October 29, 2020
1. First State Representatives File for Speaker of the House; What It Means

2. Fusion5:
Thank You to TOA's Gold Sponsor

3. TOA's Opioid CME Now Available; New Texas Mandate

4. HHS Expands Provider Relief Fund Eligibility: New Reporting Requirements

5. TOA's Circle of Champions:
TOA's Industry Supporters for 2021
6.TOA's Opioid Recommendations for Legislature; Latest Texas Settlement

7. What Do the Early Voting Numbers in Texas Mean? An Interesting Look

8. TMA Resolution Seeks to Address Specialists Who Use PAs/NPs

9. Medicare Finalizes Competitive Bidding for OTS Back & Knee Braces

10. What's Lingering: A Look at the Upcoming Issues in Austin/Washington
TOA is now offering two free hours of online CME to fulfill the state's new opioid prescribing CME mandate. Click here to access it.

Please thank TOA's 2020 sponsors at the bottom of this e-mail.
1. First Candidates File for Texas Speaker of the House; November 3 Implications
State Rep. Senfronia Thompson (D-Houston) was the first individual to file a declaration of candidacy to run for speaker of the Texas House, and State Rep. Trey Martinez Fischer (D-San Antonio) followed suit several days later.

The only thing that we do know is that the current speaker - Dennis Bonnen (R-Angleton) - announced his retirement.

Otherwise, we do not know which party will control the House once election day wraps up: Republicans could retain a slim majority, Democrats could win a slim majority, or the November 3 election could end with a tie for the Texas House.

Additional candidates for Speaker of the House are expected to make announcements in the coming days. Some Republicans held a meeting in central Texas last week to discuss potential Republican candidates.

The Texas Senate: Much Will Remain the Same
Only one Texas Senate seat, which is currently held by a Republican, is viewed to be competitive. Two other Republican-held seats could feature closer than expected results on election day.

The lieutenant governor, Dan Patrick, will remain the Senate's leader in 2021. He indicated that the chamber's current committee chairs are expected to remain in place.

How Will the 2021 Texas Legislature Meet?
There are a lot of unknowns, and we are unlikely to know more until a speaker is elected in the House.

The Texas Legislature's only constitutional duty every odd-numbered year is to pass a budget. (The Texas government also has to approve redistricting maps for state and federal legislative seats due to the census.)

What Could Happen in 2021?

  • The Texas Legislature might only consider the budget and redistricting and return in 2023. This is fairly unlikely.
  • The Legislature directs lawmakers to only bring a handful of bills each, which would limit the number of committee hearings and amount of time spent together on the House and Senate floor. This is a fairly plausible scenario.
  • The Legislature works on the budget and redistricting in the early months and then recesses until a vaccine goes into place. The Legislature could then return in a special session to consider other business. This is a plausible scenario.

The Legislature is also looking at larger spaces both inside and outside of the Capitol for votes and floor business.
2. Fusion5: Thank You to TOA's Gold Sponsor
3. TOA's Online Opioid CME Now Available; New Texas Mandate
The 2021 Texas Legislature passed three different laws that require physicians to complete two hours of CME in during each two-year licensing period. The mandate applies to the renewal of a license on or after September 1, 2021.

TOA is offering two hours of the online course free to TOA members. The videos will result in:

  • Two CME hours.
  • Two ethics hours.
  • Two hours to fulfill the state's opioid prescribing mandate.

Adam Bruggeman, MD of San Antonio presented the training.

Click here to access it.

Once you complete the videos and fill out your evaluation form, TOA will e-mail the CME certificate to you several days later.

Online CME providers are required to provide sources for continued study, and we hope that you will utilize those sources on the web page.
4. HHS Announces Phase 3 of the Provider Relief Fund; November 6 Deadline
Click here to learn more from the Dallas law firm of Weaver, Johnston & Nelson.

New Reporting Requirements
From Inside Health Policy:

HHS will no longer define the revenue providers have lost during the pandemic by simply comparing how much they earned in 2019 to 2020 when looking at provider relief reporting requirements, succumbing to pressure from providers and hospitals who worried the measure could force them to return the relief. However, HHS stopped short of addressing accountants’ concerns with the number of providers subjected to the requirements and the short amount of time providers have to submit their information.

“The new methodology should lessen the risk to many providers that funding would be clawed back and provide them more confidence in the ability to invest those funds in the stability of the delivery system,” Brenda Pawlak, Manatt Health Managing director, said in an email.

