2018 state legislative review and a look toward 2019

The 2018 state legislative season ended in September, with most state legislatures adjourning for the year. Bills addressing trauma, injury prevention, scope of practice, out-of-network billing, the Uniform Emergency Volunteer Health Practitioner Act (UEVHPA), Maintenance of Certification (MOC), and physician reimbursement dominated the 2018 legislative landscape.

This year, the American College of Surgeons (ACS) State Affairs staff tracked more than 1,300 pieces of health care-related legislation in all 50 states, and worked with more than 500 Fellows who sent 1,256 e-mail messages to legislators in 10 states. In addition, the College worked with ACS chapters and coalition partners to send 21 comment letters in six states and participated in 20 state lobby day events.

Chapter lobby days

Since 2010, the Chapter Lobby Day Grant Program has provided resources to state chapters that want to get involved in advocacy. The program provides grants of up to $5,000 to help chapters engage with state legislatures by hosting a state capitol lobby day. Chapters also may apply for an enhanced advocacy grant of up to $15,000 to support a comprehensive state advocacy campaign.

In 2018, a record number of 23 state chapters applied for lobby day grants. Those states included: Alabama, Arizona, Arkansas, California, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Maryland, Massachusetts, Michigan, Nebraska, New Jersey, New York, North Carolina, Ohio, Oregon, Tennessee, Virginia, Washington, and Wisconsin. Every applicant received funding, with Florida receiving an enhanced advocacy grant of $12,000. And, while grant recipients were permitted to use the funds to support one of several health care-related legislative issues, 16 chapters chose to host Stop the Bleed® (STB) training in conjunction with their lobby day events.

Trauma

The ACS developed the STB program as a way to train ordinary citizens to save lives in the event of a traumatic bleeding injury. The program teaches participants how to apply tourniquets, pack wounds, and prevent blood loss while waiting for professional help to arrive. Chapters that held STB training programs as part of their chapter lobby day events included: Alabama, Arkansas, California, Connecticut, Florida, Georgia, Kansas, Louisiana, Massachusetts, Michigan, North Carolina, Oregon, Tennessee, Texas, Virginia, and Washington. Participating Fellows trained elected officials and their staffs to save lives and used the opportunity to establish positive relationships with policymakers.

In addition to training citizens and legislators in STB techniques, Fellows in several states also worked to have bleeding control kits installed in public buildings. The Georgia, Kansas, Louisiana, and Tennessee Chapters donated bleeding control kits to be installed in their state capitols, and the Massachusetts Chapter worked with legislators to promote the Trauma Response Preparedness Act (H.D. 4327)—a bill mandating the installation of bleeding control kits in schools, libraries, recreation facilities, sports venues, and other government buildings. In North Carolina, the chapter supported the inclusion of a budget appropriation of $126,000 for a pilot program to install trauma kits in public schools. Bills requiring the installation of bleeding control kits in public places were introduced in California and Missouri, and in public schools in South Carolina, but all failed to pass prior to adjournment.

Another way that states have recognized the STB program is through the introduction of resolutions, which are formal declarations, opinions, or expressions of intent by a legislative body. This year, resolutions commemorating “Stop the Bleed Days” were adopted in Alabama, Georgia, Louisiana, Missouri, New York, South Carolina, Utah, and Wisconsin. The resolutions helped to spread the program’s message and bring attention to the broader initiative.

Trauma funding

The Virginia Chapter of the ACS sent letters in support of H.B. 1315, which would impose a fine on individuals convicted of violent offenses. All revenue collected was to be deposited into the Virginia Trauma Center Fund to offset costs associated with providing emergency medical care to victims of trauma. The Virginia Chapter also advocated for a budget bill amendment to prevent the transfer of $8 million from the Virginia Trauma Fund to the commonwealth’s general fund. Unfortunately, both measures failed to pass before the end of the legislative session.

On January 31, the South Florida, Jacksonville, and Florida Chapters sponsored STB training at the state capitol. Surgeon advocates used the opportunity to meet with their legislators and discuss important bills, including one addressing the state’s trauma system. Florida surgeons urged legislators to vote in favor of a comprehensive trauma reform bill that had been introduced earlier during the year. Their efforts paid off, and the Florida legislature passed a comprehensive trauma reform bill raising the cap on the number of trauma centers in the state, allowing new trauma centers to be built.

