New York State Society of Orthopaedic Surgeons 2018 NYSSOS Advocacy Day - Tuesday, May 8, 2018 Appointments at a Glance

New York State Society of Orthopaedic Surgeons 2018 NYSSOS Advocacy Day - Tuesday, May 8, 2018 Appointments At a Glance

Appt Location Title First Last Party District Type Constituent(s) Home/ JOIN Work 10:00 AM 318 LOB Assemblyman Brian Curran R 21 Constituent Garroway Home Erez, Lajam, Reilly, Weinfeld 10:00 AM 725 LOB Assemblywoman Beth Walsh R 112 Constituent DiPreta Home Brewley, DiCaprio, Lozman 10:15 AM 724 LOB Assemblyman Michael Cusick D 63 Sponsor Reilly Olsewski, Slough 10:30 AM 414 CAP Senator Neil Breslin D 44 Constituent Lozman Home Brewley, DiCaprio, DiPreta 10:30 AM 527 LOB Assemblyman Joseph Errigo R 133 Constituent Flemister/Bronstein Home 10:30 AM 302 LOB Senator Todd Kaminsky D 9 Constituent Garroway Home/ Lajam Work 11:00 AM 404 LOB Assemblywoman Nicole Malliotakis R 64 Constituent Reilly Work Erez, Garroway, Lajam, Weinfeld 11:30 AM 802 LOB Senator George Amedore R 46 Constituent DiCaprio Home Brewley 11:30 AM 420 CAP Senator Kemp Hannon R 6 Leader All who can attend 11:30 AM 609 LOB Senator Michael Ranzenhofer R 61 Constituent Slough/Flemister Work 11:30 AM 315 LOB Senator Diane Savino D 23 Constituent Reilly 12:00 PM 808 LOB Senator Liz Krueger D 28 Constituent Weinfeld Home Garroway, Lajam 12:00 PM 731 LOB Assemblyman Felix Ortiz D 51 Constituent Erez Work Lajam 12:30 PM 744 LOB Assemblyman Thomas Abinanti D 92 Constituent Olsewski Home 12:30 PM 944 LOB Senator Simcha Felder D 17 Constituent Erez (Reilly request) Work Garroway, Reilly, Lajam 12:30 PM 947 LOB Senator Chris Jacobs R 60 Constituent Slough Home Bronstein, Flemister 12:30 PM 803 LOB Senator James Tedisco R 49 Constituent DiPreta Home Brewley, DiCaprio, Lozman 1:00 PM 452 LOB Assemblywoman Patricia Fahy D 109 Constituent DiCaprio, Lozman Home Brewley, DiPreta, Lozman 1:00 PM 822 LOB Assemblyman Richard Gottfried D 75 Leader All who can attend 1:30 PM 708 LOB Senator Andrew Lanza R 24 Constituent Reilly Home 1:30 PM 806 LOB Senator Kenneth LaValle R 1 Leader All who can attend 2:00 PM 717 LOB Assemblywoman Deborah Glick D 66 Leader/Constituent Erez Home All who can attend 2:00 PM Off the Floor Assemblywoman Rebecca Seawright D 76 Constituent Weinfeld Home Erez, Garroway, Lajam 2:30 PM 905 LOB Senator Rich Funke R 55 Sponsor / Constituent Flemister/Bronstein Home Slough Appt Location Title First Last Party District Type Constituent(s) Home/ JOIN Work 4:00 PM 907 LOB Senator Andrea Stewart-Cousins D 35 Leader /Constituent Olsewski/Lajam Home 5:00 PM 606 LOB Senator Jeffrey Klein D 34 Constituent Olsewski Work Olsewski Drop In 428 LOB Assemblyman Ron Castorina R 62 Constituent Reilly Home TBD 332 CAP Senator John Flanagan R 2 Leader All who can attend TBD 932 LOB Assemblyman Carl Heastie D 83 Leader All who can attend TBD 422 LOB Assemblywoman Amy Paulin D 88 Constituent Lajam Home

Senate Higher Education Committee Members (Drop off materials at your convenience)

Appt Location Title First Last Party - Phone Title District Drop In 311 LOB Senator Marisol Alcantara (D S- 31) 518-455-2041 Senator Drop In 707 LOB Senator Jamaal Bailey (D S- 36) 518-455-2061 Senator Drop In 414 CAP Senator Neil Breslin (D S- 44) 518-455-2225 Assistant Democratic Conf. Leader for Floor Ops. Drop In 306 LOB Senator Thomas Croci (R S- 3) 518-455-3570 Senator Drop In 512 LOB Senator Patrick Gallivan (R S- 59) 518-455-3471 Liaison to the Executive Branch Drop In 612 LOB Senator Joseph Griffo (R S- 47) 518-455-3334 Deputy Majority Whip Drop In 808 LOB Senator Liz Krueger (D S- 28) 518-455-2297 Ranking Democratic Member of Senate Finance Committee Drop In 815 LOB Senator Robert Ortt (R S- 62) 518-455-2024 Senator Drop In 604 LOB Senator Kevin Parker (D S- 21) 518-455-2580 Democratic Conference Whip Drop In 415 LOB Senator Jose Peralta (D S- 13) 518-455-2529 Senator Drop In 412 LOB Senator Patricia Ritchie (R S- 48) 518-455-3438 Dep. Majority Leader for Senate/Assembly Relations Drop In 408 LOB Senator J. Gustavo Rivera (D S- 33) 518-455-3395 Democratic Conference Program Development Chair Drop In 711 LOB Senator Joseph Robach (R S- 56) 518-455-2909 Secretary of the Senate Majority Conference Drop In 812 LOB Senator Susan Serino (R S- 41) 518-455-2945 Senator Drop In 430 CAP Senator James Seward (R S- 51) 518-455-3131 Chairman, Majority Program Development Drop In 706 LOB Senator Toby Ann Stavisky (D S- 16) 518-455-3461 Vice Chair of Democratic Conference

New York State Society of Orthopaedic Surgeons 2018 NYSSOS Advocacy Day - Tuesday, May 8, 2018 Appointments At a Glance

Assembly Higher Education Committee Members (Drop off materials at your convenience)

Appt Location Title First Last Party - Phone Title District Drop In 727 LOB Assemblywoman Rodneyse Bichotte (D A- 42) 518-455-5385 Assemblywoman Drop In 538 LOB Assemblyman Anthony Brindisi (D A-119) 518-455-5454 Assemblyman Drop In 525 LOB Assemblyman Marc Butler (R A-118) 518-455-5393 Ranking Minority Member, Committee on Committees Drop In 716 LOB Assemblyman Kevin Cahill (D A-103) 518-455-4436 Chair: Insurance Drop In 621 LOB Assemblyman Steven Englebright (D A- 4) 518-455-4804 Chair: Environmental Conservation Drop In 458 LOB Assemblyman Michael Fitzpatrick (R A- 8) 518-455-5021 Assemblyman Drop In 529 LOB Assemblyman Andrew Garbarino (R A- 7) 518-455-4611 Assemblyman Drop In 820 LOB Assemblywoman Alicia Hyndman (D A- 29) 518-455-4451 Assemblywoman Drop In 555 LOB Assemblywoman Barbara Lifton (D A-125) 518-455-5444 Chair: Majority Steering Drop In 824 LOB Assemblywoman Donna Lupardo (D A-123) 518-455-5431 Chair: Aging Drop In 828 LOB Assemblyman Bill Magee (D A-121) 518-455-4807 Chair: Agriculture Drop In 417 LOB Assemblyman John McDonald (D A-108) 518-455-4474 Assemblyman Drop In 430 LOB Assemblyman Dean Murray (R A- 3) 518-455-4901 Assemblyman Drop In 718 LOB Assemblyman Michael Norris (R A-144) 518-455-4601 Assemblyman Drop In 625 LOB Assemblywoman Crystal Peoples-Stokes (D A-141) 518-455-5005 Chair: Governmental Operations Drop In 602 LOB Assemblyman Victor Pichardo (D A- 86) 518-455-5511 Assemblyman Drop In 546 LOB Assemblyman Edward Ra (R A- 19) 518-455-4627 Assistant Minority Leader Pro Tempore Drop In 326 LOB Assemblyman Jo Anne Simon (D A- 52) 518-455-5426 Assemblyman Drop In 656 LOB Assemblyman Al Stirpe (D A-127) 518-455-4505 Assistant Majority Whip

New York State Society of Orthopaedic Surgeons 2018 NYSSOS Advocacy Day - Tuesday, May 8, 2018 SCORECARD

Appt Location Title First Last Party District Health Higher Ed Med Mal AT Team Podiatry Chiro PT Docs 10:00 AM 318 LOB Assemblyman Brian Curran R 21 10:00 AM 725 LOB Assemblywoman Beth Walsh R 112 10:00 AM 422 LOB Assemblywoman Amy Paulin D 88 Member Co- Sponsor 10:15 AM 724 LOB Assemblyman Michael Cusick D 63 Member SPONSOR 10:30 AM 414 CAP Senator Neil Breslin D 44 Member 10:30 AM 527 LOB Assemblyman Joseph Errigo R 133 10:30 AM 302 LOB Senator Todd Kaminsky D 9 Member 11:00 AM 404 LOB Assemblywoman Nicole Malliotakis R 64 11:30 AM 802 LOB Senator George Amedore R 46 11:30 AM 420 CAP Senator Kemp Hannon R 6 Chair SPONSOR 11:30 AM 609 LOB Senator Michael Ranzenhofer R 61 Co- Co- Sponsor Sponsor 11:30 AM 315 LOB Senator Diane Savino D 23 Co- Sponsor 12:00 PM 808 LOB Senator Liz Krueger D 28 Member 12:00 PM 731 LOB Assemblyman Felix Ortiz D 51 Co- Sponsor 12:30 PM 744 LOB Assemblyman Thomas Abinanti D 92 Member 12:30 PM 944 LOB Senator Simcha Felder D 17 Member 12:30 PM 947 LOB Senator Chris Jacobs R 60 Member 12:30 PM 803 LOB Senator James Tedisco R 49 1:00 PM 452 LOB Assemblywoman Patricia Fahy D 109 Member 1:00 PM 822 LOB Assemblyman Richard Gottfried D 75 Chair Member 1:30 PM 708 LOB Senator Andrew Lanza R 24 SPONSOR 1:30 PM 806 LOB Senator Kenneth LaValle R 1 Chair 2:00 PM 717 LOB Assemblywoman Deborah Glick D 66 Chair New York State Society of Orthopaedic Surgeons 2018 NYSSOS Advocacy Day - Tuesday, May 8, 2018 SCORECARD

Appt Location Title First Last Party District Health Higher Ed Med Mal AT Team Podiatry Chiro PT Docs 2:00 PM Off the Floor Assemblywoman Rebecca Seawright D 76 Member 2:30 PM 905 LOB Senator Rich Funke R 55 Member SPONSOR SPONSOR 4:00 PM 907 LOB Senator Andrea Stewart-Cousins D 35 5:00 PM 606 LOB Senator Jeffrey Klein D 34 Drop In 428 LOB Assemblyman Ron Castorina R 62 TBD 332 CAP Senator John Flanagan R 2 TBD 932 LOB Assemblyman Carl Heastie D 83

ISSUE BRIEF SUPPORT

Reduction in Meritless Medical Liability Claims The Ask: Support S.7728 Hannon with Modification | Status: Senate Judiciary Committee Orthopaedic surgeons are committed to safe, accessible, cost effective and quality patient care. After the passage of unbalanced liability reforms last year, this legislation seeks to reduce the direct and indirect costs in New York’s liability adjudication system. It aims to reduce the filing of meritless claims and begins to turn the tide on defensive medicine and exorbitant insurance premiums.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Lawsuits can take an average of 3.5 years to close from the time it is indexed, and the costs to defend these cases significantly add to the already astronomical cost of medical liability insurance in New York. Compensation amounts are unpredictable and inconsistent from case to case and not necessarily related to negligence or adverse events. Moreover, under the current system studies have shown that often those truly injured by negligence do not pursue litigation. The extensive time required for physicians to be away from the office while defending these cases directly impacts the availability of care for patients. Moreover, while approximately 2/3 of all medical liability cases result in no payment to the plaintiff, malpractice payouts in New York State continue to be far out of proportion to the rest of country. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Our Recommendations We recommend strengthening the legislation by ensuring the expert signing the affidavit of merit qualifies as a current New York State licensed physician who is board certified in the same medical field as that in which the defendant physician practices. In addition, an established set of standards for experts to qualify as witnesses should be included such as: active NY physician licensure; current and active Board Certification; and evidence of continued participation in Maintenance of Certification in the same medical specialty as the defendant physician. Board Certification and Maintenance of Certification are instrumental to the integrity of medical specialty care. They provide trusted credentials that are important to patients and relevant to physician practice.

We believe these additional recommendations will create a level of accountability not currently expressed in the market.

Licensure for Athletic Trainers The Ask: Support S.1356 Funke / A.7237 Cusick | Status: Higher Education Committees Sports medicine/team physicians possess special proficiency in the prevention and care of musculoskeletal injuries and medical conditions encountered in sports. These physicians responsibly integrate medical expertise with medical consultants, certified and/or licensed athletic trainers, and other allied health care professionals through an athletic care network. As part of the athletic care network, athletic trainers are well educated and trained on how to evaluate, manage and rehabilitate athletic injuries.

NYSSOS recognizes and supports that under physician supervision, athletic trainers serve an integral role in the evaluation, management and rehabilitation of care for athletes. We lend our support in advancing legislation that acknowledges their versatile and comprehensive skill set.

Continuity of Care for Athletes The Ask: Support S.4375 Funke / A.2783 Lavine | Status: Higher Education Committees Sports medicine physicians are responsible for the organization, management and provision of care for athletes in individual, team, and mass participation sporting events. Oftentimes, these physicians travel with the athletes across state lines.

Currently, out-of-state athletic team medical staff cannot treat players because they lack a New York State license. In these circumstances, the sports medicine physician must choose between treating injured athletes at great professional risk or handing over the care of an injured player to another physician who is unfamiliar with the individual’s medical history.

In this bill, a visiting team physician will be able to administer sideline evaluations, triage and diagnostic services. They must defer to a New York State licensed physician if an athlete or staff member needs to be transported to a facility. Prescriptive authority is not provided to the out of state physician. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

PO Box 38004 Albany, NY 12203 Phone: 518-439-0000 Fax: 518-207-0080 E-Mail: [email protected] NEW YORK STATE SOCIETY OF ORTHOPAEDIC SURGEONS P.O. BOX 38004 * ALBANY, NY 12203 (TEL) 518-439-0000 * (FAX) 518-207-0080 WWW.NYSSOS.ORG

Memorandum in Support with Modification

S.7728 Hannon AN ACT to amend the civil practice law and rules, in relation to requiring an affidavit of merit and expert discovery in medical, dental and podiatric malpractice actions

Orthopaedic surgeons are committed to safe, accessible, cost effective and quality patient care. After the passage of unbalanced liability reforms last year, this legislation seeks to reduce the direct and indirect costs in New York’s liability adjudication system. It aims to reduce the filing of meritless claims and begins to turn the tide on defensive medicine and exorbitant insurance premiums. We support these efforts and recommend strengthening the provisions in the bill to further increase and support credibility and accountability of expert witnesses.

