The 2017 regular session of the Texas Legislature gaveled to a close May 29. For medicine, the session was a mosaic of many richly colored tiles with some dark spots and quite a few shades of grey. The artists were shifting alliances and divisions of senators and representatives, Democrats and Republicans, and various factions of the GOP.
The final product includes one obvious empty space. Thanks to a long-brewing, House-Senate feud over unrelated issues, the legislature adjourned without passing a bill to reauthorize the Texas Medical Board (TMB) and the Medical Practice Act beyond their scheduled Aug. 31, 2017, demise.
"This is a fight that has nothing to do with the physicians or with the TMB, and everyone at the Capitol knows that," said TMA President Carlos J. Cardenas, MD. "The TMB serves a critical state function, licensing physicians and protecting the health and safety of Texans. We have no reason to believe that any of our state leaders want the TMB to go away, and we have every expectation that they will find a way to make sure that doesn’t happen."
At a news conference May 29, Gov. Greg Abbott said he will announce his plans for a special session in the future. "When it gets to a special session," he said, "the time and topics are solely up to the governor of the state of Texas."
Below is a comprehensive look at the bills that were of interest to TMA and its members.
Medicine's Bills Signed by the Governor
Senate Bill 507 by Sen. Kelly Hancock (R-North Richland Hills) and Rep. John Frullo (R-Lubbock) will expand the billing mediation process to all physicians and others providing out-of-network services at certain in-network facilities. It also expands mediation to out-of-network situations for emergency care.
Senate Bill 680 by Senator Hancock empowers physicians to override health plans’ step therapy protocols, allowing them to continue prescribing an effective medication even if the insurer’s step therapy plan calls for a change in medication.
Senate Bill 1107 by Sen. Charles Schwertner, MD (R-Georgetown), establishes a statutory definition for telemedicine and clarifies that the standard of care for a traditional, in-person medical setting also applies to telemedicine services. In the House, Rep. Four Price (R-Amarillo) added language making it clearer that telemedicine is not a distinct service but a tool physicians can use. The bill also prohibits health plans from excluding telemedicine from coverage just because the care isn’t provided in person.
Senate Bill 224, Sen. Kirk Watson’s (D-Austin) Cancer Prevention Research Institute of Texas sunset bill, extends the sunset date of the cancer research organization from 2021 to 2023, while also adding two years to its eligibility to allocate funds, to 2022. Its House sponsor was Rep. Sarah Davis (R-West University Place).
Medicine's Bills Sent to the Governor
Thanks to the more than 1,250 Texas physicians who rallied to support this bill during the final weekend of the session, Senate Bill 1148 by Sen. Dawn Buckingham, MD (R-Lakeway), finally passed. As originally written, SB 1148 would have prohibited health plans and hospitals from using maintenance of certification (MOC) to differentiate among physicians for payment, contracting, or credentialing. It also would have required TMB to certify alternative MOC programs. In the final compromise version, the bill still prohibits the state from using MOC as a requirement for state licensure or renewal, or insurance participation — but permits health facilities to use MOC if hospital medical staffs vote it is appropriate for their own hospital. Rep. Greg Bonnen, MD (R-Friendswood), was the House sponsor.
House Bill 10 by Representative Price will establish a state mental health parity work group, designate an ombudsman as an advocacy resource, and clarify benefit terms and coverage for mental health and substance use. TMA hopes the legislation also will improve Texas Department of Insurance mental health parity oversight; increase physician, health care provider, and patient engagement toward achieving true mental health parity; and identify areas to improve historic parity challenges.
House Bill 62 by Rep. Tom Craddick (R-Midland) to ban texting while driving statewide is on Gov. Greg Abbott’s desk. After a 10-year journey and a nearly unanimous vote, hopefully the governor will sign it into law. Sen. Judith Zaffirini (D-Laredo) was the bill’s Senate sponsor. The measure was a TMA and Texas Public Health Coalition (TPHC) priority. Please use the TMA Grassroots Action Center to send Governor Abbott a message urging him to sign this bill.
