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2003 Health Care Legislative Update - Part 1: Highlights of the 2003 Legislative Session

The General Assembly adjourned on April 7, 2003 and the Session actively concluded when the Governor enacted legislation into State law during four separate signing ceremonies on April 8, April 22, May 13 and May 22. This year, as has been the case for the past several years, the Maryland Legislature was particularly active in the health care arena. The Legislature passed, and the Governor signed, a substantial number of important health care laws. So that we might better serve our health care clients, Whiteford, Taylor & Preston, LLP is introducing a separate legislative update that focuses solely on health care and health care-related legislation. This inaugural issue of the Health Care Legislative Update is intended to provide you with a broader overview of health care legislation that has been signed by the Governor and which impacts on you, our health care client.

• Consumer Protection – Maryland Consumer Protection Act – Private Rights of Action (SB 203) (07/01/03)

Alters the scope of the Maryland Consumer Protection Act to exclude private rights of action concerning injuries sustained as the result of professional services provided by a health care provider. This Bill should end the lawyer’s use of the Consumer Protection Act in medical malpractice actions to circumvent Maryland’s $350,000 cap on non-economic damages.

• Health Occupations – Department of Health and Mental Hygiene – State Board of Physicians (SB 500) (07/01/03)

Renames the Board of Physician Quality Assurance to that of the State Board of Physicians and continues the Board in accordance with the provisions of the Maryland Program Evaluation Act by extending the termination of the Board until July 1, 2007. The term of the current Board will expire on July 31, 2003. On August 1, 2003, the Governor, with the advice of the Secretary of the Department of Health and Mental Hygiene and the advice and consent of the Senate, will appoint the new Board of Physicians. Twenty-one members will comprise the Board of Physicians. Of those 21 members, 11 shall be practicing licensed physicians, at least one of whom shall be a doctor of osteopathy; one shall be a practicing licensed physician appointed at the Governor’s discretion; one shall be a representative of the Department nominated by the Secretary; one shall be a certified physician assistant appointed at the Governor’s discretion; one shall be a practicing licensed physician with a full-time faculty appointment selected from a list of names submitted by Johns Hopkins University School of Medicine and the University of Maryland School of Medicine; one shall be a public member (consumer) knowledgeable in risk management or quality assurance matters appointed from a list submitted by the Maryland Hospital Association. A consumer member of the Board may not have a substantial personal, business, professional, or pecuniary connection with a medical field or with an institution of medical education or a health care facility. As to vacancies on the Board, for each vacancy of a practicing licensed physician, the Board will be required to notify all practicing licensed physicians and professional organizations representing at least 25 licensed physicians in the State of the vacancy and to provide information regarding the selection process, to solicit nominations for the vacancy, and to forward a list of candidates to the Governor four months prior to an upcoming vacancy or two months after a vacancy occurs. The Governor may, in filling the vacancy, reappoint a member who has not served for more than two consecutive full terms or appoint a practicing licensed physician, providing there are not two physicians from that same medical specialty already serving on the Board. In addition, the Board shall fund the budget of a Physician Rehabilitation Committee (an entity with whom the Board contracts to evaluate and provide assistance to impaired physicians in need of treatment and rehabilitation for alcoholism, chemical dependency, or other physical, emotional, or mental conditions) with fees set, collected, and distributed to the Fund. (Physician Rehabilitation Services had previously been provided by MedChi from licensing fee resources.) After the Board reviews and approves a budget submitted by a Physician Rehabilitation Committee, the Board may allocate moneys from the Fund to the Physician Rehabilitation Committee. This Bill also alters the votes required in order to reprimand a physician; to restrict, suspend, or revoke a license; or to dismiss a case against a restricted license holder from the current requirement of an affirmative vote of the Board’s full authorized membership to an affirmative vote of a majority of its quorum. The Bill also establishes that factual findings must be supported by a preponderance of the evidence; however, factual findings must be supported by clear and convincing evidence if the charge of the Board is based on standard of care as provided in Sections 14-404(A)(22), 14-5A-17(a)(18), or 14-5B-14(A)(18) of the Health Occupations Article. Under certain circum-stances, if an allegation is based on Section 14-404(4) of the Health Occupations Article, failure of the physician to keep adequate medical records as determined by appropriate peer review, the Board may determine that an agreement for corrective action is warranted. This type of agreement would not be considered disciplinary action nor would it be made public. The Bill also requires the Board to enter into a written contract with a nonprofit entity or entities to provide investigatory physician rehabilitation and peer review services. Previously, most peer review cases had been referred to MedChi. The Bill also provides that if a physician has been noncompliant with the Physician Rehabilitation Committee for 60 days, the Committee is required to report the noncompliance to the Board. However, before the Board may take action against the physician, it is required to give the physician an opportunity for a hearing before a hearing officer at the Office of Administrative Hearings. In addition, the Bill provides for the Board to maintain a website that serves as the single point of entry where all physician profile information will be available to the public through the internet. Profile information will include medical education and practice information about the licensee as well as information relating to any final disciplinary action taken against a licensee by the Board. Such information will be added to the licensee’s profile within 10 days after the action becomes final. The physician profile will also contain the number of final judgments within the past ten years, the number of settlements within the past five years, if three or more resulted in judgments of at least $150,000, and shall contain a description of convictions, guilty pleas, or pleas of nolo contendere for crimes of moral turpitude reported to the Board. The Board shall also provide a mechanism for prompt correction of any factual inaccuracies in a profile. Finally, SB 500 provides that in conducting a Case Resolution Conference as provided in COMAR 10.32.02.03C(7), the State Board of Physicians shall provide an opportunity to appear before the Board to both the licensee who has been charged and the individual who has filed the complaint against the licensee giving rise to the charge.

