Tuesday, May 2, 1995

5310 1 2 3 4 5 6 7 8 ALBANY, NEW YORK 9 May 2, 1995 10 11:04 a.m. 11 12 13 REGULAR SESSION 14 15 16 17 SENATOR JOHN R. KUHL, JR., Acting President 18 STEPHEN F. SLOAN, Secretary 19 20 21 22 23 5311 1 P R O C E E D I N G S 2 ACTING PRESIDENT KUHL: Senate 3 will come to order. Find your places. 4 Ask everybody in the chamber to 5 rise with me and say the Pledge of Allegiance to 6 the Flag. 7 (Whereupon, the Senate and those 8 present joined in the Pledge of Allegiance to 9 the Flag.) 10 In the absence of clergy, may we 11 bow our heads in a moment of silence. 12 (Whereupon, there was a moment of 13 silence.) 14 Reading of the Journal. 15 THE SECRETARY: In Senate, 16 Monday, May 1. The Senate met pursuant to 17 adjournment. Senator Kuhl in the chair. Prayer 18 by the Rabbi Butman. The Journal of Sunday, 19 April 30, was read and approved. On motion, 20 Senate adjourned. 21 ACTING PRESIDENT KUHL: Hearing 22 no objection, the Journal stands approved as 23 read. 5312 1 Presentation of petitions. 2 Messages from the Assembly. 3 Messages from the Governor. 4 Reports of standing committees. 5 Reports of select committees. 6 Communications and reports from 7 state officers. 8 Motions and resolutions. 9 Chair recognizes Senator Farley. 10 SENATOR FARLEY: Thank you, Mr. 11 President. On behalf of Senator Velella, please 12 remove the sponsor star from Calendar 222. 13 ACTING PRESIDENT KUHL: At the 14 request of the sponsor, the star will be removed 15 on Calendar Number 222. 16 Senator Bruno. 17 SENATOR BRUNO: Mr. President. 18 Can we at this time adopt the Resolution 19 Calendar? 20 ACTING PRESIDENT KUHL: The 21 question is on the Resolution Calendar. 22 All those in favor of adopting 23 it, signify by saying aye. 5313 1 (Response of "Aye.") 2 Opposed, nay. 3 The Resolution Calendar is 4 adopted. 5 The Chair recognizes Senator 6 Bruno. 7 SENATOR BRUNO: Mr. President. 8 We're offering up a resolution. It's at the 9 desk. Move that it be read in its entirety and 10 move its immediate adoption. 11 ACTING PRESIDENT KUHL: Secretary 12 will read the privileged resolution at the desk, 13 by Senator Bruno, in its entirety. 14 THE SECRETARY: Legislative 15 Resolution, by Senator Bruno. Legislative 16 Resolution condemning the ruthless bombing of 17 Oklahoma City Federal Building and the tragic 18 death and injury of innocent citizens, and 19 calling for the prompt and certain prosecution 20 of justice. 21 Whereas, America has been shocked 22 and repulsed by a senseless assault upon life 23 and property in Oklahoma City, Oklahoma; an 5314 1 incomprehensible and cowardly attack within the 2 country's heartland which has defiled the very 3 ideals and values upon which our society and 4 nation was founded. 5 With the blast of a massive bomb, 6 terrorists rained death and destruction upon 7 hundreds of defenseless children, employees and 8 visitors, within the Alfred P. Murrah Federal 9 Building on the morning of Wednesday, April 19, 10 1995. 11 This cruel and despicable act has 12 brought tragedy and anguish to countless 13 families, unleashed a national sense of 14 injustice and brought forth a great outpouring 15 of compassion from concerned citizens across 16 this great state and nation. 17 Among those bringing aid and 18 comfort to the grateful citizens of Oklahoma 19 City were the highly skilled and dedicated 20 members of the EMS and law enforcement teams 21 from the State of New York. 22 The passing days have revealed 23 the enormity of this tragedy and its impact upon 5315 1 not only the people of Oklahoma City but an 2 entire nation; through the mirror of media, 3 America has watched the anguish of families torn 4 by missing, dead, and injured members; the 5 far-reaching destruction of buildings and 6 businesses; and a new disturbing presence of 7 fear within a people whose faith in public 8 safety has been so violently shaken. 9 While a weary yet determined 10 cadre of emergency personnel continued their 11 skillful and courageous mission of mercy, a 12 prayerful nation joined hands and hearts in 13 response to the declaration of a National Day of 14 Mourning on Sunday, April 23, 1995; a day 15 dedicated not only to mourning but a day for 16 extending comfort, hope, and strength to others, 17 and a day of rededication to the values which 18 have given strength to, and so justly 19 personified, the character of America. 20 The full measure of law 21 enforcement has been firmly dedicated to the 22 application of swift, certain and severe 23 justice, and now the task of hopeful citizens 5316 1 and its leadership to put anger aside, to seek 2 the harmony of tolerance and fellowship and to 3 insure the preservation of the rights of all 4 citizens in a society dedicated to good will and 5 good citizenship; now, therefore, be it 6 Resolved, That this Legislative 7 Body declare this... terrorist bombing of the 8 Oklahoma City Federal Building and the tragic 9 loss of life and injury to its victims; adding 10 its grateful praise for the distinguished work 11 of the EMS and the law enforcement teams from 12 New York State as well as the heroic efforts of 13 all who responded to help; calling for the swift 14 application of justice upon all perpetrators; 15 and extending the deepest condolences and 16 heartfelt prayers of the citizens of the State 17 of New York to the brave people of Oklahoma 18 City, Oklahoma; and be it further 19 Resolved, that copies of this 20 resolution, suitably engrossed, be transmitted 21 to President Bill Clinton, Attorney General 22 Janet Reno, Oklahoma Governor Frank Keating, and 23 Governor George E. Pataki and the members of the 5317 1 New York State Congressional Delegation. 2 ACTING PRESIDENT KUHL: The Chair 3 recognizes Senator Bruno on the resolution. 4 SENATOR BRUNO: Thank you, Mr. 5 President. On the resolution. 6 Mr. President. What happened in 7 Oklahoma City is like the worst nightmare that 8 anyone could ever imagine, and it is still hard 9 for us all here in this state and all over the 10 country to comprehend the pain, the suffering, 11 that's been created. We can think about it and 12 we can talk about it, but it's almost impossible 13 to just fully appreciate what has happened to 14 those families -- 150 people dead. 15 babies. 15 You think about that happening as someone's 16 malicious act, it's kind of hard to comprehend. 17 But it's fitting that we 18 recognize for these moments that tragedy. It's 19 fitting, Mr. President, that we think about the 20 victims, their lives which have been shortened 21 in this tragic way, but we also think about 22 families, their friends, all of the survivors 23 that mourn; and that we remember these people in 5318 1 our thoughts and in our prayers; and that we 2 pray that time will truly heal those wounds that 3 are so open now for the people that were close 4 and for the people all over the country, all 5 over the world, that can't help but focus and 6 think about the pain and suffering that's there, 7 and it goes on and on and on. 8 So we pray for the victims. We 9 pray for the families, and we pray for their 10 friends, and we recognize them in this way on 11 this floor as they will be recognized and 12 remembered all over this great country of ours; 13 and, hopefully, by focusing attention on this, 14 we might in some way inhibit any of the 15 tragedies that might occur in the future, 16 causing people to just think about what they're 17 doing to innocent people. 18 Mr. President. I would at this 19 time suggest that we open up this resolution and 20 its sponsorship to any of the members that are 21 in the chamber today. 22 Thank you, Mr. President. 23 ACTING PRESIDENT KUHL: Senator 5319 1 Bruno, I see that there are several members that 2 would like to be on it. Why don't we take the 3 position that we put all the members, because of 4 the delicateness of this resolution, on the 5 resolution except for those who would signify to 6 the desk later that they don't wish to be on the 7 resolution. 8 The chair recognizes Senator 9 Paterson on the resolution. 10 SENATOR PATERSON: Mr. 11 President. I think it is a tremendous gesture 12 that we are making today in the Senate by 13 pausing in our deliberations to recognize such a 14 horrible tragedy in this country. 15 Last Wednesday, which was the one 16 week anniversary, we opened our session an hour 17 earlier so that at 10:02 a.m. eastern time we 18 were able to comply with the President's wish 19 that at 9:02 central time which was the one week 20 anniversary of that horrible disaster that we 21 paused in a moment of silence. I thought that 22 was a wonderfully sensitive gesture on the part 23 of our Majority Leader, Senator Bruno. 5320 1 There have been a few very 2 unfortunate incidents that have occurred, 3 personally to some of our members and also in 4 the world, that we have recognized this year, 5 and I am very grateful for that. 6 You have to wonder about the 7 personality or the mind-set that feels 8 comfortable being the catalyst for such a 9 horrible, terrible disaster. You have to really 10 dismiss any ideological certainty that is being 11 advanced by such an act. One wonders what kind 12 of government these individuals, terrorists 13 around the world, whether they be in the Middle 14 East, whether they be right here in the United 15 States, whether it be at the World Trade Center 16 or from whatever source it's coming, what kind 17 of government are they suggesting that we live 18 in where those who are trying to change the 19 government destroy lives, destroy children, 20 destroy the hopes and dreams of a whole 21 community, a whole city and put an everlasting 22 blemish on our country's history. 23 It is really one of the saddest 5321 1 state of affairs that we could ever be 2 addressing in this chamber, and yet as public 3 servants we have to address it. These are 4 issues that are actually happening in our 5 society now. With all of our advanced 6 technology, with all of our increased humanity, 7 we are still fighting the inability of human 8 beings to recognize each other's right to live 9 on this planet. 10 And, certainly, we should never 11 in any way compare the disagreements that we 12 have in this chamber with any kind of 13 endorsement of these types of acts because the 14 philosophy that the individuals may be spouting 15 as they commit these acts has nothing to do with 16 the acts themselves. They are just convenient 17 excuses and avenues to violence, because that's 18 all it really is. Violence that is manifested 19 in the conduct that is so loathsome and 20 despicable that we just notice is really coming 21 from a sick and twisted mind or a group of sick 22 and twisted minds. 23 So I am very happy that we would 5322 1 have this resolution today. I hope that the 2 families and the survivors who were injured in 3 that disaster will somehow try to take something 4 from what we're offering today. We are really 5 offering in our own small way, in our own human 6 way, the gesture that we care. 7 ACTING PRESIDENT KUHL: Senator 8 Dollinger on the resolution. 9 SENATOR DOLLINGER: Mr. 10 President, just briefly. 