A New Game Plan

TMA Switches to Offense for 2007 Legislative Session

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Cover Story - January 2006

 

ByKen Ortolon
Senior Editor

During the 2005 legislative session, you could almost picture organized medicine's fans sitting in the grandstands, holding up the placards with a big "D" and a picket fence, shouting "DEE-FENSE, DEE-FENSE."

The game plan was simplistic but not simple: Defend the hard-won 2003 medical liability reforms from attacks by trial lawyers, defend the practice of medicine against wholesale scope-of-practice expansion by allied health groups, defend the ability of physicians to get needed care for their patients from insurance companies, and defend physicians' right to own hospitals and other health facilities from attacks by the hospital industry.

But when the 80th Texas Legislature convenes this month, the Texas Medical Association plans to focus on the other side of the line of scrimmage.

"We believe this is a time for medicine to become more proactive and less reactive," said Abilene otolaryngologist Austin I. King, MD, chair of TMA's Council on Legislation. "And the overriding focus of our efforts has got to be on improving access to care and ensuring that we create a more transparent health care system so patients have access to knowledge that can allow them to make the correct decisions - both medical and financial - for their health care."

Toward that end, TMA will launch an aggressive push to improve physician payment rates in Medicaid and the Children's Health Insurance Program (CHIP) to ensure that Texas can maintain a strong physician network for those programs and move patients out of hospital emergency departments and into medical homes.

And, the association will lobby for broader transparency. That means making it easier for patients to know who owns health care facilities and making it easier for employers and patients to know exactly what their premium dollars are buying from health plans.

Along the way, medicine also likely once again will battle allied health practitioners on scope of practice, continue to defend medical liability reform against both the trial and defense bars, work to protect or expand the tax credits granted physicians under the new business tax passed last year, debate stem cell research and end-of-life issues, and advocate for public health measures involving immunizations, obesity, and much more.

 

Going on Offense

TMA leaders and lobbyists tracked more than 1,200 separate bills during the 2005 legislative session and likely will see a similar number of health-related measures this year. But none will be higher on medicine's agenda than legislation to give a much-needed boost to Medicaid and CHIP physician payment rates.

TMA leaders say Texas cannot ensure access to care for those already enrolled in those programs or expand access for the uninsured unless lawmakers make sure there is a network of physicians willing to treat those patients. Physician payment rates in Medicaid have remained essentially unchanged since 1992. And, since 2000, the number of Texas doctors accepting new Medicaid patients has declined from 67 percent to 38 percent (see accompanying  chart ).

"Those people who may be on Medicaid but don't have a doctor who will see them have to be seen in the emergency room, and the data suggests that care is about five times more expensive than the same care provided in a doctor's office" said San Antonio pulmonologist John R. Holcomb, MD, chair of TMA's Ad Hoc Committee on Medicaid and Access to Care.

So the first step toward both better access and restraining escalating Medicaid and CHIP costs, Dr. Holcomb says, is to boost rates to draw physicians back into the program.

In October, TMA President Ladon W. Homer, MD, wrote Senate Finance Committee Chair Steve Ogden (R-Bryan), urging lawmakers to ensure that all Medicaid and CHIP patients have access to a cost-effective "medical home" by enacting Medicaid and CHIP payment rates that are competitive with Medicare and commercial payers.

Dr. Homer called for a five-year plan to boost Medicaid and CHIP fees, starting by restoring the 2.5-percent cut enacted in 2003, plus a 10-percent across-the-board fee hike in each year of the 2008-09 biennium.

Dr. Holcomb says North Carolina has shown that improving physician reimbursement will bring doctors back into the Medicaid system. Medicaid fees there were raised to a level competitive with Medicare.

"Their physician participation went up dramatically, and their program costs went down," Dr. Holcomb said. "Why? Because people didn't need to go to the emergency room for earaches."

It appears there may be some legislative support for boosting Medicaid physician fees. House Speaker Tom Craddick (R-Midland) has acknowledged that Medicaid payment rates are "lagging." And Sen. Jane Nelson (R-Lewisville), who chairs the Senate Health and Human Services Committee, has pledged to lead efforts to improve physician reimbursement this session.

