State legislators in the Northeast have focused much energy on improving healthcare delivery in 2019. Bills in New Jersey address paid family leave, elective angioplasty and death with dignity. Bills targeted to improve health insurance access, options and cost are proposed in Pennsylvania, Connecticut, Maryland and Delaware. Rhode Island has passed a Reproductive Privacy Act, and West Virginia has expanded its medical cannabis program. Washington, D.C., has established a commission to make recommendations to transform healthcare delivery. Also affecting healthcare will be the upcoming elections in New Jersey and Virginia.
Each legislative change in healthcare delivery enacted in each individual state affects the health of our nation and everyone in the field of medicine.
Assembly Bill No. 5639/Senate Bill No. 3819. Patient Protection Act:1
This legislation proposes a consumer protection bill that would require hospitals and physicians to disclose more information before referring or transferring patients to an out-of-state healthcare provider.
Under the legislation, patients would be informed of their right to receive care from the provider of their choosing. They also would receive the clinical reasoning for an out-of-state referral or transfer, the location of the recommended provider and a list of any in-state providers offering a similar service.
Specifically, the legislation requires that, prior to obtaining consent to transfer a patient to a healthcare facility located outside the state, the healthcare professional seeking the transfer is to provide the patient, in writing and in a manner that is easily understood, the following information, which is to be documented in the patient record: the patient’s right to receive medical care at a healthcare facility of the patient’s choosing; the clinical basis for the patient’s proposed transfer to an out-of-state facility; the availability of clinically appropriate services at healthcare facilities within the state or a determination that no such clinically appropriate services are available in the state; in the case of a trauma-related, stroke-related or cardiovascular-related diagnosis, a determination as to why the patient is not being transferred to a Level 1 or Level 2 trauma center, designated certified comprehensive or primary stroke center or a licensed cardiac surgery center in the state, as appropriate; and if the healthcare facility is affiliated with the out-of-state facility, the nature of the relationship between the facilities.
In addition, the healthcare facility will be required to notify the patient’s health insurance carrier or self-funded health benefits plan sponsor of the pending transfer and facilitate communication between the patient and the patient’s carrier concerning the following: the network status of the healthcare facility located outside the state and whether the specific medical services provided by that healthcare facility are covered under the patient’s health benefits plan and any estimated out-of-pocket costs the patient would incur as the result of being transferred to a healthcare facility located outside the state.
Under the bill, a healthcare facility that transfers a patient to an out-of-state healthcare facility without an opportunity to notify the patient’s health insurance carrier is to be required to certify that the patient notice requirements under the bill have been met.
The bill also stipulates that, in the case of a patient in need of pediatric care, a healthcare facility or a healthcare professional providing such services would be exempt from the requirements of the bill.
Several New Jersey healthcare systems defend the legislation, saying it will give patients more consumer information to make informed decisions. “A transfer to an out-of-state facility can be a distressing experience for patients and their families,” said bill sponsor Senator Singleton. “They should be provided with all the information they need to make the right decisions and to prepare for the change, including costs and other options. They should not be hit with unexpected expenses and inconveniences at the last minute or after the fact.”2
However, some New York- and Philadelphia-based health systems that regularly accept patients from New Jersey hospitals have raised concerns regarding the potential impact on patients’ care. Opponents of the legislation feel that compiling that information could take doctors anywhere from hours to days and creates unnecessary duplication of measures already in place at certain facilities. Additionally, many feel that reaching insurers to compile the required information in the middle of the night can be virtually impossible, causing unnecessary delays and perhaps more questions than answers for patients.
Margaret Burke, part of the senior leadership team for New Jersey- and New York-based Memorial Sloan Kettering Cancer Center, said when a decision is made to transfer a New Jersey patient out of state, the patient, family and physicians are part of the process. “To pause at points in that care to satisfy the criteria in the bill, given we’ve addressed the financial risk up front, minimally could feel disjointed and confusing to our patients,” Burke told legislators. “But more importantly, add unnecessary delay and burden at a time when a patient feels vulnerable and anxious.”3
The legislation was approved in May 2019 by the full New Jersey General Assembly but has yet to be approved by the Senate due to lack of support. The sponsors will continue to work on the legislation and consider some amendments to find a middle ground on the legislation.
Assembly Bill No. 3769/Senate Bill No. 2427. Elective Angioplasty:4 After nearly a decade of discussion, community hospitals are hopeful New Jersey will expand access to elective angioplasty, a common, lucrative and potentially lifesaving procedure that is permitted only at certain facilities. This bill would require the Department of Health to license certain qualifying hospitals to provide full-service adult diagnostic cardiac catheterization, primary angioplasty and elective angioplasty services.
