2017 state legislative update: Lawmakers engage on MOC, trauma funding, and other issues

The 2018 state legislative sessions started off with a flurry of health care-related legislation introduced across the country. Bills affecting trauma funding, injury prevention, out-of-network billing, the Uniform Emergency Volunteer Health Practitioners Act (UEVHPA), and Maintenance of Certification (MOC) started working their way through state capitols as early as December 2017.

By February, less than halfway through the legislative session, State Affairs staff in the American College of Surgeons (ACS) Division of Advocacy and Health Policy sent out Action Alerts to more than 5,800 Fellows, tracked more than 6,000 health care-related bills, submitted comment letters in nearly a dozen states, and participated in six chapter lobby day events. State Affairs staff members will continue to work diligently with ACS state chapters to stay engaged and support legislation that promotes high-quality surgical care.

Trauma

Public bleeding control kits

At press time, the Massachusetts legislature was currently considering introducing a bill based on the College’s model bill for the installation of bleeding control kits in public buildings and spaces. The Massachusetts Chapter has engaged with the sponsor, Rep. Shawn Dooley (R), to support introduction and passage of the bill.

In December 2017, a similar bill, H.B. 1263, was introduced in Missouri, which would initiate a study to provide a recommendation on whether to install bleeding control kits in public. California legislation, A.B. 238, formerly an unrelated bill which was originally introduced in January of 2017, was completely amended to include language pertaining to public bleeding control kits, similar to provisions in other 2017 legislation, A.B. 909. A bill in South Carolina, H. 5003, would require the installation of bleeding control kits in all public schools, as well as require training of employees to use the kits.

Stop the Bleed®

A state resolution declaring February 14 “Georgia Stop the Bleed Day” was introduced to coincide with the Georgia Society of the ACS lobby day. Other Stop the Bleed resolutions were introduced in Wisconsin, declaring March 31 as Wisconsin Trauma Awareness Day, and in Utah, declaring March 31 as Stop the Bleed Education Day.

The College received a record number of applications for its 2018 State Lobby Day Grant Program. Several of the applicants for the grants have included a bleeding control program at their lobby day. ACS Chapters in Washington (January 10), Kansas (January 24), Florida (January 30), Georgia (February 14), Arkansas (February 28), Oregon (March 5), and Louisiana (March 21) conducted Stop the Bleed training sessions in their respective state capitols during their 2018 lobby days. Stop the Bleed training not only helps to expand the number of people able to respond to a traumatic bleeding injury, but also builds goodwill with legislators, helping them to be more receptive to discussing other important surgical- and patient-care issues.

Other states receiving the lobby day grants in 2018 include: Alabama, Arizona, California, Illinois, Indiana, Massachusetts, Michigan, Nebraska, New York, North Carolina, Ohio, Tennessee, Texas, Virginia, and Wisconsin.

Trauma funding

The Virginia Chapter sent letters in support of bills that would increase and protect funding of the commonwealth’s trauma system. Virginia H.B. 1513, which was introduced in January, would require individuals convicted of a violent felony to pay a $50 fine to the Trauma Center Fund. The fine already applies to individuals convicted of certain vehicle violations, such as speeding and impaired driving. A proposed amendment to Virginia’s 2018 budget bill, H.B. 30, would delete language authorizing the transfer of more than $8 million out of the Trauma Center Fund and into the state’s general fund.

Preliminary discussions have taken place in Delaware to have the state or a coalition of trauma centers hire a third-party consultant to evaluate the state’s ability to establish a funding source of public money for the state’s trauma system. Although there is interest in the study, sources of funding have yet to be identified.

Injury prevention

In New Hampshire, Committee on Trauma (COT) State Chair Lisa Patterson, MD, FACS, testified on January 11 before the House Transportation Committee in support of H.B. 1259, which would have required all New Hampshire drivers to wear seat belts. The bill, which was introduced in November 2017, ultimately failed to pass out of committee and died in March. New Hampshire is the only state in the U.S. to not have any type of legal requirement to wear a seat belt.

On January 10, the Nebraska Senate rejected legislation L.B. 368, which would have repealed the state’s universal motorcycle helmet law. Nebraska is a unicameral state with only one legislative chamber. The bill was carried over from the 2017 session, where it had previously failed to receive the necessary support for passage. The Nebraska Chapter engaged members to contact their senators on the bill, which helped to influence its defeat. It is expected that the legislation will not be recalled again this year.

In Connecticut, an effort is under way to build a coalition of medical and other organizations to revitalize legislation to enact a universal helmet law in the state. The Connecticut Chapter and COT are pushing forward to build support for the coalition. A universal helmet bill was tabled at a hearing in the legislature during the 2017 session.

UEVHPA

On March 6, the Washington State Senate approved S.B. 5990 to adopt the model legislation for UEVHPA. The legislation passed out of the legislature and was signed by the governor March 22. A similar UEVHPA bill in Maine was carried over from the 2017 legislative year, but at press time had not yet been called for a hearing or vote.

