Regular Session - January 23, 2001
139
THE STENOGRAPHIC RECORD
ALBANY, NEW YORK
January 23, 2001
11:15 a.m.
REGULAR SESSION
LT. GOVERNOR MARY O. DONOHUE, President
STEVEN M. BOGGESS, Secretary
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P R O C E E D I N G S
THE PRESIDENT: The Senate will
come to order.
I ask everyone present to please
rise and repeat with me the Pledge of
Allegiance.
(Whereupon, the assemblage recited
the Pledge of Allegiance to the Flag.)
THE PRESIDENT: In the absence of
clergy, may we each bow our heads in a moment
of silence.
(Whereupon, the assemblage
respected a moment of silence.)
THE PRESIDENT: Reading of the
Journal.
THE SECRETARY: In Senate,
Monday, January 22nd, the Senate met pursuant
to adjournment. The Journal of Saturday,
January 20, was read and approved. On motion,
Senate adjourned.
THE PRESIDENT: Without
objection, the Journal stands approved as
read.
Presentation of petitions.
Messages from the Assembly.
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Messages from the Governor.
Reports of standing committees.
Reports of select committees.
Communications and reports from
state officers.
Motions and resolutions.
SENATOR SKELOS: Madam President.
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: There will be an
immediate meeting of the Rules Committee in
the Majority Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Rules Committee in
the Majority Conference Room.
SENATOR SKELOS: Also, if we
could adopt the Resolution Calendar in its
entirety.
THE PRESIDENT: All those in
favor of adopting the Resolution Calendar
signify by saying aye.
(Response of "Aye.")
THE PRESIDENT: Opposed, nay.
(No response.)
THE PRESIDENT: The Resolution
Calendar is adopted.
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Senator Skelos.
SENATOR SKELOS: Madam President,
if we could take up the noncontroversial
calendar at this time.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
14, by Senator Volker, Senate Print 207, an
act to amend the Criminal Procedure Law, the
Public Health Law, and the Family Court Act,
in relation to the authorized destruction of
dangerous drugs.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 46.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
24, by Senator DeFrancisco, Senate Print 430,
an act to amend the Criminal Procedure Law, in
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relation to access to sealed records.
SENATOR PATERSON: Lay it aside.
THE PRESIDENT: The bill is laid
aside.
THE SECRETARY: Calendar Number
27, by Senator Marcellino, Senate Print 490,
an act to amend the Penal Law, in relation to
including the theft of dogs and cats within
the crime of grand larceny.
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 3. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 46.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
30, by Senator Goodman, Senate Print 684, an
act to amend the Penal Law, in relation to
computer networks.
THE PRESIDENT: Read the last
section.
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THE SECRETARY: Section 3. This
act shall take effect on the first day of
November.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50.
THE PRESIDENT: The bill is
passed.
THE SECRETARY: Calendar Number
35, by Senator Balboni, Senate Print 852, an
act to amend the Penal Law, in relation to
enacting the "anti-weapons of mass destruction
act."
THE PRESIDENT: Read the last
section.
THE SECRETARY: Section 5. This
act shall take effect in 90 days.
THE PRESIDENT: Call the roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 50.
THE PRESIDENT: The bill is
passed.
Senator Marcellino, that completes
the reading of the noncontroversial calendar.
SENATOR MARCELLINO: Can we have
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the reading of the controversial calendar,
please.
THE PRESIDENT: The Secretary
will read.
THE SECRETARY: Calendar Number
24, by Senator DeFrancisco, Senate Print 430,
an act to amend the Criminal Procedure Law, in
relation to access to sealed records.
SENATOR ADA SMITH: Explanation.
SENATOR PATERSON: Explanation.
THE PRESIDENT: Senator
DeFrancisco, an explanation has been
requested.
SENATOR DeFRANCISCO: This is a
bill that basically allows for a court to
order that sealed records be open for review
upon a request by -- upon a finding by the
court that there's extraordinary circumstances
to allow the unsealing upon application by the
professional licensing organizations doing the
investigation on possible discipline. This
applies to sealed records of attorneys,
doctors, and other professionals.
And the purpose of it is that in
the event that there's an inquiry concerning
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whether based upon some facts or some
allegations that a professional should have
his license either suspended or there should
be some type of action taken on account of
certain activities of that professional, that
licensing body or investigative body should be
able to get access to those records that have
been sealed by a prior proceeding.
And the judge is only allowed to do
that and to unseal the records upon notice to
the person being investigated for possible
disciplinary actions and upon the showing of
extraordinary circumstances.
And I have been many, many times
accused of being a trial attorney, that I just
somehow have an affinity towards doing
everything trial attorneys want. This happens
to be opposed by the trial attorneys.
But I think it's a good bill
because the bill would provide some useful
information in some instances. So that if
someone is doing something improperly and
unprofessionally, the regulatory agency can
get whatever evidence they want to get upon a
showing of extraordinary circumstances.
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THE PRESIDENT: Senator Paterson.
SENATOR PATERSON: Madam
President, would Senator DeFrancisco yield for
a question.
SENATOR DeFRANCISCO: Yes.
THE PRESIDENT: Go ahead, Senator
Paterson.
SENATOR PATERSON: Madam
President, I'm looking for an example of the
extraordinary circumstances that would be the
catalyst -
THE PRESIDENT: Senator Skelos.
SENATOR SKELOS: Senator
Paterson, if I could just interrupt for a
minute. There will be an immediate meeting of
the Environmental Conservation Committee in
the Majority Conference Room.
THE PRESIDENT: There will be an
immediate meeting of the Environmental
Conservation Committee in the Majority
Conference Room.
You may proceed, Senator Paterson.
SENATOR PATERSON: Thank you,
Madam President.
I just wanted to know if Senator
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DeFrancisco would inform the body of the type
of extraordinary circumstance that he thinks
would be the catalyst for actually unsealing
the records.
SENATOR DeFRANCISCO: Well, it
would have to be on a case-by-case basis.
One I can think of, it may very
well be that someone could be -- a charge
could be dismissed or adjourned in
contemplation of dismissal because that
particular charge may have been the first
offense alleged against the professional.
Maybe there's a dismissal based upon -- in the
interests of justice, because of many, many
different reasons, because that professional
may be a stalwart in the community. And
weighing all those things together and all the
good things that person has done, in the
interests of the justice, the court might
dismiss the case.
Or, as I mentioned before, an
adjournment in contemplation of dismissal for
a first offender. It may very well be, from
the criminal standpoint, and the need to
sentence someone to a criminal sentence may
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not be that important. But the activity may
be a theft of client funds, for example. It
may be some extremely unethical activity that
might not raise to the level that a prosecutor
would really want to go for a conviction and a
possible sentence.
And I think when a judge, weighing
all those factors, can make a determination
based upon the alleged offense and what
information might be available, based on the
charge that was ultimately adjourned in
contemplation of dismissal, that that might be
useful in either supporting the unethical
conduct or possibly clearing the professional
from that allegation by a complainant.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 2. This
act shall take effect immediately.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 24 are
Senators Brown, Duane, Hassell-Thompson,
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Montgomery, and Paterson. Ayes, 52. Nays, 5.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Skelos, that completes the
controversial calendar.
SENATOR SKELOS: Please recognize
Senator Larkin.
ACTING PRESIDENT MEIER: Senator
Larkin.
SENATOR LARKIN: Mr. President,
on the Resolution Calendar, on Calendar Number
248 on the Resolution Calendar, we'd like to
open that up.
This is in recognition of Autism
Day. And we know that all of us have some
areas of concern in that throughout the state.
And so we'd like to open it up for everybody
if they'd like to get on it.
ACTING PRESIDENT MEIER: Senator
Larkin, that was Calendar 248?
SENATOR LARKIN: 248 on the
Resolution Calendar.
ACTING PRESIDENT MEIER: Resolut
ion 248 will be open for cosponsorship.
Anyone who wishes to, inform the desk.
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Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could return to reports of standing
committees, I believe there's a report of the
Rules Committee at the desk. I ask that it be
read at this time.
ACTING PRESIDENT MEIER: Reports
of standing committees.
The Secretary will read.
THE SECRETARY: Senator Bruno,
from the Committee on Rules, reports the
following bills:
Senate Print 3, by Senator Bruno,
an act to amend the Insurance Law and the
Public Health Law;
And Senate Print 1265, by Senator
LaValle, an act to amend the Insurance Law.
Both bills ordered direct to third
reading.
ACTING PRESIDENT MEIER: The
bills will be reported directly to third
reading.
Senator Skelos.
SENATOR SKELOS: Move to accept
the Rules report.
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ACTING PRESIDENT MEIER: All
those in favor of accepting the report of the
Rules Committee signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
nay.
(No response.)
ACTING PRESIDENT MEIER: The
Rules report is accepted.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if you could call up Senate 1265, Calendar
Number 39, for the purposes of Senator
Stachowski voting.
ACTING PRESIDENT MEIER: The
Secretary will read.
THE SECRETARY: Calendar Number
39, by Senator LaValle, Senate Print 1265, an
act to amend the Insurance Law, in relation to
coverage.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 4. This
act shall take effect July 1.
ACTING PRESIDENT MEIER: Call the
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roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Stachowski.
SENATOR STACHOWSKI: No.
ACTING PRESIDENT MEIER: Senator
Stachowski will be recorded in the negative.
SENATOR SKELOS: Withdraw the
roll call.
ACTING PRESIDENT MEIER: Roll
call is withdrawn.
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: There will be an
immediate meeting of the Local Government
Committee in the Majority Conference Room.
ACTING PRESIDENT MEIER:
Immediate meeting of the Local Government
Committee in the Majority Conference Room.
Senator Bruno.
SENATOR BRUNO: Mr. President,
can we at this time take up Senate Calendar
Number 3 -- Bill 3.
ACTING PRESIDENT MEIER: The
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Secretary will read Senate Calendar Number 38,
Senate Print Number 3.
THE SECRETARY: Calendar Number
38, by Senator Bruno, Senate Number 3, an act
to amend the Insurance Law and the Public
Health Law, in relation to coverage of primary
and preventive obstetric and gynecologic care.
SENATOR CONNOR: Explanation.
ACTING PRESIDENT MEIER: Senator
Bruno, Senator Connor has requested an
explanation.
SENATOR BRUNO: Mr. President, we
have been for a lot of years dealing with
health issues in this chamber. And many of
those health issues have improved the quality
of life for all the people here in New York.
We focused last year on women's
health issues. We created a task force on
women's health issues. And this is a first
bill that comes from the good work of that
task force, that was chaired by Senators Rath
and Bonacic and assisted by many of our
colleagues here in the chamber, with many of
the advocacy groups that are out there who of
course have a vital interest in women's health
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issues.
So the bill before us really deals
with what everybody recognizes, that if you're
going to have good health, that deals with
disease prevention and early detection of
anything that is afflicting especially women.
