by Jodiane Tritt, Vice President for Government Relations, Arkansas Hospital Association
The regular session of the 91st General Assembly began on Monday, January 9, 2017, and adjourned sine die on Monday, May 1, 2017, with 1127 new Acts. Immediately upon adjournment of the regular session, a special session convened – the First Extraordinary Session of 2017 – and ended after three short days. These 2017 sessions yielded many acts that will impact hospitals and the patients and communities they are so fortunate to serve. But for this legislative report, we have compiled a short list of new Acts from the regular session – our version of the Legislative Top Ten – as well as a list of the bills discussed in the Special Session.
Not on the list, but vitally important, is the Revenue Stabilization Act (RSA), which outlines Arkansas’s general revenue budget and works in concert with the appropriation bills that are enacted during the session. The RSA is the delineation of actual money that can be used within each appropriation. Arkansas’s general revenue budget for fiscal year 2018 is $5.49 billion, a $163 million increase over the current fiscal year.
This year’s RSA includes an increase of $113 million for the Department of Human Services. It also sets aside $15.8 million for the rainy-day fund, which is the fund used by the governor for emergencies, special needs and priorities that aren’t included in the general revenue budget. Within the RSA, priorities are outlined as category “A,” which are the items deemed essential and paid for first, and categories “B” and “C.” Once category A is funded, the programs in category B get funded, and then category C.
As revenue forecasts come in each month, those allocations are funded in line with the RSA’s priorities. Any revenues left over after expenditures made per the RSA requirements will be “surplus” funds and can be used in future budgets.
While the AHA watches the entire state budget like a hawk during the session, it is imperative that particular attention is given to the Medicaid budget and appropriation. The Medicaid appropriation is included in SB 196 of 2017. As we all are well aware, that appropriation requires a 75% approval by each legislative chamber. When the bill was introduced in the Senate, it failed to receive the 27 required votes two times before it finally passed. In the House of Representatives, the 75% threshold was finally met on the bill’s second vote. Not only does this appropriation cover the Arkansas Works program that funds health insurance for many individuals in our state, it also includes appropriations for care for children, the aged, the disabled and the mentally ill.
The special session was set aside to focus on continued Medicaid reforms. In special sessions, it is common that companion bills are filed by topic. Companion bills are those that are introduced in either the House or Senate and have identical or similar language to another bill introduced in the other chamber. In this special session, HB 1001 and its companion SB 1, were filed to make technical corrections to the ethics amendment (Article 19 in the Arkansas Constitution). A list of bills filed is, as follows:
HB 1001/SB 1 make technical corrections and incorporate three Acts of 2017 that pertain to ethics laws into Article 19 of the Arkansas Constitution.
HB 1002/SB 2 make technical corrections and incorporate 23 medical marijuana-related Acts of 2017 into Amendment 98 of the Arkansas Constitution.
HB 1003/SB 3 require the Department of Human Services to submit a state plan that seeks a federal waiver to amend the benefits of the Arkansas Works program by establishing a work requirement, reducing income-based eligibility and making other changes.
HB 1004/SB 4 seek to prohibit the Arkansas Health Insurance Marketplace from developing technology for a state-based marketplace platform and dissolve the current marketplace oversight committee, placing oversight and study authority with the Legislative Council.
HB 1005/SB 5 seek to move $105 million from the Health Century Trust Fund, originally created by the Master Tobacco Settlement, to an account for long-term reserve funding and repeal the provision that limited the Long Term Reserve Fund to $125 million.
The Arkansas Works companion bills, HB 1003/SB 3, likely contain the greatest potential impact to Arkansas’s hospitals and health care system overall. More than 300,000 Arkansans have received insurance coverage through the Arkansas Works program (and its predecessor, the Arkansas Private Option).
Currently, Arkansans below 138% of the federal poverty level are eligible for insurance coverage on the insurance marketplace. With the changes created by this bill, the Arkansas Works program will cover only those Arkansans with incomes below 100% of the federal poverty level and will permit those between 100% and 138% of the federal poverty level to receive subsidies to purchase insurance on the federal insurance exchange.
The Department of Human Services estimates that approximately 60,000 Arkansans will no longer be eligible for the Arkansas Works program under these conditions. The bill also imposes a work requirement on a select group of able-bodied individuals.
The Arkansas Hospital Association (AHA) expressed concerns to the governor’s staff and the Department of Human Services that the process of moving Arkansans from Arkansas Works to the federal exchange can increase the already burdensome levels of uncompensated care that hospitals deliver to patients who cannot pay for their care. The Director of the Department of Human Services, Cindy Gillespie, subsequently penned a letter to Bo Ryall, President of the Arkansas Hospital Association, stating that the Department is willing to work toward mitigating damages of uncompensated care – not only from the potential population moving from Arkansas Works to the federal exchange, but also uncompensated care that hospitals experience as they serve other populations.
The AHA also discussed concerns about other serious Medicaid reimbursement issues with Director Gillespie. AHA staff are optimistic that the regulations implemented pursuant to HB 1003/SB 3 will be crafted in a way to mitigate uncompensated care and continue to improve the patient experience.
In his opening comments to the joint session of the House and Senate that kicked off the special session, Governor Hutchinson acknowledged that his office is committed to working diligently with Arkansas providers and insurance carriers to make sure that the transition is smooth and that the impact – especially on our rural hospitals – is negligible. In fact, a hospital working group with DHS has been formed and held its first meeting on May 23.
