Capitol Decisions Ahead
By Amy Lynn Sorrel Texas Medicine January 2015

The 2015 Texas Legislature May Bring Big Change, But TMA's Agenda Does Not Waver From Its Goal of Putting Patients First

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Cover Story — January 2015

Tex Med. 2015;111(1);26-34. 

By Amy Lynn Sorrel
Associate Editor

New state leadership, a ballooning budget, a spotlight on health care shortages, and wholesale review of the state's major health care agencies promise to hold some potentially big shifts for the 2015 legislative session and for organized medicine. However the tables turn, when the session opens Jan. 13, the Texas Medical Association is poised with an ambitious agenda to ensure the patient-physician relationship stays front and center and that legislators take it into consideration as bills make their way through the legislative process. 

TEXPAC, the association's political arm, went to bat early in one of the most significant election seasons in decades, marked by the departure of Gov. Rick Perry and big turnover at the Capitol and in statewide offices. (See "TEXPAC Gets Results.") TEXPAC emerged strong, winning and preserving key seats held by physician, TMA Alliance, and other pro-medicine candidates. But the turnover at the Capitol also brings an emphasis on limited spending and budgeting, notwithstanding Texas' robust economic health. 

Despite the challenge, TMA will continue to advocate for changes it considers essential, says Austin ophthalmologist Dawn Buckingham, MD, chair of TMA's Council on Legislation. "We are optimistic about the opportunity we have to build on our achievements from last session. We won't waiver from our goal, which is to promote quality, cost-effective care for Texas patients," she said.

TMA will continue to build on the unprecedented strides made in the 2013 session that put more money into graduate medical education (GME), women's health, and mental health, and to restore funding that in some areas still falls below 2011 levels. Physician leaders are encouraged that additional forces at work this session, like the sunset review process and a special committee dedicated to growing the health care workforce, present opportunities to strengthen health care in Texas. Many physicians also hold out hope Texas lawmakers will find a way to draw down the extra federal dollars available under the Affordable Care Act to improve health coverage and access to care for the working poor. (See "Minding the Gap.") 

TMA remains vigilant against recurring threats to medicine's progress, including attacks on new physician-led team-based care standards won in 2013; intrusions on physicians' private insurance contracts; a chipping away of prompt pay laws; and a bureaucratic bungling of TMA's red-tape reduction efforts. 

A New Climate

TMA Vice President for Advocacy Darren Whitehurst says TMA is looking forward to working with the new state leadership, "and we're optimistic we can get health care challenges in the state addressed." 

He notes that among other successful candidates, TEXPAC supported newly elected Gov. Greg Abbott (former state attorney general) and Lt. Gov. Dan Patrick (a former senator from Houston). In addition, Lieutenant Governor Patrick and a number of other lawmakers have highlighted the importance of GME throughout the election cycle. 

Medicine-friendly allies will continue to hold influential positions in the legislature, too. But TMA leaders emphasize physicians have an important role to play in educating roughly 30 new members in the House and Senate on medicine's issues, especially as anti-medicine groups seek to thwart the Party of Medicine's goals. (See "TEXPAC Needs You," September 2014 Texas Medicine, pages 18-24.)

"As always, we will have opportunities. But we will also be in a more defensive nature trying to protect what we have," said TMA President Austin King, MD, an otolaryngologist in Abilene. "This is going to be a much more conservative legislature looking to reduce program expenses, which will make it harder to get more money for things we are really concerned about. And medicine has been continually under attack from a philosophical standpoint." 

But medicine will not back down, he says. "The only thing guiding our mission is promoting good health care for all Texans, and that's the only thing. That's what we need to keep our eye on: the fact that we are doing the best thing we know for our patients, no matter what the cost to us, because that's what makes us who we are as doctors." 

Texas' coffers are full: A steady upswing in sales and oil and gas taxes means lawmakers inherit a $2.6 billion surplus that could grow to $8 billion in 2015, while a healthy Rainy Day Fund spills over at roughly $7 billion. 

Overshadowing medicine's agenda, however, is a state budget expected to balloon well beyond $200 billion for the first time, due largely to Texas' exploding population, Mr. Whitehurst says. 

