Back to Business: State Affairs' Mid-Year Update

With COVID-19 vaccines more widely available, state legislatures planned a return to normal business in 2022. However, because of repeated surges in COVID-19 variants, several states were slow to reopen capitol buildings to visitors at the start of the year. Nonetheless, state legislatures were determined to resume regular processes and procedures, and the American College of Surgeons (ACS) prepared to advance state policy priorities on behalf of patients and the surgical profession.

The College and ACS state chapters ramped up member engagement on top legislative issues to surpass prepandemic achievements. Key priorities for ACS members include prior authorization reforms, limiting the expansion of nonphysician scope of practice, and insurance coverage of preventive cancer screenings, as well as funding for state trauma systems and STOP THE BLEED^®, among other patient care issues. In 2022, the College monitored more than 1,414 state bills, and ACS Fellows sent 1,404 emails to their state representatives and senators in response to advocacy grassroots campaigns (see Figure 1).

Following is a breakdown of the top legislative issues with which members engaged since January 1, 2022.

Prior Authorization

Improving insurance prior authorization (PA) requirements that would ensure timely access to care for patients remains a priority for the College. In 2022, several states considered legislation creating a “gold card” program to optimize processing times. Under such programs, physicians who have a 90–95% PA approval rating over a 6-month period for certain services will be exempt from PA requirements for those services.

Texas was the first state to enact legislation that created a gold card program during its 2021 legislative session, and the law took effect January 1. Gold card bills were introduced in Colorado, Indiana, Kentucky, Louisiana, Mississippi, New York, and Oklahoma this year.

The Louisiana Chapter advocated in support of S.B. 112, a bill that would establish a gold card program and prevent insurers from denying claims submitted for a medical service that was already included under a PA approval, with built-in exceptions for specific circumstances (see Figure 2). Unfortunately, the legislation was amended during the legislative process, resulting in the removal of the gold card program and any retroactive denial protections. Instead, the bill now calls for the development of a new program to “reduce unnecessary administrative burdens,” with few details on implementation.

In addition, the New York Chapter supported two separate PA reform proposals—S.B. 8299 and A.B. 9908A, which would create a gold card program similar to the one in Texas, and S.B. 6435A and A.B. 7129A, which would require insurers to rely on evidence-based, peer-reviewed information for consideration of utilization review.

The bills also would require more timely responses for PA requests, specifically reducing the required response rate from 3 business days. The New York Chapter launched grassroots advocacy and included the legislation as a priority during its lobby day meetings. As of June 6, the New York legislature was still in session, and the bills were still active.

Trauma

The 2022 state legislative sessions to date have been a continuation of many of the same state trauma legislative priorities from 2021, including trauma system funding and advancing STOP THE BLEED^® legislation.

Trauma Funding and System Development

Michigan Gov. Gretchen Whitmer dedicated $3.5 million in her proposed fiscal year 2023 state budget to funding the state trauma system. The system lost funding last year when the legislature reallocated the original funding source—the state’s crime victims fund. If passed, the $3.5 million will allow the state to recover any lost progress in 2022. The Michigan legislature must pass the state budget before the end of the fiscal year on September 30.

In Indiana, the state legislature passed S.B. 247 calling for the state Department of Homeland Security, Department of Health, and the statewide 911 Board to make recommendations before November 1, 2022, to the general assembly regarding improving emergency medical services (EMS) response through increased interoperability of the 911 system, and the effectiveness of regionalized trauma systems and their impact on patient care. The legislation was a follow-up to the state legislature’s Trauma System Study Committee hearing in summer 2021.

STOP THE BLEED^® continues to gain support. In California, the effort to pass legislation to mandate the installation of bleeding control kits in public buildings continues with the introduction of A.B. 2260. In 2021, grassroots advocates spearheaded efforts to pass S.B. 687, revamped from previous versions. The bill passed in the Senate but again stalled after failing to achieve approval in the Assembly Appropriations Committee despite passing in the Health and Judiciary Committees.

Significant efforts have been made over the past 6 months to build and organize a coalition of support for A.B. 2260. More than a dozen California and national physician, nursing, and trauma center organizations have united in support of the legislation, including the California Medical Association, California Emergency Nurses Association, American Trauma Society, National Association of EMS Physicians, and the Trauma Center Association of America. In addition, a dedicated website was created for the bill, AB2260.com, as a resource for critical information and supporting arguments for its passage.

