azahrm legislative update september 10, 2010

AzAHRM

LEGISLATIVE UPDATE

September 10, 2010

Elizabeth Petersen111 W. Monroe Street

Suite 1000Phoenix, AZ 85003

602-507-6100

Overview Overview

– What was passed this session?What was passed this session?– What bills did not get passed?What bills did not get passed?– What will be decided on November What will be decided on November

ballot?ballot?– Positive impact of past litigation.Positive impact of past litigation.

What was passed this session?What was passed this session?

SB 1043 – Kids CareSB 1043 – Kids Care

– Restores the Children’s Health Insurance Program (CHIP) known as KidsCare and the Proposition 204 programs. Extends state employee health coverage for dependents up to their 26th birthday and makes a variety of changes to the 2010 Seventh Special Session health budget reconciliation bill.

KidsCareKidsCare

Faced with losing $9 billion in Medicare Faced with losing $9 billion in Medicare Funds, the state managed to find $7 Funds, the state managed to find $7 million to fund the program.million to fund the program.

In the same bill, lawmakers also reversed In the same bill, lawmakers also reversed cuts to AHCCCS, that threatened to pull cuts to AHCCCS, that threatened to pull health coverage of 310,000 low-income health coverage of 310,000 low-income adults. That reversal is contingent on adults. That reversal is contingent on Arizona receiving about $400 million in Arizona receiving about $400 million in federal stimulus dollars.federal stimulus dollars.

SB 1189 –Admissibility of SB 1189 –Admissibility of expert opinion testimonyexpert opinion testimony

Changes the standard used in civil Changes the standard used in civil and criminal trials relating to the and criminal trials relating to the admissibility of expert testimony admissibility of expert testimony from the from the Frye Frye to the to the Daubert Daubert standard.standard.

Frye v. DaubertFrye v. Daubert

Frye – generally accepted and leave other considerations to cross-examination.

According to a 2002 RAND study, post Daubert, the percentage of expert testimony by scientists that was excluded from the courtroom significantly rose.

Daubert has made it more difficult for plaintiffs to litigate successfully.

FryeFrye

Weaker Frye standard –– Judges merely had to ensure that an expert’s

proposed testimony was relevant and in some cases was of a nature that was “generally accepted” in a particular field when it applied.

– Not even applicable to experts who purportedly reached opinions “by inductive reasoning based on his or her own experience, observation, or research.”

DaubertDaubert

It requires that judges take an active role in determining that an expert reached opinions in a reliable, scientific manner and that the opinions fit the facts of the case before the jury hears the expert evidence.

.

DaubertDaubert

Evidence must be reliable and scientifically valid.

Trial court is gatekeeper to prevent "junk science" from entering the courtroom.

DaubertDaubert

Daubert outlined four considerations: testing, peer review, error rates, and acceptability in the relevant scientific community.

HB 2425 - Vulnerable adult HB 2425 - Vulnerable adult attorneys feesattorneys fees

Specifies a court may order the payment of reasonable attorney fees not to exceed the amount of compensatory damages in a civil action involving a vulnerable adult.– Limits the maximum amount of attorney fees

from two times the amount of compensatory damages.

HB 2124 outpatienttreatment; urgent care

– Establishes procedures that allow the Establishes procedures that allow the Arizona Department of Health Services Arizona Department of Health Services to issue temporary licenses to to issue temporary licenses to outpatient treatment centers.outpatient treatment centers. Except for outpatient treatment centers that Except for outpatient treatment centers that

provide dialysis services or abortion provide dialysis services or abortion procedures.procedures.


– Requires DHS to issue a temporary license within Requires DHS to issue a temporary license within seven days after receiving the application seven days after receiving the application materials, but prohibits DHS from issuing the materials, but prohibits DHS from issuing the temporary license before the anticipated operation temporary license before the anticipated operation date. date.

– The temporary license must include the following The temporary license must include the following information:information: Name of the facility;Name of the facility; Name of the licensee;Name of the licensee; Facility’s class or subclass;Facility’s class or subclass; Effective date of the temporary license; andEffective date of the temporary license; and Location of the licensed premises.Location of the licensed premises.


Must submit to apply for a temporary Must submit to apply for a temporary license:license: The initial application;The initial application; All application and license fees; andAll application and license fees; and A written request for a temporary license.A written request for a temporary license.

