Advocacy Update - September 1, 2021
The General Assembly remains in summer recess with the Senate not scheduled to return until September 20 and the House planning a September 27 return. Since the end of June, legislative committees have been focused on COVID-19 recovery, school openings, child abuse issues, opioid related matters, election issues, and the “normal” policy committee hearings on locally important issues across the state.
Both chambers remain under GOP control with the Senate 28-21-1 Republican and the House at 113-88 with two vacancies. Rep. Margo Davidson resigned July 23, and along with the seat vacated by now-Sen. Marty Flynn special elections will be held to fill the two House seats on November 2.
The Governor’s disaster declarations and emergency orders for COVID-19 and the opioid epidemic were not renewed by the General Assembly after 21 days, which has led to some confusion in the provider community. With the opioid emergency ending on August 25, PA-ACP is working with the Administration and legislative leadership to ensure beneficial changes are not lost
There’s lots of other discussion and work going on under the surface in the Capitol and over Team/Zoom meetings. Those discussions have engaged PA-ACP on the issues we have already prioritized, including telemedicine, prior authorization reform, scope of practice and opioid control legislation.
At present, the following items are either on PA-ACP’s established priority list, or on the legislative priority list and impact internists and their patients:
The passage of the two constitutional amendments led to the end of the Governor’s disaster declaration but agreements with the General Assembly resulted in extension of many of the flexibilities created under that order. With the Governor signing Act 21 (HB 854), licensing waivers, telemedicine and other Covid-19 exceptions were allowed to remain active until September 30, 2021, unless some other action ended them sooner. Temporary licensing of retired health care providers was extended, but ends this month as well.
When Governor Wolf issued a waiver for telemedicine, it allowed health care practitioners licensed under the Bureau of Professional and Occupational Affairs to provide services via telemedicine when appropriate. This now applies only to telemedicine services provided by Pennsylvania-licensed practitioners to Pennsylvania patients.
Practices have also been affected by decisions made in other states, as those flexibilities have changed on a continuing basis since July 1. In early august, the Department of State announced that its professional licensing waivers issued under the COVID-19 disaster declaration would begin to expire in several phases starting August 17. Under Act 21 of 2021, all waived and suspended regulations initiated because of the COVID-19 disaster emergency declaration will expire on September 30, 2021, unless terminated sooner.
The nearly 100 waivers approved by the administration temporarily eased regulations to allow such things as extended temporary practice permits and expanded scopes of practice for certain health professions, expedited reactivations to allow retired licensees to join pandemic response efforts more easily, and emergency temporary licenses for out-of-state practitioners who wished to help in Pennsylvania.
Many of the orders that changed practice parameters were orders from the Secretaries of Health or Human Services under the state’s Disease Prevention and Control Act, and not contingent on the disaster declaration and orders. We anticipated further actions with the delta variant, and this week, the Governor and Acting Secretary Alison Beam announced a statewide masking mandate for schools K-12 and daycare settings. We anticipate further actions this fall under these provisions, and can assure there will be legislative and legal pushback. Last week, several House Committee chairs raised the possibility that they would question whether the DPCA covers COVID-19 OR the opioid epidemic and legislation is being circulated to amend that act to clarify what the Secretary can do..
The Department of Human Services lifted prior authorization waivers for its Medicaid Managed Care Organizations (e.g., UPMC, Geisinger, Heath Partners, Gateway, Aetna, United, Caritas/Keystone First/AmeriHealth) on July 1.
Legislation (SB 671) is still positioned to run quickly in September which PA-ACP supported to extend waivers and administrative flexibilities for health care facilities and providers for one year after the end of the disaster emergency order. The bill is in the Senate Appropriations Committee and would simply have to be moved to the floor with an amendment to secure final passage vote in that chamber. We have received requests from both chambers for items that were waived or extended that should be considered for permanency in legislation like SB 671.
At the same time, action by the General Assembly and the Wolf Administration created a statewide COVID-19 Vaccine Task Force in February, which has continued a bipartisan effort to address improving the state’s efforts. In early August, the Task Force sent a letter to the Pennsylvania General Assembly, the Pennsylvania Congressional delegation, and county and local officials asking them to support vaccination efforts in the commonwealth and encourage their constituents to get vaccinated.
The ongoing efforts from the Task Force are being cited as proof that the Administration and General Assembly can work together, but the continuing issues raised by the pandemic, variants and expanding spread, along with the attitudes of many elected officials may become a problem in moving forward on many fronts.
