April 18, 2021
1. Different Groups Are Promoting Candidates for AAOS Nominations

2. Thanks to TOA's Circle of Champion Sponsors for 2021

3. AAOS's Board of Councilors: Do You Want to Be Texas' Newest Member?

4. May 27: AAOS Virtual Advocacy Day With Members of Congress

5. Opioids: Where Are We on the Bills in the 2021 Texas Legislature?
6. Allow a Payment in Full From a Patient? A Legislative Caveat

7. New Treatment Guidelines for Workers' Comp? A Legislative Look

8. Biden Administration Drops Texas' Medicaid Financing Plan; What's Next?

9. Paid & Incurred (Personal Injury) Legislation Sitting on the Senate Floor

10. 42 Days Remain in Austin: What Are The MSK Bills 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. Different Groups Are Promoting Various Candidates for AAOS Nominating Committee
It is important to note that TOA is separate from AAOS and does not have an affiliation. In addition, TOA does not endorse candidates for AAOS positions. However, TOA is happy to pass along recommendations from orthopaedic surgeons.

The following is a look at the recommendations passed along to TOA for AAOS's Nominations Committee.

The Texas Connection: David Mansfield, MD
Two past TOA presidents - David Teuscher, MD and John Gill, MD - are part of a group of orthopaedic surgeons from across the nation who successfully stopped AAOS's board of directors from changing the AAOS bylaws to "weaken the Board of Councilors."

Drs. Teuscher, Gill and other orthopaedic surgeons are pushing a slate of orthopaedic surgeons for the AAOS Nominations Committee, and this includes a Texan, David Mansfield, MD of El Paso. Dr. Mansfield is a past TOA president and also served as the chair of AAOS's Board of Councilors.

Click here to learn about their recommendations.

OrthoForum and OrthoConnect
The OrthoForum, which is a coalition of private practices from across the nation that is led by an Indiana accounting firm, is pushing a slate of candidates.

Click here to learn about their recommendations.

2. Thanks to TOA's Circle of Champions for 2021
Thanks to all of TOA's Circle of Champions for 2021. These organizations made a financial commitment to support TOA's work (whether TOA is able to hold a meeting in 2021 or not).
3. Do You Want to Serve As Texas' Newest AAOS Board of Councilor?
Thanks to Kyle Dickson, MD of Houston for his past six years as one of Texas' AAOS Board of Councilors. Dr. Dickson's term ended earlier this spring, and TOA now has an opening for another Texas Board of Councilor.

If you're interested, reply to this e-mail. The individual will serve two terms of three years each, and it does come with the following requirements:

  • A TOA board seat, which means that you would be required to engage in TOA activities.
  • Attendance at all AAOS Board of Councilor meetings, which typically includes the AAOS annual conference, a late spring/early summer visit to Washington and a fall meeting, which will be this September in Washington.
  • Offering your ideas to both TOA and AAOS.
4. Thursday, May 27: AAOS's Virtual Advocacy Day With Texas Members of Congress
TOA and Texas orthopaedic surgeons won't be visiting Capitol Hill this spring due to the pandemic. Instead, AAOS has set aside Thursday, May 27 for orthopaedic surgeons to have virtual visits with Texas Members of Congress.

To date, we have not had any Texas orthopaedic surgeons register for the virtual visits. Click here to register today.

The visits will take a look at prior authorization.
5. Opioids: Where Are We in the Texas Legislature?
The above graphic takes a look at opioid laws that were created by the 2019 Texas Legislature. TOA indicated to state lawmakers that the Legislature created a number of new laws in 2019, and they should pause before enacting more legislation in 2021.

The following is a look at the status of opioid legislation in the 2021 Texas Legislature:

Funding for your EHR Integration License: Moving
Appropriators in both chambers are working on funding to once again pay for the Appriss license to integrate the prescription monitoring program (PMP) into your patients' EHR records.

Senator Joan Huffman (R-Houston) presented legislation that would dedicate part of the attorney general's settlement with opioid manufacturers to permanent funding of the EHR integration tool in a Senate committee last week.

