Cover Story - August 2009
Tex Med. 2009;105(8):14-26.
By Ken Ortolon
If he were alive today, San Antonio sportswriter Dan Cook would be proud of the Texas Medical Association.
Mr. Cook was talking about the San Antonio Spurs' chances of winning a play-off series against Washington in 1978 when he popularized the phrase "the opera ain't over 'til the fat lady sings."
Thirty-one years later, TMA used that philosophy to stop the Texas Legislature from savaging the 2003 tort reforms that TMA and its member physicians fought so hard to pass and that have had such a profound effect on patients' access to care, the number of physicians in Texas, and doctors' liability premiums. Much like a baseball team cements a victory in the ninth inning by bringing in its ace relief pitcher, TMA turned to Gov. Rick Perry to close the show.
At issue was legislation to allow rural hospitals to hire physicians as a way to attract doctors to practice in underserved areas. While the bill was popular in those areas and some of TMA's members and legislative friends backed it, TMA was concerned that physicians working for hospitals could weaken doctors' clinical autonomy and harm the patient-physician relationship, as hospital administrators might have more allegiance to money than medicine.
Lawmakers this year filed 22 separate bills to modify the Texas Corporate Practice of Medicine Act and allow hospitals in rural counties to hire physicians. Sen. Robert Duncan (R-Lubbock) also filed a statewide physician employment bill that would have allowed hospitals in a majority of Texas counties to employ doctors.
"The counties are reaching out in an effort to solve a problem with access to care in rural Texas," said Dan McCoy, MD,chair of the TMA Council on Legislation. "I don't think they can be particularly blamed for looking at corporate practice. The problem we had was if you're going to expand corporate practice in Texas, you have to do it in an organized way, in a way that protects the patient-physician relationship." Dr. McCoy says none of the bills as originally filed included those safeguards.
After considerable negotiation with Senator Duncan and other stakeholders, TMA worked with House sponsor Rep. Garnet Coleman (D-Houston) to add some very important language to Senator Duncan's bill. Dan Finch, director of TMA's Legislative Affairs Department, says the changes provided "very strong protections" to ensure a hospital employer could not interfere with a physician employee's clinical autonomy. Those protections included a whistle-blower provision, a Texas Medical Board (TMB)-supervised certification process, and more.
Ultimately, the bill died in the House but was resurrected as an amendment to a different bill, House Bill 3485. However, to make it germane to that bill, employment authority was limited to government-owned hospitals in counties of 50,000 or fewer residents.
The issue seemed settled until the Texas Trial Lawyers Association mounted a sneak attack. As the legislative session was ending, the trial lawyers succeeded in doing by amendment what it couldn't do in straight-up face-to-face debate. It managed to add language to the bill that diluted liability protection for physicians and hospitals. As it turned out, the trial lawyers also succeeded in torpedoing Representative Coleman's delicate compromise.
Outraged, on June 8, after the legislature adjourned, TMA President William H. Fleming III, MD, wrote Governor Perry a letter asking him to veto the bill.
"We at TMA are most disturbed by the Texas Trial Lawyers Association's effort in this legislation to modify the medical liability standards at government-owned hospitals in counties with less than 50,000 population," Dr. Fleming said. "The bill not only changes the liability cap from a per-plaintiff standard to a per-defendant standard but also exposes these local governmental entities to tort liability risks way beyond those of the largest government facilities."
On June 19, the fat lady sang. Governor Perry vetoed the bill.
"As the husband of a former nurse at a rural hospital, the son-in-law of a rural county physician, and a native of a rural county, I understand the needs of rural hospitals and their patients," the governor said in his veto message. "I support rural hospitals' intention of attracting more doctors and would have been glad to sign a bill allowing them to do so by directly hiring physicians."
However, he said, the trial lawyers' amendment "would undermine some of the gains in medical liability reform that have come from caps on physicians' liability. These reforms were passed in 2003 and approved in a constitutional amendment election. The objectionable provision would increase the liability cap for doctors employed directly by hospital districts, as compared to the bill without the amendment. With respect to doctors employed by hospital districts, this amendment creates uncertainty as to the applicability of the liability cap available in a single action when multiple doctors or multiple claims are involved."
