Legislative Update: June 13, 2016

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Marilyn Singleton, MD, JD summarizes recent healthcare-related legislative activity on Capitol Hill.

The ACA has been seemingly off Congress’ radar since the veto of Restoring Americans’ Healthcare Freedom Reconciliation Act of 2015, the last attempt to repeal the ACA; however, in recent weeks there have been a few developments. Rep. Pete Sessions, (R-TX) and Sen. Bill Cassidy, (R-LA), introduced H.R. 5284, the Health Empowerment Liberty Plan or the HELP Act, what they are terming an “alternative” health care bill which will not repeal the ACA, but work alongside it and modify various parts of the system. Congressman Sessions calls the legislation “The World’s Greatest Health Care Bill. Ever.”  We shall see.

Speaker Ryan’s promised replacement plan is “coming later this month” and in the meantime, “House Republicans are considering small-bore changes to ObamaCare,” according to The Hill. On the Senate side, Majority Leader McConnell seeks to “steer Republicans away from fights on ObamaCare,” in upcoming spending legislation.

A Common Sense Bill

This is not necessarily a health related bill, but is long overdue. In this day and age of identity theft, the government still sends mail with social security numbers prominently displayed.

On May 26, 2015, H.R. 5320, the Social Security Must Avert Identity Loss (MAIL) Act was introduced by Rep. Sam Johnson (R-TX) and referred to the House Ways and Means Committee. The bill mandates that the Commissioner of Social Security ensure that no document sent by mail by the Social Security Administration includes a complete social security account number unless the Commissioner determines that inclusion of such complete number is necessary.

Full text: https://www.govtrack.us/congress/bills/114/hr5320/text

Licensure Across State Lines

Interest in this year-old bill has been re-ignited by multiple bills promoting telehealth which include practicing medicine across state lines. Additionally increasing focus on licensing and malpractice coverage across state lines is the Interstate Medical Licensure Compact, now adopted by 17 states. No licenses have yet been issued under the Compact, however.

In February 2015, H.R. 921, the Sports Medicine Licensure Clarity Act was introduced by Rep. Brett Guthrie (R-KY) The Senate companion bill, S. 689, was introduced by Sen. John Thune (R-SD). The bill provides that for purposes of medical professional liability insurance or civil and criminal malpractice liability determinations, a physician or athletic trainer (covered sports medicine professional) who is authorized to practice medicine in a state (primary state) and who provides medical services to an athlete or athletic team in a state where such professional is not authorized to practice (secondary state) shall be deemed to have provided such medical services in the primary state, provided that prior to providing the covered medical services such professional has disclosed the nature and extent of such services to the entity that provides such professional with medical professional liability insurance in the primary state.

Full text House: https://www.govtrack.us/congress/bills/114/hr921
Full text Senate: https://www.govtrack.us/congress/bills/114/s689/text

On March 21, 2016, H.R. 4819, the Health for Each American Less fortunate Through Help from medical professionals In Every Rural and impoverished area Act of 2016 or the HEALTHIER Act of 2016 was introduced by Rep. John Duncan (R-TN) and referred to the House Energy and Commerce and Ways and Means Committees. This bill requires the Department of Health and Human Services to award grants to states with a volunteer health care provider law that permits a volunteer to provide health care services without being licensed in the state if the volunteer is licensed in another state. The law must: (1) require the services to be provided in a rural or impoverished area and to be within the scope of practice of the provider in the state, and (2) prohibit the services from being provided for more than seven consecutive days.

Full text: https://www.govtrack.us/congress/bills/114/hr4819/text

Opiate Wars

On May 16, 2016, S. 2932, the Protecting Patient Access to Emergency Medications Act was introduced by Sen. Bill Cassidy (R-LA) and referred to the Senate Health, Education, Labor, and Pensions Committee. This bill attempts to add another front in the war against opiate abuse. The bill requires emergency medical service agencies to document in the patient care chart a verbal order was received from online medical direction and a controlled substance was administered. The bill also sets rules regarding locations which may receive controlled substances, how the substances are moved and delivered between locations, and how these substances are stored.

Full text: https://www.govtrack.us/congress/bills/114/s2932/text.

On April 27, 2016, S. 2866, Jessie’s Law was introduced by Sen. Joe Manchin and referred to the Senate Health, Education, Labor, and Pensions Committee. This bill would expand who can give consent to release a patient’s records to include oral consent and consent by a patient’s spouse, parents or guardians. The bill also instructs the Secretary of Health and Human Services to develop and disseminate standards to provide information to hospitals and physicians relating to prominently displaying the history of opioid addiction in the medical records of patients (including electronic health records) if the patients have consented to having such information included in such records. The standards must display the past opioid addiction of a patient in a manner similar to other potentially lethal medical concerns, including drug allergies and contraindications and address the need for a variety of medical professionals, including physicians, nurses, and pharmacists, to have access to such information when prescribing or dispensing opioid medication to ensure that the medication is medically appropriate given the history of addiction of the patient.

