April 4, 2021
1. New Twist on Personal Injury Payments; Tied to Workers' Comp?

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

3. Optometrists Push for Mid-Level Surgery in TX; Where Is Your Lawmaker?

4. Bundled Payment Discussion Coming To Austin on Wednesday

5. TOA Is Coming to San Antonio on Monday, April 5; Surgeons Are Invited
6. Medicine Is Split on All-Payer Claims Database Legislation in Austin This Week

7. Anesthesiologists Sue UnitedHealthcare; Competition Concerns

8. Podiatrists Make Case to Remove GME Funding From MD/DO Training

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

10. 56 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. Texas Legislature Continues Debate on Personal Injury Payments; Tied to Workers' Comp?
A Texas House committee will consider the legislation that would address physician compensation for work related to personal injury cases, SB 207 and HB 1617, on Tuesday.

Several dozen physicians testified against SB 207 in the Senate committee on March 29 due to the following reasons:

  • The committee substitute for SB 207 was written in a broad manner, and it could all types of payment benchmarks, such as Medicaid and Medicare, to be introduced as evidence.
  • The substitute did not address unnecessary discoveries.
  • Any individual, regardless of the individual's medical expertise, would be able to counter charges under the substitute.

The House delayed its hearing last week to address some of these changes. Click here to view the House's substitute language, which will be considered in the House committee on Tuesday.

The latest version would eliminate discovery for a physician's services if the physician does not charge more than 150 percent of the Workers' Comp fee schedule. Hospitals would have their discovery eliminated if the amounts do not exceed one-half of the lowest amounts stated in the hospital's publicly posted billing rates or publicly available charge description master or chargemaster for each medical service.

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 continues to focus on the fact that the FAIR Health database should serve as the payment data point, not a benchmark that is tied to the Medicare rate. The FAIR Health database worked for the Texas Legislature in regards to solving the surprise billing debate for out-of-network payments, and it should be applicable to this debate.
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. Optometrists Continue Their Push for Mid-Level Surgery in TX; Where Is Your State Rep.?
Two weeks ago, the Texas Legislature featured a debate on scope of practice expansion as a Texas House committee looked at APRN/CRNA independent practice bills and a Senate committee looked at giving surgical privileges to optometrists.

Last week, the Texas Senate committee chose to not hold a hearing on APRN/CRNA independent practice, and it appears that the Senate will not give them a hearing this week, either.

However, the Texas House Committee on Public Health did push forward with a hearing on optometric surgery last week. Ultimately, a number of the members of the House committee expressed concern that the legislation would give optometrists the ability to perform over 100 surgeries after completing a certificate course, which is cited as a 32-hour course in other states that allow optometrists to perform surgery.

The optometry bill's Senate sponsor, who is also the chair of the committee, was not able to vote the bill out of committee last week; he did not have enough votes at the time.

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).

Click here to view TOA's "issue focus" on the scope of practice issues.

State Representatives Who Support Optometrist Surgery
A number of state Representatives have co-authored HB 2340, which means that they support surgical privileges for optometrists. The co-authors include:

  • Rep. Stephanie Klick, RN (R-Fort Worth)
  • Rep. Jeff Leach (R-Plano)
  • Rep. Eddie Lucio III (D-Brownsville)
  • Rep. Trent Ashby (R-Lufkin)
  • Rep. Cecil Bell (R-Magnolia)
  • Rep. Jeff Cason (R-Bedford)
  • Rep. Dan Huberty (R-Houston)
  • Rep. Matt Krause (R-Fort Worth)
  • Rep. Ray Lopez (D-San Antonio)
  • Rep. Mayes Middleton (R-Galveston)
  • Rep. Ina Minjarez (D-San Antonio)
  • Rep. Penny Morales Shaw (D-Houston)
  • Rep. Christina Morales (D-Houston)
  • Rep. Candy Noble (R-Murphy)
  • Rep. Tan Parker (R-Flower Mound)
  • Rep. Jerad Patterson (R-Frisco)
  • Rep. Eddie Rodriguez (D-Austin)
  • Rep. Bryan Slaton (R-Royce City)
  • Rep. David Spiller (R-Jacksboro)
  • Rep. Tony Tinderholt (R-Arlington)
  • Rep. James White (R-Woodville)
4. Bundled Payment Discussion Coming to Austin on Wednesday
A Texas House committee will consider a bill on Wednesday that would direct the Employees Retirement System of Texas (ERS), which covers nearly 1 million lives, to create a bundled payment program within its health plan.

The legislation, HB 571, is broad: It does not specify what services must be bundled. As a result, it would leave the discretion up to ERS as to what services, if any, to bundle. In addition, ERS does not need legislative authority to create bundles; it is able to do so now on its own.

TOA has been asked by the bill's author to speak on bundled payments at the hearing, and TOA will discuss the experience related to Medicare's Bundled Payments for Care Improvement (BPCI-A) program.
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. Medicine Is Split on All-Payer Claims Database Bill This Week; Family vs. Anesthesiologists
The Texas Academy of Family Physicians (TAFP) is pushing legislation that will be heard in a House committee this week that would create an all-payer claims database (APCD) for the state of Texas. HB 1907 will be heard in committee on Tuesday.

TAFP is pushing legislation because key leaders in the organization believe that an APCD could be used to support private practices. The Texas Society of Anesthesiologists (TSA) will be in opposition. The Texas Medical Association will determine its position on Monday. However, it will be challenging due to such a large split in medicine.