So this deals with breast and cervical cancer
screening as a mandate, it deals with
osteoporosis, bone density screening, and it
provides, with a doctor's prescription,
contraceptives.
And it also clarifies a '94 law
that gives more direct access for women for
OB-GYN treatment by doctors so that they don't
have to go to a primary care physician in
order to access that kind of examination or
treatment.
That in essence is what happens in
this particular piece of legislation. And I'm
sure that my colleagues Senator Rath, Senator
Bonacic, Senator Hannon in the Health
Committee, Senator Seward, who assisted in the
Insurance Committee, can help in terms of
answering whatever other observations or
questions my colleagues might have.
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Thank you.
ACTING PRESIDENT MEIER: Senator
Connor.
SENATOR CONNOR: Thank you, Mr.
President.
Well, if this represents progress
on this issue, I'm delighted. Certainly we
were disappointed when we left last year
without having done this. Although on a
personal level, I'm glad we did prostate
cancer.
But the fact is that there are a
couple of things with this bill that are
different than the Assembly version that's
passed the Assembly. So I would urge -- I
mean, I assume this will pass here, but I
would urge the Majority to get together with
the Assembly very quickly in conference
committees and work out some of these
differences, because they're not
insignificant. And at least for me, they
compel me to vote against this bill in its
present form.
I hope it will be back, because
obviously it's too important an issue to get
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bogged down between the houses and become a
one-house in each house. In fact, if you look
at -- there are pieces of this bill that, if
you just cut the rest of it out, I think both
houses would pass in about an hour. But that
said, we do have some concerns.
And if I may, Mr. President, yield
the floor to Senator Schneiderman for the
purposes of offering an amendment.
ACTING PRESIDENT MEIER: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Mr.
President, I have an amendment at the desk.
I'd like to call it up, waive its reading and
give an explanation.
ACTING PRESIDENT MEIER: The
amendment is at the desk, and you're
recognized for the purpose of explaining it.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
We're going to be offering two
amendments to this bill. And the two
amendments essentially would conform it not
just to the Assembly bill, as Senator Connor
mentioned, but to the Bonacic bill that had on
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it as of my last calculation last year, a
dozen Republican Senators as sponsors.
That bill, the same as the Assembly
Bill, did not include the extraordinarily
broad conscience clause that is in the current
piece of legislation. As we discussed last
year, this conscience clause, which is the
same conscience clause as in Senator LaValle's
bill on fertility treatment, is broader than
any that has ever been passed in the State of
New York.
Its language, particularly the
language that exempts organizations that are
operated, supervised, or controlled by or in
connection with a religious organization from
the requirement that they provide
contraceptive coverage -- this would cover a
joint venture between Fordham University and a
biotech firm. This covers hundreds of
thousands of women in New York State who need
this coverage.
It is far broader than anything
we've ever passed. And I suggest that unless
it is amended to delete this broad clause, I
would strongly recommend a no vote. I think
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this is a poison pill that the Assembly will
never pass. It's a poison pill of the
magnitude that it probably belongs in Senator
Balboni's "weapons of mass destruction act."
This is a stonewall to actually
moving on the bill. And I strongly suggest we
take it out. I urge a yes vote on the
amendment to delete this clause and, if it is
not deleted, a no vote on the bill.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: The
question is on the amendment. All those in
favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
nay.
(Response of "Nay.")
ACTING PRESIDENT MEIER: The
amendment fails. The amendment fails.
Senator Oppenheimer.
SENATOR OPPENHEIMER: I believe I
have an amendment at the desk. And I'd like
to waive its reading and speak on it, if I
may.
ACTING PRESIDENT MEIER: The
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amendment is at the desk. The reading is
waived, and you're recognized for the purpose
of explaining it.
SENATOR OPPENHEIMER: Thank you,
Mr. President.
This amendment requires insurance
coverage for annual mammograms for women over
age 40 and provides that these mammograms
won't be subject to deductibles or copayments.
To put financial obstacles in the way of
breast and cervical screening seems obscene to
me.
Current law provides for mammograms
every two years for women over age 40 -- and
actually, at the recommendations of a
physician, it can be more than annually -- and
for women over 50, it would be annual. Now,
the current law does provide for deductibles,
and that is not included in my amendment. I
would waive deductibles.
The bill before us, Senate Bill 3,
would require annual mammograms for women 40
to 49 but then over age 50 would require the
recommendations of a physician. This is
contrary to our current law. Our current law
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says that women above the age of 50 can access
an annual mammogram. Also, Bill Number 3
allows for deductibles.
I think we should note that the
American Cancer Society recommends that there
be annual mammograms provided for all women as
a way of obtaining their preventive health
care.
Studies have shown that women pay
68 percent more than men for their
out-of-pocket health costs. And this is
primarily because there are so many preventive
care measures that are taken by women,
required by women.
Now, this amendment will help to
lower this disparity by requiring health
insurers to cover annual mammograms for women
age 40 and over, and it prohibits the charging
of deductibles for mammograms, or copayments.
I think to put financial barriers in place
that discriminate against women is really
unconscionable in this society.
I urge the adoption of this
amendment.
ACTING PRESIDENT MEIER: The
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question is on the amendment. All those in
favor signify by saying aye.
SENATOR CONNOR: Party vote in
the affirmative.
SENATOR BRUNO: Party vote in the
negative.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Ayes, 24. Nays,
36. Party vote.
ACTING PRESIDENT MEIER: The
amendment fails.
Senator Bruno.
SENATOR BRUNO: On the bill, Mr.
President.
You know, it would be unfortunate
if we just tend to politicize an issue that's
as important as this. I understand when you
talk about eliminate copay, any cost, totally
free -- when you talk about that, it sounds as
if you are the benefactors of all of the
people who are out there.
But I'm asking my colleagues to
consider what the task force considered and
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all the responsible people consider, that
every aspect of health care today has a copay.
And you start eliminating copays on this
issue, and you will be forced by pressures to
eliminate copay in every aspect of health
care. And the 3 million-plus people in this
state without insurance will grow to
astronomical numbers.
Now, is that a responsible thing
for any legislative group to do to the public?
Sure, it's nice to talk about a giveaway.
Let's make it free. Politically, that's
expedient. But let's not be political with an
issue that is as important as this. And let's
not posture, because any bill that becomes law
is going to have a copay in it.
So politically, you want to take a
position, it's been defeated. Not because we
wouldn't like to participate in giveaways, but
because we want to be responsible to the
public and to the people of this state and
keep the uninsured numbers at some manageable
level.
We passed Family Health Plus. Why
did we do that? Because there are over
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3 million people without insurance in this
state. That's intended to include about a
million of the people who can't afford
insurance. Child Health Plus, why did we do
that?
So I'm asking you to be
responsible. I know that you will support
this. And we will negotiate. And by the way,
we're waiting for the Assembly to pass a bill.
The importance of this relates to
the fact that this is Senate 3 and that we are
doing this early in the session. We want to
see this become law.
And on the conscience clause, why
should this body or any other body be
dictating to a religious group -- and they
have to be religious -- that they must mandate
something that they feel religiously they
can't support? Why should we mandate and
legislate that that has to happen?
And, Senator, it is not accurate to
say that they can partner and they can at will
do what they please, because the Insurance
Department in this state is mandated to make
sure that if anyone uses the conscience
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clause, it's on religious grounds, and they
will attest to that. So they will monitor and
they will police that this is not used
indiscriminately.
And I know there are others that
are much more knowledgeable -- Senator
Bonacic, Senator Rath, and the others on this
issue -- and they may have some observations
and comments.
So to the bill, this is an
important piece of legislation. We want to
move the process. And I would urge my
colleagues to support this so that we can get
a bill that does become law.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President. On the bill.
I understand Senator Bruno's
comments, and I appreciate his assigning this
bill certainly the political and social
importance of making it Senate 3 and bringing
it to the floor early on in the session.
Senator Bruno, I would disagree
sharply with one thing you said, however. The
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amendment that was proposed by Senator
Oppenheimer to eliminate copays for the most
important form of preventive care for women
over the age of 40 to early detect and treat
breast cancer I don't think should be
characterized as a giveaway.
I think if you stand up for women
who believe that mammograms are the most
important means of detecting this horrible
disease, which has extracted a horrible price
from New York women, and without a copay, when
most of our preventive treatments in this
state do not involve copays, it seems to me
what we're doing is creating parity for women
over the age of 40 with many other people who
don't have to pay copays in this state. And I
just believe that to characterize it as a
giveaway is inaccurate.
Mr. President, on the bill. I too
am troubled by the conscience clause, and let
me explain briefly why. This conscience
clause has two parts. The first part says
that if you're an employer, you cannot be
required to provide certain forms of
diagnostic and treatment, which most likely is
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going to mean contraceptive care, to your
employees.
I believe that there is a
foundation for making that exception for an
employer. I believe the Catholic Conference,
the Catholic Church, doesn't necessarily have
an obligation to provide treatments that are
inconsistent with its fundamental mission to
its employees. And I believe that a carefully
drafted conscience clause -- not this one, and
I'll explain why -- but a carefully drafted
conscience clause could exclude certain
religious organizations from providing these
benefits.
However, this conscience clause
goes another step and it says that any health
maintenance organization, either sponsored or
controlled by a religious organization, is
subject to the same possibility that the
people who it provides coverage to will not
get those benefits, will not get that
treatment or detection or care.
And it seems to me that that goes
too far, because it says that the mere fact
that you're in the business of health care -
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you're not in the business of religion, you're
in the business of health care, providing
health care -- under those circumstances, your
religious beliefs can prevent you from
providing mandated services that we require
everyone else to provide.
I would suggest that that clause
goes too far when it applies to a health
maintenance organization regardless of its
affiliation to any religious institution. If
they're in the business of health care, we
should be able to mandate what type of health
care benefits they provide to their
policyholders.
Conversely, if they're in the
religion business and they have a fundamental
tenet against providing that coverage to their
employees, I believe that a carefully drafted
conscience clause would be appropriate for an
employer. But not when they're in the
business of health care.
And let me conclude by telling you
this is not the right way to do it. This says
that it has to be held to be contrary to the
religious tenets of the organization. And I
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would suggest to you that some day the courts
of this state will sit down and have to
interpret whether the type of health care
provided under the plan is contrary to the
religious tenets of any religious group.
I believe that that will plunge New
York State unconstitutionally into having our
courts evaluate the religious tenets of
religious organizations. It violates the
First Amendment. It will jump the courts of
this state into the religious affairs of
religious communities around this state. And
that is not the right thing to do.
The civil courts of this state
should not be in the position of deciding the
religious tenets of any organization. That
belongs completely as an ecclesiastical
matter, and we ought to stay out of it.
The bottom line for me, Mr.
