by Eric Woomer
2021 Legislative Session
KEY ISSUES FACING THE LEGISLATURE
COVID logistics, the state budgetary shortfall, and redistricting are some of the challenges legislators will face this session, although redistricting is likely to be addressed in a special session. Below is a breakdown of these hurdles the Legislature will need to overcome during the next 140 days:
The public is being allowed into the building, but restrictions are in place. The Senate is requiring a negative coronavirus test upon entry into the Chamber and/or entry into committee meetings. The House is not requiring tests but is requiring everyone to wear a mask. Public seating in the Galleries will continue to be limited. During the debate on the House rules, lawmakers rejected a measure that would have allowed for virtual public testimony. Instead, the decision-making falls on the committee chairs as to as how each will conduct business - so for now, individuals wishing to testify will need to do so in person. Senate Committee on Redistricting is the only Senate Committee holding public testimony virtually. Senate Finance Committee has set hearings on the budget through March and is taking public testimony in person.
The House and Senate released their base budget for the 2022-2023 biennium, with both Chambers proposing General Revenue expenditures of $119 billion, staying under the constitutional spending limit of 7% set by the Legislative Budget Board (LBB). The budgets both prioritize teacher retirement funding and the investments made in public education last session, as well as providing funding for Medicaid caseload growth. Budget hearings begin in the Senate next week. While both budgets stay within the constitutional spending limit, both bills as introduced are $7 billion above the Comptroller’s Biennial Revenue Estimate which identified $112 billion in general revenue available for spending – how the Legislature intends to shore-up that spending gap is a timely question.
Senate Redistricting Committee has already begun hearings on the redistricting process, which determines how many seats each state gets in Congress based on data from the U.S. Census Bureau. In Texas, the state legislature uses that data to equally split up the U.S. House seats across the state as well as the Texas House and Senate districts.
TDS PRIORITY POLICY INITIATIVES
- Expanding In-Office Dispensing by Physicians
- Ensuring Appropriate Regulation and Oversight of Med Spas
- Preservation of Tax Exemption for Medical Billing Services
- Protection Against Scope of Practice Expansion
- Promoting Access to Sunscreen in Texas Youth Camps
ONGOING ADVOCACY EFFORTS
- Ensuring Patient Access to Necessary Elective Procedures during the COVID-19 Pandemic
- Hosting “Derm Days” at the Texas Capitol Each Legislative Session
- Shielding Physicians from Onerous Maintenance of Certifications Obligations
- Defending Physician Payment Protections for Out-of-Network Providers
- Weekly Engagement with TMA Specialty Societies and Legislative Advocacy Team
- Regular Newsletters, Legislative Reports, and Election Analysis
VIRTUAL TMA FIRST TUESDAYS AT THE CAPITOL
Lobbying your legislator has never been easier… or safer. Join TMA and TMA Alliance at noon on the first Tuesday of the month (February through May 2021) for a virtual legislative update and trip to the Capitol. TMA’s lobby team will outline issues important to medicine and actions you can take now to make a difference. Our senators and representatives listen when their hometown physicians contact their offices by text, email, phone or via Zoom. They want to hear from you and learn what's happening in patient care in your district.
For more information on TMA First Tuesday events, visit www.texmed.org/firsttuesdays Registration is FREE, and future dates are listed below.
KEY BILLS FILED TO DATE
- HB 456 - Rep. Matt Shaheen: Relating to the dispensing of certain drugs by physicians
- HB 515 - Rep. Tom Oliverson: Relating to the reimbursement and payment of claims by certain health benefit plan issuers for telemedicine medical services and telehealth services
- HB 974 - Rep. Four Price: Relating to the reimbursement and payment of claims by certain health benefit plan issuers for telemedicine medical services and telehealth services
- SB 245 - Sen. Charles Schwertner: Relating to the adequacy and effectiveness of managed care plan networks
- SB 412 – Sen. Dawn Buckingham:Relating to the reimbursement and payment of claims by certain health benefit plan issuers for telemedicine medical services and telehealth services
After 140 days of work, Texas legislators concluded the 86th biennial legislative session with a streak of high-profile bipartisan bills sent to Governor Greg Abbott’s desk, while avoiding the many pitfalls that threatened to derail their efforts. In contrast to the high-profile feuds which highlighted the previous session, the legislature passed multiple top-priority bill providing big wins on both sides of the aisle. While not short on controversy, the session was historically productive, addressing issues ranging from school finance reform, to property tax reductions, and disaster preparedness.
The final budget, which sets spending levels for the 2020-2021 biennium, totaled $250 billion in federal, state, and local spending. Highlights of the bill include $94 billion in school funding, including an overall increase of $6.5 billion, with an additional $1.6 billion earmarked for teacher pay raises; $5 billion in funding to buy down property tax rates across the state; and $84 billion for health and human services programs.
