Memo Date: To: From: RE: January 29, 2008 Bureau of State Government Affairs Tom McElligott, AOA State Government Affairs Manager
AOA’s State Government Affairs Bulletin, January 2008
The New Year is bringing the onset of significant new bills of interest to the Osteopathic Family in state capitals across the nation. With 44 state legislatures and the Washington, D.C. City Council in session in 2008, the AOA is monitoring over 800 bills, so far, affecting: the scope of practice of non-physician clinicians (NPCs), osteopathic licensure, patient-centered medical homes, professional liability insurance reform, incentives for physicians to practice in underserved locations, physician aid in dying, electronic health initiatives, expert witness and peer review, student physical fitness, health system reform, office-based surgery, retail clinics, taxes, and workforce. The AOA encourages the state osteopathic medical associations to contact our State Government Affairs staff if they seek specific AOA advocacy on legislation or proposed regulations affecting DOs. The AOA will continue to monitor the progress of state legislation throughout the year. This issue of the AOA’s State Government Affairs Bulletin covers Jan. 1, 2008 through Jan. 22, 2008. Unless otherwise noted, these bills are new introductions in January 2008. Electronic Health Initiatives In Indiana, H 1342 would require health care providers to, not later than Jan. 1, 2010, use an electronic health records system for purposes of billing and receipt of claim payment for services rendered by the health provider. This applies to payments from all third parties. In New Jersey, A 1391, the Health Information Technology Act, enacted in January 2008, will establish the New Jersey Health Information Technology Commission and Office for e-HIT, and provide for a Statewide health information technology plan. S 1604, also enacted, establishes a prescription monitoring program in the Division of Consumer Affairs to consist of an electronic system for monitoring any controlled dangerous or counterfeit substance dispensed by a pharmacist in an outpatient setting. A 919/S 635 would regulate Internet pharmacies and electronic prescriptions. In New Mexico, H 37, the Electronic Medical Records Act, would authorize the creation, maintenance and use of electronic medical records, provide for individual rights with respect to the disclosure of information contained in electronic medical records, and provide for the protection of privacy of electronic medical records. In New York, A 422 would establish a statewide telemedicine/telehealth task force to make recommendations to the Governor and Legislature on the development of telemedicine and telehealth systems, standards in the applications of such systems, changes in licensure and certification verification necessary to effectuate such systems, and the methodology for determining payments due for health care services provided. S 708 would authorize the use of an electronic medical records system when dispensing certain Schedule II controlled substances. The bill also sets definitions for an electronic medical records system.
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Oklahoma’s S 1719 would create the Task Force on Health Information Technology, direct duties of the task force, set membership of the task force, provide for cochairs, direct quorums, and require certain reports to the legislature. H 47 in Utah would authorize the Department of Health to adopt standards for the secure exchange of electronic health information, authorize the department to require individuals who elect to participate in the exchange of electronic health information to conform to department standards, and require the department to report to the Health and Human Services Interim Committee concerning the adoption of the standards for the secure exchange of electronic health information. Under West Virginia’s H 2177, a tax credit would be made to medical providers in an amount equal to their investment in electronic medical record technology. H 3225 would provide for the appointment of a commission to develop and conduct a field test of a comprehensive, integrated statewide standardized electronic medical records access system. S 74 relates to providing a tax credit to certain medical providers for technology investments. Expert Witness & Peer Review In New Jersey A 1369 would revise standards for expert witnesses in medical malpractice actions. Being of the same specialty is waived if the court determines: (1) the expert specializes in a substantially similar specialty or subspecialty that includes the evaluation, diagnosis or treatment of the medical condition that is the subject of the claim or action and has prior clinical experience treating similar patients; (2) if the party against whom or on whose behalf the testimony is offered is board certified in a specialty or subspecialty, the expert is certified by a board recognized by the American Board of Medical Specialties or the American Osteopathic Association in a specialty or subspecialty having acknowledged expertise and training directly related to the particular health care matter at issue; (3) the expert has devoted a majority of his professional time during the five years immediately preceding the date of the occurrence that is the basis for the claim or action to the active clinical practice of the same or a substantially similar specialty or subspecialty recognized by the American Board of Medical Specialties or the American Osteopathic Association; and (4) the expert has demonstrated to the satisfaction of the court both that the standards of care and practice in the two specialties or subspecialties are similar and that the expert has substantial familiarity between the specialties or subspecialties. In New York, S 4149 relates to the use of expert medical testimony, would create health courts pilot programs, and would deem as professional misconduct providing expert witness testimony that is without reasonable medical foundation. Fitness A number of bills have been introduced that would enhance the physical fitness of school students. In Arizona, H 2570 relates to physical activity implementation plans. Each school district would be required to submit a written plan to the Education Department that provides at least 150 minutes of physical education weekly that features cooperative and competitive games and promotes cooperation, fair play, and participation in physical activities. California’s S 602 clarifies that a pupil may be granted exemption from courses in physical education if the pupil has met at least five of the state’s six standards of physical performance.
