S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6544
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               June 1, 2017
                                ___________
 
 Introduced by Sen. AKSHAR -- (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
 
 AN ACT to amend the mental hygiene law and the penal 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:
 
   Section 1. The mental hygiene law is amended by adding a  new  section
 32.06 to read as follows:
 § 32.06 PROHIBITION ON DECEPTIVE ACTS AND PRACTICES.
   (A)  DEFINITIONS.  AS  USED IN THIS SECTION, THE FOLLOWING TERMS SHALL
 HAVE THE FOLLOWING MEANINGS, UNLESS THE CONTEXT CLEARLY REQUIRES  OTHER-
 WISE:
   (1) "ADDICTION PROFESSIONAL" SHALL MEAN A PROFESSIONAL WHO, WITHIN THE
 SCOPE  OF  THEIR LICENSE ISSUED PURSUANT TO TITLE EIGHT OF THE EDUCATION
 LAW OR CREDENTIAL ISSUED PURSUANT TO SECTION 19.07 OF THE MENTAL HYGIENE
 LAW, IF WORKING IN AN INDIVIDUAL CAPACITY, PROVIDES SUBSTANCE ABUSE  AND
 PREVENTION SERVICES.
   (2) "CREDENTIALED PROFESSIONAL" SHALL INCLUDE ANY PERSON WHO IS IN THE
 PROCESS OF APPLYING FOR A CREDENTIAL ISSUED BY THE COMMISSIONER PURSUANT
 TO  SECTION  19.07 OF THE MENTAL HYGIENE LAW, OR WHO HAS A VALID CREDEN-
 TIAL, OR WHO IS ELIGIBLE FOR CREDENTIAL RENEWAL;
   (3) "HEALTH CARE PROVIDER" SHALL MEAN A PRACTITIONER IN AN  INDIVIDUAL
 PRACTICE, GROUP PRACTICE, PARTNERSHIP, PROFESSIONAL CORPORATION OR OTHER
 AUTHORIZED FORM OF ASSOCIATION, A HOSPITAL OR OTHER HEALTH CARE INSTITU-
 TION ISSUED AN OPERATING CERTIFICATE PURSUANT TO ARTICLE TWENTY-EIGHT OF
 THE  PUBLIC HEALTH LAW OR ARTICLE THIRTY-ONE OR THIRTY-TWO OF THE MENTAL
 HYGIENE LAW, AND ANY OTHER PURVEYOR OF HEALTH OR HEALTH RELATED ITEMS OR
 SERVICES.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10119-01-7
              

