June 8, 2024

The 2024 Legislative Session has concluded and lawmakers are returning to their districts to connect with voters and (in many cases) continue their campaigning in light of the coming November elections.  Governor Hochul’s surprise announcement earlier this week that she was temporarily halting the implementation of New York City’s congestion pricing initiative shook up what had been a rather uneventful end of the legislative year.  The congestion pricing tax was slated to take effect on June 30 and would have charged a base daytime toll of $15 for drivers entering Manhattan below 60th Street.  The Governor floated an alternative proposal that would have created a ‘payroll mobility tax’ on NYC employers however numerous lawmakers rejected this possibility outright and Senator Andrea Stewart-Cousins, the majority leader, told reporters late Friday that her caucus had not been able to rally around any of the budget proposals being offered in the session’s final hours and would leave for the year without a legislative fix to the MTA budget hole that now exists.  The MTA Congestion Pricing initiative was set to increase revenue for the MTA by close to $15B over 15 years.   It was also the primary driver of funds the MTA says it requires to implement other critical initiatives.  Conversations around how to close the gaping MTA budget hole created by the delay of the congestion pricing tax will continue with some lawmakers making vague statements about use of NYS ‘rainy day’ general funds to plug the holes.

Given the significant struggles we have experienced with passage of our OMIG Audit Reform bill where we have been told time and again that the state cannot afford to give up or reduce the funds returned to the state resulting from aggressive OMIG audit tactics, we find the mere thought of using rainy day funds to plug the hole deeply disappointing.  The OMIG bill did not get through the Assembly before the end of session despite the Senate having passed it by a vote of 60-0 and despite constant advocacy, numerous bill amendments to satisfy the concerns of all parties, and significant financial resources spent to ensure we were pushing a bill that met federal and state standards and that did not conflict with OMIGs primary mission to root out fraud from the Medicaid system.  As we have stated before, the vast majority of OMIG audit take backs are not based on findings of fraud – they are based on human error that is unrelated to the provision of services or the quality of those services.  This is clearly a state budget issue in which the state is capitalizing on audits that disable and sometimes result in the closure of essential safety net services.  Having said this, there is absolutely no way we will give up this fight.  In the days ahead we will regroup with our leadership partners and make a plan to get a meaningful bill done.

The good news from the last days of session include the passage (in both houses) of many bills of interest to NYS Council members including A.901-A (McDonald)/S.1267-A (Breslin),that would ensure Medicaid beneficiaries are protected from unreasonable step therapy protocols.  The bill limits the use of step therapy – a state Medicaid ‘fail first’ policy that requires patients to fail on one or more NYS Preferred Drug List medications before he/she can receive the exact medication prescribed by the treating physician.  The bill doesn’t eliminate the use of step therapy but it does make some important changes that limit the impact of the policy on the course of treatment for Medicaid beneficiaries.  Specifically, the legislation will require that step therapy protocols established by a utilization review agent must require the use of a prescription drug that is approved by the FDA for treatment of the medical condition and/or be supported by current evidence-based clinical guidelines, and:

• only require an insured person to try and fail on two drugs within one therapeutic category before providing coverage of the prescribed drug;
• only require an insured to try a step-therapy required drug for 30 days or less or a duration of treatment supported by current evidence based for the medical condition being treated, and 
• only be imposed on an insured if a therapeutic equivalent to the prescribed drug is available. 

The bill would also prohibit use of step therapy for a newly insured person when the insured has already completed step therapy for that drug under a prior plan, so long as the enrollee or provider submits information demonstrating completion of a step therapy protocol of the prior plan within the past 365 days or be imposed on an insured for a prescribed drug that was previously approved for coverage.  There are additional elements of the legislation that we will outline in greater detail in the days to come.

A3587A/A7188A also passed in both houses in the wee hours before session concluded.  It would establish a rural suicide prevention council to identify barriers to mental health and substance use treatment and prevention services and other policies, practices, resources, services, and potential legislation that aim to reduce death by suicide and suicide attempts and acknowledge the demographic and cultural differences in rural communities.  

