1601
1 NEW YORK STATE SENATE
2
3
4 THE STENOGRAPHIC RECORD
5
6
7
8
9 ALBANY, NEW YORK
10 March 17, 2021
11 3:08 p.m.
12
13
14 REGULAR SESSION
15
16
17
18 SENATOR SHELLEY B. MAYER, Acting President
19 ALEJANDRA N. PAULINO, ESQ., Secretary
20
21
22
23
24
25
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1 P R O C E E D I N G S
2 ACTING PRESIDENT MAYER: The Senate
3 will come to order.
4 I ask everyone present to please
5 rise and recite the Pledge of Allegiance.
6 (Whereupon, the assemblage recited
7 the Pledge of Allegiance to the Flag.)
8 ACTING PRESIDENT MAYER: In the
9 absence of clergy, let us bow our heads in a
10 moment of silent reflection or prayer.
11 (Whereupon, the assemblage respected
12 a moment of silence.)
13 ACTING PRESIDENT MAYER: Reading of
14 the Journal.
15 THE SECRETARY: In Senate, Tuesday,
16 March 16, 2021, the Senate met pursuant to
17 adjournment. The Journal of Monday, March 15,
18 2021, was read and approved. On motion, Senate
19 adjourned.
20 ACTING PRESIDENT MAYER: Without
21 objection, the Journal stands approved as read.
22 ACTING PRESIDENT MAYER:
23 Presentation of petitions.
24 Messages from the Assembly.
25 Messages from the Governor.
1603
1 Reports of standing committees.
2 Reports of select committees.
3 Communications and reports from
4 state officers.
5 Motions and resolutions.
6 Senator Gianaris.
7 SENATOR GIANARIS: Thank you,
8 Madam President.
9 Amendments are offered to the
10 following Third Reading Calendar bills:
11 Sponsored by Senator
12 Reichlin-Melnick, page 25, Calendar 444,
13 Senate 3967.
14 And by Senator Thomas, on page 33,
15 Calendar 535, Senate 4265.
16 ACTING PRESIDENT MAYER: The
17 amendments are received, and the bills shall
18 retain their place on the Third Reading Calendar.
19 SENATOR GIANARIS: On behalf of
20 Senator Rivera, I wish to call up Senate Print
21 4893, recalled from the Assembly, which is now at
22 the desk.
23 ACTING PRESIDENT MAYER: The
24 Secretary will read.
25 THE SECRETARY: Calendar Number
1604
1 372, Senate Print 4893, by Senator Rivera, an act
2 to amend the Public Health Law.
3 SENATOR GIANARIS: I now move to
4 reconsider the vote by which the bill was passed.
5 ACTING PRESIDENT MAYER: The
6 Secretary will call the roll on reconsideration.
7 (The Secretary called the roll.)
8 THE SECRETARY: Ayes, 56.
9 ACTING PRESIDENT MAYER: The bill
10 is restored to its place on the Third Reading
11 Calendar.
12 SENATOR GIANARIS: I offer the
13 following amendments.
14 ACTING PRESIDENT MAYER: The
15 amendments are received.
16 SENATOR GIANARIS: At this time,
17 Madam President, can we take up the reading of
18 the calendar.
19 ACTING PRESIDENT MAYER: The
20 Secretary will read.
21 THE SECRETARY: Calendar Number
22 187, Senate Print 671, by Senator Sanders, an act
23 to amend the Banking Law.
24 ACTING PRESIDENT MAYER: Read the
25 last section.
1605
1 THE SECRETARY: Section 2. This
2 act shall take effect on the 60th day after it
3 shall have become a law.
4 ACTING PRESIDENT MAYER: Call the
5 roll.
6 (The Secretary called the roll.)
7 ACTING PRESIDENT MAYER: Announce
8 the results.
9 THE SECRETARY: In relation to
10 Calendar Number 187, those Senators voting in the
11 negative are Senators Akshar, Borrello, Boyle,
12 Gallivan, Griffo, Helming, Jordan, Lanza,
13 Martucci, Mattera, Oberacker, O'Mara, Ortt,
14 Palumbo, Rath, Ritchie, Serino, Stec, Tedisco and
15 Weik.
16 Ayes, 43. Nays, 20.
17 ACTING PRESIDENT MAYER: The bill
18 is passed.
19 THE SECRETARY: Calendar Number
20 213, Senate Print 2004, by Senator Jackson, an
21 act to amend the Public Officers Law.
