Legislature Tunes Up for Big Finale; Encore Possible

TMA Vice President for Advocacy Darren Whitehurst likes to say that the end of a legislative session is like the final crescendo of a great orchestra – either the musicians come together and make beautiful music or the whole thing falls apart.

Judging by where the 82nd Texas Legislature stands with just two weeks remaining in its session, the end could sound less like an orchestra and more like a train wreck. Virtually none of the major issues have been finalized. The budget for 2012-13 is unfinished. Redistricting bills have not been completed; in fact, no congressional map has even been proposed. And a plethora of issues of importance to organized medicine – such as a statewide smoking ban and bills to move Medicaid toward quality-based payments and to create health care collaboratives similar to accountable care organizations – were still in limbo.  

Instead of focusing on the major issues, TMA officials say lawmakers spent considerable time squabbling over requiring women to get sonograms before abortions or outlawing so-called sanctuary cities – issues that tend to fray legislative nerves and distract lawmakers from the bigger issues.

In fact, the sonogram bill, a measure to allow some rural hospitals to directly employ physicians, and a measure allowing international medical graduates (IMGs) in graduate medical education (GME) programs to apply for licensure in Texas after two years of residency training appear to be about the only issues affecting organized medicine that have been finalized so far in this session.

Still, as Political Prognosis was prepared, lawmakers had 13 days left to wrap up their work. The question is can they produce a budget – the only bill they are constitutionally required to pass – in that time? If not, they will certainly be back in special session sometime before the end of the state fiscal year on Sept. 1.

Finalizing a Budget
TMA officials say success or failure of this legislative session rides on the legislature's ability to craft a final budget. Both the House and Senate have passed their budget bills, but the two are some $12 billion apart, which means a final budget compromise must be worked out by a House-Senate conference committee.

The Senate bill includes some $176.5 billion in spending, compared with $164.5 billion in the House bill. Most of the difference in those budgets can be found in the articles involving health care and education. TMA has thrown its support behind the Senate's budget bill, which spares Medicaid from much steeper cuts found in the House bill. The Senate bill maintains current Medicaid physician payment rates. The House bill, by comparison, cuts Medicaid fees by 10 percent. Earlier this week, the conference committee announced it had agreed to the Senate's plan for Medicaid and most other health programs. Education spending, however, remained unresolved.

The Senate bill includes more formula funding for both undergraduate and GME and saves primary care GME programs administered by the Texas Higher Education Coordinating Board. The House bill zeroes out those programs. The Senate bill also retains one of two physician education loan repayment programs that would be eliminated under the House bill and provides more funding than the House bill for mental health programs.

A little relief came May 17 when Texas Comptroller Susan Combs said she was increasing her revenue estimate for the next two years by $1.2 billion. She cited expected stronger performance of sales and oil production taxes.

But time is running out to get the budget done partially because the Senate was stymied in passing its bill for days because sponsors couldn't get the 21 votes needed to suspend Senate rules to bring it up. Finally in early May, Senate leaders used a parliamentary maneuver that required only a majority vote and passed the bill 19-12.

TMA lobbyists say the budget conference committee likely will have to craft its compromise by the middle of this week to meet legislative deadlines to print and distribute the budget bills for legislators to review before a final vote. If the committee can't meet that deadline, lawmakers will have to come back in special session sometime later this year to pass a budget.

Meanwhile, both chambers have numerous bills that are critical to balancing the state budget, including the so-called fiscal matters bill that identifies various cost savings throughout the budget; Senate Bill 23, which would provide about $426 million in various savings in Medicaid, including expanding Medicaid managed care to the Lower Rio Grande Valley, and public education bills that would produce a number of cost-saving measures, such as increasing class size.

If lawmakers fail to finalize those measures, Comptroller Combs may not be able to certify the budget as balanced, as required by the Texas Constitution. That again could result in lawmakers having to come back into special session.

Medical Board Reform
A package of TMA-backed bills to provide more fairness in the Texas Medical Board’s (TMB's) disciplinary process was moving forward and appeared poised to pass, possibly as early as this week. SBs 190, 191, and 227 by Sen. Jane Nelson (R-Flower Mound) include reforms that would do away with anonymous complaints; require disclosure of complaints filed by insurance companies, pharmaceutical companies, or their agents; extend the amount of time a physician has to respond to notice of a complaint; give the board flexibility to deal with minor infractions with nonpunitive remedial action plans rather than fines or public disciplinary actions; and bind the TMB to findings of fact and conclusions of law issued by an administrative law judge from the State Office of Administrative Hearings.

Those measures have passed the Senate and were pending on the House Local and Uncontested Calendar Committee, which – if they can be placed on the House's calendar without delay – likely means they would pass without further amendment and go straight to the governor to be signed into law.

Another TMB reform bill originally opposed by TMA – House Bill 1013 – passed the House but appears to be stalled in the Senate. A number of the bad provisions in the original legislation have been removed, but TMA leaders are still concerned with some of the details in the bill. If the bill weakens the ability of TMB to remove bad physicians from practice, it would likely weaken the 2003 medical liability reforms by driving more complaints back into civil district court.

The Employment Compromise
One bill that has passed is a measure by Sen. Robert Duncan (R-Lubbock) to allow some rural hospitals to directly employ physicians. The final bill was a compromise between TMA, the Texas Organization of Rural & Community Hospitals, and others. It limits the ability to employ physicians to hospitals in counties of less than 50,000, critical access hospitals, and sole community providers. The bill contains strong language supported by TMA to protect the employed physician's clinical autonomy from intrusion by hospital administrators.

Gov. Rick Perry signed the bill May 12.

Meanwhile, another bill by Sen. Duncan, which would give physicians employed by 501(a)/not-for-profit corporations similar rights as under the rural bill, passed the Senate and also was pending on the House local calendar. That bill would protect physicians' independent medical judgment within these organizations and give TMB flexibility in disciplining 501(a) corporations for violations. Currently, TMB can only grant or revoke a 501(a) corporation's certification to operate in Texas.

Still in Play
A slew of health care bills still are working their way through the process. While a standalone statewide smoking ban bill likely is dead, TMA is working to pass another measure to which it can add a variation of that ban, likely with some exceptions needed to gain the necessary legislative votes.

Also, two major bills that would impact Medicaid and private health insurance were working their way toward passage. SB 7 by Senator Nelson would move Medicaid away from a fee-for-service payment system and toward quality-based payments. SB 8, also by Senator Nelson, would authorize creation of health care collaboratives in both Medicaid and private insurance. Those collaboratives would be modeled largely after so-called accountable care organizations through which physicians, hospitals, and other health care providers can partner to provide care to a defined group of patients.

TMA supports those measures in their current form, but officials say they are still working with Attorney General Greg Abbott to ensure that these collaboratives do not violate antitrust laws and that there are safe harbors in place for physicians who participate in them. Further, TMA supports the idea that the governance of the collaboratives include equal physician participation to ensure that both clinical and financial decisions of the organization focus on patient care issues as well as economic issues.  TMA also wants to ensure that dominant hospital-led competitors do not drive physicians who don't participate in the collaboratives out of the marketplace.

One significant bit of good news is that most bills that sought to expand allied health practitioners' scope of practice seem to be going nowhere. TMA is keeping an eye out for any attempts to tack scope-related amendments onto other bills.

Texas Medicine Senior Editor Ortolon prepared this special supplement to Action.   


Action, May 18, 2011


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