Mid-Atlantic Health Law TOPICS

The 2008 Maryland General Assembly Session: recognized a new type of health plan; addressed pharmacy issues; continued to regulate the relationship between payors and providers; became involved in a turf battle between urologists and pathologists; enhanced the rights of domestic partners in the health care arena; and required certain task forces and agencies to answer some interesting questions, as described below.
1. Public-Private Health Care Programs. Last year, Howard County proposed a public-private partnership to offer health care coverage to uninsured County adults with incomes up to 300% of federal poverty guidelines. New legislation establishes a regulatory framework for such a program. Effective June 1, 2008, such programs must be certified by the Maryland Insurance Commissioner, run by a nonprofit organization and enter into a written agreement with each county of operation.
The program must file specific documents with the Commissioner including: the criteria to be used for qualifying individuals, details about the delivery of health care services, information regarding the internal complaint processes, and the payment obligations for program participants. In addition, a public-private health care program may not enroll an individual within six months of that person voluntarily terminating coverage from a small group market health benefit plan.
2. Pharmacists. Beginning in October of 2008, a pharmacist may administer a pneumococcal pneumonia or herpes zoster vaccination to an adult with a physician's prescription. The pharmacist must inform the prescribing physician that the vaccination has been given, and must administer the vaccination according to the regulations of the Boards of Pharmacy, Physicians and Nursing. If the prescribing physician is not the patient's primary physician, the pharmacist must make a reasonable effort to inform the primary care physician that the vaccination has been given.
3. Pharmacy Benefits Managers. Pharmacy benefit mangers (PBMs) are businesses that administer and manage prescription drug benefit plans. Effective October 1, 2008, PBMs must register with the Maryland Insurance Commissioner. After October 1, a PBM may only request a change from one prescription drug to another if it is for a medical reason that will benefit the beneficiary or will result in financial savings/benefits to the health plan or beneficiary; however, this prohibition does not apply to a generic substitution. Before making a drug change, a PBM will have to adhere to specific regulations including obtaining authorization from the prescriber. Also, a PBM will have to cancel and reverse a drug change upon written/verbal instructions from a prescriber, beneficiary or beneficiary's representative. Before contracting with a health plan, a PBM will have to tell the health plan that the PBM may solicit/receive manufacturer payments, pass through or retain manufacturer payments, or sell or share aggregate utilization information. Also, a PBM will have to offer to provide the health plan with a report containing the PBM's net revenues and manufacturer payments. (A PBM affiliated with a health plan will be exempt from the disclosure requirements with respect to that health plan.)
4. Reimbursement During Initial Credentialing. After October 1, 2008, carriers must reimburse already participating group practices for services provided by newly employed providers while the carrier is reviewing the new provider's credentialing application. This reimbursement period begins when the group receives notice from the carrier that the application is being processed, but ends if the carrier rejects the new provider. As a condition for reimbursement, the new provider must be licensed in Maryland and either have professional liability insurance or have been credentialed by an accredited hospital. Group practices must also give patients a written notice stating that: the new provider has applied to join the carrier's provider panel; the carrier is examining the provider's credentials; and the provider's services will be reimbursed at the participating provider rate.
5. Provider Panels and Prices. Presently, except for MCO participation, carriers may not condition a health care provider's participation in one health plan on that provider's participation in another health plan. A new law loosens that prohibition by only prohibiting carriers from requiring physicians and dentists to join an HMO provider panel as a condition to join a non-HMO provider panel. (The new law also reaffirms that physicians and dentists that join a carrier's panel may be required to join that carrier's MCO.) However, the new law also prohibits carriers from requiring panel physicians to accept multiple fee schedules from that carrier's affiliates or subsidiaries. On the other hand, physicians may be required to accept multiple fee schedules from non-
affiliated carriers that access a provider panel. In all cases, physician provider contracts must disclose the carriers that have access to the provider panel. The new law becomes effective for new provider contracts on October 1, 2009, upon renewal of existing provider contracts between October 1, 2009 and October 1, 2010, and for all provider contracts after October 1, 2010. (Other existing statutory provisions prohibit carriers from requiring participation in their workers' compensation panels.)
6. Electronic Fee Schedules. Effective October 1, 2008, health insurers can send health care practitioners changes to fee schedules, carrier-specific coding guidelines and fee methodology by electronic mail. However, fee schedules will now have to contain fees for the fifty most common procedure codes charged by the practitioner, instead of the current twenty codes.
7. Anatomic Pathology Services. The General Assembly enacted an amendment to Maryland's Patient Referral Law that sets forth the circumstances under which Maryland licensees will be permitted to bill for anatomic laboratory services, effective October 1, 2008. Proponents and opponents of this amendment will likely disagree as to the effect of this legislation.
8. Domestic Partners. Individuals who comply with the statute's definition of a domestic partnership have certain visitation and medical decision making rights in the health care arena, effective July 1, 2008. Visitation: Hospitals, nursing homes and residential treatment centers must allow visitation by a patient's domestic partner, the children of the domestic partner, and the domestic partner of the patient's parent or child to visit, unless (a) no visitors are allowed, (b) the facility reasonably determines that the presence of the visitor will endanger the health of the patient, or (c) if the patient or patient's representative states that a particular person should not visit. Medical Emergencies: Two adults are to be treated as domestic partners if one of the adults, in good faith, tells an emergency medical provider that the adults are in a mutually interdependent relationship solely for the purposes of allowing one adult to accompany the ill adult to a hospital and for visiting the ill adult who has been admitted to the hospital for an emergency. Health Care Decisions: A domestic partner may make health care decisions for a person who has been certified to be incapable of making an informed decision and who has not appointed a health care agent or whose health care agent/guardian is unavailable.
9. Task Force on Health Care Access and Reimbursement. By December 1, 2008, the Task Force on Health Care Access must develop recommendations regarding the ability of primary care physicians to be reimbursed for mental health services performed within the scope of their practice, and whether physicians and other health care providers need an incentive to provide care on evenings and on weekends.
10.Task Force on the Discipline of Health Care Professionals and Improved Patient Care. This new Task Force must review the disciplinary regulations of all Maryland health occupation boards, and make recommendations to the General Assembly by December 1, 2008. The Task Force will consider changes that will better protect both patients and health care professionals. For patients: develop more protection from incompetent or unethical practices by health care providers, create an improved and consistent complaint process with more transparency in all health professional board disciplinary procedures. For health care professionals: increase consistency and fairness of disciplinary outcomes, propose a statute of limitations for complaints to be brought against licensees, develop a more speedy resolution of meritorious complaints and the disposition of proceedings that do not require a disciplinary order, and specify a reasonable time frame in which a board will conclude its disciplinary action.
11. Injured Workers' Insurance Fund. The State's Injured Workers' Insurance Fund (IWIF) is now subject to examination and enforcement by the Maryland Insurance Commissioner. By December 1, 2008, the Maryland Insurance Administration (MIA) is required to identify provisions of law that relate to consumer protections and financial soundness that are enforced by the MIA, and are applicable to other insurers but not IWIF. Also, the MIA must report to the General Assembly by December 1, 2008 on how rates should be established for IWIF.