Governor Perry added that the bill's provision regarding physician liability "was neither debated nor discussed, but rather amended onto this bill late in the session. It risks unraveling the progress we made in curtailing excessive liability and ensuring that patients who need physicians will be able to find them. The 2003 medical liability reform has led to thousands of new doctors coming to Texas. The changes proposed by House Bill 3485 threaten the progress that reform has made."
Dr. Fleming praised the governor's bold action. "We are proud that Governor Perry always has been and remains a true champion for our patients by standing tall and leading the way toward enacting and protecting the 2003 liability reforms," he said.
Even though he vetoed HB 3485, Governor Perry signed HB 2154 to help 114 medically underserved counties attract new physicians by helping them repay medical school loans.
HB 2154 by Rep. Al Edwards (D-Houston) and Sen. Juan Hinojosa (D-McAllen) 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 the Texas Health and Human Services Commission (HHSC) recently launched for new physicians who agree 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.
A change in the tax on smokeless tobacco, expected to raise $100 million during the next biennium, will fund the expanded loan repayment program. The Senate added an amendment that would allow excess funds from that tax to increase to $1 million the exemption for small businesses subject to the new business margin tax. That change should help many small medical practices.
A Weird Session
Legislative sessions usually are unpredictable, but the 2009 Texas Legislature was particularly strange. The liability battle over the physician recruitment bill was far from the strangest moment of the year. The session may well be remembered for what didn't happen rather than for what did. Even so, it was a largely successful one for Texas physicians and their patients.
The House of Representatives got off to a slow start after deposing incumbent House Speaker Tom Craddick (R-Midland) and replacing him with relative newcomer Rep. Joe Strauss (R-San Antonio). Political observers say it took the new speaker 10 to 12 days longer than usual to get the House organized for business.
Meanwhile, the Senate opened the session with a nasty rules fight revolving around legislation to require voters to present a photo ID at the polls. The Senate passed that bill early on. But that was the precursor to a meltdown in the final hours of the 140-day session as House Democrats used a stalling tactic known as "chubbing" to block that bill from reaching the House floor for a vote. The idea of chubbing is to take as much time as possible to debate each bill and, like a winning football team, run out the clock.
Opponents of the voter ID bill succeeded in killing it, but they took hundreds of other bills down with it. Lawmakers adjourned without completing some critical tasks, including the reauthorization of the Texas Department of Insurance (TDI), the Texas Department of Transportation, and three other agencies.
Texas Weekly Editor Ross Ramsey compared the end of the session to the end of a bad marriage, "with the House walking out before the argument was over and the Senate, in a sulk, staying behind to break all the plates."
TMA leaders say that environment, along with the economic downturn, made 2009 a very challenging session for organized medicine. Despite those obstacles, however, TMA succeeded in enacting much of its legislative agenda.
Dr. Fleming says lawmakers largely followed TMA's prescription for fixing the state's broken health care system.
The legislature required insurers to use accurate data and valid, recognized standards when ranking or tiering physicians in their networks; preserved the 2003 liability reforms; increased funding for graduate medical education; and expanded the state's physician loan repayment program.
"Thanks to patients' champions in the House and Senate, the 2009 Texas Legislature passed bills to reform health insurance, increase access to health care, preserve the patient-physician relationship, and improve the health of all Texans," Dr. Fleming said.
On the public health front, the legislature funded the expansion of community-based obesity prevention programs, enhanced funding for local mental health crisis intervention, protected funding to enhance cancer prevention and research, and created a lifelong immunization registry. (For more on public health issues, see " Healthy Debate .")
"Clearly there was a lot of work left unfinished," Dr. McCoy said. "But I think we had good success this session."
Sen. Jane Nelson (R-Lewisville), who chairs the Senate Health and Human Services Committee, says health care fared better in the legislature than even she expected.
"We made more progress than I anticipated and more than most observers probably realize," she said. "We passed several bills that did not grab headlines but are going to help more of our citizens access health coverage and also to promote healthier lifestyles."
A major reason for TMA's success again this year was the use of the association's secret weapon: the white coat. Hundreds of white-coat-clad physicians from across Texas descended on Austin in record numbers on the first Tuesdays of February, March, April, and May to fill the galleries, offices, and hallways of the capitol to personally lobby lawmakers to pass TMA-backed bills and to testify on legislation before House and Senate committees.
"Physicians' testimony gave the legislature the perspective of physicians who practice medicine and face the challenges it brings every day," Dr. Fleming said. "It's one thing for a legislator to hear from an insurance executive or a state official. It's quite another for him or her to hear from a physician who sees how the legislature's actions affect patients and physicians. … Those white coats have a big impact."