Providers that receive more than $10,000 in relief are required to send HHS their COVID-19 related expenses for which they haven’t been reimbursed. The department released its first detailed guidance on the reporting requirements on Sept. 19, and the formula for calculating the amount of revenue lost due to the pandemic immediately sparked criticism from providers, lawyers, accountants and hospitals.

HHS responded to those critiques Thursday (Oct. 22) and opted not to take operating costs into account when calculating providers’ lost revenue due to the pandemic. The department said it was initially attempting to make sure providers would not profit from the pandemic relief pay.

“At the time, HHS concluded that it would be inequitable to allow some providers to be more profitable in 2020 than 2019, while so many other providers struggled to remain viable,” the HHS release says. “The September 19, 2020 reporting instructions placed a limitation on the permissible use of [provider relief fund] money that HHS had not previously articulated, although previous guidance did not preclude the establishment of such a limitation in the future.”

Prior to HHS’ announcement on Thursday, accountants told Inside Health Policy that if providers knew how HHS was planning to look at their revenue and income, they would have reacted differently to rising costs and decreased patient revenue.

Richard Kes, health care industry senior analyst at the audit, tax and consulting firm RSM, said Oct. 15 some providers were unaffected by HHS’ rule because they are having such a bad year financially.
“But other providers, this means something substantially different,” Kess said. He’s had some clients reduce their costs by furloughing staff or cutting retirement benefits, but these proactive measures inflate their profits under HHS’ rule.

Since HHS made this lost revenue change months into the game, Kes said this makes it difficult for accountants, CEOs and COOs to plan.

“It leaves us in a kind of a precarious position of, well, we think that this is gonna be the way it goes, but we're not sure,” Kes said. “Not that we are bashing HHS obviously, but then maybe say that HHS did some good things too. You know, they're acting in speeds that no one has previously seen from the federal government.”
While Pawlak said HHS’ changes could ensure providers don’t have to return the money, she said the revisions need more analysis as it looks like the changes will keep providers who were unprofitable in 2019 from using provider relief funds toward what they lost due to the pandemic and to break even in 2020.

Jay Hutto, a certified public accountant with the firm James Moore in Florida, said HHS’ change is good news for his clients, but problems persist: there is no access to a reporting portal until Jan. 15, 2021; providers have to track their financials quarterly and by type; and a $10,000 reporting threshold means a lot more providers are subject to the reporting requirements than expected.

Providers must report revenue by type – Medicare Part B, Part D, Medicaid, etc. – and group it by quarter, Hutto said – and they will only have one month to input all the data into the reporting portal before it’s due Feb. 15, 2021.

5. TOA's Circle of Champions: TOA's Industry Supporters for 2021
TOA's annual conference sponsors played a key role in ensuring that TOA had the funds necessary to perform its advocacy work. It clearly won't be feasible for TOA to hold its traditional annual conference in 2021 due to the pandemic. However, TOA's dependence on sponsorship dollars will not go away in 2021.

TOA heard from some industry members that would like to help TOA's efforts in 2021 - whether there is a conference or not. In response, TOA created the Circle of Champions program for industry members that would still like to support TOA in 2021.

Click here for more information.

TOA still hopes to hold a smaller, casual retreat for TOA members in the summer or fall of 2021. However, we will watch the pandemic's trajectory through the end of the first quarter to determine whether that will be possible.
6. TOA's Opioid Suggestions for Texas Legislature; Latest Texas Settlement
TOA recently responded to a request for comments on opioid public policy by the Texas Committee on Public Health. TOA's comments summarized the bills that have already been passed by the Legislature and recommended that the 2021 Texas Legislature should focus on implementation of the current bills.

The 2019 Texas Legislature featured one opioid bill that did not pass - an informed consent mandate for physicians - and we expect that issue to return in 2021.

Click here to review TOA's recommendations for the Texas Legislature.

Texas Settles With Mallinckrodt
Texas Attorney General Ken Paxton announced a settlement with the bankrupt company on October 12. Click here to read the announcement.

The settlement will be paid into a trust. A small percentage is expected to be added to the state's general revenue stream. A much larger percentage is expected to be controlled by the state comptroller for opioid-related purposes.
7. What Do the Early Election Numbers Mean in Texas?
What will the large voter turnout in Texas mean when the votes are tallied on November 3?

