I could not put on line the October 1, 2003 Recent Legislation for technical reasons. I am including it in the November 1, 2003 issue.
Texas has passed a malpractice bill giving $250,000 cap per defendant on non-economic damages and a $750,000 cap for all defendants. The constitutional amendment passed by a 51-49 percent vote.
In Maryland, tort reform is coming to the legislature. This bill would cap non-economic damages and attorney's fees, as they are in California. Top
The Ohio specialty legislation is in trouble. The key legislator is asking for a compromise. He will not back the hospital position of prohibiting physicians from referring patients to specialty hospitals they own. He states they need time to study the potential problem and not just believe the hospitals or physicians. This fact-finding commission would be part of four other prongs. They are (1) a two year prohibition on referring patients to hospitals which they partially own, (2) this prohibition would not refer to any specialty now up or any that file notices of intent by September 26, (3) A two year moratorium on building new for-profit or non-profit specialty hospitals except if done on existing campuses, and (4) a two year prohibition on hospitals denying credentials to those physicians who have invested in specialty hospitals. Both sides are not happy with the proposed compromise.
In Georgia, a new committee controlled by the hospital association, is looking into the stopping of independent surgical centers. Top
The legislature continues to frustrate the Nursing labor union by refusing to punish hospitals who fail to put in the punitive staffing requirements. The only punishment now is a $50 per day fine. The union wanted a $5000 per day fine that would be sure to close hospital beds.
In another bill that passed and was signed by the Governor, it is now against the law for people to loiter in a hospital birthing center or maternity ward. This is to help prevent baby kidnappers.
The potentially soon to be ex-governor has been very busy signing bills before the October 7 recall vote. Some of the other health related bills he signed were AB 236 that forbids any person registered as a sex offender from being licensed as a physician in California. SB 151 removes Schedule II drugs from triplicate but there will be a new form devised for these drugs which of course will need to be purchased by the physicians. There were about 20 others, all initiated by the legislative Democrats, who are the basic cause of the expensive recall vote. Top
Florida has changed the payments for physicians doing Worker compensation. They had in the past lowered the payments to physicians so the experienced physicians dropped out of the program. They are now looking at the error of their ways and have passed a bill increasing fees to 110% of Medicare for medical services and 140% of Medicare for surgical fees. They hope that this will draw back the experienced physicians to the fold. The law also states that the physicians in the program must be up to date on levels of employability, length of disability, functional capacity evals and appropriateness of modified duty. The reason for all this is that a California study has shown that experienced physicians can treat more cases and a lower price. Top
The San Diego city council has voted 6-3 to provide ID cards for those using medical marijuana. They could have in possession one pound and grow 24 plants. Caregivers could have up to two pounds and grow 48 plants for up to four patients. The marijuana must be grown inside a locked area. The police are told to only detain holders of the cards long enough to verify and not to confiscate any of the plants. The police support the measure. The FDA representative stated that " There is no medical use for marijuana, period." He is wrong, period. Top
DISCLAIMER: Although this article is updated periodically, it reflects the author's point of view at the time of publication. Nothing in this article constitutes legal advice. Readers should consult with their own legal counsel before acting on any of the information presented.
The OIG Workplan for 2004 is focusing on physician fraud for the coming year. Specifically, they will focus on consultation billings as well as the E&M Codes. This will specifically look at modifier -25 and therefore physicians must be prepared to justify why they are billing for a service the same day as a procedure. The OIG will also look at acquisition costs of office injectables and the medical necessity for diagnostic tests. Top
Gray Davis, the lame duck Governor of California, has signed the law to require employers to either cover the health care of their workers or pay into a pool to pay for that care. This is good for those now uninsured and the medical profession but will probably not help in the short run due to court challenges and in the long run by the loss of jobs to make up for the extra costs to the businesses. The bill affects those businesses with 200 or more employees and will start in 2006. In 2007 the program will go to those companies wit over 50 employees. The employer will need to pay at least 80% of the premiums. Those businesses with 20-49 employees will be exempt until and if the state can afford to give those businesses a tax credit. (See article in Recent News about Hawaii)
The law will be challenged by the Chamber of Commerce. The only question is how. Both avenues have merit are will probably win. The first is a legal challenge that ERISA trumps the law. The second is to bring it to the voters who will probably toss the law since it is anti-business and pro Davis. Top
Lame Duck Governor Davis has signed multiple health care related bills.
SB 907 licenses for the first time Naturopaths to do diagnosis, minor surgical procedures, write prescriptions, order lab tests and deliver babies.