22 ACTING PRESIDENT MAYER: Read the
23 last section.
24 THE SECRETARY: Section 2. This
25 act shall take effect on the first of September.
1606
1 ACTING PRESIDENT MAYER: Call the
2 roll.
3 (The Secretary called the roll.)
4 ACTING PRESIDENT MAYER: Senator
5 Tedisco to explain his vote.
6 SENATOR TEDISCO: Thank you,
7 President, President and my colleagues.
8 This bill deals with a significant
9 and serious issue and concern. And in some ways
10 I think it purports to solve the problem of a
11 lack of openness and transparency and honesty as
12 we relate to the FOIL system, Freedom of
13 Information Act, and the open government laws in
14 New York State.
15 I hasten to say that we have an
16 Executive on the second floor, a Governor, who's
17 a pretty good communicator -- such a good
18 communicator and such a good actor that our
19 friends in Hollywood gave him an Emmy.
20 Well, he may deserve an Emmy for
21 communication and acting, but he will never get
22 an Emmy for transparency, openness and honesty.
23 In fact, if anybody within listening range of me
24 is interested in whether an Emmy can tarnish,
25 probably all you have to do is go to his office
1607
1 and look on the mantel, and you'll find out it
2 can tarnish very quickly, and so can somebody's
3 reputation who lies, distorts, covers up and
4 hides the truth.
5 This particular bill is serious in
6 relationship to the issue it purports to solve.
7 It's not serious about doing it, though, and I'll
8 tell you why.
9 Maybe you have had the experience I
10 have had, the media has had, groups have had to
11 try to FOIL for information that should be given
12 and open to the public, a hallmark of our
13 representative democracy. I can tell you what
14 the game plan is every single time I've done
15 that. Every single time I've done that, an
16 administrator, a commissioner, a decisionmaker
17 who I tried to FOIL for information -- and I'm
18 pretty sure a lot of my colleagues may have had
19 the same thing happen to them, or the media --
20 they keep moving the goalposts farther and
21 farther and farther down the field -- in fact, so
22 far it's outside of the stadium. And sometimes
23 you can never get the information.
24 The most egregious example of that
25 is being investigated right now, and it should be
1608
1 investigated right now. We didn't lose 7,000 or
2 8,000 people, our most vulnerable population, one
3 of the worst tragedies -- one of the worst
4 tragedies in the history of New York State -- we
5 lost 15,000 of our most vulnerable population in
6 nursing homes.
7 You know how long it took to get
8 that information from Freedom of Information in
9 the FOIL process? Forever. The only reason why
10 we got it is because the AG did an investigation
11 and she came out and said: 50 percent
12 undercount, it's not 7,000 or 8,000, it's 15,000.
13 I had the opportunity, with the
14 Empire Center -- and by the way, we had hearings,
15 we asked Commissioner Zucker for the answers, we
16 FOIL'd him, the Empire Center FOIL'd about six to
17 eight months ago. The goalposts kept moving: We
18 can't give you the answer this month. Two more
19 months, can't give you then answer then. Two
20 more months.
21 So what did they do, the
22 Empire Center? They sued the Governor, DOH,
23 Commissioner Zucker, the State of New York. And
24 I'm told it's $5,000 to $10,000, the legal fees,
25 to do that.
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1 Judge Kimberly O'Connor, after those
2 six to eight months, came back with a directive,
3 a judgment. You know what she said? The
4 Governor, State of New York, Zucker, DOH violated
5 the Open Government Law. Let me repeat that:
6 Violated the open government law, and you have to
7 give those numbers.
8 Well, they gave them. That's why we
9 know it wasn't 7,000 deaths, it was 15,000 deaths
10 and may still be rising right now.
11 But she said something else. The
12 Governor, State of New York, you have to pay
13 those legal fees. You know what? The Governor
14 didn't pay any legal fees. Commissioner Zucker
15 didn't pay any legal fees. DOH didn't pay any
16 legal fees. The taxpayers who I'm talking to now
17 paid the legal fees. They're all indemnified.
18 Time and time and time again when
19 they defy the Open Government Law, they don't
20 give that information out that the public has the
21 right to know in a timely and orderly fashion,
22 nobody pays the penalty here in New York State.
23 They just go about their ways. Nothing to see
24 here, just keep right on going.
25 Well, the taxpayers paid $5,000 to
1610
1 $10,000 for those legal fees. It was the penalty
2 that the judge gave -- not to the taxpayers, but
3 they paid it.
