Legislative Wrap-up Report

2000 Maryland General Assembly Wrap-up Report

TO:  MedChi Members
FROM:  Joseph A. Schwartz, III
      Pamela Metz Kasemeyer
DATE:  April 10, 2000
RE:   2000 Maryland General Assembly Wrap Up

The 2000 Maryland General Assembly concluded its 90-day session at midnight on Monday, April 10 with the usual flurry of final day activity resulting in the passage of several significant pieces of legislation. Last minute compromises resulted in agreement on the following issues:

	An expansion of the Maryland Children’s Health Program (MCHP) to provide health insurance for children up to 300% of poverty and to pregnant women up to 250% of poverty; the children’s expansion (but not the pregnant woman portion) includes an employer sponsored private option plan with cost saving provisions. The legislation is effective July 1, 2001.
	Passage of legislation to remedy the insolvency of “downstream risk providers” such as Doctors Health. This legislation provided that an HMO remains financially responsible for monies owed by such entities even when bankrupt.
	Legislation to require tobacco vending machines be fitted with a token mechanism so that children would not have easy access. This has been a many year fight which finally resulted in victory for public health advocates.
	Passage of legislation to specify the manner of distribution of monies from the Cigarette Restitution Fund which is the repository of tobacco settlement monies. The final bill kept the Governor’s focus of spending on cessation initiatives and established a broad based public health process for distribution of monies related to cancer prevention. Additionally, Johns Hopkins Medicine and the University of Maryland will be primary recipients of cancer research monies.

MedChi’s principal initiative to forbid “all products” clauses and to disallow the cram down of insurance products on doctors passed in the last week of the session and now awaits the Governor’s signature. In its final form, the legislation (Senate Bill 295/House Bill 559) provides that HMOs may not require doctors to accept “all products”. This is particularly important in the commercial marketplace where companies such as Aetna routinely require doctors to sign up for all product lines or be excluded from all. While the legislation did include language exempting Medicaid from the provisions of the bill, this exemption preserves current Maryland law - it does not create a new right for MCOs in the Medicaid program. Maryland becomes one of the few states in the nation to prohibit such practices. This legislation has been unsuccessful for a number of years and its passage is a credit to longtime sponsor Senator Jean Roesser of Montgomery County and the particular efforts of the Montgomery County Legislative Delegation.

A related successful MedChi initiative was SB 405 which, modified the present HMO law to allow a non-participating doctor to be paid a fair compensation by the HMO when the doctor serves an HMO member. Maryland has a unique law which forbids the doctor from sending a bill to an HMO subscriber; however, Maryland law also provides that the HMO is required to pay the non-participating doctor a usual, customary and reasonable fee (UCR). There has been widespread abuse and manipulation of the UCR by HMOs.

Senate Bill 405 provides that all HMOs must pay a non-participating doctor the greater of the amount being paid for a service on January 1, 2000 or 125% of the amount paid by the HMO to a physician under contract for the same service in the same area. This provision will remain in effect until the year 2002, during which time the Health Service Cost Review Commission (HSCRC) in conjunction with the Health Care Commission, the Maryland Insurance Administration, providers and payors is directed to make a study as to appropriate methodology for reasonable payment for a non-participating doctor. MedChi had originally proposed setting a fair payment methodology in the law but the General Assembly elected a temporary fix and to rely upon the HSCRC study to propose a methodology in the future. The net effect of the temporary fix will be to increase payments to non-participating doctors for a number of HMOs which were paying less than 125% of the contracting rate to many non-participating providers.

Another successful MedChi initiative was SB 371 which protected medical privacy and insured that medical information could not be bartered or sold. Senate Bill 371 was the result of a Summer Task Force in the Senate Economic and Environmental Affairs Committee and was finally passed by the House of Delegates on the last day. The bill resolved several thorny issues in the administration of medical records and additionally provided for a permanent advisory committee to advise the legislature as to needed changes to the medical records law.

MedChi’s proposal to regulate the practice of medicine so that “medical directors” would be subject to the Board of Physician Quality Assurance (BPQA) was not enacted. The legislation (Senate Bill 372) passed the Senate unanimously (46-0) but was defeated in the House Environmental Matters Committee by a vote of 13-6. House Leadership remains opposed to this legislation. MedChi believes the General Assembly missed the opportunity to properly regulate “Medical Directors” by the peer review procedures of BPQA. This practice of medicine legislation will return next year and, given the unanimous support of the Senate, it is likely that some resolution may be achieved. Three years ago the bill failed in the Senate as well so that the momentum is clearly in its favor.

