Texas Association of OB/GYNs 

Texas Legislature – 81^st Session

Texas Legislature—81st Session

The 81st Legislative Session has adjourned sine die (indefinitely). For those who enjoy political theater, the Texas Legislature has been prime material the past few sessions. 

With change swirling through the national arena, the state of Texas did its very best to stay apace. After a tumultuous end to the session in 2007, Rep. Tom Craddick was finally toppled as Speaker of the Texas House. A group of 11 dissident Republican House members, dubbed the “Bishops,” led the effort to usurp Rep. Craddick and elect Rep. Joe Straus as the first Speaker of the House from San Antonio in more than 100 years. With that change in leadership, the entire power structure of the House was overhauled. Speaker Straus took the oath of office and pledged a renewed focus on bipartisanship.

The Senate had its own fireworks early in the session as it convened in a rare Committee of the Whole to address legislation that would require voters to present a photo ID before casting a ballot. The Senate stayed in session for almost 30 hours debating, and eventually passing, this contentious issue. The vote was along party lines with republicans voting for the measure and democrats against. For the past two legislative sessions the Senate voted against the legislation, and the House passed it. The roles were reversed this year.

Specifically, House democrats unleashed a five-day stall tactic in late May whereby they would discuss local and uncontested bills (usually noncontroversial measures) to the extent of time allowed for debate before moving on to the next measure. This stall tactic was an effort to prevent the voter identification legislation from reaching the House floor before a crucial parliamentary deadline. They prevented the legislation from being debated, but hundreds of other unrelated measures were collateral damage and died in the tactic’s wake.

In the end, the House filed a record 4,697 bills this session, and the Senate filed a record 2,447 bills. Over 7,000 bills were read, analyzed, and scrubbed. Of that number, more than 1,200 bills passed, and many lived on as amendments to other bills.

Select highlights for the 2010–11 Texas budget:

• A spending increase of 7.4% in the next biennium—this increase, however, includes significant one-time federal funding
• $44.8 billion for Medicaid in the next biennium
• Medicaid reimbursement rates will stay the same
• Preservation of the opportunity to draw down significant upper payment limits funds for health care providers and language preventing STAR+PLUS (a Texas Medicaid managed care program designed to provide health care, acute and long-term services, and support through a managed care system) in Dallas and Tarrant Counties for the aged, blind, and disabled populations
• $140.6 million for mental health services
• $48.4 million for a Medicaid buy-in program for certain children
• $50 million for nursing education
• $25 million increase for full-day pre-kindergarten education
• $150 million for the University of Texas Medical Branch at Galveston with another $150 million in bonds   

Senate Bill 182 by Sen. Dan Patrick would have amended the Woman’s Right to Know Act to require physicians to offer an obstetric ultrasound on a pregnant woman at least two hours before performing an abortion. The bill also defined a “medical emergency” in the event that a pregnancy puts a woman’s life at risk. Gov. Rick Perry made this one of his legislative priorities by mentioning this legislation in his State of the State address at the beginning of session. Lt. Governor David Dewhurst was also on record in support.  Although the bill passed the Senate and the House State Affairs Committee, the bill died on the House calendar, and it will not become law. 

SB 2571 by Sen. Florence Shapiro and House Bill 3796 by Rep. Genie Morrison would have required physicians who provide abortions to report a broad range of data to the Texas Department of State Health Services on each abortion provided. Neither bill passed.

HB 3485 by Rep. Garnet Coleman allows employment of physicians by the Dallas County Hospital District and by facilities operated by a governmental entity in counties with populations less than 50,000. This bill has been sent to the governor.

HB 1357 by Rep. Carl Isett initiates a regulatory structure for free standing emergency facilities. This is an effort to prevent unlicensed offices from advertising themselves as emergency care facilities. The bill allows for a dual licensing mechanism until 2013—one license for facilities open 24 hours, seven days a week, and another license for those facilities not open all the time. After 2013, all facilities licensed as free standing emergency facilities must be open 24 hours, seven days a week. The bill has been sent to the governor.

SB 6 by Sen. Robert Duncan is in favor of the Healthy Texas Program, a program designed to encourage small employers to provide health insurance for their employees and their employees’ dependents. A small employer is defined as an employer who averages at least two employees, but not more than 50, for a calendar year. This bill passed as an amendment to SB 78.

SB 7 by Sen. Jane Nelson would establish a health information exchange to improve the efficiency and efficacy of care provided in Medicaid. The bill authorizes the commissioner of the Texas Health and Human Service Commision to appoint an advisory committee to provide input and guidance on the implementation of the health information exchange. This bill passed as an amendment to HB 1218.

SB 10 by Sen. Robert Duncan institutes a pilot program for pay-for-performance rather than a procedure based reimbursement for certain health care services provided in the Employees Retirement System. This bill passed as an amendment to HB 4586.