Informed Consent: Not Moving
One of the few opioid bills that did not move in 2019 was an informed consent mandate related to a 13-point list that the prescribing physician would be required to read to a patient prior to prescribing an opioid. The bill died in the final days of 2019.

A similar concept was introduced in 2021. However, it is not set for a hearing this week, and time is running out on it.

Mandatory Opioid Antagonists for All Patients: Not Moving
Legislation was filed in the House and Senate that would give pharmacists the ability to use their judgment to dispense opioid antagonists to any patient who has been prescribed an opioid antagonist.

Current law allows the following:

It can be dispensed under a protocol or a prescription.  Chapter 483, Subchapter E, allows a pharmacist to dispense an opioid antagonist under a standing order from a physician. The person asking for the opioid antagonist and receiving the prescription might not be the person who would receive the medication. For example, a person is concerned that a friend or family member has an opioid addiction.  The person wants to have the opioid antagonist “on-hand” in case the friend/family member overdoses.  The person goes to the pharmacy and requests the opioid antagonist. The prescription is dispensed to the person requesting not the friend/family member. 

The 2021 legislation raised a number of questions, and it looks like it is unlikely to move at this point. The legislation was pushed by the manufacturer of Narcan.

Schedule II Authority for PAs and NPs: Hearing This Week
The Texas House Public Health Committee will hold a hearing this week on HB 1524, which would give Schedule II authority to PAs and NPs who are acting under a physician's delegation. Current law allows PAs and NPs working under a physician's delegation to prescribe Schedule II drugs in hospitals and hospice settings.

The bill is being heard late in the process, which means that it faces number of time-related hurdles.
6. Accept a Payment in Full Directly Through a Patient? Legislation Comes With a Caveat
Legislation in Austin, HB 4051, would require a health plan to allow a physician to accept a payment in full directly from a patient instead of filing an insurance claim. However, the legislation would comes with a caveat (as explained by the bill analysis):

The bill would require certain health benefit plans to allow a provider to accept payment in full directly from a patient in lieu of filing a claim, and would allow providers and patients to agree to cash prices as long as the price is no more than the lowest price the provider has negotiated with any payer for the services. The bill would also prohibit contracting entities from using most favored nation clauses in provider contracts.

HB 4051 was heard in the House Insurance Committee last week, and it may receive a vote out of committee this week.

Physician groups are concerned due to the fact that it would mandate the lowest negotiated rate.

Stay tuned for an update from TOA.

7. New Treatment Guidelines for Workers' Comp? The Legislature Will Take a Look
TOA has been asked to testify before a Texas House committee about legislation, HB 3042, that would direct TDI-DWC to perform a third party study regarding its treatment and return-to-work guidelines. In addition, the legislation would give the commissioner the authority to change the guidelines through the rule-making process.

TOA does not favor one set of guidelines over the other. However, TOA will comment that it is important for TDI-DWC to continuously study the guidelines to determine if any improvements should be made. For example, carriers should not use the guidelines to deny care when it is clear that that care should not be denied.
8. Biden Administration Drops Texas' Medicaid Financing Plan; What's Next?
The Biden administration dropped Texas' 10-year Medicaid 1115 waiver on Friday, which the Trump administration approved in its final days. At issue is a battle between two visions:

  • Democrats and the Biden administration prefer to expand Medicaid coverage to individuals.
  • Republicans and Texas Governor Greg Abbott's administration prefer to focus on uncompensated care pools in which hospitals team together in counties to draw down federal dollars. (This required legislation in Austin over the past decade, and some bills pay specialty hospitals that do not take Medicaid an extra fee in exchange for their willingness to draw down those dollars.)

What's Next?
This is a complicated issue. The following options are on the table:

  • The state of Texas could sue the federal government.
  • The Texas Legislature could pass Medicaid expansion for individuals.
  • CMS could give Texas an opportunity to go through the comment process to potentially secure another 1115 Medicaid waiver. The Biden administration stated that it removed the waiver because Texas did not hold a normal public notice and comment process on its plans to renew the uncompensated care funding and did not provide sufficient reasoning for skipping that step. Texas stated that they did this due to the pandemic.

