THE OFFICIAL NEWS PUBLICATION OF THE VIRGINIA ORTHOPAEDIC SOCIETY
CONTENTS OF THIS ISSUE
Winter 2020 Issue
Legislative Update - November 2020
By Lauren Schmitt
Commonwealth Strategy Group
The General Assembly effectively completed its special session on October 16, having adopted a revised biennial state budget and taken substantial legislative action to address criminal justice and policing reform, election security, and the ongoing COVID-19 pandemic. The legislature recessed, rather than adjourned, to provide greater flexibility to adopt enabling budget language that will be needed if the bipartisan redistricting commission amendment is approved in the November 3 elections.
Healthcare and COVID-19 Legislation
There were a number of healthcare-related measures introduced in the legislature during the special session including:
Telemedicine. HB 5046 (D. Adams) and SB 5080 (Barker) direct Virginia’s Medicaid program, insurers and employers who offer accident and sickness subscription contracts, and HMOs to provide payment or coverage for telemedicine services, regardless of the originating site of the patient or whether the patient is accompanied by a health care provider at the time such services are provided. “Originating site” is defined in the bill as any location where the patient is located. The legislation bans health care providers from being required to use proprietary technology or applications to be reimbursed for providing telemedicine services. Lastly, the legislation requires Medicaid to continue to reimburse health care providers for Medicaid-covered services delivered via audio-only equipment and by telemedicine services until July 1, 2021.
The bill as introduced had originally contained a provision that would have included audio-only telephone services in the definition of telemedicine but was removed after opposition from the health plans and the Virginia Telehealth Network.
Anti-Price Gouging. HB 5047 (Murphy) is a PPE anti-gouging bill spearheaded by the Attorney General to help protect practices (as purchasers) rather than just individual consumers. It prohibits any manufacturer or distributor from selling necessary goods or services at an unconscionable price during a declared state of emergency. Under current law, the prohibition does not apply to a manufacturer or distributor unless it advertises its goods or services to consumers.
Healthcare Provider Immunity. HB 5059 (Willett) and SB 5081 (Marsden) provide that a licensed hospice, home care organization, private provider, assisted living facility, or adult day care center that delivers care to or withholds care from a patient, resident, or person receiving services who is diagnosed as being or is believed to be infected with the COVID-19 virus shall not be liable for any injury or wrongful death of such patient, resident, or person receiving services arising from the delivery or withholding of care when the emergency and subsequent conditions caused by the emergency result in a lack of resources, attributable to the disaster, that render such hospice, home care organization, private provider, assisted living facility, or adult day care center unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency and that resulted in the injury or wrongful death at issue. The bill contains an emergency clause making it effective immediately.
Purchase of PPE during a public health emergency. HB 5050 (Helmer) makes it easier for the Governor to purchase and distribute PPE during a public health emergency. It grants the Governor authority during a disaster caused by a communicable disease of public health threat for which a state of emergency has been declared to establish a program through which the Governor may purchase personal protective equipment (PPE) for private, nongovernmental entities and distribute the PPE to such private, nongovernmental entities. The bill exempts the Governor’s procurement of such PPE from the provisions of the Virginia Public Procurement Act, but requires the Governor to provide for competition where practicable and include a written statement regarding the basis for awarding any contract. The bill also requires the Department of Emergency Management to consult with and survey private, nongovernmental entities prior to implementing any such program in order to assess demand for participation in the program, as well as the quantity and types of personal protective equipment such entities would like to procure.
Visitation to nursing homes and hospices during public health emergency. HB 5041 (Head) requires visitation at nursing homes and hospices during the current pandemic according to state protocols and CDC guidelines. The bill requires the Board of Health to amend regulations governing nursing homes, certified nursing facilities, and hospices to require that, during a public health emergency related to COVID-19, each nursing home, certified nursing facility, and hospice establish a protocol to allow each patient to receive visits, consistent with guidance from the Centers for Disease Control and Prevention and as directed by the Centers for Medicare and Medicaid Services and the Board of Health. The bill contains an emergency clause and requires the Department of Health to promulgate regulations to implement the provisions of the act to be effective within 280 days of its enactment.
Access to public health information. HB 5048 (Sickles) and SB 5081 (Barker) clarify state law on the release of certain public health information, given the controversy surrounding the Virginia Department of Health’s (VDH) inconsistency in the release of COVID-19 outbreak data from nursing homes and other congregate settings. Such information shall include the name of the place at which the outbreak has occurred and the number of confirmed cases of and deaths resulting from such communicable disease reported by each such place. The bills contain an emergency clause.
Public health information to be posted on website. SB 5090 (Dunnavant) addresses how certain public health information should be made available to the public online by the Virginia Department of Health. It requires that for the duration of the emergency declared by the Governor in response to COVID-19, the Commissioner of Health shall make available to the public on a website maintained by the Department of Health information about confirmed cases of COVID-19 in the Commonwealth, by week and by health district, including (i) the total number of confirmed cases of COVID-19; (ii) the number of confirmed cases by age group and by race and ethnicity; and (iii) the percentage of cases that are known to be associated with a nursing home, assisted living facility, or correctional facility. The bill also requires the Commissioner to make available to the public on a website maintained by the Department of Health information about and analyses of such data and to develop and publish COVID-19 indicators with thresholds to include case incidence rate, percentage of polymerase chain reaction (PCR) tests that are positive, rate of COVID-like illness visits to emergency departments, rate of current confirmed COVID-19 intensive care unit hospitalizations, and percentage of hospital beds that are currently occupied.
Nurse Practitioners. SB 5070 (Kiggans) would have reduced the number of years of full-time clinical experience a nurse practitioner must have to be eligible to practice without a written or electronic practice agreement from five years to two years. This bill was expected after the Governor’s executive order expanding the healthcare workforce that contains the same provision, effective only during the current public health emergency. We opposed the bill and it was voted down overwhelmingly in committee. Unfortunately, the final budget included language extending the Governor’s Executive Order to the end of the state of emergency. We can fully expect there will be legislation introduced once again in January to make this change permanent.
Administration of Influenza Vaccine by Dentists. Delegate Mark Sickles introduced a budget amendment to allow dentists to administer the flu vaccine. We joined our fellow physician colleagues in opposing this amendment on the grounds that it disregards the numerous patient safety concerns that need to be addressed prior to expanding the medical authority of a healthcare provider. The patron withdrew the budget amendment, and it will no longer be considered this session. It is likely they will try again in January and may include the COVID-19 vaccine this time around.
Looking Ahead
The 2021 legislative session will be here before we know it. In light of the ongoing pandemic, we expect the state budget and COVID-19 to remain the top issues. They have not determined how session will be conducted, but it is very likely it will be virtual. Now that the special session is over, we will work on determining our legislative focus for 2021. As always, advocating for our members and patients is our top priority.
Lastly, 2021 is a major election year in Virginia. The statewide offices of Governor, Lieutenant Governor and Attorney General, and all 100 seats in the House of Delegates, will be on the ballot. Election year politics often spill over in the legislative session. So, while there is a lot of unknown at the moment, one thing we can guarantee is that it won’t be boring!
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