Monthly Archives: May 2016

Legislative Update 5/31/2016

MAO Legislative Update
May 27, 2016
Eric Dick, MAO Lobbyist
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Session Stumbles to a Close
The 2016 legislative session came to a chaotic close minutes after midnight on Sunday, May 22 with several major bills left incomplete.  The House and Senate passed different versions of a nearly $1 billion bonding bill, and time ran out on before the two bills could be reconciled.  One of the key items on many legislators’ wish list for 2016 – a robust package of investments in new transportation spending – also fell short as the House and Senate could not agree upon how to fund the investments and how much to invest in transit.  A supplemental budget bill did pass both bodies, though many legislators and observers decried the fact that the final version of the bill – totally 599 pages – was released only hours before the House and Senate voted upon the bill.

As of this writing, the Governor was reported to still be considering whether to call a special session to call legislators back to St. Paul to consider a bonding or transportation bill.  Only the Governor can call a special session, and legislators are usually only called back to St. Paul once an agreement on the scope of the session is agreed upon.

The clumsy close to the 2016 legislative session sets the stage for the November elections, when all 201 legislative seats will be on the ballot before voters.  Given the relatively narrow majorities in the GOP-led House of Representatives and DFL-controlled Senate, majorities in one or both bodies may be subject to a change of partisan control.

MAO Activity at the Capitol in 2016
The MAO had a relatively quiet year at the Capitol in 2016.  A long-rumored effort by the professional association of audiologists was not introduced for consideration.  A bill to require state health plans to cover a broader swath of audiology services was introduced though it received no hearings in either body.

Also noteworthy is the fact that the state’s provider tax remains on track for repeal at the end of 2019.  While the Senate heard a proposal to rescind the repeal, it did not receive further consideration and was not included in the final package.  Depending on what occurs in the November elections next year – 2017 – may be a bigger challenge to preserve the repeal.

As noted below, there were several setbacks in relation to tobacco policy.  Advocates for the big tobacco companies were successfully in repealing a piece of the state’s tax law that serves to annually impose an inflationary increase in the tax on tobacco products.  That provision has allowed the tax on a pack of cigarettes to rise by 8-10 cents per pack each year since the provision was passed in 2013.  The tax bill also includes language that effectively reduces the tax on the most commonly used e-cigarettes.  This market is dominated by the big tobacco companies – Altria, Lorillard, and others.

Budget Supplemental Awaits Governor’s Action
For much of the short, ten week session legislators debated how to allocate the state’s $900 million surplus, and the House and Senate adopted very different approaches.  House Republicans emphasized tax relief, while DFLers focused upon new spending.  Given that the House earmarked no additional funding in HHS programs and the Senate called for an increase in health-related spending of more than $60 million, a conference committee of House and Senate legislators was required to negotiate a single finance supplemental.  The final package was not released until mere hours before a vote was taken in the legislative bodies and the package approved.

Notable health care-related pieces included in the omnibus funding package include:

  • Support for mental health infrastructure, including the “Excellence in Mental Health Act,” a provision that will allow the state to seek additional federal funding for mental health treatment.  The bill also includes increases in grants to schools to provide school-based mental health support.  Additionally, the bill directs state agencies to seek new federal funding intended to provide treatment to pregnant and post-partum women who have chemical dependency disorders.
  • An additional $1 million was appropriated to the Medical Education and Research Cost (MERC) fund. MERC is used to support residency training program for physicians and other practitioners.
  • Several health-related licensure bills were included in the package, including formal licensure for genetic counselors and orthotics, prosthetics, and pedorthic-fitters. The language expressly states that physicians who provide these services need not seek separate licensure.
  • A new requirement was passed for health plans to provide notification to enrollees when there are changes to their provider networks. Health plans are required to update their website at least monthly to include changes when providers move from in-network to out-of-network.
  • The Legislature directed the Commissioner of Health to seek additional federal funds for statewide planning, coordination, preparations, and response activities related to the Zika virus. These efforts are related to public health readiness, diagnostic testing of patients, surveillance activities, and mosquito surveillance activities.
  • Additional funds were appropriated for certified community behavioral health clinics. These clinics shall provide coordination of care across different settings and   provider types to ensure seamless transitions for patients.

