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Legislative Committee Update 

 

2014 SINE DIE REPORT

MARYLAND GENERAL ASSEMBLY

Julia P. Worcester

Legislative Consultant

The Law Office of J. William Pitcher

 

Nurse Practitioner Association of Maryland


“Laws, like sausages, cease to inspire respect in proportion as we know how they are made.”
~John Godfrey Saxe University Chronicle, March 27, 1869



The 432nd Session of the Maryland General Assembly concluded at midnight on Monday, April 7th with its usual confetti release known as Sine Die1. In this Session, the General Assembly proposed and considered 2,693 legislative bills and resolutions. Since this was an election year session, there was often political posturing but relatively few controversial issues. Governor O’Malley was successful in passing his minimum wage proposal; decriminalizing small quantities of marijuana; and dispensing of medical marijuana was expanded and strengthened.

The story line at the beginning and throughout the Session was the complete failure of the Maryland Health Benefit Exchange (MHBE) website known as “Maryland Health Connection (http://marylandhealthconnection.gov) which resulted in finger pointing and scapegoating featuring all three democratic candidates for governor: Lieutenant Governor Anthony Brown, Attorney General Doug Gansler, and Delegate Heather Mizeur. A joint oversight committee was formed in additional to Secretary Josh Sharfstein being summoned to testify before Congress. The website turned out to be so broken that before the conclusion of the legislative session, it was abandoned altogether and the state will seek to implement the Connecticut framework with new software to the tune of an additional $30-50 million.

All members of the Maryland General Assembly are up for reelection and the statewide offices of Governor, Lt. Governor, Attorney General, and Comptroller will be decided this fall. The Primaries will be held on June 24, 2014 with the General Election on November 4, 2014. In most cases, the winners of the Primary Election for the General Assembly Senatorial and Delegate seats will determine the final candidates because – in most cases – the winner of the primary is likely to be the winner of the general because districts are drawn to “lean” Democratic or Republican, even more so in the latest statewide redistricting.

This report is a sampling of the subject matter and issues address during the 2014 Legislative Session.

PRIORITY ISSUES

HB 402/SB 314: Health Occupations – State Board of Physicians – Naturopathic Doctors
Position: Neutral
Outcome: Passed with Amendments
The multi-year campaign of naturopathic doctors resulted in the passage but only after MedChi amendments were added to
the bill which resulted in also attest to having a collaborative agreement with a physician. The agreed upon language is identical to the current attestation in effect for nurse practitioners with the addition of a consent form to be signed by patient a naturopath treats that the patient understands that the scope of an N.D. is not the scope of an M.D.


Over the objections of the naturopaths, they will be regulated by the Maryland Board of Physicians and will have the most restricted scope of practice of any State in the nation essentially being regulated as an “allied health professional” under the direction of a physician. They will be prohibited from calling themselves “physicians.”

The legislation also directs the Board of Physicians to convene a workgroup to study the development of a naturopathic formulary with the routes of administration that may be used by a naturopathic doctor when administering natural medicines.

The workgroup will consist of stakeholders from MedChi, NPAM, Pharmacists, and the corollary licensure boards. The workgroup will submit a report by July 1, 2015.

HB 779: Maryland Health Care Commission – Health Care Provider-Carrier Workgroup
Position: Support
Outcome: Passed
The bill, which was enacted, provides that the Maryland Health Care Commission shall convene, on a regular basis, meetings
between representatives of health insurance carriers and providers. The goal of such meetings would be to “iron out” issues that may otherwise become bills in the Legislature. Delegate Hammen believes that such regular meetings may result in more agreements between the parties and less disagreements. While he may well be right, only time will tell whether his belief is correct.

NOTE: NPAM may be able to utilize this workgroup once established for future insurance related issues and provider credentialing.

HB 856/SB 1065: Workgroup on Workforce Development for Community Health Workers
Position: Monitor
Outcome: Passed
The Patient Protection & Affordable Care Act of 2010 includes provisions relevant to CHWs that are to become effective
in the next two years authorizing the CDC to collaborate with Health & Human Services to award grants to “eligible entities to promote positive health behaviors and outcomes for populations in medically underserved communities through the use of community health workers” using evidence-based interventions to educate, guide, and provide outreach in community settings regarding health problem in medically underserved areas.

The legislation directs DHMH and the MIA to establish a stakeholder workgroup to study the training and credentialing requirements for CHWs to be certified as nonclinical health care providers along with reimbursement and payment polices for CHWs through the Medical Assistance Program and private insurers.

