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January 24, 2021

Dear TOA Member:

Pro football players dedicate six days a week for a peak performance event on Sunday. Many Olympians train for decades for a single peak performance event. TOA's peak performance is now; the 2021 Texas Legislature opened on January 12 and will conclude on Memorial Day. TOA dedicated the second half of 2019 and all of 2020 to educating lawmakers about the musculoskeletal issues that they encounter in 2021.

While Congress and the White House tend to capture the media's attention, the reality is that the Texas Legislature's activity during this five-month window of time is likely to have a far greater impact on the future of your practice.

Texas Legislature 101: Key Takeaways
For those who don't want to dig into the weeds, you might want to consider the following takeaways:

  • Why meet so rarely? Texas is one of a handful of states that meets on a biennial basis in odd years. The state started doing this when it began meeting in 1845 due to the long distances required to travel to the Capitol. (Others say that Texas' limited meetings are due to restrictions placed on southern states following the Civil War. But we will save that debate for the political scientists, the "soft science.")

  • Legislative hurdles. Texas' legislative process has been designed to kill the vast majority of filed bills through a series of deadlines. For example, if a bill fails to receive an initial committee hearing in the House or Senate by early March, then it will be unlikely to meet a number of other deadlines. The House features the Calendars Committee, which is where bills can be delayed for weeks behind closed doors, and that terminates numerous bills.

  • Things move quickly in Austin. Congress moves slowly and deliberately during its two-year session. Meanwhile, the Texas Legislature moves at a frantic pace for three months of a two-year period: March, April, and May of each odd year.

  • It's Important to Be at the Texas Capitol. Partly due to Congress' slow pace and the large number of individuals across the nation who desire information, it's easy for the public to find information about Congress' work in Washington. However, much of the Texas Legislature's work is behind the scenes, and it can be challenging to find information about its deliberations. Simply finding the text of an amendment in the Texas Legislature may require an individual to go to the Capitol late at night to ask offices for a copy of it; it isn't always available on the internet.

  • Five physicians in the Legislature. The Texas Legislature features three surgeons - Sen. Charles Schwertner (orthopaedics), Sen. Dawn Buckingham (ophthalmology), and Rep. Greg Bonnen (neurosurgery) - and two other physicians - Sen. Donna Campbell (ER physician) and Rep. Tom Oliverson (anesthesiology). They take time out of their busy medical practices and family life to serve in the Legislature; TOA hopes that all physicians appreciate their work.

How to Follow the Legislature Through TOA
TOA will provide regular updates to TOA members and Circle of Champions.

Click here to view TOA's bill tracker, which follows the bills related to musculoskeletal issues. It isn't very interesting right now, but it will become more intriguing as lawmakers file more bills over the next few weeks. March 12, 2021, is the bill filing deadline.

You'll Be Asked to Engage Your State Lawmakers: Starting Now
We will ask you to make phone calls and send e-mails to your state lawmakers on a variety of issues.

We'll start with an e-mail campaign reminding state lawmakers about the number of opioid-related laws that they passed in 2019 and the need to pause in 2021. Click here to send an e-mail to your state lawmakers.

TOA's Musculoskeletal Primer for Lawmakers
Click here to view TOA's musculoskeletal primer for the Texas Legislature.

2021 Issue: Opioids
The 2019 Legislature passed over a dozen laws related to opioids. TOA's message this year is clear: Focus on the 2019 laws and work on their implementation. Click here to view TOA's one-pager.

Several bills that would have created informed disclosure requirements for physicians were introduced in 2019 and failed, and they could return in 2021.

Stay tuned for TOA's "issue focus" on opioids in your e-mail box next week.

2021 Issue: Scope of Practice & Podiatry
The Texas Podiatric Medical Association approached TOA about defining the ankle in terms of podiatry under Texas law.

Stay tuned for an "issue focus" e-mail from TOA on this issue.

2021 Issue: Scope of Practice & Physical Therapy
Texas became the last state in the nation to give physical therapists direct access when the 2019 Texas Legislature passed an innovative law that focuses on a physical therapist's training:

  • All physical therapists may have 10 business days of direct access before a referral must be made.
  • Physical therapists who have completed either residency or fellowship training may have 15 business days of direct accces.
  • Any physical therapist who provides direct access care must provide a disclosure to a patient regarding the inability to perform imaging, the fact that commercial insurance may not pay for it, a lack of a medical diagnosis, and other patient disclosures.