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In Hawaii, S 2697 would require the Education Department to implement physical education instruction for grades kindergarten through eight, allow credit to be granted for certain athletic and co-curricular activities, appropriate funds, and provide for the recruitment of licensed physical education teachers. The Kentucky Healthy Kids Act (H 34) would require 30 minutes per day, 150 minutes per week, or the equivalent minutes per month of structured moderate to vigorous physical activity in a minimum of 10-minute intervals beginning in the 2009-2010 school year for preschool through grade 6 and 2010-2011 for grades 7 and 8. It would also permit the physical activity to be met through a combination of traditional classroom instruction, structured recess, and physical education. Similarly, S 17 would require the Board of Education to promulgate an administrative regulation to implement a physical activity requirement, require the department to develop a mechanism for schools to report to the department on physical activities, and require all public preschool through eighth grade programs to implement 30 minutes per day or 150 minutes per week of structured moderate-to-vigorous physical activity. The AOA and the Michigan Osteopathic Association in January wrote House and Senate education committee chairs asking that student physical education be put on their agendas. Missouri alternatively introduced S 746 that would require health insurance companies to provide coverage for the treatment of morbid obesity. In New Hampshire, H 1422 would establish a commission to study issues related to the prevention of childhood obesity. In New Jersey, A 507 would require school districts annually to measure the body mass index of public school pupils. Also, A 691 would permit public school districts to include instruction on the problems of obesity as part of the Core Curriculum Content Standards in Comprehensive Health and Physical Education. In New York, A 5708/S 36 would create the New York Governor’s Council on Physical Fitness, Sports and Health to study fitness issues. Oklahoma’s H 2574 relates to physical education program requirements, and would expand physical education or exercise program instruction requirement to the sixth grade, increase the required minimum number of minutes per week, and require public schools to provide certain minimum number of minutes per week of physical education or exercise program instruction to certain grades. S 1441 relates to physical education program requirements and allows recess time to apply toward certain minimum time requirements. In Tennessee, H 2789/S 2919 would direct the board to develop guidelines for requiring physical education courses in all elementary and secondary schools, instead of requiring an integrated 90 minutes of activity per week. In Virginia, S 61 would require the Board of Education to develop a database of local school divisions’ best practices regarding nutrition and physical education, including results of wellness. In Washington, H 2890 would create a grant program to assist school districts establish coordinated school health councils, develop coordinated school health programs, and implement the school health advisory committee, nutrition, and physical activity goals and standards. Health System Reform In California, A 1, which would provide for health care reform in the state, remains pending in the Senate Health Committee. The reform relates to the Health Care Cost and Quality Transparency Committee—requiring residents to
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enroll in and maintain minimum health care coverage, the Cooperative Health Insurance Purchasing Program, the Healthy Action Incentives and Rewards Program, Medi-Cal hospital rate stabilization, health insurance market reforms, health care service plans’ prescription drug benefits, employer cafeteria plans, a diabetes services program, medical assistants, nurse practitioners, and electronic prescribing. The $14 billion initiative is under consideration in the Senate; this is the governor’s plan and has been passed by the Assembly already. The Delaware Health Security Act (S 177) would provide all current and future Delaware citizens a non-government run program and cost effective single-payer health care system that would eliminate unnecessary multi-payer brokers. The program is meant to save approximately 40% of total funds now wasted by paperwork, profits, advertising, lobbying, and fraud, among other spending. The Illinois Health Care for All Illinois Act (H 4445) would provide that all individuals residing in Illinois are covered for health insurance under the Illinois Health Services Program. In Indiana, S 218 would establish a single-payer health coverage commission to evaluate and make recommendations before Dec. 1, 2008 concerning implementation of a single-payer health coverage system in Indiana. In Maine, H 790 would establish a new universal access health care system that offers a choice of coverage through organized delivery systems or through a managed care system