HB 1005/SB 5 also has the potential to negatively impact healthcare in Arkansas. Since the state’s 1998 settlement with tobacco companies, Arkansas has had the Arkansas Health Century Trust Fund as a back-up for the programs originally funded from the settlement, as well as for the Medicaid program. Arkansas was one of few states that used its tobacco settlement funds solely for health care.
Once this bill is enacted, the Healthy Century Trust Fund will convert to a reserve fund that is intended to improve the state’s bond rating from AA to AAA, which might make it easier to obtain better interest rates on bonds. The Legislative Council or Joint Budget Committee would be required to approve accessing the fund with a super-majority, two-thirds vote.
Once the session concluded, House Speaker Jeremy Gillam opened a House caucus meeting to approve HR1001, a proposal to create a process for bringing forth articles of impeachment against a public official. Testimony on the floor stated that, currently, any individual member of the House with approval of the Speaker could move to begin the impeachment process. Under these rules as adopted in a 73-13 vote, at least 34 House members could sign a resolution calling for an impeachment of an elected official, and the House Speaker would be able to refer the matter to a committee for investigation. There would also be a process whereby committee members could disagree with the majority opinion of the committee and could bring forth a minority opinion that the House could consider prior to referring the matter to the Senate for trial.
Just as the state concluded its legislative business, rumors that Congress would take up a measure to repeal the Affordable Care Act were running rampant. In fact, the United States House of Representatives has done just that and has passed the American Health Care Act (AHCA), which includes potentially dire circumstances for patients and hospitals. AHA staff and member hospitals are continuing to advocate at both the state and national levels for the health of our hospitals and our citizens.
OUR 2017 LEGISLATIVE TOP 10
- PROVIDER-LED ORGANIZED CARE ACT
HB 1706 (Pilkington) creates the Provider-Led Organized Care Act, which allows for certain behavioral health, mentally ill, and disabled patients to be covered by Medicaid Managed Care partnerships with Arkansas providers. Many meetings are taking place to create the regulations that will guide this program.
HB 1954 (Collins) states that if the anticipated savings from HB 1706 do not come to fruition, then the Department of Human Services has the authority to stop the program and come up with an alternative to ensure savings
- PEER REVIEW
SB 611 (Bledsoe) made changes to peer review in Arkansas and was strongly supported by the Arkansas Medical Society. As originally filed, the Arkansas Hospital Association opposed the measure, but after strong amendments were made to the bill, the AHA withdrew its opposition. Those changes protect peer review by (among other things): (1) ensuring that collegial interventions and other physician-to-physician reviews can be used to solve problems prior to a physician’s credentials being put at risk, (2) proctecting standard quality assurance and utilization review and (3) keeping physicians, rather than lawyers, in control of peer review.
- TORT REFORM REFERRED TO THE PEOPLE
SJR 8 (Irvin) will allow a tort reform amendment to be presented to voters on the November 2018 General Election ballot. The proposed amendment caps attorneys’ contingency fees and limits non-economic and punitive damages.
- PRESCRIPTION MONITORING
SB 339 (Hutchinson) will require that any prescriber check the prescription drug monitoring program database every time he or she prescribes a Schedule II or III opioid and the first time that he or she prescribes a benzodiazepine. The Arkansas Department of Health will be able to add exemptions to this requirement.
- TELEMEDICINE IMPROVEMENTS
SB 146 (Bledsoe) establishes improved standards for the practice of telemedicine and offers a platform for expanding the use of telemedicine in the state.
- VOLUNTARY REGISTRY OF SURGICAL TECHS
SB 167 (Sanders) allows for a voluntary registry of certified surgical technologists with the Arkansas State Medical Board. There is no requirement for a certified surgical technologist to be registered in order to work for hospitals, ambulatory surgery centers or other healthcare institutions.
- TRAUMA ADVISORY COUNCIL CHANGES
SB 612 (Irvin) changed the make-up and role of the Trauma Advisory Council from a 20-member committee to a 10-member advisory council and waived certain educational requirements that hospitals must meet to maintain trauma level designations.
- END-OF-LIFE CARE
SB 356 (Irvin) creates physician orders for life sustaining treatment (POLST) for patients who are terminally ill and expected to live no more than one year.
SB 676 (Irvin) made some corrections to the language used in the Healthcare Decisions Act and repealed older Arkansas laws so that the older and newer laws work better together to ensure patients’ wishes are followed in the healthcare setting.
HB 1851 (Hammer) allows a hospice nurse to declare the death of a hospice patient who passes away in a hospital.
- MEDICAID REIMBURSEMENT FOR URGENT CARE
HB 1264 (Pilkington) allows for reimbursement from the Medicaid program for care delivered in an urgent care center owned or operated by a hospital if the patient does not have a primary care physician.
- DHS TO STUDY DRG PAYMENT METHODOLOGY
HB 1016 (Farrer) requires the Department of Human Services to study the feasibility of changing from per diem payments to a Designated Related Group (DRG) payment structure for care delivered to Medicaid patients in hospitals.
Plus a bonus …GUNS IN HOSPITALS
SB 724 (Dismang) ensures that hospitals posting appropriate signs do not have to allow guns on their premises. SB 37 (Clark) will still prohibit employers from restricting a licensed employee’s ability to possess a legally owned handgun in the employer’s parking lot in a motor vehicle.
The AHA, in collaboration with the Mitchell Williams law firm, will be distributing a full legislative report to all hospital CEOs. To request a copy, please email Jodiane Tritt at firstname.lastname@example.org.