– Written request must include:Written request must include: Anticipated date of operation Anticipated date of operation Attestation signed by the applicant that the Attestation signed by the applicant that the

applicant and facility will comply with and applicant and facility will comply with and continue to comply with applicable licensing continue to comply with applicable licensing statutes and rules.statutes and rules.


– Permits a facility to begin operating on Permits a facility to begin operating on the effective date of the temporary the effective date of the temporary license.license.

– Allows the Director of DHS to stop Allows the Director of DHS to stop

issuing temporary licenses at any time if issuing temporary licenses at any time if the Director believes the public health the Director believes the public health and safety is endangered.and safety is endangered.

HB 2150 Uniform Patient HB 2150 Uniform Patient Reporting SystemReporting System

– Requires hospitals that provide primarily Requires hospitals that provide primarily psychiatric services to comply with the psychiatric services to comply with the uniform patient reporting system. Exempts uniform patient reporting system. Exempts the Arizona State Hospital from the uniform the Arizona State Hospital from the uniform patient reporting system requirements.patient reporting system requirements.

– Currently, hospitals that provide primarily Currently, hospitals that provide primarily psychiatric services are exempt from the psychiatric services are exempt from the system reporting requirements.system reporting requirements.


– The uniform patient reporting system was instituted in The uniform patient reporting system was instituted in Arizona in 1983. The system requires hospitals to Arizona in 1983. The system requires hospitals to report inpatient and outpatient statistical data to the report inpatient and outpatient statistical data to the Arizona Department of Health Services twice a year. Arizona Department of Health Services twice a year. Requirements for reporting are substantially the same Requirements for reporting are substantially the same as the uniform billing requirements prescribed by the as the uniform billing requirements prescribed by the U.S. Department of Health and Human Services for U.S. Department of Health and Human Services for Medicare and Medicaid. DHS is responsible for Medicare and Medicaid. DHS is responsible for implementing and managing the system (A.R.S. § 36-implementing and managing the system (A.R.S. § 36-125.05). Statute specifies that reported information 125.05). Statute specifies that reported information and data are designed to promote cost containment, and data are designed to promote cost containment, and DHS uses the reported information to publish a and DHS uses the reported information to publish a semiannual comparative report of patient charges semiannual comparative report of patient charges (A.R.S. § 36-125.06). (A.R.S. § 36-125.06).


–

– For inpatient statistical data, statute requires the reported data For inpatient statistical data, statute requires the reported data to include the number of confinements, average length of stay, to include the number of confinements, average length of stay, average charge per day, average charge per confinement and average charge per day, average charge per confinement and the average charge per confinement for each attending the average charge per confinement for each attending physician. Each of these categories must be further categorized physician. Each of these categories must be further categorized by discharge diagnosis, groupings of related diagnoses, by discharge diagnosis, groupings of related diagnoses, groupings of diagnoses that typically have similar lengths of groupings of diagnoses that typically have similar lengths of stay, and any other similar categories as DHS determines.stay, and any other similar categories as DHS determines.

– For outpatient service statistical data, hospital emergency For outpatient service statistical data, hospital emergency

departments are required to report the date of service, surgical departments are required to report the date of service, surgical procedures, related diagnosis and charges for service. DHS procedures, related diagnosis and charges for service. DHS may also require hospitals and emergency departments to may also require hospitals and emergency departments to report other clinical and demographic data, such as patient age, report other clinical and demographic data, such as patient age, sex or insurance coverage information.sex or insurance coverage information.

HB 2545 – Board Information HB 2545 – Board Information on Websiteon Website

Specifies that complaints, non-disciplinary orders, or actions and advisory letters or letters of concern issued by a health or non-health regulatory board be available to the board and the public at all times but NOT available on the board’s website.

HB 2545 – Board Information HB 2545 – Board Information on Websiteon Website

Effective December 2012.– However, the Board in June directed its staff to

begin implementation. Non-disciplinary actions may not be posted

to the internet, they would be available through a written public records request.

Practice Limitations would remain posted to the Board’s website.

SB 1255 – Truth in SB 1255 – Truth in AdvertisingAdvertising

Requires all licensed health professionals to disclose their title, type of professional license held, and field of practice on all advertisements in which they are named.

ARS ARS §32-3213§32-3213 – Truth in – Truth in AdvertisingAdvertising

A. An advertisement for health care services that includes a health professional's name shall identify the title and type of license the health professional holds and under which the health professional is practicing.

