2017 state legislative year in review and a look toward 2018

While Congress is in a stalemate on federal health care reform legislation, state legislators introduced and enacted numerous pieces of legislation that directly affect the practice of medicine and quality of patient care. The American College of Surgeons (ACS) monitored more than 1,000 bills introduced in 2017 in all 50 states and engaged with policymakers on such issues as scope of practice, trauma, and cancer-related legislation, as well as increasing engagement on Maintenance of Certification (MOC) legislation.

In 2017, ACS surgeon-advocates responded to 15 action alerts, sending nearly 750 messages to state legislators using the Surgery State Legislative Action Center, as well as making phone calls and participating in individual meetings with legislators as part of state chapter lobby days. All of this activity supported the College’s state legislative priorities of ensuring access to safe and quality surgical care.

Scope of practice

This past year included several efforts by nonphysician groups pushing state legislation to expand their scope of practice. Optometry advocacy initiatives, in particular, engaged in a significant scope-of-practice expansion effort, introducing legislation in Alaska, Florida, Georgia, Iowa, Maryland, Nebraska, and North Carolina that would enable optometrists to perform surgical procedures on and around the eye without increasing their level of education or training. ACS chapters in Florida, Georgia, North Carolina, and Maryland, with support from ACS State Affairs, wrote letters opposing the expansion of practice for nonphysicians and engaged state surgeon-advocates to contact their state legislators to oppose passage of the bills.

Although all of the optometry scope-of-practice bills introduced were defeated, optometrists were able to add a provision to a separate bill in Georgia that will allow them to perform injectable procedures. In Pennsylvania, H.B. 706 was introduced to define the procedures that comprise “ophthalmic surgery,” as well as to statutorily state that the practice of optometry does not include ophthalmic surgery. That bill was referred to committee in March but had not received further consideration from the legislature.

ACS chapters also supported efforts of other physician organizations to defeat scope-of-practice legislation and regulations by writing a letter to oppose independent practice for certified registered nurse anesthetists in Alaska, as well as lobbying state legislators during the Metro Chicago and Illinois Chapter Lobby Day to oppose independent practice for advance practice registered nurses in Illinois. The ACS anticipated an increase in the number of bills introduced to expand the scope of practice for nonphysicians in 2018, including a significant effort by national and state physician assistant organizations to gain independent practice through legislative means.

MOC

Contentious debate on MOC arose in 20 state legislatures in 2017 (Alaska, Arizona, California, Florida, Georgia, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, New York, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, and Texas), pitting physicians on different sides of the issue against one another and challenging legislators to decide on public policy that could adversely affect the quality of patient care. Some physicians assert that MOC has proven ineffective or unwieldy. Others recognize that certain aspects of the MOC process can be improved, but that the verification process is integral to ensuring health care professionals have the rare privilege of self-regulation. Those physicians who oppose MOC have called on state legislatures to take action to prohibit the use of MOC for licensure, hospital privileging, reimbursement, and employment. Of the 20 states, Georgia, Maine, Maryland, Tennessee, and Texas succeeded in passing MOC legislation, with several others still considering bills.

In Texas, S.B. 1148 was signed into law June 15. The law prohibits the use of MOC for licensure, reimbursement, employment, and, in some cases, admitting privileges. Maine, Maryland, and Tennessee also enacted laws restricting the use of MOC, but only for the limited purpose of medical licensing. The Tennessee law created a task force to review the overall MOC process and its use by hospitals, insurance companies, and entities that license Tennessee physicians. On October 5, the Tennessee Chapter submitted written testimony to the task force explaining why MOC is important in maintaining the highest standards of patient care and preserving physician self-governance, and the ACS provided written comments reiterating the ability of the medical profession to set professional standards through self-governance.

In May, Georgia enacted a law prohibiting the use of MOC for hospital employment privileging, insurance network membership, reimbursement, and state licensure. The first draft of the bill would have affected all Georgia hospitals. However, in response to ACS concerns, H.B. 165 was amended to affect only state-run hospitals. This change effectively limited the scope of the law to six hospitals.

In Ohio, H.B. 273 is under consideration in the Ohio House Health Committee. The measure proposes to restrict private and publicly run hospitals and health care plans from using MOC to make credentialing and payment decisions. Not only would this bill potentially compromise patient care and interfere with physician self-governance, it could invite scope-of-practice expansion for nonphysician clinicians, given the absence of sustained credentialing and continuing education.

