Editor’s note: The information in this article was current before the coronavirus disease 2019 (COVID-19) pandemic led to state legislature shutdowns. For the latest information on state legislative activity, read the weekly Bulletin Brief and Bulletin Advocacy Brief, which is published every other week.
More than half of the state legislatures have picked up where they left off in 2019, carrying over priority legislative issues into 2020, whereas those states that do not carry over legislation (a term for bills that span two years) from the previous year have quickly introduced their own legislative solutions to the major issues facing surgeons and patients. These bills concern issues such as out-of-network surprise billing, STOP THE BLEED®, trauma prevention and readiness, nonphysician scope of practice, and cancer prevention and screening. The state legislatures of Montana, Nevada, North Dakota, and Texas comprise the small group that does not meet in 2020. The American College of Surgeons (ACS) is tracking more than 1,400 bills in the 46 states in session in 2020. The following is a summary of the advocacy efforts and legislation that the ACS is tracking.
Out-of-network surprise billing
State legislation to address out-of-network surprise medical bills continues to be a priority issue before state legislatures. At press time, 30 states had introduced at least one bill that would create a new law or amend existing state law to address out-of-network surprise billing. Legislation in Georgia, Indiana, and Virginia had advanced out of their legislature’s chambers, sending bills to the governor, whereas bills in Hawaii, Kentucky, and Nebraska had passed out of the originating chamber.
The Georgia Senate passed S.B. 359 on February 24, 2020, while the House passed H.B. 888 on March 3, 2020. The bills would take patients out of the middle of pricing issues, leaving negotiations on cost of care between the physician and insurer for emergency care and nonemergency care provided by an out-of-network physician at an in-network facility. For payment, the bill would treat out-of-network physicians providing emergency services the same as in-network physicians with regard to the patient’s health insurance plan, while an out-of-network physician providing services in an in-network facility would be reimbursed the greater of the following: the median in-network rate of all insurers for the same or similar service, the most recent amount paid to the physician for the same out-of-network services, or an amount determined by the insurer. The bill provides an arbitration process for physicians who do not agree with the amount paid by the insurer. Additionally, the bill exempts patients that agree to see an out-of-network physician from the surprise billing prohibition.
The Georgia Society of the ACS (GSACS) has been working as part of a coalition with other physician groups to advocate on behalf of surgeons to negotiate more favorable language in a final bill. The GSACS has actively engaged on the issue of out-of-network surprise bills in the legislature the past few sessions. The Georgia governor and legislative leadership have publicly stated that passing legislation to address the issue is a key priority for 2020.
The Indiana legislature passed a version of H.B. 1004 that came out of a conference committee when the House rejected amendments made to the bill passed by the Senate. The approved version of the bill is now headed to Governor Eric Holcomb (R), which would set reimbursement for care by an out-of-network physician at the in-network price unless the patient has consented in writing to paying a higher charge amount based on a good-faith estimate. The bill stipulates that a patient seeing a physician that is contracted with their health insurance provider also can request a good-faith estimate of charges. The bills do not provide physicians with additional ACS-supported avenues for negotiation with insurers, such as an independent dispute resolution process.
Two distinct legislative proposals moved through the Virginia House and Senate, culminating in the passage of H.B. 1251 and S.B. 172, respectively. H.B. 1251 was originally the preferred bill of the Medical Society of Virginia (MSV). That support faded when H.B. 1251 was amended with insurance-friendly language that would reimburse out-of-network physicians who provide emergency services or services at in-network facilities for the “market-based value” of the service. Market value is based on the weighted average of the amount paid to a physician from Medicare and the unweighted average amount paid by a commercial insurer. Under H.B. 1251, physicians may dispute the reimbursement to the Virginia State Corporation Commission’s Bureau of Insurance. The MSV ultimately preferred S.B. 172, which prohibits balance billing, applies to both emergency care and care provided at in-network facilities by out-of-network physicians, sets the initial payment at usual and customary commercial payment rate, and includes a baseball-style arbitration system (both sides present their final amount and an arbitrator chooses one) to dispute the payment.
