URGENT — Take Action on medical malpractice proposals before NYS Legislature

Office of the President

I am writing to urge that you take immediate action.  Contact your State legislators and other State policymakers on fast-moving — and very disturbing — legislation in Albany.

This is my brief report to you on activity in Albany and on proposals to change the civil justice system under the inappropriate heading of “Medicaid Redesign.”

In January, the Governor created the Medicaid Redesign Team (“MRT”) to make proposals that would reduce the cost of the State’s Medicaid program.  The MRT members represent the most prominent and influential interest groups in the healthcare industry, including hospitals, nursing homes, and healthcare workers.  Significantly, the MRT included no representatives of the legal profession or anyone else whose primary concern is representing victims of doctors’ malpractice.

In mid-February, the MRT released information regarding a large number of proposals being considered to cut billions of dollars from the State’s budget.  The MRT’s goal was to review the list and submit a final, shorter list of proposals to the Governor in March.  One of those proposals – Proposal Number 131 (also referred to as the “Medical Malpractice Proposal”) – would cap awards for non-economic damages to victims of medical malpractice and create a Neurologically Impaired Infant Fund.  (A copy of the proposal may be viewed by clicking on the link above.)

When I learned of this proposal, I immediately met with the State’s Deputy Secretary for Health.  I expressed concern over the substance of the Medical Malpractice Proposal.  The civil justice system is fundamentally different from the state’s Medicaid system.  Accordingly, I strongly objected to the fact that “medical malpractice” was a topic of discussion within the MRT’s process, because the MRT included norepresentatives of the legal profession or the court system, and few if any advocates representing consumer rights and patient safety.

Further, I convened an emergency session of the State Bar’s Executive Committee, which voted unanimously to oppose the proposal.  With the assistance of our Committee on the Tort System, the Executive Committee submitted to the MRT a Memorandum in Opposition to the Med Mal Proposal.

We continued to argue against the proposal.  However, rather than engage in serious debate, the MRT accelerated its process by submitting its recommendations to the Governor on February 23, several days in advance of its March 1 deadline.  Alarmingly, Proposal Number 131 was submitted by the MRT to the Governor, who announced that he will include it in budget legislation to be considered by the State Legislature.

Proposals to modify New York’s civil justice system should not be hijacked by hospitals and other healthcare interests promoting an agenda driven by their own self-dealing, rather than the public interest.  I believe that such a process, which excludes legitimate “stakeholders” from the negotiating table, results in bad public policy and represents damaging, special-interest activity that lowers citizens’ respect for and trust in the government.  Proposals to radically re-shape our justice system should not be pushed through in the healthcare budget but independently debated by way of freestanding legislation.

Please ACT NOW to oppose the Medical Malpractice Proposal, which will be part of legislation to enact the State’s budget by April 1.

Go to the State Bar’s Legislative Action Center and send a message on this important topic to your State legislators, the Governor, and other State policymakers.

Best regards,

Stephen P. Younger
President, New York State Bar Association
Patterson Belknap Webb & Tyler LLP

Related articles

NYSBA Elder Law Section: The Proposals of the Medicaid Redesign Team

This is being provided to the General Practice list serve as a courtesy.

The Elder Law Section is committed to informing our members, on a timely basis, about issues that affect our practice.   Below is a brief description, prepared by David Goldfarb, of the some of the changes proposed by the Medicaid Redesign Team.
The Proposals of the Medicaid Redesign Team
Governor Andrew M. Cuomo‘s submitted a proposed appropriation bill  on February 1, 2011.  It included language that for the next fiscal year (April 1, 2011 through March 31, 2012) the Commissioner of Health could implement the recommendations of the newly created Medicaid Redesign Team (MRT), including modifying or discontinuing Medicaid program benefits.  The proposed savings from the overall proposal was set at $2,850,000,000.
On February 24th, 2011, the MRT passed a number of recommendations, all of which the Governor has endorsed.  The ones that primarily impact on our clients’ eligibility for Medicaid and the provision of Medicaid services are outlined below.
The recommendations of the MRT raise many questions.  Some of the recommendations are still vague and ambiguous or misconstrue the present law.  The MRT did not consider all of the implications of some of the proposed changes, which could drastically limit or nullify some of the proposed cost savings.  Changing eligibility may also violate federal Maintenance of Effort (MOE) requirements in both the federal Stimulus Act and the Health Care Reform Bill.  Some of the changes would require federal waivers.
This is still early in the process.  The Governor has 30 days (until March 2nd) to amend his budget, the appropriation bills, or his proposed legislation as of right. After that he may submit amendments only with the approval of the legislature.  And of course, legislative approval of the budget is required in order for it to be effective.
The Elder Law Section believes it is important for you to know what is in the pipeline even though it is early in the process and much could still happen.  We are committed to keeping our members posted as best we can  to changes as they take place.
The official list of MRT adopted proposals can be downloaded as a pdf here.
Some of the highlights that affect our clients and us are as follows:
The Proposed Elimination of Spousal/Parental Refusal:
This proposal would eliminate spousal and parental refusal for community based Medicaid.  It would require that the income and resources of legally responsible relatives residing in the same household as the Medicaid applicant be counted in determining the applicant’s eligibility for Medicaid.  Under current New York law, a legally responsible relative living with a Medicaid applicant may refuse to make his/her income and resources available to the applicant. Under such circumstances, Medicaid eligibility for the applicant is determined based on only the applicant’s income and resources. Local departments of social services may pursue a recovery of Medicaid paid from the non-contributing spouse/parent. This proposal would count the income and resources of a legally responsible relative who is living with an applicant for purposes of determining the applicant’s eligibility for Medicaid.
The Proposed Implementation of a 60 month Look Back for Non-Institutional Long Term Care
The Proposed Expansion of Estate Recovery and Expansion of the Definition of Estate
The Section’s Budget Task Force and lobbyists are busy working to try to change the proposals or minimize their impact and will continue to monitor the situation and keep the members of the Elder Law Section informed.
Sharon Kovacs Gruer, chair of the Elder Law Section
Sharon Kovacs Gruer, Esq., CELA, LL.M. Sharon Kovacs Gruer, P.C. 1010 Northern Boulevard Suite 302 Great Neck, New York  11021 (516)487-5400 Web:  nytrustlaw.com Email:  skglaw@optonline.net

Related articles