“After so much success last year, we built on that momentum to shore up support among the California surgical and physician community for an organized push in support of the legislation this year. Gaining additional grassroots, coalition, and testimony support from others, including emergency nurses, EMS personnel, and trauma centers really helped to demonstrate support in the healthcare community. We are confident that A.B. 2260 will get to Gov. Gavin Newsom this year and will be a model approach for others,” said Amy E. Liepert, MD, FACS, medical director, acute care surgery, and associate professor of surgery, University of California San Diego.

All three ACS California chapters (Northern California, Southern California, and San Diego-Imperial) organized STOP THE BLEED^® training sessions April 19 for state legislators. That same day, the Assembly Judiciary Committee held a hearing on A.B. 2260. Committee on Trauma (COT) member Thomas Duncan, MD, FACS, and Dr. Liepert testified before the Judiciary Committee in support of the bill. Representatives of property owners and managers associations agreed to drop their opposition to the bill, formally indicating a neutral position during the hearing.

Almost 1 month later, the bill passed in the Assembly Appropriations Committee, which had rejected previous iterations. The bill then was sent to the Assembly floor for a full vote. A week later, on May 25, the Assembly passed the legislation with a 69-0 vote, moving the bill to the Senate where a previous version had already passed in 2021 and is expected to easily pass again this year.

In addition, COT leadership sent a letter of support for A.B. 1929, which would support continued funding of hospital-based violence prevention programs through the state’s Medicaid program, Medi-Cal. The Assembly passed the bill, which is now awaiting movement in the Senate. The deadline for the California Senate to pass bills originating in the Assembly this year is August 31.

Meanwhile, the Missouri COT engaged with the legislature in support of H.B. 1722, which would require the installation of bleeding control kits in public schools. The Missouri COT worked with the bill’s sponsor, Rep. Brenda Shields (R), to improve the bill’s text. The bill advanced out of the House General Laws and Rules Committees but did not receive a vote on the House floor before the session ended.

“We knew this bill was out there the last couple of years, but reaching out and meeting with the sponsor provided us the opportunity to make some improvements to the language and inject some energy that wasn’t there before to move the bill forward,” said Doug Schuerer, MD, FACS, Chair of the Missouri COT. “Unfortunately, we ran out of time this session. I think we learned a lot to take into next year.”

The New York Chapter advocated for two different STOP THE BLEED^® proposals. Authored by Assemblymember David McDonough (R), A. 6462 would not only require the installation of bleeding control kits in public schools, but school personnel also would be required to participate in STOP THE BLEED^® training. At press time, the legislation had advanced out of the Assembly’s Education Committee.

Separately, the New York Chapter supported legislation that would include STOP THE BLEED^® training as part of the state’s high school health curriculum. The STOP THE BLEED^® training would be in addition to the requirement that is already in place for New York high school students to participate in cardiopulmonary resuscitation training. Legislation containing this proposal has yet to be introduced.

Cancer

The ACS Commission on Cancer (CoC) is celebrating its centennial this year and has demonstrated its evolution over the past 100 years by supporting efforts to advance legislation for several state cancer priorities. The CoC 2022 state cancer priorities include:

• Expanding insurance coverage for prostate, lung, and colorectal cancer screenings, as well as diagnostic breast cancer screenings
• Raising the minimum age to 21 years old for purchase and use of tobacco products
  Implementing a minimum age of 18 years for commercial indoor tanning
• Enabling children to possess and use sunscreen while in school without a physician’s note
• Most notably, progress was made to expand insurance coverage for cancer screenings in multiple states

Prostate Cancer Screenings

Only three states—New York, Maryland, and Rhode Island—have legislation in place that removes copays and other cost-sharing requirements for prostate cancer screenings. The ACS partnered with the American Urological Association and other organizations to send a joint letter in support of Illinois H.B. 5318. The bill had staunch support in both the House and the Senate and was sent to Gov. J.B. Pritzker for signature.

The ACS also endorsed a letter of support for New Jersey bills A. 2795 and S. 791, which would require insurance carriers to provide annual prostate cancer screenings void of any cost-sharing requirements, including a digital rectal examination and prostate-specific antigen test, for men ages 50 and older who are asymptomatic and for men ages 40 and older with a family history of prostate cancer or other prostate cancer risk factors.

The CoC Advocacy Committee monitored eight prostate cancer bills over the past 6 months. Two of those bills, California A.B. 1520 and Illinois H.B. 1728, have passed in their respective committees and are awaiting chamber votes.

