Texas physicians stood at a crossroads. On one side loomed the mounting financial pressures and bureaucratic hassles of health plans and government agencies. On the other, the specter of health care lawsuit abuse. The path straight ahead -- providing quality medical care in partnership with their patients -- seemed impassable.

Their ability to care for their patients increasingly threatened, Texas doctors once again turned to America's best medical society for help. And, once again, the Texas Medical Association and its partner county and specialty medical societies responded. With strong leadership, the 78th Texas Legislature turned in a powerful performance on health care issues.

"As we have in years past on issues from tort reform to patient protection, the 'doctor lobby' moved quickly and decisively to help preserve our patients' ability to get the care they need," said TMA President Charles W. Bailey Jr., MD. "We'll remember 2003 as an incomparable legislative year for Texas physicians and their patients."

It began in the "war zones" -- Beaumont, the Rio Grande Valley, Corpus Christi, and Wichita Falls -- and was concentrated among obstetricians, neurosurgeons, and trauma specialists. But health care lawsuit abuse extended its tentacles to ensnarl nearly every Texas physician. Unable to afford -- or find -- liability insurance, doctors across Texas have been forced to cut back on patient care, move, or consider early retirement.

The demand for relief became TMA's No. 1 priority for the 2003 Texas Legislature. Gov. Rick Perry heard the outcry. At TMA's sesquicentennial celebration, he called for immediate action on this statewide medical emergency. Working with other health care organizations, TMA proposed a comprehensive solution grounded in a nationwide search for proven antidotes to lawsuit abuse.

Despite tenacious trial lawyer opposition, TMA won a strong package of reforms that far exceeds what other states have enacted recently:

• Caps on noneconomic damages are $250,000 per occurrence for all physicians; $250,000 per occurrence for a health care institution; and a second $250,000 per occurrence for any completely separate institution.
• Periodic payments are mandatory for future medical expenses and permissible for others.
• Many procedural reforms on expert witness reports and pretrial depositions will help prevent frivolous lawsuits.
• The definitions of a volunteer and a Good Samaritan were broadened to protect physicians who provide this care.

Physicians and patients owe gratitude to Governor Perry, Lt. Gov. David Dewhurst, and Speaker Tom Craddick for making sure these critical reforms survived numerous assassination attempts. Rep. Joe Nixon (R-Houston) and Sens. Bill Ratliff (R-Mount Pleasant) and Jane Nelson (R-Lewisville) devoted hours listening to testimony, writing and rewriting legislation, and working for its passage.

What It Means for You and Your Patients

The new law takes effect Sept. 1. It should begin to modulate the number of health care liability claims filed and the severity of judgments awarded. Settlement trends should follow. The liability insurance market remains battered nationwide, but the carriers still in Texas have all pledged significant reductions in premiums.

Extra-Credit Assignment

Relief will come much more quickly if Texas voters approve the proposed constitutional amendment that will be on the ballot Sept. 13. The referendum will decide whether the legislature has the authority to set caps on damages. Without passage, years of legal wrangling would be necessary before the Texas courts could decide the bill's constitutionality. All physicians need to go to the polls; TMA will help you "get out the vote" among your office staff, colleagues, friends, family, and patients.

*Passage of the Sept. 13 referendum would bring this grade up to a solid "A."

Texas physicians' complaints that the profit-driven health plans drag their feet paying claims have continued to escalate -- as have the time and money medical practices spend chasing unpaid bills. TMA studies found that at any point in time, every Texas HMO owes physicians and other providers $1.2 billion. Well more than half of all claims remain unpaid beyond the 45-day statutory limit. TMA's physician surveys showed that 71 percent are having cash-flow problems because insurers and other third-party payers aren't paying claims in a timely manner.

Senator Nelson, who led a committee that investigated the problem, and Reps. John Smithee (R-Amarillo) and Craig Eiland (D-Galveston) worked closely with TMA to tackle the issue. With technical advice from the Texas Medical Group Management Association, they crafted a strong bill to counter the plans' gamesmanship.

What It Means for You and Your Patients

• If a health plan tells you it will pay for a certain service for a patient, it has to pay.
• Clean claims submitted electronically must be paid within 30 days.
• Health plans will not be able to unilaterally change the definition of a "clean claim" or make more than one request for additional documents before processing a claim.
• Any coordination of payment disputes should not affect whether a physician is paid.
• Health plans won't be allowed to "contract around" these protections.

Homework

A standardized contract between physicians and health plans would go a long way toward leveling the playing field. A bill establishing such a standard failed to pass during this session. TMA will continue to work on this issue.

Texas faces a critical public health challenge: Our children are among the least immunized in the nation. Texas has no statewide program to educate the public on the importance of immunizations. The vaccine schedule has become more comprehensive -- and more confusing. Vaccine shortages, both present and projected, compound the problem.