operated by the Health Care Agency and channels all health care dollars through a dedicated trust fund. Missouri is also looking at health system reform. H 1558, the Universal Health Insurance Act, would provide comprehensive and necessary health care services for Missouri residents. All Missouri resident are eligible to sign up for the state program. Services include primary care and prevention, inpatient care, outpatient care, emergency care, prescription drugs, durable medical equipment, long-term care, mental health services, all non-cosmetic dental services, substance abuse treatment, chiropractic services, and basic vision care and vision correction other than laser vision correction for cosmetic purposes. New Hampshire’s H 858, the Discount Medical Plan Organization, would establish registration and operational requirements for discount medical plan organizations. This bill is a request of the Insurance Department. New Jersey Gov. Jon Corzine has announced that the state intends to offer families options to purchase health insurance for their children. Under the program, families who have uninsured children who do not qualify for the state’s Medicaid program, FamilyCare, can “buy-in” to the program. The Newark Star-Ledger reports the new program will allow parents at any income level who have no health coverage for their children to buy into the FamilyCare program at the same rate Horizon Blue Cross-Blue Shield charges the state: $137 a month for one child, $274 for two children or $411 for three or more kids. The program would not provide health coverage for adults and requires that families with more than one child enroll all of their children in the plan. In addition, families must provide proof that their children were uninsured during the previous six months. Three health reform bills are pending in New Mexico. H 147 creates the Health Care Authority and provides for powers and duties. H 62 enacts the Health Solutions New Mexico Act, creates a health coverage authority, provides for contributions to the Healthy New Mexico Work Force Fund, requires New Mexico residents to show proof of health coverage, and requires employers to contribute to the Fund. S 129 establishes a Healthy New Mexico Task Force to devise a strategic plan for implementing disease prevention and chronic condition and chronic disease management measures. In Vermont, several bills also are pending. H 555, relating to the Catamount Health Plan, proposes to provide access to Catamount Health for individuals enrolled in high-deductible health insurance plans, relates to a specified deductible
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amount for personal or family coverage with or without a health savings account, includes employer-sponsored insurance plans, prohibits a specified waiting period, and provides for a premium assistance program. S 283 proposes to require all health insurance plans to be offered, issued, and administered consistent with the state’s Blueprint for Health, directs managed care organizations to establish chronic care programs consistent with the Blueprint for Health, and allows the Commissioner of Banking, Insurance, Securities, and Health Care Administration to conduct comprehensive examinations of managed care organizations. S 314, also relating to Catamount Health, would extend eligibility for Catamount Health to persons who have private insurance with premiums equal to more than 10% of their monthly income. Licensure In New Jersey, S 96 would permit physicians to earn continuing medical education credits by providing free medical care to low-income, uninsured patients. NPC Scope of Practice In California, A 1444 amends the Physical Therapy Practice Act, revises the definition of physical therapy, authorizes a physical therapist to initiate treatment of conditions without a referral, and requires a physical therapist to refer his or her patient to another specified healing arts practitioner if the physical therapist has reason to believe the patient has a condition requiring treatment or services beyond their scope of practice. S 24, concerning nurse practitioners’ scope of practice, sets forth the activities that a nurse practitioner is authorized to engage in, revises the educational requirement for certification, requires certification by a nationally-recognized certifying body approved by the Board of Registered Nursing, and allows a nurse practitioner to prescribe drugs and devices. Colorado is facing scope legislation relating to nurse practitioners, naturopaths, and choice of providers. H 1060 concerns the procedure for determining whether an advanced practice nurse will be granted participating provider status for a health benefit plan. H 1064 provides for the regulation of naturopaths. H 1158, the Colorado Health Freedom Act, allows practitioners of complementary and alternative health care to provide services. In Florida, H 515/S 972 would authorize an advanced registered nurse practitioner whose practice is located within a medically underserved area, or who provides care to a medically underserved population to prescribe Schedule