Bariatric surgery, liability, and trauma: Key issues debated in state legislatures

The states kicked off their 2015 legislative sessions in early January. All of the states convened sessions this year, and three-quarters of them wrapped up their business by the end of May. Budgets and transportation were the biggest legislative themes for 2015; most states had budget deficits or crumbling transportation infrastructure that needed to be addressed. As a result, little room was left on lawmakers’ agendas for surgery-specific legislation. Nonetheless, the American College of Surgeons (ACS) was able to play a role in numerous legislative victories, defeats, and compromises throughout the U.S. Success at the state level has always been dependent on grassroots advocacy by individual Fellows and ACS chapters, and this was true in 2015 as more chapters hosted legislative lobby days, and Fellows continued to take action through the Surgery State Legislative Action Center (SSLAC)—a grassroots advocacy tool that the College and 13 other national surgical specialty societies share— and SurgeonsVoice Action Alerts. In those instances where it was necessary to take action on more pressing legislation, numerous resources were used. These online resources make it possible for surgeons to contact their state legislators by e-mail with a targeted, pre-drafted message. In 2015, more than 1,700 such messages were sent to state legislators, most focused on liability reform, obesity treatment, and ambulatory surgical center (ASC) taxes.

State legislation is tracked using an online search service provided by Congressional Quarterly called CQ StateTrack to identify and monitor bills on an array of health care and surgery-specific topics. In 2015, more than 2,400 bills were reviewed with approximately 500 actively identified as issues related to surgery. These bills covered a range of issues, including medical liability reform, out-of-network billing, trauma/injury prevention, tanning bed restrictions, the Uniform Emergency Volunteer Health Practitioner Act (UEVHPA), coverage for bariatric surgery, and ASC taxes and regulations.

Coverage for bariatric surgery

Last fall, the ACS State Affairs team began working to have bariatric surgery included as an essential health benefit (EHB) in plans offered through health insurance exchanges authorized by the Affordable Care Act. Currently, 28 states do not require health plans to offer bariatric surgery coverage, and about half of them have their own state-based exchanges. The initial legislative push was on states with their own exchanges, including Arkansas, Colorado, Connecticut, Kentucky, Minnesota, Oregon, Utah, and Washington, as well as the District of Columbia.

The College submitted letters to state policymakers inquiring about the lack of coverage and the rationale for not including coverage for bariatric surgery. The letters also extended an offer to help make bariatric surgery a covered service, either through legislative action or through the selection process for the EHB plan. These letters were sent to a diverse group of leaders in each state, including the governor, director of the state exchange, insurance commissioner, speaker of the House, president of the Senate, and leadership in the Republican and Democratic parties.

Four states—Arkansas, California, Louisiana, and Mississippi—considered bills requiring coverage for obesity treatment services, including bariatric surgery. The Arkansas bill would have covered only state/public employees; this bill, along with the Mississippi and California bills, died in committee.

In Louisiana a bill, S.B. 173, was introduced that would have expanded access to bariatric surgery. Although it passed in the Senate, it failed to advance out of the Louisiana House Committee on Insurance. The bill, introduced by Sen. David Heitmeier, OD (D), would have required group health plans to cover bariatric surgery, physician office visits, health and behavior assessments, nutrition education, patient self-management education training, and therapeutic exercises. The Louisiana Chapter of the ACS played an important role in getting the bill introduced and intends to work with the legislature to advance S.B. 173 in 2016.

Efforts to gain coverage for bariatric surgery will remain an ongoing activity over the next few years. States are gearing up to select the next essential health benefit plan, which creates an opportunity to influence the outcome.

Emergency volunteers

The UEVHPA, created by the Uniform Law Commission, a nonpartisan commission of lawyers established in 1892 and endorsed by the College in 2009, permits licensed physicians and other professionals to enter a state and practice their profession without medical board clearance in the event of a declared emergency. To date, 14 states and the District of Columbia have enacted the UEVHPA.