B. A health professional who violates this section commits an act of unprofessional conduct.

ARS ARS §32-3213§32-3213 – Truth in – Truth in AdvertisingAdvertising

C. For the purposes of this section, "advertisement" includes billboards, brochures, pamphlets, radio and television scripts, electronic media, printed telephone directories, telephone and direct mail solicitations and any other means of promotion intended to directly or indirectly induce any person to enter into an agreement for services with the health professional. Advertisement does not include materials that provide information about network providers and that are created by an entity regulated under title 20.

HB 2187 – Osteopathic Board

Allows the President of the Board of Allows the President of the Board of Osteopathic Examiners in Medicine and Osteopathic Examiners in Medicine and Surgery to establish committees and Surgery to establish committees and committee duties. committee duties.

– Exempts committee members from civil Exempts committee members from civil liabilityliability

Allows the Board to develop and publish Allows the Board to develop and publish standards and opinions governing the standards and opinions governing the profession of osteopathy.profession of osteopathy.

Amends ARS Amends ARS §32-1802§32-1802

HB 2172 – Dental Board HB 2172 – Dental Board ComplaintsComplaints

Sets forth provisions that allow the executive director, if delegated by the SBDE, to terminate a complaint filed against a licensee if the investigative staff’s review indicates the complaint is meritless.


– Prohibits the Director from terminating a Prohibits the Director from terminating a complaint if a court has entered a medical complaint if a court has entered a medical malpractice judgment against a licensee.malpractice judgment against a licensee.

– Requires the Director to provide to the Board, Requires the Director to provide to the Board, at each regularly scheduled Board meeting, a at each regularly scheduled Board meeting, a list of each complaint the Director has list of each complaint the Director has dismissed since the preceding Board meeting.dismissed since the preceding Board meeting.

– Permits a person who disagrees with the Permits a person who disagrees with the Director’s dismissal of a complaint to file a Director’s dismissal of a complaint to file a written request that the Board review the written request that the Board review the Director’s action.Director’s action.


– Specifies that the person must file the Specifies that the person must file the request within 30 days after receiving request within 30 days after receiving notice of the Director’s action by notice of the Director’s action by personal delivery or within 35 days after personal delivery or within 35 days after the date the notification was mailed to the date the notification was mailed to the person’s last known residential or the person’s last known residential or business address.business address.

– Requires the Board, upon receiving a Requires the Board, upon receiving a written request, to review the action and written request, to review the action and approve, modify or reject the Director’s approve, modify or reject the Director’s action.action.

HB 2125 – DENTAL BOARD HB 2125 – DENTAL BOARD MEMBERSHIPMEMBERSHIP

Changes the composition of the membership of the SBDE by removing one public member and adding one business entity member. Stipulates that the business entity member may not be a licensed dentist, dental hygienist or denturist.

HB 2149 – PT BOARDHB 2149 – PT BOARD

Allows the Board of Physical Therapy to establish committees to assist in carrying out its duties.

Additionally outlines the procedures for licensure, suspension and reinstatement of licenses or certificates.

HB 2123 –PT Records

Specifies that a business entity that provides physical therapy services must establish a written protocol for patient records.

ARS §32-2501 – PA Practice Act

Updates the Arizona Physician Assistant Practice Act by making numerous changes to existing statute regarding the Arizona Regulatory Board of Physician Assistants, supervising physician responsibilities, and the licensing and initiation of practice of physician assistants.– Amends ARS §32-2501

HB 2021 – PA Practice ActHB 2021 – PA Practice Act

Changes “supervising physician” notification process to Board– assumes responsibility

Broadens the ability of a physician to supervise from a remote location by allowing the physician to supervise by any means of telecommunication, not just radio or telephone.

Eliminates the requirement for a PA and a supervising physician to meet in person.


Requires the supervising physician to maintain a written agreement with the PA, stating that the physician will exercise supervision over the PA and retain professional and legal responsibility for the care provided by the PA. Requires the supervising physician and the PA to sign the agreement.– Updated annually, kept on file at the practice

site and made available to the Board on request.


May now supervise four PAs (from two).

Can perform any duties and responsibilities that are delegated by the supervising physician, including ordering, prescribing, dispensing and administering drugs and medical devices.

Can pronounce death.


