Mid-Atlantic Health Law TOPICS

The Maryland General Assembly has once again been busy passing new health care legislation. The following are some of the health care highlights of the 2019 Session.

Affordable Care Act

Next year’s Maryland tax return will include check boxes where, in addition to indicating health insurance status, individuals can choose whether they want the State to determine their eligibility for insurance affordability programs, such as Medicaid or subsidized care under the Affordable Care Act (ACA). That information will be provided to the Maryland Health Benefit Exchange, which in turn will assist enrolling uninsured individuals in insurance affordability programs.

The legislature also extended the reinsurance program enacted last year to stabilize premiums for, and thus encourage enrollment in, ACA health insurance plans. The reinsurance program was funded in part by a 2.75% tax on health insurers (called a “provider fee assessment”), and that tax will continue to be levied on insurers through December 2023.

With the Affordable Care Act facing court challenges as to its constitutionality, the General Assembly extended the Maryland Health Insurance Coverage Protection Commission for an additional three years through June 30, 2023, to monitor actions related to the ACA, and to determine the best way for residents to obtain and retain health insurance independent of changes to federal law or interpretation of that law. The Commission must report its findings in its annual report this December.

Certificates of Need

This year, the General Assembly made a number of changes to certificate of need (CON) program requirements for health care facilities. These changes are a result of a recent report by a CON Modernization Task Force.

Effective October 1, the threshold below which a CON is not required for certain hospital capital expenditures will increase from $10 million to a figure called the “hospital capital threshold,” defined as either 25% of a hospital’s gross regulated charges for the prior year or $50 million, whichever is less.

Also, certificates of need filed after October 1 will be considered approved if they are uncontested and the Maryland Health Care Commission (MHCC) does not take final action within 120 days from when the CON application is docketed. This requirement does not apply to a CON involving the establishment or relocation of a health care facility, or a CON by a hospital introducing cardiac surgery or organ transplantation.

For the purposes of CON program compliance, “ambulatory surgical facilities” will be defined as having three or more operating rooms, meaning it will now be easier to establish a two operating room ambulatory surgery facility or to add another room to an existing one operating room facility. 

Effective immediately, existing, licensed general hospice programs and licensed intermediate care facilities that offer residential or intensive substance-related disorder treatment services are exempt from the requirement of obtaining a CON before changing bed capacity in those facilities. The facilities must still file a written notice to the MHCC of the intent to change bed capacity at least 45 days before the change.

The MHCC is now required to adopt a State Health Plan on or before October 1 every year, as opposed to every five years, and the Plan must be consistent with the Maryland All Payer Model Contract between the State and the federal Medicare Program. On an annual basis, the MHCC will now assess each Plan chapter, determine the chapters that should be reviewed and revised, and, at a public meeting, establish a timeline and priority order for that review and revision.

Prescription Drugs

On July 1, Maryland will be the first state with a Prescription Drug Affordability Board. The Board is tasked with identifying potentially unaffordable prescription drugs, and making recommendations to the State legislature on costs and policy. Depending on the results of its study, the Board may draft a plan to set upper payment limits on prescription drugs purchased or paid for by the State, or a county or local government. If the Board decides to draft a plan, it must do so on or before July 1, 2021, to be phased in slowly, starting after January 2022.

The legislature also addressed issues of prior authorizations and formulary changes for prescription drugs. With respect to prior authorizations, any insurer, nonprofit health service plan or health maintenance organization (but not a Medicaid managed care organization) that provides prescription drug coverage through a pharmacy benefit must now maintain a database of prior authorizations that are filed electronically, provide detailed explanations for any denials of coverage, and honor prior authorizations granted by a previous carrier for at least the first 30 days of coverage by the new carrier.

Prior authorization requests must also indicate whether the prescription is for a chronic condition, and, if so, a carrier may no longer request a reauthorization for a prescription for the lesser of either one year or for the standard course of treatment for the chronic condition. 

As far as formulary changes, if these same carriers remove a drug from their formulary or move the drug to a higher tier, they must notify the member and member’s health care provider at least 30 days before the change. The carriers must also allow members to receive the recently removed off-formulary prescription drug or device if the prescriber determines that there is no equivalent in the formulary in a lower tier or that the lower tier equivalent has been ineffective or likely to cause harm. This is an expansion of current off-formulary coverage requirements.

The new requirements for prior authorizations and formulary changes will apply to all policies, contracts, and health benefit plans issued, delivered or renewed in Maryland on or after January 1, 2020.

Additionally, with a successful evaluation from the Department of Legislative Services, the Prescription Drug Monitoring Program (PDMP) is no longer set to terminate in July.

Furthermore, starting October 1, the PDMP is now required—not just authorized—to review prescription monitoring data. If there is an indication of misuse or a possible violation of the law or breach of professional standards by a prescriber or dispenser, the PDMP must notify and educate the prescriber or dispenser. If the PDMP finds that education would be inadequate to address the breach or violation, the PDMP may provide data to the Maryland Office of Controlled Substances Administration for investigation.

Patient Rights

Hospital administrators will be required to provide each patient (inpatient, outpatient and emergency services) with a written copy of the hospital’s patient’s bill of rights, beginning October 1. The administrator must also post the patient’s bill of rights on the hospital’s website and in areas of the hospital that are accessible to patients and visitors, as well as provide annual training to patient care staff about the patient’s bill of rights.

This year, the General Assembly clarified that residents who are being transferred or discharged from comprehensive or extended care facilities have the right to notice, procedural fairness and humane treatment, as well as the right to participate in decision making regarding transitions in care.

Also, on October 1, the Maryland Attorney General will have the authority to request a court-imposed penalty of up to $100,000 for each violation by a comprehensive or extended care facility of laws concerning the transfer, discharge, or involuntary discharge of a resident, including related notice requirements. 

Special Enrollment for Pregnancy

Employers and health benefit plans will be required to offer a 90-day special enrollment period for individuals who become pregnant, as confirmed by their health care practitioners. The special enrollment period would begin on the date of that pregnancy confirmation, and the enrollment would become effective on the first day of the month of the confirmation.

Barry F. Rosen
410-576-4224 • brosen@gfrlaw.com

A version of this article was published by The Daily Record.