The legislation would allow the Department of Health to approve applications from hospitals seeking to add non-emergency angioplasty services if they meet certain requirements. Among other things, the facilities would need to have been performing the procedure at least 250 times a year on an emergency basis; additionally, they must sign a formal agreement to transfer patients to a full cardiac-care center if something goes wrong.
Under current New Jersey law, 29 hospitals are licensed to use angioplasty to diagnose and treat patients in both emergency and less-urgent elective situations.
Another 25 facilities, generally smaller, community hospitals in the seven less-populous counties, are permitted to diagnose arterial blockages, but they can treat the issue only when it is considered an emergency. Patients who do not face imminent danger must travel to one of the hospitals licensed to handle both in order to have an elective procedure.
Sponsors of the legislation, Zwicker, Freiman and Downey, stated, “This piece of legislation will help to give patients increased access to high-quality cardiac care services. This bill institutes quality and safety standards for more hospitals in our state and, by allowing them to perform elective angioplasty procedures, we are ensuring all of our residents are getting the highest level of care.”5
The legislation passed the General Assembly in May and is waiting for a full vote in the Senate.
New Jersey Death with Dignity Update
On August 14, 2019, a state judge granted a request to stop the New Jersey law Medical Aid in Dying for the Terminally Ill Act from going into effect. The law, which took effect on August 1, 2019, required a two-week waiting period before a physician could fill a patient’s prescription. State Superior Court Judge Paul Innes granted the temporary restraining order at the request of a physician from Bergen County who opposes the law for religious and professional reasons.
Judge Innes sided with the plaintiff, Dr. Yosef Glassman, who argued that although the law took effect August 1, the Murphy administration had not yet written the rules governing the practice, “rendering the entire death process wholly unregulated.”6
Attorney General Gurbir Grewal filed a request on Friday, August 16, 2019, asking the State Supreme Court to dissolve the temporary restraining order that Superior Court Judge Paul Innes had granted. Grewal also filed with a state appeals court, which agreed to take the case but did not immediately dismiss the restraining order.
On August 27, a New Jersey appellate court reversed the lower court’s order, again permitting physicians to prescribe medications to terminally ill patients. The ruling means doctors can begin prescribing the lethal medication as the law allowed. The appellate court disagreed with Judge Innes and said state agencies and regulatory boards did not need to establish rules before the law could go into effect. “Further, there is no indication that any of the administrative agencies and organizations identified in the Act determined that rulemaking was necessary prior to August 1, 2019,” the court wrote.7
New Jersey Elections
A general election will be held in New Jersey on November 5, 2019. The state positions up for election this cycle are all 80 seats in the New Jersey General Assembly and one Senate special election. In addition to the State Legislative elections, numerous county offices and freeholders as well as municipal offices are up for election. There are no statewide questions currently on the ballot this year though some counties and municipalities may have local questions. Non-partisan local elections, some school board elections and some fire district elections are also scheduled throughout the year.
The one special Senate election will be held in the 1st Legislative District to complete the unexpired term of Jeff Van Drew. Senator Van Drew resigned on January 2, 2019, following his election to Congress. On January 7, Democratic Committee members in Atlantic, Cape May and Cumberland Counties selected Assemblyman Bob Adrzeiczak as the appointed replacement, and he was sworn in on January 15, 2019.
The one race to watch is legislative District 25 (Morris and Somerset Counties), where longtime incumbent Assemblyman Bucco (R) and his running mate Brian Bergen (R) are fighting a challenge from Lisa Dhimani (D) and Darcy Draeger (D).
In the 2017 race for State Assembly in New Jersey’s 25th District, Republican incumbents Michael Patrick Carroll (R-Morris Township) and Anthony M. Bucco (R-Boonton) won re-election by an unusually narrow margin in a legislative district that hasn’t voted for a Democrat for State Assembly since 1977.
The Democrats currently hold a 54 to 26 majority in the General Assembly and hold a 26 to 14 majority in the Senate.
The 2019 Virginia elections will take place on November 5, 2019. All 40 seats of the Senate and 100 seats in the House of Delegates are up for re-election as well as many local offices.
Virginia is the only state in the nation where partisan control of the Legislature is up for grabs this fall. The Republicans currently hold a 51 to 49 majority in the House of Delegates and hold a 21 to 19 majority in the Senate.
With political leaders searching for signs of what to expect from voters across the country in 2020, Virginia’s legislative elections are viewed as an early test case, both as a measure of Democratic momentum against Republican control and for what they may reveal about voters’ attitudes on policy issues and campaign messages.
