As Virginia hits "Crossover," EP leaders give legislative update
Today, the Virginia General Assembly hits its halfway point of session — known as Crossover Day. And this past weekend, five members of VACEP’s Board of Directors provided an update to fellow emergency physicians across Virginia on the status of key legislation that the group is supporting, opposing, or simply monitoring.
VACEP Board members and emergency physicians Courtney Zydron, David Fosnocht, Joran Sequeira, Todd Parker, and Cameron Olderog address a room of peers this past weekend at The Omni Homestead Resort at the VACEP CME Conference.
Top issues keeping VACEP’s legislative team busy include scope of practice for NPs and other advanced-practice providers, COVID-19, prescriptions, and medical malpractice. VACEP is also attempting to end a harmful downcoding item in the budget that is gutting funding to EDs. The issues not only impact emergency medicine, but ultimately harm or help patient care.
“We are overwhelmingly on the right side of these issues,” said VACEP President Todd Parker, MD, FACEP. “It’s how we tell our story, how we convince business people and lawyers and others who really have little interaction with anything that we do that we are on the right side of those issues.”
Some of the key legislation VACEP is tracking:
COVID-19
One of the biggest needs for emergency physicians in the COVID-19 era has been liability protection. In the early pandemic days, then-Governor Ralph Northam’s emergency Executive Orders extended legal protections to healthcare practitioners, including emergency physicians. “We were practicing differently than we would normally,” Parker said, thereby requiring legal cover. That included, for example, execution of triage protocols or scarce resource allocation policies necessitated by crisis standards of care.
But the Order expired, things seemed to be getting back to normal, then Omicron came. “We were 200 percent-plus our normal ER volume,” Parker said. “You go home every night scared to death about what you missed, because you're moving through so many patients so quickly.”
Senate Bill 148 will codify that if there is another public health emergency, it will automatically include liability protections.
Other COVID-19 legislation:
House Bill 519 would have prohibited hospitals from limiting visitors to COVID patients. It was killed in a subcommittee.
House Bill 900 frees up more beds in a public health emergency.
Prescribing
House Bill 420 would have required emergency physicians to dispense naloxone along with any opiate prescriptions. The bill was killed in an appropriations committee.
It’s a bill that, like many VACEP opposes, regularly pop up even if they’ve been killed in the year prior.
“You might win a battle, but you’re not winning the war. Just because legislatively you get something favorable one year, the opposing side is almost always going to bring it up again the next year,” Parker said. “And so we have to fight to prevent them from mandating how we practice medicine.”
Immediate Past-President Cameron Olderog, MD, FACEP added that emergency physicians are not against patients getting naloxone or other important medications — it’s a matter of being forced by legislation on how to practice.
In addition:
SB 73 would have allowed prescription of hydroxychloroquine and ivermectin for treatment of COVID-19, despite neither being indicated for the virus, without Board of Medicine or hospital reprisal. It was passed by indefinitely in committee on an alarmingly close 9-6 vote.
Psychiatric/TDO/Substance Use Disorder
Joran Sequeira, MD, FACEP has been on the frontline advocating for House Bill 684 and Senate Bill 119. They require local Community Services Boards to disclose medical information to an emergency physician in cases where a patient is being screened by the CSB to determine whether they meet criteria for involuntary temporary detention.
Here is the language in Virginia Code 32.1-127, #20, which requires doctor-to-doctor verbal communication between referring physicians and on-call physicians in the psychiatric unit.
Such information can be helpful to better perform a medical assessment before sending the patient to an inpatient facility.
Sequeira added that the Code of Virginia actually requires that if an EP requests a doc-to-doc communication with a psychiatrist or other physician in these cases, a doctor must be made available. “All my psychiatric colleagues are now well aware that I push for it every time it is necessary,” Sequeira said. “By working together directly, we are able to come to an agreement over the proper testing.”
In 2018, VACEP passed guidelines that outline which tests are required in an effort to minimize unnecessary — and potentially harmful — tests and create a standard of care. Private and state hospitals often request tests that some EPs feel are unnecessary.
She continues to educate providers statewide about the law and guidelines, and encouraged fellow physicians to request doc-to-doc consultations to discuss the medical assessment. “It's all up to you guys to keep pushing for it.”
Other mental health-related bills:
House Bill 1232 increases citizen members on the Virginia Behavioral Health Commission (“Deeds Commission”). It will likely pass.
