HARRISBURG UPDATE, September 8, 2020
This is a time of tremendous political, legislative, and social upheaval, with the triple-punch of the pandemic, a foundering economy and calls for racial justice add up the most tumultuous time in our history since the late 1960s. Expecting – or demanding - any one branch of government to deliver solutions only broadens the gaps. Public attitudes over who’s “to blame” appears to be based more on the individuals’ personal beliefs than any real assessment of facts – and facts seem difficult to come by.
With the General Assembly’s return, starting last week, priorities will still include the emergency orders and resolving impacts on the economy. But additional issues on the front burner include election reforms, social justice concerns, and a host of issues related to COVID-19 and health care.
There will be more Covid-19 related funding related legislation considered, The state budget, tax and administrative codes discussions will also be held hostage until there’s a sense of federal funding that can be expected. Efforts will continue on bills ranging from telemedicine to nurse practitioners, civil immunity and other med mal related issues.
In the meantime, we have continued to work with legislative leadership, Committee Chairs and staff on bills – both related to the pandemic and general practice. At the current time, there are no less than 700 different bills we’re tracking for PA-ACP that would affect some phase of health care, patient care or health insurance in Pennsylvania.
Governor’s Fall Agenda
The Governor’s agenda for the fall includes legalization of marijuana, with taxes going to business grants and “restorative justice.” He called for employers to provide six weeks of paid parental leave, using $225 million of the CARES Act funds remaining to finance a $3/hr. increase in wages for front line workers, additional funds for PPE, and $225 million in loans and grants for small businesses with $100 million for restaurants, bars, salons and barber shops. He also called for reducing the state’s alcohol tax to support the restaurant and tavern industry.
State Budget – The state budget passed in July was a five month budget, providing state funding only through November 30, 2020, with the exception of K-12 education. The state is facing a $5 billion deficit, and the General Assembly and Governor only have a few weeks to work out a solution, with no assurance of additional funds from Congress this fall. As noted elsewhere, the Governor has called for legalization of marijuana as a means to finance the budget, but the Republican controlled General Assembly is unlikely to pass that this fall. PA-ACP will be working specific issues in the budget, including Medicaid funding for primary care, and Graduate Medical Education centers, and a series of disease related support line items in the Department of Health’s budget.
The Governor has renewed his emergency declaration for another 90 days, through November, unless revoked before that. How that extension affects the political scene remains to be seen. Needless to say, the leadership of the General Assembly were not happy at the renewal nor with the length of the declaration and we anticipate a continuing effort to curtail his emergency orders.
Advocacy on COVID-19 Issues
The commonwealth gave providers and practitioners significant flexibility, much of which PA-ACP requested before it was granted. This included securing a federal emergency declaration, expanded telemedicine, and waivers of some regulations to allow (for example) retired physicians to get back to work caring for patients and calling for programs allowing small business owners to qualify for unemployment compensation through the emergency period.
In the General Assembly, we currently are tracking 260 different bills that have been introduced that are intended to deal with rules, regulations, impacts or challenges from the COVID-19 pandemic alone, not counting bills for funding that will become part of the fall budget and codes bills.
Both hospitals and private practices have incurred significant costs in helping the state be ready for an immense surge in patients, which never really manifested. In the meantime, consumers have come to rely on many of the flexibilities—especially relating to telemedicine, and have put off services, procedures and preventive care that otherwise would have been the norm. And practitioners have lost patients, have endured closings, and been hurt financially while accommodating the state’s needs.
To address these issues, PA-ACP has:
- Called for funding to support primary care and independent practices, which have suffered as a result of orders and actions to prevent a surge to the state’s hospitals in March through May.
- Supported bipartisan legislation that would require Pennsylvania insurance companies to cover COVID-19-related business interruptions and property damage for policyholders.
- Called for permanency in those practices and payment systems involved with reaction to the pandemic and the opioid crisis, including telemedicine, prior authorization and licensing extensions.
- Called for temporary civil immunity for practitioners who are providing services impacted by orders from the Governor and Secretary of Health in fighting the pandemic.
