Update on the Chapter Amendment to the NYS Lyme Disease Patient Rights/Doctor Protection Law
General Information
The amended Lyme Disease Patient Rights/Doctor Protection Bill has been introduced in both houses of the NYS legislature (A2554-2015, S1693-2015).
It is our understanding that the legislature is not fully active and so we are not sure how long it will be before they are passed and signed into law.
On January 21st, 2015, the NYS Senate Rules Committee unanimously approved S1693. It is on the calendar to be voted on by the full NYS Senate on January 22nd and January 26th, 2015. The sponsor is NYS Senator Kemp Hannon.
The companion bill to S1693, A2554 was introduced in the NYS Assembly on January 20th, 2015 and was referred to the Committee on Health. The sponsor is NYS Assemblywoman Didi Barrett.
Understanding the Changes in the Amended Bill
1) If OPMC determines that the complaint is based upon a treatment modality, under the amended law, no further review shall be conducted and no charges shall be brought.
"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 CHARGES SHALL BE BROUGHT. NOTHING IN THIS SECTION SHALL PRECLUDE THE DIRECTOR FROM MAKING SUCH A DETERMINATION EARLIER IN, OR SUBSEQUENT TO, A PRELIMINARY REVIEW."
2) The amended bill is retroactive and will apply to all investigations and cases that are open when the bill is signed into law.
"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."
3) An updated memo makes clear that the goal of the law is to restore balance to the current system of physician reporting in order 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."
In other words the OPMC will still be able to investigate cases of medical misconduct, but it will make it more difficult for competitors and insurance companies to abuse the systems of physician reporting by selectively reporting physician's treating Lyme patients in an attempt to harass and intimidate them.
Thanks to everyone who worked so hard to bring this very important bill to fruition!
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.
Text
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 ASSEMBLY, 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 PRELIMINARY 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 limited to, varying modalities used in the treatment of Lyme disease and other tick-borne diseases.
[As used in this subdivision the term "licensee" 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 effectively treats human disease, pain, injury, deformity or physical condition 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 exonerate such licensee from otherwise applicable professional requirements]
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted.
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 CHARGES SHALL BE BROUGHT. NOTHING IN THIS SECTION SHALL PRECLUDE THE DIRECTOR FROM MAKING SUCH A DETERMINATION EARLIER IN, OR SUBSEQUENT TO, A PRELIMINARY 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.
[ 01-29-2015, 02:33 PM: Message edited by: KarlaL ]
Posted by poppy (Member # 5355) on :
Thank you for letting us know about this. What I wonder is whether the OPMC will adhere to the spirit of this legislation, because they made some pretty telling remarks earlier. Like they don't go after lyme treatment itself, they find some other hook to hang it on. And we have certainly seen them do that in the past. Just like in CT with Dr. Jones case. It was not the treatment itself that the board used as their pretext.
I hope there will be some administration oversight to make sure this does not happen in NY.
Posted by KarlaL (Member # 29631) on :
Your welcome! No law is perfect, but this law does send a clear message to the NYS Office of Professional Misconduct (OPMC) that the NYS legislature (and Governor) do NOT want them to continue to "game the system" and harass Lyme treating physicians.