Political Prognosis: Session's Time Running Out

It's getting to the point in the Texas Legislature where time dwindles and pressure increases exponentially daily. With fewer than 50 days left in the 2009 session, observers say that hundreds, if not thousands, of bills could die this week when their sponsors can't move them out of committee. House and Senate rules place fairly strict limits on what bills can be considered on the floor during the last month of a session, particularly on bills that have not already passed the opposite chamber. So lawmakers are scrambling to move as many of the 7,000-plus bills filed this session through the process as possible.

Despite a sluggish economy, tight budget, and difficult fights with the insurance industry, trial lawyers, hospitals, and others, the prognosis for some of organized medicine's priorities looks promising. Other parts of the Texas Medical Association's agenda appear stalled, while a number of bills TMA opposes still pose a threat. Here is a quick roundup of where health-related legislation stands as lawmakers near the final turn.

The Good
First, TMA and the TMA Alliance welcomed more than 400 physicians, alliance members, residents, and students to Austin for the April 7 First Tuesdays at the Capitol event - a record number. This outpouring of support and engagement is a direct correlation to the challenges that physicians face and wish to fix through legislative methods. Special thanks to all the county medical societies who worked so hard to make this past First Tuesdays event the best yet.

TMA-backed legislation to provide more oversight over the delegation of prescriptive authority to physician assistants (PAs) and nurse practitioners (NPs) in retail health clinics passed the Senate in late March. Senate Bill 532 by Sen. Dan Patrick (R-Houston) maintains the current limit of three PAs or NPs to whom a physician may delegate prescriptive authority. The bill, however, allows the Texas Medical Board (TMB) to grant waivers to allow a physician to supervise up to six midlevel practitioners, but gives the board oversight authority over those arrangements.

The retail clinics would have to submit information to TMB about how their delivery model would work and how the physician would maintain adequate supervision of the PAs and NPs. TMA and retail clinic operators agreed to the measure after TMA's Council on Legislation expressed concern with the clinics' attempts to increase delegation authority without added accountability. The council felt existing law does not provide any mechanism to track who is receiving delegated authority.

Another TMA-supported bill to require the Medicaid Office of Inspector General (OIG) to adopt rules providing physicians with more due-process rights in fraud and abuse investigations cleared the House Public Health Committee in early April. House Bill 2938 by Rep. Vicki Truitt (R-Keller) requires that physicians receive notice of any payment hold and the reasons for that hold. Physicians also must be notified of their rights to request a hearing on the payment hold or informal resolution of the issues involved.

The bill also requires the OIG and state attorney general to develop joint written procedures for processing cases of fraud, waste, and abuse. It also requires the Health and Human Services Commission (HHSC) to adopt rules governing the conduct of prepayment reviews of claims.

The Senate companion bill, SB 1542 by Sen. Carlos Uresti (D-San Antonio), was heard in the Senate Health and Human Services Committee in early April but was left pending.

On the public health front, two immunization-related bills supported by TMA are moving forward. SB 346 by Sen. Jane Nelson (R-Lewisville) would allow persons to maintain their immunization records in ImmTrac, the state's immunization registry, following their 18th birthday. Currently, immunization records are deleted from ImmTrac after a person turns 18.

SB 347, also by Senator Nelson, makes Texas immunization records accessible to public health officials in other states in case of emergencies here. In the aftermath of Hurricane Katrina, Texas public health officials were able to tap into Louisiana immunization data for evacuees who sought medical care here. Current state law, however, would not allow ImmTrac data to be shared with other states if Texas residents had to evacuate because of a hurricane or other disaster.

Both measures passed the Senate in early April. Their companion bills, HB 2382 and HB 2383 by Rep. Lois Kolkhorst (R-Brenham), cleared the House Public Health Committee in late March and are awaiting floor debate.

TMA leaders also were cautiously optimistic that another immunization-related bill - one that would allow physicians to deduct the cost of vaccines under the state's new business tax - still might gain passage. The measure was expected to be heard in the House Ways and Means Committee in mid-April. That bill, however, could cost the state as much as $2 million in lost revenue, and TMA lobbyists say little that costs the state money has moved out of the Way and Means Committee.

Finally, TMA and other tort reform advocates appear to have been able to contain a bill that would loosen liability protections for physicians who see patients in emergency situations. With strong grassroots opposition from physicians, SB 152 by Sen. Rodney Ellis (D-Houston) has remained bottled up in committee.

The Bad
The Texas Hospital Association and the Texas Organization for Rural and Community Hospitals are waging an all-out war on the ban against hospitals employing physicians. And TMA is fighting back.

More than a dozen individual bills have been filed that would allow individual hospitals or hospital districts in rural counties or along the Texas-Mexico border to directly employ physicians. Few of those bills contain any protections against hospital administrators interfering with the clinical autonomy of hired doctors. Meanwhile, Sen. Robert Duncan (R-Lubbock) filed SB 1500, which would allow critical access hospitals, sole community hospitals, as defined by federal law, or hospitals in counties of less than 50,000 population to employ doctors. In all, more than 190 of Texas' 254 counties would be able to employ physicians.

