It's getting to the point in the Texas Legislature where time
dwindles and pressure increases exponentially daily. With fewer
than 50 days left in the 2009 session, observers say that hundreds,
if not thousands, of bills could die this week when their sponsors
can't move them out of committee. House and Senate rules place
fairly strict limits on what bills can be considered on the floor
during the last month of a session, particularly on bills that have
not already passed the opposite chamber. So lawmakers are
scrambling to move as many of the 7,000-plus bills filed this
session through the process as possible.
Despite a sluggish economy, tight budget, and difficult fights
with the insurance industry, trial lawyers, hospitals, and others,
the prognosis for some of organized medicine's priorities looks
promising. Other parts of the Texas Medical Association's agenda
appear stalled, while a number of bills TMA opposes still pose a
threat. Here is a quick roundup of where health-related legislation
stands as lawmakers near the final turn.
The Good
First, TMA and the TMA Alliance welcomed more than 400 physicians,
alliance members, residents, and students to Austin for the April 7
First Tuesdays at the Capitol
event - a record number. This outpouring of support and
engagement is a direct correlation to the challenges that
physicians face and wish to fix through legislative methods.
Special thanks to all the county medical societies who worked so
hard to make this past First Tuesdays event the best yet.
TMA-backed legislation to provide more oversight over the
delegation of prescriptive authority to physician assistants (PAs)
and nurse practitioners (NPs) in
retail health clinics
passed the Senate in late March. Senate Bill 532 by Sen. Dan
Patrick (R-Houston) maintains the current limit of three PAs
or NPs to whom a physician may delegate prescriptive authority. The
bill, however, allows the Texas Medical Board (TMB) to grant
waivers to allow a physician to supervise up to six midlevel
practitioners, but gives the board oversight authority over those
arrangements.
The retail clinics would have to submit information to TMB
about how their delivery model would work and how the physician
would maintain adequate supervision of the PAs and NPs. TMA and
retail clinic operators agreed to the measure after TMA's Council
on Legislation expressed concern with the clinics' attempts to
increase delegation authority without added accountability. The
council felt existing law does not provide any mechanism to track
who is receiving delegated authority.
Another TMA-supported bill to require the Medicaid Office of
Inspector General (OIG) to adopt rules providing physicians with
more due-process rights in fraud and abuse investigations cleared
the House Public Health Committee in early April. House Bill 2938
by Rep. Vicki Truitt (R-Keller) requires that physicians receive
notice of any payment hold and the reasons for that hold.
Physicians also must be notified of their rights to request a
hearing on the payment hold or informal resolution of the issues
involved.
The bill also requires the OIG and state attorney general to
develop joint written procedures for processing cases of fraud,
waste, and abuse. It also requires the Health and Human Services
Commission (HHSC) to adopt rules governing the conduct of
prepayment reviews of claims.
The Senate companion bill, SB 1542 by Sen. Carlos Uresti (D-San
Antonio), was heard in the Senate Health and Human Services
Committee in early April but was left pending.
On the public health front, two immunization-related bills
supported by TMA are moving forward. SB 346 by Sen. Jane Nelson
(R-Lewisville) would allow persons to maintain their immunization
records in ImmTrac, the state's immunization registry, following
their 18th birthday. Currently, immunization records are deleted
from ImmTrac after a person turns 18.
SB 347, also by Senator Nelson, makes Texas immunization records
accessible to public health officials in other states in case of
emergencies here. In the aftermath of Hurricane Katrina, Texas
public health officials were able to tap into Louisiana
immunization data for evacuees who sought medical care here.
Current state law, however, would not allow ImmTrac data to be
shared with other states if Texas residents had to evacuate because
of a hurricane or other disaster.
Both measures passed the Senate in early April. Their companion
bills, HB 2382 and HB 2383 by Rep. Lois Kolkhorst (R-Brenham),
cleared the House Public Health Committee in late March and are
awaiting floor debate.
TMA leaders also were cautiously optimistic that another
immunization-related bill - one that would allow physicians to
deduct the cost of vaccines under the state's new business
tax - still might gain passage. The measure was expected
to be heard in the House Ways and Means Committee in mid-April.
That bill, however, could cost the state as much as $2 million in
lost revenue, and TMA lobbyists say little that costs the state
money has moved out of the Way and Means Committee.
Finally, TMA and other tort reform advocates appear to have been
able to contain a bill that would
loosen liability protections for physicians
who see patients in emergency situations. With strong grassroots
opposition from physicians, SB 152 by Sen. Rodney Ellis (D-Houston)
has remained bottled up in committee.
The Bad
The Texas Hospital Association and the Texas Organization for Rural
and Community Hospitals are waging an all-out war on the ban
against hospitals employing physicians. And TMA is fighting
back.
More than a dozen individual bills have been filed that would
allow individual hospitals or hospital districts in rural counties
or along the Texas-Mexico border to directly employ physicians. Few
of those bills contain any protections against hospital
administrators interfering with the clinical autonomy of hired
doctors. Meanwhile, Sen. Robert Duncan (R-Lubbock) filed SB 1500,
which would allow critical access hospitals, sole community
hospitals, as defined by federal law, or hospitals in counties of
less than 50,000 population to employ doctors. In all, more than
190 of Texas' 254 counties would be able to employ physicians.