The current structure of medical liability compromises quality by encouraging defensive medicine. Evidence indicates that areas with greater medical liability pressure experience greater practice of defensive medicine. Over 65% of Orthopedists surveyed in New York indicated that they have altered their practice following past medical liability insurance premium increases and over 70% already refer high-risk / difficult cases based upon the potential liability exposure with the patient. Over 70% indicate that an increase in premiums between less than 10%-25% would force them to alter their practice by either limiting their scope of practice or referring cases. Effective liability systems should focus on reforms that reduce the incentive to practice defensive medicine.

Why S.7728 Matters Lawsuits can take an average of 3.5 years to close from the time it is indexed, and the costs to defend these cases significantly add to the already astronomical cost of medical liability insurance in New York. Compensation amounts are unpredictable and inconsistent from case to case and not necessarily related to negligence or adverse events. Moreover, under the current system studies have shown that often those truly injured by negligence do not pursue litigation. The extensive time required for physicians to be away from the office while defending these cases directly impacts the availability of care for patients. New York needs its physicians to be in their practices, not in the court room.

While approximately 2/3 of all medical liability cases result in no payment to the plaintiff, malpractice payouts in New York State continue to be far out of proportion to the rest of country. In 2017, a report by Deiderich Healthcare showed that New York State remained consistent as in previous years with the highest number cumulative medical liability payouts ($617, 973,000), greatly exceeding the state with the second highest amounts, Pennsylvania ($342,093,300), and far exceeding states such as California ($260,668,400) and Florida ($260,480,550).

Our Recommendations NYSSOS supports systematic medical liability reforms that improve patient access to care, enhance patient- physician communication, facilitate improvement of patient safety and quality of care, reduce defensive medicine and wasteful spending, decrease liability costs, and compensate negligently injured patients promptly and equitably.

We recommend strengthening this legislation by ensuring the expert signing the affidavit of merit qualifies as a current New York State licensed physician and who is board certified in the same medical field as that in which the defendant physician practices.

In addition, an established set of standards for experts to qualify as witnesses should be included such as: an active NY physician licensure; current and active Board Certification; and evidence of continued participation in Maintenance of Certification in the same medical specialty as the defendant physician.

Board Certification and Maintenance of Certification are instrumental to the integrity of medical specialty care. They provide trusted credentials that are important to patients and relevant to physician practice. We believe these additional recommendations will create a level of accountability not currently expressed in the market. S7728 HANNON No Same as ON FILE: 02/14/18 Civil Practice Law and Rules TITLE....Requires the ﬁling of an afﬁdavit of merit in action for medical, dental or podiatric malpractice 02/13/18 REFERRED TO JUDICIARY

HANNON Amd §§3012-a & 3101, CPLR Requires the complaint in an action for medical, dental or podiatric malpractice to be accompanied by an afﬁdavit of merit stating information attested to by an appropriate health care professional which establishes the alleged malpractice; and requires enhanced discovery and disclosure of experts in medical, dental and podiatric malpractice actions.

STATE OF NEW YORK ______

7728

IN SENATE

February 13, 2018 ______

Introduced by Sen. HANNON -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary

AN ACT to amend the civil practice law and rules, in relation to requiring an affidavit of merit and expert discovery in medical, dental and podiatric malpractice actions

The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:

1 Section 1. Section 3012-a of the civil practice law and rules, as 2 amended by chapter 507 of the laws of 1987, is amended to read as 3 follows: 4 § 3012-a. [Certificate] Affidavit of merit in medical, dental and 5 podiatric malpractice actions. (a) In any action for medical, dental or 6 podiatric malpractice, the complaint shall be accompanied by [a certif- 7 icate, executed by the attorney for the plaintiff, declaring] an affida- 8 vit of merit executed by a healthcare professional who the plaintiff's 9 attorney or, the plaintiff if not represented by an attorney, reasonably 10 believes is knowledgeable in the relevant issues involved in the partic- 11 ular action to be an expert physician in a medical malpractice action, 12 an expert dentist in a dental malpractice action or an expert podiatrist 13 in a podiatric malpractice action, stating that[: 14 (1) the attorney has reviewed the facts of the case and has consulted 15 with at least one physician in medical malpractice actions, at least one 16 dentist in dental malpractice actions or at least one podiatrist in 17 podiatric malpractice actions who is licensed to practice in this state 18 or any other state and who the attorney reasonably believes is know- 19 ledgeable in the relevant issues involved in the particular action, and 20 that the attorney has concluded on the basis of such review and consul- 21 tation that there is a reasonable basis for the commencement of such 22 action; or 23 (2) the attorney was unable to obtain the consultation required by 24 paragraph one of this subdivision because a limitation of time, estab- 25 lished by article two of this chapter, would bar the action and that the 26 certificate required by paragraph one of this subdivision could not 27 reasonably be obtained before such time expired. If a certificate is

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14556-02-8 S. 7728 2

1 executed pursuant to this subdivision, the certificate required by this 2 section shall be filed within ninety days after service of the 3 complaint; or 4 (3) the attorney was unable to obtain the consultation required by 5 paragraph one of this subdivision because the attorney had made three 6 separate good faith attempts with three separate physicians, dentists or 7 podiatrists, in accordance with the provisions of paragraph one of this 8 subdivision to obtain such consultation and none of those contacted 9 would agree to such a consultation] the physician in a medical malprac- 10 tice action, or the dentist in a dental malpractice action, or the 11 podiatrist in a podiatric malpractice action has reviewed the complaint 12 in the malpractice action and all medical records supplied by the 13 plaintiff's attorney, or plaintiff if not represented by an attorney, 14 and states each of the following with individual particularization to 15 the specifically named defendant or defendants: 16 (1) The applicable standard of practice or care concerning the allega- 17 tions contained in the complaint. 18 (2) The applicable standard of practice or care breached. 19 (3) The actions that should have been taken or omitted in order to 20 have complied with the applicable standard of care. 21 (4) The manner in which the breach of the standard of practice or care 22 was the proximate cause of the plaintiff's injury. 23 (b) [Where a certificate is required pursuant to this section, a 24 single certificate shall be filed for each action, even if more than one 25 defendant has been named in the complaint or is subsequently named] 26 Where an affidavit of merit is required pursuant to this section, an 27 individual affidavit shall be filed for each named defendant who is a 28 physician, dentist or podiatrist named in the complaint. 29 (c) Where the attorney intends to rely solely on the doctrine of "res 30 ipsa loquitur", this section shall be inapplicable. In such cases, the 31 complaint shall be accompanied by [a certificate] an affidavit, executed 32 by the attorney, declaring that the attorney is solely relying on such 33 doctrine and, for that reason, is not filing [a certificate] the affida- 34 vit of merit required by this section. 35 (d) [If a request by the plaintiff for the records of the plaintiff's 36 medical or dental treatment by the defendants has been made and such 37 records have not been produced, the plaintiff shall not be required to 38 serve the certificate required by this section until ninety days after 39 such records have been produced] The plaintiff may, in lieu of serving 40 the affidavit of merit required by this section, provide the defendant 41 or defendants with the information required by paragraph one of subdivi- 42 sion (d) of section thirty-one hundred one of this chapter within the 43 period of time prescribed by this section, provided that the disclosure 44 be executed by the physician in a medical malpractice action, or the 45 dentist in a dental malpractice action, or the podiatrist in a podiatric 46 malpractice action who has reviewed the complaint in the malpractice 47 action and all medical records supplied by the plaintiff's attorney. 48 (e) [For purposes of this section, and subject to the provisions of 49 section thirty-one hundred one of this chapter, an attorney who submits 50 a certificate as required by paragraph one or two of subdivision (a) of 51 this section and the physician, dentist or podiatrist with whom the 52 attorney consulted shall not be required to disclose the identity of the 53 physician, dentist or podiatrist consulted and the contents of such 54 consultation; provided, however, that when the attorney makes a claim 55 under paragraph three of subdivision (a) of this section that he was 56 unable to obtain the required consultation with the physician, dentist S. 7728 3

1 or podiatrist, the court may, upon the request of a defendant made prior 2 to compliance by the plaintiff with the provisions of section thirty-one 3 hundred of this chapter, require the attorney to divulge to the court 4 the names of physicians, dentists or podiatrists refusing such consulta- 5 tion] The plaintiff's attorney or, the plaintiff if not represented by 6 an attorney, may with good cause shown, file a motion to extend the 7 period of time to file the required affidavit of merit. The motion 8 shall be filed together with the complaint. The court may grant reason- 9 able time to file the affidavit of merit, not to exceed ninety days, 10 except the time may be extended beyond ninety days if the court deter- 11 mines that a defendant or non-party has failed to cooperate with access 12 to medical or dental records necessary for the affidavit of merit or 13 that other circumstances warrant extension of time. 14 (f) [The provisions of this section shall not be applicable to a 15 plaintiff who is not represented by an attorney. 16 (g) The plaintiff may, in lieu of serving the certificate required by 17 this section, provide the defendant or defendants with the information 18 required by paragraph one of subdivision (d) of section thirty-one 19 hundred one of this chapter within the period of time prescribed by this 20 section] Any complaint alleging medical, dental, or podiatric malprac- 21 tice that is not accompanied by an affidavit of merit as required by 22 this section shall be deemed defective as a matter of law and, upon 23 motion by the defendant, be dismissed on the merits by the court. Such 24 dismissal shall be with prejudice. 25 § 2. Subdivision (a) of section 3101 of the civil practice law and 26 rules is amended by adding a new paragraph 5 to read as follows: 27 (5) notwithstanding any provision of subparagraph (i) of paragraph one 28 of subdivision (d) of this section to the contrary, in an action for 29 medical, dental or podiatric malpractice, each party shall serve the 30 disclosure described in such subparagraph within sixty days preceding 31 the filing required by rule thirty-four hundred two of this chapter. 32 Further, at any time after joinder of issue, any party may, by written 33 notice made to and served upon all other parties and filed with the 34 court; conduct an examination upon oral deposition, of any person who 35 has been disclosed as an expert witness by any other party. Each party 36 shall be required to produce his or her expert witness for examination 37 upon oral deposition upon receipt of a notice to take oral deposition in 38 accordance with rule thirty-one hundred seven of this chapter and, 39 unless otherwise ordered by the court, all expert witness depositions 40 shall be taken before the filing required by rule thirty-four hundred 41 two of this chapter. If any party, having received such notice, fails to 42 make that party's expert witness available for oral deposition, that 43 party shall be precluded from offering expert testimony at the trial of 44 the action. For purposes of rule thirty-one hundred ten and rule thir- 45 ty-one hundred seventeen, an expert witness, as provided in this 46 section, shall be considered a party. Each party seeking the deposition 47 of an expert witness shall pay the expert a reasonable fee for the time 48 spent at the deposition. 49 § 3. Paragraph 1 of subdivision (d) of section 3101 of the civil prac- 50 tice law and rules, as amended by chapter 184 of the laws of 1988, 51 subparagraph (ii) as amended by chapter 165 of the laws of 1991, is 52 amended to read as follows: 53 1. Experts. (i) Upon request, each party shall identify each person 54 whom the party expects to call as an expert witness at trial and shall 55 disclose in reasonable detail the subject matter on which each expert is 56 expected to testify, the substance of the facts and opinions on which S. 7728 4

1 each expert is expected to testify, the qualifications of each expert 2 witness and a summary of the grounds for each expert's opinion. However, 3 where a party for good cause shown retains an expert an insufficient 4 period of time before the commencement of trial to give appropriate 5 notice thereof, the party shall not thereupon be precluded from intro- 6 ducing the expert's testimony at the trial solely on grounds of noncom- 7 pliance with this paragraph. In that instance, upon motion of any party, 8 made before or at trial, or on its own initiative, the court may make 9 whatever order may be just. [In an action for medical, dental or podia- 10 tric malpractice, a party, in responding to a request, may omit the 11 names of medical, dental or podiatric experts but shall be required to 12 disclose all other information concerning such experts otherwise 13 required by this paragraph. 14 (ii) In an action for medical, dental or podiatric malpractice, any 15 party may, by written offer made to and served upon all other parties 16 and filed with the court, offer to disclose the name of, and to make 17 available for examination upon oral deposition, any person the party 18 making the offer expects to call as an expert witness at trial. Within 19 twenty days of service of the offer, a party shall accept or reject the 20 offer by serving a written reply upon all parties and filing a copy 21 thereof with the court. Failure to serve a reply within twenty days of 22 service of the offer shall be deemed a rejection of the offer. If all 23 parties accept the offer, each party shall be required to produce his or 24 her expert witness for examination upon oral deposition upon receipt of 25 a notice to take oral deposition in accordance with rule thirty-one 26 hundred seven of this chapter. If any party, having made or accepted the 27 offer, fails to make that party's expert available for oral deposition, 28 that party shall be precluded from offering expert testimony at the 29 trial of the action. 30 (iii)] (ii) Further disclosure concerning the expected testimony of 31 any expert, except as expressly provided in paragraph five of subdivi- 32 sion (a) of this section, may be obtained only by court order upon a 33 showing of special circumstances and subject to restrictions as to scope 34 and provisions concerning fees and expenses as the court may deem appro- 35 priate. However, a party, without court order, may take the testimony of 36 a person authorized to practice medicine, dentistry or podiatry who is 37 the party's treating or retained expert, as described in paragraph three 38 of subdivision (a) of this section, in which event any other party shall 39 be entitled to the full disclosure authorized by this article with 40 respect to that expert without court order. 41 § 4. This act shall take effect on the ninetieth day after it shall 42 have become a law, except that section one of this act shall take effect 43 on the one hundred eightieth day after this act shall have become a law.

NEW YORK STATE SENATE INTRODUCER'S MEMORANDUM IN SUPPORT submitted in accordance with Senate Rule VI. Sec 1

BILL NUMBER: S7728

SPONSOR: HANNON

TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to requiring an affidavit of merit and expert discovery in medical, dental and podiatric malpractice actions

PURPOSE:

To require an affidavit of merit filled out by a qualified health care provider as a condition for filing a medical malpractice lawsuit. Also, to establish clear rules requiring timely disclosure of expert witnesses with comprehensive information regarding the expert and the basis for their testimony.