Prostate cancer is the second leading cause of cancer death among men in the US. The relative 5-year survival rate for prostate cancer when diagnosed at an early stage is nearly 100%; the survival rate drops to 31% when diagnosed at an advanced stage. As with any cancer, early detection is key, and removing cost barriers to screenings will allow more men to survive the disease and maintain their quality of life.

Lung Cancer Screenings

As of 2022, six states—North Dakota, Utah, Wyoming, Nebraska, Mississippi, and Alabama—have yet to expand Medicaid coverage to include lung cancer screenings for average-risk patients without cost-sharing requirements. Lung cancer is the nation’s number one cause of death for both men and women diagnosed with cancer. The CoC Advocacy Committee is developing a legislative strategy to close the six-state gap.

Kentucky Gov. Andy Beshear signed H.B. 240 into law in March; the legislation establishes the Lung Cancer Screening and Prevention Program. This comprehensive program is designed to reach some of Kentucky’s most vulnerable populations and offers provisions such as additional screenings for uninsured and underinsured patients, a statewide data collection system, a lung cancer screening advisory committee that can make recommendations and provide an annual progress report, and a lung cancer screening education and outreach program. The Lung Cancer Screening and Prevention Program is an excellent framework not only for states that have yet to provide Medicaid coverage for lung cancer screenings, but also for others seeking improved health outcomes for lung cancer patients.

Colorectal Cancer Screenings

Over the past few decades, prevalence of colorectal cancer in patients ages 20−49 years old has increased exponentially. Consequently, both the American Cancer Society and the US Preventive Services Task Force have released guidelines lowering the age to begin screening to 45 from 50 years old. Regardless of the scientific evidence supporting these guidelines, insurers still have the authority to deny patients coverage of routine colorectal cancer screenings if they are younger than 50 years old. The CoC Advocacy Committee has been monitoring 18 colorectal cancer bills since January.

Illinois H.B. 1728 passed through committee and is in the process of moving to the House floor for a full vote. A companion bill, A. 3523, recently was introduced in New Jersey for S. 2305, and the Massachusetts Chapter of the ACS submitted a letter of support for H.D. 961. Most notably, the New York Chapter of the ACS advocated for A. 2085A and S. 2305 during its annual advocacy day in April, which included several meetings with members of the Insurance Committees and letters of support from ACS members. As a result of conversations between ACS members and their representatives, the Assembly passed the bill, and it has been referred to the Senate.

Scope of Practice

Nonphysician healthcare practitioners continued to seek expanded scope of practice legislation at the state level in 2022. Optometrists convinced state legislators in Colorado and Virginia to pass and enact scope expansions that give them authority to perform numerous scalpel and laser eye procedures, despite their lack of training and experience with performing ophthalmic operations.

The College activated grassroots advocates to oppose Colorado H.B. 1233, while the ACS Virginia Chapter joined coalition efforts to stop S.B. 375 and H.B. 213 to no avail. Similar optometry bills were introduced and failed to advance in Alabama, Utah, Vermont, and Washington.

A bill introduced in West Virginia, H.B. 4261, which would authorize optometrists to perform eye surgery, was abandoned by the bill author, Del. Matthew Rohrbach (R), in favor of new legislation to remove scope limitations for many nonphysician healthcare providers, including optometrists, occupational therapists, and respiratory care practitioners. A coalition of physician groups, including the ACS West Virginia Chapter, succeeded in defeating the proposal.

The College and state chapters continued to support other physician specialties in opposing scope of practice expansion state bills including physician supervision of certified registered nurse anesthetists (CRNAs) and advance practice nurse practitioners (APRNs).

The College has responded to requests from the American Society of Anesthesiologists (ASA) to join the ACS Utah Chapter in signing on to a coalition letter to Utah Gov. Spencer Cox urging him to sustain the Medicare and Medicaid requirements on physician supervision of CRNAs. The Centers for Medicare & Medicaid Services (CMS) rule on anesthesia conditions of participation for hospitals, critical access hospitals, and ambulatory surgical centers allows governors to opt out of the requirements on physician supervision of CRNAs. Since 2001, 20 states have opted out of the requirements. Governor Cox agreed to a partial opt-out limited to critical access hospitals and some rural hospitals. The College sent a letter to Wyoming Gov. Mark Gordon urging him not to take similar action.

In addition to opt-out policies, the College has supported ASA’s opposition to state legislation granting independent practice without physician supervision of CRNAs. The ACS sent letters of opposition on Illinois H.B. 1820 and S.B. 2566, and Alabama H.B. 268. The Illinois bills failed to advance, and the Alabama bill was amended to remove the language authorizing CRNA independent practice.

