2012 state legislative wrap-up

The legislatures in several states—Montana, Nevada, North Dakota, and Texas—did not convene last year, and the legislatures in Arkansas, Oregon, and West Virginia held shorter budget sessions. Hence, a smaller volume of bills was considered at the state level in 2012. State Affairs staff at the American College of Surgeons (ACS) tracked more than 600 bills in 2012, reflecting a more focused approach to identifying the legislation most relevant to surgery. The majority of the bills monitored last year fell into the following categories:

  • Medical liability reform
  • Quality/patient safety (scope of practice, injury prevention)
  • Workforce/surgical practice (Uniform Emergency Volunteer Health Practitioners Act [UEVHPA], Trauma System Funding and Development)
  • Cancer care

This article provides an overview of how the state legislatures addressed these and other important state health care issues in 2012 and discusses the potential impact of the November elections.

Medical liability reform

More than 30 states now have some form of medical liability reform in place. For the remaining states with little to no reform, passing this type of legislation can often be a very difficult process requiring work over many sessions and years. Obstacles to passage of liability reform legislation include unfavorable political climates in states, strong opposition and lobbying from trial attorneys, and constitutional barriers. A few states did succeed this past year in achieving medical liability reform or in seeing their state courts uphold the constitutionality of caps on noneconomic damages.

In early August, a health care cost control bill was signed into law in Massachusetts (S. 2400, now Chapter 224). The bill established statewide health care cost growth goals and included language to facilitate medical liability reforms, such as a disclosure, apology, and offer (DA&O) policy. This reform is intended to improve transparency, reduce medical liability lawsuits, resolve negligence accusations more quickly, and improve patient safety. Under this legislation, DA&O includes provisions for a six-month, pre-litigation resolution period that affords the time for the patient to provide all pertinent medical records and for providers to give full disclosure and make statements of apology, which will be inadmissible in court. (For a more detailed explanation of Chapter 224, see the December 2012 issue of the Bulletin.1)

Oregon Gov. John Kitzhaber (D) issued a medical liability reform proposal to the state’s Patient Safety and Defensive Medicine Workgroup, which calls for medical liability claims to undergo a progressive, three-phase process: (1) early discussion and resolution; (2) mediation; and (3) litigation. The proposal provides a full overview of the three-phase approach as well as a flow chart that breaks down the various stages of the process. The proposal was developed using the following objectives: improve the practice environment to allow physicians to learn from medical errors and improve patient safety; more effectively compensate individuals who are injured as a result of medical errors; and reduce the collateral costs associated with the medical liability system, including costs associated with insurance administration, litigation, and defensive medicine. The governor has said he wants this legislation introduced and passed in 2013.

Many states that already have liability legislation in place continue to have to defend the laws in court, and 2012 was no exception.

In a 4–3 decision, the Missouri Supreme Court issued an opinion on July 31, 2012, ruling that the state’s $350,000 cap on noneconomic damages is unconstitutional. The basis for this determination was that the cap violates the right to trial by jury as guaranteed in the state’s constitution by interfering in the jury’s assigned role of determining damages. In this case, the jury had awarded $1.45 million in noneconomic damages, which were reduced to $350,000.

The Kansas Supreme Court on October 5, 2012, issued an opinion in Miller v. Johnson, upholding a $250,000 cap on noneconomic damages. The case marks the second time the Kansas Supreme Court has upheld the cap, which was enacted in 1988. In a 5–2 ruling, the Court found that the cap was constitutionally sound, observing that the legislature’s decision to enact the cap was rationally related to a valid legislative purpose and as such did not violate the state’s constitutional protections. The court also observed that the intent of the cap was to ensure patient access to quality health care and to promote the availability of affordable malpractice insurance for health care professionals in Kansas. The court recognized these objectives as legitimate state interests that promote the general welfare.2

Scope of practice

Year after year, nonphysician health care providers continue to be aggressive in their efforts to expand their scope of practice to include treatments, procedures, and authority inconsistent with their education and training. Commonly seen scope-of-practice expansions include independent prescriptive authority, unsupervised practice, diagnostic and/or surgical authority, and other care privileges, which a nonphysician provider may not be educated or trained to safely and effectively excecute.

