FINAL MASCA Legislative Update: 5/24/2018
Recap of 2018 Legislative Session in Missouri:
The 2018 legislative session came to an end at 6PM last Friday, May 18th. A total of 2,200 bills were introduced this year, 124 (6%) of which were passed by the House and Senate and sent to the Governor’s desk for final approval. This is a sharp increase from the 81 bills passed by the legislature in 2017, which marked a historic low. The Governor will have until mid-summer to make a final decision on whether to sign, veto, or “pocket sign” legislation, which happens when a bill automatically becomes law after 45 days if the Governor has not made an action to sign or veto the legislation.
We will keep you informed of bill signings, regulatory filings, and election updates over the interim. This will be a busy election year with the heated U.S. Senate race between incumbent Sen. Claire McCaskill (D) and Republican frontrunner Josh Hawley, who is the state’s sitting Attorney General. In addition, there are over 50 new lawmakers coming into the Missouri House and Senate next year due to term limits.
Key Takeaways for MASCA:
Workers compensation fee schedule legislation was defeated
AARP’s legislation regarding designated caregivers was amended to exempt ASCs who are compliant with CMS or other accreditation requirements
Surprise billing legislation passed to allow for provider reimbursement with narrow networks
Health Care Bills Passed in 2018 Legislative Session
Bill summaries for legislation passed during 2018 legislative session that we tracked for MASCA:
CAREGIVER, ADVISE, RECORD, AND ENABLE (CARE) ACT (SB 718)
This bill creates the "Caregiver, Advise, Record, and Enable (CARE) Act," which requires a hospital or ambulatory surgical center to provide each patient or patient's legal guardian with an opportunity to designate a caregiver prior to the patient's discharge. Such caregiver designation, or lack thereof, shall be documented by the hospital or ambulatory surgical center. The hospital or ambulatory surgical center shall notify a patient's caregiver of the patient's discharge or transfer as soon as practicable. Hospitals, ambulatory surgical centers, or employees or contractors of such entities shall not be liable in any way for the actions of a caregiver. This bill shall not interfere with the rights of an attorney-in-fact under a durable power of health care.
The Department of Health and Senior Services shall provide a standard form that can be used to satisfy the requirements of the CARE Act. However, a hospital or ambulatory surgical center can continue to use their current forms to satisfy these requirements if the form is compliant with Centers for Medicare and Medicaid Services standards (Section 191.1150).
UNANTICIPATED OUT-OF-NETWORK CARE – SURPRISE/BALANCE BILLING (SB 982)
The bill specifies that health care professionals shall send any U.S. Centers of Medicare and Medicaid Services Form 1500, or its successor form, for charges incurred for unanticipated out-of- network care to the patient's health carrier within 45 processing days. Health carriers shall pay health care professionals a reasonable rate for unanticipated out-of-network care; if the health care professional participates in the health carrier's commercial networks, the offer of reimbursement shall be the amount from the network with the highest reimbursement rate.
The bill requires carriers and health care professionals to negotiate within 60 days, in good faith to determine a reimbursement amount. If the health care professional declines the carrier's initial offer, the bill provides for disputes to be resolved through a binding arbitration process as outlined and prohibits health care professionals from billing patients for any difference between the payment received and the payment that would have been received based on the rate charged by that professional.
When unanticipated out-of-network care is provided, the health care professional may bill the patient for no more than the cost-sharing requirements as described. The in-network deductible and out-of- pocket maximum, cost sharing requirements shall apply to the claim for the unanticipated out-of-network care.
The Director of the Department of Insurance, Financial Institutions, and Professional Registration shall randomly select an arbitrator from the department's approved list and provide for a binding arbitration process when a health care professional and health carrier cannot agree to a reasonable reimbursement rate.
The arbitrator shall determine a reimbursement rate between 120% of the Medicare allowed amount and the 70th percentile of the usual and customary rate based on benchmarks from independent nonprofit organizations that are not affiliated with insurance carriers or provider organizations.
The bill specifies information that the arbitrator shall consider certain information in rendering his or her decision, requires the parties to execute a nondisclosure agreement prior to the arbitration, and specifies that the parties shall share the arbitration costs equally.
