STATE LEGISLATIVE UPDATE

JANUARY 2004 STATE LEGISLATIVE UPDATE

2004 will be another busy year in the state legislatures. All states will meet in regular session except Arkansas, Montana, North Dakota, Nevada, Oregon and Texas. This will be an important year for medical liability reform as physicians continue to advocate for caps.

As of the end of the month, the following state legislatures were in regular session: AK, AZ, CA, CO, DE, GA, HI, IA, ID, IL, IN, KS, KY, MA, MD, ME, MI, 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 206,646 bills introduced in the states since the beginning of 2003 and 43,397 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

Doctors in Maryland rallied in Annapolis for tort reform. Governor Ehrlich responded by mentioning the crisis in his state of the state speech and by introducing legislation to lower the cap on non-economic damages to $500,000. Physicians in Washington launched a radio campaign to push recalcitrant Representatives to support a cap on non-economic damages. Doctors in Wyoming also held rallies for reform in January.

The Kentucky Senate passed a bill to amend the constitution to allow the legislature to cap non-economic damages. The bill passed by one vote after falling two votes short last year. One Democrat joined with all Republicans to support S.B. 1. The South Carolina House passed a bill that creates a $300,000 cap on pain and suffering damages (not all non-economic damages) for each plaintiff, creates a pre-trial claims panel and eliminates joint and several liability.

About 600 doctors packed a room in St. Louis, Missouri to learn how to work for reform. The physicians heard from the gubernatorial candidates who all pledged their support for reform. A bill in Colorado would more than double the cap on all damages in medical liability cases. Bills were introduced in New Hampshire to create screening panels, create a $250,000 cap and limit attorneys' fees. A study published in Health Affairs found that medical liability insurance premiums in states with caps were 17.1% lower than in states without a cap.

Spurred by a 40% increase over the last two years, physicians in Hawaii are pushing legislation to create a $500,000 cap on all non-economic damages and reform joint and several liability. Reform legislation sponsored by orthopaedic surgeon Tom Price in the Georgia Senate was moved to the unfriendly Judiciary Committee where a different reform bill was gutted last year. A bill was introduced in Mississippi to lower the cap on non-economic damages to $250,000. Democrats in New Jersey, now in control of both houses, promise to pass legislation addressing the medical liability crisis. The bill that passes, however, will most likely not include a cap on damages, but instead will create a subsidy program for physicians to help defray the high cost of insurance. South Dakota legislation to lower the cap on non-economic damages from $500,000 to $250,000 failed in committee.

PROMPT PAYMENT

Prompt payment legislation continues to be a priority for the medical community. This month prompt pay legislation was introduced in Maryland, New Jersey, Oklahoma, South Carolina and Tennessee. The New Jersey bill forbids payers from altering the diagnostic codes on claims and allows civil fines for violations of the prompt payment law.

South Carolina is one of only three states without some form of prompt payment law. There were three bills introduced this month. The bills all differ slightly. Two require that payment be made on paper claims within 45 days and on electronic claims within 30 days. The other requires all claims be paid within 45 days.

SCOPE OF PRACTICE

The issues surrounding appropriate scopes of practice never go away. The physical therapists have introduced legislation to allow direct access without a physician referral in Illinois and Indiana. Legislation held over from last year will be moving in New York.

A compromise podiatric scope bill passed the Assembly in California. Existing law prohibits podiatrists from performing any amputations. The bill would allow "a partial amputation of the foot no further proximal than the Chopart's joint." The bill would also allow a podiatrist to "perform services under the direct supervision of a physician and surgeon, as an assistant at surgery, in surgical procedures that are otherwise beyond the scope of practice of a doctor of podiatric medicine." A bill was introduced in New Jersey to expand podiatric scope to the ankle. A bill passed the Assembly in Virginia to allow podiatrists to perform amputations proximal to the metatarsal-phalangeal joints. A bill was introduced in Tennessee to weaken the educational requirements that a podiatrist must obtain in order to perform ankle surgery.

PHYSICIAN OWNERSHIP OF HEALTH CARE FACILITIES

The federal 18-month moratorium on new specialty hospitals has not diminished the attempts of state hospital associations to go after specialty hospitals. In January a bill was introduced in Colorado that would ban all referrals to specialty hospitals if the referring physician has a financial interest in the hospital. Bills were introduced in Indiana to require CONs for all new hospitals and ASCs and to institute a two-year moratorium on construction of hospitals and ASCs. A bill was introduced in Mississippi to prohibit construction or expansion of certain specialized hospital programs including "spine institutes."

PRACTICE MANAGEMENT

After last year's U.S. Supreme Court ruling that state "any willing provider" laws do not violate ERISA many states are considering "any willing provider" bills. Among the states considering these bills are: Hawaii, Mississippi, Missouri, New Jersey, and Vermont. Another popular topic for legislation is requiring insurers to provide their fee schedule to providers and also requiring notification when changes are made to the schedule. Florida, Missouri, South Carolina, and Tennessee introduced legislation on this topic in January.