In 2014, the focus of the UEVHPA centered largely on southeastern states because they are most likely to experience the brunt of severe hurricanes. Initial conversations on the introduction of the model bill were held with chapter leaders/executive directors and commissioners of the Uniform Law Commission (some of whom are state legislators) in Alabama, Florida, Georgia, Mississippi, North Carolina, and South Carolina. Alabama and North Carolina have statutes that policymakers within those states believe provide similar protections as the UEVHPA, so they were removed from the list, leaving Florida, Georgia, Mississippi, and South Carolina as targets for 2015. In addition, Pennsylvania considered a bill in 2014 that remained active for 2015.

In Florida, political drama and strategic concerns derailed UEVHPA efforts for 2015. In 2016, an emphasis on how the UEVHPA will serve as an important component of disaster preparedness within the Florida emergency management program will be used to help to get the bill introduced.

The Georgia bill was introduced near the end of the legislative session and will serve as placeholder legislation for the 2016 legislative session. The Georgia Society of the ACS made this development possible and is working to facilitate passage next year.

The UEVHPA was introduced in Mississippi, and Hugh A. Gamble II, MD, FACS, a former ACS Governor, championed the bill. Similar to Alabama and North Carolina, some officials expressed their belief that Mississippi already has a process in place similar to the one in UEVHPA. The bill stalled as a result.

At press time, it was unclear whether the UEVHPA in Pennsylvania would make it out of the Senate Veterans Affairs Committee, where it sat for months as part of a larger emergency medical services/disaster preparedness bill; there was hope the entire bill would pass earlier in the session.

Delays in identifying a surgeon champion in South Carolina slowed efforts to introduce the UEVHPA and provided an opportunity for further investigation into the need for this legislation.

Liability reform

Indiana surgeons played a key role in ensuring the defeat of two legislative attempts to weaken the state’s medical liability system in 2015. The Senate voted down S.B. 55, which would have increased the threshold for filing a liability claim against a physician without first going through the state’s medical review panel. The bill would have raised the threshold for direct filing to $50,000 from $15,000. In the House, H.B. 1043 stalled in the Judiciary Committee. That bill would have increased the caps on medical liability claims. More specifically, the bill would have raised the cap on total damage awards to $1.65 million from $1.25 million and would have increased the maximum potential liability of a qualified health care provider for an occurrence of liability to $400,000 from $250,000 or $300,000 in some circumstances. Surgeons used the annual Indiana Chapter Day at the Capitol to discuss the bill with lawmakers, in addition to responding to Action Alerts issued by the ACS.

Illinois surgeons helped stop legislation, S.B. 1700, that would have removed protections provided to physicians and hospitals under the Medical Studies Act. Current protections are in place to exclude peer review, research, and medical studies from use as evidence in medical liability cases. S.B. 1700 would have severely diminished the ability of health care providers to share information, effectively shutting down the peer review process. Illinois courts have consistently recognized the importance of the Medical Studies Act in maintaining the peer review committee process and have ruled that they should not be made available to plaintiff attorneys. S.B. 1700 stalled in the Senate Judiciary Committee after more than 70 surgeons contacted their senators to voice opposition to the bill.

Missouri Gov. Jay Nixon (D) signed S.B. 239, legislation that reinstates limits on noneconomic damages in medical liability cases and creates a statutory cause of action for damages against health care providers. It also reinstates caps of $400,000 for personal injury cases and $700,000 for catastrophic personal injury or wrongful death lawsuits. The limits will increase by 1.7 percent each year.

Toward the end of the session, legislation (A. 285) passed out of the New York Assembly that would have quadrupled the statute of limitations for medical, dental, or podiatric liability to include a discovery of injury rule. This provision would have allowed the current 2.5 year statute of limitations to run from the date a patient discovers (or should have discovered) an injury was caused by malpractice. The effects of this expansion would have had significant financial implications for New York Fellows. A. 285 and similar legislation failed to advance in the Senate, after more than 100 Fellows answered the call to action and sent letters of opposition to their state legislators, ensuring the defeat of this legislation.

