Legislation Affecting Hospitals
June 28, 2018
As we noted in previous blogs, the New York State Legislature has addressed a number of significant hospital related issues during the 2018 session, including indigent care funding (discussed here), the third iteration of the Statewide Health Care Facility Transformation Program (discussed here) and the funding of the Health Care Transformation Fund in connection with the acquisition of a New York-based payor Fidelis (discussed here). Yet, just like the legislative session, momentum on hospital related issues seems to have slowly fizzled out. Between the enactment of the 2018-19 Budget (discussed at length here) and the close of session only a small number of the bills that made it through both houses directly addressed hospitals. The following hospital related bills currently await the Governor’s signature, veto or amendment.
Discharge of Patients with Mental Health Issues: (S.8769 by Senator Ortt/A.10644 Assemblymember Gunther) – This bill Requires the Office of Mental Health (OMH) to develop educational materials to be provided to individuals who have or appear to have a mental health disorder at the time they are discharged from a hospital and provide such materials to general hospitals across the state. Pursuant to the bill, OMH, in cooperation with the Department of Health (DOH), must:
- provide guidance to all general hospitals regarding the utilization of new or existing policies and procedures for the identification, assessment and referral of individuals with a documented mental health disorder or who appear to have or be at risk for a mental health disorder;
- establish and implement training for all individuals licensed or certified pursuant to Title Eight of the Education Law who provide direct patient care regarding the policies and procedures developed pursuant to the bill.
If a general hospital does not directly provide mental health disorder services, then OMH and DOH will provide the necessary information to refer individuals in need of such services to, and coordinate with, mental health service programs licensed under Article 31 of the Mental Hygiene Law that provide such services.
Hospital and Nursing Home Bond Bill: (S.8648 by Senator Hannon/A.10673 Assemblymember Paulin) – This bill increases the authorization of the Dormitory Authority of New York (DASNY) to issue hospital and nursing home project bonds and notes from $15.8 billion to $16.6 billion. To date, DASNY – which provides funding mortgage loans and project loans to not-for-profit hospitals and nursing home corporations through bonds authorized by the Medical Care Facilities Finance Act (MCFFA) – has already issued bonds exceeding $14.8 billion, and has an additional $840 million in bond financing projects in its pipeline. This would be the third increase under the MCFFA since its inception; the Legislature granted $800 million extensions in 2009 and 2011.
Sexual Assault Victim’s Bill of Rights: (A.8401C by Assemblymember Simotas / S.8977 Senator Hannon) – This bill requires the Division of Criminal Justice Services (DCJS), the Office of Victim Services, hospitals and other health care providers and victim advocacy organizations to publish a Sexual Assault Victim Bill of Rights, informing victims of sexual assault of their rights under state law. More specifically the Bill of Rights:
- will be prominately published on the DCJS’s website, in the ten most commonly spoken languages in New York, and updated by DCJS as state law changes;
- hospitals will be required to provide the Bill of Rights to every presenting sexual offense victim; and
- must include a plain English explanation that the victim has the right to:
- consult with a local rape crisis or victim assistance organization, or have such organization summoned by the hospital or authorities on their behalf, and have a representative of such organization accompany the victim through the sexual offense examination;
- certain post-exposure treatment therapies, including a seven day starter pack of HIV prophylaxis, at no cost;
- a health care forensic examination at no cost, as well as the right to decline seeking coverage for the same from their own insurance company and have the procedure be reimbursed instead through the Office of Victim Services;
- receive information regarding the provision of emergency contraceptives;
- be offered contact information for the law enforcement or prosecutorial agency with jurisdiction over the offense and its prosecution, and to be informed, upon request, of the date and location at which such sexual offense evidence kit was assessed for Combined DNA Index System eligibility and whether or not a DNA profile match was identified (though law enforcement will have the ability to delay release of the suspect’s information to the victim in appropriate circumstances);
- be notified between 10 and 30 days prior to the transfer of a sexual offense evidence kit from the hospital to another storage facility;
- be notified of their right to have their sexual offense evidence kit maintained at an appropriate storage facility for at least 20 years from collection, and the right to be notified by such facility at least 90 days before the expiration of the storage period;
- to decide whether or not to report the offense to law enforcement
Importantly, prior to commencing a physical examination or commencing an interview of a sexual offense victim, a medical provider or law enforcement entity must inform the victim of the Bill of Rights, provide a copy of the same, and offer to explain the Bill of Rights to the victim.
