FTNYS End of Session Legislative Update

2021 Legislative Session Update
By Karin Carreau, Carreau Consulting and Brad Hansen, Families Together in New York State

 The 2021 Legislative Session has been like none other preceding it. When the first gavel fell just six months ago, New York was facing a $15 billion budget deficit that threatened devastating across-the-board cuts to vital programs and services. Catastrophic cuts were, however, averted after a combination of increased tax revenues and $12.5 billion from the American Rescue Plan. Today, as the burdens of the pandemic begin to lift and the state reopens, the future for New York looks much brighter and the second half of session reflected as much as we turned our attention to a number of issues not directly focused on COVID.    

While the Senate gaveled out at 9:25 pm on Thursday, June 10^th, the Assembly continued to go until 4:22 am on June 11, effectively adjourning the regular session, however, both the Majority Leader and the Speaker intimated they may be back in the coming weeks to discuss a number of big-ticket items that did not cross the finish line.   Two such items that received an enormous amount of legislative effort, attention and last-minute negotiations between the Legislature and Executive – an initiative allowing the Governor to appoint two Senate confirmed heads of the MTA and a criminal justice reform measure known as the “Clean Slate” bill, which would automatically seal criminal records for misdemeanors after three years and felony offenses after seven years, though not offer complete expungement. Most morning after politico blogs suggest they will return imminently to deal with these issues. 

With regard to Families Together Initiatives, the session was a resounding success.  You may remember, in the context of the budget we succeeded in including family peers in the delivery of telehealth services and were integral to securing language requiring OMH to engage stakeholders in the process of determining how federal dollars will be prioritized.  Outside of budget, we actively pursued and engaged in a number of initiatives outline below.   

Juvenile Justice

• S4051-A (Bailey)/A4982-A (Hevesi) – A major priority co-lead by FTNYS. The provisions of the bill will: (a) raise the minimum age of juvenile delinquency from seven years old to twelve years old; (b) prohibit youth under the age of 13 from being detained in secure detention facility;  (c) prohibit fingerprinting youth under the age of 12; (d) mandate local social service districts to establish differential response programs, approved by Office of Children and Family Services (OCFS), for children under the age of twelve whose behavior but for their age would bring them within the jurisdiction of the family court in an effort to prevent future interaction with the juvenile justice system;  (e) provide training for police and staff of local social service districts; (f) assure confidentiality of records associated with services for youth; and, (g) require OCFS to produce annual report on the differential response programs. STATUS: The bill passed the Senate and Assembly and is pending delivery to Governor.  

• S282 (Myrie)/A6769 (Hyndman) – Youthful Offender Status – Bill amends the Criminal Procedure Law to authorize an individual was an otherwise eligible youth but not determined to be a youthful offender by the sentencing court to apply for a new determination so long as it has been at least five years and the individual has not been convicted of a new crime since the original sentence was imposed. The legislation also indicates the court shall consider factors including any mitigating factors at the time of the crime and whether relief from the onus of a criminal record would facilitate rehabilitation and successful reintegration into society. STATUS: The bill passed both houses and is pending delivery to Governor.

• S6498 (Bailey)/A7796 (Meeks) – Prohibits the use of handcuffs, chains, shackles, irons, straitjackets, and other restraints on children under the age of twenty-one appearing before family court. Bill provides a process for court determining if permissible physical restraint is warranted in which case only handcuffs or foot cuffs would be permitted. STATUS: The bill passed both houses and is pending delivery to Governor.

• S3683-B (Felder)/A739-B (Rosenthal, D) – Legislation requires family courts in New York City to remain open until midnight at least one weekday per week in at least two counties effective January 1, 2022, and in at least three counties January 1, 2023. STATUS: The bill passed the Senate and is in committee in the Assembly.

• S2737 (Salazar)/A5873 (Reyes) – Amends the Family Court Act to eliminate the use of term incorrigible in relation to Persons in Need of Supervision (PINS) proceedings. STATUS: The bill passed both houses and was signed into law on April 6, 2021, and took effect immediately.

• S7198 (Jackson)/ A5197 (Nolan) – Also known as the “Judith Kaye School Solutions Not Suspensions Act.” Relates to school climate and codes of conduct on school property and disciplinary action following violation of such codes of conduct. STATUS: The bills remained in the Senate and Assembly committees on Education.

Foster Care/Child Welfare

• S3109 (Persaud)/A6269 (FRONTUS) – While we are extremely disappointed this initiative did not cross the finish line, we have already begun our post session efforts to advance this bill that would establish the Office of the Foster Care Ombudsman within the Office of Children and Family Services to be led by a Director that is appointed by an independent review board. The duties of the ombudsman would include: (1) revieing, documenting and responding to complaints from foster parents and/or youth; (2) investigating and seeking resolution to complaints; (3) making referrals where appropriate; (4) assuring there is no retaliation against person who contacted the ombudsman; (5) providing information; (6) working with local departments of social services, voluntary agencies, foster parents, biological parents, relatives and youth; (7) recommending policies, regulations, and legislation designed to improve “family-based foster-care;” (8) preparing annual report to OCFS Commissioner on Legislature and (9) presenting quarterly reports to OCFS Commissioner and the independent review board. STATUS: The bills remained in the Senate and Assembly committees on Children and Families.