A number of states, including Alabama, Illinois, and Indiana, dealt with scope expansion efforts on behalf of physical therapists. In Alabama, physical therapists were successful in their efforts when H.B. 163 was signed into law. The bill allows physical therapists to treat a patient without a physician referral. Physical therapists introduced similar bills in Illinois and Indiana, but neither was signed into law. In Oklahoma the physical therapists expanded their scope by introducing a bill (S.B. 1592) that would allow physical therapists to administer wellness checks or physicals. The bill was signed into law in April 2012.

Podiatrists in New York introduced a bill (A.B. 9293) that would allow them to treat the ankle and soft tissue structure of the leg below the knee after obtaining privileges to do so. After several previous attempts at scope expansion, the podiatrists were finally successful in 2012 when A.B. 9293 was signed into law.

As is often the case, scope expansion efforts are viewed as putting patients at risk when nonphysician practitioners practice beyond their education and training. However, there are times when scope-of-practice legislation enhances health care delivery. The state of Virginia, for example, passed two laws that successfully limit scope of practice for nonphysicians. The Medical Society of Virginia, in conjunction with the ACS Virginia Chapter, achieved passage of a definition of surgery law. The bill, S.B. 543, defines surgery as the structural alteration of the human body by incision or cutting into of tissue for the purpose of diagnostic or therapeutic treatment of conditions or disease processes using an instrument that causes localized alteration or transposition of live human tissue. The bill also states that no person shall perform surgery unless licensed by the Board of Medicine as a doctor of medicine, osteopathy, or podiatry. The second law passed in Virginia functioned as a collaborative agreement bill, H.B. 346, and states that nurse practitioners are a part of the health care team and shall only practice as part of a physician-led patient care team.

Maryland and Mississippi both passed truth-in-advertising legislation in 2012. Maryland introduced H.B. 957/S.B. 395, which mandates that physicians who claim to be board-certified disclose the full name of the certifying board and specialty. The bill also requires that the certifying body be an approved member of the American Board of Medical Specialties or the American Osteopathic Association. Mississippi’s truth-in-advertising law, S.B. 2670, requires that an advertisement identify the type of license a health care provider holds and that the health care provider post and communicate specific licensure to patients. Missouri, Vermont, Washington, and West Virginia also introduced truth-in-advertising legislation in 2012.

Injury prevention

As in previous legislative sessions, bills related to trauma issues occupied a large portion of the College’s state legislative affairs attention in 2012. Nearly 200 trauma-related bills were introduced at the state level. The majority of the trauma bills tracked throughout the year addressed injury prevention issues, such as graduated driver’s licenses, all-terrain vehicles (ATVs), and seatbelts and helmets, whereas a small number of bills focused on trauma systems and funding.

Michigan Gov. Rick Snyder (R) signed legislation (S.B. 291) that weakens the state’s motorcycle helmet laws. College State Affairs staff worked closely with the Michigan ACS Chapter to defeat this legislation, and for a while it looked as though the governor might even veto the bill. The law states that motorcycle helmets are required only for operators or passengers of motorcycles who are ages 19 and younger. Older riders and passengers are no longer required to wear a helmet. This legislation renders the enforcement of helmet usage exceedingly difficult because it can be challenging for a police officer to determine whether riders and passengers are at least 20 years old, and therefore, legally riding without a helmet. Whereas similar bills are showing up in other states, the College remains committed to its policy of supporting helmet usage for all motorcyclists. Read the ACS statement in support of motorcycle helmet laws.