Another bill that passed in both houses that was sponsored by Senate MH Chair Samra Brouck and Senator Darling (S9787/A7395)would require the office of mental health to establish peer service qualification programs.  Specifically, the bill amends various sections of mental Hygiene Law (MHL) to add new definitions of Adult Mental Health Peer, Family Mental Health Peer and Youth Mental Health Peer, as well as definitions of Certified Mental Health Peer, Credentialed Family Peer, and Credentialed Youth Peer.  The legislation also allows credentialing/certification programs to be approved by the OMH Commissioner. 

A. 6839A (Gunther) and S. 8660 (Fernandez), abill that would establish a multi-agency study group to make recommendations regarding the optimal pension and retirement plan alternatives which could be made available to not-for-profit human services corporations in NY did not move beyond the first committee the bills were sent to after being introduced.  

Assembly Health Chair Amy Paulin and Senate Health Chair Gustavo Rivera led the charge on several bills that passed both houses including a bill that would allow physician assistants to serve as primary care practitioners for purposes of Medicaid managed care plans (S2124/A7725).  Current statutory language defining primary care practitioners in the NYS Medicaid program excludes physician assistants from serving as primary care practitioners.  The bill is intended to expand access to primary care services.

Another Rivera/Paulin bill (S8965-A6799-B) would establish a drug-induced movement disorders education program.  Specifically the bill establishes a drug-induced movement disorder screening education program; provides that the department shall develop a program to educate the public about the importance of screening for drug-induced movement disorders, develop and disseminate educational materials for healthcare providers regarding treatment for drug-induced movement disorders, and eliminate bias and reduction of stigma for people living with drug-induced movement disorders related to the treatment of mental health conditions.

And finally, a package strongly supported by state Attorney General Letitia James and Hochul to restrict social media entities’ ability to collect and share the personal data of children passed before the session concluded.  They also have successfully pushed a bill that limits addictive feeds on popular social media sites, allowing children to opt in to chronologic feeds rather than algorithmic content.

Other bills of interest that did not pass in both houses before the end of the session include:

S7288B, a bill that would limit cost share and deductible expenses for New Yorkers in treatment for substance use disorders.  This year the bill passed the Senate but there is no ‘same as’ bill / sponsor in the Assembly to date.

S02451-Comrie /A10458 – Bichotte-Hermelyn, a bill we vigorously opposed that would amend not-for-profit corporation law and require not for profit agencies of a certain size to comply with New York’s Open Meetings Laws as well as Article 6 – the Freedom of Information Act did not pass in either house.  The bill advanced in the Senate but did not move to a calendar for a full house vote before the end of session whereas the Assembly bill did not move out of the first committee it was sent to after being introduced.

A8075D/S8991, a bill that would add more FDA-approved opioid overdose reversal tools to the state’s tool kit was passed by the Assembly but the Senate failed to act on it.

S.5329-E (Harckham)/A.6813-B (Paulin) is our OMIG Audit Reform bill.  The Senate passed the bill last week by a vote of 60-0 however the Assembly did not move the bill out of the Ways & Means Committee and to the floor for a full house vote.  Note:  Two years ago both houses of the legislature passed earlier versions of the bill however the Governor vetoed it.  Last year the Senate passed the bill but the Assembly failed to move it to the floor for a full house vote.

S8412A (Fernandez)/A9981-Gonzalez Rojas, a bill that would have directed that at least ten percent of funds from the opioid stewardship fund shall be invested in recovery services and supports and that would have required an annual report to the legislature regarding funds distributed from the opioid stewardship fund, and make the opioid stewardship fund passed in the Senate but died in the Assembly Health Committee.

S6733 – Rivera is the Senate version of a bill that would add FQHCs to the list of providers that are entitled to be reimbursed at the face-to-face rate for telehealth services under certain conditions.  The Senate passed the bill however the Assembly version has not gotten out of committee.  As you may recall, the enacted state budget included a change to the sunset for the continued broad use of telehealth to 2025 (was to expire April 1, 2024).