March 16, 2015- The "amendment" to the NY State bill that wasn't shared with the public before the bill was pushed through last year has passed through the process again and was quickly signed by the Governor, with obviously no fan fare.
What? No PARTY to celebrate? No rush to put out press releases and claim credit? No announcements on Senator Hannon, the NY Lyme groups, or the NY Governors' websites? I guess not!
Why? Because it is worse now for doctors in NY than it was before this bill was passed, if you can believe that. This LAW, well, let's just say, like ticks, it sucks too.
To be honest, as an invitee to the group working on this bill and after doing a lot of work for this effort, I eventually had to get away from the the people that were bent on getting this bill passed no matter the consequences because it reeked with major PREDICTABLE problems.
Plus, my opinions were not welcomed since they were in objection to moving forward and allowing Senator Hannon, with the NIH/IDSA sitting in his lap, to control the outcome and final wording of the bill by way of the unseen amendment.
I felt it was dangerous to take risks with doctor's livelihoods and patients lives and when I couldn't convince others to see that reasoning I bowed out (or was tossed out, I forget?). And yes, I am angry. This should never have happened.
This action not only negatively affects the future, it destroyed the hard work of many good people over many years, making those efforts a waste of time and energy, yes, my time and energy too.
You don't play with politicians, especially those who have publicly not supported our efforts in the past. And you don't play with people's lives, period.
But, don't take my word for it, here is a summary of the anticipated problems from the LDA that was written before the amendment was passed. My words are simple.... you don't hand someone a blank check with your signature on it, especially when they've been horribly bad to you in the past, and let them fill out what ever they want on the check, which is EXACTLY what was done with this bill.
In Dec 2014, Governor Cuomo signed the Lyme disease doctor protection bill into law. When he signed, he indicated he only signed on the condition an amendment would be passed in the New Year (2015), and at that time, the amendment was not made public, but some groups were told it would be just a "technical" amendment.
Due to the uncertain nature of that amendment and lack of process transparency, the LDA withheld its judgment on the New York bill with the upcoming amendment and how it might affect New York doctors treating long term. After examining the amendment, now released by NYS and yet to be passed, the LDA does NOT support its adoption.
On balance, the proposed new language may be more harmful than helpful in protecting licensed health care practitioners from intrusive investigations lacking a meritorious basis and may facilitate rather than discourage investigations (no matter how they are labeled) launched to find something wrong. The question becomes, "Why pass something that, in the best case, would be unlikely to provide any significant benefit or relief, but may likely make things significantly worse?"
(See amendment text here http://open.nysenate.gov/legislation/bill/S1693-2015. The weather has complicated the scheduling of any actions, so check back here regularly to find out if anything can or needs to be done).
READ MORE HERE- http://www.lymediseaseassociation.org/index.php/state-activities/new-york/1327-lyme-protection-amdt-may-hurt-ny-docs
Here is the official information on the amendment, that is now a law.
Relates to the identification, charging, reporting and investigation of charges of professional misconduct by health care professionals.
Same as:
Versions
Sponsor:
Law Section:
Law:
VOTE: COMMITTEE VOTE: - Rules - Jan 21, 2015
Ayes (24): Skelos, DeFrancisco, Bonacic, Carlucci, Farley, Flanagan, Hannon, Golden, LaValle, Little, Marcellino, Nozzolio, Seward, Valesky, Young, Stewart-Cousins, Breslin, Dilan, Espaillat, Gianaris, Hassell-Thompson, Krueger, Montgomery, Perkins
Excused (1): Parker
VOTE: FLOOR VOTE: - Feb 9, 2015
Ayes (61): Addabbo, Amedore, Avella, Bonacic, Boyle, Breslin, Carlucci, Comrie, Croci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Funke, Gallivan, Gianaris, Golden, Griffo, Hamilton, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Montgomery, Murphy, Nozzolio, O'Mara, Ortt, Panepinto, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Savino, Serino, Serrano, Seward, Skelos, Squadron, Stavisky, Stewart-Cousin, Valesky, Venditto, Young
BILL NUMBER:S1693 REVISED MEMO 01/21/2015
TITLE OF BILL: An act to amend the public health law, in relation to identification, charging, reporting and investigation of charges of professional misconduct by health care professionals
PURPOSE:
A law adopted in December 2014 codified a nine (9) year old policy used by the Office of Professional Conduct (OPMC) for matters about New York physicians. The purpose of this longstanding policy, and the enactment into law was to continue an appropriate response to complaints about physicians and to promote effective care of patients, while allowing varying modalities used in treatment, including treatment of tick-borne diseases such as Lyme, even if that effective treatment had not achieved universal acceptance by all physicians. This chapter amendment assures preliminary review of the facts and circumstances of all complaints, a process currently carried out under OPMC protocols.
