In the wake of fall elections, there are many new faces on Capitol Hill tasked with considering complex legislation that directly influences the delivery of healthcare in Tennessee. The state recently seated a new governor and 23 new state legislators who must decipher the effect of federal healthcare reform on state budgets, consider comprehensive tort reform, and review a number of other bills impacting the practice of medicine in Tennessee. (See related story
In mid-February, Gov. Bill Haslam outlined his legislative priorities. In addition to education and de-regulation, he has proposed the Legislature revisit tort reform laws. The governor is proposing the state limit non-economic damages in healthcare liability and personal injury cases, while at the same time clarifying the standards for punitive damages. Comprehensive tort reform has routinely ranked high on the legislative agendas for most of the state’s key healthcare associations.
As the voice of their respective memberships, the Tennessee Medical Association (TMA) and Tennessee Hospital Association (THA) have identified other key advocacy issues and prioritized concerns. Each year, the associations host “Day on the Hill” events, bringing members … and their message … to Nashville. THA just wrapped up their event on Feb. 22. TMA is planning to bring physicians, spouses and practice managers to the State Capitol on March 8 (see box). Although the events last only a day, the work of TMA and THA staff to address the legislative process as it relates to their constituency is a year-round task.
Yarnell Beatty, director of Legal and Government Affairs for TMA, said a top priority for his organization this year would be to clarify the peer review law in the wake of the Tennessee Supreme Court decision in the case of Lee Medical vs. Beecher. Beatty said TMA, in conjunction with THA, is working to broaden the application of the Tennessee Peer Review Law (Tenn. Code Ann. § 63-6-219) in terms of what could be appropriately considered privileged information.
In the recent legal decision, which Beatty said “caught everyone by surprise,” the high court restricted the law to cover only proceedings involving physician conduct or competency. Beatty explained the narrowed scope means that nurses and other medical staff would not be covered under peer review, nor would healthcare processes. “The point of the peer review law,” he explained, “was to incentivize hospitals or medical groups to review the quality of care that is being delivered.”
The idea, he continued, was to encourage unbiased examination and review in the wake of a sentinel event. By reviewing performance and processes, the hope is that future adverse outcomes could be mitigated or avoided. If, however, the information resulting from such a review was at risk of being made public, Beatty said the unintended consequence could be that safety and quality take a step backward.
“If that information is going to be made available or discoverable, then it guts the intention of the law. It doesn’t incentivize hospitals or medical groups to look into the quality of care that has been given,” he noted. In fact, Beatty continued, the threat of lawsuits could encourage entities to hide mistakes … or at least not examine them too closely … for fear of repercussions.
Even without the recent court ruling, Beatty said it would have been important to update the peer review law this year to more closely match the direction federal health reform appears to be taking. Specifically, he said, “It adds accountable care organizations (ACOs) to the list of entities with authority to conduct confidential evaluations of safety and quality.” He continued, “The federal health system reform laws emphasize a new system of healthcare delivery where the focus is on processes, like the medical home model, rather than on individual practitioners.”
Other pending issues for 2011 include taking action to extend sign-off time for verbal orders by physicians. “We want to establish state guidelines that will override CMS’ 48-hour signing requirement,” Beatty said. The federal law includes a provision that allows states to set their own standards. He noted a physician might need more than two days to sign a written approval of a verbal order for a number of reasons ranging from being out of town to covering multiple hospitals in a geographic region to issuing orders remotely through telemedicine initiatives. Beatty noted an extension on signing time has been established in other states without ill effects. “The problem is there is nothing in Tennessee that overrides the 48-hour requirement so Tennessee doctors are currently bound to that.”
Beatty said TMA also wants to revisit state laws concerning interventional pain management. “Physicians have voiced concerns that patients are being treated by healthcare professionals that are not adequately trained,” he said. “We’re just as concerned about a physician going to a weekend course and learning to do it as a mid-level (practitioner),” he continued, noting patient safety takes precedence.
On the hospital side, THA President Craig Becker said the organization’s top priority would be “renewal of our assessment on the hospitals that will allow us to not have about $890 million in cuts to the TennCare program.” Although hoping last year would be a one-time occurrence, Becker said the economy has not sufficiently rebounded to avoid a second year of assessment on net patient revenue. Critical Access Hospitals, government-run facilities and Saint Jude’s are exempted from the proposed fee mandate. Becker anticipates close to $400 million in assessments for the other hospitals across the state.
However, funds raised through the fee would allow Tennessee to continue to draw down federal dollars in a 2:1 match and avoid major cuts in TennCare services for the state’s most vulnerable population.
Although still tweaking numbers for the draft legislation at press time, Becker said the THA board unanimously approved moving forward with the assessment. “We have to take it to the Legislature … and I never want to presuppose what the Legislature will do … but it would be a significant hole in the state’s budget if it doesn’t pass,” Becker said, adding, “We think we have a good case.”
In addition to shoring up the TennCare budget, Becker said another area of continuing concern is over legislation that has been proposed to essentially eliminate the Certificate of Need (CON) process in Tennessee.
“We’ll certainly be vigorously opposing it,” he stated. “What we have found is that the Certificate of Need process allows us not to have cherry picking,” Becker continued of the practice of setting up facilities that only accept commercial insurance while refusing TennCare and charity care cases.
He pointed out hospitals need to keep commercial payers to balance the charity care provided. Another issue, he continued, is that without a CON process, “It creates this huge medical arms race.” Becker said he has watched it happen in other states that have done away with the CON including Indiana, Florida and Texas.
Tied to this issue is Section 6001 of the Healthcare Reform law that limits current … and restricts future … physician-owned hospitals. This is a measure that the American Hospital Association and Federation of American Hospitals robustly supported. Physician Hospitals of America and Texas Spine and Joint Hospital have filed a motion requesting Section 6001 be declared unconstitutional.
“We’re definitely keeping an eye on it,” Becker said of the issue. “It is problematic. A lot of people think it’s because we don’t want the competition, but that’s not it. They (physician-owned facilities) don’t play on a level field.”
He concluded, “It does not create competition that makes things cheaper … it just doesn’t.”
Making the PITCH for Healthcare
Doc Day on the Hill Set for March 8
PITCH — Physicians Involved in Tennessee’s Capitol Hill — has been scheduled for Tues., March 8. The Tennessee Medical Association hopes physicians will travel to Nashville en masse to speak with legislators about a variety of issues and concerns impacting the delivery of healthcare in the state and to answer questions about how proposed legislation would affect that care.
“I think it does have a visual impact to see all those white coats in the halls of the General Assembly,” said Yarnell Beatty, TMA’s director of Legal and Government Affairs.
TMA plans to provide bus transportation departing from upper East Tennessee, Chattanooga and Memphis with a few stops along the way to pick up passengers. “It’s a good way to meet colleagues and compare notes from across Tennessee,” Beatty pointed out.
Prior to the event, TMA will provide participants with talking points on important bills impacting physicians. Those planning to attend PITCH are also encouraged to schedule meetings with their elected officials. Additionally, there will be an opportunity to attend committee meetings in the afternoon.
Although there is no charge to participate, registration is needed to coordinate efforts, timing and transportation. To register, go online to www.tnmed.org and click on the PITCH link from the homepage. For questions or to register by phone, call Rachel Smith at (800) 659-1862.