N.Y. Mental Hygiene Law § 32.06: Prohibited practices by providers of substance use disorder services

§ 32.06 Prohibited practices by providers of substance use disorder

services.

1. For purposes of this section, unless the context clearly requires

otherwise, "provider" shall mean any person, firm, partnership, group,

practice association, fiduciary, employer, representative thereof or any

other entity who is providing or purporting to provide substance use

disorder services or operating or purporting to operate a certified

recovery residence. Provided, however, that "provider" shall not include

a person receiving substance use disorder services from the provider.

2. No provider shall intentionally solicit, receive, accept or agree

to receive or accept any payment, benefit or other consideration in any

form to the extent such payment, benefit or other consideration is given

for the referral of a person as a potential patient for substance use

disorder services or as a resident at a certified recovery residence.

3. No provider providing or purporting to provide substance use

disorder services or operating or purporting to operate a certified

recovery residence pursuant to this chapter, shall intentionally make,

offer, give, or agree to make, offer, or give any payment, benefit or

other consideration in any form to the extent such payment, benefit or

other consideration is given for the referral of a person as a potential

patient for substance use disorder services.

4. This section shall not apply to any:

(a) lawful payments by a health maintenance organization or health

insurer, operating in accordance with article thirty-two or forty-three

of the insurance law or article forty-four of the public health law on

behalf of their enrollees for such substance use disorder services or

other benefits required to be provided;

(b) lawful payments to or by a provider to a health maintenance

organization or health insurer operating in accordance with article

thirty-two or forty-three of the insurance law or article forty-four of

the public health law, as payment for services provided, a refund for an

overpayment, a participating provider fee, or any similar remuneration;

(c) provider for an activity that, at the time of such activity, would

have been lawful as specifically exempt, or otherwise not prohibited,

under any federal statute or regulations, including but not limited to

42 U.S.C. § 1320a-7b (b) or the regulations promulgated thereunder, if

conducted by a person, firm, partnership, group, practice, association,

fiduciary, employer representative thereof or any other entity providing

substance use disorder services;

(d) any employee or representative of a provider who is conducting

marketing activities, where the employee or representative identifies

the provider represented or for whom or which the employee or

representative works, identifies that the employee or representative is

a marketer and not a clinician or other individual who can provide

diagnostic, counseling or assessment services, and such marketing

activities are limited to educating the potential patient about the

program with no effort to steer or lead the potential patient to select

or consider selection of the substance use disorder services provider

represented or for whom or which the employee or representative works;

or

(e) commissions, fees or other remuneration lawfully paid to insurance

agents as provided under the insurance law.

5. Any provider who intentionally violates the provisions of

subdivision two or three of this section shall be guilty of a

misdemeanor as defined in the penal law.

6. If the commissioner has reason to believe a provider has violated

subdivision two or three of this section, the commissioner may proceed

to investigate and institute enforcement actions, as may be authorized

pursuant to the applicable provisions of this article.

7. The provisions of this section are in addition to any other civil,

administrative or criminal enforcement actions provided by law.

Penalties authorized under this section may be imposed against corporate

providers and individual providers.

8. The commissioner shall adopt and may amend rules and regulations to

effectuate the provisions of this section.