Scope Fight, Budget Dominate Legislative Session

As the 2011 session of the Texas Legislature raced toward its halfway point in March, the battle over scope of practice for nonphysician practitioners was heating up, with a number of bills filed allowing incursion into the practice of medicine by nurse practitioners, podiatrists, and others. Among those bills is one that Texas Medical Association officials say would allow the Texas Board of Chiropractic Examiners to set chiropractors' scope at just about anything it deems appropriate.

Also, bills to allow hospitals to directly employ physicians continue to mount. The bills are aimed at urban county hospital districts as well as rural hospitals. Some of the bills include provisions to protect the patient-physician relationship – and physicians' clinical autonomy. Others are silent on protections.

Meanwhile, budget woes continue. Steep cuts proposed for education prompted demonstrations at the capitol. House and Senate budget writers tried to figure out how to trim billions from spending on Medicaid and other health care programs without decimating services.

While legislative committee debated all these issues, TMA lobbyists and leaders worked closely with lawmakers to minimize the impact of cuts to health care programs, defend the practice of medicine, and push forward with public health issues, such as the statewide ban on public smoking and antiobesity legislation.

Scoping Out Scope

A number of bills to allow nonphysician practitioners to expand their scope of practice were filed early in the session, including three giving nurse practitioners independent practice and another allowing direct access to physical therapists without a physician's referral. But that list continues to grow.

Senate Bill 1001 by Sen. John Carona (R-Dallas) prohibits any other state agency from interfering with scope-of-practice regulations handed down by the Texas Board of Chiropractic Examiners. The bill is designed to stop situations such as occurred when the Texas Medical Board joined TMA's suit against the chiropractic board over a rule allowing chiropractors to do needle electromyocardiograms (EMGs). The bill addresses in legislation what the chiropractic board lost through litigation as the courts agreed with TMA that needle EMG and manipulation under anesthesia constitute an unwarranted expansion of their scope.

SB 1001 also would allow chiropractors to set up joint ventures with physicians to be co-owners of physician practices and would require health plans to pay for chiropractic services.

Meanwhile, Sen. Carlos Uresti (D-San Antonio) filed a bill to allow podiatrists to do surgery on the ankle. Again, the legislation opens another front in their quest for expanded scope after a successful lawsuit by TMA challenged their board's ability to arbitrarily expand scope by board rule alone. And, optometrists seek authority to perform a number of different types of surgery around the eye.

TMA's position on these scope bills continues to be that nonphysician practitioners need to show evidence that they have the education and training to  safely provide the services or procedures they wish to provide. TMA officials say most cannot.

Who's the Boss?

More than 20 rural hospitals and a number of urban hospital districts continue to seek authority to directly employ physicians. Last session, TMA was able to agree with a Dallas County hospital district on legislation that allowed employment of physicians for purposes of meeting the mission of the district to care for the poor and indigent of Dallas County, but it also ensured that patient care decisions remained between the patient and the physician and that they would not be unduly influenced by the hospital administrator.

This year, local discussions in Houston involving the Harris County Medical Society, the Harris County Hospital District, Baylor College of Medicine, and The University of Texas Health Science Center at Houston have led to a similar agreement, with the responsibility for all clinical matters vested in a medical executive committee. Similar negotiations are proceeding in San Antonio and El Paso.

Sen. Robert Duncan (R-Lubbock) filed SB 894 to allow rural or critical care hospitals statewide to employ physicians. The bill varies significantly from a compromise bill that Senator Duncan succeeded in passing in 2009. Governor Perry, however, vetoed that bill at TMA's request because of a last-minute amendment that would have altered the state's 2003 medical liability reforms.

TMA is negotiating with Senator Duncan over that bill and is seeking to ensure clinical autonomy of the hospital medical staff is maintained in any employment situations that are allowed.

The Budget Battle

TMA leaders say the budget continues to be the focal point of the session, and a dire one. Lawmakers are looking at an emergency appropriation of $4.3 billion to plug a hole in the current budget and are staring at a $27 billion shortfall for the 2012-13 budget.

"There are going to be cuts in this budget; there is no question that there are going to be cuts," said Darren Whitehurst, TMA vice president for advocacy. "The question becomes exactly what they look like and who absorbs them."

A 10-percent, across-the-board cut in Medicaid physician and other provider payment rates in both the initial House and Senate budget bills is still being considered, but budget writers in both houses are looking for other ways they can reduce spending in Medicaid and the Children's Health Insurance Program (CHIP) that might have less impact than cuts in provider rates.

Among proposals considered is expanding Medicaid managed care statewide, including three counties in the Lower Rio Grande Valley where Medicaid HMOs currently are prohibited. Other ideas include imposing copayments for inappropriate use of hospital emergency rooms, limiting the number of prescriptions that adult Medicaid enrollees could receive each month, and cutting podiatry services except for diabetes patients.