II, III, IV, or V substances. It also allows such practice to the extent authorized by a protocol with a licensed physician or osteopathic physician. S 1016, relating to podiatrists, would prohibit a licensed podiatrist from performing ankle surgery unless the podiatrist meets certain minimal requirements for education and training. In Hawaii, H 2411/S 2415/S 2531 would give prescriptive authority to “qualified” psychologists who practice at a federally-qualified health center. Scope bills also were introduced in Indiana. H 1317, concerning spinal manipulation, would provide that a health practitioner may not perform spinal manipulation or spinal adjustment unless the practitioner has statutory authority to differentially diagnose and meets certain educational requirements. As introduced, the bill excludes DOs and MDs from the restriction. S 150 allows a physical therapist to provide treatment to a patient who was previously referred to the physical therapist for the same condition if the referral was given not more than six months before the request for the later treatment and the physical therapist contacts the referring provider within three days. This bill allows a physical therapist to evaluate a patient without a referral. Several scope of practice bills again emerged in Missouri to date. H 1600 clarifies that a midwife providing only the service of midwifery is not engaged in the practice of medicine or any other healing practice. H 1620/S 724 gives
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advanced practice registered nurses prescriptive authority for scheduled drugs. The AOA wrote letters of opposition to the committee. H 1739/S 917 creates licensing requirements for prescribing psychologists. In Nebraska, L 753 would eliminate the requirement of having an integrated practice agreement for nurse practitioners’ practices. New Hampshire’s H 1396 would require that a prescription be ordered pursuant to a practitioner-patient relationship or under certain other limited circumstances. In New Jersey, A 1335 requires that chiropractic physicians, podiatric physicians, allopathic physicians, and osteopathic physicians be reimbursed at the same rate as other health care providers under various health and accident plans. S 227 would provide that practice of chiropractic includes diagnosis and adjustment of articulations of spinal column and other joints. S 565 would permit revised methods of treatment for chiropractors and establish continuing education requirements. In New York, A 3243 provides that chiropractors may give second opinions and other services without employer approval, certify disability for handicapped parking and real property tax purposes, be employed by school districts to assist medical inspectors, give chiropractors good samaritan immunity, and changes malpractice statute of limitations for chiropractors. A 6342 would require health coverage plans to include in the provider networks certified nurse practitioners as primary health care providers. S 2790 would provide for the regulation of the practice of “naturopathic medicine,” establish a state board for naturopathic medicine, establish requirements to receive a limited permit in naturopathic medicine, establish mandatory continuing competency for naturopaths, and require licensed naturopaths to report suspected child abuse. Tennessee’s S 3622 sets standards for physicians to utilize integrative and complementary medicine. Several scope bills have been introduced in Virginia. H 1468 provides authority to receive laboratory results directly. H 1509 would require public disclosures concerning which oral and maxillofacial surgeons provide cosmetic procedures. H 784 (introduced then tabled until 2009) would establish licensure requirements and criteria for the practice of naturopathy, including educational requirements, examinations, scope of practice, requirements for the promulgation of regulations governing the profession, and an advisory board to the Board of Medicine. S 693 concerns continued physician assistant supervision. S 257 in Vermont makes explicit the intent of the legislature that medically-necessary services provided by naturopaths are covered by Medicaid, Vermont Health Access Plan, and other public health care assistance programs. In Washington, H 2497 would provide prescriptive authority to advanced registered nurse practitioners. S 6334 regards the scope of practice of health care assistants, provides that health care assistants be permitted to administer vaccines and immunizations, modifies the definition of “health care practitioner” to include a licensed physician assistant or a licensed osteopathic physician’s assistant. It also includes in the definition of “supervision” the administration of vaccines or immunizations. In West Virginia, S 59 gives expanded prescriptive authority to advanced nurse practitioners. Office-Based Surgery Tennessee is seeking to regulate office-based surgery for Level II procedures. S 3371/S 3484 define Level II officebased surgery and specify the requirements that must be adhered to by physicians that perform such procedures.
