STATE LEGISLATIVE UPDATE

As of the end of the month, the following state legislatures were in regular session, recess, or special session: CA, DC, DE, IL, MI, NH, NJ, NY, OK, PA, and WI. Through September 1st, there have been 156,820 new bills introduced in the states and 37,489 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 contact Bruce Allain at allain@aaos.org (or at 847-384-4336).

TORT REFORM

Once again, tort reform dominates 2005 state legislative news. First, tort reform has finally become law in Illinois. The bill (IL S 475), which was originally passed by the state’s legislature in May, was signed into law by Governor Rod Blagojevich on August 25th. The new law caps non-economic damages at $500,000 for physicians, and at $1 million for hospitals. The law also gives the state new powers to regulate malpractice rates, protects physicians who make certain statements of sympathy, creates new expert witness standards, and makes information on disciplinary actions and judgments against physicians available to the public. Caps have been struck down as unconstitutional twice before by the Illinois State Supreme Court, but backers are hopeful that this version will stand up.

Tort reform measures passed three years ago in Pennsylvania are paying off, according to the results of a just released study. These measures have resulted in a five to eight percent reduction in Pennsylvania’s medical malpractice costs. In Philadelphia County, for example, there were 559 medical malpractice filings last year, compared to 1,365 filings in 2002. Although Pennsylvania’s state constitution prohibits caps on non-economic damages, the state was able to pass reforms that banned venue shopping, required a certificate of merit, and reduced the mandatory coverage limit from $1.2 million to $1 million. Points that can be noted from this include that meaningful tort reform means more than just caps, and that even in states where caps cannot be passed, there still should be hope for reform.

In light of the Wisconsin’s recent Supreme Court decision overturning malpractice caps, a new survey shows that more that seventy five percent of those responding would be in support of creating a law to reinstate the limit on medical malpractice awards. The participants cited concerns with rising health care costs, physician flight, and access to obstetrics as key reasons for the support. Although only nine jury verdicts exceeded the cap between 1995 and 2005, the cap is still valuable in setting settlement amounts.

South Carolina recently passed medical malpractice caps, but the state may be looking to make further reforms to the tort system. A state Senate subcommittee is currently considering the value of expression of sympathy legislation, which allows physicians to apologize to patients (and their families) without those statements later being used against the physician in court. While non-economic caps have been effective in dealing with malpractice cases that go through the system, “I’m sorry” laws seem to be an effective way to reduce the number of cases that get filed at all.

PHYSICIAN REIMBURSEMENT

This month, health care providers told Colorado’s legislators that the change from a no-fault system of automobile insurance to a tort system has placed the state’s trauma care system on the verge of a major crisis. As a result of the new system, enacted by lawmakers in 2003, many drivers are not covered for trauma services when a serious accident occurs. In New York, a bill (NY A 8376) has passed that allows for the creation of new standards and procedures for investigating and removing authorization of certain health care providers to receive payment for services rendered under no-fault insurance.

In response to the recently passed any-willing-provider law in Arkansas, that state’s largest insurer has announced that it will cut reimbursements by 10% for doctors treating patients in some plans. The insurer (Arkansas Blue Cross and Blue Shield) is predicting that costs will rise, and is preemptively making the cuts.

ALLIED HEALTHCARE

Although many states have seen legislative battles over the scope of practice for podiatrists, Texas podiatrists may have found a way to expand their scope without going to the legislature. Although Texas law limits podiatrists to treating the foot, in 2001, the Texas State Board of Podiatric Medical Examiners issued a rule changing the definition of foot to include the ankle. On August 23rd, a district court judge ruled that the board did not overstep its authority in changing this definition. This means although there has been no new legislation to expand scope, podiatrists will be able to legally perform ankle surgery.

The North Carolina General Assembly has approved a measure that will lower insurance co-pays for chiropractic treatment. The provision was passed as part of the state’s budget, and will require insurance companies to charge the same co-pay amounts for chiropractic treatments as they do for visits to primary care physicians. Previously, insurers treated chiropractors as specialists, meaning that co-pays were higher. Since chiropractors typically treat patients over the course of several visits, each visit requires a separate co-pay. One local chiropractor said that the new measure could help him increase business by twenty-five percent.

MISCELLANEOUS

Illinois has recently passed a law (IL S 538) that will require the suspension of the license of a physician who has not paid restitution for financial loss sustained as a result of medical assistance insurance fraud or vendor fraud. This month, Oregon has a new law (OR S 311) that imposes a moratorium on the enactment of health insurance mandates. In New York , Governor Pataki vetoed a bill (NY S 4855) that would have allowed physicians to submit certified copies of health records in response to a subpoena, instead of having to appear in court to authenticate the records.