SUMMARY OF PROVISIONS:

Section one amends the Civil Practice Law and Rules (CPLR) § 3012-a to require an affidavit from a physician concluding that there is a reasonable basis for the commencement of a medical malpractice lawsuit. In the alternative, the plaintiff may provide the expert witness information as required in CPLR section 3101 (d) (1).

Section two amends CPLR § 3101(a) by adding a new paragraph 5 to require each party in a medical malpractice action to file complete disclosure of their expert witness or witnesses within 60 days before filing the note of issue. Explicitly allows deposition of expert witnesses in medical malpractice cases any time after joinder of issue.

Section three amends CPLR § 3101(d) to delete the current law's express omission of expert witness disclosure for medical malpractice actions and reiterates that section 3101 (a) (5) will apply for all disclosure regarding expert witnesses in medical malpractice cases.

Section four establishes the effective date.

JUSTIFICATION:

New York is first among the 50 states in annual medical malpractice indemnity payouts, which totaled more than $700 million in 2016. In addition, this over $700 million payout figure is almost double the amount of the next highest state for medical malpractice payouts, Penn- sylvania. Breaking down the costs of medical malpractice indemnity payouts on a per capita basis, in 2016 New York's medical malpractice payouts per capital were $35, second only to New Hampshire at $39 per capita. In fact, New York's annual medical malpractice indemnity payouts exceed comparable payouts for the entire Midwest region of the United States.

Medical malpractice insurance premiums in New York are punishingly high for certain high-risk medical specialties, especially those specialty providers practicing in high cost regions of the state. In 2017 a neuro- surgeon on Long Island with a policy limit of $1.3 million per occurrence/$3.9 million aggregate pays $320,492 for medical malpractice insurance coverage while an ob-gyn in Bronx or Richmond counties with the same policy limits pays $186,630 for coverage Those same medical specialists with $1.3 million/$3.9 million policy limits are paying in the most expensive Upstate territory (the Mid-Hudson valley counties) $152,216 and $90,241, respectively.

These enormous costs are driven by an unpredictable medical liability adjudication system that numerous studies have concluded results in cases where awards are made despite the absence of any negligence what- soever. While an overwhelming majority of medical liability cases result in no indemnity payment, the costs of defending these cases are extreme- ly expensive and significantly add to the astronomical cost of medical liability insurance.

Under the current New York laws and rules governing medical malpractice actions, the plaintiffs attorney must submit with the complaint a certificate of merit. This unsworn certificate must state that the attorney has consulted with a health care provider (not necessarily the same specialty as the defendant provider) and based on this consultation and review there is a reasonable basis for the action. On its face it is apparent that this process is not a comprehensive vetting of medical malpractice claims prior to commencing a legal action.

Accordingly, this bill would require a plaintiff in a medical malpractice action to provide a particularized affidavit focused on the alleged deviation from the standard of care for each defendant and each asserted deviation. This affidavit of merit requirement would provide a true mechanism for removing frivolous claims from the dockets of New York's court rooms. Fewer non-meritorious claims will be advanced in the state through this addition of an affidavit of merit that is signed by a physician and stipulates that a malpractice claim shall be dismissed for failure to comply with the provisions of this section.

To curb these costs, the bill also provides for full and complete discovery of expert witnesses in medical malpractice lawsuits. Expert witnesses are often critical to the strength of a case, and can have a substantial impact on the case's outcome. The existing law is fundamen- tally unfair to medical malpractice defendants because these health care providers cannot avail themselves of discovery as completely as other New York civil defendants. This is due to the current law's denial of access by medical malpractice defendants from obtaining full details and complete information concerning any experts retained by the plaintiff. New York's law requires disclosure specifically so that parties can understand the strength of the case against them and engage in meaningful settlement negotiations before a case goes to trial. The practice of withholding the identity of experts until the moment before trial- "trial by ambush" - unfairly disadvantages defendants because they are not afforded adequate time prepare a defense and cross examination. The solution to ending "trial by ambush" is to require all parties to disclose their expert witnesses no later than the "note of issue," which is the point at which a lawsuit is certified as ready for trial. This would reduce frivolous lawsuits and promote meaningful settlement negotiations before court resources are expended. Ultimately, this would reduce the financial and administrative burdens on the courts, allowing more expedient justice for those with legitimate claims.

LEGISLATIVE HISTORY:

New Bill.

FISCAL IMPLICATIONS: None

EFFECTIVE DATE: This act shall take effect 90 days after it becomes a law; provided section one shall take effect 180 after it becomes law. NEW YORK STATE SOCIETY OF ORTHOPAEDIC SURGEONS P.O. BOX 38004 * ALBANY, NY 12203 (TEL) 518-439-0000 * (FAX) 518-207-0080 WWW.NYSSOS.ORG

Memorandum in Support to Legislation

S.4375 Funke / A.7237 Cusick

Permits physicians employed by and travelling with a sports team to practice medicine in New York state in connection with such team if licensed in another state.

The New York State Society of Orthopaedic Surgeons (NYSSOS) is the premier organization representing the orthopaedic community in New York. The Society serves orthopaedic specialists, subspecialists, fellows, residents and their patients by helping to create an optimal practice environment in which to provide quality and efficacious orthopaedic care.

NYSSOS maintains a specific focus on improving access to care, promoting public health and facilitating improvement of patient safety and quality of care.

Deficiency in Current Law Sports medicine physicians are responsible for the organization, management and provision of care for athletes in individual, team, and mass participation sporting events. Oftentimes, these physicians travel with the athletes across state lines.

Currently, out-of-state athletic team medical staff cannot treat players and others because they lack a New York State license. In these circumstances, the sports medicine physician must choose between treating injured athletes at great professional risk or handing over the care of an injured player to another physician who is unfamiliar with the individual’s medical history. The team sports medicine physician adds value to the treatment episode that cannot be duplicated by a physician who does not have a long-standing awareness of the individual athlete’s medical history.

Sports medicine physicians should not have to choose between treating injured athletes at great professional risk, and reducing athletes’ access to quality health care services.

Why S.4375/A.7237 Matters For sports medicine physicians who travel into multiple states, obtaining and maintaining licensure in each state – especially under a scenario where they are not even providing medical care to residents of the secondary state – constitutes an excessively high administrative and cost burden. Yet, sports medicine physicians should be able to engage in the treatment of injured athletes, whose medical histories they know well, across state lines without the fear of incurring great professional risk.

S.4375/A.7237 preserves access to sports medicine physicians who provide high-quality, continuous health care services to team members and coaching staff. For all of these reasons we urge the legislature to vote Yes.

Respectfully Submitted,

Babette M. Grey Executive Director

NEW YORK STATE SOCIETY OF ORTHOPAEDIC SURGEONS P.O. BOX 38004 * ALBANY, NY 12203 (TEL) 518-439-0000 * (FAX) 518-207-0080 WWW.NYSSOS.ORG

Memorandum in Support to Legislation

S.1356 Funke / A.2783 Lavine

AN ACT to amend the education law, in relation to the licensure of athletic trainers

Sports medicine/team physicians possess special proficiency in the prevention and care of musculoskeletal injuries and medical conditions encountered in sports. These physicians responsibly integrate medical expertise with medical consultants, certified and/or licensed athletic trainers, and other allied health care professionals through an athletic care network. As part of the athletic care network, athletic trainers are well educated and trained on how to evaluate, manage and rehabilitate athletic injuries. If enacted, this legislation will protect the title and the practice of athletic training, with proper physician oversight, to those who successfully complete licensure requirements and meet continuing education requirements.

Athletic Training Education Athletic training is a college or graduate school major program that is accredited by the Commission on Accreditation of Athletic Training Education. The current minimum entry point into the profession of athletic training is the baccalaureate level, however it was recently decided by the AT Strategic Alliance that the minimum professional degree level will be a master's a change to be implemented within the next several years. Currently, more than 70 percent of athletic trainers hold at least a master’s degree. Upon completion of a CAATE-accredited athletic training education program, students become eligible for national certification by successfully completing the National Athletic Trainers Association (NATA) Board of Certification, Inc. (BOC) examination.

Professional Education Professional training education for athletic trainers uses a competency-based approach in both the classroom and clinical settings. Using a medical-based education model, athletic training students are educated to provide comprehensive patient care in five domains of clinical practice: prevention; clinical evaluation and diagnosis; immediate and emergency care; treatment and rehabilitation; and organization and professional health and well-being. The educational requirements for CAATE-accredited athletic training education programs include acquisition of knowledge, skills and clinical abilities along with a broad scope of foundational behaviors of professional practice. 1,500 clock hours of supervised clinical or work experience in the practice of athletic training is required for licensure.

Athletic Care Network Aided by the athletic care network, a physician is able to educate athletes, coaches, parents/guardians, and administrators on the health, safety and on-site medical care of athletes. To accomplish this goal, the physician is actively involved in developing an integrated medical system that includes protocols for athletic trainers in component areas such as preseason planning; game day assessment and implementation; and postseason review.

NEW YORK STATE SOCIETY OF ORTHOPAEDIC SURGEONS P.O. BOX 38004 * ALBANY, NY 12203 (TEL) 518-439-0000 * (FAX) 518-207-0080 WWW.NYSSOS.ORG

Memorandum in Support to Legislation

S.4375 Funke / A.7237 Cusick

AN ACT to amend the education law, in relation to the licensure of athletic trainers

However, the current practice act specifically prohibits Athletic Trainers from the “reconditioning of neurologic injuries, conditions, or diseases”. This limits their ability to follow through with the orders of a licensed physician to test and rehabilitate those athletes who have sustained concussions. As part of the athletic care network, physicians who diagnose, treat and manage concussions in athletes depend upon athletic trainers to follow out the stated rehabilitation protocols and perform neurologic testing which aids the physician’s decision in return to play readiness. These protocols are not all office based, and therefore physicians enlist the help of professionals such as Athletic Trainers to carry them out. This legislation does not change Chapter 496 of the Concussion Management and Awareness Act of 2011, which specifically requires a written and signed authorization from a physician for a graduated return to activities.

Traveling with Teams Moreover, athletic trainers travel out of state venues with their teams. With current certification this is not a problem. Licensure presents the same problems visiting team physicians have traveling with their teams.

Therefore, written into this bill is a clause allowing visiting ATC’s, credentialed and in good standing with their respective state as athletic trainers, to practice in New York when traveling with their team of employment or participating in sanctioned athletic events or at the Olympic Training Center. Again, with licensure, athletic trainers need the same visiting status that is being put forth for traveling team physicians.

S 4375 FUNKE Same as A 7237 Cusick A7237 Cusick Same as S 4375 FUNKE ON FILE: 01/03/18 Education Law Education Law TITLE....Relates to permitting physicians TITLE....Relates to permitting physicians employed by a sports employed by a sports team to practice medicine team to practice medicine in New York state in connection with in New York state in connection with such team such team 02/10/17 REFERRED TO HIGHER 04/12/17 referred to higher education EDUCATION 01/03/18 referred to higher education 04/25/17 1ST REPORT CAL.634 04/26/17 2ND REPORT CAL. 05/01/17 ADVANCED TO THIRD READING 06/07/17 PASSED SENATE 06/07/17 DELIVERED TO ASSEMBLY 06/07/17 referred to higher education 01/03/18 died in assembly 01/03/18 returned to senate 01/03/18 REFERRED TO HIGHER EDUCATION

FUNKE, BONACIC, CROCI, DeFRANCISCO, GALLIVAN, GOLDEN, MARCHIONE, MURPHY, RANZENHOFER, SAVINO Amd §6526, Ed L Permits physicians employed by and travelling with a sports team to practice medicine in New York state in connection with such team if licensed in another state.

STATE OF NEW YORK ______

4375

2017-2018 Regular Sessions

IN SENATE

February 10, 2017 ______

Introduced by Sen. FUNKE -- read twice and ordered printed, and when printed to be committed to the Committee on Higher Education

AN ACT to amend the education law, in relation to permitting certain physicians to practice medicine in New York state if they are licensed to practice in another state within the country

The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:

1 Section 1. Section 6526 of the education law is amended by adding a 2 new subdivision 10 to read as follows: 3 10. (a) Any physician who is licensed and in good standing in any 4 state within the United States who: 5 (i) has a written or oral agreement with a sports team to provide care 6 to team members and coaching staff traveling with the team for a specif- 7 ic sporting event to take place in this state; or 8 (ii) has been invited by a national sport governing body to provide 9 services to team members and coaching staff at a national sport training 10 center in this state or to provide services at an event or competition 11 in this state which is sanctioned by the national sport governing body 12 so long as: 13 (A) the physician's practice is limited to that required by the 14 national sport governing body; and 15 (B) the services provided by the physician are within the physician's 16 scope of practice. 17 (b) Nothing in this subdivision shall be construed as to permit a 18 physician exempt by the provisions of this subdivision to: 19 (i) provide care or consultation to any person residing in this state, 20 other than a person specified in paragraph (a) of this subdivision; or 21 (ii) practice at a licensed health care facility in this state. 22 (c) An exemption obtained pursuant to the provisions of this subdivi- 23 sion shall be valid while the physician is traveling with the sports 24 team, provided no exemption shall be longer than ten days in duration

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06657-02-7 S. 4375 2

1 for each respective sporting event. A maximum of twenty additional days 2 per sporting event may be granted upon prior request to the state board 3 for medicine; provided no physician shall be exempted more than thirty 4 additional days in a calendar year. 5 (d) An exemption obtained pursuant to the provisions of subparagraph 6 (ii) of paragraph (a) of this subdivision shall be valid during the time 7 certified by the national sport governing body, provided no exemption 8 shall be for longer than thirty days. 9 (e) The state board for medicine may enter into agreements with 10 medical and osteopathic licensing boards of other states to implement 11 the provisions of this subdivision. Agreements may include procedures 12 for reporting potential medical license violations. 13 (f) The state board for medicine shall promulgate rules and regu- 14 lations to implement the provisions of this subdivision. 15 § 2. This act shall take effect immediately.

NEW YORK STATE SENATE INTRODUCER'S MEMORANDUM IN SUPPORT submitted in accordance with Senate Rule VI. Sec 1

BILL NUMBER: S4375

SPONSOR: FUNKE

TITLE OF BILL: An act to amend the education law, in relation to permitting certain physicians to practice medicine in New York state if they are licensed to practice in another state within the country

SUMMARY OF SPECIFIC PROVISIONS:

Section one: amends section 6526 of the education law to add a new subdivision 10 to allow any physician who is licensed and in good standing in any state within the US who meets a number of specific requirements, an exemption in order to temporarily practice medicine while traveling with a sports team

Section two: provides the effective date.

