2009 Legislative Report
MONDAY UPDATE
April 13, 2009

HEALTH CARE REFORM
HB 2009 – New amendments and timeline for health care reform
The House Health Care Committee released the 10th complete rewrite of HB 2009 on Wednesday. In most respects it’s a refinement of what we saw in the previous amendment.
The biggest change is clarity that the new Health Authority would present a plan for an Insurance Exchange to the 2011 session of the legislature.
House Health Care Committee chair Rep. Mitch Greenlick (D-Portland) says he still plans to fold amendments on workforce and primary care into HB 2009 and move the bill out of his committee by April 15.

Alternative to HB 2009 aired
The Senate Health Care Committee heard a presentation on a scaled-back version of HB 2009 being promoted by business groups and most of the major health care organization.
“This is a low cost, practical way to move health reform forward,” Betsy Earls from AOI told the committee.
The biggest difference is that this plan creates the Health Authority within DHS instead of creating a new department or bureaucracy. It also keeps Medicaid within DMAP and insurance rate review and regulation within DCBS. “It’s designed to build on the existing system instead of creating a new system,” Tom Holt from the hospital association told the committee.
The alternative also makes clear that DCBS should study the need for an Insurance Exchange before bringing a plan to the 2011 session. Insurance agent Steve Doty testified that one of the first things they were told by a consultant to the Oregon Health Fund Board’s Exchange Work Group was that an Exchange “does not save money.” “Why are we doing it then?” Doty asked.
The alternative includes most of the components of HB 2009 plus it includes a process for developing tort reform proposals. Committee chair, Sen. Laurie Monnes Anderson (D-Gresham) said, “I want a health care reform bill that will pass in this chamber and I’m not optimistic about HB 2009.”
Legislative counsel is now in the process of putting this proposal into bill language.

Oregon Health Fund Board bills move forward
The Oregon Health Fund Board introduced seven bills to implement the findings of their yearlong process. The Senate Health Care Committee has been working on them and it looks like all of them are moving forward.
SB 451 creating an electronic POLST (Physician orders for life sustaining treatment) registry has the broadest support. It’s on its way to Ways and Means.
SB 452 would help small practices purchase and implement electronic health records and it creates a Health Information Technology Oversight Council to develop a statewide plan for an Information Exchange, so health professionals can access anyone’s electronic health record. There is a lot of federal stimulus money to fund this project.
SB 453 is an all payers, all claims database. It would help analysts figure out who pays how much for what, and where there are gaps in the system.
The Senate Committee is still working on SB 454. It would require public reporting of major capitol projects at hospitals and ambulatory surgery centers.
SB 455 requires the use of evidence-based guidelines. Sen. Jeff Kruse (R-Roseburg) opposed the bill saying there are efforts at the national level and this bill may not conform to those national standards. The bill moved forward over his opposition.
SB 456 is also a work in progress. It establishes standards for medial homes. The, so far unresolved, fight is over the name for these medical homes. The Oregon Health Fund Board coined the term “integrated health homes.” Representatives from the Medicaid managed care plans prefer the name “patient-centered primary care home” which is commonly used across the country. The Senate committee will have to pick a name before moving the bill to Ways and Means. The price tag to begin developing integrated health homes (or whatever they’re called) is $611,000 of which $422,000 is state General Funds.
SB 457 would set up a health care data collection process through the health care licensing boards. Policy makers say they need to get a better handle on where the gaps are in order to make strategic investments. This plan would cost $475,000 this biennium.
While there is certainly support for the concepts in these bills, there is still a question whether budget writers can find the funding necessary to start all these new programs when many budgets are being slashed.

Provider tax – HB 2009 or HB 2116
At this point, legislative leaders have not announced whether the proposed provider tax to pay for OHP expansion will stay in HB 2009 or be put in its own separate bill, HB 2116.
But legislative negotiators told hospital representatives that they plan to move forward with the Governor’s proposed 1.5 percent insurance premium tax and a 3.9 percent hospital tax.
The legislative negotiators, commonly referred to as the Gang of Four (Sen. Alan Bates, Sen. Betsy Johnson, Rep. Mary Nolan and Rep. Mitch Greenlick) apparently rejected the proposed claims tax that had a lower rate, was broader based and raised more money.
Negotiators face a difficult challenge. If they adopt a claims tax, the unions will almost certainly file an ERISA lawsuit. There’s a large body of legal analysis saying they would lose that lawsuit, but they can drag things out.
The worst-case scenario for the premium tax combined with a big hospital tax is that it gets referred to the ballot. Not only would that delay implementation until November 2010, Oregonians have not demonstrated a big appetite for increasing taxes in recent elections.

