STATE LEGISLATIVE UPDATE

JANUARY 2003 STATE LEGISLATIVE UPDATE

The new year dawned and state legislators were sworn in. They immediately began to try and figure out how to address the huge gaping budget deficits facing most states.

As of the end of the month, the following state legislatures were in regular session: AK, AR, AZ, CA, CO, CT, DE, GA, HI, IA, ID, IL, IN, KS, MA, MD, ME, MI, MN, MO, MS, MT, ND, NE, NH, NJ, NM, NY, OH, OR, PA, RI, SC, SD, TX, UT, VA, VT, WA, WV, and WY. KY, TN, and WI were in recess. Through January there have been 44,222 new bills introduced in the states and 3,010 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.

SCOPE OF PRACTICE

Scope of practice expansion bills continue to be popular in the states. In January the physical therapists were busy introducing direct access legislation in Connecticut, Indiana, New York and Wyoming. Legislation introduced in California and Washington would expand the scope of practice of physical therapists.

The PT direct access bill in New Jersey passed both Houses and awaits action by the Governor. The bill requires physical therapists to immediately refer an "individual to a health care professional if the physical therapist has reasonable cause to believe that physical therapy is contraindicated or symptoms or conditions are present, including, but not limited to, nonmuscular and nonskeletal symptoms or conditions and conditions of the central nervous system, that require services outside the scope of a physical therapist's practice." PT services without a physician referral are not reimbursable under the state's auto insurance PIP coverage.

The bill also requires that the Board of Physical Therapy Examiners pass a rule, in collaboration with the State Board of Medical Examiners, outlining when a PT must refer a patient. Until that time: "(a) a physical therapist shall refer any individual who has failed to demonstrate reasonable progress within 30 days of the date of initial treatment to a licensed health care professional; and (b) a physical therapist, not more than 30 days from the date of initial treatment of functional limitation or pain, shall consult with the individual's health care professional as to the appropriateness of the treatment, or, [if the patient has no doctor] recommend that the individual consult with a licensed health care professional of the individual's choice."

A bill was introduced in Indiana to require county hospitals to afford privileges to chiropractors and podiatrists. Bills to expand the podiatric scope of practice were introduced in Massachusetts and Mississippi.

TORT REFORM

A tort reform bill passed the West Virginia House after the previously anti-tort reform Governor endorsed the physicians' agenda in his state of the state speech. The bill allows physicians to take income tax credits for insurance premiums. It strengthens the collateral source and certificate of merit provisions of existing law. It also eliminates joint and several liability. It places a total cap of $500,000 on damages in trauma cases and reduces the cap on non-economic damages from $1,000,000 to $250,000.

Bills to enact or tighten caps on non-economic damages have been introduced in: Arkansas, Connecticut, Hawaii, Minnesota, Missouri, Mississippi, New Jersey, New York, Oklahoma, and South Carolina. The following states have introduced legislation to amend their constitutions to allow caps on non-economic damages: Kentucky, Pennsylvania, Washington and Wyoming.

JOINT NEGOTIATION

Bills to allow physicians to jointly negotiate with health care plans continue to be a high priority for physicians at the state level. While the effectiveness of existing joint negotiation laws is in doubt the medical community is still attracted to the idea. In January joint negotiation bills were introduced in: Connecticut, Massachusetts, New York and Pennsylvania.

PROMPT PAYMENT

Prompt pay bills are less popular this year as tort reform has become the number one legislative priority. Nebraska is considering a bill to enact a prompt pay system. They are one of four states that currently do not have a prompt pay law. Clean claims would have to be paid within 30 days. Late payment must include interest at the rate of 12% and payment after 90 days must include 10% fine.

Connecticut, Massachusetts, Mississippi, and Montana are considering bills to amend their prompt pay laws.

PRACTICE MANAGEMENT

Legislation to help the physician in their relationship with private payers will increase in popularity as reimbursements tighten. Legislation to require payers to provide a copy of their fee schedule was introduced in: Connecticut and Massachusetts. Other states, such as Indiana and Missouri, are considering bills that forbid insurers from changing the codes that physicians submit.

PATIENT PROTECTIONS

The United States Supreme Court heard arguments in January in a case to determine if the Kentucky "any willing provider" law violates the Employee Retirement Income Security Act (ERISA). "Any willing provider" laws require HMOs to contract with any provider that agrees to meet the terms of the HMO's contract. The U.S. Supreme Court has decided a series of cases over the past several terms that have expanded the states' ability to regulate insurers under ERISA. Florida and Tennessee are considering "any willing provider" legislation this session.

Patient protection legislation is still alive in the states. A bill in Arkansas would prohibit gag clauses by HMOs. Other states such as Connecticut, Kentucky, Minnesota, North Dakota and Utah are considering laws to enact or tighten the external review system.