• Elderly Persons – Conversion of Existing Accommodations to a Continuing Care Retirement Community (SB 360) (10/01/03)

Alters the continuing care law to provide for the process of taking a facility providing housing or shelter and converting that facility into a continuing care facility where residential accommodations exist and at least 60% of the available residential accommodations of the facility were occupied during the two previous fiscal years. All such providers are required to submit a statement of intent to provide continuing care at least 30 days prior to submission of a feasibility study. The requirements for a feasibility study have been modified to include the conversion of an existing accommodation to become a continuing care retirement community. The Bill also establishes minimum occupancy or reservation requirements in order for a facility to qualify for conversion; establishes the requirements for deposit agreements; clarifies operating reserve requirements, and prohibits a provider from terminating or failing to renew a lease for an accommodation in order to enter into a continuing care agreement for that accommodation.

• Health Care Facilities and Regulation – Assisted Living Facilities – Certification – Third Party Accreditation Programs (SB 553) (10/01/03)

Authorizes the Department of Health and Mental Hygiene to accept all or part of a specified accrediting report as meeting the State licensing requirements for the renewal of a license to operate an assisted living facility program; however, such a report is not acceptable to meet initial licensing requirements. The report shall be made available to the public on request. In addition, the Secretary is authorized to inspect an assisted living facility program to investigate a complaint, follow up on a serious problem identified by an approved crediting organization, or validate findings of an approved accrediting organization. Moreover, the Department of Health and Mental Hygiene, in consultation with the assisted living industry, is required to review its current payment rates, study the costs of providing services, and consider reimbursement options including an annual rate-setting formula based on the actual cost for assisted living services. The Department will prepare and submit a report on its findings to the General Assembly on or before January 1, 2004. In addition, the Department is required to conduct an evaluation of assisted living services in Maryland, in consultation with assisted living consumers and providers, and submit a report to the Senate Finance Committee and the House and Health and Government Operations Committee on or before January 1, 2004 listing recommendations relating to small and large providers of assisted living facilities, the certification of assisted living facility managers, and quality standards for specialized living facilities including those facilities with Alzheimer’s units.

• Health Insurance – Health Maintenance Organizations – Definition of Covered Service (HB 656) (10/01/03)

Provides that a service covered by a health maintenance organization (“HMO”) be rendered by a provider under contract with the HMO when obtained in accordance with the terms of the enrollee’s benefit contract or by a noncontracting provider when obtained in accordance with the terms of the enrollee’s benefit contract or pursuant to certain verbal or written referrals by (i) the HMO; (ii) a provider under written contract with the HMO; or (iii) preauthorized or otherwise approved by (i) or (ii). The Bill also provides for an exception to a HMO’s requirement that a referral or preauthorization be obtained in order for a trauma care center or trauma physician to render services to a trauma patient.

• Health Maintenance Organizations – Patient Access to Choice of Provider(SB 687) (10/01/03)

Requires health maintenance organizations to allow a certified nurse practitioner to be designated as a primary care provider, provided that a member who selects a certified nurse practitioner as a primary care provider be given the name and contact information of the certified nurse practitioner’s collaborating physician.