SB 862 – “Multi-share” reduced benefit plans
Muskegon County, Michigan pioneered the use of limited-benefit, multi-share, community health plans in the 1990s. Multi-share programs target small employers, low-income uninsured employees and their families. When started in 1999 the Muskegon plan cost $38 per month for adult coverage; in 2008 the cost had risen to only $49 per month. Eight states now have implemented similar programs.
In testimony before the Senate Health Care Committee, representatives from Bend and LaGrande described community-based efforts to create multi-share plans that would combine contributions from employees and employers with community resources including grants, government funding and/or hospital “community benefit” dollars.
The community would determine the actual benefits but these plans often include primary and preventive care, inpatient and outpatient services, emergency, basic dental, and prescription coverage. The plans are not traditional insurance because they do not include all state mandates and are only available in a limited geographic region.
The committee passed SB 862 but the Insurance Division testified that it wants to amend the bill on the House side to protect against companies who might see this as a way to sidestep the insurance code.
The Oregon Health Fund Board recommendations include support for community collaboratives.

HB 2850 – Date for interoperable EMR
There is widespread support in the health committees for electronic medical records (EMR) and creating a system so EMR’s can talk to one another. Rep. Scott Bruun (R-West Linn) says he thinks it will help move the state to action if the legislature sets a date – December 15, 2015 ­­– by which it wants interoperable EMR’s in place. So he introduced HB 2850.
Bruun told the House Health Care Committee, “We have Star Wars medical technology and Leave It To Beaver medical records.” Bruun says he wants to move the discussion from “should we do this” to “how do we do this.”
The Senate Health Care Committee is also considering legislation about electronic medical records (SB 452) that was proposed by the Oregon Health Fund Board.

HB 2755 – Reinsurance
DCBS would analyze and study the possibility of creating a public reinsurance pool to help spread the risk for health insurance carriers. New York State uses statewide reinsurance for a plan called Healthy New York, which has helped lower rates while providing insurance for the previously uninsured.
DCBS would report to the 2011 session if a plan looked feasible.
Amendments are being drafted for the bill.

FHIAP experience raises questions about Healthy Kids plan
In budget hearings last week, administrators for FHIAP (Family Health Insurance Assistance Program) described what happened in late 2007 when they had to disenroll children and adults from the program because of a reduction in federal matching funds.
Remarkably, the vast majority of parents chose not to switch their children to the Oregon Health Plan even though the children were eligible and OHP would have been free.
Adults – approximately 4,200 disenrolled
· 3,800 enrolled in OHP
· 147 paid for their own insurance
· 270 declined OHP and disenrolled from FHIAP
Children – 765 disenrolled
· Only 65 enrolled in OHP though all 765 were eligible.
FHIAP administrators say they wish they had done a survey about why parents did not make use of OHP for their children. They speculate that the reasons include stigma, reduced access, limited provider networks and continuity of care.
This raises an interesting question for policy makers. If a significant number of very low income parents would rather pay premiums or go without insurance than be on the Oregon Health Plan, why are they trying to pass a new Healthy Kids plan where OHP is the only option for kids under 200 percent of the federal poverty level?

OTHER HEALTH CARE ISSUES

SB 891 – Breast cancer screening
Oregon’s Breast and Cervical Cancer Program (BCCP) screened 7,000 low-income and uninsured women last year. The Public Health Division told the Senate Health Care Committee that more than 40,000 women are eligible for the program. So they are asking for an additional $1.1 million that would pull down $4 million in federal funds to expand the program.
No action was taken on the proposal.

HB 2435 – Limited licenses for rural MD’s
The House Health Care Committee passed HB 2435 that would require the Board of Medicine to grant a 90-day license to an out-of-state physician who wants to move to rural Oregon within 14 days of receiving their completed application. The applicant must have a clean and current license in another state and pass a criminal background check. If the temporary license is red flagged for any reason, the temporary license can be revoked.
The Board of Medicine still has concerns about the bill. The Board is working with rural hospitals on an alternative process to expedite licensing. So this bill may change on the Senate side.