OPIOID EMERGENCY ORDER
The Governor’s 15th opioid disaster declaration ended August 25. He renewed that order on August 5 and asked the General Assembly to return to extend it, but legislative leadership chose not to return for that issue. We do expect legislation will be offered and moved to put the remaining pieces of what’s been done through those orders into law, including the ability of state agencies to share information from the PDMP. Sen. Devlin Robinson has circulated a cosponsorship memo for legislation that would modernizing current law to align with the Health Insurance Portability and Accountability Act (HIPAA) standards for those with Substance Use Disorder (SUD) and mental health diagnoses.
As noted above, there’s been a lot of effort expended behind the scenes this summer while the General Assembly is on its summer break. Among the priority issues we’re continuing to work on:
CRNP Scope of Practice – We have met with Senate leadership on this issue this summer and followed up with the Chair of the Professional Licensure Committee in the House. Senate proponents of SB 25 continue to push for early consideration of the original bill and it may be voted on this September. The nurse practitioners have been making the rounds letting members know that Delaware passed a new law this summer granting them independent practice. They have also claimed that the agreed-to pilot project would only impact 47 of 16,000 CRNPs in the state.
House Professional Licensure Committee chair David Hickernell is reintroducing the legislation that would provide for the six year pilot project that was agreed to in the 2020 session. PA-ACP supports the pilot project that would allow CRNPs to practice in federally designated Health Professional Shortage Areas for six years, with a study conducted to review access, outcomes and patient health before considering further scope of practice expansion.
Telemedicine – Sen. Elder Vogel’s SB 705 has passed the Senate twice and is on the calendar for consideration this fall. We’ve met with the executive directors of both Insurance and Consumer Protection and Professional Licensure Committees on this bill to explain the importance of getting state legislation authorizing and establishing procedures for approval and payment for telemedicine. Payment issues will not be part of any package that runs, unfortunately, as the majority of both House and Senate feel the legislature should not be dictating payment levels to insurers.
Non-compete Contracts –HB 681, sponsored by Rep. Torren Ecker, is on the House calendar for final consideration on their return. It was amended in June to allow a health system to still use these clauses for two years within 45 miles in health care provider contracts. The medical provider community is split on the legislation as amended. PA-ACP opposing the broad provisions that were inserted with the amendment.
Prior Authorization. We are still negotiating over the language in HB 225/SB 225 and those discussions have been ongoing weekly over the entire summer. Bill sponsor Sen. Kristen Phillips-Hill has been overseeing these meetings of stakeholders. PA-ACP, HAP, PA Med and the PA Orthopedic Society have taken leads on the provider end, and the Insurance Federation, Highmark, and IBC are leading the insurer side. The 50-member patient coalition also is directly involved in support of the bill, notably its step-therapy provisions. We have recruited more than a dozen members of the House and Senate to become cosponsors this session.
The PA Insurance Department became engaged in the issue in July, and proposed dozens of changes to the original bill. We have worked with them to address those changes. PID also requested language that would make PA ACA-compliant, with the ability, like the majority of other states, to monitor current coverage denials by insurers through the external review process and take timely action against them regarding any issue that appears with frequency. That language has been drafted as an amendment to the bill.
Other Scope of Practice Legislation.
We have met again this summer with the prime sponsor and staff re SB 511, to oppose continuing the expanded role of pharmacists to administer more vaccinations, injections and biologicals.
SB 397 and SB 398 are also on the fall agenda. These bills would increase the number of PAs a physician can supervise from 4 to 6 and would change how the Bureau of Professional and Occupational Affairs handles oversight of agreements and review of activities by physicians.
Under the bills, physicians could submit their PA agreements to the State Board of Medicine for filing, rather than approval. The proposals under consideration would have physicians continue to countersign 100% of charts for a period of 12 months for a new PA and/or for a PA who is changing specialties; and 10% of the charts for a period of up to 5 years. On physician license renewals, a new check box would include attestation that the physician reviews PA charts. Hospitals and the PAs are still seeking to further expand the number of PA’s under one physician’s supervision in health care facilities and large group settings.
Pharmaceutical Transparency Act
SB 579, the Pharmaceutical Transparency Act, remains in the Banking and Insurance Committee. Two other bills, HB 209 and HB 321 (Puskaric) are in the House Insurance Committee. A resolution (HB 82, (Pashinski) that would have the Joint State Government Commission study prescription drug pricing remains in the House Health Committee.
These bills have bipartisan cosponsorships, but there has been little interest in moving them out of committees. PA-ACP has testified in support of legislation to control drug costs, and has supported these bills that would save patients money and increase compliance with drug regimens.