The Florida 4th District Court of Appeals on July 6 ruled that a 2003 law that caps noneconomic damages for pain and suffering in personal injury cases is unconstitutional. Florida’s Supreme Court ruled last year that caps on noneconomic damages for wrongful death cases were unconstitutional, and the appeals court cited this ruling in its 14-page decision. The court ruled that “caps are unconstitutional not only in wrongful death actions, but also in personal injury suits as they violate equal protection.” In the case resulting in the judgments, a jury originally awarded the plaintiff $4.7 million, of which $4 million was in noneconomic damages. After a circuit judge applied the caps from the 2003 law, the noneconomic damages were reduced by $2 million. The appeals court ordered the trial court to reinstate the total amount of the damages, although they may still be limited under the doctrine of sovereign immunity.

Out-of-network providers

Early this year, the California Insurance Commissioner issued emergency regulations to increase patient access to provider networks. Insurers have considerably narrowed their provider networks and offered insurance products with no out-of-network benefits.* These emergency regulations require plans to do the following:

  • Ensure an adequate number of primary care physicians are available to accept new patients to accommodate enrollment growth
  • Ensure an adequate number of primary care providers and specialists have admitting and practice privileges at network hospitals
  • Account for the frequency and type of treatment needed to provide mental health and substance abuse care
  • 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 and make them available both to policyholders and the public, so that individuals who are shopping for health insurance have access to this information as well
  • Make arrangements to provide out-of-network care at in-network prices when too few in-network care providers are available
  • Inform patients that an out-of-network medical provider will participate in the non-emergency procedure or care, before the care is provided, so that the patient can decline the participation of the out-of-network provider if they choose

New Jersey legislators sought a compromise to legislation (S.B. 20/A. 4444) intended to reform various aspects of the state’s health care delivery system by increasing transparency in pricing for services by limiting billing for out-of-network costs.

The current legislation is stalled in committee until a version is developed that is acceptable to legislative leadership, Gov. Chris Christie (R), and key health care stakeholders. The New Jersey Chapter of the ACS and the ACS State Affairs team are actively monitoring this legislation and will provide updates via action alerts if there is any movement.

Cancer

An Ohio law that took effect March 23 restricts the use of tanning beds by minors. More specifically, H.B. 131 requires parental consent for youth ages 18 and younger to use tanning beds; for individuals younger than 16 years old, a parent must be present.

New Hampshire Gov. Maggie Hassan (D) signed legislation, H.B. 136, on June 2 that prohibits individuals ages 18 and younger from using tanning facilities. However, the new law allows health care professionals to approve their use for medical reasons. Until passage of this law, state law banned individuals younger than 14 years old from using a tanning bed without physician approval, and parental permission was required for teenagers younger than age 18. The law took effect August 2. A total of 12 states and the District of Columbia now ban the use of tanning beds by individuals younger than 18 years old.

Effective June 1, Michigan began mandating mammography service providers to notify patients when their mammograms demonstrate the existence of dense breast tissue. The law defines “dense breast tissue” as “heterogeneously or extremely dense breast tissue as defined in nationally recognized guidelines or systems for breast imaging reporting of mammography screening including, but not limited to, the breast imaging reporting and data system established by the American College of Radiology.” The law also allows the Department of Community Health to update the definition, if necessary.

Trauma

S.B. 93 in Texas, legislation that would have curtailed the state’s Driver Responsibility Program, stalled during this year’s legislative session. S.B. 93 passed in the Senate; however, the House failed to act on the bill before the session ended. The Driver Responsibility Program provides funding for the state trauma system by imposing surcharges on drivers who receive traffic violations. The legislation would have removed the provision that suspends drivers’ licenses for individuals who fail to pay the fine, which would have led to a significant decrease in funding for trauma care in the state. The ACS opposed the bill and will continue working to avert efforts to cut trauma funding in Texas when the legislature reconvenes in 2017.

