2016 state legislative year in review and a look ahead

Health care-related issues received significant attention in state legislatures in 2016. Opioid abuse was a particularly hot topic, with hundreds of pieces of legislation related to this issue introduced across the country. In addition, states continued to grapple with the effects of the Affordable Care Act and the new insurance marketplace, including heightened concern regarding narrow insurance networks and surprise billings for patients who receive care from out-of-network providers. A number of other issues that affect surgery were addressed in state legislatures as well, including trauma system development and funding, injury prevention, cancer prevention and treatment, scope of practice, and medical liability. This article summarizes these issues and provides insight into the issues that state legislatures will likely address in 2017.

Opioid abuse

The opioid abuse epidemic, which affects communities across the U.S, continues to escalate. According to the U.S. Drug Enforcement Agency, drug overdose is now the leading cause of injury death in the U.S., ahead of motor vehicle- and firearm-related deaths. More than half of drug-related deaths are linked to opioids—both prescription pain killers and heroin.1 So far, the main policy solutions adopted by the states include increasing access to naloxone; providing Good Samaritan protection to individuals who call in overdoses; creating prescription drug monitoring programs (PDMPs) that allow and, in many cases, require prescribing physicians and pharmacists to check the PDMP when initially writing/dispensing a prescription for opioids and other scheduled drugs, and at regular intervals thereafter; and requiring physicians to become better educated about opioid prescribing.

In 2016, states began limiting the length of opioid prescriptions. Connecticut, Maine, Massachusetts, New York, and Rhode Island passed laws limiting initial prescriptions to seven days. Vermont passed a law that requires the state health department to set an opioid prescribing limit through the regulatory process in consultation with the Vermont Medical Society. These state laws closely follow recommendations from the Centers for Disease Control and Prevention, which, in March, released voluntary guidelines suggesting that initial prescriptions for acute pain be limited to three days and stating that there does not appear to be any need to prescribe opioids for more than seven days.2

PDMPs are being used to track opioid prescriptions in some manner in all states except for Missouri (legislation attempting to create one in that state failed this year). More than 30 states require prescribers to check the PDMP if certain conditions are met, although these conditions vary by state. State policymakers continue to work on the functionality of these programs, with at least 29 states passing PDMP-related legislation this year. For example, according to the National Conference of State Legislatures, Alaska, California, Maryland, Massachusetts, Minnesota, Mississippi, New Hampshire, Utah, Vermont, Virginia, and Wisconsin passed laws initiating or changing requirements for when prescribing providers or pharmacists should check the PDMP. Although  some health care providers may believe these requirements are onerous, these mandates have proven useful both in lowering the amount of opioids being prescribed and in identifying individuals who are addicted or are at risk of addiction.3

With no sign of the opioid epidemic abating, the American College of Surgeons (ACS) anticipates states will continue to pass legislation on opioid abuse issue in 2017, including continuing medical education-related policy, PDMP use, and policy regarding opioid medication prescription restrictions.

Health insurance networks

State legislative activity around narrow insurance networks and surprise billing increased in 2016. As reported in the July issue of the Bulletin in the article “Health care networks: Surprise billings for surgical patients,” increased attention has been given to the development of narrow networks, high-deductible plans, and surprise billings.4 State legislatures have been particularly concerned about out-of-network physicians and the impact of balanced billing on patients. To address this concern, states passed laws this year to improve transparency, cost estimates, and patient disclosures.4

Georgia adopted S.B. 302, and Minnesota passed H.F. 3142—bills that require carriers to pay in-network rates when their provider directory is inaccurate. Florida passed legislation, H.B. 221, which requires hospitals to post contracted carrier information on their websites, and to notify patients that they may receive services from practitioners who bill separately and are out-of-network providers. Florida also passed H.B. 1175, which requires health care facility websites to include an estimated average of payments received from all private payors for specific bundles of services. S.B. 425 went into effect in Texas, which requires freestanding emergency care facilities to prominently display information stating that the facility and/or physicians providing care at the facility may not be in the patient’s network, and patients could receive bills from physicians separate from the facility.

Some states are capping or limiting charges for out-of-network care. California Gov. Jerry Brown (D) signed A.B. 72 in September, limiting out-of-network payments to providers at in-network hospitals at 125 percent of Medicare or the average contracted rate determined by health insurance data adjusted to the specific geographic region, whichever is greater. California also adopted A.B. 1305 earlier in the session. This bill applies annual out-of-pocket caps on covered benefits inclusive of out-of-network emergency care received up to the point of patient stabilization. In Florida, H.B. 221 will require carriers to cover emergency care delivered at in-network hospitals for in-network rates and to cover nonemergency care at in-network rates when the facility is in-network and the beneficiary could not or was unable to choose a participating provider at the facility. This same law established a process for resolving billing disputes between carriers and providers, which includes time limits for responding to a settlement offer before it automatically goes into effect. Texas also lowered the amount at which a beneficiary can request mediation of a settlement from $1,000 to $500.