JUSTIFICATION:

Currently, New York is among 4 other states(Idaho, North Dakota, South. Dakota and Wisconsin) who have no recognition of visiting team physicians. Physicians travel across state lines on a regular basis, but most physicians are only licensed in their home state, not all of the states in which their team is visiting. A team physician is hired to care for athletes on the team, whether that is high school, college or professional level; this care does not end at the border, they attend games and practices wherever the team travels to.

There is federal legislation that has been proposed and supported over the years which looks to address medical liability insurance. There is a need to ensure that the insurance provider will cover the professional's medical liability when they provide health care services outside the state of where they are licensed. While this piece is necessary, it has not been accomplished, and it does not address the need for each state to waive its physician licensure requirements for out-of-state sports medicine physicians when they provide care for an athlete or athletic team staff member at an athletic event.

PRIOR LEGISLATIVE HISTORY:

New Bill

FISCAL IMPLICATIONS:

None

EFFECTIVE DATE: This act shall take effect immediately.

S 1356-B FUNKE Same as A 2783-B Lavine (MS) A2783-B Lavine (MS) Same as S 1356-B ON FILE: 01/03/18 Education Law FUNKE TITLE....Relates to the licensure of athletic trainers Education Law 01/09/17 REFERRED TO HIGHER EDUCATION TITLE....Relates to the licensure of athletic 04/18/17 AMEND (T) AND RECOMMIT TO HIGHER trainers EDUCATION 01/23/17 referred to higher education 04/18/17 PRINT NUMBER 1356A 02/07/17 amend and recommit to higher 04/25/17 REPORTED AND COMMITTED TO FINANCE education 05/16/17 1ST REPORT CAL.1042 02/07/17 print number 2783a 05/17/17 2ND REPORT CAL. 06/15/17 amend (t) and recommit to higher 05/22/17 ADVANCED TO THIRD READING education 06/13/17 AMENDED ON THIRD READING 1356B 06/15/17 print number 2783b 06/20/17 PASSED SENATE 01/03/18 referred to higher education 06/20/17 DELIVERED TO ASSEMBLY 06/20/17 referred to higher education 01/03/18 died in assembly 01/03/18 returned to senate 01/03/18 REFERRED TO HIGHER EDUCATION 01/22/18 REPORTED AND COMMITTED TO FINANCE

FUNKE, BONACIC, GALLIVAN, GRIFFO, LARKIN, ORTT, RANZENHOFER, ROBACH Amd §§8351 - 8357, add §§8356-a & 8356-b, Ed L Relates to the licensure of athletic trainers; provides certain exemptions and requires continuing education.

STATE OF NEW YORK ______

1356--B Cal. No. 1042

2017-2018 Regular Sessions

IN SENATE

January 9, 2017 ______

Introduced by Sens. FUNKE, BONACIC, DeFRANCISCO, GALLIVAN, GRIFFO, LARKIN, ORTT, RANZENHOFER, ROBACH -- read twice and ordered printed, and when printed to be committed to the Committee on Higher Education -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported favorably from said committee and committed to the Committee on Finance -- 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 education law, in relation to the licensure of athletic trainers

The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:

1 Section 1. Section 8351 of the education law, as amended by chapter 2 658 of the laws of 1993, is amended to read as follows: 3 § 8351. [Definition] Definitions. 1. As used in this article "athlet- 4 ic trainer" means any person who is duly [certified] licensed in accord- 5 ance with this article to perform athletic training under the super- 6 vision of a physician [and limits his or her practice to secondary 7 schools, institutions of postsecondary education, professional athletic 8 organizations, or a person who, under the supervision of a physician, 9 carries out comparable functions on orthopedic athletic injuries, 10 excluding spinal cord injuries, in a health care organization. Super- 11 vision of an athletic trainer by a physician shall be continuous but 12 shall not be construed as requiring the physical presence of the super- 13 vising physician at the time and place where such services are 14 performed. 15 The scope of work described herein shall not be construed as authoriz- 16 ing the reconditioning of neurologic injuries, conditions or disease]. 17 The practice of the profession of athletic training is performed by 18 athletic trainers who are defined as health care professionals who

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04222-07-7 S. 1356--B 2

1 engage in the prevention, recognition, examination, evaluation, assess- 2 ment, management, treatment and rehabilitation of neuromusculoskeletal 3 injuries that occur in active individuals with treatment in accordance 4 with the supervising physician pursuant to standard written protocol. 5 These active individuals engage in activities that require a high degree 6 of physical exertion, that involves training and where injury occurs 7 during such training or athletic endeavor, including but not limited to 8 athletic individuals, performing artists and individuals involved in 9 public protection or emergency services or individuals involved in adap- 10 tive athletics. Athletic trainers recognize, evaluate, and assist in the 11 management of sport-related illnesses and medical conditions. The prac- 12 tice of athletic training may include use of various clinically appro- 13 priate therapeutic modalities and techniques. Supervision by a physician 14 shall be continuous but shall not be construed as requiring the physical 15 presence of the supervising physician at the time and place where such 16 services are performed. 17 The scope of work described in this section shall not be construed as 18 authorizing the management and treatment of acute, subacute, or chronic 19 neurological pathologies and comorbidities or neurological disease proc- 20 esses with the exception of initial evaluation and triage of emergent 21 neurological conditions such as potential concussions, spinal cord inju- 22 ries or nerve injuries resulting from participation in an athletic 23 endeavor, while training, or during adaptive athletics. Further, 24 athletic trainers shall work with individuals pursuant to standard writ- 25 ten protocol to manage, monitor and treat such injuries after an indi- 26 vidual has been cleared by a supervising physician to begin rehabili- 27 tation for participation in an athletic endeavor, training, or adaptive 28 athletics. 29 2. As used in this article "emergent" means a serious, unexpected and 30 often dangerous situation requiring immediate action. 31 § 2. Section 8352 of the education law, as amended by chapter 658 of 32 the laws of 1993, is amended to read as follows: 33 § 8352. Definition of practice of athletic training. [The practice of 34 the profession of athletic training is defined as the application of 35 principles, methods and procedures for managing athletic injuries, which 36 shall include the preconditioning, conditioning and reconditioning of an 37 individual who has suffered an athletic injury through the use of appro- 38 priate preventative and supportive devices, under the supervision of a 39 physician and recognizing illness and referring to the appropriate 40 medical professional with implementation of treatment pursuant to physi- 41 cian's orders.] Athletic training includes instruction to coaches, 42 athletes, active individuals, parents, medical personnel and communities 43 in the area of care and prevention of [athletic] neuromusculoskeletal 44 injuries. Supervision by a physician shall include specific or standing 45 orders for athletic training services. 46 [The scope of work described herein shall not be construed as author- 47 izing the reconditioning of neurologic injuries, conditions or disease.] 48 § 3. Section 8353 of the education law, as added by chapter 798 of the 49 laws of 1992, is amended to read as follows: 50 § 8353. Use of the title "[certified] athletic trainer". Only a 51 person [certified] licensed or otherwise authorized under this article 52 shall practice athletic training or use the title "[certified] athletic 53 trainer" or the abbreviation "AT". 54 § 4. Section 8354 of the education law, as added by chapter 798 of the 55 laws of 1992, is amended to read as follows: S. 1356--B 3

1 § 8354. State committee for athletic trainers. A state committee for 2 athletic trainers shall be appointed by the board of regents, upon the 3 recommendation of the commissioner and shall assist on matters of 4 [certification] professional licensing and professional conduct in 5 accordance with section six thousand five hundred eight of this title. 6 The committee shall consist of [five] seven members, five who are 7 athletic trainers [certified] licensed in this state, one practicing 8 physician who is licensed in this state to practice as an orthopedic 9 surgeon, a primary care/family practice physician, a sports medicine 10 practitioner, or a neurologist and one public member that is a consumer 11 of the profession. The committee shall assist the state board for medi- 12 cine in athletic training matters. Nominations and terms of office of 13 the members of the state committee for athletic trainers shall conform 14 to the corresponding provisions relating thereto for state boards under 15 article one hundred thirty of this chapter. [Notwithstanding the forego- 16 ing, the members of the first committee need not be certified prior to 17 their appointment to the committee.] 18 § 5. Section 8355 of the education law, as added by chapter 798 of the 19 laws of 1992, is amended to read as follows: 20 § 8355. Requirements and procedure for professional [certification] 21 licensure. [For certification as a certified] To qualify for a license 22 as an athletic trainer under this article, an applicant shall fulfill 23 the following requirements: 24 1. Application: file an application with the department; 25 2. Education: have received an education including a bachelor's, its 26 equivalent or higher degree in accordance with the commissioner's regu- 27 lations, provided however, as of December thirty-first, two thousand 28 twenty-six, applicants must have received a master's degree, its equiv- 29 alent or higher in accordance with the commissioner's regulations; 30 3. Experience: have experience in accordance with the commissioner's 31 regulations; 32 4. Examination: pass an examination in accordance with the commission- 33 er's regulations; 34 5. Age: be at least twenty-one years of age; and 35 6. Fees: pay a fee for an initial [certificate] license of one hundred 36 dollars to the department; and a fee of fifty dollars for each triennial 37 registration period. 38 § 6. Section 8356 of the education law, as amended by chapter 658 of 39 the laws of 1993, is amended to read as follows: 40 § 8356. [Special provisions. A person shall be certified without exam- 41 ination provided that, within three years from the effective date of 42 regulations implementing the provisions of this article, the individual: 43 1. files an application and pays the appropriate fees to the depart- 44 ment; and 45 2. meets the requirements of subdivisions two and five of section 46 eight thousand three hundred fifty-five of this article and who in addi- 47 tion: 48 (a) has been actively engaged in the profession of athletic training 49 for a minimum of four years during the seven years immediately preceding 50 the effective date of this article; or 51 (b) is certified by a United States certifying body acceptable to the 52 department.] Exempt persons. 1. Nothing contained in this article shall 53 prohibit: 54 (a) the practice of athletic training that is an integral part of a 55 program of study by students enrolled in an athletic training program 56 approved by the department. Students enrolled in an approved athletic S. 1356--B 4

1 training program shall be identified as "athletic training students" and 2 shall only practice athletic training under the direction and immediate 3 supervision of an athletic trainer currently licensed under this arti- 4 cle. An athletic training student shall not hold himself or herself out 5 as a licensed athletic trainer; or 6 (b) the practice of athletic training by any person who is licensed 7 and in good standing to practice athletic training in another state from 8 acting as an athletic trainer without a New York state license solely 9 for the following purposes: (i) clinical education, practice demon- 10 strations or clinical research that is within the practice of athletic 11 training in connection with a program of basic clinical education, grad- 12 uate education, or post-graduate education in an approved school of 13 athletic training, or in a clinical facility, or a health care agency, 14 or continuing education; or (ii) performing duties with his or her team 15 or organization, so long as duties are restricted to that team or organ- 16 ization during the course of that team's or organization's stay in New 17 York state for no more than sixty days in a calendar year; or (iii) 18 assisting in the care of athletes in a specific sanctioned athletic 19 event; or (iv) assisting a New York state licensed athletic trainer in 20 the case of an emergency situation to another team's player. Any person 21 practicing athletic training in New York state pursuant to this subdivi- 22 sion shall be subject to personal and subject matter jurisdiction and 23 the disciplinary and regulatory authority of the board of regents as if 24 he or she is a licensee and as if the exemption pursuant to this subdi- 25 vision is a license. Such individuals shall consent to the appointment 26 of the secretary of state or other public official acceptable to the 27 department, in such athletic trainers' states of licensure as the 28 athletic trainers' agents upon whom process may be served in any actions 29 or proceedings by the department against such athletic trainers. Such 30 individuals shall comply with the provisions of this article, the rules 31 of the board of regents and the regulations of the commissioner relating 32 to professional misconduct, disciplinary proceedings and penalties for 33 professional misconduct; or 34 (c) the practice of athletic training by any person who is otherwise 35 authorized and in good standing to practice athletic training or athlet- 36 ic therapy in another country, state, or territory that imposes the same 37 requirements set forth in section eighty-three hundred fifty-five of 38 this article. Any person practicing athletic training in New York state 39 pursuant to this subdivision shall be subject to personal and subject 40 matter jurisdiction and the disciplinary and regulatory authority of the 41 board of regents as if he or she is a licensee and as if the exemption 42 pursuant to this subdivision is a license. Such individuals shall 43 consent to the appointment of the secretary of state or other public 44 official acceptable to the department, in such athletic trainers' states 45 of licensure as the athletic trainers' agents upon whom process may be 46 served in any actions or proceedings by the department against such 47 athletic trainers. Such individuals shall comply with the provisions of 48 this article, the rules of the board of regents and the regulations of 49 the commissioner relating to professional misconduct, disciplinary 50 proceedings and penalties for professional misconduct. 51 2. This article shall not be construed to prohibit qualified members 52 of other licensed or legally recognized professions from performing work 53 incidental to the practice of their profession, except that such persons 54 may not hold themselves out under the title athletic trainer or as 55 performing athletic training. S. 1356--B 5

1 § 7. The education law is amended by adding two new sections 8356-a 2 and 8356-b to read as follows: 3 § 8356-a. Mandatory continuing education. 1. (a) Each licensed athlet- 4 ic trainer required under this article to register triennially with the 5 department to practice in the state shall comply with the provisions of 6 the mandatory continuing education requirements prescribed in subdivi- 7 sion two of this section except as set forth in paragraphs (b) and (c) 8 of this subdivision. Licensed athletic trainers who do not satisfy the 9 mandatory continuing education requirements shall not practice until 10 they have met such requirements, and they have been issued a registra- 11 tion certificate, except that a licensed athletic trainer may practice 12 without having met such requirements if he or she is issued a condi- 13 tional registration certificate pursuant to subdivision three of this 14 section. 15 (b) Each licensed athletic trainer shall be exempt from the mandatory 16 continuing education requirement for the triennial registration period 17 during which he or she is first licensed. In accordance with the intent 18 of this section, adjustment to the mandatory continuing education 19 requirement may be granted by the department for reasons of health 20 certified by an appropriate health care professional, for extended 21 active duty with the armed forces of the United States, or for other 22 good cause acceptable to the department which may prevent compliance. 23 (c) A licensed athletic trainer not engaged in practice, as determined 24 by the department, shall be exempt from the mandatory continuing educa- 25 tion requirement upon the filing of a statement with the department 26 declaring such status. Any licensee who returns to the practice of 27 athletic training during the triennial registration period shall notify 28 the department prior to reentering the profession and shall meet such 29 mandatory education requirements as shall be prescribed by regulations 30 of the commissioner. 31 2. During each triennial registration period, an applicant for regis- 32 tration as a licensed athletic trainer shall complete a minimum of 33 forty-five hours of acceptable formal continuing education, as specified 34 in subdivision four of this section. Any licensed athletic trainer whose 35 first registration date following the effective date of this section 36 occurs less than three years from such effective date, but on or after 37 January first, two thousand nineteen, shall complete continuing educa- 38 tion hours on a prorated basis at the rate of one hour per month for the 39 period beginning January first, two thousand nineteen and then fifteen 40 hours per year until his or her first registration date thereafter. A 41 licensee who has not satisfied the mandatory continuing education 42 requirements shall not be issued a triennial registration certificate by 43 the department and shall not practice unless and until a conditional 44 registration certificate is issued as provided for in subdivision three 45 of this section. Continuing education hours taken during one triennium 46 may not be transferred to a subsequent triennium. 47 3. The department, in its discretion, may issue a conditional regis- 48 tration to a licensee who fails to meet the continuing education 49 requirements established in subdivision two of this section but who 50 agrees to make up any deficiencies and complete any additional education 51 which the department may require. The fee for such a conditional regis- 52 tration shall be the same as, and in addition to, the fee for the trien- 53 nial registration. The duration of such conditional registration shall 54 be determined by the department but shall not exceed one year. Any 55 licensee who is notified of the denial of registration for failure to 56 submit evidence, satisfactory to the department, of required continuing S. 1356--B 6