Full text: https://www.govtrack.us/congress/bills/114/s2866/text

On March 16, 2016, S. 2691, the Integrating Behavioral Health Through Technology Act was introduced by Sen. Sheldon Whitehouse (D-RI) and referred to the Senate Health, Education, Labor, and Pensions Committee. The bill would require that the Substance Abuse and Mental Health Service Administration, in consultation with the Director of the Office of the National Coordinator for Health Information Technology, establish a pilot program under which incentive payments may be made to eligible professionals and eligible behavioral health facilities for the adoption and use of certified EHR technology. Behavioral health facilities are defined as psychiatric hospitals, accredited residential or outpatient mental health treatment facilities, and accredited substance abuse treatment facilities.

Full text: https://www.govtrack.us/congress/bills/114/s2691/text

Patient Empowerment

The fact that insurers are so involved with pre-authorizations and micromanaging hospital stays should be addressed. Although this bill is centered on breast cancer, there are many other conditions where the patient is shoved out the door sometimes dangerously soon. Then, of course, the hospital can get dinged for having a readmission.

On May 11, 2016, H.R. 5195, the Breast Cancer Patient Protection Act was introduced by Rep. Rosa DeLauro (D-CT) and referred to the House Energy and Commerce, Ways and Means, and Education and Workforce Committees. The preamble notes that many complications may have been due to the premature discharge of breast surgery patients. The bill would require health plans to provide coverage for a minimum hospital stay for mastectomies, lumpectomies, and lymph node dissection for the treatment of breast cancer and coverage for secondary consultations. Specifically, health plan coverage may not, if the physician deems it medically necessary, (i) restrict benefits for any hospital length of stay in connection with a mastectomy or breast conserving surgery (such as a lumpectomy) for the treatment of breast cancer to less than 48 hours; or (ii) restrict benefits for any hospital length of stay in connection with a lymph node dissection for the treatment of breast cancer to less than 24 hours; or (iii) require that a provider obtain authorization from the plan or the issuer for prescribing any length of stay required.

With regard to consultations, coverage must be provided for secondary consultations, on terms and conditions that are no more restrictive than those applicable to the initial consultations, by specialists in the appropriate medical fields (including pathology, radiology, and oncology) to confirm or refute such diagnosis. Coverage must be provided for such secondary consultation whether such consultation is based on a positive or negative initial diagnosis.

Of note, for out-of-network physicians, if the attending physician certifies in writing that services necessary for such a secondary consultation are not sufficiently available from specialists operating under the plan, such plan or issuer shall ensure that coverage is provided at no additional cost to the individual beyond that which the individual would have paid if the specialist was participating in the network of the plan.

Full text: https://www.govtrack.us/congress/bills/114/hr5195/text

On April 29, 2016, H.R. 5138, the Over-the-Counter Contraceptives Act was introduced by Rep. Mia Love (R-UT) and referred to the House Energy and Commerce and Ways and Means Committees.  The bill mandates that the Food and Drug Administration (FDA) prioritize review of supplemental drug applications (applications to modify the approved use of a drug) for contraceptive drugs intended for routine use that would be available to individuals aged 18 and older without a prescription. The FDA must waive user fees for such supplemental drug applications. Any drug that is eligible for this priority review must be a prescription drug for individuals under age 18.

This bill repeals provision of the Patient Protection and Affordable Care Act that prevents health savings accounts and health flexible spending accounts (HFSAs) to be used to pay for medicine without a prescription and removes the limit on salary reduction contributions to a HFSA under a cafeteria plan, effective as if the provisions had never been enacted.

Full text: https://www.govtrack.us/congress/bills/114/hr5138/text

Due Process for Physicians

This bill is a good example of framing an issue in terms of patient care rather than focusing solely on unfairness to physicians.

On March 17, 2016, S. 2701, the Medicaid Program Integrity Enhancement Act was introduced by Sen. Martin Heinrich (D-NM) and referred to the Senate Finance Committee. H.R. 4802, introduced by Rep. Ben Lujan (D-NM) is the companion House bill. The bill requires consideration of the impact on beneficiary access to care when determining the credibility of an allegation of fraud. An allegation would be considered credible if (1) the allegation has indicia of reliability; (2) the State Medicaid agency has reviewed all allegations, facts, and evidence carefully and acts judiciously on a case-by-case basis; and (3) the State Medicaid agency has taken into consideration the potential impact a payment suspension may have on beneficiary access to care.

The bill also requires the enhancement of due process protections in procedures for suspending payments to Medicaid providers. The Medicaid agency cannot suspend payments  (1) unless it consults with the Medicaid fraud control unit and receives a written verification from the Medicaid fraud control unit or attorney general, confirming such consultation; (2) the Medicaid agency (a) certifies that it has considered whether beneficiary access to items or services would be jeopardized by a payment suspension; (b) a good cause not to suspend payments exists; (c) the Medicaid agency furnishes the provider with the agency’s reasons for finding that there is no good cause to refrain from suspending payments in whole or part.  After the suspension, the Medicaid agency must re-evaluate every quarter whether the suspension should continue.

Full text Senate: https://www.govtrack.us/congress/bills/114/s2701/text
Full text House: https://www.govtrack.us/congress/bills/114/hr4802/text

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