Meanwhile, Dr. Holcomb's ad hoc committee also has issued wide-ranging recommendations to improve Medicaid and CHIP, as well as address the problems of the uninsured. Foremost among those, says Dr. Holcomb, is a recommendation that lawmakers restore 12 months of continuous eligibility under Medicaid and CHIP.

"It's hard to embark upon a plan of care for asthma, for example, in someone who's got a six-month coverage window and at the end of six months they may not be reenrolled in the program," he said. It is far less expensive to keep an asthmatic child enrolled in Medicaid and on medication than to have that same child lose coverage and end up in the emergency room, he added.

With a projected $9 billion surplus for lawmakers to spend during the next biennium, chances of getting higher fees and 12 months of continuous coverage for Medicaid and CHIP beneficiaries may be good. But some lawmakers have been hesitant to commit to any increase in eligibility under those programs.

"There has been speculation about a surplus, but we won't know how much until the base budget is introduced in January," Senator Nelson said. "Rising public education costs will continue and may put us in a tight situation in 2009. Given this uncertainty, I would be very careful about expanding eligibility to populations we may not be able to afford in the future."

 

Clear as Glass

While TMA hopes to build strong Medicaid and CHIP physician networks, it also wants to make sure those covered under private health plans know exactly what they're getting for their premium dollars. Thus, Dr. King says TMA will advocate legislation to create more transparency throughout the health care delivery system. At the heart of the transparency issue is the adequacy of health plans' physician networks.

In 2005, TMA defeated efforts by the health plans to ban out-of-network physicians from billing patients for the portion of their fees the plans didn't pay. TMA argued the real problem was not billing by noncontracted physicians, but rather the health plans' failure to maintain adequate physician networks and to fully inform their beneficiaries of who is in those networks.

TMA's Ad Hoc Committee on Managed Care and Insurance has recommended legislation to establish adequacy standards for physician networks to ensure that patients have in-network access to all appropriate specialists. It also recommended legislation requiring the plans to give their beneficiaries more information about which physicians are in their networks and what services are covered.

"We want to ensure that plans are putting together an adequate network of providers, that they're actually following through on the commitment they made to employers and enrol lees to have adequate networks, and that the services they're supposed to be providing are reflected in those networks," Dr. King said.

TMA also is urging broader use of smart card technology and real-time claims adjudication to provide physicians more certainty about the patients' financial responsibility for the care they receive and to give patients real-time information about their health plan network.

 

Who Owns the Store?

Another issue that TMA believes needs more transparency is the ownership of health care facilities. TMA expects the Texas Hospital Association and others to again push for a ban on physician ownership of specialty hospitals, ambulatory surgical centers, and other health care facilities.

TMA once again will fight any attempt to limit physician investment in such facilities, Dr. King says.

"We will continue to defend physician ownership as far as lab testing in their offices, ownership of surgery centers, and participation in ownership of hospital entities but with the caveat that the patient needs to be informed of that ownership," he said. "It has always been TMA's stance that physicians should tell their patients about those ownership interests."

In fact, TMA will advocate for wider disclosure of ownership interest and other financial arrangements regardless of whether health care facilities are owned by physicians, allied health providers, hospitals, or other entities. The association believes that all care, regardless of where it is provided, must be based on the patient's best interest and medical needs.

TMA expects some hospitals to try to hamper the independent medical judgment of physicians by attempting to weaken the state's prohibition against the corporate practice of medicine. If this happens, physicians could find their ability to effectively advocate for their patients limited by what is in the best financial interest of the corporate entity.

 

Scope Déjà Vu

Another issue that will require a lot of organized medicine's attention this year is scope of practice. Dr. King says TMA likely will push some type of legislation to rein in allied health practitioner licensing boards, which have recently expanded the scope of their licensees through rule-making.

"The podiatrists have made rules expanding their scope that so far have been upheld in the court system," Dr. King said. "If those aren't overturned, then I look for more and more boards to try the same thing."

Darren Whitehurst, director of TMA's Division of Public Affairs, says that's exactly what the Texas Board of Chiropractic Examiners (TBCE) is doing now. In 2005, the legislature directed the chiropractic board to more clearly define in its rules what constitutes the practice of chiropractic. Instead, the board took it as an opportunity to expand chiropractors' scope of practice to things such as needle electromyocardiograms (EMGs) and manipulation under anesthesia, Mr. Whitehurst says.