House Bill 1917 by Rep. Richard Raymond (D-Laredo) will keep the Medicaid Preferred Drug List (PDL) under Texas Health and Human Commission (HHSC) oversight. The bill places the PDL under HHSC auspices until 2023, after which managed care organizations would manage the formulary and the PDL. The bill's Senate sponsor was Senator Schwertner.
House Bill 2561 by Rep. Senfronia Thompson (D-Houston) finally passed, amended by lawmakers to include Physician Drug Monitoring Program (PDMP) initiatives to identify potentially harmful prescribing or dispensing patterns or practices that might suggest drug diversion or “doctor shopping.” The idea is to address people’s misuse of, and addiction to, opioid pain medicines. The prescribing amendment calls for physicians and all other prescribers and dispensers to check the PDMP before prescribing any of the listed classes of medications after Sept. 1, 2019. The implementation date provides TMA with the opportunity to request possible revisions during the 2019 Texas Legislature.
House Bill 3576 by Rep. Bobby Guerra (D-McAllen) will shore up the state’s testing and screening capabilities for infectious diseases, such as the Zika virus. TMA told lawmakers physicians support the bill because it upholds a core function of public health. Disease surveillance allows for the implementation of prevention and treatment activities, TMA said.
Senate Bill 570 by Sen. Jose Rodriguez (D-El Paso) “relating to the regulation of the retention, storage, transportation, and disposal of used or scrap tires” was successfully reconsidered after initially failing on a tight vote, thanks in part to Representative Davis’ floor explanation that the bill could help mitigate the spread of infectious diseases such as the Zika and West Nile viruses by reducing the standing rainwater in old tires (thereby keeping disease-carrying mosquitoes from breeding in the stagnant water). She drew from points provided by TPHC, of which TMA is a member. Boom — the bill was saved and passed and is on Governor Abbott’s desk.
Senate Bill 674 by Senator Schwertner created an expedited licensing process for psychiatrists who are licensed to practice medicine in another state and board certified.
Senate Bill 894 by Senator Buckingham relates to HHSC’s strategy for managing audit resources, including procedures for auditing and collecting payments from Medicaid managed care organizations (MCOs). The bill requires HHSC to adopt risk-based audit procedures for MCOs, making the process transparent.
Senate Bill 922 by Senator Buckingham will allow Medicaid to reimburse school districts and open-enrollment charter schools for telehealth services provided to students.
Senate Bill 1066 by Senator Schwertner requires new medical schools to offer new GME positions to keep pace with their medical graduates. TMA testified in February in support of the bill.
House Bill 435 by Rep. Ken King (R-Canadian) became the host vehicle for House Bill 14 by Andrew Murr (R-Junction), which will allow the Texas Department of State Health Services (DSHS) to post signs prohibiting handguns at Texas’ 10 state mental health hospitals.
House Bill 1600 by Representative Thompson will allow Medicaid to pay physicians to conduct mental health screenings during each annual well-child exam, under the Texas Health Steps program. TMA explained in committee testimony that this bill improves the current scenario in which designated Medicaid procedure codes for this screening may be used only once in a young patient’s lifetime (between ages 12 and 18).
House Bill 2466 by Representative Davis will require children’s Medicaid and the Children’s Health Insurance Program (CHIP) to cover maternal depression screening for an enrolled child’s mother during a covered well-baby visit or other office visit to a pediatrician or pediatric provider. Sen. Joan Huffman (R-Houston), the Senate sponsor, added an amendment allowing pregnant women enrolling in Medicaid to sign up for texts, emails, or phone calls from their Medicaid HMO to receive appointment reminders, as well as health information to maintain a healthy pregnancy.
The governor has 21 days to sign bills, veto them, or let them become law without his signature. TMA will be reporting what happens.
Bills TMA Opposed That Died
House Bill 1415 by Rep. Stephanie Klick (R-Fort Worth) and its companion, Senate Bill 681 by Senator Hancock, would have granted advanced practice registered nurses full, independent practice and prescribing authority without physician supervision.