Standing Orders for the Care of Newborns: (A.9950B Assemblymember Gottfried/S.8774-B Senator Hannon) – This bill aims to clarify confusion surrounding the utilization by hospitals of standing orders governing the care of healthy newborn infants by registered nurses. The Legislature expressed concern that such standing orders were not being widely used as a result of confusion over their legality. The bill provides that hospitals may utilize non-patient specific standing orders for the care of healthy newborns by attending registered nurses when directed by the attending practitioner, or when the attending nurse determines it would be clinically appropriate and consistent with hospital policies and procedures, provided that the following requirements and conditions are met:
- the standing order must include the circumstances under which departure from the order is required due to the health of the baby, mother, or both;
- an attending nurse may determine that a departure from the standing order is required prior to receiving direction from the attending practitioner, so long as such an action is within his or her lawful scope of practice and the policies and procedures of the hospital;
- to the extent an attending nurse determines a departure is necessary, he or she must notify the attending practitioner;
- the standing order must provide, the times and manner that an attending practitioner shall review and acknowledge in writing the services and care provided to the newborn under the standing order and the newborn’s condition;
- a standing order may provide for circumstances in which it shall not be implemented , or implemented only at the order of an attending practitioner, including in circumstances involving insufficient prenatal care; a birth not attended by an attending practitioner, a birth that occurs outside of the hospital, or premature or low birthweight; and,
- a standing order must be dated, timed, and authenticated promptly in the patient’s medical record by the attending practitioner in keeping with the laws, regulations and rules and procedures of the hospital;
Standing orders may only be implemented if the implementing hospital:
- establishes that the order has been reviewed and approved by the hospital’s medical staff and nursing and pharmacy leadership, and signed by a physician affiliated with the hospital (or by a midwife associated with the hospital in the case of a midwifery birth center);
- demonstrates that the order is consistent with the nationally recognized evidence-based guidelines; and,
- ensures that the periodic and regular review of the order is conducted by the hospital’s medical staff and nursing and pharmacy leadership to determine the continuing usefulness and safety of the order.
Furthermore, all standing orders must be consistent with the lawful scope of practice of a registered nurse, and are subject to further regulations promulgated by the Commissioner of Health governing the terms, procedures and implementation of such orders.
Clinical Laboratory Supervision: (A.10781A by Assemblymember Gottfried / S.7521-A Senator Hannon) – This bill establishes the supervisory requirements for clinical laboratories. At present, clinical laboratories are required to have a supervisor physically present on site at all times. The Legislature has expressed concern that such a requirement is far in excess of what is required under the federal Clinical Improvement Act, and compliance is too costly and onerous for hospitals – particularly those hospitals in rural and upstate locations. This bill seeks to reduce the cost of compliance by allowing supervision via phone or synchronous 2-way AV communication, and by allowing a single supervisor to oversee up to five laboratories. More specifically, pursuant to this bill:
- each clinical laboratory must have at least one or more supervisors available to oversee the technical personnel and reporting of findings, the performance of tests requiring special scientific skills, and be responsible for the proper performance of all laboratory procedures in the absence of the laboratory’s director;
- a person is qualified to act as a supervisor if:
- they are qualified to act as a director pursuant to regulations promulgated under 573 of the Public Health Law;
- additionally, the DOH has discretion to allow a director to also serve as the supervisor, depending on the size and functions of the lab;
- the supervisor must be on site or available by phone or two-way synchronous electronic audio visual communications (pursuant to yet to be drafted regulations on the subject);
- where the supervisor is off site, and the person performing the test qualifies as a medical technologist pursuant to regulations promulgated under § 574, 576 and 3121 of the Public Health Law, the results of such work must be reviewed by the supervisor or director during his or her next duty period and a record of such review must be maintained; and
- technical personnel in the specialty of cytology must be supervised by an individual qualified pursuant to regulations promulgated under § 574, 576 and 3121 of the Public Health Law.
For additional information on any of the foregoing bills, please do not hesitate to contact Farrell Fritz’s Regulatory & Government Relations Practice Group at 518.313.1450 or NYSRGR@FarrellFritz.com.