"The legislature really intended for the chiropractic board to limit chiropractors because they really aren't qualified to do either one of those procedures," he said. "But the chiropractic board did just the opposite."

TMA sued the TBCE in September. It is asking an Austin district court to invalidate rules allowing chiropractors to perform needle EMGs and manipulation under anesthesia because they constitute the clinical and legal practice of medicine, and patients can be seriously injured if the procedures are not done by a trained professional.

The suit contends that chiropractors have no legal right to engage in the practice of medicine and allowing them to do so undermines the purposes of the Texas Medical Practice Act. Texas law prohibits chiropractors from performing surgery or from diagnosing physical diseases, disorders, deformities, or injuries.

Jaime Capelo, lobbyist for the PatientsFirst Coalition, says scope expansion through rule-making is a "critical problem that needs to be remedied." Exactly how that issue will be addressed legislatively, he says, is still up in the air.

The PatientsFirst Coalition was put together two years ago by TMA and numerous other state specialty societies to create a united voice for organized medicine on scope-of-practice issues. Mr. Capelo, a former legislator, says the coalition will combat allied health scope expansions by focusing on patient safety issues and solutions to workforce issues in health care.

"Workforce has become an issue, and we hope to provide solutions through workforce remedies that indirectly counter some of the scope expansion arguments of some of the nonphysician providers," he said.

That means increasing graduate medical education and residency training slots to train more doctors, as well as moving resources to address both geographic physician shortages and shortages of certain specialists, he adds.

 

Protecting the Public Health

TMA also will pursue an aggressive agenda on public health issues. In 2006, the association joined a dozen other organizations to create the Texas Public Health Coalition to advance core public health principles at the state and community levels. The coalition has targeted tobacco use, obesity prevention, immunizations, and cancer screening and prevention as issues it will pursue this year.

Among items the coalition plans to advocate in the legislature are increased funding for the Texas Vaccines for Children Program, funding for a public awareness campaign on the need for influenza vaccinations, establishment of minimum standards for physical education for all public school students in kindergarten through 12th grade, and funding for a comprehensive statewide tobacco prevention and cessation program.

The coalition also wants lawmakers to encourage health plans to promote adult cancer screenings as a standard prevention and wellness strategy, promote the American Cancer Society's screening guidelines for early detection of cancer as an integral part of employee wellness plans, and encourage health plans to reward nonsmokers and individuals participating in tobacco cessation programs.

A number of other public health issues also likely will be debated. Already filed are bills relating to nutrition in the public schools, availability and use of automatic external defibrillators on public school campuses, point-of-sale health warnings on tobacco products, and human papilloma virus education and immunization. At press time, staff in the TMA Division of Public Health and Medical Education are examining the bills to determine their potential impact.

 

Taxes, Etc.

While Medicaid, network adequacy, physician ownership, and scope may be the high-profile issues facing medicine this year, they are only a few of the issues TMA expects to encounter during the session. Lawmakers likely will tinker with the new business tax they created in a special session last year, which has yet to be implemented.

Under that bill, lawmakers excluded from the tax the income physicians receive from the Medicaid, CHIP, Medicare, workers' compensation, TRICARE, and indigent health care programs. Physicians also will receive tax credits for any uncompensated care. TMA will work to defend those credits and possibly expand them.

In fact, there already is some support for broadening those credits. Senator Nelson says she will push to allow physicians to write off 200 percent of the charity care they provide.

Workers' compensation also will be on the table, even though it underwent a total overhaul in 2005. Rep. Burt Solomons (R-Carrollton), chair of the Sunset Advisory Commission and author of the 2005 workers' compensation reforms, has filed clean-up legislation aimed at stopping kickbacks within the workers' compensation system.

Representative Solomons says he's heard of kickbacks being arranged for peer reviews, case management, and attorney assistance, as well as reports of exchanges of cash and tickets to sporting events for a referral of services. The kickbacks usually are paid by providers, case managers, or attorneys to third-party administrators who refer injured workers to those professionals.

"This is fraud, which only adds costs to the system for employers and uses medical care for injured workers as a pawn. It's disgusting," Representative Solomons said.