TMA sees these bills as direct attacks on the patient-physician relationship that undermine physicians' clinical autonomy. The purpose of the corporate practice ban is to ensure physicians' independent clinical judgment and to prevent corporate entities, such as hospitals, from forcing physicians to take actions that might benefit the entity's bottom line but are not in the best interest of patients.

There also is concern that lifting the corporate practice ban could provide ammunition to opponents of the 2003 medical liability reforms. Those reforms included a "stacked cap" on noneconomic damages, meaning that injured patients could collect from both the physician and hospital. But in employment arrangements, only a single cap would apply because the physicians would be covered under the hospital's cap.

While TMA recognizes that the problem of attracting physicians to rural Texas is very real, the association believes allowing hospitals to hire physicians is the wrong cure. Having the rural hospitals advocate with us for higher physician payments in Medicare and Medicaid would be a better approach, says Darren Whitehurst, TMA vice president for advocacy.

"The fact of the matter is the legislature has been directly involved in starving those practices," he said. "The primary payers for rural physicians are Medicare and Medicaid. In Medicare, there hasn't really been a payment increase in eight years since SGR [Sustainable Growth Rate] was implemented. In Medicaid, the fee increases approved last session as a result of the Frew lawsuit were the first significant increases physicians have seen since 1993." At the same time, many of these same rural hospitals have been receiving cost or cost-plus payments from both Medicare and Medicaid.

TMA has proposed an expanded physician loan repayment program to help attract physicians to underserved areas. That bill would provide up to $140,000 over four years in medical school debt repayment for physicians who locate in underserved areas and care for Medicaid patients. That bill was scheduled to be heard in the Senate Higher Education Committee April 15.

TMA launched a comprehensive response to these multipronged attacks on the corporate practice ban. That response includes sending personalized action alerts to thousands of physicians in the affected areas. TMA staff also is making phones calls to hundreds of these physicians asking them to contact their representatives and senators about these bills. TMA also purchased time for a radio advertising campaign in Senator Duncan's hometown of Lubbock.

The Senate State Affairs Committee approved SB 1500 on April 9 with a 5-1 vote, with Sen. Robert Deuell, MD (R-Greenville), objecting. Some of the single-shot bills also have had committee hearings, but so far none have moved forward.

Unfortunately, TMA's package of health insurance reforms that would make the operations of health plans more transparent also remains bottled up in committee, including TMA's Health Insurance Code of Conduct Act of 2009 [ PDF ] and health insurance product labeling bill . While some of those bills have been heard in the House Insurance Committee, none has gotten a vote. And Senator Duncan, chair of the Senate State Affairs Committee, has yet to set hearings in his committee.

TMA made those health insurance reforms a focal point of its First Tuesdays event on April 7, where attendees visited with lawmakers about the need for patients and their employers to have more information upon which to base their insurance coverage decisions and for physicians to have that information to help their patients navigate the system.

It also appears TMA-backed legislation to enact a statewide workplace smoking ban could be in jeopardy. Opponents have aggressively lobbied against it, and presently supporters lack the 21 votes needed to bring it up on the Senate floor.

The Ugly
The legislature has been operating under a tight budget all session and the news apparently is about to get worse. Political observers say State Comptroller Susan Combs might issue a new revenue projection that could cut the amount lawmakers have to spend by as much as $3 billion.

The Senate already passed what TMA lobbyists described as a "relatively Spartan budget" that would spend $178.4 billion budget in fiscal years 2010-11, a 5.1-percent increase over the current budget. The good news for medicine is the Senate's budget bill includes a 3-percent increase for Medicaid and roughly $10 million in additional funding for graduate medical education.

But a lower revenue forecast could force lawmakers to trim some spending. At the same time, Gov. Rick Perry has indicated he might veto the budget and force lawmakers back into special session this summer.

The Rest
Finally, TMA has worked closely with Lt. Gov. David Dewhurst and Senator Nelson to rewrite a measure that could have major ramifications on the state Medicaid program.

SB 7 is intended to improve quality and efficiency of care in the Medicaid program through a number of initiatives, including developing a Medicaid health information exchange (HIE), use of pay-for-performance programs, and eliminating payment for so-called "never events." But TMA raised numerous concerns about the bill as originally filed.

Among those concerns was the fear that development of a Medicaid HIE without acting in conjunction with commercial payers could force physicians to maintain more than one information system. Another concern involved the never events. The bill would have denied payment to both hospitals and physicians when errors occur. And, payment would be denied for the never event and for any follow-up care to correct that event.

A committee substitute laid out by Senator Nelson would have Medicaid follow Medicare guidelines on never events.

The substitute also makes clear that the state is not establishing a Medicaid rating system for physicians and establishes a new Health Care Quality Advisory committee to advise HHSC on implementing the medical home, pay-for-performance, and other quality initiatives in the bill.

SB 7 was still pending in the Health and Human Services Committee in mid-April.

Action , April 15, 2009

Last Updated On

July 30, 2010

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