HB 1888 by Rep. John Davis holds health care plan providers accountable for the accuracy of their physician ranking systems. The measure establishes standards for rankings of physicians by health plans. More importantly, it requires plan providers to ensure that any physician ranking system uses accurate physician data, allows the due process for physicians to occur prior to the publication of their ranking, and specifies that the measurement standards used be reliable, evidence-based, and consistent across all plans in the market. This bill has been sent to the governor.

SB 532 by Sen. Dan Patrick ensures the Texas Medical Board has proper oversight of physicians’ delegation of prescriptive authority and other responsibilities to allied health practitioners at retail health clinics. The bill decreases the amount of time required for physicians delegating prescriptive authority to practice on site with a physician assistant or nurse practitioner from 20% to 10%. The bill also increases the distance allowed between an alternate site and a delegating physician’s primary residence or practice site from 60 to 75 miles. The Texas Medical Board is authorized to waive limitations on the number of physician assistants or advanced practice nurses, mileage, and on-site supervision requirements. This bill has been sent to the governor.

HB 3623 by Rep. Gary Elkins clarifies that covenants not to compete only apply to agreements involving the personal services of a physician acting as a physician, and it allows courts to conform a deficient noncompete clause as necessary to comply with the law and protect patient access to medical care. This bill has been sent to the governor.

SB 911 by Sen. Tommy Williams prohibits a pain management clinic from operating in Texas unless the clinic is certified. The bill requires the Texas Medical Board to adopt certain rules to ensure quality of patient care and personnel requirements for the clinic, including requirements for a physician who practices at a clinic. This bill has been sent to the governor.

HB 4251 by Rep. Jessica Farrar would have prohibited a health care provider who violates certain timely billing provisions from recovering certain costs from a patient via lien, assignment, or other specified methods. The bill did not pass.

SB 1832 by Sen. Robert Duncan/Rep. Dan Gattis began as a bill to authorize pathologists

HB 2687 by Rep. Mark Shelton would have established a physician residency matching grant program and set forth requirements and conditions for its operation. This bill passed out of the House Higher Education Committee but failed to reach debate on the House floor. It will not become law.

SB 1832 by Sen. Robert Duncan/Rep. Dan Gattis began as a bill to authorize pathologists

HB 1342 by Rep. Jose Menendez will require health benefit plan providers to use information technology to provide physicians and patients with information at the point of care about co-payment, coinsurance, and deductibles. This will provide transparency to health insurance plans and better inform patients about their health insurance coverage, allowing them to be better consumers of health care. This bill has been sent to the governor.

SB 1257 by Sen. Kip Averitt and HB 2750 by Rep. Craig Eiland contained the Texas Medical Association’s Health Plan Code of Conduct Act of 2009. Although the bills failed to pass, provisions addressing inappropriate rescission of health care policies, an appeal process for small employer premium quotes, and standard reporting of medical loss ratios by health plans were added to HB 2752 by Rep. Eiland.

HB 2256 by Rep. Kelly Hancock was an attempt to address balance billing in the state.  The bill is primarily geared to facility-based providers (emergency physicians, anesthesiologists, radiologists, pathologists, and neonatologists) and provides for a mediation process for out-of-network bills of more than $1,000. In nonemergent situations, it also requires that the facility-based physician disclose that the physician may not be in the patient’s network and disclose a cost estimate for services rendered.  Moreover, if a facility has an online listing of its medical staff, the facility must publish the contact information for each of those facility-based physicians. This bill has been sent to the governor.

Several other bills related to health insurance also passed this session. HB 389 by Rep. John Zerwas will clarify requirements for the expedited credentialing of physicians by health plans. SB 39 by Sen. Judith Zaffirini sets forth health benefit plan coverage requirements for routine patient care costs for persons with life-threatening illnesses who have elected to participate in certain clinical trials. Both of these bills have been sent to the governor.

SB 346 by Sen. Jane Nelson authorizes a person to maintain an immunization record in ImmTrac beyond the person’s 18th birthday and sets out procedures for submission of information and maintenance of information in the registry. The bill passed in both the House and Senate and was signed by Gov. Perry.

HB 1994 by Rep. Brian McCall would have authorized a doctor or advanced practice nurse to exclude the cost of vaccines from total revenue for purposes of calculating taxable margin. The bill did not make it through the legislative process, so it will not become law.

SB 347 by Sen. Jane Nelson authorizes DSHS to exchange immunization records stored in ImmTrac with other state and local health departments during disasters or emergencies involving evacuations or relocations. This bill was signed by Gov. Perry and will take effect on Sept 1, 2009.

SB 1328 by Sen. Jane Nelson will provide an opportunity for DSHS to assess the vaccine needs of first responders before they respond to emergencies and disasters. This bill has been sent to the governor.

The subject of medical imaging was a big issue for physicians this session. A group known as the Coalition for Ethical Imaging, whose primary supporter was the Texas Radiological Society, was formed. In order to combat this effort, several physician groups formed imagingalliance.org to advocate on behalf of access to quality medical imaging.