11 I want to commend Senator Bruno 12 for taking the leadership on this issue and 13 sending a message to the people of Oklahoma that 14 we in New York, who had our own experience with 15 terrorism, understand what the devastation is 16 that's wreaked on the families by these 17 villainous acts. 18 I have only one suggestion. I'm 19 not sure it needs to be put on the resolution, 20 but I would recommend that we send a copy of 21 this resolution not only to those who are listed 22 on the resolution but to the families of the 23 victims, as well, so that they will have an 5323 1 expression from us that we in New York recognize 2 that we are a nation of families. We share 3 their family's grief. We share their family's 4 disappointment and distress, and that we will 5 send a clear message to them that we in the New 6 York family do not tolerate violence in any 7 form. 8 I just recommend that we send it. 9 I'm sure we can get a list of families that lost 10 someone and, perhaps, send if to the parent or 11 the spouse so that they will have a memorial 12 from us of the importance of the American family 13 and our tradition against violence. 14 ACTING PRESIDENT KUHL: The 15 question is on the resolution. All those in 16 favor signify by saying aye. 17 (Response of "Aye.") 18 Opposed, nay. 19 The resolution is unanimously 20 adopted. 21 Senator Bruno. 22 SENATOR BRUNO: Mr. President. 23 Can we return to reports of standing committees, 5324 1 and I believe there is a report from the Finance 2 Committee at the desk. 3 ACTING PRESIDENT KUHL: There is 4 a report of a nomination at the desk, Senator 5 Bruno. I will ask the Secretary to read. 6 THE SECRETARY: Senator Stafford 7 from the Committee on Finance offers up the 8 following nomination: Member of the New York 9 State Racing and Wagering Board, Jerry Bilinski, 10 DVM, of North Chatham. 11 ACTING PRESIDENT KUHL: Chair 12 recognizes Senator Bruno on the nomination. 13 SENATOR BRUNO: Mr. President, on 14 the nomination. I am very pleased to be able to 15 stand in support of this nominee. I have known 16 Dr. Jerry Bilinski for a lot of years, as I have 17 known his wife Darlene that joins him here in 18 the chamber today. 19 I know him to be a true 20 professional in his field of veterinary 21 medicine. I know him to be a business person 22 who has had one of the more successful 23 veterinary clinics in the state. I know him as 5325 1 a horse person, raising horses, brood mares, 2 standing stallions, one of the most outstanding 3 stallions in the state. 4 So it is very refreshing to have 5 someone take on a position of responsibility 6 that is as important to the people of this state 7 as this one is, and it's especially worth noting 8 that Dr. Bilinski is extremely successful in his 9 business world and in his professional world and 10 has a lot of things that he could be doing with 11 his time if he so chooses. He is choosing to do 12 this public work on behalf of the great majority 13 of the people of this state. I want to commend 14 him for that. 15 I commend his wife, who has 16 supported him in all of his activities, and just 17 want to urge the support of all of my colleagues 18 in the chamber because we have a person in Dr. 19 Bilinski that will do all of the good things 20 that need to be done for an industry that needs 21 a lot of attention, a lot of help, a lot of 22 sophistication, a lot of knowledge, a lot of 23 enthusiasm, a lot of energy, and Dr. Bilinski 5326 1 possesses all of those qualities and attributes. 2 So I am pleased to move his 3 nomination, Mr. President. 4 ACTING PRESIDENT KUHL: Chair 5 recognizes Senator Nozzolio on the confirmation. 6 SENATOR NOZZOLIO: Thank you, Mr. 7 President. 8 Mr. President. My colleagues. I 9 rise to echo the comments of my Majority Leader 10 in support of this nomination. It's an 11 extremely important position and the challenges 12 ahead are great and significant. I haven't in 13 or near my Senatorial District Fortune 500 14 companies like Kodak and Xerox, but the largest 15 private sector employer in my district is the 16 Finger Lakes Racetrack. It's an important 17 component not only to the employment directly 18 but also the very important aspect of tourism in 19 our Finger Lakes Region. I'm very pleased in my 20 conversations with Dr. Bilinski that he 21 recognizes the importance of this economic 22 entity and its important contribution to the 23 Finger Lakes economy. 5327 1 The discussions -- I'm also 2 pleased that the nominee, Dr. Bilinski, is 3 committed to working with us here in the 4 Legislature to do more, to do better, on behalf 5 of those horse interests and racing interests in 6 our state. 7 Mr. President, I support this 8 nomination and urge my colleagues to do 9 likewise. 10 ACTING PRESIDENT KUHL: Chair 11 recognizes Senator Farley on the confirmation. 12 SENATOR FARLEY: Thank you, Mr. 13 President. I rise to support this nomination. 14 Racing is one of the most important industries 15 in this state. Very important to Senator Bruno 16 and myself that we share with Saratoga County, 17 and I know of Senator Bruno's love of horses and 18 his recommendation of the good doctor is 19 significant because, of course, horses do play a 20 large part of the racing industry. 21 And I am pleased to support this 22 nomination. I think, of course, the doctor is 23 eminently qualified and will serve us well, and 5328 1 I applaud the Governor on this outstanding 2 appointment. 3 I vote aye. 4 ACTING PRESIDENT KUHL: The 5 question is on the nomination of Dr. Jerry 6 Bilinski of North Chatham to the position as a 7 member of New York State Racing and Wagering 8 Board. 9 All those in favor of the 10 nomination, signify by saying aye. 11 (Response of "Aye.") 12 Opposed nay. 13 (There was no response.) 14 The nominee is confirmed. 15 We are very pleased to be joined 16 by Dr. Jerry Bilinski. He's in the gallery with 17 us, together with his wife, Darlene. 18 Dr. Bilinski, congratulations and 19 good luck. 20 (Applause.) 21 Senator Bruno, that brings us to 22 the calendar. 23 SENATOR BRUNO: Mr. President. 5329 1 Can we at this time take up the noncontroversial 2 calendar. 3 ACTING PRESIDENT KUHL: Secretary 4 will read the noncontroversial calendar. 5 THE SECRETARY: Calendar Number 6 97, by Senator Goodman, Senate Print 926A, an 7 act to amend the Tax Law, in relation to 8 additional tax on receipts from the sale of 9 parking services rendered in certain cities. 10 ACTING PRESIDENT KUHL: Secretary 11 will read the last section. 12 THE SECRETARY: Section 4. This 13 act shall take effect immediately. 14 ACTING PRESIDENT KUHL: Call the 15 roll. 16 (The Secretary called the roll.) 17 THE SECRETARY: Ayes 42. 18 ACTING PRESIDENT KUHL: The bill 19 is passed. 20 THE SECRETARY: Calendar Number 21 103, by Member of the Assembly Tokasz, Assembly 22 Print 2444, an act to amend the Education Law, 23 in relation to the practice of optometry. 5330 1 SENATOR PATERSON: Lay it aside. 2 ACTING PRESIDENT KUHL: Lay the 3 bill aside. 4 THE SECRETARY: Calendar Number 5 155, by Member of the Assembly Tonko, Assembly 6 Print 2331, an act to amend the Civil Service 7 Law, in relation to notifying candidates. 8 ACTING PRESIDENT KUHL: Secretary 9 will read the last section. 10 THE SECRETARY: Section 3. This 11 act shall take effect on the first day of 12 January. 13 ACTING PRESIDENT KUHL: Call the 14 roll. 15 (The Secretary called the roll.) 16 THE SECRETARY: Ayes 42. 17 ACTING PRESIDENT KUHL: The bill 18 is passed. 19 THE SECRETARY: Calendar Number 20 204, by Senator Saland, Senate Print 2598, an 21 act to amend the Family Court Act, in relation 22 to extensions of child placement and child 23 protective proceedings. 5331 1 ACTING PRESIDENT KUHL: Secretary 2 will read the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect on the 90th day. 5 ACTING PRESIDENT KUHL: Call the 6 roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes 42. 9 ACTING PRESIDENT KUHL: The bill 10 is passed. 11 THE SECRETARY: Calendar Number 12 206, by Member of the Assembly Pillitiere, 13 Assembly Print 917, an act to amend the 14 Navigation Law, in relation to vessel lighting 15 and the operation of personal water craft. 16 SENATOR DeFRANCISCO: Would you 17 please lay that aside for the day. 18 ACTING PRESIDENT KUHL: Lay the 19 bill aside. 20 THE SECRETARY: Calendar Number 21 275, by Member of the Assembly Lopez, Assembly 22 Bill 5097A, an act to amend the Private Housing 23 Finance Law, in relation to housing loans. 5332 1 ACTING PRESIDENT KUHL: Secretary 2 will read the last section. 3 THE SECRETARY: Section 2. This 4 act shall take effect immediately. 5 ACTING PRESIDENT KUHL: Call the 6 roll. 7 (The Secretary called the roll.) 8 THE SECRETARY: Ayes 42. 9 ACTING PRESIDENT KUHL: The bill 10 is passed. 11 THE SECRETARY: Calendar Number 12 303, by Senator Levy, Senate Print 364, an act 13 to amend the Vehicle and Traffic Law, in 14 relation to imposing an additional fine, 15 imprisonment for DWI offenses. 16 ACTING PRESIDENT KUHL: Secretary 17 will read the last section. 18 THE SECRETARY: Section 2. This 19 act shall take effect first day of November. 20 ACTING PRESIDENT KUHL: Call the 21 roll. 22 (The Secretary called the roll.) 23 THE SECRETARY: Ayes 42. 5333 1 ACTING PRESIDENT KUHL: Announce 2 the results when tabulated. 3 THE SECRETARY: Ayes 41. Nays 4 1. Senator Kuhl recorded in the negative. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 THE SECRETARY: Calendar Number 8 320, by Senator Saland, Senate Print 2118, an 9 act to amend the Domestic Relations Law, in 10 relation to orders for child custody and 11 support. 12 ACTING PRESIDENT KUHL: Secretary 13 will read the last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect in 120 days. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll.) 19 THE SECRETARY: Ayes 42. 20 ACTING PRESIDENT KUHL: The bill 21 is passed. 22 THE SECRETARY: Calendar Number 23 358, by Senator Trunzo, Senate Print 3655, an 5334 1 act to amend the Retirement and Social Security 2 Law, in relation to providing that vested 3 members shall not lose vested status. 4 ACTING PRESIDENT KUHL: Secretary 5 will read the last section. 6 THE SECRETARY: Section 3. This 7 act shall take effect immediately. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 42. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 THE SECRETARY: Calendar Number 15 367, by Senator Skelos, Senate Print 520, an act 16 to amend the Education Law, in relation to 17 notification to parents of an elementary school 18 pupil's absence from school. 19 ACTING PRESIDENT KUHL: Secretary 20 will read the last section. 21 THE SECRETARY: Section 3. This 22 act shall take effect on the first day of 23 September. 5335 1 ACTING PRESIDENT KUHL: Call the 2 roll. 3 (The Secretary called the roll.) 4 THE SECRETARY: Ayes 42. 5 ACTING PRESIDENT KUHL: The bill 6 is passed. 7 THE SECRETARY: Calendar Number 8 380, by Member of the Assembly Luster, Assembly 9 Print 1541, an act to amend the Criminal 10 Procedure Law, in relation to authorizing the 11 presence of a counselor. 12 ACTING PRESIDENT KUHL: Secretary 13 will read the last section. 14 THE SECRETARY: Section 2. This 15 act shall take effect immediately. 16 ACTING PRESIDENT KUHL: Call the 17 roll. 18 (The Secretary called the roll.) 19 THE SECRETARY: Ayes 42. 20 ACTING PRESIDENT KUHL: The bill 21 is passed. 22 THE SECRETARY: Calendar Number 23 382, Member of the Assembly Gromack, Assembly 5336 1 Print 3039, an act to amend the Criminal 2 Procedure Law, in relation to conferring peace 3 officer status. 