In a 2015 legislative session marked by new state leadership, new money, and big shifts in how Texas' major health care agencies oversee care delivery, the House of Medicine remained as steady as ever in its mission to ensure physicians can give their patients the best care possible. That resolve paid off in significant victories that largely build on the Texas Medical Association's 2013 legislative successes.
As this article was prepared, a majority of TMA's priority bills either became law or were on Gov. Greg Abbott's desk for his signature following House and Senate approval. Texas' newest governor has 20 days to act, whether signing bills into law, vetoing them, or allowing legislation to become law without signature.
Important milestones for Texas physicians include:
- Another significant expansion of graduate medical education (GME) funding and resident training positions, and more money for women's health and mental health services;
- Fairer rules governing Medicaid fraud investigations;
- Red-tape reductions, including the elimination of the Department of Public Safety (DPS) Controlled Substances Registration permit;
- Greater transparency in health plans sold on the federal exchange;
- First-ever regulation of e-cigarettes; and
- A tax break for all licensed physicians.
Key to medicine's success, TMA leaders say, were the relationships physicians built in their hometowns with new and familiar faces in the legislature, bolstered by hundreds of doctors, medical students, and TMA Alliance members who lobbied and testified at the Capitol throughout the session.
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. TEXPAC emerged strong, winning and preserving key seats held by physician, TMA Alliance, and other pro-medicine candidates.
Even though not all of TMA's bills made it to the finish line, medicine did not lose any ground, TMA leaders add.
The biggest disappointment: Despite the House's advancement of a measure to continue paying select primary care physicians at rates that match Medicare per the Affordable Care Act, the plan dissipated in the final weeks of the session in favor of shifting the funds into sweeping tax cuts. ACA increased Medicaid primary care payments to Medicare rates for two years using federal funds, but the pay bump expired Dec. 31, 2014.
More money went to mental health services, but Gov. Greg Abbott vetoed a measure allowing emergency physicians to protect mentally ill patients who pose a danger to themselves or others. An effort to expedite physician licensing did not survive, but TMA kept a slew of scope-of-practice expansions from seeing daylight and successfully warded off attempts to erode state telemedicine rules. Nor did a statewide texting ban survive another session, but neither did a balance billing ban, thanks to a TMA-negotiated compromise.
GME Wins Big; Tax Cuts for All
Tax cuts were a major priority for Governor Abbott and House and Senate leaders and largely drove budget negotiations. Meanwhile, the sunset review process — which the legislature uses to regularly evaluate the performance of state agencies, this time, health agencies — steered a number of health care policy decisions. TMA staff continue to pour over extensive bills to overhaul the Texas Health and Human Services Commission (HHSC) and the Texas Department of State Health Services (DSHS).
Despite the constitutional spending limit, lawmakers had an $8 billion surplus to spend, made possible by a steady upswing in sales and oil and gas tax revenues. About half of the surplus ultimately went into a $3.8 billion comprehensive tax relief package; the other half was interspersed among education, health care, transportation, and border security needs.
Other than losing the Medicaid-Medicare parity increase, TMA lobbyists say the tax relief package did not cut into medicine's budget priorities. As it went to the governor's desk, House Bill 1 spends roughly $210 billion in state and federal money. The 2016-17 budget represents a 6.6-percent increase over 2014-15 spending levels, with "growth in all of TMA's priorities," TMA lobbyist Michelle Romero said.
Among the recommendations TMA supported:
- $53 million for GME expansion grants, roughly $40 million above 2014-15 funding;
- An additional $50 million for women's health services;
- An $80 million increase in mental health and substance abuse funding; and
- $20 million dedicated to infectious disease surveillance.
GME expansion was medicine's top priority this legislative session, and thanks to years of advocacy coming to fruition, the issue was top of mind for lawmakers, too.
Senate Finance Committee Chair Sen. Jane Nelson (R-Flower Mound) championed the issue from the outset, culminating in her sponsorship of Senate Bill 18. TMA had a big hand in crafting the legislation, which serves as the major vehicle for the $53 million dedicated to expanding first-year residency slots in the 2016-17 biennium, and helping to reach the TMA and Texas Higher Education Coordinating Board's goal of 1.1 entry-level GME slots per medical school graduate. Programs can use the money to establish new first-year positions; maintain previously unfilled slots; continue positions started with 2014-15 grant funding; or plan brand new programs.
Other medical education monies include:
- $7 million for primary care physician pipeline programs: $4 million above current funding for the existing family medicine residency program and $3 million to restart the Statewide Primary Care Preceptorship Program;
- A 22-percent increase in biennial per-resident, or "formula," funding;
- A 3-percent increase in medical student formula funding;
- Maintained funding for the State Physician Education Loan Repayment Program; and
- Additional money for mental health workforce training programs in underserved areas.
