Liability reform, scope of practice, trauma topped state legislative agendas in 2014

State legislatures proved to be successful in debating, passing, and implementing a significant amount of legislation in 2014, even though some states had shorter, budget-focused sessions, while the legislative bodies in other states—Montana, Nevada, North Dakota, and Texas—did not convene. Lawmakers at the state level conquered a host of issues related to health care, ranging from youth concussion prevention to expanding Medicaid. The American College of Surgeons’ (ACS) State Affairs staff, with the assistance of an online tracking system, reviewed more than 2,000 bills and actively monitored 500 of those proposed pieces of legislation. Bills addressing various aspects of medical liability reform, scope of practice, trauma systems and funding, injury prevention, cancer, bariatric surgery, and the implementation of the Affordable Care Act were among those closely monitored.

This article provides an overview of the most noteworthy bills that moved through the state legislative process in 2014, describes how surgeons had an impact on policymaking in their states, and offers suggestions on how to engage in legislative advocacy in 2015.

Medical liability reform

States continued to address various facets of medical liability reform in 2014, including such issues as whether statements of apology or compassion may be used as evidence in a liability lawsuit, caps on noneconomic damages, and other reforms.

Wisconsin Gov. Scott Walker (R), signed A.B. 120, legislation that allows physicians and other health care professionals to apologize to patients without worrying whether the statements could be used against them in court. The law is more comprehensive than many other state laws passed on this issue, protecting statements expressing fault, liability, and responsibility, along with those of benevolence, compassion, or condolence. Alaska Gov. Sean Parnell (R) signed H.B. 250, a bill that would make expressions of apology or compassion inadmissible as evidence in medical liability cases, in July. This legislation, however, would not protect an expression of apology or sympathy if made with an admission of liability or negligence.

Kansas Gov. Sam Brownback (R) in April signed S.B. 311, which increases the cap on noneconomic damages in liability claims to $350,000 from $250,000 over the next eight years. This bill was sponsored by the Kansas Medical Society and supported by the Kansas Chapter of the ACS.

Legislation reinstating caps on noneconomic damages failed in the Missouri Senate before the session ended May 16. H.B. 1173 and S.B. 589 would have removed medical liability from the common law and created a statutory cause of action for medical liability cases. This provision would have granted the legislature the ability to cap noneconomic damages without violating the right to a jury trial. In 2012, the state’s Supreme Court based its decision to strike down Missouri’s caps on this common law/statutory law difference, in which common law causes of action violate the state constitution, but statutorily created laws do not.

The Kentucky Senate passed S.B. 119—legislation that would prevent meritless liability lawsuits filed against health care providers by instituting an independent review panel to evaluate liability claims. This panel would consist of three independent members charged with evaluating each claim. While the bill passed the full Senate, it died at the end of session in the House.

Legislation in New York, A. 1056, would have revised the statute of limitations for medical, dental, and podiatric liability actions. The two-and-one-half-year statute of limitations would begin on the date the patient discovers the injury. A second bill, S. 7130, also created a date-of-discovery statute of limitations but would prohibit a liability action from being filed more than 10 years after the date of the alleged act. Neither bill advanced beyond its chamber of introduction.

In California, Proposition 46, a ballot initiative that would have increased the state’s cap on noneconomic damages to $1.1 million from $250,000, as well as required physician drug testing and the use of the state’s prescription drug monitoring program, was defeated in the November election. More than 600 physician and health care groups, hospitals, political organizations, politicians, educational groups, business organizations, labor unions, and specialty medical societies signed on to oppose this effort. The College participated in the campaign by providing co-branded posters for California surgeons to hang in their offices, and the three California chapters worked on local media initiatives with op-eds and letters to the editor. All who worked to defeat this ballot initiative are to be congratulated for a job well done. For more information, contact Justin Rosen, State Affairs Associate, at jrosen@facs.org. or 202-672-1528.