4 ACTING PRESIDENT KUHL: Secretary 5 will read the last section. 6 THE SECRETARY: Section 2. This 7 act shall take effect immediately. 8 ACTING PRESIDENT KUHL: Call the 9 roll. 10 (The Secretary called the roll.) 11 THE SECRETARY: Ayes 42. 12 ACTING PRESIDENT KUHL: The bill 13 is passed. 14 THE SECRETARY: Calendar Number 15 395, by Senator Trunzo, Senate Print 3983, an 16 act to amend the Civil Service Law, in relation 17 to the adjournment of certain arbitration 18 proceedings. 19 ACTING PRESIDENT KUHL: Secretary 20 will read the last section. 21 THE SECRETARY: Section 2. This 22 act shall take effect immediately. 23 ACTING PRESIDENT KUHL: Call the 5337 1 roll. 2 (The Secretary called the roll.) 3 THE SECRETARY: Ayes 42. 4 ACTING PRESIDENT KUHL: The bill 5 is passed. 6 THE SECRETARY: Calendar Number 7 396, by Senator Trunzo, Senate Print 3984, an 8 act to amend the Retirement and Social Security 9 Law, in relation to providing ordinary death 10 benefit coverage. 11 ACTING PRESIDENT KUHL: Secretary 12 will read the last section. 13 THE SECRETARY: Section 11. This 14 act shall take effect immediately. 15 ACTING PRESIDENT KUHL: Call the 16 roll. 17 (The Secretary called the roll.) 18 THE SECRETARY: Ayes 42. 19 ACTING PRESIDENT KUHL: The bill 20 is passed. 21 THE SECRETARY: Calendar Number 22 417, by Member of the Assembly Gottfried, 23 Assembly Print 3826A, an act to amend the Public 5338 1 Health Law and the Insurance Law in relation to 2 radiation therapy. 3 ACTING PRESIDENT KUHL: Secretary 4 will read the last section. 5 THE SECRETARY: Section 10. This 6 act shall take effect on the 30th day. 7 ACTING PRESIDENT KUHL: Call the 8 roll. 9 (The Secretary called the roll.) 10 THE SECRETARY: Ayes 42. 11 ACTING PRESIDENT KUHL: The bill 12 is passed. 13 THE SECRETARY: Calendar Number 14 418, by Member of the Assembly Gottfried, 15 Assembly Bill 5759, an act to amend the Public 16 Health Law, in relation to prohibition of 17 financial arrangements. 18 ACTING PRESIDENT KUHL: Secretary 19 will read the last section. 20 THE SECRETARY: Section 2. This 21 act shall take effect immediately. 22 ACTING PRESIDENT KUHL: Call the 23 roll. 5339 1 (The Secretary called the roll.) 2 THE SECRETARY: Ayes 42. 3 ACTING PRESIDENT KUHL: The bill 4 is passed. 5 THE SECRETARY: Calendar Number 6 425, by Senator Saland, Senate Print 2113, an 7 act to amend the Family Court Act and the 8 Criminal Procedure Law, in relation to 9 authorizing the court to permit a petitioner. 10 ACTING PRESIDENT KUHL: Secretary 11 will read the last section. 12 THE SECRETARY: Section 8. This 13 act shall take effect on the 90th day. 14 ACTING PRESIDENT KUHL: Call the 15 roll. 16 (The Secretary called the roll.) 17 THE SECRETARY: Ayes 42. 18 ACTING PRESIDENT KUHL: The bill 19 is passed. 20 Senator Skelos, that completes 21 the noncontroversial calendar. 22 SENATOR SKELOS: Yes, Mr. 23 President. Is there any housekeeping at the 5340 1 desk at this time before we go to the 2 controversial calendar? 3 ACTING PRESIDENT KUHL: There is 4 none at the desk reported by The Secretary. 5 SENATOR SKELOS: If we could 6 proceed then with the controversial calendar. 7 ACTING PRESIDENT KUHL: Secretary 8 will call the controversial calendar. 9 THE SECRETARY: On page 9, 10 Calendar Number 103, by Member of the Assembly 11 Tokasz, Assembly Print 2444, an act to amend the 12 Education Law, in relation to the practice of 13 optometry. 14 ACTING PRESIDENT KUHL: Senator 15 Skelos, an explanation. 16 SENATOR SKELOS: May we stand at 17 ease for a moment. I believe Senator Volker is 18 in the Finance Committee meeting, and we'll get 19 him in. 20 I know that a couple of members 21 would like to vote at this time. If we could 22 call the roll for purposes of Senator Trunzo 23 voting. 5341 1 ACTING PRESIDENT KUHL: Secretary 2 will read the last section on Calendar Number 3 103. 4 THE SECRETARY: Section 6. This 5 act shall take effect on the 120th day. 6 ACTING PRESIDENT KUHL: Call the 7 roll. 8 (The Secretary called the roll.) 9 ACTING PRESIDENT KUHL: Senator 10 Trunzo, how do you vote? 11 SENATOR TRUNZO: Yes. 12 ACTING PRESIDENT KUHL: Senator 13 Trunzo will be recorded in the affirmative. 14 Secretary will withdraw the roll 15 call. 16 SENATOR SKELOS: May we just 17 stand at ease for a moment. 18 ACTING PRESIDENT KUHL: We will 19 stand at ease momentarily, awaiting Senator 20 Volker. 21 (The Senate was at ease.) 22 ACTING PRESIDENT KUHL: The 23 Senate will come to order. 5342 1 Chair recognizes Senator Skelos. 2 SENATOR SKELOS: I believe you 3 have another report from the Finance Committee. 4 ACTING PRESIDENT KUHL: We do. 5 We have called up Calendar Number 103, Senator 6 Skelos, so why don't we lay that aside 7 temporarily. We'll return to reports of 8 standing committees. We have a report of the 9 Finance Committee. I will ask the Secretary to 10 read. 11 THE SECRETARY: Senator Stafford 12 from the Committee on Finance reports the 13 following bill: Senate Print 4579, Budget Bill, 14 an act to provide for payments to certain 15 municipalities under the Municipal Assistance 16 Program and making an appropriation therefor. 17 ACTING PRESIDENT KUHL: Without 18 objection, the bill is reported to third 19 reading. 20 Senator Skelos, do you wish to 21 take this up at this time? 22 SENATOR SKELOS: Mr. President. 23 Is there a message of necessity at the desk? 5343 1 ACTING PRESIDENT KUHL: Yes. I 2 will ask the Secretary to read the bill, and 3 then we will have a substitution, and then we 4 will take the message. 5 Secretary will read. 6 THE SECRETARY: Senator Stafford 7 moves to discharge from the Committee on Finance 8 Assembly Bill Number 7485 and substitute it for 9 the identical Senate Bill 4579. 10 ACTING PRESIDENT KUHL: Secretary 11 will -- substitution is ordered. 12 Senator Skelos. 13 SENATOR SKELOS: Yes, is there a 14 message of necessity at the desk? 15 ACTING PRESIDENT KUHL: There is 16 a message of necessity on the Assembly bill, 17 Senator Skelos, at the desk. 18 SENATOR SKELOS: Move to accept. 19 ACTING PRESIDENT KUHL: The 20 motion is to accept the message of necessity. 21 All those in favor, signify by saying aye. 22 (Response of "Aye.") 23 Opposed, nay. 5344 1 (There was no response.) 2 The message is accepted. 3 Secretary will read the last 4 section. 5 THE SECRETARY: Section 2. This 6 act shall take effect immediately. 7 ACTING PRESIDENT KUHL: Call the 8 roll. 9 (The Secretary called the roll.) 10 THE SECRETARY: Ayes 47. 11 ACTING PRESIDENT KUHL: The bill 12 is passed. 13 Chair recognizes Senator Skelos. 14 SENATOR SKELOS: There will be an 15 immediate meeting of the Tourism Committee in 16 Room 332 of the Capitol. 17 ACTING PRESIDENT KUHL: There 18 will be an immediate meeting of the Tourism 19 Committee in the Majority Conference Room, Room 20 332. 21 SENATOR SKELOS: And at this 22 time, Mr. President, if we can take up Calendar 23 Number 103, Senate 1186. 5345 1 ACTING PRESIDENT KUHL: Secretary 2 will read Calendar Number 103. 3 ACTING PRESIDENT KUHL: Chair 4 recognizes Senator Saland. 5 SENATOR SALAND: Thank you, Mr. 6 President. I was out of the chamber at a 7 Finance meeting, and would request unanimous 8 consent to join you, Mr. President, in the 9 negative on Calendar 303. 10 ACTING PRESIDENT KUHL: Without 11 objection, Senator Saland will be recorded in 12 the negative on Calendar Number 303. 13 SENATOR SALAND: Thank you, Mr. 14 President. 15 ACTING PRESIDENT KUHL: Secretary 16 will read Calendar Number 103. 17 THE SECRETARY: Calendar Number 18 103, by Member of the Assembly Tokasz, Assembly 19 Print Number 2444, an act to amend the Education 20 Law, in relation to the practice of optometry. 21 ACTING PRESIDENT KUHL: Senator 22 Volker, an explanation of the bill was asked for 23 when it was brought up the last time by Senator 5346 1 Dollinger. 2 Chair recognizes Senator Volker 3 for an explanation. 4 SENATOR VOLKER: Mr. President. 5 First of all, let me say and I think this 6 certainly is a very important bill. 7 ACTING PRESIDENT KUHL: Senator 8 Volker, excuse the interruption. 9 Ladies and gentlemen, may we have 10 the members please take their chairs and take 11 the conversations out of the chamber. It's 12 extremely noisy in here. We won't proceed until 13 it quiets down. 14 Senator Volker. 15 SENATOR VOLKER: First of all, I 16 might say, I think that is important bill; and, 17 in a sense, I want to apologize to my colleagues 18 and at the same time thank my good friend 19 Senator Ken LaValle for the hard work that he 20 did on this bill and also for the fact that, 21 very honestly, this bill should have been signed 22 into law last year and would not even be here. 23 This bill passed the Senate by a 5347 1 vote of 49 to 11 last year. It was not a real 2 controversial bill. It was agreed to by 3 virtually everybody involved. 4 But like so many other areas, 5 especially areas where there is turf involved, 6 one of the parties involved who had agreed to 7 it, some of the members of that organization 8 started backing around and saying, "We don't 9 know if this was such a good idea," and some 10 very powerful members of that organization then 11 got to the medical society and said, "You know, 12 if you let this happen, why other groups will be 13 coming in and wanting to impinge on us," and so 14 forth and so on. The next thing you know, the 15 medical society that had been very quiet all of 16 a sudden got involved. 17 So what has happened here is that 18 we have a situation where you might be 19 interested to know there are 48 states in the 20 Union -- 48 -- that allow for the kind of 21 statutes that we presently have, that allow, in 22 other words, some form of drug use for eyes in 23 the -- that we do in this state already. There 5348 1 are 41 states in the Union that provide some 2 form of therapeutic drug treatment contrary to 3 what some of the nonsense that has been -- that 4 has been distributed around. 5 In fact, interesting statistic 6 that I found out was that two of the three 7 examinations that are done in this state are 8 done by optometrists and not by 9 ophthalmologists, which I think may give you an 10 idea of one reason why some ophthalmologists are 11 concerned here. 12 Let me just, if I might, read 13 you -- and there's a reason why I'm doing this. 14 I am going to read you a little statement of how 15 we came about here, partly because I think it is 16 important to this issue and also because I think 17 there is just so much misunderstanding about 18 what has happened. So I'm going to give you 19 just a brief history of what's before us. 20 An almost identical bill passed 21 this house last year. The chair of the Assembly 22 Higher Education Committee, Ed Sullivan, asked 23 for a few technical amendments which were 5349 1 included in the chapter amendment. That chapter 2 amendment failed to get a message of necessity, 3 and those of you that were here then obviously 4 remember there were some problems at the end of 5 last session with messages of necessity. 6 Those chapter amendments have 7 been included in this bill; and except for the 8 effective date, the bill is the identical to the 9 marriage resulting from the original piece of 10 legislation that was passed and the chapter 11 amendments' technical amendments. 