November 5, 2021 Advocacy Update

There are only nine session days left this fall for the state House of Representatives, and six days scheduled for the state Senate.  Both remain firmly in GOP control – the Senate by 28-21-1 and the House by a 113-90 margin at present.

The Governor remains in a position to veto legislation as neither chamber has been able to find the 2/3 votes necessary to override one, coming closest on a vote over his authority to close businesses with executive orders as a COVID-19 pandemic control measure.

Four bills we’ve been working on for PA-ACP members were signed into law this fall.

Signed by the governor:

COVID-19 Waivers:

Gov. Tom Wolf signed House Bill 1861 after it passed the House and Senate unanimously, and it is now Act 73 of 2021-- it extends waivers on hundreds of regulations put in place due to the COVID pandemic and another intended to help continue combating the opioid epidemic.  The list of regulations and policies that are impacted is available online.

ABC-MAP:

The Senate also voted unanimously last week to send House Bill 1774-- which extends the Achieving Better Care by Monitoring All Prescriptions program and PDMP.  Governor Wolf signed this bill, and it is now Act 72 of 2021.  The legislation had passed the House by a unanimous vote as well. The ABC-MAP program had been set to expire next June but the legislation extends the program through the end of 2028.

Physician Assistants:

The House and Senate both passed SB 397 and SB 398 unanimously with the amendments we negotiated last week.  The Governor signed the bills on Oct. 7.  They are now Act 77 and 78 of 2021.  The bills expand the number of PAs under one physician’s supervision to six, require all charts/notes be reviewed for at least a year for new PA’s and those changing specialties, and require the two boards to review ten percent of agreements filed each year.  We had language put in that gives physicians the ability to refuse supervision of more PA’s than they are comfortable with, without liability or retaliation within the hospital/health system.  Both bills were requested by the Department of State/Bureau of Professional Licensure.

Other Issues Moving:

Prior Authorization:

SB 225, prior authorization reform, moved out of the Senate Insurance Committee in June, and then the state Insurance Department raised concerns about how the Department would regulate the bill’s provisions. We have been working with Senate staff and the Department to address these issues for two months.  The most recent draft of an amendment to SB 225 now includes a lengthy new section at the Department’s request that deals with external review, and brings PA into compliance with federal statutes.  This language was SB 661 in the 2017-2018 session.

The bill is currently on the Senate Calendar – we expect consideration by the full Senate soon, based on conversations on the hill.

We’ve made other technical changes to strengthen the language, while still preserving the policy intentions of the original bill.

The coalition working on SB 225 is asking its members to all make contacts with members of the Senate a priority for the week of November 8.  PA-ACP has asked its members to contact their State Senators via VoterVoice and will be pushing the issue on social media.

CRNPs:

The Senate is planning to again move SB 25, and it will almost certainly do so with more than 40 votes.  The bill is on the tabled calendar after being moved out of committee in June. However, we have a solid commitment from House leadership and Dave Hickernell, the Professional Licensure chairman to move only the six year pilot project negotiated last session.

Telehealth:

Act 73 extends the state’s telehealth waiver for six months, but does not extend the payment parity provisions.  Legislative leaders, medical organizations and hospital and health systems are all pushing for legislation to make mandated payment for telemedicine permanent.  The Senate passed SB 705 with a 46-4 vote and it was referred to the House Health Committee (where it was amended last session.)

The State House last year amended this bill to prohibit prescription of all drugs on the REMS list, which led to a veto by Gov. Wolf over mifepristone prescriptions.

Noncompete Clauses:

HB 681, with the Medical Society’s amendment allowing these clauses for 2 years within 45 miles, remains on the House calendar. The Senate currently has legislation on the calendar that would prohibit noncompete clauses in broadcast employment agreements.(!)

Department of Health Transparency:

The state House on a party line vote of 113-87 approved legislation that would compel the Department of Health to release more data about disease outbreaks, such as the COVID pandemic.

All Republicans voted in favor of the legislation, HB 1893, and all Democrats were opposed.  Democrats blasted the proposal saying it creates a potential risk that the department would be forced to release private information about residents involved in outbreaks.