President, I'm still not sure which way I'm
going to vote. But I believe that a broad
clause like this is dangerous. I think it
plunges us into a pattern of unacceptable
conduct. I believe that a more narrowly
confined religious conscience clause would
170
work. And my guess is as I sit here I'm going
to vote against this bill because I don't
think the religious conscience clause does the
job.
ACTING PRESIDENT MEIER: Senator
Rath.
SENATOR RATH: Thank you.
There is nothing quite so powerful
as an idea whose time has come. One of the
sage persons that we revere said that a long
time ago. And I think this idea has come.
It's come to the floor of the New York State
Senate. It was here at the end of last year,
but it never quite got to the floor for
debate. And although a bill passed in the
other house, we slowed things down some.
At the request of Senator Bruno, a
task force was formed on health and wellness.
And as you know, health and wellness goes a
lot further than one bill.
This is the first bill that we will
be seeing in relation to health and wellness.
It has to do, of course, with women's
services. I think the laundry list of items
that it's going to provide have been well
171
documented and talked about on the floor.
But I'd like to say something about
the cost issue because, as the chairman of the
Local Government Committee, that was my
biggest concern last year and why I personally
wanted to step back and take some time to look
it over.
We spent a lot of time talking
about costs. We spent a lot of time talking
about copays. I pay a copay. I'm sure the
women on the other side of the aisle, my
colleagues here on this side of the aisle, we
pay copays. We don't mind. We can afford to
pay that. It helps keep the cost of insurance
down, it helps avoid overutilization, it does
a lot of things. It makes us a partner with
our employers and the health insurance
companies who are providing the insurance that
we have as a result of being employees.
I think it's important that we know
that the poor women of this state are taken
care of. They're taken care of by Medicaid,
and more will be taken care of as Family
Health Plus comes into place. The low-income
earners, Family Health Plus as well as the
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Healthy Women Partnership; again, another
place. Healthy New York, another program that
will help employers cover the cost if they
would not ordinarily cover the cost because
they're small business people.
And how many times on this floor
have we talked about small business people?
How many times have we said we need to do what
we can to keep businesses in New York State,
we can't drive them out with high taxes, high
costs, et cetera, et cetera. You know the
argument as well as I do.
And this was a slowing down in
order to clarify what the costs were going to
be. I said, as chairman of Local Government,
my concerns were not only with the cost for
business but, if we have uninsured and if the
ranks of the uninsured rise dramatically, who
ends up paying for them? We know. They
become the costs to the counties, where I come
from -- and all the counties, but I certainly
do recall those county days and the health
care costs -- in partnership with the state.
And so we have a balance, a cost
and a benefit balance. It would be nice to
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say we can be all things to all people all the
time. We know we can't do that. And so with
the chairman of Insurance and the chairman of
the Health Committee, we spend a lot of time
talking with my colleague Senator Bonacic, the
cochair of the Health and Wellness Task Force.
And so we have a piece that is
coming out today that I'm sure will be passed.
Is it the last you have heard of this? I
doubt it. What will the Assembly do? I don't
know. Will we end up with a better bill when
we finally come to the end of session? I
certainly hope so. Because I think there's a
lot of improvement always that can occur.
But you've got to start with
something. You've got to start with a piece
that has, as it were, crossed the finish line
once. Will there be another race and other
finish lines before the end of this session?
I expect so.
But let me just close with a
comment about a 1997 report from Smith Barney
research. It found that women make
three-fourths of the health decisions in
American households and they spend almost two
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out of every 3 health care dollars,
approximately $500 billion annually. This is
spent by women because women are the
caregivers. You know it and I know it. It's
been traditional. And I don't want my male
colleagues to take offense. However, if the
mother in the household stays healthy,
everyone else can get healthy, because the
mother is there to make sure everyone has got
the opportunity to get either to the doctor or
get the care they need.
So we know that women have
traditionally played that role of caregiver.
This bill essentially ensures that the
caregivers are eligible for care, that the
caregivers are eligible for care. I think
it's important that we pass this, we make this
statement, and then we get on with the
business of how we can turn this into law.
ACTING PRESIDENT MEIER: Senator
Bonacic.
SENATOR BONACIC: Thank you, Mr.
President. On the bill.
I would like to focus on what this
bill accomplishes. The bill addresses women's
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health and wellness. As was adequately
pointed out by Senator Oppenheimer, women pay
68 percent of health care costs out of their
pocket, not covered by existing insurance
policies and health plans in the State of New
York.
That is an inequity. And we want
to address that inequity. And I congratulate
my Assembly colleagues that are working to
address that inequity. But let's talk about
what we would be accomplishing today if we
pass this bill.
Breast cancer: Number one killer
of women ages 40 to 59. Under the law today,
a woman who is 50 years or older can get a
mammogram or a Pap smear on a doctor's
recommendation every year, but not women 40 to
49. This bill says that women will be
covered, upon a doctor's recommendation, every
year from 40 to 49.
Now, when we have 41,000 women
dying of breast cancer in the United States
every year, we have 12,000 women in the state
of New York getting breast cancer every year
and 3500 of them are dying, that is scary. We
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can't wait. We can't pontificate. This
accomplishes aid for those women immediately.
And I tell you what. If they had a mammogram,
those women, every year from 40 to 49, we save
30 percent of those 3500 women that are dying.
That's how important this is. And
you know the scary part? The women that are
getting the breast cancer, 70 percent of them
have no history. They don't know it's there.
So early detection on breast cancer is
critical to the women of this state.
I want to congratulate our leader,
the women of our Senate conference and the
women of this Senate body, as well as the task
force members and those advocates out there
that have come in and have identified the
women's issues in health that they want
addressed. So we accomplish that by this
legislation today.
The second thing, osteoporosis.
Not glitzy; you don't hear about it much. But
it is growing in the United States as a very
bad disease for the citizens of this country.
8 million people have osteoporosis.
10 million are waiting to happen. And by the
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way, on osteoporosis, it affects women eight
times greater than men; on breast cancer,
women five times greater than men.
So what do we do by this bill? We
allow women to access services for the
treatment of osteoporosis through insurance
policies that they don't have now. That they
don't have now.
So as the leader points out, this
is a bill in prevention. Because we pay for
mastectomies, we pay for breast surgeries, we
pay catastrophe dollars to address that
covered by policies now, on the back end. For
osteoporosis, we pay for those 1.5 million
fractures, of which 300,000 are hip fractures.
We pay now. But we don't pay for the
prevention. That's what we accomplish by this
bill.
The third thing we accomplish, we
get rid of a loophole. And that is a woman
for primary care doesn't have to go through a
gatekeeper, she can go to a gynecologist to be
treated.
And last but not least, the fourth
aspect of this bill is the contraceptive
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provision. And now every insurance policy for
individuals can access contraceptives. Yes,
there is a religious clause. Yes, we can
discuss better language, or this language.
But this is a woman's health and wellness
bill. Don't lose sight of what we're trying
to accomplish. We never had contraceptive
coverage, and now we will be covering.
Do we get all of the women? Some
slip through. Because let's just -- I'm not
picking on the Catholic Church, but let's stay
with the Catholic Church. We have about 35
HMOs, they have two Catholic HMOs. They're
going to insist that those HMOs don't have
contraceptives, so these women won't be able
to access that. But we think it's a small
portion. That's something we continue to
address tomorrow.
So for all of these reasons, I ask
you to support this bill, to improve not only
women's health but wellness for the families
of the state of New York.
Thank you very much, Mr. President.
SENATOR OPPENHEIMER: Mr.
President, I would like to ask the Senator a
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question if he will yield.
ACTING PRESIDENT MEIER: The
Senator has yielded the floor. He's sat down.
We have a speaker's list, if you
would like to be added to the list.
Senator Hoffmann.
SENATOR HOFFMANN: Thank you, Mr.
President.
I would like to offer my hearty
congratulations to my two colleagues, Senator
Rath and Senator Bonacic, who have for years
championed this issue and done yeoman's
service in bringing it to the attention of the
entire conference.
And my thanks to Senator Bruno for
his personal leadership in providing the
guidance and the direction to make sure that
it would happen and happen early in this
session.
All too often the hard work that
goes on behind the scenes is not recognized by
the general public. But I know how hard
Senator Rath and Senator Bonacic, along with
the other members of the task force, have
struggled with this issue, because it an
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intricate issue. It cuts across so many
lines. We're talking about delivery of health
care, we're talking about insurance, we're
talking about religion, and we're talking on a
very emotional and painful level, from
personal experiences, about people -- real,
living human beings who are facing enormous
risk if they don't get this kind of coverage
that we are now going to make available in New
York State. And for some of us, the faces of
people who are no longer with us haunt us
while we have this dialogue.
And no matter what we do, we'll
always think that there's something else that
can be done. And I think Senator Rath said it
best when she said that this is part of an
ongoing process. And Senator Bruno
established at our press conference a little
while ago that the task force will continue.
I'm proud to be part of this task force and to
know that I am in a legislative body that is
going to make addressing health issues a major
priority, not just for a few weeks, not just
for this session, but forever.
Thank you, Senator Bruno, for the
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kind comments that you made to the three women
Republican Senators. Because we do feel that
our numbers allow us to be on an even playing
field. When you said the numbers 33 men and 3
Republican women, but it's an even game, we
recognize that today because you are standing
here with us on these important measures.
Breast and cervical cancer continue
to take women's lives, younger women all the
time. The statistics are alarming. If
undiagnosed in a young woman, the disease is
more virulent and tends to cause a mortality
much faster than for an older woman.
Therefore, the need for that early diagnosis
is critical. If women don't know that it's
part of their history, if it's not something
that is on their mind, and if there is no
family history, it's unlikely they're going to
feel highly motivated to go and incur a huge
expense to find out if they are at risk, if
they have developed the disease.
We need to provide that safety net
that says your insurance will pay the cost of
cervical cancer screening or mammography.
This measure will do that, and for that, the
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women of New York State will be grateful.
Osteoporosis. I like Senator
Bonacic's reference to it. It's not a glitzy
issue, he said, it's not a glitzy disease. Do
you know what it is? Does everybody recognize
what osteoporosis does? Have you all seen
those little old ladies with what is called a
dowager's hump, women who are bent over, they
don't stand up straight, women who started off
at 5 foot 5 or 5 foot 6 in their youth and by
the time they're 65, 75, or 80, they're 4 foot
8 and they can't stand up straight? Do you
know how brittle those bones are? Do you know
how painful it is for them if they fall? And
do you realize how likely it is that they will
suffer fractures, painful fractures, that
obviously will cost them time, energy,
anguish, and, as Senator Rath points out, hurt
all of their families while they're
recovering?
We have a responsibility, since we
know the data on osteoporosis, to detect it
early. Now is the time to find out if a woman
is subject to osteoporosis, at an early age so
that she can have treatment. And that
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includes calcium and hormonal treatment and
increased exercise.