4 This bill basically says, Well, we
5 make a mistake out here -- which is not a
6 mistake, defying the Open Government Law -- and
7 we catch you at it, we're just going to use
8 taxpayers' money more often to pay for the
9 mistake that they make -- not a mistake, I'm
10 sorry I said that -- the denial that they make.
11 That's wrong. That doesn't give
12 them the impetus or the desire to do what's
13 right. And that's when you get a FOIL, you are
14 asked for information that should be public
15 information -- especially when 15,000 of our most
16 vulnerable population die because of an executive
17 order or a good portion of it on March 25th. And
18 then sometime in April, he says, Ah, we're going
19 rescind that, we made a little bit of a mistake.
20 Yeah, that's a little bit of a
21 mistake. And then you write a book and because
22 it doesn't fit your narrative, you hide those
23 numbers for eight months to 10 months and we've
24 got to sue the State of New York for that.
25 We can't continue this. This bill
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1 does not solve that. You know what solves that?
2 Not a violation if you don't give the information
3 to the public they deserve, a real penalty.
4 In other words, the judge should
5 have been able to say, Hey, you broke the law,
6 you violated the Open Government Law, you
7 violated the Freedom of Information Act.
8 Governor, you got to pay $500. That's your fine,
9 $500. Not from your campaign fund, not from
10 taxpayers' dollars, not from an indemnification.
11 Commissioner Zucker, you've got to pay $500. Not
12 of taxpayers' dollars, you're denying this
13 information. You have an obligation above and
14 beyond everybody to adhere to the law.
15 And this Open Government Law, this
16 transparency law is extremely important. Because
17 we can see what happens when they go unabated,
18 when we didn't know that it wasn't 7,000, that it
19 was larger and larger and kept growing and
20 growing.
21 Now, we could have involved
22 ourselves more, but they wouldn't give us the
23 numbers. DOH wouldn't, the commissioner
24 wouldn't, the Governor wouldn't. And you know
25 what? When the judge made that determination and
1612
1 said you have to pay for the legal fees, that
2 poured salt in the wounds of taxpayers of this
3 state, of all New Yorkers, but most of all of the
4 family members who lost those 15,000 loved ones
5 because of the situation and the numbers and the
6 lying and distortion and cover-up that took
7 place.
8 It poured salt in their wounds
9 because they didn't get any justice. It was
10 their tax dollars. It was their loved ones who
11 lost their lives. And who paid the fine for the
12 legal fees?
13 Well, we have an investigation now.
14 Hopefully that investigation will lead us to do a
15 real bill, a serious bill that says we as elected
16 officials who make the laws have to adhere to the
17 laws. And when it's public information, we have
18 to provide that public information.
19 Madam President, I'm going to vote
20 no on this bill. But you bring a bill to the
21 floor that gives a real penalty for Governors and
22 for decisionmakers and for commissioners and for
23 elected officials who hide the truth and public
24 information. I'll vote for that on any day.
25 But I vote no on this bill today.
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1 Thank you, Madam Speaker --
2 President.
3 ACTING PRESIDENT MAYER: Senator
4 Tedisco to be recorded in the negative.
5 Announce the results.
6 THE SECRETARY: In relation to
7 Calendar 213, those Senators voting in the
8 negative are Senators Gallivan, Lanza and
9 Tedisco.
10 Ayes, 60. Nays, 3.
11 ACTING PRESIDENT MAYER: The bill
12 is passed.
13 THE SECRETARY: Calendar Number
14 321, Senate Print 1114, by Senator Liu, an act to
15 amend the Public Authorities Law, the Executive
16 Law, and the Public Officers Law.
17 ACTING PRESIDENT MAYER: Read the
18 last section.
19 THE SECRETARY: Section 9. This
20 act shall take effect on the 120th day after it
21 shall have become a law.
22 ACTING PRESIDENT MAYER: Call the
23 roll.
24 (The Secretary called the roll.)
25 ACTING PRESIDENT MAYER: Announce
1614
1 the results.
2 THE SECRETARY: Ayes, 63.
3 ACTING PRESIDENT MAYER: The bill
4 is passed.
5 THE SECRETARY: Calendar Number
6 328, Senate Print 78A, by Senator Hoylman, an act
7 to amend the Elder Law.
8 ACTING PRESIDENT MAYER: Read the
9 last section.
