81st Texas Legislature: The Postmortem

In what some have described as the “lost session,” family medicine emerged with a surprising list of successes

By Jonathan Nelson

The story of the 81st Texas Legislature ends like a disappointing summer blockbuster, with a bombastic struggle as the final minutes tick away only to leave you staring at a black screen and the words, “to be continued….” What will be the fate of the Texas Department of Insurance and a handful of other state agencies slated for sunset? What about hundreds of thousands of uninsured kids hoping to gain eligibility to the Children’s Health Insurance Program? Tune in next time.

The two most defining events of the session occurred on its first day, setting the course for the rest of the term. In the House, members elected a new speaker, ousting three-term Speaker Tom Craddick, R-Midland. The new speaker, Joe Straus, R-San Antonio, vowed to let House members have more control of the legislative agenda and more freedom to vote in the best interest of their districts. Such an abrupt regime change meant House business had to be put on hold while the new speaker shuffled committee members and appointed new committee chairs.

Over in the Senate, the opening day was full of rancor as Sen. Tommy Williams, R-The Woodlands, and Sen. Dan Patrick, R-Houston, brought a motion to suspend the two-thirds rule solely for the issue of voter identification. The long-standing Senate rule requires that two-thirds of the membership must agree to bring up a bill for debate. The controversial voter identification measure had failed to garner enough votes in past sessions and without the rule change, it would have been unlikely to make it through the Senate this time around, but the decision to suspend the rule lit the fuse for the explosion that would grind the Legislature to a halt in its final days.

When the voter ID bill passed the Senate, House Democrats did everything in their power to kill the bill. Eventually they ran out the clock by engaging in lengthy debates on bills with little or no opposition. The tactic succeeded in blocking voter ID, but it also killed hundreds of other bills including some of the most important business on the legislative docket: the sunset of the Texas Department of Insurance, the Texas Department of Transportation and several other state agencies. Lawmakers had to return in July for a short special session to extend those agencies until the next Legislature.

Roiling beneath the surface throughout the session was the impending Republican gubernatorial primary battle between Gov. Rick Perry and U.S. Sen. Kay Bailey Hutchison. Political posturing for the 2010 election cycle overshadowed much of the policy discussion.

On issues related to health care, the question of what reforms might be handed down from the federal government led to a palpable hesitance among lawmakers to entertain sweeping changes. Anticipating the uncertain political circumstances, the Academy set three main goals for the session and succeeded across the board: to create a new physician loan repayment program, to require health plans to provide instant verification of benefits to physicians at the point of care, and to prevent advanced practice nurses from achieving independent practice.

Loan repayment for family physicians

No matter what health system reform if any is passed in Washington, D.C., Texas will still face a critical shortage of primary care physicians, particularly in rural and impoverished urban communities. Members of the TAFP Board of Directors and its committees and commissions understood this fact and long before the session began, they decided to put strengthening the state’s primary care physician workforce at the top of the Academy’s legislative priorities.

As a result, Texas will have a substantial new physician loan repayment program designed to bring up to 225 family physicians to medically underserved areas throughout the state each year. The program will pay up to $160,000 to primary care physicians who agree to practice for four years in Health Professional Shortage Areas, many of which are located in rural communities as well as urban centers.

Modeled after the National Health Service Corps loan repayment program, Texas’ new program will pay up to $25,000 in a physician’s first year of service, $35,000 in the second, $45,000 in the third and $55,000 in the fourth. Since students graduate from medical school with between $130,000 and $145,000 in educational debt on average, the prospect of repaying those loans over a span of four years should not only increase the attractiveness of family medicine but also should bring young family physicians to the communities that need them most.

Throughout the session, the bill was opposed by a powerful group of tobacco lobbyists because funding for the new program will be generated by closing a loophole in the application of excise taxes on smokeless tobacco products. The change will raise an estimated $105 million over the next biennium. About $22 million of that will go to fund the new loan repayment program.

The bill was originally filed by Rep. Warren Chisum, R-Pampa, and was considered by many to be a long shot at best. For several sessions, different lawmakers had tried to fix the smokeless tobacco loophole and use the additional revenues for a variety of needs, but each attempt failed against staunch opposition and the general distaste of lawmakers for intervening in market battles. Chisum’s bill made it through the House Committee on Public Health only to be bottled up in the House Calendars Committee, which sets the schedule for debate of bills on the House floor.