Senate Bill 728 by Sen. Van Taylor (R-Plano) and its companion, House Bill 2118 by Representative Klick, would have allowed patients 30 days of direct access to treatment by physical therapists without being seen first by a physician.
House Bill 719 by Rep. Gene Wu (D-Houston) would have indexed the caps established in the 2003 tort reform law according to changes in the Consumer Price Index.
House Bill 593 by Rep. Dustin Burrows (R–Lubbock) and its companion, Senate Bill 1240 by Senator Rodriguez, would have allowed psychologists prescribing authority, a practice reserved for medical school-trained physicians.
House Bill 4011 by Representative Burrows would have amounted to unnecessary overregulation of the business of medicine by requiring physicians to receive from patients a signed disclosure form with an itemized statement of the amounts to be billed for nonemergency medical services before those services were even provided. Thanks to hundreds of calls and emails from TMA member physicians to the Capitol, HB 4011 was voted down on the House floor, 97 to 34.
Senate Bill 2127 by Sen. Larry Taylor (R-Galveston) would have prohibited a credit reporting agency from including on a credit report a collection account for certain health care services provided by out-of-network physicians. Narrow insurance networks cause this problem by creating balance-billing circumstances, which was addressed in other legislation.
House Bill 1675 by Rep. Dan Flynn (R-Van) would have allowed health plans to require physicians to accept virtual credit cards for payment for services rendered.
House Bill 1070 by Rep. Jeff Leach (R-Plano) would have prohibited physicians from refusing to care for a patient based on his or her immunization status.
House Bill 1124 by Rep. Matt Krause (R-Fort Worth) and its companion, Senate Bill 2008 by Sen. Van Taylor, would have made it easier to parents to opt out of vaccinating their children.
Senate Bill 95 by Sen. Bob Hall (R-Edgewood) would have expanded the lawful sale of raw, unpasteurized milk and cheese at farmers markets.
House Bill 2962 by Rep. Giovanni Capriglione (R-Southlake) would have required physicians and health facilities to file a form to report any medical complications following an abortion. TMA noted earlier in opposing the measure that it would require a physician who diagnoses a complication following an abortion and/or initiates treatment of a woman following an abortion to report that information to the state — and imposes a penalty for not doing so. This requirement would include an emergency physician with no prior history about the patient. (TMA’s concerns have nothing to do with the issue of abortion, but instead the bill’s intrusion into the patient-physician relationship.)
House Bill 3476 by Rep. Dan Huberty (R-Houston) would have required preparticipation electrocardiograms for all school student athletes, a test that not every student athlete needs and one that could result in false positives, which could ultimately harm students and their parents.
The Budget Compromise
The final compromise state budget for the 2018-19 biennium totals $216.7 billion in all funds and $106.8 billion in state general revenue dollars. It also draws $1 billion from the rainy day fund, an idea embraced by the House Appropriations Committee. The final budget also uses some of the Senate’s accounting idea of delaying payment of transportation dollars until the start of the next biennium, to credit this budget that amount.
A breakdown of what the conference committee did follows.
- It approved $427 million general revenue in Medicaid cost containment (technically the rider applies to all HHSC agencies, but most of the savings will come from Medicaid); $77 million is anticipated to come from reducing the risk margins to Medicaid and CHIP plans. It eliminated a separate rider asking HHSC to achieve $1 billion in savings by pursuing federal Medicaid flexibility.
Maternal and Child Health
- It adopted a Senate rider directing HHSC to pursue a Medicaid 1115 women's health waiver, which if approved will provide a 90/10 federal funding match for the Healthy Texas Women’s program, effective 2019.
- It also adopted riders to decrease Medicaid neonatal intensive care unit costs, prevent maternal mortality, screen and treat women for perinatal depression, report postpartum depression screening and treatment, and collaborate with the Maternal Mortality and Morbidity Task Force to study maternal mortality to reduce the incidence.
- It adopted $300 million for replacement or repair of state hospitals or other inpatient mental health facilities, and added $160 million for state hospital deferred maintenance.
- It also approved $67 million for community-based crisis service provisions, $30 million to reduce homelessness and recidivism, and $67.6 million to eliminate adult and child mental health waiting lists.