1 education and who practices without such registration may be subject to 2 disciplinary proceedings pursuant to section sixty-five hundred ten of 3 this title. 4 4. As used in subdivision two of this section, "acceptable formal 5 education" shall mean formal courses of learning which contribute to 6 professional practice in athletic training and which meet the standards 7 prescribed by regulations of the commissioner. Such formal courses of 8 learning shall include, but not be limited to, collegiate level credit 9 and non-credit courses, professional development programs and technical 10 sessions offered by national, state and local professional associations, 11 and any other organized educational and technical programs acceptable to 12 the department. The department may, in its discretion and as needed to 13 contribute to the health and welfare of the public, require the 14 completion of continuing education courses in specific subjects to 15 fulfill this mandatory continuing education requirement. Continuing 16 education courses must be taken from a provider approved by the depart- 17 ment, based upon an application and fee pursuant to the regulations of 18 the commissioner. 19 5. A licensed athletic trainer shall maintain adequate documentation 20 of completion of acceptable formal continuing education and shall 21 provide such documentation at the request of the department. Failure to 22 provide such documentation upon the request of the department shall be 23 an act of misconduct subject to disciplinary proceedings pursuant to 24 section sixty-five hundred ten of this title. 25 6. The mandatory continuing education fee shall be payable on or 26 before the first day of each triennial registration period, and shall be 27 paid in addition to the triennial registration fee required by section 28 eighty-three hundred fifty-five of this article. 29 § 8356-b. Special provisions. Any person who is licensed as a certi- 30 fied athletic trainer by the department on the effective date of this 31 section shall be licensed as an athletic trainer without meeting any 32 additional requirements. 33 § 8. Section 8357 of the education law, as added by chapter 798 of the 34 laws of 1992, is amended to read as follows: 35 § 8357. Non-liability of [certified] licensed athletic trainers for 36 first aid or emergency treatment. Notwithstanding any inconsistent 37 provision of any general, special or local law, any [certified] licensed 38 athletic trainer who voluntarily and without the expectation of monetary 39 compensation renders first aid or emergency treatment at the scene of an 40 accident or other emergency, outside a hospital, doctor's office or any 41 other place having proper and necessary athletic training equipment, to 42 a person who is unconscious, ill or injured, shall not be liable for 43 damages for injuries alleged to have been sustained by such person or 44 for damages for the death of such person alleged to have occurred by 45 reason of an act or omission in the rendering of such first aid or emer- 46 gency treatment unless it is established that such injuries were or such 47 death was caused by gross negligence on the part of such licensed 48 athletic trainer. Nothing in this section shall be deemed or construed 49 to relieve a [certified] licensed athletic trainer from liability for 50 damages for injuries or death caused by an act or omission on the part 51 of an athletic trainer while rendering professional services in the 52 normal and ordinary course of his or her practice. 53 § 9. This act shall take effect on the first of January next succeed- 54 ing the date on which it shall have become a law.

NEW YORK STATE SENATE INTRODUCER'S MEMORANDUM IN SUPPORT submitted in accordance with Senate Rule VI. Sec 1

BILL NUMBER: S1356B

SPONSOR: FUNKE

TITLE OF BILL: An act to amend the education law, in relation to the licensure of athletic trainers

PURPOSE:

To create licensure for the profession of Athletic Training.

SUMMARY:

This legislation updates the current laws that certify Athletic Trainers (ATs), however it maintains the requirement that ATs perform under the supervision of physicians. The bill establishes licensure for Athletic Trainers and it expands the definition of Athletic Training. Further- more, it makes clear that Athletic Trainers can manage individuals with concussions or individuals involved in adaptive athletics. Since the practice of Athletic Training would now require a license, the legislation sets forth exemptions to allow students in accredited programs and other qualified licensees to perform services that would be protected upon enactment of this law. The bill also creates a continuing education requirement for licensed ATs.

JUSTIFICATION:

The Athletic Training practice act (Article 162 of the Education Law) was passed in 1992. It needs to be updated to reflect the evolution of the profession of Athletic Training including the increased knowledge base, capabilities, and abilities of Athletic Trainers. The pursuit of licensure is solely to protect the public. Individuals working in the capacity of Athletic Trainers would be required to possess licenses. This would allow athletes, parents, patients, performers, and clients to know that the Athletic Trainers working with them are qualified to provide this important service.

The current scope of practice for Athletic training in New York State is so limited that fewer students who graduate from the eleven accredited Athletic Training education programs in NYS colleges choose to remain in New York to work. We are frequently losing the best students to other locations as a result of the limitations in the current practice act. As a result, fewer NYS high schools will have access to Athletic Trainers at a time when the recently enacted Concussion Awareness and Management Law makes it more desirable for secondary schools to have Athletic Trainers on staff as part of their Concussion Management Teams.

EFFECTIVE DATE: The first of January after the bill shall have become law. ISSUE BRIEF OPPOSE

Inappropriate Scope Expansions

The Ask: Oppose NYSSOS believes that all patients should have access to high quality, comprehensive musculoskeletal care by providers who have met and completed uniform standards for education, licensure, training, and certification.

NYSSOS recognizes that non-physician providers play an important role in the delivery of health care services. However, continued efforts to expand the statutory authority of allied health care providers inconsistent with their education, training, and hands-on clinical experience need to be opposed. Dramatic and unnecessary expansions in scope of practice in areas of testing, treatments, and procedures for non-physician providers will significantly jeopardize the safety and well-being of patients.

Podiatry Scope of Practice Expansion (S.4734 Valesky / A1880 Pretlow) Status: Higher Education Committees Contrary to the description of the bill, the requested measures are substantive in nature, not technical and were originally discussed and rejected during the 2012 compromise after prolonged negotiation.

There are several provisions within this bill that are alarming and fall well outside of the scope of technical amendments: Reduces certification requirements to board qualification for advanced surgical privileges; Removes direct supervision requirements for those seeking either standard ankle surgery or advanced ankle surgery privileges; Does not require that treatment of wounds be contiguous with structures of the foot or ankle; and Does not include a pathway to report an incident that occurred at a podiatrist’s office

Chiropractic Modernization Efforts (S.7427 Lanza / A8541 Lentol) Status: Higher Education Committees This bill seeks to create a platform in which chiropractors would be recognized in New York as “chiropractic physicians”, creating a level of parity between the professions that is not appropriate for patient safety. The proposed description will only mislead patients as to the qualifications of the person taking care of them and does not serve the best interests of patients but is an attempt to legislatively and artificially elevate the status of the chiropractic profession beyond their training and expertise. In addition, the bill expands care to extremities, lessens physician oversight, and provides limited pathways for patients to address safety concerns.

No Limits for Duration of Physical Therapy Treatments (S.6024 Griffo / A7873 Zebrowski) Status: Higher Education Committees

NYSSOS believes that patients should have access to quality, comprehensive, and coordinated care. Through improved flow and continuity, integration has the potential not only to deliver superior health outcomes, but also decrease total costs. Continued access to a professional team of musculoskeletal providers, working together, will provide this high quality efficient care. Moreover, integration and involvement facilitates a shared decision process that provides the greatest chance of achieving the "right" amount and type of care for each individual patient. Fragmenting this coordinated team approach and allowing a longer time for treatment and definitive diagnosis will most likely lead to increased costs and can also impact patient safety.

In 2006, the physical therapy practice act was amended to permit physical therapists to treat patients without a referral with the limitation that the treatment may only last ten treatments or thirty days. This negotiation recognized the importance of the field in providing appropriate and timely care. NYSSOS maintains its position that 10 physical therapy visits and 30 days for evaluation is an adequate time for treatment response.

Memorandum in Opposition to Legislation

A.1880 (Pretlow) /S4734 (Valesky)

AN ACT to amend the education law, in relation to making technical changes to the podiatric scope of practice ______

This bill seeks to make “technical” changes to legislation enacted in 2012 that expanded the scope of practice for podiatry by issuance of podiatric standard and advanced ankle surgery privileges. Contrary to the description of the bill, the requested measures are substantive in nature, not technical and were originally discussed and rejected during the 2012 compromise after prolonged negotiation. The New York State Society of Orthopaedic Surgeons (NYSSOS) opposes this bill.

There are several provisions within this bill that are alarming and fall well outside of the scope of technical amendments:

• Reduces certification requirements to board qualification for advanced surgical privileges • Removes direct supervision requirements for those seeking either standard ankle surgery or advanced ankle surgery privileges • Does not require that treatment of wounds be contiguous with structures of the foot or ankle • Does not include a pathway to report an incident that occurred at a podiatrist’s office

Certification Changes Adopting A1880/S4734 would circumvent important provisions contained in the 2012 legislation by lowering the podiatric qualification threshold for education and training. The bill modifies the agreed upon certification requirement for issuance of the advanced ankle surgery privilege from board certification to board qualification. Authorizing a lesser standard will undermine patient quality and care.

While colleges of podiatric medicine have taken steps to develop educational curriculums that parallel medical schools and suggest equivalency, podiatric education does not yet meet the nationally recognized uniform standards for medical (MD and DO) education. There is no national examination uniformly given to all podiatry graduates to allow for appropriate evaluation of their knowledge. The difference in the scope and depth of training for Orthopaedic Surgeons and podiatrists is very significant. Orthopaedic Surgeons complete four years of medical school followed by five years of residency training and one year of fellowship training. Podiatrists, by comparison, receive four years of graduate education followed by a three-year residency which varies depending on the certification that they have elected to pursue.

Podiatric education and training today is variable, and a number of boards certify in specific areas of podiatry with standards that continue to evolve. The varying requirements have resulted in a range of limited licensed practitioners with varied training and skills. This, coupled with the continued push to legally expand podiatric scope of practice outside of accepted medical education and training standards, creates confusion for patients and the public, including

Orthopaedic Surgeons Urge the Legislature to Oppose this Bill state government officials responsible for oversight for scope of practice and hospitals with responsibility for credentialing and privileging medical providers.

By contrast, in Orthopaedic Surgery, all candidates for licensure must complete an examination administered by the American Board of Orthopaedic Surgery. No secondary or alternate path to certification exists. The standards are uniform for all applicants seeking certification. This model serves to protect the patient’s best interests.

Supervision The bill removes the requirement that a podiatrist seeking either standard ankle surgery or advanced ankle surgery privileges be directly supervised by a podiatrist with an advanced license from the New York State Education Department or a physician and replaces it with only a “supervision” requirement. This lower standard does not require onsite oversight and in no way ensures that the trainee is either learning the techniques needed for advanced licensure or obtaining competence in the advanced procedures. Removing the requirement for direct supervisions essentially allows podiatrists to train themselves and practice on their own. In no way is advanced knowledge obtained nor are skills developed under this scheme of practice.

Wound Care This bill would allow all podiatrists to care for any wound on the leg including cancer, trauma wounds, plastic surgery procedures, ulcers (diabetic or otherwise) and potentially is inclusive of all other leg wounds such as treatment of tibial ulcers down to the bone. The bill further states the treatment does not have to be for a wound that is “contiguous with”, the foot or ankle below the knee. This provision does not restrict treatment on the lower leg in any manner. Podiatrists would essentially be granted legislative authority to practice dermatology, oncology, plastic surgery, surgery, internal medicine, family medicine and pediatrics. This would represent a significant increase in the current scope of podiatric practice.

Reporting Unfortunately, patients will have a limited pathway to report an incident that occurred at a podiatrist’s office. The incident will not be reviewed by the NYS Department of Health’s Office of Professional Medical Conduct (OPMC) because OPMC does not have jurisdiction over podiatrists. Instead, complaints against podiatrists are governed by the State Board of Podiatry under the NY State Education Department which has significantly different resources to investigate such matters.

Additionally, while a physician’s malpractice history is available for public inspection through NYS’s Physician Profile Database, no similar or parallel system exists for patients who would like to review past malpractice history of their podiatrist. The lack of resources for patients to adequately and appropriately review podiatrists is a very significant concern and until a public accountability system can be established, expansion of the podiatric scope of practice must be denied.

Patients are best served if all providers of surgical care of the lower extremities meet uniform education, training, certification standards with proper oversight. The New York State Society of Orthopaedic Surgeons opposes this bill and urges legislators to vote No.

S 4734 VALESKY Same as A 1880 Pretlow A1880 Pretlow (MS) Same as S 4734 VALESKY (MS) Education Law ON FILE: 01/03/18 Education Law TITLE....Makes technical corrections to the practice of TITLE....Makes technical corrections to the podiatry practice of podiatry 01/13/17 referred to higher education 02/24/17 REFERRED TO HIGHER 01/03/18 referred to higher education EDUCATION 01/03/18 REFERRED TO HIGHER EDUCATION

VALESKY, ALCANTARA, CARLUCCI, SANDERS, SAVINO Amd §§7001, 7009 & 7010, Ed L Makes technical corrections to the practice of podiatry.

