The New Mexico Supreme Court ruled Monday in favor of a Lubbock physician entangled in a question of whether Texas or New Mexico law should apply in a liability case involving care that was provided in Texas but for a New Mexico patient.
The decision is a victory for TMA, Texas physicians, and organized medicine in Texas and New Mexico. Although the specifics of the verdict applied to a Texas physician who was employed by a government institution, TMA’s General Counsel opines that the ruling should be helpful to all Texas physicians treating patients from New Mexico traveling to Texas. This is because the Texas 2003 medical liability reforms are generally more favorable than those in place in other states.
The case, Montaño v. Frezza, involved Kimberly Montaño, a New Mexico resident, who sought surgery in 2004 from Eldo Frezza, MD, a Lubbock bariatric surgeon and professor at Texas Tech University Health Sciences Center. The issue was over which state’s medical liability laws would prevail in a case in which a New Mexico resident received care in Texas but claimed complications after returning to New Mexico. For additional details on the case, see "Border Battle," from the November 2015 issue of Texas Medicine.
Dr. Frezza told TMA he was exhausted by the fight but elated by the ruling.
"The lawyers have to understand how their activity is affecting patients, not just physicians," he said. "This lawsuit was affecting tons of patients in eastern New Mexico. A lot of good people, working people, people who pay taxes are affected by the blindness of our society."
Howard Marcus, MD, chair of the Texas Alliance for Patient Access (TAPA), which was one of several Texas groups that filed briefs in the case, also hailed the decision.
"Yet again, TAPA, working with its member organizations, such as the TMA and county medical societies, has prevailed in a crucial decision that promotes access to care across the Texas-New Mexico state line," Dr. Marcus said. "Common sense and logic have prevailed."
The Texas Medical Liability Trust (TMLT), The University of Texas System, and the New Mexico Medical Society also filed briefs in support of Dr. Frezza's position.
The 4-1 decision "only considered the issue of comity ― that is, respecting the sovereignty of sister states," said Jill McClain, TMLT executive vice president for government relations. The court’s analysis of that issue focused heavily on information from TAPA, TMA, TMLT, the American Medical Association, several county medical societies, and others. Those organizations provided demographic data showing how much residents of eastern New Mexico depend on West Texas physicians and hospitals for care.
"Access to cross-border health care for individuals living in rural parts of New Mexico is an additional consideration that tempers New Mexico’s interest in applying its law to this case," the court majority wrote. "We do not consider it overly speculative to conclude that extending comity to Texas in this case will positively serve New Mexico’s public policy interests by encouraging the continuing cooperation of Texas and New Mexico in maintaining cross-border care networks."
Although the court ruled in favor of Dr. Frezza in this instance, TMA suggests physicians continue to avail themselves of the law New Mexico enacted last year allowing them to obtain a signed agreement from New Mexico patients stating that should they wish to file a lawsuit they will do so in Texas courts. To help physicians take advantage of the law's protections, TAPA developed two forms, one for emergency treatment and one for voluntary treatment. You can download the emergency treatment and voluntary treatment forms (English or Spanish-and-English) from the TMA website.
In consultation with an attorney, TMA suggests physicians who treat New Mexico patients or patients living in other states consider adopting this language in the practice forms patients sign.
Action, March 15, 2017
The 60-day bill-filing deadline for the Texas Legislature has come and gone, allowing one thick puff of smoke to finally clear from the 2017 legislative fire. Now, medicine can focus on the hottest logs in the fire pit. For TMA, that means more than 1,400 pieces of legislation to track, with measures that address such smoldering topics as the network inadequacies that fuel surprise-billing issues; public health issues like vaccination exemptions and tobacco use; the proper definition and regulation of telemedicine; and troubling scope-related legislation that would allow other practitioners to infringe on the practice of medicine.
Bills TMA supports, opposes, and is simply monitoring already are reaching committee hearings. And of course, TMA's lobby team is keeping a sharp eye on the crucible of budget discussions — and pushing to fund in medicine's best interests — as lawmakers in both the House and the Senate attempt to craft the state's funding allocations for 2018-19.
Keeping Insurers Honest
Health insurance reform is one of TMA's most intense areas of focus this session, and among the foremost topics in that realm is balance billing. TMA is fighting to keep the focus for costly surprise-billing issues where it belongs: on limited, inadequate networks and health plans that don't always maintain accurate network directories.
