by Susan Koontz, JD, CMS General Counsel
Featured in the May/June 2016 Colorado Medicine.
The Colorado Medical Society advocates for Colorado physicians and their patients during the legislative session.
During the 2016 regular session of the Colorado General Assembly, legislators once again addressed out-of-network provider issues, including surprise bills, as well as issues concerning scope of practice, freestanding emergency rooms and the hospital provider fee, to name a few. Over 1,800 bills were introduced this session and the CMS Council on Legislation (COL), along with their policy and public affairs professionals, reviewed each bill to understand its intent, its possible outcomes and the political landscape to collectively determine how and at what level CMS should engage.
Following is an overview of the key bills on which CMS engaged this year.
SB16-152: Changes and Notices for Health Care Services
One of the significant bills CMS opposed was SB 152, which would have created ambiguity as to the carrier’s existing responsibility to pay the out-of-network physician’s bill, made it difficult for physicians to get paid, and expanded the value of a lawsuit by creating a private cause of action for plaintiffs against physicians for deceptive trade practices exposing physicians to three times the amount of actual damages (treble damages).
CMS, along with various component and specialty societies, stakeholders and lobbyists worked together in opposing this bill, which was heard on March 16 before the Senate State, Veterans and Military Affairs Committee. On that day, CMS President Michael Volz, MD, along with physicians Bryan Coffing, MD; Randy Clark, MD; Jamie Dhaliwal, MD; and Caleb Hernandez, MD; and attorney John Conklin testified in opposition to this bill. The bill was killed at that hearing by a vote of 3 (Republicans) to 2 (Democrats).
HB16-1374: Disclosures by Freestanding Emergency Rooms
CMS also opposed HB16- 1374, which would have required a freestanding emergency room that provides emergency services in a facility, charges a facility fee and is not attached to a hospital to post notices throughout the facility indicating that the facility is an emergency room that provides emergency services to treat emergency medical conditions.
Additionally, a freestanding emergency room, after performing an initial medical screening examination, would have had to inform a patient who is determined not to have an emergency medical condition verbally and in writing that the freestanding emergency room charges rates comparable to those charged by a hospital emergency room, including a facility fee; that the freestanding emergency room or a physician providing medical care at the center may not be a participating provider under the patient’s health benefit plan; that the physician providing medical care at the freestanding emergency room may bill the patient separately from the center; and that for non emergency medical conditions, the patient may wish to confer with his or her primary care physician or other primary care provider.
EMTALA prohibits any process that discourages patients from remaining in the emergency department before undergoing a screening exam. CMS voted to oppose the bill due to concerns about possible EMTALA violations and increased liability. The bill passed through the House with amendments, but was defeated in the Senate State, Veterans and Military Affairs Committee by a vote of 3 (Republicans) to 2 (Democrats).
SB16-169: Emergency 72-hour Mental Health Holds
The COL voted to monitor SB 169. The rationale behind the bill was the realization that some areas of Colorado lack the adequate resources to properly care for some individuals who are experiencing a mental health crisis or psychiatric emergency. Colorado statute currently specifies that a person who is placed on an emergency hold may be taken to a facility designated by the executive director of the Department of Human Services for a 72-hour mental health hold for treatment and evaluation; however designated facilities are often not available.
This bill clarifies the difference between facilities (medical facility or law enforcement facility), prioritizes the facilities where a patient should be taken, defines the terms under which these individuals may be taken to such facilities, among other provisions.
After several amendments, the bill passed through the Senate and the House and is awaiting the governor’s signature. CMS, along with COPIC, the American College of Emergency Physicians and the Colorado Hospital Association, worked tirelessly to ensure that the final bill was not detrimental to emergency physicians working in emergency departments and hospitals or to their patients who are experiencing a mental health crisis and require evaluation and treatment.
SB16-158: Physician Duties Delegated to Physician Assistant
This bill expands how physicians and physician assistants work together within the Colorado Medical Practice Act by clarifying what duties a physician may delegate to physician assistants (PA) within his or her scope of practice, improving access to care in underserved communities within the structure of the act, and by retaining physician supervision and the delegation of PA activities.
COL voted to support this bill, which passed through the Senate and the House and is awaiting the governor’s signature.