Distracted driving

With the seemingly constant introduction of handheld technology, distracted driving continues to be a major traffic safety issue. This year, Colorado, Georgia, Kentucky, Massachusetts, Missouri, New York, Oklahoma, Pennsylvania, Rhode Island, and South Carolina introduced distracted driving legislation. In Colorado, the chapter worked with stakeholders to support a bill that prohibited drivers of all ages from using their cell phones while driving and increased the penalty for minor drivers from $50 to $300 per violation. Unfortunately, the bill failed to garner enough support to pass before the end of the legislative session.

The Georgia Society of the ACS did, however, manage to get a bill passed that increased fines assessed against distracted drivers. To do this, Georgia surgeons responded to ACS Action Alerts and contacted their elected officials to ask them to support the bill. The bill easily passed the House and Senate, and on May 2 Gov. Nathan Deal (R) signed it into law.

Passenger safety

In addition to supporting motorcycle helmet legislation, the Colorado Chapter weighed in on a bill that established primary enforcement for seat belt violations. This type of legislation allows police to cite motorists for not wearing their seat belts, even if drivers have committed no other traffic offense. Although the chapter sent letters supporting the bill, the measure failed to pass.

Similarly, the New Hampshire Chapter worked to advance a bill mandating that drivers of motor vehicles and their passengers wear seat belts. Surgeon advocates mobilized to help promote the bill by sending out letters of support and offering testimony at a Senate hearing on March 23, 2018. Regrettably, the legislation did not pass, and New Hampshire remains the only U.S. jurisdiction that does not require seat belts.

Finally, the Nebraska Chapter weighed in on legislation that would have repealed the state’s universal helmet law requiring motorcyclists to wear a safety helmet. The chapter engaged the members to send e-mails to their legislators encouraging them to oppose the legislation. In the end, the chapter’s efforts succeeded, and the legislation was killed.

Cancer

Because the U.S. Food and Drug Administration classifies sunscreen as an over-the-counter drug, school districts require a physician’s note for a child to bring sunscreen to school. In addition, students who do decide to bring sunscreen to school must visit the school nurse, who is expected to supervise its application. Recently, a growing number of states have passed legislation allowing children to take sunscreen to school without obtaining a note from their physician.

In 2018, four states—Indiana, Maryland, Michigan, and Oklahoma—passed sunscreen legislation allowing kids to take sunscreen into schools. Five other jurisdictions, including the District of Columbia, Illinois, Massachusetts, New Jersey, and Pennsylvania, were still considering legislation at press time, and a Virginia bill will carry over into the next session. Likewise, the Indiana Chapter signed onto a coalition letter supporting similar legislation in the state, while bills introduced in Georgia, Kentucky, Mississippi, Missouri, Nebraska, and Rhode Island failed.

Other 2018 cancer-related state legislation addressed sunless tanning. Nebraska and Tennessee both introduced bills prohibiting children and adolescents younger than 18 years old from using tanning beds. The Tennessee Chapter activated Fellows who sent letters to their representatives urging support for the legislation. A watered-down Tennessee bill that created an exemption for individuals aged 16–18 and parental permission was signed into law by Gov. Bill Haslam (R) April 2. The Nebraska bill, however, did not manage to pass.

MOC

MOC is the formal process of continuous professional learning aimed at keeping physicians up-to-date in their fields. MOC allows physicians to demonstrate their commitment to lifelong learning and indicates a physician’s engagement with the standards of practice to provide safe, quality medical care. Critics of MOC claim that the process is burdensome, expensive, and unnecessary. And in 2018, opponents of MOC worked to get legislation introduced in the following states: Alabama, Arkansas, California, Florida, Indiana, Iowa, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Virginia, Washington, and Wisconsin.

Of the 23 states that introduced bills, 21 effectively restricted MOC for physician initial licensure, reimbursement, and private contracting. The College, state chapters, and other stakeholders collaborated to successfully oppose all of the 21 bills. In fact, these efforts were so successful that the only bill to pass—Tennessee, H.B. 1927—included a “carve out” allowing hospitals and physicians to execute private contracts without undue government interference.

UEVHPA

The UEVHPA model bill allows physicians to enter into a state other than the one in which they are licensed to practice to provide volunteer medical services when a state of emergency is declared. Passage of the UEVHPA greatly increases access to care during emergency situations by allowing volunteer medical workers to offer their services at times when licensing boards may be overwhelmed with requests or may be nonfunctioning due to a disaster.

