§ 32.06 Prohibited practices by providers of substance use disorder

services.

1. For purposes of this section, unless the context clearly requires
otherwise, "provider" shall mean any person, firm, partnership, group,
practice association, fiduciary, employer, representative thereof or any
other entity who is providing or purporting to provide substance use
disorder services or operating or purporting to operate a certified
recovery residence. Provided, however, that "provider" shall not include
a person receiving substance use disorder services from the provider.

2. No provider shall intentionally solicit, receive, accept or agree
to receive or accept any payment, benefit or other consideration in any
form to the extent such payment, benefit or other consideration is given
for the referral of a person as a potential patient for substance use
disorder services or as a resident at a certified recovery residence.

3. No provider providing or purporting to provide substance use
disorder services or operating or purporting to operate a certified
recovery residence pursuant to this chapter, shall intentionally make,
offer, give, or agree to make, offer, or give any payment, benefit or
other consideration in any form to the extent such payment, benefit or
other consideration is given for the referral of a person as a potential
patient for substance use disorder services.

4. This section shall not apply to any:

(a) lawful payments by a health maintenance organization or health
insurer, operating in accordance with article thirty-two or forty-three
of the insurance law or article forty-four of the public health law on
behalf of their enrollees for such substance use disorder services or
other benefits required to be provided;

(b) lawful payments to or by a provider to a health maintenance
organization or health insurer operating in accordance with article
thirty-two or forty-three of the insurance law or article forty-four of
the public health law, as payment for services provided, a refund for an
overpayment, a participating provider fee, or any similar remuneration;

(c) provider for an activity that, at the time of such activity, would
have been lawful as specifically exempt, or otherwise not prohibited,
under any federal statute or regulations, including but not limited to
42 U.S.C. § 1320a-7b (b) or the regulations promulgated thereunder, if
conducted by a person, firm, partnership, group, practice, association,
fiduciary, employer representative thereof or any other entity providing
substance use disorder services;

(d) any employee or representative of a provider who is conducting
marketing activities, where the employee or representative identifies
the provider represented or for whom or which the employee or
representative works, identifies that the employee or representative is
a marketer and not a clinician or other individual who can provide
diagnostic, counseling or assessment services, and such marketing
activities are limited to educating the potential patient about the
program with no effort to steer or lead the potential patient to select
or consider selection of the substance use disorder services provider
represented or for whom or which the employee or representative works;
or

(e) commissions, fees or other remuneration lawfully paid to insurance
agents as provided under the insurance law.

5. Any provider who intentionally violates the provisions of
subdivision two or three of this section shall be guilty of a
misdemeanor as defined in the penal law.

6. If the commissioner has reason to believe a provider has violated
subdivision two or three of this section, the commissioner may proceed
to investigate and institute enforcement actions, as may be authorized
pursuant to the applicable provisions of this article.

7. The provisions of this section are in addition to any other civil,
administrative or criminal enforcement actions provided by law.
Penalties authorized under this section may be imposed against corporate
providers and individual providers.

8. The commissioner shall adopt and may amend rules and regulations to
effectuate the provisions of this section.