The physical therapists indicated that they would like to push two bills in the 2021 Texas Legislature:

  • Add physical therapists who have completed a board certification to the 15-day list.
  • Require commercial health plans to pay for physical therapy direct access.

TOA will take a deeper dive into these issues in a future "issue focus" e-mail.

2021 Issue: Scope of Practice & Chiropractors
The Texas Medical Association and chiropractors squared off in a Texas Supreme Court case earlier this fall. At issue is whether chiropractors may perform VONT testing for neurological conditions:

  • Lower courts ruled that the neurological system is not part of the chiropractors' scope of practice.
  • The chiropractors responded that the neurological system touches every aspect of the musculoskeletal system, which means that the chiropractors cannot do anything under this ruling. (That's what the chiropractors say.)

Sen. Charles Perry (R-Lubbock) and Rep. Phil Stephenson (R-Wharton) recently filed legislation that would define the "neuromusculoskeletal system" for chiropractors. A similar effort in 2019 was opposed by organized medicine and failed.

The chiropractors have also been locked in a battle with the acupuncturists over whether acupuncture is within a chiropractor's scope of practice, and legislation has already been filed along those lines.

2021 Issue: Scope of Practice & Nurse Practitioners
The nurse practitioners are making a strong push for independent practice in 2021. They have recruited the efforts of the Texas Association of Health plans, a business coalition, and AARP to help them make a strong push.

2021 Issue: Scope of Practice & Athletic Trainers
A physician's medical license typically allows a physician to delegate to almost everyone in the health care space (there are limited and debatable exceptions).

Athletic trainers have typically served in traditional athletic settings. However, an increasing number are performing services in new types of athletic settings, such as working with San Antonio firefighters. While that issue has been resolved, legislation may be introduced to clarify it in statute.

2021 Issue: Taxes for Medical Practices
The Texas Comptroller of Public Accounts, Glenn Hegar, agreed to remove the state's tax on outsourced medical billing in 2020. However, it came with a caveat: The 2021 Texas Legislature must pass a law to permanently repeal the medical billing tax. (More to come in a future TOA "issue focus.")

State lawmakers have already filed legislation that would ensure that the state could not levy franchise taxes on forgiven PPP loans.

2021 Issue: Commercial Insurance Prior Authorizations
The 2019 Texas Legislature passed a law that requires health plans to make some of their prior authorization requirements transparent and instituted new utilization review requirements. Click here to learn more about the 2019 law.

Lawmakers are likely to take a deeper look at prior authorization in 2019, and we have already witnessed multiple bills filed on the subject.

2021 Issue: Workers' Comp & Treatment Guidelines
The Texas Workers' Comp program could witness changes when the Texas Sunset Commission performs its review of the program in 2022 and 2023.

In the meantime, the 2021 Texas Legislature is likely to feature legislation that would direct the state to examine the program's treatment guidelines.

2021 Issue: Payments Made to Surgeons for Personal Injury Work
TOA's "issue focus" e-mail told you about legislation that would tie physician payments a benchmark featuring Medicare/Medicaid, Workers' Comp, and commercial insurance rates. Click here in case you missed TOA's e-mail.

Alternative language is being presented at this very moment. Stay tuned for updates.

2021 Issue: Medicaid Expansion in Texas?
Will Texas pursue a "Texas-style" form of Medicaid in 2021? Or will state lawmakers view the federal government's recent approval of a new 10-year 1115 waiver for the state of Texas viewed to be sufficient?

TOA will take a deeper look at the Medicaid expansion debate in an "issue focus" e-mail.

Much More to Come
We're still in the early stages of the 2021 Texas Legislature, and we expect many more issues to be presented. Stay tuned for TOA's e-mail updates. We will ask you to engage on a number of different issues.

As a special "thank you" for your membership, we are only sharing TOA's e-mail updates with TOA members who have paid their dues and practice administrators whose practices feature 100 percent TOA members.

TOA greatly appreciates your support, which ensures that TOA has the resources necessary to fight the musculoskeletal battles in Austin. Some specialties - such as anesthesiology, emergency medicine, and ophthalmology - feature a limited number of national societies and sub-specialty societies vying for their support, and that allows them to spend less time on membership dues collection. Meanwhile, the orthopaedic specialty features countless specialty and sub-specialty societies at the national level asking for orthopaedic surgeons' support, which is why TOA has to work hard to remind Texas orthopaedic surgeons why TOA's advocacy efforts in Austin are so important.

´╗┐Bobby Hillert | Executive Director
Texas Orthopaedic Association | 214.728.7672 m