Specifies that an approved program is any PA educational program accredited by one of the following:

The Accreditation Review Commission on Education for Physician Assistants or one of its predecessor agencies;

The Committee on Allied Health Education and Accreditation; or

The Commission on the Accreditation of Allied Health Educational Program.

Clarifies that the applicant must have specifically graduated from, rather than attended and completed training in, an approved program.


If delegated by the physician, to sign any form that would otherwise require authentication by a physician’s signature.

Prohibiting performing surgical abortions. PA is the supervising physician’s agent in

the performance of all practice related activities, including the ordering of diagnostic, therapeutic and other medical services.

HB 2469 – Certified MAsHB 2469 – Certified MAsand Studentsand Students

Allows Certified Medication Assistants or nursing students to dispense medications under the supervision of a licensed nursing staff member in a nursing care institution.– Implements pilot program

HB 2025 – ChiropractorsHB 2025 – Chiropractors

Updates the language specifying what types of treatment a chiropractor may engage in and establishes requirements regarding the maintenance of patients’ records for business entities that provide chiropractic services.

HB 2499 - PrescriptionsHB 2499 - Prescriptions

Allows prescriptions to be dispensed when the patient submits the written prescription by fax or email.

The patient must presents the original signed prescription when picking up.

SB 1182 – Psychiatric Mental SB 1182 – Psychiatric Mental Health NPHealth NP

Authorizes the practice of certified psychiatric and mental health nurse practitioners and incorporates references to psychiatric and mental health nurse practitioners in court-ordered mental health evaluation and treatment procedures.

SB 1182 – Psychiatric Mental SB 1182 – Psychiatric Mental Health NPHealth NP

Defines psychiatric and mental health nurse practitioner as:– Licensed registered nurse practitioner who has

completed an adult or family psychiatric and mental health nurse practitioner program.

– And is certified as an adult or family psychiatric and mental health nurse practitioner by the Arizona State Board of Nursing.

SB 1419 – Contract DentistsSB 1419 – Contract Dentists

Prevents dental service corporations and prepaid dental plans from entering into contracts with dentists that require non-covered services to be provided to subscribers at a set rate.

Prohibits dental hygienists from performing any diagnostic procedures that are required to be performed by a dentist.

SB 1304 – Abortion reporting SB 1304 – Abortion reporting requirementsrequirements

Requires a hospital or facility that performs abortions and health professionals that treat women with complications due to an abortion to submit a report to DHS detailing non patient identifiable information so that DHS can prepare an annual statistical report based on the data gathered in the reports.

SB 1307 – Human Embryos

Prohibits a person from knowingly or intentionally creating or attempting to create an in vitro human embryo by any means other than fertilization of a human egg by a human sperm.

SB 1306 – Human EggSB 1306 – Human Egg

Sets forth requirements for human egg donations and prohibits the purchase or sale of human eggs for purposes other than treatment of human infertility and clinical investigation.

SB 1181 – Autism Spectrum SB 1181 – Autism Spectrum Disorder Task Force.Disorder Task Force.

Establishes the Autism Disorder Task Force.

SB 1161 – Death certificate SB 1161 – Death certificate deadlinedeadline

Requires local registrars, deputy local registrars or state registrars to register death certificates within 72 hours after receiving a medical certification of death. Instructs the medical examiner to sign the medical certification of death within 72 hours, excluding weekends and holidays.

HB 2116 ambulance servicesrates for AHCCCS

Codifies the AHCCCS reimbursement rate for ambulance services to be set at 80% of DHS’s approved ambulance service rates.

Establishes a voluntary process for hospitals and local entities to provide a state match for graduate medical education and disproportionate share payments.

Housekeeping MeasuresHousekeeping Measures

HB 2027 Continues the State Board HB 2027 Continues the State Board of Psychologist Examiners for ten of Psychologist Examiners for ten years.years.

HB 2026 Continues the Governor’s HB 2026 Continues the Governor’s Advisory Council on Aging for ten Advisory Council on Aging for ten years.years.

More housekeepingMore housekeeping

– HB 2028 - Continues the Arizona HB 2028 - Continues the Arizona Commission for the Deaf and Hard of Commission for the Deaf and Hard of Hearing for ten years.Hearing for ten years.

– HB 2406 - An emergency measure that HB 2406 - An emergency measure that reinstated the Emergency Medical reinstated the Emergency Medical Services Council in the Arizona Services Council in the Arizona Department of Health Services for ten Department of Health Services for ten years.years.

