A recurring character on The Tonight Show with Johnny Carson was Carnac the Magnificent. A “mystic from the East,” Carnac would divine the answers to unknown questions that were contained in a “hermetically sealed envelope.” State Affairs staff in the American College of Surgeons (ACS) Division of Advocacy and Health Policy would like to have this mystical ability to predict what is likely to happen in the state legislatures in 2014, but, unfortunately, there is no crystal ball or Carnac available to help divine the future of state legislation. However, it is possible to make some educated guesses about 2014, especially after a look back at what happened in 2013.
Where the action is
Advocacy at the state level has become much more important in recent years because that is where all the action seems to be taking place. The 16-day federal government shutdown in October 2013 reflects the end result of hyper-partisanship, and impedes good governance. However, at the state level, legislators get bills passed, with or without partisanship. States must, by law, have balanced budgets, so spending plans that the majority party introduces are acted upon, as are other initiatives near and dear to the majority’s heart.
It is also at the state level where medical licensure and insurance markets are regulated, and where Medicaid payment is determined. Public health issues are often addressed at the state level, as are banking and health care systems overall (trauma center/system approval, hospital/ambulatory surgery center licensure, and so on). Medical liability reform, while often discussed and attempted at the federal level, actually gets enacted at the state level—with varying degrees of success. And certainly there can be a hodgepodge of health care-related issues relating to trauma, cancer, bariatric surgery, quality and patient safety, and medical education.
Legislative schedules are typically limited, with most state legislatures meeting for two to three months between January and July. Then legislators adjourn and return home, providing plenty of opportunities for in-district visits with their constituents.
Brief look back
A detailed review of state legislatures in 2013 was published in the December 2013 issue of the Bulletin, but for the sake of more accurately assessing the issues likely to top the state legislatures’ agendas in 2014, it’s worthwhile to briefly look back at 2013. Following are some of the issues debated heavily in the state legislatures last year.
Medical liability reform. A number of states saw legislative and judicial activity related to medical liability reform.* Legislators in Arkansas looked at potential constitutional amendments to implement caps on noneconomic damages and other reforms similar to those in the groundbreaking Medical Injury Compensation Reform Act (MICRA). Meanwhile, efforts were under way in California, the birthplace of MICRA, to attack the statute at the ballot box. The Supreme Courts in New Jersey and in Oklahoma issued rulings, and other states passed disclosure, apology, and offer laws (Oregon); clarified existing medical liability reform laws (Michigan); and introduced and enacted the concept of provider shields relating to public/private payor guidelines used as evidence in medical liability lawsuits (Georgia).
Provider shields create a barrier between physicians and public or private payor guidelines that could be used as evidence in medical liability lawsuits. Evidence related to the public and private payor guidelines is inadmissible in court and may not be used to demonstrate negligence or failure to follow a standard of care.
Injury prevention. Legislators at the state level saw the usual mix of youth concussion education, firearm safety, and distracted driving bills introduced and, in some cases, enacted by their legislatures. For the past few years, it has been popular in the states to address use of handheld communication devices and texting while driving.
Scope of practice. Many bills are introduced every year at the state level, which would expand the scope of practice for nonphysician health care practitioners. Advanced practice nurses, optometrists, dentists, podiatrists, and other practitioners regularly go to their legislators to see what they can achieve with varying degrees of success. One point worth noting with respect to scope issues is that they generally result in legislators’ friends fighting over some aspect of the issue, and legislators typically prefer to avoid such conflicts.
