2021 GENERAL ASSEMBLY SESSION UPDATE
Prepared by: J. Steven Wise, Esq.| Schwartz, Metz & Wise, P.A. Attorneys
Whoever said that the 2021 Session of the Maryland General Assembly would be narrowly focused on a few issues because of the COVID pandemic could not have been more wrong. In fact, the pandemic had very little effect on the number of bills or subject matters that the Legislature took on. From the Budget, to healthcare, to police reform, and hundreds of other subjects, legislators considered 2,359 bills and resolutions, compared with 2,497 bills and resolutions during the 2019 Session. They remained in Session for the full 90 days, unlike 2019 when their work was cut short due to the onset of the pandemic. The annual meeting began at noon on Wednesday, January 10 and concluded at midnight on Monday, April 12.
While the pandemic did not affect the volume of bills, it profoundly changed the legislative process, possibly permanently in some ways. Pre-filing of bills was encouraged in case the Session was again cut short. This also allowed bill hearings to begin the day after Session began, rather than waiting until February as is usually the case. While the committees held virtual bill hearings, the full 141-member House and 47-member Senate met sparingly to reduce COVID exposure. Once the entire Assembly was vaccinated, and COVID case counts among the public slowed, meetings of the full House and Senate increased.
With the State House and legislative buildings closed to the public, there were few face- to-face discussions with legislators, posing challenges for those of us who ply our trade in the halls of the Legislature and for citizens who hoped to impact the outcome of legislation by paying a visit to Annapolis. Testimony on bills was taken by Zoom, a term unknown to many just 12 months ago. This was convenient for those who would normally have to travel long distances to testify, but it lacked the advantage of being able to fully observe legislator’s reactions to what was being said. Voting sessions of committees, normally not public, were also on Zoom, a change that may be permanent.
VIRTUAL ADVOCACY DAY
In light of rules adopted by the House and Senate and in keeping with Executive Orders regarding social gatherings, it was not possible to hold MDAFP’s traditional Advocacy Day where we could not only have meetings with specific legislators but to also speak generally with members of the General Assembly. Instead, we chose to do our advocacy virtually, selecting key legislators and having 3-4 members of MDAFP participate. A listing of those legislators with whom we met and the physicians who participated is attached as a supplement hereto. These meetings were very effective and played an important role in our success on our priorities discussed below.
MDAFP LEGISLATIVE PRIORITIES
1. Medicaid Provider Payments
Medicaid payment rates to physicians have historically been too low to ensure an adequate network for enrollees, negatively affecting access to medically necessary services. Access to care challenges lead to poor outcomes and result in an increase in the cost of care for Medicaid recipients. Appropriate payment rates not only encourage private practice physicians to participate in the Medicaid program, but also lessen the impact on employed and hospital-based physicians. Without an appropriate physician network, many enrollees often seek care in the hospital under emergency situations.
Against this backdrop, MDAFP has sought to ensure that Evaluation and Management codes under the Medicaid program are reimbursed at or as close to Medicare rates as possible. These efforts have resulted in E&M codes being reimbursed at 93% of Medicare, among the highest in the country. Early in the Session we joined with other providers to send a letter supporting sustaining these rates. Despite concerns over the State’s fiscal picture entering this Session, the Fiscal Year 2022 budget injected an additional $92 million dollars into the Medicaid program for this purpose.
House Bill 123/Senate Bill 3: Preserve Telehealth Access Act of 2021 (passed) was another bill that came about due to the pandemic. In 2020, the General Assembly adopted Chapter 15 expanding the use of telehealth. However, the 2020 legislation did not define telehealth to include audio-only calls with patients. It quickly became apparent in the months that followed that audio- only calls would be critical to connecting with older patients and those who do not have internet access during the pandemic. Medicare and Medicaid acted quickly at the federal level to allow reimbursement for audio-only under those programs, and by Executive Order 20-04-01-01, Governor Hogan did the same.
Still, the need existed to codify this practice and legislation was put forward to do so. MedChi spent hours negotiating these bills against staunch resistance by the health insurers. As passed, the legislation codifies audio-only as telehealth and requires payment parity between in-person and telehealth visits. It also extends the protections to Medicaid but provides flexibility to implement in regulations. The bill’s provisions are effective between July 1, 2021 through June 30, 2023. During that time, the Maryland Health Care Commission is required to study the impact of providing telehealth services in accordance with the bill’s requirements and issue a report with recommendations to the General Assembly on or before December 1, 2022. This timeline provides the General Assembly the opportunity to make permanent changes to the law during the 2023 Session (prior to the termination of the provisions on June 30, 2023).
3. Implicit Bias
House Bill 28/Senate Bill 5: Public Health – Implicit Bias Training and the Office of Minority Health and Health Disparities (passed) expands the data reporting requirements of the Office of Minority Health and Health Disparities to include racial and ethnic data in their annual “Health Care Disparities Policy Report Card”, post the information on their website, and update the data every six months.
The legislation also requires all licensed and certified health care professionals to complete an implicit bias training course approved by the Cultural and Linguistic Health Care Professional Competency Program, in conjunction with the Office of Minority Health and Health Disparities, that is recognized by a health occupations board or accredited by the Accreditation Council for Continuing Medical Education. A health care provider must attest to the completion of an implicit bias training course on the provider’s first application for licensure renewal after April 1, 2022.