10 THE SECRETARY: Section 2. This
11 act shall take effect immediately.
12 ACTING PRESIDENT MAYER: Call the
13 roll.
14 (The Secretary called the roll.)
15 ACTING PRESIDENT MAYER: Announce
16 the results.
17 THE SECRETARY: In relation to
18 Calendar 328, those Senators voting in the
19 negative are Senators Akshar, Borrello, Lanza,
20 O'Mara and Ortt.
21 Ayes, 58. Nays, 5.
22 ACTING PRESIDENT MAYER: The bill
23 is passed.
24 THE SECRETARY: Calendar Number
25 447, Senate Print 4064, by Senator Gaughran, an
1615
1 act to amend the Town Law.
2 ACTING PRESIDENT MAYER: Read the
3 last section.
4 THE SECRETARY: Section 2. This
5 act shall take effect immediately.
6 ACTING PRESIDENT MAYER: Call the
7 roll.
8 (The Secretary called the roll.)
9 ACTING PRESIDENT MAYER: Announce
10 the results.
11 THE SECRETARY: In relation to
12 Calendar 447, voting in the negative:
13 Senator Griffo.
14 Ayes, 62. Nays, 1.
15 ACTING PRESIDENT MAYER: The bill
16 is passed.
17 THE SECRETARY: Calendar Number
18 489, Senate Print 3132, by Senator Kavanagh, an
19 act to amend the Private Housing Finance Law.
20 ACTING PRESIDENT MAYER: Read the
21 last section.
22 THE SECRETARY: Section 2. This
23 act shall take effect immediately.
24 ACTING PRESIDENT MAYER: Call the
25 roll.
1616
1 (The Secretary called the roll.)
2 ACTING PRESIDENT MAYER: Senator
3 Kavanagh to explain his vote.
4 SENATOR KAVANAGH: Thank you,
5 Madam President. Just very briefly.
6 This is a bill that would create the
7 New York Main Street Development Center. It is
8 based on an existing program that the Homes and
9 Community Renewal runs, but the purpose of the
10 bill would be to codify that program and ensure
11 that it has the resources necessary to serve the
12 purpose of this program.
13 The purpose being to make sure that
14 our smaller communities, our traditional Main
15 Street areas have the resources they need to
16 redevelop, to develop affordable housing, and
17 also to develop business opportunities that serve
18 low- and moderate-income in those communities.
19 So it's an important initiative, and
20 I thank my colleagues for supporting it today and
21 note that, you know, this is a bipartisan bill.
22 I'm joined by Senator Helming, the ranking member
23 of the Housing Committee, and many colleagues in
24 supporting it.
25 But thank you. I vote aye.
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1 ACTING PRESIDENT MAYER: Senator
2 Kavanagh to be recorded in the affirmative.
3 Announce the results.
4 THE SECRETARY: Ayes, 63.
5 ACTING PRESIDENT MAYER: The bill
6 is passed.
7 THE SECRETARY: Calendar Number
8 514, Senate Print 2986, by Senator Brouk, an act
9 to amend the Penal Law.
10 ACTING PRESIDENT MAYER: Read the
11 last section.
12 THE SECRETARY: Section 3. This
13 act shall take effect on the first of January.
14 ACTING PRESIDENT MAYER: Call the
15 roll.
16 (The Secretary called the roll.)
17 ACTING PRESIDENT MAYER: Senator
18 Brouk to explain her vote.
19 SENATOR BROUK: Thank you,
20 Madam President. Good afternoon.
21 I think it's important to highlight
22 the importance of this bill. As we live in an
23 increasingly digital world, especially as
24 COVID-19 has forced many of us to communicate
25 with friends, loved ones and colleagues
1618
1 extensively through our phones and our computers.
2 And if we are truly to protect ourselves and our
3 children, New York State's laws have to keep up
4 with the ways that our interaction with
5 technology is changing.
6 The use of sexually explicit images
7 to harm and threaten people -- a crime largely
8 committed against women, teenagers and LGBTQ
9 individuals -- is an emerging and increasing
10 threat that must be addressed by our state. So
11 many of our laws fail to take into account the
12 gendered nature of crimes, and they rarely offer
13 protection for women and our LGBTQ communities,
14 who are especially vulnerable to this type of
15 exploitation.