However, due to a last-minute deal between the House and Senate, both versions of the bills were amended in favor of legislation that was based on the legislation passed by the state of Washington in 2019. That agreed bill headed to Governor Northam (D) for his signature includes a ban on balance billing, the establishment of commercially reasonable payments based on the median average of in-network and out-of-network paid claims, as well as the median average of billed charges, and inclusion of arbitration.
Other notable state legislative efforts to address out-of-network surprise billing are as follows:
- Hawaii (S.B. 2423 and H.B. 1881) would prohibit a nonparticipating physician from billing a patient, managed care plan, or other payor an amount more than what they are allowed to bill Medicare.
- Idaho (H.B. 506) would limit payment rates to out-of-network physicians for emergency or nonemergency care to the allowed amount; in nonemergency situations, out-of-network physicians may bill a higher amount when the patient agrees in writing to pay out of pocket for uncovered costs from the out-of-network physician.
- Nebraska (L.B. 997) states that it is permissible for physicians to bill for charges if the charges are based on the higher of the health carrier’s contracted rate or 125 percent of Medicare and would establish a mediation process.
- Kentucky (S.B. 150) would establish a database of billed charges for use to determine “usual and customary” rates and includes an independent dispute resolution process.
- Maine (L.D. 2105) would enable uninsured patients and individuals covered by a self-insured plan to initiate an independent dispute resolution process to challenge physicians’ bills and to resolve disputes between physicians and insurers for billed charges.
- Arizona (S.B. 1602) already has a law partially addressing out-of-network surprise bills that would repeal the arbitration option; however, it would set up a database to determine usual and customary rates at the 80th percentile of all charges for a given service in a geographic area.
Scope of practice expansion
Nonphysician health care practitioners continue their efforts to expand their legal scope of practice to include procedures beyond their education and training and to gain independent practice authority by removing supervision and collaboration requirements. Consequently, the ACS continues to advocate for state legislation to maintain high standards for education and training of all health care practitioners to perform surgical procedures and to support other physician specialties that have concerns about legislative encroachment. To date this year, the ACS has sent letters to legislators in Missouri, South Dakota, and West Virginia opposing legislation to grant independent practice to certified registered nurse anesthetists (CRNAs). Despite opposition, the bill in South Dakota passed and was signed by the governor. Bills on CRNA scope have been introduced in Indiana, Mississippi, Missouri, South Dakota, Virginia, and West Virginia. The College sent a letter to the Idaho Board of Nursing opposing a board statement recommending that CRNAs call themselves nurse anesthesiologists.
The College sent a letter to Idaho legislators opposing legislation that would expand the scope of practice for optometrists to include certain surgical procedures, such as laser surgery. Other optometrist scope bills have been introduced in Mississippi, Nebraska, and Wyoming.
The ACS has been supporting the Florida Chapter’s efforts to oppose legislation, H.B. 607 and S.B. 1676, which would create a new specialized practice license for autonomous practice advance practice registered nurse (APRNs) and autonomous physician assistants (PAs) to practice without physician supervision as well as APRN-Independent Practioners. The Florida Speaker of the House Jose Oliva (R) has publicly stated that passing legislation to author independent practice for APRNs and PAs is one of his legislative priorities for the year. An amended version of H.B. 607 that only granted independent practice to APRNs passed out of the legislature and was quickly signed by Governor DeSantis (R) on March 11.
The College continues to advocate for the safety of individuals and access to care in the event of a traumatic injury, working with the ACS Committee on Trauma (COT) and state chapters on issues related to state trauma systems, advancing the STOP THE BLEED campaign, and supporting laws that would result in a reduction of injuries.
