State legislatures get back to work

The State Affairs team at the American College of Surgeons (ACS) diligently reviews hundreds of bills that are introduced every week in the state legislatures, marking many for closer monitoring and potential grassroots advocacy. From state health exchanges implemented through the Affordable Care Act (ACA), to the Uniform Emergency Volunteer Health Practitioners Act (UEVHPA), to determining a legislative definition of surgery—2015 looks like it will be a productive year for state legislatures. This article reviews state legislative issues that are priorities for the ACS in 2015.

ACS identifies key issues

Identifying and defining those issues that are being debated at the state level that will affect surgery and patient care is a complex task. The annual input of the College’s Health Policy and Advocacy Group (HPAG) has helped narrow the most pressing issues of particular interest to surgeons in 2015, providing guidance to State Affairs staff about how to address these matters as they arise. Priorities for 2015 that the HPAG has identified are as follows:

  • ACA implementation. States are largely responsible for implementing many of the provisions in the ACA, and as the process continues, the College is closely monitoring related issues that are emerging. Specific concerns include the narrowing of insurance networks and the tiering of health care providers based on the cost and quality of care they deliver and how these practices may affect access to care. Some states that haven’t expanded Medicaid are exploring their options, and these activities are also being closely monitored.
  • Bariatric surgery coverage. Bariatric surgery is not classified as an essential health benefit (EHB) in 25 states, even though the procedure is a proven method for treating obesity. The College has been collaborating with the American Society for Metabolic and Bariatric Surgery (ASMBS) to include coverage for bariatric surgery as an EHB in states with their own insurance exchanges.
  • Medical liability reform. Medical liability reform is a perennial issue for surgery. The ACS will actively engage in efforts to improve the medical liability climate at the state level, and will continue to oppose any efforts to remove reforms in states where they have been adopted.
  • Scope of practice. Scope of practice was a hot topic in 2014 and continues to be an important issue in 2015. Of particular concern is legislation that expands the scope of practice for optometrists, allowing them to perform certain surgical procedures. The College will continue to work with its specialty society partners to oppose these efforts and to support the rest of the medical community as states try to expand the scope of practice for many other nonsurgeons, including podiatrists, audiologists, physical therapists, and advanced practice registered nurses (APRNs).
  • Trauma. The College will continue to advocate for stronger injury prevention legislation at the state level, including protecting existing helmet laws, strengthening distracted driving laws, and ensuring safe driving conditions.
  • UEVHPA. The College is renewing efforts to expand the number of states that have adopted the UEVHPA.

State legislative activities

A significant amount of activity around key issues has already been observed this year.

Implementation of the ACA

Health care networks in some states, in order to provide seemingly affordable insurance products to subscribers, have offered insurance plans with limited access to health care providers and no out-of-network coverage. This practice led policymakers in California to issue emergency regulations on January 30 aimed at addressing these concerns.1 The emergency regulations mandate that health care networks take the following actions:

  • Include an adequate number of primary care physicians who are accepting new patients to accommodate recent and ongoing enrollment growth
  • Include an adequate number of primary care providers and specialists with admitting and practice privileges at network hospitals
  • Consider the frequency and type of treatment needed to provide mental health and substance abuse disorder care when creating the provider network
  • Adhere to and monitor new appointment wait time standards
  • Report information about the networks and changes to the networks to the Department of Insurance on an ongoing basis
  • Provide accurate provider network directories to the Department of Insurance and make them available both to policyholders and the public, so that Californians shopping for health care insurance can access this information as well
  • Make arrangements to provide out-of-network care at in-network prices when there are insufficient in-network care providers
  • Require network facilities to inform patients before care is provided that an out-of-network medical provider will participate in the non-emergency procedure or care, so that the patient can decline the participation of the out-of-network provider if they so choose

Another emerging problem stemming from the narrowing of insurance networks in state-run insurance exchanges is the increased use of out-of-network providers. Legislation is expected to be introduced to address out-of-network coverage in Colorado. This bill would limit the amount of money out-of-network physicians can charge patients.

