Political Prognosis: The End is Near

There are only two weeks left in the 81st Texas Legislature. Both the House and Senate are expected to work late into the night everyday through the end of the session. However, many bills are likely to die because of a series of deadlines that began kicking in on May 11. For example, the last day for House committees to approve House bills was May 11. The last day House committees can report out Senate bills will be May 23.

While those deadlines undoubtedly will result in failure for hundreds of bills, many of organized medicine's top priorities seemed to be moving through the process and enjoyed good chances of passage. Here is a brief rundown of where Texas Medical Association's key issues stood as the session entered its final days.

Health Insurance
Two of TMA's top health insurance priorities cleared the Senate in early May and were referred to the House Insurance Committee.

Senate Bill 1257 by Sen. Kip Averitt (R-Waco), TMA's health plan code of conduct bill, creates more transparency in how health plans conduct business. SB 1257 would limit health plans' ability to rescind a policy based on preexisting conditions, standardize the reporting of the health plans' medical loss ratio, allow the Office of Public Insurance Counsel to help small employers with premium quotes, and address health plan physician-ranking processes.

SB 815 by Sen. Kirk Watson (D-Austin) requires health plans to develop "soup can" style labels for their products to make it easier for consumers to compare coverage levels, premiums, and other information on various health insurance products.

The bills are part of TMA's Patients' Right to Know initiative. TMA hopes both bills will make it through the House and land on Gov. Rick Perry's desk before the end of the session.

Legislation requiring health plans to provide real-time coverage and benefit information to physicians and other providers at the point of service also appeared to be on its way to passage. House Bill 1342 by Rep. Jose Menendez (D-San Antonio) and Sen. Chris Harris (R-Arlington) passed the House in late April and received Senate State Affairs Committee approval on May 7.

A possible vehicle for both good and bad amendments relating to health insurance coverage is SB 1007 by Sen. Glenn Hegar (R-Katy), the Texas Department of Insurance sunset bill. Because the bill opens up all the statutory provisions relating to insurance in the state of Texas, any legislation dealing with insurance coverage is potentially germane to the bill and could be added as an amendment. TMA will be involved directly in developing good additions to the legislation and watching for bad amendments from the health plans and others.

Both the House and Senate have approved a budget bill for the next biennium that includes some good news for physicians and patients. The measure is now in a House-Senate conference committee where lawmakers are trying to resolve differences in spending levels.

The measure includes additional funds for Medicaid to cover both caseload growth and increased fees for physicians. The Senate version includes a 3-percent hike in physician fees, while the House version includes a 1.5-percent increase as part of the so-called "wish list" -items that would be funded if money is available. The bill also increases state support for graduate medical education.

The bad news, however, is that lawmakers may need to find even more money for Medicaid caseload growth. Lt. Gov. David Dewhurst announced in early May that new caseload projections would require an additional $1 billion over what the Senate had already approved for caseload growth. Several lawmakers say the sudden increase in projected Medicaid caseload is nothing more than a ruse to cut funding for existing and new initiatives, including 12-months of continuous coverage for children in Medicaid, since forecasting future caseload growth is speculative to begin with. 

House budget conferees suggested using a more moderate caseload forecast, but the issue had yet to be resolved. There is speculation that budget writers might dip into the state's so-called "rainy day" fund for the money. Lawmakers previously were spared from using any of the rainy day fund because of federal money the state received as part of President Obama's stimulus bill. Those funds totaled some $17 billion, including more than $5 billion for Medicaid.

TMA believes increasing physicians fees under Medicaid and the Children's Health Insurance Program (CHIP) is essential, particularly in light of efforts under the Frew v. Hawkins  lawsuit settlements to increase access for children on Medicaid. Fee increases also become more important if lawmakers approve 12 months of continuous coverage under Medicaid or vote to allow families earning up to 300 percent of the federal poverty level to buy in to CHIP. There's little point in expanding those programs if there are not enough physicians participating to provide access for those children, TMA leaders say.