SB 857 requires the hiring of 160 new investigators for Medicaid abuse by practitioners. This will cost the state about $2 Billion per year. They better find enough to justify that amount of spending. Of course, if they really wanted to catch the crooks, they should look at their own Department. They Department has a policy, unwritten, of authorizing almost all expensive durable equipment and tests. There is little, if any, standardization as to what is covered and what isn't. In Government, as opposed to private corporations, when the workers get a raise, so do the higher ups. The State could save the money by just doing internal controls.
SB 71 requires schools to provide age appropriate sex education.
AB 663 bans teaching hospitals from performing pelvic exams on unconscious patients without prior consent.
SB 130 added specific restrictions for the use of behavioral restraints in medical and psychiatric facilities.
AB 17 requires businesses with large state contracts to treat domestic partners the same as spouses in regard to benis. This includes FMLA and health care benefits. The state will need to pay for this by the company's increasing their bids on projects by the amount of the new law.
SB 582 takes effect in 2004 and restricts the use of ephedra to prescription for asthma only.
SB 969 restricts call centers using unlicensed staff to give out phone advice. This is aimed directly at Kaiser who states the operators do not give out advice but only ask questions and use a phone tree. This will come to a court case.
SB 420 restricts medical marijuana to possession of no more than eight ounces. It also creates a voluntary photo ID for medical marijuana users or dispensers.
AB 1196 authorizes nurse practitioners to prescribe schedule II drugs.
AB 1676 requires physicians to inform women that HIV will be part of the routine tests done on pregnancy. I t also mandates counseling for those who find they are HIV +.
Amendments to Knox-Keene Law that regulates HMOs regarding settlements of claims with providers. The new rules state that claims may be filed up to 90 days after contact with contracted providers and 180 days with non-contracted providers. Plan must acknowledge electronic claims within 2 working days and non-electronic claims within 15 business days. All rejected, adjusted or contested claims must be accompanied by the reason within 45 days. There can be no withholding of payments for prior overpayments unless the provider has been notified and not paid. A complete claim is now defined as one with the minimal amount of information necessary to determine whether or not to pay the claim. The plans must also pay reasonable rates to those providers who are not contracted to the plan. Top
The Bush administration has loosened the reins of providing interpreters for all patients. The new rules use a four prong test. The first is the number of patients with the need for interpreters. The next would be how often they are seen. The third is how important is the service and the the last is the available resources. It is interesting that the rules do not apply to those who only receive Medicare Part B funds but do apply to those who receive other money such as Medicaid. Once covered then they must also cover Medicare patients. The administration states that small providers are not expected to provide the same amount of services as the large providers. This may require the hiring of additional staff that are bilingual in the languages most commonly in the community. The one thing that hasn't changed is that the provider of the medical services will need to pay for the interpreter. It is now possible to use a family member for the interpreter but this may not be forced on a patient. If this becomes a problem, more physicians will go away from Medicaid patients. Top
In a long time battle over the removal of a feeding tube of a patient in Florida, the courts finally sided with the patient's husband who wanted removal of the tube over the wishes of the family who wanted the tube to remain. The tube was removed and then Governor Jeb Bush stepped in. He wanted to override the courts but couldn't. The legislature came running to the rescue and immediately passed a law to allow the governor to order the tube replaced. The governor will have the power to act within fifteen days after the removal of a feeding tube to order the replacement providing the patient has no living will, is in a persistent vegetative state has had the tube removed and a family member is challenging the removal. The case has been decided by the Florida Court of Appeal and the Florida Supreme Court has refused to hear the case twice and the US Supreme Court has refused once. The Governor ordered the tube replaced and the lower court refused an injunction against the replacement of the tube. The case will now probably be heard again as the new law is probably unconstitutional. Top
The California Medical Board is again reiterating it's 1994 with revisions. The new "guidelines" will make sure like Goldilocks the pain is not under treated, not over treated but just right, whatever that means. The new and improved versions state that when giving controlled substances for pain, referral may be required. The ED may give opiates for pain with less of a history and physical than continuing care situations. There must be a treatment plan noting the criteria to evaluate the treatment plan. This may be control of pain, increase in function or improved quality of life. When a patient is requesting opiates for pain relief and the physician decides not to give it, the reason should be noted. A contract for pain management is not required but is suggested. The people on chronic pain meds should be seen at appropriate intervals. Consultations are encouraged especially in those patients who are being treated for pain and for addiction. The records should contain the subjective complaints of the patients and caregivers as well as the physician's objective findings. The original law led to malpractice cases and investigations of good physician by the Board. This should increase both. Top