In an effort to curb the growth of local property taxes, the legislature approved language effectively capping the amount local governments can increase tax rates without seeking voter approval. Cities and counties are limited to increasing their property tax rates by 3.5% annually before triggering a voter referendum on the increase. School districts are now similarly capped at annual increases of 2.5%.
The legislature also meaningfully addressed school finance reform by providing $6.5 billion to improve public schools and boost teacher salaries, and lowering school district taxes by $5.1 billion. This effectively increases overall funding per student and reduces necessary reliance on the “Robin Hood” system. Additionally, the bill includes full-day pre-K for eligible students, incentives for dual-language and dyslexia programs, and provisions to develop teacher merit pay systems.
In the wake of Hurricane Harvey, lawmakers prioritized implementing recovery efforts and developing infrastructure to better prevent future flooding. To do so, the legislature approved a withdrawal of $1.7 billion from the state Rainy Day fund, directed to the creation of the Flood Infrastructure Fund, a dedicated fund specifically designated to mitigate flood risks, and the Texas Infrastructure Resiliency Fund, which is made up of four separate accounts addressing specific disaster concerns.
Following the tragic school shooting at Santa Fe High School in 2018 and a rash of school shootings across the country, the legislature enacted a sweeping school safety initiative. The legislation includes provisions requiring specific training for school resource officers, strengthening mental health initiatives in schools, setting requirements for classroom access to electronic communications in the event of an emergency, and the creation of teams to identify possibly dangerous students.
As part of nationwide efforts to reduce the use of tobacco products, the legislature passed an increase to the legal age to buy tobacco. Under the legislation, the legal age to purchase tobacco has been raised from 18 to 21 throughout the state, with an exception for military personnel. Texas became the 14th state in the country to raise the legal tobacco purchasing age to 21.
Among the bills that directly impacted the practice of dermatology, here is a quick rundown of key bills we were involved with:
Authored by Senator Hughes, SB 2366 was an effort to reign in the unregulated practice of medspas given that many of these operate without appropriate physician oversight and supervision. The legislation provides a definition of medical spas and ‘false, misleading, or deceptive acts or practices,’ as well as setting posting requirements for medical spas, sets complaint reporting standards, and allows for recovery of awards in court actions against medical spas pursued by the consumer protection division.
The bill was broadly drafted that could have created many unintended consequences, and ultimately did not pass. However, the Texas Medical Board (TMB) is presently considering additional rules regarding the ownership structure of medspas and the delegation of authority to perform nonsurgical medical cosmetic procedures.
Authored by Rep. Klick, HB 1792 would expand the scope of the practice for an advanced practice registered nurse authorized to work independently include ordering, performing and interpreting diagnostic tests; formulating primary and differential medical diagnoses and advanced assessments; and treating actual/potential health problems. The bill would have significantly altered the oversight role of physicians and was opposed strongly by the House of Medicine. It ultimately did not pass.
Authored by Rep. Paddie, HB 1504 continues the TMB, amends the Board’s licensure and enforcement processes, establishes a radiologist assistant certificate, and updates training for other boards.
HB 1532, authored by Rep. Meyer, requires the TMB to accept and process complaints made against nonprofit health organizations in the same manner as complaints made against health professionals. The bill also would require these organizations to develop anti-retaliation policies for physicians and submit biennial reports to TMB.
HB 2174 by Rep. Zerwas deals with the Texas Controlled Substances Act, to protect against prescription drug misuse and diversion. It requires practitioners to prescribe controlled substances electronically, limiting opioid prescriptions to a ten-day supply for acute pain requiring practitioners to complete continuing education related to prescribing and dispensing opioids. The bill includes a number of exemptions to the electronic prescribing mandate.
Authored by Rep. Walle, HB 2261 boosts the amount of money a physician could receive under the physician education loan repayment program by $5,000 each year. This would bring the total amount of repayment assistance available to physicians through the program to $180,000. The bill would apply only to physicians who established eligibility for loan repayment assistance on the basis of an application submitted on or after September 1, 2019.
Building upon the legislation passed during the 85th Session regarding maintenance of certification, SB 1882 by Sen. Buckingham requires hospitals to provide voting physician members of a medical staff with information on how to request and hold a vote to require maintenance of certification.
Authored by Sen. Hancock and Rep. Oliverson, SB 1264 prohibits balance billing to health benefit plan enrollees, expands the Texas Department of Insurance mediation program between health benefit plans and out-of-network providers that were facilities, creates an arbitration system between health benefit plans and out-of-network providers that were not facilities, and requires health plans to cover certain out-of-network services at the usual and customary rate.