The Coalition for Ethical Imaging advocated on behalf of HB 2599 by Rep. Senfronia Thompson and its companion SB 1461 by Sen. Robert Duncan. The bills would have required the registration of diagnostic imaging equipment and accreditation of diagnostic imaging facilities. These standalone bills did not pass. Late in the session, an amendment related to imaging was added to another bill, HB 3749. This bill failed to pass the Senate, so it will not become law.   

HB 1672 by Rep. Myra Crownover would require doctors and other medical providers to provide disclosure forms to newborns’ parents informing them of the storage process of genetic material obtained from newborn blood screening tests and allowing them to opt out. The bill also instructs the House to conduct an interim study on newborn screening in Texas. This bill has been sent to the governor.

HB 1795 by Rep. Paula Pierson mandates that DSHS expand its current list of diseases screened to include 20 of the diseases on the secondary list of recommended diseases from the American College of Medicine and Genetics. The bill also creates a Newborn Screening Advisory Panel to assist DSHS in taking a more proactive approach to newborn screening in Texas. An amendment was added to the bill late in the process to require HIV testing of pregnant women during the third trimester unless the woman objects and expedited HIV testing for certain women after giving birth. This bill has been sent to the governor.

SB 1832 by Sen. Robert Duncan/Rep. Dan Gattis began as a bill to authorize pathologists

HB 281 by Rep. Rafael Anchia would increase the time that DSHS grants would be awarded for school-based health centers from three to five years. Local health departments, hospitals, and nonprofit organizations that contract with school districts to establish or maintain a school-based health center also would be eligible for grants. The bill passed both the Senate and the House and has been sent to the governor.

SB 1879 by Sen. Jane Nelson would have set up a licensing framework for genetic counselors.  Representatives of the Texas Medical Association and genetic counselors have worked on this bill throughout the interim. The bill passed the Senate and the House Public Health Committee but died on the final House calendar, so it will not become law.

HB 643 by Rep. John Zerwas amends the Texas Health and Safety Code by adding a chapter that would specify qualifications for surgical technologists at health facilities that are licensed by DSHS or owned or operated by the state. The bill passed both the Senate and the House and has been sent to the governor.

HB 2154 by Rep. Chet Edwards would recalibrate the tax on smokeless tobacco products to a weight-based system. This will generate approximately $100 million over the next biennium. Of those funds, about $10 million will be used to attract physicians to rural/underserved areas of the state, and the remainder of the funds will be used to buy down the business margins tax for small business in the state (see HB 4765 below). This bill has been sent to the governor.

HB 4765 by Rep. Rene Oliveira would temporarily raise the total revenue exemption from $300,000 to $1 million for tax reports due in 2010 and 2011. After that period, the total revenue exemption for small businesses will be $600,000. This bill is estimated to affect close to 40,000 businesses in Texas. This bill has been sent to the governor.

HB 732 by Rep. Will Hartnett requires the Texas Medical Board, during the annual update to a physician’s profile, to remove records of a formal complaint that was dismissed more than five years before the update if no action was taken against the physician’s license due to the complaint or if the complaint was deemed baseless, unfounded, or lacking in evidence. The bill requires the Texas Medical Board to remove records about an investigation of three or more medical malpractice claims or complaints filed if the investigation was resolved more than five years before the date of the update and no action was taken against the physician’s license as a result of the investigation.  The bill passed both the House and the Senate and has been sent to the governor.

HB 3816 by Rep. Fred Brown would have instituted stringent controls and criteria for Texas Medical Board members’ involvement in matters relating to physician oversight in the state. The bill did not pass.

SB 152 by Sen. Rodney Ellis would have diminished medical liability protections for those who provide care in emergency situations. The bill was left pending in committee. 

HB 4249 by Rep. David Leibowitz would have extended the timeframe whereby a trial lawyer could accumulate expert testimony for medical liability cases. The bill was left pending in committee.

SB 1119 by Sen. Juan Hinojosa—the “paid or incurred” legislation—resurfaced this session. This bill is an effort to force medical liability claims to include damages that may or may not have been incurred due to the situation for which the suit was initially filed. The bill passed the Senate but was left pending in the House.

SB 1123 by Sen. Robert Duncan would have vastly expanded the potential population of asbestos/mesothelioma claimants in the state of Texas. For this proposed and eroded cause of action, it was estimated to have a financial impact in the hundreds of millions of dollars annually for the petrochemical industry alone. The bill died in the House.

HB 1240 by Rep. Mike Villarreal requires hospitals, birthing centers, physicians, nurse-midwives, and midwives who provide prenatal care to women during gestation or at delivery of an infant to provide the woman, if the woman is a Medicaid recipient, or another adult caregiver with a resource guide including information in both English and Spanish relating to the development, health, and safety of a child from birth until age five. The bill provides that a resource guide on the DSHS website or an alternative guide may be used. Gov. Perry has signed this legislation, and it will take effect Sept 1, 2009.