12 The chairs of the Higher 13 Education Committees, Senator Ken LaValle and 14 his counterpart in the Assembly, had previously 15 asked the Education Department to conduct an 16 analysis of the issues surrounding optometric 17 use of therapeutic drugs. The Department's 18 report, which was issued in June of 1993, became 19 the framework for almost a year's effort in 20 developing a bill which reflected public need, 21 the Education Department's proposals, and the 22 position of optometry and ophthalmology and the 23 chairs of the legislative committees. 5350 1 The bill currently before us has 2 the support of the Education Department. The 3 Health Department -- that is, the new Health 4 Department -- has taken no position. Optometry 5 is strongly supportive and the representatives 6 of ophthalmology had indicated they had signed 7 off on the legislation. In fact, they were part 8 of the discussions that went on for a long 9 period of time. 10 The medical society has begun to 11 voice objections to the bill asking for a 12 collaborative agreement. The only physicians 13 with whom the optometrists could possibly have a 14 collaborative agreement would be the 15 ophthalmologists, and they have agreed to this 16 legislation in the past. While there may be 17 individual optometrists and ophthalmologists who 18 are unhappy with the negotiations, the bill 19 does, in fact, reflect the final position of 20 both of those organizations. 21 I am convinced that the medical 22 society is fighting a battle on nurse 23 practitioners and nurse anesthetists and others 5351 1 who are looking to expand their scope of 2 practice to include areas heretofore the 3 exclusive purview of physicians. So other than 4 the medical society as a whole, the other 5 components including that group of medical 6 practitioners most directly affected have 7 actively participated and have been instrumental 8 in developing this proposal and had no objection 9 to this legislation. 10 The bill redefines optometry by 11 permitting those optometrists who have the 12 requisite clinical training to use certain 13 specified drugs. The drug utilization is 14 divided into two phases. In the first phase, 15 topical medication is used for relatively common 16 routine diseases such as inflammation of the 17 eye. Before an optometrist may participate in 18 Phase I, he or she must have acquired a minimum 19 of 300 hours of clinical training. 20 Ophthalmologists are actively participating in 21 this review process as they are in an evaluation 22 committee which will assist in determining if 23 optometrists who apply for certification have 5352 1 the necessary clinical experience. 2 There are particular procedures 3 to be followed in the event that steroids or 4 antiviral medications are dispensed or 5 prescribed. The language and protocols for 6 these medications were developed in consultation 7 with the Education Department, members of the 8 New York State Medical Board, and the 9 ophthalmological society's representatives. All 10 parties concurred with the approach in this 11 bill. 12 During the first 12 months of 13 this Phase I utilization, all optometrists 14 prescribing drugs must advise a review committee 15 of the illness treated, the medication 16 provided -- prescribed and the outcome. 17 Ophthalmologists are actively engaged in this 18 component as they are in the committee which 19 will write the initial report on the experience 20 of optometrists prescribing medication. 21 In Phase II, optometrists are 22 permitted to use certain glaucoma medications; 23 however, glaucoma patients must be co-managed 5353 1 with an ophthalmologist during the first three 2 years but not for fewer than 75 patients. The 3 issue raised by the medical society on 4 collaborative agreements was resolved by 5 optometry, ophthalmology, and the chairs of the 6 committees by requiring this co-management 7 relationship between ophthalmologists and 8 optometrists. 9 Optometrists must have an 10 additional 100 hours of clinical training solely 11 in glaucoma management prior to being authorized 12 to use Phase II drugs. Optometrists must have a 13 notification in their office advising patients 14 of the condition in which they are practicing. 15 They will be held to the same standards to which 16 physicians in the community are held. They must 17 participate in conditioning education programs. 18 Similar legislation has been 19 enacted in 41 other states. New York is late to 20 the authorization although the SUNY College of 21 Optometry has been one of the premier clinical 22 programs in the country. The Education 23 Department has submitted a memorandum in support 5354 1 while the new Commissioner of Education has 2 taken no position -- Commissioner of Health. 3 I'm sorry. The Health Department in prior years 4 has endorsed this legislation stating, "The 5 authorization of optometrists to use drugs will 6 encourage and facilitate greater access to 7 health care services; may also reduce or limit 8 the increase in costs of vision care services 9 provided by publicly financed health care 10 programs." 11 This bill is an evolutionary step 12 in the development of scope of practice for 13 ancillary health care providers. It has been 14 carefully reviewed, negotiated by the chairs of 15 the Senate and Assembly Higher Education 16 Committees. 17 I want to especially thank 18 Senator LaValle for not only all the work that 19 he did but also because -- those of you who may 20 remember that a major reason why the bill was 21 late in last session is that it occurred after I 22 had had some major surgery, and I had 23 anticipated coming back before the end of the 5355 1 session. Unfortunately, that didn't work out, 2 and I was not able to come back by the end of 3 the session; and as a result, Senator LaValle 4 moved the bill late in the session and did a 5 Herculean job; and if wasn't for some of the 6 things that occurred, really, outside the - 7 outside of our control, the bill would have, 8 presumably, been signed into law and we would 9 not have this bill before us today. So I just 10 wanted to make that clear. 11 And I will be glad to try to 12 answer any questions anybody might have. 13 SENATOR DOLLINGER: Mr. 14 President. If Senator Volker will yield to a 15 couple of questions? 16 SENATOR VOLKER: Sure. 17 ACTING PRESIDENT KUHL: Senator 18 Volker, do you yield to a question from Senator 19 Dollinger? 20 The Senator yields. 21 SENATOR DOLLINGER: First of all, 22 Senator, I appreciate your effort with this 23 bill. I know this has been a long time in 5356 1 working through. I'd just like to go through 2 and make sure I understand a couple components 3 of it. 4 First of all, with respect to 5 glaucoma, which is an issue that, at least to my 6 recollection, was not at least clearly 7 understood by me last year when we did the bill, 8 and I know that the medical society, the 9 ophthalmological society have come forward with 10 information that suggests that glaucoma is a 11 slightly different animal in this arranged 12 pattern of diseases that affect the eye and, 13 frankly, that there are different treatments. 14 Just for the record, how many 15 states in the United States now permit 16 optometrists to treat glaucoma? Do you know how 17 many? You have used the number of 41. I 18 believe that applies to general therapeutic 19 drugs. My question is, what about the issue of 20 glaucoma? 21 SENATOR VOLKER: I think 22 general -- I think that's true, and I think that 23 there are a great number of those that do, 5357 1 although I don't know if we have an exact 2 number. There are 30 -- 30 states, according to 3 the information I have, allow some form of 4 treatment of glaucoma. Not all, of course, in 5 the same vein allow it. Some allow it in 6 collaboration with ophthalmologists; some allow 7 it separately, but all of 30 states allow 8 treatment of glaucoma. 9 SENATOR DOLLINGER: Again, 10 through you, Mr. President. 11 ACTING PRESIDENT KUHL: Senator 12 Dollinger is asking Senator Volker to yield. 13 Senator Volker, do you yield? 14 SENATOR VOLKER: Certainly. 15 ACTING PRESIDENT KUHL: Senator 16 yields. 17 SENATOR DOLLINGER: Senator, are 18 you familiar with the characteristics of 19 glaucoma and why the ophthalmological society is 20 concerned about having optometrists, even with 21 the additional training, treat glaucoma and its 22 effects? 23 SENATOR VOLKER: Yes, I think I 5358 1 am, and I think -- keep in mind that the 2 treatment of glaucoma is in the second phase 3 here and we have set up a system whereby it 4 would be done in conjunction with 5 ophthalmologists as a co-management type of 6 operation. You are aware of that, I assume. 7 And the reason for that is to 8 allay some of the concerns that some of the 9 ophthalmologists had; and, remember, that this 10 bill was the result of a long and tortuous 11 process that did involve both ophthalmologists, 12 optometrists and so forth, as well as the 13 legislative people, and that that's where this 14 agreement came from. 15 I think what has happened is 16 that -- and let's face it. I think some of this 17 is obviously turf, not that there aren't people 18 that are concerned, but I think what has 19 happened here is that some people on both sides, 20 the ophthalmologists and the optometrists -- the 21 optometrists think this didn't go far enough; 22 the ophthalmologists think maybe this went too 23 far. It is, I think, one of the classic cases 5359 1 of people not involved directly in the process 2 who are saying, "Well, maybe we shouldn't have 3 done this," but their basic -- both groups, 4 agreed to this. 5 SENATOR DOLLINGER: Again, 6 through you, Mr. President, if Senator Volker 7 will yield. 8 ACTING PRESIDENT KUHL: Senator 9 Volker, do you continue to yield? 10 SENATOR VOLKER: Sure. 11 ACTING PRESIDENT KUHL: The 12 Senator continues to yield. 13 SENATOR DOLLINGER: The issue of 14 the co-management, as you describe it, Senator, 15 with respect to glaucoma, raises a troubling 16 question of liability and malpractice; and that 17 is, how do you apportion, how do you deal with 18 the malpractice issue that flows from 19 co-management versus what is currently the 20 singular management by a physician for 21 glaucoma? 22 SENATOR VOLKER: I think the way 23 you would deal with it were if the proper 5360 1 procedures are followed and if the training and 2 so forth is - 3 SENATOR DOLLINGER: Mr. 4 President. I am kind of having a problem 5 hearing. 6 ACTING PRESIDENT KUHL: So am I, 7 Senator Dollinger, and you raise a good point. 8 Why don't we see if we can get the members to 9 take their conversations out of the chamber, see 10 if we can get the sergeant-at-arms to the close 11 the doors so we don't have noise coming in. 12 SENATOR DOLLINGER: Thank you, 13 Mr. President. 14 SENATOR VOLKER: I think, 15 Senator, that what I was about to say was that 16 as long as you use the standard of care that is 17 normally used by any physician -- in fact, right 18 in the bill on page 2, line 34, where it talks 19 about standard of care, it says, "An optometrist 20 authorized to use pharmaceutical agents for use 21 in the diagnosis, treatment or prevention of 22 ocular disease shall be held to the same 23 standard of care and diagnosis, use of agent and 5361 1 treatment, as that degree of skill and 2 proficiency commonly exercised by the physician 3 in the same community." 