 S. 6544                             2
 
   (4) "POTENTIAL SERVICE  RECIPIENT"  SHALL  MEAN  A  PERSON  WHO  IS  A
 SUBSTANCE  ABUSER,  SUBSTANCE  DEPENDENT,  IN  NEED OF SERVICES TO AVOID
 BECOMING A SUBSTANCE ABUSER, OR SUBSTANCE DEPENDENT.
   (5) "SUBSTANCE ABUSE PROGRAM" SHALL MEAN ANY PUBLIC OR PRIVATE PERSON,
 CORPORATION,  PARTNERSHIP, AGENCY, EITHER PROFIT OR NON-PROFIT, OR STATE
 OR MUNICIPAL GOVERNMENT WHICH PROVIDES, OR HOLDS ITSELF OUT  AS  PROVID-
 ING,  SUBSTANCE  ABUSE  SERVICES,  IN EITHER A RESIDENTIAL OR AMBULATORY
 SETTING, TO PERSONS WHO ARE SUBSTANCE ABUSERS, SUBSTANCE  DEPENDENT,  IN
 NEED  OF SERVICES TO AVOID BECOMING SUBSTANCE ABUSERS, SUBSTANCE DEPEND-
 ENT OR TO SIGNIFICANT OTHERS.
   (6) "SUBSTANCE ABUSE SERVICES" SHALL INCLUDE SERVICES TO  INHIBIT  THE
 ONSET  OF SUBSTANCE ABUSE OR SUBSTANCE DEPENDENCE; TO ADDRESS THE SOCIAL
 DYSFUNCTION, MEDICAL PROBLEMS AND  OTHER  DISABILITIES  ASSOCIATED  WITH
 SUBSTANCE  ABUSE  OR  SUBSTANCE  DEPENDENCE, AND TO REHABILITATE PERSONS
 SUFFERING FROM SUBSTANCE ABUSE OR DEPENDENCE.
   (B) IT IS UNLAWFUL FOR ANY PERSON, INCLUDING ANY INDIVIDUAL, ADDICTION
 PROFESSIONAL, CREDENTIALED PROFESSIONAL, HEALTH  CARE  PROVIDER,  HEALTH
 CARE FACILITY OR SUBSTANCE ABUSE PROGRAM TO:
   (1)  PROMOTE,  OFFER,  GIVE,  SOLICIT  OR  PAY  ANY COMMISSION, BONUS,
 REBATE, KICKBACK, OR BRIBE, DIRECTLY OR INDIRECTLY, IN CASH OR IN  KIND,
 OR  ENGAGE  IN  ANY  SPLIT-FEE  ARRANGEMENT, TO INDUCE THE REFERRAL OF A
 POTENTIAL SERVICE RECIPIENT OR IN CONNECTION WITH THE PERFORMANCE  OF  A
 SUBSTANCE ABUSE SERVICE;
   (2)  SOLICIT,  AGREE  TO  RECEIVE  OR  RECEIVE  ANY COMMISSION, BONUS,
 REBATE, KICKBACK, OR BRIBE, DIRECTLY OR INDIRECTLY, IN CASH OR IN  KIND,
 OR  ENGAGE  IN  ANY  SPLIT-FEE  ARRANGEMENT,  IN ANY FORM WHATSOEVER, IN
 RETURN FOR REFERRING A POTENTIAL SERVICE RECIPIENT OR IN CONNECTION WITH
 THE PERFORMANCE OF A SUBSTANCE ABUSE SERVICE; OR
   (3) AID, ABET, ADVISE, OR OTHERWISE PARTICIPATE IN THE CONDUCT PROHIB-
 ITED UNDER PARAGRAPH ONE OR PARAGRAPH TWO OF THIS SUBDIVISION.
   (C) THIS SECTION SHALL NOT APPLY TO:
   (1) ANY DISCOUNT, PAYMENT, WAIVER OF PAYMENT, OR PAYMENT PRACTICE  NOT
 PROHIBITED  BY 42 U.S.C. § 1320A-7B(B) OR REGULATIONS PROMULGATED THERE-
 UNDER.
   (2) PAYMENTS TO  AN  ADDICTION  PROFESSIONAL,  HEALTH  CARE  PROVIDER,
 HEALTH CARE FACILITY OR SUBSTANCE ABUSE PROGRAM FOR PROFESSIONAL CONSUL-
 TATION SERVICES.
   (3)  COMMISSIONS,  FEES, OR OTHER REMUNERATION LAWFULLY PAID TO INSUR-
 ANCE AGENTS AS PROVIDED UNDER THE INSURANCE LAW.
   (4) PAYMENTS BY A HEALTH INSURER WHO REIMBURSES, PROVIDES,  OFFERS  TO
 PROVIDE,  OR  ADMINISTERS  HEALTH,  MENTAL  HEALTH,  OR  SUBSTANCE ABUSE
 SERVICES UNDER A HEALTH BENEFIT PLAN.
   (5) PAYMENTS TO OR BY AN ADDICTION PROFESSIONAL, HEALTH CARE PROVIDER,
 HEALTH CARE FACILITY, A  HEALTH  CARE  PROVIDER  NETWORK  ENTITY,  OR  A
 SUBSTANCE  ABUSE  PROGRAM,  THAT HAS CONTRACTED WITH A HEALTH INSURER, A
 HEALTH CARE PURCHASING GROUP, OR THE MEDICARE  OR  MEDICAID  PROGRAM  TO
 PROVIDE  HEALTH,  MENTAL  HEALTH,  OR  SUBSTANCE  ABUSE SERVICES UNDER A
 HEALTH BENEFIT PLAN WHEN SUCH PAYMENTS ARE FOR SERVICES UNDER THE PLAN.
   (6) PAYMENTS BY  AN  ADDICTION  PROFESSIONAL,  HEALTH  CARE  PROVIDER,
 HEALTH  CARE  FACILITY  OR  SUBSTANCE  ABUSE PROGRAM TO A HEALTH, MENTAL
 HEALTH, OR SUBSTANCE ABUSE INFORMATION SERVICE THAT PROVIDES INFORMATION
 UPON  REQUEST  AND  WITHOUT  CHARGE  TO  CONSUMERS  ABOUT  PROVIDERS  OF
 SUBSTANCE  ABUSE  SERVICES  TO  ENABLE  CONSUMERS  TO SELECT APPROPRIATE
 SUBSTANCE ABUSE PROGRAMS, PROVIDED THAT SUCH INFORMATION SERVICE:
   I. DOES NOT ATTEMPT THROUGH ITS STANDARD QUESTIONS FOR SOLICITATION OF
 CONSUMER CRITERIA OR THROUGH ANY OTHER MEANS TO STEER OR LEAD A CONSUMER

