2010 session: Physician advocacy results in success

15 April 2010

What do Lyme disease, nurse practitioners, telemedicine, podiatrists, controlled substances, peer review, access to care in Southwest Virginia and concussions in student athletes have in common? All were subjects of legislation considered by the General Assembly during its 2010 session that were closely watched by the Medical Society of Virginia (MSV) for their potential implications on the practice of medicine in the commonwealth. MSV’s leadership, White Coats on Call participants, and lobbying team met with legislators throughout the General Assembly to advocate on behalf of legislation that would benefit the practice of medicine and work to defeat the legislation that put patients and the medical profession at risk.

All told, MSV had a very successful legislative session, tempered only by Virginia’s dismal budget picture. The General Assembly’s task of passing a balanced biennium budget was complicated this year as Virginia faced a $4 billion budget shortfall as a result of falling state revenues. Legislators considered cutbacks across all of Virginia’s core services — health care, education and public safety. The Medicaid program was not spared.

MSV spent significant time and attention working to educate legislators about the impact that cuts to Medicaid physician payments would have on access to care. Both the House of Delegates and the
Senate proposed cuts to the Medicaid program to reduce the budget deficit. Ultimately, the budget passed by the General Assembly included a three percent Medicaid provider cut in fiscal year (FY) 2011 and four percent in FY 2012. The proposed cuts apply to physicians, hospitals, nursing homes, dentists and other providers, and would take effect July 1, 2010 and July 1, 2011, respectively. No cuts to Medicaid managed care organizations were included in the budget. Gov. Bob McDonnell has until April 21 to offer amendments to the budget.

It is anticipated that provider cuts may be prevented through additional federal Medicaid funding to the states, which is expected to be approved by Congress.

Medical malpractice
While the medical malpractice cap is a priority for MSV, during the 2010 session, medical liability legislation was not an issue. MSV, the Virginia Hospital and Healthcare Association (VHHA) and the Virginia Trial Lawyers Association (VTLA), following a series of stakeholder talks in 2009, agreed that because of the uncertainty that the proposed national health care reform measures may have on physicians and the liability climate, the stakeholder talks should continue upon the conclusion of the 2010 General Assembly session. In addition VTLA agreed not to introduce any legislation during the 2010 General Assembly session that would alter the current medical malpractice cap; MSV, VHHA and VTLA pledged not to support any bills introduced by legislators that would alter the cap. 

Scope of practice
This session both nurse practitioners (NPs) and naturopathic “physicians” (those individuals who have attended a graduate-level school of naturopathic medicine) sought to expand their scope of practice in Virginia. Both measures were defeated as a result of MSV’s successful advocacy.

Senate bill (SB) 263 would have eliminated the requirement that NPs practice under the supervision of a physician, moving toward a type of independent practice NPs have labeled “collaboration.” In addition, the bill would have transferred licensure authority for NPs from the Joint Board of Medicine and Nursing to the Board of Nursing alone. This bill was introduced by Sen. Mary Margaret Whipple (D-31st District, Arlington) on behalf of the nurse practitioners.

Countering claims by NPs who said they are not engaged in the practice of medicine, MSV President Daniel Carey, M.D. spoke against the measure citing the success of the current supervisory arrangements under which NPs see patients that are tailored to their education and experience, and the order of magnitude difference in the number of hours of residency training a primary care physician undergoes versus an NP — 12,000 to 16,000 hours versus 1,000 hours. Representatives of medical specialty societies echoed Dr. Carey’s comments. Other physicians who spoke against the measure at the bill’s subcommittee hearing included William Moskowitz, M.D. on behalf of the American Academy of Pediatrics-Virginia Chapter, Janice Ragland, M.D. on behalf of the Virginia Academy of Family Physicians, and Tamera Barnes, M.D., FACEP on behalf of the Virginia College of Emergency Physicians. The bill failed to receive support in the Senate’s Health Licensing subcommittee and was “passed by” by the full Education and Health Committee in the Senate.

