It's all over but the crying – and possibly the vetoes. The 2009 Texas Legislature wrapped up its 140-day session on June 1 with a flurry of last-minute activity resulting largely from House Democrats' successful efforts to "chub" the controversial voter ID bill to death. Chubbing, or the fine art of wasting time, is a legislative tool to delay debate on one bill by dragging out debate on every bill ahead of it on the House calendar with the hope that the clock will run out. While Democrats succeeded in killing the voter ID bill, they also killed hundreds, if not thousands, of other bills that never made it to the floor for a vote. That prompted bill sponsors to scour every remaining viable legislative vehicle that had a chance of passage for opportunities to tack their dead bills on as last-minute amendments. Some were successful, such as Sen. Robert Duncan (R-Lubbock), who attached his bill to allow hospitals in rural counties to directly hire physicians to a bill relating to county affairs. Others had their late amendments stripped because the amendments were not relevant to the bills to which they were attached.
All in all, TMA leaders say organized medicine's agenda – Doctor's Orders – met with a great amount of success on the health insurance reform, public health, physician workforce, scope of practice, and other fronts. All that's left now is to see how medicine's bills fare on the governor's desk. Gov. Rick Perry has 20 days after a measure reaches his desk to sign it, veto it, or allow it to become law without his signature. While we're waiting for that drama to play out, here's a wrap-up of how Texas Medical Association's major issues fared.
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Health Insurance
Legislation to provide patient protections was among several pieces of TMA's health insurance reform package that passed in the session and was sent to the governor.
Senate Bill 39 by Sen. Judith Zaffirini (D-Laredo) and Rep. John Zerwas, MD (R-Houston), requires health plans to continue to provide benefits for routine patient care costs to an enrollee in connection with a phase I, II, III, or IV clinical trial. The trial must be conducted in relation to the prevention, detection, or treatment of a life-threatening disease or condition and approved by certain federal health, defense, Veterans Administration, or certain state institutional review boards.
House Bill 389 by Representative Zerwas and Sen. Kirk Watson (D-Austin) corrects and clarifies the definition of a "group" as two or more physicians. This correcting legislation from HB 1594 last session requires health plans to recognize new physicians joining a group for out-of-network payment purposes as participating until the health plan fully credentials them. This measure allows patients to receive the benefit of their in-network coverage sooner rather than later.
HB 1888 by Rep. John Davis (R-Houston) and Senator Duncan requires health plans to ensure that any physician-ranking system uses accurate physician data, allows due process for physicians to occur before the publication of their ranking, and specifies that the measurement standards used be valid, evidence-based, and consistent across all health plans in the market. The bill awaits Governor Perry's signature.
The House concurred in Senate amendments to HB 2256 by Rep. Kelly Hancock (R-North Richland Hills) and Senator Duncan on a 136-1 vote. This heavily negotiated bill with various health care stakeholders sets up a mediation process for patients to resolve disputes for out-of-network, facility-based physician claims provided at an in-network facility. The measure also requires the Texas Department of Insurance commissioner to adopt network adequacy standards to increase the likelihood that patients will receive services from participating physicians.
SB 1257 by Sen. Kip Averitt (R-Waco) and Rep. Craig Eiland (D-Galveston), TMA's Health Insurance Code of Conduct, did not pass. Like many other pieces of legislation, it ran out of time because of the backlog of bills in the House. The bill would have addressed important patient protections such as inappropriate rescission of health care policies, provided an appeal process for small employer premium quotes, and required standard reporting of medical loss ratios by health plans. Even a gutsy last-minute move by Senator Averitt to add these provisions to a House bill in the Senate on its way to final passage was unsuccessful. Other senators added amendments, and the provisions died in a conference committee at the end of session.
It appeared Senator Duncan's SB 6 to create the "Healthy Texas" insurance program for small employers had died despite widespread support from medicine, industry, consumers, and employers. However, the bill was tacked on to another bill – SB 78, which promotes awareness and education on the purchase and availability of health coverage – and was passed by the legislature. SB 6 creates a new public reinsurance pool to help small employers buy affordable coverage for their employees.
One piece of unfinished business that could impact organized medicine was the legislature's failure to pass a Texas Department of Insurance (TDI) sunset bill. The House included TDI in a sunset "safety net" resolution that would have continued TDI and several other agencies until the next legislative session. The Senate, however, failed to act on that resolution. Unless Governor Perry calls lawmakers back into special session later this year, TDI will have to shut down its operations some time in 2010. Governor Perry, however, said at a news conference on June 2 that there is no need for an immediate special session on that or any other issue.