TMA's multipronged effort to battle the insurer issues that foster balance billing directly tackles health plan directories with the recent filing of House Bill 2760 by Rep. Greg Bonnen, MD (R-Friendswood). HB 2760 would require health plans to update their directories of physicians and other practitioners every business day, and the plans would have to remove any physician whose plan contract is terminated from the directory within two days. HB 2760 also requires the state's insurance commissioner to examine insurers' network adequacy every two years. At the beginning of every calendar year, the state insurance department would also identify the two insurers with the highest numbers of mediation requests and review those health plans' networks for quality and adequacy. Senate Bill 2210 by Sen. Kelly Hancock (R-North Richland Hills) contains a number of the same requirements related to health plan directories.
Another TMA-backed bill to open the mediation process up to more practitioners got its first consideration in the Senate Business and Commerce Committee last week. TMA Council on Legislation Chair Ray Callas, MD, testified before the committee to support Senate Bill 507 by Senator Hancock. SB 507 would maintain the current $500 threshold for bill mediation and expand mediation to all out-of-network physicians and providers at an in-network facility, as well as those providing emergency care. Dr. Callas told the Business and Commerce Committee that "mediation is working," noting the initial informal conference calls for mediation resolve 95 percent of disputes. More than 1,600 mediation requests were recorded in 2016. Dr. Callas also lauded language in the bill requiring insurance companies, physicians, and health care providers to provide simple language to the patient explaining how to request mediation. The Business and Commerce Committee voted to send SB 507 to the full Senate for debate.
The Business and Commerce Committee also approved another important TMA-backed piece of legislation by Senator Hancock that would allow physician override on pharmacy benefit managers' step therapy protocols. Senate Bill 680 also would prohibit insurers from requiring patients to fail on a prescription medication more than once before they can move on to the next "step" in their drug treatment. Oncologist Sylvia Jaramillo, MD, testified in favor of SB 680 at the committee hearing. Representative Bonnen is sponsoring House Bill 1464, SB 680's companion measure.
Other health insurance reform measures TMA is tracking include:
- House Bill 1832 by Rep. Nicole Collier (D-Fort Worth), which would require facilities to disclose that physicians based at that facility may not be in-network with the same insurance plans as the facility itself;
- House Bill 2077 by Representative Bonnen, which would require health plans to report calculation-of-payment-rate information for out-of-network physicians and providers, as well as to report payments to those practitioners; and
- House Bill 1227 by Rep. John Smithee (R-Amarillo), which would require health plans to display prescription drug formulary information on its website for all of its health benefit plans.
Sen. Dawn Buckingham, MD (R-Lakeway), is working for fellow physicians with a TMA-supported bill prohibiting discrimination against physicians based solely on maintenance of certification (MOC). Under Senate Bill 1148, MOC could not be the sole reason a physician is denied licensure or renewal from the Texas Medical Board, and hospitals and managed care plans also could not differentiate between physicians based solely on the physician's MOC status.
Fighting to Preserve Scope
As usual, nonphysician practitioners are setting their sights on using legislation to encroach on the practice of medicine. One such pair of bills TMA is watching intently would expand the scope of practice for advanced practice nurse practitioners (APRNs).
TMA supports preserving the collaborative-care model physicians and nurses crafted together that became law in 2013. But the association does not support expanding APRNs' scope of practice. As such, TMA is opposing Senate Bill 681 by Senator Hancock and House Bill 1415 by Rep. Stephanie Klick (R-Fort Worth). The bills seek to give APRNs independent diagnosis and prescribing power, proposing to end the practice of APRNs contracting with physicians for delegated diagnostic and prescribing authority.
At this month's First Tuesdays at the Capitol, TMA lobbyist Dan Finch told physicians while there are improvements that can be made in the relationship between doctors and APRNs, independent prescribing for APRNs is TMA's uncrossable "bright line." TMA argues that expanding APRNs' scope of practice would neither increase access to care in rural Texas nor improve availability of primary care, as its proponents claim, and that it would increase the cost of care.
