Published 10/1/2007
Charlene K. MacDonald, MPP

From the states: 2007 legislative wrap-up

Legislatures address scope of practice, quality of care, reform issues

Scope of practice
Physical therapists, podiatrists, and chiropractors all sought to expand their scopes of practice through state legislation. The American Physical Therapy Association continues to push for state laws permitting direct access to physical therapy services without physician evaluation or oversight. Although most managed care plans continue to require a doctor’s referral, the American Association of Orthopaedic Surgeons (AAOS) and state orthopaedic societies remain concerned about the potential for misdiagnoses, delayed treatment, and complications resulting from this practice.

Podiatrists also have been working hard to expand their scope of practice under state law, seeking greater freedom to perform surgery and amputations above and beyond the foot. State orthopaedic societies, however, have prevailed in several legislative fights this year, despite these aggressive efforts.

The AAOS and state orthopaedic chapters have been highly successful in engaging state legislators in efforts to address concerns of physicians regarding the expansion of chiropractors’ scope of practice.

Direct access to physical therapy
In Florida, a measure that would have revised the definition of physical therapy and removed a provision from current law that requires patients to see a physician if physical therapy treatments exceed 21 days died.

Virginia’s state legislature, however, passed a similar bill allowing patients access to physical therapists without a referral under certain circumstances. Under the legislation, the physical therapist is required to notify the physician within three days of treatment and to provide the physician with a copy of the patient evaluation and patient history.

Oregon Gov. Ted Kulongoski signed HB 2386 into law, extending the time limit for direct access from 30 to 60 days.

A California bill that would expand the definition of physical therapy was set for a hearing in April. Although the hearing was subsequently canceled at the request of the bill’s author, Assemblyman Bill Emmerson, officials expect it will be taken up next year.

The Illinois Association of Orthopaedic Surgeons took a strong stand on direct access this year, successfully opposing a proposed measure that died in committee.

In a slight twist on the usual direct access challenge, Missouri lawmakers passed a bill that grants an HMO’s “health care advocate” the authority to refer patients directly to physical therapists.

The Massachusetts Orthopaedic Association (MOA) testified against measures that sought to redefine the practice of podiatry to include diagnosis and treatment of the ankle and allow podiatrists to operate on the ankle and to perform amputations on the foot and toes. Thanks to the MOA’s successful lobbying efforts, the bill is not expected to come up again in this session.

New York is currently witnessing an even more contentious fight over this issue, with the introduction of bills that would grant licensed podiatrists the right to perform procedures on soft tissue to the knee.

In a win for Illinois orthopaedists, Gov. Rod Blagojevich recently signed a bill prohibiting podiatrists from treating any pathology higher than 10 cm from the tibiotalar joint.

passed legislature on the final day of the session, expanding chiropractors’ scope of practice in that state. The Georgia Orthopaedic Society and others in the medical community effectively fought to repeal the most drastic provisions of the legislation, which would have allowed chiropractors to refer patients for diagnostic imaging, neurodiagnostic studies, and laboratory tests. The section was removed from the final version of the bill.

Two Arkansas bills that would have enabled chiropractors to expand their practice services died in committee.

In a positive move toward higher standards for alternative medicine, South Dakota lawmakers passed a measure to require a bachelor’s degree for persons applying for a chiropractic license.

Ambulatory surgical centers
The AAOS and state orthopaedic societies seek to promote the value of highly specialized, quality patient care available through single specialty hospitals. In many states, however, legislation intended to restrict the ability of such facilities to practice highly specialized medicine poses a challenge for orthopaedists practicing in these settings.

The Massachusetts Orthopaedic Association was successful in defeating a bill that would halt any new construction of ambulatory surgical centers (ASCs). A similar effort prevailed in Montana, however, extending a moratorium on the licensure of all new specialty hospitals from July 1, 2007, to July 1, 2009.

