One month into Texas' 2017 legislative session, the ramp-up is beginning as medicine and lawmakers prepare for what's certain to be a flurry of activity related to health care.
TMA and friends of medicine are facing the challenges of what's already been called a tight budget year, trying to convince lawmakers to maintain as much funding as possible for key programs as cuts inevitably loom. Meanwhile, lawmakers and other interested observers are keeping one eye on Washington, DC, where the beginning of a new presidential administration has brought with it a promise to repeal and replace the Affordable Care Act — but with large uncertainty about when that repeal will happen or what an ACA replacement will look like.
TMA's four physician member-representatives all earned important committee assignments for this session. Rep. John Zerwas, MD (R-Simonton), is chair of the Appropriations Committee, which also counts Reps. J.D. Sheffield, DO (R-Gatesville), and Greg Bonnen, MD (R-Friendswood), among its members. Representative Sheffield also earned a spot on the Public Health Committee, where he's serving as vice chair, and on the Rules and Resolutions Committee. In addition to his reassignment to the Appropriations Committee, Representative Bonnen is also serving on the Energy Resources Committee. Medicine's newcomer to the House of Representatives, Rep. Tom Oliverson, MD (R-Houston), sits on the Public Health, Insurance, and House Administration committees.
On the Senate side, Lt. Gov. Dan Patrick distributed multiple committee assignments to all three of TMA's physician-senators, including two chairmanships. Sen. Charles Schwertner, MD (R-Georgetown), is once again chairing the Health and Human Services Committee. Senator Schwertner also was appointed to the Business and Commerce, State Affairs, and Finance committees. Sen. Donna Campbell, MD (R-New Braunfels), is chairing the Veterans Affairs and Border Security Committee. Senator Campbell also joins Senator Schwertner on the Business and Commerce Committee and was appointed to the Education and Intergovernmental Relations committees. Medicine's newest voice in the Senate, Sen. Dawn Buckingham, MD (R-Lakeway), will be busy with four committee appointments in her first year at the Capitol, sitting on the committees for Health and Human Services, Higher Education, Nominations, and Veterans Affairs and Border Security.
For a complete listing of Texas Senate and House Committees, see tma.tips/2017SenateCommittees and tma.tips/2017HouseCommittees.
The early days of the 2017 session indicated legislators will have their work cut out for them on the only thing they're required to do every odd-numbered year: Pass a biennial budget.
When the Senate and House unveiled their initial proposed budgets in January, the two chambers were about $8 billion apart. The $213.4 billion Senate budget was the more austere of the two. It included $103.6 billion in state general revenue, while the House budget included about $108.9 billion. The House budget totaled $221.3 billion across all funds and proposed to spend about $2 billion more for health and human services than the Senate version.
Graduate medical education would get a boost in both budget proposals. The initial Senate budget offered an increase of $44 million for graduate medical education (GME) expansions. However, that budget also makes a $14.3 million cut to a separate program that helps medical schools pay for resident training. The House version adds about $30 million in new money for GME expansions but would reduce the state GME formula funding program for the medical schools by half as much as the Senate's cut.
Senator Schwertner is chairing the Senate Finance Committee's Workgroup on Health Care Costs, a subcommittee executing a deeper dive on the budgets of health-related state agencies and looking for cost containment in Medicaid, correctional managed care, the Employees Retirement System, and the Teacher Retirement System. State Comptroller Glenn Hegar's Texas Health Care Spending Report showed state health care costs increased by nearly 20 percent from fiscal years 2011 to 2015. TMA lobbyist Michelle Romero says TMA will continue to make the point to lawmakers that caseload, rather than utilization, is the primary cost-driver in Medicaid.
Sen. Jane Nelson (R-Flower Mound), chair of the Senate Finance Committee, demonstrated a commitment to providing as much funding as possible for medical education during committee budget talks in late January. When she asked the Texas Higher Education Coordinating Board how much money the state would need to reach the desired ratio of 1.1 first-year residency slots for every medical school graduate, the board told her it would require an additional $18 million. "If I find more money," Senator Nelson said, "that's where I'll put it." The state needs to add almost 600 GME positions by the year 2022 to meet the 1.1-to-1 goal.