• S54 (Persaud)/A3496 (Hevesi) – Bill codifies a definition of kinship caregiver that is consistent current practice and interpretation, which means a relative or non-relative who is acting as a parent and who: (a) is related to the child through blood, marriage or adoption;  (b) is related to a half-sibling of the child through blood,  marriage or adoption; or  (c)  is  an adult with a positive prior relationship with the child, a half-sibling of the child or the  child’s  parent,  including,  but  not limited to, a step-parent, godparent, neighbor or family friend. STATUS: Bill passed both houses and is pending delivery to Governor.

• S1836 (Skoufis)/A3130 (Steck) – Establishes the office of the advocate for people with disabilities to advocate on behalf of persons with disabilities and assure that persons with disabilities are afforded the opportunity to exercise all of the rights and responsibilities accorded to citizens of the state of New Yor STATUS: Bill passed both houses and is pending delivery to Governor.

• A7879 (Hevesi) – Requires a caller making a report of suspected child abuse or maltreatment to the central registry to leave their name and contact information. STATUS: Bill remains in Assembly Children and Families Committee.

• S5484-A/NO SAME AS – Requires such oral and written disclosure to contain certain information regarding the rights of the person under investigation. STATUS: Bill remains in Senate Children and Families Committee.

• S4821 (Salazar)/A4285 (Rosenthal, L) – Prohibiting drug testing of pregnant women unless the woman consents, or the testing is necessary for a medical emergency. STATUS: Bill remains in Senate Women’s Issues Committee and Assembly Health Committee.

• S7101 (Brisport)/A7576 (Jean-Pierre) – Requires that school districts in which juvenile justice or DOCCS facilities are located issue diplomas for students who meet graduation requirements while placed, committed, supervised, detained, or confined in such facility. STATUS: Bill passed both houses and ins pending delivery to Governor.

Mental Hygiene

• S6431 (Brouk) a7405a (Bronson) Extends the decades long exemption to social work, mental health counseling, marriage and family therapists, and creative arts therapists employed in settings operated, funded or regulated by OMH, OASAS, OPWDD, OCFS, DOCCS, DOH, or SOFA. STATUS: Each of the bills passed their respective houses and are expected to be delivered to the Governor imminently.

• S3995 (Reichlin-Melnick)/A5238 (Barrett) – This is concurrent resolution of Senate and Assembly to amend provisions of New York State Constitution to requires parity in the mental and physical health treatment of the residents of New York state and provides that both mental and physical health “will be matters of public concern and provision therefor shall be made by the state and by such of its subdivisions.” This must be adopted by two concurrent legislatures before it is put before New York State voters. STATUS: The bill passed the Assembly 149-0. In the Senate, the bill advanced to the calendar but was not taken up.

• S6194-B (Brouk)/A7177-B (Gunther) – The 9-8-8 Suicide Prevention and Mental Health Crisis Act would require the Commissioner of the Department of Public Service, the Commissioner of the Office of Mental Health and the Commissioner of the Office of Addiction Services and Supports to establish the three-digit, 9-8-8 suicide prevention and mental health crisis hotline system and center by July 16, 2022, which will operate 24/7 and connect New Yorkers experiencing a mental health crisis with lifesaving and culturally competent mental health care services. STATUS: The bill passed both houses and is pending delivery to Governor.

• A303A (Gottfried) / S2539 (Rivera) – Provides coverage for eligible children for early and periodic screening, diagnosis and treatment (EPSDT) under the child health insurance plan to ascertain physical and mental disabilities. EPSDT services are already available to families through Medicaid. If this bill were to pass, Children and Family Treatment and Supports (CFTSS) services such family and youth peer support would be available to child on the Child Health Plus plans. STATUS: The bills remained in the Senate and Assembly committees on Health.   

Medicaid/Insurance-Related Bills

• S5505 (Rivera)/A6256 (Woerner, Gottfried) – This legislation codifies critical provisions related to telehealth and telemedicine including preservation of audio or video only, ensuring there is no greater out-of-pocket cost for individual (i.e., copay), and requiring parity in reimbursement as compared to an in-person visit under Medicaid, Medicaid Managed Care, Child Health Plus, and commercial insurers and health plans. Furthermore, the provisions further enhance the mandate on insurers, health plans and managed care plans to maintain an adequate network for delivery of telehealth services. STATUS: Senate bill advanced to the Senate calendar, while the Assembly bill remained in the Insurance Committee.

• A7704 (Fernandez)/NO SAME AS — The legislation would amend New York State Insurance Law to further implement the intent of the federal and state mental health and substance use disorder parity laws by enacting among others the following provisions: (1) Prohibit preauthorization or concurrent review of psychiatric inpatient hospital services for adults for the first fourteen days; (2) strengthen prompt pay laws; and (3) Establish a private right of action thereby allowing consumers to challenge violations of the mental health and substance use disorder parity laws. STATUS: The bill passed the Assembly 148-1.

