Re: Support for SB 1243

To: Senator Charles Schwertner
Chair, Senate Committee on Health and Human Services

Mr. Chairman and distinguished members of the committee,

The Association of American Physicians and Surgeons supports SB 1243 allowing donation of unused prescription drugs.

This bill is a common-sense solution to safely increase the availability of expensive life-saving drugs to uninsured and under-insured low-income Texas patients without putting additional burdens on taxpayers.

Additionally, we support this bill as it correctly places trust in the patient-physician relationship to make appropriate decisions about life-preserving patient care.

We respectfully ask the committee to vote to recommend adoption of SB 1243.

Sincerely,

Jane Orient, MD
AAPS Executive Director

The Texas House Public Health Committee will be hearing testimony this Tuesday, March 10 at 8am, on HB 661, a bill that would bring the FSMB’s Interstate Medical Licensure Compact to the state and put unaccountable organizations in control of aspects of the practice of medicine in Texas.

AAPS will be testifying at the hearing about the dangers of this bill but we also need your help.  Please contact committee members TODAY and ask them to oppose HB 661.

This compact would harm Texas physicians and patients. Patients, for example, could be more easily pushed by insurers or health systems into seeing out-out-state physicians.  Independent Texas physicians would be at a competitive disadvantage, especially if they refuse to participate in ABMS-controlled MOC or AOA-controlled OCC.

Other influential patient and physician advocates are opposing this bill:

• Texas Right To Life has issued an alert warning about HB 661.
• The Alliance for Natural Health has also released an alert about the dangers of the Compact.

Copied below are more details about why the Compact must be stopped.

~AAPS

Texas House Public Health Committee Members:

Rep. Myra Crownover (512) 463-0582
Rep. Elliott Naishtat (512) 463-0668
Rep. César Blanco (512) 463-0622
Rep. Garnet Coleman (512) 463-0524
Rep. Nicole Collier (512) 463-0716
Rep. Sarah Davis (512) 463-0389
Rep. Bobby Guerra (512) 463-0578
Rep. Rick Miller (512) 463-0710
Rep. J. D. Sheffield (512) 463-0628
Rep. Bill Zedler (512) 463-0374
Rep. John Zerwas (512) 463-0657

————————————-

FSMB insults physicians and patients with attempt to defend power grab

Practicing physicians and their patients have legitimate concerns about the proposed “Interstate Medical Licensure Compact” now under consideration in at least fifteen states.

Friday, the Federation of State Medical Boards (FSMB), in an attempt to squelch critics, released a so-called “fact sheet” in which it endeavors to gloss over disturbing facts about the Compact.

But the wording of the Compact speaks for itself.

Here’s a review of what the real facts are:

FSMB Claim: “The Compact does not require a physician to participate in MOC.”

Truth: The Compact DEFINES a physician as one who “holds specialty certification or a time-unlimited specialty certificate recognized by the American Board of Medical Specialties or the American Osteopathic Association’s Bureau of Osteopathic Specialists.”

Unless you are one of the declining number of physicians with a lifetime certificate, MOC is required to maintain your board certification and thus required if you wish to be licensed through the compact.

The FSMB goes to great lengths to explain that, “[t]he Compact makes absolutely no reference to Maintenance of Certification (MOC).” HOWEVER their own definition of “physician” requires MOC for most physicians participating in the compact.

The American Board of Medical Specialties (ABMS), purveyor of the MOC programs required to maintain board certification, says it is pleased that the FSMB “included it [board certification] among its criteria for this Compact.” And in its statement praising the Compact, the ABMS admits that this “exceeds current state licensing requirements.”

The Interstate Compact puts physicians who do not participate in ABMS & AOABOS products at a competitive disadvantage.  A state legislature should not be passing laws that are handouts to such private, unaccountable organizations.

FSMB Claim: MOC will not be required as a condition of license renewal for physicians participating in the Compact.

Truth: Perhaps not yet, BUT the Compact language states “[t]he Interstate Commission is authorized to develop rules to address renewal of licenses obtained through the Compact.”

FSMB Claim: The Compact would not supersede state authority or change a state’s medical practice act. “It is the ultimate expression of state authority.” 

Truth: The Compact CLEARLY states that rules made by the Interstate Commission have “the force and effect of statutory law in a member state.”