While off-year elections tend to favor Republicans, Virginia’s demographic trends have been helping Democrats the last couple of election cycles. The state’s growing cities and suburbs are becoming more diverse and liberal, while conservative-leaning rural parts of the state are losing political clout.
In 2017, Democrats made unexpectedly large gains, picking up the Governor and 15 State House seats. That was still one short of a tie and two short of a majority, but Democrats are convinced they can make up the extra ground the next time around. Flipping close legislative chambers such as the ones in Virginia is clearly doable. Last election, Democrats showed strength in suburban Virginia and are hoping to build on those gains to challenge Republicans.8
House Bill No. 3. State-Based Exchange Legislation:9 On July 2, 2019, Governor Tom Wolf signed this bill (a historic reform to health insurance that creates an online exchange operated by the state in lieu of the federal government) into law. This legislation sponsored by Representative Cutler provides for lower premiums and increased access to health insurance by developing a state-based health insurance exchange and a new reinsurance program. The state-based exchange is expected to save money for those purchasing plans on the exchange.
“This bill is a huge step toward making health insurance affordable and effective for all Pennsylvanians,” Governor Wolf said. “It’s pretty rare for a program to come along where everyone pays less, but that’s exactly what this does. And I’m so proud of my colleagues for recognizing this as a priority and moving it along quickly. I want Pennsylvania to be a leader on healthcare reform, and I want no Pennsylvanian worrying about affording the care they or their loved ones need.”10
Premiums could decrease an additional 5 to 10 percent from what they would otherwise be in 2021, officials said. That savings would be especially beneficial to consumers who earn too much to qualify for financial assistance and are strained by insurance prices. The savings would come from a 3.5 percent user fee that insurers will pay to the state on all plans sold through the exchange; that fee was formerly passed on to the federal government for operating healthcare.gov. Insurers in Pennsylvania paid about $98 million in 2019 and are expected to pay about $88 million in 2020, when the fee drops to 3 percent.
Through a federal waiver, the state will create a reinsurance fund that will directly pay some of the healthcare costs for high-cost individuals, which will lower premiums for other insured Pennsylvanians on the individual market; the fund will also reduce the approximately $2 billion cost for healthcare premium subsidies to assist low-income individuals. The reinsurance fund will be created from savings from the decreased operational costs of the new exchange and federal savings that will save Pennsylvanian consumers up to $250 million in annual health insurance premiums.
The state-based exchange is expected to be operational as early as January 1, 2021.
House Bill No. 7267/Senate Bill No. 134. Public Health Option:11 This proposed bill, advanced by the Insurance and Real Estate Committee, would allow nonprofits and small businesses to buy into the state’s public health plan.
The bill would establish a program called ConnectHealth for individuals working for businesses with 50 or fewer employees who lack employer-sponsored health plans. According to estimates, the public option would roll out as early as 2021. Before then, the program must produce numerous analyses and plans detailing the impact of the health plan on the state insurance market, providers and patients.
Under the legislation, the state would design the benefits and assemble the provider networks, then would “rent” the networks to private insurers. Participating carriers would have had to guarantee premiums 20 percent lower than those currently offered. The legislation also would offer state financial assistance to consumers, including people who earn too much to qualify for ACA premium subsidies, funded by reinstating a fee on people who do not buy health insurance. In addition, the bill requires insurers that serve state employees to also offer plans on the state’s Affordable Care Act exchange as a way to increase market competition and drive down premiums.
After months of debate, the legislation failed this year to garner enough votes for its passage, but Governor Ned Lamont has pledged to revive the issue next year. “I think we tried to do it too late. It’s a big, important reform, and you want to get it right,” he said. “Believe me, we’re going to revisit it. We’re going to bring it back….Maybe we do it in pieces, but we’re going to get it done.”12
House Bill No. 814/Senate Bill No. 802.13 Easy Enrollment Health Insurance Program: In May 2019, Governor Hogan signed legislation, sponsored by Senator Feldman and Delegate Pena-Melnyk, giving Maryland the first-in-thenation measure to make it easier for people without health insurance to find out if they qualify for low-cost insurance. On the state income tax form, residents can check a box indicating that they want to know if they qualify based on information provided on their tax form. The state’s healthcare exchange representatives will reach out to people who qualify for private coverage. Those who qualify for Medicaid will be enrolled automatically.
“We’ve been continuing to look for bipartisan ways to get more Marylanders health insurance,” said Senator Feldman. “We’ve made a lot of strides. About six or seven years ago, we had about 760,000 people without health insurance. Now, we’re down to 360,000, and in light of what’s happening at the federal level—the dismantling of the Affordable Care Act, the elimination of the mandate— we’re starting to see some backtracking on that. So, we came up with an idea here that’s first in the nation that you can use the state income tax return to check a box, and it will immediately opt in.”14
Commission on Healthcare Systems Transformation
Mayor Muriel Bowser established the Mayor’s Commission on Healthcare Systems Transformation to make recommendations on strategies and investments necessary to transform healthcare delivery in the District of Columbia.