16 The responsibility to prove harm, to
17 seek justice, and to figure out how to survive
18 these devastating experiences is a lonely and
19 often difficult road for victims. And that's why
20 the passing of this bill today is such a powerful
21 statement by the Senate. And that this type of
22 coercion and harassment is not okay, and that we
23 are willing to stand up to protect those most
24 vulnerable to sexual exploitation.
25 I thank my colleagues for their
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1 support and attention to this really, really
2 important matter. Thank you.
3 ACTING PRESIDENT MAYER: Senator
4 Brouk to be recorded in the affirmative.
5 Announce the results.
6 THE SECRETARY: In relation to
7 Calendar Number 514, voting in the negative:
8 Senator Brisport.
9 Ayes, 62. Nays, 1.
10 ACTING PRESIDENT MAYER: The bill
11 is passed.
12 THE SECRETARY: Calendar Number
13 519, Senate Print 4086, by Senator Hinchey, an
14 act to amend the Tax Law.
15 SENATOR LANZA: Lay it aside.
16 ACTING PRESIDENT MAYER: Lay it
17 aside.
18 THE SECRETARY: Calendar Number
19 533, Senate Print 5305, by Senator
20 Reichlin-Melnick, an act to amend Chapter 83 of
21 the Laws of 1995.
22 ACTING PRESIDENT MAYER: Read the
23 last section.
24 THE SECRETARY: Section 2. This
25 act shall take effect immediately.
1620
1 ACTING PRESIDENT MAYER: Call the
2 roll.
3 (The Secretary called the roll.)
4 ACTING PRESIDENT MAYER: Announce
5 the results.
6 THE SECRETARY: In relation to
7 Calendar Number 533, voting in the negative:
8 Senator Lanza.
9 Ayes, 62. Nays, 1.
10 ACTING PRESIDENT MAYER: The bill
11 is passed.
12 THE SECRETARY: Calendar Number
13 543, Senate Print 3762, by Senator Breslin, an
14 act to amend the Public Health Law.
15 SENATOR LANZA: Lay it aside.
16 ACTING PRESIDENT MAYER: Lay it
17 aside.
18 Senator Gianaris, that completes the
19 reading of today's calendar.
20 SENATOR GIANARIS: Can we move to
21 the reading of the controversial calendar,
22 please.
23 ACTING PRESIDENT MAYER: The
24 Secretary will ring the bell.
25 The Secretary will read.
1621
1 THE SECRETARY: Calendar Number
2 519, Senate Print 4086, by Senator Hinchey, an
3 act to amend the Tax Law.
4 ACTING PRESIDENT MAYER: Senator
5 Lanza, why do you rise?
6 SENATOR LANZA: Madam President, I
7 believe there's an amendment at the desk. I
8 waive the reading of that amendment and ask that
9 you recognize Senator Weik to be heard.
10 ACTING PRESIDENT MAYER: Thank you,
11 Senator Lanza.
12 Upon review of the amendment, in
13 accordance with Rule 6, Section 4B, I rule it
14 nongermane and out of order at this time.
15 SENATOR LANZA: Accordingly,
16 Madam President, I appeal the ruling of the chair
17 and ask that you recognize Senator Weik.
18 ACTING PRESIDENT MAYER: The appeal
19 has been made and recognized, and Senator Weik
20 may be heard.
21 SENATOR WEIK: Thank you,
22 Madam President.
23 The bill-in-chief would establish a
24 gift for a substance use disorder education and
25 recovery. This amendment is germane because over
1622
1 the past year, the impact of the pandemic and so
2 many of the Governor's mandates have led to an
3 increase of substance abuse and mental health
4 issues.
5 So many have struggled and continue
6 to struggle due to the many restrictions and
7 edicts passed down by the Governor over the last
8 year. We can all agree some were and still are.
9 Many were done at the whim of the Governor and
10 his inner circle, with little scientific or
11 factual evidence.
12 And many of those unnecessary
13 mandates that continue to harm us are still in
14 effect because our colleagues across the aisle
15 continue to refuse to take a vote on this
16 amendment that would actually strip the Governor
17 of his emergency powers.
18 The bill that was passed in this
19 house just a few weeks ago just didn't do what we
20 need it to do, and that is to truly restore the
21 Legislature as a coequal branch of government.
22 During that debate many of these
23 unnecessary directives came up, such as the need
24 to buy food with alcoholic drinks or arbitrary
25 curfews for restaurants and gyms, and colleagues
1623
1 on both sides of the aisle agree there's no basis
2 for them. But they remain in effect today
3 because despite the claims by the Majority, the
4 Governor continues to call all the shots.
5 We are well past the time to truly
6 remove the Governor's powers, especially now with
7 mounting investigations, scandals, and
8 allegations that have severely compromised his
9 ability to lead, at a time when this state is
10 demanding leadership.