State expansion of Medicaid

The ACA calls for the states to expand Medicaid eligibility for low-income patients. Indiana’s proposal to expand Medicaid was approved by the U.S. Department of Health and Human Services in January. The Indiana plan will require everyone participating to pay a monthly premium of 2 percent of their income. Those individuals and households with income under the poverty level will not have to pay premiums, but then will not have access to vision or dental benefits. Participants will also have to pay co-payments. Many other states—including Idaho, Montana, Tennessee, Utah, and Wyoming—are looking at similar creative ways to expand Medicaid.

Bariatric surgery coverage

Another priority for the State Affairs team is addressing coverage issues in the 25 states that do not classify bariatric surgery as an EHB. When obesity is treated with bariatric surgery, significant reductions occur in related co-morbidities, such as hypertension, type 2 diabetes, sleep apnea, and high cholesterol.2 Efforts are moving forward with meetings to address EHB coverage for bariatric surgery in Arkansas, Colorado, Connecticut, the District of Columbia, Idaho, Minnesota, Oregon, Utah, and Washington. Letters have been sent to the governors, insurance commissioners, legislative leaders, and health care exchange directors asking them to support expanding their benchmark plan or instituting authorizing legislation.

Even among those that do require coverage for bariatric surgery, some states, such as Michigan, New York, and New Mexico, have discriminatory coverage policies. These policies include higher co-payments, higher deductibles, and limits on the number of procedures covered per patient. In addition to collaborating with ASMBS, the ACS intends to work with the Centers for Medicare & Medicaid Services (CMS) and policymakers in the states to address these policies.

Medical liability reform

During the first few months of 2015, significant movement on medical liability reform has already occurred in a number of states. A case currently is being heard in the Supreme Court in California challenging its $250,000 cap on noneconomic damages. Furthermore, after the defeat of last year’s Proposition 46, which would have more than quadrupled the cap, the California state legislature may be asked to take up legislation to increase the limit on noneconomic damage awards.

Legislation to increase caps on damages is being introduced in other states that have adopted liability reform measures, as well. In New Jersey, legislation has been introduced to cap noneconomic damages at $250,000. In Indiana, legislation was introduced in the state senate that would allow liability claims of up to $45,000 against a physician to bypass the medical review panel and reach the Patient’s Compensation Fund. Currently, claims of $15,000 or less may bypass the review panel. In the Indiana House, a bill was introduced to raise caps on medical liability from $1,250,000 to $1,650,000. The bill also would have increased the maximum amount of liability for health care professionals or their insurers from $250,000 to $300,000. In Indiana, any award above that amount is paid out of the Patient’s Compensation Fund.

Legislation has again been introduced in Missouri to reinstate the caps on noneconomic damages. One bill would establish a statutory cause of action to replace the common-law action for medical liability cases, thereby removing the ability of the courts to rule these caps unconstitutional. Another piece of legislation would amend the state constitution to limit the liability for noneconomic damages in medical liability cases, as well as authorize the General Assembly to adjust the amount by law as necessary. If this bill passes, the issue would then go on the ballot.

States continue to explore other reforms, including “I’m Sorry” legislation, which protects health care professionals from having statements of apology to patients and families used as evidence of wrongdoing in liability lawsuits.

Scope of practice

At press time, the College was monitoring more than 60 bills that would increase the scope of practice for nonsurgeon health care practitioners, such as podiatrists, APRNs, nurse anesthetists, and chiropractors. Arkansas is considering a bill to eliminate physician supervision requirements in the administration of anesthesia. Kansas is considering a bill to allow podiatrists to perform surgery on the foot, ankle, and tendons that insert into the foot, including amputation of the toes or part of the foot; however, they would be prohibited from amputating the whole foot or administering any anesthetic other than local. Another Kansas bill would allow APRNs to practice independently. Florida also has a bill to allow APRNs to practice independently.