SUMMARY OF PROVISIONS:
Section 1 amends subdivision 9-b of section 230 of the public health law to clarify that investigations by OPMC of complaints based solely upon the recommendation or provision of a treatment modality to a particular patient that is not universally accepted shall be limited to a preliminary review. It also preserves OPMCs ability to identify such cases.
Section 2 amends subdivision 10 of section 230 of the public health law to clarify that once a preliminary review, including an internal clinical review, is done as a result of a complaint, OPMC shall determine if the complaint was based solely upon the recommendation or provision of a treatment modality that effectively treats human disease, pain, injury, deformity or physical condition for which the licensee is treating a patient but is not universally accepted by the medical community. If OPMC determines that is the case, no further review shall be conducted and no charges shall be brought. OPMC may make such determination prior to the conclusion of the preliminary review. Finally, the bill re-states that "the licensee shall otherwise abide by all other applicable professional requirements," to ensure OPMCs continued strong role in protecting the public.
Section 3 sets forth the effective date.
JUSTIFICATION:
Both houses of the legislature unanimously approved legislation (S 7854/A 7558-B) in June, 2014 which codified OPMC internal policy written in 2005 prohibiting the identification, investigation or charging of a practitioner based solely on their recommendation or provision of a treatment modality that is currently not universally accepted by the medical community, but that effectively treats human disease, pain, injury, deformity or physical condition. That OPMC guidance, like the legislation, was based on existing law governing the practice of medicine (Article 131 of the Education Law) and specifically section 6527 paragraph 4 of the Education Law which
clarifies that the Article shall not be construed to, among other things, affect or prevent the physician's use of "whatever medical care, conventional or non-conventional, which effectively treats human disease, pain, injury, deformity or physical condition."
This original legislation was signed into law in December, 2014 with the understanding that the amendments contained in this bill would be adopted as a chapter amendment to further clarify and address concerns that were raised. More specifically, this bill ensures that the OPMC may investigate all complaints as it is mandated to do, ensuring that patient treatment is appropriate and effective. However, this bill provides that such investigation shall be limited to a preliminary review, which may include an internal clinical review, where such complaint or report is based solely upon the recommendation or provision of a treatment modality that is not universally accepted by the medical profession, including but not limited to treatment of Lyme disease and other tick borne diseases. This bill further clarifies that by the conclusion of a preliminary review by OPMC, a determination shall be made as to whether the complaint is based solely upon a treatment modality that is not universally accepted but is effective in treating the condition the licensee is treating a particular patient for and, if that is the case, no further review nor any charges shall be brought.
As clearly stated in this bill, the original legislation, and OPMC's own 2005 guidance, the treatment modality that is recommended or provided must be one that "effectively treats human disease, pain, injury, deformity or physical condition." This legislation provides the appropriate balance to ensure that patients seeking and receiving effective treatment from licensees, that may not be universally accepted by the medical community, can get the care they seek, while at the same time insuring that OPMC's role in identifying and responding to concerns or complaints of misconduct by licensees continues to be strong and protective of our health care system as it should. This bill, like the original, affirmatively states that the licensee shall otherwise abide by all other applicable professional requirements.
LEGISLATIVE HISTORY:
This is an amendment to Chapter 532 of the laws of 2014.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This bill shall take effect immediately and shall apply to any professional discipline matter or administrative or judicial review thereof pending on or after the date on which this act takes effect; provided amendments to section 230 PHL made by section 2 of the bill shall expire therewith.