It is always my pleasure to serve the Texas Dermatological Society at the Texas Legislature. Please feel free to contact me with any questions or concerns you may have.
As we approach the end of year and look forward to next 2016, I am pleased to report that the Texas Dermatological Society has had a busy but positive 2015. Here are some recent activities I have undertaken as your governmental affairs consultant.
Texas Medical Board
On behalf of TDS, I attended the December 4, 2015 meeting of the Texas Medical Board, which was taking up for consideration a proposal permitting acupuncturists to provide “facial rejuvenation” procedures without a physician referral. This is a cosmetic procedure to address such things as sagging skin due to weight loss. Acupuncturists are currently allowed by statute to treat four types of issues without a doctor's referral - weight loss, substance abuse, smoking cessation, and chronic pain. They were approaching TMB about adding "facial rejuvenation" as a 5th.
TMB members didn't know much about the topic, such as how it worked or what harm could come to a patient. They wanted to review data to support that it was safe and effective, and TMB staff was instructed to consult with the acupuncturists to obtain such reports. The issue was tabled pending the results of that review.
For 2016, the Medical Board is scheduled to meet March 3-4, June 9-10, August 25-26, October 13-14, and December 1-2.
I attended the Texas Medical Association’s Advocacy Retreat in Austin on December 5. The Board of Trustees of the TMA has formed a task force to investigate the issue of balance billing.
Candidates for our nation’s highest office have offered plans to prohibit physicians from charging at out-of-network rates when a patient visits a facility covered by their insurance plan. National consumer organizations are actively pursuing a prohibition on out-of-network physician billing for services provided at hospitals. And in Texas, despite the fact that the Legislature passed significant balance billing reform legislation, several influential lawmakers continue to suggest that additional reforms will be a top priority for the 2017 session.
Over the last two decades, organized medicine has defeated attempts to prohibit balance billing. However, given the continued efforts across the political spectrum to address this issue, it may grow more and more difficult to preserve the status quo.
In and effort to bring a unified voice to the Texas Legislature, the Task Force on Balance Billing and TMA’s Council on Legislation are interested in learning what changes in physician behavior should be considered with respect to the balance billing issue and how such changes might be expressed in legislation. They are also interested in understanding public policy outcomes Texas physicians would find unacceptable.
A big part of my ongoing activities on behalf of the Texas Dermatological Society includes outreach to legislators and their staff during the interim period between legislative sessions. Each election cycle, perhaps 3-6 Senators and 20-30 Representatives leave office – due to retirement or losses at the ballot box. Dozens more staff people move on to other jobs – inside or outside the legislative process. This churning of legislators and personnel makes maintaining my visibility and relationships as your governmental affairs consultants a top priority.
In the 4th Quarter of 2015, I hosted meals for 24 different legislative office, both Republican and Democrat, in Austin and in their districts, as well as the House of Representatives Staff Christmas party on December 15th. My team has hosted more than a dozen candidates for office, to discuss their political interests and strategy for election day success. I have sponsored dozens of fundraisers for sitting legislators, and to date have contributed more than $10,000 in personal resources to key incumbent lawmakers. Between personal funds, my partnership PAC, and my client base, my budget for political contributions for the 2016 election season is expected to exceed $150,000.
The filing period for legislative offices for the 2016 ballot closed December 14, 2015. Important election dates to keep in mind include February 1, 2016 – the last day to register to vote; February 16-26, 2016 – Early voting; and March 1, 2016 – Texas primary election day.
To date, thirteen House members and two senators have retired from their respective chambers. Collectively, this group represents more than 200 years of legislative service, and includes seven sitting chairmen. There are an additional 24 seats with incumbent legislators facing well-known, well-financed challengers, meaning that the 2016 election cycle should be an active campaign season.
Key races that affect the House of Medicine include: Senate District 24 (Incumbent Troy Fraser – retiring) – Dawn Buckingham, MD – an opthamologist – leads a crowded field that initially included Rep. Susan King (R – Abilene), who has been a longstanding friend of medicine and whose husband, Dr. Austin King, is a former TMA president. She has since bowed out of the race, citing health concerns. Rep. Sarah Davis (R-Houston) serves on the Public Health & Appropriations Committees, and holds a swing district, meaning she will likely have strong challengers in both her primary and general elections. Rep. J.D. Sheffield, DO (R – Gatesville) is continually fending off GOP challengers from the conservative wing of his party, while House District 130 (Incumbent Allen Fletcher – retiring) is being sought by Dr. Tom Oliverson, an anesthesiologist.
Thank you for allowing me the honor of representing you at the state capitol. Please feel free to reach out to me if you have any questions or concerns. Additionally, my website (www.ericwoomer.com) has been relaunched as a client resource for keeping up with legislative and political activities. I hope you find it useful.