STATE LEGISLATIVE UPDATE

FEBRUARY 2003 STATE LEGISLATIVE UPDATE

In February the nation's Governors met in Washington to discuss the state of the states. One of their top concerns was the Medicaid system, which insures 44 million Americans. Currently, the federal government annually provides $216 billion to the states to help with Medicaid. Under President Bush's proposed reforms the federal government would increase that amount by $3.25 billion in fiscal year 2004. The reform plan would also provide more flexibility to the states and provide the money to the states in block grants. Reaction by the Governors was mixed.

As of the end of the month, the following state legislatures were in regular session or in recess: AK, AR, AZ, CA, CO, CT, DE, GA, HI, IL, IA, ID, IN, KS, KY, MA, MD, ME, MI, MN, MO, MS, MT, NC, ND, NE, NH, NJ, NM, NV, NY, OH, OR, OK, PA, RI, SC, SD, TN, TX, UT, VT, WA, WI, WV, and WY. The legislature in VA adjourned in February. Through February there have been 94,561 new bills introduced in the states and 5,403 have become law.

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

TORT REFORM

A bill in Kentucky to amend the constitution to allow the General Assembly to cap non-economic damages failed in a floor vote when no Democrats supported it. The bill received only 21 of the 23 needed votes. The bill may get another chance this session.

Physicians held massive rallies in February in New Jersey and Illinois to protest rising medical liability insurance premiums. The special task force Governor Bush formed in Florida came out with sixty proposals for dealing with the crisis. However, the Task Force agreed that the one key change needed was creation of a $250,000 cap on non-economic damages.

Also in February, Tillinghast-Towers Perrin released a study on the costs to the economy from our tort system. In 2001 the cost of the tort system grew by 14.3% to $205 billion, the largest increase since 1986. According to the study the tort system is highly inefficient, returning less than 50 cents on the dollar to plaintiffs and only 22 cents on the dollar for economic damages. The total cost of the medical liability tort system in 2001 was $21,025,033,000. In a Gallup poll released in February 72% of respondents favor capping damages for pain and suffering.

A bill limiting attorney fees, allowing collateral source evidence and periodic payments failed in the North Dakota House by a vote of 14-73. A bill was introduced in Oregon to allow physicians to refuse treatment to a patient if they do not sign a contract voluntarily capping non-economic damages at $300,000.

A bill to provide immunity for actions of on call doctors died in Virginia. A bill passed the House in Missouri that would lower the cap on non-economic damages to $350,000 and limit attorneys fees. A tort reform bill that caps punitive damages and eliminates joint and several liability passed the House in Arkansas and sits stuck in committee in the Senate. A bill to overturn the $500,000 cap enacted last year and replace it with a $250,000 cap passed the Senate in Mississippi.

Legislation to cap non-economic damages was introduced in Connecticut, Florida, Maine, Oklahoma, Pennsylvania, Texas, Vermont and Washington. Legislation to cap punitive damages was introduced in Iowa. Legislation to end the cap on non-economic damages in wrongful death cases was introduced in Kansas. A bill to cap damages in emergency care was introduced in Montana and then amended to deal only with expert witness reform. An exact duplicate of MICRA was introduced in Tennessee.

SCOPE OF PRACTICE

A bill was introduced in February in California to repeal the prohibition on podiatrists performing amputations. The bill would also allow podiatrists to "treat ulcers or wounds of the lower leg that are related to a condition on the foot or ankle" and allow podiatrists to be assistant surgeons for MDs or DOs for procedures beyond the scope of practice of podiatry. The bill to expand the scope of practice of podiatry to the ankle in Mississippi failed this month.

Legislation in Hawaii to expand the chiropractic scope of practice beyond the spine, similar to the bill that was vetoed last year, has been introduced. A bill to expand the scope of chiropractic to include the treatment of "diseases" as a "primary care provider" was introduced in Missouri. Scope expansion legislation was also introduced in New Mexico. Legislation to mandate equivalent reimbursement between chiropractors and physicians was introduced in New York.

Direct access to physical therapist legislation was introduced in Illinois, Michigan, New York, and Ohio. Direct access legislation passed the House in Indiana and moves to the Senate. Direct access legislation passed both houses in Wyoming. As amended--after lobbying by the medical community--the bill allows PTs with a Master's Degree (or a Bachelor's Degree and five years clinical experience) to treat without a referral. The patient must be referred to a physician after thirty days or twelve visits whichever is earlier. Prior to treatment the patient must be presented with information on the PT's education and a statement informing them that insurance may not pay for these services without a physician referral.

A bill in Oregon would allow Naturopaths to perform high school sports physicals.

OSTEOPOROSIS

Bills mandating that insurance policies cover osteoporosis testing and treatment can be a white hat issue to take to the legislature. So far this year the following states are considering such legislation: Illinois, Indiana, Massachusetts, and West Virginia.

INSURER LIABILITY

Providing enrollees the right to sue their HMOs for treatment delays and denials is a little less popular this year. So far in 2003 only Connecticut, Illinois, Indiana, Massachusetts, Michigan, Minnesota, New York, South Dakota and Tennessee are considering right to sue bills.