2021 state legislative session wrap-up: Advancing surgical priorities in a time of uncertainty

The expectation heading into 2021 was that state legislatures would be singularly focused on addressing the coronavirus 2019 (COVID-19) pandemic and state fiscal challenges resulting from an anticipated reduction in tax collections. Instead, the 2021 state legislative year started off with a flurry of bill introductions focused on numerous issues, including the American College of Surgeons’ (ACS) priority issues, such as out-of-network surprise billing, scope of practice, trauma prevention and response, cancer prevention and care, and other insurance and surgical practice-related issues. The ACS tracked more than 1,300 of the more than 117,000 bills introduced in 2021, as the state legislatures were compensating for the COVID-19 disruptions to legislative business in 2020.

Many state legislatures continued to restrict access to state capitol buildings, which began in 2020 and continued into 2021, either closing legislative offices and capitols to the public or limiting access to individuals. These restrictions created new challenges for Fellows and ACS state chapters to engage with legislators. No chapters were able to organize in-person advocacy, such as State Lobby Days, in 2021.

Although virtual meetings filled some of the void created by the restrictions, the loss of being able to drop into a legislator’s office or have impromptu conversations with legislators in between meetings changed the nature of state advocacy. In 2021, Fellows had to lean on personal relationships with legislators and professional associations, as well as send letters and grassroots action alerts, to add the surgeon perspective to proposed legislation.

States respond to COVID-19 pandemic

It is no secret that the COVID-19 pandemic has been tough on everyone, especially ACS Fellows and other frontline physicians and health care workers. Surgeons have faced significant challenges during the major waves of the virus when state governors and health care officials across the country enacted prohibitions on “nonessential elective” operations.

To alleviate some pressures, the College has supported state efforts to enact liability protections for residents and surgeons treating COVID-19 patients, as well as for delayed treatment in response to the pandemic. Nearly every state has enacted some form of liability protection, either through legislation or executive order.

One exception was New York, which reversed course and repealed the previously enacted liability protections passed as part of the state’s fiscal year (FY) 2021 budget in 2020. The legislature repealed the protections in response to the high number of COVID-19 deaths in the state’s nursing homes. Despite appeals from the ACS and the New York chapters, the repeal included the loss of protections for all physicians and is retroactive to the start of the pandemic.

ACS State Affairs also tracked legislation introduced to expand the use of telehealth after the federal and state public health emergencies. More than 225 telehealth-related bills were tracked on issues ranging from payment parity for telehealth with in-office visits, adding audio-only visits to the definition of telehealth, allowing physicians to treat patients across state lines, and expanding the type of practitioners who can use telehealth.

Out-of-network surprise billing

An important legislative priority for the ACS, out-of-network surprise billing, took a different direction in 2021, largely because of the passage of the Federal No Surprises Act at the end of 2020. State legislatures in Arizona, Kansas, Kentucky, Massachusetts, Oklahoma, South Carolina, Tennessee, and West Virginia introduced comprehensive bills, but the legislation stalled due to uncertainty regarding whether the new federal law would preempt state laws. West Virginia approved an amended bill, H.B. 2005, on April 28, which empowers the state Insurance Commissioner to enforce the federal law in the state where applicable. Conversely, Georgia approved H.B. 234 on April 29, which allows federally regulated self-funded plans to opt in to the state’s comprehensive law passed in 2020.

The ACS expects there will be clarity on the federal and state authority on out-of-network surprise billing once the regulations implementing the federal No Surprises Act are finalized. At that point, we anticipate states will introduce legislation to amend or establish new laws for state-funded and regulated health insurance plans to address out-of-network surprise billing.

Advancing a proactive legislative agenda

Although the College continuously monitors and engages on a broad range of health and safety policy issues at the state level, 2021 provided opportunities for the College and ACS chapters to initiate and pass state legislation on prior authorization reform; trauma system development and trauma prevention, including STOP THE BLEED®; and patient access to cancer screening and bariatric surgery.

ACS trauma initiatives advance

Efforts to help the ACS Committee on Trauma (COT) achieve its goal of enacting state legislation and regulations to support the STOP THE BLEED® campaign advanced in 2021, with Tennessee joining Arkansas, Indiana, Georgia, South Carolina, and Texas in adopting statewide policies for STOP THE BLEED® training and installation of bleeding control kits in schools. After three years of proactive advocacy, the Tennessee Chapter successfully secured the legislative support for the STOP THE BLEED® in school legislation, H.B. 102 and S.B. 634, passing the bills with unanimous votes in both legislative chambers. Gov. Bill Lee (R) signed the law May 11.