STATE OF NEW YORK ________________________________________________________________________ 1693 2015-2016 Regular Sessions IN SENATE January 14, 2015 ___________
Introduced by Sen. HANNON -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the public health law, in relation to identification, charging, reporting and investigation of charges of professional misconduct by health care professionals THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 9-b of section 230 of the public health law, as added by chapter 532 of the laws of 2014, is amended to read as follows: 9-b. Neither the board for professional medical conduct nor the office of professional medical conduct shall [identify,] charge A LICENSEE WITH MISCONDUCT AS DEFINED IN SECTIONS SIXTY-FIVE HUNDRED THIRTY AND SIXTY-FIVE HUNDRED THIRTY-ONE OF THE EDUCATION LAW, or cause a report made to the director of such office to be investigated BEYOND A PRELIMI- NARY REVIEW AS SET FORTH IN CLAUSE (A) OF SUBPARAGRAPH (I) OF PARAGRAPH (A) OF SUBDIVISION TEN OF THIS SECTION, WHERE SUCH REPORT IS DETERMINED TO BE based solely upon the recommendation or provision of a treatment modality TO A PARTICULAR PATIENT by [a] SUCH licensee that is not universally accepted by the medical profession, including but not limit- ed to, varying modalities used in the treatment of Lyme disease and other tick-borne diseases. [As used in this subdivision the term "licen- see" shall mean a physician, physician's assistant, and specialist's assistant.] When a licensee, acting in accordance with paragraph e of subdivision four of section sixty-five hundred twenty-seven of the education law, recommends or provides a treatment modality that effec- tively treats human disease, pain, injury, deformity or physical condi- tion FOR WHICH THE LICENSEE IS TREATING A PATIENT, the recommendation or provision of that modality TO A PARTICULAR PATIENT shall not, by itself, constitute professional misconduct. [This prohibition shall not exoner- ate such licensee from otherwise applicable professional requirements]
THE LICENSEE SHALL OTHERWISE ABIDE BY ALL OTHER APPLICABLE PROFESSIONAL REQUIREMENTS. S 2. Subparagraph (i) of paragraph (a) of subdivision 10 of section 230 of the public health law, is amended by chapter 542 of the laws of 2000, is amended to read as follows: (i) (A) The board for professional medical conduct, by the director of the office of professional medical conduct, may investigate on its own any suspected professional misconduct, and shall investigate each complaint received regardless of the source. BY THE CONCLUSION OF A PRELIMINARY REVIEW, INCLUDING AN INTERNAL CLINICAL REVIEW, THE DIRECTOR SHALL DETERMINE IF A REPORT IS BASED SOLELY UPON THE RECOMMENDATION OR PROVISION OF A TREATMENT MODALITY BY A LICENSEE THAT IS NOT UNIVERSALLY ACCEPTED BY THE MEDICAL PROFESSION, INCLUDING BUT NOT LIMITED TO VARYING MODALITIES USED IN THE TREATMENT OF LYME DISEASE OR OTHER TICK-BORNE DISEASES. UPON A DETERMINATION BY THE DIRECTOR THAT A REPORT IS BASED SOLELY UPON THE PROVISION OF A TREATMENT MODALITY THAT IS NOT UNIVERSALLY ACCEPTED, NO FURTHER REVIEW SHALL BE CONDUCTED AND NO CHARG- ES SHALL BE BROUGHT. NOTHING IN THIS SECTION SHALL PRECLUDE THE DIRECTOR FROM MAKING SUCH A DETERMINATION EARLIER IN, OR SUBSEQUENT TO, A PRELIM- INARY REVIEW. (B) The director of the office of professional medical conduct shall cause a preliminary review of every report made to the department pursuant to section twenty-eight hundred three-e as added by chapter eight hundred sixty-six of the laws of nineteen hundred eighty, sections twenty-eight hundred five-l and forty-four hundred five-b of this chapter, and section three hundred fifteen of the insurance law, to determine if such report reasonably appears to reflect physician conduct warranting further investigation pursuant to this subparagraph. S 3. This act shall take effect immediately and shall apply to any professional discipline matter or administrative or judicial review thereof pending on or after the date on which this act shall take effect; provided, however, that the amendments to subparagraph (i) of paragraph (a) of subdivision 10 of section 230 of the public health law made by section two of this act shall not affect the expiration of such paragraph and shall be deemed to expire therewith.
Link for above information here:
Promises of a good bill passing, but they really don't know what it was going to say.
That is D-A-N-G-E-R-O-U-S!!!!
LYME BILL UPDATE
We did it! On December 17, 2014, Governor Cuomo signed bill S7854 subject to a chapter amendment which will be handled in the new legislative session in January. While the details of the amendment haven't yet been made public, we have been advised that it is favorable and strengthens the legislation.
Thanks to everyone who worked to make this happen!