STATE LEGISLATIVE UPDATE

FEBRUARY 2004 STATE LEGISLATIVE UPDATE

February saw legislative battles over medical liability reform heat up and the heat will continue into March.

As of the end of the month, the following state legislatures were in regular session: AK, AL, AZ, CA, CO, CT, DE, GA, HI, IA, ID, IL, IN, KS, KY, MA, MD, MI, MN, MO, MS, NE, NH, NJ, NY, OH, OK, PA, RI, SC, SD, TN, UT, VA, VT, WA, WI, WV, and WY. In February the legislature in NM adjourned. Through February there have been 241,294 bills introduced in the states since the beginning of 2003 and 45,378 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 Alaska to lower the existing two-tier $400,000/$1,000,000 cap to $250,000. There are currently only two insurers writing policies in the state. A bill in Colorado that would have doubled the current cap of $1,000,000 on all damages, both economic and non-economic, was amended to strike that section. As amended a judge can override the cap if past economic damages are greater than $1,000,000 and if applying the cap would be unfair.

In Kentucky the House Democrats introduced and passed a bill on tort reform that does not include a constitutional amendment to allow the legislature to pass a cap on non-economic damages. The bill would create a state-run medical liability insurer and would institute pre-trial review panels. A poll by a Louisville newspaper found that 68% of people support!capping non-economic damages.

A medical liability reform law passed out of committee in the Missouri House. Legislation passed the Mississippi Senate that lowers the cap on non-economic damages to $250,000. The bill faces very tough going in the House. The bill also includes venue reform and provides for a medical review panel. Legislation passed both houses in Ohio to allow the state to create a medical liability insurer if the commercial market is not covering a substantial number of physicians. A bill was passed out of committee in the Pennsylvania Senate that will be amended on the Senate floor to be a constitutional amendment to allow caps in the state.

The division between the House and Senate in Washington from last year has not improved. The House passed legislation without a cap that limits the number of expert witnesses and reforms the statute of limitations. The Senate passed a bill with a $350,000 cap on non-economic damages and many other reforms. A bill passed out of committee in West Virginia that would roll back premiums by 30% on medical liability insurance.

Bills to amend the Wyoming constitution to allow the legislature to enact a cap on non-economic damages received a majority of votes in both the House and Senate, but failed to receive the needed 2/3rd majority in either house required for constitutional amendments. A bill did pass to forward to the citizens a constitutional amendment to require that all cases go through a medical review panel before they go to court.

Physicians in New Jersey lobbied the state medical board asking that the mandatory coverage level be reduced from $1,000,000/$3,000,000. Doctors in South Carolina rallied at the statehouse to have the Senate lower and tighten the caps that passed the House in January. Doctors also rallied in Georgia armed with a recent poll showing that 57% of respondents support!a $250,000 cap.

PROMPT PAYMENT

The New York State Insurance Department revealed that it had fined 30 payers under the Prompt Pay Act a total of $418,120 for the two-year period ending December 2002. Legislation has passed the House in Maryland to replace the word "pay" in the prompt pay law with "mail or otherwise transmit payment for." The rationale for the change is that "some carriers have written checks for reimbursement to health care providers, but have neglected to actually mail or transmit them to providers within the 30-day time frame. For internal accounting purposes these claims have been paid within 30 days; however, health care providers have not received actual payments in a timely manner." Legislation to create a prompt pay law in Nebraska was indefinitely postponed in committee.

SCOPE OF PRACTICE

Legislation passed the Senate in Indiana to allow physical therapists to treat some patients without a current referral. Under the bill PTs may treat patients who have been referred to a PT within the past year for the same condition, provided that the PT contact the patient's physician within three days of commencing treatment. Also, a PT with one-year clinical experience can evaluate patients, but must obtain a referral before he or she can start treatment.

Legislation to allow PTs direct access was signed by the Governor in Ohio. The law allows PTs with a Masters or Doctorate degree and two years of clinical experience to treat without a referral. The PT must inform the physician within five days of the PT's evaluation. If the PT determines that no substantial progress has been made during the initial thirty-day treatment period the PT shall consult with or refer the patient to a physician unless the patient previously was diagnosed with chronic, neuromuscular, or developmental conditions and the treatment is being provided for problems or symptoms associated with the previously diagnosed conditions.

Legislation passed the Idaho Senate on March 1 to delete statutory language that requires a patient admitted to an Idaho hospital on the recommendation of a podiatrist to have their required history and physical performed by a physician. If this bill passes podiatrists could perform patient histories and physicals.

PATIENT SAFETY

A patient safety act passed the Senate in New Jersey. The bill requires facilities to report!serious errors to the state. Serious errors are those that result in death, loss of body part or a disability that lasts more than seven days. Near misses can be anonymously reported as well. All information provided will not be able to be discovered in legal proceedings.