The Texas Legislature convened in January facing an unprecedented $26 billion revenue shortfall. That problem was the backdrop for virtually all public policy discussions which took place in Austin during the 82^nd Regular Session. Bill filings were down 20 percent in 2011, relative to 2009, chiefly due to the funding shortfall. The members also wrestled with congressional and legislative redistricting, which takes place after each decennial census, and is generally regarded as the most contentious activity the legislature can consider.

The Federation of Texas Psychiatry joined with the Texas Medical Association to overcome these enormous funding deficits, as well as meet the challenges brought by various interest groups to emasculate the Texas Medical Board, weaken the state’s ban on the corporate practice of medicine, and expand the scope of practice of allied health professionals.

We are pleased to report to you the outcome of our efforts – which by and large represent meaningful wins for the mental health community and physicians in general. What follows is a look at the major issues considered by the legislature during the regular session, as well as the subsequent special session.

HB 1 was filed as a bare bones budget of $164.5 billion, calling for deep cuts to health and human services. It was meant to serve as a "worst case scenario," as it was short of what it would take to maintain current health services, especially given population growth and inflation. HB 1 slashed Medicaid and Children’s Health Insurance Program (CHIP) physician payments by 10 percent, expanded Medicaid HMOs statewide, and dramatically reduced mental health services.

The Senate filed a $176.5 billion budget - $12 billion more generous than the House version. The Senate budget plan restored funding for critical health care services, and reduced the cuts for physicians’ Medicaid and CHIP payments. It also preserved some funding for community based mental health and hospital services for adults and children and graduate medical education.

To reconcile differences between the two chambers, a conference committee comprised of 5 House members and 5 Senators was appointed. The committee adopted several TMA priorities: elimination of the additional 10 percent Medicaid/CHIP payment reduction for physicians, restoration funding for community based mental health, and providing funding for smoking prevention and cessation. Despite these improvements, the bill makes deep cuts in public health and graduate medical education. Funding for the family medicine residency program will decline 74 percent, and conferees eliminated funding for the other primary care residency programs.

Nevertheless, mental health spending was a big winner in terms of fund restoration. The budget initially introduced by the House slashed MH spending by 20% off of current level. The Senate version fully funded MH spending back to 2011 levels - an amount which many may characterize as inadequate to meet current needs, but represents a wild improvement from the House version. Budget conferees approved Senate levels of spending virtually across the board. All told, the Federation helped preserve more than $300 million of additional state mental health spending across all budget strategies.

Ultimately, while the budget passed both chambers, the legislature also needed to pass certain revenue generating bills, as well as school finance reform. These non-tax revenue bills died in the closing days of the regular session, so Gov. Rick Perry called the legislators back in for an immediate special session to address these bills and a list of other priorities that had not been met.

One of these "must pass" bills from the special session was Senate Bill 1, the school finance plan for distributing the $4 billion in cuts to districts statewide, as well as making several payment deferrals and accelerations of certain tax collections. The bill generates billions in revenue, and was needed to make the budget balance for the upcoming biennium.

The legislature also enacted Senate Bill 2, another fiscal matters bill needed to balance the state budget for the next biennium. One controversial amendment would have directed any surplus in the Rainy Day Fund to enrollment growth in Texas schools, which are underfunded by $4 billion in the new budget. Some believe that there could be an additional $2 billion in the RDF, assuming the economy continues to improve. However, that amendment was ultimately stripped during a conference committee reconciling the difference between the House and Senate versions of the bill.

HB 2725 by Rep. Will Hartnett is an attempt by the legislature to address the severe backlog of persons waiting in county jails to receive competency restoration services, caused by the lack of available beds for forensic commitment. HB 2725 makes multiple changes regarding incompetency procedures, including specifying 60 days for an initial inpatient competency restoration period if the defendant is charged with a misdemeanor offense and a period of not more than 120 days if the defendant is charged with a felony.　　

The bill also clarifies how long a defendant can be kept in a correctional facility, an inpatient facility or an outpatient competency restoration program, and requires the DSHS and the Health and Human Services Commission to study the feasibility of providing home and community-based services instead of institutional care to persons with severe and persistent mental illness who have a history of more than one inpatient forensic commitment.

HB 1386 by Rep. Garnet Coleman will establish certain early intervention mental health and suicide programs in public schools and will require school districts to develop policies on bullying. Under the new law, the Department of State Health Services & the Texas Education Agency will provide and update annually a list of recommended best practices for early mental health intervention and suicide prevention programs to be implemented in public schools. The programs will notify parents when there may be a need for appropriate mental health assistance for a student, but the medical decisions will be left up to each parent.