The Compact also states: “All laws in a member state in conflict with the Compact are superseded to the extent of the conflict;”

and: “All lawful actions of the Interstate Commission, including all rules and bylaws promulgated by the commission, are binding upon the member states.”

No less than six times in the 28-page Compact, the “Interstate Commission” is “authorized to develop rules” that would apply to each participating state on a wide range of issues, including rules that would negatively impact physicians’ due process and privacy rights, e.g. “[t]he Interstate Commission is authorized to develop rules for mandated or discretionary sharing of information by member boards.”

Putting aside the ability of the commission to promulgate new rules, there are already a litany of shocking rules specified in the proposed Compact that harm a physician’s rights to due process.  Here are just a few:

• If disciplinary action is taken against a physician by a member board not in the state of principal license, any other member board may consider the action conclusive as to matter of law and fact decided;
• If a license granted to a physician by a member board is revoked, surrendered or relinquished in lieu of discipline, or suspended, then any license issued to the physician by any other member board shall be suspended, automatically and immediately…;
• Member boards shall share complaint or disciplinary information about a physician upon request of another member board;
• Member boards may report any nonpublic complaint, disciplinary, or investigatory information not required by Subsection (c) to the Interstate Commission;
• A subpoena issued by a member state shall be enforceable in other member states;
• Any member state may investigate actual or alleged violations of the statutes authorizing the practice of medicine in any other member state in which a physician holds a license to practice medicine;

In addition the Compact language appears vague regarding whether some of the above due process changes apply only to physicians participating in the Compact OR whether they might apply to ALL physicians in a state that signs on.

Imagine the impact of such rules if a state decides to make participation in a state or federal program (e.g. ObamaCare) mandatory for licensure.  A physician who refuses and has his or her license revoked could face severe challenges practicing in any state that participates in this Compact!

FSMB Claim: The American Legislative Exchange Council’s criticism of the Compact is unjustified because in the past ALEC has supported interstate compacts related to other matters.

Truth:  This is an epitome of a logical fallacy and is almost an insult to the intelligence of American physicians and patients.  ALEC – an influential and respected coalition of state legislators – passed a resolution opposing the Interstate Medical Licensing Compact because legislators at ALEC realized it is not in the best interest of the citizens of their states.

FSMB Claim:  The Compact won’t increase expenses for participating states, in fact it will reduce costs.

Truth:   When has the creation of a new bureaucracy ever reduced costs? We aren’t aware of one. The implementation of this Compact and creation of an “Interstate Commission” to oversee it will be expensive.  How much will it cost?  No one knows for sure.  The promise to states that it won’t increase costs is pure fantasy.

“This organization that is being formed is tremendous in its breadth and scope and it is going to cost a ton of money to fund it. We may find the funding born on the backs of the physicians of this state,” states South Dakota Senator Blake Curd, MD.

The Compact states: “the Interstate Commission may levy on and collect an annual assessment from each member state to cover the cost of the operations and activities of the Interstate Commission and its staff.”  This is “binding upon all member states.”

Here’s are some other ways the Interstate Commission is authorized to spend funds. It can:

• pay or provide for the payment of the expenses related to the establishment, organization, and ongoing activities of the Interstate Commission;
• establish and maintain one or more offices;
• borrow, accept, hire, or contract for services of personnel;
• purchase and maintain insurance and bonds;
• employ an executive director who shall have such powers to employ, select, or appoint employees, agents, or consultants, and to determine their qualifications, define their duties, and fix their compensation;
• lease, purchase, accept contributions or donations of, or otherwise own, hold, improve or use, any property, real, personal, or mixed;

South Dakota’s Senate added a provision stating that funding for the Compact can’t come out of the state’s general fund.  Who gets to pay for this Compact then?  Physicians will pay for it through increased licensing fees, possibly whether they participate in the Compact or not.

FSMB Claim: States can easily withdraw from the Compact. 

Truth: States joining the Compact are potentially signing a blank check. According to the Compact, a withdrawing state “is responsible for all dues, obligations, and liabilities incurred through the effective date of withdrawal, including obligations, the performance of which extend beyond the effective date of withdrawal.”

In addition, a state is obligated to remain in the Compact for an entire year after it decides to withdraw.

South Dakota Senator, Blake Curd, MD, sees it this way: “… we are signing up for an open-ended extended period of expenditure for this body that we will have very little over-sight over. Since I’ve been in Pierre that’s not how we do business.”