OTHER LEGISLATION OF INTEREST
House Bill 463/Senate Bill 172: Maryland Health Equity Resource Act (passed) establishes a framework for the establishment of Health Equity Resource Communities (HERC) in areas of the State with demonstrated health inequities and disparities. The legislation as enacted is no longer funded by an alcohol tax increase (as was originally proposed) and the program will be administered by the Community Health Resources Commission (CHRC). The General Assembly allocated $14 million dollars from the separate Relief Fund legislation to the Commission to administer short term grants related to health equity priorities for two years. During that two-year period, an Advisory Committee appointed by the Governor, President of the Senate, Speaker of the House and lead by the Chairman of the CHRC is charged with the development of a framework for a permanent HERC program, including the identification of a permanent funding source.
House Bill 810/Senate Bill 706: Health Occupations – Pharmacists – Laboratory Tests (withdrawn) was legislation introduced at the request of a commercial laboratory that would have required the Board of Pharmacy to adopt regulations authorizing any pharmacist to order and administer laboratory tests without any prescription from an authorized prescriber. The pharmacists would be broadly authorized to order tests related to “health awareness, including screening and early disease detection.” Under the bill lab tests would be ordered without the patient having seen their primary care provider and without an adequate basis, and there would not be a knowledgeable professional to advise the patient once the results were received. Fortunately, the General Assembly gave a harsh reception to the bill and it was withdrawn.
House Bill 429/Senate Bill 537: Pharmacists – Required Notification and Authorized Substitution – Lower-Cost Drug or Device Product (passed) allows a therapeutically equivalent brand-named drug to be substituted for a generic drug by a pharmacist in the rare circumstance where the brand-named drug is less expensive to the consumer. This bill was opposed by MDAFP in 2020 because it would have allowed one brand-named drug to be substituted for another brand- named drug, something that physicians do not believe to be appropriate. Amendments were adopted to address this issue. The bill also requires the pharmacist to notify the patient of the substitution or keep a record of it.
Senate Bill 579: Health Care Facilities – Restrooms – Requirements (failed) would have required every health care practitioner’s office and health care facility to provide a “hands-free disposable towel dispenser and a device that allows an individual to open the door to exit the restroom without touching the door handle” by January 1, 2023. They must report to MDH on the total number of restrooms they maintain and their status as to compliance with the requirement. Numerous health care providers and facilities opposed the bill, arguing now was not the time to impose another mandate on health care facilities, which have spent the last year complying with near-weekly orders from federal, state, and local governments related to the COVID-19 pandemic and because the Centers for Disease Control and Prevention has not required the measures called for in the bill.
Senate Bill 685: Insurance Law – Application to Direct Primary Care Agreements – Exclusion (failed) would have defined a “direct primary care agreement” and would have specified that it is not health insurance, a health benefit plan, a nonprofit health service plan, or long-term care insurance provided such an agreement meets specified conditions. This is the third time (or more) that this legislation has been introduced but not advanced.
Prior to the bill hearing, House Bill 1021/Senate Bill 758: Health Insurance – Incentive Arrangements – Authorization (failed) was withdrawn. The bill was sought by CareFirst and would have authorized insurers to enter downstream risk arrangements with physicians and other entities, which is currently prohibited under Maryland law. Given the complexity of this issue and the concerns raised, the sponsors agreed to withdraw the bill but requested that MedChi, CareFirst and the MD Hospital Association work over the interim to develop legislation for the 2022 Session that will both allow for these arrangements but provide physicians and others with necessary protections. MedChi is forming a Physician Advisory Group for this issue and MDAFP has appointed Dr. Ariel Warden-Jarrett as its representative to the Group.
House Bill 135/Senate Bill 84: Pharmacists – Administration of Self-Administered Medications and Maintenance Injectable Medications (Christopher King Access to Treatment Act) (passed), allows a pharmacist to administer maintenance injectable medications that: 1) are administered by injection only, 2) treat a chronic need, condition or disorder, including psychiatric or substance abuse disorders and vitamins. This legislation is similar to House Bill 656 of 2020 which MDAFP initially opposed because allowing a pharmacist to administer the initial dose of medication would not provide adequate safeguards against an adverse reaction. These bills address that concern by allowing the physician (or another prescriber) to direct that the initial dose should not be administered by the pharmacist. Senator Lam also amended the bill to allow pharmacists to administer maintenance injectables that treat sexually transmitted infections, and the Attorney General’s office added amendments requiring the pharmacist to notify the patient regarding payment.
House Bill 849: Public Health – Medical Records – Fees (passed) changes the current law governing fees that may be charged to patients or their representatives seeking copies of medical records. It prohibits a fee being charged if the record will be used for the purpose of filing a claim or appeal regarding denial of social security disability income or social security benefits under the Social Security Act.
It is important to keep in mind that these bills have been acted on by the General Assembly. For those bills which passed, they are presented to the Governor. He can sign the bill, veto the bill, or allow the bill to become law without his signature. In short, none of the passed bills are law or not law until one of those events occurs.