The 2018 state legislative season featured many of the same clinical, economic and legal issues that were prominent in 2017 as state legislatures considered many of the carry-over legislative proposals.
With pervasive gridlock in Congress, state legislatures are aggressively exploring solutions in their own jurisdictions to address many of the questions facing the future of health care delivery in the country as a whole. Heath system reform, physician payment reform, health insurance mergers, private payer reimbursement policy initiatives and out-of-network billing legislation continued to be prominently featured in many state capitols.
American College of Radiology (ACR) staff tracked nearly 600 radiology-relevant bills addressed by the state legislatures in the fiscal year ending June 30, 2018. As shown on the legislative calendar, many states had wrapped up this year’s legislative activity by July 1, and some are meeting in special sessions this month to discuss budget-related business. A state-by-state report powered by StateScape is also available.
Since 2005, a total of 35 states have adopted mandatory disclosure or breast density notification. They are Alabama, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Iowa, Indiana, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, Nevada, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Vermont, Washington and Wisconsin. In Maine, radiologists have agreed to provide information without a legislative mandate.
In 2018, governors of Florida, Tennessee and Wisconsin signed breast density-related notification bills into law. Another bill in Illinois has been sent to the Governor on June 14th. In Utah, an optional notification statute was changed to mandated notification. Additional bills were filed in Georgia, New Mexico and West Virginia.
INSURANCE COVERAGE FOR DIGITAL BREAST TOMOSYNTHESIS
Support for mandatory private insurance coverage of digital breast tomosynthesis (DBT) increased with the growing weight of evidence demonstrating DBT’s ability to detect breast cancer in patients with dense breast tissues.
DBT coverage mandates now include Arkansas, Connecticut, Illinois, Kentucky, Louisiana, Maryland, Missouri, New Hampshire, New Jersey, New York, Oklahoma, Pennsylvania, Texas, Vermont and Washington.
During the 2018 legislative session, Louisiana, Missouri, New Hampshire, Oklahoma and Washington were added to that list. In particular, Washington’s new law directs the state health care authority to clarify that the existing mandate for mammography includes coverage for tomosynthesis under the same terms and conditions currently allowed for mammography. Connecticut successfully secured a change to its existing statute to mandate coverage for breast tomosynthesis by codifying a specific set of Healthcare Common Procedure Coding System (HCPCS) codes to overcome regulatory impediments that may have allowed insurance plans to circumvent the mandate.
SCOPE OF PRACTICE
We saw a number of bills in 2018 that would expand scope of practice for non-physician providers (those health care professionals who are not MDs or DOs), in addition to legislative proposals that sought independent practice for nurse practitioners. Several proposals are broadly written to allow non-physician providers to independently order, supervise and interpret diagnostic studies. For state radiology associations, it is important to work with stakeholders to make sure legislative proposals are carefully considered for their potential to adversely affect quality of patient care.
In Massachusetts, both chambers passed bills related to nursing scope of practice. The House passed health care reform bill (HB 4617), which It has now moved to conference committee. The House bill would require two state agencies, the Center for Health Information and Analysis (CHIA) and the Health Policy Commission (HPC), to study scope-of-practice bills and report back to legislature.
Senate Bill 2211 passed in the Massachusetts Senate. It expands the scope of advanced practice nurses (nurse practitioners and certified registered nurse anesthetists) to allow independent practice after two years of supervision by a medical doctor or independent practice nurse. It also allows advanced practice nurses to order and interpret tests. A conference committee will have to reconcile the two bills before July 31, the end of the formal session.
Bills related to scope of practice also include legislation in North Carolina (HB 88 and SB 73) to modify its Nursing Practice Act by allowing certified nurse midwives, certified registered nurse anesthetists (CRNAs) and clinical nurse specialists (CNS) to order, perform, supervise and interpret diagnostic studies.
Vermont’s HB 345 would allow Advance Practice Registered Nurses (APRNs) providing services at nursing homes “[to] perform all services within the advanced practice registered nurse’s scope of practice, including: … performing acts of medical diagnosis, including ordering and interpreting diagnostic tests and procedures.”
CERTIFICATE OF NEED
Several states considered legislation that proposed modifications to their existing Certificate of Need (CON) regulation of medical business practices. Existing statutes covering CON regulations were put in place to control the growth of hospital infrastructure and medical device acquisition, to lessen proliferation of specialty care centers and to limit inappropriate medical imaging utilization. A 2016 report from American Health Planning Association outlines existing CON programs by state and by modality. Opponents of CON hope to make significant changes or to dismantle the CON programs altogether. During the 2018 legislative session, the CON issue was under consideration in Arkansas, Connecticut, Georgia, Maryland, North Carolina and Virginia.