This bill requires any health carrier engaged in the act of contracting with providers for the delivery of dental services, or in the act of selling or assigning dental network plans, to update their electronic and paper provider materials made available to plan members or other potential plan members upon receiving written notice of changes by providers.
The Department of Insurance, Financial Institutions, and Professional Registration shall consider violations of the act when conducting a market conduct examination (Section 376.690).
These provisions shall take effect on January 1, 2019.
ACCREDITATION ASSOCIATION FOR AMBULATORY HEALTH CARE (SB 982)
This bill provides that the Director of the Department of Insurance, Financial Institutions and Professional Registration shall determine that a managed care plan's network is adequate if the managed care plan is being offered by a health carrier accredited by the Accreditation Association for Ambulatory Health Care (Section 354.603).
LIMITATIONS ON PRESCRIBING OPIOIDS (SB 826)
This bill limits certain initial prescriptions of opioid controlled substances to no more than a seven-day supply for the treatment of acute pain. Prior to prescribing the opioid, a practitioner shall consult with the patient regarding the quantity of the opioid and the patient's option to fill the prescription in a lesser quantity, as well as inform the patient of the risks associated with the prescribed opioid. If, in the practitioner's medical judgment, more than a seven-day supply is required to treat the patient, the practitioner may issue a prescription for the quantity needed after noting in the patient's medical record the condition triggering the necessity for a greater quantity and that a nonopioid was not appropriate. The provisions of this bill shall not apply to prescriptions for a patient who is currently undergoing treatment for cancer, is receiving hospice care or palliative care, is a resident of a long-term care facility, or is receiving treatment for substance abuse or opioid dependence.
No pharmacy or pharmacist shall be liable or subject to disciplinary action for dispensing or refusing to dispense medication in good faith pursuant to an otherwise valid prescription that exceeds these prescribing limits (Sections 195.010 and 195.080).
SUBSTITION OF PRESCRIPTIONS (SB 826)
This bill modifies current law regarding written prescriptions to permit a pharmacist who receives a prescription for a brand name drug or biological product to select a less expensive generically equivalent drug or interchangeable biological product unless requested otherwise by the patient or prescribing practitioner who indicates that substitution is prohibited, as specified in the bill. If an oral prescription is involved, the practitioner or practitioner's agency shall instruct the pharmacist if a generic drug or interchangeable biological product may be substituted (Section 338.056).
PRESCRIPTION EYE DROPS (SB 826)
Currently, the law that requires health carriers to provide coverage for early refills of an eye drop prescription is set to expire on January 1, 2020. This bill repeals the expiration date (Section 376.1237).
NURSES (HB 1719)
This bill expands the list of reasons that may cause the board to file a complaint against a licensed nurse.
The bill also allows the Missouri State Board of Nursing to establish an intervention program and an alternative program for the identification, intervention, treatment, and monitoring of nurses and applicants for a nursing license who have a substance use disorder.
Eligibility in either program is available upon Board discretion. The intervention program is available to certain individuals as set forth in the bill and shall be a minimum of one year in duration. The alternative program is available to licensees and applicants for licensure who admit to having a substance use disorder. The program shall be from three to five years in duration.
If an individual declines enrollment in either program, the board may proceed with its regular process of investigating a complaint or application.
Upon successful completion of either program, the licensee shall be deemed to have no disciplinary action against his or her license and shall not be required to disclose participation in the program.
All records shall be deemed confidential and are not public records. If a licensee or applicant violates any term of the intervention program or alternative program and denies the violation, the Board may convene a hearing to determine whether such violation has occurred. If a violation is found or is admitted to, the licensee's license shall be indefinitely suspended, or the applicant's application shall not be acted upon until the licensee or applicant continues to fully participate in the intervention program or alternative program, has one year with no positive drug or alcohol screens, and completes a sobriety notebook.
If a licensee does not successfully complete the intervention program, the board may pursue disciplinary action and the licensee shall not be eligible to participate in the alternative program. If an applicant does not successfully complete the intervention program, the board may issue an order against the applicant. An applicant subject to an order issued by the Board shall not be eligible to participate in the alternative program.