The budget dominates each legislative session, and health care and education remain the top budget drivers. (See "A Piece of the Pie.") 

But higher population growth also means health care spending could surpass education spending in the 2016-17 budget, Mr. Whitehurst adds. 

The 2015 legislature also will have a $1 billion shortfall to cover in the Medicaid program to make up for caseload growth in 2015. Meanwhile, the state is cautiously withholding money to address a pending school finance lawsuit that could result in a court mandate for more spending on public education. 

The state comptroller should release revenue estimates this month, and Texas' new chief budget writer Sen. Jane Nelson (R-Flower Mound) anticipates "the strong Texas economy will continue to produce the revenue necessary to meet our needs. However, just because we have the money doesn't mean we will spend it." 

 Senator Nelson takes over as chair of the Senate Finance Committee, and Sen. Charles Schwertner, MD (R-Georgetown), an orthopedic surgeon, assumes her former role leading the Senate Health and Human Services Committee.

She plans "to emphasize smart investments throughout our budget to meet our most pressing needs and to ensure we are focusing our resources on outcomes," including "making the most efficient use of our limited Medicaid dollars." 

But Senator Nelson and other lawmakers also share TMA's goals to build on the progress made last session with GME and mental health.

Spotlight on GME, Mental Health

One of those key achievements was a $14.5 million boost to GME in the form of brand new grants to expand residency slots in Texas. The money helped add 139 positions in 2014-15 through five new programs. 

It's still not enough to keep pace with the increasing number of medical graduates in Texas, especially given the addition of three new medical schools and 250 new medical students starting in 2016, says Maryam Shambayati, DO, a pediatric resident in Houston and member of TMA's Board of Trustees. In addition, certain specialties, such as pediatric subspecialties and psychiatry, lack training opportunities in Texas. 

Dr. Shambayati is off to Oklahoma in July to do a fellowship in pediatric gastroenterology "because there's too much competition for just a few positions [in Texas]. In my case, it's fellowship, but many of our graduates can't even stay in Texas for their residency. The fact we are seeing [legislative] changes shows lawmakers are listening, and we have their ear, and we have to keep at it." 

Even though lawmakers substantially increased overall GME funding by $30 million, or 45 percent, in the 2014-15 budget, current levels still fall roughly $10 million below the historic 2010-11 amount of $106 million.

"We have to keep our doctors here. We did the right thing with tort reform, which certainly made our state more attractive. But there are other things to consider," like increasing residency slots, enhancing loan repayment programs, and restoring a state preceptorship program that exposes medical graduates to primary care specialties, Dr. Shambayati said. 

Rep. John Zerwas, MD (R-Richmond), agrees there's more work to do. "We still have a big gap in terms of having adequate GME spots for our medical graduates, and I think we can close that gap this session. We have the revenue to do that, and we probably could have done it last session from a pure revenue standpoint. But we made good progress, and I think we can get even farther down the road." 

TMA also hopes to capitalize on statewide attention to overall health care shortages in Texas after House Speaker Joe Straus established the Select Committee on Health Care Education and Training to focus on preparing more Texans for health care careers. TMA Alliance member Susan King (R-Abilene) chairs the group. 

In 2014, 177 of the state's 254 counties were designated all or partial health professional shortage areas by the U.S. Health Resources and Services Administration, with 207 counties named shortage areas for mental health services.

TMA lobbyist Michelle Romero says "the value of the committee is that [its charge] encompasses the gambit of health care professions, from radiology technicians all the way up to physicians. So it was mindful that there are shortages across the health care spectrum." 

In hearings held during the summer and fall, the committee discussed a variety of heath care training programs ranging from high school and vocational programs for nurses and physician assistants to medical school and GME for physicians. Members also took note of particular shortages in mental health professionals, including psychiatrists, psychologists, and social workers. 

Select committee member Rep. Garnet Coleman (D-Houston) said, "We are looking at every level on purpose, knowing that teams are how care is given now. And we are particularly looking at mental health care shortages." 