In a fascinating display of how a need as great as that for access to primary care can make allies of disparate fellows, Rep. Sylvester Turner, a Democrat representing a poverty-stricken urban district in Houston, stood shoulder to shoulder with the rural, conservative Republican, Chisum, in persuading the House to accept the loan repayment program as an amendment to House Bill 2154 by Rep. Al Edwards, D-Houston. The House agreed and sent the bill to the Senate, where it avoided the end-of-session meltdown.

“Physicians and health centers consider House Bill 2154 to be one of the most significant pieces of legislation to pass in decades because of its potential to bring basic medical care to millions of Texans in the inner cities and rural areas of our state,” says TAFP CEO Tom Banning.

Much of the remaining revenue generated by the change in the excise tax on smokeless tobacco will be used to provide tax relief to small businesses. Currently, businesses earning revenue in excess of $300,000 a year must pay a state franchise tax, but H.B. 2154 provided the revenue lawmakers needed to raise that exemption to $1 million.

“In these tough economic times the significant tax cut funded through Rep. Edwards’ bill could well mean the difference between businesses staying open or closing their doors,” said Bill Hammond, president of the Texas Association of Business, in a press release. “Small businesses are a huge economic engine for Texas, creating 70 percent of the new jobs in the last 10 years and employing almost half of the Texas workforce, and they are breathing a little easier today thanks to Rep. Edwards’ leadership.”

Administration of the new program will fall under the purview of the Texas Higher Education Coordinating Board and as soon as rules and an application process are in place, TAFP will distribute that information to medical students, residents and educational institutions.

Instant verification of benefits

TAFP achieved another major legislative goal with the passage of H.B. 1342 by Rep. José Menéndez, D-San Antonio, and Sen. Chris Harris, R-Arlington. The new law requires health plans to provide instant verification of benefits, including what services are covered, the amount of the patient’s deductible and any co-pays or co-insurance, and an estimate of the patient’s financial responsibility, at the point of care. The measure also prohibits plans from contractually blocking a physician’s ability to collect payment from the patient before full adjudication of the claim.

In an interview for TAFP’s video news webcast, Capitol Report, Menéndez said the measure would improve the interaction between doctors and patients by removing unnecessary steps in the payment process. “You know, with the technology we have today, it’s just a matter of getting some computer systems to talk to each other,” he said. “The health insurance companies have to know what their insurance provides, what their coverage provides, and I’m sure that with a simple identification number, they know what each patient’s deductible is, what their co-pays are. So if they have that information, why can’t they share that information with the doctors?”

The law is effective immediately, although plans have a few years to implement convenient methods of providing the necessary information. Banning says the bill’s passage represents a first step toward real-time claims adjudication. “With the increase in high-deductible, low-benefit health plans physicians are seeing these days, this bill should help clear up confusion for patients while helping doctors keep their accounts receivable under control,” he says.

State protects physician delegation of APNs

After six years of relative calm, the Coalition for Nurses in Advanced Practice emerged with guns blazing this session seeking a broad expansion of the scope of practice for advanced practice nurses. In 2001, physicians and APNs agreed to a moratorium on scope of practice battles lasting three legislative sessions, but that moratorium expired as the session opened and CNAP was ready to fight.

Two bills filed this session would have given broad prescriptive authority to APNs, virtually stripping all physician supervision of APNs from state law. H.B. 1107 by Rep. Wayne Christian, R-Center, would have given complete independent authority for nurses to practice medicine by allowing the Texas Board of Nursing to grant prescriptive authority for APNs. It would also have removed all mention of APNs from the physician delegation statutes in the state Occupations Code.

H.B. 696 by Rep. Rob Orr, R-Burleson, would have removed physician prescriptive delegation to APNs. Instead, the bill would have instituted prescriptive agreements, essentially allowing physicians and APNs to establish their own guidelines for collaboration through unlimited, open-ended contracts with no minimum standard of supervision. For instance, the parties could agree that an annual conference call would sufficiently constitute supervision over all APNs collaborating with a physician.