What bills did not get passed?What bills did not get passed?

BILLS THAT DIED IN COMMITTEBILLS THAT DIED IN COMMITTE

FMLA Insurance.FMLA Insurance. Allowing naturopathic physician as a Allowing naturopathic physician as a

specialist under the supervision of a specialist under the supervision of a licensed physician to submit to licensed physician to submit to AHCCCS.AHCCCS.

Requiring Medicare supplemental Requiring Medicare supplemental insurance that covers patients over 65 insurance that covers patients over 65 to cover patients under 65 due to to cover patients under 65 due to disability or end-state renal disease.disability or end-state renal disease.

Mental health insurance parity.Mental health insurance parity.

BILLS THAT DIEDBILLS THAT DIED

Hospital requirement to report cancer Hospital requirement to report cancer screening claims.screening claims.

Change the OB, ED and ED on-call Change the OB, ED and ED on-call standard to preponderance of standard to preponderance of evidence but with “wanton and evidence but with “wanton and willful”.willful”.

60 day notice of claim for medical 60 day notice of claim for medical malpractice actions with authorization malpractice actions with authorization for medical records. for medical records.

BILLS THAT DIEDBILLS THAT DIED

Medical screening committee – to Medical screening committee – to decide which medical treatments and decide which medical treatments and surgical procedures require surgical procedures require disclosures of risks and hazards.disclosures of risks and hazards.

Jury instructions on failure to disclose Jury instructions on failure to disclose risks.risks.

Consent for hysterectomy.Consent for hysterectomy.

What will be decided in November?What will be decided in November?

November Propositions

Health Care Freedom Act (Prop 106). Will constitutionally override any law, rule or regulation that requires individuals or employers to participate in any particular health care system


Prop 106, if approved by voters, also would prohibit any fine or penalty on anyone or any company for deciding to purchase health care directly. Doctors and health care providers would remain free to accept those funds and provide those services.

Finally, it would overrule anything that prohibits the sale of private health insurance in Arizona.


Constitutional issue – – Requiring an insurance purchase goes

far beyond the federal government's current role of regulating interstate commerce.


To prohibit the issuance of any civil or criminal complaint, notice, charge or citation for an alleged violation of a state, county, city or town traffic law if the alleged violation was detected through the use of a photo enforcement device that records a vehicle's license plate or operator, reads a vehicle's license plate or otherwise identifies a vehicle.

Positive Legislative ChangePositive Legislative Change

I’m Sorry LegislationI’m Sorry Legislation– Health care providers admissions Health care providers admissions

of cannot be used in a medical of cannot be used in a medical malpractice case.malpractice case.

I’m sorry statuteI’m sorry statute

In any civil action that is brought against a health care provider as defined in section 12-561 or in any arbitration proceeding that relates to the civil action, any statement, affirmation, gesture or conduct expressing apology, responsibility, liability, sympathy, commiseration, condolence, compassion or a general sense of benevolence that was made by a health care provider or an employee of a health care provider to the patient, a relative of the patient, the patient's survivors or a health care decision maker for the patient and that relates to the discomfort, pain, suffering, injury or death of the patient as the result of the unanticipated outcome of medical care is inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

Expert AffidavitExpert Affidavit

Plaintiff must have expert at Plaintiff must have expert at beginning of casebeginning of case– Affidavit required with initial disclosuresAffidavit required with initial disclosures

Setting for breach in standard of care Setting for breach in standard of care and how caused claimed injury.and how caused claimed injury.

Expert Witness QualificationsExpert Witness Qualifications

Same specialty Same board certification

Expert Witness QualificationsExpert Witness Qualifications

During the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person's professional time to either or both of the following:– (a) The active clinical practice of the same

health profession and specialty.– (b) The instruction of students in an accredited

health professional school or accredited residency or clinical research program in the same health profession and specialty.

Expert Witness Affidavit Expert Witness Affidavit

If the defendant is a health care institution that employs a health professional against whom or on whose behalf the testimony is offered, the provisions above apply.

Does not limit the power of the trial court to disqualify an expert witness other grounds.

Expert witness not be permitted to testify if the fee of the witness is in any way contingent on the outcome of the case.

azahrm legislative update september 10, 2010

Documents

expert evidence

percentage of expert

daubert standard

temporary licenses

state employee health

outpatient treatment

monroe streetsuite

elizabeth petersen111