The state of Maryland, meanwhile, passed H.B. 569 on October 1, 2012, which mandates that owners of mopeds and motor scooters display a title and decal. In addition, operators of these vehicles must possess a valid license or moped permit, carry proof of insurance, and wear a helmet.

The Hawaii legislature considered a bill (H.C.R. 2012 33) that would impose age restrictions on individuals who operate ATVs. The College submitted testimony to a House committee that held a hearing on the legislation, and the bill passed in the House. In the Senate, it was passed with amendments, and ended the session in the Judiciary Committee. Although it did not make it to the governor this session, the bill will most likely be reconsidered in 2013.

Numerous organizations, including the ACS, the National Football League, the American Medical Association, and the American Academy of Pediatrics have pledged support and advocated for states to pass important sports injury legislation. The model legislation, which many states have implemented, follows the guidelines that were established in Washington State’s law, known as the Zackery Lystedt Law. The three main tenets of the legislation are: (1) inform and educate youth athletes, their parents, and guardians and require them to sign a concussion information form; (2) remove from play or practice a youth athlete who appears to have suffered a concussion; and (3) require a youth athlete to be cleared by a licensed health care professional trained in the evaluation and management of concussions before returning to play or practice.

Forty states to date have passed legislation addressing the issue of youth concussion education and prevention. More than 30 states passed these bills in 2010 and 2011. In 2012, states that passed this type of legislation included Arizona, Florida, Idaho, Kentucky, Tennessee, and Wisconsin. Only 10 states are without some sort of provisions in place to address student athlete concussion prevention: Ohio, West Virginia, South Carolina, Georgia, Mississippi, Tennessee, Arkansas, Montana, Nevada, and Wyoming. Most of these states have introduced legislation in previous sessions, but the bills did not pass. Nonetheless, most of these states will likely introduce this legislation again in the upcoming 2013 session.

Emergency volunteers

UEVHPA addresses the lack of uniformity in state laws, a problem that was revealed during the horrific hurricane season of 2005. Passage of UEVHPA allows state governments to give reciprocity to other states’ licensees who are emergency service providers, so that covered individuals may provide services without meeting the disaster state’s licensing requirements. It recognizes a national registration system to confirm that physicians and health practitioners are appropriately licensed and in good standing in their respective states, with their licensees recognized in affected states for the duration of the emergencies.

Since UEVHPA became a state legislative priority for the College in 2007, 14 states and the District of Columbia have adopted the legislation: Arkansas (2009), Colorado (2007), District of Columbia (2010), Illinois (2010), Indiana (2008), Kentucky (2007), Louisiana (2009), New Mexico (2008), North Dakota (2009), Nevada (2011), Oklahoma (2009), Oregon (2009), Tennessee (2007), and Utah (2008).

In 2012, UEVHPA was introduced in Mississippi and Pennsylvania. Pennsylvania’s bill, H.B. 2120, was assigned to the Committee of Emergency Preparedness and Veterans Affairs in January, and the ACS coordinated a letter of support along with the Pennsylvania ACS chapters, encouraging the Committee to pass the bill. No action had been taken at press time, but the Pennsylvania legislature is considered a full-time legislature that meets most of the year, and the ACS was continuing to advocate for passage of this legislation.

Cancer care

During the 2012 legislative session the College’s State Affairs staff began focusing on a number of new issues that affect the Commission on Cancer, cancer care, and cancer prevention. The bills tracked pertained to drug shortages, oral chemotherapy reimbursement, tanning bed restrictions, and anti-tobacco initiatives.

One of the more pressing issues in oncologic care is insurance reimbursement for oral chemotherapy. Virginia was the only state that tackled the issue by passing into law a bill, S.B. 450, that requires insurance companies to pay for oral chemotherapy at the same rate as intravenous chemotherapy treatments.