Scope of practice

The Connecticut legislature passed and Gov. Dan Malloy (D) signed S.B. 36, legislation that expands the scope of practice for advance practice registered nurses (APRN) and allows for independent practice after three years of collaboration with a physician. The Connecticut Chapter of the ACS and the Connecticut State Medical Society opposed this bill.

In Utah, legislation requiring all licensed health care professionals to disclose their names and types of license to a patient was signed into law by Gov. Gary Herbert (R) in March.

Legislators in New York considered two bills that would help ensure that patients are properly informed of their health care professional’s credentials; neither bill advanced. Truth-in-advertising bills were also introduced, but did not advance, in California, Georgia, Massachusetts, Nebraska, New Jersey, Pennsylvania, and Washington.

In Louisiana, Gov. Bobby Jindal (R) signed H.B. 1065, which expands optometric scope of practice to include procedures performed with scalpels and lasers as well as injections. More specifically, the new law allows optometrists to inject anesthesia into the eyelid for surgical procedures; perform scalpel eyelid operations on lesions, cysts, chalazia, and pterygia; use selective laser trabeculoplasty (SLT) and argon laser trabeculoplasty (ALT) for glaucoma; perform yttrium aluminum garnet (YAG) posterior capsulotomy; and insert needles for paracentesis procedures.

The College worked closely with the ACS Louisiana Chapter, as well as other specialty societies, to oppose this legislation. These efforts included sending a letter to Governor Jindal asking him to veto the legislation, as well as sending action alerts to Louisiana Fellows, who, as a result, sent close to 150 messages to the governor.

A bill in California, S.B. 492, which was originally meant to expand optometry’s scope of practice to include scalpel and laser surgery and injections, failed at the end of session. The bill, introduced by Sen. Edward Hernandez (D-24), an optometrist who chairs the Senate Health Committee, passed the Senate, but was amended significantly in the Assembly. As a result, the bill was pulled from consideration. The original version of the bill would have permitted optometrists to perform scalpel eyelid operations on lesions, cysts, and chalazia; perform SLT, ALT, and YAG procedures; and inject potent medications. Surgeons sent more than 130 messages opposing this bill to their representatives, helping to defeat it.

Trauma and injury prevention

Legislation was introduced in the Pennsylvania Senate that would allow health care professionals to register in advance of or during a declared disaster or emergency to provide volunteer services in the state, but, as of press time, it had not advanced. This legislation, also known as the Uniform Emergency Volunteer Health Practitioners Act (UEVHPA), would ensure that in future disasters, health care professionals can be quickly deployed to medical facilities and disaster relief organizations while following clear and well-understood rules that provide an effective framework for ensuring that disaster victims have access to timely, high-quality care.

The New York Chapter of the ACS sponsored S. 2171—a bill requiring agencies that conduct autopsies following traumatic death (such as medical examiners, coroners, and so on) to share their findings with referring hospitals in order to facilitate a quality improvement process. New York surgeons Daniel J. Bonville, DO, FACS; William Doscher, MD, FACS; and Mark Gestring, MD, FACS, were primary advocates for this bill and helped usher S. 2171 from the initial committee process to Gov. Andrew Cuomo’s (D) desk for his signature.

New Jersey enacted trauma legislation that calls for appointing the state’s first Trauma Medical Director and establishing a state trauma system advisory committee. This committee will comprise physicians, nurses, and other trauma, burn, and rehabilitation professionals. The ACS Committee on Trauma (COT) has recommended standards for the Trauma Medical Director position, which will include analyzing trauma care data, designing a formal system with specific standards for prehospital triage and care, and evaluating the system on an ongoing basis.

Legislation enacted in Idaho allows the state’s Department of Health and Welfare to develop and administer a time-sensitive emergency system (TSES). The TSES will provide protocols for treating and responding to time-sensitive emergencies, such as traumatic injury, heart attacks, and strokes—conditions that rank among the top five causes of death in Idaho.