Physicians also came out winners of a $200 annual tax cut, thanks to House Bill 7 by Rep. Drew Darby (R-Arlington) and Sen. Kevin Eltife (R-Tyler). The bill eliminates the annual occupational tax paid by physicians and a dozen other professions.
Senator Nelson and Rep. Dennis Bonnen (R-Angleton) led the fight for an overall tax relief package that would cut the state franchise tax rate by 15 percent, and, subject to voter approval, provide property tax relief. Physicians could also benefit from a separate measure, Senate Bill 8, allowing businesses with total revenue of $4 million or less to qualify for exemptions from the state franchise tax.
Medicaid Pay Boost Fizzles; Reforms Advance
On the other hand, TMA Vice President for Advocacy Darren Whitehurst expressed extreme disappointment with the decision against reinstating the Medicaid-Medicare parity payments for primary care. The pay raise — originally funded by the federal government in 2013 and 2014 — led to a 5-percent bump in physician Medicaid participation "and keeps us from losing doctors in places we can least afford to lose them," he said.
Governor Abbott and other state leaders announced at the outset of the 2015 legislative session that any kind of Medicaid expansion prescribed by the federal government was a nonstarter.
With health care consistently consuming a third or more of the state budget — and for the first time surpassing education in the 2016-17 budget — Mr. Whitehurst said, "Past legislatures have been equally reluctant to do anything proactive on Medicaid. But we are quickly headed toward crisis if we don't do anything. This [decision] is reflective of work we are going to have to do in the interim to recalibrate the Medicaid program and engage state leadership."
The legislature also ignored medicine's call to fully restore the 2011 cuts made to coinsurance payments for treating dually eligible Medicare-Medicaid patients.
Ms. Romero says the legislature nevertheless budgeted for costs associated with Medicaid caseload growth.
TMA also won long-sought Medicaid reforms that aim to take away some of the other big reasons doctors don't participate, besides low pay. One big step in that direction was Senate Bill 207 by Sen. Juan "Chuy" Hinojosa (D-McAllen). The bill outlines clear criteria for Medicaid fraud investigations by the Office of Inspector General (OIG).
The new law builds on TMA-backed Senate Bill 1803 passed in 2013, which paved the way for due process improvements. SB 207:
- Clarifies that "fraud" does not include unintentional technical, clerical, or administrative errors;
- Requires probable cause of a credible allegation of fraud for payment holds;
- Requires OIG to give physicians a detailed summary of its evidence relating to the allegation;
- Gives OIG 180 days to complete an investigation; and
- Gives physicians 10 days to request a confidential, informal settlement meeting.
Now that Medicaid has moved almost entirely to managed care, other TMA-backed reforms were in Senate Bill 760 by Sen. Charles Schwertner, MD (R-Georgetown), to increase oversight and accountability of Medicaid HMOs' network adequacy. The bill would suspend enrollment by and payments to health plans if they fail to maintain adequate networks.
TMA still has concerns, however, about other parts of the HHSC sunset bill, Senate Bill 200, that call for a consolidation of HHSC, the Department of Assistive and Rehabilitative Services, and the Department of Aging and Disability Services, and possible elimination of many of the advisory councils that offer an avenue for physician input. TMA also continues to analyze provisions in a separate DSHS sunset bill, Senate Bill 202 (Nelson), although lawmakers heeded medicine's call to keep DSHS a separate, standalone agency and make other changes that allow the agency to focus on its core public health functions.
Cutting Red Tape
Other key victories for medicine will go a long way to cut the red tape that takes valuable physician time and money away from patient care.
DPS backlogs will finally be a thing of the past thanks to Senate Bill 195 by Senator Schwertner. Effective Sept. 1, 2016, the state's CSR permit program will cease to exist, and physicians will need only their federal Drug Enforcement Administration (DEA) registration to prescribe controlled substances. The backlogs were a nightmare for many physicians who saw their prescribing and hospital privileges — and their patients' care — temporarily suspended because DPS did not process their permits on time.
The measure is part of a larger shift under SB 195 to move the state's electronic prescription drug monitoring database entirely from DPS to the Texas State Board of Pharmacy. TMA, pharmacy groups, and business groups advocated for moving the Prescription Access Texas program to a health-related agency, and the board has until March 1, 2016, to create rules.
"This move will create significant improvements for doctors," TMA lobbyist Dan Finch said. "It will make the database a better clinical tool with more timely and accurate data." Among other enhancements: electronic alerts, out-of-state data, and a broadening of physicians' authority to delegate who can access the information.