Balance billing, surprise billing, and increasingly narrow networks will likely continue to be a problem for patients, and the ACS anticipates that more state legislatures will address these issues in 2017.

Trauma and injury prevention

The ACS reviewed nearly 150 state bills aimed at changing injury prevention statutes in the last year, although less than a third were signed into law. These bills addressed issues ranging from motorcycle helmet requirements, to youth concussion prevention, to all-terrain vehicle use.

One issue that receives attention from state legislatures annually is youth concussion prevention. Most states already have passed some iteration of mandated guidance regarding how public schools should treat a student athlete who may be suffering from a concussion, but these laws often do not touch on private schools or non-school-related sporting events. Notably, some states are now expanding youth concussion prevention protocols to include other venues. Delaware, Hawaii, Illinois, and New Mexico all acted on this issue in 2016.

Another hot topic in recent years is universal helmet mandates. Only 19 states have a universal motorcycle helmet mandate, and Georgia, Louisiana, Mississippi, Nebraska, New York, Tennessee, and West Virginia all saw legislative attempts to repeal these laws. In Tennessee, the bill was heard by committees in both the House and Senate but failed to advance to the floor of each chamber for full legislative consideration. Both the ACS and the Tennessee Chapter actively opposed the legislation. None of the other bills received any votes, but efforts to repeal the remaining universal helmet laws will surely return in these states in 2017.

States still are working to make their roads safer by eliminating distracted driving practices. Most states, with the exception of Arizona, Missouri, Montana, and Texas, ban texting by all drivers. In Texas, drivers younger than age 18 are banned from texting while driving. Furthermore, 14 states ban handheld cell phone use, and 38 states ban cell phone use by young drivers. Unfortunately, these efforts have done little to lessen the occurrence of distracted driving, and state level policymakers continue to grapple with this issue. Policymakers in 14 states (California, Florida, Indiana, Kansas, Massachusetts, Michigan, Missouri, New Mexico, Ohio, Oklahoma, South Carolina, Vermont, Washington, and Wisconsin) worked on legislative efforts in 2016 to toughen or implement distracted driving laws. California’s bill, A.B. 1785, was the only one to advance out of the legislature. Signed into law in late September, this bill updates the state’s distracted driving law to ban drivers from holding their phones in their hands; phones must instead be mounted to the dashboard.

Alabama, Kansas, and Louisiana all considered legislation to raise the fines for not wearing a seat belt in 2016; Louisiana was the only state to adopt it. In addition, Maryland, Missouri, New York, and Vermont all had legislation introduced to change not wearing a seat belt from a secondary offense to a primary one, but none of the bills advanced.

Trauma system development and funding is another active area in state legislatures. This year, Ohio is considering legislation to institute significant updates to its trauma system. Ohio is one state with a full-year state legislature, and at press time, H.B. 261 had not advanced. The Ohio Chapter of the ACS has played an active role in this trauma system update effort. As for funding, in states that are having budget issues, such as Alaska and New Mexico, funding for trauma systems is being reduced or eliminated altogether. In 2017, the ACS expects to see significant funding efforts in Kentucky and Montana, and a significant effort to stop the repeal of the Driver Responsibility Program in Texas, which provides funding for its trauma and emergency medical service system.

Cancer

The ACS monitors state legislation related to cancer prevention, including tanning bed regulation, access to and coverage of appropriate screenings, changes to the legal smoking age, tobacco tax increases, and e-cigarette regulation. In addition, the College monitors access issues, specifically access disparities for oral and intravenous chemotherapies.

In 2016, Arizona, Florida, Iowa, Kansas, Kentucky, Massachusetts, Mississippi, Oklahoma, South Dakota, Virginia, and Wisconsin all considered banning individuals younger than the age of 18 from using a tanning device, although Kansas and Massachusetts were the only states to pass legislation. The Kansas Chapter, led by Chapter President Joshua Mammen, MD, FACS, was integral to building the support necessary to get the bill passed.

Alaska and Pennsylvania joined 40 other states in enacting provisions ensuring equal access to oral and intravenous chemotherapies. Similar bills were considered in Alabama and North Carolina. Alabama, Arkansas, Idaho, Montana, North Carolina, and South Carolina are the only states that have yet to adopt this provision.