4 So what you would have is a 5 situation where that optometrist would be held 6 to the same standard; and as long as the -- or 7 as long as he complied -- he or she complied 8 with the rules as set forth in this bill and 9 practiced in the normal -- with the normal care, 10 that would comply with those kinds of -- those 11 kinds of issues. 12 SENATOR DOLLINGER: Again, 13 through you, Mr. President, if Senator Volker 14 will yield. 15 ACTING PRESIDENT KUHL: Senator 16 Volker, do you continue to yield? 17 SENATOR VOLKER: Yes. 18 SENATOR DOLLINGER: In these 19 co-management situations between optometrists 20 and ophthalmologists, does the bill specify - 21 and I apologize for perhaps not being able to 22 cite chapter and verse here, but does the bill 23 specify who is the primary care provider or who 5362 1 is the primary manager of the care to be 2 provided? 3 I'm simply -- and, again, through 4 you, Mr. President, I'm simply trying to decide 5 who, by law, are we apportioning the major 6 responsibility for treatment so that in the 7 event of a malpractice action we have some - 8 are we in any way tinkering in this law with 9 that, the apportionment of liability 10 responsibility? 11 SENATOR VOLKER: We're not 12 tinkering. I think what we're doing here is 13 that the -- what we're doing -- we have a 14 section, by the way, that deals with 15 consultation, and that's on page 3, Section 6, 16 and it talks about how the consultation is set 17 up, and so forth, and I think what we would be 18 doing was, as long as there was compliance with 19 the rules, I think the question would be -- if 20 there was some sort of malpractice, I guess the 21 question would be, if it was on behalf, 22 obviously, of the optometrist, it didn't comply 23 with the agreement, he or she, quite clearly, 5363 1 would probably be the one primarily responsible; 2 where, I suppose, if the ophthalmologist didn't 3 act -- or didn't act in compliance, then there 4 could be some question as far as the 5 ophthalmology but primarily the optometrists 6 would take the heavy risk as long as he or she 7 would comply with the consulting but didn't 8 properly do it, then that person would, under 9 the rules of -- common rules of evidence and so 10 forth, I suppose, would be primarily 11 responsible. 12 SENATOR DOLLINGER: Again, 13 through you, Mr. President, if Senator Volker 14 will continue to yield. 15 ACTING PRESIDENT KUHL: Senator 16 Volker, do you continue to yield? 17 The Senator continues to yield. 18 SENATOR DOLLINGER: Does this 19 bill, in any way, deal with the issue of a claim 20 against an optometrist and the coverage through 21 the excess medical liability coverage that we 22 now have in place for physicians? At least it's 23 my understanding it's for physicians. In a 5364 1 claim against an optometrist, would the victim 2 of malpractice have access to the medical 3 liability umbrella that we now put in place for 4 physicians? 5 SENATOR VOLKER: I think the 6 answer to that is, probably no, because they are 7 not a physician and, therefore, they wouldn't 8 technically be -- that wouldn't be applicable to 9 them. 10 Of course, they have their own 11 coverages and the coverages of optometry now, as 12 I understand it, is not as extensive because 13 they don't do the kind of invasive type of thing 14 that a medical physician would do. Keep in mind 15 that despite the fact that we are expanding the 16 practice of optometry here, we are not expanding 17 it to anywhere near what an ophthalmologist 18 could or would do. We are not, for instance, 19 doing the kind of invasive type of thing that an 20 ophthalmologist does now. This is very 21 limited. 22 I have been told that there are 23 some states in the Union, by the way, that go 5365 1 considerably beyond what we are proposing to do 2 here in allowing optometrists to practice. 3 SENATOR DOLLINGER: Just, again, 4 through you, Mr. President. 5 ACTING PRESIDENT KUHL: Senator 6 Volker, do you continue to yield? 7 SENATOR VOLKER: Sure. 8 ACTING PRESIDENT KUHL: Senator 9 continues to yield. 10 SENATOR DOLLINGER: Is my 11 understanding correct, that if there were a 12 claim brought against an optometrist who was a 13 co-manager under the system that we have, and it 14 was determined that the optometrist was liable 15 for loss of sight, which is -- as I think 16 everybody recognizes, is a significant 17 compensable injury, that the victim would not 18 have access to the excess coverage that we now 19 have available for physicians, and that the 20 purpose of that pool is to both shield the risk 21 from individual physicians and to pool the 22 insurance so that we have funds available for 23 those kinds of judgments? 5366 1 Is my understanding that the 2 optometrists would not have access to that and 3 they would only be relying on the primary 4 coverage? 5 SENATOR VOLKER: I think that's 6 true. But, of course, remember that it is 7 excess to start with and that the medical -- a 8 physician has his own primary coverage to start 9 with, that the excess coverage is in additional 10 to their regular coverage, so that the 11 optometrist clearly would have his or her own 12 coverage; and, presumably, one of the things 13 that will happen here -- as the scope of risk 14 increases, they will probably have to have 15 increasing coverage, it is true. But, again, I 16 say not to the same extent as a physician would 17 because an optometrist would not be allowed to 18 do the kind of invasive treatment and so forth 19 that an ophthalmologist would. 20 SENATOR DOLLINGER: Again, 21 through you, Mr. President. One thing that this 22 bill does do, however, is it increases the role 23 of the optometrist as a diagnostician, and that 5367 1 is in the sense of his ability to diagnose and 2 to treat ailments that can progressively lead 3 from one form of disease rapidly to another, at 4 least as I understand the physiology of the eye. 5 SENATOR VOLKER: It doesn't 6 really increase it that much. They're doing it 7 right now. What happens now is, if an 8 optometrist looks at somebody's eye and makes a 9 determination that that person, for instance, 10 has glaucoma, or whatever, he refers him to an 11 ophthalmologist; and, in fact, what would happen 12 here is now -- and this is at the request, in 13 fact, of the ophthalmological people. You have 14 the consultation that goes on here; and 15 presumably, in severe cases, you would still 16 have to reference to an ophthalmologist because 17 there are many things that an optometrist still 18 will not be able to do, and one of the things 19 that this bill will do, by the way, is do 20 something -- and I think it may be extremely 21 important in the medical field in this area; and 22 that is, develop a much better relationship - 23 although the relationship has been much better 5368 1 than I think people realize, between 2 optometrists and ophthalmologists. 3 For instance, I don't believe I 4 have ever been to an ophthalmologist. I think 5 my entire history has been to optometrists, 6 which I think most of us don't realize because, 7 fortunately, I don't believe I have ever had any 8 disease or anything. I just had examinations 9 and so forth, because most of the examinations 10 that are done in this state, as I say, are done 11 by optometrists themselves; and it's only when 12 there is an indication of some disease or 13 something of that nature that ophthalmologists 14 come into play. 15 SENATOR DOLLINGER: Again, 16 through you, Mr. President. 17 ACTING PRESIDENT KUHL: Senator 18 Volker, do you continue to yield? 19 SENATOR VOLKER: Sure. 20 ACTING PRESIDENT KUHL: Senator 21 yields. 22 SENATOR DOLLINGER: That really 23 highlights my concern is that under this bill 5369 1 the optometrist becomes not only the first stop 2 in detection, which as, I agree with you, under 3 the current practice optometry may be, but it 4 also becomes the first stop in the treatment 5 process because they will have treatment 6 abilities for certain types of diseases, which 7 if untreated or improperly treated could lead to 8 more severe consequences. 9 That's my concern in this bill, 10 is the effect of creating this first level of 11 treatment for optometry, especially when -- at 12 least from what I understand about the diseases 13 of the eyes is that they are often progressive 14 in nature. What starts out as X Y Z ends up 15 moving, if improperly treated, to something else 16 with relative rapidity. 17 SENATOR VOLKER: Yes, it was 18 pointed out to me that the -- that the treatment 19 is limited to three basic types of drugs, beta 20 blockers, alpha agonists and direct acting 21 chlorogenic agents. The reason for that is - 22 and that was one of the things that the 23 ophthalmologists wanted was to keep the 5370 1 treatment -- whatever treatment was going to be 2 made by the optometrists would be in a very 3 limited vein, so that anything after that would 4 clearly go and would be referred to the 5 ophthalmologists; and, remember, that these 6 would be done in consultation with the 7 ophthalmologists to start with, initially, and 8 that you have all sorts of training that ensues, 9 and so forth, to increase the ability of these 10 people to deal with these kinds of things. 11 But I think the answer is, I 12 think you should understand this, that nothing 13 in this bill is going to give optometrists 14 unfettered ability to make decisions as far as 15 treatment to any massive extent. That still is 16 going to be in the hands of ophthalmologists 17 even after this bill passes, consultation or 18 not. The prime responsibilities for disease 19 control and for treatment is still going to be 20 in the hands of ophthalmologists. 21 I believe Senator DiCarlo - 22 ACTING PRESIDENT KUHL: Senator 23 Dollinger, please excuse the interruption. 5371 1 Chair recognizes the Acting 2 Majority Leader, Senator DiCarlo. 3 SENATOR DiCARLO: Thank you, Mr. 4 President. There will be an immediate meeting 5 of the Environmental Conservation Committee in 6 Room 123, and any members on that committee who 7 wish to vote now, please let us know. 8 ACTING PRESIDENT KUHL: There 9 will be an immediate meeting of the 10 Environmental Conservation Committee in Room 11 123, immediate meeting. 12 Chair recognizes Senator Tully. 13 Do you wish to vote? 14 SENATOR TULLY: Yes, Mr. 15 President. 16 ACTING PRESIDENT KUHL: Secretary 17 will read the last section. 18 THE SECRETARY: Section 6. This 19 act shall take effect on the 120th day. 20 ACTING PRESIDENT KUHL: Call the 21 roll. 22 (The Secretary called the roll.) 23 ACTING PRESIDENT KUHL: Senator 5372 1 Tully, how do you vote? 2 SENATOR TULLY: No. 3 ACTING PRESIDENT KUHL: Senator 4 Tully in the negative. 5 Senator Farley, how do you vote? 6 SENATOR FARLEY: No. 7 ACTING PRESIDENT KUHL: Senator 8 Farley in the negative. 9 Senator Leichter, how do you 10 vote? 11 SENATOR LEICHTER: Yes. 12 ACTING PRESIDENT KUHL: Senator 13 Leichter in the affirmative. 14 Senator Stachowski, how do you 15 vote? 16 SENATOR STACHOWSKI: Yes. 17 ACTING PRESIDENT KUHL: Senator 18 Stachowski in the affirmative. 19 Senator Sears, how do you vote? 20 SENATOR SEARS: Yes. 21 ACTING PRESIDENT KUHL: Senator 22 Sears in the affirmative. 