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Patient-Centered Medical Homes In Washington, H 2549 would establish patient-centered primary care pilots. A number of findings support this bill. The legislature said it finds that a patient-centered approach that can manage chronic diseases, address acute illnesses and provide effective prevention needs to be in place and the medical home may best accomplish this goal. The bill also finds that patient-centered medical homes are a place where health care is accessible, compassionate, and built on evidence-based strategies with a team approach. Each patient receives medically necessary acute, chronic, prevention, and wellness services as well as other medically appropriate dental and behavioral services and other community support services, all of which are tailored to the individual needs of the patient. Development and maintenance of medical homes require changes in how primary care providers with medical homes are reimbursed. There is a critical need to identify reimbursement strategies to appropriately finance this delivery of care model. Physician Aid in Dying In Arizona, H 2387 remains pending. The bill would allow a “qualified” terminally ill patient to choose prescribed lifeending medications through his or her physician. Physician Incentives to Practice in Underserved Locations In Hawaii, H 2413 would provide physicians practicing in medically underserved areas an income tax credit for a portion of the amount of their medical malpractice premiums. S 2589 would establish a rural medical practice loan repayment program for licensed physicians who participate in the state’s family practice residency program and who, upon completion of the program, commit to practice medicine for five years in rural areas on the neighboring islands. In New Jersey, A 1704, the Primary Practitioner Loan Redemption Program, would make changes in the state’s Primary Care Physician and Dentist Loan Redemption Program. A 836 would rename the Primary Care Physician and Dentist Loan Redemption Program and make various other changes to the program. In New York, A 9660, the Physician Loan Repayment Program, relates to funds used for the physician loan repayment program and the regents physicians loan forgiveness program for physicians practicing in designated physician shortage areas and creates the medical malpractice rate relief program within the regents physician loan forgiveness program. In South Dakota, S 28 would make an appropriation to reimburse certain family physicians, midlevel practitioners, and dentists who have complied with the requirements of the physician tuition reimbursement program, the midlevel tuition reimbursement program, or the dental tuition reimbursement program. Virginia’s H 979 would provide that students attending the Edward Via Virginia College of Osteopathic Medicine shall be eligible for the Tuition Assistance Grant Program. Professional Liability Insurance Reform In Hawaii, numerous PLI reform bills have been introduced. H 1992 would limit noneconomic damages (amount unspecified at bill introduction stage) that may be recovered in medical tort actions and the amount of attorney’s fees that may be collected in connection with a medical tort action. H 1995 would limit noneconomic damages in medical tort actions to $500,000. H 2071 would establish the Hawaii Medical Malpractice Insurance Relief Fund to offer policies of medical malpractice insurance to physicians, repeal the Hawaii Medical Malpractice Underwriting Plan, and appropriate funds to the Medical Malpractice Insurance Reserve Trust Fund. H 2151 would form a captive insurance company to provide medical malpractice insurance to self-employed physicians. H 2161 would establish a medical
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malpractice mutual insurance company modeled upon the employers’ mutual insurance company. H 2232 would establish a special medical tort reform provision for health professional shortage areas. H 2284 would limit noneconomic damages in an action for a medical tort to $500,000 per person or $1 million per occurrence. H 2405 would establish a medical malpractice court pilot project and assign jurisdiction over civil actions arising from medical malpractice. H 2414 would provide a good Samaritan exemption from civil damages for physicians practicing medicine in health professional shortage areas and rural areas of the state. S 2354 would limit noneconomic damages that may be recovered in medical tort actions and the amount of attorney’s fees that may be collected in connection with a medical tort action. S 2412 would limit noneconomic damages that may be recovered in medical tort actions and the amount of attorney’s fees that may be collected in connection with a medical tort action. In Missouri, H 1300 would require insurers