February 1999 Bulletin

States expect more health care bills

Legislation includes patient protection, scope of practice, tort reform

About one-third of the states have enacted comprehensive patient protection legislation and it is anticipated that this trend will continue into 1999. Issues such as independent, external reviews, continuity of care and access to specialists may take on greater importance, however.

States that had comprehensive patient protection legislation die in their 1997-1998 legislatures include: Alabama, Colorado, Delaware, Illinois, Massachusetts, South Dakota, Washington and Wisconsin. Most likely, these states will reintroduce similar bills in this year's sessions.

In addition, expect to see action on health care related legislation in California as a newly-elected governor Gray Davis, a Democrat, gives the state same-party control of the state legislature and executive mansion. Several patient protections enacted by the state legislature in 1998 were vetoed by then-governor Pete Wilson.

Finally, health care reform also will continue to be fought on the national level. One important factor to consider is whether or not federal reform would preempt state legislation, which in many cases is much stronger and more pro-patient than what has been introduced at the federal level.

Scope of practice

Legislation addressing the scope of practice of athletic trainers, chiropractors, physical therapists and podiatrists will again be debated statewide. In 1998, important scope of practice battles never made it out of committee in Hawaii, Kentucky, Mississippi, Missouri, New York, South Dakota and Vermont. Expect legislation to be reintroduced in each of these states.

In addition, after not meeting in 1998, Oregon returned to session in January. Several scope of practice bills were defeated in Oregon in 1997. It is anticipated that podiatrists will try again there. In New Jersey and New York, also, expect numerous scope of practice bills to be carried over and/or reintroduced.

Insurer liability

To date, only Texas and Missouri have enacted legislation addressing insurer liability. While several states introduced bills requiring managed care plans to exercise ordinary care or be held liable for damages to enrollees, no legislature was willing to take action.

This may change in 1999 given the recent court ruling in Texas that found constitutional the state law that permits enrollees to take legal action. However, many states may decide to take an alternative route and focus more on establishing grievance procedures and more importantly, independent, external appeal mechanisms that offer protection to patients without requiring the filing of a suit.

At this point it is unclear which direction states may take. For states that have yet to enact patient protections it may not be as high a priority.

Tort reform

Tort reform battles, both good and bad, were fought in several states in 1998. For instance, Maine had several challenges to its physician-friendly tort law. All were defeated, but it is possible that legislation will be reintroduced in the future.

Illinois' tort reform law was found unconstitutional by its state Supreme Court in 1998. Given the current make-up of the legislature, it is highly unlikely, however, that tort reform will be re-addressed.

The election of Alabama's Lieutenant Governor, Don E. Siegelman, to governor, will make passage of meaningful tort reform legislation an unlikely event. Siegelman helped defeat tort reform legislation while serving as Lieutenant Governor.

Massachusetts likely will see debate on the issue in 1999. Legislation introduced last session was sent to a joint conference committee for study. Mississippi, which had several bills defeated in committee, also may see debate on tort reform in 1999.

Workers' compensation

Once again, the Academy is most concerned with state legislation that expands the scope of practice of non-MDs with regard to workers' compensation cases. States that saw battles in 1998 include California, Florida and New York. Expect these issues to continue to surface in those states.

In November 1997, Ohio voters repealed amended workers' compensation rules that had redefined the term 'permanent total disability.' The Ohio legislature did not address the issue in 1998, but may look again at the issue in the future.

Pre-filed legislation

Some state legislators have pre-filed legislation in anticipation of 1999 sessions. Pre-filed legislation trends indicate that health care reform will continue to be active at the state level. In Florida, a comprehensive workers' compensation reform bill has been pre-filed, and in Texas several bills addressing issues such as access to specialty health care services, liens for services provided by health care practitioners and emergency care have been pre-filed.

H.B. 96 provides that an enrollee who has received a diagnosis from a primary care physician or another physician of a disease or condition, which falls within the scope of a professional specialty practice, may select a specialist, in addition to a primary care physician.

The plan must permit an enrollee direct access to the health care services of a designated specialist without a referral by the enrollee's primary care physician or without prior authorization or precertification from the plan.

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