STATE OF NEW YORK ______

4734

2017-2018 Regular Sessions

IN SENATE

February 24, 2017 ______

Introduced by Sens. VALESKY, CARLUCCI, LATIMER, SANDERS -- read twice and ordered printed, and when printed to be committed to the Committee on Higher Education

AN ACT to amend the education law, in relation to making technical changes to the scope of the practice of podiatry

The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:

1 Section 1. Subdivisions 1 and 2 of section 7001 of the education law, 2 subdivision 1 as amended by chapter 23 of the laws of 2013 and subdivi- 3 sion 2 as amended by chapter 438 of the laws of 2012, are amended to 4 read as follows: 5 1. The practice of the profession of podiatry is defined as diagnos- 6 ing, treating, operating and prescribing for any disease, injury, 7 deformity or other condition of the foot, the non-surgical treatment of 8 the ankle and the anatomical structures of the ankle, cutaneous condi- 9 tions and wounds of the ankle, and may include performing physical eval- 10 uations in conjunction with the provision of podiatric treatment. [For 11 the purposes of wound care however, the practice of podiatry shall 12 include the treatment of such wounds if they are contiguous with wounds 13 relating, originating or in the course of treatment of a wound on the 14 foot within the podiatric scope of practice.] The practice of podiatry 15 shall not include the following treatments or procedures performed above 16 the level of the malleoli, unless otherwise provided: the treatment of 17 melanoma; performance of mohs surgery; muscle flaps or microvascular 18 anastamoses. Wound care shall not, however, extend beyond the level 19 ending at the [distal] tibial tuberosity. The practice of podiatry may 20 also include [diagnosing, treating, operating and prescribing for any 21 disease, injury, deformity or other condition of] the surgical treatment 22 of the ankle and soft tissue of the leg below the tibial tuberosity if 23 the podiatrist has obtained an issuance of a privilege to perform podia- 24 tric standard ankle surgery or advanced ankle surgery in accordance with

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD04558-01-7 S. 4734 2

1 section seven thousand nine of this article. Podiatrists may treat trau- 2 matic open wound fractures only in hospitals, as defined in article 3 twenty-eight of the public health law. For the purposes of this article, 4 the term "ankle" shall be defined as the distal metaphysis and epiphysis 5 of the tibia and fibula, the articular cartilage of the distal tibia and 6 distal fibula, the ligaments that connect the distal metaphysis and 7 epiphysis of the tibia and fibula and talus, and the portions of skin, 8 subcutaneous tissue, facia, muscles, tendons, ligaments and nerves at or 9 below the level of the myotendinous junction of the triceps surae. 10 2. The practice of podiatry shall not include treating any part of the 11 human body other than the foot and ankle as herein provided, nor treat- 12 ing fractures of the malleoli or cutting operations upon the malleoli 13 unless the podiatrist obtains an issuance of a privilege to perform 14 podiatric standard ankle surgery or podiatric advanced ankle surgery 15 Podiatrists who have obtained an issuance of a privilege to perform 16 podiatric standard ankle surgery may perform surgery on the ankle which 17 may include soft tissue and osseous procedures except those procedures 18 specifically authorized for podiatrists who have obtained an issuance of 19 a privilege for advanced ankle surgery. Podiatrists who have obtained an 20 issuance of a privilege to perform podiatric advanced ankle surgery may 21 perform surgery on the ankle which may include ankle fracture fixation, 22 ankle fusion, ankle arthroscopy, insertion or removal of external fixa- 23 tion pins into or from the tibial diaphysis at or below the level of the 24 myotendinous junction of the triceps surae, and insertion and removal of 25 retrograde tibiotalocalcanneal intramedullary rods and locking screws up 26 to the level of the myotendinous junction of the triceps surae, but does 27 not include the surgical treatment of complications within the tibial 28 diaphysis related to the use of such external fixation pins. Podiatrists 29 licensed to practice, but not authorized to prescribe or administer 30 narcotics prior to the effective date of this subdivision, may do so 31 only after certification by the department in accordance with the quali- 32 fications established by the commissioner. The practice of podiatry 33 shall include administering only local anesthetics for therapeutic 34 purposes as well as for anesthesia and treatment under general anes- 35 thesia administered by authorized persons. The practice of podiatry by 36 any licensee shall not include partial or total ankle replacements nor 37 the treatment of pilon fractures. 38 § 2. Subparagraph (ii) of paragraph c of subdivision 1 of section 7009 39 of the education law, as added by chapter 438 of the laws of 2012, is 40 amended to read as follows: 41 (ii) have graduated on or after June first, two thousand six from a 42 three-year residency program in podiatric medicine and surgery that was 43 accredited by an accrediting agency acceptable to the department, be 44 board qualified but not yet certified in reconstructive rearfoot and 45 ankle surgery by a national certifying board having certification stand- 46 ards acceptable to the department, and provide documentation that he or 47 she has acceptable training and experience in standard or [advance] 48 advanced midfoot, rearfoot and ankle procedures that has been approved 49 by the department; or 50 § 3. Section 7010 of the education law, as added by chapter 438 of the 51 laws of 2012, is amended to read as follows: 52 § 7010. Ankle surgery limited permits. 1. A limited permit to perform 53 podiatric standard ankle surgery, as described in subdivision two of 54 section seven thousand one of this article, may be issued by the depart- 55 ment to a podiatrist who is licensed pursuant to this article and who 56 has met the residency and board qualification/certification requirements S. 4734 3

1 set forth in subdivision one of section seven thousand nine of this 2 article in order to authorize such podiatrist to obtain the training and 3 experience required for the issuance of a podiatric standard ankle 4 surgery privilege pursuant to subdivision one of section seven thousand 5 nine of this article. Such permits shall authorize the performance of 6 podiatric standard ankle surgery only under the [direct personal] super- 7 vision of a licensed podiatrist holding a podiatric standard ankle 8 surgery privilege or a podiatric advanced ankle surgery privilege issued 9 pursuant to section seven thousand nine of this article or of a physi- 10 cian licensed pursuant to article one hundred thirty-one of this title 11 and certified in orthopedic surgery by a national certifying board 12 having certification standards acceptable to the department. 13 2. A limited permit to perform podiatric advanced ankle surgery, as 14 described in subdivision two of section seven thousand one of this arti- 15 cle, may be issued by the department to a podiatrist who is licensed 16 pursuant to this article and who has met the residency and board certif- 17 ication requirements set forth in subdivision two of section seven thou- 18 sand nine of this article in order to authorize such podiatrist to 19 obtain the training and experience required for the issuance of a podia- 20 tric advanced ankle surgery privilege pursuant to subdivision two of 21 section seven thousand nine of this article; provided, however, that 22 board qualification shall be deemed to satisfy the certification 23 requirements set forth in such section for purposes of this subdivision. 24 Such permits shall authorize the performance of podiatric advanced ankle 25 surgery only under the [direct personal] supervision of a licensed 26 podiatrist holding a podiatric advanced ankle surgery privilege issued 27 pursuant to subdivision two of section seven thousand nine of this arti- 28 cle or of a physician licensed pursuant to article one hundred thirty- 29 one of this title and certified in orthopedic surgery by a national 30 certifying board having certification standards acceptable to the 31 department. 32 3. For the purposes of this section, [direct personal] supervision 33 means supervision of procedures based on instructions given directly by 34 [the supervising] a licensed podiatrist holding a podiatric standard or 35 advanced ankle surgery privilege or physician who [remains in the imme- 36 diate area where the procedures are being performed] is immediately 37 available to furnish assistance and direction throughout the performance 38 of the procedure, authorizes the procedures and evaluates the procedures 39 performed by the holder of the limited permit or with the approval of 40 the chair of the orthopedic or surgery department of the hospital at 41 which the procedure will be performed. 42 4. The holder of a limited permit issued pursuant to this section 43 shall perform podiatric ankle surgery only in a hospital or health 44 facility licensed pursuant to article twenty-eight of the public health 45 law and appropriately authorized to provide such surgery. 46 5. Limited permits shall be issued for a period of one year, and may 47 be renewed for additional one year periods when necessary to permit the 48 completion of the training and experience required to obtain a podiatric 49 standard ankle surgery privilege or podiatric advanced ankle surgery 50 privilege, as applicable, provided that no permit may be renewed more 51 than four times for each such privilege. 52 6. The fee for a limited permit shall be one hundred five dollars and 53 the fee for a renewal shall be fifty dollars. 54 § 4. This act shall take effect immediately.

NEW YORK STATE SENATE INTRODUCER'S MEMORANDUM IN SUPPORT submitted in accordance with Senate Rule VI. Sec 1

BILL NUMBER: S4734

SPONSOR: VALESKY

TITLE OF BILL: An act to amend the education law, in relation to making technical changes to the scope of the practice of podiatry

PURPOSE OR GENERAL IDEA OF BILL:

To correct certain errors within chapter 438 of the laws of 2012 relating to the podiatric scope of practice

SUMMARY OF SPECIFIC PROVISIONS:

Section 1 Amends section 7001 of the education law to acknowledge existing authority of licensed podiatrists to diagnose and treat conditions affecting the skin of the foot and to extend that authority to conditions affecting the skin of the ankle, as well, consistent with recently enacted authority to diagnose and treat conditions of the ankle.

§ 2. Amends section 7009 of the education law relating to the privilege to perform podiatric standard ankle surgery, to include certification in foot surgery and foot and ankle surgery within categories of certification required for issuance of such privilege.

§ 3. Amends section 7010 of the education law relating to the issuance of ankle surgery permits to clarify that the supervision required with respect to such permits may be provided by a duly qualified licensed podiatrist or physician in the immediate area of the procedure or otherwise with the approval of the hospital's orthopedic or surgery department chair.

§ 4. Effective date

JUSTIFICATION:

Chapter 438 of the laws of 2012 reflected several years of negotiations and discussions among interested parties to allow the podiatric scope of practice to be aligned with current educational and clinical standards which included diagnosis and treatment of ailments of the ankle. Certain provisions of the chapter, however, required technical amendments and further refinement. The legislative proposals reflect these refinements and technical corrections.

PRIOR LEGISLATIVE HISTORY:

2013 - Passed Senate 2014 - Died Rules 2016 - Referred to Higher Education

FISCAL IMPLICATIONS:

None

EFFECTIVE DATE: Immediately NEW YORK STATE SOCIETY OF ORTHOPAEDIC SURGEONS P.O. BOX 38004 * ALBANY, NY 12203 (TEL) 518-439-0000 * (FAX) 518-207-0080 WWW.NYSSOS.ORG

Memorandum in Opposition to Legislation

S7427 (Lanza) / A8541 (Lentol)

An act to amend the education law, in relation to modernizing the chiropractic scope of practice ______

This proposed bill would amend numerous sections of Article 132 of the Education Law by changing provisions related to the scope of practice for the profession of chiropractic. We acknowledge allied health professionals have a vital role to play in restoring and maintaining the health and well-being of patients. However, The New York State Society of Orthopaedic Surgeons is concerned this bill will expand the scope of practice of these professionals beyond their training, experience, and oversight. The New York State Society of Orthopaedic Surgeons (NYSSOS) strongly opposes this bill and believes this legislation has significant adverse patient safety ramifications.

NYSSOS believes that all patients should have access to high quality, comprehensive musculoskeletal care by providers who have met and completed uniform standards for education, licensure, training, and certification. This bill seeks to create a platform in which chiropractors would be recognized in New York as “chiropractic physicians”, creating a level of parity between the professions that is not appropriate for patient safety. The proposed description will only mislead patients as to the qualifications of the person taking care of them and does not serve the best interests of patients but is an attempt to legislatively and artificially elevate the status of the chiropractic profession beyond their training and expertise.

Difference in Qualifications Orthopaedic surgeons’ education and training

-4 years of medical or osteopathic medical education -5 years of graduate medical education -Potentially 1-2 years of additional Fellowship and subspecialty training -Covers all organ and other systems in the human body -Differential diagnostic and pharmacologic applications integrated into every entry level of training -Training includes a breadth of experience handling oncologic/tumor, infectious, and degenerative problems

Sports Medicine physicians’ education and training

-4 years of medical or osteopathic medical education -4-5 years of graduate medical education -Covers all organ and other systems in the human body -Differential diagnostic and pharmacologic applications integrated into every entry level of training

Chiropractors

-4 years of chiropractic college -Basic sciences -Focus on spinal manipulation -Does not include pharmaceuticals, surgical or other invasive procedures

Orthopaedic Surgeons Urge the Legislature to Oppose this Bill There are several provisions within this bill that are alarming:

• Removes the prohibition on chiropractors from treating dislocations and providing diagnostic and treatment(s) involving chemical or biological means.

• This bill will broaden a chiropractor’s scope of practice to include examination and treatment of articular segments by manual or mechanical means, neuromusculoskeletal conditions, structural imbalance (such as through restoring nervous system integrity) as it relates to “any human disease, pain, injury, deformity or physical condition” – in addition to the vertebral column. This expands the scope of practice to allow for more extremity problems.

• The measure specifies that chiropractic examination, evaluation and treatment may include the use of imaging studies using ionizing and non-ionizing methods, electrodiagnostic testing and manipulation under anesthesia. However, chiropractors would be prohibited from using ionizing radiation sources for the practice of radiotherapy.

State Board of Chiropractic Under existing law, one physician, one educator and at least four chiropractors may be appointed to the State Board of Chiropractic. This measure would remove a physician’s representation on the Board and instead require that at least seven chiropractors serve on the Board. We are not in support of such change and think this lessening of medical oversight represents a significant deviation from current patient and medical safety.

Reporting Unfortunately, patients will have a limited pathway to report an incident occurring at a chiropractor’s office. The incident will not be reviewed by the NYS Department of Health’s Office of Professional Medical Conduct (OPMC) because OPMC does not have jurisdiction over chiropractors. Instead, complaints against chiropractors are governed by the NY State Education Department, which has significantly different resources to investigate such matters.

Additionally, while a physician’s malpractice history is available for public inspection through NYS’s Physician Profile Database, no similar or parallel system exists for patients who would like to review past malpractice history of their chiropractors. The lack of resources for patients to adequately and appropriately review chiropractors is a very significant concern and until a public accountability system can be established, expansion of the scope of practice must be denied.

The New York State Society of Orthopaedic Surgeons opposes this bill and urges legislators to vote No.

Respectfully Submitted,

Babette M. Grey Executive Director

S 7427 LANZA Same as A 8541 Lentol A8541 Lentol Same as S 7427 LANZA ON FILE: 01/18/18 Education Law Education Law TITLE....Relates to modernizing the TITLE....Relates to modernizing the chiropractic scope of chiropractic scope of practice; repealer practice; repealer 01/17/18 REFERRED TO HIGHER 06/21/17 referred to higher education EDUCATION 01/03/18 referred to higher education

LANZA Rpld §6556, amd Ed L, generally Relates to modernizing the chiropractic scope of practice; authorizes chiropractic clinical assistants.