TMA Council on Medical Education Chair Rodney Young, MD, told the committee about the unique programs schools are undertaking to keep up with advances in technology and accreditation standards to prepare young physicians, especially in primary care. But he also stressed the need to continually feed the GME pipeline, "given the state's great need for more physicians to serve our growing population and the critical importance of providing adequate GME training opportunities for our own medical school graduates."

To get there, TMA is backing the Texas Higher Education Coordinating Board's request for an additional $40 million to continue supporting the 2013 GME expansion grant programs. 

R. Andrew Harper, MD, chair of the Federation of Texas Psychiatry, also testified to the acute need for psychiatrists in Texas and residency slots dedicated to training them, as well as other support for mental health services, such as loan repayment programs and increased Medicaid payment rates.

On the funding side, Representative Zerwas says he, too, is looking to "continue to push support into the mental health arena to address the challenges we have. We still have a ways to go, but we took a bigger step [in 2013] than I've ever seen in all of my previous four sessions."

Last session, mental health services funding saw one of the largest infusions in recent history with more than $225 million in new money added. 

"Continuing that momentum and really looking at what's worked in this two-year period of time and concentrating our dollars in a cost-effective way is a priority for me going forward," he said. 

TMA hopes to push the ball further to fix a system Austin emergency physician Christopher Ziebell, MD, says is not only severely under-resourced, but also poorly functioning. 

"A lot of people like to throw out the fact that Texas is 48th in spending on mental health. But we have the 50th worst accountants in the United States who are not documenting the things I see every day: Denying somebody access until they reach the point of crisis and have to spend 10 days in the ICU (intensive care unit) is not saving any money," the University Medical Center Brackenridge emergency department director said. "The reason we allow the system to work so poorly is we don't spend as much as other states. But we are also spending more money because we are doing a really bad job." 

Moving Parts

That pattern of bad spending was the gist of one of several critical reports the Sunset Advisory Commission issued this year that could represent a potential landmark shift in how the state delivers mental health and public health services, as well as in the organization of the state's major health agencies. (See "Will the Sun Rise?" October 2014 Texas Medicine, pages 35-38.) 

Through the sunset review process, the Texas Legislature regularly evaluates the need for and performance of all state agencies to make sure they are operating effectively and efficiently. Leading up to the 2015 legislative session, the 12-member commission proffered recommendations that now must go through the normal legislative process. 

Findings that Texas has a fragmented public health system that compromises the ability of the Texas Department of State Health Services (DSHS) to focus on its core mission suggest mental health services will no longer fall under DSHS authority and instead get more dedicated oversight to make sure funding and resources go where the need is, says TMA lobbyist Troy Alexander. 

The Ebola crisis also could draw attention to TMA's call for more public health funding. (See "Battling a Destructive Virus.") TMA partners with the Texas Public Health Coalition on a host of other public health priorities, as well. (See "Health Matters in Texas.")

Dr. Buckingham, one of three physician members on the sunset commission — along with Senators Schwertner and Donna Campbell, MD (R-New Braunfels) — says "with health care accounting for so much of the state's budget, it's important that we have a strong voice to help prioritize and implement the committee's recommendations."

A recommendation to consolidate the five health care agencies under the Texas Health and Human Services Commission (HHSC) into one mega-agency could "possibly be one of the largest bills ever considered by the legislature, and it will define health care delivery for years to come. But TMA is less concerned about the structure. Our job is to make sure that we maintain the quality of care so our patients receive the care they need."

The Texas Women's Healthcare Coalition, of which TMA is a member, also is watching closely to ensure any reconfiguration does not disrupt funding or access to care within the various women's health care programs that fall under DSHS and HHSC — especially at a time when the Texas Women's Healthcare Program is still undergoing major change. (See "A Steep Price," July 2012 Texas Medicine, pages 18-25.) 

The sunset process also yielded a series of preliminary wins for medicine with recommendations that heed TMA's call for administrative simplification within the Medicaid program and more fairness and due process in the Office of Inspector General's fraud prevention tactics. (See "Sun to Set on Overzealous Fraud Investigations.")