House Joint Resolution (HJ) 124, a study resolution directing the Joint Commission on Health Care to examine the feasibility and effectiveness of a pilot program to allow naturopathic “physicians” to provide health counseling to adults in rural Southwest Virginia, was “carried over” by the Senate Rules Committee after passing the House of Delegates by a margin of 89-6. The motion to “carry over” HJ 124 means that the Senate Rules Committee may take action on the measure anytime between now and Dec. 2, although it is unlikely that it will do so.

At the subcommittee hearing on the study, Dr. Carey and MSV Vice President Russell Libby, M.D. spoke in opposition to the study. While HJ 124 was ostensibly just a measure to study access to care issues in Southwest Virginia and to look at the feasibility of allowing naturopathic “physicians” to practice in that area, three of Virginia’s 15 naturopathic “physicians” testified at the hearing that their goal was to obtain licensure to practice as primary care providers in Virginia.

MSV recognizes the legitimate concerns of legislators from Southwest Virginia and other medically underserved areas about the ability of their constituents to receive needed health care services. In that vein, MSV has begun internal discussions on what MSV can do to help address access to care issues for patients in these underserved areas.

Bill round up:

In defense of medicine

MSV worked to defeat five bills on Lyme disease this session. The House Health, Welfare and Institutions Committee’s subcommittee #1 considered five Lyme disease bills (HB 36, HB 512, HB 897, HB 1017 and HB 1288) and passed a motion to “continue” four of the bills until 2011, a procedural move that ended consideration of the measures this session; the fifth bill was tabled. The bills were supported by patients who believed that long-term antibiotic use was the only treatment that offered them relief from the symptoms of Lyme disease.

MSV arranged for physicians to speak in opposition to the bills that would have established duplicative reporting requirements of cases of Lyme disease to the Board of Health and specify that treatment of Lyme disease with long-term antibiotics is permissible under Virginia code. Donald M. Poretz, M.D., an infectious disease specialist representing the Infectious Diseases Society of America (IDSA) spoke to the committee about Lyme disease treatment therapies. Harry Gewanter, M.D., a pediatric rheumatologist representing MSV and the American Academy of Pediatrics-Virginia Chapter, addressed physicians’ concerns about codifying standards of care in Virginia law. As a result of the subcommittee meeting, Virginia Commissioner of Health, Karen Remley, M.D., M.B.A., FAAP, agreed to distribute a letter to all health care practitioners in Virginia to increase awareness of Lyme disease.

Following a Supreme Court of Virginia decision upholding the longstanding precedent that podiatrists may not testify as to causation of human physical injury, the General Assembly passed legislation, HB 723 and SB 82 clarifying the role of podiatrists to include “diagnosis” as part of the practice of podiatry. MSV and the Virginia Orthopaedic Society, which jointly filed an amicus curiae brief in support of the precedent that podiatrist could not testify on causation in court, were able to achieve positive amendments to these bills that would bar podiatrists from testifying against medical doctors in malpractice actions. The bills also contain emergency clauses to make them effective immediately, rather than on July 1 when legislation passed by the General Assembly normally takes effect.

Del. Bud Phillips (D-2nd District, Castlewood) introduced a series of bills dealing with controlled substances in an effort to help reduce the incidence of drug addiction to prescription medications in Southwest Virginia. MSV opposed the measures as the bills would have applied to all physicians across the commonwealth while they were intended to address a problem concentrated in the southwestern region of the state. 

• HB 1167, which would have required prescribers of Schedule II, III or IV controlled substances to request and review information about that patient from the Prescription Monitoring Program, and to continue to do so at least annually for so long as the prescriber continues to prescribe the controlled substance to the patient was tabled. The subcommittee that considered the bill recommended forwarding a letter to the Board of Pharmacy to have it study the issue. 
• HB 1168, a measure to require that education programs for physicians, nurses, and pharmacists include instruction in pain management and addiction, was tabled. 
• HB 1169 unanimously failed to report out of subcommittee. This bill would have established continuing education for prescribers of controlled substances on the topics of substance abuse, addiction, and related pain management and prescribing practices. 
• HB 1170, which would have required any physician who prescribes a Schedule II, III, or IV controlled substance for a duration greater than 31 days to require the recipient of such prescription to undergo mandatory random urine drug screening tests, was continued to 2011.