A report shall be compiled and submitted to the General Assembly on or before June 1, 2015.

NOTE: HB 856/SB 1065 does not specify the members of the stakeholder group to be convened. We recommend NPAM
sending a letter to DHMH and MIA requesting that a nurse practitioner from NPAM be appointed to the workgroup.

HB 1211: State Board of Nursing – Midwives – Licensing and Regulation
Position: Opposed (written), Support (concept/regulation) Outcome: Failed
Ample evidence exists that both home birth and the practice of certified professional midwives (CPMs) certified by the
North American Registry of Midwives (NARM) are safe alternatives for women. However, the bill defined to a greater degree the scope of practice and specific high risk conditions that would trigger a referral by the CPM than past bills. NPAM
would support HB 1211 if the bill is amended to state that only women with low risk pregnancies and single fetuses in the vertex position are to be managed by CPMs in the home care setting.

NPAM recommended the following suggestions for amendments:
• Following the California model which requires the NARM exam passage and a 3 year post-secondary midwifery education program (84 semester units or 126 quarter units), or the Delaware model which requires NARM exam passage and a complete accredited midwifery program.

• Legislation be amended to require hospitals to have written clinical practice guidelines for accepting home birth and birth center birth transfers, including a point of contact available at all times and procedures for evaluation and follow-up of the transfer process.
• Continue to work towards the ability to license CPMs with quality educational competencies, limited scope of practice to low-risk births, limited prescriptive authority, and strict sanctioning guidelines for failure to adhere to standards set forth by state regulations. With those changes, NPAM could support this initiative.

HB 1233/SB 622: Health Insurance – Step Therapy or Fail-First Protocol
Position: Support
Outcome: Passed with Amendments
While the Step Therapy legislation was unsuccessful in 2013, the tide turned the Maryland Health Care Commission
(MHCC) and its staff in a study of the issue during the summer and fall of 2013. The MHCC Report to the Legislature concerning step therapy reforms was key in crafting the final version.

In its final form, the legislation provides for three things:
• There is a 180-day “Grandfather Provision” which disallows any insurer from requiring a patient who has been successfully treated with a medicine in the last 180 days to undergo “Step Therapy” in order to continue on that
medicine. This will help untold numbers of patients who have been forced into “Step Therapy” when their insurance
changes.
• The second provision of the bill forbids an insurer or PBM from requiring the use of a medicine in its step therapy protocol which is not FDA approved for the specific condition. In enacting this provision, MD becomes the first State in the nation to insist upon this requirement and, remarkably enough, many of the step therapy protocols imposed by
insurers and PBMs require the use of non-FDA approved medicines.
• Third, the legislation provides that doctors will have a step therapy override process available to them in the online preauthorization programs which are to become effective in July of 2015.

HB 1235: Community Integrated Medical Home Position: Support (as written), Concerned (as amended) Outcome: Passed with Amendments
Late in the Session, DHMH introduced HB 1235 to create a Community Integrated Medical Home Program and an Advisory
Board. CIMH is a concept that is designed to expand the patient centered medical home concept across all payers and to
incorporate “community health workers” and other community based services into the model to assist patients with access and compliance.

The bill was purportedly the outcome of the extended stakeholder process held over the interim that occurred as a result of a CIMH planning grant DHMH received from the federal government. However, the bill, as introduced, proposed a program design that was not previously vetted by the stakeholders and it raised as many questions as it answered and was opposed by virtually all interest groups.

Consequently, DHMH significantly amended the bill to reflect only the creation of an advisory board to work with the Department on the development of the program. While stakeholders did not object to the advisory board concept, there remain many questions about the development of this program going forward.

DHMH has recently submitted a program application to the federal government for funding consideration. Public comment was not requested prior to its submittal but DHMH has assured stakeholders that it is dynamic proposal that can be amended based on public input. It remains a work in progress for which NPAM will continue to be an active participant.

SPECIAL 2014 PLATFORM: MENTAL HEALTH

HB 592/SB 620: Mental Health – Approval by Clinical Review Panel of Administration of Medication – Standard (Passed)
HB 606/SB 67: Mental Hygiene – Standards for emergency Evaluation & Involuntary Admission – Modification (Failed)
HB 767/SB 831: Public Health – Mental Hygiene Law – Assisted Outpatient Treatment (Failed)
HB 1267/SB 882: Dept. of Health & Mental Hygiene – Outpatient Services Programs Stakeholder Workgroup (Passed)

A trio of bills were introduce this year by the National Alliance on Mental Illness (NAMI) to mandate involuntary treatment in the community (HB 767/SB 831), to loosen the standards for involuntary commitment to a psychiatric facility (HB
606/SB 67), and to make it easier for physicians to medicate individuals against their will once committed (HB 592/SB
620), this was the only bill to pass of the proposed package.