11 He is under increased pressure to
12 resign, and there is an impeachment investigation
13 launched by the Assembly. What is guiding his
14 decision making process at this critical time?
15 It is a time that the Governor is more concerned
16 with his own political future than the interests
17 of New Yorkers.
18 New Yorkers need and deserve better.
19 For this reason, Mr. -- Ms. -- Madam President,
20 excuse me, I strongly urge you to reconsider your
21 ruling, and I urge all my colleagues to support
22 this amendment.
23 ACTING PRESIDENT MAYER: Thank you,
24 Senator.
25 I want to remind the house that the
1624
1 vote is on the procedures of the house and the
2 ruling of the chair.
3 Those in favor of overruling the
4 chair signify by saying aye.
5 SENATOR LANZA: Request a show of
6 hands.
7 SENATOR GIANARIS: Madam President,
8 we've agreed to waive the showing of hands and
9 record each member of the Minority in the
10 affirmative.
11 ACTING PRESIDENT MAYER: Without
12 objection, so ordered.
13 Announce the results.
14 THE SECRETARY: Ayes, 20.
15 ACTING PRESIDENT MAYER: The ruling
16 of the chair stands, and the bill-in-chief is
17 before the house.
18 Are there any other Senators wishing
19 to be heard?
20 Seeing and hearing none, debate is
21 closed. The Secretary will ring the bell.
22 Read the last section.
23 THE SECRETARY: Section 4. This
24 act shall take effect immediately.
25 ACTING PRESIDENT MAYER: Call the
1625
1 roll.
2 (The Secretary called the roll.)
3 ACTING PRESIDENT MAYER: Announce
4 the results.
5 THE SECRETARY: Ayes, 63.
6 ACTING PRESIDENT MAYER: The bill
7 is passed.
8 THE SECRETARY: Calendar Number
9 543, Senate Print 3762, by Senator Breslin, an
10 act to amend the Public Health Law.
11 ACTING PRESIDENT MAYER: Senator
12 Palumbo.
13 SENATOR PALUMBO: Thank you,
14 Madam President. Will the sponsor yield for a
15 few questions, please.
16 ACTING PRESIDENT MAYER:
17 Senator Breslin, do you yield?
18 SENATOR BRESLIN: Certainly.
19 ACTING PRESIDENT MAYER: The
20 Senator yields.
21 SENATOR PALUMBO: Thank you,
22 Senator Breslin. How are you? Nice to see you.
23 SENATOR BRESLIN: Good. And you?
24 SENATOR PALUMBO: I have a few
25 questions, if I may, regarding this bill.
1626
1 And just generally, it looks as
2 though there will be a lot of impact on possibly
3 costs on the industry. So is there any sort of a
4 fiscal impact statement with regard to the
5 impacts on either the industry, the state or
6 something else?
7 SENATOR BRESLIN: Well, yes. If
8 you know anything about the PBMs, they're not
9 regulated now, so the information isn't as
10 accessible as it might ordinarily be.
11 And they were, you know, originally
12 hired by health plans, unions, others to do
13 particular kinds of work, which has been
14 accelerated over a number of years. And it's now
15 estimated that PBMs in the United States make
16 about $315 billion a year.
17 SENATOR PALUMBO: Will the sponsor
18 continue to yield, Madam President.
19 ACTING PRESIDENT MAYER:
20 Senator Breslin, do you continue to yield?
21 SENATOR BRESLIN: The sponsor
22 yields.
23 ACTING PRESIDENT MAYER: The
24 Senator yields.
25 SENATOR PALUMBO: Thank you,
1627
1 Senator. I appreciate that.
2 Well, as a result of this
3 legislation then, where will those costs be
4 passed off and saved by the consumer? I
5 understand what the intent of this legislation
6 is, of course, but what do you have as far as
7 effect on the industry, if you may?
8 SENATOR BRESLIN: I'll kind of
9 break it down a little bit. Pharmacy benefit
10 managers enter into contracts with health plans
11 and others in that category. And they first go
12 to manufacturers, kind of establish prices, go to
13 pharmacies. And now it's expanded so that PBMs,
14 pharmacy benefit managers, are really in contact
15 with every level of the transportation of drugs
16 between and among people who need them and people
17 who create them.