If a licensee does not successfully complete the alternative program, the board may pursue disciplinary action against the licensee. If an applicant does not successfully complete the alternative program, the board may issue an order against the applicant.
The statute of limitations for disciplinary proceedings shall be tolled while a licensee or applicant is participating in the intervention program or the alternative program (Sections 335.036, 335.066, and 335.067).
CLAIMS AGAINST HEALTH CARE PROVIDERS (HB 2562 & SB 718)
This provision provides that in a claim against a health care provider for damages for malpractice or negligence when the defendant is served after the statute of limitation has expired, if such service is not made within 180 days of filing the petition, the court shall dismiss the action. In an action for wrongful death when a defendant is served after the statute of limitation has expired and such service is not made within 180 days of the petition being filed, the court shall dismiss the action. If the plaintiff has previously taken or suffered a nonsuit, then the dismissal shall be with prejudice (Sections 516.105 and 537.100).
ASSISTANT PHYSICIANS (SB 718 & SB 951)
This bill changes the examination requirement for an assistant physician to require that an assistant physician complete Step 2 instead of Step 1 and Step 2, of the United States Medical Licensing Examination within a three-year period before applying for licensure but in no event more than three years after graduation from a medical college.
An assistant physician licensure fee cannot be more than the licensure fee for a physician assistant. Additionally, no rules can require an assistant physician to complete more hours of continuing medical education than a licensed physician.
The bill repeals the requirement that an assistant physician has to enter into a collaborative practice agreement within six months of initial licensure.
A health carrier shall reimburse an assistant physician on the same basis that it covers a service when it is provided by another comparable mid-level provider. No rule or regulation shall require the collaborating physician to review more than 10% of the assistant physician's patient charts or records during the one-month period that the physician is continuously present while the assistant physician is practicing medicine.
An assistant physician may prescribe buprenorphine for up to a 30- day supply without refill in certain circumstances.
An assistant physician who is providing opioid addiction treatment can receive a certificate of prescriptive authority without having completed 120 hours of practice in a four-month period with a collaborating physician (Sections 334.036 and 334.037).
COLLABORATIVE PRACTICE AND SUPERVISORY AGREEMENTS (SB 718 & SB 951)
Currently, physicians are authorized to enter into a collaborative practice agreement with three advanced practice registered nurses (APRN) and three assistant physicians, and a supervising agreement with three licensed physician assistants. This bill authorizes physicians to enter into a collaborative practice agreement or a supervising agreement with six APRNs, assistant physicians, licensed physician assistants, or any combination thereof.
The limitation on collaborative practice agreements and supervision agreements shall not apply to the supervision of certified registered nurse anesthetists in the provision of anesthesia services under the supervision of an anesthesiologist or other physician, dentist, or podiatrist who is immediately available if needed.
Currently, a physician and a physician assistant in a supervisory agreement shall practice no further than 50 miles by road from each other. This bill repeals the 50-mile limitation and states that the physician assistant shall practice within a geographic proximity to be determined by the Board of Registration for the Healing Arts.
No supervision requirements in addition to the minimum federal law shall be required for a physician-physician assistant team working in a certified community behavioral health clinic or a federally qualified health center.
Advanced practice registered nurses and physician assistants may prescribe buprenorphine for up to a 30-day supply without refill in certain circumstances (Sections 334.037, 334.104, 334.735, and 334.747).
HEALTH CARE RECORDS (SB 951 & SB 826)
Currently, health care providers are required to provide, upon request, copies of patients' health history or treatment records. However, providers are allowed to charge a search and retrieval and copying fees for the records. This bill allows a provider to respond to such a request with a statement or record that no such health history or treatment record exist and to a fee for providing such a statement or record.
Additionally, the fees for the search, retrieval, and copying of health care records shall be the fees in effect on February 1, 2018, increased or decreased annually under this provision (Section 191.227).