MSV worked with Del. Phillips to refine HB 1166, which is intended to reduce “doctor shopping” by drug-seeking patients. As introduced, the bill would have required that physicians report drugseeking patients to law enforcement. MSV was able to secure an amendment to this bill to make this a permissive, rather than mandatory, requirement. In addition, MSV secured improvements in the immunity protections in the bill for physicians who elect to report patients to law enforcement so they are not liable for civil damages in connection with making a report.

A measure to improve the reconsideration and appeals processes in the event of an adverse decision by a health plan or health maintenance organization (HMO), HB 11, was approved by the General Assembly. MSV, representatives from medical specialty societies and representatives of the health plans met with the bill’s chief co-patrons, Del. John O’Bannon III, M.D. (R-73rd District, Henrico) and Del. Bob Marshall (R-13th District, Manassas) to craft language to improve the peer review process as part of reconsiderations and appeals.

The bill will require that when a health plan or HMO makes its determination on a reconsideration of an adverse decision, the treating physician must be notified verbally and in writing. As part of the verbal notification, the physician should be provided information on the appeal process. At that time, a physician may request that the appeal be reviewed by a physician peer in his or her same or similar specialty. These changes are set to take effect on Oct. 1, 2010.

On behalf of patients

A bill introduced by Sen. William Wampler (R-40th District, Bristol) will expand access to telemedicine services for patients across Virginia. SB 675 requires health plans and HMOs to cover the costs of health care services provided via telemedicine services. “Telemedicine services” is defined as the use of interactive audio, video, or other electronic media for the purpose of diagnosis, consultation or treatment. “Telemedicine services” do not include an audio-only telephone, electronic mail message or facsimile transmission.
Telemedicine is an important tool to improve timely access to care, especially when time is of the essence and it is absolutely vital in the case of strokes, where you only have a three hour window to diagnose and deliver life-saving treatment like tPA, a clot-busting drug.

Telemedicine can also play a huge role in high-risk obstetrics and reducing infant mortality, which are particular issues in rural areas of the commonwealth. Failure to receive appropriate care in a high-risk pregnancy may result in a premature birth, but risks can be reduced with access to telemedicine services. MSV member Karen Rheuban, M.D., medical director of the University of Virginia office of telemedicine, has been a strong proponent of telemedicine programs. Dr. Rheuban and MSV lead lobbyist Ann Hughes spoke in strong support of the bill when it was heard in a Senate committee. The bill includes a clause stipulating that a health plan may conduct utilization review to determine the appropriateness of the telemedicine services.

SB 652, the student athlete protection act, was unanimously approved by the General Assembly. Sen. Ralph Northam, M.D. (D-6th District, Norfolk), a pediatric neurologist, introduced the measure to help protect student athletes who may have a concussion by establishing guidelines on when and how they can return to play.

A coalition of groups, including the American Academy of Pediatrics - Virginia Chapter, the Virginia College of Emergency Physicians and MSV, supported this legislation. The bill incorporates national best practices into the policies of the Virginia High School Leagues rules on return to play for public school student athletes. Among the bill’s provisions, a youth athlete who is suspected of having sustained a concussion or head injury must be removed from play and requires that when a student is removed from play, he or she must receive written clearance from a licensed health care provider prior to returning to play and may not return to play on the same day.

While MSV had a successful legislative session, the cuts to physician Medicaid payments loom large over the medical profession. As suggested by MSV’s survey data, these cuts will have a real impact on physicians’ ability to continue to see Medicaid patients. During this difficult budget cycle, no sector was immune to painful budget cuts. MSV will continue to reach out to legislators to educate them on MSV’s priority issues and explain how their actions affect patient’s access to care and physician practices’ viability.