The Wolf administration opposes the legislation, citing fears of public release of personally identifiable medical records. Currently, DOH is prohibited from releasing disease information about individuals.  Republicans said that those concerns are misplaced, and that private medical information would still be private due to protections in the state’s Right-to-Know law and the federal Health Insurance Portability and Accountability Act.

The Pennsylvania NewsMedia Association supports the bill and have promised amendment language that would clarify that no individual medical information would become available with its passage.

PNA has complained that the Wolf administration has been relying on language in the Disease Prevention and Control Law to withhold data about the COVID pandemic and its spread across the state.

The General Assembly had passed a resolution calling on the Legislative Budget and Finance Committee to examine data on the COVID pandemic, but that report hasn’t been completed because Department of Health has refused to provide the information it needs.  The bill now goes to the Senate.

Fireworks:

The House Local Government Committee was scheduled to consider HB 1628, sponsored by Committee Minority Chairman Bob Freeman, D-Northampton, but the bill was pulled from its agenda on Wednesday.  The bill would allow municipalities to pass ordinances setting hourly limits, conditions and prohibitions on the use of commercial fireworks.  Committee Majority Chairman Jerry Knowles, R-Schuylkill, said he plans to hold a public hearing on the issue after one member called for it.

The bill is the latest in efforts by several committees to revise a 2017 state law that allows Pennsylvanians to buy explosive fireworks such as Roman candles and rockets for use, instead of being limited to sparklers and other novelty items.  Complaints about noise, smoke and fire danger from homeowners, fire departments and even horse owners, and news of health concerns resulting from misuse of these fireworks have followed the law’s enactment, which was passed as an amendment to the Fiscal Code bill.

HB 1628 contains common-sense proposals to address the complaints, including limiting their use to between 10 a.m. to 9 p.m. from Sunday through Thursday and 10 a.m. to 10 p.m. on Friday and Saturday while allowing extended hours on holidays.  Knowles indicated there are also discussions concerning a proposal to limit fireworks use by Rep. Frank Farry, R-Bucks, who has circulated a cosponsorship memo.  PA-ACP had opposed the expansion of fireworks sales, and supports this legislation.

Miscellaneous legislation

PA-ACP has long supported legislation to extend the PACE/PACENet program eligibility for seniors, and two bills, HB 291 and HB 1650 are moving.  HB 291 would allow qualified seniors to maintain their qualification even if social security COLAs move them above the income threshold.  HB 1260 would increase the PACENET income eligibility limits to $33,500 for single individuals and $41,500 for married couples and require the program to pay monthly premiums in lieu of Medicare Part D payments. PA-ACP supports these bills.

SB 938 is moving from the Senate Health and Human Services Committee.  The bill would establish the powers and duties of the Department of Drug and Alcohol Programs (DDAP) and explicitly state that nothing would preclude the DDAP from implementing the established American Society of Addiction Medicine criteria for drug and alcohol treatment providers.

The same committee intends to move SB 471, which PA-ACP opposes.  The “Medical Freedom  Act” asserts that every resident in this Commonwealth has the inalienable right to bodily integrity and should be free from any threat or compulsion that the individual must receive a vaccination.  An individual who exercises the right not to be vaccinated must not be denied any right or privilege.

Also on the Committee’s agenda is HB 220 which amends the state’s Drug & Alcohol Programs to eliminate requirements for a positive drug test to enter treatment for substance abuse.  This was introduced in response to news that a constituent died of an overdose from taking opium so that he could qualify for treatment after being refused.

Finally, the State Government Committee is moving HB 846, which is not directly a “medical” bill, but which would establish Eastern Standard Time as the permanent time zone for the Commonwealth.  The bill was requested and is supported by the American Academy of Sleep Medicine, the American Academy of Cardiovascular Sleep Medicine, American College of Chest Physicians (CHEST) and the American College of Occupational and Environmental Medicine.