23 Senator Hoblock, how do you 5373 1 vote? 2 SENATOR HOBLOCK: No. 3 ACTING PRESIDENT KUHL: Senator 4 Hoblock in the negative. 5 Senator Goodman, how do you 6 vote? 7 SENATOR GOODMAN: No. 8 ACTING PRESIDENT KUHL: Senator 9 Goodman in the negative. 10 Senator DeFrancisco, how do you 11 vote? 12 SENATOR DeFRANCISCO: Negative. 13 ACTING PRESIDENT KUHL: Senator 14 DeFrancisco in the negative. 15 Senator Oppenheimer, how do you 16 vote? 17 SENATOR OPPENHEIMER: No. 18 ACTING PRESIDENT KUHL: Senator 19 Oppenheimer in the negative. 20 Any other committee members on 21 that wishing to vote? 22 (There was no response.) 23 Roll call is withdrawn. Debate 5374 1 is resumed. 2 Chair recognizes Senator 3 Dollinger. 4 SENATOR DOLLINGER: Again, with 5 Senator Volker's continuing indulgence, just one 6 last line of questions. 7 ACTING PRESIDENT KUHL: Senator 8 Volker, do you continue to yield? 9 SENATOR VOLKER: Sure. 10 ACTING PRESIDENT KUHL: Senator 11 yields. 12 SENATOR DOLLINGER: Senator, as I 13 understand it, the effect of this bill will be 14 to create, in essence, four categories of 15 optometrists: Those who are bound by current 16 law, who have the options available under 17 current law; those who are diagnostic 18 optometrists who have some access to drugs and 19 drug therapy; therapeutic optometrists who will 20 deal with a more expanded scope; and then those 21 that have the glaucoma powers. This bill 22 establishes a series of additional training for 23 those who participate or qualify for those 5375 1 additional responsibilities. 2 SENATOR VOLKER: Additional hours 3 eventually. 4 SENATOR DOLLINGER: Additional 5 hours of training. 6 SENATOR VOLKER: Right. 7 SENATOR DOLLINGER: My question 8 is, what procedure is set up under this bill to 9 notify the consumer of the varying levels of 10 expertise that will now be available for these 11 various optometrists? 12 SENATOR VOLKER: First of all, 13 there is in the bill when the optometrist is 14 initially enabled to practice, and so forth, 15 under the new rules, there is a -- in the bill, 16 it speaks of posting on the wall a notice that 17 tells exactly what the scope of the optometrist 18 is; and, for instance, when the optometrist is 19 in the second phase and dealing with the co 20 management or consultation with the 21 ophthalmologist, that that notice must be placed 22 for anyone to see to make sure that there is an 23 understanding by anyone that is treated by that 5376 1 person as to exactly what the scope of that 2 optometrist is; and the idea of that is to make 3 it clear as to exactly how this person -- what 4 this person's scope is; and then at the end of 5 the process, there is also a notice where the 6 optometrist will be able then to notify his 7 clients that he has been certified -- he or she 8 has been certified to exactly what their scope 9 of authority is, and so forth. 10 So there is an attempt in the 11 bill -- and by the way, there is -- there is a 12 continuing process that goes on, a committee 13 that is set up as a continuing education 14 process, not only to review what is occurring as 15 time goes on, also there is a course of a 16 committee set up for certification and things of 17 that nature with two optometrists and two 18 ophthalmologists on it and a third person that 19 is set up for a review committee, person 20 appointed by the SUNY Chancellor through the 21 Education Department, to certify people. But 22 all that is going to be noticed to the public, 23 and the optometrist has to clearly notify his 5377 1 patients as to what his authority is. 2 Just one more thing, Senator 3 LaValle noted to me that on page 4, Section 8, 4 on the notice to the patient, it lists a 5 detailed area which the medical society 6 requested, a series of language options that the 7 medical society requested to make it very clear 8 as to what the scope and authority of an 9 optometrist is, and that's Section 8, from lines 10 3 through line 24. 11 SENATOR DOLLINGER: On the bill, 12 Mr. President. 13 ACTING PRESIDENT KUHL: Senator 14 Dollinger on the bill. 15 SENATOR DOLLINGER: I thank 16 Senator Volker for continuing my enlightenment 17 through this process. I think I have been 18 talked to by just about every ophthalmologist in 19 Rochester and by every optometrist in Rochester 20 about this bill and what it means. 21 But I think, as my questions to 22 Senator Volker indicate, I am concerned about a 23 number of things in this bill. One is the issue 5378 1 of liability and access to liability insurance. 2 I know that one of the reasons 3 why -- at least it's my understanding - 4 optometry is a less expensive form of diagnosis 5 and treatment for some illnesses of the eye is 6 because, frankly, they are not carrying the 7 liability exposure that physicians carry. 8 In addition, I'm fearful that if 9 there were claims against optometrists under 10 this bill, that they wouldn't have access to the 11 medical liability coverage that we now provide 12 for physicians as excess coverage in the event 13 that there's significant judgments. 14 I note that that system is in 15 place as a way to shield physicians from 16 significant increases in their malpractice 17 policy, but I would like to think that consumers 18 who are perhaps unfortunately victimized, if 19 they would be -- by malpractice by optometrists, 20 would have access to the same availability of 21 funds. 22 I think optometry may also find 23 that once it gets in the business of providing 5379 1 these kinds of treatments that its malpractice 2 premiums significantly expands and the cost 3 savings that optometry might have experienced 4 will no longer be present because they will have 5 to pick up large increases in malpractice 6 insurance. 7 In addition, Senator Volker 8 pointed out at one point in response to my 9 question that the person who continues to bear 10 primary responsibility is the ophthalmologist, 11 and my concern is that the ophthalmologists will 12 only bear responsibility in instances in which 13 the optometrist may have already begun 14 treatment; and if there are conflicts between 15 the ophthalmologist and the optometrist about 16 the course of treatment or professional 17 judgments made by the ophthalmologist that the 18 treatment was inappropriate, we may have a very 19 serious apportionment problem in the liability 20 of malpractice claims brought by those who are 21 victimized, and I think, as we all know, the 22 danger in optometry and in ophthalmology is you 23 are dealing with sight. It's, frankly, 5380 1 something that, if you were to lose your sight, 2 I am fearful of significant judgments. 3 The final question that I am 4 concerned about is the classes of optometry and 5 how that system is going to work. I understand 6 that there has been a lot of effort put into 7 it. For myself, in dealing with scope of 8 practice issues, I agree, they are the most 9 difficult ones possible, because I am not an 10 ophthalmologist. I'm not a physician. I don't 11 have really any good information that I have in 12 my own personal experience about how to treat 13 eye disease, about how to treat problems whether 14 they be minor or major problems. 15 I do know that the physiology of 16 the eye is such that untreated or improperly 17 treated problems in the eye can cause very, very 18 significant consequences, and I sometimes 19 wonder, when we are called on to make these 20 scope of practice determinations. I don't know 21 that there is a right answer. I appreciate 22 those who have been working to try to get to 23 that right answer or whatever it may be. 5381 1 But at least on this one I'm 2 convinced that the training that an 3 ophthalmologist gets gives them a particular 4 expertise that in dealing with eye treatments we 5 ought to continue to respect. 6 I know that 12 states agree with 7 New York and prohibit any of the uses that are 8 contained in this bill. I think still there is 9 value in that. I think that as technology 10 expands, as we get further down the road, we 11 might be in a position three years, five years 12 from now, where we would look at this issue 13 again. 14 But at least at this stage, based 15 on the liability problems, the apportionment 16 problems, the prime responsibilities still rest 17 with an ophthalmologist. He is going to be held 18 liable for the primary care and the treating, 19 and yet he may run into problems in dealing with 20 the optometrist and the treatment in the course 21 of the treatment. 22 I still think that the thing to 23 do in this particular case is to say that we 5382 1 will continue to allow ophthalmologists to 2 provide the care and treatment for the eyes that 3 they have been trained to do. 4 So under those circumstances, I 5 will be voting in the negative. 6 ACTING PRESIDENT KUHL: Chair 7 recognizes Senator LaValle. 8 SENATOR LAVALLE: Thank you, Mr. 9 President. 10 As Senator Volker indicated, this 11 house last year passed this bill I would say 12 overwhelmingly, and the bill for really 13 technical reasons at the end of the legislative 14 session got caught up in a little administrative 15 detail like a message of necessity, or else this 16 bill would have been on the Governor's desk and 17 the final result, I don't know what would have 18 happened. I presume that the Governor would 19 have signed the bill. 20 I would first like to start by 21 thanking as I did last year the Committee on 22 Higher Education that has been really terrific 23 on matters of scope of practice issues. Many 5383 1 cases, there's a willingness to duck these 2 issues because they are very complex and they 3 deal with, very honestly, economics, many times 4 shifting dollars from one profession to another, 5 and so the committee last year developed a very 6 innovative procedure in bringing to Albany and 7 putting at the table those individuals who are 8 out in the marketplace dealing with patients, 9 and that is optometrists and ophthalmologists, 10 and it goes to Senator Dollinger's point that we 11 many times -- most times -- do not have the 12 expertise to deal with these matters, and so we 13 really were facilitators at the table to resolve 14 problems between the two professions, but in 15 every instance, we honored the expertise that 16 was brought to that table by the professions. 17 After a very, very long and 18 arduous set of negotiations, both the 19 optometrists and the ophthalmologists agreed 20 that this was in the best interest of their 21 projections. As Senator Volker said and as we 22 all know, practically, associations and groups 23 can support a bill but there will always be 5384 1 individuals who will have a disparate view on 2 that bill and that certainly was the case last 3 year and I think that is what has really driven 4 some of the debate this year. 5 Senator Dollinger, in listening 6 to the exchange that you and Senator Volker had, 7 I would simply say this. There are many things 8 that Senator Volker read into the record on the 9 patient notice. That language was put in very 10 specifically at the request of the medical 11 society, and there were other provisions, 12 whether it be standard of care or a very, very 13 restrictive and lockstep procedure on how you 14 get to treat a patient with glaucoma; and even 15 there, the field is narrowed to a set of drugs. 