The College has advocated for passage of the UEVHPA in all 50 states since 2007. In 2018, Maine and Washington became the latest states to adopt the UEVHPA, bringing the total number of states to 17. To learn more about the UEVHPA and see a full list of states that have adopted the UEVHPA model legislation, visit the ACS website.

Out-of-network care and balance billing

In recent years, payors have taken an increasingly aggressive stance toward reimbursement for medical services, resulting in patients being strapped with unanticipated health care bills. Balance billing occurs when a patient receives a medical bill following an insurer’s refusal to pay all or a portion of a medical bill. This circumstance usually occurs in emergency room settings when a patient receives care from a provider who is out-of-network, and their insurance claim is subsequently denied. In response, a growing number of state legislatures have sought to address the issue. This year, the New Jersey legislature enacted an out-of-network bill that was aimed at protecting patients; however, it was deeply flawed. The bill required providers to take on the burden of determining the network status of each potential patient, instead of focusing on the duty of insurers or the health care needs of the patient.

The New Jersey Chapter and the ACS worked together to oppose the bill by sending a memo of opposition to the New Jersey Senate, as well as Action Alerts to all New Jersey Fellows urging them to contact their legislators. Nearly 275 messages were sent to members of the New Jersey legislature, and numerous phone calls were placed. Despite these efforts, the legislation was enacted, creating significant new administrative burdens for physicians.

In Georgia, similar out-of-network legislation was introduced, which the Georgia Society of the ACS also opposed. Action Alerts were sent to Georgia surgeons, encouraging them to oppose the legislation, and the chapter sent letters to representatives opposing the bill. Ultimately, the society’s efforts paid off, and the bill was defeated.

Scope of practice

This year, the Pennsylvania legislature introduced scope-of-practice bills addressing certified registered nurse practitioners (CRNPs) and supervision of physician assistants (PAs). The first bill, H.B. 100, allowed CRNPs to act as primary care providers under managed care and other health plans. The second bill, S.B. 895, redefined “physician supervision” to not require the presence of an on-site physician to supervise PAs. In both instances, Action Alerts were sent to Pennsylvania Fellows who, in turn, contacted their legislators asking them to oppose the bills. Ultimately, neither bill received enough support to make it out of committee, and both bills failed upon adjournment.

In New York, a pair of bills emerged addressing naturopathic physician and certified registered nurse anesthetist (CRNA) scope-of-practice. The first bill allowed naturopaths to practice medicine and perform surgical procedures without the oversight or education requirements imposed on physicians. The second bill—a rider on the state’s budget omnibus legislation—removed the physician supervision requirement for CRNAs and replaced it with a poorly defined collaborative agreement. To oppose these bills, the ACS sent out Action Alerts and letters to legislators and worked with the New York Chapter to push back on the CRNA bill. These efforts paid off. The naturopathic physician bill was defeated and language expanding CRNA scope of practice was removed from the budget bill.

Similarly, the Oklahoma legislature introduced a bill that removed existing requirements that nurse practitioners, nurse midwives, and nurse specialists practice and prescribe pursuant to physician supervision. The College and the Oklahoma Chapter partnered with the Oklahoma Medical Association to oppose the bill on the grounds that it created patient safety concerns, and unnecessarily expanded prescriptive authority for opioids and other controlled substances. For these reasons, the College sent Action Alerts, and Oklahoma Fellows responded by urging their elected officials to vote against the bill. In the end, the Oklahoma bill was not called in time, missing the legislative deadline for a final vote.

The Illinois and Virginia Chapters grappled with measures that significantly expanded optometric scope-of-practice by allowing optometrists to administer sterile injections and perform scalpel eye surgery. The Virginia Chapter sent comment letters to the legislature, and the College sent a letter to the Illinois Department of Financial and Professional Regulation opposing the proposed rule. Both the legislation in Virginia and the administrative rule in Illinois were defeated, achieving a significant win for patient safety in both states.

Payment

In California, surgeons worked to oppose A.B. 3087—price-fixing legislation that would allow a commission to determine reimbursement for medical procedures. The ill-advised attempt at controlling health care costs threatened to drive physicians out of the state, and would have led to even greater physician shortages in California. The health care community came together, and California Fellows worked with their local chapters, the California Medical Association, and allied health care organizations to oppose the bill. Coalition letters were sent to elected officials, and Fellows responded to Action Alerts by contacting their representatives. These collaborative efforts succeeded, and the bill died in committee.