All three sets of those bills were strongly opposed by the Mental Health Association of Maryland (MHAMD), the Maryland Psychiatric Society, the Maryland Psychological Association, and the American Civil Liberties Union (ACLU) on the grounds that passage of this expansive statute would be a significant step backwards in addressing mental illness while increasing institutionalization of the mentally ill through the use of involuntary commitments and psychiatric medications.

In response, legislation was introduced by the MHAMD to provide an alternative, no-coercive approach to engage this population (HB 1267/SB 882). The language as proposed was stripped and replaced by a stakeholder process to be developed by DHMH to consider what best serves individuals with mental illness who are at high risk for disruptions in the continuity of care.

NOTE: HB 1267/SB 882 does not specify the members of the stakeholder group to be convened. We will continue to monitor the developments of that group and attend any scheduled public meetings.



OTHER LEGISLATION OF INTEREST

HB 395/SB 702: Health Care Malpractice Claims – Definition of “Health Care Provider”
Position: Support
Outcome: Failed
House Bill 395 changes the coverage of the Maryland laws relating to malpractice claims so as to include certain “health care providers” (pulled in Nurse Practitioners by way of adding the “Board of Nursing”) who may be sued for medical
malpractice.

When the present malpractice system was set up, many of the current “health care providers” did not exist. For example, “nurse practitioners” and “physician assistants” were not yet licensed provider groups and, hence, they are not covered by the malpractice law. Expanding the definition of “health care provider” draws many providers under the Health Care Malpractice Claims subtitle of the Courts and Judicial Proceedings Article. This means that a medical malpractice claim must be adjudicated under procedures which require a plaintiff to file a certificate of a qualified expert and a supplemental certificate attesting to noncompliance with standards of care.

The bill pulled in “licensees” by licensure board rather than specifying the provider. Because of the wide range of providers
licensed under each board, many who are never subjected to high dollar malpractice suits, the bill failed.

HB 761/SB 874: Health Insurance – Specialty Drugs
Position: Support
Outcome: Passed with Amendments
This legislation addresses the provision of specialty drugs designed to be prescribed for “complex chronic medical conditions” as well as “rare medical conditions.” These conditions require extremely expensive prescription drugs which
cost $600 or more for a 30 day supply.

The language places a co-insurance limit of $150 for a 30 day supply on such specialty drugs, indexed for inflation, bringing the drugs into the range of affordability for those patients suffering complex, chronic or rare medical conditions.

The amendments make the bill stronger: While an insurer subject to the bill is allowed to distribute covered specialty drugs through its pharmacy network, non-network pharmacies are allowed to apply to be in the network provided they meet the insurer’s performance standards and accept the network reimbursement rate. This amendment provides the opportunity for a more broadly based pharmacy network including pharmacies owned by Federally Qualified Health Centers. In addition, the dispute over what is a “specialty drug” is to be solved by filing a complaint with the Insurance Commissioner, giving the patient a forum to redress disputes.

HB 802/SB 198: Maryland Medical Assistance Program – Telemedicine
Position: Support
Outcome: Passed
This bill specifies that, to the extent authorized by federal law, coverage of and reimbursement for health care services delivered through telemedicine must apply to Medicaid and managed care organizations in the same manner they apply to health insurance carriers. Subject to the limitations of the State budget and to the extent authorized by federal law, the
Department of Health and Mental Hygiene (DHMH) may authorize coverage of a reimbursement for health care services that are delivered through store and forward technology or remote patient monitoring. DHMH may specify by regulation
the types of health care providers eligible to receive reimbursement for health care services provided to Medicaid recipients.

HB 1009/SB 789: Civil Actions – Noneconomic Damages – Catastrophic Injury
Position: Opposed
Outcome: Failed
This bill, he principal initiative of the Maryland Association for Justice (once known as the Maryland Trial Lawyers
Association) would have tripled (3x) the current Maryland cap on noneconomic damages. The current cap in any case involving “catastrophic injury” is $745,000 (25% more in a wrongful death case) and would have been moved to over $2 million in a case which could be defined as a “catastrophic injury.” An analysis of the definition of “catastrophic injury” in the bill indicated that almost all medical malpractice cases filed in Maryland would fit that definition. (The current cap only applies to physicians in Maryland, another bill, HB 395/SB 702 would have added in other providers to the cap but that bill failed).