The lawmaker also was expected to file a second bill to grant physicians an exception to the so-called 95-day rule that gives them 95 days to file a claim with a workers' compensation carrier. Frequently, claims initially are filed with an injured worker's regular health plan and only later the physician discovers it should have been a workers' compensation claim. If 95 days have lapsed since the care was provided, the workers' compensation carrier will deny the claim outright.

TMA applauds Representative Solomons' efforts to address problems arising in the new workers' compensation system.

"Access to quality care for injured workers is our main concern. Any legislation to improve the workers' compensation system by eliminating fraud and reducing carrier gaming to deny payment is a positive step for our patients," said Austin physical medicine and rehabilitation specialist Charlotte Smith, MD, who chairs a TMA workers' compensation task force.

Dr. King says TMA also anticipates debate on issues ranging from stem cell research and end-of-life care to retail health clinics and medical education funding.      

In October, TMA convened a summit including representatives of all of the state's medical schools, public and nonprofit hospitals, and other groups to develop consensus recommendations on both undergraduate and graduate medical education (GME) priorities for the 2007 session. Among its recommendations, the group concluded that both new medical schools and class-size expansions, along with a corresponding increase in GME programs, are needed to address physician shortages in Texas.

On the end-of-life front, Senator Nelson already has introduced a number of bills relating to advance directives, including a measure to create an advance directive registry.

Controversy over advance directives arose in 2005 when right-to-life groups complained that families were given too little time to arrange alternate care when physicians determine that further care for a loved one is futile. (See " When Hopes Fades ," October 2006 Texas Medicine , pages 33-34.)

With health clinics popping up in supermarkets, pharmacies, and other retail outlets around the state, TMA wants to ensure there is adequate physician oversight of advance practice nurses and others staffing the clinics and that there is continuity of care for those with conditions requiring follow-up. TMA expects the debate on stem cell research to revolve around whether the state should even allow embryonic stem cell research and, if so, whether the state should fund it.

Ken Ortoloncan be reached by telephone at (800) 880-1300, ext. 1392, or (512) 370-1392; by fax at (512) 370-1629; or by email at  Ken Ortolon.   

 

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COMMENTARY

Summits Bring Healthy Vision Into Focus

By Ladon W. Homer, MD, TMA President

"Vision without execution," some perceptive person once said, "is hallucination."

I tried to track down the source of that eloquent, five-word phrase. The Internet attributes it to everyone from Albert Einstein to Thomas Edison to AOL founder Steve Case. Let's just call it an old saying and get on with it, because its wisdom is profound.

The Texas Medical Association published our first edition of Healthy Vision 2010 two years ago. It defines TMA's strategic health policy agenda for this state. We put our stethoscopes to the heart of Texas ' health care system, reached a diagnosis - this patient is sick but not dying - and prescribed a rigorous course of treatment.

While Healthy Vision 2010 was well received during the 2005 session of the Texas Legislature, it arrived too late to really drive the health care policy debate. We rewrote the document and republished it in November 2005. We wanted to ensure that TMA's prescription for health care improvement would be part of the 2006 elections and the run-up to the 2007 Legislature.

A critical goal was making sure that our healthy vision is a shared vision. Regardless of how accurate our diagnosis, how compelling our argument, or how effective our treatment, physicians cannot achieve sweeping health care reform on our own. We needed to engage the business community, hospital executives, and other health care professionals, government and community leaders, and - yes - even the health insurance companies.

In that vein, TMA convened the first Healthy Vision Health Care Summit last March. We invited a broad range of stakeholders in the health care system. We laid out our healthy vision and solicited their views of the issues we raised. We asked them to help develop a collaborative legislative agenda that addresses some of Texas ' most pressing health care problems. Given the diversity of those in attendance, we had to focus on only those issues around which we could build near-unanimous consensus.

"Health care is too vital for any of us to ignore or leave to others - and it's too complex for any of us to fix on our own," then-TMA President Bob Gunby, MD, said at the first Healthy Vision Summit . And I repeated that mantra over and over at summits II and III.

