CMS celebrates strong 2018 legislative session

by Susan Koontz, JD, General Counsel, Senior Director of Government Relations

The regular session of the 2018 Colorado General Assembly adjourned on May 9 and we are celebrating the bills that died as much as those that passed into law. We expended considerable resources advocating for health care issues that improve patient care, promote physician professional satisfaction and create healthier communities in Colorado. The following summaries represent only a handful of the bills successfully lobbied by CMS during the course of the four-month legislative session.

The liability climate

Colorado’s relatively stable liability and professional review climate was maintained. While no bills were filed, both bodies of law will be under assault in the 2019 legislature (stay tuned).

Reversing the opioid crisis

Colorado, like virtually every state in the country, is struggling with ways to mitigate the medical and economic consequences of an opioid-addicted patient cohort of overwhelming magnitude. Five of six bills resulting from a 2017 interim legislative opioid abuse study passed into law. They include measures that increase funding for access to treatment, enhance misuse prevention, require health plans to cover certain FDA-approved drugs for medication-assisted opioid dependence treatment without prior authorization, and enact safer opioid prescribing.

SB18-022 Clinical Measures for Safer Opioid Prescribing

This legislation will, for acute pain circumstances, limit initial prescriptions to seven days for patients who have not had an opioid prescription in 12 months by that physician, with the discretion to include a second fill for a seven-day supply. The limits on initial prescribing do not apply, if, in the judgement of the physician the patient:

  • Has chronic pain that typically lasts longer than 90 days or past the time of normal healing as determined by the physician, or following transfer of care from another physician who prescribed an opioid to the patient;
  • Has been diagnosed with cancer and is experiencing cancer-related pain;
  • Is experiencing post-surgical pain that, because of the nature of the procedure, is expected to last longer than 14 days;
  • Is undergoing palliative care or hospice care focused on providing the patient with relief from symptoms, pain, and stress resulting from a serious illness to improve quality of life.

The bill also requires prescribers to check the PDMP (Prescription Drug Monitoring Program) prior to prescribing the first refill, with certain exemptions.

While these provisions will repeal in three years, legal protections for PDMP-generated report cards were included over the initial objections of the Colorado Trial Lawyers Association and will remain in effect. Additionally, failure to check the PDMP before prescribing a second fill only constitutes unprofessional conduct when done repeatedly.

We urge all physicians to be on the watch for more detailed information on SB18-022 in the near future. CMS will be providing a full explanation of the new law, the obligation of physicians and additional resources.

Status: Passed, awaiting the governor’s signature.

HB18-1003 Opioid Misuse Prevention

The bill establishes the following specific measures to combat opioid misuse in Colorado:

  • Creates the Opioid and Other Substance Use Disorders Study Committee;
  • Requires the governor to direct the Colorado Consortium for Prescription Drug Abuse Prevention to report on recovery services and approaches in other states to the General Assembly;
  • Authorizes school-based health centers to apply for grants to expand behavioral health services to include substance use disorder treatment;
  • Directs the Department of Health Care Policy and Financing to award grants supporting substance abuse screening, brief intervention and referral programs;
  • Establishes programs to prevent youth addiction and support youth whose family members experience addiction; and
  • Establishes continued education programs for prescribers of pain medications to safely and effectively manage patients with chronic pain.

Status: Passed, awaiting the governor’s signature.

HB18-1007 Substance Use Disorder Payment and Coverage

This legislation seeks to require all individual and group health benefit plans to provide coverage without prior authorization for a five-day supply of at least one FDA-approved drug for medication-assisted opioid dependence treatment for a first request within a 12-month period.

Status: Passed, awaiting the governor’s signature.

HB18-1136 Substance Use Disorder Treatment

This bill adds residential and inpatient treatment coverage to Colorado Medicaid.

Status: Passed, awaiting the governor’s signature.

SB18-024 Expand Access Behavioral Health Care Providers

The final bill introduced from the 2017 interim legislative study, it amends the Colorado service corps program by expanding the availability of behavioral health care providers in shortage areas in the state by establishing a system for school loan repayment and a scholarship for providers trained in addiction counseling.

