Texas Legislature Update 2017

I have assembled a summary of the “health care” bills headed for potential passage in Texas. The Elephant Not in the Room in this summary is the state budget. The fight over several areas of public expenditures related to health care and the issues related to participation in the Affordable Care Act will undoubtedly have more effect on Texas health than any of these bills. And the report cannot be finalized until after the Governor makes his decisions. So stay tuned as we rush through the white water rapids of the last two weeks of the session.

HB 2898 This bill creates a new state agency, the Texas Behavioral Health Executive Council, as the licensing, rulemaking and disciplinary authority for several behavioral health care professions, including psychologists, marriage family therapists, licensed professional counselors and social workers. Dissatisfaction with the previous regulatory oversight of these professions motivated the Texas legislature to place them all under a new “umbrella.”

However, this bill is among a large number of bills have not yet received a vote by the House and the deadline for passage was Thursday May 11th. If the Legislature fails to pass a Sunset bill, the regulatory board’s authority expires (“sunsets”) at the end of the fiscal year, August 31, 2017. As licensure is required for most forms of billing reimbursement and liability insurance, the expiration of regulation of a health care profession has dramatic negative effects on patients and providers.

The Texas Senate still has time to send a make-up bill to the Texas House. Bills also could be revived in a Special Session of the Legislature, but that would require specific action by the Governor. Special Sessions can only be called by the Governor, and a specific issue or set of issues must be declared. If a Special Session is called and a bill is not a declared issue, the bill cannot be considered, even if it means that a state agency ceases to exist, its licenses cease to exist, the agency ceases to be funded and regulatory authority evaporates.

It has happened before, and it was a mess!

HB 10/SB 1488 mandates the parity of insurance coverage for clinical medical services with behavioral health services. The impetus is the growing concern for the substance abuse epidemic and the resources for treating the associated mental health issues. The statute would give more power to the commissioner of the Texas Department of Insurance to make sure that health care insurance providers would do more than just include a smattering of behavioral health treatment in policy coverage. This is especially important due to the main treatment regimens being expensive inpatient stays of between 60 to 90 days. It is debatable whether the bill significantly expands mental health coverage, but it is a clear step in this direction. This bill got calendered, but it has not even received a vote on the House floor.

SB 25 eliminates “wrongful birth” from being a cause of action in a tort claim in Texas. Basically, this means that no one could sue a health care provider for being part of a live birth when the fetus could have been aborted. The bill also provides that this statute does not provide an excuse for a provider that stems from any other law or regulation. The bill is intended as an erosion of “pro-choice” rights and as a safety harbor for anti-abortion resources. The Senate passed and the House put it on the calendar for a vote.

HB 2107/SB 269 is the Texas medical marijuana law. Basically making pot legal for limited medical use. This bill got stalled in the Senate, but the House actually sent it out of committee to be calendared for a vote. One of the bills that seems to have gotten derailed by the House vote stall out. You may now enjoy a brief entertaining image of Cheech and Chong in tie-dyed lab coats.

HB 1415 allows for more independence for advanced practice registered nurses. This bill received a lot of support from nurses and a lot of opposition from physicians in committee testimony. This bill will probably not make it to be calendared for a vote in the House.

SB 1625 Sunset review bill for Physician Assistants Board. Mostly affects the authority of the Board and licensure requirements. No significant impact on health care itself. Passed by the Senate and certain to be passed by the House.

SB 1107 Telemedicine bill. Sort of. After removing the authority of the health care professional licensing boards to make rules that require face-to-face consultations, this bill establishes rules for telemedicine prescribing under limited circumstances. Amended in passage in the House, but will most likely be passed when it returns to the Senate.

HB 3040/original SB 315 Sunset review bill for the Texas Medical Board. Not much change. Provides for the Texas Medical Board to have subpoena power regarding its inspections and investigations. Also provides for mandatory utilization of the Prescription Drug Monitoring Program when a provider prescribes prescription “pain medications.” Requires the Texas Medical Board to periodically analyze the data from the Prescription Drug Monitoring Program to detect for patterns of inappropriate prescribing. Reported from the House committee to be calendared.

Later SB 315 provides for the Texas Medical Board to have enforceable subpoena power regarding its inspections and investigations related to pain management clinics. This part has been passed by the Senate and sent to the House.

SB 1625 Sunset review bill for Texas Physician Assistant Board. Mostly changes related to licensing and procedure of the Board. New “safe harbor” provision to allow physician assistants to refuse to do the bidding of supervising practitioners if the physician assistant decides that they could be disciplined for following those orders. Big potential departure for due process disciplinary proceedings by possibly authorizing the Board to take up its disciplinary process in executive sessions instead of a contested case proceeding at the State Office of Administrative Hearings as set out in Occupations Code Sec. 204.314. Passed by the Senate, sent to the House.

SB 833 authorizes the Texas Medical Board to have greater authority over nonprofit corporate entities which it “certifies” under Occupations Code, Chapter 162. (HB 752 did not quite rise to the level of a companion bill, probably due to not clearly granting any disciplinary authority to the Board to determine whether a violation of a statute or rule has taken place.) Prior authority has been largely ministerial. Greatly expands the Texas Medical Board’s rulemaking and disciplinary authority beyond individual licensees, and could possibly lead to a significant increased complaint and investigation load on the Texas Medical Board. Passed by the Senate, sent to the House.