HB 2726 – Menu labeling in chain restaurants
Multnomah County already requires chain restaurants to print calories on the menu next to prices. Rep. Tina Kotek (D-Portland) wants the program to apply statewide. “This menu labeling helps consumers make informed, healthier choices,” she told the House Human Services Committee.
The requirement would apply to chains with 15 restaurants nationwide. Kotek testified that Oregon has 181 chains with 2843 restaurants. Of those, 132 chains and 600 restaurants are already covered by the Multnomah Co. ordinance.
Seattle and New York City have similar requirements. California recently passed a menu labeling law that takes effect in January 2011, though unlike the Oregon bill, the California law does not require calories to be posted on drive-thru menus.
On a party-line vote, the committee supported Kotek’s amendment that mimics the Multnomah Co. ordinance. Rep. Andy Olson (R-Albany) said he supports the concept but thinks Oregon’s law should be consistent with laws in California and Massachusetts.
The committee is waiting for a fiscal analysis before moving the bill.

SB 506 – Insurance payment after eligibility check
The OMA is still pushing a bill that would require insurers to pay claims if the physician confirms coverage 72 hours before a procedure. Insurers say this doesn’t take into account the mandatory grace period that kicks in when an insured is late with their premium payment. For some people, that’s a monthly occurrence.
Senate Health Care Committee chair Sen. Laurie Monnes Anderson said, “It’s important for the insurance companies to recognize there is a problem here. Physician offices have to spend far too much time on eligibility and prior authorization.
No action was taken on the bill.

SB 509 – Rental physician panels
The OMA has broaden its bill on physician panels to allow insurers to rent a physician panel more than once, but to provide a Web-based mechanism so doctors can figure out what their contract obligations are. The OMA says other providers, including nurse practitioners, physical therapists and others want to be added to the bill.
Insurers say there is very good model legislation that has been worked out nationally between the AMA and insurers, but this bill does not use that model.
Regence also testified in opposition saying this bill would prohibit the discounts in its Blue Card program used when Regence members receive health care services in other states. Regence says that its members saved $15 million last year through that program.
Additional amendments are expected before the Senate Health Care Committee takes action on this bill.

SB 316 – Clinical trials, routine coverage
Insurers and OHSU ironed out concerns about SB 316. The bill makes sure that routine care is covered under their health insurance plan while they are going through clinical trials. Sen. Richard Devlin (D-Tualatin) told the Senate Health Care Committee that no one expects significant increased costs from this bill. The committee unanimously approved the bill.

HB 2589 – Hearing aid mandate for children
“Kids need to be able to hear in order to learn,” Sen. Vicki Walker (D-Eugene) told the House Health Care Committee. She said 12,000 Oregon children each year are diagnosed with hearing deficiencies. “The hearing aids are very costly,” she said. “From $900 to $2,000 or more and the molds must be changed frequently.”
The committee heard testimony from families who can’t afford the hearing aids their children need.
The insurance carriers did not testify.

HB 3000 – Autism mandate
An autism task force spent more than a year developing a comprehensive plan for autism support in Oregon. The recommendations take a two-pronged approach: education and health care.
HB 3000 is the health care portion of the package. As introduced, it’s a very odd insurance mandate. In a hearing in the House Health Care Committee, chair Rep. Mitch Greenlick (D-Portland) said it’s the only mandate he’s seen that requires coverage for a specific treatment – applied behavior analysis.
The hearing sparked considerable debate about whether applied behavior analysis is proven effective. An expert witness in support of the bill said absolutely. Rep. Greenlick asked if she had seen the report by Oregon’s Health Resources Commission that says there is no solid evidence.
Insurance companies say this mandate is very expensive. Some states have tried to cap the benefit as a way to hold down costs.
Reportedly, this insurance mandate will not move forward but the Commission on Autism Spectrum Disorder, recently created by a Governor’s Executive Order, will continue the discussion.