- Lawmakers added $44 million for graduate medical education (GME) expansion grants, and increased GME formula funding by $4.3 million.
- The Family Medicine Residency Program was cut by $6 million, and the Physician Education Loan Repayment Program was reduced by $8.4 million.
Department of State Health Services
- Conferees approved Senate funding levels, $131 million, and directed $219,000 in federal funds to local health departments. The bill imposes a roughly $30 million cut in public health preparedness. It also reduces funding for immunizations, HIV/AIDS, infectious diseases, chronic disease prevention, and the Children with Special Health Care Needs program.
- On the bright side, the compromise plan requires HHSC and the comptroller to study how increasing the legal age for buying tobacco products from 18 to 21 could result in Medicaid savings by reducing the rates of preterm and low-birth-weight births. TMA and TPHC strongly supported a bill to raise the tobacco-use age from 18 to 21, but that bill was one of many that died this session.
Supplemental Budget Passes: The Senate unanimously passed the supplemental budget bill for the current two-year cycle on Tuesday. House Bill 2 totals $2.6 billion and adds about $800 million in state funds plus $1.6 billion in federal funds to cover the current budget's Medicaid shortfall. Another $158 million in combined state/federal funds pays for Texas Department of Family and Protective Services needs, largely for hiring new Child Protective Services caseworkers. HB 2 also covers repairs at state mental hospitals as well as gaps in public education and the state teachers' pension program. The House concurred in the Senate’s changes later in the week and sent the bill to Governor Abbott.
Bills TMA Supported That Did Not Pass
Senate Bill 80 by Sen. Jane Nelson (R-Flower Mound) was one of several versions of the Texas Medical Board sunset bill. TMA is hopeful a version of this bill will be revisited should the governor call a special session, as TMB needs to be continued by Sept. 1, 2017, or its authority to license and credential physicians in Texas expires.
Senate Bill 833 by Sen. Bryan Hughes (R-Mineola) and its companion, House Bill 752 by Rep. Morgan Meyer (R-Dallas), would protect employed physicians who act as whistleblowers against corporate employers over patient health care quality issues. The bill would have required TMB to investigate complaints against the entities it certifies (like nonprofit health corporations [NPHCs]), just as it must do for licensees. The bill changes nothing about NPHCs that are operating properly, but it will address the NPHCs that retaliate against whistleblowing physicians.
Senate Bill 1929 by Sen. Lois Kolkhorst (R-Brenham) would continue the Maternal Mortality and Morbidity Task Force at DSHS, which is helping the state identify the causes of Texas’ high and growing rates of maternal mortality and morbidity. TMA urged support of the bill to combat maternal deaths and their root causes, which include mental health issues and opioid abuse.
House Bill 477 by Rep. Nicole Collier (D-Fort Worth) would have required health coverage providers to educate consumers purchasing individual health benefit coverage.
House Bill 1908 by Rep. John Zerwas, MD (R-Richmond), would have raised the age to purchase tobacco products from 18 to 21. A compromise in the budget will require HHSC and the comptroller to study how increasing the legal age for purchasing and using tobacco could result in Medicaid savings due to fewer preterm and low-birth-weight births.
House Bill 2249 by Rep. J.D. Sheffield, DO (R-Gatesville), the “Parents’ Right to Know” bill, would have required the state to report vaccination exemption-rate data at the more-precise school level rather than at the school district level.
House Bill 2760 by Representative Bonnen and its companion, Senate Bill 2210 by Senator Hancock, would have required daily updates of health plan network directories.
House Bill 3124 by Rep. Lance Gooden (R-Terrell) would have allowed doctors in physician-led accountable care organizations to receive and share physician-specific comparison data and information.
Just minutes before Edinburg gastroenterologist Carlos J. Cardenas, MD, was installed as TMA’s 152nd president, the association’s House of Delegates elected numerous new officers, trustees, and representatives to the American Medical Association House of Delegates.