Because this is the beginning, we
will probably be standing here looking at
other legislation in years to come and months
to come that will include many more things
that will allow that type of diagnosis and
treatment. Since exercise is such a big part
of it, maybe we'll be looking at legislation
that allows mandatory coverage in health clubs
so that the exercise component will be there
along with the medical component.
All of this is preventative care.
We are learning as we go. And we are prepared
to venture into the future with the interest
of women's health at heart.
But the most significant piece of
this legislation, bar none, is the inclusion
of contraceptive care in insurance policies in
New York State. Women of all ages have
protested the inequity of having to pay
out-of-pocket for contraceptive coverage for
years. And how many of them have needed it
not for contraceptive purposes but for
prescribed hormonal treatment?
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Now we are addressing one of the
most basic needs for women to control their
own bodies, to control their own destinies, to
have a sense of dignity with their health.
This is a sign that we recognize all of those
things are as important policy initiatives as
any economic platform in this state
government.
And I'm enormously proud to be here
today as a member of the task force on women's
wellness, thank all of my colleagues who
participated in this, and pledge continuing
commitment to do even more for women's
wellness in New York State.
ACTING PRESIDENT MEIER: Senator
Hannon.
SENATOR HANNON: Yes. I rise
because I want to address the two points that
were raised by the Minority.
Before I do that, I really want to
congratulate Senators Bruno and Bonacic and
Rath for having brought this Senate such a
long way, and especially on the point Senator
Hoffmann just mentioned. Getting the coverage
in regard to contraception is a major step.
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And I don't think it has been recognized and I
don't think it has been acknowledged by the
advocates who are out there.
Let me just address quickly the
questions of copay and the conscience clause.
To the extent that people want to do away with
this, they diminish whatever intellectual
standing they have left. Copay and deductible
is an essential aspect of insurance in order
to extend the benefit to as many people as
possible. We've spent a considerable amount
of time making sure that we would do a serious
dent to the uninsured in this state. It makes
no sense to introduce things that won't work.
Now, we're introducing this not in
a discriminatory way. And notwithstanding
what Senator Dollinger said, this is not
something unique in regard to preventive and
screening services. It's the same. And in
the bill it says it shall be done in a
reasonably consistent way, supervised by the
insurance. Specifically says that so that it
applies the same way as everything else. If
we're not to do it, would we be taking
coverage for heart attacks or EKGs or things
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like that and saying they're not as good?
And second, the reason you do a
copay is this is not a means test. We've
already taken care of -- full coverage -- for
those people who can't pay. We have Medicaid,
we Family Health Plus. If you're older, we
have Medicare. So we're not dealing with
that. And to try to use some kind of
amendment that will become a cheap political
trick I think does a disservice to getting
good care for as many people as possible.
Second, the conscience clause.
There was a comment that this is not the right
way to do it. You know, it really I think is
a misunderstanding of the health care system.
Someone over there tried to make a distinction
that you can be religious or you can offer
health care, ignoring the rich history we have
in this nation of religions seeing as their
mission offering health care.
And so it strikes me as inherently
contradictory that we would welcome the
benefits of that mission, welcome the benefits
of an HMO, the Fidelis, that does Medicaid
managed care to the poor throughout northern
187
New York, where nobody else would do it -- we
ignore those benefits and then we try to say,
oh, wait, but you can't have a conscience
clause.
We have coexisted. There are rich,
rich treatises on church and state. And we do
have involvement back and forth. I think it
is very simple to say that a conscience clause
belongs in this arena and that we ought to
have it whatever what the actual wording may
be. I don't think that saying it goes forward
to some type of technology alliance with a
biotech company is reading what's in this
proposal. And I don't think it's a logical
conclusion.
Thank you.
ACTING PRESIDENT MEIER: Senator
Goodman.
SENATOR GOODMAN: Mr. President,
clearly this bill confers many substantial
benefits which were not heretofore available.
And to that extent, we're deeply grateful to
its sponsors and to the committee, especially
to Senators Bonacic and colleagues who were so
heavily involved.
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May I say, however, I think we owe
it to ourselves to look beyond the immediate
questions that have arisen today and to say to
ourselves what happens to the individuals who
work for institutions run by the Catholic
Church who may themselves not be Catholic -
they might be Muslim, they might be Hindu,
they might be any number of other religions
who are not bound by the Catholic strictures
inherent in this. What can they possibly do
to protect themselves?
Mr. President, I rise to suggest
that there is a method by which this can be
accomplished, one to which this house should
address itself most earnestly. That is the
so-called the Hawaii plan. Under the Hawaii
plan, if I work for an institution, let us say
a Catholic hospital, and this bill passes -
which we expect that it will do because of its
many benefits -- then the question is if I
want coverage for contraception, in what
manner can I obtain it?
The answer in Hawaii is I can
request a rider from the insurance company
which provides certain coverage, and that
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rider gives me the opportunity to obtain
contraceptive coverage at the discounted price
which would otherwise be available to me.
In my judgement, this does two
things. First of all, it respects the
absolute right of the Catholic Church to
prescribe for its followers those tenets which
it believes to be fundamental. And I have no
argument with this. I think we owe great
respect to the Church, and its point of view
in this house has always maintained that
position very clearly.
However, what about the people who
do not happen to prescribe to those tenets?
What do we do about the people who need the
coverage and who earnestly require it but
would otherwise be barred from obtaining it?
The answer is under the Hawaii plan I can
obtain a rider. The rider will allow me as an
individual to obtain the necessary insurance
coverage. And that's precisely the effect
which I think we should make available to
people.
In short, there's no reason why
those of us who deeply respect the Catholic
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Church's right to narrow its coverage in the
fashion which this bill would permit to
preclude those who wish to do something other
than that to do it. I think this is a
rational approach, and I hope that in the days
ahead, as we proceed in this ongoing process
of analysis, that we will able to come up with
a Hawaii-type plan, apply it here, and permit
greater flexibility in the application of an
exceedingly urgent matter.
And I also point out that
contraception is not a term that is
single-purpose. There are certain
contraceptive methods which also have a dual
purpose, one of which is to regularize a
woman's menstrual cycle, another of which
might be to help prevent HIV infection from
spreading.
There are a variety of reasons why
contraception is per se not merely birth
control but medically necessary. I hope we'll
keep that in mind as well as we consider the
possibility of applying the Hawaii plan to
this matter.
Thank you, Mr. President.
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ACTING PRESIDENT MEIER: Senator
Montgomery.
SENATOR MONTGOMERY: Mr.
President, on this bill.
I think that I certainly appreciate
the comments especially made by Senator Rath
in terms of us making it possible for the
caregivers to be eligible for care. And the
fact that we have expanded access through our
Family Health Plus and our Child Health Plus
is very welcome, very important, and I applaud
us for doing that.
The legislation before us does
provide for women access to be covered by our
insurance policies, our HMOs and providers for
preventive services. And obviously that's
very important. We start out with gynecologic
services.
Now, the problem that I have with
the legislation, and the problem that I think
is extremely important because it is going to
create two tiers of health care for us, or two
classes of women who will be covered under
this legislation, is the section that deals
with contraceptives which allows for employers
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who are connected to religious-affiliated
organizations to disallow coverage for their
employees.
Now, as far as I can tell, if there
is an HMO or if there is a provider that
employs women in such situations as hospitals,
where we have women who are doctors, nurses,
clerical people, housekeeping people,
nutrition people, I daresay that the largest
percentage of people who work in hospitals are
women. What about people who work in nursing
homes that have a religious affiliation? What
about people who work in group homes or other
social service organizations, as there are so
many in my district? What about women who
work in schools where there is a religious
affiliation?
So now, with this legislation, not
only do we, as under our current law, allow
for religious-affiliated health providers to
opt out of providing reproductive health
services to women -- we already allow that.
They are, however, supposed to have some sort
of a carve-out so that for those services that
they don't provide, they are to refer women to
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other services. Whether or not they do is an
argument and a question, but that is what we
provide for now.
So with this legislation, we're now
carrying that one step further. We are saying
not only do you not have to provide services,
reproductive health services to women, but you
are now allowed to not cover, under your
health benefits program, reproductive health
services to women that you employ. So we're
talking about thousands and thousands of women
across the state.
And especially in my district,
where there are hospitals that are religiously
affiliated and where there are HMOs that are
religiously affiliated. And as you know, all
Medicaid constituents, all Medicaid
recipients, must be affiliated with an HMO.
And many of them are affiliated with a
religiously based HMO. So that, obviously,
those women will not be covered. And that's
obviously a problem.
Now, the question of prevention -
which Senator Goodman raised, and I certainly
agree, and Senator Bonacic raised -- HIV and
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AIDS is a particular issue and problem because
it is people of color in this state,
especially women of color, who are now
suffering the largest percent of increase in
active AIDS cases and HIV infection. And we
know that contraceptive devices protect those
women or will help to protect and will help to
prevent that spread of HIV infection.
So once again, the women who need
it most, the women who are most vulnerable,
the women who are not able to go out and
access private care, the women who don't work
in corporate situations or who don't work in
government where we're all covered, those
women who work in their communities in those
programs, those developmental programs, those
little group homes, those social services
programs that are sponsored by religiously
based institutions will not be covered under
this bill.
So this is really a very major
percent of the constituents in my district,
and I daresay in a number of our districts.
But then these women are not going to be
speaking to us because they won't even know
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that we have essentially eliminated them by
virtue of this legislation.
So while I applaud the intent of
it, I must vote against it because this really
does not -- does not -- provide full and
complete access to every woman in our state
equally.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Oppenheimer.
SENATOR OPPENHEIMER: Thank you,
Mr. President. I was going to ask a question
of Senator Bonacic when he was speaking
earlier. And he seems to be involved at the
moment.
If Senator Bonacic would yield for
a question. But he's not -- he doesn't have
the floor.
ACTING PRESIDENT MEIER: He
doesn't have the floor, Senator.
SENATOR OPPENHEIMER: Okay, let
me just state what my concern was.
The bill seems to be addressing the
issue of women age 40 to 49 so that they would
now be able to access mammogram screenings.
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However, as I read the law currently in place
now, women are able to access a mammogram
every other year presently and, if their
doctor prescribes, they are able to access it
on even a more frequent basis.
So I fail to understand and wanted
an explanation of how this new bill would
increase the access to those very vulnerable
women age 40 to 49 that we are hoping to give
additional protection to. It doesn't look
like it's additional, it might even be a
subtraction of what they currently have.
ACTING PRESIDENT MEIER: Senator
Stavisky.
SENATOR STAVISKY: Mr. President,
following up on what Senator Oppenheimer is
asking, I wonder if there is somebody from the
task force who could answer a question.
ACTING PRESIDENT MEIER: Give me
just a second, Senator.
Well, who are you asking to yield?
Because the -
SENATOR STAVISKY: I'm simply
asking the sponsor to answer a question, a
very specific question.