New York State Sen. J. Kemp Hannon (R) introduced a bill addressing physician prior authorization—the process through which health care providers must obtain approval from a payor before a medical service or item may be furnished to a patient. The administrative burdens imposed by prior authorization requirements on surgeons often delay or interrupt treatment, and can endanger patients. The New York bill would have eased some of the burdens by standardizing the electronic transmission of certain prior authorization requests, as well as taking other steps to encourage the use of this time-saving technology. The New York Chapter supported the bill by sending letters to New York state legislators, but the bill failed to pass.

Also in New York, the Assembly passed a bill that would establish a state-run single payor health care system called New York Health. The legislation would provide health care coverage to all New York residents, including all benefits covered by Medicaid, Medicare, Child Health Plus, and the Affordable Care Act (ACA) mandates. Private health insurers would no longer be able to provide coverage in the state. The plan would be paid for through increases in payroll and non-payroll taxes, such as levies on investments. The legislation also included a provision that would require all health care providers to collectively negotiate with the system.

In August, the RAND Corporation issued a study of the proposal, which indicated that if the proposal received the appropriate waivers for Medicaid and Medicare, and the ACA requirements and assumptions on future health care costs stay consistent, the uninsured rate in the state would be zero and health care spending would decrease overall by 3 percent by 2031.

The New York State Assembly has passed a version of the bill in 2015, 2016, 2017, and 2018. However, the New York State Senate has yet to vote on the legislation. Fellows of the New York and Brooklyn-Long Island Chapters met with legislators in June to convey that the proposal was not the right solution to address the affordability of health care in the state.

In Pennsylvania, a provision was added to a revenue bill imposing a new provider tax on ambulatory surgery centers (ASCs). ASCs tend to be small businesses and already pay multiple taxes, such as income, property, and sales and use tax. ASCs must maintain positive income levels to operate effectively and maintain quality standards. For these reasons, the ACS sent Action Alerts requesting that Pennsylvania surgeons contact their legislators, and the proposed tax was eventually removed from the final state budget.

Liability reform

On December 29, 2017, the New York State Legislature delivered a bill to Gov. Andrew Cuomo (D) expanding the medical liability statute of limitations for cases involving “alleged negligent failure to diagnose a malignant tumor or cancer.” Under the new statute, lawsuits may be filed 2.5 years after the “date of discovery, with an outside limit of seven years from the date of the alleged negligent act.” The New York Chapter urged members to contact the governor and ask him to veto the bill because of its potential to expand medical liability litigation and put financial pressure on the state’s liability insurance industry. New York is ranked by the insurance industry as the worst state in the country in which to practice medicine, in large part because of excessive medical liability premiums.

Despite Fellows’ efforts to argue that the state legislature and governor should focus on policies that stabilize health care spending in New York, Governor Cuomo signed the bill into law January 31. In response, New York Senator Hannon introduced a bill to amend the liability code to require a plaintiff in a medical liability case to file an affidavit of merit prior to a lawsuit moving forward. The College’s Legislative Committee reviewed the bill and offered the New York Chapter suggested amendments to strengthen the affidavit of merit provision by applying the College’s standards for expert witnesses as the standard for the expert physician signing off on the affidavit. Unfortunately, the bill failed to pass before the end of the session.

Looking forward to 2019

With 2018 in the books, State Affairs staff is beginning to prepare for a productive 2019 legislative year. Although upcoming elections will play a role in determining state legislative priorities, a number of issues are expected to arise. Bills creating additional administrative burdens for surgeons are likely to come up. MOC and balance billing legislation also are expected to be introduced, as are bills dealing with scope of practice and injury prevention. While these (and other) issues are almost certain to emerge in dozens of states, State Affairs stands ready to meet the 2019 legislative session head on.

Member engagement in the state legislative process is crucial because it ensures that surgeons continue to advocate for legislation that positively affects patient safety and health care quality. Fellows can support ACS advocacy efforts by responding to Action Alerts from the College, participating in state chapter meetings, attending chapter lobby days, establishing relationships with elected officials, speaking about policy issues with colleagues, and participating in ACS events like the annual Leadership and Advocacy Summit. State advocacy resources, including bill tracking services and legislative tool kits, are available on the State Affairs web page. The ACS State Affairs team also is available to answer questions or provide information on state issues and policy programs, and can be reached at state_affairs@facs.org.

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