SB16-127: Repeal of the Medical Clean Claims Transparency Uniformity Act
After working for the past five years toward development of a standardized set of claim edits, the Clean Claims Task Force (CCTF) has finished their work. This bill repeals the CCTF and was signed into law by the governor on April 5. In addition, both the Senate and the House passed Resolution SJR16-029, which recognizes the work of the CCTF.
SB16-135: Collaborative Pharmacy Practice Agreements
Collaborative pharmacy practice agreements are voluntary agreements between a licensed pharmacist and a physician or advanced practice nurse and patient that allow a pharmacist to provide evidence-based health care services to one or more patients pursuant to a specific treatment protocol delegated to a pharmacist by a physician or advanced practice nurse. This bill passed the both the Senate and the House and awaits the governor’s signature.
HB16-1095: Health Insurance for Prescription Eye Drop Refills
This bill requires health insurance plans, except for supplemental policies which cover a specific disease or other limited benefit, to provide coverage for the renewal of prescription eye drops if the renewal is being requested within a specified amount of time. It is dependent upon how many days the prescription is for, whether the original prescription states that additional quantities are needed, and does not exceed the number of quantities needed.
COL voted to support this bill, which the governor signed into law on March 9.
HB16-1142: Rural and Frontier Health Care Preceptor Tax Credit
It is vital for the well-being and quality of life that excellent health care be available in all regions of Colorado, including rural and frontier areas which currently suffer from a shortage of primary health care providers. CMS policy supports and encourages training residency programs to assist physicians in rural areas. This bill offers a $1,000 personal income tax credit per year on or after Jan. 1, 2017 to a health care professional who serves as a preceptor during the applicable income tax year. The tax credit is available to a taxpayer who has practiced his/her primary health field of medicine in a rural or frontier area during the portion of the tax year the credit is being claimed. This bill caps at 300 the number of preceptors that may claim the tax credit for any one income tax year.
COL voted to support this bill, which passed the House and Senate and is on its way to the governor for his signature.
HB16-1047: Interstate Medical Licensure Compact
To strengthen access to health care, this bill authorizes the governor to enter into an interstate compact with other states to recognize and allow physicians licensed in a compact member state to obtain an expedited license, enabling them to practice medicine in Colorado or another member state. The AMA has created policy to facilitate credentialing for state licensure to develop greater reciprocity between state licensing jurisdictions.
CMS voted to support this bill, which passed through the House and the Senate and is on its way to the governor for his signature.
HB16-1101: Medical Decisions for Unrepresented Patients
This bill addresses the issue of orphan or “unrepresented” patients, i.e. patients without the capability of making their own medical decisions and who do not have an interested person (a spouse, parent, adult child, sibling, grandchild or close friend) who is willing or able to explain the patient’s wishes. This bill allows an attending physician to designate another willing physician to serve as proxy decision-maker – after reasonable efforts to locate an interested person to make medical decisions on behalf of the patient have failed – to make those decisions without being subjected to civil or criminal liability or regulatory sanction for acting as a proxy decision-maker.
After several amendments, the bill passed the House and the Senate and awaits the governor’s signature. We wish to thank COPIC for providing input and legal analysis on this bill.
SB16-042/HB16-1390: Immunity for Persons Involved in Overdose Events
Under current law, a person who reports an emergency drug or alcohol overdose event is immune from criminal prosecution for certain drug-related offenses if certain conditions are met. Similarly, underage individuals who call 911 about another underage person who is in need of medical assistance due to alcohol or marijuana consumption are also immune from criminal prosecution. The bill sought to extend this immunity to an underage person in need of such medical assistance.
COL voted to support this bill, which failed in the Senate Judiciary Committee by a vote of 3 (Republicans) to 1 (Democrat) with 1 excused (Democrat).
After SB 042 failed, a similar bill was then introduced in the House (HB16-1390), which passed through the House and the Senate and is awaiting the governor’s signature.
SB 16-069: Community Paramedicine Regulation
Community paramedics provide community-based, out-of-hospital medical services to medically underserved and medically served, yet vulnerable, populations. Under current law, community paramedics and community paramedicine agents are not subject to regulation by any state agency. This bill authorizes the executive director of the Colorado Department of Public Health and Environment to adopt rules regarding standards by which emergency service providers are granted endorsement in community integrated health care service.