The Michigan legislature addressed funding for the development of a statewide trauma system during its session. Since 2011, up to $3.5 million of any excess revenue from the Crime Victims Fund has been allocated to the development of Michigan’s trauma system. This money was scheduled to begin to diminish this year, with only 50 percent of the original amount allowed to be used for the trauma system moving forward, unless additional action was taken. Legislation was adopted late this year to continue this funding for another four years. However, because these funds have never materialized, funding was requested through the regular appropriations process as well, with $1.3 million allocated to trauma system development in the budget bill signed into law in June.

Indiana enacted legislation requiring football coaches to take concussion awareness training classes and mandating a 24-hour sit-out period for student athletes who may have sustained concussions or other head injuries. Every two years under this law, football coaches will be required to take and pass accredited courses on player safety, including concussion awareness, equipment fitting, heat emergency preparedness, and proper technique. This legislation would also provide civil immunity for football coaches in certain circumstances.

Virginia Gov. Terry McAuliffe (D) signed legislation requiring any non-school-sponsored athletic program using school grounds to establish policies and procedures regarding the identification and handling of suspected concussions in student athletes.

Legislation enacted in New Hampshire establishes a definition of head injury and requires school districts to distribute a concussion and head injury information sheet to student athletes. Illinois enacted legislation requiring an online certification program to be developed on concussion awareness and reduction of repetitive sub-concussive hits and concussions. This online concussion certification will be mandatory for high school coaching personnel, including the head coach, assistant coaches, and athletic directors.

A new law in Rhode Island requires teachers and school nurses to complete a training course and an annual refresher course on concussions and traumatic brain injuries.

In California, legislation was enacted that limits full-contact football practices and requires a student athlete who has suffered a concussion or head injury to complete a graduated return-to-play protocol of at least seven days.

Legislation to stiffen penalties for drivers who cause serious injury or death while talking or texting was enacted in Maryland. Under the revised statute, individuals who are found guilty of violating the law face possible imprisonment for up to one year, a fine of up to $5,000, or both. The law does not apply to emergency use of a handheld telephone, including calls to 911, a hospital, an ambulance provider, a fire department, a law enforcement agency, or a first-aid squad.

The Massachusetts legislature and Gov. Deval Patrick (D) approved a 2014–2015 budget that included funding for a state trauma registry and 1.5 staff positions. The Massachusetts Chapter of the ACS and members of the COT have advocated strongly for these funds.

Bariatric surgery

Louisiana Rep. James Armes (D) introduced H.B. 1049, which would require state employee group benefit plans to cover bariatric surgery for the treatment of morbid obesity. H.B. 1049 defined morbid obesity as a body mass index (BMI) of at least 40 or a BMI of at least 35 when accompanied by a comorbidity or another medical condition, such as hypertension, cardiopulmonary conditions, sleep apnea, or diabetes. Gastric bypass operations and other methods recognized by the National Institutes of Health would be covered as well. The bill stalled in the House, although hundreds of letters of support were sent through the state action center to lawmakers encouraging them to pass this legislation.

The ACS is also advocating for state health insurance exchanges to cover bariatric surgery as an essential health benefit. In September, the ACS sent letters to health officials encouraging the inclusion of bariatric surgery as an essential medical benefit in the following state health care exchanges: Arkansas, Colorado, Connecticut, the District of Columbia, Idaho, Kentucky, Minnesota, Nevada, Oregon, Utah, and Washington. Officials who received the letter in each state include the governor, director of the state exchange, insurance commissioner, chairs/executive directors of the Democratic and Republican parties, the Speaker of the House, and the President of the Senate.

Cancer

In Wisconsin, Governor Walker signed a bill requiring state-regulated health plans to provide the same coverage for chemotherapy, regardless of whether it is administered in pill form or intravenously. The bill also establishes a cap of $100 for a 30-day supply of oral chemotherapy medication. Other states enacting oral chemotherapy parity legislation in 2014 include Arizona, Georgia, Kentucky, Maine, Missouri, and Ohio, bringing the total number of states with these laws to 34.

This year, nearly a dozen state legislatures passed bills to regulate the use of tanning beds. Those states include Alabama, Delaware, Hawaii, Indiana, Louisiana, Minnesota, Missouri, Nebraska, Pennsylvania, and Washington. The bills range from Alabama’s first-time establishment of regulations on the use of tanning beds to Hawaii’s and Washington’s ban on children and adolescents under age 18 using tanning devices without a prescription from a physician.