Another emerging issue in 2015 is the licensing of naturopaths. A number of states, including Mississippi, Montana, and Washington, are considering bills that would license naturopaths, require insurance companies to cover their services, or allow them to prescribe certain medications. For example, in North Dakota, a bill was introduced that would allow naturopaths to perform minor procedures, including the repair and care incidental to superficial lacerations, abrasions, and lesions; the removal of foreign bodies located in the superficial tissues, cysts, ingrown toenails, skin tags; the treatment and removal of warts; and the incision and drainage of boils.

A statutory definition of surgery at the state level can help to ensure a patient receives quality physician-led care. In 2003 the ACS collaborated with a number of surgical specialty societies to expand an existing ACS position statement on laser surgery to include a definition of surgery. In the Statement on Surgery Using Lasers, Pulsed Light, Radiofrequency Devices, or Other Techniques, the College defines surgery as follows:

Surgery is performed for the purpose of structurally altering the human body by incision or destruction of tissues and is part of the practice of medicine. Surgery also is the diagnostic or therapeutic treatment of conditions or disease processes by any instruments causing localized alteration or transportation of live human tissue, which include lasers, ultrasound, ionizing, radiation, scalpels, probes, and needles. The tissue can be cut, burned, vaporized, frozen, sutured, probed, or manipulated by closed reduction for major dislocations and fractures, or otherwise altered by any mechanical, thermal, light-based, electromagnetic, or chemical means. Injection of diagnostic or therapeutic substances into body cavities, internal organs, joints, sensory organs, and the central nervous system is also considered to be surgery (this does not include administration by nursing personnel of some injections, such as subcutaneous, intramuscular, and intravenous when ordered by a physician). All of these surgical procedures are invasive, including those that are performed with lasers, and the risks of any surgical intervention are not eliminated by using a light knife or laser in place of a metal knife or scalpel. Patient safety and quality of care are paramount, and the College therefore believes that patients should be assured that individuals who perform these types of surgery are licensed physicians (defined as doctors of medicine or osteopathy) who meet appropriate professional standards.3

The Connecticut Chapter of the ACS is currently advocating for state legislation comprising a definition of surgery. ACS chapters interested in pursuing similar legislation or in obtaining more information on definition of surgery legislation should contact state_affairs@facs.org.

Trauma

Most of the trauma-related activity in the state legislatures in 2015 has revolved around injury prevention, especially efforts to curtail distracted driving. At least a dozen states, including Arizona, Connecticut, Florida, and Georgia, are currently considering bills to modify their distracted driving laws. Some bills would move the violation from a secondary to a primary offense; some would change the fines for the violation; others would adjust current language to account for changes in technology. A number of youth concussion prevention bills also are being considered. A bill to require all motorcycle operators and passengers to wear helmets was introduced in New Mexico. On the other side of the issue, West Virginia, Washington, and Nebraska are considering bills to remove helmet requirements for motorcycle riders, which would run contrary to the College’s official statement in support of enacting and sustaining universal helmets laws.4

It has been considerably quieter in terms of trauma system development and funding this year. A bill introduced in the Texas legislature would repeal the state’s Driver Responsibility Program, which is a source of funding for the state trauma system. The Driver Responsibility Program, enacted in 2003, imposes surcharges on people who commit certain traffic violations, including driving while intoxicated and driving without a license. Money collected from the program has allowed for the expansion of trauma care in Texas, leading to better access to timely care throughout the state. The ACS is working with stakeholders to oppose this repeal.

UEVHPA

The UEVHPA was developed in response to emergency care crises that arose in the aftermath of Hurricanes Katrina and Rita in 2005. This model legislation allows a state to recognize the licensure of physicians and health care practitioners in other states if those providers have registered with a public or private registration system to provide care during a declared emergency.