Another Senate Finance Committee workgroup is examining special items that help provide funding for medical education, research, and funding for separate campuses for health-related institutions. While the proposed House budget kept special-item funding at about the same level as in the current budget, the proposed Senate version all but eliminated more than $1 billion in special-item funding. Senator Nelson asked the health-related institutions to prioritize their special items, hoping to use an available pool of about $300 million to save as many of the prioritized ones as possible.
Balance Billing and Health Plan Tactics
Surprise medical bills continue to be an ongoing headache for patients who weren't aware that a practitioner who treated them wasn't in their health insurance network, even if the care had been provided at an in-network facility. The blame for large, unexpected out-of-pocket costs has sometimes fallen on physicians who balance bill for their services. In response, some states have pursued strong restrictions on balance billing, such as Connecticut, where it is now considered an unfair trade practice.
But TMA believes that physicians have the right to bill for their services and that the real problem at the root of surprise medical bills is the inadequacy of narrow health plan networks. TMA is working with lawmakers to create protections for consumers that will address network adequacy issues while still allowing physicians to bill for the services they provide. TMA wants health plans to be accountable to current network adequacy requirements and exhibit more transparency, providing accurate directories of every practitioner within that health plan's network.
TMA is also working to expand the bill mediation process to include more out-of-network physicians and practitioners. Senator Hancock has already filed legislation to address the mediation aspect. For patients in PPO plans, mediation is currently available to dispute out-of-network bills of more than $500 from certain facility-based physicians. Senator Hancock's SB 507 would keep the $500 threshold but open up mediation to bills from freestanding emergency rooms and many other out-of-network practitioners.
SB 507 also would require insurers to give patients a firmer grasp of their mediation rights. The legislation would require mediation-eligible medical bills for an out-of-network claim to contain a "conspicuous, plain-language explanation of the mediation process," including a statement that the bill is for out-of-network services that may be eligible for mediation, with an explanation of the mediation process.
TMA and friends of medicine are also taking on health plans' tactics in step therapy protocols, in which insurers sometimes require patients to demonstrate failure on a particular prescription drug multiple times before the health plan will authorize the next "step" in their prescription treatment plan. Senator Hancock's SB 680 would prohibit insurers from requiring patients to fail a prescription medication more than once, and also would allow for physician override if an insurer attempts to deny the next step in their treatment.
"No patient should be forced to repeat a treatment that doesn't work just because their insurance company doesn't want to pay for the next level of care," Senator Hancock said in a release after filing SB 680.
Medicaid and an Uncertain Future
The beginning of President Donald Trump's administration brings with it the prospect of repealing and replacing the Affordable Care Act and, with that, a potential overhaul of Medicaid. Tom Price, MD, the nation's new secretary of Health and Human Services, proposed turning Medicaid into a block grant program two years ago in his role as chair of the House Budget Committee, and talk of a block-grant system is picking up steam both in Washington and at the state level.
Receptive lawmakers are selling a block grant as a vehicle to give states complete control and flexibility over their Medicaid programs. But TMA chief lobbyist Darren Whitehurst says the prospect of a block grant has more questions surrounding it than answers at this point, such as whether a federal block grant would include coverage for the Medicaid expansion population.
TMA supports a Texas-run health care solution for the state's low-income families, seniors, and Texans with disabilities, as opposed to a federal solution. However, TMA also wants to protect coverage and access to health care services for Texas' most vulnerable populations. TMA and the Texas Hospital Association have created a Task Force on Medicaid Block Grants that is working on a joint Medicaid reform proposal.
While they wait to see what unfolds with Medicaid at the federal level, lawmakers are working within the constraints of the initial budget proposals at the state level, where the House proposal included more funding for Medicaid than the Senate version. The House's base budget offered $65.1 billion for Medicaid, about $4 billion more than the Senate.
Sen. Juan "Chuy" Hinojosa (D-McAllen), an ally for TMA in its attempts to foster fairer Office of the Inspector General (OIG) investigations of alleged Medicaid fraud, has filed legislation that would aid medicine on that front. Senate Bill 293 requires the executive commissioner of the Texas Health and Human Services Commission to adopt rules on "what constitutes an ongoing significant financial risk to the state and a threat to the integrity of Medicaid." Those are two pieces of the standard OIG must currently demonstrate in order to withhold payments from a practitioner it believes committed fraud.
