March 28, 2021
1. A Dozen Surgeons Will Testify on the Personal Injury Issue in Two Committees

2. TOA's Title Sponsor in 2021: MSK Case Studies From TMLT

3. Physicians & Patients Testify Against Optometrist Surgery & APRN Bills

4. Prior Authorization Bills Are Starting to Move in the Texas Legislature

5. TOA Is Coming to San Antonio on Monday, April 5; Surgeons Are Invited
6. Drug Pricing Relief for Texans? The Texas Legislature Has a Solution

7. Telemedicine Week in Austin: One Bill Is Controversial

8. New UHC Policies: PROs for Arthroplasty & PA/NP Reporting

9. The Medicare Sequester Is Almost Fixed; Will Medicare Hold Claims?

10. 64 Days Remain in Austin: The List of MSK Issues for This Week

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. Click here to view the newest CME requirements in Texas.

1. A Dozen Surgeons Will Testify on the Personal Issue in Two Committees
A dozen surgeons are expected to testify in the Texas Senate State Affairs Committee on Monday and the House Judiciary and Civil Jurisprudence Committee on Wednesday on the legislation that would change the way that physicians and hospitals are paid for their medical services related to cases that are paid by court settlements.

The bill's author citied the following reason for SB 207 in the bill analysis:

"Current law as interpreted by the Texas Supreme Court provides that a jury should hear about the amount actually paid for medical services by a third party (such as an insurer), not the amount billed by the provider. However, if no third party has paid, often only the provider's billed charges are presented. Weaknesses in current law have created an environment where plaintiff's lawyers will sometimes work with cooperative healthcare providers who over-diagnose, over-treat and overbill for the services they provide the plaintiff, turning medical bills into a litigation profit center by avoiding compliance with the "paid or incurred" statute."

TOA agreed to create compromise language. TOA proposed giving the FAIR Health database as a datapoint for judges and juries to use to help determine appropriate payments. In return, TOA, the Texas Hospital Association (THA) and other stakeholders asked that the legislation eliminate unnecessary discoveries that are hindering surgeons and hospitals.

The latest draft took a turn for the worse and did not address unnecessary discoveries. In addition, the latest draft would remove the requirement for the counter affidavit to be submitted by an individual with the same or similar experience and qualifications.

TOA will continue to work with stakeholders on the legislation.

Click here to read TOA's comment letter. Click here to read THA's comment letter, which expresses concerns related to unnecessary discoveries.

The Texas Medical Association indicated that it will have a "neutral" position on the bill and testify regarding its concerns that are similar to TOA's concerns. The Texas Society of Anesthesiologists broke away from the rest of organized medicine and hospitals by indicating that it will support the legislation.

Click here to read TOA's action alert.
2. TOA's Title Sponsor for 2021:
MSK Case Studies From TMLT
Thanks to all of TOA's Circle of Champions for 2021.

The following is a look at MSK case studies from TOA's title sponsor for 2021, TMLT:

  • Case Closed: Failure to follow up on MRI test results - click here to view it.

  • Telemedicine in Texas: April 20 and 28 webinars (CME) - click here for more.

  • Do you have a coverage gap? Click here to learn more.
3. Physicians & Patients Testify Against Optometry Surgery & APRN Scope Expansions
Several dozen physicians testified in opposition to optometrist surgery and APRN independent practice bills at House and Senate committee hearings last week in Austin.

Senator Kelly Hancock (R-North Richland Hills) and Representative Stephanie Klick, RN (R-Fort Worth) are pushing legislation that would allow optometrists to perform surgery in Texas (HB 2340 and SB 993).

Senator Hancock and Representative Klick are also pushing legislation that would give independent practice to APRNs and CRNAs (HB 2029 and SB 915).

The ophthalmologists put on a model hearing for how physicians should handle inappropriate surgical requests by mid-level providers. Those testifying against SB 993 included several ophthalmologists and patients who were harmed by optometrists' inappropriate surgery in Louisiana.

All physicians are encouraged to contact members of the Texas House Public Health Committee to oppose the optometry surgery (HB 2340/SB 993) and APRN/CRNA independent practice (HB 2029/SB 915) bills - click here to contact the committee members of the House committee. Click here to view the members of the Senate Business & Commerce Committee to make the same phone calls.

If you don't have time to make phone calls (phone calls are the most effective), click here to send e-mails to your state representatives and senators.

The Texas House Committee on Public Health will consider the optometrists' surgery proposal this week. The Senate Committee on Business & Commerce will not consider the APRN/CRNA independent practice bill this week.

