STATE LEGISLATIVE UPDATE

2005 is continuing to be an excellent year for tort reforms, with Alaska leading in June with new caps on non-economic damages. Otherwise, legislation relating to payment issues and insurers proved to be popular this month.

The states in regular session as of July 1st are CA, DC, MA, NC, NJ, OR, PA, and WI. States currently having special sessions are California and Oklahoma. IL, MI, NH, NY, and OH are all in recess. 152,408 new bills have been introduced in the states this year, and there have been 32,297 new laws, as of June 30th. 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 big tort reform splash for June came from Alaska. The state’s new law caps noneconomic damages at $250,000, except in cases of wrongful death or severe permanent physical impairment that is more than 70 percent disabling, where the cap would be at $400,000. The caps apply regardless of the number of health care providers against whom the claim is asserted or the number of separate claims or causes of action brought with respect to the injury, but do not apply in cases of recklessness or willful conduct.

Other states have had bills introduced this month relating to torts. In New Jersey, a bill is now being considered that would create tighter requirements to determine who can testify as an expert witness. A bill introduced in Pennsylvania would, if passed, throw out any suit against a health care provider for claims arising out of the use of a defective product, (including medical devices), unless the plaintiff can prove that the health care provider possessed knowledge or contributed to the defect.

New York is now considering a bill that would extend that state’s statute of limitations for medical malpractice cases. Currently, all actions have to be commenced within two and a half years of the act in question. The language being considered would state that when a condition should have been detected, but was not, the action can commence one year after the condition was actually discovered.

PAYMENT REFORM

Stronger prompt payment laws were passed this month in Louisiana. Nevada now has a law that prevents insurers from denying claims because the patient was injured while intoxicated. Texas has passed legislation that allow physicians to include in their contracts with HMOs that the HMO cannot refuse to pay a clean claim simply because it was batched with a claim that is not clean.

Other states have introduced bills on this subject this month. Delaware is looking at legislation that would prevent payors from requiring additional documentation from a health care provider prior to approving payment of a claim without a good faith basis for requesting such additional documentation. New Jersey has introduced a new bills that would deem physicians who make utilization management decisions on behalf of insurers to be engaged in the practice of health care. Legislation has been introduced in New York that would impose new limits on the ability of insurers to seek refunds from health care providers.

EXPRESSIONS OF SYMPATHY

New laws that allow physicians to make expressions of sympathy without the statements later being used against the physician in court are now law in both Maine and New Hampshire. The Pennsylvania legislature has introduced similar legislation.

VOLUNTEERING

Volunteering to provide health care has become easier in Texas, thanks to two new laws in that state. One law increases the availability of liability insurance for volunteer health care providers. The other new law creates reduced licensing fees and continuing education requirements for otherwise retired health care practitioners who want to continue providing volunteer charity care.

MISCELLANEOUS

Although there have been a number of bills this year relating to diagnostic imaging or physician employment of physical therapists, this month a troubling new bill was introduced in Pennsylvania that touched on both topics. The bill forbids patients from being referred to "designated health services" that the physician has a financial interest in. The definition of "designated health services" in the bill includes physical therapy services, comprehensive rehabilitative services, and diagnostic imaging services.

Delaware has recently had legislation introduced that would cap the payment for medical treatment under workers compensation at 120% of what Medicare pays. Legislation has recently been introduced in the District of Columbia to deal with malpractice insurance rates. Among other things, this bill would require prior approval of rate increases exceeding 7%, and would authorize refunds to physicians who have paid excessive rates. In addition the bill would enable physicians and consumers to challenge rate increases.