• S649-A (Harckham)/A2030 (Rosenthal, L) – Bill would prohibit prior authorization under Medicaid and Medicaid Managed Care for all buprenorphine, methadone or long-acting injectable naltrexone for detoxification or maintenance treatment of a substance use disorder. STATUS: Bill passed both houses and is pending delivery to Governor.

• S5909 (Kaminsky)/A3276 (Gunther) – Bill amends New York State Insurance Law to prohibit the application of fail-first or step therapy protocols to coverage for the diagnosis and treatment of mental health STATUS: Bill advanced to Senate calendar but remained in committee in the Assembly.

• S2008-B (Jackson)/A1677-A (Gottfried) – Bill amends Insurance law by requiring medical insurance notices to conspicuously state whether a claim or a bill has been partially approved or entirely denied. STATUS: The bill passed the Senate unanimously but remained in the Assembly Insurance Committee.

• S4111 (Breslin)/A4668 (Peoples-Stokes) — Prohibits health care plans that provide essential benefits under the Affordable Care Act from removing a prescription drug from a formulary or adding new or additional formulary restrictions from a formulary during an enrollment year; requires notice to policy holders of intent to remove a drug from a formulary. STATUS: The bill passed both houses and is pending delivery to Governor.

Substance Use Disorders

• S2966-A (Harckham)/A336-A (Braunstein) – Legislation requires that the first opioid prescription to a particular patient each year(in a setting other than a general hospital, nursing home, or hospice care), shall be accompanied with a prescription for an opioid antagonist if any of the following risk factors are present: a history of substance use disorder; high doses or cumulative prescriptions that result in ninety morphine milligram equivalents or higher per day; concurrent use of opioids and benzodiazepine or nonbenzodiazepine sedative hypnotics. STATUS UPDATE: Bill passed both houses and is pending delivery to Governor.

• S7194 (Rivera)/A6395-B (Woerner) – Bill establishes the opioid settlement fund in the joint custody of the comptroller and the commissioner of taxation and finance and outlines how the monies in such fund shall be appropriated consistent with the terms of any statewide opioid settlement agreements for eligible expenditures. In addition, the legislation establishes a 19-member advisory board that would provide recommendations annually on how the funds should be allocated and preclude the funds received from settlements from being deposited into the State’s general fund. STATUS UPDATE: Bill passed both houses and is pending delivery to Governor.

• A7928 (Rosenthal, L)/No Same AS — Establishes the psychedelic research institute and the psychedelic substances therapeutic research program which shall study and provide recommendations regarding the use of psychedelic substances in the treatment of addictive disorders, depression, post-traumatic stress disorder, end-of-life anxiety and other pertinent outcomes. STATUS: Bill remains in Assembly Health Committee.

Scope of Practice Bills We Monitored

• S5301-A (Brouk)/A6008-A (Bronson) – Authorizes licensed mental health counselors, marriage and family therapists and psychoanalysts, licensed under Article 163 of the State Education Law, to diagnose mental illness. STATUS: In Senate and Assembly Higher Education Committees.

• 1662-B (Skoufis)/A.3523-A (Peoples-Stokes) – The bill authorizes applied behavior analysts to provide applied behavioral analysis treatment to any individual (youth or adult) with a behavioral health condition that “appears” in the Diagnostic and Statistical Manual of Mental Disorders. STATUS: Bill passed Senate and Assembly and is pending delivery to Governor.

LBTGQ-Related Bills

• S4402-B (Hoylman)/A5465-D (O’Donnell) — Known as the Gender Recognition Act, this legislation amends New York State laws to assure that transgender individuals have access to state-issued documents that accurately reflect their identities. STATUS: The bill passed the Senate and Assembly and is pending delivery to Governor.

Other

• Department of Financial Services (DFS) – In honor of Mental Health Awareness Month, DFS announced it will propose new regulations that will hold a policyholder harmless when the insurer’s provider directory lists a provider as participating when the provider is not in fact part of the network. In addition, the regulations will require DFS to confirm the policies do not charge higher copays or coinsurance for mental health and substance use disorder benefits. The text proposed regulation is not yet available, but we will be reviewing upon the release for further evaluation and comment. Finally, DFS announced it will undertake a comprehensive review of insurers for parity compliance based on reports due from insurers in July 2021. Source: https://www.dfs.ny.gov/reports_and_publications/press_releases/pr202105251

• The Chairs of the Assembly Committee on Alcoholism and Drug Abuse and Mental Health, announced they will hold a virtual public hearing on June 21^st “To examine current and potentially new integrated services offered by the Office of Addiction Services and Supports and the Office of Mental Health for those with co-occurring diagnoses and any barriers that may exist to receiving such services.” Testimony is by invitation only. Source: https://nyassembly.gov/comm/?id=3&sec=story&story=97501