Legislative Report for March 31, 2017
The honeymoon is over in the Oregon legislature. The first two months of session featured an odd sense of bipartisan cooperation with virtually no contested legislation appearing on the floor of either chamber. The camaraderie is coming to an end as the chamber of origin deadline nears and members face the reality that many of their policy initiatives will not move past the first major milestone of session. The deadline also represents a changing of temperaments as more divisive and partisan issues begin to take center stage.
The governor surprisingly fired three members of the Environmental Quality Commission on Wednesday. The announcement of their dismissal was buried in a press release that named their replacements. Less than, the former members have publicly condemned their dismissal as political retribution for their appointment of the governor’s former policy advisor against her wishes. Complicating the situation further will be the potential partisan backlash in the legislature over the decision to replace the only member of the commission from rural Oregon. Senate Republicans, who will almost certainly apply pressure on the confirmation process in the chamber, will try to capitalize on the unusual firing.
The first controversial bill moved through the Oregon House this week. The bill itself, a proposal to increase civil penalties on employers for pay disparities for women and minorities, was not the controversy. In fact, Republicans attempted to amend the bill on the floor to include veteran status as a punishable discrimination. Prior to the vote, rumors circled throughout the building the bill would be pulled to consider an amendment containing elements of the Republican proposal.
Our Oregon, an advocacy group for several public employee unions, sent an email accusing Republicans of obstructionism in the hours preceding the floor vote. Republicans moved forward with their attempt to amend the bill on the floor because of the email. This dragged the floor debate along for several hours and required leadership to cancel some committee hearings. The chamber ultimately passed the majority’s iteration of the bill, but the charade was more politics than it was policy.
Although the discourse in the building has been largely cordial up until this week, the weight of the looming partisan fights ahead on the budget, revenue and other divisive policy fights are difficult to miss among legislators. The unfortunate reality is the heavy lifting has not yet begun. We are no closer to a budget compromise than we were at the beginning of session, and a revenue package, no matter the size and scope, will demand a thorough vetting and negotiation if it has any chance of moving forward.
The tensions on display now are nothing compared to the bitter partisan warfare we expect to see later in session as more contentious issues take on new life. Traditionally, the chamber of origin deadline marks the demise of roughly half of all introduced legislation. The failure of a policy proposal to move forward in the process can often create a unique bitterness for a legislator, only adding fire to the tumultuous nature of our politics. It can be easy for lawmakers to immerse themselves in the divisive politicking of the state legislature, but they will need to set aside their differences and move beyond partisanship to address the serious challenges facing the state, its budget and its people.
Legislature considers two OPSO bills
The legislature considered two OPSO-specific bills this week. The first, SB 963, seeks to address the OMT reimbursement issues that many OPSO members are currently facing. The bill states that insurers cannot deny reimbursement for OMT or the Evaluation and Management based solely on the two procedures occurring on the same day. This bill received a public hearing late last week, and unanimously passed out of committee yesterday.
Your Pac/West lobbyists have been meeting with other members of the Oregon Senate to review the bill in advance of a vote on the full Senate floor. So far, we have not heard of any opposition to the bill. Additionally, the Chair and Vice Chair of the Senate Health Care Committee have agreed to sign on to a floor letter, which will be distributed to the entire Senate on the day SB 963 is up for a floor vote. We expect this to occur early next week.
The second OPSO bill, HB 3363, changes the way DOs are referenced in state statute. Currently, there are many listings of “osteopaths” and “osteopathy.” This bill would replace those with “osteopathic physicians” or “doctors of osteopathic medicine.” Rep. Ron Noble (R-Yamhill) is the chief sponsor of this bill. His son recently graduated from COMP NW and is now completing his residency. Both Rep. Noble and your Pac/West lobbyist Sabrina Riggs testified in support of this bill. There were no questions from committee members. We expect this bill to be posted for a work session sometime next week.
Senate returns to the debate over malpractice damage caps
In 2016, the Oregon Supreme Court drastically changed the legal precedent over civil actions seeking awards for noneconomic damages in its ruling in Horton v. OHSU. These civil actions have long been an issue in the courts, as they are across the country. In Oregon, specifically, the court has continually changed precedent as it looks for a sweet spot that balances the needs of victims seeking the recovery of damages and the financial security of defendants.
In the 1980s, the legislature established limitations for awards in civil actions pertaining to noneconomic damages. Soon after, the court ruled the limitations to be unconstitutional for common law actions (litigation allowable by case law and longstanding precedent) but maintained the limitations for any causes of action allowed because of a state law. In the Horton decision, the court overruled its previous decision and declared the legislature had the constitutional authority to set limitations on both statutory and common law claims. The ruling fundamentally changed the litigatory landscape by restraining the amount a defendant must pay a plaintiff.
The trial lawyers introduced legislation that would eliminate the legislatively established limitation on all cases involving noneconomic damages except for cases of wrongful death. The legislation, SB 487 and HB 2129, would also increase the limitation for wrongful death claims from $500,000 to $1 million and index the amount to inflation. The legislation has strong support by most Democratic members of both chambers, but there is a faction of moderate legislators in the Senate who have prevented the measure from moving forward, largely at the behest of the medical community.
This week, the trial lawyers introduced amendments to their bill in the Senate suggesting the legislation would effectively return to the pre-Horton legal framework. Before the court’s ruling in Horton, the courts had prohibited the limitation be applied against those common law claims, such as emotional distress, pain and suffering, and loss of consortium. The amendment proposed by the trial lawyers would eliminate the cap on all claims except for those of wrongful death, including those created in state law.