Bills were introduced in California, Kentucky, Mississippi, and New York to improve access to and coverage of colorectal cancer screenings. A.B. 1763 in California passed both the Assembly and Senate, but Governor Brown vetoed it at the end of session.

In early 2016, California became the second state to restrict the sale of tobacco products to individuals ages 21 and older. New Jersey still is considering legislation that would raise the legal age for purchasing tobacco products to 21, even though Gov. Chris Christie (R) vetoed similar legislation in January.

Scope of practice

One of the areas of significant state legislative action every year impacting health care is nonphysician scope of practice. Hundreds of bills are introduced in state legislatures annually that attempt to change (usually increase) the scope of practice of various health care professionals. The ACS takes an active interest in a segment of these bills, mainly focusing on optometric scope expansion, nurse anesthetists’ scope expansion, and efforts to expand the use of lasers and other surgical devices into nonmedical fields.

This year, the ACS actively opposed efforts in California and Illinois to expand the scope of practice of optometry. In California, S.B. 622 would have allowed optometrists to perform scalpel eye lid surgery, injections, and laser surgery with insufficient education and training. The ACS wrote to committee leadership and activated its grassroots action center to oppose this bill. In Illinois, S. 2899 would have allowed optometrists to perform certain surgical procedures and administer injectable medications. The ACS worked with the state medical society and other specialty societies to oppose this bill. The other scope of practice bill the ACS worked actively to oppose was H.B. 548 in Ohio. This bill would have allowed certified registered nurse anesthetists to issue and administer medications both before and after operations. It would also allow them to delegate certain tasks to other providers without consulting a physician. The ACS worked with the Ohio Chapter to oppose this effort as well.

Scope of practice battles are not going away in the foreseeable future, and the ACS expects similar battles in California and Illinois on optometric scope of practice expansion next year, and most likely in many other states.

Videotaping of surgery

In the last two years, Wisconsin and Indiana lawmakers have sought to mandate that surgeons provide their patients with the option of having their operations video-recorded and for these recordings to be discoverable in medical liability lawsuits. In Wisconsin, a bill would have mandated that patients have the option of having all operative and dental procedures performed under general anesthesia to be recorded in color. This bill, A.B. 255, would require that each entrance to the room be covered so that all incoming and departing staff are date and time stamped. Additionally it would require that all setup and preparatory time be recorded. All patients undergoing nonemergency procedures would be offered this option. Health care facilities would be responsible for installing and maintaining the recording devices and for providing one copy of the recording to the patient and for maintaining one in the patient’s medical record.

Audio-visual technology can be harnessed in productive and professional ways to improve the quality of surgical care delivered to patients. Highly specific and professional review of technical surgical skills leads to improved individual technical performance and is under scientific study for use in coaching programs, much in the same way professional athletes use video review to improve their performance. Video also is used to evaluate team-based communication and to improve team skills in high-stress settings, such as trauma and code situations, both within and outside of the operating room. However, introducing the potential of legal discovery and punishment may hinder these activities in health care. Because of these potential negative side effects, the ACS will study video recording further, as these bills are likely to resurface in Indiana and Wisconsin, as well as other states.

Getting involved

Many important legislative efforts that affect surgical care are debated in the state legislatures every year. Fellows can have a real impact on the legislation lawmakers consider, as well as on the outcome of many of these efforts. The College strongly encourages Fellows to get involved in ACS chapter legislative advocacy efforts and to work directly with the State Affairs staff in the ACS Division of Advocacy and Health Policy to support quality patient care-related legislative priorities. For more information, e-mail State_Affairs@facs.org, or call at 202-672-1522.

References

  1. Jones S. 46,471: Drug overdoses killed more Americans than car crashes or guns. CNSNews.com. Available at: cnsnews.com/news/article/susan-jones/dea-drug-overdoses-kill-more-americans-car-crashes-or-firearms. Accessed November 1, 2016.
  2. U.S. Department of Health and Human Services. Centers for Disease Control and Prevention. CDC Guideline for Prescribing Opioids for Chronic Pain. Available at: cdc.gov/drugoverdose/prescribing/guideline.html. Accessed October 27, 2016.
  3. U.S. Department of Health and Human Services. Centers for Disease Control and Prevention. Prescription Drug Monitoring Programs. Available at: cdc.gov/drugoverdose/pdmp/index.html. Accessed October 27, 2016.
  4. Sutton JH. Health care networks: Surprise billings for surgical patients. Bull Am Coll Surg. 2016; 101 (7):19-23. Available at: bulletin.facs.org/2016/07/health-care-networks/. Accessed November 1, 2016.

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