TMA sees these bills as direct attacks on the patient-physician
relationship that undermine physicians' clinical autonomy. The
purpose of the corporate practice ban is to ensure physicians'
independent clinical judgment and to prevent corporate entities,
such as hospitals, from forcing physicians to take actions
that might benefit the entity's bottom line but are not in the best
interest of patients.
There also is concern that lifting the corporate practice ban
could provide ammunition to opponents of the 2003 medical liability
reforms. Those reforms included a "stacked cap" on noneconomic
damages, meaning that injured patients could collect from both the
physician and hospital. But in employment arrangements, only a
single cap would apply because the physicians would be covered
under the hospital's cap.
While TMA recognizes that the problem of attracting physicians
to rural Texas is very real, the association believes allowing
hospitals to hire physicians is the wrong cure. Having the rural
hospitals advocate with us for higher physician payments in
Medicare and Medicaid would be a better approach, says Darren
Whitehurst, TMA vice president for advocacy.
"The fact of the matter is the legislature has been directly
involved in starving those practices," he said. "The primary payers
for rural physicians are Medicare and Medicaid. In Medicare, there
hasn't really been a payment increase in eight years since SGR
[Sustainable Growth Rate] was implemented. In Medicaid, the fee
increases approved last session as a result of the
Frew
lawsuit were the first significant increases physicians have seen
since 1993." At the same time, many of these same rural hospitals
have been receiving cost or cost-plus payments from both Medicare
and Medicaid.
TMA has proposed an expanded physician loan repayment program to
help attract physicians to underserved areas. That bill would
provide up to $140,000 over four years in medical school debt
repayment for physicians who locate in underserved areas and care
for Medicaid patients. That bill was scheduled to be heard in the
Senate Higher Education Committee April 15.
TMA launched a comprehensive response to these multipronged
attacks on the corporate practice ban. That response includes
sending personalized
action alerts
to thousands of physicians in the affected areas. TMA staff also is
making phones calls to hundreds of these physicians asking them to
contact their representatives and senators about these bills. TMA
also purchased time for a
radio advertising campaign
in Senator Duncan's hometown of Lubbock.
The Senate State Affairs Committee approved SB 1500 on April
9 with a 5-1 vote, with Sen. Robert Deuell, MD (R-Greenville),
objecting. Some of the single-shot bills also have had committee
hearings, but so far none have moved forward.
Unfortunately, TMA's package of health insurance reforms that
would make the operations of health plans more transparent also
remains bottled up in committee, including
TMA's Health Insurance Code of Conduct Act of
2009
[
PDF
] and
health insurance product labeling bill
. While some of those bills have been heard in the House Insurance
Committee, none has gotten a vote. And Senator Duncan, chair of the
Senate State Affairs Committee, has yet to set hearings in his
committee.
TMA made those health insurance reforms a focal point of its
First Tuesdays event on April 7, where attendees visited with
lawmakers about the need for patients and their employers to have
more information upon which to base their insurance coverage
decisions and for physicians to have that information to help their
patients navigate the system.
It also appears TMA-backed legislation to enact a
statewide workplace smoking ban
could be in jeopardy. Opponents have aggressively lobbied against
it, and presently supporters lack the 21 votes needed to bring it
up on the Senate floor.
The Ugly
The legislature has been operating under a tight budget all session
and the news apparently is about to get worse. Political observers
say State Comptroller Susan Combs might issue a new revenue
projection that could cut the amount lawmakers have to spend by as
much as $3 billion.
The Senate already passed what TMA lobbyists described as a
"relatively Spartan budget" that would spend $178.4 billion budget
in fiscal years 2010-11, a 5.1-percent increase over the current
budget. The good news for medicine is the Senate's budget bill
includes a 3-percent increase for Medicaid and roughly $10 million
in additional funding for graduate medical education.
But a lower revenue forecast could force lawmakers to trim some
spending. At the same time, Gov. Rick Perry has indicated he might
veto the budget and force lawmakers back into special session this
summer.
The Rest
Finally, TMA has worked closely with Lt. Gov. David Dewhurst and
Senator Nelson to rewrite a measure that could have major
ramifications on the state Medicaid program.
SB 7 is intended to improve quality and efficiency of care in
the Medicaid program through a number of initiatives, including
developing a Medicaid health information exchange (HIE), use of
pay-for-performance programs, and eliminating payment for so-called
"never events." But TMA raised numerous concerns about the bill as
originally filed.
Among those concerns was the fear that development of a Medicaid
HIE without acting in conjunction with commercial payers could
force physicians to maintain more than one information system.
Another concern involved the never events. The bill would have
denied payment to both hospitals and physicians when errors occur.
And, payment would be denied for the never event and for any
follow-up care to correct that event.
A committee substitute laid out by Senator Nelson would have
Medicaid follow Medicare guidelines on never events.
The substitute also makes clear that the state is not
establishing a Medicaid rating system for physicians and
establishes a new Health Care Quality Advisory committee to advise
HHSC on implementing the medical home, pay-for-performance, and
other quality initiatives in the bill.
SB 7 was still pending in the Health and Human Services
Committee in mid-April.
Action
, April 15, 2009