Also noteworthy are the items not included in the funding package, including:

  • Senate-supported effort to reform the manner in which medication prior authorization is governed. Led by the Minnesota Medical Association with the support of more than 45 disease advocacy groups and physician organizations (including the MAO), the “Fix PA Now” bill received robust support in the Senate but was blocked in the House by bill opponents, including the state’s health plans and pharmacy benefit managers (PBMs) like ExpressScripts and Prime Therapeutics.
  • House-led efforts to prohibit or strictly regulate the University of Minnesota’s medical research any fetal tissue. The House version of the budget bill rejected by conferees would have severely limited the ability of the University to continue much of its research that involves fetal tissue.
  • Senate-supported initiatives to increase reimbursement for primary care physician services by five percent were not included in the final package.
  • Republican-sponsored language to repeal MNsure and move Minnesota to the federal insurance exchange were rebuffed, but new provisions included in the final package provide greater oversight to the legislature on how MNsure can utilize state resources.

Tax Bill Reduces Tobacco Taxes
A large, complex tax bill passed by the House and Senate on the last day contains tax breaks for tobacco interests totaling more than $35 million.  The bill repeals the automatic tax “inflator” for cigarettes, a piece of tax law that has automatically raised the tax on a pack of cigarettes annually.  Also included in the tax package is language that effectively reduces the tax on the most commonly used e-cigarette devices. The vast majority of the market share for these devices is controlled by the major tobacco companies, including Lorillard and Altria.

As of this writing the Governor had not yet signed the legislation.  He has been highly critical of the tax breaks for tobacco.

Legislators Tackle Prescription Drug Abuse
Bills to address the abuse of prescription drugs passed both bodies of the legislature in the final days of the session.  One has already been signed by the Governor, and the second is likely to receive his approval soon.

Signed into law on May 19, SF 1440 expands the authority of pharmacies to collect unused pharmaceutical drugs for destruction.  Authored by Sen. Julie Rosen (GOP – Vernon Center) and Rep. Bob Barrett (GOP – Lindstrom), the aim of the bill is to safely dispose of drugs that may otherwise be diverted for illicit use.  Also included in the bill is language to expand the mechanisms by which pharmacists can dispense naloxone, an opioid-antagonist.  Current law allows pharmacists to dispense the drug if they have a standing order established with a physician or other prescriber.  The new language allows pharmacists to enter into such agreements with the medical consultant of local public health boards or with a designee of the Commissioner of the Department of Health.  Pharmacy advocates had originally sought to grant pharmacists the ability to “prescribe” naloxone, an approach that raised concerns by the Minnesota Medical Association, other prescriber groups, and a number of legislators.

A separate bill awaiting a likely signature by the Governor serves to strengthen the state’s existing prescription monitoring program (PMP).  Authored by Sen. Julie Rosen (GOP – Vernon Center) and Rep. Dave Baker (GOP – Willmar), the bill requires all physicians and other prescribers authorized to prescribe controlled substances with a current DEA registration to register and maintain an account within the PMP.  The effort is intended to increase participation in the database.  Currently only 35 percent of physicians have active accounts with the PMP.  Notably, the bill does not require a physician to consult the PMP before prescribing, that there are a number of legislators interested in pursuing that requirement in a future legislative session.

The bill also grants some new latitude for physicians who are treating a patient they suspect might potentially be abusing a controlled substance to consult the PMP.  The provisions that govern how long the prescription data may be used by the Board of Pharmacy for trend analysis and research was the subject of fierce debate.  The final language allows the use of the data for a period of no more than five years, though that authority shrinks to no more than one year in 2020.

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Legislative Update – 5/13/2016

MAO Legislative Update
May 13, 2016
Eric Dick, MAO Lobbyist
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One Week to Go; Still Waiting for Global Agreement
With the May 23 constitutional deadline just over a week away it is still unclear whether the Legislature will reach an agreement on the major bills all sides have said must get addressed.  There is agreement that additional money is needed for roads, bridges and transit, but there is not consensus on how to pay for investments.  And while most legislators agree on the need for a bonding bill to fund capital projects throughout the state, there is significant partisan disagreement on how large the price tag should be.