TAFP worked to alert lawmakers to the dangers of these bills and when they failed to make it out of committee, the APNs packaged them as amendments and attempted to attach them to S.B. 532 by Sen. Dan Patrick, R-Houston, during debate on the House floor. That bill maintained physician supervision over nurse practitioners and ensured the Texas Medical Board retained the responsibility for overseeing the delegation of prescriptive authority to nurse practitioners at retail health clinics. TAFP had worked for months on S.B. 532, coordinating with representatives of the major retail health clinics as a way to stave off aggressive efforts by advanced practice nurses to gain independent practice.

House members defeated the amendments, one by a sustained point of order and by voting the other down overwhelmingly by a 35-100 margin. S.B. 532 was passed by the Legislature and signed into law.

State budget

The $182 billion state budget for the next two years included no major changes, either positive or negative, compared to the one passed last session. Physicians received no increases in payment for the CHIP and Medicaid programs, but increases implemented in 2007 were maintained.

Funding for family medicine residency programs increased by 21.5 percent, receiving an additional $3.75 million for the next two years. That funding will go to increase the number of residency positions in the state as well as the amount of money allotted for each family medicine resident.

The budget did not include funding to improve the Medicaid eligibility system or to implement 12-month continuous coverage for children enrolled in Medicaid, two proposals TAFP supported along with the rest of the health care community.

Public health

While the statewide smoking ban failed to pass, several public health initiatives TAFP supported as part of the Texas Public Health Coalition made it into law. S.B. 346 by Sen. Jane Nelson, R-Flower Mound, expands the state’s ability to maintain immunization records into adulthood for those who choose not to have their records automatically deleted when they turn 18 years old.

S.B. 891 also by Nelson establishes a standard definition for physician education curriculum and sets a minimum ratio for PE teachers to students.

H.B. 1877 by Rep. Carol Alvarado, D-Houston, requires that students enrolled in full-day prekindergarten programs participate in physical activity for up to 30 minutes each day. While this bill did not pass, Alvarado successfully amended it to another bill, which did become law.

The Department of State Health Services received appropriations of $4.8 million for obesity prevention projects and $1 million for the Texas Council on Cardiovascular Disease and Stroke.

Managed care

H.B. 2064 by Rep. John Smithee, R-Amarillo, institutes premium subsidies for the state’s high-risk insurance pool for people earning less than 300 percent of the federal poverty level. This insurance pool is considered the insurer of last resort for people with pre-existing conditions, but the coverage isn’t cheap. The new subsidies will be applied on a sliding scale in proportion to the applicant’s income and will pay up to 50 percent of the premium cost.

S.B 1771 by Sen. Robert Duncan, R-Lubbock, uses some federal stimulus dollars to fund an increase in the state’s insurance continuation coverage program, which is available to employees of small businesses who lose their jobs. The program works like COBRA and the bill extends the coverage period from six to nine months.

S.B. 78 by Nelson, also known as the Healthy Texas Program, is intended to make private health insurance more affordable for small businesses with low-wage earners that do not currently offer health benefits.

What comes next?

All eyes are on Washington, D.C., now. Depending on what happens on the Hill, any number of issues could crop up at the state level. Sticking to what we know, Texas is scheduled to undergo redistricting again next session, which likely means we’re in for a political free-for-all. That will only be compounded by the aftermath of the governor’s race and other statewide elections in 2010. If predictions hold true and the economy is slow to recover, Texas could be facing a record budget deficit when the Legislature convenes in 2011. Add to that all of the unfinished business from this past session including the sunset of TDI, and you can see the Academy has its work cut out for the interim.

“Something was different this session in the way legislators regarded family medicine,” Banning says. “I really believe that members we helped during the election cycle ended up on committees that helped us achieve our goals. The coalitions we were able to build with the Texas Association of Business, the Texas Association of Health Plans, the retail health clinics and others got us to the table, and when legislators wanted to hear what physicians had to say on health care topics, they turned to the family doctors.”

TAFP will continue to work on behalf of the family physicians of Texas to improve patient access to primary care, the state’s health care delivery system and the practice environment in which physicians care for their patients. With the help of TAFP’s membership, strong physician leadership and a little luck, the Academy can have another great session next time around.