Vaccine, Masking Legislation. There have now been 32 bills introduced or pending that would impact vaccinations, ranging from childhood vaccinations to Covid-19, and another dozen that would regulate mandates for masking or social distancing. The return of the school year has focused attention on these issues in the past 2-3 weeks. These bills are variously in the Health, Insurance, Human Services and Education Committees.
HB 958, “The Immunization Freedom Act,” sponsored by Rep. David Zimmerman of Lancaster County, was voted out of the House Health Committee in June. This bill would require administrative penalties to any health care provider who requires patients receive vaccinations according to the CDC-recommended schedule for treatment or who requires that adult patients get vaccinated to remain under their care. PA-ACP opposes this bill.
Other bills of interest
HB 1033, sponsored by Health Committee chair Kathy Rapp, would require insurers to reimburse for long term antibiotic and antimicrobial treatments if determined to be medically necessary by the health care provider. The bill also forbids licensing boards from taking actions against a health care provider for recommending a treatment protocol which the health care practitioner deems medically necessary. It passed the House in June by a 136-66 vote and is in the Senate Banking and Insurance Committee.
SB 511, sponsored by Sen. Judy Ward, would expand pharmacists’ scope of practice to include those waivers they received during the COVID-19 crisis, and further expand their practices to immunizations of children under 9 years of age. The House Professional Licensure Committee is holding a hearing September 20 to consider pharmacy extensions, in light of the fact that those waivers will all end Sept. 30.
We expect several other pieces of legislation to be introduced between now and Sept. 20/27 as the situations change with COVID-19 and its variants, and in response to the new statewide mask mandate for children in grades K-12 and in daycare.
PA-ACP has joined in amicus curiae briefs in lawsuits and appeals in the past two years to protect the interests of its members in cases affecting medical malpractice decisions. Most recently, our brief in the case of Reibenstein v. Barax is over a Superior Court ruling that could change the statute of limitations on wrongful death actions.
The Chapter has significant concerns that in the past four years, the statewide Courts have continually re-interpreted laws and language that the courts, the Administration and the General Assembly had all agreed to, by the creation of the MCARE Act and other legislation to resolve a crisis in medical malpractice lawsuits and med mal insurance costs in 2003. These court rulings continue to chip away at provisions that assure reasonable costs for medical professional liability insurance.
Between 2000 and 2003 the average cost of medical professional liability insurance for internal medicine physicians in Pennsylvania rose from an average of $7,390 to $24,546 - more than a 330% increase. Costs in Philadelphia, where more than half of all state med mal lawsuits were filed, rose even more and were higher.
Since 2018, the Court has – from the bench – changed legislation regarding venue, statute of repose, and now statute of limitations, as well as definitions – in this case what “cause of death” means.
The Supreme Court agreed on May 4 to hear an appeal in the Reibenstein v. Barax case. Plaintiff Linda Reibenstein had sued Dr. Patrick Conaboy and Dr. Charles Barax over the death of Mary Ann Whitman.
The state Superior Court ruled that ‘cause of death’ as it appears in MCARE’s statute of limitations refers to ‘conduct leading to death,’ not the medical cause of death.
The amicus filing supports the argument that the MCARE statute is clear on the cause of death, and the Superior Court decision was directly at odds with MCARE’s plain meaning and stated purposes. It also argues that the statute of limitations on a wrongful death claim may only be tolled where a plaintiff proves that the defendant against whom the claims are asserted (and not a third party) misrepresented or fraudulently concealed decedent’s cause of death?”
The Superior Court's Opinion took an unambiguous medical term of art and redefined it with invented legalese, reversing a law that was carefully negotiated and passed on an overwhelmingly bipartisan basis almost 20 years ago, and unilaterally put a new law in its place in a total vacuum of support from either legislative history or legal precedent.
In another case, the Supreme Court issued a favorable opinion in Leadbitter v. Keystone Consultants. PCCJR and other parties had filed an amicus brief. It was a unanimous decision authored by Justice Saylor, with Justice Wecht writing a concurrence. The court held as follows:
We answer the questions presented as follows: (1) a hospital’s credentials committee qualifies as a “review committee” for purposes of Section 4 of the Peer Review Protection Act to the extent it undertakes peer review; and (2) the federal Health Care Quality Improvement Act protects from disclosure the responses given by the National Practitioner Data Bank to queries submitted to it – and this protection exists regardless of any contrary aspect of state law.
This is a victory for health care and the protection of peer review documents from discovery in litigation.