New York State Dept. of Health Issues Guidance on Recently Amended Consumer Protection Laws and Postpones New Requirements for Patient Consent Forms

On April 20, 2024, New York State approved several updates to its consumer protection laws, including enactment of Public Health Law § 18-C. Section 18-C provides new requirements for patient consent for treatment and payment of medical services. The updates (discussed further below) went into effect on October 20, 2024. However, due to the volume of stakeholders reaching out to the NYS Dept. of Health (DOH), the DOH issued guidance on October 18, 2024, announcing that it would postpone implementation of Section 18-C until further notice.

Section 18-C includes several notable updates to patient consent forms. First, Section 18-C prohibits healthcare providers from using a single form to obtain a patient’s consent for treatment and payment of medical services. Instead, healthcare providers must have two separate forms – one form for consent of treatment and one form for consent to pay for medical services. This is an important update as many healthcare providers may have been utilizing a single form to obtain patient consent for treatment and payment of services.

Second, and most importantly, Section 18-C prohibits healthcare providers from obtaining a patient’s consent to pay for healthcare services prior to the patient receiving such services and discussing the treatment costs. As written, this new requirement would conflict with the federal No Surprises Act – a federal law which requires advance notice of treatment costs and patient approval of costs in certain circumstances. Moreover, from a practical standpoint, healthcare providers were understandably wary of the requirement to provide healthcare services prior to obtaining any agreement from patients to pay for such services.

Section 18-C also clarified what factors a healthcare provider must meet when obtaining consent from a patient. Consent means an action which:

• Clearly and conspicuously communicates the patient’s authorization of an act or practice;
• Is made in the absence of any mechanism in the user interface that has the purpose or substantial effect of obscuring, subverting, or impairing decision-making or choice to obtain consent; and
• Cannot be inferred from inaction (e., the patient must actively consent).

As noted above, the NYS DOH issued guidance to stakeholders on October 18, 2024, announcing that it would pause implementation of the updated consent requirements until further notice. Stakeholders should periodically check for further guidance from NYS DOH pertaining to Section 18-C.

That said, there were several other recent updates to consumer protection laws that went into effect on October 20, 2024, of which healthcare providers should be aware. Notably, NY Gen. Business Law §§ 349-G and 519-A were amended to include the following updates to payment arrangements for medical services:

• Medical Financial Product Applications – Providers are prohibited from completing any portion of an application for medical financial products for the patient, or otherwise arrange for/establish an application that is not completely filled out by the patient.
• Credit Card Pre-Authorization – Providers are prohibited from requiring patients to have credit cards on file (including pre-authorizations) prior to rendering emergency or necessary medical services. Providers can ask patients to voluntarily place a credit card on file but cannot require it.
• Credit Card Risk Notification – Each time a credit card is used, patients must be notified of the risks of paying for medical services with a credit card, including:
  • medical bills paid are no longer considered medical debt;
  • by paying with a credit card, patients are forgoing federal/state protections around medical debt;
  • patients must also acknowledge forgoing the following protections:
    • prohibitions against wage garnishment and property liens;
    • prohibition against reporting medical debt to credit bureaus;
    • limitations on interest rates; and
  • patients must affirmatively acknowledge forgoing these protections by paying with a credit card.

For more information on the issues relating to this article, please contact the Health Law Partners at (212) 734-0128 or by email to Carey Kalmowitz,  Abby Pendleton or Adrienne Dresevic.