H.B. 261 was introduced in the Ohio House of Representatives. This bill would create an Ohio Trauma Board and make changes to the state’s trauma system. The board, which would be administered by the Ohio Department of Health, would comprise 19 members appointed by the Governor, Speaker of the House, and Senate President. The board would be responsible for operating the state trauma registry, seeking and distributing grants, and developing a statewide system for improving the quality of trauma care and rehabilitation.

The legislation also would add new designation standards, such as participation in statewide and regional injury prevention activities and submission of more timely data to the registry. In addition, the bill would require the Ohio Department of Health to hire an executive director and chief medical director. At press time, H.B. 261 was awaiting action in the Health and Aging Committee. The Ohio Chapter of the ACS and the Ohio Committee on Trauma are advocating for passage of this bill.

Motorcycle helmet laws

Numerous states introduced legislation to repeal, change, or institute a universal motorcycle helmet law. Following is a roundup of the bills, all of which failed in their respective statehouses.

  • Iowa: H.F. 267 would have required persons operating a motorcycle and their passengers to wear helmets.
  • Nebraska: L.B. 31 would have repealed the state’s mandatory helmet law.
  • New Mexico: S.B. 327 would have mandated the use of helmets while operating a motorcycle for everyone; S.B. 308 would have created a validation sticker to exempt motorcycle operators and their passengers who are older than 18 years of age from wearing a helmet.
  • Washington: S.B. 5198 would have removed the mandatory helmet requirement for individuals older than 18 years of age.
  • West Virginia: S.B. 356 would have exempted individuals from wearing a helmet who are both older than age 21 and have a health insurance plan with at least $10,000 in medical benefits for injuries incurred as a result of an accident while operating a motorcycle.
  • Tennessee: H.B. 700/S.B. 925, bills to repeal Tennessee’s universal helmet law, would have exempted motorcycle operators and passengers older than 21 years of age from the requirement to wear a helmet if they have health insurance coverage through a carrier other than TennCare and would have changed a violation of the helmet law into a secondary offense.

Scope of practice

The Arkansas Senate Committee on Public Health, Welfare and Labor in February voted down S.B. 78, legislation that would have removed the physician supervision requirement for certified registered nurse anesthetists and permitted them to practice independently. The ACS and other physician groups in the state opposed the bill.

California surgeons helped to successfully block S.B. 622, a bill that would have allowed optometrists to significantly expand their scope of practice. More specifically, the legislation would have authorized optometrists to perform scalpel and laser eye operations, administer immunizations, and perform or order laboratory and diagnostic imaging tests, all with minimal training. California surgeons and the California Medical Association argued that this legislation would place patients at risk of significant harm because optometrists lack the education, training, and experience to safely provide these types of services. The College and ACS California Chapters sent nearly 900 opposition letters to lawmakers via the SSLAC.

Medical licensure, ASCs, and cosmetic surgery

The Federation of State Medical Boards developed the Interstate Medical Licensure Compact in response to concerns regarding the long wait times for physicians to attain medical licenses in states outside of their primary practice location, along with increased demand for physician services due to the Affordable Care Act and interest in the expansion of telemedicine services. In 2015, a total of 11 states enacted legislation ensuring the compact would be created, making it easier for physicians to obtain licenses to practice in multiple states.

To be eligible for expedited licensure, physicians must fulfill the following requirements:

  • Possess a full and unrestricted license to practice medicine in a compact state
  • Possess specialty certification or be in possession of a time-unlimited specialty certificate
  • Have no disciplinary actions related to controlled substances
  • Have no disciplinary actions on any state medical license
  • Must not be under investigation by any licensing or law enforcement agency
  • Have passed the U.S. Medical Licensing Examination or Comprehensive Osteopathic Medical Licensing Examination within three attempts
  • Have successfully completed a graduate medical education program

Physicians who are ineligible for the expedited licensure process could still seek licenses in those states where they want to practice using traditional licensure processes. The federation has created a website for physicians seeking further information about the compact.