NETWORK ADEQUACY AND OUT-OF-NETWORK PAYMENT
In legislative sessions that ended by June 30, bills related to out-of-network provider billing, network adequacy, transparency, notification and disclosure, or accuracy of provider directories were considered by more than 25 states. Out-of-network (OON) legislation was signed into law in Arizona, Colorado, Louisiana, Missouri, New Jersey, Oregon and Tennessee.
In provider reimbursement discussions, insurers advocate for proposals that benchmark physician payment to a percentage of Medicare rates or, in some instances, to a percentage of ‘allowable rates.’ Health care providers have argued against using Medicare as a benchmark, since Medicare was not designed to represent the fair market value of health care services or to fully cover provider costs for the general population. Medicare payment rates are also influenced by federal budget considerations. Because Medicare rates are set by the government, the rates are not an accurate representation of local markets.
For an alternative approach, providers have asserted that if benchmarking were to be assigned, then a market-based database of charges, not affiliated with any specific insurer, is a more accurate approach than Medicare benchmarking for determining payment rates. In Alaska, for example, benchmarking to 80th percentile of a charge database exists by rule, though insurers are pursuing a change. Recently, Aetna, America’s Health Insurance Plans, (AHIP) and Premera Blue Cross Blue Shield of Alaska submitted comments against the state’s 80th percentile rule arguing that the rule provides an incentive for providers to not contract with insurers because providers without contracts are still reimbursed at nearly the fully billed charge.
Aetna’s comments included a comparison of billed charges for claims and the allowed amount at the 80th percentile compared to payment based on the 125 percent of Medicare rates used in other states. Insurers asserted that reimbursement based on a multiple of Medicare or other ‘reference based’ pricing would help control costs and ensure that providers are paid a fair fee.
Of note, new research conducted by Avalere shows that patients are burdened with an increasingly larger share of their health care costs through higher premiums and cost sharing, while their insurance networks are becoming more narrow and restrictive. The study, sponsored by Physicians for Fair Coverage, concluded that patients are paying more, doctors are being paid the same and insurance companies are making record profits.
RADIOLOGIC TECHNOLOGIST LICENSURE & RADIOLOGIST ASSISTANT RECOGNITION
A registered radiologist assistant (RRA) is an advanced-level radiologic technologist (RT) who works under the direct supervision of a radiologist to enhance patient care. Selected chapters of American Society of Radiologic Technologists (ASRT) are working with state radiological societies and the ACR on the radiologist assistant (RA) issue. Thirty-one states license or recognize the RAs through legislation or regulation. They are Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, Mississippi, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Utah, Vermont, Virginia, Washington, West Virginia and Wyoming.
In 2018, bills related to RT licensure were considered in Alabama, Alaska, Illinois, Mississippi, Missouri and New Jersey.
KENTUCKY WORKERS COMP REFORM
Kentucky HB 2 was designed as a comprehensive overhaul of the state’s workers comp program and was signed into law. The new law requires that only physicians who are licensed in the Commonwealth of Kentucky and are board-certified pulmonary specialists may assess diagnostic black lung X-rays when state black lung claims are filed. Physicians, who read chest X-rays for work-related diseases such as black lung, are known as "B readers." They are certified by the National Institute for Occupational Safety and Health (NIOSH) for both federal and state compensation claims. B readers do not specifically have to be pulmonologists or radiologists, though they can be both. Because radiologists are less likely to seek board certification as pulmonary specialists, the new law is concerning because it effectively bars radiologists from reviewing X-rays involved in state black lung compensation claims.
MEDICAL LIABILITY LEGISLATION
Nearly 30 states have statutes that place limits on damages that may be awarded in medical liability actions. However, the constitutions of several states explicitly prohibit caps on such damages. Opponents of such caps challenge existing statutes in almost every legislative session. The American Medical Association and state chapter affiliates have extensive resources for information related to medical liability legislation in your state.
INTERSTATE MEDICAL LICENSURE COMPACT
The Interstate Medical Licensure Compact (IMLC), developed by the Federation of State Medical Boards (FSMB), offers an expedited review of applications filed by physicians who seek licenses in multiple states while preserving their individual state licensure. Twenty-four states now have laws to join an interstate compact. A state-by-state rundown of the status of the FSMB Interstate Medical Licensure Compact is covered in this interactive map.
STATE LEGISLATIVE BILL TRACKING
The ACR is continuing its collaboration with StateScape to offer state chapter leaders comprehensive automated reports on legislative bills relating to health care and medical imaging policy. Continuously updated reports are also available to ACR members through Advocacy in Action eNews. StateScape offers an ‘opt-in’ feature enabling ACR state affiliates to receive weekly email reports during legislative session to keep them informed about the status of legislation in every state. Please let ACR staff know if you would like to opt-in to receive optional legislative notifications for your state.
For information on working with state legislators, or assistance to help you become more involved with state legislative affairs, please contact Eugenia Brandt, director of state affairs, at firstname.lastname@example.org or 703-715-4398.