Although budget bills are the only legislation that state lawmakers must pass this year, many state legislatures opened their 2017 sessions with a flurry of bills on a range of public policy issues. Furthermore, political uncertainty is casting a pall over some state legislatures, likely stemming from the change of power in Washington, DC. The impact of policy positions that were at the heart of Republican campaigns in the last election—such as repeal and replace of the Affordable Care Act, tax reform, and trade policy such as a border adjustment tax—will have an impact on the state budgets and available funding for state health care programs.
The State Affairs staff in the American College of Surgeons (ACS) Division of Advocacy and Health Policy monitors bills and resolutions introduced at the beginning of the legislative calendar in an effort to identify policy trends that affect the ability of the surgical community to provide safe, quality care for patients. This article describes the bills and legislative trends that the College is monitoring in 2017.
Budget impact on health policy
Passing a state budget is mandatory for state legislatures. Reductions in revenues collected by states and growing liabilities, including state employee pensions, are forcing many lawmakers to re-examine priorities, which often can lead to restricted services for Medicaid or other state health care-related programs. The pressure to pass a budget can become a distraction that diverts attention away from other legislative priorities, including those important to the College, or could result in the passage of laws that could adversely impact patient safety in order to save the state money.
Two states in particular—Mississippi and Ohio—are facing significant budget shortfalls in the 2017 fiscal year.* These budget challenges are affecting state health care programs and patient access to care.
At the close of the 2016 legislative session, the Mississippi legislature passed a budget bill that swept funds from state programs with dedicated financing and redirected the monies into the state’s general revenue fund. The Mississippi Trauma Care System was one of many state programs affected by the act. While state officials have indicated that the trauma system will be funded at the same level through the state’s Department of Health annual budget, the rerouted fees earmarked for the trauma system will continue to go into the state’s general revenue fund. Critics have noted that the Department of Health’s budget will not be reduced or increased. Adding the funding for the state trauma system is likely to pull funding from other health programs funded by the Department of Health.
Some states are considering policies to improve their revenues through increased or new taxes on products and services. Some tax increases, such as an increase on tobacco, can have a positive impact on health outcomes. More than a dozen states, including Arizona, Connecticut, Indiana, Kansas, Montana, New Jersey, New Mexico, New York, Ohio, Oregon, Rhode Island, Virginia, Vermont, and Wyoming, have proposals to increase the sales tax on tobacco products or add electronic cigarettes (vapor) to existing tobacco tax laws. Conversely, tax policy can have a potentially negative impact on access to care, such as a proposal in Ohio to tax cosmetic surgery.
In Ohio, Gov. John Kasich (R) supports a tax reform proposal that would add cosmetic procedures to the state’s sales tax. The proposal also seeks to increase the sales tax rate to 6.25 percent. The governor’s state budget estimates that the cosmetic surgery tax will generate up to $25 million annually. New Jersey implemented a similar tax in 2004. New Jersey eventually repealed the tax because it did not collect the projected amount of revenue and instead cost the state money to administer the tax, while patients went out of state for cosmetic and reconstructive procedures. The ACS highlights New Jersey’s experience with this issue to discourage other states from considering a similar tax.
While state budget challenges may affect health care services, opportunities still exist to advocate for increased funding of state programs. The Georgia Society of the ACS, at its 2017 state lobby day in February with the Georgia Trauma Foundation, advocated for $1 million from the state’s Super Speeder Law fund to install bleeding control kits in all public schools. To support their lobby day efforts, the Georgia Society conducted a bleeding control simulation for legislators, staff, and others in the state capitol building, and secured passage of a resolution in the House and Senate declaring February 7 as Trauma Awareness Day at the Georgia Capitol.
Priority legislative activities
Despite political uncertainty and fiscal challenges, the regular order of business has not stopped in the state legislatures. Several ACS state legislative priorities remain active, including the following: limiting scope-of-practice expansion initiatives by nonphysician providers; clarifying the definition of surgery; and supporting legislation on distracted driving, motorcycle safety, cancer prevention, and tanning bed use.
Scope of practice
Working closely with other surgical specialty associations, the ACS has been engaged in advocacy efforts in several states to stop legislation that would expand the scope of practice for optometrists. Alaska, Florida, Georgia, Iowa, North Carolina, Maryland, and Nebraska have introduced bills that would expand optometrists’ scope of practice to allow them to perform surgical procedures. The ACS Florida Chapter, the Georgia Society, and the North Carolina Chapter engaged in campaigns to encourage their legislators to oppose the legislation. As a result of the Georgia Society’s efforts, the Georgia bill died in committee. Additionally, the ACS sent a letter and engaged in a grassroots campaign in Maryland. At press time, legislation that would expand optometrists’ scope of practice continues to remain active in Alaska, Florida, Iowa, North Carolina, Maryland, and Nebraska.
Definition of surgery
The Connecticut Chapter of the ACS is advocating for legislation that would establish a definition of surgery. In November and December 2016, the Connecticut Chapter participated in a Department of Public Health roundtable discussion along with other physician and nonphysician groups about a definition-of-surgery report presented to the state legislature. At present, no bill has been introduced in the legislature to define surgery in Connecticut state statutes. Members of the Connecticut Chapter discussed the importance of the legislation with lawmakers at their lobby day on March 16. But as the deadline for the legislature to adjourn is June 7, and state budget negotiations remain tense between the governor and the legislature, the probability of a bill being introduced and considered in 2017 becomes less likely.