16 And so as we know, you can't have 17 both a sword and a shield at the same time in 18 terms of language. You can't say I want this 19 and then hide behind it and say, well, there is 20 possible litigation when you developed specific 21 standards of care, developed the educational 22 standards, the clinical standards, the 23 continuing education standards. All this was 5385 1 done in a give-and-take process. 2 This bill is not only the most 3 innovative in the country, but it is also very, 4 very restrictive. Part of the problem in this 5 debate is not the bill. It is the innovative 6 points that have been developed; and as Senator 7 Volker said, the real issue here is not the 8 issue between the ophthalmologists and the 9 optometrists but it is for future issues and 10 future debates and scope of practice. That's 11 what this debate in 1995 is all about. 12 We could not have listened to 13 people who negotiated a bill in '94 and then 14 listened in '95 and hear different things? Were 15 we deaf to these things that were being said? 16 Were we blind to what was being negotiated? The 17 answer is "not." Nor were the members who voted 18 for this bill. This bill did not change in the 19 period from 1994 to 1995. 20 There are provisions here as 21 Senator Volker issued that establish a review 22 process to say we have to go slow in our 23 deliberations here because we are moving in a 5386 1 very innovative way, even though we have 2 established a lockstep procedure in moving from 3 the use of Phase I drugs to Phase II drugs to 4 the kind of training and the number of patients 5 that you have to see in a clinical way of no 6 less than 75 patients -- the written 7 consultation. 8 I would say to you, Senator, that 9 we all respect your legal skills, but I would 10 say that, you know, in terms of the consultation 11 agreement, doesn't that contractual agreement 12 establish some sort of duty of care for the 13 parties? We have locked in the standard of 14 care, the level that we expect each person to 15 perform in that relationship, and so there will 16 always be issues to be argued in the courts for 17 those people who feel they've been harmed, but I 18 think that's outside of what this bill is all 19 about. 20 This bill is a scope of practice 21 bill. This bill is not a malpractice bill. 22 This bill deals with trying to provide some very 23 innovative things in broadening the level of 5387 1 care for our patients. 2 I remember last year Senator 3 Markowitz brought to the floor, as he does, in a 4 very spirited way, what does this mean for his 5 constituents? This means that for his 6 constituents there will be more opportunities to 7 diagnose eye problems, and it provides a very 8 specific lockstep procedure on how that patient 9 can get the best care should there be a 10 complicated situation. 11 This body, this Legislature, put 12 into law the fact that optometrists could use 13 topical drugs for diagnostic purposes. We 14 debated that very, very arduously, but it has 15 worked over these many, many years, and so we 16 say now we're ready for an additional step. 17 The work that Senator Volker has 18 done on this bill is exemplary. I think that 19 the people who had confidence in this bill, in 20 this language, in 1994 should have the same 21 level of confidence. Nothing has changed. The 22 words have not changed. The negotiations that 23 took place between the experts, the optometrists 5388 1 and the ophthalmologists are the same 2 negotiations and the same words in this bill. 3 So I would hope that the people 4 who supported this bill in 1994 will stay the 5 course because you were right in '94 and I think 6 you will be right in 1995. 7 ACTING PRESIDENT KUHL: Senator 8 Kruger. 9 SENATOR KRUGER: Yes, will 10 Senator Volker yield to a question? 11 ACTING PRESIDENT KUHL: Senator 12 Volker, do you yield to a question? 13 SENATOR VOLKER: Sure. 14 ACTING PRESIDENT KUHL: Senator 15 yields. 16 SENATOR KRUGER: Senator Volker, 17 it's a well-documented fact that both the 18 therapeutic as well the diagnostic drugs that 19 are used by the optometrists can and could have 20 an acute adverse effect on the patient. What 21 mechanism has been built in to deal with 22 problems like tachycardia, possible asthmatic 23 attack, mental status changes, that are 5389 1 associated with the use of some of these drugs? 2 SENATOR VOLKER: What method is 3 -- well, first of all, remember, that the 4 second phase of the bill, which I think is - 5 and there really isn't good documentation as to 6 extreme problems in the initial phase, the 7 optical phase -- and, by the way, there is a 8 nationwide experience on this that has shown 9 that there have been comparatively few problems 10 resulting from this type of limited, extremely 11 limited treatment. 12 But in the therapeutic side, 13 which is the second side, one reason why the 14 decision was made to use the collaborative - 15 the collaborative association with an 16 ophthalmologist -- let me also point out to you, 17 Senator, that the training of an optometrist is 18 very extensive. I think that it should be 19 understood that those that graduate from the 20 school of optometry have four years of post 21 graduate training and have treatment or have 22 education in how to deal with some of the very 23 problems that in fact you are talking about, 5390 1 very, very similar to what medical people have 2 to deal with; and so should there be any 3 untoward problems that they are advised -- that 4 they are advised, and they do learn about the 5 possibility of how to deal with that stuff on an 6 initial basis. 7 Clearly, they would then be 8 referred to a primary physician if there were 9 any such problems; and as they point out within 10 the bill, there is language in the bill that 11 talks about the need to refer those people 12 within five days, obviously, to an 13 ophthalmologist; and keep in mind that during 14 the period of the therapeutic treatment, you 15 have these limited -- the consultation and the 16 limited observation and so forth. 17 In addition to that, as part of 18 this bill, we have the continued training 19 occurring which will deal with -- continually 20 deal with some of those issues as the 21 optometrist gets into these issues which, you 22 know, could result in a potential for more 23 serious situations. 5391 1 I just want to while -- and in 2 response to you, because I think it's 3 important. I received a letter in September of 4 1992 from the vice-president of the Great 5 American Insurance Company, and he said, "For 6 years, we have monitored the experience in 7 therapeutic states versus nontherapeutic 8 states. Our data indicates that there are not 9 significant differences in the number and 10 severity of claims between therapeutic and non 11 therapeutic states." 12 The reason I mentioned that is 13 there have been states that have had therapeutic 14 treatment for many, many, many years; and, of 15 course, Senator, as you may be aware, our first 16 bill that passed this house and became law, 17 sponsored by Senator Kehoe that dealt with the 18 use of diagnostic drugs, was in 1983, and it has 19 been, you know, on the books of New York since 20 then, and the experience as far as anyone knows 21 and even the ophthalmologists admit has been 22 very, very good, and we have not had, to the 23 knowledge of virtually anyone, any severe 5392 1 problems. 2 We have had some certain 3 ophthalmologists who have come up with some 4 stories about problems with optometrists much of 5 which seems to be turf fighting more than 6 anything else, and that I think is part of the 7 problem here, so I think the answer to your 8 question is that there are a lot of -- not only 9 built into this bill but I think built in the 10 body of law already, what must be done should 11 anything of untoward nature happen. 12 SENATOR KRUGER: Again through 13 Mr. President. 14 ACTING PRESIDENT KUHL: Senator 15 Volker, do you continue to yield? 16 SENATOR VOLKER: Sure. 17 ACTING PRESIDENT KUHL: Senator 18 yields. 19 SENATOR KRUGER: Senator Volker, 20 on a hypothetical level, a patient comes into an 21 optometrist. The optometrist wants to perform 22 certain diagnostic procedures using these drugs 23 that we're talking about today. That 5393 1 individual, that patient, has an adverse 2 reaction to any of those drugs. If that same 3 patient was in the office of an ophthalmologist, 4 that ophthalmologist would obviously have life 5 saving drugs. He would also be able to 6 counteract some of the effects of the drugs that 7 were being used. He would also be able to 8 resuscitate a patient if need be. Where on the 9 other side of the coin, an optometrist's scope 10 of practice is very limited. His ability to use 11 any resuscitation or any other drugs is 12 nonexistent. What would happen in that kind of 13 a circumstance? 14 SENATOR VOLKER: Senator, I can't 15 think of an indication. We have not heard of 16 any such situation where an optometrist because 17 of the -- because of his observation, has been 18 in that kind of a situation, and I think the 19 ophthalmologists would probably be in a very 20 similar situation to what an optometrist would 21 be; and that is, would probably be consulting - 22 if he got an adverse reaction, would probably be 23 consulting a hospital or whatever to take that 5394 1 person there and to provide further treatment. 2 I think what you are saying to me 3 is if somebody has an adverse reaction, would he 4 be able to get further medical treatment, and 5 the answer is the ophthalmologist might not be 6 able to give him that further medical treatment 7 immediately either and would have to consult a 8 hospital or whatever to take that person because 9 he would not be able to deal necessarily with 10 every emergency. 11 The optometrist, I think, is 12 educated to then refer that person or get 13 immediate help for that person just, I think, as 14 an ophthalmologist would. I don't think the 15 ophthalmologists necessarily would be able to 16 deal with the absolute emergency any more than 17 an optometrist would. 18 SENATOR KRUGER: On the bill, Mr. 19 President. 20 ACTING PRESIDENT KUHL: Senator 21 Kruger on the bill. 22 SENATOR KRUGER: Mr. President. 23 Everyone seems to be raising the issues that 5395 1 have been discussed many, many times concerning 2 this particular piece of legislation. If we 3 look at the current status of it, the Medical 4 Society of the State of New York is opposed to 5 this bill that is in front of us today. 6 Secondly, when we want to raise 7 issue with the question of standard of care, an 8 individual, a consumer, a patient, that is 9 coming to an optometrist is coming to an 10 optometrist, theoretically, for a cursory eye 11 examination and perhaps being fitted for 12 glasses. 13 We do now approach the question 14 of glaucoma with mass screening tests, which is 15 basically nothing more than a puff of air to 16 determine whether or not there is a measurable 17 difference and, consequently, the person would 18 be referred to an ophthalmologist for further 19 examination and treatment. 