We came away from Summit I agreeing that we needed to spend more time together, that it was not only quite possible - but also quite necessary - that we build that collaborative legislative agenda. We also came away with a joint vision of the two most promising areas for possible collaboration:

  • Reducing "medical homelessness" and inappropriate use of emergency rooms, and reducing the number of uninsured Texans; and
  • Increasing Texans' incentives to maintain healthy lifestyles, and increasing physicians' and health care professionals' incentives to focus on prevention.

At Summit II in August, we focused on the uninsured and on wellness. We further broke down our parochial interests and sat down at the table with each other to devise potential solutions to those two issues. Then we voted on those potential solutions, looking even deeper for consensus. Only those ideas with very broad support from across all the groups survived.

Summit III was a mock legislative hearing. Thirty-two leaders from medicine, business, insurance, hospitals, and other health care professions, and government gathered at the Texas Capitol. We had before us Summit Bill 1 - to enhance wellness from both the employer and community perspectives. And we had Summit Bill 2 - to facilitate public-private partnerships to help small employers provide health coverage for their workers. State Reps. Glenn Hegar Jr. (R-Katy) and Carlos Uresti (D-San Antonio) chaired the committees that heard impassioned testimony and then debated and voted on the "bills."

The goal was for these disparate groups to agree on a collaborative agenda to present to the 2007 Texas Legislature. And we did just that. Here are some highlights of the two bills that "passed":

  • The wellness bill would provide incentives and resources for employers to offer cost-effective wellness programs to their workers; offer wellness programs to all state employees; and ban smoking in all public places in Texas.
  • To help Texas lose its designation as the "uninsured capital of America," the uninsured bill would educate businesses on the value of providing insurance benefits to their workers and provide them incentives to do so; convene a broad stakeholder group to define an affordable, basic, essential benefit package; and capture additional federal funds to help small businesses offer "three-share" type programs to their employees.

Throughout the three summits, we looked for, and found, what it is we can do together that we cannot do on our own. Altogether, nearly 80 of us came together to work on this process. We put aside our sometimes very strong differences to look for, and find, common ground.

As the 80th Texas Legislature convenes, we are prepared to execute on our vision. I see healthier Texans - and a healthier Texas - as a result. 

SIDEBAR

First Tuesdays Return to the Capitol

One of the most effective lobbying tools in organized medicine's arsenal returns on Feb. 6.

First Tuesdays at the Capitol brings physicians, medical students, and TMA Alliance members to Austin once each month to put a personal face on the health care issues debated by Texas lawmakers.

At the Capitol, they call it the "White Coat Invasion," and lawmakers from both parties say having white coat-clad physicians in their offices and in the House and Senate galleries definitely played a role in passing historic medical liability reform in 2003 and keeping dozens of bad bills at bay in 2005.

During 2005, more than 1,000 doctors, medical students, and TMA Alliance members participated in First Tuesdays. Darren Whitehurst, director of TMA's Division of Public Affairs, says it may be the most effective lobbying tool physicians have ever had.

"I don't think you can say enough about physicians who are willing to come and spend part of their practice day up here talking to legislators about issues that are important to medicine," he said.

This year's initial First Tuesday will be held on Feb. 6. Participants will register at the TMA building at 401 W. 15th St. beginning at 7 am, then they'll be briefed on top legislative issues facing medicine and get a crash course on how to be a lobbyist. Then, participants will fan out at the Capitol to meet with legislators, attend committee hearings, and sit in on House and Senate sessions.

Other First Tuesday events will be held on March 6, April 3, and May 1. For more information about First Tuesdays, contact TMA at (800) 880-1300, ext. 1361, or visit the TMA Web site at  www.texmed.org/firsttuesdays

SIDEBAR

Sign Up Now for the TMA Legislative Hotline

Want to stay fully informed of the latest dealings in the Texas Legislature this year? Then subscribe today to the TMA Legislative Hotline .

The hotline is a daily newsletter delivered to you via e-mail that will track issues affecting medicine and report on the latest actions of the legislature. The hotline will be delivered each day before noon beginning Jan. 15. A weekly recap, delivered each Friday, is also available.

To subscribe to the hotline, click "MEMBER LOG-IN" on the TMA Web site at  www.texmed.org and then go to "Update Your TMA Demographic Information (including newsletter subscriptions and preferences)"

 

January 2007 Texas Medicine Contents
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