Legislative roundup

Monday, July 01, 2013 12:16 PM

Susan Koontz, JD, CMS General Counsel

Bills standardizing managed care prior authorizations and the Medicaid expansion highlight successful year

The Colorado General Assembly recently concluded a contentious session that resulted in the progression of medicine’s agenda launched several years ago. Key issues included historic Medicaid expansion, the enactment of a model law standardizing managed care prior authorizations and innumerable public health reforms ranging from reimbursement for end-of-life counseling to vaccinations for needy children and expansion of outpatient dialysis treatment. Colorado Medical Society’s Strategic Plan, now in its ninth year, anticipated and outlined those categorical goals for long-term advocacy. They are still a work in progress, and are now moving into preparations for the 2013-2014 election cycle and into the 2014 legislative session.

Pundits point to legislative ideas as “turtles on fence posts,” meaning that they don’t get there by themselves. “The remarkable health-care-related successes of this session, and those that preceded their efforts, don’t spring up spontaneously when legislators are sworn in every January,” explained CMS President Jan Kief, MD. “The groundwork that preceded these considerable advances in public health are the result of methodical, long-term planning and political engagement at the most intimate, grass-roots levels.”

“Medicaid expansion, and the almost completed work of the State Health Insurance Exchange had its roots in the 208 Commission, and now moves into the impending and ambitious agenda of the Governor’s Healthiest State Report, which builds on that institutional memory and momentum,” said CMS CEO Alfred Gilchrist. “The politics that drives the process that determines the policy results are complex, interdependent and mutually inclusive.”

CMS leaders from the grass roots to the grass tops were involved as these ideas were germinating, and are still involved now as fully formulated law and prospective legislation are being implemented or mobilized for enactment. The standardization of prior authorizations evolved from a yearlong voluntary collaboration between CMS and the health plans, working from a well researched and developed model provided and guided by AMA health attorneys, and had its antecedents in a long list of first-in-the-country managed care initiatives – standardized contracts, profiling-rating rights, clean claims reforms, physician rights in plan mergers or acquisitions, and prompt payment standards, to mention a few. “We have a near-decade-long history of engaging the plans, through ongoing advisory committees and ad hoc collaborations that continue to produce reforms to these vital but often contentious relationships,” said CMS Senior Director of Health Care Financing Marilyn Rissmiller, who has served on CMS’ physician advisory committee to UnitedHealthcare care since its inception in 2006.

The ongoing and successful resistance to trial lawyer lobbying for expanded malpractice causes of action and their relative value have been countered over the last seven years with patient safety reforms, a complex rewrite of Colorado’s professional review laws, several amicus briefs before the Colorado Supreme Court, and highly localized political engagement in swing districts where the trial attorneys were choosing sides. “We continue to counter the trial attorneys by reframing this almost ritualized debate in terms of the demonstrable failures of the tort system – i.e., to reduce the risk of an adverse result, to compensate a patient promptly and fairly, or to reduce the disproportionate number of meritless prosecutions,” said CMS General Counsel Susan Koontz, JD. “But this political environment gives the other side more leverage.”

Colorado’s state political environment has been edging more toward the Democratic side of the aisle for several elections, culminating in a substantive shift to solid majorities in both chambers in 2012. That transition generated tensions that allowed for more expansive views of health care financing and delivery. Similarly, expansive views in terms of patients’ rights, expanding damages from $150,000 to $350,000, along with an index that can escalate those limits in a lawsuit against public entities, or a new law allowing for a private right of action against an employer with 15 employees or less under instances of discrimination. “This is their marker to make the case for ‘updating’ Colorado’s non-economic damage cap, breach peer review immunities, and an array of related changes to ease the process for filing and pursuing a malpractice suit next session,” said John Conklin, JD, of the Martin Conklin law firm.

Similarly, barring a significant reversal of the current legislative composition in the next election, CMS leaders and advocates anticipate a vigorous, well-informed debate on how best to reduce the incidence of opiate abuse during the interim and into the next session. “Gov. Hickenlooper is part of a seven-state pilot created by the National Governor’s Association that has rounded up key stakeholders to set a policy course that is still sorting through the epidemiology of opiate abuse and successful case models,” said Gilchrist.

CMS Council on Legislation Co-chair Lee Morgan, MD, emphasizes the importance of the set up in the legislative process and the cyclical nature of policy development and enactment. “There is a quote adapted from Shakespeare’s “The Tempest” inscribed on a sculpture in front of the National Archives Building in Washington that says, the ‘past is prologue.’ Any given state legislative session is an episodic manifestation of the politics and policy work that grew from earlier sessions and elections. Even as our lawmakers have returned home to their private lives, we are setting the stage for the next legislative act, if you’ll excuse the double entendre,” she said.