“No community can exist without a strong healthy environment and a leader to stand up and cry ‘foul’ when necessary,” Dr. Cardenas told the TMA house after his predecessor — Don Read, MD, of Dallas — administered the oath of office. “It is up to us, the physician-leaders, to chart the course for the health of our communities and when called upon to be the voice for the voiceless. It is who we are!”
Taking Dr. Cardenas’ spot as TMA president-elect is Athens family physician Doug Curran, MD. “The opportunity to serve as president-elect and ultimately president of this great organization will allow me to speak from the heart about the profession I love and the commitment to improve the health care of all Texans,” Dr. Curran said.
Delegates reelected TMA Board of Trustees members Gary Floyd, MD, of Fort Worth, and Linda Villarreal, MD, of Edinburg. They also voted Dallas internist Sue Bornstein, MD, and Ray Callas, MD, an anesthesiologist from Beaumont, to the board. The TMA Resident and Fellow Section chose Justin Bishop, MD, a resident in physical medicine and rehabilitation at Baylor College of Medicine in Dallas, to be its representative on the board. The Medical Student Section elected Patrick Crowley, a third-year student at the University of North Texas Health Science Center at Fort Worth Texas College of Osteopathic Medicine.
TMA Secretary/Treasurer Michelle Berger, MD, of Austin; Speaker of the House Susan Strate, MD, of Wichita Falls; and Vice Speaker Arlo Weltge, MD, of Houston all won reelection without opposition.
The board chose San Antonio pathologist David Henkes, MD, to be its new chair, Austin colon and rectal surgeon David Fleeger, MD, to be vice chair, and Dr. Floyd to be board secretary.
In other elections, the house voted for four new alternate delegates to the AMA House of Delegates: Robert Emmick Jr. MD, an Austin emergency medicine physician; Steven R. Hays, MD, a nephrologist from Dallas; Jennifer Rushton, MD, a pathologist from San Antonio; and Sherif Zaafran, MD, an anesthesiologist from Houston. Habeeb Salameh, MD, an internal medicine resident in Galveston, is the new resident alternate delegate. Jessie Ho, a student at the Texas A&M Health Science Center, is the new student alternate delegate. The house also reelected nine physicians to two-year terms on the Texas Delegation to the AMA.
More about TexMed 2017, including news on the House of Delegates, videos, and audio can be found here
So summer doesn’t officially begin for another 19 days, but Texas already has had two reported cases of West Nile virus.
The first case, a woman from Montgomery County just north of Houston, was reported to the Department of State Health Services (DSHS) in late April. The second case, a man in his 40s, was reported by the City of El Paso Department of Health in late May, according to the El Paso Herald-Post newspaper. The man, who has underlying medical conditions, had not reported travel outside of the city, the newspaper reported.
But wait, there’s more.
Mosquito pools positive for West Nile virus have been reported in Dallas, Harris, Johnson, Nueces, and Tarrant counties.
So, what should you do as a physician?
Good question. One of the best things you can do is educate your patients on how to prevent getting mosquito-borne diseases like West Nile and Zika (you’ve heard that old saying about an ounce of prevention).
Here’s what to tell your patients:
- Use EPA-approved insect repellent every time you go outside.
- Cover exposed skin with long pants and long-sleeved shirts whenever possible.
- Use air conditioning or window and door screens that are in good repair to keep mosquitoes out.
- Limit outdoor activities during peak mosquito times.
- Remove standing water in and around homes, including in trash cans, toys, tires, flower pots, and other containers so mosquitoes can’t lay their eggs.
- Use a larvicide in water that can’t be drained to keep mosquitoes from developing.
Everybody got that?
In 2016, Texas reported 370 human cases of West Nile illness, including 18 deaths. Most people who get infected don’t get sick, but about 20 percent will experience symptoms like headache, fever, muscle and joint aches, nausea, and fatigue.
I can tell you have more questions infectious diseases. That’s good. You can find plenty of answers by visiting TMA's Infectious Diseases Resource Center.
If you want more information (and I’m so glad you do), you can also stay up to date with DSHS recommendations at the Health Care Professionals page of TexasZika.org or get more info at the DSHS West Nile virus page.