SB 734 – Tobacco cessation treatment mandate
Only half of insured Oregonians have a tobacco cessation benefit according to testimony before the Senate Health Care Committee. “We know these programs work,” said Cliff Benz, MD. “We know they are effective. But not enough people are covered
Benz says last year, Providence intervened with 10,000 in patient smokers, but many of them could not continue treatment when they left the hospital because they did not have an insurance benefit.
Sen. Alan Bates (D-Medford) says the new drug Chantix is a real break-through in cessation treatment. He says the success rate in his practice with Chantix is up to 60 percent, but many insurers don’t cover the drug.
SB 734 requires a one-time, lifetime benefit for tobacco cessation.
None of the insurers oppose the bill. The committee must wait for an analysis from Legislative Fiscal before passing the bill.

HB 2535 – Charitable Rx Program
Pharmacies would be allowed to accepted unused medications if they were still in sealed packets or containers. Those drugs would then be donated to others who cannot afford the prescription.
The State Board of Pharmacy told the House Health Committee that similar programs in other states have been successful, especially with some of the very expensive specialty drugs. Their hope is that six or seven pharmacies around the state would participate in the program.
The committee wants an additional amendment for the bill to address liability concerns.

SB 845 – Prohibits Pharma gifts
The Senate Human Services Committee held one of the oddest hearings of the session on SB 845. The opponent testified but not the proponent.
Sen. Alan Bates (D-Medford) sponsored the bill but was not available for the hearing, so only Pharma testified.
. It said the pharmaceutical industry code has an exception for “anatomical models that are modestly priced.” It’s unclear if SB 845 would allow that same exception. They also raised free speech issues.
Pharma recommends a different bill, introduced by Sen. Bill Morrisette (D-Springfield) that would require pharmaceutical companies to sign a sworn statement that they will abide by the industry code.
The committee will reschedule the bill when Sen. Bates is available.

SB 876 – Require OHP to cover specific brand-name drugs
Jim Edge, director of the Division of Medical Assistance Programs (DMAP), told the Senate Human Services and Rural Health Policy Committee that they encourage the use of generic drugs. “There are significant cost savings with generics,” he said.
DMAP opposes SB 876 because “it would allow an entire class of drugs to be protected and not let us use generics. That would set a bad precedent,” he said.
The bill only covers immunosuppressant drugs used in connection with organ transplants. Edge said the bill is designed to protect a specific brand name drug if and when a generic equivalent becomes available. He said the bill would cost DMAP $357,000 in increased costs during 2009-11 because there are generics in this category being used.
AARP also testified in opposition saying, “There is no need for legislation of this type.” No action was taken on the bill.

SB 864 – Required coverage for brand-name drugs
Arthritis specialists say there are only three prescription drugs with FDA approval for treatment of fibermyolgia. But they say insurance companies won’t cover them until patients try a series of other drugs. They call this “forced off-labeling” because these other drugs are not specifically approved for this condition.
The bill is much broader than this. It requires insurance to cover any brand-name drug if there is not a generic equivalent available. Regence testified to the Senate Health Care Committee that, “this bill would drive value out of the system” and increase health care costs. “If we are told that we simply need to cover a medication – no matter what the cost or the outcome – there is no incentive for pharmaceutical companies to reduce costs or prove the effectiveness of the medication.” Regence says there are too many cases of drugs being taken to market before they are proven effective.
Sen. Alan Bates (D-Medford) said, “I’m concerned that an insurer is telling a physician that they have to use an off-label drug before they can write an on-label drug. I have malpractice concerns with that.”
The committee wants to hear from the Health Resources Commission at a follow-up hearing.

HB 2925 – 90-day prescriptions
Most health plans offer 90-day mail order prescriptions, but don’t cover 90-day prescriptions if you buy retail. Rep. Wayne Krieger (R-Coquille) told the House Health Care Committee, “I don’t understand. If you can get a 90-day supply mailed, why can’t you pick it up at the drugstore?”
The bill, as drafted, doesn’t do what the proponents want. So it will need some work before it can move forward. And the fiscal analysis estimates that drug costs would increase by $3.1 million in OMIP and $2.5 million in OEBB if this bill passes. Rep. Tina Kotek (D-Portland) described this estimate as “creative” and encouraged the committee to ask Legislative Fiscal to take another look at the bill.