“The District’s healthcare system is at a critical juncture,” said Mayor Bowser. “While our city is resource-rich in the kinds of healthcare we can offer residents, utilization of and access to those resources is not equitable. Together, with the support of this commission, we’re going to change that and ensure that Washingtonians in every corner of DC are getting the care they need to live healthy, happy lives.”15
The commission’s work will focus on alleviating these challenges by developing recommendations that address the current stresses in the District’s healthcare system while specifically targeting the following issues: improving access to primary, acute and specialty care services, including behavioral healthcare; addressing health system capacity issues for inpatient, outpatient, pre-hospital and emergency room services; and promoting an equitable geographic distribution of acute care and specialty services in communities east of the Anacostia river.
The commission is directed to make policy recommendations to the mayor by December 2019.
Senate Bill No. 35.16 An Act to Amend Title 18 of the Delaware Code Related to Health Insurance Contracts:
In August 2019, Governor John Carney signed this bill, sponsored by Senator Paradee and by two pieces of legislation that put provisions of the Affordable Care Act (Obamacare) into law.
SB 35 revises Delaware Insurance Code provisions related to the individual and group health insurance markets to directly incorporate into Delaware law the Patient Protection and Affordable Care Act’s (ACA) consumer protections related to the following: 1) the prohibition of preexisting condition provisions, 2) guaranteed issue and availability of coverage and 3) permissible rating factors. This Act also ties references in Delaware law to the Patient Protection and Affordable Care Act to that law as it was in effect on January 1, 2018. This ensures the ACA’s core consumer protection provisions will remain in place during the uncertainty surrounding the ACA in light of recent court challenges.
Senate Bill No. 92.17 This bill, sponsored by Senator Townsend, will provide dental coverage for all eligible adult Medicaid recipients.
“All Delawareans and Delaware families deserve access to quality, affordable health care,” said Governor Carney. “Both of these pieces of legislation will help us deliver on that promise. Senate Bill 35 will codify in Delaware law many of the protections in the Affordable Care Act, including protections for Delawareans with pre-existing medical conditions. And adults on Medicaid will finally have access to affordable dental coverage, which we know is important to overall health. Thank you to Senator Paradee, Senator Townsend and all members of the General Assembly for their partnership on this important issue.”18
Senate Bill No. 1037. Expanding Medical Cannabis Program:19 In May 2019, Governor Jim Justice signed this legislation, sponsored by Senate President Carmichael, amending the state’s emerging medical cannabis program.
The legislation specifically makes the following changes to the state’s medical marijuana program:
- Removes a requirement that a doctor must be present in a dispensary at all times
- Increases the allowable number of dispensaries in the state from 30 to 100 and removes a limit on the number of dispensaries allowed in one region
- Increases the number of dispensary licenses one person may hold from 2 to 10
- Removes a restriction that a grower or processor cannot own a dispensary
- Creates legal protections for state employees involved in the medical marijuana program
- Removes language requiring physicians to first consider other treatments, including treatments involving opioids, before issuing a marijuana certificate to a patient
- Allows the Department of Health and Human Resources to pre-register patients before the official July 1, 2019, date
House Bill No. 5125. Reproductive Privacy Act:20 In June 2019, Governor Raimondo signed into law this bill sponsored by Representatives Williams, Blazejewski, Alzate, Barros and Shanley. The new law provides that the state will not restrict the right to an abortion prior to fetal viability or afterward if an abortion is necessary for the health or life of the mother. The law defines fetal viability as that stage of gestation where the attending physician, taking into account the particular facts of the case, has determined that there is a reasonable likelihood of the fetus’s sustained survival outside of the womb with or without artificial support.20 The law also repeals older state abortion laws deemed unconstitutional by the courts.
“Today, I am pleased to sign that act into law,” said Governor Raimondo. “The legislation before me is the product of an important and vigorous debate and a great deal of public scrutiny. It codifies what has been the status quo under Roe v. Wade for nearly five decades. It protects a woman’s access to reproductive healthcare here in Rhode Island at a time when that access is under threat at the federal level and in states across our country. And, it keeps the most personal and difficult decisions of a woman’s life between her and her doctor—where they are today, and where they belong, regardless of continued assaults on the fundamental right to privacy.”21
This law takes effect immediately.
Jon Bombardieri is a Partner at CLB Partners, LLC, in Trenton, New Jersey.