Prepared for the Fight
As always, TMA was well positioned for its legislative battles on behalf of the state's patients and physicians.
As the session began in January, the association issued Doctor's Orders , its agenda for adding accountability and transparency in the health insurance market, expanding access to care, enhancing patient safety, and improving quality of care.
At the forefront of that agenda was an ambitious package of health insurance reforms to make sure patients have access to accurate and current information about their insurance coverage, including copays, deductibles, health plan networks, and more. TMA pushed several pieces of that package through, despite intense opposition from the health plans, but the centerpiece - TMA's Health Insurance Code of Conduct bill - was a victim of the chubbing against the voter ID bill.
"The goal was to create an environment that was more favorable to our patients as it relates to health insurance," said Lewis Foxhall, MD, of Houston, who chaired the TMA Select Committee on Health Insurance. "There are a number of issues and policies that have been pursued by some of the health plans that we felt were problematic for our patients."
The Code of Conduct bill by Sen. Kip Averitt (R-Waco) and Rep. Craig Eiland (D-Galveston) would have:
- Protected patients from inappropriate rescission of their health insurance policies;
- Given small employers a venue at the Office of Public Insurance Counsel to appeal questionable premium hikes;
- Helped patients and employers determine how much of their money the insurance companies actually spend on health care; and
- Prevented health plans from selling physicians' contracts behind their backs.
At the last minute,Senator Averitt added those provisions to a House bill on its way to final passage in the Senate. Other senators added amendments to the House bill, and the TMAprovisions, along with the House bill, died in conference committee at the end of the session.
TMA also made an effort to add pieces of its health plan reform package as amendments to the TDI sunset bill, but that measure also died, as did a sunset "safety net" bill that would have reauthorized TDI and four other agencies.
Meanwhile, several other pieces of TMA's health insurance reform agenda had greater success, including HB 1888 by Rep. John Davis (R-Houston) and Senator Duncan. That measure requires health plans to ensure that any physician-ranking system uses a valid methodology for measuring performance, gives physicians due process before the publishing of their ranking, and mandates disclosure of the measurement standards to physicians before the evaluation period. The commissioner of insurance is charged with adopting regulations to ensure insurers' ranking systems comply with standards and guidelines based on the National Quality Forum, AQA (formerly known as the Ambulatory Care Quality Alliance), and other nationally recognized standards the commissioner permits.
TMA also succeeded in pushing through a measure by Rep. John Zerwas, MD (R-Houston), and Sen. Kirk Watson (D-Austin) to clarify the definition of a physician group as two or more physicians. That bill corrects language from TMA's previous success in the 2007 legislative session when it secured passage of legislation that requires health plans to recognize a new physician joining a group as an in-network provider while the physician goes through the credentialing process.
"This will help avoid a lot of out-of-network charges that patients sometimes wind up with, which can be quite surprising and disconcerting," Dr. Foxhall said.
Among other patient-friendly, insurance-related measures that TMA succeeded in passing were bills requiring health plans to cover the cost of routine care associated with clinical trials, mandating rule-making to require adequate health insurance networks in local markets, and creating a mediation process for patients to resolve disputes for out-of-network, facility-based physician claims.
SB 6 by Senator Duncan, which creates the "Healthy Texas" insurance program for small employers, appeared to havedied despite widespread support from medicine, industry, consumers, and employers. However, the legislature passed the bill after supporters attached it to another measure, SB 78 by Senator Nelson, in conference committee. The legislation promotes awareness and education on the purchase and availability of health coverage andcreates a new public reinsurance pool to help small employers buy affordable coverage for their employees.
Senator Nelson cited SB 78 as one of the most significant health care achievements of the session.
"One of the barriers to health insurance in Texas is education," Senator Nelson said. "We need to help small businesses wade through the various types of health plans that are available on the private market."
Defending Tort Reform
Persuading the governor to veto HB 3485 is not the only way TMA defended tort reform in the 2009 legislative session. It succeeded in blocking the only other two serious challenges to the law.
As he did in 2007, Sen. Rodney Ellis (D-Houston) filed legislation to weaken protections for emergency physicians included in the 2003 reforms. SB 152 would have modified the gross negligence standard currently in the law from "willful and wanton" to "willful or wanton" and limited the emergency care protections only to Good Samaritans. The typical standard for negligence would apply to all other emergency care.