• Elderly Persons – Department of Aging – Continuing Care Retirement Communities – Regulation (HB 552) (06/01/03)

In determining whether a Community, whose existing operations became subject to the Continuing Care Contracts law, has met the 65% presales requirement, the Department of Aging (the “DOA”) may count the Agreements for continuing care services the Community entered into before the DOA issues a Preliminary Certificate of Registration to the Community, even if the agreements were not approved in advance by the DOA for use as a Continuing Care Agreement. These Agreements can be counted if: (1) they were entered into after October 1, 2002 but before issuance of the preliminary certificate are approved by the Department; and (2) they specify that: (i) the Community is in the process of applying for a Certificate of Registration from the DOA; and (ii) if the Community obtains the Certificate, (a) the Community offers contracts approved by the Department as Continuing Care Agreements to future subscribers and, (b) the resident will be entitled to rescind the resident’s existing Agreement and enter into a Continuing Care Agreement approved by the Department as a substitute for the original Agreement the resident entered into with the Community.

• Health Care Facilities and Regulation – Maryland Trauma and Emergency Medical Response System – Funding and Structure (SB 479) (07/01/03)

Establishes the Maryland Trauma Physician Services Fund. The purpose of the Fund is to subsidize the documented costs: of uncompensated care incurred by a trauma physician in providing trauma care to a trauma patient on the State Trauma Registry; of undercompensated care incurred by a trauma physician in providing trauma care to an enrollee of the Maryland Medical Assistance Program who is a trauma patient on the State Trauma Registry; incurred by a trauma center to maintain trauma physicians on-call as required by the Maryland Institute for Emergency Medical Services Systems; and incurred by the Maryland Health Care Commission and the Health Services Cost Review Commission to administer the Fund and audit reimbursement requests to assure appropriate payments are made from the Fund. The Maryland Health Care Commission and the Health Services Cost Review Commission will administer the Fund. The Fund will be made up of motor vehicle registration surcharges paid into the fund. Disbursements from the Fund will be made in accordance with a methodology established jointly by the Commission and the Health Services Cost Review Commission to calculate costs incurred by trauma physicians and trauma centers that are eligible to receive reimbursement.

• Health Insurance – Provider Panels – List of Providers (SB 672) (10/01/03)

Alters the manner in which health insurance carriers are required to provide to enrollees and prospective enrollees a list of providers on the carrier’s provider panel and information on providers who are no longer accepting new patients. Under the new provisions, a carrier is required to provide to an enrollee at the time of initial enrollment a printed list of providers on the carrier’s provider panel and printed information on providers that are no longer accepting new patients. A carrier will be required to notify each prospective enrollee and each existing enrollee at the time of renewal how to obtain the information on the internet or in printed form. Information provided in printed form will be updated at least once a year while information provided on the internet will be updated at least every 15 days.

• Health Insurance – Task Force to Study Access to Mental Health Services (SB 252) (07/01/03)

Establishes the Task Force on Access to Mental Health Services. The Task Force will consist of: (1) two members of the Senate of Maryland, appointed by the President of the Senate; (2) two members of the House of Delegates, appointed by the Speaker of the House; (3) the Secretary of Health and Mental Hygiene or designee; (4) the Maryland Insurance Commissioner or designee. In addition, the Task Force will include the following members appointed by the Maryland Insurance Commissioner—one representative of the commercial health insurance industry, one representative of a commercial health maintenance organization, and one representative of the managed behavioral health care industry. The Task Force will also include the following members appointed by the Secretary Health and Mental Hygiene: one representative of the Maryland Hospital Association and one representative of the Mental Health Association of Maryland. The Task Force will study and make recommendations regarding: whether any changes should be made to the mental health parity requirements under the Insurance Article and the Health General Article; the systematic barriers experienced by commercially-insured individuals when attempting to access community treatment; how to ensure that commercially-insured individuals have access to medically-necessary mental health services; the differences in mental health services coverage provided by the public mental health system, commercial health insurers, and commercial health maintenance organizations; the structure and effectiveness of the public and private mental health care delivery systems in the State; and the impact on the cost of health care coverage of any recommended changes to the coverage or delivery of mental health care services. The Task Force will issue a preliminary report on its findings before December 31, 2003 and a final report on or before December 31, 2004.