House and Senate budget conferees also appear to have agreed to earmark $450 million for the new Cancer Prevention and Research Institute of Texas. The institute was created in 2007 using some $5 billion in voter-approved bonds.

Medical Liability
TMA's agenda on medical liability this session was to defend the 2003 tort reforms from any assaults by the trial lawyers. It appears the association has been successful. SB 152 by Sen. Rodney Ellis (D-Houston) was the main threat to the 2003 reforms, but it remains stranded in the Senate State Affairs Committee. The bill lowers the standard of proof required in medical liability lawsuits involving emergency care.

TMA leaders, however, are monitoring the bill to make sure the trial lawyers don't make a run at tacking similar language onto another bill.

Corporate Practice
Legislation giving virtually all rural hospitals the ability to directly hire physicians passed the Senate and is pending in the House County Affairs Committee. SB 1500 by Sen. Robert Duncan (R-Lubbock) allows critical access hospitals, sole community hospitals, and hospitals in counties of fewer than 50,000 residents to employ physicians. The Texas Organization for Rural and Community Hospitals (TORCH) and the Texas Hospital Association (THA) back the bill. As written, the bill applies to hospitals in some 160 counties across the state.

TMA is working with Rep. Garnet Coleman (D-Houston), chair of the House County Affairs Committee, to amend the bill to protect physicians from hospital administrators interfering with their clinical autonomy. TMA also wants to lessen the bill's reach. TMA proposes that the measure apply only to critical access hospitals and sole community hospitals with medical staffs of fewer than 15 physicians.

TMA believes the bill currently applies to hospitals that have adequate medical staffs and, therefore, do not need to employ physicians. TORCH and THA, however, have fought all attempts to amend the bill.

TMA leaders say direct employment should be a "last option" for those hospitals that need assistance attracting doctors to their communities.

Scope of Practice
Legislation agreed to by TMA and owners of retail clinics to expand physicians' ability to delegate prescriptive authority to midlevel practitioners also appeared poised for passage. SB 532 by Sen. Dan Patrick (R-Houston) expands from three to six the number of physician assistants or advanced practice nurses to whom a physician can delegate prescriptive authority. The measure also reduces from 20 percent to 10 percent the amount of time a physician delegating such authority must spend on-site with the midlevel practitioners.

The measure, however, also requires the filing of such delegation arrangements with the Texas Medical Board and gives the board more oversight of such arrangements. The board also could waive the delegation and on-site practice limits on a case-by-case basis.

SB 532 passed the Senate and was approved by the House Public Health Committee. It is expected to be on the House Calendar in the next to last week of the session.

Nurse practitioners sought full independent practice, but TMA lobbyists say that legislation is all but dead in the waning days of the session. They are, however, keeping close watch on any bill that might provide a vehicle for the nurse practitioners to add an independent practice amendment.

Medical Education
TMA's efforts to expand the state's medical education loan forgiveness program also appear to be in good shape heading into the last weeks of the session. SB 2243 by Sen. Judith Zaffirini (D-Laredo) increases from $45,000 over five years to $140,000 over four years the amount of medical school debt that the state could repay for physicians agreeing to practice in underserved areas. The measure passed the Senate in late April and was referred to the House Higher Education Committee on May 4.

If approved, the terms of the loan repayment program would be similar to a Medicaid program launched earlier this year by the Texas Health and Human Services Commission. Supporters of SB 2243 argue that average medical school debt is so high that the $9,000 per year in debt forgiveness available under the current program is too small to attract young physicians to practice in underserved areas.

Best (or Worst) of the Rest
Numerous other health-related bills are working their way through the process, and TMA is watching a few very closely.

In early May, TMA Board of Trustees Chair Michael Speer, MD,  testified against SB 2336  by Sen. Dan Patrick (R-Houston). Dr. Speer told members of the Senate Health and Human Services Committee that SB 2336 would weaken the Texas Medical Board at a time when we need a strong and fair board to protect the patients of Texas and to uphold high ethical and professional standards for physicians. TMA believes improvements need to be made to the board, including ensuring that a fair and just due-process system is in place for physicians. TMA is working to improve that system through both legislation and the rule-making process. However, SB 2336 would diminish the agency's ability to protect public safety.