In Florida, H.B. 81 was filed in advance of the 2018 legislative session. The bill would restrict the use of MOC as a condition for licensure, reimbursement, and admitting privileges. H.B. 81 was introduced as a follow-up to Florida S.B. 1354, which died in the House Health and Human Services Committee during the 2017 session. Florida surgeons are strongly encouraged to contact their local chapters or members of the ACS State Affairs team and make sure their voices are heard regarding this important effort to protect physician self-governance.

Another MOC bill that may see some activity in 2018 is California S.B. 487, which prohibits the use of MOC in awarding physicians hospital or clinical privileges. The ACS and other medical organizations opposed S.B. 487 on the grounds that the measure interferes with the right of the profession to set its own professional standards, and the ability of hospital medical staffs to set quality standards for their institutions. While the California legislature adjourned September 15, S.B. 487 is a two-year bill and is expected to be considered by the legislature next year.

The Louisiana Chapter also weighed in on MOC by providing comments at the request of House Committee on Health and Welfare staff. ACS State Affairs staff worked with the chapter to develop these comments.

Injury prevention

With the proliferation of handheld electronic devices in the U.S., distracted driving has become a serious public safety concern. California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Hampshire, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, West Virginia, and the District of Columbia have banned handheld cell phone use by all drivers. Other states have banned cell phone use for minors and school bus drivers. Several states successfully passed distracted driver legislation this year. Arizona, Arkansas, and Rhode Island all passed legislation prohibiting drivers from using handheld wireless communication devices in nonemergency situations. Iowa enacted a law that establishes refutable evidence of reckless driving if a person is using a handheld communication device behind the wheel. North Dakota passed legislation that prohibits any activity other than driving that demands the driver’s eyesight, unless he or she is interfacing with a built-in vehicle accessory. In Tennessee, it is now a Class C misdemeanor to talk on a handheld mobile telephone while driving, and Vermont has banned the use of handheld devices when driving through school or work zones.

In Texas, the state legislature took on distracted driving by making it a misdemeanor for a driver to use a handheld wireless communication device to read, write, or send messages in a moving vehicle. The ACS supported the bill by sending ACS Action Alerts to Texas surgeons to help garner support for the measure. Ultimately, the bill passed and was signed into law June 6.

Distracted driving was not the only highway safety issue to arise in 2017. Nineteen states and the District of Columbia require all motorcycle riders to wear helmets, and this year, several additional states introduced similar motorcycle helmet laws. Bills in Delaware and Connecticut that would have required all riders to wear helmets failed. Alternatively, West Virginia and Nebraska introduced bills allowing riders age 21 and older to operate a motorcycle without a helmet, and Missouri introduced a similar bill exempting riders older than the age of 18. The West Virginia and Missouri bills failed to gain traction and died in committee, but the Nebraska bill warranted more attention. The ACS worked with its partners to oppose the Nebraska bill, and it was defeated through the combined efforts of the ACS and other member organizations.

Nevada S.B. 259, another injury prevention bill, was signed into law June 12. Nevada is the 29th state to require mandatory ignition interlock devices for all first-time drunk driving arrests. The College supported the Nevada Chapter’s efforts to advocate in support of the measure. Deborah Kuhls, MD, FACS, FCCM, Nevada Chapter President, took the lead, providing testimony and working with the ACS State Affairs team to draft letters and establish grassroots support for the bill. Dr. Kuhls’ efforts demonstrate the significant role member activism plays in passing surgeon-backed legislation.

Both Maine and West Virginia introduced bills adopting the Uniform Emergency Volunteer Health Practitioners Act (UEVHPA) during the 2017 regular session. The UEVHPA allows providers to obtain temporary reciprocal practice privileges in a state where they are not licensed during a declared emergency. The West Virginia bill passed both chambers and was signed into law April 18. The Maine bill passed the Committee on Labor, Commerce, Research and Economic Development but was tabled and will be revisited during the 2018 legislative session.

Trauma

The ACS Committee on Trauma and state chapters promoted Stop the Bleed® training events in several state capitals this year. Stop the Bleed is a national campaign to train and empower ordinary people to save lives in the event of a traumatic injury.

The Georgia Society of the American College of Surgeons (GSACS) held Stop the Bleed training in numerous locations in the state capital as part of Georgia Trauma Day. In recognition of the event, the legislature passed special resolutions declaring February 7, as Trauma Awareness Day. Following the training, the GSACS successfully lobbied for $1 million to purchase bleeding control kits to be installed in public schools.

