For the first time since 2010, Pennsylvania did not have a new state budget in place when the fiscal year ended on June 30. Gov. Tom Wolf, a Democrat, and the Republican-dominated state House and Senate remained far apart on several significant issues, including the state income tax, the state sales tax, a natural gas extraction tax, property tax reform and education spending, liquor privatization and pension reform. On June 30 the House and Senate passed a no tax increase budget that did not address the governor’s proposed tax and spending increases, which Wolf promptly vetoed. Budget stalemates like these are not uncommon when control of state government is divided between the two parties, and while some are resolved quickly others drag on for months. As of this writing there is no way to predict how this one will play out. However, while the budget debate continues, there has been movement in the House and Senate on a number of health care-related measures.
Expanding Punitive Damages Cap
In 1996 the General Assembly enacted a cap on punitive damages that can be assessed against physicians in medical liability actions, limiting those awards to no more than 200 percent of the compensatory damages. In other words, if a jury awarded a plaintiff $100,000 for medical bills, lost wages, and pain and suffering, an additional award of punitive damages, if warranted due to egregious conduct by the defendant, could not exceed $200,000. Although punitive damages are rarely awarded against physicians in medical liability actions, this provision can play an important positive role, primarily in settlement negotiations, by eliminating the calculation that a runaway jury might issue an award that bears little or no connection to the seriousness of the injuries suffered by a plaintiff.
On June 25, 2015, the Senate passed SB 747, legislation that would extend this protection to personal care homes, assisted living communities, and long-term care nursing facilities, by a vote of 40-9. Three days later the bill was approved by the House Judiciary Committee, setting the stage for consideration by the full House.
These entities have been under assault from personal injury lawyers in recent years, and are seeking the same protection extended to physicians 19 years ago. While PAMED supports the bill, we’re watching it closely to make sure it doesn’t also become a vehicle for trial lawyer-generated amendments that would be counterproductive and poor public policy.
Licensure Board Reporting
SB 538, which would impose new reporting requirements on state licensees (everybody from crane operators to landscape architects to physicians and other health care professionals) who run afoul of the criminal law or another state’s licensing body, is one step away from the governor’s desk. The bill will require anyone who holds a license, certificate or registration issued by the Bureau of Professional and Occupational Affairs to, as a condition of licensure, certification or registration, report to their licensing board or commission within 30 days (1) any disciplinary action by a licensing agency of another jurisdiction; and (2) a finding or verdict of guilt, an admission of guilt, a plea of nolo contendere, probation without verdict, a disposition in lieu of trial or an accelerated rehabilitative disposition (ARD) of any felony or misdemeanor offense and any drug or alcohol related summary offense. Depending on the nature of the action reported, the licensing boards and commissions would be authorized to issue temporary suspensions where warranted. In the case of a legal commitment to an institution due to mental incompetency or a felony conviction under the Controlled Substance, Drug, Device and Cosmetic Act (or its equivalent in another state), the suspension would be automatic.
Approved 49-0 by the Senate on June 9, and 192-0 as amended by the House on June 28, all that remains is a Senate vote to concur with the House amendments. If enacted, the measure would go into effect in 60 days.
Oral Chemotherapy Insurance Coverage
Another bill that moved a step closer to enactment is HB 60, which provides that whenever a health insurance policy contains coverage for intravenously administered or injected chemotherapy medications to treat cancer, the policy may not provide coverage or impose cost sharing for an orally administered chemotherapy medication on a less favorable basis than the coverage it provides or cost sharing it imposes for intravenously administered or injected chemotherapy medications. The legislation would not preclude health insurance policies from requiring an enrollee to obtain prior authorization for the oral medication, and it only applies to oral chemotherapy medications where an intravenously administered or injected chemotherapy medication is not equally effective. That last point is controversial though, which could slow the process down.
The bill, which passed the House 197-3 back in February, was amended and approved by the Senate Banking and Insurance Committee on June 25, putting it in position for full Senate ratification. Senate approval would send the bill back to the House for concurrence in Senate amendments, a necessary step before the bill reaches the governor’s desk.
Alternatively, the same language is contained in SB 536, which passed the Senate 49-0 on June 28, and is now in the House Health Committee. As both chambers have overwhelmingly passed identical language, though in separate bills, it is clear that the measure has bipartisan, bicameral support, and one or the other is likely to reach the governor’s desk.
Pharmacists Administering Influenza Vaccine to Minors
On June 15, the Senate unanimously passed HB 182, legislation that will allow pharmacists to administer influenza vaccines to minors age nine and older. Because the upper chamber did not change the already House-passed bill, it went straight to Gov. Wolf, who signed it into law on June 26. Under the measure, pharmacists will have to obtain parental consent before administering influenza vaccine to anyone under age 18, and notify the minor’s primary care provider, if known, within 48 hours after administration of either injectable or needle-free vaccine.
Finally, pharmacists who administer influenza vaccine to minors will have to carry professional liability insurance coverage in the minimum amount of $1 million per occurrence or claims made. PAMED had opposed earlier bills that were far broader in scope, but does not object to HB 182 in its current form. The bill will go into effect in 60 days, in time for the fall influenza vaccine push.
Impersonating a Physician
Another bill signed into law by the governor is SB 485, which will increase the penalty for impersonating a physician. Under existing law, impersonating someone holding a professional license is a misdemeanor of the second degree, unless the intent of the actor is to harm, defraud or injure anyone, which makes it a misdemeanor of the first degree.
SB 485 makes impersonating a physician and then providing treatment or medical advice a first degree misdemeanor, regardless of whether or not the other person suffers harm. A second degree misdemeanor is punishable by up to two years in jail and a fine of up to $5,000. A first degree misdemeanor is more serious, carrying a possible prison term of up to five years and a maximum fine of $10,000. The bill will take effect in 60 days.
Banning E-Cigarette Sales to Minors
Progress was also made during the June flurry on legislation restricting the sale of e-cigarettes. On June 15 the House unanimously passed PAMED-endorsed legislation that would ban the sale of e-cigarettes to minors.
HB 954 would simply add “nicotine delivery systems,” specifically including e-cigarettes, to the existing law prohibiting the sale of tobacco products to minors. The following day the Senate moved a similar bill, SB 751, into position for consideration by that chamber in the near future, signaling that one of the two bills stands a good chance of making it to the governor’s desk.
Controlled Substances Database Update
On October 27, 2014, Gov. Corbett signed Senate Bill 1180 (now Act 191 of 2014) into law, authorizing the creation of a statewide controlled substance database. The system, which will be a valuable tool for prescribers and dispensers of opioid medications to identify doctor-shopping patients, was supposed to be up and running by June 30, 2015.
However, the legislature did not appropriate any money to fund the construction and operation of the database, and the process is behind schedule. Gov. Wolf has included $2.1 million in the 2015-2016 state budget to cover those costs, and legislative leaders seem supportive. However, those funds may be held up until the currently ongoing budget battle is resolved. Administration officials have signaled that they hope to have the database operational by the end of the year.
