STATE LEGISLATIVE UPDATE

MAY 2003 STATE LEGISLATIVE UPDATE

As May came to its end President Bush and the nation's Governors continued to negotiate over a plan to fix Medicaid. The President's proposal allows states flexibility and caps federal expenditures through the use of block grants to fund state spending. Medicaid is expected to cost $277 billion this year with $119 billion coming from state budgets. Also, part of the tax cut package that was signed into law in May provides $10 billion to the states for Medicaid which will help the states fight their budget crises.

As of the end of the month, the following state legislatures were in regular session or in recess: AL, AZ, CA, CT, DE, IL, LA, MA, ME, MI, NC, NH, NV, NY, OH, OR, PA, RI, SC, TX, and WI. The legislatures in AK, CO, FL, HI, IA, ID, KS, MN, MO, NE, OK, TN and VT adjourned in May. Through May there have been 157,767 new bills introduced in the states and 24,975 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

Legislation was introduced in Delaware to establish a $250,000 cap on non-economic damages. The bill also eliminates joint and several liability, requires an affidavit of merit, and requires expert witnesses to have the same Board-certification as the defendant.

A Joint Resolution passed in Texas placing before the voters on September 13, 2003 a constitutional amendment to allow the legislature to pass a cap on non-economic damages. The amendment would allow the legislature to enact caps this session which is what they did on June 2nd. The bill that passed places a $250,000 cap on physicians, a $250,000 cap on a hospital and another $250,000 cap if a second facility is named, for a total possible cap of $750,000. The bill also includes periodic payment provisions, lowers the rate of interest that must be paid, establishes a 10-year statute of repose, reforms expert witness rules and loosens the law on volunteer and emergency care immunity.

In Nebraska the existing cap on all damages was raised from $1,250,000 to $1,750,000. A bill to place a referendum on the Nevada ballot opposite the doctors' referendum failed in the Senate. The public will vote next year on language to tighten the cap on damages that passed last year. The Assembly wanted the public to also vote on the exact language that passed.

Governor Bush in Florida called a special session for the middle of June to deal with the medical liability insurance crisis. The Governor has stood strong in his desire for a $250,000 cap and the staunch opposition to caps from the Senate may be weakening. Legislation is on the Governor's desk in Missouri. The bill would allow physician liens, tighten venue rules, require cases to be mediated, provide immunity for statements of apology and grief, and lower the cap on non-economic damages to $350,000, but keep it indexed to inflation.

Legislation passed both houses in Oklahoma and requires evidence of collateral sources of recovery to be heard, the filing of an affidavit of merit and creates a $300,000 cap on non-economic damages in OB cases and cases arising from "Emergency care in the emergency room of a hospital or as follow-up to the emergency care services provided in the emergency room." A bill has passed both Houses in Oregon to provide that any expression of regret or apology does not constitute an admission of liability for any purpose.

SCOPE OF PRACTICE

A PT direct access bill passed the House in Louisiana. The bill allows PTs to treat without a physician referral if the patient has been diagnosed by a MD within the last ninety days and the PT informs the physician of the treatment and gets their approval of a treatment plan within fifteen days from initiation of treatment. The bill also includes language providing immunity to the physician who gave the initial diagnosis for injuries occurring thereafter.

A PT direct access bill was introduced in Michigan. A PT direct access bill passed the Assembly in New York. Under the bill the PT must practice for three years before they can treat without a referral and can treat for thirty days or ten visits whichever comes first.

A bill is on the Governor's desk in Missouri to require insurers to cover chiropractic care up to 26 visits per year. A bill passed both Houses in Oregon to allow naturopaths to perform school athletic physicals. The Tennessee Governor signed legislation to expand the scope of practice of chiropractors beyond the spine. The bill also eliminates the current restriction on invasive diagnostic tests and use of needles.

PROMPT PAYMENT

A prompt pay bill passed the House in Alabama. The bill limits the ability of insurers to recoup alleged overpayment to one-year from when the claim was paid. A bill is awaiting action by the Governor in Colorado to allow the Insurance Commissioner the authority to enforce the prompt pay laws.

The Governor in Maine signed a prompt pay bill that defines a clean claim. It also limits recoupment to eighteen months after payment. The prompt pay bill passed both Houses in Texas. The time frame under the bill is thirty days for electronic claims and forty-five days for paper. The bill allows the state by rule to determine what fields on the 1500 form must be filled out for the claim to be clean.

WORKERS COMPENSATION

A bill has passed the Assembly in California to add "outpatient goods and services" to the list of services covered by the workers compensation self-referral ban. A bill passed the Senate in California to limit workers compensation fees to 120% of Medicare. A bill passed the legislature during special session in Florida raising the reimbursement for surgical procedures to 140% of Medicare and other physician fees to 110% of Medicare. The bill also limits the amount of contingency fees an attorney can charge.