For more than a year, TMA's councils on Public Health and Legislation worked with specialty societies and the Texas Department of Health (TDH) to devise a legislative strategy to reverse this unhealthy trend. Sen. Judith Zaffirini (D-Laredo) and Rep. Jaime Capelo (D-Corpus Christi), carried a package of four bills through the 2003 Legislature.

What It Means for You and Your Patients

• TDH will establish a continuous statewide public education program -- like Shots Across Texas.
• TDH also will develop an outreach program to increase physician participation in the state's immunization registry (ImmTrac).
• Participation in the Vaccines for Children program will be easier for doctors' offices.
• Any parent can declare conscientious objection to immunizing his or her child, who could still attend public schools.
• ImmTrac will hold more data and be more secure and less cumbersome for physicians and parents. Physicians will have immunity for providing information to the registry.

The first proposal to make up the $10 billion difference between the projected need for state services and the available funds could have destroyed Texas' health care infrastructure. TMA immediately jumped on the offensive to fend off a proposed 33-percent cut in physicians' Medicaid and Children's Health Insurance Program (CHIP) fees, a plan to eliminate 200,000 children covered by CHIP, and numerous other truly draconian cuts.

Record numbers of Texas doctors already felt they couldn't afford to see new Medicaid patients; a new survey showed the proposed reimbursement cuts would precipitate a crisis. TMA helped commission a hard-hitting economic analysis that documented how Medicaid and CHIP spending rippled positively through the economy. The analysis showed how local taxpayers, employers and employees, and doctors and hospitals would suffer if the legislature reduced Medicaid and CHIP spending. TMA joined with a broad-based coalition in proposing a $1-per-pack fee on cigarettes to finance state health care programs.

The legislature refused to pass the cigarette fees or any new taxes. It produced a balanced state budget with the aid of a last-minute federal largesse, largely courtesy of U.S. Sens. Kay Bailey Hutchison and John Cornyn, and an extremely optimistic forecast of Medicaid and CHIP caseloads for 2004 and 2005. However, the health care safety net for Texas' working families shrunk significantly, and our network of Medicaid-providing physicians and other providers remains unstable.

What it Means for You and Your Patients

• Medicaid and CHIP payments for physicians and other providers will drop by 5 percent, but thanks to TMA action, the first new federal dollars are scheduled to counteract that cut.
• Prior authorization will be required to prescribe medications that are not on a new Preferred Drug List and for ill-defined "high-cost" procedures.
• As many as 8,000 pregnant women will lose Medicaid coverage.
• Medicaid managed care, including HMOs, may continue to expand, but a TMA-backed amendment prohibits HMOs in the largest counties along the Texas-Mexico border.
• The Medicaid Medically Needy Program was eliminated.
• Changes to CHIP eligibility and enrollment requirements will eliminate coverage for 120,000 children. Children covered by CHIP will also lose coverage for dental and mental health care; durable medical equipment; and physical, occupational, and speech therapy.

In every legislative session, one or more groups of nonphysician health care professionals seek to expand their scope of practice. TMA values its collaborative relationships with the organizations representing those professionals but insists that the legislature protect patients by restricting those practitioners to services within the scope of their education and training.

In sessions past, medicine has learned that a scope-of-practice fight is not limited to the affected specialty. Once again in 2003, TMA united with the family of medicine to stridently oppose several efforts to expand scope of practice without the benefit of a medical education. Many physicians joined their colleagues from psychiatry, for example, in convincing our lawmakers that allowing psychologists to prescribe medications in Texas would be a high-risk experiment and a prescription for disaster.

What It Means for You and Your Patients

• Psychologists will not have prescribing authority.
• Physicians and chiropractors may not establish partnerships and share profits.
• Chiropractors may not sign requests for temporary handicapped parking placards.
• Acupuncturists will not have more independent authority to treat stress, allergies, nausea and digestive disorders, or depression.
• TMA leaders worked with the advanced practice nurses and physician assistants to save political capital for doctors by working out a package of pro-patient changes in those practitioners' authority.

Throughout the 2003 session, lawmakers looked for ways to expand state revenue by closing loopholes in the state franchise tax. Unfortunately, the legislature's bill drafters seemed unable to find a rifle shot that would get them what they wanted. Every "shotgun" franchise tax bill they considered would have extended the tax onto many physicians who previously had not been subject to it or would have increased the franchise tax bill for those physicians who already pay it.

TMA argued that it would be bad public policy to tax physician practices and that physicians have almost no way to pass along taxes as a cost of doing business. No franchise tax bill made it out of the House Ways and Means Committee. But Governor Perry has promised a special session on public school financing, perhaps as soon as this fall, and all state taxes likely will be reviewed as part of that effort.

*Preventing expansion of the franchise tax to physicians during the special session on school finance would bring this grade up to a solid "A."

July 2003 Texas Medicine Contents