MOC

MOC continues to be a contentious issue in 2018, sparking conflicting opinions among physician organizations. Opponents of MOC have asked state legislatures to step in to prohibit the use of MOC in licensure, reimbursement, and privileging decisions, therefore interfering with professional self-regulation, private contracting rights, and hospital medical staffing decisions. These critics have succeeded in getting anti-MOC legislation introduced in 16 states so far. Of those, the following 10 are still considering bills: Massachusetts, Missouri, New Hampshire, New Jersey, New York, Ohio, Rhode Island, South Carolina, Tennessee, and Wisconsin.

Surgeon advocates have responded to this issue by writing letters, testifying at hearings, and meeting with their elected officials to oppose anti-MOC bills. In Indiana, Oklahoma, South Carolina, Tennessee, Utah, and Virginia, the College worked with chapters to draft letters urging elected officials to oppose bills that restrict the use of MOC. In Indiana and Florida, chapter leaders scheduled visits to the statehouse to meet with their legislators, and in Indiana, Tennessee, and Virginia, chapter leaders testified at committee hearings to oppose anti-MOC legislation. To date, nearly half a dozen state chapters have included MOC on their chapter lobby day agendas encouraging Fellows to discuss the importance of board certification and physician self-governance with their representatives.

Due in part to the efforts of engaged ACS chapters, bills in California, Florida, Indiana, Iowa, Maryland, Oklahoma, and Utah have been defeated, while a bill in Virginia failed to receive enough support in a subcommittee for further consideration. The only MOC bill that has passed so far is Washington H.B. 2257, which was signed March 22. The bill restricts MOC for initial licensure only.

In spite of this early success, surgeons across the country are still working as grassroots advocates on the topic of MOC reform by providing testimony at hearings, meeting with individual legislators, sponsoring lobby days in state capitols, and writing letters to representatives and senators. Surgeons interested in getting involved in this issue should download the MOC toolkit or contact State Affairs staff at state_affairs@facs.org.

Cancer prevention

Cancer prevention legislation covering cancer screening coverage, raising the minimum age for tobacco purchase and tanning bed use, and permitting the use of sunscreen by children in school continued to advance from the 2017 legislative session.

The Indiana Chapter joined with a state coalition to participate in legislative efforts to clarify contradictory rules about permitting students from possessing and using over-the-counter sunscreen at school and school-sponsored events. The sunscreen in schools legislation was signed into law in Indiana and Rhode Island in 2018, with legislation also pending in Colorado, Georgia, Illinois, Kentucky, Maryland, Massachusetts, Mississippi, Missouri, Nebraska, New Jersey, Oklahoma, Pennsylvania, and Virginia.

Efforts to establish prohibitions on access to tanning beds for individuals younger than 18 years old are ongoing. Arizona, Indiana, Missouri, Mississippi, Nebraska, New York, Tennessee, and Rhode Island have tanning bed legislation pending. The Tennessee Chapter sent an Action Alert asking members to support the tanning bed age legislation H.B. 1489. On March 12, H.B. passed both chambers, and was sent to the governor’s desk to be signed.

With respect to tobacco age limits, the states of Arizona, Florida, Idaho, Illinois, Maryland, Michigan, Nebraska, New York, Utah, Washington, and West Virginia have legislation to increase the minimum age to 21 years of age to purchase tobacco products. The states of California, Hawaii, Maine, New Jersey, and Oregon have raised the minimum age to 21 for tobacco purchase.

In partnership with the ACS Commission on Cancer, the College has developed a legislative toolkit for members and ACS chapters to engage on cancer screening coverage legislation related to colorectal cancer screening and insurance coverage for three-dimensional (3-D) breast tomosynthesis mammography. The toolkit is available on the ACS website.

Three states, Mississippi, New York, and Wisconsin, have introduced legislation to prohibit cost sharing for colorectal cancer screening tests, even if they are designated as diagnostic tests rather than initial screening. Patients can encounter unexpected cost sharing for screening colonoscopy under three different clinical circumstances: when a polyp is detected and removed during a screening colonoscopy; when a colonoscopy is performed as part of a two-step screening process following a positive stool blood test; and when the individual is at increased risk for colorectal cancer and may receive earlier or more frequent screening compared with average-risk adults.

Legislation has been introduced to expand insurance coverage of breast mammography to include 3-D tomosynthesis screening in the states of Maryland, Massachusetts, Missouri, New Hampshire, New Jersey, New York, Oklahoma, and Washington. Breast tomosynthesis is a mammography screening test that creates a 3-D image of the breast from multiple X-ray images. The screening was approved by the U.S. Food and Drug Administration in 2011. Proponents for the screening procedure tout the benefits of tomosynthesis as advancement from two-dimensional screenings, resulting in an increase in breast cancer detection rates and a decrease in call-backs for additional screenings.