197
ACTING PRESIDENT MEIER: State
the question, Senator.
SENATOR STAVISKY: My question
is, on page 3 of the bill -- and this
essentially is what Senator Oppenheimer was
asking -- on lines 5 through 8, it says -
currently the law says a mammogram every two
years, or more frequently upon the
recommendation of a physician. And they add
the language "a mammogram every year, or at
such other interval as the physician may
recommend, for covered persons age 40 to 49."
The question is, by adding the
phrase "a mammogram every year or at other
such interval," you're repeating what is in
the previous clause, which says "every two
years or more frequently." It's the same
language. That's really, Mr. President, my
question. Or isn't it the same language? In
other words, you're saying apples and oranges
and oranges and apples.
SENATOR BRUNO: No, I'm told by
people who have worked on this very directly,
Mr. President, that it broadens the
physician's ability to relate. And once it's
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broadened, then it is in law and stays there.
So it just broadens for every year
their ability to get that screening. So it's
more coverage.
SENATOR STAVISKY: It already
says every two years, Mr. President.
SENATOR BRUNO: Well, it's more
coverage.
SENATOR STAVISKY: Thank you, Mr.
President.
SENATOR BRUNO: And if a
physician says that it's required more
frequently than one year, based on that
particular individual's history, then that
would be the case and it will be mandated in
terms of coverage.
So it truly broadens the coverage
for women. Thank you.
SENATOR STAVISKY: Thank you, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Seward.
SENATOR SEWARD: Thank you, Mr.
President.
I think we in this chamber can take
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pride in the fact that we have a long history
of supporting and promoting policies and
statutes and budget items that have promoted
supported women's health and wellness over the
years. That's a longstanding Senate position.
But admittedly, there are gaps in
the law. And this legislation before us fills
those gaps by providing additional
opportunities for mammography and cervical
cancer screening, bone density tests for the
early detection of osteoporosis, as well as
the doctor-prescribed prescriptions.
Will more women have access to
these treatments and services as a result of
this legislation? The answer is unequivocally
yes. And for that reason, I want to join in
honoring and thanking, number one, our leader,
Senator Bruno, as well as Senators Bonacic and
Rath and all the members of the task force who
have worked very, very hard to put a package
together to fill those gaps that currently
exists in the law and to provide these
much-needed services to more women in New York
State.
And particularly, I think it's
200
important that the early detection of
diseases, which is the main thrust of this
legislation, this early detection of diseases
that affect women can only save lives. And
not only that, but also spare them the very
intrusive and, yes, expensive procedures that
would be required to treat diseases that are
more advanced, whether that be cancer or any
other disease.
So this type of legislation, in my
mind, is very forward looking and forward
thinking, that not only protects women's
health but also encourages a healthier society
in general.
You know, there has been quite a
bit of discussion here today about the cost
factor and the deductible and copays and the
general cost factor in general. And
certainly, as chair of the Insurance
Committee, we need to wrestle with this issue.
Because as health insurance premiums rise, the
number of uninsured, the number of people who
drop out of the insurance market, also rises.
So it's very much a balancing act here that we
have to deal with.
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And I must say, after a lot of
discussion with medical professionals and
examining the medical and scientific data
affecting the treatments and diseases that
this legislation deals with, as well as
conversations with both providers and payers,
I can say unequivocally that this bill
provides very, very important health care
services to more people but also does so in a
cost-effective manner.
And we estimate that with all the
coverage that is listed in this legislation,
that any increase in cost would be very
minimal. As well as the fact that the bill
covers this issue by calling for a study of
the health benefits and the costs, so that the
long-term savings can be quantified because of
the early detection of these diseases.
The long and short of it is when
you come to talk about copays and deductibles,
there's absolutely no evidence that I'm aware
of that copays or deductibles form a barrier
to having the benefit of these services now.
Or any other services, for that matter. And
for those women who honestly cannot afford the
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benefit of these screenings and these types of
services, we in New York have the Healthy
Women's Partnership in place, which has done
an outstanding work over the years of
providing early detection and screening for
those low-income women who honestly cannot
afford these services.
So we're well-covered in this area.
And I rise in support of this legislation
because it's going to provide additional
services to more women, foster a healthier New
York. A lot of benefits under this
legislation.
And again, I want to congratulate
the task force for its fine work.
ACTING PRESIDENT MEIER: Read the
last section.
THE SECRETARY: Section 16. This
act shall take effect on the first day of
January.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Senator
Montgomery, to explain her vote.
203
SENATOR MONTGOMERY: Yes, Mr.
President, to explain my vote.
I'm going to vote no on this. And
I know that someone is going to go out and do
an editorial and say that I voted against
health services for women. But let me just
say why I'm voting against this. This is
worse than half a loaf for many women in this
state. And for the majority of women in my
district, this is not even a half a loaf.
This does not cover them for the most
important aspect of their health care. We
cannot separate the reproductive aspect of a
women's body and health from everything else.
They all go together. We must cover them all.
And for those institutions that
don't want to, because of their religious
tenets or whatever other reasons, they should
not -- if we are covering health services with
our public health dollars, we should not allow
those institutions to deny health services to
women in our state.
So that's why I'm voting no. And I
hope that that rationale and that reason is
clear to everyone who is interested and
204
listening.
Thank you.
ACTING PRESIDENT MEIER: Senator
Montgomery will be recorded in the negative.
Senator Oppenheimer, you had your
hand up. Did you want to explain your vote?
SENATOR OPPENHEIMER: No.
ACTING PRESIDENT MEIER: Senator
Schneiderman.
SENATOR SCHNEIDERMAN: Thank you,
Mr. President.
I concur very, very strongly with
what Senator Montgomery just said. I think
that there are times when leaving out a large
group of people makes a piece of legislation
unacceptable.
And I don't want to take anything
away from the fine provisions in this bill
that correspond to the Bonacic bill and the
bill passed by the Assembly. But if I can
make an analogy, the hundreds of thousands of
women who work for private corporations,
insurance companies that can deny this because
of some purported affiliation, to deny them
contraceptive coverage is to disrespect the
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consciences of those women. It is their
conscience that should be respected.
And this effort to put forward a
bill that leaves out hundreds of thousands of
women in my mind is analogous to the hate
crimes bills introduced in this house years
ago that left out victims of bias-related
violence because of sexual orientation. It's
not okay to leave people out on something this
important. And those bills didn't pass, and
this bill won't pass until this issue is dealt
with.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Schneiderman will be recorded in the negative.
Announce the results.
THE SECRETARY: Those recorded in
the negative on Calendar Number 38 are
Senators Breslin, Connor, Dollinger, Duane,
Hassell-Thompson, Montgomery, Oppenheimer,
Paterson, Santiago, Schneiderman, A. Smith and
Stavisky. Ayes, 48. Nays, 12.
ACTING PRESIDENT MEIER: The bill
is passed.
Senator Bruno.
206
SENATOR BRUNO: Mr. President,
can we at this time take up Calendar Number
39.
ACTING PRESIDENT MEIER: The
Secretary will read Calendar Number 39.
THE SECRETARY: Calendar Number
39, by Senator LaValle, Senate Print 1265, an
act to amend the Insurance Law, in relation to
coverage for diagnosis testing.
SENATOR DUANE: Explanation,
please.
ACTING PRESIDENT MEIER: Senator
LaValle, an explanation has been requested of
Calendar 39.
SENATOR LAVALLE: Thank you, Mr.
President.
First let me start off by
acknowledging the leadership of our Majority
Leader, Senator Bruno, in advocating and being
a strong advocate for additional health care
for the citizens of our state; on the last
bill, for creating the task force and the
terrific work by Senator Rath and Senator
Bonacic.
Last year we debated this bill that
207
is before us. And I am going to go through
the bill once again, as I did last year. This
bill is before us because of one of the ways
that society has changed. And that is that
couples are get married later and are starting
their families later in life. Because of
that, we have one in every six couples that
are infertile and are having problems
reproducing.
This problem affects 6.1 million
Americans in our country. It has become such
a problem that assisted reproduction therapy
has become a specialty and there are programs
in most populated areas of our state and
country.
Before I talk about some of the
provisions in the bill, in developing this
bill, we tried to do a very careful balancing
act. Senator Bruno addressed some of the
problems in trying to provide additional
services: If you're not cautious, you will
drive up the cost and the number of uninsured
individuals seeking health coverage.
As a matter of public policy, this
Legislature has been very aggressive in trying
208
to provide more health coverage for more of
our citizens -- Family Health Plus, EPIC Plus,
Child Plus, and on and on -- in what we have
done. And so here we have tried to provide
for those couples that are having a problem,
to ensure that their health coverage provides
for the diagnosis and treatment of medical
conditions that would result in infertility.
In doing that, we provide the
following. We establish a $60,000 lifetime
limit on benefits. Prescription drugs are not
subject to the lifetime cap. The individual
must be insured for a period of 12 months
before accessing their infertility coverage.
Infertility would be determined in
accordance with ACOG standards. Those
standards basically are that the couple have
been infertile for a period of 12 months. If
they are age 35 or older, that period is a
six-month period.
The coverage is provided for
individuals ages 25 to 44. That age category
tracks statistically where people are
beginning to have problems. Women are the
most fertile between ages 18 to into their
209
20s, and then statistically you begin to see
problems arising between ages 25 to 44.
Prescription drugs for infertility
are covered only if the insurer's policy
covers the prescription drugs. Coverage is
subject to annual copayments and insurance and
deductibles as is deemed appropriate by the
superintendent.
Senator Bruno and Senator Hannon I
think addressed those issues in the last
debate and the importance, once again, in
dealing with cost factors and in making sure
that we are instituting a public policy that
is not going to have an adverse effect by
putting more people into the uninsured pool.
The coverage is provided for four
embryo transfer procedures. However, if there
is a live birth, then only two more embryo
transfer procedures that would be covered.
This does not cover reversal of sterilization,
reversal of sex change operations, cloning, or
sperm retrieval from deceased individuals.
And the deceased individuals, there's an
exception: unless there had been some prior
intent by the deceased individual.
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Lastly, the much talked about and
discussed conscience clause. First let me
start by saying this. Senator Bruno talked
about, and under his leadership it has been a
hallmark that bills that this house, this
Majority have talked about, he has asked that
we do everything possible to negotiate to
bring about a result so that that legislation
can become law.
Last year, I had indicated on this
bill that there were two versions, there was
an A version and a B version. We negotiated
with all of the interested parties to bring
the bill that we did last year before this
house. After its passage in the Senate, we
went to the Assembly and we offered numerous
ideas for change to improve the bill to bring
about a result that would have both houses
passing the bill.