Legislators have also not reached agreement upon the use of the state's $900 million budget surplus, with the House Republicans arguing for more tax cuts while the Senate DFL majority advocates for additional new spending.

With just over a week remaining, Capitol observers are split on whether a global deal remains in reach or if the Legislature is headed towards a train wreck with no significant action having taken place.

Some seasoned legislative veterans say there is still plenty of time for the Governor, Senate Majority Leader, and Speaker of the House to set differences aside and reach a deal, while others believe the differences are too great.

HHS Budget Issues Await the Global Deal
There are a number of health and human services budget items that are important to organized medicine that remain stalled until a global deal is reached.  Most of these are in either the House or Senate budget bills that are now in ten member conference committee that is working to reconcile the differences in the two bills.  Notable items include:

The language to fix the flawed medication prior authorization process is included in the Senate bill but not in the House bill. It provides more transparency for patients on what drugs are covered, requires immediate, real-time disclosure prescribers on what drugs require PA, limits how often a patient can be required to get PA for the medications that are working for them, and it shortens the timelines for insurers to approve or deny a PA request.

The Senate increase Medical Assistance reimbursements to physicians for primary care and mental health services by 5 percent. The House does not include any increase.

  • The House increases funding for the Medical Education Research Cost (MERC) program by over $3 million. This money is used to fund training programs for physicians and other practitioners.  The Senate does not include any increase.
  • The Senate increases MinnesotaCare eligibility to 275 percent of the federal poverty level, from the current 200 percent. The House does not increase eligibility.

 Bill Allows More Osteopathic Physicians to Serve on BMP
Legislation allow more osteopathic physicians to serve in the state's Board of Medical Practice passed the House on a unanimous 127-0 vote on May 2, and a similar unanimous vote by the Senate six days later and is soon headed to the Governor for his likely signature. The bill was sought by the Board of Medical Practice.

Authored by Rep. Tony Albright (GOP - Prior Lake) and Sen. Melissa Wiklund (DFL - Bloomington), the bill removes the cap in state statute that sets at one the number of DOs who may serve on the BMP. The bill also adds an additional member to the BMP, raising the number of members to eleven. Technical changes are also included in the bill to the licensing requirement for osteopathic physicians, including updated terminology and making physician testing requirements more uniform.

Greater Access to Opioid Antagonist Sought
Language to allow greater access to the opioid antagonist Naloxone was added to a bill that related to pharmacies’ ability to collect unused medication.  Both the amendment and bill were passed and returned to the Senate for its consideration.

Current law allows pharmacists to dispense naloxone if they have in place a standing order or protocol w/ a licensed prescriber (including physicians, APRNs, PAs).  In fact, all Minnesota CVS stores already make naloxone available using this mechanism now.  This bill adds two other mechanisms to allow pharmacists to dispense naloxone by allowing them to enter into standing orders with either 1) a local public health board’s medical consultant OR 2) with an individual designated by the commissioner of MDH.  It’s anticipated that individual will likely be either the commissioner themselves if they are an physician or other prescriber or the state epidemiologist.  The author of the legislation, Rep. Bob Barrett (GOP – Lindstrom), had originally planned to pursue language allowing pharmacists independent prescribing of naloxone.  Advocates, including the MMA, successfully urged him to take advantage of the means already available under current law.

In addition, the bill tasks the Board of Pharmacy and other stakeholders (including physician’s groups) w/ crafting a “model protocol” to give pharmacies a model to use in crafting these agreements.  A model protocol, advocates reported, will help ease the process of establishing these relationships.

The underlying bill expands the authority of pharmacies to collect and dispose of legend drugs.  Under the bill, individuals and family members of those in long term care facilities would be able to turn in unused or expired pharmaceuticals to a pharmacy for proper disposal.  The bill was sought in an effort to reduce the volume of unused pharmaceuticals that are being diverted for abuse.  The Senate version of the bill is authored by Sen. Julie Rosen (GOP – Vernon Center).

