The New York State Senate

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3551--A
                                                        Cal. No. 138

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 25, 2011
                               ___________

Introduced by M. of A. GOTTFRIED, WEISENBERG, GALEF, PAULIN, CYMBROWITZ,
  LAVINE,  JAFFEE,  MONTESANO, MAGNARELLI -- Multi-Sponsored by -- M. of
  A.  BRENNAN,  BURLING,  CORWIN,  CROUCH,  MAGEE,  McENENY,  P. RIVERA,
  SAYWARD  --  read  once  and  referred  to  the Committee on Health --
  ordered to a third reading -- passed by Assembly and delivered to  the
  Senate,  recalled  from  the  Senate, vote reconsidered, bill amended,
  ordered reprinted, retaining its place on the order of third reading

AN ACT to amend the public health  law,  in  relation  to  referrals  of
  patients for health or health related items or services

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph (g) of subdivision 2  of  section  238-a  of  the
public  health  law,  as  added  by  chapter 803 of the laws of 1992, is
amended to read as follows:
  (g) [in the case of any other financial relationship which the  public
health  council  determines  and  specifies  in  regulations, subject to
approval by the commissioner, does not pose a substantial risk of  payor
or  patient  abuse  in  relation  to patient benefits consistent, to the
extent practicable, with  financial  relationships  specified  in  regu-
lations  adopted  pursuant  to  federal  law applicable to reimbursement
pursuant to title XVIII of the federal social  security  act  (medicare)
for  clinical  laboratory  services  provided  to beneficiaries of title
XVIII of the federal social security  act  (medicare)]  ANY  ARRANGEMENT
THAT, UNDER THE FEDERAL STATUTORY PROHIBITION ON CERTAIN REFERRALS CODI-
FIED  AT  42 U.S.C. 1395NN AND REGULATIONS PROMULGATED THEREUNDER, WOULD
BE AN ARRANGEMENT BETWEEN A PRACTITIONER (OR  IMMEDIATE  FAMILY  MEMBER)
AND A HEALTH CARE PROVIDER THAT:
  (I) WOULD NOT BE A FINANCIAL RELATIONSHIP IF EXISTING BETWEEN A PHYSI-
CIAN  AND AN ENTITY, AS SUCH TERMS ARE DEFINED UNDER SUCH FEDERAL LAW OR
REGULATIONS; OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02276-03-2

A. 3551--A                          2

  (II) WOULD SATISFY THE REQUIREMENTS OF AN EXCEPTION RELATING TO FINAN-
CIAL RELATIONSHIPS PROVIDED UNDER SUCH FEDERAL  LAW  OR  REGULATIONS  IF
EXISTING  BETWEEN  A  PHYSICIAN AND AN ENTITY, AS SUCH TERMS ARE DEFINED
UNDER SUCH FEDERAL LAW OR REGULATIONS.
  AN  ARRANGEMENT  SHALL NOT BE EXCEPTED UNDER THIS PARAGRAPH IF IT IS A
PARTICULAR TYPE OF FINANCIAL RELATIONSHIP THAT WOULD POSE A  SUBSTANTIAL
RISK  OF  PAYOR  OR  PATIENT  ABUSE,  AS DETERMINED AND SPECIFIED BY THE
PUBLIC HEALTH AND HEALTH PLANNING COUNCIL  IN  REGULATIONS,  SUBJECT  TO
APPROVAL BY THE COMMISSIONER.
  S  2.  Paragraph  (c)  of subdivision 6 of section 238-a of the public
health law, as added by chapter 803 of the laws of 1992, is  amended  to
read as follows:
  (c) provided further, however, that the following shall not constitute
a referral by a referring practitioner:
  (i) a request by a practitioner for practitioners' services consisting
solely of professional services to be furnished personally by that prac-
titioner, or under that practitioner's supervision;
  (ii)  a  request  by  a pathologist for clinical diagnostic laboratory
tests and  pathological  examination  services,  if  such  services  are
furnished  by or under the supervision of such pathologist pursuant to a
consultation requested by another practitioner; [and]
  (iii) a request by a  radiologist  for  diagnostic  x-ray  or  imaging
services,  if such services are furnished by or under the supervision of
such radiologist pursuant to a consultation requested by another practi-
tioner[.]; AND
  (IV) A REFERRAL FOR ANY SERVICES EXCEPTED UNDER 42 U.S.C. S 1395NN AND
REGULATIONS PROMULGATED THEREUNDER, UNLESS THE PUBLIC HEALTH AND  HEALTH
PLANNING  COUNCIL  DETERMINES  AND  SPECIFIES IN REGULATIONS, SUBJECT TO
APPROVAL BY THE COMMISSIONER, THAT A PARTICULAR TYPE OF  REFERRAL  WOULD
POSE A SUBSTANTIAL RISK OF PAYOR OR PATIENT ABUSE IN RELATION TO PATIENT
BENEFITS.
  S 3. This act shall take effect immediately.