18 And so once -- excuse me -- the
19 money, we're not sure where it goes, because it
20 goes to people along that chain.
21 This bill would create some
22 fiduciary relationships between the two contract
23 parties, that being the initial healthcare plan
24 and the PBMs, so that they know where the
25 money -- they're paying for a service, the
1628
1 service is provided. If there's other monies
2 along that pathway, there has to be full
3 disclosure and those monies put in trust, to be
4 divided up in a fair and equitable way.
5 SENATOR PALUMBO: Thank you.
6 Will the Senator continue to yield,
7 please.
8 ACTING PRESIDENT MAYER:
9 Senator Breslin, do you continue to yield.
10 SENATOR BRESLIN: Certainly, I
11 yield.
12 ACTING PRESIDENT MAYER: The
13 Senator yields.
14 SENATOR PALUMBO: Well, thank you,
15 Senator.
16 And there was a very similar bill,
17 almost the identical bill that passed both houses
18 last year, and the Governor vetoed it. And in
19 his veto memo he indicated that that fiduciary
20 relationship that you mentioned and a few other
21 things were of significant concern.
22 So before we get into the fiduciary
23 questions, after that veto was issued and prior
24 to the reprint and issuance of this legislation,
25 did you have any conversations with any of the
1629
1 stakeholders that were otherwise impacted,
2 possibly the unions, employers, health plans and
3 so forth?
4 SENATOR BRESLIN: The stakeholders
5 are the pharmacies, the people who are serving
6 the ultimate consumer. And that ultimate
7 consumer, the patient, is the real stakeholder.
8 And if there's $315 billion being
9 made by that process, there's only one group that
10 suffers, and that's the patients.
11 So this bill would give the light of
12 day to the whole transaction, make it open and
13 informative, and would preclude anyone in the
14 chain breaking -- breaking their vow of a
15 contractual relationship with the other.
16 SENATOR PALUMBO: Thank you,
17 Senator. Would you continue to yield, please.
18 ACTING PRESIDENT MAYER:
19 Senator Breslin, do you continue to yield?
20 SENATOR BRESLIN: I continue to
21 yield.
22 ACTING PRESIDENT MAYER: The
23 Senator yields.
24 SENATOR PALUMBO: Well, thank you,
25 Senator.
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1 And on page 2 of the bill, regarding
2 that fiduciary relationship, I've gotten some
3 concerns from various groups regarding that
4 language. Because once we've created this
5 fiduciary duty, now it's certainly heightened the
6 obligation -- we don't need to go into the legal
7 lesson there, we all understand that, clearly.
8 That would lead to additional
9 litigation, particularly because, and I'll point
10 you to one section --
11 SENATOR BRESLIN: I can't hear you.
12 SENATOR PALUMBO: Sure, certainly.
13 I'll point -- if I may point to one section in
14 that regard, where -- at line 42, "Where there is
15 a conflict in the pharmacy benefit manager's duty
16 or obligation under this paragraph to the covered
17 individual and any other party, the duty or
18 obligation to the covered individual shall be
19 primary."
20 And regarding that section, also
21 including a private right of action in this bill,
22 there have been some concerns expressed to me
23 that this would lead to -- clearly lead to
24 litigation and ultimately of that result of that
25 very high duty, being the fiduciary duty, those
1631
1 costs would be borne by the industry and
2 therefore passed off to the consumer.
3 So can you please address that and
4 alleviate some of those concerns?
5 SENATOR BRESLIN: I would suggest
6 that the reason for that paragraph is exactly the
7 opposite. It protects the insured. It protects
8 the insured from monies being diverted from the
9 process.
10 And in fact, if there is legal
11 action necessary, then that legal action would
12 prevent and protect the patient from any undue
13 passage of dollars away from that stream that I
14 indicated before.
15 SENATOR PALUMBO: Thank you very
16 much, Senator.
17 On the bill, please,
18 Madam President.
19 ACTING PRESIDENT MAYER: Senator
20 Palumbo on the bill.
21 SENATOR PALUMBO: And thank you,
22 Senator Breslin. And I appreciate that
23 conversation and your input.
24 And in the interests of full
25 disclosure, when I was down the hall last year, I
1632
1 voted for this bill. Because we need to regulate
2 PBMs. I think the industry agrees with that, and
3 we all do.