Trauma systems and funding
Kansas Gov. Laura Kelly (D) included a recommendation in her fiscal year 2021 budget proposal to provide funding directly from the state general fund to the Kansas Trauma Program to avoid a revenue shortfall, as well as increase funding to the Division of Public Health to support the trauma system.
A bill in New Jersey, A.B. 2050, would deny a certificate of need to a health care facility seeking to designate itself as a trauma center if the facility is within 15 miles of an existing trauma center. In addition, the Commissioner of Health could not issue a request for certificate of need without the favorable approval of the New Jersey State Trauma System Advisory Committee.
STOP THE BLEED
STOP THE BLEED legislation continues to gain support among state lawmakers, who are reaching out to the ACS for model legislation and for support of their own STOP THE BLEED legislation. Bills to advance STOP THE BLEED training and access to bleeding control kits are under consideration in 12 states: California, Florida, Illinois, Iowa, Massachusetts, Michigan, Missouri, North Carolina, New York, Pennsylvania, Tennessee, and Washington. The Iowa legislation, H.F. 2169, was amended to add STOP THE BLEED training to Iowa secondary school health education programs. The Iowa Chapter of the ACS and State COT sent letters of support for legislation that advanced out of the House Committee on Education February 18. The Tennessee House passed H.B. 1587 on February 27 to require STOP THE BLEED training for school personnel and permit the installation of bleeding control kits.
A bill in Washington, S.B. 6157, that would require STOP THE BLEED training for school personnel and make available bleeding control kits in school buildings passed out of the Senate Committee on Early Learning and K–12 Education January 31 but was subsequently moved to the Rules Committee.
The Connecticut Chapter of the ACS submitted testimony at a public hearing March 16 on H.B. 5448, which would expand the state risk protection order law. Under the expansion, family members and physicians could apply for a protective order requiring individuals to surrender their firearms, as well as prohibit them from purchasing new firearms during the extent of the order.
The Washington state legislature passed S.B. 6288 to “establish the Washington office of firearm safety and violence prevention to provide statewide leadership, coordination, and technical assistance to promote effective state and local efforts to reduce preventable injuries and deaths from firearm violence.”
The Connecticut Chapter of the ACS submitted testimony at a February 28 public hearing on S.B. 148, which would require all individuals younger than 21 years old to wear a helmet while operating a motorcycle.
The Missouri COT testified against S.B. 590, which would roll back the state’s universal motorcycle helmet law to require only riders younger than 18 years old to wear a helmet or all riders operating the vehicle with a learner’s permit. However, the bill would prohibit law enforcement from stopping riders solely on the basis of not wearing a helmet.
Bills in Maryland, Massachusetts, Nebraska, New York, Vermont, Washington, and West Virginia would eliminate requirements for adults to wear a helmet. Bills in Hawaii, Iowa, New Hampshire, and Oklahoma would require adults to wear a helmet. New York has legislation to study the efficacy of wearing a helmet while riding a motorcycle, and West Virginia has a bill to allow out-of-state residents to ride without a helmet.
Vehicle passenger safety
The New York Chapter of the ACS has actively supported S. 4336/A. 6163, which would require all passengers ages 16 and older to wear a seat belt when riding in the rear seat of a vehicle. The chapter issued a memorandum of support for the legislation in addition to activating a grassroots call to action. The New York Assembly passed the bill February 12 followed by the Senate passing the bill on March 3. The legislation is in the State Assembly pending final action before heading to Gov. Andrew Cuomo (D). The Connecticut Chapter of the ACS is part of an AAA (formerly the American Automobile Association)-led coalition to support legislation, S.B. 151.
The ACS Commission on Cancer and other stakeholder organizations continue to monitor and engage on cancer-related state legislation, such as raising the age for the purchase of tobacco and vapor products to age 21 from 18 years old; expanding health insurance coverage expansion for breast, cervical, colorectal, and prostate cancer; and protecting minors from the harmful effects of tanning beds, as well as permitting students to use sunscreen products at school and school events.