providing medical malpractice insurance to health care providers to establish premiums based on the average judgement in medical malpractice cases by county during the previous calendar year. In New Jersey, several bills were also introduced. A 1123 would establish a Special Medical Malpractice Part in the Superior Court. A 949 would reduce the statute of limitations for medical malpractice liability actions to four years. S 191 would limit liability of physicians to their medical malpractice insurance coverage. S 285 would establish a Medical Malpractice Court. S 605 would cap noneconomic damages in medical malpractice actions at $250,000. S 622 would extend, by three years, the collection of annual surcharges for the Medical Malpractice Liability Insurance Premium Assistance Fund. In Rhode Island, H 7099 would provide that expressions of sympathy and statements by a health care provider to a patient or family member regarding the outcome of medical care and treatment, including reports of medical or health care errors or unanticipated outcomes as required by or in accordance with Joint Commission on Accreditation of Healthcare Organization’s standards, shall be inadmissible as evidence or an admission of liability in a civil action against the provider. In Tennessee, H 2650 would revise certain reporting requirements for medical or professional malpractice claims. H 3053/S 2929 would replace the term medical malpractice with health care liability action and revise provisions concerning damages, expert testimony, attorney fees, and other matters in such actions. S 3248 would prohibit admissibility of an apology in a case involving medical malpractice. Virginia’s H 1282 would provide that a defendant in a medical malpractice case may make an irrevocable settlement offer within 180 days after responsive pleadings were filed and provide for the payment of the plaintiff’s net compensatory damages and attorney fees in an amount equal to 10% of these damages. H 1305/H 1306/S 211, relating to the Neurological Injury Compensation Program, would increase the annual assessment for physicians who participate in the Virginia Birth-Related Neurological Injury Compensation Program. S 212 would allow all parties to a claim under the Birth-Related Neurological Injury Compensation Act to confront evidence, provide that a party shall not be precluded from conducting depositions of any witness, and create a mechanism for voiding an adverse determination. S 568, relating to the Virginia Birth-Related Neurological Injury Compensation Program, would increase the annual assessment for physicians and hospitals. In Wisconsin, S 126 requires notification to the state regarding a medical malpractice claim. Retail Clinics The Massachusetts health department issued its final regulation that governs retail clinics in the state. Many of the recommendations outlined by the AOA and the Massachusetts Osteopathic Society were included in the final regulation, such as: limiting the scope of services available, specifically to limited episodic care; clearly posting a list of
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services outside the clinic entrance; limiting the number of visits a patient may make to the clinic; requiring patients and their primary care practitioners (includes community health centers) to receive a medical record copy after each visit; requiring referrals to primary care practitioners for patients without them; and providing for continued service in off-hours for patients. The clinics must also provide for solid and liquid waste and hand-washing facilities, although it allowed patients to use the host company’s bathroom facilities for urine samples. All immunization care to children over 24 months of age must be done in close collaboration with the primary care practitioner; the regulation prohibits seeing patients under 24 months of age, also. In Oklahoma, S 1523 would create the Retail Health Clinic Act. This Act would provide requirements for retail health clinics, specify certain scope of practice requirements, require certain supervision of retail health clinics, and direct the State Board of Health to promulgate rules. Taxes In New Jersey, A 1098/S 645 would repeal the cosmetic medical procedure gross receipts tax. Workforce In Iowa, H 2014 would provide for a study regarding the shortage of doctors of psychiatry in Iowa.
CC:
Divisional Affiliates & Specialty Colleges American Association of Osteopathic Examiners National Board of Osteopathic Medical Examiners John B. Crosby, JD, AOA Executive Director Sydney Olson, AOA Associate Executive Director, Advocacy & Communication Michael Mallie, AOA Director, State, Specialty & Socioeconomic Affairs Linda Mascheri, Director, AOA Division of State Government & International Affairs
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