Other states debated similar bills, including Iowa, Kansas, Massachusetts, Michigan, New Hampshire, and Virginia, but no action was taken during their legislative sessions.

Miscellaneous issues

The New York Chapter of the ACS endorsed legislation addressing the restrictions that some health insurance companies have been placing on patients’ out-of-network options, which ultimately limits their coverage. The legislation requires insurance companies to provide adequate coverage for out-of-network care and to disclose the percentage of likely costs that the policy will cover. Many surgeons contacted their state legislators through the action center to get this legislation passed and signed into law.

A bill in Idaho was enacted to allow expanded eligibility for J-1 visas to include general surgery by adding it to the definition of primary care. This legislation was brought forward with the goal of increasing the primary-care physician workforce in designated shortage areas of rural and frontier Idaho. In the statement of purpose, the bill sponsor noted that “the specialty of general surgery is commonly regarded now as a component of a constellation of specialties often referred to as ‘primary care medicine,’ along with family medicine, pediatrics, obstetrics, gynecology, internal medicine, and psychiatry.”1

Medicaid expansion

The Affordable Care Act was enacted more than four years ago, but many states are still attempting to implement its many components. Medicaid expansion is one element of the law that requires state intervention. Originally mandatory for all states, Medicaid expansion is now optional due to the 2012 U.S. Supreme Court ruling. Under the ruling, states are allowed to choose whether to expand Medicaid to all individuals earning up to 138 percent of the federal poverty limit. At the start of 2014, 25 states and the District of Columbia had expanded their Medicaid programs. Of these, Arkansas, Iowa, and Michigan received Section 1115 waivers to test innovative approaches.

In 2014, two more states—New Hampshire and Pennsylvania—expanded Medicaid coverage using these 1115 waivers. As described in a previous Bulletin article, a 1115 waiver allows the Secretary of the U.S. Department of Health and Human Services (HHS) to waive state compliance with certain federal requirements.2 The New Hampshire legislature voted to institute a two-and-one-half-year pilot project under which private health insurers provide insurance to low-income adults in the state. The federal government is providing 100 percent of the funding for the project, which will have to be reauthorized when federal funding begins to decline in 2017.3,4 In Pennsylvania, the program begins January 1, 2015, and will require beneficiaries to pay premiums of up to 2 percent of their incomes and charge an $8 copayment when beneficiaries use the emergency department for nonemergency situations.5

A few other states are still debating whether to expand their Medicaid programs. Indiana has applied for a 1115 waiver to expand its current Healthy Indiana Plan.6 Indiana’s application asks for the ability to require beneficiaries to contribute to a personal responsibility account, which is modeled after a health savings account.6 The application also contains a provision to create a job training and work referral program as a condition of eligibility.6 At press time, the Centers for Medicare & Medicaid Services was still reviewing the application.

In Virginia, Governor McAuliffe worked to expand Medicaid after he made it a central platform of his campaign. However, after a bitter battle with the legislature, which included the unexpected resignation of a state senator, the effort failed.7,8 Utah Governor Herbert has negotiated a deal with HHS to expand Medicaid, but so far the state legislature has opposed the effort if it involves federal funding.8 Wyoming is also discussing its options with the federal government, and the legislature will likely take another look during its session in 2015.8

Getting involved in state advocacy

Fellows continued to play a critical role in advocating for their profession in state legislatures. Using the Surgery State Legislative Action center, surgeons sent more than 1,000 messages to their state legislators asking them to take action on issues of importance to surgery and surgical patients.

As noted earlier, surgeons in New York led the effort to require agencies that conduct autopsies following traumatic death to share their findings with referring hospitals to facilitate a quality improvement process. Likewise, a strong response in California to the ACS action alert requesting that surgeons express their opposition to S.B. 492 helped ensure the bill did not advance out of the House. These are just two examples of how surgeons made a difference by getting involved in state advocacy.