Cancer/trauma. Many states sought to require insurance companies to provide for additional imaging in those cases where dense breast tissue is detected. In addition, after multiple attempts, Texas succeeded in enacting the Uniform Emergency Volunteer Health Practitioners Act.†
Ringing in the new year
Some significant issues are likely to be considered in the states this year. A few examples of what to watch for are as follows:
- As mentioned previously, MICRA is once again under attack in California. An initiative, should it receive the required number of signatures, will be on the November 2014 ballot, which would not only increase the cap on noneconomic damages from $250,000 to approximately $1.1 million, but would impose mandatory random drug testing and other dictates on physicians. A summary description of this initiative (13-001) is available at the California Secretary of State’s Web page.‡Campaign efforts to defeat or pass this ballot initiative are going to be very expensive—in the hundreds of millions of dollars. Surgeons, ACS chapters, and the entire California medical community will be hearing from those organizations that oppose the initiative and will want and need to be engaged.
- With the implementation of the Affordable Care Act (ACA), legislators in some states may be taking another look at the essential benefits package to determine what procedures should be covered. Now would be a good time for surgeons to advocate for coverage of procedures they believe should be included in the benefits package. Other ACA-related issues may include transparency of fee schedules for providers, Medicaid expansion and improving Medicaid payment, participation in networks included in insurance plans purchased through the exchanges, and so on.
- As mentioned earlier, provider shield legislation was passed in 2013 for the first time in Georgia. This legislation was drafted in response to a joint effort by the medical and the trial attorney communities. While Georgia is the first state to do this, it is likely to catch fire in other state legislatures, so surgeons and ACS chapters should pay close attention in their states and look for advocacy opportunities should provider shield or other liability reform legislation be introduced.
- Many scope-of-practice bills are expected to be introduced this year. In particular, advanced practice nurses (APNs) have been very active at the grassroots level for the last year or so, educating state legislators about their desire to practice independently and why they think they should be allowed to do so. A counterbalance to this movement—not just for APNs, but really any non-physician provider group seeking independent practice—is a law that Texas passed in 2013 that creates a team-based, physician-led collaborative model of practice. It would not be surprising to see the Texas model bill popping up all over the country, especially in those states where scope-of-practice battles rage on year after year.
- At least eight states passed breast imaging laws in 2013, and many more will be considered in the state legislatures in 2014. These bills mandate that coverage be provided for an additional imaging test when dense breast tissue is found.
- The few remaining states that have yet to adopt youth concussion education and prevention laws will likely be considering such legislation. In light of recent national coverage of brain injury in professional football players, this issue has gotten a second wind and certainly generated considerable concern among the parents of children who want to play football or other sports where concussions are a possibility.
- Now that many state budgets are in slightly better shape, 2014 may be the year to start looking at not only trauma system development, but also funding for these systems. Possible models would include raising the fee on the issuance of driver’s licenses or vehicle registrations with those additional funds directed to the trauma system. Another possibility would be an increase in the tobacco tax.
- With 2014 being an election year, state legislators will be looking to introduce the kind of legislation they can get passed to bolster the likelihood of re-election. With this in mind, now might be a good time for surgeons to contact their state legislators and suggest that they introduce and pass bills that would be good for the profession, for patients, and for the state.
This summary lists just a few legislative and policy trends to watch for at the state level. Certainly, many other issues will arise, and ACS State Affairs staff would like to hear from surgeons and chapters when they do. Send correspondence to stateaffairs@facs.org. Likewise, when the College issues a grassroots advocacy request for action, surgeons and chapters need to participate. Typically a five-minute visit to the Surgery State Legislative Action Center to send a prewritten letter to a state legislator is all that is required. Visit the ACS Surgery State Legislative Action Center. It’s easy to do but can make a world of difference in the outcome of a piece of legislation in the states.
*American College of Surgeons. Advocacy and health policy medical liability reform. Available at: www.facs.org/ahp/proliability.html. Accessed October 23, 2013.
†American College of Surgeons. Uniform Emergency Volunteer Health Practitioners Act. Available at: www.facs.org/ahp/uevhpa.html. Accessed on October 24, 2013.
‡California Secretary of State. Debrah Bowen. Initiatives and referenda cleared for circulation. Available at: www.sos.ca.gov/elections/ballot-measures/cleared-for-circulation.htm. Accessed October 24, 2013.