"One of our main concerns with SB 2336 is that it would severely weaken the board's ability to sanction physicians for nontherapeutic treatment or prescribing," Dr. Speer said. "Medicine must rely on rigorous, scientific investigation to determine which therapies work, which don't, and what risks they may pose to the patient. In fact, the original Texas Medical Practice Act was written nearly 100 years ago to rid the profession of the snake oil salesmen. Today's patients are indeed harmed, some fatally, when their physicians omit proven and appropriate treatments in favor of their own unproven regimens. This bill would allow a physician to prescribe Laetrile or human urine for cancer treatment … or injections of jet fuel as a cure for allergies. Removing this ability to discipline for nontherapeutic prescribing would curtail the board's ability to sanction a physician for illegally diverting controlled substances."

Dr. Speer also said the bill "would virtually prohibit the Texas Medical Board from setting standards of care," thereby seriously jeopardizing patient safety.

A measure creating a statewide ban on smoking in public places is still clinging to life. The House State Affairs Committee approved HB 5, by Rep. Myra Crownover (R-Denton) after amending it to provide exceptions for nursing homes and long-term care facilities, cigar bars, tobacco shops, and outdoor areas of bars and restaurants. The amended version also exempts counties of fewer than 115,000 residents. The Smoke-Free Texas coalition fought to keep any exceptions out of the bill.

Meanwhile, two TMA-backed immunizations bills were sent to the governor. The first creates a lifetime adult immunization registry. Governor Perry has already signed that measure. The second allows Texas health officials to share immunization records with other states in cases where Texas citizens evacuate because of hurricanes or other emergencies.

A third TMA-backed bill to expand the state's child booster seat law also has been sent to the governor. SB 61 would require that children under age 8 be strapped into booster seats while riding in automobiles unless the child is at least 4 feet, 9 inches tall.

Finally, three bills filed late in the session were advancing. SB 7, by Sen. Jane Nelson (R-Lewisville) passed the Senate and was referred to the House Public Health Committee. The measure seeks to improve quality and efficiency of care in Medicaid and CHIP by promoting health information technology, limiting payment for so-called "never events," promoting a medical home for children on Medicaid and CHIP, and other measures. TMA initially had concerns about the bill but backed an amended version that, among other things, ensures that physicians will not have to maintain a separate electronic medical record system for Medicaid and CHIP.

TMA wants to ensure that whatever system is developed works seamlessly with office-based systems physicians are using to communicate with private insurers. The House Public Health Committee heard the bill on May 5 but left it pending.

The Senate passed SB 10 by Senator Duncan on May 4, and it was referred it to the House Public Health Committee. The measure would create pilot programs within the state Employees Retirement System and Teacher Retirement System to test alternative payment methods. Those methods could include payment on a global (per-person) basis, on an episode (per-disease or health care need) basis, on a performance basis, or any combination of these concepts. The goal is to find ways to align payments with quality of care rather than quantity of care.

TMA is not opposed to the pilots, but is concerned that patients' choice of physicians could be inappropriately limited under the bill.

Lastly, SB 8 by Senator Nelson authorizes the Texas Health Services Authority to develop and disseminate information about best practices and quality of care, develop recommendations to reduce administrative costs, study alternative payment methodologies that will reimburse physicians and health care providers based on quality rather than quantity, study payment incentives to increase access to primary care, and study payment incentives related to "clinical integration." The measure has yet to clear the Senate.

While TMA supports giving physicians more information related to best practices, the association is concerned about making sure physicians with expertise in quality improvement be involved in that effort, eliminating language promoting capitated health care systems, and expediting efforts to promote and implement the medical home model for patients in public and private health care systems. TMA leaders want to make sure information is kept so that physicians can use it to improve their practices but that it is not widely disseminated.

Texas Medicine Senior Editor Ken Ortolon prepared this special addition to Action .

Action , May 15, 2009

Last Updated On

July 30, 2010