In closing, here is one more power the Compact grants to the Interstate Commission: It is granted the ability to: “seek and obtain trademarks, copyrights, and patents.”

We’re not sure what the commission intends to do with this power, but have seen other “non-profits” abuse them, e.g. the AMA’s CPT code monopoly and the ABMS’ proprietary MOC product.  Some physicians have had their careers ruined by punitive lawsuits filed by “non-profits” protecting their copyrights.

The fact that the FSMB claims about the Compact are so incredibly different from what the Compact actually says should be a strong warning to legislators considering passing this legislation.

Help STOP the FSMB from continuing its efforts to bury physicians in red tape.  Click here to read about steps you can take today, whether you are in a state considering the Compact or not.

On September 1, 2012 Texas law H.B. 300 takes effect and new bureaucratic medical record disclosure rules and penalties will apply to medical practices as well as “any person … who comes into possession of protected health information.” (Texas Health Code Chapter 181.001 as modified by HB 300)

Proponents of the law claim it protects patient privacy.  However, like HIPAA, the law provides for disclosure of patient records to certain third parties (for example insurance companies) without the patient’s authorization. (Texas Health Code Chapter 181.154 as modified by HB 300)

The law also gives additional authority to a public-private non-profit corporation (THSA) to develop statewide “standards for the electronic sharing of protected health information” and “a process by which a covered entity may apply for certification by the corporation of a covered entity’s past compliance.” (Texas Health Code Chapter 182 as modified by HB 300)

This law is yet another example of the counterproductive red-tape and bureaucratic interference that continue to push private-practice independent physicians out of practice.

AAPS is working to roll back the mistakes in H.B. 300 but below are key points physicians will need to know and comply with when it becomes law on Sept 1.

(Please note, even if you are not a covered-entity under the federal HIPAA law, these provisions of H.B. 300 apply to you per the definition of “covered entity” in Texas Health Code Chapter 181.001)

• Each covered entity shall provide a training program to employees (within the first 60 days of employment) regarding state and federal law concerning protected health information as it relates to the covered entity’s particular course of business; and each employee’s scope of employment. Employees must review this program at least once every two years.  Click here to view a sample training program.  A covered entity shall require employees receiving training to sign a statement verifying the employee’s attendance at the training program.  The covered entity shall maintain the signed statement. (Texas Health Code Chapter 181.101 as modified by HB 300)
• If a health care provider is using an electronic health records system that is capable of fulfilling the request, the health care provider, not later than the 15th business day after the date the health care provider receives a written request from a person for the person’s electronic health record, shall provide the requested record to the person in electronic form unless the person agrees to accept the record in another form. (Texas Health Code Chapter 181.102 as modified by HB 300)
• The sale of protected health information is prohibited, except “as otherwise authorized or required by state or federal law.” (Texas Health Code Chapter 181.153 as modified by HB 300)
• If there is an unauthorized electronic disclosure of a patient’s PHI, then the patient should be notified. (Business and Commerce Code Chapter 521.053 as modified by HB 300)
• A covered entity shall provide notice to an individual for whom the covered entity creates or receives protected health information if the individual’s protected health information is subject to electronic disclosure. (Texas Health Code Chapter 181.154 as modified by HB 300)
• A covered entity may not electronically disclose an individual’s protected health information to any person without a separate authorization from the individual or the individual’s legally authorized representative for each disclosure.  Authorization is not required if the disclosure is made for the purpose of treatment, payment, health care operations; or performing an insurance or health maintenance organization function or as otherwise authorized or required by state or federal law. (Texas Health Code Chapter 181.154 as modified by HB 300)
• Violations of the above and other sections of HB 300 can be penalized with fines up to $1.5 million dollars. (Texas Health Code Chapter 181.201 and Business and Commerce Code Chapter 521.151 as modified by HB 300)  Certain violations are a “state jail felony” offense. (Business and Commerce Code Chapter 522.002 as modified by HB 300)
• In addition to fines, a violation by an individual or facility that is licensed by a Texas agency (e.g. Texas Medical Board) is subject to investigation and disciplinary proceedings, including probation or suspension by the licensing agency.  If there is evidence that the violations of this chapter constitute a pattern or practice, the agency may revoke the individual’s or facility’s license. (Texas Health Code Chapter 181.202 as modified by HB 300)