Tobacco 21 and vapor
The federal government passed and enacted legislation to raise the age to purchase tobacco products nationally to age 21 from 18 years old, but the groundswell of support for enacting state legislation to follow suit, referred to as Tobacco 21, remains strong in 2020. States that had not passed their own laws raising the age before passage of the federal law are still advancing legislation to address issues specific to state regulations on the sale of tobacco products, such as retail licensing and identification, as well as aligning state law with the federal law for funding from the Substance Abuse and Mental Health Services Administration.
At press time, 27 states were considering Tobacco 21 legislation: Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Washington, West Virginia, Wisconsin, and Wyoming. The bill in Wyoming was signed by Governor Gordon (R) while the Indiana legislature sent their bill to Governor Holcomb (R) for his signature. Tobacco 21 bills in Kentucky, New Hampshire, and Wisconsin also had passed out of at least one legislative chamber.
In addition to raising the age for the purchase of tobacco products, state legislators have emphasized including electronic cigarette and vapor products as part of the Tobacco 21 bills and have introduced legislation to curb vapor product use, such as banning flavored nicotine products. The New York Chapter of the ACS is supporting a proposal in Governor Cuomo’s budget to ban the sale of flavored nicotine products. In 2019, the New York State Supreme Court struck down an executive order from Governor Cuomo to achieve the same result. The states of Massachusetts and New Jersey have enacted bans, whereas Arizona, Colorado, Connecticut, Florida, Hawaii, Kentucky, Maryland, Michigan, Missouri, Nebraska, Oklahoma, Oregon, South Dakota, Vermont, Virginia, and Washington State have introduced bills to regulate the ingredients in electronic cigarette vapor products in addition to a ban on the use of nontobacco flavors.
The College continues to support legislative efforts to protect children and minors from dangerous exposure to ultraviolet light through the passage of laws allowing primary, middle, and secondary school students to possess and use sunscreen products on school premises and at school-sponsored events, as well as establishing minimum age requirements to use tanning beds. Three states have active bills related to sunscreen in schools: Massachusetts, Rhode Island, and Virginia. The Virginia Senate passed S.B. 44 January 14.
Legislation in 14 states restricts a minor under the age of 18 from using a tanning bed: Arizona, Iowa, Michigan, Mississippi, Missouri, Nebraska, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, South Carolina, Utah, and Virginia. The Utah House passed H.B. 34 February 20, and the Virginia House passed H.B. 38 February 7, moving both bills to their state’s respective Senates. Bills in Iowa, H.F. 283; Oklahoma, H.B. 3506; and Pennsylvania, S.B. 909, do not align with the College’s position in that they provide too many exemptions, such as allowing a parental waiver for a minor under 18 years old age to use a tanning bed.
Bariatric surgery coverage
The Connecticut Chapter of the ACS is continuing its efforts to enact legislation to expand essential health care insurance benefits to include coverage for bariatric surgery. The Connecticut Chapter submitted testimony in support of S.B. 204 for a February 26 Joint Committee on Insurance and Real Estate hearing. The legislation is similar to a 2019 bill that the Connecticut Chapter also supported.
States have issued coronavirus disease 2019 (COVID-19)-related Executive Orders regarding dental, medical, and surgical procedures. For more information on state-level legislation, visit the ACS website.
Engagement of ACS Fellows is critical in ensuring that surgeons continue to be leaders in patient safety and health care quality. Fellows are encouraged to support ACS advocacy efforts by participating in state chapter meetings and lobby days, building relationships with elected officials (critical to effective grassroots advocacy), speaking about public policy issues with colleagues, responding to grassroots Action Alerts from the College, and attending the annual ACS Leadership & Advocacy Summit.
The ACS State Affairs team is available to answer questions and provide background information regarding state issues and policy programs. Numerous state advocacy resources are available on the College’s website, and Fellows may contact us any time at firstname.lastname@example.org or at 202-337-2701.