Status: Passed, awaiting the governor’s signature.

Other bills supported by CMS

HB18-1006 Infant Newborn Screening

This bill seeks to make newborn hearing screenings more timely and requires the state Board of Health to develop rules concerning the requirements for newborn genetic and metabolic disorders, information reporting and follow-up services for infants at risk of hearing loss or who fail to receive screenings.

Status: Passed, awaiting the governor’s signature.

HB18-1187 FDA Cannabidiol Use

Use of a prescription drug that contains cannabidiol and is approved by the U.S. Food and Drug Administration would automatically be approved in Colorado under this bill. Drug products containing cannabidiol that are approved by the FDA are excluded from the definition of marijuana; however this change does not restrict or otherwise affect regulation of marijuana and industrial hemp authorized under state statute.

Status: Passed, awaiting the governor’s signature.

HB18-1211 Medicaid Fraud Control Unit

CMS was committed to passing this legislation and worked closely with stakeholders to secure necessary amendments.

This legislation establishes the Medicaid Fraud Control Unit in the Department of Law and will set specific, but higher, criteria for defining fraud that does not exist in current law. Responsible for investigating and prosecuting Medicaid fraud and waste, the unit is also responsible for monitoring patient abuse, neglect or exploitation. The bill also creates offenses related to making false statements on applications, Medicaid fraud, and credit and recovery of Medicaid payments. Kickbacks, bribes and rebates related to Medicaid administration are also made unlawful.

Status: Passed and signed by the governor.

HB18-1245 Prohibit Mental Health Care Conversion Therapy

This bill, supported by CMS, sought to prohibit a mental health care provider from using conversion therapy with a patient under 18 years of age.

Status: Passed the House; died in the Senate.

HB18-1365 Primary Care Infrastructure Creation

This bill, supported by CMS, would have established a primary care payment reform collaborative to evaluate primary care investment based on data compiled from plans and physicians.

Status: Died in the House.

Bills opposed by CMS

HB18-1279 Mandatory Electronic Prescribing Controlled Substances

CMS strongly and successfully opposed this bill, which sought to mandate electronic prescribing for all schedule II, III and IV controlled substances. Supported by retail pharmacies on the basis that counterfeit and fraudulent prescriptions will be reduced, the bill will undoubtedly emerge in some form in 2019. CMS was not convinced that mandatory e-prescribing would meaningfully assist in reversing the opioid crisis nor could CMS agree to the violation provision of the bill making failure to e-prescribe grounds for unprofessional conduct under Colorado Medical Board jurisdiction.

Status: Died in the Senate.

HB18-1128 Consumer Data Protections

Except for conduct in compliance with applicable federal, state or local law, this bill requires covered and governmental entities in Colorado that maintain paper or electronic documents containing personal information to develop and maintain written policy regarding their proper disposal.

Additionally, the bill expands existing laws governing notifications in the event of a data breach.

CMS opposed the introduced version of this bill, which did not provide exceptions for HIPAA compliers. The bill passed the General Assembly with amendments rectifying some of CMS’ concerns but still requiring physicians to comply with a shorter notification timeline.

Status: Passed, awaiting the governor’s signature.

HB18-1263 Medical Marijuana Use for Autism and Acute Pain

Under current law, PTSD is a disabling medical condition eligible for treatment by medical marijuana. This bill adds autism spectrum disorder as diagnosed by a licensed mental health provider or physician to this list.

An earlier version of the bill also sought to insert acute pain, which CMS strongly opposed. A House amendment removed acute pain and the Senate went a step further, adding an amendment establishing a grant program to gather research regarding the efficacy and safety of administering medical marijuana for pediatric conditions.

Status: Passed, awaiting the governor’s signature.

HB18-1286 School Nurse Give Medical Marijuana at School

Currently, a primary caregiver may possess medical marijuana and administer it to a student at school as long as the marijuana is in a non-smokable form. This bill allows school personnel to administer and possess the medical marijuana, specifically a school nurse or school nurse’s designee, or other personnel designated by a parent.