• Health Insurance – Coverage for Home Visits After Mastectomy or Surgical Removal of a Testicle (SB 39) (10/1/03)

Extends the September 30, 2003 termination date for insurance coverage for specified home visits following a mastectomy or surgical removal of a testicle.

• Health Occupations – State Acupuncture Board – Sunset Extension and Program Evaluation (HB 34) (10/01/03)

Continues the State Acupuncture Board in accordance with the provisions of the Maryland Program Evaluation Act (Sunset Law) by extending to July 1, 2015, the termination provisions relating to the statutory and regulatory authority of the Board. Requires that an evaluation of the Board and the statutes and regulations that relate to the Board be performed on or before July 1, 2014 and makes stylistic changes relating to the State Acupuncture Board.

• Health Occupations – Sunset Review – State Board of Nursing – Electrology Practice Committee (HB 376) (07/01/03)

Repeals the authority of the State Board of Electrologists and establishes the Electrology Practice Committee within the State Board of Nursing. The Board will adopt regulations for the licensure of electrologists and for the practice of electrology. In addition, the Board will set reasonable fees for the issuance of and renewal of licenses and other services it provides to electrologists. The Electrology Practice Committee will consist of five members appointed by Board; one consumer member and four licensed electrologists or licensed electrology instructors. Each electrologist member must have actively practiced in the State for at least five years immediately before being appointed to the Committee. In addition, each member is required to be a citizen of the United States and a resident of Maryland. The members will be appointed for four year, staggered terms. At the end of a term, a member continues to serve until a successor is appointed and qualifies.

• Health Occupations – Medical Review Committees (HB 164) (07/01/03)

Expands the category of medical review committees to include a center designated as the Maryland Patient Safety Center by the Maryland Health Care Commission.

• Health Occupations – Board of Physician Quality Assurance – Office-Based, Medication-Assisted Opioid Addiction Therapy (SB 224) (10/01/03)

Requires the Board of Physician Quality Assurance (renamed State Board of Physicians) to establish or designate a training program for physicians wishing to apply for a waiver to practice office-based, medication-assisted opioid addiction therapy. Also requires the Board, in cooperation with the Alcohol and Drug Abuse Administration, to develop an outreach strategy to educate opioid addicts about the availability of office-based, medication-assisted opioid addiction therapy.

• Health Occupations – Dental Hygienists – Supervised Practice in a Private Dental Office (SB 225) (10/01/03)

Authorizes a dental hygienist practicing with a general license to practice under the supervision of a licensed dentist who is not on the premises while the authorized dental hygiene services are being performed. Also authorizes a dental hygienist practicing under a general license to practice dental hygiene under the supervision of a licensed dentist in a private dental office and requires a private dental office supervising a dental hygienist to ensure specified licensing requirements are met.

• Health Occupations – Licensed Clinical Marriage and Family Therapists – Reciprocity (HB 259) (10/01/03)

Requires the Board of Professional Counselors and Therapists to grant a license to an applicant to practice clinical marriage and family therapy if the applicant is a Maryland resident, is licensed or certified as a marriage and family therapist in another state whose requirements are equivalent to or exceed Maryland’s requirements, submits an application to the Board, and pays the application fee set by the Board. Also requires the Board to adopt any regulations necessary for implementation.

• Health Occupations – Dentists and Dental Hygienists – Volunteer Licenses (SB 341) (10/01/03)

Establishes a volunteer dentist’s license and a volunteer dental hygienist’s license and authorizes specified dentists and dental hygienists to qualify for a volunteer dentist’s license to practice dentistry and a volunteer dental hygienist’s license to practice dental hygiene. To qualify for a license to practice dentistry, the applicant is required to hold a degree of Doctor of Dental Surgery, Doctor of Dental Medicine, or the equivalent, from a college or university that is authorized by any state or any province of Canada to grant the degree and is recognized by the Board as requiring adequate pre-professional, collegiate training and as maintaining an acceptable course of dental instruction. In addition, to qualify for a Volunteer Dentist’s license to practice dentistry, the applicant must hold an active license to practice dentistry in another State or the District of Columbia, complete the continuing education requirements that the Board establishes for a general license, provide dental services exclusively in the manner prescribed and immediately upon ceasing to provide services exclusively in the manner prescribed, shall surrender the volunteer license. To qualify for a license to practice dental hygiene, the applicant shall be a graduate of a school for dental hygienists that requires at least two years of education in an institution of higher education, is accredited by the American Dental Association Commission on Dental Accreditation, and is approved by the Board.