My counsel has indicated to me that
on the conscience clause, having the
stakeholders at the table talking about
various ideas, we offered probably 10 to 12
various ideas to bring about a comfort level
on the part of the stakeholders, yet not
211
dissolving important principles that they may
have had. The stakeholders were willing to
move forward. The Assembly, for whatever
reason, in the year 2000 -- and I would hope
in the year 2001 that they would change their
mind -- just said no to a conscience clause.
Now, there's been a lot of
discussion and there have been conscience
clauses, religious exemptions in a number of
areas both in the Education Law and in the
Health Law that we have made for various
religious groups, honoring their religious
intent. There are numerous states that have
enacted conscience clauses in dealing with the
matter before us -- California being one,
Texas. There are two or three others that
have enacted this. At a federal level,
dealing with contraceptive devices, the
Congress has enacted a conscience clause
dealing with that matter.
So this is not something that is
new. The IRS code and the definition of what
a religious organization is puts very tight
parameters as to who we are talking about.
Senator Hannon was very specific when he
212
talked about Fidelis. Fidelis is the Catholic
HMO that has been doing business for a
considerable period of time and, as Senator
Hannon said, providing health coverage for
citizens of this state when no one else would
and dealing with individuals who were not
wealthy enough to have health coverage.
So I believe this issue of a
conscience clause can be worked out, should
not be a deterrent in passing either the bill
that was debated prior to this or this bill.
It should not be politicized. There are
individuals who need health coverage, and we
should not compromise that at any juncture.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Duane.
SENATOR DUANE: Thank you, Mr.
President. I have an amendment at the desk
and I'd like to call it up and waive its
reading.
ACTING PRESIDENT MEIER: The
amendment is at the desk, the reading is
waived, and you are recognized for an
explanation.
213
SENATOR DUANE: Thank you very
much, Mr. President.
The amendment that I'm putting
forward mirrors the Assembly legislation on
this issue of infertility. And just briefly,
some of the areas that differ include that
persons having an individual policy would be
covered. The issue of what specific
treatments would be permitted under the
legislation is not restricted in the version
which I've presented to the desk.
And also the amendment which I have
at the desk would not expire. It would be
something which would remain in effect and we
wouldn't have to come back here and debate
this issue again and again through the years.
I share concerns, though, in a
slightly different way on the issue of the
religious exemptions. And I think that while
there are some good things about this
legislation, it really could be a vastly
improved piece of legislation. And I believe
that my amendment would make this a bill which
would be better for those couples and families
and people in the state of New York who are
214
having trouble conceiving children.
ACTING PRESIDENT MEIER: The
question is on the amendment. All those in
favor signify by saying aye.
SENATOR PATERSON: Party vote
with exceptions.
SENATOR SKELOS: Party vote in
the negative.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
ACTING PRESIDENT MEIER: Will the
exceptions to the party vote raise your hands,
please, so the Secretary can get you.
THE SECRETARY: Ayes, 21. Nays,
39. Party vote with exceptions.
ACTING PRESIDENT MEIER: The
amendment is defeated.
Senator Duane.
SENATOR DUANE: Thank you, Mr.
President. On the bill, would the sponsor
yield for some questions.
ACTING PRESIDENT MEIER: Senator
LaValle, do you yield for a question?
SENATOR LAVALLE: Yes.
215
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Thank you very
much.
It appears that the bill does not
extend coverage to individual policies. I was
hoping the sponsor could tell us why
individual policyholders are excluded from the
legislation.
SENATOR LAVALLE: This bill
applies to group policies only, as you have
indicated. It does not -- it allows
individuals to negotiate whatever terms that
they want or don't want with a health
provider.
SENATOR DUANE: Thank you.
Through you, Mr. President, if the
sponsor would continue to yield.
ACTING PRESIDENT MEIER: Senator
LaValle, do you continue to yield?
SENATOR LAVALLE: Yes, I will.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: There's a section
of the bill that refers to a reasonable
216
expectation that treatment will result in a
healthy child, as determined by guidelines
established by the American College of
Obstetricians and Gynecologists and the
American Society for Reproductive Medicine.
My understanding is that there are
no such guidelines put forward by the American
College of Obstetricians and Gynecologists.
I'm wondering if the sponsor could explain to
us where he got the idea that there were such
guidelines in existence.
SENATOR LAVALLE: I'm glad you
raised this question, Senator Duane, because
this is an issue that very specifically is
between the patient and their physician. The
physician then evaluates that circumstance
based on the individual's age and any other
medical condition that that individual would
have.
I would note that, statistically,
people who have assisted reproductive
therapies do not have any higher incidence of
children that might have birth defects. So
studies that have been done show a similarity
between those who have assisted therapies and
217
those that have normal childbirth.
But the decision -- specifically to
your question is that decision is made between
the physician and the patient, and it could
vary from individual to individual based on
the circumstances that the physician evaluates
and the will of the patient to maybe move
ahead with some chance.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
LaValle, do you continue to yield?
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: Thank you.
I accept what the sponsor has just
said as something which could have been said
in the legislation, but it doesn't say that.
It says "as determined by guidelines
established by the American College of
Obstetricians and Gynecologists." And the
American College of Obstetricians and
Gynecologists actually objects to that
218
language, because it has no such guidelines.
So I'm wondering why the sponsor
did decide to use that language even though no
such guidelines exist and, further, why it is
that he didn't put in that this is a decision
which could be made between the patient and
the family and their gynecologist.
SENATOR LAVALLE: Senator Duane,
I am told that the American Society for
Reproductive Medicine does have guidelines,
does have guidelines.
I think you have been looking -
basically looked at the American College of
Obstetricians and Gynecologists, ACOG. They
do not have standards. But the American
Society for Reproductive Medicine, I am told
that they do have standards.
SENATOR DUANE: Through you, Mr.
President, if the sponsor would continue to
yield.
ACTING PRESIDENT MEIER: Senator
LaValle, do you continue to yield?
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MEIER: The
Senator yields.
219
SENATOR DUANE: If that is the
case, then I've never seen the American
Society for Reproductive Medicine guidelines,
and I think we'd all like to see that. And I
have no knowledge that they don't exist.
But at the very least, then,
wouldn't it be a good idea to take out the
reference to the American College of
Obstetricians and Gynecologists?
SENATOR LAVALLE: That's
something we'll look at, Senator.
SENATOR DUANE: Thank you.
And if the sponsor would continue
to yield, Mr. President.
ACTING PRESIDENT MEIER: Senator
LaValle -
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DUANE: I'm also very
concerned about the language that says a
reasonable expectation that the treatment will
result in a healthy child. I'm wondering if
the sponsor could provide a definition of what
a healthy child is.
220
SENATOR LAVALLE: Senator, I just
addressed that. I think there are standards.
I think that is something difficult to define.
I mean, there are certainly definable problems
that a child may have on birth, but we may
disagree as to some things that I might not
think of a child as being unhealthy and you
may disagree with that.
But once again, I mean I think I
talked about the comparison in terms of the
assisted reproductive therapies, someone using
that, and what is within the medical community
defined as being unhealthy, and compare that
to individuals that just have a normal
childbirth where there may be some sort of a
problem, a heart problem, some sort of
deformity. Those are the kinds of things that
I think we can agree on that would be
unhealthy, the child being born unhealthy.
SENATOR DUANE: On the bill, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Duane, on the bill.
SENATOR DUANE: Thank you.
I am very concerned about that last
221
point. I think that a child who is born under
a definition of unhealthy might in fact grow
up to have a wonderful life.
But aside from the sort of human
aspect of that, or maybe it's really a
spiritual aspect of that, I also would have
concerns about litigation which could result
without a better standard of what is and isn't
healthy. I think that that's been left too
vague in the bill.
I described some of my other issues
with the legislation when I offered my
amendment. But I do want to say that for
those reasons, and the reasons which I've just
discussed, I'll be voting no on this.
Thank you, Mr. President.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Will the
sponsor yield to just a couple of questions,
please.
ACTING PRESIDENT MEIER: Senator
LaValle, do you yield to a couple of
questions?
SENATOR LAVALLE: Yes.
222
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Senator, just
a couple of technical questions on the bill.
One is the $60,000 lifetime limit
that's contained in the bill. Through you,
Mr. President, does that include the cost of
delivery of the child if there are
complications in the delivery of the child?
SENATOR LAVALLE: That deals just
with the reproductive services, the assisted
reproductive therapies. But not in the -
because that would be covered, Senator, under
the normal -
ACTING PRESIDENT MEIER: Senator
LaValle, excuse me a second.
Can we have some order in the
chamber. We're conducting a debate. If you
have a conversation, take it outside.
I'm sorry, Senator LaValle. Please
continue.
SENATOR LAVALLE: That would be
covered under the normal provisions of the
health care contract, delivery of services,
delivery services. Here we are talking about
223
the additional coverage, the diagnosis and
treatment of medical conditions which result
in infertility. That's the piece that we're
debating here.
SENATOR DOLLINGER: Again through
you, Mr. President, if Senator LaValle will
yield to a question.
SENATOR LAVALLE: Yes, I will.
ACTING PRESIDENT MEIER: The
Senator yields.
SENATOR DOLLINGER: As I think
you know, Senator, in some cases the cause of
infertility can be anatomical, in the sense of
intrauterine problems with a woman, for
example. And my question is, would it be
anticipated that the $60,000 limit would
include surgery to deal with intrauterine
problems of the potential mother?
SENATOR LAVALLE: As I recall,
that would fall under definition of the
problems leading to infertility. It would
not -- what your -- the question you're asking
me is that endometriosis -
SENATOR DOLLINGER: Right.
SENATOR LAVALLE: Okay, that's
224
the most common. That would fall outside of
this coverage, outside of the $60,000. Would
not include.
I mean, some of the things that
would include -- that are included in this
are -- we always think of the more exotic, of
the embryo transfers. But there are things -
there are hormone therapies that would be
included in the infertility portion of the
bill, or various medications. It would
include surgical procedures to correct a
physical blockage or structural problem in the
reproductive organs. Intrauterine
insemination.
Those are the kinds of things that
we're talking about within that $60,000
coverage, as well as the in vitro provisions
that are at the more exotic level.
SENATOR DOLLINGER: Again through
you, Mr. President, just a clarification for
Senator LaValle's comments.
ACTING PRESIDENT MEIER: Senator
LaValle, do you continue to yield?
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MEIER: The
225
sponsor yields.
SENATOR DOLLINGER: That section
that you just read that talked about surgical
interventions and others, is that in the bill?
Or is that -
SENATOR LAVALLE: No. I mean,
it's not lined out. But these are some of the
procedures and some of the things that are
done. We don't micromanage all -- I mean, you
would have to list all sorts of medications
and various treatments.
I think the point that you're
trying to get at, and I think within current
law, Senator, is that if it is a correctable
medical condition, then it doesn't fall under
this legislation. It falls under current law.
And those are some of the things
that I think you have in your mind as to
repairs that may be needed or a certain
blockage or certain problems. And that would
be covered under current law. A person not
having this kind of coverage would be able to
have those kinds of things.