The San Diego, Northern, and Southern California Chapters advocated for a bill requiring the installation of trauma kits in public buildings throughout the state. The bill was promoted by chapter leaders, who offered testimony at a committee hearing during the chapter state lobby day, and sponsored a Stop the Bleed training at the capitol building. The measure passed the Assembly Committee on the Judiciary before being revised by the Assembly Committee on Appropriations. Since the bill did not advance further in the 2017 session, it is now a two-year bill and will be considered in 2018.

In addition to procuring funding for bleeding control kits, the ACS supports legislation that helps fund state trauma systems. This year, Alabama, Mississippi, and Virginia passed measures affecting funding for state-run trauma hospitals. Virginia’s 2016–2018 omnibus spending bill requires the Virginia Department of Health to conduct a study of the commonwealth’s current trauma funding and make recommendations for the future. Though it is unclear at this time what the net impact of the study will be, the Virginia legislature is committed to protecting trauma funding in the state. In Alabama, Gov. Kay Ivey (R) allocated $4 million from an economic development bond to cover costs associated with renovating and expanding the state’s only Level I trauma center. The governor said, “This service is vital to our state’s economic development efforts, as corporations demand this level of care when they look to relocate to our state.”* Finally, Mississippi H.B. 1511 allocated $7 million in fees collected from traffic tickets toward the state’s trauma care system. At the same time, however, the bill reduced trauma funds awarded to the Mississippi State Department of Health from $40 million to $20 million. The net result is an overall reduction in trauma funding from the previous year.

Cancer

There was significant movement on cancer prevention legislation, as the ACS Commission on Cancer (CoC) and ACS chapters supported efforts to permit students to possess and use sunscreen in school. The SUNucate campaign, led by the American Society for Dermatologic Surgery Association and the American Academy of Dermatology, is a coalition committed to enacting state legislation that would allow young students to possess and apply sunscreen products on school grounds or at school functions without a note from a physician. Some school districts have established policies to prohibit the possession and use of sunscreen products by students without a physician’s note because the products are regulated by the U.S. Food and Drug Administration as over-the-counter drugs. SUNucate pushed for the state legislation to establish a statewide policy for sunscreen in schools. In 2017, the legislation was successfully enacted in Alabama, Arizona, Florida, Louisiana, Ohio, Utah, and Washington, while bills are pending in Massachusetts, New Jersey, Pennsylvania, and Rhode Island.

Other skin cancer prevention legislation achieved success this year. Efforts continued in 2017 to enact and strengthen prohibitions for children under the age of 18 from using tanning beds. Oklahoma and West Virginia enacted the tanning bed regulations, and the state legislature in Maine passed a bill that Gov. Paul LePage (R) vetoed. Nine states introduced tanning bed legislation: Arizona, Arkansas, California, Iowa, Kentucky, Mississippi, Montana, New York, and Virginia.

State tobacco regulation saw an uptick in activity in 2017 as well. The Kansas Chapter of the ACS joined an effort to increase the state’s tobacco tax to $1.50 per pack, though the effort had too little support to pass in the legislature. Nearly 100 bills were introduced in 32 states dealing with tobacco tax rates, or aligning taxes on electronic cigarettes and vapor products with traditional tobacco products. Delaware, New York, Oklahoma, and Rhode Island enacted increases in tobacco taxes, while Kansas lowered the tax on vapor products, and Minnesota Gov. Mark Dayton (D) vetoed legislation that would have lowered the tax on premium cigars from $3.50 to $0.50.

The campaign to raise the legal smoking age to 21 gained notable victories this year. Maine, New Jersey, and Oregon joined California and Hawaii in passing age restrictions. Legislation was introduced in 18 other states (Arizona, Connecticut, Florida, Idaho, Illinois, Indiana, Iowa, Maryland, Massachusetts, Mississippi, Nebraska, New Mexico, New York, Tennessee, Texas, Vermont, Washington, and West Virginia) to raise the minimum age to purchase tobacco products. The ACS has been monitoring the progress of the tobacco age-restriction legislation. The enactment of the laws in three states will provide momentum to the effort in 2018.

The ACS engaged in a regulatory issue in Massachusetts, submitting comments to the Massachusetts Board of Registration in Medicine. The board proposed revisions to its regulations governing the practice of medicine, which would have added a provision mandating that physicians treating a cancer patient provide the patient with certain information, including available alternative treatments. In consultation with the CoC, the ACS comments opposed the proposed regulation based on the vague definition of “alternative medicine,” and to deter the government from dictating patient-physician conversations. No final action has been taken on the proposed regulation.