Physicians also will have fewer hassles identifying health plans sold on the federal exchange. TMA-backed House Bill 1514 by Rep. J.D. Sheffield, DO (R-Gatesville), requires insurers to clearly differentiate whether patients' bought coverage through the ACA marketplace by displaying the letters "QHP" on their plan identification cards.
Contrary to consumer groups' contention that the legislation labels and discriminates against patients with certain coverage, TMA lobbyist Patricia Kolodzey says the measure gives physicians an opportunity to educate patients about the benefits and limitations of the insurance coverage they purchase. Under federal rules, if patients with subsidized exchange coverage default on their premiums for 90 days, health plans can recoup physician payments in the latter 60 days of that grace period. HB 1514 allows physicians to communicate with patients about the importance of paying their premiums and to plan treatment accordingly, particularly long-term treatment, she says.
Balance Billing Preserved; Scope Expansions Averted
Transparency overall was a big theme for lawmakers heading into the 2015 session, and TMA worked with the National Multiple Sclerosis Society (NMSS) to support House Bill 1624 by Rep. John Smithee (R-Amarillo) as another layer of health plan accountability and an avenue to help patients make informed choices about their health plan coverage. The measure strengthens requirements for health plans to publically post on their websites their network directories and drug formularies. TMA also collaborated with NMSS on House Bill 1621 by Rep. Greg Bonnen, MD (R-Friendswood). The bill requires health plans to give physicians and patients 30 days' notice before denying a prescription drug or intravenous medication.
Maneuvers expected to require physicians to publicly post their charges and adhere to binding quotes went nowhere. Instead, the threat of a ban on balance billing reared its head again and captured lawmakers' attention as insurers' increasing use of questionably thin networks and shrinking maximum allowable amounts for some out-of-network services are increasing the frequency and size of the "surprise bills" patients receive.
Testimony by TMA physicians helped deter a bill to ban balance billing for emergency services altogether under House Bill 1638 (Smithee). With help from Sen. Kelly Hancock (R-North Richland Hills), medicine won a compromise under his Senate Bill 481, which lowers the threshold for patients to initiate mediation over balance bills from $1,000 to $500. As initially proposed, the measure would have eliminated the threshold altogether.
Medicine lost a bid, however, to prohibit health insurance plans from using virtual credit card payments to settle claims for health care services when Senate Bill 1229 by Sen. Kel Seliger (R-Amarillo) failed in the final days of the session. Unless physicians opt out, the electronic payment method can require doctors to pay a fee of up to 5 percent just to get paid for their services, which TMA says amounts to paying physicians below their contracted rate for a service.
In anticipation of another round of scope-of-practice battles, TMA physicians testified early and often, and TMA leaders say the efforts paid off for patient safety: Absolutely none of the proposed dangerous expansions of nonphysician practitioners' scope of practice passed. Among them, TMA warded off bills that would have allowed:
- Nurse practitioners to prescribe independently of physician delegation and to render a medical diagnosis;
- Physical therapists to treat patients without first seeking a diagnosis and referral from a physician;
- Optometrists, advanced practice registered nurses, and physician assistants more leeway to prescribe Schedule 2 drugs; and
- Chiropractors to issue handicap placards, and conduct mental and physical examinations of school bus drivers.
Following a flurry of last-minute amendments, TMA also is evaluating the impact of provisions in the DSHS sunset bill, SB 202, that transfer licensing and regulation of some health-related occupations — such as midwives, dietitians, and speech pathologists — to the Texas Department of Licensing and Regulation in 2017.
Meanwhile, the Interstate Medical Licensure Compact legislation to make it easier for qualified physicians to obtain licensure across state lines came up short. House Bill 661 by Rep. John Zerwas, MD (R-Richmond), would have created an expedited pathway for licensure without altering state requirements.
Mr. Finch called the bill failure "a lost opportunity" to boost access to care, including through telemedicine. However, now that seven states have joined the compact, put forth by the Federation of State Medical Boards, it is in full operation, and Texas can join at any time.
On the telemedicine front, the legislature also closed the door on an opportunity for physicians to get paid fairly for services like after-hours phone or telemedical consults. TMA-backed House Bill 2348 by Rep. Four Price (R-Amarillo) would have required health plans to pay local doctors the same as they would if hiring outside telemedicine vendors for those services.
As a handful of other telemedicine bills worked their way through legislative committees, TMA sounded the alarm bells on attempts like House Bill 2172 (Smithee) to skirt current Texas Medical Board (TMB) regulations and permit physicians to diagnose over the telephone without an initial face-to-face visit to establish a patient-physician relationship. The bill failed.