Legislation in California, S.B. 687, would require the installation of bleeding control kits in public buildings. Amy Liepert, MD, FACS, picked up support from state Sen. Ben Hueso (D-40), who had previously sponsored the law to require the installation of automated external defibrillators in public buildings. At press time, the legislation had advanced out of the California Senate, moving to the Assembly for consideration.

Other state STOP THE BLEED® legislation was introduced but either did not advance or had not yet advanced at press time in Florida, Illinois, Massachusetts, Missouri, New York, and Rhode Island.

The ACS Kansas Chapter and the Kansas Committee on Trauma (KCOT) led efforts to pass legislation, H.B. 2158/S.B. 170, to repeal the sunset provision of the original law establishing the state Advisory Committee on Trauma (ACT). Without the change in law, the ACT would no longer be exempt from the state’s Open Meetings Act, thus requiring the meetings to be open to the public and thereby compromising the ACT’s ability to review sensitive and potentially confidential case details to evaluate and inform the Kansas Trauma Plan to ensure the delivery of quality care. Kimberly Molik, MD, FACS, State Chair of the KCOT, testified in support of the legislation at a hearing of the Kansas House Committee on Financial Institutions and Rural Development February 10. The legislature passed the legislation, and it was signed into law by Governor Laura Kelly (D) on May 21.

The Maryland Chapter joined a coalition effort to oppose S. B. 712, which would repeal the state’s universal helmet law, submitting written testimony to the Maryland Senate Judiciary Proceedings Committee at a hearing on February 23. The legislation did receive a vote in committee but failed to advance further, dying when the Maryland General Assembly adjourned the 2021 session April 12.

In Colorado, Lisa Ferrigno, MD, FACS, State Chair of the Colorado COT, testified April 1 before the Colorado Senate Committee on Judiciary in support of H. B. 1106, legislation that would require the safe storage of firearms, a key recommendation of the ACS Firearm Strategy Team (FAST) Workgroup. Gov. Jared Polis (D) signed the law April 19.

Expanding access to care

Several state legislatures addressed access to care issues, specifically coverage for cancer screenings, bariatric surgery, and reconstructive procedures. State policymakers also sought to provide relief from prior authorization burdens.

Cancer screening

In 2021, the ACS Commission on Cancer Advocacy Committee advanced support for expanding health insurance coverage for cancer screenings, including legislation to lower the age for colorectal cancer colonoscopy screening from 50 to 45 years old with no copay or coinsurance, as well as requiring coverage for diagnostic breast screening with no copay or coinsurance. The ACS and the ACS Massachusetts Chapter sent letters of support for legislation on H. B. 1098 for colorectal screening coverage starting at age 45.

The ACS California Chapters sent a letter of support for a similar bill, A. B. 342. Other states with colorectal screening legislation included Arkansas, New Jersey, New York, Pennsylvania, Rhode Island, and Texas. The states of Arkansas and Rhode Island enacted the legislation. The other bills still are pending in their respective legislatures.

Bariatric surgery

The ACS Connecticut and Louisiana Chapters continued to advocate for expanding insurance coverage for obesity and bariatric surgery this year. The Connecticut Chapter submitted testimony and initiated grassroots advocacy in support of S. B. 1007, and the Louisiana Chapter added its support for S. B. 150 to add bariatric coverage to state employee health plans. Louisiana Lt. Gov. Billy Nungesser (D) spoke March 5 at the chapter’s virtual Advocacy Summit regarding his support of the legislation and the importance of surgeons engaging in the legislative process.

Reconstructive procedures

The New York Chapter advocated for A. B. 1943 and S. B. 24, which would require all private group and individual health plans to cover medically necessary services, including habilitative and reconstructive services as a result of a congenital anomaly. This legislation includes inpatient and outpatient services, adjunctive needs and procedures for secondary conditions, and follow-up treatment. Despite chapter advocacy, including grassroots, the legislation has neither moved nor had a hearing in committee since its introduction in January.

Prior authorization

The ACS supports efforts to reform the health insurance prior authorization process to ensure continuity of care and remove unnecessary burdens or delays in access to care. The ACS Illinois and Metropolitan Chicago Chapters activated grassroots advocacy in support of H. B. 711, legislation that includes such reforms as requiring insurers to post a list of all services requiring prior authorization, setting timelines for insurers to respond to requests, providing continuity of care for patients, and reducing the number of medically necessary services that require prior authorization. At press time, the legislation had passed both chambers of the Illinois General Assembly and is now awaiting action by the governor.