HB 167 by Rep. Richard Raymond prioritizes the parties authorized to transport patients committed to mental health facilities, an issue that has been of growing concern in the law enforcement community. A law enforcement unit is poorly equipped to handle the needs of a patient suffering from a mental illness, and requiring them to do so diverts officers from their function of protecting the citizens of Texas. Under the bill, a court may authorize transportation through a special officer for mental health assignment, the facility administrator of the designated mental health facility, a representative of the local mental health authority, a qualified transportation provider, or the sheriff, in order of priority.　

SB 43 by Sen. Judith Zaffirini closes a loophole in existing law, whereby a psychiatric institution is not held liable for an employee's sexual exploitation of a patient unless the institution had "reason to believe" that the abuse would occur.　 Because the statute describes the victim as "the person" instead of "a" or "any" person, "reason to believe" can only be established if the employee abused the same person twice.　 Therefore, a mental health provider could continue to abuse different patients into perpetuity without any liability assigned to the perpetrator's employer as long as the provider does not victimize the same patient twice.

HB 3531 by Rep. Mark Strama as initially filed would have prohibited children in the foster care program from being prescribed four or more medications of any kind concurrently. The Federation persuaded the bill’s author to amend the legislation to improve the current system being administered by HHSC, to monitor prescriptions of certain drugs under the Medicaid program for children in foster care.

SB 47 by Sen. Judith Zaffirini would have required HHSC to develop rules to prohibit the administration of injectible psychoactive medications via a standing Pro Re Nata order. 　While the bill provided an avenue for circumvention of this prohibition in an emergency setting, as a whole, the bill did not reflect an appreciation of the difficulties of treating patients experiencing a psychotic break.

The Federation objected to SB 47 as an unwarranted intrusion into the practice of medicine. It was our position that the legislature need not prescribe an outcome of the rule making process by mandating that the rules prohibit any particular practice, because such decisions are best left to physicians, or determined at the agency level, through rulemaking. The bill was never heard in House Committee, chiefly as a result of the concerns raised by the Federation.

SB 1161 by Sen. Jeff Wentworth was, in the view of the Federation, overly intrusive and unresponsive to the needs of mental health patients, and the bill died without a vote in Senate Committee. The bill would have authorized a court to require a person to follow an assisted outpatient treatment program for 90 days after completion of court-ordered mental health services, when the person has received involuntary mental health services six or more times in the preceding year.　 Failure to follow the "continuing care plan" could result in a judge issuing a warrant for the person’s apprehension.

SB 1162 by Sen. Jeff Wentworth was intended to address the concern that mental health patients are seeking to commit "suicide by cop." The bill would have required a medical professional to report to law enforcement personnel and disclose confidential information relating to a patient if the professional has reason to believe and does believe that a patient is mentally ill and intends to attempt suicide by acting in a manner that provokes a lethal response by a police officer.

The bill also provided for detention without a warrant and was without a mechanism to remove the determination of intent of suicide under the bill. The Federation felt this bill was an inappropriate avenue of intervention on the part of law enforcement, and would have had a chilling effect on the ability of a physician to treat a patient with mental illness. The Federation raised strong objections to the bill author and the Senate Committee Chairman; consequently, the bill was not passed out of Senate Committee.

HB 836 by Rep. Mark Shelton was a comprehensive assisted outpatient treatment bill that was offered by Rep. Shelton, a physician in Fort Worth. His goal was to provide additional treatment avenues to the courts. However, the Federation raised concerns about provisions in the bill that could have resulted in courts ordering treatment avenues that may be less expensive or more convenient, rather than truly attending to patient interest and clinical need. 　　Ultimately, the bill did not make it out of committee.

CSHB 300 by Rep. Lois Kolkhorst will strengthen state privacy law on top of the federal Health Information Portability and Accountability Act (HIPAA). It would ban the sale of personal health information, for direct or indirect remuneration, but allow it for treatment, payment, or health care operations. It also sets up a process for notifying patients of, and obtaining consent for, the electronic transfer of their medical records. Physicians or other health care providers who willfully break the rules or are repeat offenders may be subject to disciplinary action by their licensing agency. TMA worked to achieve numerous changes on the bill so it won’t adversely affect physician practices.

SB 8 by Sen. Jane Nelson would establish a statewide plan for improving quality and increasing efficiency of health care collaboratives through performance based measures, testing collaborative models between physicians and other health care providers, and requiring public reporting of preventable readmissions and complications. TMA, the Texas Association of Health Plans, and the Texas Hospital Association negotiated how the new paradigm in the bill would play out in the real world. The bill did not pass during the regular session, but it was revived during the special session.