Click here to view a background document from TAFP, and this document will explain the concept. A committee substitute will be introduced, and it would create a stakeholder advisory group to determine the use and reporting of any data submitted. Data collection would be required to align with national, regional, and other uniform all-payer claims databases' standards where possible.  

Ultimately, the Legislature will have to examine APCDs in other states, such as Colorado, and determine if their health care systems have lower costs and higher quality outcomes for patients as a result of APCDs.

The following is a look at the pros and cons from the National Conference of State Legislatures, which is a conservative think tank for state lawmakers.
7. Texas Anesthesiologists Sue UnitedHealthcare; Competition Concerns
The New York Times reported on a lawsuit by U.S. Anesthesia Partners (USAP) in which the entity accuses UnitedHealthcare of anti-competitive practices in Texas and Colorado.

The New York Times wrote:

The lawsuits, filed Wednesday in Colorado and Texas, were brought by U.S. Anesthesia Partners, a sizable physician-owned practice backed by private-equity investors. The practice claims in the Texas lawsuit that United engaged in “unlawful tactics and pressure campaigns,” including “bribing” surgeons with contracts that paid them much more if they steered patients away from the group’s anesthesiologists.
8. Podiatrists Make Case to Take GME Funding From MD/DO Training
The Texas House Committee on Higher Education heard HB 2509, which would direct some of the state's GME funding for the training of MDs and DOs to the new podiatry school at the University of Texas Rio Grande Valley, which will admit its first class in the fall of 2022.

The Texas Legislature authorized a podiatry school for the state of Texas, and the University of Texas determined several years ago that they would implement the state's first podiatry school in the Rio Grande Valley.

The podiatrists and lawmakers supporting HB 2509 indicated that a podiatry school is necessary to meet the Rio Grande Valley's diabetic concerns.
9. The Medicare Sequester Is Almost Fixed; Will CMS Hold Claims?
CMS announced that it will hold claims until Congress can return in a few weeks to finalize the Medicare sequester moratorium.

Per TOA's last newsletter:

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.

10. 56 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.

Preventing Commercial Health Insurance Company Retaliation
TOA will testify in support of a bill, HB 2929 by Rep. Greg Bonnen, MD (R-Friendswood), that would protect physicians from retaliation by commercial health insurance companies.

Click here to learn more about the problem and the solution.

Funding for Your PMP Software
The Texas House included funding for the state to once again acquire software licenses so that physicians can integrate the state's prescription monitoring program (PMP) database into EHRs through Appriss.

The funding mechanism will be debated once the House and Senate hold a conference to finalize the state's budget.

Organized Medicine's Message on Opioids
TOA and organized medicine will provide a response to Rep. Four Price (R-Amarillo), the author of two concerning bills related to opioids, 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.

Attorney General's Opioid Settlement Dollars
A House committee will examine the state's opioid settlement and the oversight of those dollars by the Texas Legislature (as opposed to oversight by the attorney general). A House committee will examine a bill, HB 3365, related to the issue this week.

TOA is encouraging the Legislature to use some of the dollars to fully fund the state's prescription monitoring program integration software for physicians.

Texas Medical Board and Initial Board Specialization
A Senate committee will consider SB 1502, which would require the TMB to list a physician's specialty based on her initial board specialization.

Medical Billing Tax Relief: This Week's House
The full Texas House will vote on HB 1445, which would ensure that medical practices are not taxed for their outsourced medical billing. Click here to learn more about the legislation by Rep. Tom Oliverson, MD (R-Spring).

Once the bill clears the House, it will move to the Senate. If the Legislature fails to pass the law, the tax will go into place later this year.

Exclude PPP Loans From Income for State Franchise Tax
A Texas Senate committee will consider SB 372, which would update the state's franchise tax laws to address PPP loans. Per the bill analysis:

Congress has clarified that PPP loans are not considered income for federal tax purposes. Accordingly, an update to Texas franchise tax law is needed to ensure these businesses are not required to pay state franchise taxes on forgiven PPP loans.
S.B. 372 removes any forgiven PPP loan from a taxable entity's determination of total revenue as it relates to the entity's taxable margin for the purposes of calculating its franchise tax obligation and allows qualifying expenses paid with PPP loan proceeds to be included in a taxable entity's determination of cost of goods or in their determination of compensation.

A New Type of Health Insurance Through the Farm Bureau
The Texas Farm Bureau will push legislation in House and Senate committees this week that would allow the Farm Bureau to sell health insurance to its members that would not meet some of the Affordable Care Act requirements.

Click here to learn about HB 3924 and SB 1973.

Austin: Pricing Disclosure Bills
The Texas Legislature is continuing to push pricing disclosure bills. A bill that follows up on the Trump administration's hospital price disclosure rule for hospitals passed out of the Texas Senate last week. The companion - HB 2487 - will be heard in a House committee this week.

Low-THC Cannabis
The Texas House Committee on Public Health will hear HB 1535, which relates to the medical use of low-THC cannabis by patients with certain medical conditions and the establishment of compassionate-use institutional review boards to evaluate and approve proposed research program.

Physical Therapy Direct Access
The Senate Business and Commerce Committee will consider SB 455, which would update the state's physical therapy direct access laws to give board certified physical therapists the same level of direct access as those physical therapists who have completed a residency or fellowship.

Texas Orthopaedic Association www.toa.org