In January, additional cancer screening legislation was referred to the New York Assembly Committee on Insurance. The bill, A. 1807, would require insurance coverage for comprehensive genetic screening for breast, ovarian, prostate, colon, and lung cancers. Meanwhile, in Vermont, H. 639 would prohibit cost sharing for all breast imaging services. The Vermont bill passed the House and was referred to the Senate in March.

Other issues

Other issues that have been considered at the state level as of press time include video recording of operations, coverage for out-of-network services, scope of practice, and medical professional liability.

Videotaping of operations

In Wisconsin, legislation was introduced January 2018 that would have mandated that patients have the option of having all operative and dental procedures performed under general anesthesia recorded in color. This bill, A.B. 863, would require that each entrance to the room be covered so that all incoming and departing staff members are date and time stamped and would require that the discharge instructions are videotaped. 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.

Out of network

Out-of-network/balanced billing legislation has been introduced in a number of states this year, including Alaska, Georgia, Idaho, Illinois, Kentucky, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Virginia, Washington, West Virginia, and Wisconsin. Notably, Georgia and Missouri are considering bills for payors to reimburse providers for health care costs that are associated with all covered emergency room visits. This represents a shift in policy at the state level that has arisen due to a new Anthem payment policy that is being implemented in 14 states.

Anthem has been systematically denying claims for emergency room visits that it considers “medically unnecessary.” The result is insured individuals (who are being seen by in-network providers) being saddled with tens of thousands of dollars in uncompensated medical bills that they cannot afford to pay.

Scope-of-practice legislation

The advanced practice registered nurse (APRN) compact has been introduced in two more states this year (Nebraska and West Virginia) and may come up in other jurisdictions before the legislative session is over. The APRN compact is a model bill, which, if adopted by 10 or more states, will give APRNs independent medical practice with no legal requirement for collaboration, direction, or supervision by a physician. Critics of the APRN compact have argued that it grants carte blanche authority to APRNs and puts patients at risk. To date, the compact has been enacted in Idaho, North Dakota, and Wyoming, and a carryover bill from 2017 is still being considered in Iowa.

The New York Chapter spurred a call to action to Fellows in that state to oppose a provision in the governor’s proposed budget bill, which would remove the physician supervision requirement for certified registered nurse anesthetists (CRNAs) and replace it with a poorly defined collaborative agreement. The proposal would also grant nurse anesthetists full prescribing authority upon obtaining a vaguely described certificate.

A variety of different optometrist scope-of-practice bills have been introduced in a number of states, including California, Georgia, Illinois, Iowa, Maryland, Massachusetts, Nebraska, New York, North Carolina, Tennessee, and Virginia. Most of the legislation allows optometrists to perform pharmaceutical injections subject to certain limitations, or administer controlled substances in conjunction with performing medical procedures. However, legislation in states such as Nebraska and North Carolina would give optometrists the ability to perform scalpel or laser eye surgery without having attended medical school or undergone surgical residency. The Virginia Chapter engaged the state legislature to oppose a bill to allow optometrists to perform certain surgical procedures. The bill was amended to specifically exclude treatment through surgery, laser surgery, and injections from the practice of optometry. In Illinois, the College sent a letter to the Illinois Department of Financial and Professional Regulations (IDFPR) in response to a proposed rule to expand optometrists’ scope to include surgery and injections without new training and education requirements. In the opinion of the College, the IDFPR acted beyond its legislative authority in proposing a rule that was in conflict with the state’s Optometric Practice Act.

The Brooklyn-Long Island and New York Chapters initiated Action Alerts targeting the legislature and governor to oppose S. 6800/A. 8516, legislation pending since June 2017, which expands the medical liability statute of limitations for cases involving “alleged negligent failure to diagnose a malignant tumor or cancer.” The bill permits lawsuits 2.5 years from the “date of discovery” of such alleged negligence, up to an outside limit of seven years from the date of the alleged negligent act. The governor signed the law after the legislature agreed to a separate bill to amend errors in the original legislation, which fixes ambiguous language that could have greatly expanded the time to bring lawsuits for all potential medical liability cases, not just cancer cases, and to limit the retroactive impact of the bill to 2.5 years.

The Washington state legislature considered legislation, H.B. 2262/S.B. 6015, which would expand medical liability in wrongful death awards. The Washington Chapter sent an Action Alert, calling for members to oppose the legislation. As of March 2018, both bills are awaiting further action in the House and Senate Rules Committees.

Get engaged

Engagement of ACS Fellows is paramount to ensuring that the surgical profession continues to be a leader in patient safety and quality health care outcomes. Fellows can support ACS advocacy through several activities, including responding to Action Alerts from the College, participating in state chapter meetings and lobby days, building relationships with elected officials (critical to effective grassroots advocacy), talking about public policy issues with physician colleagues, and attending the annual ACS Leadership & Advocacy Summit.

As you take on these challenges, the ACS State Affairs team is always available to answer questions and direct you to pertinent information on state issues and policy programs. Numerous state advocacy resources are available on the College’s website, and Fellows may contact us any time at state_affairs@facs.org or at 202-337-2701.

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