SUPPORT
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A.2474a (Canestrari)/S.3186a (Hannon)
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Status: This bill passed in the Senate and never moved out of Way and Means Committee in the Assembly.
Would allow physicians to collectively negotiate contract provisions with managed care plans and other insurance entities in order to restore fairness to the contracting process in New York State.
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Such negotiations would be closely monitored by the state.
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Negotiations involving fee-related matters would be prohibited unless an individual managed care plan controls a substantial share of the managed care market.
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District II sent out Legislative Alerts and Support letters.
- Confidential Peer Review – SUPPORT
- Re-credential OB-GYNs – OPPOSE
- S.2054(Kruger)
- Status: Remained in the Senate Finance Committee and was never introduced in the Assembly.
- This legislation attempted to develop a new re-credentialing board of the state and mandated that all licensed physicians throughout New York obtain and maintain medical liability insurance, except for those physicians whose practice is limited to instruction and/or research.
- Was introduced to the Senate Finance.
- Palliative Care Training Requirements – OPPOSE
- A.8176(Rosenthal)
- Status: Remained in the Assembly Rules Committee and was never introduced in the Senate.
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Would require clinical education every four years in pain management and palliative care for every physician, physician assistant, nurse practitioner, nurse and specialist assistant practicing in the state.
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The Establishment of Convenient(Retail) Care Clinics – LEGISLATIVE COMMITTEE TO REVIEW
- Office Based Surgery Legislation – SUPPORT
- Elimination of Nurse Practice Collaborative Agreement with a Physician – OPPOSE
- Licensure for Alternative Medicine Practitioners – NEUTRAL
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A.1937 (Hoyt)/S.1803 (LaValle)
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Status: This bill passed in the Senate and never moved out of Higher Education Committee in the Assembly.
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Would license naturopaths and allow them to prescribe, administer, diagnose and treat patients.
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Amendment was added that eliminated all prescription rights.
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District II circulated a Memo of Opposition.
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District II opposed this legislation because alternative and complementary medicine should not take the place of good, sound medical advice from an MD or DO.
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ACOG withdrew its opposition to this legislation due to last minute amendments agreed to by the bill’s sponsors. The amended and passed version provides that naturopaths can NOT prescribe pharmaceuticals nor conduct surgery and are required to have direct supervision from a licensed physician. Their scope would be similar to a medical assistant. ACOG remained neutral on the final version of the legislation.
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Cord Blood Banking Program – SUPPORT
- A.2519 (Fitzpatrick)
- Status: Remained in the Assembly Health Committee and was never introduced in the Senate.
- This legislation creates a public umbilical cord blood banking program within the Department of Health to promote public awareness of the potential benefits of public cord banking, to promote research into the uses of cord blood, and to facilitate pre-delivery arrangements for public banking of cord blood donations.
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Coverage for Medically Necessary Prescription Drugs and Medical Supplies – SUPPORT
- S.5646 (Hannon)/A.8237 (Rivera)
- Status: This bill passed in the Senate and was delivered to the Assembly Health Committee.
- Requires medical assistance managed care providers to provide coverage for medically necessary prescription drugs and medical supplies.
- This legislation is designed to carry critical fee-for-service patient protections into Medicaid Managed Care to ensure Medicaid beneficiaries, among New York's most vulnerable population, have appropriate access to medically necessary medications regardless of which aspect of the program is managing their drug benefit.
Reproductive Health
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Reproductive Health Act (RHA) – SUPPORT
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A.6112 (Glick)/S.2844(Stewart-Cousins)
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Status: Remained in the Senate Health and Assembly Codes Committees.
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Would provide a fundamental right to choose contraception and the right of a female to determine the course of a pregnancy; authorizes abortion prior to viability; defines terms; and decriminalizes abortion.
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Working in concert with the Governor’s office in 2010 and several women’s health coalition partners, District II re-defined fetal viability in the legislation vis-à-vis a timeframe for an abortion.
- Restriction of state funds from being allocated to Planned Parenthood or any organization which performs abortions – OPPOSE
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A.7841(Katz)
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Status: Remained in the Assembly Health Committee and was never introduced in the Senate.
Amends the public health law and legislative law, in relation to prohibiting state funds from being allocated to Planned Parenthood or any organization which performs abortions.
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ACOG has formed alliances with Family Planning Advocates (fpa), Planned Parenthood (FPA), Pro-Choice New York, NYCLU, NARAL and NYWHA to voice opposition.
- Minors’ Consent of Sexually Transmitted Disease Vaccines – SUPPORT
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A.343 (Paulin)/S.384 (Krueger)
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Status: Remained in the Senate and Assembly Health Committees.
Would allow minors to consent to preventive mechanisms, including vaccinations, for sexually transmitted diseases without parental or guardian consent while preserving the minor’s confidentiality rights.
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Allowing for minors to consent to prevention mechanisms such as the cervical cancer vaccine without parental or guardian consent will hopefully increase access to the HPV vaccine and decrease the rate of HPV infection in young women.
- Emergency Contraception Dispensation – SUPPORT
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A.85 (Paulin)/S.892 (Krueger)
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Status: In the Assembly, it passed all committees and was on the docket, but never came for a vote on the floor. In the Senate, it never moved out of the Insurance Committee.
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Also known as the Unintended Pregnancy Prevention Act, is a legislative method to increase access to emergency contraception (EC).
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District II sent support memo to Assembly leadership.
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The legislation would authorize nurses and pharmacists to dispense EC pursuant to a non-patient specific prescription and require insurance policies that cover prescription contraception to cover EC when it is provided by a non-patient specific prescription or over-the-counter (OTC).
- Responsible Sexual Education with the Healthy Teens Act – SUPPORT
Anti-Smoking
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Prohibits Smoking in Private Passenger Cars, etc. Where Minors Less Than 14 Years of Age are Passengers – SUPPORT
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S.3082(Stavisky)/A.7285(Weprin)
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Status: In the Assembly, it passed all committees and was on the docket, but never came for a vote on the floor. In the Senate, it never moved out of the Health Committee.
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Would prohibit smoking in private passenger cars, vans or trucks where minors less than 14 years of age are passengers and violators would be subject to a fine of no more than $100.
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District II supports legislation that would reduce the effects of secondhand smoke on children as secondhand tobacco smoke is a major preventable contributor to acute and chronic adverse health outcomes.
- Increasing the Tobacco Purchasing Age – SUPPORT
- Decrease Smoking at Playgrounds – SUPPORT
Tort Reform Coalition Legislation
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Securing Assembly co-sponsorship for our Trespasser Responsibility Bill
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Voicing strong opposition to Martin Act expansion
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Seeking introduction of a bill which will ensure fairness in the process of expert witness disclosure (the "Keegan Rule")
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Seeking introduction of a bill which would create transparency in private attorney contracting by the Attorney General (TiPAC)
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Reiterating our strong support of the Medical Liability Reform Act