LEGAL ADVOCACY

PA-ACP has joined as a party to an amicus brief in a case before the State Superior Court in Gill v. CHOP on behalf of its members. In this case, a judge in the Philadelphia Court of Common Pleas ruled that virtually all the underlying documents associated with CHOP's investigation were discoverable in three different medical malpractice lawsuits, despite that the documents themselves were generated during the peer review process and had never been published.  This was five years after CHOP conducted an intensive patient safety investigation to determine the cause of an adenovirus outbreak in its NICU. As a result of the investigation, a potential link between adenovirus and non-contact ophthalmologic equipment became apparent, and the physician community was alerted about the findings.

The decision is particularly onerous in itself, and the state Supreme Court as recently as August in Leadbitter v. Keystone Anesthesia Consultants, Ltd., held that the proceedings and records of any committee that performs a peer review function are privileged and not under the state’s Peer Review Protection Act.

POLITICAL NOTES:

November 2 Elections:

While this was an “off-year” election, significant races still took place on November 2.  There were challenges for one seat on the State Supreme Court, one for the State Superior Court and two on the Commonwealth Court.  And four appellate judges are up for retention elections.  While all four Republican candidates won election, Democrats still control the Supreme Court by a 5-2 margin. In 2023, Democratic Justice Max Baer will be forced to retire because of the Court’s 75 year age requirement.

In recent years, after Democrats elected three justices, the Court threw out Pennsylvania’s congressional map-drawing its own, made changes to election laws a week before the 2020 election that allowed counties to accept mail ballots that arrived after Nov. 3, and overturned lower court rulings to uphold Gov. Wolf’s coronavirus pandemic restrictions on some businesses. Additionally, the now trial lawyer heavy court has taken several actions to overturn several parts of the MCare Act and other issues impacting medical malpractice awards and premiums.

These rulings have made the court a target among Republicans, who are pursuing a Constitutional change to have appellate judges run in district elections, rather than statewide.

In statewide judicial races, Republicans appear to have won at least three of the four races, with Judge Kevin Brobson winning a seat on the State Supreme Court, Megan Sullivan winning the Superior Court seat, and Stacy Wallace winning seats on the Commonwealth Court. Four Republican judges, two each on the Superior and Commonwealth Court, won retention elections.  In the remaining judgeship election, Judge Drew Crompton and Lori Dumas appear headed for a recount.  Crompton had a 70,000 vote edge on Wednesday morning, but as counties continued returns of mail in ballots, Dumas was receiving 80-90% of those votes, and now has a slim lead with overseas ballots still to be finalized.  A recount is virtually certain.

In races impacting the General Assembly, two special elections for state House seats were held in Delaware County and Lackawanna County on Tuesday.  In the 113^th district (Lackawanna County) Thom Welby, who served for 8 years as Sen. Marty Flynn’s chief of staff, won with 68% of the vote.  And in the 164^th district (Delaware County) Democrat Gina Curry was elected with more than 84% of the vote.

Philadelphia city ward leaders hand-picked State Sen. John Sabatina Jr. for one of six open Common Pleas’ judgeships -with Sabatina running unopposed for a ten year term. Sabatina’s resignation will open a spot on the Aging and Youth Committee.  (This will create another special election for early 2022.)

In Luzerne County, State Rep. Tara Toohil, a Republican, won election as Judge of the Court of Common Pleas.  This will open her posts on the House Human Services and Professional Licensure Committees.  Toohil’s seat will also be filled in a special election early next year.

And in Pittsburgh, State Rep. Ed Gainey became the city’s first black mayor winning election easily over Republican Tony Moreno.  Gainey plans to appoint State Rep. Jake Wheatley as Deputy Mayor, which would set up two additional special House elections in safe Democratic seats. Wheatley’s resignation will open the Democratic chairmanship of the Professional Licensure Committee.

Reapportionment:

The Pennsylvania Legislative Reapportionment Commission has until December 15 to file its preliminary redistricting plans, but received an extension because of the delay in US Census data delivery.  The Commission’s plan is the final word on General Assembly districts.  Under the state’s Constitution, reapportionment for the Congressional delegation must be done by passage of legislation and be signed by the Governor.