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Medical Liability
The TMA-backed medical liability reforms of 2003 survived the session unscathed. There was an effort to weaken protections for emergency physicians included in the 2003 reforms, but that measure failed. SB 152 by Sen. Rodney Ellis (D-Houston) would have affirmed the gross negligence standard but extend emergency care protections only to Good Samaritans. Supporters of the 2003 medical liability reforms pointed out that since the passage of those reforms 82 Texas counties have seen a net gain in emergency physicians, including 26 counties that previously had none. The measure was heard in the Senate State Affairs Committee but never got a vote.
SB 1119 by Sen. Juan Hinojosa (D-McAllen) and its companion, HB 1956 by Rep. John Smithee (R-Amarillo), would have permitted plaintiffs to collect discounted or forgiven medical bills. These phantom damages typically involve the pursuit of full medical charges billed by the physician or health care provider rather than the reduced amount paid by the health insurer. Rather than increase meritorious claims, the proposed law would have merely increased fake damage claims and inflated settlement demands. SB 1119 was reported out of the Senate State Affairs Committee but never made it to the Senate floor. The House companion bill, HB 1956, died in the House Judiciary and Civil Jurisprudence Committee.
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Medicaid/CHIP
Lawmakers approved a $2.5 billion increase in general revenue funds to cover projected cost increases and caseload growth in Medicaid for the upcoming biennium. That brings total state funding for Medicaid to $18.7 billion, or about 10 percent of the total two-year budget. All funds budgeted for Medicaid, including federal matching dollars, totaled $44.8 billion. Those funds will cover an expected increase in caseload from about 3 million to 3.2 million by 2011; maintain rate increases enacted in 2007 as part of the Frew v. Hawkins lawsuit settlement for physicians, dentists, and other providers; implement a Medicaid buy-in for children with disabilities; and provide Medicaid coverage for legal permanent residents.
That's the good news. The bad news is there is no money in the budget to increase payment rates for physicians or dentists, further improve the state's eligibility system, or implement 12-month continuous coverage for children on Medicaid. There also is a rider in the appropriations bill reducing Medicaid spending by $107 million in general revenue during the biennium. TMA was able to amend the rider to remove language to implement an HMO-style plan known as an exclusive provider organization in rural and border areas and to increase from 3 percent to 10 percent the discount on physician fees that Medicaid HMOs could impose on out-of-network services.
Meanwhile, lawmakers also boosted general revenue spending for the Children's Health Insurance Program (CHIP) by $74 million to $624 million for the biennium. That puts total funding, including federal matching dollars, at $2 billion. The increase will cover caseload growth, which is expected to increase to about 538,000 children. Money also was included in the budget to implement SB 841 by Senator Averitt, a CHIP buy-in program for families who earn too much to qualify for CHIP. That buy-in program would have covered an additional 80,000 children. In the final days of session, the bill died on the calendar, only to be resurrected as an amendment on another bill. Yet, with less than 11 hours remaining in the 81st legislative session, and strong bipartisan support, the House failed to take up the bill, killing the issue for this session. Should the governor call a special session, several lawmakers have indicated they will push to include CHIP buy-in on the agenda.
The 2009 omnibus Medicaid reform bill, SB 7 by Sen. Jane Nelson (R-Lewisville), died awaiting debate by the full House, but pieces of the bill were resurrected as amendments on other pieces of legislation. This included language directing the Texas Health and Human Services Commission (HHSC) to implement a health information exchange system to promote greater use of e-prescribing and electronic medical records among physicians participating in Medicaid and CHIP.
Legislation also passed to give physicians greater access to information about how HHSC selects drugs for the Medicaid preferred drug list.
Unfortunately, TMA-backed legislation to improve due process protections for physicians and providers accused of Medicaid fraud or abuse, SB 1542 by Sen. Carlos Uresti (D-San Antonio), also died on the calendar awaiting final House approval. The bill was added as an amendment to other legislation, but ultimately the House parliamentarian ruled that action invalid.
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Physician Workforce/Medical Education
TMA's efforts to entice more physicians to practice in underserved areas got a big boost May 30 when the House voted to concur with the Senate version of HB 2154, which expand the state's physician loan repayment program. The measure increases from $45,000 over five years to $160,000 over four years the amount of medical school debt the state will repay for a physician who agrees to practice in an underserved community. The measure is even richer than the loan repayment program HHSC recently launched for new physicians agreeing to provide care for a certain level of Medicaid patients. That program will repay up to $140,000 of medical school debt over four years.