 S. 6544                             3
 
 TO SELECT OR CONSIDER SELECTION OF A PARTICULAR ADDICTION  PROFESSIONAL,
 SUBSTANCE ABUSE SERVICES OR SUBSTANCE ABUSE PROGRAM;
   II.  DOES  NOT  PROVIDE OR REPRESENT ITSELF AS PROVIDING DIAGNOSTIC OR
 COUNSELING SERVICES OR ASSESSMENTS OF AN INDIVIDUAL'S NEED FOR SUBSTANCE
 ABUSE SERVICES AND DOES NOT MAKE ANY PROMISES OF CURE OR  GUARANTEES  OF
 TREATMENT;
   III.  DOES  NOT PROVIDE OR ARRANGE FOR TRANSPORTATION OF A CONSUMER TO
 OR FROM THE LOCATION OF A SUBSTANCE ABUSE SERVICE OR PROGRAM; AND
   IV. CHARGES AND COLLECTS FEES FROM AN ADDICTION  PROFESSIONAL,  HEALTH
 CARE  PROVIDER,  HEALTH CARE FACILITY OR SUBSTANCE ABUSE PROGRAM PARTIC-
 IPATING IN ITS SERVICES THAT ARE SET IN ADVANCE, ARE CONSISTENT WITH THE
 FAIR MARKET VALUE FOR THOSE INFORMATION SERVICES, AND ARE NOT  BASED  ON
 THE  POTENTIAL VALUE OF A POTENTIAL SERVICE RECIPIENT OR RECIPIENTS TO A
 SUBSTANCE ABUSE PROGRAM OR OF THE GOODS  OR  SERVICES  PROVIDED  BY  THE
 SUBSTANCE ABUSE PROGRAM.
   (D) ANY INDIVIDUAL, INCLUDING AN OFFICER, PARTNER, AGENT, ATTORNEY, OR
 OTHER REPRESENTATIVE OF A PARTNERSHIP, ASSOCIATION, CORPORATION, LIMITED
 LIABILITY  COMPANY  OR PARTNERSHIP, PUBLIC OR PRIVATE AGENCY OR ANY PART
 THEREOF WHO KNOWINGLY FAILS  TO  COMPLY  WITH  THE  PROVISIONS  OF  THIS
 SECTION  SHALL  BE  GUILTY OF A MISDEMEANOR AS DEFINED IN THE PENAL LAW,
 PUNISHABLE IN ACCORDANCE WITH SECTION 177.05 OF THE PENAL LAW.
   (E) IF THE COMMISSIONER HAS REASON TO BELIEVE THAT THERE IS  AN  INDI-
 VIDUAL, PARTNERSHIP, ASSOCIATION, CORPORATION, LIMITED LIABILITY COMPANY
 OR  PARTNERSHIP,  PUBLIC OR PRIVATE AGENCY OR ANY PART THEREOF VIOLATING
 SUBDIVISION (B) OF THIS SECTION, HE OR SHE  SHALL  PROCEED  PURSUANT  TO
 APPLICABLE  SECTIONS  OF  THIS  CHAPTER  INCLUDING  BUT  NOT  LIMITED TO
 SECTIONS 32.3, 32.15, 32.19 AND 32.27 OF THIS ARTICLE.
   (F) THE PARTY BRINGING  AN  ACTION  UNDER  THIS  SECTION  MAY  RECOVER
 REASONABLE  EXPENSES  IN OBTAINING INJUNCTIVE RELIEF, INCLUDING, BUT NOT
 LIMITED TO, INVESTIGATIVE  COSTS,  COURT  COSTS,  REASONABLE  ATTORNEY'S
 FEES, WITNESS COSTS, AND DEPOSITION EXPENSES.
   (G) THE PROVISIONS OF THIS SECTION ARE IN ADDITION TO ANY OTHER CIVIL,
 ADMINISTRATIVE,  OR  CRIMINAL ACTIONS PROVIDED BY LAW AND MAY BE IMPOSED
 AGAINST BOTH CORPORATE AND INDIVIDUAL DEFENDANTS.
   § 2. Section 177.05 of the penal law, as added by chapter 442  of  the
 laws of 2006, is amended to read as follows:
 § 177.05 Health care fraud in the fifth degree.