STATE OF NEW YORK ______

7427

IN SENATE

January 17, 2018 ______

Introduced by Sen. LANZA -- read twice and ordered printed, and when printed to be committed to the Committee on Higher Education

AN ACT to amend the education law, in relation to modernizing the chiropractic scope of practice; and to repeal certain provisions of such law relating thereto

The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:

1 Section 1. Section 6551 of the education law, as added by chapter 987 2 of the laws of 1971, paragraphs a and b of subdivision 2 as amended by 3 chapter 450 of the laws of 1983, and subdivision 3 as amended by chapter 4 683 of the laws of 1991, is amended to read as follows: 5 § 6551. Definition of practice of chiropractic. 1. The practice of 6 the profession of chiropractic is defined as [detecting and correcting 7 by manual or mechanical means structural imbalance, distortion, or 8 subluxations in the human body for the purpose of removing nerve inter- 9 ference and the effects thereof, where such interference is the result 10 of or related to distortion, misalignment or subluxation of or in the 11 vertebral column. 2.] the examination, evaluation, detection, diagnosis 12 of the human body and/or treatment or correction of: subluxations in the 13 vertebral column or other articular segments by manual or mechanical 14 means, neuromusculoskeletal conditions, structural imbalance, 15 distortion, and/or dysfunction of the human body and the effects there- 16 of; including restoring nervous system integrity, structural balance 17 and/or function; as it may relate to any human disease, pain, injury, 18 deformity or physical condition. 19 2. a. The practice of chiropractic may include, but not be limited to, 20 physical and functional examination of patients, health assessment, work 21 capability assessment, handicap eligibility assessment, school and other 22 sports assessment, school attendance assessment, spinal health assess- 23 ment, analysis, or to give consultation, advice, recommendations and 24 counseling regarding anatomy, physiology, neurology, general health 25 matters, wellness and health optimization by any means of communication, 26 the use of imaging studies using ionizing and non-ionizing imaging meth- 27 ods, adjustment, mobilization, manipulation, traction, and decom-

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD13164-02-7 S. 7427 2

1 pression, and ancillary procedures consisting of but not limited to, 2 heat, cold, light, air, water, sound, electricity, massage, manual ther- 3 apies, therapeutic exercise with or without assistive devices and clin- 4 ical laboratory testing methods approved by the department as being 5 appropriate to the practice of chiropractic. 6 b. Chiropractic examination, diagnostic and treatment methods may also 7 include electrodiagnostic testing and manipulation under anesthesia when 8 appropriate education standards have been met and as approved by the 9 department as being appropriate to the practice of chiropractic. 10 c. The practice of the profession of chiropractic allows a licensed 11 chiropractor who has successfully completed a registered doctoral, post- 12 doctoral or continuing education certification program of a higher 13 education credential by an accrediting agency, which contains courses of 14 study in wellness care methods, nutrition, and dietary advice satisfac- 15 tory to the department; use of wellness care methods and the ability to 16 engage in nutritional counseling and dietary advice, including the 17 dispensing of food concentrates, food extracts, nutraceuticals, vita- 18 mins, minerals, and other nutritional supplements approved by the 19 department as being appropriate to, and as a part of, the practice of 20 chiropractic. 21 3. a. A license to practice as a chiropractor shall not permit the 22 holder thereof to use [radio-therapy, fluoroscopy, or any form of ioniz- 23 ing radiation except X-ray which shall be used for the detection of 24 structural imbalance, distortion, or subluxations in the human body] 25 ionizing radiation sources for the purposes of radiotherapy. 26 b. The requirements and limitations with respect to the use of [X-ray] 27 diagnostic imaging studies by chiropractors shall be enforced by the 28 state commissioner of health and [he] the commissioner is authorized to 29 promulgate rules and regulations after conferring with the [board] 30 department to carry out the purposes of this subdivision. 31 c. Chiropractors shall retain for a period of three years all [X-ray 32 films] diagnostic images taken in the course of their practice, together 33 with the records pertaining thereto, and shall make such [films] images 34 and records available to the state commissioner of health or his or her 35 representative on demand. 36 4. Chiropractors may use diagnostic clinical laboratory methods 37 involving chemical or biological means which particular tests and 38 services shall be approved by the department as appropriate to the prac- 39 tice of chiropractic. 40 [3.] 5. A license to practice chiropractic shall not permit the holder 41 thereof to treat for any infectious diseases such as pneumonia, any 42 communicable diseases listed in the sanitary code of the state of New 43 York, any of the cardio-vascular-renal or cardio-pulmonary diseases, any 44 surgical condition [of the abdomen such as acute appendicitis, or 45 diabetes], or any benign or malignant neoplasms; to operate; to reduce 46 fractures [or dislocations]; to prescribe, administer, dispense or use 47 in [his] practice drugs or medicines[; or to use diagnostic or therapeu- 48 tic methods involving chemical or biological means except diagnostic 49 services performed by clinical laboratories which services shall be 50 approved by the board as appropriate to the practice of chiropractic; or 51 to utilize electrical devices except those devices approved by the board 52 as being appropriate to the practice of chiropractic. Nothing herein 53 shall be construed to prohibit a licensed chiropractor who has success- 54 fully completed a registered doctoral program in chiropractic, which 55 contains courses of study in nutrition satisfactory to the department, 56 from using nutritional counseling, including the dispensing of food S. 7427 3

1 concentrates, food extracts, vitamins, minerals, and other nutritional 2 supplements approved by the board as being appropriate to, and as a part 3 of, his or her practice of chiropractic. Nothing herein shall be 4 construed to prohibit an individual who is not subject to regulation in 5 this state as a licensed chiropractor from engaging in nutritional coun- 6 seling.] or controlled substances or to administer or use anesthetics. 7 Chiropractors may use topical analgesic substances and anesthetic balms, 8 salves or emollients or advise on over the counter substances. 9 § 2. Section 6552 of the education law, as added by chapter 987 of the 10 laws of 1971, is amended to read as follows: 11 § 6552. Practice of chiropractic and use of title "chiropractor", 12 "doctor of chiropractic" or "chiropractic physician". Only a person 13 licensed [or exempt] or otherwise authorized under this article [shall] 14 to practice chiropractic [or] may use the title "chiropractor", "doctor 15 of chiropractic" or "chiropractic physician". 16 § 3. Section 6553 of the education law, as added by chapter 987 of the 17 laws of 1971, is amended to read as follows: 18 § 6553. State board for chiropractic. A state board for chiropractic 19 shall be appointed by the board of regents on recommendation of the 20 commissioner for the purpose of assisting the board of regents and the 21 department on matters of professional licensing and professional conduct 22 in accordance with section sixty-five hundred eight of this title. The 23 board shall be composed of not less than [seven] eight members, includ- 24 ing [at least four] seven licensed chiropractors[, one licensed physi- 25 cian who is a doctor of medicine, one licensed physician who is a doctor 26 of osteopathy, and one educator who holds a doctorate or equivalent 27 degree in either anatomy, physiology, pathology, chemistry or microbiol- 28 ogy] in this state for at least five years and one public member. An 29 executive secretary to the board shall be appointed by the board of 30 regents on recommendation of the commissioner. 31 § 4. Section 6554 of the education law, as added by chapter 987 of the 32 laws of 1971, subdivision 3 as amended by chapter 994 of the laws of 33 1971, subdivision 6 as amended by chapter 133 of the laws of 1982, and 34 subdivision 8 as amended by chapter 62 of the laws of 1989, is amended 35 to read as follows: 36 § 6554. Requirements for a professional license. To qualify for a 37 license as a chiropractor, an applicant shall fulfill the following 38 requirements: 39 (1) Application: file an application with the department; 40 (2) Education: have received an education, including [two] three years 41 or ninety semester hours of credit or equivalent trimester or quarter 42 hours of credit of preprofessional college study and completion of a 43 [four-year resident program in chiropractic,] program of chiropractic 44 education of not less than four academic years, or the equivalent there- 45 of in accordance with the commissioner's regulations; 46 (3) Experience: have experience satisfactory to the board and in 47 accordance with the commissioner's regulations[:]; 48 (4) Examination: pass examinations satisfactory to the board and in 49 accordance with the commissioner's regulations[, in clinical chiroprac- 50 tic analysis, the practice of chiropractic, X-ray as it relates to 51 chiropractic analysis, and examinations satisfactory to the department 52 in anatomy, physiology, pathology, chemistry, microbiology, diagnosis, 53 and the use and effect of X-ray] for the practice of chiropractic; 54 (5) Age: be at least twenty-one years of age; 55 (6) Citizenship or immigration status: be a United States citizen or 56 an alien lawfully admitted for permanent residence in the United States; S. 7427 4

1 (7) Character: be of good moral character as determined by the depart- 2 ment; and 3 (8) Fees: pay a fee of one hundred seventy-five dollars to the depart- 4 ment for [admission to a department conducted examination and for] an 5 initial license upon completion and passage of a department approved 6 examination, a fee of eighty-five dollars for each reexamination, a fee 7 of one hundred fifteen dollars for an initial license for persons not 8 requiring admission to a department conducted examination, and a fee of 9 one hundred fifty-five dollars for each triennial registration period. 10 § 5. Section 6555 of the education law, as amended by chapter 537 of 11 the laws of 1983, is amended to read as follows: 12 § 6555. Exempt persons. [Nothing in this article shall be construed 13 to affect or prevent a student enrolled in a college of chiropractic in 14 this state from engaging in all phases of clinical practice under super- 15 vision of a licensed chiropractor or physician in a curriculum regis- 16 tered by the department.] The following persons under the following 17 limitations may practice chiropractic within the state without a 18 license: 19 1. A student enrolled in any accredited college of chiropractic engag- 20 ing in all phases of clinical practice under supervision of a licensed 21 chiropractor or physician in a curriculum registered by the department; 22 or 23 2. A student who is performing a clinical externship or preceptorship 24 in a chiropractic office or clinic setting and who is enrolled in a 25 chiropractic school which meets the standards satisfactory to the 26 department, provided such practice is under the direct supervision of a 27 licensed chiropractor for a maximum period of twelve months; or 28 3. Any chiropractor authorized to practice chiropractic while travel- 29 ling from another state or country in which he or she is licensed, to 30 provide chiropractic services during any emergency services associated 31 with any rescue, recovery or humanitarian relief effort provided such 32 practice is limited to the organized emergency services; or 33 4. A chiropractor who is not a resident of this state who is legally 34 qualified to practice in his or her state and who is travelling from 35 another state for the purpose of providing chiropractic services for a 36 specific purpose or event of limited duration; or 37 5. Any chiropractor who is licensed in another state or country and 38 who is meeting or communicating with a chiropractor licensed in this 39 state, for purposes of consultation, provided such practice is limited 40 to such consultation; or 41 6. Any chiropractor who is licensed in another state or country, who 42 is visiting a chiropractic school or teaching facility in this state to 43 receive chiropractic instruction for a period not to exceed six months 44 or to conduct chiropractic instruction, provided such practice is limit- 45 ed to such instruction and is under the general supervision of a 46 licensed chiropractor; or 47 7. Any chiropractor who is authorized by a foreign government to prac- 48 tice in relation to its diplomatic, consular or maritime staffs, 49 provided such practice is limited to such staffs; or 50 8. Any commissioned chiropractic officer who is serving in the United 51 States armed forces or public health service or any chiropractor who is 52 employed in the United States Veterans Administration, provided such 53 practice is limited to such service or employment. 54 § 6. Section 6556 of the education law is REPEALED and a new section 55 6556 is added to read as follows: S. 7427 5

1 § 6556. Limited permits. Permits limited as to eligibility, practice 2 and duration, shall be issued by the department to eligible applicants, 3 as follows: 4 1. Eligibility: The following persons shall be eligible for a limited 5 permit: 6 a. A person who fulfills all requirements for a license as a chiro- 7 practor except those relating to the examination and citizenship or 8 permanent residence in the United States; 9 b. A licensed foreign chiropractor who meets guidelines developed in 10 accordance with the commissioner's regulations; 11 c. A licensed foreign chiropractor or a foreign intern who is in this 12 country on a non-immigration visa for the continuation of chiropractic 13 study who meets guidelines developed in accordance with the commission- 14 er's regulations; 15 d. Any graduate of a chiropractic school which meets standards satis- 16 factory to the department, provided such practice is under the general 17 supervision of a licensed chiropractor for a maximum period of twelve 18 months from date of graduation. 19 2. Limit of practice. A permittee shall be authorized to practice 20 chiropractic only under the supervision of a licensed chiropractor and 21 only in a licensed chiropractic office or clinical setting. 22 3. Duration. A limited permit shall be valid for one year. A limited 23 permit may be renewed annually at the discretion of the department. 24 4. Fees. The fee for each limited permit and for each renewal shall be 25 one hundred five dollars. 26 § 7. The education law is amended by adding a new section 6557 to read 27 as follows: 28 § 6557. Special provisions. 1. Non-liability of licensed chiropractors 29 for first aid or emergency treatment. Notwithstanding any inconsistent 30 provision of any general, special or local law, any licensed chiroprac- 31 tor who voluntarily and without the expectation of monetary compensation 32 renders first aid or emergency treatment at the scene of an accident or 33 other emergency, outside a hospital, doctor's office or any other place 34 having proper and necessary chiropractic equipment, to a person who is 35 unconscious, ill or injured, shall not be liable for damages for inju- 36 ries alleged to have been sustained by such person or for damages for 37 the death of such person alleged to have occurred by reason of an act or 38 omission in the rendering of such first aid or emergency treatment 39 unless it is established that such injuries were or such death was 40 caused by gross negligence on the part of such chiropractor. Nothing in 41 this section shall be deemed or construed to relieve a licensed chiro- 42 practor from liability for damages for injuries or death caused by an 43 act or omission on the part of a chiropractor while rendering profes- 44 sional services in the normal and ordinary course of his or her prac- 45 tice. 46 2. This article shall not be construed to affect or prevent the 47 following: 48 a. The furnishing of any assistance in an emergency; 49 b. The chiropractor from being a primary portal of entry healthcare 50 provider. 51 3. There shall be no monetary liability on the part of, and no cause 52 of action for damages shall arise against, any person, partnership, 53 corporation, firm, society, or other entity on account of the communi- 54 cation of information in the possession of such person or entity, or on 55 account of any recommendation or evaluation, regarding the qualifica- 56 tions, fitness, or professional conduct or practices of a chiropractor, S. 7427 6