4 So I am going to vote yes on this
5 bill, but I do have some reservations. And those
6 were what the Governor brought up in his veto
7 memo, and what I've been hearing from the
8 industry, who expressed those exact same
9 concerns. To create this fiduciary obligation is
10 possibly an unreasonable aspect to this
11 regulation.
12 Do we need to regulate them?
13 Absolutely. And what I'm concerned about is that
14 good government involves every stakeholder.
15 We've seen that with some other massive
16 legislation that we've run through these houses
17 in the past few years, where we didn't include
18 everyone in the conversation -- pros, cons and
19 otherwise -- to create smart, good legislation
20 that balances all of these concerns.
21 And we've had to make huge
22 amendments on major items that passed in the
23 budget, such as bail reform and so forth. That's
24 a conversation for a different day.
25 So I am voting yes, because we do
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1 need to regulate this industry, without question,
2 on behalf of the consumer. However, I just do
3 have some reservations.
4 I expect, whether it's this Governor
5 or a different one that's on the second floor, we
6 may be doing this again next year. So I think we
7 just need to tweak that language ever so slightly
8 to modify reasonably those concerns and that
9 language.
10 But in any event, Madam President, I
11 vote aye. Thank you.
12 ACTING PRESIDENT MAYER: Are there
13 any other Senators wishing to be heard?
14 Seeing and hearing none -- oh,
15 Senator Breslin.
16 SENATOR BRESLIN: To explain my
17 vote, please.
18 ACTING PRESIDENT MAYER: Senator
19 Breslin, we will wait one minute till we get to
20 that.
21 ACTING PRESIDENT MAYER: Seeing and
22 hearing none, debate is closed. The Secretary
23 will ring the bell.
24 Read the last section.
25 THE SECRETARY: Section 5. This
1634
1 act shall take effect on the 90th day after it
2 shall have become a law.
3 ACTING PRESIDENT MAYER: Call the
4 roll.
5 (The Secretary called the roll.)
6 ACTING PRESIDENT MAYER:
7 Senator Breslin to explain his vote.
8 SENATOR BRESLIN: Thank you very
9 much, Madam President.
10 This is an enormous day in the
11 healthcare industry, when we talk about pharmacy
12 benefit managers nationally making
13 $315 billion -- in some cases, they say it's more
14 than the manufacturer itself. And that original
15 role in relation to entering into a contract with
16 an HMO or a union or other large groups, to
17 fulfill a particular individual responsibility,
18 has grown to the point where these PBMs own
19 pharmacies.
20 These PBMs have relationships with
21 manufacturers where there's transfers of
22 different profit incentives and monies that
23 aren't being accounted for. The -- getting into
24 the PBMs owning pharmacies, controlling mail
25 orders -- demanding mail orders -- has run
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1 private pharmacies out of business.
2 Eighty percent of the pharmacies in the
3 United States, the PBMs, are controlled by the
4 three major pharmacies. We have to change that.
5 This bill will bring the light of
6 day to pharmacy benefit managers, and it will do
7 much to make the consumer pay a lesser amount for
8 the proper drugs.
9 Thank you, Madam President. I vote
10 aye.
11 ACTING PRESIDENT MAYER:
12 Senator Breslin to be recorded in the
13 affirmative.
14 Announce the results.
15 THE SECRETARY: In relation to
16 Calendar Number 543, voting in the negative:
17 Senator Gallivan.
18 Ayes, 62. Nays, 1.
19 ACTING PRESIDENT MAYER: The bill
20 is passed.
21 Senator Gianaris, that completes the
22 reading of the controversial calendar.
23 SENATOR GIANARIS: Going back to
24 motions for a moment, Madam President, on page 12
25 I offer the following amendments to Calendar 186,
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1 Senate 166A, and ask that said bill retain its
2 place on the Third Reading Calendar.
3 ACTING PRESIDENT MAYER: The
4 amendments are received, and the bill shall
5 retain its place on the Third Reading Calendar.
6 SENATOR GIANARIS: Is there any
7 further business at the desk?
8 ACTING PRESIDENT MAYER: There is
9 no further business at the desk.
10 SENATOR GIANARIS: I move to
11 adjourn until tomorrow, Thursday, March 18th, at
12 11:00 a.m.
13 ACTING PRESIDENT MAYER: On motion,
14 the Senate stands adjourned until Thursday,
15 March 18th, at 11:00 a.m.
16 (Whereupon, the Senate adjourned at
17 3:40 p.m.)
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