20 There is a question now, not the 21 question of turf, but the question of what is 22 appropriate care for a patient to get when 23 they're visiting that particular physician. We 5396 1 wouldn't go to a podiatrist if we had a broken 2 leg. The same way is we shouldn't go to an 3 optometrist if there is an eye problem. An eye 4 disease should be treated by a doctor, a doctor 5 that has premed, a doctor that has gone to 6 medical school, a doctor that has a fellowship 7 in ophthalmology, and a doctor that hopefully is 8 board certified in ophthalmology. 9 Today, we have an opportunity to 10 raise issue with, when we talk about managed 11 care, the direction that health care will take 12 in the future, because what we're doing is we're 13 opening up a door; and we're opening up a door 14 to what I call paramedicine, whether it's a 15 paralegal that is going to take more and more 16 workload off of an attorney or whether it's 17 another health care professional that is going 18 to take an additional workload and additional 19 patient care away from the person that is most 20 trained to handled that particular medical 21 problem, in this case, a licensed physician, an 22 ophthalmologist. 23 I think this is a bad bill. It 5397 1 is a bad bill for a lot of reasons; but, most 2 importantly, I think it's a bad bill because 3 we're not addressing one issue and one issue 4 only, the question of quality of care and scope 5 of care; and I think that the Medical Society of 6 the State of New York has made a very persuasive 7 argument that the question should be revisited 8 and we should not in any way support this 9 legislation today. 10 Thank you. 11 ACTING PRESIDENT KUHL: The 12 Secretary will read the last section. 13 Excuse me. Senator Volker. 14 SENATOR VOLKER: Mr. President. 15 Let me just finish up by saying very quickly - 16 ACTING PRESIDENT KUHL: Senator 17 Volker to close. 18 SENATOR VOLKER: I understand the 19 concern and I think Senator LaValle, I think, 20 put it much better than I would really be able 21 to have been able to put it; and that is, that 22 this is an historic bill, although historic as 23 it may be, it is not as if this is something 5398 1 altogether new; and when you start talking about 2 treatment of eyes or examinations, it's 3 something that has been done in this state since 4 1983. 5 And I think that -- I guess in 6 response to Senator Kruger, let me tell you, 7 Senator, the education that is done today of 8 optometrists is altogether different from what 9 was done some years ago. An optometrist in the 10 college of optometry, particularly in this 11 state, which is considered one of the 12 major 12 optometry colleges in the country, gets 13 basically the same kind of training that an 14 ophthalmologist gets. Maybe not on the same 15 detail, but on the other hand the scope of 16 authority that is given even by this bill is 17 much, much more limited. 18 The experience in states that 19 have had even broader bills than this one has 20 been that the kind of problems that you are 21 describing just have not occurred or have 22 occurred in extremely limited fashion. The 23 truth is that what this bill will do is to 5399 1 expand the ability of people in many areas of 2 this state to get further and, in many cases, 3 better treatment not because the optometrists 4 can necessarily give totally better treatment 5 than the ophthalmologists but the 6 ophthalmologist is not available. Certainly 7 will cause the cost of health care in this area 8 to decrease because a lot of the treatment that 9 is being done by ophthalmologists, I think many 10 who are familiar with the field would agree, is 11 not necessarily necessary. 12 Let me just quote to you, and I 13 hesitate to do this, because ophthalmologists 14 get upset when this is done, but it's a fact of 15 what happened last year. The president of the 16 ophthalmological society said after this bill 17 was agreed to and he had said grudgingly because 18 of turf problems and so forth that he was 19 reluctant, but he admitted that this bill was 20 the most innovative and restrictive bill in the 21 country; and despite the fact that he knew some 22 of his members had problems, he had to admit 23 that this bill was a move in the right 5400 1 direction, depending I guess on your perspective 2 and especially I think because of something, as 3 I said, you should understand, that two out of 4 three examinations that are made in this state 5 of eyes are made by optometrists anyway, and we 6 have to move to deal with those kind of issues, 7 otherwise we may in the long run be creating 8 greater problems for ourselves. 9 Let me just read to you -- a note 10 was handed to me here. I was just about to read 11 to you something which -- a statement from the 12 Health Department. Now, this Health Department 13 under the present governor has not yet taken a 14 position, but the Health Department under the 15 past Commissioner, Axelrod, stated, "This 16 legislation will encourage and facilitate 17 greater access to health care of services while 18 insuring the quality of services provided by 19 health care providers. We believe this 20 legislation will promote better access to vision 21 care services in New York State, including among 22 segments of our population which have been 23 historically underserved and in underserved 5401 1 geographic areas. This legislation may also 2 reduce or limit increase in the cost of vision 3 care services provided by publicly financed 4 health care programs for eye care for the 5 beneficiaries of such programs." 6 I can give you some other 7 statements, but I think that speaks for itself. 8 I would not, in fact, sponsor or support 9 legislation like this unless I truly believed 10 that this legislation is in the best interest of 11 the consumers of this state and of the health 12 care of the people of this state. 13 Thank you. 14 ACTING PRESIDENT KUHL: Secretary 15 will read the last section. 16 THE SECRETARY: Section 6. This 17 act shall take effect on the 120th day. 18 ACTING PRESIDENT KUHL: Call the 19 roll. 20 (The Secretary called the roll.) 21 ACTING PRESIDENT KUHL: Those in 22 the negative please raise their hands. 23 The chair recognizes Senator 5402 1 Hoffmann to explain her vote. 2 SENATOR HOFFMANN: Thank you, Mr. 3 President. 4 I listened with great interest to 5 what Senator Volker said and, as always, it is a 6 very thoughtful and well-researched issue as he 7 presented it, but I have in my hands a copy of a 8 letter from the chairman of the Department of 9 Ophthalmology at the State University of New 10 York Health Science Center in Syracuse in which 11 he restates his position and that of the 12 department in opposition to this bill, and I 13 will just recap one brief element of this letter 14 in which he states -- this is Dr. John A. Hepner 15 -- states that allowing nonphysicians to 16 practice medicine seriously compromises the 17 quality of medical eye care in New York State 18 and unnecessarily poses a potential significant 19 threat to public safety. 20 I did listen to the list of drugs 21 that would be allowed to be prescribed by non 22 physicians under this measure, if passed, and it 23 causes me great concern, and I will, therefore, 5403 1 respect the wishes of Dr. Hepner and the 2 Department of Ophthalmology, once again, and I 3 will cast my vote in the negative. 4 ACTING PRESIDENT KUHL: Senator 5 Hoffmann in the negative. 6 Senator Jones to explain her 7 vote. 8 SENATOR JONES: Yes. I would 9 just like to explain that Senator LaValle said 10 something about somebody being blind and deaf. 11 I am willing to admit that I was last year. I 12 was of the opinion that it was agreed upon, and 13 yet that's not the information I am getting this 14 year. My concerns, and I've listened to both 15 sides of this debate -- but my concerns continue 16 to be -- Senator Dollinger asked about how I 17 would know as a consumer when I go to the 18 optometrist whether or not they were Phase I or 19 Phase II. I guess I am uncomfortable that a 20 sign on the wall is going to be enough. 21 I'm also concerned that no one 22 brought up today the issue of HMOs. I guess I 23 feel as we're clearly headed more and more to 5404 1 that system, I guess the referral process in 2 here is a concern to me. We would now have a 3 nonphysician in charge of this referral; and, 4 currently, you go to your family doctor that is 5 a doctor, and he is the one who says you need a 6 specialist. I'm concerned how this would play 7 out under an HMO system. 8 I did contact the current 9 Commissioner of Health because, again, I admit 10 I'm not a medical person, and I don't have that 11 kind of expertise, so I did put it in writing to 12 the Commissioner of Health and ask for her 13 opinion on this particular bill; and as you 14 indicated, she has not, obviously, come up with 15 a position yet. 16 So with the information that I 17 have this year, I definitely do not feel 18 comfortable supporting this bill, so I'm going 19 to be voting in the negative. 20 ACTING PRESIDENT KUHL: Senator 21 Jones in the negative. 22 Announce the results. 23 THE SECRETARY: Those recorded in 5405 1 the negative on Calendar Number 103 are Senators 2 Babbush, Cook, DeFrancisco, Dollinger, Farley, 3 Goodman, Hoblock, Hoffmann, Jones, Kruger, Levy, 4 Marcellino, Maziarz, Nozzolio, Oppenheimer, 5 Padavan, Present, Saland, Skelos, Stafford and 6 Senator Tully. Ayes 37. Nays 21. 7 ACTING PRESIDENT KUHL: The bill 8 is passed. 9 Chair recognizes Senator Skelos. 10 SENATOR SKELOS: Yes, Mr. 11 President. There will be an immediate meeting 12 of the Crime Victims Committee in Room 332 13 followed by a Transportation Committee meeting 14 in Room 332; and a reminder that the Education 15 Committee will meet at 1:00 o'clock in Room 16 124. Energy Committee will meet 1:00 o'clock in 17 Room 307 of the LOB. 18 Mr. President. Could you 19 recognize Senator Montgomery. 20 ACTING PRESIDENT KUHL: For those 21 listening, there will be an immediate meeting of 22 the Crime and Corrections in Room 332 to be 23 immediately followed by the Transportation 5406 1 Committee in the same room, 332. There will be 2 an Energy Committee meeting at 1:00 o'clock in 3 Room 307 of the Legislative Office Building, and 4 there will be an Education Committee meeting in 5 Room 124 of the Capitol. 6 Chair recognizes Senator 7 Paterson. 8 Excuse me. Senator Montgomery. 9 SENATOR MONTGOMERY: Thank you. 10 Mr. President, I would like unanimous consent to 11 be recorded in the negative on Calendar 367. 12 ACTING PRESIDENT KUHL: Without 13 objection, Senator Montgomery will be recorded 14 in the negative on Calendar Number 367. 15 Senator Johnson. 16 SENATOR JOHNSON: Without 17 objection, I ask to cast my vote in the negative 18 on Calendar Number 303. 19 ACTING PRESIDENT KUHL: Without 20 objection, Senator Johnson will be recorded in 21 the negative on Calendar Number 303. 22 Senator Skelos. 23 SENATOR SKELOS: Mr. President. 5407 1 Is there any other housekeeping at the desk? 2 ACTING PRESIDENT KUHL: Secretary 3 informs me that all the housekeeping has been 4 taken care of, Senator Skelos. 5 SENATOR SKELOS: Therefore, there 6 being no further business, I move we adjourn 7 until Wednesday, May 3, 1995, at 10:00 a.m. 8 sharp. 9 ACTING PRESIDENT KUHL: Without 10 objection, the Senate stands adjourned until 11 tomorrow, Wednesday, May 3, at 10:00 -- I 12 repeat, 10:00 a.m. 13 (Whereupon, at 12:40 p.m., Senate 14 adjourned.) 15 16 17 18 19