TMA's other priorities on the Medicaid front include fully restoring the 2011 cuts made to coinsurance payments for treating dually eligible Medicare/Medicaid patients; continuing the ACA increase in Medicaid payments to Medicare rates for primary care, and expanding them to cover specialty care, both of which require state and federal commitment; improving maternal health and birth outcomes; and improving access to care for Texas' working poor. 

Now that Medicaid has moved almost entirely to managed care, Mr. Whitehurst says HHSC "needs to hold health plans accountable to ensuring Texas patients are receiving quality care. Thus far, some of the health plans have done a lackluster job." 

The commission also needs to build on the progress made last session to start clearing away the ongoing administrative hassles that keep doctors from participating in Medicaid. 

Scoping Out Harm

Meanwhile, the association expects to play defense on the usual flurry of bills seeking scope-of-practice expansions from chiropractors, nurses, physical therapists, pharmacists, and psychologists, among others, that threaten patient safety and encroach on the practice of medicine. 

Any scope-of-practice issue is a patient safety issue, says Sugarland family physician Lindsay Botsford, MD. She recently saw a child previously cleared by a chiropractor to play sports, when the patient had a heart murmur and family history of heart problems. 

"Although she [the patient] was referred to a cardiologist, she never went back and was devastated because I didn't clear her for sports until she followed up," Dr. Botsford said. "The level of scrutiny is not the same as what we [physicians] do in our office." 

In another sunset victory TMA hopes to preserve, a commission recommendation spearheaded by Rep. Four Price (R-Amarillo) proposes that pre-participation sports physicals be performed only by physicians or their delegated physician assistants and nurse practitioners because of a growing awareness of cardiovascular and neurological conditions that affect student athletes.

TMA and the Texas Academy of Family Physicians also remain on guard against attempts by nurse practitioners to undermine Senate Bill 406 from last session, which replaced old site-based restrictions on prescription delegation and supervision with a more flexible, collaborative model for physician-led, team-based care. 

Some nurses maintain they should be able to independently treat Medicaid patients, even if the physician who delegates and supervises their prescribing authority does not participate in the program — something TMA Director of Legislative Affairs Dan Finch says the new law "did not and never intended to address. Nevertheless, children being able to access physician care is important. Medicaid [HMO] medical directors are aware of these issues and will continue to work with the small number of nurse practitioners and their delegating physicians to make sure that continuity of patient care is maintained." 

In anticipation of another round of debates over end-of-life care, TMA's workgroup dedicated to the issue will work to protect physicians' ability to do what's best for patients in their final days. 

Insurance, Red-Tape Redux

Also likely to resurface are a number of insurance issues that could place additional burdens on physician practices without any benefit to patients, says Dr. Buckingham. 

TMA helped deter several 2013 bills that would have subjected physicians to financial penalties and medical board sanctions if they did not adhere to their publicly posted prices. 

With medical price transparency gaining momentum nationally as a way to control costs, former Lt. Gov. David Dewhurst directed the Senate State Affairs Committee last year to study the impact of a 2007 comprehensive transparency law and recommend potential changes designed to create "a more open marketplace for enhanced consumer decisionmaking in Texas." 

In response, Dr. Buckingham says TMA's Council on Legislation has "been working hard to come up with a reasonable alternative" that not only provides physicians with some flexibility in posting their charges, but also gives patients useful information when any number of factors, such as patients' deductibles and health conditions, can affect what patients ultimately pay. (See "Lifting the Veil," July 2014 Texas Medicine, pages 37-41.)

TMA also testified before the Senate committee in September to the administrative challenges for physicians and the confusion for patients, given an overall lack of health care literacy among the newly insured over how insurance works. 

Implementation of the ACA insurance marketplace, meanwhile, could spark attacks on state prompt pay laws, which require commercial insurers to pay penalties on clean claims they fail to pay in a timely manner, says TMA lobbyist Patricia Kolodzey. Carriers selling coverage through the marketplace must adhere to Texas prompt pay laws and continue to pay those claims, which could be a struggle for insurers facing increased enrollments and claim volumes prompted by the ACA exchange. (See "Smoother Sailing?") 