Among the other scope bills TMA is keeping its eye on are:
- House Bill 593 by Rep. Dustin Burrows (R-Lubbock), which would give certain psychologists prescriptive authority;
- House Bill 1846 by Rep. Garnet Coleman (D-Houston) and Senate Bill 433 by Sen. Jose Rodriguez (D-El Paso), which would allow APRNs and physician assistants to prescribe Schedule II controlled substances;
- House Bill 2011 by Rep. Sergio Munoz Jr. (D-Mission), which would add the word "diagnose" to the definition of the practice of chiropractic;
- House Bill 1804 by Rep. Cesar Blanco (D-El Paso) and Senate Bill 831 by Sen. Jose Rodriguez (D-El Paso), which would allow APRNs who served in the military to practice independently; and
- House Bill 2118 by Representative Klick and Senate Bill 728 by Sen. Van Taylor (R-Plano), which would allow certain physical therapists to treat injuries without a physician's referral.
Both chambers of the Texas Legislature are working under the constraints of a lean biennial budget. The House and Senate initial budget offerings were about $8 billion apart, with the House version offering more both overall and for health and human services, an area in which it provided about $2 billion more than in the Senate.
Preserving — and, if possible, enhancing — funding for graduate medical education (GME) and Medicaid are among TMA's biggest concerns about the budget as lawmakers in both the Senate and the House continue to work on their respective budget proposals. TMA lobbyist Michelle Romero says while both chambers' budget plans would inject more money into GME, the state needs a lot more. The Senate's initial proposal provided an additional $44 million for GME expansions but also proposed a $14.3 million cut to a separate program that helps medical schools pay for resident training. The House's initial budget proposed to add about $30 million in new money for GME expansions but also proposed a 7-percent cut to the GME formula funding program for the medical schools. Sen. Jane Nelson (R-Flower Mound), chair of the Senate Committee on Finance and the author of the Senate budget measure, has indicated a willingness to help the state reach the target of 1.1 entry level GME positions for every medical school graduate.
At this month's First Tuesdays, Ms. Romero stressed to physicians the importance of maintaining the state's Medicaid enrollment, with no cuts to any segment of the Medicaid population or to eligibility. TMA is also emphasizing to the legislature that cuts to Medicaid physician payment rates should be rejected. Extremely low payment rates already make it difficult for Medicaid health plans to recruit and retain physicians and make it difficult for many patients to receive timely access to care. As the Senate Finance Committee's Workgroup on Health Care Costs studies Medicaid and other health care expenditures, lawmakers' continuing assessment of Medicaid comes against the backdrop of major action at the federal level: a proposal by congressional Republicans to repeal and replace the Affordable Care Act. The GOP's American Health Care Act proposes eliminating the federal matching system for Medicaid, replacing it with a per-capita cap for each state's funding that would allow federal allotments to rise with enrollment, but not based on need. TMA is assessing exactly how that bill would affect Texas Medicaid.
As budget talks continue, TMA also continues to urge the legislature to ensure a robust public health system that can combat infectious diseases, promote food safety, and prevent chronic disease; to strengthen the state's mental health system with such steps as an expanded neonatal abstinence syndrome program and greater support services for high-risk patients; and to bolster women's health care services, with continued robust funding for the state's Healthy Texas Women and Family Planning programs.
Vaccinations, Tobacco Back on the Stage
The public health legislative battlegrounds for 2017 are shaping up to be similar to what they were in 2015, with vaccination data, tobacco, and texting while driving once again emerging as key areas of emphasis for TMA's lobby team.
House Bill 2249 by Rep. J.D. Sheffield, DO (R-Gatesville), and its companion measure, Senate Bill 1010 by Sen. Kel Seliger (R-Amarillo), tackles parents' right to know the number of unimmunized students on their child's school campus, instead of merely the number in their child's district. The bill, similar to one TMA supported in the last legislative session, would require the Texas Department of State Health Services to make de-identified, school campus-level vaccination exemption data available to a parent upon request, including the number of students claiming exemptions for medical reasons and reasons of conscience. For parents of children who have medical reasons to forego vaccinations, those campus-level statistics are key to placing their children in an environment where they're least vulnerable to serious illness. The bill from the 2015 session passed the House but not the Senate.