Advanced nurse practitioners (ANPs) continue to seek independent practice authority, introducing legislation to this effect in Arkansas, Connecticut, Illinois, Oklahoma, and Tennessee. The ACS sent a letter to the Arkansas legislature opposing a bill to remove a requirement that physicians supervise certified nurse anesthetists.
Balance billing/out of network
Patient protections from unexpected out-of-pocket expenses for medical care are a continuing issue for state legislatures. Georgia, New Jersey, Rhode Island, and Washington have introduced bills to address surprise billing through either dispute resolution using third-party data (Georgia and Rhode Island) or limiting out-of-network payments to providers at in-network facilities to a percent of Medicare (New Jersey and Washington).
Trauma prevention and systems
As of late March, nearly 50 distracted driving bills were under consideration in state legislatures. Arizona, California, Colorado, Florida, Kansas, Montana, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, Texas, Vermont, and Washington have bills that either prohibit using mobile devices for texting, making calls, and using the Internet or strengthen clarifications on current policy. Four states are seeking an increase in penalties for violating distracted driving laws. Colorado is seeking to raise the first-time offender fine to $500 from $50; Maine is proposing to suspend an offender’s driver’s license for 90 days; New Mexico is looking to increase the fine by $100; and New Jersey legislators are working to elevate the charge of distracted driving to vehicular homicide if it results in a death. Iowa and Kansas have bills to remove restrictions on police officers, which would enable them to enforce distracted driving laws. Conversely, policymakers in New Hampshire have proposed legislation to remove laws prohibiting the use of electronic devices while driving.
Five states, Connecticut, Delaware, Florida, Hawaii, and Iowa have introduced bills that would require all motorcycle operators and passengers to wear helmets. Despite the Connecticut bill being sponsored by the Chair of the Transportation Committee and a statement of support from the Connecticut Chapter, the committee decided not to advance the legislation any further. Similarly, in Delaware, after ACS Fellows along with transportation safety advocates testified in support of the universal helmet bill, the House Public Safety and Homeland Security Committee voted to table the legislation.
Conversely, bills have been introduced in four states to create exemptions to existing universal helmet laws. Specifically, Nebraska, New York, Oregon, and West Virginia would exempt operators and passengers ages 21 and older. Meanwhile, bills introduced in Missouri would mandate that operators and passengers ages 18 and younger must wear helmets while another would allow adults 21 years or older who provide proof of health insurance to ride without a helmet.
An Arizona proposal would establish a helmet waiver permit to operate a motorcycle without a helmet. The state currently only requires riders 17 years old and younger to wear a helmet. The fee for the permit would go toward the Arizona Highway User Revenue Fund. Motorcycle operators riding without a helmet and without a permit would be fined $500, of which $200 will go to the highway fund and $300 to the Spinal and Head Injuries Trust Fund.
In Florida, a bill would provide the state Department of Health with the authority to designate trauma centers and publish a statewide trauma plan. The legislation would remove the existing cap on the number of trauma centers in the state, following through on the call from Gov. Rick Scott (R) to move to a market-based approach.
The North Texas and South Texas Chapters of the ACS incorporated the bleeding control campaign as part of their 2017 lobby day and annual meeting in February. The chapters included an exhibit at their annual meeting to promote the campaign and demonstrate how to use tourniquets. A resolution recognizing the campaign and encouraging Texans to participate in the initiative was adopted by the state’s House of Representatives in March 2017.
The Arizona, Rhode Island, and Washington Chapters of the ACS are collaborating with state coalitions to support legislation clarifying contradictory rules related to students having or using over-the-counter sunscreen at school and school events. School districts around the country have broad policies that ban “medication” in schools without a physician’s note. The schools follow U.S. Food and Drug Administration guidelines that classify sunscreen as an over-the-counter medication, while the U.S. Centers for Disease Control and Prevention policy recommends students apply sunscreen while at school. Additionally, legislation was introduced in Arizona, Arkansas, Iowa, Mississippi, Montana, New Mexico, New York, Oklahoma, and Virginia that prohibits access to tanning beds for individuals under 18 years of age.
Only two states, New York and Mississippi, have introduced legislation to close the loophole for colorectal cancer screening tests. Currently, many health insurers require cost-sharing for patients who need a colonoscopy following a positive stool test, claiming the colonoscopy is a diagnostic procedure rather than a screening procedure. Under the Affordable Care Act, patients are not required to pay out-of-pocket expenses for screening procedures. Kentucky introduced a resolution urging Congress to amend the Social Security Act to include coverage for colorectal screenings. It is too soon to tell what impact efforts to repeal and replace the Affordable Care Act will have on mandates that health insurers provide coverage for this and other cancer-related screening tests.
Active participation in ACS advocacy efforts is one of the most effective ways members of the College can influence public policy that specifically affects patient safety and quality health care outcomes. The College provides several resources to help surgeons get involved in advocacy initiatives, including responding to ACS Action Alerts, participating in your state chapter’s annual lobby day, and hosting a tour of your practice for a member of Congress.
The ACS State Affairs team is available to answer questions and to provide members with pertinent information regarding specific state issues and policy programs. ACS state advocacy resources are available on the College’s website. For more information, e-mail firstname.lastname@example.org or call 202-337-2701.