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Published 8/1/2016

Orthopaedic Surgeons Should Prepare for New Laws

The AAOS estimates that approximately 150 new state laws have been passed during the past year that affect the practice of medicine and the patient-physician relationship. This article focuses on a few of the topics the new regulations address.

Network adequacy/balance billing
The hottest issues for specialty medicine have been, and will continue to be, network adequacy and balance billing. Network adequacy was purposefully left ambiguous in the Affordable Care Act so that state insurance commissioners and legislatures could decide appropriate levels of access.

With the increase in narrow networks to help control plan costs, patients may be faced with the need to see out-of-network providers—and may be unprepared for the additional costs incurred. As a result, some states are also looking to limit a provider's ability to balance bill the patient.

In November 2015, the National Association of Insurance Commissioners passed model legislation on network adequacy. Connecticut and Florida have passed portions of the model legislation, specifically the ban on balance billing. AAOS is monitoring similar efforts in Texas, California, Pennsylvania, Georgia, Tennessee, Colorado, New Jersey, Tennessee, and Washington.

Scope of practice
In 2016, Louisiana joined 48 other states that permit individuals access to physical therapy without a diagnosis. In Wisconsin, physical therapists can now order radiographs. Although these appear to be big wins for the physical therapy community, many insurance companies will not reimburse beneficiaries without a diagnosis.

Opioid abuse
To curb heroin and prescription opioid abuse, many states have passed laws that increase access to Naloxone, an opioid antagonist. In some cases, the laws protect prescribers from criminal liability and/or civil liability, allow third-party prescription authorization, hold administrators immune from criminal and civil prosecution, and remove criminal liability for possession of Naloxone. In 2016, Alaska, Louisiana, Rhode Island, South Carolina, South Dakota, Utah, and West Virginia passed laws to increase access to opioid antagonists.

In other states, the response to the opioid crisis has been much more prescriptive. For example, Massachusetts law requires that prescriptions for adults receiving opiates for the first time—and for all children—be limited to 7 days. Additional requirements include the following:

  • all opiate prescriptions must be checked in the state's prescription monitoring program by the prescriber and the pharmacist
  • public schools must verbally screen students to determine who is suffering from substance abuse or considered at risk
  • individuals admitted to an emergency room for an opioid overdose for 24 hours are required to receive a substance abuse evaluation from a mental health professional before discharge
  • mandated training guidelines for medical professionals who prescribe opioids and other controlled substances

According to the Centers for Disease Control and Prevention, in states that have implemented similar reforms, specifically prescription drug monitoring programs, the number of patients seeking opioids from multiple prescribers has significantly decreased.

The Oregon Health Authority reports the rate of poisoning due to prescription opioid overdose in that state declined 38 percent between 2006 and 2013 after it enacted similar reforms. Oregon's death rate from methadone poisoning decreased 58 percent over the same time period.

Repealing and reforming certificate of need or certificate of public need (COPN) laws has been a major sticking point at state legislatures this year. COPN laws require healthcare facilities to receive state regulatory approval before building or growing. Renewed interest in repealing COPN laws emerged with the Department of Justice (DOJ) and the Federal Trade Commission's (FTC) support of Gov. Nikki Haley's (R-S.C.) campaign to reform that state's anticompetitive law. In a joint statement, the DOJ and FTC urged the South Carolina State Legislature to consider repeal or reform of the state's COPN laws. The letter asserts that COPN laws create barriers to expansion, limit consumer choice, stifle innovation, deny consumers the benefit of an effective remedy for antitrust violations, and can facilitate anticompetitive agreements.

In May 2016, the Tennessee General Assembly passed significant reform to its COPN law. As a result, COPN laws in Tennessee will no longer regulate the modification, renovation, or addition to a hospital or healthcare institution, nor the acquisition of most medical equipment.

Medical malpractice
Tort reform politics continue to be stuck in the mud, with few significant reforms in 2016. However, New Mexico did amend its medical malpractice law to require citizens who believe they have been harmed by an out-of-state practitioner to file claims in the jurisdiction where the service was rendered. The legislation comes after a New Mexico woman filed a malpractice lawsuit in that state against a Texas doctor following weight loss surgery. Texas physicians argued that the case should go through the Texas court systems since that was where the woman was treated. The New Mexico Medical Society agreed.

Manthan Bhatt is the state government affairs manager in the AAOS office of government relations. He can be reached at Bhatt@aaos.org