Many more opportunities for surgeons to get involved will arise in 2015. One specific opportunity would be to assist in achieving passage of the UEVHPA in all 50 states. Efforts are under way to get the UEVHPA introduced and passed in Alabama, Florida, Georgia, Mississippi, North Carolina, and South Carolina during the 2015 session. Surgeons in these states are encouraged to get involved.

Other opportunities include responding to the action alerts the College sends, attending your state chapter’s lobby day, and joining the SurgeonsVoice State Councilor program as a State Advocacy Representative (StAR). Action alerts are sent to Fellows and posted to SurgeonsVoice, Facebook, and Twitter, so be sure to follow the ACS on these platforms to stay up-to-date on what is going on in legislatures around the country.

State chapters that are scheduled to host a lobby day in 2015 include Alabama, Brooklyn/Long Island, California (North, South, and San Diego), Connecticut, Florida, Georgia, Indiana, Kansas, Louisiana, Massachusetts, Michigan, North Carolina, Ohio, Tennessee, South Texas, and Virginia. Fellows in these states should consider participating in the event.

The College’s StAR program, now a decade old, is in the process of merging with the State Councilor program. State Councilors fill a key role for SurgeonsVoice, as they serve as the boots-on-the-ground grassroots advocacy network for the entire program. The goal of this merger is to better promote grassroots involvement at all levels. More information on this and other state legislative activities is available on the SurgeonsVoice website.

For some surgeons, the prospect of engaging in advocacy can be intimidating. To help encourage surgeons’ involvement, the College has published Surgeons As Advocates: A Guide to Successful State Advocacy to educate both surgeons and state chapters on the nuts and bolts of state advocacy.

If you have any questions on these programs or would like to get involved in any of these efforts, contact Tara Leystra Ackerman, MPH, State Affairs Associate, at 202-672-1522 or tleystra@facs.org.

Acknowledgment

Justin Rosen, ACS State Affairs Associate, and Jon Sutton, ACS State Affairs Manager, contributed to this article.

 


References

  1. State of Idaho. H.B. 394 Statement of Purpose. Available at: http://legislature.idaho.gov/legislation/2014/H0394SOP.pdf. Accessed September 24, 2014.
  2. Ackerman T, Rosen J. Implementation of the ACA: Turning federal law into state level reality. Bull Am Coll Surg. 2014;99(5):23-29. Available at: http://nowherefacs.wpengine.com/2014/05/implementation-of-the-aca-turning-federal-law-into-state-level-reality/. Accessed September 24, 2014.
  3. State of New Hampshire. S.B. 0413. Chapter 3. Available at: www.gencourt.state.nh.us/legislation/2014/SB0413.html. Accessed September 24, 2014.
  4. Medicaid expansion signed into law in NH. March 27, 2014. New Hampshire Union Leader. Available at: www.unionleader.com/article/20140327/NEWS0621/140329239. Accessed September 24, 2014.
  5. Tavenner M. Letter to Beverly Mackereth, Secretary, Pennsylvania Department of Public Welfare. August 28, 2014. Available at: www.dpw.state.pa.us/cs/groups/webcontent/documents/document/c_098846.pdf. Accessed September 24, 2014.
  6. Indiana Family and Social Services Administration. Healthy Indiana Plan 2.0 1115 demonstration application. July 2014. Available at: www.in.gov/fssa/hip/files/HIP_2_0_Waiver_(Final).pdf. Accessed September 24, 2014.
  7. Vozzella L. Va. House Speaker makes a point on Puckett investigation. Washington Post. September 22, 2014. Available at: www.washingtonpost.com/local/virginia-politics/2014/09/22/4ccba66c-427f-11e4-b47c-f5889e061e5f_story.html. Accessed September 27, 2014.
  8. Kardish C. The top 5 states most likely to expand Medicaid next. Governing. September 2, 2014. Available at: www.governing.com/topics/health-human-services/gov-which-states-will-likely-expand-medicaid-next.html. Accessed September 24, 2014.

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