HB 3078 Transfer of regulation of podiatry from the Department of State Health Services to the Texas Department of Licensing and Regulation. Transfer of a health care professions licensing authority to a state agency that has very limited experience regulating health care professions to date. Passed by the House, already on the second reading in the Senate.

HB 1629/SB 2126 Requires Health and Human Services Commission and the Department of State Health Services to develop quality-based outcome measures of “viral load” for the 80,000 beneficiaries under the state child health plan program and Medicaid who have HIV infections. Passed by the House, already on the second reading in the Senate.

Measuring the viral load of an HIV patient is a no-brainer. Requiring that measurement through legislation and regulation is another matter. This bill is a harbinger of things that should come at the next legislative session, because the federal MACRA law will begin in 2019 allowing a provider to use their Medicaid patient load in the calculation of whether that provider is eligible to use the program of quality-based outcome measures to enhance reimbursements. This is an incredibly complicated transition from fee-for-service reimbursement to fee-for-quality-of-service that will be taking place, and it does not seem to be under attack like the Affordable Care Act.

HB 2950/SB 305 Sunset review of the Texas Board of Nursing (BON). Passed the House, will pass the Senate.Continues the Board of Nursing as the nursing licensing and regulatory authority. Adopts the new Nurse Licensure Compact to ensure continued mobility for nurses. This is a big win for Texas nurses who will now be easily able to work outside of Texas. It will also allow nurses from “Compact” states to move to Texas without having to sweat out the regular licensure process. This may significantly help Texas with its nursing resources shortfall. · Limits the use of subjective standards for licensure decisions by requiring BON to demonstrate a connection between a nurse’s conduct and the practice of nursing. This move Prohibits BON from charging a nurse for the administrative costs of conducting an administrative hearing, as well as from changing a finding of fact or conclusion of law of an administrative law judge.

Section 301.006 authorizes a (nurse) to assert as an affirmative defense in an administrative hearing or as a claim or defense in a judicial proceeding under Chapter 37 (Declaratory Judgments), Civil Practice and Remedies Code, that a BON rule, regulation, or policy, or a penalty imposed by BON fails to meet certain criteria, unless BON can demonstrate that the limitation or burden with respect to the applicant or license holder is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. This section also authorizes a person to bring an action for injunctive relief against a violation of this section.

Sec. 301.355 makes it mandatory for a prescriber of opioids, benzodiazepines, barbiturates, or carisoprodol to use the Prescription Drug Monitoring Program (PDMP) to check if the patient is involved in drug-related aberrant behavior. Sec. 301.5525, requires BON to check the PDMP periodically to detect whether a prescriber is engaged in an aberrant pattern of prescription of those drugs.

Section 301.452 is amended to restrict the BON to taking disciplinary action that is based on the application of objective criteria that are clearly and rationally connected to the applicant’s or license holder’s conduct and that any negative outcome resulting from that conduct is determined to affect the person’s ability to effectively practice nursing. This will significantly alter the BON’s standard operating procedure which looks at foibles that extend way beyond the practice of nursing.

Section 301.459 is amended to require BON to base its final orders in contested cases on the fact findings and conclusions of law of the SOAH Administrative Law Judge and to prohibit BON from changing those findings and conclusions. Unlike the law for the Texas Medical Board, the ALJ in a BON case may still make recommendations for appropriate actions, but those recommendations have no binding effect.

Section 301.461 now states that BON is prohibited, rather than authorized, to seek to recover administrative costs from a nurse in a disciplinary case. This will mark a huge change in the flow of complaint cases at the BON, because nurses typically are scared off from pursuing their defense in the face of such costs which regularly exceeded $4,000 to $5,000 and were almost always granted by a presiding ALJ in a contested BON case.

SB 317/HB 4069/HB 3210 Sunset bill to continue the regulation of physical/occupational therapists. Passed the Senate, will be passed by the House.

HB 2990/SB 313 Sunset bill to continue the Texas Board of Dental Examiners. Some increase in oversight regarding anesthesia administered by dentists. Some changes to informal procedures for resolving complaints about licensees. Passed the Senate, will pass the House.

SB 430/HB 1201 would allow dental hygienists to administer some forms of anesthesia under dentist supervision. Among the bills that may pass the Senate, but will hit a logjam in the House.

SB 2001/HB3266 (see also SB 1339/HB 3268) Redefining the definition of “psychology” subject to state regulatory authority. SB 3201 passed the Senate. May get stalled in the House logjam. This statute will likely only create more litigation, because it is a circular language gordian “psychological” knot. A recent 5th Circuit case pummeled the current statutory definition and state agency interpretation on U. S. Constitutional grounds. That will leave the problem up to the state regulatory authorities that license people who perform “psychology” if the House does not pass this bill. Whatever that is. Unfortunately, a failure to legislate will encourage litigation.