The ACS Keystone, Metropolitan Philadelphia, and Northwestern Pennsylvania Chapters joined the ASA in sending a letter of support for H.B. 1956, which would enact certification requirements for anesthesia assistants in the state.

ACS state chapters also continued their support for efforts to oppose state legislation expanding scope of practice authority of APRNs. The ACS Virginia Chapter joined a coalition led by the Virginia Medical Association to oppose H.B. 1245, which would reduce from 5 years to 2 years the length of time an APRN is required work under supervision of a physician before practicing autonomously. The bill failed to pass during Virginia’s regular session because of disagreements between the House and Senate versions of the bill.

The New York Chapter opposed A. 1535 and S. 3056, which would remove the requirement for a CRNA to reach a collaborative practice agreement with a physician after 3,600 practice hours, as well as Gov. Kathleen Hochul’s state budget that included language to extend the governor’s executive order exempting the physician collaboration requirement for 2 years. The legislation was abandoned after the final 2023 state budget included the exemption extension.

Medical Liability Reform

A major change in policy on medical liability occurred this year when California enacted changes to the state’s Medical Injury Compensation Reform Act (MICRA) of 1975. After years of fending off trial lawyers’ attempts to repeal or significantly alter MICRA, in 2022 the California Medical Association and other healthcare groups negotiated a compromise to update the cap on compensation for noneconomic damages, originally set at $250,000. The agreed-upon language in A.B. 35 also headed off a ballot initiative scheduled for the November 2022 election that would have eliminated several protections in MICRA and recalculated the noneconomic damages cap adjusted for inflation—an estimated $1.5 million or more.

Governor Newsom signed the law May 23. The updated MICRA law will increase the cap on noneconomic injury cases to $350,000 and wrongful death claims to $500,000 beginning in 2023, followed by incremental increases over the next 10 years until limits reach $750,000 and $1 million, respectively. After 10 years or when the new increases are met, the caps will be adjusted 2% annually in perpetuity.

Neither the ACS nor the California chapters took a formal position on the legislation; however, the ACS is monitoring closely how the change could affect the debate on noneconomic damage caps in other states.
On the opposite side of the country, the ACS New York Chapter opposed S. 74A and A. 6770—legislation that would expand the types of damages that can be recovered for a wrongful death action, including “grief and anguish.” The legislation also expands the number of “close family members” who could sue for wrongful death damages. New York law provides no cap on the amount that can be awarded in a wrongful death action. The legislature passed S. 74A on the last day of the session June 2. The College and the New York Chapter are reviewing advocacy options to encourage the governor to veto the bill. The bill had not been sent to the governor at press time.

The Connecticut Chapter opposed H.B. 5235, legislation that would significantly change how prejudgment interest is applied in liability cases. Under the proposed law, an additional 8% annual interest payment on a potential award would start calculating on the “date of cause of action,” which is being interpreted as the date of injury rather than the date on which a lawsuit is filed. The chapter submitted testimony at the March 4 hearing of the Joint Committee on Judiciary. The bill eventually was amended in committee, replacing the language with unrelated subject matter focused on reporting by the state’s claims commissioner.

Other Issues

The ACS and the chapters joined with other physician organizations to advocate on other state legislation that would affect surgical practices and patient care.

In South Carolina, the ACS sent a letter of support for S.B. 290, which would repeal the state’s onerous certificate of need requirement to update surgical equipment and establish ambulatory surgical centers. The South Carolina Chapter joined a coalition led by the South Carolina Medical Association to advocate for the bill. The South Carolina Senate passed the legislation, sending it to the House; it had yet to be acted on at press time.

In Kentucky, the ACS supported a coalition led by the American Society of Plastic Surgeons to oppose a provision in the state budget bill, H.B. 8, which would place a 6% tax on cosmetic surgery services. The legislation passed with the tax intact, but Governor Beshear vetoed the tax. Unfortunately, the Kentucky legislature overrode the governor’s veto and reinstated the tax.

Conclusion

The ACS State Affairs team is available to answer questions and provide background information regarding state issues and policy programs. Numerous state advocacy resources are available at facs.org/advocacy/state-legislation and state_affairs@facs.org or by calling 202-337-2701.

Christopher Johnson is former Manager, State Affairs, ACS Division of Advocacy and Health Policy, Washington, DC.