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February 2006
Note: Questions relating to state legislative activity or any of the items noted in ACS Cross Country may be directed to Mindy Baker, State Affairs Associate, at mbaker@facs.org.
Florida Supreme Court May Allow Plaintiffs to Waive Their Rights to Full Awards
In 2004, Florida voters passed a constitutional amendment limiting attorney contingency fees in medical liability cases to 30 percent of the first $250,000 in damages and to10 percent of damages greater than $250,000. That restriction has not stopped trial lawyers from asking their clients to give up their constitutional rights and sign waivers allowing higher fees than those stipulated in Amendment Three. Supporters of the amendment took their case to Florida’s Supreme Court, and in November 2005 the court heard oral arguments. Although the court hasn’t yet issued a formal ruling, early indications favor the attorneys. This past December, the court asked the Florida Bar to issue guidelines on when and how attorneys may ask their clients to waive their right to the full amount of damages. The deadline for the submission of the bar’s comments is February 13, after which the court will allow interested parties to comment on the guidelines before issuing its final ruling.
The court directed the Florida Bar to draft and submit proposed guidelines that include, but that are not limited to, the following core features:
- An acknowledgement of the provisions of the Amendment.
- An affirmative obligation on the part of an attorney contemplating a contingency fee contract with a potential client to notify any potential client with a medical liability claim of the provisions of Amendment Three. (Such notice provision may include a standard written notice form.)
- A procedure whereby a medical liability claimant may knowingly and voluntarily waive the rights granted by Amendment Three. (Such a proposed procedure may involve judicial oversight or review of the waiver and may include a standard waiver form or otherwise provide for the protection of the rights of a potential client.)
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Imaging Restrictions Go Beyond Legislation
Last year saw many states battling over legislative attempts to restrict surgeons from performing MRIs, CAT scans, or PET scans “except for a radiologist group practice or an office consisting solely of one or more radiologists.” All of these attempts failed, prompting proponents of this type of legislation to try a new strategy —adoption of guidelines by private payers. Several states, including Idaho, Connecticut, and Pennsylvania, have already seen attempts by private payers to restrict usage.
In particular, the Pennsylvania Medical Society’s (PaMS) Specialty Leadership Cabinet formed a Task Force on Medical Imaging in May 2005 in order to develop a joint position on the performance of five targeted medical imaging procedures (CT, MRI, MRA, nuclear, and PET scans) by specialties other than radiology. Last month the board of the medical society adopted two recommendations and sent them to the various state specialty societies for review and comment. In response, after meeting on January 24 to discuss the matter, Aaron Bleznak, MD, FACS, President of the Keystone Chapter of the American College of Surgeons, wrote to the task force recommending several issues for discussion.
In an effort to ensure that surgeons are qualified to perform imaging procedures, the American College of Surgeons sponsors a stereotactic breast biopsy accreditation program and a voluntary verification program in ultrasonography.
Recommendations of the Pennsylvania Medical Society (PaMS):
- National specialty organizations representing neurosurgery, orthopaedic surgery, otolaryngology, and neurology should place a high priority on developing training and competency standards for CT, MRI, MRA, nuclear and PET scans performed by physicians practicing within their specific specialties, and also consider the development of appropriateness criteria to address medical imaging utilization issues specific to their respective specialties.
- The PaMS will work with third-party payers in Pennsylvania to ensure that physicians adhering to appropriate specialty-specific training and competency standards, as well as to appropriateness criteria, for CT, MRI, MRA, nuclear and PET scans, such as those developed for radiology and cardiology, are justly credentialed and reimbursed.
Reply from the ACS Keystone Chapter:
- The breast ultrasound certification process of the American Society of Breast Surgeons is considered by us to be another example of an appropriate mechanism to identify physicians who are sufficiently trained and/or experienced to perform an imaging procedure. This process stipulates both didactic learning and demonstration of clinical experience and expertise and requires recertification at regular intervals.