Supporters of the 2003 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 never got a vote in the Senate State Affairs Committee.
Another bill to allow plaintiffs to collect phantom damages also failed to gain traction. SB 1119 by Senator Hinojosa 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 discounted fees paid by the health insurer.
TMA leaders argued the proposed law would have 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 died in the House Judiciary and Civil Jurisprudence Committee.
The battle to prevent unsafe scope-of-practice expansions for allied health practitioners who never went to medical school but who want to practice medicine anyway is a constant challenge in the legislature. This year was no different.
However, only one scope-related bill passed. That was a compromise proposal among TMA and representatives of retail health clinics during the interim prior to the session.
The measure increases the number of physician assistants (PAs) and advanced practice nurses (APNs) to whom a physician can delegate prescriptive authority. In general, it increases from three to four the number of midlevel practitioners a physician can delegate to. But it also gives TMB authority to authorize a physician to supervise up to six midlevel practitioners for services limited in duration, nature, or scope.
The bill also includes a requirement that physicians register their delegation of prescriptive authority with TMB. A convenient electronic registration process is envisioned.
Mr. Finch says nurse practitioners pushed two other bills to expand their scope, but TMA succeeded in blocking them. The first would have created what Mr. Finch called a "very loose prescriptive agreement arrangement," allowing physicians to delegate to up to 10 PAs or APNs with little supervision required.
The second bill would have authorized complete independent practice for nurse practitioners.
Chiropractors also made a run at some scope expansion with no luck. And, a bill that TMA helped negotiate to license genetic counselors also was caught up in the last-minute stalling tactics.
What looked at the outset to be a tough budget session for Medicaid and the Children's Health Insurance Program (CHIP) got a big turnaround after Congress sent Texas billions of dollars from President Obama's federal economic stimulus package. Lawmakers used that money to boost spending for Medicaid by $2.5 billion in state general revenue funds.
In all, lawmakers approved $44.8 billion in state and federal funds for Medicaid. That money is expected to cover an expected increase in caseload from about 3 million to 3.2 million by 2011, as well as Medicaid coverage for legal permanent residents. It also will finance a program allowing families of children with disabilities to buy in to Medicaid.
CHIP also saw a budget increase of $74 million for the biennium. The increase will cover caseload growth, which is expected to increase to about 538,000 children.
While that was good news, TMA leaders say there also were some big disappointments on the Medicaid and CHIP front. A push to extend Medicaid eligibility from six months to 12 months of continuous coverage failed. And, a measure to create a CHIP buy-in program for families earning up to 300 percent of the federal poverty level died despite last-minute efforts to attach the provision to another bill. The CHIP buy-in bill would have covered about 80,000 children whose families currently make too much money to qualify.
Despite bipartisan support, Governor Perry raised concerns about the measure. It was unclear, however, whether he would have vetoed the bill had it reached his desk.
"We were very disappointed that lawmakers failed to extend the six-month eligibility out to 12 months for Medicaid," said San Antonio pulmonologist John R. Holcomb, MD, chair of TMA's Select Committee on Medicaid, CHIP, and the Uninsured. "It's just such an anomaly when we've recognized that's the most cost-effective thing we can do for the health of our children."
Dr. Holcomb also lamented the failure of the CHIP buy-in bill. He says the measure would have covered children in working families who would have "paid their fair share" for coverage.
Also disappointing was lawmakers' failure to increase physician fees under Medicaid. Dr. Holcomb says that could jeopardize gains in physicians' participation in Medicaid since lawmakers boosted rates by 25 percent in 2007 as part of the Frew v. Hawkins settlement.
Roughly 38 percent of physicians responding to TMA's 2006 physician survey said they were accepting new Medicaid patients, down from 67 percent in 2000. That increased to 42 percent in 2008, Dr. Holcomb says.
"It did seem to stop the hemorrhaging, even though Medicaid rates are still only about 70 percent of Medicare," Dr. Holcomb said.
Senator Nelson's omnibus Medicaid reform bill 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 HHSC to implement a health information exchange system to promote greater use of e-prescribing and electronic medical records among physicians 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 health care professionals accused of Medicaid fraud or abuse also died on the calendar awaiting final House approval. The bill was added as an amendment to other legislation, but the House parliamentarian ruled that action invalid.