Click here to view TOA's "issue focus" on the scope of practice issues.
4. Prior Authorization Bills Are Starting to Move in the Texas Legislature
TOA is focusing on six prior authorization bills in the Texas Legislature that would affect musculoskeletal care. Click here to review the bills and the concepts.

The first bill - HB 2142 by Rep. Hubert Vo (D-Houston), was heard in the House Committee on Insurance last week. The bill would direct the Texas Department of Insurance to conduct regular examinations of health plans and HMOs to study the effectiveness of their prior authorization timelines.
5. TOA Is Coming to San Antonio on Monday, April 5; Surgeons Are Invited
TOA's executive director will provide a one-hour talk on the latest public policy issues affecting orthopaedic surgeons at the San Antonio Orthopaedic Society's dinner on Monday, April 5 in San Antonio.

TOA will provide a one-hour CME ethics credit.

If you're a member of the San Antonio Orthopaedic Society, look for details.
6. Drug Pricing Relief for Uninsured Texans? A Key Bill Is Heard in Austin This Week
Rep. Tom Oliverson, MD (R-Spring), an anesthesiologist and the chair of the Texas House Insurance Committee, will have his drug pricing relief bill, HB 18, heard in a House committee this week.

The Texas House assigns the first 20 bill numbers to its top priority bills.

According to Rep. Oliverson:

The goal of the HB 18 is to utilize federal government relief funding to set-up an ongoing drug benefit for uninsured Texans. Texas currently has an uninsured rate around 18%, one of the highest in the nation. Limited access to prescription drugs is a major detriment healthcare outcomes for uninsured Texans, and if improved would create significant cost savings for the state by alleviating spending on the emergency care that results from poor medication adherence. This legislation is conceptually based on a similar program run through the Utah state employee benefits program.

Click here to read a full summary of HB 18.

7. Telemedicine Week in Austin: One Bill Faces Controversy
Texas House and Senate committees will dedicate this week to the telemedicine bills - one is controversial and the other is not.

HB 4: The Medicaid Telemedicine Bill
The first 20 bill numbers are typically viewed as the Legislature's top priorities. HB 4 (Rep. Four Price, R-Amarillo) addresses Medicaid's telemedicine policies, such as physical therapy. It codifies many of the telemedicine policies that were created by rule during the pandemic.

HB 4 is considered to be the Legislature's top telemedicine priority, and it does not face opposition when it is considered in the House Public Health Committee on Wednesday.

SB 992: Telemedicine by Out-of-State Physicians
SB 992 by Senator Kelly Hancock (R-North Richland Hills) would permit a health professional located outside of Texas who holds an active and unencumbered license issued by another state to provide telehealth services to a patient located in Texas. Out-of-state physicians would be required to register with the Texas Medical Board.

Rep. James Frank (R-Wichita Falls) filed SB 992's House companion, HB 3499.

Organized medicine has a number of concerns related to SB 992:

  • It goes back on Texas' 2017 telemedicine law, which states that telemedicine is the practice of medicine, and you must be licensed by the Texas Medical Board to practice medicine in Texas.

  • Mid-level providers who practice at different scope levels in other states could attempt to practice above Texas mid-level standards through SB 992.

A committee substitute for SB 992 will be introduced on Tuesday.
8. New UHC Policies: PROs for Arthroplasty & PA/NP Reporting Requirements
United Healthcare (UHC) recently enacted two new policies:

Pain Scale for Arthroplasty
Required documentation before arthroplasty surgeries (effective February 1, 2021). Click here to view it.

One orthopaedic practice indicated that it is not a true measure of patient-reported outcomes (PROs) if it is only required prior to the surgery for pre-authorization. A true PRO would follow the patients results following the surgery.

  • Severity of pain and details of functional disability(ies) interfering with activities of daily living (preparing meals, dressing, driving, walking) using either of the following standard scales:
  • The Western Ontario and McMaster Universities Arthritis Index (WOMAC) or
  • The Hip Dysfunction and Osteoarthritis Outcome Score (HOOS)
  • Severity of pain and details of functional disability(ies) interfering with activities of daily living (preparing meals, dressing, driving, walking) using a standard scale, such as the Western Ontario and McMaster Universities Arthritis Index (WOMAC) or the Knee injury and Osteoarthritis Outcome Score (KOOS)
  • Advanced joint disease using a validated scale (e.g., Walch classification of primary glenohumeral osteoarthritis)

Advanced Practice Health Care Provider Policy
Click here to read UHC's March 1, 2021, announcement on payments for PAs and NPs.