Opioids

The opioid abuse epidemic continued to be a major focus in state legislatures, with all 50 states introducing legislation to address the issue. In 2017, more than 1,000 bills were introduced concerning prescription drug abuse. New Jersey enacted one of the nation’s most stringent laws limiting initial opioid prescriptions to a five-day supply while allowing for a 25-day prescription refill if determined necessary by the prescribing physician. The law requires insurance coverage for addiction treatment and exempts cancer patients from the prescription limits.

Missouri was the last state to implement a prescription drug monitoring program (PDMP). Gov. Eric Greitens (R) signed an executive order to create the PDMP after the state legislature failed to pass legislation to enact a statewide program. The Missouri Department of Health and Senior Services will work with pharmacy benefit managers to analyze data on written and dispensed opioid prescriptions, to identify patterns of abuse. Several cities and counties in Missouri have local PDMP programs that prescribing physicians can use on a voluntary basis.

In addition to state legislative activity, the ACS published a statement on the opioid epidemic.

Out-of-network/surprise billing

Twenty-nine states (Alaska, Arizona, Colorado, Connecticut, Georgia, Hawaii, Illinois, Indiana, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Virginia, and West Virginia) introduced legislation in 2017 to address out-of-network and surprise billing. ACS chapters in Georgia, Nevada, and New Jersey engaged in grassroots advocacy to lobby on legislation that would be harmful to patients and providers.

The Georgia Society joined the state’s medical community to fight against two bills, H.B. 71 and S.B. 8, which would have required physicians to accept the same insurance plans as any hospital where they provide care as a condition of medical staff participation. Additionally, the legislation would have set the maximum payment to the Medicare rate. The Senate passed its bill, but it and the House bill were tabled in that chamber.

The Nevada Chapter participated in a successful campaign to persuade Gov. Brian Sandoval (R) to veto legislation that would have set reimbursement rates for out-of-network providers to 125 percent of Medicare fee-for-service rates or the average rate negotiated by insurers with in-network providers and hospitals.

The New Jersey Chapter also engaged in grassroots advocacy and participated in a statewide Access to Care Coalition to oppose legislation that would cap payments for out-of-network physicians using Medicare reimbursements as a benchmark.‡ The legislation had not received a vote in the legislature as of press time.

Medical liability

The ACS chapters in New York, led by the Brooklyn/Long Island Chapter, engaged in grassroots advocacy efforts to defeat legislative proposals to change the state’s medical liability system in ways that would increase costs and possibly destabilize the state’s liability insurance market. A series of bills were introduced on medical liability, including S. 6800 and A. 8516, which would extend the time available to file a liability claim for negligent failure to diagnose cancer or a malignant tumor. The bills passed the state’s legislature but had not been sent to the governor for final action at press time.

Elsewhere, Iowa enacted comprehensive medical liability reforms that include a $250,000 cap on noneconomic damages with some exceptions, strengthening of expert witness standards, a certificate of merit requirement in all medical liability suits, and an expansion of the state’s policies on communication and resolution.

Get engaged

Uncertainty still looms at both the federal and state levels on the future of health care policy. The debate on the role of the federal government in health care will likely extend into 2018 and state legislatures will undoubtedly continue to introduce legislation that could have an impact on the ability of surgeons to provide quality patient care. Therefore, it is vital that surgeons be involved in the public policy debate.

Engagement is the most important action that ACS Fellows can take to ensure that the surgical profession continues to be a leader in patient safety and quality health care outcomes. There are several ways that Fellows can support ACS advocacy initiatives, including responding to ACS Action Alerts from the College, participating in state chapter meetings and lobby days, building relationships with elected officials, talking about public policy issues with colleagues, and attending the annual ACS Leadership & Advocacy Summit, May 19–22, 2018, in Washington, DC. In addition, state advocacy resources, including issue toolkits, are available on the State Advocacy Resources web page.

The ACS State Affairs team is available to answer questions and provide pertinent information on state issues and policy programs. For more information, e-mail state_affairs@facs.org, or call 202-337-2701.


*USA Medical Center–University of South Alabama Medical Center, Mobile & Gulf Coast, Alabama. News release—USA Medical Center receives $4 million to expand Level 1 trauma services. Available at: www.usahealthsystem.com/usamc. Accessed September 19, 2017.

SUNucate, Protecting the public from skin cancer. Available at: www.sunucate.org. Accessed September 19, 2017.

Access to Care Coalition. Available at: www.accesstocarecoalition.com. Accessed September 19, 2017.

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