Since political science is a soft science, we don't know. It's challenging to make predictions when the human element exists. TOA has talked to candidates on both sides of the aisle, and they all feel confident (but only one candidate can win each race). Everyone seems to be grasping for indications that will ultimately result in their favor. But just because a candidate has more yard signs or more volunteers greeting voters at the polls does not necessarily translate to success at the polls.

The three most likely scenarios for the makeup of the Texas House in Austin are:

  • A slim majority for the Republicans.
  • A slim majority for the Democrats.
  • A tie.

TOA relies on Texas Election Source for political intel. The following is Jeff Blaylock's latest breakdown (10.29.20) of the early voting figures:

Early Turnout Eclipses 91% of Total 2016 Voters
Early voting, which continues its record-setting pace, concludes Friday. Through yesterday (Tuesday), the first-ever 15th day of early voting, 8.2M Texans – 48.3% of registered voters – have cast ballots in person (7.3M) or by mail (893K). Already, the number of people who have voted so far in 2020 is equal to 91% of the total number of people who voted for president in 2016, including Election Day.

We have increased our estimate of total voters 12.5M, which would represent 73.7% of registered voters, which would eclipse the 72.9% turnout of 1992 and would be only the second time in 50 years that turnout has exceeded 70%. The average turnout for a recent presidential election is around 59% of registered voters.

Ten counties have already surpassed the total number of votes cast for president in 2016, including Election Day:
8% – McCulloch Co. (5K RVs,
4% – Hays Co. (152K RVs, 32K more than 2016)
7% – Denton Co. (565K RVs, 100K more than 2016)
6% – Williamson Co. (377K RVs, 77K more than 2016)
9% – Comal Co. (116K RVs, 23K more than 2016)
4% – Collin Co. (649K RVs, 111K more than 2016)
8% – Fort Bend Co. (482K RVs, 78K more than 2016)
5% – Rockwall Co. (71K RVs, 14K more than 2016)
7% – Guadalupe Co. (111K RVs, 18K more than 2016); and
3% – Kendall Co. (34K RVs, 5K more than 2016).
Brazoria (99.9%), Travis (99.8%), Blanco (98.5%), Medina (98.5%), Gaines (97.9%), Montgomery (97.8%) and Galveston (97.5%) likely eclipsed their 2016 vote totals today (Wednesday).

In 35 counties, the number of votes cast so far is less than 60% of the 2016 total, including Election Day. All 35 have fewer than 20K registered voters, and 28 have fewer than 5K registered voters. Most rural counties in Texas have a single early voting location and typically multiple Election Day locations, which may make voting on Election Day more convenient.

Turnout, measured as a percentage of the votes cast for president in 2016, declines as counties grow smaller in population:
7% of total vote turnout in counties with 250K or more registered voters
1% in counties with 100-250K registered voters
7% in counties with 50-100K registered voters
4% in counties with 20-50K register4ed voters; and
4% in counties with fewer than 20K registered voters.
The state’s less populated rural counties tend to be very reliably Republican. Over the past two decades, rural Texas has become increasingly redder than the state as a whole. That trend appears to be continuing. This week’s New York Times/Siena Coll. Poll shows President Trump leading Joe Biden, 80%-15%, in rural Texas.

The data supports a narrative of Republicans waiting to turn out on Election Day while Democrats are voting early and absentee in droves. That would mean that Democrats will likely come out of early voting with leads in many races that may be clawed back by Republicans’ disproportionate turnout on Election Day.

That narrative gets more support from TargetSmart’s latest analysis of turnout. Despite record high early turnout, there have been 1.1M fewer non-college-educated Anglo voters so far this year (3.0M) compared to the 2016 total, including Election Day (4.1M). As time runs out on the early voting period, they become more likelier to vote on Election Day.

In the 15 counties with the most registered voters, a total of 5.6M people have voted early through yesterday. The single-day total was 262K, the lowest single-day figure for a weekday. The pace of early voting has slowed over the past week.

We expect it will pick up again as the early voting period closes, but probably not today (Wednesday). According to Republican strategist Derek Ryan, there are still around 1.8 million recent primary participants and 2.8 recent general election participants yet to vote as of Monday. Virtually all outstanding mail ballots will be from these voters.

There were 2.37M votes cast on Election Day in 2016 and 2.34M cast on Election Day in 2018. Since 2014, Election Day turnout has been around 15% of registered voters, which would correspond to around 2.5M this year. That number is likely to rise because there are quite a few regular to periodic voters still out there, and there are an unknown number of new voters still out there.