Bucks for Education
Another area where TMA saw tremendous success was in medical education and graduate medical education (GME) funding.
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. Also, the Texas Tech University System's Paul L. Foster School of Medicine in El Paso received $67 million for growth, and Texas A&M University Health Science Center received $37 million to maintain recent growth and cover future expansion.
Lots of Other Bills
With nearly 1,500 health-related bills filed in the session, TMA leaders and lobby team frequently found themselves working multiple issues at the same time.
Right-to-life groups made a run at amending the state's Advance Directive Act to require hospitals to treat patients until they are transferred in cases where physicians have determined that further care is futile. That bill failed, but a measure backed by TMA to allow electronic signatures on advance directives passed.
There was little legislative activity on the workers' compensation front, but two bills passed that will give physicians more information about an injured worker's employment status and reduce preauthorization hassles for doctors treating workers' compensation patients.
A bill requiring women to have an ultrasound before having an abortion also failed.
While TMA did not get everything it wanted this session, Dr. McCoy says organized medicine laid a lot of valuable groundwork that should serve physicians well going forward.
"The one thing that this session has done is crystallize many of the issues and opponents very clearly, which I think will allow these issues to fare well in an ongoing basis," Dr. McCoy said. "I think we now have a pretty good idea about the direction that we need to go on many of these issues, including corporate practice, Medicaid, and even insurance reform. I think it also gave us a taste, too, of the direction we need to be very careful in taking to protect the tort reforms passed in 2003."
TMA is committed to helping solve rural Texas' health care problems without jeopardizing the state's liability reforms. In coming months, association leaders will work with rural physicians and hospitals to forge some solid solutions. "We will continue to work with state leaders to craft a consensus plan for the 2011 legislative session that more effectively addresses the problem of underserved areas and protects patient care and access," Dr. Fleming said.
Ken Ortolon can be reached by telephone at (800) 880-1300, ext. 1392, or (512) 370-1392; by fax at (512) 370-1629; or by e-mail at Ken Ortolon .
Physician Testimony Aids Legislative Wins
TMA's legislative success was due in large part to physicians who provided key testimony at House and Senate committee hearings on health care-related bills. Forty-three physicians joined TMA Presidents William H. Fleming III, MD, and Josie Williams, MD, in testifying during the session. Dr. Fleming thanked his colleagues for their efforts and praised their willingness to help TMA push its legislative agenda. These are the physicians who testified:
Samuel B. Adkins III, MD, Austin,
Bohn D. Allen, MD, Arlington,
Louis Appel, MD, Austin,
Cassandra Arceneaux, MD, MPH, LaMarque,
Sara Austin, MD, Austin,
Michelle Berger, MD, Austin,
Ari Brown, MD, Austin,
Dawn Buckingham, MD, Austin,
Mark Chassay, MD, Austin,
Joel Dunnington, MD, Houston,
Kimberly Edwards, MD, Austin,
Gary Floyd, MD, Fort Worth,
Lewis Foxhall, MD, Houston,
A. Tomas Garcia, MD, Houston,
John Gill, MD, Dallas,
Albert Gros, MD, Austin,
Charleta Guillory, MD, Houston,
John Hellerstedt, MD, Austin,
Richard Helmer III, MD, Austin,
Robert S. Hendler, MD, Dallas,
Carlos Hernandez, MD, Eagle Pass,
John Holcomb, MD, San Antonio,
Ladon Homer, MD, Fort Worth,
Jerry Hunsaker, MD, Corpus Christi,
John Jackson, MD, Fort Worth,
Jeff Jekot, MD, Austin,
Barry Lachman, MD, Dallas,
C. Bruce Malone, MD, Austin,
Dan McCoy, MD, Dallas,
Clifford Moy, MD, Austin,
Sharon Raimer, MD, Galveston,
Janet Realini, MD, MPH, San Antonio,
Cristy M. Schade, MD, PhD, Garland,
Joseph Schneider, MD, MBA, Dallas,
Charlotte Smith, MD, Austin,
Michael Speer, MD, Houston,
Bernard Swift, DO, San Antonio,
Jason Terk, MD, Keller,
Todd Thames, MD, San Antonio,
Lyle Thorstenson, MD, Nacogdoches,
Stanley Wang, MD, Austin,
Dennis Watts, MD, Austin, and
James T. Willerson, MD, Houston.
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