Currently, 14 states including Arkansas, Colorado, Illinois, Indiana, Kentucky, Louisiana, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, Tennessee, Texas, Utah, as well as the District of Columbia, have enacted the UEVHPA, and the College is making a concerted effort to get this legislation enacted in other states. In 2015, the focus has been mainly on states in the southeast, including Alabama, Florida, Georgia, Mississippi, and South Carolina. ACS State Affairs staff will also be working to advance the legislation in Pennsylvania. The College expects this to be a multi-year effort. State Affairs has been working with the ACS chapters, state medical societies, and the Uniform Law Commission to advance this bill. Advocates were identified in each state to help promote the bill in the state legislatures, and special recognition goes to Hugh A. Gamble II, MD, FACS, in Mississippi for his work to get the bill introduced in that state. Fellows and members of ACS state chapters are encouraged to advocate for passage of the act in their states. If you are interested in getting involved in this effort, contact Tara Leystra Ackerman at tleystra@facs.org or 202-672-1522.

Other issues

There are several other relevant issues at the state level, including graduate medical education (GME) and the health effects of electronic cigarettes. The College is participating in efforts to address these concerns, as well.

For example, over the last several years, Texas has been working to increase funding for GME to keep pace with the addition of three new medical schools and the anticipated 250 new medical students in 2016 from these schools. Organized medicine is advocating for an additional $30 million for the 2016–2017 fiscal year. Despite the 45 percent increase of $30 million in 2014–2015, Texas is still far below the peak of $106 million in funding allocated in 2010–2011.5

Efforts to address GME funding are also under way in California and Indiana. As the potential cuts in federal funding for GME loom large, more and more states will be forced to consider increased state funding.

Many states also are looking at the unregulated issues of liquid nicotine and vaping, which is associated with e-cigarettes. Currently, legislation to regulate and/or tax e-cigarettes, vaping, and liquid nicotine is pending in Arkansas, California, Hawaii, Indiana, Kentucky, Michigan, Missouri, Mississippi, North Dakota, New Hampshire, New Jersey, New Mexico, Nevada, New York, Puerto Rico, Texas, Virginia, and Washington.

Get involved

Fellows continue to play an important role in advocating for the practice of surgery in state legislatures. Grassroots advocacy for enactment of the UEVHPA in additional states or coverage for bariatric surgery are two examples mentioned in this article, but many more opportunities exist. Fellows can respond to Action Alerts from the College, attend state chapter lobby days, and join the State Councilor program. State Councilors fill a key role for SurgeonsVoice, as they are the boots-on-the-ground grassroots advocacy network for the entire program. More information on this activity and others is available on the SurgeonsVoice website.

Another way to get involved is to attend the ACS 2015 Leadership & Advocacy Summit, April 18–21, at the JW Marriott in Washington, DC. The annual summit is a dual meeting that offers volunteer leaders and advocates comprehensive and specialized educational sessions focused on effective surgeon leadership, as well as interactive advocacy training useful in federal and state grassroots advocacy, and coordinated visits to congressional offices.

If you have any questions about these state issues or programs or are interested in becoming more involved in the College’s grassroots advocacy efforts, contact state_affairs@facs.org or call 202-337-2701.


References

  1. State of California. Office of Administrative Law. Notice Of Approval of Emergency Regulatory Action. Available at: www.oal.ca.gov/res/docs/pdf/emergencies/recent%20action,%20moved%20emergencies/2015-0120-03E_Approved.pdf. January 30, 2015. Accessed February 10, 2015.
  2. Metabolic and bariatric surgery fact sheet. Available at: https://asmbs.org/wp/uploads/2014/05/Metabolic+Bariatric-Surgery.pdf. Accessed January 30, 2015.
  3. American College of Surgeons. Statement on surgery using lasers, pulsed light, radiofrequency devices, or other techniques. Bull Am Coll Surg. 2007;92(4):37-38. Available at: www.facs.org/about-acs/statements/11-laser-surgery. Accessed February 6, 2015.
  4. American College of Surgeons. Statement in support of motorcycle laws. February 2001. Available at: www.facs.org/about-acs/statements/35-helmet-laws. Accessed February 23, 2015.
  5. Sorrell AL. Capital decisions ahead. Texas Med. 2015;111(1):26-34. Available at www.texmed.org/Template.aspx?id=32638. Accessed February 23, 2015.

 

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