TELEHEALTH (SB 951)
This bill repeals existing provisions of law relating to MO HealthNet telehealth, including provisions relating to MO HealthNet reimbursement for asynchronous store-and-forward technology, MO HealthNet telehealth rules promulgation, originating sites, and the Telehealth Services Advisory Committee. This bill requires the Department of Social Services to reimburse care providers for telehealth services if such providers can ensure that the services are rendered with the same standard of care that would be provided in person. The department shall not restrict the originating site through rule or payment as long as the provider can ensure the services meet the requisite standard of care. No payment for telehealth services shall depend on a minimum distance requirement between the originating and distant sites.
Reimbursement for asynchronous store-and-forward may be capped at the reimbursement rate for services provided in person. Prior to the provision of telehealth services provided in a school, the parent or guardian of a child shall provide the necessary authorization.
Additionally, this bill specifies that a health carrier shall not be prohibited from reimbursing non-clinical staff for services provided through telehealth if otherwise allowable by law (Sections 191.1145, 208.670, 208.671, 208.673, 208.675, and 208.677).
DISPOSAL OF UNUSED CONTROLLED SUBSTANCES (SB 951, SB 826 & SB 718)
Under this bill, a Drug Enforcement Agency-authorized collector, in accordance with federal regulations, may accept unused controlled substances from ultimate consumers, even if the authorized collector did not originally dispense the drug. This provision shall supersede and preempt any local drug disposal ordinance or regulation.
HOSPITAL REGULATIONS (SB 951)
Under this bill, an applicant or holder of a hospital license may define or revise the premises of a hospital campus to include property adjacent to the campus but for a single intersection.
Additionally, hospital licensure regulations may incorporate by reference Medicare conditions of participation (Sections 197.052 and 577.029).
Additionally, the Department of Health and Senior Services shall develop an education and awareness program regarding drug disposal, including the development of a web-based resource and promotional activities (Sections 195.070 and 195.265).
PATIENT SATISFACTION SCORES (SB 951 & SB 718)
Under this bill, the Director of the Department of Insurance, Financial Institutions and Professional Registration shall not require patient scoring of pain control in defining data standards for quality of care and patient satisfaction. Beginning August 28, 2018, the director shall discontinue the use of patient satisfaction scores and shall not make them available to the public to the extent allowable by federal law (Section 374.426).
"IMPROVED ACCESS TO TREATMENT FOR OPIOID ADDICTION ACT" (SB 951 & SB 718)
This bill establishes the "Improved Access to Treatment for Opioid Addictions Program" to disseminate information and best practices regarding opioid addiction and to facilitate collaborations to better treat and prevent opioid addiction in Missouri, as specified in the bill. The program shall facilitate collaborations between health care providers and provide resources to providers.
This bill also specifies that assistant physicians who participate in the program shall complete the necessary requirements to prescribe buprenorphine within 30 days of joining. The program may develop curriculum and benchmark examinations on the subject of opioid addiction and treatment. A remote collaborating physician working with an on-site assistant physician shall be considered on- site for the purposes of the program. Additionally, an assistant physician collaborating with a physician who is waiver-certified for the use of buprenorphine may participate in the program in any area of the state and provide all services and functions of an assistant physician and other duties as specified in the bill.
DIRECT PAYMENT FOR AUTHORIZED SERVICES (SB 982)
This bill provides that when a health benefit plan does not provide for payment to out-of-network providers for all or most services that are covered if provided in-network, including HMO plans and exclusive provider organization (EPO) plans, payment for all services shall be made directly to the health care providers when the health carrier has authorized for such services to be received from an out-of-network provider (Section 376.427).
ELECTRONIC NOTIFICATION OF PORTABLE ELECTRONICS INSURANCE INFORMATION (SB 982)
This bill requires that an agreement to receive notices and correspondence by electronic means for portable electronics insurance information be done in accordance with Section 432.220.
LOW-DOSE MAMMOGRAPHY SCREENINGS (HB 1252)
This bill adds digital mammography and breast tomosynthesis to the definition of low-dose mammography screening and beginning January 1, 2019, requires reimbursement rates to accurately reflect the resource costs specific to each modality, including any increased resource cost of breast tomosynthesis.
Currently, insurance coverage is required for mammograms every two years for women age 40 to 49, unless a physician recommends more frequently and a mammogram every year for women age 50 and over. This bill modifies coverage for mammograms to every year for women age 40 and over.