  • The policy is being updated to require that an Advanced Practice Health Care Provider must report services rendered. within the scope of their licensure or certification, using their own NPI number.
  • Under the policy, services provided by an Advanced Practice Health Care Provider will only be eligible for consideration under the policy’s “incident to” guidelines if they are ineligible for their own NPI number.
  • Unless otherwise contracted with a Medical Group Non-Physician Professional fee schedule, the policy will apply a reduction, consistent with CMS, of 15% from the applicable fee schedule or allowed amount for the reimbursement of the following Advanced Practice Health Care Providers: Physician Assistants, Nurse Practitioners, and Clinical Nurse Specialists.

The Texas Medical Association submitted comments:

Though TMA supports efforts to ensure incident-to requirements are met, TMA is concerned this policy notice, issued during a public health emergency, will cause needless confusion. We urge UHC to instead conduct further educational outreach to physicians and nonphysician providers on proper billing for incident-to. As part of this effort, UHC should make it clear that physicians can continue to utilize advanced practice nurses and physician assistants under proper incident-to billing arrangements, even if the advanced practice nurse or physician assistant has their own NPI.

It is TMA’s policy on physician assistants and allied health personnel that reimbursement for services performed by a physician assistant should be made directly to the responsible physician. While greater use of nonphysician personnel can improve the system, responsibility for care must be clearly defined if various personnel are to work together effectively to provide high quality services for the patient.
9. The Medicare Sequester Is Almost Fixed; Will CMS Hold Claims?
The U.S. Senate followed up on the House’s previous work and passed an extension of the Medicare sequester moratorium through the end of the year on March 25. However, it does come with one caveat: The House must consider it when that body returns in April due to the fact that the Senate version contained minor changes.
The Senate’s change contained an amendment that sets the end of the moratorium at the end of the year instead of through the end of the public health emergency.
The American Hospital Association indicted that CMS could hold claims until the House returns in April. The moratorium is set to expire on April 1, and the House is not scheduled to hold votes again until April 13.

10. 64 Days Remain in Austin: TOA's Checklist of MSK Issues This Week
What Did You Miss?
Click here to view all of TOA's e-mail updates from 2021.

Click here to view TOA's full bill tracker.

Opioids: Two Concerning Bills Remain
TOA and organized medicine are expected to provide a formal response to Rep. Four Price (R-Amarillo), the author of two concerning bills related to opioids, later this week. One bill would create an informed consent mandate related to opioids. The other bill would give pharmacists the ability to override a physician's judgment.

Click here to send a message to your state lawmakers about opioids and the need to focus on the 2019 laws.

Sports Medicine: Cardiac Screenings
Each Texas Legislature typically features a bill that would mandate cardiac screenings for all middle school and high school athletes. The issue is one of the more contentious issues each session. Click here to read the new law that passed in 2019.

A Texas House committee will consider a bill this week, HB 2605, which would re-open the issue. Click here to view the proposals in the new bill (HB 2605) compared to the 2019 law (HB 76).

Workers' Comp: Multiple Bills to Be Heard
The Texas House Business & Industry Committee will hear several bills related to Workers' Comp this week:

  • HB 1752 would allow the first stage of TDI-DWC's dispute process, the BRC mediation, to stay remote after Covid. The formal contested case hearing would continue to be in person.
  • HB 1753 would eliminate TDI-DWC's "Setting the Standard: An Analysis of the 2005 Legislative Reforms." The report is outdated, and TDI-DWC's annual Network Report Card covers much of the same analysis.
  • HB 2247 is a bill that TOA typically opposed in past years because it would have created a new mandate for orthopaedic practices to convert to a real-time payment processing system managed by a company out of South America. This year's legislation transitioned from a mandatory to giving the State Office of Risk Management to determine whether a real-time processing program could be useful. The change was to eliminate opposition from physician groups like TOA.

Physician and Hospital Liens: House Hearing
The Texas House Committee will consider HB 2064, which relates to physician and hospital liens.

Austin: Medical Billing Tax Moves in the House
HB 1445 by Rep. Tom Oliverson, MD (R-Spring), which would eliminate the state's tax on medical billing, is likely to receive a vote in the House within the next two weeks.

Austin: Software Integration Tool for Prescription Monitoring Program/EHR
Lawmakers in both the House and Senate are pushing budget riders that would direct the state's budget to once again fund the Appriss software integration tool for your EHR to look up the PMP. This has not been settled.

Austin: Covid Liability Protection Legislation to Be Heard
The Senate Committee on Business and Commerce will hear a bill (SB 6) by the chairman, Kelly Hancock (R-North Richland Hills), this week that create Covid-related liability protections.

Austin: Pricing Disclosure Bills
House committees will continue to hear legislation related to pricing disclosure this week: Another bill that mirrors the Trump administration's pricing disclosure for hospitals and HB 2090, which would require the health plans to provide costs to insureds.

Texas Orthopaedic Association