©2020 Texas Election Source LLC

8. TMA Resolution Seeks to Address Specialists Who Use an Extender for an Initial Evaluation
The Texas Medical Association's House of Delegates will consider a resolution that would:

RESOLVED, That Texas Medical Association recognize that the best practice of patient care dictates that it is the responsibility of the physician to develop the diagnosis and treatment in the evaluation of a patient, while it is recognized under limited circumstances that an initial evaluation may be conducted by a nurse practitioner or physician assistant.

Each medical society's delegates to the Texas Medical Association have been asked to provide their input before the House of Delegates considers it later this fall. If you have thoughts one way or the other on this proposed resolution, you should contact TMA; TOA and TMA are separate organizations.

The proposed resolution:


Whereas, Primary care physicians care for a broad spectrum of patients; and

Whereas, Primary care physicians sometimes refer patients to specialists seeking their expertise in the evaluation, diagnosis, and treatment of their patients; and

Whereas, A patient’s initial assessment and thorough evaluation by a board-certified specialist is what primary care physicians need and patients need and deserve when referred to a specialist; and

Whereas, Nurse practitioners and physician assistants do not have the same level of training as aphysician; and

Whereas, Nurse practitioners and physician assistants can switch “specialties” without any clinical training whatsoever in their chosen “specialty;” and

Whereas, A nurse practitioner or physician assistant assessment and treatment plan for an initial evaluation does not provide the level of expertise that primary care physicians seek and patients deserve when patients are referred to a physician specialist; and

Whereas, Optimal patient care can be compromised through delays in diagnosis and treatment resulting from initial evaluations by nurse practitioners or physician assistants rather than specialist physicians; therefore be it

RESOLVED, That Texas Medical Association recognize that the best practice of patient care dictates that it is the responsibility of the physician to develop the diagnosis and treatment in the evaluation of a patient, while it is recognized under limited circumstances that an initial evaluation may be conducted by a nurse practitioner or physician assistant.

9. Medicare Finalizes Competitive Bidding Contracts for OTS Knee & Back Braces
The Centers for Medicare and Medicaid Services (CMS) announced on October 27 that it is only awarding competitively bidding contracts to DME suppliers for off-the-shelf back and knee braces due to the expected savings for Medicare. Bid prices for knee and back braces will go into effect on January 1, 2021.

“CMS has heard from a range of stakeholders requesting that the agency delay or cancel the Round 2021 DMEPOS CBP due to the ongoing COVID-19 Public Health Emergency. CMS considered that feedback in moving forward with the Round 2021 DMEPOS CBP. CMS is not awarding competitive bidding contracts for any of the 13 product categories for Round 2021 that were previously competed because the payment amounts did not achieve expected savings,” the agency says in a competitive bidding announcement.

The next round of competitive bidding is scheduled for 2024.

Click here to view the competitive bidding areas for Texas.

Click here to view CMS's fact sheet.
10. What's Lingering: A Look Into Upcoming Issues in Austin & Washington
Austin, Texas
  • The Texas Medical Board's e-Rx waiver process for the 2021 mandate - we are expecting this in December.
  • We continue to wait for rules from the Texas Department of Insurance on the state's new prior authorization law related to transparency.
  • The Texas Supreme Court will determine whether a surgeon must reveal his or her commercial insurance contract rates in an early January 2021 hearing. TOA will submit an amicus brief.
  • A ruling from the Texas Supreme Court on the chiropractors' scope of practice.
  • A ruling from the Texas attorney general on CRNAs and physician delegation.

Washington, DC
  • Will Congress address surprise billing before President Trump's December 31 deadline?
  • Medicare's final decision on the 2021 Physician Fee Schedule and proposed orthopaedic cuts (expected in November).
  • Medicare's final decision on the 2021 hospital outpatient department/ASC payment proposal related to the elimination of the inpatient only list for musculoskeletal services, THA in the ASC, and other issues (expected in November).
  • A "lame duck" omnibus bill to wrap up funding issues for the year. Any number of health care issues could be included in this package.
Thank You to TOA's 2020 Sponsors
Title Sponsor
Platinum Sponsor
Gold Sponsors
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Alafair Biosciences

Atticus Medical Billing Solutions



Cumberland Pharmaceuticals



Flexion Therapeutics


FX Shoulder USA


IlluminOssa Medical
Konica Minolta Healthcare



OsteoCentric Technologies

Quatris Healthco

Robin Healthcare




The DaVinci Orthopedic Pillow

Verata Health

Vericel Corporation
Texas Orthopaedic Association www.toa.org