And indeed, people that have
problems, they begin at the very basic level
226
looking at things that are correctable
medically before we get into the whole arena
of infertility or the reproductive treatment
programs. Some that I mentioned in terms of
hormone treatments and insemination, and then
to the more exotic of the embryo transfers and
so forth.
SENATOR DOLLINGER: Again through
you, Mr. President, if Senator LaValle will
yield -
ACTING PRESIDENT MEIER: Senator
LaValle, will you yield?
SENATOR LAVALLE: Yes. Yes, I
will.
SENATOR DOLLINGER: And I'll
explain what I was driving at -
ACTING PRESIDENT MEIER: Hold it.
Hold it. Hold it.
Senator LaValle, do you continue to
yield?
SENATOR LAVALLE: Yes, I would.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Thank you,
Mr. President. Through you.
227
The reason why I asked the question
is because I wanted to get an understanding of
why you chose $60,000. What's the magic with
that number, if any?
SENATOR LAVALLE: Well, Senator,
like a lot of things, we sat down with the
various stakeholders that were interested in
this. And as I said at the very onset, we
wanted to create a balance between
affordability and being able to provide
services to people.
And so based on the experience of
individuals -- you know, we sat down with
people who represent the American Infertility
Association and we talked about what is a
typical experience, and you try and quantify
that. And I think probably the high amount
was, as I recall, you know, someone put on the
table $100,000. And someone else put $40,000.
And we looked at realistically what
a normal couple would encounter, and that
would be $60,000. And that would include,
Senator, the four embryo transfers, which are
the most expensive parts of the -- of what a
couple would incur. That's the most expensive
228
portion of the infertility process or the
assisted reproductive therapy process.
SENATOR DOLLINGER: Again through
you, Mr. President, if the sponsor will
continue to yield.
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: My next
question is, whose lifetime is counted? Is
that the lifetime of the couple or the
lifetime of each of the individuals?
SENATOR LAVALLE: That's a very
good question, Senator. Because I myself
asked that very question, so I know the
answer.
It covers both the male and the
female in those age categories, between 25 and
44. One of the things that I did not mention
in this debate, that 40 percent of the
problems are related to the female, 40 percent
of the problems are related to the male, and
the other 20 percent are either unknown or
it's a combination of the two.
So, I mean, it's a very good
229
question to say a male at 25, where there is
some sort of problem, is he covered at age 25.
And the answer is yes. And if the female is
age 25, she would be covered as well.
SENATOR DOLLINGER: So again
through you, Mr. President, just for
clarification, the number for a couple then is
really $120,000?
SENATOR LAVALLE: No. No. No.
SENATOR DOLLINGER: Well, again,
through you, Mr. President, if the sponsor
will continue to yield.
ACTING PRESIDENT MEIER: Senator
LaValle, do you continue to yield?
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: So just so I
understand it, it would be $60,000 for the
male and it could be $60,000 for -
SENATOR LAVALLE: No, no. I'm
sorry, I misunderstood. I thought you were
talking about the age. It's $60,000 per
couple.
SENATOR DOLLINGER: Okay. But
230
again through you, Mr. President, that's
nowhere expressed in the bill, though. It
doesn't actually say it. It says a lifetime
limit. It doesn't say for a couple.
SENATOR LAVALLE: It would be
$60,000 in the lifetime of that policyholder
within those age limitations that we talked
about and the number of procedures that we
talk about in the bill, a limitation on the
four embryo transfers or, if there is a birth,
then two transfers after that.
SENATOR DOLLINGER: And again
through you, Mr. President, if the sponsor
will continue to yield.
SENATOR LAVALLE: Yes.
SENATOR DOLLINGER: I'm just
trying to be careful here because we don't
really describe this couple relationship, we
talk about lifetime. And I simply want to try
to give someone somewhere some guidance as to
whether it would mean $60,000 worth of
infertility treatments for each of the
individuals in the marriage or $60,000 total
for the couple. That could be a significant
additional cost in the bill.
231
SENATOR LAVALLE: Senator, I
think where we're getting confused -- and I
had indicated this before -- it's tied to the
individual policy that the individual has. So
it is going back to if the male happened to
have an individual policy, that policy would
limit it to $60,000. If the female happened
to have her own policy, that policy limit
would also be $60,000.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: If I can just
interrupt for a minute, there will be an
immediate meeting of the Veterans Committee in
the Majority Conference Room.
ACTING PRESIDENT MEIER:
Immediate meeting of the Veterans Committee in
the Majority Conference Room.
SENATOR DOLLINGER: Through you,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: I have one
more question on this topic, if Senator
LaValle will continue to yield.
232
ACTING PRESIDENT MEIER: Senator
LaValle, do you continue to yield?
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Senator
LaValle, the point of my questions was
because, as you have stated, 40 percent of the
problem can be female and 40 percent of it can
be male, and I think we needed to decide
whether this was a $60,000 limit for the male
and the female combined or, as I now
understand it, if they both had separate
policies -- one worked for a school district,
one worked for a private employer, they both
had coverage -- they'd have $60,000 each under
that, because they're covered by separate
policies.
SENATOR LAVALLE: By those
policies, yes.
SENATOR DOLLINGER: Okay. And my
question is, through you, Mr. President, with
Senator LaValle's concurrence, isn't the big
cost involved in the drug therapy? And
therefore isn't the unlimited cost that's
233
contained in the second part of that
paragraph, which says that the $60,000
limitation shall not apply to prescription
drugs related to the infertility?
SENATOR LAVALLE: Assuming that
the coverage that the individual has has
prescription drug coverage, the prescription
drug coverage is outside of the $60,000
limitation.
The limitation, Senator, so that
you see the thought process that we went
through, is really in the first -- you go
through some of the treatments that I talked
about initially, hormone treatments would
be -- insemination treatments.
SENATOR DOLLINGER: Right.
SENATOR LAVALLE: And even before
you got to that, you would look at some of the
correctable medical treatments or problems
that the individual could have. Even before
you get to the hormone treatments and
insemination.
Once you have gone through that
tier of treatments, then you go into the more
exotic, the embryo transfers. Those
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treatments are very costly. And that's why
there was some limitation, because you can
well understand the frustration of the
couples, and a couple may want to go on and on
and on and have six or eight of these
treatments, and that in and of itself could
eat up the entire -- the amount that we have,
of $60,000, can eat it up.
So there had to be some boundaries
put around the number of treatments for the
embryo transfers. And medical practice,
however, starts well before you get to embryo
transfers. It starts with less costly things,
drugs and medication that have a success rate,
and so forth, before you get to the more
costly and more exotic treatments.
SENATOR DOLLINGER: One final
question, Mr. President.
ACTING PRESIDENT MEIER: Senator
LaValle, do you yield for a final question?
SENATOR LAVALLE: Yes.
ACTING PRESIDENT MEIER: The
sponsor yields.
SENATOR DOLLINGER: Senator
LaValle, once you get to that complicated and
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very costly procedure, the embryo transfer or
other -- I think the tendency would be to use
the word "exotic," but that's the wrong word.
Unusual, let's say -- treatments at the final
stages of trying to resolve a fertility
problem, could you just tell me what the
success rate is and the science is in those
treatments at the final stages of attempting
to deal with infertility? Just tell me what
the success rate is and how -- I mean, you've
described it as very expensive. My
understanding is they're very expensive.
SENATOR LAVALLE: Yes. Yes.
First of all, when we're talking about the in
vitro fertilization, only 5 to 10 percent of
the patients actually need that, go to that
level.
And what was your -- the result,
the success rate?
SENATOR DOLLINGER: My question,
through you, Mr. President, if Senator LaValle
will yield -
SENATOR LAVALLE: I have that
someplace. Let's see. Okay. According to
the latest statistics, the success rate for
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live birth per egg retrieval or IVF is
27.7 percent.
SENATOR DOLLINGER: And that's
the -
SENATOR LAVALLE: And then they
have, you know, other statistics here. The
success rate is higher than the 20 percent
chance that a healthy reproductively normal
couple has of achieving a pregnancy that
results in a live-born baby in any given
month.
So as I said, we're talking success
rate. And the last treatments are in the
neighborhood of -- and there are various kinds
of treatments. We just talked about the in
vitro fertilization. But the other treatments
as well are 27 -- the highest would be
29.8 percent. So you're talking about under
30 percent.
SENATOR DOLLINGER: Right.
Through you, Mr. President, just
one follow-up question, if Senator LaValle
will yield.
ACTING PRESIDENT MEIER: A
follow-up to the final question, Senator
237
LaValle. Will you yield?
SENATOR LAVALLE: Yes.
SENATOR DOLLINGER: The reason
why there's a follow-up, because in essence if
your bill provides for four of these types of
treatments and the success rate is 27 percent,
in almost every case, since that's the
average, in order to have one live birth you'd
have to go through all four treatments.
Because the success rate is only a quarter -
only a quarter of the attempts actually
succeed. So under those circumstances, on the
average -- and again -
SENATOR LAVALLE: But, Senator,
just recall one other thing. And that's why I
mentioned this. Only 5 to 10 percent of the
couples ever reach that level.
SENATOR DOLLINGER: But through
you, Mr. President, under this bill we're
giving them access to that final set of
treatments, which are, as you've described
them, very costly, which have a success rate
of about 27 percent, and we're allowing them
to have four of those procedures. And I
understand that we're not talking about a big
238
number. But we're talking about a large
investment in time, money, procedures.
And I understand, this is done with
the perhaps lifelong desire of the couple
involved in having a child. But we're
spending the most, the biggest share of our
money on a procedure that three out of four
times will not succeed under the most
favorable assumption.
SENATOR LAVALLE: We are also
assuming, you know, the rate of technology and
how this infertility field, medical field is
growing, that statistically those numbers, you
know, will improve.
Senator, what this bill does is it
gives people who have no hope a great hope.
And this is a -- the treatment process -- and
I've spoken to many of the people who have
gone through these frustrations -- is a very
tiered process that begins with looking at
things that would be covered in their medical
insurance policies today because it could be
surgically corrected. Then we go to the other
levels; again, I repeat, you know, through
drug treatments and hormone treatments. And
239
between those two, we are covering 90 to 95
percent of the people and allowing them to
receive a positive result.
So I know that you focused in on
this 5 to 10 percent. But I think that even
there that a 30 percent success rate isn't too
bad.
SENATOR DOLLINGER: Mr.
President, I thank Senator LaValle for, as is
his practice, an enlightening and
compassionate view of the difficult and
complicated question that this bill poses.
But I think, Senator LaValle, I
disagree with you when we get to the -
ACTING PRESIDENT MEIER: Senator,
Are you on the bill now?
SENATOR DOLLINGER: Yes, please,
Mr. President.
ACTING PRESIDENT MEIER: Senator
Dollinger, on the bill.