Proposals to extend safe harbor from lawsuits to health care facilities and businesses for claims related to the COVID-19 pandemic have been introduced in the Pennsylvania legislature, following weeks of efforts on our part and others to extend the Good Samaritan provisions the Governor has given to practitioners providing emergency services to COVID-19 patients to all physicians.
A half dozen different bills would cover businesses, hospitals and nursing homes, and health care practitioners from lawsuits. Trial lawyers have already started cashing in on COVID-19 suits.
PA-ACP has endorsed bills that would provide limited civil immunity from liability for health care practitioners whose efforts were conducted under the guidance of the Governor’s and Secretary Levine’s orders. S.B. 1239, sponsored by Sen. Lisa Baker (R, Luzerne), who chairs the Senate Judiciary Committee, has 11 cosponsors and would grant limited civil immunity from medical malpractice claims during the COVID-19 emergency orders. Working with other medical organizations and PCCJR, we have a coalition of 50 Pennsylvania-based organizations calling for temporary safe harbor legislation as an essential ingredient to re-opening and re-starting the state’s economy.
In the House, Rep. Seth Grove has introduced H.B. 2546 that provides protection from lawsuits against health care providers and makers of Personal Protective Equipment during the emergency.
Other Legislative Issues
CRNPs - We have spent much time this summer on the Nurse Practitioners’ efforts to get independent practice. Working with the Chair of the House Professional Licensure Committee, we have been developing a pilot project that would allow primary care CRNPs to practice without collaborative agreements for the next six years in Primary Care Health Professional Shortage Areas only, with a study to be conducted after five years to examine whether that practice has positively impacted access and quality of health care.
Telemedicine – The Governor vetoed SB 837, which would have legally permitted telemedicine practice in Pennsylvania over the bill’s provision banning FDA REMS listed drugs via telehealth. Specifically, the Governor’s concern was the ban on prescription of mifeprex among the REMS list products and restrictions on women’s health. We will continue to seek a path that enables passage and signing of legislation to make telemedicine a permanent fixture for the state’s physicians, beyond the exceptions now in place under the emergency orders.
Med Mal - The legal issues around medical malpractice, venue and the statute of repose have continued to bubble to the surface, and we have worked with House and Senate leaders to get legislation that would address a future decision by the court on those issues.
Noncompete clauses – Legislation has been introduced in the House by both Rep. Torren Ecker (R, Adams) and Anthony DeLuca (D, Allegheny) that would prohibit enforcement of noncompete clauses in health care practitioners’ contracts. Given the extraordinary changes taking place in the state’s hospital and health care systems, such contract clauses effectively force physicians to move if they discontinue a contract. PA-ACP has voiced strong support for this legislation and will advocate for its passage in the General Assembly.
Venue - The Senate Judiciary Committee held a hearing on September 8 to take testimony on the Legislative Budget and Finance Committee’s report and the issues it failed to address. The LBFC said it could not say venue reform had saved physicians money or practices in 2003 forward, because other states had seen reductions in premiums and PA had also passed other med mal reforms that may have had an impact as well. We will continue to oppose any action to reverse the current law which requires a medical malpractice lawsuit be filed in the County in which the alleged malpractice occurred.
Right to Refuse - Legislation has now been introduced as HB 2731, to create a right to refuse ”invasive medical screenings and vaccinations” and provide civil damages for employees whose rights are violated. The bill declares that employers should not be permitted to require invasive medical tests or vaccinations as a condition of employment. Other bills regarding exemptions from vaccination and/or immunizations may also get public hearings and/or consideration. PA-ACP is opposing such legislation at this time, and other anti-vax legislation that further expands Pennsylvania’s overly generous exemptions from mandated vaccinations/immunizations.
As chaotic as this year has been, we can’t begin to pretend that we have an inside track on what will happen nationally or at the state level between now and November 30, when the General Assembly’s two year session ends by law.
From November 30, 2020, the General Assembly consists of its elected members, but it is not in formal session until January 5, 2021 unless called into Special Session by the Governor of 20% of its members. That has never happened, but given how 2020 has played out, we would never bet this won’t be a first.