Also vulnerable are state laws that allow non-network physicians to bill for out-of-network services they provide, as insurers' increasing use of questionably thin networks and tactics to kick physicians out of their networks drive patients out of network for care and increase incidents of balance billing. Insurers' shrinking maximum allowable amounts for some out-of-network services are increasing the size of the "surprise bills" patients receive.

Unfinished business at the Department of Public Safety (DPS), meanwhile, will revive TMA's red-tape reduction efforts to reduce agency backlogs in renewing physicians' controlled substances registration (CSR) permits. Doctors need the permits to obtain a federal Drug Enforcement Agency license so they can prescribe medications. 

Starting Jan. 1, 2014, TMA-backed House Bill 1803 from last session was supposed to streamline the process and help avoid care interruptions by making it part of physicians' biennial online medical license renewal at the Texas Medical Board (TMB). TMB made the necessary technological updates, but DPS has yet to follow through. 

The agency offered a temporary solution to automatically renew CSR permits at no charge. But physicians seek a long-term solution that would completely eliminate the hassles that have caused some to lose their prescribing authority and hospital privileges. 

Mr. Finch says TMA is working with pharmacy groups and others to move the current electronic prescription monitoring system from DPS to the Texas State Board of Pharmacy, which would allow for system improvements. 

Also on TMA's radar is a national proposal by the Federation of State Medical Boards to expedite physician licensure across state lines to facilitate the practice of telemedicine. (See "Digital Doctor," July 2014 Texas Medicine, pages 18-24.) Individual states must pass legislation authorizing the compact. TMB has shared the proposal with state lawmakers, and TMA is generally supportive of the effort.

Other expected telemedicine proposals, however, could target TMB rules emphasizing that safe telemedicine practices require the establishment of a patient-physician relationship. TMA policy supports TMB rules, and Mr. Finch says the association "will resist any weakening of those core standards."

SIDEBAR

A Piece of the Pie

As lawmakers' No. 1 priority, the budget dominates each legislative session, and health care and education remain the top budget drivers. 

Here's a look at the 2014-15 budget, which will likely balloon beyond $200 billion for the first time in 2016-17 due largely to Texas' population growth. Setting another potential record, health care spending could outpace education spending. Each accounted for more than one-third of the 2014-15 budget for a combined 74 percent. About 85 percent of the health care budget went to Medicaid. 

Total budget: $200.4 billion
Health and Human Services: $73.9 billion (36.9 percent)
Education agencies: $74.1 billion (37 percent)
Other (e.g., public safety, business and economic development): $51.5 billion (26.1 percent) 

Note: Totals may not add up due to rounding. Includes federal matching funds.

Source: Legislative Budget Board 

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 SIDEBAR

TEXPAC Gets Results

TEXPAC-endorsed candidates swept statewide offices in the November elections. But that was only after the successful groundwork TMA's political arm laid during a critical primary election cycle, winning most of the races it endorsed. 

Governor Greg Abbot — TEXPAC win
Lt. Gov. Dan Patrick — TEXPAC win
Attorney General Ken Paxton — TEXPAC win
Comptroller Glenn Hegar — TEXPAC win

To enlist in the Party of Medicine, visit the TEXPAC webpage or call the TMA Knowledge Center at (800) 880-7955.

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SIDEBAR

Health Matters in Texas

The Texas Public Health Coalition, of which TMA is a member, works to reduce preventable disease through policies that promote a safe and healthy environment and healthy behaviors for all Texans. Here are some of the proposed priorities for the 2015 legislative session:

Tobacco
Support adequate funding for comprehensive, statewide tobacco control and regulation of e-cigarettes as tobacco products, including prevention of youth access. 

Cancer
Support state funding for the Breast and Cervical Cancer Services program and the Texas Cancer Registry and funding of the Cancer Prevention and Research Institute of Texas while ensuring transparency. 

Immunizations
Improve access to information on immunization exemptions and provide information on the incidence of disease. 

Obesity
Preserve and support expansion of chronic disease prevention funding and support evidence-based policies that address healthy environments and obesity as they relate to physical activity and access to affordable, healthy foods. 

To learn more, visit the TMA website.  

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Last Updated On

April 27, 2018