   A person is guilty of health care fraud in the fifth degree when[,]:
   1. with intent to defraud a health plan, he or she knowingly and will-
 fully  provides  materially false information or omits material informa-
 tion for the purpose of requesting payment from  a  health  plan  for  a
 health  care  item  or  service  and, as a result of such information or
 omission, he or she or another person receives payment in an amount that
 he, she or such other person is not entitled to under the circumstances;
 OR
   2. HE OR SHE KNOWINGLY AND WILLFULLY DIRECTLY OR INDIRECTLY  PROMOTES,
 OFFERS,  GIVES,  SOLICITS OR RECEIVES, OR AGREES TO RECEIVE, ANY FEE, OR
 OTHER CONSIDERATION TO OR FROM A THIRD  PARTY  FOR  THE  REFERRAL  OF  A
 POTENTIAL  SERVICE  RECIPIENT  IN  CONNECTION  WITH  THE  PERFORMANCE OF
 SUBSTANCE ABUSE SERVICES IN VIOLATION OF SECTION  32.06  OF  THE  MENTAL
 HYGIENE LAW.
   Health care fraud in the fifth degree is a class A misdemeanor.
   § 3. This act shall take effect immediately.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6544--B
     Cal. No. 251
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                               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 -- passed
   by  Senate and delivered to the Assembly, recalled, vote reconsidered,
   restored to 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 prohibited prac-
   tices by providers of substance use disorder services
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The mental hygiene law is amended by adding a new section
 32.06 to read as follows:
 § 32.06 PROHIBITED PRACTICES BY  PROVIDERS  OF  SUBSTANCE  USE  DISORDER
           SERVICES.
   1.  FOR  PURPOSES OF THIS SECTION, UNLESS THE CONTEXT CLEARLY REQUIRES
 OTHERWISE, "PROVIDER" SHALL MEAN ANY PERSON, FIRM,  PARTNERSHIP,  GROUP,
 PRACTICE ASSOCIATION, FIDUCIARY, EMPLOYER, REPRESENTATIVE THEREOF OR ANY
 OTHER  ENTITY  WHO  IS  PROVIDING OR PURPORTING TO PROVIDE SUBSTANCE USE
 DISORDER SERVICES. PROVIDED, HOWEVER, THAT "PROVIDER" SHALL NOT  INCLUDE
 A PERSON RECEIVING SUBSTANCE USE DISORDER SERVICES FROM THE PROVIDER.
   2.  NO  PROVIDER SHALL INTENTIONALLY SOLICIT, RECEIVE, ACCEPT OR AGREE
 TO RECEIVE OR ACCEPT ANY PAYMENT, BENEFIT OR OTHER CONSIDERATION IN  ANY
 FORM TO THE EXTENT SUCH PAYMENT, BENEFIT OR OTHER CONSIDERATION IS GIVEN
 FOR  THE  REFERRAL  OF A PERSON AS A POTENTIAL PATIENT FOR SUBSTANCE USE
 DISORDER SERVICES.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD10119-05-8