A Medicaid subcommittee of the Senate Finance Committee is soliciting recommendations on ways to save money in Medicaid and CHIP from a wide array of interest groups, including TMA. Among recommendations TMA submitted were to:

  • Reduce unplanned pregnancies by simplifying enrollment in the Women's Health Program and expanding outreach;
  • Reduce inappropriate use of neonatal intensive care units through evidence-based clinical best practices and targeted utilization management strategies;
  • Implement strategies to reduce low-birth weight and pre-term babies;
  • Implement a coordinated patient education and home visitation program for patients with asthma; and
  • Expand use of managed care, accompanied by new statutory provisions to hold health plans accountable for improving availability and quality of care.

Meanwhile, the House Appropriations Committee is close to moving its budget bill out of committee. That panel is examining recommendations from its health and human services subcommittee that would give the Texas Health and Human Services Commission (HHSC) the authority to expand Medicaid HMOs, implement copays, and reduce emergency department usage to achieve $450 million in savings.

Committee members also discussed the potential impact of the proposed 10-percent cut to physician payments and other health care providers. Those cuts would make up almost $2 billion of the overall proposed cuts to health and human services in the House budget. Rep. John Zerwas, MD (R-Simonton), said the committee's goal is to hold the rate reductions to 2 percent for physicians who treat children.

TMA officials also say HHSC supports the need to establish medical homes for Medicaid patients and acknowledge it will be virtually impossible for many physicians to continue to see Medicaid patients if the 10-percent cuts go through.

The question is whether lawmakers can close the budget gap without some new revenues. Gov. Rick Perry and others are reluctant to spend even the $9 billion-plus now in the state's rainy day fund, but a growing number of lawmakers – both Democrat and Republican – seem to lean in that direction.

And TMA lobbyists say many lawmakers recognize they can't balance the budget with current revenues without doing irreparable harm to Medicaid and CHIP, education, and other programs. Although there are proposals to tax sugary drinks and legalize casinos, TMA officials say there is little appetite, particularly in the House, for any type of tax bill.

Meanwhile, TMA leaders and lobbyists are looking closely at Senate bills 7 and 8, which seek to rein in Medicaid spending, in particular, and health care spending, in general, through payment and delivery system reforms.

SB 7 would shift Medicaid from a fee-for-service basis to a quality-based payment system, while SB 8 allows creation of health care collaboratives – similar to accountable care organizations – in both Medicaid and private health plans.

TMA wants to make sure these Medicaid reforms and collaboratives result in improved care and value for the patients and that physicians lead the clinical efforts.

Best of the Rest

A TMA-supported statewide public smoking ban passed out of the House Public Health and Senate Health and Human Services committees in early March, but TMA officials say that bill has a "tough row to hoe." They say it will be difficult to pass a bill that does not allow for any exceptions. The measure was dealt a blow when the Legislative Budget Board (LBB) issued a statement that the ban would not cut costs in Medicaid or other state health care programs, though the LBB admitted savings were possible. HHSC released a written estimate that the legislation could at a minimum save Medicaid $31 million in a tough fiscal biennium.

Meanwhile, antiobesity measures that would place mandates on school districts or any public health bills that cost the state money also will be difficult to pass in this session, TMA leaders say. In fact, HB 400 by Rep. Rob Eissler would roll back and nearly eliminate the requirement of FitnessGrams that track the fitness of Texas students. This, in combination with 60-percent cuts to other obesity education and prevention measures in Article III public education funds, could be a devastating blow to antiobesity efforts in Texas, which continues to be among national leaders in obesity and related health care costs, according to the Archives of Pediatrics and Adolescent Medicine.

At a news conference March 1, TMA and the Texas Public Health Coalition (TPHC) encouraged lawmakers to support public health initiatives now for the future health of Texans and the state budget. They said solid science has shown that cutting budgets for tobacco-control and obesity-reduction programs has a negative impact on both the physical and the fiscal health of the state.

"We hope our legislators will make healthy choices now that can both help them balance the budget and help Texans live longer, healthier, more productive lives," said TMA President Susan Rudd Bailey, MD. "For starters, Texas can no longer afford to indulge the smoking and eating habits of some at a huge cost to all Texas taxpayers."

TPHC officials said the cost to the state of the indoor smoking ban is zero but the potential savings are immense for the state, for Texas business, and for individuals.

TPHC members also opposed deep cuts in funding for state obesity-prevention programs and public school health programs.

Lastly, Rep. Craig Eiland (D-Galveston) filed a TMA-backed bill to rein in so-called silent PPOs, where health plans inappropriately utilize discounts that physicians have negotiated with other plans.

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