Legislators continue to tackle the issue of tanning bed usage by minors; currently, 30 states restrict access to tanning beds. New York bill A. 1074/S. 2917 amends the state’s current tanning law to further restrict teen usage. New York State’s previous law banned indoor tanning only for children 14 years of age and younger. The amendment to this law now restricts anyone 16 years of age or younger from using a tanning bed. Teens 17 and 18 years of age must provide written consent from a parent or guardian.

The expanded restrictions were signed into law in June. Hawaii and Illinois also considered tanning bed restrictions for minors, but neither bill passed.

Anti-tobacco initiatives, such as tobacco taxes and smoking bans, continue to be popular at the state level. Hawaii failed to pass two bills that would have placed a tax on tobacco. Indiana legislators, however, passed a statewide smoking ban after several years of rejecting such bills. The smoking ban legislation, H.B. 1149, prohibits smoking in most public places and in the workplace with the exception of casinos and cigar bars.

State elections

On November 6, 2012, all eyes were on the road to the White House. Many voters did not realize that perhaps the most important elections were taking place at the state level. Whereas the federal elections focused heavily on the economy, the state races often were decided on matters unique to the individual states. On election day, a total of 6,030 (82 percent) of legislative seats were up for grabs in 44 states.3
Whereas the status quo was maintained in Washington, DC, with Democrats continuing to control both the White House and the Senate and Republicans maintaining control in the House of Representatives, the states experienced greater shifts with partisan control changing in eight states after the November 2012 elections. State legislatures such as Maine and Minnesota went from being Republican-controlled to Democratic.4 Republicans gained the Arkansas House and Senate, with the Senate having a Republican majority in place for the first time since Reconstruction. Colorado, which was previously a split legislature, voted in Democrats to unseat three Republican legislators and regain control of the House of Representatives, which they lost in the 2010 election.4,5 In Colorado, Democrats also control the Senate and the governor’s office.

Governors were elected in 11 states including: Delaware, Indiana, Missouri, Montana, New Hampshire, North Carolina, North Dakota, Utah, Vermont, Washington, and West Virginia. Republicans were hoping for big wins across the country as they poured tens of millions of dollars into efforts to gain control of more governors’ offices.5 The biggest victory for Republicans was in North Carolina, where Pat McCrory became the first Republican elected to the governor’s office since 1993. Republicans also held on to offices in Indiana and saw incumbents win in North Dakota and Utah. Democrats held on to offices in Delaware, Missouri, New Hampshire, Vermont, and West Virginia. Republicans now occupy 30 governors’ offices while the Democrats control 19; one governor, Gov. Lincoln Chafee of Rhode Island, is an Independent.

Supporting state grassroots advocacy

The State Affairs staff in the Division of Advocacy and Health Policy is always available to surgeons and ACS chapters when state-level legislative or regulatory issues arise. The state legislation Web page contains useful information related to various aspects of state grassroots advocacy and state legislative resources. For more information on the legislation discussed in this article or for answers to any follow-up questions, contact Charlotte Grill at cgrill@facs.org.


References

  1. Warshaw AL, Sutton JH. Controlling state health care costs: Massachusetts forges ahead. Bull Am Coll Surg. 2012;97(12):17-21.
  2. American Medical Association Advocacy Resource Center. Constitutional challenges to state caps on non-economic damages. Available at: www.ama-assn.org/ama/pub/advocacy/current-topics-advocacy/practice-management/medical-liability-reform/state-legislative-activities.page. Accessed November 1, 2012.
  3. Storey T. State conference of state legislatures. A wave or a ripple? State Legislatures Magazine. Available at: www.ncsl.org/legislatures-elections/elections/a-wave-or-a-ripple.aspx. Accessed November 1, 2012.
  4. National Conference of State Legislatures. Legislative elections. Available at: www.ncsl.org/legislatures-elections/elections/statevote.aspx. Accessed November 7, 2012.
  5. Associated Press. Boston Herald. GOP sees limited results in governors’ races. Available at: www.bostonherald.com/news/us_politics/view.bg?articleid=1061173016&format=text. Accessed November 7, 2012.

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