STATE LEGISLATIVE UPDATE

JANUARY 2002 STATE LEGISLATIVE UPDATE

In 2002 forty-four states hold regular legislative sessions. Only Arkansas, Montana, Nevada, North Dakota, Oregon and Texas do not meet this year. Though other states like Oregon and Nevada may have to hold a special session to deal with budget and other issues.

As of the end of the month, the following state legislatures were in regular session: AK, AL, AZ, CA, CO, DE, FL, GA, HI, IA, ID, IL, IN, KS, KY, MA, MD, ME, MI, MN, MO, MS, NE, NH, NJ, NM, NY, OH, PA, RI, SC, SD, TN, UT, VA, VT, WA, WI, and WV. Through January there have been 30,413 new bills introduced in the states (this does not include carry-over bills from last year) and 1,117 have become law.

Some of the bills the Department of Health Policy is tracking are outlined below. If you have any questions please give Jay Fisher a call at 800-346-2267, x4336.

JOINT NEGOTIATION

I was too pessimistic last month when I noted that the joint negotiation bill had died in New Jersey. I should have said that it had not yet passed the Senate because on January 8th, the last day of the 2001 session the bill passed and was signed into law by lame duck Governor DiFrancesco. New Jersey becomes the third state after Texas and Washington to provide physicians an exemption to the federal antitrust laws allowing joint negotiations.

The New Jersey bill allows physicians to jointly negotiate over non-payment issues. The bill does not force plans to participate in any negotiations, though. If the Attorney General finds that a plan has "substantial market power" then physicians can bargain over reimbursement terms. The track record of these laws in Washington and Texas has been poor because plans do not want to sit down and negotiate with jointly aligned physicians and are not required to.

In January joint negotiation bills were introduced in Arizona, Rhode Island, Washington and Washington, DC. The bill in Washington would expand the existing joint negotiation power to include negotiations over fees and would impose a duty on the parties to negotiate in good faith.

PATIENT PROTECTIONS

In January the U.S. Supreme Court heard oral arguments in the case of Rush Prudential HMO, Inc. v. Moran, dealing with the preemption of state external review laws by ERISA. The lower court held that the Illinois external review law was not preempted by ERISA which is in conflict with a Fifth Circuit case that held that Texas's law was preempted. In addition to the Supreme Court's decision the other wild card in the future of state external review laws is a federal patients' bill of rights. If a bill is passed it could preempt all state external review laws or only those that provide less protection than the federal law.

PROMPT PAYMENT

Prompt pay legislation was introduced in January in the following states: Colorado, Florida, Hawaii, Indiana, Maryland, Mississippi, Nebraska, New Jersey, Virginia, and Wisconsin. Some of these bills are traditional prompt pay bills such as in Colorado where the bill requires the government to create uniform claims forms, requires acknowledgement of a claim within two days and reduces the time required to pay a claim to 63 days for electronic claims and 78 days for paper claims.

Other bills deal with such issues as the time that insurers can recoup alleged overpayments from providers and requiring plans to provide physicians with their fee schedules.

TORT REFORM

The issue of tort reform is being spurred on by the large rise in malpractice insurance premiums in several states. In Mississippi, for instance, twenty different tort reform bills affecting medical malpractice were introduced in January.

Good bills were introduced as well in Colorado, Kentucky, Minnesota, Pennsylvania and West Virginia. The House of Representatives in Pennsylvania passed a bill capping non-economic damages at $250,000, allowing periodic payments of damages, and lowering the required level of coverage for doctors. The bill in Colorado would cap attorney's contingency fees at 20% of any settlement or award. Additionally, past, present and future medical expenses are immune from attorney's fees (that is the intention of the drafters, but the actual language of the bill is open to other interpretations).

Bad bills were introduced in Arizona, California, Florida, Kentucky, and New Jersey. These bills either extend the statute of limitations, such as in California, or expand who may recover and what plaintiffs may recover in wrongful death cases.

SCOPE OF PRACTICE

Legislation to require coverage of chiropractic care was introduced in Hawaii and Missouri. Legislation to increase chiropractic access to hospitals and diagnostic exams was introduced in Illinois and Iowa. Legislation to rewrite the scope of practice of chiropractors was introduced in Hawaii, Missouri, Tennessee and Washington. The bill in Tennessee expands the scope of chiropractors from the spine to all parts of the body. It also deletes current restrictions on chiropractors performing "invasive diagnostic tests or analysis of bodily fluids."

The podiatrists in Tennessee want to be able to "perform pre-surgical health and physical examinations of patients." The bill that died last session in New Jersey to expand the podiatrists' scope of practice to include the ankle was reintroduced in the new session in January.

Legislation to allow direct access to physical therapists was introduced in Indiana. The direct access bill in Pennsylvania passed the House and now goes to the Senate for concurrence. A bill was introduced in Washington rewriting the PT scope of practice. It deletes the prohibition on PTs from using roentgen rays and radium for diagnostic purposes and the use of electricity for surgical purposes. The already broad direct access law in Washington would be expanded.

Lastly, a bill in Washington would allow high school athletic physicals to be performed by naturopathic physicians or other health care practitioners.