1 to any governmental agency, chiropractic society, a hospital as defined 2 in article twenty-eight of the public health law, a hospital as defined 3 in subdivision ten of section 1.03 of the mental hygiene law, or a 4 health maintenance organization organized under article forty-four of 5 the public health law or article forty-three of the insurance law, 6 including a committee of an individual practice association or medical 7 group acting pursuant to a contract with a health maintenance organiza- 8 tion. The foregoing shall not apply to information which is untrue and 9 communicated with malicious intent. 10 § 8. The education law is amended by adding a new section 6558 to read 11 as follows: 12 § 6558. Definition of chiropractic clinical assistant. 1. A chirop- 13 ractic clinical assistant is defined as a person certified in accordance 14 with this article who works under the supervision of a licensed chiro- 15 practor performing such patient duties as are assigned by the supervis- 16 ing chiropractor. A chiropractic clinical assistant may only provide 17 patient services on the orders and instructions of a supervising chiro- 18 practor. Supervision of a chiropractic clinical assistant by a licensed 19 chiropractor shall be on-site supervision, but not necessarily direct 20 personal supervision. The number of chiropractic clinical assistants 21 supervised by one licensed chiropractor shall not exceed the ratio of 22 four chiropractic clinical assistants to one licensed chiropractor as 23 shall be determined by the commissioner's regulations ensuring that 24 there be adequate supervision in the best interest of public health and 25 safety. Nothing in this section shall prohibit a hospital or other 26 public health law article twenty-eight facility from employing chirop- 27 ractic clinical assistants, provided they work under the supervision of 28 a chiropractor, physician, nurse practitioner or other medical provider 29 designated by the hospital or public health law article twenty-eight 30 facility and not beyond the scope of practice of a chiropractic clinical 31 assistant. 32 2. A certified chiropractic clinical assistant may only provide clin- 33 ical services on the orders and instructions of a supervising chiroprac- 34 tor. 35 3. The scope of services for a certified chiropractic clinical assist- 36 ant shall include assisting a chiropractor with providing certain clin- 37 ical procedures common and customary to the chiropractic setting which 38 include, but are not limited to, the following: collecting general 39 health data, such as the taking of an oral history, vital signs or 40 neurological, physiological or anatomical measurements; performing 41 objective data collection tests common and customary to the chiropractic 42 setting including, but not limited to dynamic or static surface EMG, 43 thermography, heart rate variability; applying thermal, light, air, 44 water, sound, electrical and mechanical modalities; and monitoring 45 prescribed rehabilitative activities. 46 4. A certified chiropractic clinical assistant must be adequately 47 trained in the proper operation of any device or equipment and know- 48 ledgeable of anatomy and the appropriate safety procedures and contrain- 49 dications with respect to the clinical services he or she is directed to 50 provide. 51 5. Nothing in this section shall be construed to allow a certified 52 chiropractic clinical assistant to provide a chiropractic adjustment; 53 manipulation; joint mobilization; perform radiological tests (X-rays); 54 nutritional instruction; and counseling or other therapeutic service or 55 procedure which requires individual licensure in New York state. S. 7427 7

1 6. Registration as a certified chiropractic clinical assistant is not 2 required for individuals who perform administrative activities of a 3 non-clinical nature. 4 § 9. The education law is amended by adding a new section 6559 to read 5 as follows: 6 § 6559. Duties of chiropractic clinical assistant and the use of title 7 "chiropractic clinical assistant." Only a person certified or otherwise 8 authorized under this article shall participate in the practice of 9 chiropractic as a chiropractic clinical assistant and only a person 10 certified under this section shall use the title "chiropractic clinical 11 assistant." 12 § 10. The education law is amended by adding a new section 6560 to 13 read as follows: 14 § 6560. Requirements for certification as a chiropractic clinical 15 assistant. 16 1. Application: file an application with the department; 17 2. Education: have received an education and training in a chiroprac- 18 tic clinical assistant program in accordance with the commissioner's 19 regulations and department of education; including but not limited to a 20 minimum of twenty-four hours of didactic study; 21 3. Experience: have experience satisfactory to the department for 22 chiropractic in accordance with the commissioner's regulations; 23 4. Examination: pass an examination satisfactory to the department and 24 in accordance with the commissioner's regulations; 25 5. Age: be at least eighteen years of age; 26 6. Character: be of good moral character as determined by the depart- 27 ment; 28 7. Registration: all certified chiropractic clinical assistants shall 29 register triennially with the education department in accordance with 30 the regulations of the commissioner; 31 8. Fees: pay a fee for an initial certificate of fifty dollars, and a 32 fee of fifty dollars for each subsequent triennial registration period. 33 9. A certified chiropractic clinical assistant shall conduct them- 34 selves within the boundaries of proper ethical behavior and shall adhere 35 to acceptable standards of conduct regardless of whether a supervising 36 chiropractor or person in a position of authority may order, impart or 37 condone behavior or conduct which is improper. 38 10. "Improper conduct", under the meaning of this section, shall 39 include conduct delineated under the chiropractic practice act, regu- 40 lations, and such other New York state laws that may apply. 41 11. The department may refuse to issue, refuse to renew, or may 42 suspend, revoke, censure, reprimand, restrict, or limit the registration 43 of, or fine any person pursuant to the laws of New York state or the 44 procedures set forth herein, upon one or more of the grounds for disci- 45 pline set forth in this article. 46 § 11. The education law is amended by adding a new section 6561 to 47 read as follows: 48 § 6561. Exemptions. 1. This article shall not be construed to affect 49 or prevent a chiropractic clinical assistant student from engaging in 50 clinical assisting under the supervision of a licensed chiropractor as 51 part of a program conducted in an approved program for chiropractic 52 clinical assistants or in a clinical facility or health care agency 53 affiliated with the program for chiropractic clinical assistants. 54 2. Supervision of a chiropractic clinical assistant student by a 55 licensed chiropractor shall be on-site supervision and direct super- 56 vision. S. 7427 8

1 § 12. The education law is amended by adding a new section 6562 to 2 read as follows: 3 § 6562. Limited permits. 1. The department shall issue a limited 4 permit to an applicant who meets all requirements for admission to the 5 certification examination. 6 2. All practice under a limited permit shall be under the supervision 7 of a licensed chiropractor or other licensed medical provider in a 8 public hospital, an incorporated hospital or clinic, a licensed proprie- 9 tary hospital, a licensed nursing home, a public health agency, a recog- 10 nized public or non-public school setting, the office of a licensed 11 chiropractor, or in the civil service of the state or political subdivi- 12 sion thereof. 13 3. Limited permits shall be for six months and the department may for 14 justifiable cause renew a limited permit provided that no applicant 15 shall practice under any limited permit for more than a total of one 16 year. 17 4. Supervision of a permittee by a licensed chiropractor shall be 18 on-site supervision and not necessarily direct personal supervision. 19 5. The fee for each limited permit and for each renewal shall be fifty 20 dollars. 21 § 13. This act shall take effect on the first of January next succeed- 22 ing the date on which it shall have become a law.

NEW YORK STATE SENATE INTRODUCER'S MEMORANDUM IN SUPPORT submitted in accordance with Senate Rule VI. Sec 1

BILL NUMBER: S7427

SPONSOR: LANZA

TITLE OF BILL: An act to amend the education law, in relation to modernizing the chiropractic scope of practice; and to repeal certain provisions of such law relating thereto

SUMMARY OF PROVISIONS OF BILL:

This proposed bill would amend numerous sections of Article 132 of the Education Law by updating and modernizing the provisions related to the scope of practice for the profession of chiropractic. Significantly, this modernization legislation recognizes the changes in the education and training of doctors of chiropractic while ensuring that the profession remains surgery and drug free.

JUSTIFICATION:

The chiropractic scope of practice was established in the State of New York in 1963. Since that time, the scope of practice for the chiropractic profession has not been changed or updated. In the 50 plus years since the licensed profession of chiropractic was recognized in New York, there have been significant advances in the educational standards and training for doctors of chiropractic. As such, this legislation will update and modernize the scope of practice to reflect the evolution of the practice of chiropractic and the significant changes and develop- ments that have happened in the educational curriculum since 1963.

The doctoral level education and training that chiropractors receive includes a wide area of study with a focus on conservative healthcare. Chiropractors are well trained as portal of entry providers with training in patient evaluation and assessment, diagnosis, and conservative treatments. While the foundation of chiropractic is the spinal adjustment, standard training includes education in extremities, nutrition, therapeutic exercise, adjunctive modalities, and diagnostic testing. This strong background is built upon in postgraduate education with certification in electro-diagnosis, DOT examination, manipulation under anesthesia and other specialty areas.

Chiropractors are well trained and positioned to assist with the burgeoning healthcare crisis by offering a drug free, non-surgical health option. To allow chiropractors to fill this role in public health and to best assist their patients with all of their clinical training a modernized scope is required.

LEGISLATIVE HISTORY:

2017: A.8541 - Referred to Higher Education

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None

EFFECTIVE DATE: This act shall take effect on the first of January next succeeding the date on which it shall have become a law. NEW YORK STATE SOCIETY OF ORTHOPAEDIC SURGEONS P.O. BOX 38004 ALBANY, NY 12203 (TEL) 518-439-0000 | (FAX) 518-207-0080 WWW.NYSSOS.ORG

Memorandum in Opposition to Legislation

S6024 (Griffo) /A7873 (Zebrowski)

AN ACT to amend the education law, in relation to removing limits on the duration of treatment by a licensed physical therapist when a patient does not have a referral ______

The New York State Society of Orthopaedic Surgeons believes that patients should have access to quality, comprehensive and coordinated care.

Through improved flow and continuity, integration has the potential not only to deliver superior health outcomes, but also decrease total costs.

Continued access to a professional team of musculoskeletal providers, working together, will provide this high quality efficient care. Integration and involvement facilitates a shared decision process that provides the greatest chance of achieving the "right" amount and type of care for each individual patient.

If enacted, this legislation will fragment the coordinated team approach, increase the time for treatment and definitive diagnosis which may result in increased costs and negative impacts on patient safety. Physical therapy is very important, but it should be done in collaboration with a physician.

Our Position In 2006, the Physical Therapy Practice Act was amended to permit physical therapists to treat patients without a referral with the limitation that the treatment may only last ten treatments or thirty days.

This negotiation recognized the importance of the field in developing and implementing treatments to help patients recover after severe injuries.

NYSSOS maintains its position that 10 physical therapy visits and 30 days for evaluation is an adequate time for treatment response and does not support removing the limits on duration.

AVOID THESE COMMON MISCONCEPTIONS ABOUT THIS LEGISLATION

Patient Safety Not Impacted Truth: Treatment Before Diagnosis is DANGEROUS to Patients.

Access Improved By this Legislation Truth: Comprehensive Rural Medical Services Currently Meeting Patients’ Needs.

Reduce Costs By This Truth: Patients Will Pay Out-of-Pocket Because Insurance Will Not Pay Without a Medical Diagnosis. May Force Higher Costs on Workers Compensation and State Group Insurance.

Orthopaedic Surgeons Urge the Legislature to Oppose this Bill

S 6024 GRIFFO Same as A 7873 Zebrowski A7873 Zebrowski Same as S 6024 GRIFFO ON FILE: 01/03/18 Education Law Education Law TITLE....Relates to removing limits on licensed TITLE....Relates to removing limits on licensed physical physical therapists treating patients without a therapists treating patients without a referral referral 05/18/17 referred to higher education 05/10/17 REFERRED TO HIGHER 01/03/18 referred to higher education EDUCATION 01/03/18 REFERRED TO HIGHER EDUCATION

GRIFFO Amd §6731, Ed L Relates to removing limits on the duration of treatment by a licensed physical therapist when a patient does not have a referral.

STATE OF NEW YORK ______

6024

2017-2018 Regular Sessions

IN SENATE

May 10, 2017 ______

Introduced by Sen. GRIFFO -- read twice and ordered printed, and when printed to be committed to the Committee on Higher Education

AN ACT to amend the education law, in relation to removing limits on the duration of treatment by a licensed physical therapist when a patient does not have a referral

The People of the State of New York, represented in Senate and Assem- bly, do enact as follows:

1 Section 1. Subdivision d of section 6731 of the education law, as 2 amended by chapter 389 of the laws of 2007, is amended to read as 3 follows: 4 d. Such treatment may be rendered by a licensed physical therapist 5 [for ten visits or thirty days, whichever shall occur first,] without a 6 referral from a physician, dentist, podiatrist, nurse practitioner or 7 licensed midwife provided that: 8 (1) [The licensed physical therapist has practiced physical therapy on 9 a full time basis equivalent to not less than three years.] The physical 10 therapist will refer the patient to the appropriate licensed profes- 11 sional if symptoms are present of which physical therapy is contraindi- 12 cated or which symptoms are indicative of conditions for which treatment 13 is outside the scope of the practice of physical therapy; 14 (2) If the patient has a primary care licensed provider or other 15 treating physician, the physical therapist provides ongoing communi- 16 cation with that professional during the course of treatment; and 17 (3) Each physical therapist licensed pursuant to this article shall 18 provide written notice to each patient receiving treatment absent a 19 referral from a physician, dentist, podiatrist, nurse practitioner or 20 licensed midwife that physical therapy may not be covered by the 21 patient's health care plan or insurer without such a referral and that 22 such treatment may be a covered expense if rendered pursuant to a refer- 23 ral. The physical therapist shall keep on file with the patient's 24 records a form attesting to the patient's notice of such advice. Such

EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11566-01-7 S. 6024 2

1 form shall be in duplicate, with one copy to be retained by the patient, 2 signed and dated by both the physical therapist and the patient in such 3 form as prescribed pursuant to regulations promulgated by the commis- 4 sioner. 5 § 2. This act shall take effect on the one hundred eightieth day after 6 it shall have become a law; provided, however, that effective immediate- 7 ly, the addition, amendment and/or repeal of any rule or regulation 8 necessary for the implementation of this act on its effective date are 9 authorized and directed to be made and completed on or before such 10 effective date.

NEW YORK STATE SENATE INTRODUCER'S MEMORANDUM IN SUPPORT submitted in accordance with Senate Rule VI. Sec 1

BILL NUMBER: S6024

SPONSOR: GRIFFO

TITLE OF BILL: An act to amend the education law, in relation to removing limits on the duration of treatment by a licensed physical therapist when a patient does not have a referral

PURPOSE:

To amend the physical therapy practice act to better align with standards of best practice

SUMMARY OF PROVISIONS:

Section 1 amends subdivision (d) of section 6731 of the education law to remove arbitrary limitations, which impede the delivery of quality health care and replace them with physical therapy standards of best practice.

Section 2 is the effective date.

JUSTIFICATION:

Physical therapy is an integral part of New York's health care system. Physical therapists treat and rehabilitate a broad range of neuromusculoskeletal injuries and disease. All New York physical therapy educational programs require a doctoral degree. Physical therapists are trained extensively in the evaluation of a patient's condition and recognize those symptoms that require treatment by another provider.

In 2006, the physical therapy practice act was amended to permit physical therapists to treat patients without a referral with the limitation that the treatment may only last ten days or thirty days. The limitation, however, has interfered with appropriate and effective care in certain instances leading to unnecessary gaps in care and impeding recovery.

The bill would address the unintended consequences of the arbitrary and inflexible limitation by replacing it with physical therapy standards of best practice. First, the treating physical therapist must refer a patient to an appropriate health care provider if physical therapy is contra-indicated for the condition or if symptoms present which indicate a condition outside the scope of physical therapy. Second, the treating physical therapy must provide ongoing communication with the patient's primary care provider, if one exists, which will better coordinate care. These requirements better reflect quality health care standards and will address the negative impacts of the existing limitation on treatment without a referral.

LEGISLATIVE HISTORY:

New Bill.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE: 180 days after enactment.