Upcoming elections to set the stage for a challenging legislative session
by Susan Koontz, JD, Senior Director, Division of Government Relations
Featured in the September/October 2018 Colorado Medicine.
The legislators we elect to the General Assembly Nov. 6 will consider a wide range of sharply divisive proposals and amendments that will, as a matter of law set the conditions of licensure, peer review, and medical malpractice. In addition, we expect debates regarding Medicaid funding and operations, opioid abuse interventions and treatment, and other public health concerns.
Colorado’s trial attorneys will be pressing their case to expand the value and frequency of medical malpractice suits, breach the confidentiality of records and activities of professional review committees, and impose other new, creative causes of action under both the Medical Practice Act and medical liability statutes.
For the last several months local physicians have briefed and screened incumbents and candidates across the state for two mutually important objectives: to inform and prepare legislators for the often-complex issues they must consider, and to garner a local medical community consensus on levels of support for an incumbent, challenger or candidate.
That support comes in the form of contributions from the Colorado Medical Political Action Committee (COMPAC) and the Small Donor Committee as well as the in-kind support from physicians. Those combined efforts raise the threshold levels of informed legislators committed to medicine’s views.
Legislators and candidates have been briefed by their local doctors on three broad issues that will occupy most of medicine’s advocacy work in the capitol next year: professional accountability, coverage and cost, and the range of issues provoked by Colorado’s opioid crisis.
Key issue 1: Medical professional liability and physician accountability
The 2019 legislative session is a once-in-a-decade opportunity for lawyers that sue physicians to more easily amend the laws governing professional (peer) review, the legal conditions that define a medical license under the Medical Practice Act, and to expand the value of a professional liability lawsuit.
The 2019 General Assembly will be compelled to reconsider the substantive body of law governing:
- Medical licensure under the all-encompassing Medical Practice Act and the protected peer review activities that assure both patient safety and advanced practice standards under the Professional Review Act, both undergoing sunset review; and
- The statutory limits and related conditions regarding medical malpractice litigation under the 1988 Health Care Availability Act.
These anchors to physician liability and accountability will provide a series of opportunistic conflicts between Colorado’s medical malpractice lawyers and their prospective defendants – physicians, hospitals and other caregivers caught in that crossfire. The Colorado Trial Lawyers Association (CTLA) will seek to amend these laws in ways intended to expand both their leverage in those lawsuits and monetary value.
Taken together or separately, disturbances to the stability and continuity of these highly sensitive processes will compromise proven patient safety measures, spike health care costs, and subsequently restrict the supply and distribution of physicians in high-risk practices and provider shortage areas of Colorado.
CMS has made the case to the legislative candidates and incumbents, as well the gubernatorial candidates to uphold the confidentiality provisions in the Medical Practice Act and Professional Review Act, maintain the current monetary value of malpractice suits, preserve the legal protections afforded physicians engaged in professional review, and assure adequate funding for the Colorado Medical Board and provisions that strengthen their investigative and intervention capacities in order to detect, mitigate and remediate questions of professional conduct.
Key issue 2: Coverage and access, cost and value
Colorado has consistently shrunk the pool of uninsured individuals living in the state, which are otherwise a significant burden to safety net providers, local tax bases and private sector premiums. Several factors have contributed to this decrease:
- The adoption and implementation of Medicaid expansion;
- The regionalization of Medicaid services through the Accountable Care Collaborative program; and
- A state-run insurance exchange.
All of these measures have been sustained while further federal reform efforts have stalled. Future efforts will need to focus on maintaining current coverage gains and protections like essential benefits and bans against pre-existing condition exclusions, while working to expand coverage to those still uninsured where possible.
Like most states, Colorado struggles with escalating cost of care. Patients, as well as physicians, lack transparent, actionable information on pricing and cost. Supply chain middlemen and other side deals in care delivery further complicate efforts to encourage market forces or government actions to isolate the predators and outliers. CMS has been fully engaged since the earliest health care community efforts decades ago to restructure and realign health care delivery into a more rational, harmonious system. The successes and failures of those efforts are first experienced by physicians and the patients they serve on the front lines of the exam room.
The 2019 General Assembly will consider a comprehensive package of measures related to health care costs and coverage brought by a coalition of business and trade organizations. CMS is actively participating in these efforts and supports bringing all stakeholders to the table to engage and adopt legislative, regulatory and market-based strategies that advance the ideal that Coloradans can get the right care at the right place, time and value. All stakeholders have responsibilities, culpabilities and priorities.
A specific focus of CMS for the coming session will be to support specific steps to decrease the cost of care and ease the administrative burden on medical practices, which account for hundreds of millions of unnecessary expenditures by physicians and are a significant contributor to physician burnout.
CMS has asked gubernatorial candidates and legislators to support efforts to maintain current levels of insurance coverage, support and improve the Medicaid Accountable Care Collaborative program, appoint an insurance commissioner who will enforce Colorado’s array of patient protections and insurer fair business practice standards, examine current laws governing the business practices and medical necessity decisions by commercial health plans, and continue to study and address the drivers of health care costs.
Key issue 3: Opioids
While Colorado’s health care communities have worked closely with public officials and the highly regarded Colorado Consortium for Prescription Drug Abuse Prevention over the course of the last several years to successfully slow the pace of opioid and other substance abuse, there is still a substantial cohort of Coloradans with substance abuse disorder who require sustained effort to mitigate the enormous costs to families and their communities.
Colorado Medical Society remains committed to the community-based work of the consortium and prioritizes patient access to care, physician education, and continuing to limit opioid use as the crucial next steps.
Colorado Medical Society is currently convening a multi-specialty, statewide work group of physicians at the invitation of the consortium to develop their perspectives, ideas and an ultimate consensus on guideline development and other physician activities to present to the consortium as a future strategic pathway to accelerate reversal of the crisis. CMS is also currently partnering with the American Medical Society (AMA) on a joint collaboration with Manatt Health, a fully integrated, multi-disciplinary legal, regulatory, advocacy and strategic business health care practice to focus on comprehensive, multidisciplinary pain care and comprehensive, high-quality and evidence-based treatment for opioid use disorder.
Colorado Medical Society has urged the candidates for governor to continue the gains toward mitigating the opioid crisis started by the previous administration, support the Colorado Consortium for Prescription Drug Abuse Prevention, and work to address the crisis in rural and underserved communities that face provider shortages.
Stay tuned for more updates on these and other issues as the November elections are decided and the new governor and General Assembly begin their work in January 2019.