The expanded loan repayment program will be funded by a change in the tax on smokeless tobacco, which is expected to raise $100 million during the next biennium. The Senate added an amendment that would allow excess funds from that tax to pay to increase to $1 million the exemption for small businesses subject to the new business margins tax. That change should help many small medical practices.
Meanwhile, medical education funding got a nice boost, particularly graduate medical education (GME) funding. Senate Bill 1, the appropriations bill, includes an 18.1-percent, or $15.7 million, increase in state support for GME. That will increase GME formula funding for the next biennium from $5,634 to $6,653 per year per residency slot.
The Higher Education Coordinating Board also got an increase of $3.75 million for its Family Practice Residency Program, a 21.5-percent hike. Total funding for primary care GME programs administered by the board will be $26.8 million for the biennium.
Formula funding for medical students also increased 2.7 percent, from $51.527 to $52,896 per student. Meanwhile the Texas Tech University System's Paul L. Foster School of Medicine in El Paso received $67 million for growth and the Texas A&M University Health Science Center received $37 million to maintain recent growth and cover future expansion.
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Corporate Practice
Legislation to allow public hospitals in rural counties to directly employ physicians was tacked onto a bill relating to county services and sent to the governor after the House concurred in Senate amendments. The bill includes strong provisions advocated by TMA to protect any employed physician's clinical autonomy. The bill applies only to government run hospitals in counties with a population of less than 50,000.
The hospitals must be certified by the Texas Medical Board (TMB) and meet board rules and polices relating to credentialing and privileges, quality assurance, utilization review, peer review, medical decision-making, due process, and discrimination for or against a physician based on employment status.
The measure also prohibits a hospital from including a noncompete clause in a physician's contract, protects the physician against retaliation for reporting violations of TMB rules, assures that all physicians – employed or not employed – can maintain clinical autonomy, and provides a fair process for terminations.
However, the bill potentially expands liability exposure to those government hospitals that would exercise the option of physician employment and has drawn Governor Perry's attention for a possible veto.
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Public Health
Two TMA-backed immunization bills passed early in the session, and Governor Perry has already signed them. The first creates a lifelong immunization registry. The second allows the state to share immunization data with other states when emergencies, such as hurricanes or other natural disasters, force Texas residents to evacuate. A third Texas Public Health Coalition bill, SB 1328 by Senator Nelson, has been sent to the governor for his signature. It provides for a study of the vaccination needs of first responders and their families during a declared disaster.
A bill to expand the state's child booster seat law also passed and became law on May 29 without the governor's signature. The bill requires children younger than 8 years riding in cars to be strapped into a booster seat, unless they are taller than 4 feet, 9 inches.
Meanwhile, a number of bills related to obesity prevention supported by the Texas Public Health Coalition passed. Among those are SB 282 by Senator Nelson, which awards grants to implement nutrition best practices in schools and early childhood environments, and SB 870, which directs Medicaid and CHIP to implement pilots to help reduce childhood obesity among enrollees.
Additionally, the legislature funded a TMA-supported effort to expand the newborn genetic screening panel to include cystic fibrosis.
On the mental health front, lawmakers invested some $83 million in new state dollars to enhance crisis redesign efforts begun in 2007. The new dollars will help communities not only maintain community-based services but also expand to include more preventive mental health initiatives.
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Scope of Practice
TMA's agreed-to bill with retail health clinics increases the number of physician assistants (PAs) and advanced practice nurses (APNs) to whom a physician can delegate prescriptive authority. The measure increases general delegation from three to four and establishes a TMB waiver process for a physician to supervise up to six midlevel practitioners for services that are limited in duration, nature, or scope.
The measure, however, maintains the medical model of delegation requiring both supervision and accountability by the physician. It also includes a requirement that physicians register their delegation of prescriptive authority with TMB. A convenient electronic registration process is envisioned.
No other significant scope expansion bill passed the legislature.
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Pain Management/Emergency Care
Two other measures that passed will impact pain management clinics and freestanding emergency rooms. SB 911 requires the certification of pain management clinics and directs TMB to adopt rules to ensure quality of patient care and set personnel requirements at such clinics. The measure would not impact physicians who do pain management but not as their primary practice.
HB 1357 establishes a licensure requirement for freestanding emergency rooms and creates different licensure classifications for facilities that are open around the clock and those with limited hours. The Texas Department of State Health Services will be the licensing agency. The measure also sets standards for freestanding emergency rooms, including requiring facilities with limited hours to clearly display a sign showing whether they are open.
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Action, June 3, 2009
Last Published: 7/13/2009
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