SENATOR DOLLINGER: I disagree
with you when we get to the final step.
What I heard you say is that
95 percent of the people who deal with the
problem of infertility currently, now, have
240
most of their difficulties in conceiving
children covered by our current coverage,
whether it's surgical interventions or drug
therapies. Assuming that their policies have
coverage, they would get some benefit to try
to deal with the problem of infertility.
But what that bill does is this
bill says that of that 5 percent who need
other treatments, in vitro or otherwise,
there's going to be an enormous resource of
the insurance pool of funds committed to a
small portion of those who deal with the
problem of infertility and, in dealing with
that, it's going to be very very costly to
deal with.
Senator LaValle, I think if you
look at your numbers, you're going to find
that on the average, every person will need to
have the four treatments, because it only
works in 27 percent of the time. So in order
for one couple to have one child, on the
average there would have to be four attempted
in vitro fertilizations in order for it to
occur.
Mr. President, we dealt with a bill
241
that dealt with another mandate earlier today.
This bill is an enormously costly mandate that
may reduce the available insurance funds that
would otherwise put money into surgical and
hormonal procedures that would eliminate the
problem of infertility for a vast majority of
New Yorkers.
I think that in analyzing a mandate
you have to look at the science, the extent of
the people who are unprotected, and the cost.
And it's my view that this mandate falls short
on all three counts.
The science is somewhat
speculative. Compassionate, Senator LaValle,
I agree. But the science of one in four of an
opportunity for even a small population is a
very -- at a very substantial cost, I think
when you use that kind of a test of the number
of people affected, the science involved and
the success of the science, and the cost, this
mandate does not work.
I'll vote in the negative, Mr.
President.
ACTING PRESIDENT MEIER: Senator
Lachman.
242
SENATOR LACHMAN: Yes. On the
bill, Mr. President.
In her book Recreating Motherhood:
Ideology and Technology in a Patriarchal
Society, Barbara Katz Rothman, who is a
professor of sociology at Baruch College and
the Graduate Center of the City University of
New York, has written: "The treatment of
infertility needs to be recognized as an issue
of self-determination. It is as important a
an issue for women as access to contraception
and freedom from forced sterilization."
And I owe the book and the quote to
my wife, Dr. Susan Lachman, who is also a
sociologist.
But I must tell the members of this
chamber, through you, Mr. President, that I am
as equally concerned, if not more concerned,
about this issue in a broader sense. My
colleagues were discussing the specificity of
the issue. I'm concerned what this issue
means to American society.
A few years ago, Gertrude
Himmelfarb wrote a book -- she's one of
America's great historians -- and the book was
243
called One Nation, Two Societies. And she
spoke about the United States being divided,
and the division was a social divide. And
unfortunately, whether we are Democrats or
Republicans, we witnessed this social divide
during the recent presidential election.
But I'm concerned that this bill
could create another divide. It is not
difficult for the wealthy to pay $7,000,
$8,000, or $10,000 for the necessary
medication or procedure that is important to
eliminate infertility. But the poor people of
this land, this great land, cannot afford to
pay that amount of money.
This, Mr. President, creates a
greater divide, of the poor against the
well-to-do, poverty against the wealthy,
unless this chamber and unless the Assembly
create a bill, a compromise bill that has a
stand to passage.
16 percent of Americans cannot
conceive. Many of them will be able to
conceive with the new technology and
medications that we have, but they cannot use
this unless they are insured. These people
244
have chosen to give birth to life. They cross
the boundaries, they cross the bridges, they
want to have children. And it is our
responsibility to listen to them and not to
create a greater divide in America between the
poor and the wealthy.
Mr. President, if I had my
druthers, based upon my vote on the amendment,
I would take and accept the bill from the
Assembly. But I have faith in the major faith
organizations of this state, who have been in
constant dialogue with each other and the
leaders of the State Senate and the leaders of
the Assembly.
I will vote for this bill. With
reservation, but I will vote for this bill
because I look upon this bill as a first step
towards a compromise bill that will allow all
people who are in need of aid to eliminate
infertility to receive that aid, regardless of
their economic position in society, regardless
of race, ethnicity, and religion. It is a
first step towards a compromise between the
two houses of this Legislature.
And I hope the compromise will not
245
be attempted at the last hours of the session
of this Legislature, as took place last year.
I therefore vote yes on this bill.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: Mr. President,
there will be an immediate meeting of the
Children and Families Committee in the
Majority Conference Room.
ACTING PRESIDENT MEIER:
Immediate meeting of the Children and Families
Committee in the Majority Conference Room.
Read the last section.
THE SECRETARY: Section 4. This
act shall take effect July 1.
ACTING PRESIDENT MEIER: Call the
roll.
(The Secretary called the roll.)
THE SECRETARY: Those recorded in
the negative on Calendar Number 39 are
Senators Breslin, Brown, Connor, Dollinger,
Duane, Hassell-Thompson, Kuhl, Maltese, McGee,
Meier, Montgomery, Onorato, Oppenheimer,
Paterson, Sampson, Schneiderman, Seward, A.
Smith, M. Smith, Stachowski, and Stavisky.
246
Ayes, 39. Nays, 21.
ACTING PRESIDENT MEIER: The bill
is passed.
SENATOR SKELOS: Mr. President.
ACTING PRESIDENT MEIER: Senator
Skelos.
SENATOR SKELOS: If we could
return to motions and resolutions, I believe
there's a privileged resolution at the desk by
Senator Bruno. I ask that the title be read
and move for its immediate adoption.
ACTING PRESIDENT MEIER: Motions
and resolutions.
The Secretary will read the title.
THE SECRETARY: By Senators
Bruno, Leibell, and Spano, Legislative
Resolution honoring the Honorable James J.
McGowan upon the occasion of his retirement
after many years of distinguished service as
New York State Commissioner of Labor.
ACTING PRESIDENT MEIER: The
question is on the resolution. All those in
favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
247
nay.
(No response.)
ACTING PRESIDENT MEIER: The
resolution is adopted.
Senator Skelos.
SENATOR SKELOS: Mr. President, I
believe there's a privileged resolution at the
desk by Senator Seward. I ask that the title
be read and move for its immediate adoption.
ACTING PRESIDENT MEIER: The
Secretary will read the title.
THE SECRETARY: By Senator
Seward, Legislative Resolution commemorating
the 20th anniversary of service to the rural
communities of Tompkins County, New York, by
Better Housing for Tompkins County,
Incorporated.
ACTING PRESIDENT MEIER: The
question is on the resolution. All those in
favor signify by saying aye.
(Response of "Aye.")
ACTING PRESIDENT MEIER: Opposed,
nay.
(No response.)
ACTING PRESIDENT MEIER: The
248
resolution is adopted.
Senator Skelos.
SENATOR SKELOS: Mr. President,
on behalf of Senator Bruno, I hereby give
written notice, as required by Rule 11, that
he will move to amend the Senate rules.
ACTING PRESIDENT MEIER: The
notice has been received at the desk and will
be filed.
SENATOR SKELOS: Please recognize
Senator Dollinger.
ACTING PRESIDENT MEIER: Senator
Dollinger.
SENATOR DOLLINGER: Thank you,
Mr. President. Thank you to the Deputy
Majority Leader.
I also give notice, pursuant to
Rule 11, of a motion to amend the Senate rules
which is at the desk, Mr. President.
ACTING PRESIDENT MEIER: That
notice has been received at the desk, and it
will be filed.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could return to reports of standing
249
committees.
ACTING PRESIDENT MEIER: Reports
of standing committees.
The Secretary will read.
THE SECRETARY: Senator
Marcellino, from the Committee on
Environmental Conservation, reports:
Senate Print 743, by Senator
Johnson, an act to amend the Environmental
Conservation Law;
781, by Senator Marcellino, an act
to repeal Title 17 of Article 23;
And Senate Print 806, by Senator
Marcellino, an act to amend the Environmental
Conservation Law.
Senator Rath, from the Committee on
Local Government, reports:
Senate Print 858, by Senator
Balboni, an act to authorize the Congregation
Shira Chadasha;
And Senate Print 859, by Senator
Balboni, an act in relation to authorizing the
Chabad Lubavitch of Old Westbury to file.
Senator Morahan, from the Committee
on Veterans and Military Affairs, reports:
250
Senate Print 89, by Senator
Maltese, an act to amend the Real Property Tax
Law;
109, by Senator Marcellino, an act
to amend the Vehicle and Traffic Law;
364, by Senator Morahan, an act to
amend the Civil Service Law;
371, by Senator Morahan, an act to
amend the Military Law;
And Senate Print 500, by Senator
Morahan, an act to amend the Real Property Tax
Law.
All bills ordered direct to third
reading.
SENATOR SKELOS: Mr. President,
is there any housekeeping at the desk?
ACTING PRESIDENT MEIER: We have
a motion, Senator Skelos.
Senator Libous.
SENATOR LIBOUS: Thank you, Mr.
President.
On behalf of Senator Volker, Mr.
President, I move that the following bill be
discharged from its respective committee and
be recommitted with instructions to strike the
251
enacting clause: Senate Number 1163.
ACTING PRESIDENT MEIER: So
ordered.
With regard to the committee
reports, without objection, all bills are
reported directly to third reading.
Senator Skelos.
SENATOR SKELOS: Mr. President, I
believe we have one more committee report,
Senator Saland's committee.
There will be an immediate
conference of the Majority in the Majority
Conference Room.
ACTING PRESIDENT MEIER:
Immediate meeting of the Majority Conference
in the Majority Conference Room.
Senator Skelos.
SENATOR SKELOS: Mr. President,
if we could again return to reports of
standing committees, I believe there's a
report at the desk.
ACTING PRESIDENT MEIER: Reports
of standing committees.
The Secretary will read.
THE SECRETARY: Senator Saland,
252
from the Committee on Children and Families,
reports:
Senate Print 115, by Senator
Marcellino, an act to amend the Social
Services Law;
394, by Senator Saland, an act to
amend the Social Services Law;
395, by Senator Saland, an act to
amend the Family Court Act;
404, by Senator Skelos, an act to
amend the Social Services Law;
And 421, by Senator Skelos, an act
to amend the Domestic Relations Law.
All bills ordered direct to third
reading.
ACTING PRESIDENT MEIER: Without
objection, all bills directly to third
reading.
Senator Skelos.
SENATOR SKELOS: Mr. President,
is there any housekeeping at the desk?
ACTING PRESIDENT MEIER: There is
no housekeeping.
SENATOR SKELOS: There being no
further business, I move we adjourn until
253
Monday, January 29th, at 3:00 p.m.,
intervening days being legislative days.
ACTING PRESIDENT MEIER: On
motion, the Senate stands adjourned until
Monday, January 29th, at 3:00 p.m.,
intervening days being legislative days.
(Whereupon, at 1:35 p.m., the
Senate adjourned.)