- Any processes put in place should recognize that recently trained residents and fellows often have received substantial amounts of training in the performance and/or interpretation of advanced imaging procedures, and should account for this experience when determining who can and should be involved in medical imaging.
- The requirements for training a surgeon, with his/her knowledge and experience with the underlying anatomy and pathology, should not be required to equal that of radiologists who lack that clinical background.
- The American College of Surgeons reports that a recent survey revealed that 85 percent of patients prefer to have their imaging procedure performed by their specialists.
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Provider Taxes Back in 2006
Although attempts to tax cosmetic surgery and ambulatory surgery procedures were popular in 2005, no states passed such legislation. However, as is the case with any such issue, the battle is far from over. Already in 2006, Rep. Phyllis Kahn has pre-filed legislation to add cosmetic medical procedures to the state’s 6.5 percent sales tax. And rather than taxing procedures or providers, several states have begun to look at taxing usage of certain medical devices. For example, California’s Board of Equalization will be considering proposed revisions to the tax code that would allow for the taxation of Botox and other cosmetic medical devices/products. Senate Bill 6300 in Washington State would enumerate the types of devices that are exempt from taxation, opening the door for everything other than those specified devices to be taxed.
The only state to pass a tax on cosmetic procedures (2004) was New Jersey. After the first full year of implementation of that tax, the original sponsor of the legislation introduced a bill to repeal it. This unusual action by the sponsor was prompted by the reality that the money collected from the tax was grossly overestimated and the fact that the tax is costing more to implement than is being collected.
The American College of Surgeons continues to participate in a national coalition to oppose these kinds of taxes. The coalition has a comprehensive Web site that is used to monitor state activities in that regard and to educate the public on this issue--http://www.stopmedicaltaxes.com
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State Advocacy Campaign Targets Health Care Benefits
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Legislation requiring large employers to set aside a percentage of their payroll for health care benefits is seeing a major push in state legislatures. Strongly supported by organized labor through the AFL-CIO’s “Fair Share Health Care” campaign, several states have already passed or are considering this legislation. For example, the
Maryland General Assembly overrode the governor’s veto to enact a bill requiring employers with 10,000 or more employees to spend at least 8 percent of their payroll on employee health coverage. In Washington State, two bills are in play, and if passed would require employers with 5,000 or more employees to spend at least 9 percent of their total payroll on health care benefits.
Supporters of this effort expect to introduce this legislation in 30 state legislatures this year. Legislators see this approach as a way to move people from the Medicaid rolls to private health care plans, thereby helping to control rapidly increasing Medicaid budgets.
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New Jersey Passes Prompt Payment Legislation
New Jersey ended its 2005 legislative session by passing Senate Bill 2824, which requires health insurers to authorize payment for a service within a set amount of time, or the service is considered approved. The bill requires providers to post on the Internet, “information that describes the payers’ utilization management and claims processing and payment policies.” Also provided in the legislation are changes to the prompt payment laws. These changes include the requirements that:
- Electronic claims must be paid (or notification of nonpayment must be made) within 30 days, and all other claims must be settled within 40 days.
- If a claim is missing, data notification must be communicated within seven days.
- Overdue claims shall accrue interest at 12 percent per annum.
- The time frame for insurers to seek recovery of overpayments will be limited to 18 months.
Senate Bill 2824 was signed by the governor on January 12, 2006. For more information on prompt payment laws, contact Mindy Baker, State Affairs Associate, mbaker@facs.org.
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Past Issues of ACS Cross Country:
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ACS State Affairs
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Division of Advocacy and Health Policy
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Jon H. Sutton
Manager, State Affairs
Chicago Headquarters
312-202-5358
jsutton@facs.org |
Mindy Baker
State Affairs Associate
Chicago Headquarters
312-202-5363
mbaker@facs.org |
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Revised February 8, 2006
Advocacy and Health Policy
This page and all contents are Copyright © 2003-2006
by the American College of Surgeons, Chicago, IL 60611-3211
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