HB 3023 – Expanding dependent insurance coverage
Young adults are the largest segment of the uninsured in Oregon: 42 percent of 21-24 year olds and 32% of 25-29 year olds lack health insurance. Many of them had insurance but lost it when they aged out of their parent’s policies. Sara Cassidey, the Willamette Law School student who first proposed expanding dependent coverage in 2007, estimates as many as 20,000 could benefit if the age for dependent coverage was increased to age 30.
In testimony before the House Health Care Committee, insurance agent Jason Beyrouty supported the bill saying it’s important to keep as many young healthy people as possible in the commercial insurance pool.
The University of Oregon student body president told the committee when he graduates in June, not only will he be facing the toughest job market in decades, but he will no longer be eligible to stay on his parents’ insurance plan.
Bill sponsor Rep. Ben Cannon (D-Portland) says he will propose amendments when the bill comes back for work session.

MALPRACTICE ISSUES

HB 2849 –SAIF unlikely to sell medical malpractice insurance
Rep. Scott Brunn (R-West Linn) said medical malpractice costs are a critical element in the Legislature’s efforts to reform health care. Brunn said a big component must be reducing costs and medical malpractice is a “real cost driver.”
HB 2849 would create a five-member task force to design a SAIF medical malpractice program to be presented to the Legislature in 2011.
SAIF CEO Brenda Rocklin said if the Legislature wants SAIF to get into the medical malpractice market, SAIF will figure out a way to do it. But SAIF would want a date certain to enter the market rather than a task force.
SAIF’s Chris Davie said there is a long list of things SAIF doesn’t know:
· Whether SAIF’s participation in the market would make any difference in rates;
· Where SAIF would get start-up capital (the workers’ comp funds are off-limits) and
· Where to obtain the staff expertise to deal with issues like non-economic and punitive damages.
Davie also pointed out that, even if SAIF captured 20 percent of the market (about $20 million in premiums), the Clarke claim against OHSU was $11 million, and a large decision like that could bury a start-up.
House Judiciary Committee members set this issue aside, but both Democrats and Republicans continue to search for some solution they (and their interest groups) can live with.

HB 2808 – Oregon’s wrongful death cap may be eliminated or increased
Last year the Oregon Supreme Court ruled in Hughes v. PeaceHealth that Oregon’s statute capping non-economic damages in a wrongful death cases is constitutional. HB 2802 doesn’t increase the cap – it eliminates it.
Tom Holt, representing the Oregon Liability Reform Coalition, told the committee that a wrongful death cap is good public policy because wrongful death cases inherently involve awful facts and are fraught with emotion. Absent a cap, the emotional impact of a case, or an uncharismatic or unpopular defendant, may result in huge awards.
The Oregon Medical Association said that if the Legislature were to pass HB 2802, a predictable result is the severity of claims could increase, resulting in an increase in the cost of medical malpractice insurance coverage.
The Oregon Association of Hospitals and Health Systems said removing that cap would drive up the cost of health care, and that a discussion of the cap amount would be appropriate as part of a larger discussion about reform of Oregon’s tort system.
The Oregon Health Care Association, representing long-term care facilities, wrote that eliminating the cap could force providers to drop coverage or refuse admission to high-risk seniors and people with disabilities.
Rep. Judy Stiegler (D-Bend) pointed out that, if a patient is lucky enough to survive, there is no cap, but if the patient dies, there is a $500,000 cap.
The committee did not take action on the bill last week, but expect to see this bill come back with amendments to increase the wrongful death cap to $1.5 million, or to index it to inflation since 1987 (the last time it was increased).

HB 3175 – Making complaints against MD’s public
Some years ago a patient in Clackamas County called the Board of Medicine to find out if there were any complaints against an eye surgeon she was considering using. She was told “no,” had the surgery, and suffered serious, permanent damage. HB 3175 would require the Oregon Medical Board to release information about complaints against physicians.
House Health Care Committee chair Rep. Mitch Greenlick (D-Portland) says, “The goal is to make their investigations more timely and provide information on complaints that are resolved without action.”
Attorney Mike Crew, who works with the OMA, testified that only 1 in 7 complaints about dentists result in any discipline by the Board of Dentistry and only 1 in 5 complaints against physicians result in discipline. “Providing information about dismissed complaints is misinformation,” he said.
Kathleen Haley, executive director of the Oregon Medical Board, opposes the bill saying the existing law balances the public’s right to know with the importance of providing verified information.
No action was taken.

OAFP’s bill tracking Website: http://www.capitolonramp.com/lts/guests/1477220/
For more information contact Doug Barber at doug@lobbyoregon.com or 541-221-3072.