Because the amendment would expand the applied scope of the limitation, the amendment would go further than simply restoring the pre-Horton legal framework. However, the intricate legal nuances surrounding these cases are complicated even among lawyers, and untrained legislators cannot be expected to comprehend the full extent of the changes proposed in the amendment. Nevertheless, the trial lawyers are continuing to position the amendment as a return to pre-Hortonand some of the moderate-minded legislators who have opposed the amendments in the past have agreed to the amendment. Leadership is working to whip votes on the bill to pass it out of the committee and off the floor before the chamber of origin deadline. If the bill does not have the needed support, it will most likely be referred to the Rules Committee, where it will be kept on life support throughout session.
Anti-Vaccine Day in Senate Health Care
On Tuesday, the Senate Committee on Health Care heard several anti-vaccine bills. The bills would disallow employers from requiring vaccines as a condition of employment, require physicians to disclose potential risks of vaccines to parents and require providers to inform parents about vaccine exemption laws. Several parent advocates testified in support of the bills, sharing anecdotes intended to shed light on the horror of vaccines.
Physicians, hospital associations and other providers testified in opposition to the bills, citing sound science and the community health benefits of vaccines. Providers also testified that they are already required to discuss risks and benefits of any procedure, and that they already provide Vaccine Information Sheets (VIS), which are produced by the Centers for Disease Control and Prevention, to all parents and patients. The committee did not, and likely will not, vote to advance any of these anti-vaccine bills out of committee.
Non-physician concussion assessments
This Thursday, the Senate Health Care Committee held a public hearing on SB 217, which would allow naturopaths, chiropractors and other non-physicians to release concussed student athletes to play. This was not the first public hearing on this bill, which has received a lot of attention this session and in previous sessions. Sen. Elizabeth Steiner Hayward (D-NW Portland), and Sen. Arnie Roblan (D-Coos Bay) have opted to form a working group on the bill in hopes of finding middle ground on a concept that is continually opposed by physician groups.
The working group has produced several amendments to the bill, which, if adopted, would implement an online concussion-training program that must be completed by any provider or clinician who wishes to release athletes to play—regardless of their current professional training. Additionally, the amendment requires the person releasing athletes to carry $1 million in liability insurance. The amendment currently being considered would add psychologists, physician assistants, occupational therapists and physical therapists to the list of professionals permitted to release concussed athletes to play.
Chiropractors and naturopaths alike testified in support of the bill, likening their training to that of a family physician. Physician groups, including the Oregon Medical Association, pushed back, maintaining that an online course would not provide sufficient concussion training.
At the end of the hearing, Chair Laurie Monnes Anderson (D-Gresham) indicated that this is a bill she would like to eventually pass but doubts that consensus can be reached this session.
This week, the House Health Care Committee scheduled a work session on HB 2339, a DCBS bill that would ban balance billing. Over the last few months, DCBS has held two stakeholder meetings on this bill. The stakeholders included patient advocates, insurers and providers. Insurers, in conjunction with DCBS, have been pushing to tie out-of-network reimbursement rates to a percentage of Medicare. Providers have been adamantly opposed to Medicare rates, and have been pushing to tie reimbursement rates to the 80th percentile of an unbiased, nonprofit database of charges, FAIR Health. During the second stakeholder meeting in early March, DCBS agreed to share their amendments with the stakeholders prior to the scheduling of any public hearing or work session. DCBS also agreed to share information on the Oregon Health Care Quality Corporation (Q Corp) database, which was suggested by insurers, as a middle-ground agreement.
Unfortunately, DCBS failed to uphold that agreement, and the stakeholders learned of the -2 amendments— which tie reimbursement rates to 175% of Medicare—when a work session was suddenly scheduled for last Friday.
The provider coalition was able to delay the work session until this Wednesday, which allowed more time for additional amendments to be drafted by legislative counsel. The -4 (provider) amendments tie reimbursement rates to the 80th percentile of an unbiased, nonprofit database of charges.
Chair Mitch Greenlick (D-Portland) was originally pushing for the -2 amendments, and maintains that providers already make enough money. This argument does not take the cost of medical school into account, nor does it consider the instability of Medicare, or the fact that lowering reimbursement rates for out of network care will only incentivize insurers to further narrow their networks.
The complexity of this bill became very apparent during Wednesday’s work session, which devolved into chaos. The committee did not adopt any amendments, and eventually opted to hold the bill over again until April 3.
On Wednesday, Chair Greenlick opened a work session on the bill, and asked for a motion to adopt the -2 (Medicare) amendments. Vice Chair Rob Nosse (D-Portland) made the motion, and Rep. Greenlick opened a discussion among members of the committee. Representative Knute Buehler (R-Bend) repeatedly expressed his concern about tying reimbursement rates to Medicare, and this seemed to resonate with Rep. Alissa Keny-Guyer (D-Portland), who asked Chair Greenlick to invite DCBS to the stand to explain the benefits of tying reimbursement rates to Medicare over the provider amendment.
There was an off-the-mic discussion between the committee administrator and Chair Greenlick, and Chair Greenlick suddenly announced that he was closing the work session and holding it over until Monday’s hearing. Following that chaotic hearing, we are now hearing rumors that Chair Greenlick will negotiate up to 225% of Medicare. The provider coalition maintains that tying reimbursement rates to any percentage of Medicare is unacceptable.