COL voted to support this bill, which passed the Senate and House and is on its way to the governor for his signature.
HB16-1160: Continuation of Surgical Assistant-Surgical Technologist Registration Program
Colorado law requires surgical assistants and surgical technologists to register with DORA before they may be employed as surgical assistants and surgical technologists. DORA wanted to sunset this regulatory process, which the COL felt would be potentially harmful to patients. This bill continues the requirement that surgical assistants and surgical technologists register with the director of DORA’s division of professions and occupations before they may be employed as surgical assistants and surgical technologists and perform the duties of a surgical assistant or surgical technologist. The bill requires that the surgical assistants and surgical technologists prior to registration submit to a criminal history record check.
COL voted to support this bill, which passed through the House and the Senate and is on its way to the governor for his signature.
SB16-161: Regulate Athletic Trainers
Colorado’s 670 athletic trainers work under the direction of physicians in many settings. The largest employers in our state are secondary schools, medical clinics and hospitals and universities. In secondary schools they often are the only health care professionals available to treat young athletes. In college and university settings, as in sports medicine or orthopedic treatment centers, they are part of a team led by physicians. The AMA recognizes athletic trainers as allied health professionals. The profession is one of 33 regulated health care providers in Colorado.
Prior to July 1, 2015, athletic trainers practicing in Colorado were regulated by the director of DORA. During the 2015 session, a bill to continue that regulation was unsuccessful, thus beginning a one-year wind-down of the program. This year’s bill reinstates the regulation of athletic trainers.
COL voted to support this bill, which passed the Senate and the House and is on its way to the governor for his signature.
HB16-1360: Continue Regulation Direct-entry Midwives
This bill implements the recommendations of the Department of Regulatory Agencies as contained in the sunset review of direct-entry midwives (DEM) with some modifications: the regulation and registration of DEMs by DORA will continue for seven years, and DEMs may not perform operative or surgical procedures.
The executive director of DORA is required to convene a working group, consisting of individuals with expertise in risk management and knowledge in the practice of midwifery, to investigate the means to manage risks in the practice of midwifery.
HB1360 passed the House and the Senate and awaits the governor’s signature.
HB16-1420: CO Healthcare Affordability and Sustainability Enterprise – “Hospital Provider Fee”
How it works: Hospitals pay the fee into a cash program overseen by the Department of Health Care Policy and Financing (HCPF), and Colorado draws down federal matching funds on a 1:1 ratio. These additional dollars are used to support coverage for 382,000 vulnerable Coloradans and increase reimbursements for hospitals, reducing the costs of health care for all Coloradans.
This bill sought to change the program into an enterprise under TABOR by repealing the Hospital Provider Fee, thus removing the revenue from the state’s revenue. The funds would have allowed for dollars to go to transportation and cap at $73 million for the Hospital Provider Fee collected, impacting hospitals around the state but allowing for dollars to go to education and beyond.
COL voted to support this bill, which passed through the House, but failed in the Senate Finance Committee by a vote of 3 (Republicans) - 2 (Democrats).
HB16-1405/HB16-1408: Budget Bill for FY2016-17 (the “Long Bill”)
The Long Bill has passed through both the House and the Senate with numerous amendments. Pursuant to the Colorado Constitution, the Legislature balanced the budget. Notable changes to health care were made in HB16-1408. With a significant budget shortfall this year, ($49 million in Medicaid alone) Medicaid reimbursement was cut across the board and rates were rolled back to 2012 reimbursement amounts.
This was caused by the expiration of a “bump” intended to increase access to primary care for Medicaid patients. Many physician specialty organizations as well as CMS participated in an alliance to preserve reimbursement. Unfortunately, with the growth of the budget in other areas, the Alliance was only able to find $20 million in the budget to sustain reimbursement. The Department of Health Care Policy and Financing, which operates the Medicaid program, took some very hard lines on this issue. The Joint Budget Committee chose to prioritize five primary care billing codes to remain at 100 percent of Medicare, while the rest was cut. The alliance will continue to meet to determine how to increase Medicaid reimbursement for all of medicine in subsequent budgets.
Overall this session was a win for medicine. In an election year, where politics often trump policy, CMS was able to prevail on the vast majority of issues relevant to physicians and their patients.