The bill requires that the medical marijuana be stored securely with clear dosage, timing and delivery instructions provided by the student’s physician and that the physician deliver the medical marijuana directly to a person designated by the school for this task. The student would not be allowed to handle the medical marijuana on the grounds of the school, school bus or during a school-sponsored event.

While under consideration, the Senate adopted an amendment regarding establishing a written plan for administration and a school’s ability to opt out.

Status: Passed, awaiting the governor’s signature.

HB18-1358 Health Care Charges Billing Required Disclosures

CMS was concerned by the administrative burden of this bill and the complicated nature of health care charges, which the bill sought to further require disclosures of by health care facilities, providers, pharmacies and health insurers. A ballot initiative which will require the disclosures is expected to appear on the November ballot.

Status: Died in the House.

SB18-214 Request Self-Sufficiency Waiver Medicaid Program

This bill sought to direct the Department of Health Care Policy and Financing to request authority from the federal government to implement self-sufficiency provisions as part of Medicaid. Specifically, the provisions revolved around employment status and monthly income verification. The bill would also have created a lifetime limit on Medicaid benefits of five years and imposed copayments on ambulance and emergency services to deter their use for nonemergency services. CMS opposes increasing obstacles for at-risk individuals and families to receive Medicaid.

Status: Died in the Senate.

Other bills of interest

SB18-237 Out-Of-Network Providers/Carriers Required Billing Disclosures

CMS has consistently been at the forefront of this long-standing issue of out-of-network disclosures and payment. This year was no different, as CMS worked with the bill drafters and sponsors for months advocating on behalf of physicians.

The resulting bill sought to address unexpected charges for out-of-network services, requiring notices of a facility or provider’s insurance affiliations. In addition, the bill required out-of-network providers and facilities to refund any overpayments within 45 days, or risk paying interest on the overpayment.

While CMS is committed to solving the out-of-network issue, the Council on Legislation was concerned about the overpayment refund period and subsequent interest accrual. Because of these concerns, CMS chose to monitor the bill.

The Senate Health and Human Services Committee postponed the bill indefinitely; however, CMS worked hard to subsequently draft a late bill based on the feedback from the committee and stakeholders.

Status: Postponed until next year.

SB18-082 Physician Noncompete Exemption for Rare Disorder

This bill provides an exception to noncompete agreements in cases where the physicians are providing continued care to patients with rare disorders.

CMS worked with the House sponsors to secure an amendment limiting liability for a departing physician’s post-termination treatment of a patient. CMS is a strong supporter of facilitating patient access, especially in cases of rare disorders.

Status: Passed and signed by the governor.

HB18-1313 Pharmacists to Serve as Practitioners

The purpose of this bill is to clarify that a licensed and qualified pharmacist, under the Colorado Medical Assistance Act or pursuant to a collaborative pharmacy practice agreement, may serve as a practitioner and prescribe over-the-counter medication. CMS ensured that an amendment was added to this bill to clarify that pharmacists do not have independent prescriptive authority.

Status: Passed, awaiting the governor’s signature.

HB18-1433 Naturopathic Doctor Terminology and Disclosure

In a bill killed earlier this session, HB18-1068, naturopaths sought to remove the requirement to use the title “registered naturopathic doctor” or the initials “R.N.D.” After HB18-1068 was postponed indefinitely, the Council on Legislation Scope of Practice Subcommittee met with stakeholders to craft language that would clarify naturopathic terminology and patient disclosures as well as remove “registered” from their title.

All sides approved the drafted language and it was introduced as a late bill. Rep. Lontine stated, “It was (Sen. Tate’s) intent to be sure that any Colorado resident would clearly know that a Colorado registered ND is not a licensed physician.”

Status: Passed, awaiting the governor’s signature.

CMS continually demonstrates influence at the Capitol thanks to strong lobbying efforts and through the engagement and involvement of dedicated physicians on the Council on Legislation. Active involvement in advocacy is crucial to Colorado physicians and patients, and CMS encourages those interested to get involved. Go to www.cms.org/
advocacy for more information.

Watch for additional coverage of the session in the July/August issue of Colorado Medicine.


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