 S. 6544--B                          2
 
   3. NO PROVIDER PROVIDING OR PURPORTING TO PROVIDE SUBSTANCE USE DISOR-
 DER SERVICES PURSUANT TO THIS CHAPTER, SHALL INTENTIONALLY MAKE,  OFFER,
 GIVE,  OR  AGREE  TO  MAKE, OFFER, OR GIVE ANY PAYMENT, BENEFIT OR OTHER
 CONSIDERATION IN ANY FORM TO THE EXTENT SUCH PAYMENT, BENEFIT  OR  OTHER
 CONSIDERATION  IS  GIVEN  FOR  THE  REFERRAL  OF A PERSON AS A POTENTIAL
 PATIENT FOR SUBSTANCE USE DISORDER SERVICES.
   4. THIS SECTION SHALL NOT APPLY TO ANY:
   (A) LAWFUL PAYMENTS BY A HEALTH  MAINTENANCE  ORGANIZATION  OR  HEALTH
 INSURER,  OPERATING IN ACCORDANCE WITH ARTICLE THIRTY-TWO OR FORTY-THREE
 OF THE INSURANCE LAW OR ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH  LAW  ON
 BEHALF  OF  THEIR  ENROLLEES FOR SUCH SUBSTANCE USE DISORDER SERVICES OR
 OTHER BENEFITS REQUIRED TO BE PROVIDED;
   (B) LAWFUL PAYMENTS TO OR BY A PROVIDER TO A HEALTH MAINTENANCE ORGAN-
 IZATION OR HEALTH INSURER OPERATING IN ACCORDANCE WITH  ARTICLE  THIRTY-
 TWO  OR  FORTY-THREE  OF  THE INSURANCE LAW OR ARTICLE FORTY-FOUR OF THE
 PUBLIC HEALTH LAW, AS PAYMENT FOR SERVICES PROVIDED,  A  REFUND  FOR  AN
 OVERPAYMENT, A PARTICIPATING PROVIDER FEE, OR ANY SIMILAR REMUNERATION;
   (C) PROVIDER FOR AN ACTIVITY THAT, AT THE TIME OF SUCH ACTIVITY, WOULD
 HAVE  BEEN  LAWFUL  AS SPECIFICALLY EXEMPT, OR OTHERWISE NOT PROHIBITED,
 UNDER ANY FEDERAL STATUTE OR REGULATIONS, INCLUDING BUT NOT  LIMITED  TO
 42  U.S.C.  § 1320A-7B (B) OR THE REGULATIONS PROMULGATED THEREUNDER, IF
 CONDUCTED BY A PERSON, FIRM, PARTNERSHIP, GROUP, PRACTICE,  ASSOCIATION,
 FIDUCIARY, EMPLOYER REPRESENTATIVE THEREOF OR ANY OTHER ENTITY PROVIDING
 SUBSTANCE USE DISORDER SERVICES;
   (D)  ANY  EMPLOYEE  OR  REPRESENTATIVE OF A PROVIDER WHO IS CONDUCTING
 MARKETING ACTIVITIES, WHERE THE EMPLOYEE  OR  REPRESENTATIVE  IDENTIFIES
 THE  PROVIDER REPRESENTED OR FOR WHOM OR WHICH THE EMPLOYEE OR REPRESEN-
 TATIVE WORKS, IDENTIFIES THAT THE EMPLOYEE OR REPRESENTATIVE IS A  MARK-
 ETER AND NOT A CLINICIAN OR OTHER INDIVIDUAL WHO CAN PROVIDE DIAGNOSTIC,
 COUNSELING  OR  ASSESSMENT  SERVICES,  AND SUCH MARKETING ACTIVITIES ARE
 LIMITED TO EDUCATING THE POTENTIAL PATIENT ABOUT  THE  PROGRAM  WITH  NO
 EFFORT  TO  STEER  OR  LEAD  THE POTENTIAL PATIENT TO SELECT OR CONSIDER
 SELECTION OF THE SUBSTANCE USE DISORDER SERVICES PROVIDER REPRESENTED OR
 FOR WHOM OR WHICH THE EMPLOYEE OR REPRESENTATIVE WORKS; OR
   (E) COMMISSIONS, FEES OR OTHER REMUNERATION LAWFULLY PAID TO INSURANCE
 AGENTS AS PROVIDED UNDER THE INSURANCE LAW.
   5. ANY PROVIDER WHO INTENTIONALLY VIOLATES THE PROVISIONS OF  SUBDIVI-
 SION  TWO  OR  THREE OF THIS SECTION SHALL BE GUILTY OF A MISDEMEANOR AS
 DEFINED IN THE PENAL LAW.
   6. IF THE COMMISSIONER HAS REASON TO BELIEVE A PROVIDER  HAS  VIOLATED
 SUBDIVISION  TWO  OR THREE OF THIS SECTION, THE COMMISSIONER MAY PROCEED
 TO INVESTIGATE AND INSTITUTE ENFORCEMENT ACTIONS, AS MAY  BE  AUTHORIZED
 PURSUANT TO THE APPLICABLE PROVISIONS OF THIS ARTICLE.
   7.  THE PROVISIONS OF THIS SECTION ARE IN ADDITION TO ANY OTHER CIVIL,
 ADMINISTRATIVE OR CRIMINAL ENFORCEMENT ACTIONS PROVIDED BY  LAW.  PENAL-
 TIES  AUTHORIZED  UNDER  THIS  SECTION  MAY BE IMPOSED AGAINST CORPORATE
 PROVIDERS AND INDIVIDUAL PROVIDERS.
   8. THE COMMISSIONER SHALL ADOPT AND MAY AMEND RULES AND REGULATIONS TO
 EFFECTUATE THE PROVISIONS OF THIS SECTION.
   § 2. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.