Tackling tobacco use — the leading cause of preventable death in both Texas and the nation — continues to be one of TMA's foremost public health causes. The association and the Texas Public Health Coalition (TPHC), of which TMA is a member, are backing House Bill 2652 by Rep. Rick Miller (R-Sugar Land), which would prohibit the use of tobacco products and e-cigarettes on state college campuses or in any state buildings. Measures by Rep. John Zerwas, MD (R-Simonton), and Sen. Joan Huffman (R-Houston) would take perhaps an even bolder step, but one TMA and TPHC also support: House Bill 1908 and Senate Bill 910 would raise the legal age to use and possess tobacco from 18 to 21.
Texas is one of the very last U.S. states that has not banned texting while driving. According to the Governors Highway Safety Association, 46 states ban the dangerous practice, plus Washington, DC, Puerto Rico, Guam, and the Virgin Islands. TMA is trying once again to get Texas to join that group, backing the bans that would be codified in House Bill 62 by Rep. Tom Craddick (R-Midland) and Senate Bill 67 by Sen. Judith Zaffirini (D-Laredo). Both bills have been passed out of their respective committees already.
TMA is also keeping an eye out for any bills or bill provisions that would endanger public health. The 2015 Listeria outbreak linked to Blue Bell ice cream didn't deter proponents of expanded sales of raw milk in Texas, who are once again pushing legislation to make it a reality. House Bill 57 by Rep. Dan Flynn (R-Canton) would allow raw milk to be sold at farmers markets and delivered to consumers. TMA expressed deep concern with Representative Flynn's last raw-milk expansion attempt in 2015, warning lawmakers that wider distribution of raw milk would cause "assured future outbreaks" of foodborne illness. Last week, two people died in New York in an outbreak of Listeria linked to cheese made using raw milk.
A Telemedicine Solution
The long-standing debate and litigation over proper definition and regulation of telemedicine in Texas could be over after this session if lawmakers and the governor give their approval to Senate Bill 1107 by Sen. Charles Schwertner, MD (R-Georgetown). TMA is supporting SB 1107, which would provide a clear definition of telemedicine and clarify that whether a physician cares for a patient in a traditional in-person visit or via telemedicine, the standard of care will remain the same. Dr. Callas testified in support of the bill last week when the Senate Committee on Health and Human Services examined it.
SB 1107 would allow the establishment of a valid practitioner-patient relationship through:
- Synchronous audiovisual interaction;
- Synchronous audio with asynchronous store-and-forward technology, which means the patient's clinical information is transmitted for review by a health professional at a different physical location than the patient; or
- Another form of audiovisual telecommunication technology that allows a physician to comply with the standard of care.
Dr. Callas told the Committee on Health and Human Services that "patients deserve no less" than the accepted standard of care for an in-person visit.
"We want to be sure that we establish a good framework so that physicians have the ability to use telemedicine — appropriately and safely — for the benefit of their patients," he said. "This would modernize the definition of telemedicine and focus the regulatory structure so we can better integrate the practice into health care delivery."
Joey Berlin, associate editor of Texas Medicine, prepared this special supplement to Action.
Action, March 15, 2017
Join us for TexMed 2017, TMA's annual meeting, at the new Marriott Marquis and the George R. Brown Convention Center in Houston May 5-6. TexMed is a free member benefit. Register today, and renew your passion for medicine, for leadership, and for Houston.
On Friday, hear from nationally known speakers including William H. McRaven, chancellor of The University of Texas System, former four-star admiral, and commander of the Osama bin Laden operation. Stay to see Kevin Pho, MD, founder of www.KevinMD.com. Dr. Pho will explain how social media can make a profound difference in health care and your practice.
On Saturday, don't miss Pete Blair, PhD, who will discuss the frequency of active shooter events and the importance of training and preparing our nation's first responders for these critical situations before they occur.
You also can choose from more than 80 hours of free CME programming. From business operations and the future of medicine to quality initiatives and performance improvement, TexMed offers multidisciplinary programming that encourages cross-specialty dialogue.
And don't forget: TexMed is also the place to connect (or reconnect) with friends and colleagues at the Welcome Reception, the TMA/TMA Alliance 2017–18 Presidents' Reception, and the TMA Foundation gala, Blast Off!
For more information, view the TexMed 2017 Advance Program, visit the TexMed 2017 page on the TMA website, email the TMA Knowledge Center, or call (800) 880-7955.
Action, March 15, 2017