STATE LEGISLATIVE UPDATE

Tort reform issues continue to dominate state legislative news. Unlike most months this year, in which we have seen a number of new caps, this month the big news is bad news from Wisconsin.

As of the end of the month, the following state legislatures were in regular session or in recess: CA, DC, IL, MA, MI, NC, NH, NJ, NY, OH, OR, PA, and WI. Through July 28th, there have been 155,362 new bills introduced in the states and 35,868 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

The biggest news of the month came from Wisconsin, where that state’s Supreme Court ruled that their cap on noneconomic damages for medical malpractice awards was unconstitutional. In a 4-3 split decision, the court ruled that the cap violated the state constitution’s equal protection guarantees and that the Legislature’s rationale for implementing the caps was too broad and speculative.

Better news from Connecticut, where a malpractice reform bill has become law. While not including a cap, the bill does have a number of other provisions affecting litigation and insurance regulation, including a requirement for courts to automatically review noneconomic damage awards of over $1 million.

Tort reform bills introduced in July include a Delaware bill that would change the evidence admissibility requirements for an affidavit of merit by an expert medical witness. New Jersey is now considering a bill to tighten the rules on who can testify as an expert witness in medical malpractice actions. Legislation currently being considered in Pennsylvania would propose an amendment to the state’s constitution allowing the General Assembly to pass laws that cap noneconomic and punitive damages in medical professional liability actions.

MALPRACTICE REVIEW AND REPORTING

Alabama has just passed a bill, which, among other things, requires the state Board of Medical Examiners to review the record of a physician who has two or more final judgments or settlements within the preceding three-year period or a total of three or more malpractice judgments or settlements. The law also authorizes the board to be able to order that a physician complete a course of continuing education. Delaware has a new law that requires medical malpractice insurers to report claims paid to the state.

INSURANCE AND PAYMENT ISSUES

Two bills relating to payment issues have become law in Rhode Island. One bill mandates the development of a method for health plans to disclose fee schedules used to provide payment, and a standardized provider application and credentials verification process. The bill also mandates a new a uniform health plan claim form to be utilized by participating providers, contractual disclosure of the mechanisms for resolving health plan/provider disputes, and development of a uniform process for confirming in real time patient insurance enrollment status, benefits coverage, including co-pays and deductibles. The other Rhode Island bill passed on this issue allows health care practitioners to negotiate jointly with health care insurers.

Other bills introduced this month on the topic include one in Illinois that provides that a health care provider that submits a completed standardized claim form to an insurer shall be deemed to have submitted a complete claim and that an insurer cannot request additional information from a provider submitting a completed standardized claim form more than once for that claim.

New Jersey has had a bill introduced that requires insurers to provide to physicians with fee schedules for services, and allows patients or physicians to sue insurers, either to force them to comply with regulations, or to assess civil penalties for violations. Also in New Jersey, legislation was introduced that would establish new health care claims payment and appeals processes.

A new law being proposed in Pennsylvania would, if passed, allow insurers to deny payments retroactively up to twelve months after the payment was made to the physician.

MISCELLANEOUS

Rhode Island has made changes to its law relating to magnetic resonance imaging use. Sections of the law that required American College of Radiology accreditation for operation or payment have been amended to now also allow for accreditation by any other nationally recognized accrediting body.

In Connecticut, new legislation regarding the scope of practice for Podiatrists has been passed. The new law sets up a committee to examine expanding podiatry to include diagnosis and treatment of ailments of the ankle. A recently passed bill in Missouri increases the amount health care providers can charge as a handling fee for a copy of a patient's health care record.