The rapid advancement of technology has provided challenges for medicine, which is striving to make sure there's a place for any tool that can help deliver care to patients while at the same time maintaining the accepted standard of care. Whether a physician provides care in the same room as the patient or remotely via the telephone or other newer technologies such as videoconferencing, TMA believes the standard of care must remain the same, and physicians should have access to relevant clinical information about the patient in order to make a diagnosis.
TMA lobbyist Dan Finch said the association had been working on legislation consistent with those two principles that would neither be advantageous nor disadvantageous to a particular telemedicine provider's business model. On Monday, Medscape reported stakeholders had reached agreement on a compromise draft bill that would consider a telemedicine practitioner and a patient to have a valid practitioner-patient relationship under certain requirements. The bill would direct the state medical board, board of nursing, physician assistant board, and the board of pharmacy to jointly adopt rules to define valid prescriptions resulting from a telemedicine visit. Ray Callas, MD, chair of TMA's Council on Legislation, said more work remained on the draft bill. Senator Schwertner told Medscape he doesn't believe telemedicine providers should be able to prescribe controlled substances, but he supports the bill because telemedicine "is an important technology that has the potential to improve access, especially in rural and underserved areas, and potentially could have some cost savings as well."
TMA lobbyist Troy Alexander says sizable public health cuts in the new budget proposals may be difficult for the Texas Department of State Health Services (DSHS) to recover from and don't bode well for some of the state's disease programs. Core priorities of TMA and the Texas Public Health Coalition during this session include funding for treatment of both communicable and noncommunicable diseases and legislation addressing vaccines.
Notably, TMA is taking another crack at addressing parents' right to know school campus immunization data. DSHS publishes data on vaccinations and nonmedical vaccine exemptions at the school district level for each school year. For parents of children who can't be vaccinated, such as those in an immunocompromised state, district-level data leaves unanswered questions about how safe their child might be at a particular school. A bill to mandate de-identified campus-level vaccine exemption percentages passed only one chamber during the 2015 session, but TMA was planning another similar measure in 2017, with Representative Sheffield among the champions of a right-to-know bill in the House and Sen. Kel Seliger (R-Amarillo) planning to carry a companion measure in the Senate.
A statewide texting-while-driving ban is again drawing TMA support. Sen. Judith Zaffirini (D-Laredo) and Rep. Tom Craddick (R-Midland) have once again filed bills to ban the practice, making it a misdemeanor punishable by a fine of $25 to $99. Repeat offenders would be subject to a fine between $100 and $200. Representative Craddick's bill is House Bill 62. Senator Zaffirini's bill is Senate Bill 31. TMA and the Texas Public Health Coalition also support a push to raise the legal age for smoking and possessing tobacco to 21.
Tackling Drug Diversion, Doctor Shopping
Moving the state's prescription drug monitoring program (PDMP) to the oversight of the Texas Board of Pharmacy in September 2016 was a change TMA greatly supported. Now, with the new PDMP in place, TMA is backing further refinements to the way Texas handles prescription drug distribution, supporting the use of technology — rather than physician mandates — to tackle opioid diversion and "doctor-shopping."
TMA is advocating for licensees of prescriber licensing boards to automatically be registered with the state PDMP, as well as for the pharmacy board to have authorization to issue "push out" notifications to prescribers and pharmacies when PDMP data suggests doctor-shopping.
However, it's likely some lawmakers will attempt to put the onus on Texas physicians with legislation requiring doctors to check the PDMP before issuing any controlled substance prescription. TMA lobbyist Dan Finch says even if it only takes a few minutes each time to check the PDMP, it adds up in a hurry for prescribers and pharmacists.
"It is small for every encounter," Mr. Finch said. "It is large for the total numbers."
Kickoff First Tuesdays Event Draws More Than 200
First Tuesdays at the Capitol got off to a strong start in February, with more than 200 member physicians and medical students and TMA Alliance members participating in this year's first "White Coat Invasion" to talk to lawmakers about TMA's legislative priorities. This session's other First Tuesdays events are scheduled for March 7, April 4, and May 2. Register here.
Joey Berlin, associate editor of Texas Medicine, prepared this special supplement to Action. You can reach him by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.
Action, Feb. 15, 2017
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Action, Feb. 15, 2017