Several other MedChi initiatives were successful including:

	MedChi initiated legislation prohibiting an insurance company from being allowed to deny payment of a pre-authorized health care service (Senate Bill 275 / House Bill 304);
	A MedChi initiated bill closing a loophole in the six months retroactive Maryland reimbursement law which allowed the HMOs to demand repayment even after six months have passed so long as they did not deduct it from owed monies. Senate Bill 274 / House Bill 305 forbids HMOs from demanding the money back in any manner after the six months (with the exception of a coordination of benefits situation where another carrier admits responsibility).
	MedChi initiated legislation (Senate Bill 459 / House Bill 515) to develop a state funded and peer review protected maternal mortality review program to review and prevent deaths occurring during and after pregnancy.
	MedChi initiated legislation to clarify that expedited eligibility for HealthChoice will be available for pregnant women and children with associated cases (SB 395/HB 866). Expedited eligibility will be effective within 10 days of application effective to the first day of the month of application and will remain effective for 60 days. DHMH is attempting to get approval for a 90 day eligibility window.
	A MedChi initiative (SB 328) to create a Task Force to study the rights of doctors discriminated against by hospitals and credentialing organizations was passed in amended form. The final version of the bill directed the Schaefer Center for Public Policy at the University of Baltimore to study and report back to the Legislature by December 2000 not only on discrimination against physicians but against other provider groups as well.

MedChi’s support of Governor Glendening’s gun control initiative was a resounding success with Maryland becoming the first state in the nation to pass legislation which requires that handguns be equipped with built-in locking devices and made various other improvements to the regulatory scheme for the sale of handguns in Maryland. President Clinton will attend the signing ceremony of the bill on Tuesday, April 11.

All efforts of Maryland’s trial lawyers to undo tort reform (all of which were opposed by MedChi) were unsuccessful.

	The legislation to repeal the cap on non-economic damages was rejected by the House Judiciary Committee. This cap, initiated by MedChi efforts approximately 15 years ago, has resulted in the stabilization of the insurance premiums. MedChi expects that the proposal to repeal cap on non-economic damages will recur next year primarily at the urging of plaintiff trial lawyers such as Peter Angelos (the owner of the Orioles) whose law firm was the principal advocate for deleting the present cap.
	Legislation to lengthen the statute of limitations for minors (HB 27) did pass the House of Delegates but was defeated on the floor of the Senate (22-24) in the last week of the Session through the combined efforts of MedChi, MedMutual and other interested parties. This Bill would have undone the statute of limitations enacted as part of tort reform in the 1980s.
	Legislation to change Maryland’s law of contributory negligence - a major push of the Trial Lawyer’s Association - also failed.

On scope of practice issues, it was a very contested year.

	Legislation to allow nurse psychotherapists to prescribe drugs (Senate Bill 822 / House Bill 1101) was defeated;
	Legislation to allow nurse practitioners (Senate Bill 325 / House Bill 367) to operate as primary care physicians for commercial HMOs was defeated after a messy fight. The legislation cleared the Senate on a vote of 24-23 after being killed initially by a vote of 22-26. The bill was subsequently voted down in the House Environmental Matters Committee (10-11) on Friday night, April 7.
	Legislation to allow patients direct access to nurse midwives who serve on HMO panels passed, but was amended to require consultation with an OB/GYN; MedChi believes that the effect of this amendment is that only midwives who have collaborative agreements with OB/GYNs will be allowed direct access.
	The attempt of chiropractors, social workers and various nurse groups to receive hospital privileges was unsuccessful.
	Optometrists, faced with almost certain defeat, withdrew legislation to increase their scope of practice to allow unrestricted use of therapeutic pharmaceutical agents and to permit independent treatment of glaucoma.

Other items of interest:

	HMO Liability - Bills to establish the civil liability of HMOs for denial of treatment (Senate Bill 9 / House Bill 943) were defeated but will remain a top issue in the year 2001. However, for the first time there was a vote on the floor of the Senate and on the floor of the House of Delegates on the issue with 15 Senators and 35 Delegates voting in favor of making HMOs liable for the denial of care to a patient. These votes came on a proposed amendment to Senate Bill 903 which overruled a Court of Appeals decision against the HMO industry outlawing the longstanding practice of subrogating the cost of their medical claims where the service results, for example, from a car accident. Senate Bill 903 reinstated the rights of the HMOs to continue their subrogation practices but also became a vehicle to test the sentiment for civil liability against the HMO industry. While certain people voted against the amendment because of belief that it was not germane to Senate Bill 903, we know that there are a minimum of 15 Senators (24 needed) and 35 Delegates who support civil liability against HMOs.
	A reform of the SAAC discount program which allows insurance companies to receive a “discount” from hospital rates resulted in the redirection of some SAAC discount monies to pay for pharmacy benefit for rural Marylanders who lost Medicare HMO coverage when the HMOs withdrew from the rural parts of the State because of claimed losses due to the federal government’s method of reimbursement.
	An HMO initiated bill, supported by MedChi, passed which provided that HMO enrollees would be able to obtain updated information over the Internet on participating doctors. As amended, the enrollee would be entitled to a written list but it was agreed by all parties that such printed lists become outdated very quickly.
	Maryland insurance carriers will be required to provide for male in vitro fertilization services and for wigs for chemotherapy patients assuming gubernatorial approval.
	MedChi supported initiative to require smoking cessation coverage passed the Senate but was unsuccessful in the House.