Reactions From Both Sides
“It’s an absolutely essential move to preserve the integrity of the Medicaid program. The program is not a slush fund," Sarah Rosenbaum, a George Washington University law professor said.

“The Texas Hospital Association is extremely disappointed by today’s action by CMS to abruptly rescind the previously approved waiver extension for Texas ... This action undermines the safety net and hospitals’ ability to protect people. It puts the state’s health at serious risk and creates unprecedented levels of uncertainty for an industry that is charged with saving lives,” Ted Shaw, Texas Hospital Association president and CEO, said in a statement.

"The Biden Administration is doing everything in its power to erase all that the Trump Administration did simply because of the name Trump. My office learned about this news late Friday afternoon with no warning and months after the Administration rescinded other states’ Medicaid waivers. This timing and lack of communication shows that the Administration is trying to bury the fact that they did this politically motivated deed," Congressman Michael Burgess, MD (R-Highland Village) said.

"This afternoon's Biden Administration waiver rescindment is encouraging for all of us seeking to overcome the deplorable distinction of having more uninsured citizens in Texas than any other state in the nation," Congressman Lloyd Doggett (D-Austin) said.

9. Legislation for Paid & Incurred Personal Injury Lawsuits & Medical Care Sits on Senate Floor
SB 207 and HB 1617, which would address payments made to physicians and hospitals that result from personal injury (paid and incurred) cases, is sitting on the Senate floor waiting fro a vote.

As written, the House version's committee substitute would do two things:

  • Allow a physician or hospital to have the jury or judge determine fair compensation for a service. However, it is written in a broad manner, and it could all types of payment benchmarks, such as Medicaid and Medicare, to be introduced as evidence. In addition, it would allow for discoveries.
  • A new option that was added in the House version would eliminate discovery for a physician or hospital service if the physician or hospital does not charge more than 150 percent of the Workers' Comp fee schedule.
10. 42 Days Remain in Austin: TOA's Checklist of MSK Issues This Week
A Little Over a Month to Go
We're now down to 42 days of the Texas Legislature (it ends on Memorial Day). Other key deadlines include 23 more days for House bills (HBs) to be printed on the final House calendar and 34 more days for Senate bills (SBs) to be printed on the final House calendar.

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.

Physical Therapists Asking for Primary Care Co-Pays
The physical therapists will receive a hearing in the House Insurance Committee this week on a bill, HB 2988, that would require commercial health insurance plans to limit patient co-pays for physical therapy to the same co-pay as what is charged for primary care.

The physical therapists are arguing that they are now "primary care providers."

Another Look at Out-of-Network Payments?
SB 1264 in the 2019 Texas Legislature ended balance billing for health plans that are regulated by the state of Texas. (Balance billing for ERISA plans ended when Congress passed its end-of-year package at the end of December 2020.)

However, EMS agencies enjoy one of the only exemptions under both state and federal law: they may continue to balance bill patients. Both state and federal lawmakers responded to the EMS argument: If EMS agencies cannot properly bill for their services, then taxes will have to be raised or services will have to be eliminated to cover the gap.

Legislation was introduced in the 2021 Texas Legislature, SB 999, which would have eliminated an EMS agency's ability to balance bill. As written, EMS agencies would not have been able to have opted into the physicians' arbitration program to dispute payments. Instead, they would have been relegated to non-binding mediation.

The Senate committee ultimately passed legislation last week that would allow EMS agencies to continue to balance bill while the Texas Legislature studies the issue over the next 18 months leading up to the 2023 Texas Legislature.

SB 999 will work its way through the Senate and possibly through the House, and SB 999 is a germane vehicle for tinkering with 2019's law, SB 1264. Physician groups will closely watch SB 999 for harmful amendments to the physician arbitration law.

Other Workers' Comp Bills
HB 3622 by Rep. Cole Hefner (R-Tyler), which would encourage TDI-DWC to reinstate several physicians who were removed from the Workers' Comp network before 2007, was heard in its House committee last week and voted out the following day. The bill will be sent to the Local & Consent Committee to be set on the House floor.

Bobby Hillert | Executive Director
Texas Orthopaedic Association
Bobby@toa.org | 214.728.7672 m
Texas Orthopaedic Association www.toa.org