Published 8/1/2014
Eboni Morris; Elizabeth Fassbender

Success in the States

In the past few months, many states have wrapped up busy legislative sessions, concluding their business efforts for 2014. State policymakers considered a broad range of topics, and state-level advocacy efforts have resulted in numerous successes on issues ranging from scope of practice to medical liability.

The American Association of Orthopaedic Surgeons (AAOS) assists state orthopaedic societies’ advocacy initiatives through the Board of Councilors Committee on State Legislative and Regulatory Issues as well as the Health Policy Action Fund grant program. The following are highlights from some recent state efforts.

Podiatry scope of practice
An attempt by podiatrists in South Carolina to expand their scope of practice was defeated. H. 4542 would have allowed podiatrists to perform surgery of the ankle and related soft-tissue structures to the level of the myotendinous junction. The bill included a nondiscrimination clause stating that facilities shall not discriminate among individuals holding Doctor of Medicine, Doctor of Osteopathy, or Doctor of Podiatric Medicine degrees who are authorized by law to provide similar health services.

The New York State Society of Orthopaedic Surgeons was successful in defeating legislation that would have allowed podiatrists to extend their scope of practice and perform surgery on the upper leg.

Physical therapy
In Oklahoma, H.B. 1020 was recently signed into law. The measure allows patients to be evaluated and treated by a physical therapist for 30 days without a referral from a physician or other provider. The Louisiana Orthopaedic Association defeated a direct access bill in their state, while the Ohio State Orthopaedic Society is working to defeat a bill that would allow physical therapists to diagnose conditions and create treatment plans. In Michigan, the state legislature passed a bill that would allow direct access to physical therapy for 21 days or 10 treatments, whichever occurs first.

Professional self-referral
Orthopaedists in California were able to defeat S.B. 1215, which sought to close the exception for in-office self-referrals for advanced imaging, anatomic pathology, radiation therapy, or physical therapy compensated on a fee-for-service basis. A coalition of physicians worked together to defeat the proposal.

Sports medicine
The Louisiana Orthopaedic Association was instrumental in the passage of H.B. 1074, which provides for a limited exemption to state licensure requirements for visiting physicians affiliated with sports teams.

Medical liability
This session, two states—Alaska and Wisconsin—passed “I’m sorry” legislation. The measures clarify that expressions of apology or compassion by a medical provider do not imply guilt and cannot be used against the provider in a malpractice case.

Idaho and Oklahoma both passed “standard of care” legislation. Idaho’s S.B. 1355 ensures that no criteria, guideline, standard, or other metric established or imposed by the Affordable Care Act, other federal law or regulation, another state, or a third-party payer will be used to establish the standard of care in the state. It also prohibits the admission of a physician’s meeting or failing to meet any such criteria in medical liability or disciplinary actions. It does not prevent the consideration of facts that establish a physician’s compliance or lack of compliance with a community standard of care.

Kansas created a Health Care Stabilization Fund. H.B. 2516/S.B. 311 provides that for all claims made on and after July 1, 2014, the amount of the Health Care Stabilization Fund liability for a judgment or settlement against a healthcare provider shall be equal to the minimum professional liability insurance policy limits required pursuant to law, plus the level of coverage selected by the healthcare provider at the time of the incident giving rise to a claim.

The bill also establishes a periodic increase in the state’s cap on noneconomic damages. The cap will increase to $300,000 for causes of action accruing after July 1, 2014; to $325,000 after July 1, 2018; and to $350,000 after July 1, 2022. In addition, the bill creates new collateral source reforms that require mandatory offsets of an award received by the plaintiff. The bill was introduced in response to concerns expressed by the Kansas Supreme Court in their 2012 opinion upholding the cap’s constitutionality.

Finally, Massachusetts and New Hampshire formed study committees on medical liability.

Good Samaritan
In Washington state, the legislature passed H.B. 2492, which specifies that any healthcare provider credentialing or granting practice privileges to other healthcare providers to deliver health care in response to an emergency is immune from civil liability arising out of such credentialing or granting of practice privileges if (a) the healthcare provider so credentialed or granted practice privileges was responding to an emergency; and (b) the procedures utilized for credentialing and granting practice privileges were substantially consistent with the standards for granting emergency practice privileges adopted by The Joint Commission.

Ballot initiatives
Two states, California and South Dakota, undertook ballot initiatives measures. The California Orthopaedic Association is a part of a coalition working to defeat The Troy and Alana Pack Patient Safety Act of 2014. This initiative would alter California’s Medical Injury Compensation Reform Act (MICRA) and, among other things, would raise the cap on noneconomic damages to current inflation standards—approximately $1.1 million with future annual adjustments.

In South Dakota, the campaign for Initiated Measure 17 is being led by orthopaedic surgeons and would provide patients with the ability to choose their healthcare provider regardless of network requirements at no additional cost. It would also require health insurers to include all willing and qualified healthcare providers on their provider lists.

If passed in November, no health insurer, including the South Dakota Medicaid program, could exclude a healthcare provider licensed under the laws of the state from participating on the health insurer’s panel of providers if the provider is located within the geographic coverage area of the health benefit plan and is willing and fully qualified to meet the terms and conditions of participation as established by the health insurer.

Eboni Morris is the manager, state government relations; she can be reached at morris@aaos.org and Elizabeth Fassbender is the communications specialist in the AAOS office of government relations; she can be reached at fassbender@aaos.org

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