Overview
KEY UPDATE
The recently released New York State Executive Budget for Fiscal Year 2026 contains proposed revisions to a recently enacted law impacting how healthcare providers obtain patients’ consent to payment.
NY Public Health Law (PHL) § 18-c currently requires that patients provide consent for payment separate from consent to receive healthcare services. That consent to payment cannot be given before the provider discusses treatment costs with the patient and the patient receives services. The statute has significant ambiguity, and no formal guidance or regulations have been issued to date regarding PHL § 18-c. The New York State Department of Health (DOH) has indicated that it does not intend to enforce PHL § 18-c pending further indication of legislative intent. The current iteration of PHL § 18-c is discussed at greater length in our previous On the Subject.
The proposed revisions would help address stakeholder concerns by removing the requirement that consent to payment be obtained after the patient has received the healthcare services.
WHY IT MATTERS
- Providers have expressed concerns that requiring services to be delivered prior to obtaining consent to payment poses logistical and operational challenges.
- The proposed revisions would allow consent to payment to be given before the patient receives services, as long as treatment costs have been discussed. The proposed revision also would clarify that consent to payment requirements are applicable only to non-emergency healthcare services.
- Providers should monitor the status of PHL § 18-c as the Executive Budget is finalized. While DOH previously indicated that implementation of PHL § 18-c’s requirements is on hold, providers should continue to monitor for DOH guidance and be prepared for the possibility that DOH will begin enforcing the law if the revisions are enacted. Providers should assess their current consent and billing processes and determine how they may need to change to comply with PHL § 18-c.
In Depth
REQUIREMENTS FOR PATIENT CONSENT TO PAYMENT
PHL § 18-c provides that a patient’s consent to pay for healthcare services must be obtained separately from the informed consent for such healthcare services, and that consent to payment may only be obtained after the patient has received the applicable services and discussed treatment costs. Although PHL § 18-c was effective October 20, 2024, the next day the Medical Society of the State of New York (MSSNY) announced that it had received a copy of guidance issued by DOH directed to hospital CEOs indicating that the implementation of these consent-related requirements was put on hold pending further guidance. To date, no guidance or regulations have been issued or proposed on how to implement the law, and significant ambiguities remain.
The MSSNY, several medical specialty organizations, and other stakeholders raised concerns regarding the logistical and operational challenges of requiring that consent to payment be obtained after healthcare services are rendered. Stakeholders noted that obtaining consent to payment after services are rendered is not consistent with typical medical practice workflows, where consents and necessary paperwork are completed upon arrival. Stakeholders also raised concerns about whether a patient could receive services and then simply refuse to consent to payment.
The executive budget’s proposed revisions would address these stakeholder concerns by removing the requirement that the consent to payment be obtained after the patient has received the applicable services (i.e., only discussion of treatment costs must occur before consent to payment is obtained). The proposed revisions also would clarify that the restriction is applicable only to non-emergency healthcare services.
Because the proposed revisions address only the timing of the consent, however, other significant ambiguities and stakeholder questions regarding PHL § 18-c remain. These include:
- To whom does the statute apply? PHL § 18-c refers only to “patients” (i.e., “[c]onsent to pay for any health care services by a patient shall not be given prior to the patient receiving such services . . . .”) and not to any category of healthcare providers.
- Must a patient provide a new consent each time a different service is offered? Are multiple consents necessary for a course of treatment? Does a change in treatment plan require a new consent?
- How do PHL § 18-c’s requirements affect other requirements imposed on providers, such as those under the federal No Surprises Act, other New York state laws, and payor contracts? These require upfront disclosure of costs to patients and may conflict with certain provisions of PHL § 18-c.
As currently drafted, the proposed revisions do not provide further guidance on these open questions.
REQUIREMENTS FOR CREDIT CARD PAYMENTS FOR HEALTHCARE SERVICES
The FY 2026 Executive Budget did not propose any amendments to NY General Business Law (GBL) § 519-a, which was adopted along with PHL § 18-c in the 2024 executive budget. GBL § 519-a imposes requirements for credit card payments for healthcare services. For a detailed discussion of GBL § 519-a’s requirements, please see our previous On the Subject.
NEXT STEPS
Providers who render services to patients in New York should closely monitor developments related to PHL § 18-c. The Executive Budget will be reviewed, negotiated, and modified by the state legislature prior to its final approval, and further changes to PHL§ 18-c remain possible before the budget is finalized. While the budget is required to be finalized by April 1, 2025, in recent years the state’s budget has not been finalized by the deadline.
Providers should also continue to monitor for guidance from DOH and be prepared for the possibility that DOH will begin enforcing the law if the revisions are enacted. Providers should assess their current consent and billing processes and determine how they may need to change to comply with PHL § 18-c.
Please contact the authors of this article or your regular McDermott lawyer with any questions related to New York’s patient consent to payment requirements.