In Texas, the ACS North and South Chapters supported H. B. 3459, which will create a gold standard exemption from an insurer’s preauthorization process if the physician has submitted five or more requests and received approval of more than 80 percent of those requests in the last calendar year. The legislation has initially passed both legislative chambers and is now awaiting action by the governor.

Pushing against bad health legislation

In addition to opposing the repeal of the COVID-19 liability protections in New York mentioned earlier, the ACS and ACS New York and Illinois chapters fought against other adverse health care liability initiatives.

In Illinois, the state trial lawyers association advanced two separate bills to increase the prejudgment interest rates for all claims for damages in personal injury or wrongful death. The first bill, H. B. 3360, caught the medical community off guard when the sponsors amended an unrelated bill during the final hours of the 2019–2020 legislative session and then passed it only four days into January. That bill sat on Gov. J. B. Pritzker’s desk for his action while a new bill, S. B. 72, was introduced in anticipation of the House bill being vetoed, which it was on March 25.

S. B. 72 differed slightly from H. B. 3360, in that it allows interest to accrue between the date a defendant has notice of injury and the time of judgment. It also reduced the prejudgment interest rate in the H.B. 3360 from 9 percent to 6 percent. The Illinois and Metropolitan Chicago Chapters initiated grassroots advocacy to oppose both H.B. 3360 and S.B. 72. Unfortunately, S.B. 72 passed out of the legislature and was signed by the governor May 28.

The ACS New York Chapter opposed a state budget proposal to defund the state’s Excess Medical Malpractice Insurance program, which provides an additional layer of insurance protection ($1–3 million) above the standard primary limits of $1.3–3.9 million. The excess coverage is offered at no additional cost to eligible physicians and dentists. Defunding the program would have shifted the costs to physicians to pay the premiums for the excess liability coverage. The final state budget maintained the full funding for the program.

Also in New York, the chapter opposed A. B. 3470-A and S. B. 2521-A, which would prohibit a physician or other provider with any financial or contractual relationship with a hospital from separately billing a patient. Instead, the hospital would send the patient a comprehensive bill with all charges related to the patient’s care, including surgeons’ charges, even if they are not hospital employees. The legislation raised serious concerns that it would restrict the autonomy of private practice surgeons and complicate their relationship with hospitals and insurers. A. B. 3470-A was reported by the Assembly Health Committee February 9, and by the Codes Committee on March 9, and is awaiting possible action in the Assembly Ways and Means Committee. The Senate version has not moved since introduction.

Nonphysicians push for expanded scope of practice

Scope of practice for nonphysician health care providers attempting to expand their ability to practice medicine and perform surgical procedures continues to be a significant focus of the College’s State Affairs. Complicating the legislative debate on scope-of-practice expansion, the federal and state governments authorized nonphysician providers, such as nurses, to practice with reduced supervision to help increase the availability of health care practitioners to respond to the COVID-19 pandemic.

The College and ACS chapters weighed in with letters and grassroots advocacy on the following state legislative efforts:

  • To expand scope of practice for nonphysicians, such as optometrists, to perform surgical procedures in Florida, New York, Oregon, Texas, and Wyoming
  • To remove physician supervision requirements of nurse anesthetists in Arkansas, Delaware, Illinois, and Missouri; naturopaths to perform surgery in Alaska
  • To remove physician supervision requirements of physician assistants in Florida
  • To expand the ability of podiatrists to perform surgery beyond their training in New York

Advanced practice registered nurses (APRNs) have made significant pushes to gain independent practice with legislation removing physician supervision requirements during the pandemic. In 2020, California and Florida enacted independent practice bills despite efforts by the physician community, including ACS state chapters, to oppose the legislation. The College and ACS chapters have joined with state medical societies to oppose similar legislative efforts by APRNs in Delaware, Louisiana, New York, Tennessee, and Texas. In Missouri, nurses worked to defeat legislation S. B. 337 to establish a definition of surgery in state statute, an ACS state legislative priority.

2022 state advocacy starts now

Even though a handful of states have yet to conclude their 2021 sessions, planning for the 2022 state legislative sessions begins now. This article is a guide to the health care legislative trends happening in the states and how the College and ACS chapters are working to advocate on those issues. ACS Fellows and members are encouraged to work with their local and state chapters to help identify the challenges surgeons face in everyday practice and the hurdles patients face to receive quality surgical care so that we can work to develop and advance good public policies. In addition, ACS Fellows and members are encouraged to meet with their state legislators while the legislatures are out of session to cultivate relationships and to help advance our advocacy goals.

The ACS State Affairs team is always 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 state_affairs@facs.org or at 202-337-2701.

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