Connecticut legislators passed a budget in early June that included a 6 percent tax on the gross receipts of ASCs. However, when lawmakers reconvened for a special session June 30, they amended the tax. The new version of the bill excludes the first $1 million in gross receipts from taxation, as well as any ASC revenue that is subject to the state’s hospital tax. The ACS Connecticut Chapter engaged more than 90 Fellows to take action against this legislation using the SSLAC.

The ACS joined a coalition of 12 other physician associations to oppose a proposed section of the Maine state budget that would have established a tax on all cosmetic surgery. The coalition argued this plan would have made it extremely difficult to establish a legislative difference between elective and medically necessary cosmetic surgery, thereby creating a discriminatory health policy. The tax was removed from the final budget.

Looking ahead

Chapters and surgeons can expect interesting legislative sessions next year. With 2016 being an election year, many legislators will try to advance bills that will make them more electable and not create much in the way of controversy. At times like this, public health issues can gain prominence, as can legislation to help key health care constituencies.

One issue likely to gain prominence is the recording of operations. Wisconsin’s legislature considered a bill in 2015 that would have required the option of recording a procedure if the patient requested it, including covering exits/entrances to the operating room to date and time stamp when staff entered or left the room. The health care community objected to the bill because it provided no legal protections from discovery in medical liability claims.

Out-of-network legislation designed to restrict balance billing and unanticipated billing will become more common. While California and New Jersey considered bills in 2015 to address some of the related concerns, activity in this area will likely increase as insurers continue to narrow their networks. The National Association of Insurance Commissioners will be releasing an updated version of a model act dealing with health benefit plan network access and adequacy, which also is likely to generate some buzz in state legislatures.

How can surgeons engage in the state legislative process in 2016? Following are some suggestions:

  • There is no time like the present for Fellows to begin developing relationships with their legislators. A relatively quiet session can be the best time for these meetings to occur because the focus is shifted from advocacy to relationship building. The ins and outs of grassroots advocacy are found in the ACS guide “Surgeons as Advocates: A SurgeonsVoice Handbook for Advocacy.”
  • Participate in a state chapter lobby day. In 2016, 18 states will host lobby days, including Alabama, Alaska, California (Northern, Southern, and San Diego), Connecticut, Florida, Georgia, Indiana, Kansas, Louisiana, Metro Chicago, New York (Brooklyn-Long Island and New York Chapter), Ohio, Oregon, Pennsylvania (Metro Philadelphia, Keystone, and Southwest), Tennessee, Texas (North and South), Virginia, and Wisconsin.
  • Become a State Councilor in the SurgeonsVoice program. State Councilors are the boots-on-the-ground grassroots activists for the entire program. State Councilors monitor current bills in their state legislatures, inform the College of current issues, and act as key contacts for their state (see Figure 1).
  • Send letters to state legislators through the SSLAC. Action Alerts will let Fellows know when letters are needed as part of a grassroots initiative. Action Alerts are e-mailed to Fellows and posted to SurgeonsVoice, Facebook, and Twitter (see Figure 2). Follow the College on Facebook and Twitter to stay current on what is going on in legislatures around the country.
  • Attend the ACS 2016 Leadership & Advocacy Summit April 9–12 at the JW Marriott in Washington, DC. The annual summit 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.

Figure 1. Sample bill tracking report

Figure 1. Sample bill tracking report

Figure 2. Sample call-to-action tweet

Figure 2. Sample call-to-action tweet

The State Affairs Staff is available to provide expert guidance on all matters related to state legislative issues, activities, and initiatives. Fellows interested in getting involved can contact the state team at state_affairs@facs.org.

Acknowledgement

Tara Leystra Ackerman, State Affairs Associate, ACS Division of Advocacy and Health Policy, contributed to this article.


*California Department of Insurance. Commissioner Dave Jones issues emergency regulation at his inauguration requiring health insurers to have sufficient medical providers to provide patients timely access to care [news release]. January 5, 2015. Available at: www.insurance.ca.gov/0400-news/0100-press-releases/2015/release001-15.cfm. Accessed October 21, 2015.

Interstate Medical Licensure Compact, Legislative Status website. Available at: www.licenseportability.org/. Accessed October 21, 2015.

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