Public Health Law Section 18-c: New Consent Rules and Industry Confusion

In a move toward enhancing patient rights, the New York State Department of Health (DOH) has introduced amendments that will take effect on October 20, 2024. One of the most significant changes under Public Health Law Section 18-c mandates that healthcare providers must now obtain separate consents for treatment and payment.

This new requirement aims to give patients greater control over their healthcare costs by ensuring that consent to pay cannot be obtained until after treatment has been provided and the patient has had a chance to discuss the costs.

 What Does Section 18-c Require?

According to the amended law, healthcare providers must obtain two distinct forms of consent:

• Consent for Treatment – Patients must first authorize healthcare services, such as procedures or examinations.
• Consent for Payment – Payment consent can only be obtained after the treatment, once the provider explains the associated costs.

The law defines “consent” as an action that:

• Clearly communicates the patient’s approval.
• Avoids misleading or impairing the patient’s ability to make decisions.
• Cannot be inferred from inaction—meaning consent must be explicit, not implied.

You can read the full text of Public Health Law Section 18-c on the New York State Senate’s website.

Challenges for Providers and Facilities

While the law aims to protect patient rights, it raises practical concerns, particularly for long-term care facilities like nursing homes and assisted living facilities. Providers are left questioning how to comply with the new rules in specific scenarios, such as:

• Recurring treatments: Must consent and payment discussions be repeated for each individual service?
• Bundled treatments: Can multiple treatments be authorized under a single consent form, or must each service have separate consent documentation?

These ambiguities leave providers uncertain about how to efficiently incorporate the new requirements without disrupting patient care.

Lack of DOH Guidance on Enforcement

As of now, the DOH has not issued detailed guidance on how it plans to enforce Section 18-c. It remains unclear which healthcare providers will be the primary focus of enforcement efforts or whether penalties will apply for noncompliance with these new consent procedures.

Our law firm has contacted the DOH directly to seek clarification on these issues, but the response so far has been limited.

What Healthcare Providers Should Do Now

Until further guidance is provided, healthcare providers should prepare their staff to navigate the new consent process. Steps to consider include:

• Training administrative and clinical staff on the new requirements.
• Developing separate consent forms to ensure compliance with the law.
• Monitoring updates from the DOH for any clarifications or policy changes.

Contact Us for Assistance

For more information or help with navigating these legal changes, contact David R. Ross, Esq., at dross@oalaw.com or (518) 312-0167.

Michael E. Reid, Law Clerk, contributed to this article