Senate Bill 713 would have transferred custody of individuals under ECO to a hospital for up to 23 hours. The bill was continued to 2023.
Medical Malpractice
Senate Bill 599 would have waived malpractice damage caps in catastrophic cases. It was passed indefinitely in committee.
Scope of Practice
In 2018, VACEP succeeded in passing the most stringent nurse practitioner “transition to practice” model in the country, requiring five years of post-graduate training for NPs before they can practice independently. Then the pandemic hit.
“And the very first thing that nurse practitioners did was go to the Governor and say, ‘We need more healthcare providers to deal with this pandemic, you need to eliminate the five years,’” Parker explained.
Under an emergency order, Northam’s administration axed the five-year requirement and changed it to just two years — albeit temporarily — for independent practice. With 2022’s House Bill 1245, nurse practitioners are trying to keep training before independent practice permanently at two years.
Lawmakers are asking for data showing that independent NPs have lower practice outcomes, information that Parker said is likely minimally tracked. VACEP is leaning on studies that show high variability in training for NPs. Another study out of Mississippi showed higher costs when NPs are used over physicians. (See these studies and more in our Advocacy Center).
VACEP is fighting that bill, along with:
House Bill 896, which allows NPs to lead a patient care team and eliminates the requirement they carry medmal insurance.
Senate Bill 414 would increase the physician supervision capacity of nurse partitioners from six to 10. VACEP successfully landed a carveout that keeps the cap at six in EDs. Parker, who is friends with the bill’s sponsor and fellow Navy veteran Sen. Jen Kiggans, noted VACEP was able to work with her on the carveout through their relationship. Kiggans also happens to be an NP.
Scope of practice issues are a slippery slope, Parker explained, and impact other specialties. For instance, House Bill 213 and Senate Bill 375 would allow optometrists to perform certain laser-eye surgeries if certified by the Board of Optometry. But optometrists are not medical doctors, and eye physicians and surgeons — ophthalmologists — fought that bill, which is passing quickly through the General Assembly and will likely and overwhelmingly pass.
To combat scope issues in particular, Parker added that more physicians are needed in the legislature, which has some advance-practice providers who are lawmakers but nowhere near enough physician representation.
“We really need to shift the focus on getting more physicians back into the legislature, at the state and federal level,” he said. He noted that physicians are even being attacked in the legislature; House Bill 243 would have increased from 12 to 36 months the time required to get a license to practice medicine, osteopathy, chiropractic, and podiatric medicine. Parker called the legislation “ridiculous” and lawmakers appear to have agreed; it was killed in subcommittee.
In addition:
House Bill 1323 and Senate Bill 672 would allow pharmacists to perform CLIA-waived tests and dispense medications (I.e. rapid strep, rapid flu, urine dip) and give routine vaccines. It’s in the process of being amended, “and what the final product is will be interesting,” Parker says. “We're fighting that as hard as you can imagine, and family practitioners and pediatricians are fighting even harder.”
Downcoding
Finally, VACEP is fighting a damaging budget item in Virginia that is shortchanging emergency physicians by $40 million each year by automatically downcoding certain diagnoses from Medicaid patients. Many of the nearly 800 conditions are common, including status asthmaticus, diabetes mellitus with hyperglycemia, or abdominal pain.
The budget item, Parker said, “is stunning. It's ridiculous. It violates the Prudent Layperson Standard.” It is also in direct contradiction to the federal No Surprises Act, which upholds a CMS rule that no claim for payment of a service rendered in the emergency department can be denied, in whole or in part, based solely on the final diagnosis.
VACEP filed a federal lawsuit and a direct appeal to CMS. Unfortunately, in late 2021, CMS said Virginia’s Downcoding Provision is allowed.
The CMS response “blew us away. Because it's not legal,” Parker said. “I mean, it's just not. It goes against all precedent.” He said VACEP is meeting with CMS directly to further explain the item and has put in an amendment to hopefully get the provision repealed from the Virginia budget.
Additionally
Senate Bill 340 would regulate policies, signage, and advertising of freestanding EDs. It was continued to 2023.
Senate Bill 448 would require hospitals and emergency departments to create and follow protocols regarding domestic violence/sexual assault. It was amended to a study.
A few other bills would have required mandatory training on implicit bias/cultural competency. They were continued to 2023.
To read more in-depth coverage of every bill VACEP is monitoring, check out our Advocacy Center.
