STATE OF NEW YORK
________________________________________________________________________
6544--A
Cal. No. 251
2017-2018 Regular Sessions
IN SENATE
June 1, 2017
___________
Introduced by Sens. AKSHAR, CARLUCCI, FUNKE, HELMING, JACOBS, KAMINSKY,
MARCHIONE, MURPHY, O'MARA, PHILLIPS, RANZENHOFER, RITCHIE -- (at
request of the Office of Alcoholism and Substance Abuse Services) --
read twice and ordered printed, and when printed to be committed to
the Committee on Alcoholism and Drug Abuse -- recommitted to the
Committee on Alcoholism and Drug Abuse in accordance with Senate Rule
6, sec. 8 -- reported favorably from said committee, ordered to first
and second report, ordered to a third reading, amended and ordered
reprinted, retaining its place in the order of third reading
AN ACT to amend the mental hygiene law, in relation to prohibiting
deceptive acts and practices for substance use disorder treatment
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. The mental hygiene law is amended by adding a new section
2 32.06 to read as follows:
3 § 32.06 Prohibition on deceptive acts and practices.
4 (a) Definitions. As used in this section, the following terms shall
5 have the following meanings, unless the context clearly requires other-
6 wise:
7 (1) "Addiction professional" shall mean a professional who, within the
8 scope of their license issued pursuant to title eight of the education
9 law or credential issued pursuant to section 19.07 of this chapter, if
10 working in an individual capacity, provides substance abuse and
11 prevention services.
12 (2) "Credentialed professional" shall include any person who is in the
13 process of applying for a credential issued by the commissioner pursuant
14 to section 19.07 of this chapter, or who has a valid credential, or who
15 is eligible for credential renewal;
16 (3) "Health care provider" shall mean a practitioner in an individual
17 practice, group practice, partnership, professional corporation or other
18 authorized form of association, a hospital or other health care institu-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10119-02-8
S. 6544--A 2
1 tion issued an operating certificate pursuant to article twenty-eight of
2 the public health law or article thirty-one of this title or this arti-
3 cle, and any other purveyor of health or health related items or
4 services.
5 (4) "Potential service recipient" shall mean a person who is a
6 substance abuser, substance dependent, in need of services to avoid
7 becoming a substance abuser, or substance dependent.
8 (5) "Substance abuse program" shall mean any public or private person,
9 corporation, partnership, agency, either profit or non-profit, or state
10 or municipal government which provides, or holds itself out as provid-
11 ing, substance abuse services, in either a residential or ambulatory
12 setting, to persons who are substance abusers, substance dependent, in
13 need of services to avoid becoming substance abusers, substance depend-
14 ent or to significant others.
15 (6) "Substance abuse services" shall include services to inhibit the
16 onset of substance abuse or substance dependence; to address the social
17 dysfunction, medical problems and other disabilities associated with
18 substance abuse or substance dependence, and to rehabilitate persons
19 suffering from substance abuse or dependence.
20 (b) It is unlawful for any person, including any individual, addiction
21 professional, credentialed professional, health care provider, health
22 care facility or substance abuse program to:
23 (1) Promote, offer, give, solicit or pay any commission, bonus,
24 rebate, kickback, or bribe, directly or indirectly, in cash or in kind,
25 or engage in any split-fee arrangement, to induce the referral of a
26 potential service recipient or in connection with the performance of a
27 substance abuse service;
28 (2) Solicit, agree to receive or receive any commission, bonus,
29 rebate, kickback, or bribe, directly or indirectly, in cash or in kind,
30 or engage in any split-fee arrangement, in any form whatsoever, in
31 return for referring a potential service recipient or in connection with
32 the performance of a substance abuse service; or
33 (3) Aid, abet, advise, or otherwise participate in the conduct prohib-
34 ited under paragraph one or two of this subdivision.
35 (c) This section shall not apply to:
36 (1) Any discount, payment, waiver of payment, or payment practice not
37 prohibited by 42 U.S.C. § 1320a-7b(b) or regulations promulgated there-
38 under.
39 (2) Payments to an addiction professional, health care provider,
40 health care facility or substance abuse program for professional consul-
41 tation services.
42 (3) Commissions, fees, or other remuneration lawfully paid to insur-
43 ance agents as provided under the insurance law.
44 (4) Payments by a health insurer who reimburses, provides, offers to
45 provide, or administers health, mental health, or substance abuse
46 services under a health benefit plan.
47 (5) Payments to or by an addiction professional, health care provider,
48 health care facility, a health care provider network entity, or a
49 substance abuse program, that has contracted with a health insurer, a
50 health care purchasing group, or the Medicare or Medicaid program to
51 provide health, mental health, or substance abuse services under a
52 health benefit plan when such payments are for services under the plan.
53 (6) Payments by an addiction professional, health care provider,
54 health care facility or substance abuse program to a health, mental
55 health, or substance abuse information service that provides information
56 upon request and without charge to consumers about providers of
S. 6544--A 3
1 substance abuse services to enable consumers to select appropriate
2 substance abuse programs, provided that such information service:
3 i. Does not attempt through its standard questions for solicitation of
4 consumer criteria or through any other means to steer or lead a consumer
5 to select or consider selection of a particular addiction professional,
6 substance abuse services or substance abuse program;
7 ii. Does not provide or represent itself as providing diagnostic or
8 counseling services or assessments of an individual's need for substance
9 abuse services and does not make any promises of cure or guarantees of
10 treatment;
11 iii. Does not provide or arrange for transportation of a consumer to
12 or from the location of a substance abuse service or program; and
13 iv. Charges and collects fees from an addiction professional, health
14 care provider, health care facility or substance abuse program partic-
15 ipating in its services that are set in advance, are consistent with the
16 fair market value for those information services, and are not based on
17 the potential value of a potential service recipient or recipients to a
18 substance abuse program or of the goods or services provided by the
19 substance abuse program.
20 (d) Any individual, including an officer, partner, agent, attorney, or
21 other representative of a partnership, association, corporation, limited
22 liability company or partnership, public or private agency or any part
23 thereof who knowingly fails to comply with the provisions of this
24 section shall be guilty of a misdemeanor as defined in the penal law.
25 (e) If the commissioner has reason to believe that there is an indi-
26 vidual, partnership, association, corporation, limited liability company
27 or partnership, public or private agency or any part thereof violating
28 subdivision (b) of this section, he or she shall proceed pursuant to
29 applicable sections of this chapter including but not limited to
30 sections 32.13, 32.15, 32.19 and 32.27 of this article.
31 (f) The party bringing an action under this section may recover
32 reasonable expenses in obtaining injunctive relief, including, but not
33 limited to, investigative costs, court costs, reasonable attorney's
34 fees, witness costs, and deposition expenses.
35 (g) The provisions of this section are in addition to any other civil,
36 administrative, or criminal actions provided by law and may be imposed
37 against both corporate and individual defendants.
38 § 2. This act shall take effect immediately.