Left standing, however, were three TMA-supported telemedicine bills:
- House Bill 1878 by Rep. Jodie Laudenberg (R-Parker) requires Medicaid payment for telemedicine services provided in school-based settings;
- House Bill 3519 by Rep. Bobby Guerra (D-Mission) allows Medicaid payment for home telemonitoring of patients with two or more specific medical conditions and a history of frequent hospital admissions and emergency visits; and
- Provisions originally put forth in House Bill 2004 (Darby) to pilot-test emergency telemedical consults in rural counties with a population of 50,000 or less ended up in House Bill 479 by Rep. Cecil Bell (R-Magnolia).
TMA meanwhile won additional liability protections for physicians exchanging electronic health records through health information exchanges, while defending against potential erosions to state tort reforms, confidentiality of TMB complaints, and protections under the Texas Advance Directives Act.
Amid the heated end-of-life care debates that also tend to surface each session, TMA negotiated a compromise under House Bill 3074 by Rep. Drew Springer (R-Muenster) that allows for the provision of artificially administered nutrition and hydration as life-sustaining treatment in certain cases. TMA also negotiated a measure to ensure hospital ethics committees establish policies to handle conflicts of interest that did not end up passing. Instead, a palliative care and quality-of-life advisory council established by House Bill 1874 (Zerwas) will study an array of issues to increase awareness of and improve access to palliative care.
TMA also supported House Bill 2541 to ensure health plans cover certain treatments for enrollees diagnosed with terminal illnesses. The bill did not pass, but House Bill 751 to set requirements for prescribing and pharmaceutical substitution of biologic products did. Representative Zerwas authored both bills.
Public Health Gains
Texas took another big step forward on public health, starting with early passage of Senate Bill 97 by Senator Hinojosa. The first-time regulation of e-cigarette sales in Texas applies many existing state rules on tobacco cigarettes to vapor products, foremost barring sales of e-cigarettes to minors. Also hitting the governor's desk early with TMA support was Senator Hinojosa's Senate Bill 66, providing liability protections for schools to stock auto-injectors, or EpiPens, to combat emergency anaphylactic reactions. The governor signed both bills into law.
TMA lobbyist Troy Alexander adds the budget "significantly strengthened" funding for tobacco cessation and chronic disease prevention, while the Ebola outbreak in Texas led lawmakers to dedicate $20 million to surveillance of infectious diseases. Mental health funding was another shared priority among medicine and lawmakers, and it got a significant boost over last session for services like outpatient treatment for adults and children, autism intervention, and early treatment to reduce neonatal abstinence syndrome.
Governor Abbott wasted no time, however, taking his veto pen to a top priority of TMA's Behavioral Task Force since last session. Senate Bill 359 by Royce West (D-Dallas) would have allowed physicians to initiate a four-hour hold on patients who voluntarily seek emergency care but want to leave even though the doctor believes the patient poses a danger to self or others. Citing "serious constitutional concerns" that "would lay the groundwork for further erosion of constitutional liberties," Governor Abbott vetoed the bill, saying "medical staff have options at their disposal" and "should work closely with law enforcement to help protect mentally ill patients and the public."
A diverse coalition of consumer advocates, attorneys, political activists, and antivaccination groups urged the veto, saying SB 359 conflicts with individual and parental rights, including the right to refuse medical treatment.
"The physicians of the Texas Medical Association are extremely disappointed in Governor Abbott for vetoing a bill that would have saved lives, provided short-term help for people with mental illness, and actually would have kept some of them out of forced imprisonment," TMA President Tom Garcia, MD, said in response. "The governor should have reached out to physicians and other medical personnel who provide care in the real world of our emergency rooms before vetoing this legislation. They would have told him about the patients they encounter who pose a real danger to themselves or to those around them."
The governor also vetoed House Bill 225, a TMA-backed bill offering certain Good Samaritan legal protections for drug users who request emergency services for someone who overdoses and remain on the scene.
Heated testimony by antivaccination groups deterred TMA-backed House Bill 2474 by Representative Sheffield to give parents the right to know the number of students in their child's school who have opted out of vaccinations. But with help from physician legislators like Representative Sheffield, as well as Sen. Judith Zaffirini (D-Laredo), medicine was successful in passing House Bill 2171: a requirement that the state's immunization registry, ImmTrac, store childhood vaccination records until age 26 instead of age 18 to ensure they are available past college and into early adulthood.
A repeated attempt at a statewide texting ban did not clear the Senate after passing the House. But thanks to convincing testimony by pediatricians and cardiologists, an unnecessarily costly measure to require all student athletes to get expensive heart screenings also failed in the Senate.
The August issue of Texas Medicine will have complete details on TMA's 2015 legislative victories. For a video update on the session, see the upcoming June 5 edition of TMA’s Legislative News Hotline.
Amy Lynn Sorrel, associate editor of Texas Medicine, prepared this special issue of Political Prognosis.
Action Special Issue, June 3, 2015