Since the cap on noneconomic damages applies in all cases, not just medical malpractice, most of the injured people who appeared before the Senate and House Committees testifying on these bills had suffered injury in non-medical situations. In most cases the victims made very compelling witnesses. At the end of the day, however, the testimony of the physicians, hospital community and the business community was able to thwart any favorable actions on these bills.

HB 1127/SB 884: Health Insurance – Incentives for Health Care Practitioners
Position: Opposed (as written), Support (with amendments) Outcome: Passed with Amendments
This piece was an initiative of the health insurance industry and particularly United Healthcare. It changed the Maryland
“bonus” law which regulates the types of incentives that health insurance carriers may build into a provider’s contract. It
was clear that the existing Maryland bonus law was worded in such a way that perfectly acceptable bonuses might be forbidden as well.

The amended bill specifically stated that any bonus could not be a “disincentive” for medically appropriate care and that any bonus arrangement between a health insurer and a provider was to be in writing and have a clear description of the bonus rules. Moreover, a provider could not be forced, in his or her contract, to agree to such a bonus and would have the right to file a complaint with the Maryland Insurance Administration if the bonus was medically inappropriate. The amended version received the support of the provider community.

HB 1363/SB 832: Health Care Provider Malpractice Insurance – Scope of Coverage
Position: Monitor
Outcome: Failed
This bill would have allowed a medical malpractice insurance policy to include coverage for the defense of a health care provider in a disciplinary hearing (i.e. licensing board) arising from the practice of the health care provider’s profession – by repealing the provision prohibiting such coverage. The bill also makes a conforming change by repealing the provision
that allows a separate insurance policy to be purchased to cover this kind of defense.

Currently, malpractice insurance carriers can provide a defense attorney for the health care provider if the provider is sued for malpractice but can't provide an attorney for the provider if the provider is undergoing a disciplinary action (legal proceeding) by the provider's licensing board. Expanding the coverage of malpractice insurance may have been be a positive for a health care provider, provided the expansion didn't significantly increase the cost of malpractice insurance.

SB 607: Health Occupations – Child Abuse and Neglect – Training
Position: Opposed
Outcome: Failed
This bill would have required each individual licensed or certified under the Health Occupations Article to receive, prior to
licensure or certification, ninety (90) minutes of training in the identification and reporting of child abuse and neglect will be mandated to complete the required training despite working in a setting that does not involve children. This training must be repeated every four years. If an individual fails to receive this training, the respective health occupation board may take disciplinary action against the individual.

NPAM along with many other associations, opposed this bill as unnecessary and an administrative burden on the licensure boards.

There has been an increased push to criminalize failure to report child abuse with penalties that include jail time up to one year and monetary fines of $1,000 per conviction. This has been a concern for many provider groups and we should continue to stay vigilant in watching for future initiatives.

Other similar bills introduced this year (all failed):
• HB 1053/SB 210: Child Abuse - Failure to Report - Penalties and Task Force
• HB 1193: Task Force to Study Implementation of Strategies for Preventing Sexual Exploitation of Clients by Health
Professionals
• HB 1344: Task Force on Preventing Child Sexual Abuse
• HB 1389: Task Force on the Prevention of Child Abuse and Neglect

NOTE: NPAM should begin to engage legislators by education on the current reporting laws for health care providers and that to criminalize (i.e. add jail time) to the law could result in providers over reporting to law enforcement and DSS – both entities that are already overburdened and understaffed which won’t result in the intended goal.

WRAP UP

NPAM’s input is very valuable to the legislators and they want to hear from you, the experts, when considering health care legislation. As your lobbyists, we will be your eyes, ears, and advocates on the ground in Annapolis, we encourage you to come to Annapolis and contact your legislators and tell them how you feel about issues that are important in Maryland.

Please contact me or Bill, if we can assist you in any legal or lobbying matters. I have been honored to represent your organization and look forward to the future of representing this association in many different capacities and possible new legislation in coming years. We are looking forward to an exciting new year in Maryland!

Julia Pitcher Worcester
Legislative Consultant
Law Office of J. William Pitcher
27 Maryland Avenue
Annapolis, MD 21401
410.268.0842 Office julia@marylandlobbying.com

Copyright, 2014 by Law Offices of J. William Pitcher. This material and the work product contained herein may not be distributed, published or reproduced without the express written permission of the author/copyright holder.


 

 


[1] The term “Sine Die” from the Latin “without a day” means “without any future date being designated for resumption" or "indefinitely". It is often used with reference to meetings or when an organized body's existence terminates.

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