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Legislative Update – 4/29/2016

MAO Legislative Update
April 29, 2016
Eric Dick, MAO Lobbyist

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Three Weeks Left, No Global Agreement
With three weeks left until the Constitutional deadline to adjourn both the Republican controlled House and the Democratic controlled Senate have passed their versions of how to use the state’s $900 million budget surplus, but they are drastically different.

Coming into session in March leaders of both bodies identified three major issues that needed to be addressed this year—passing on a transportation funding bill for roads and bridges, passing a bonding bill to fund state building projects, and agreeing on how much of the surplus should be used for new spending and how much for tax cuts. The approach to how to do each of these remains very different. If the Legislature hopes to complete its work on these and other issues before the May 23 adjournment date there will need to be some compromise by both sides.

Currently both sides are very far apart with little time left, but if there is a willingness to compromise, agreements can still be reached. The sticking issue on a transportation bill is whether it can be funded with the existing surplus (the House position) vs. whether an increase in the gas tax is needed for long-term funding (the Senate position). On the bonding bill it is a question of size, with the House recommending approximately $600 million in projects and the Senate recommending $1.4 billion in projects. Not surprisingly, the two sides differ on the use of the surplus, with House Republicans emphasizing tax cuts and transportation spending while Senate DFLers arguing for new investments in needed programs, including new HHS and education spending.

The next step in the process is for House and Senate leadership to meet, along with Gov. Dayton, to agree on global spending levels that all sides can support. If they are able to reach agreement on these numbers there will be a good chance of them passing the budget bills. If not, we may be heading to the proverbial “train wreck.”

Since the even-numbered years are the second year of the state’s biennial budget, there is no need to pass budget bills to keep the state running. That removes some pressure to compromise. However, with 2016 being an election year for all 201 seats in the Legislature, and with the majority in both bodies at stake, there is pressure to show voters that the party in control can get their work done.

House & Senate Craft Very Different Budget Proposals
House and Senate legislators took two very different approaches to crafting their budget supplemental bills, and the differences in the HHS budget are stark. Both bodies considered and passed their HHS budget pieces this week, though the differences will require a conference committee to reconcile the dramatic differences.

The different approaches began with very different budget targets set by House and Senate leaders earlier in the session. While the GOP House gave the HHS committee a budget target of zero new dollars, Senate leaders allocated additional spending of $43 million in 2017 and $140 million for the 2018-2019 biennium. The House does shift some dollars within its jurisdiction to fund some new programming while cutting spending on other health care programs. The state currently has a projected budget surplus of over $900 million, though there are stark differences in how the House, Senate, and Governor propose to distribute the surplus dollars.

Importantly, the Senate’s version of the HHS budget supplemental includes prior authorization (PA) reforms led by the Minnesota Medical Association and supported by the MAO. While there had been some speculation that the Senate DFL might include language to rescind the sunset of the provider tax, that provision was not included in the package. The provider tax remains set for repeal on December 31, 2019. The Senate bill also includes a 5 percent increase in reimbursement for primary care and mental health services provided for MinnesotaCare and Medical Assistance patients, as well as raising eligibility for MinnesotaCare from 200 percent of the federal poverty level to 275 percent.   Other provisions in the bill would allow physicians limited access to the state’s medical cannabis registry to see if patients are participating in the cannabis program, extend the sunset for use of the All Payer Claims Database (APCD) to better study regional differences in health care utilization, and expand specialty asthma care services under MA for children with difficult-to-treat asthma.

The full Senate considered the bill on April 28 and passed largely on a party line vote. Senators considered a number of amendments related to MNsure and other issues. An effort to strip the bill of $500,000 in funding from the Health Care Access Fund for a study of single-payer health care systems was unsuccessful.