In Washington, Gov. Chris Gregoire recently signed legislation requiring extensive quality reporting by ASCs. The measure mandates that ASCs establish facility safety and emergency training programs and have transfer agreements with other hospitals; it also requires the state’s department of public health to promulgate regulations governing the use of anesthesia in such facilities.

Medical liability reform
Although medical liability reform no longer receives the attention it once did, states across the country continue to pursue reforms aimed at lowering healthcare costs and maintaining a robust healthcare workforce.

In March, Arkansas Gov. Mike Beebe signed a bill into law that amended the state’s Good Samaritan law to remove liability for physicians acting in “good faith,” rather than the previous standard of “acting as a reasonable and prudent person.”

The North Dakota legislature enacted a measure making expressions of empathy inadmissible in civil actions; similar bills also passed in Hawaii and Nebraska.

In Oklahoma, a measure to extend coverage under the Governmental Tort Claims Act to healthcare providers who provide uncompensated care to the indigent was enacted.

Pennsylvania’s governor announced in July that the primary liability insurance level would remain at $500,000. The efforts of the Pennsylvania Orthopaedic Society and its coalitions to maintain the current levels helped prevent a 20 percent to 48 percent premium increase for high-risk specialty physicians according to the governor’s office.

Quality of care
To improve patient care and reduce healthcare costs, many states are moving toward establishing more comprehensive, centralized data collection and reporting programs for both healthcare facilities and physicians. The AAOS supports those measures that provide patients with greater access to accurate information about their healthcare system while not penalizing skilled physicians who choose to take on high-risk, difficult cases.

Florida legislators created the Physician Workforce Assessment and Development Office within the Department of Health. The legislation requires every allopathic and osteopathic physician to complete a survey concerning the physician’s practice as a condition of license renewal. The bill, which was signed by the governor in March, will allow the state to better assess the state’s healthcare needs with the intent of attracting and retaining physicians.

In a distinctly different approach to promoting quality of care, Gov. Ed Rendell of Pennsylvania recently signed an executive order to implement quality of care initiatives focused on chronic diseases as part of his “Prescription for Pennsylvania” healthcare reform plan. The commission responsible for implementing the program will develop quality controls, including measures designed to promote the use of evidence-based medicine in making treatment decisions. The AAOS and the Pennsylvania Orthopaedic Society will be carefully monitoring the program to ensure that physicians are not restricted when making medical decisions.

A Virginia bill that would have required physicians to report complications resulting from elective outpatient surgical procedures was defeated in committee. Essentially, the measure would have instituted an unfunded reporting mandate.

In Massachusetts, the use of physician profiles that measure practice quality has been expanding rapidly among the state’s insurance plans. The Massachusetts Medical Society filed a bill, currently pending, that would address inaccuracies in the collection, analysis, and use of data to profile doctors. It also calls for greater public disclosure by the plans about how physicians are rated and more input from independent medical sources, and includes a requirement that physician ratings be risk-adjusted and use a case mix component.

Physician-owned physical therapy services
Physician-owned physical therapy services (POPTS) are under careful scrutiny by policymakers following a 2006 ruling in South Carolina by that state’s Supreme Court upholding a ban on POPTS, and the prohibition of POPTS in Missouri and Delaware. Although related legislative action was limited this year, the AAOS expects the issue to pick up in the 2008 session.

The Montana legislature adopted a nonbinding resolution in April requesting the formation of a committee to study “changes in the health care delivery system, such as the development of physician ownership of health care facilities…that may affect the future and financial viability of Montana’s health care delivery system.”

The Alabama legislature enacted a bill prohibiting the Board of Physical Therapy from “promulgating any rule relating to licensure denial, suspension, or revocation, or from taking any disciplinary action against a licensee by virtue of certain employment arrangements, contractual agreements, or referrals by physicians.” This preemptive move represents a positive step for physicians as threats to physician ownership rights are on the rise.

Charlene K. MacDonald, MPP, is AAOS manager of state legislative and regulatory affairs in the Washington, D.C., office. She can be reached at macdonald@aaos.org