Given its neutral budget target, the House bill contains far fewer provisions. Central to the House Republican’s bill is language to move Minnesota from the existing state-based insurance exchange MNsure to the federally facilitated insurance exchange.   Included in the bill is $1 million in each of the next three years funding for greater Minnesota residency programs, a provision that is also included in the Senate bill. The bill also contains language that would allow patients to authorize or decline individual pieces of consent related to how medical records are used by clinics and hospitals. Many in the health care community, including the Minnesota Medical Association and the Minnesota Hospital Association have opposed this provision on the grounds that it would be extraordinarily difficult to administer and may require physicians to treat patients without allowing clinics to bill the patient’s insurer.

The House also acted on the HHS finance pieces on April 28th in an occasionally fiercely partisan debate that stretched until past 1:00 AM. Dozens of amendments were considered, including amendments related to firearm licensing, MNsure, the licensing of facilities that perform abortions, and other hot-button issues. Unlike the Senate bill which was a single bill funding numerous segments of the state budget, the House has assembled three smaller omnibus bills. The HHS bill was packaged with bills financing public safety and state agency operations.

Many Capitol observers think a budget agreement will not come until mid-May, if at all. Because this is not a budget-setting year, legislators don’t need to craft a budget to keep the government functioning. Most believe that a budget deal may have to come as part of a global agreement that would also include some tax cuts, a bonding bill, and a transportation package. Plans put forward by Senate DFLers and Governor Dayton on these issues remain far removed from that of the House Republican majority.

No Sign of Scope Battles for the MAO; Tobacco Issues Yet TBD
While there had been some speculation prior to the start of the legislative session that the professional association of audiologists might seek a scope expansion or change, no bills have been introduced to that effect and, as such, will not be considered during the remaining weeks of the session. One Senate bill introduced this year would mandate that some audiologist services be covered by health plans operating in the state, though the bill did not receive a hearting.

While there has been no negative actions taken regarding tobacco yet in the session, such changes may yet loom as legislative leaders consider changes to the state’s tax law. Lobbyists for large tobacco interests have sought to repeal a small provision in the tax code that automatically adjusts the tax on tobacco products annually. This “automatic inflator” served to increase the tax on a pack of cigarettes by seven cents on January 1, 2016. Many of these same interests are seeking repeals to the minimum tax on higher cost “premium cigars” as well as a reduction in the tax on the most commonly available forms of e-cigarettes.

House Takes Aim at Fetal Tissue Research
Continuing the focus on fetal tissue research that garnered national headlines in the summer and fall of 2015, the Minnesota House of Representatives included provisions that seek to restrict the use of aborted fetal tissue in research at the University in a higher education finance bill. The bill passed the House on April 25.

Under the provisions, the Dean of the Medical School is required to “attempt to identify sources for procurement of fetal tissues that are available due to the natural death of the fetus and are suitable for

use in academic research” and – when identified – the use of such tissue is to be encouraged.   During committee hearings earlier in the session University President Eric Kaler and Brian Herman, PhD, the university’s Vice President for Research, and Brooks Jackson, MD, the Dean of the University of Minnesota's Medical School presented a strong defense of the University’s use of the tissue in research into spinal injuries, Alzheimer’s disease, and many other conditions. Tissue derived from miscarriage, they argued, often have genetic abnormalities that make them unsuitable for research.

In addition, the bill requires that all research using fetal tissue be approved by the University’s institutional review board, which is required to explore if the research can be conducted using non-human tissue. The language in the House bill further requests that the Office of the Legislative Auditor (OLA) conduct an investigation into the University’s use of fetal tissue in research activities, including the number, type, and cost of fetal research being conducted. The OLA is widely respected by both parties at the Capitol.

The same bill also contains language that attempts to address continued fallout from the suicide of a man enrolled in a University clinical psychiatric drug. The state’s Ombudsman for Mental Health and Developmental Disabilities is tasked with monitoring any drug trials being conducted by the University’s Department of Psychiatry. The Ombudsman is granted additional oversight authority by serving as a receiver of complaints from drug trial enrollees and is authorized to make recommendations to the University on means of corrective action.

These provisions have not received hearings in the Senate, nor have they been included in the Senate’s higher education finance package.

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