HB 5 by Rep. Lois Kolkhorst would authorize the state to participate in a multistate compact to help fund and administer Medicaid. The terms of the compact would be submitted to Congress for its consideration. If approved, member states could pursue waivers that would relieve the state of federal mandates regarding Medicaid; CHIP; and all other health care programs, such as mental health and public health services. If successful, Texas likely would receive a block grant of around $60 billion, based on 2010 state/federal health care spending. Texas would then create its own health care program to replace Medicaid, CHIP, and all the other public health services. The bill died in Regular Session, but was revived in special session.

HB 13 by Rep. Kolkhorst calls for the development of a federal waiver to give Texas greater flexibility in the design and operation of the Medicaid program. TMA raised several concerns about the bill - specifically whether Texas could secure enough funding to cover not only annual medical inflation, but also caseload growth. The bill died during regular session, but was refiled during the special session.

SB 7 (special session) by Sen. Nelson revived the key elements of HBs 5 & 13, and is predicted to save the state more than $400 million over the 2012-2013 biennium. Supporters claim the bill will make Medicaid more cost-effective, allow doctors to partner with hospitals and other health care groups to reach better outcomes and expand Medicaid managed care into the Rio Grande Valley.　

The bill also restricts family planning spending by Planned Parenthood and similar groups and bars hospital districts that use tax revenue to finance an abortion from getting state funding, except in the case of a medical emergency.　 SB 7 also includes provisions creating a health care compact, similar to language passed by Georgia and Oklahoma, as well as language that directs state officials to pursue a federal waiver to operate Medicaid with a federal block grant.

HB 2245 by Rep. John Zerwas will create physician incentive programs to reduce hospital emergency room use for non emergent conditions by Medicaid patients.

HB 3678 by Rep. Fred Brown would implement cost saving measures for the Medicaid vendor drug program and child health plan program prescription drug benefits. It would implement mandatory generic formulary and mandatory three prescription drug limit within Medicaid, among other changes. This bill faced strong objections from the pharmaceutical industry, as well as from the Federation. Despite multiple efforts to revive it, thankfully, the bill died in House Committee.

This session saw a compromise between the TMA and the Texas Hospital Association on the critical issue of physician employment.

SB 894 by Sen. Robert Duncan and Rep. Garnet Coleman will allow critical access hospitals, sole community hospitals, and hospitals in counties of 50,000 or fewer to employ physicians. Most of these hospitals are run by local governments. The bill contains many features that protect the physician’s clinical autonomy against the corporate practice of medicine, including:

• Placing the responsibility for all clinical matters — bylaws, credentialing, utilization review, and peer review — under the medical staff;

• Guarantee physicians’ independent medical judgment;

• Stating that all physicians — employed or independent — are subject to the same rights and responsibilities;

• Allowing employed physicians to participate in the selection of their liability insurance and have the right to consent to settle in a liability action; and

• Requiring the medical staff to designate a chief medical officer (CMO) who must be approved by the hospital board. The CMO has the duty to report to TMB that the hospital is hiring physicians under this bill and that the CMO is the contact for TMB. The CMO has a duty to report instances of interference to TMB.

Other physician employment bills that passed include:

HB 1568 by Rep. Coleman will allow the Harris County Hospital District to employ physicians, with certain protections. The bill provides for a structure for the supervision of all clinical issues related to the practice of medicine in a Medical Executive Board (MEB). It imposes no new structure, but rather utilizes the existing MEB as a physician lead group in charge of the practice of medicine by all physicians employed or medical school affiliated providing care in District facilities.

HB 2351 by Rep. Ruth Jones McClendon allows the Bexar County Hospital District to employ physicians, with protections agreed to by TMA, in order to meet its statutory mission of providing care to the indigent. The bill resulted from local consensus between the Bexar County Medical Society, the hospital district and medical schools to develop an employment structure that protects a physician’s clinical autonomy and the patient physician relationship.

HB 670 by Rep. Myra Crownover would prohibit smoking in all public places and workplaces. Unfortunately, the bill died at the end of the Regular Session. It was revived during the special session as HB 46, and was amended into must-pass fiscal legislation, but the language was ultimately stripped out during conference committee.

There were a number of bills filed which would expand the scope of practice for a range of medical professionals, including advanced practice nurses, chiropractors, physical therapists, optometrists, diagnosticians, and others. Despite their best efforts, the psychologists were unable to find an author for their proposed legislation providing for prescribing privileges – due chiefly to opposition by the Federation and TMA.

Happily, none of the proposed scope expansion bills passed the Legislature in 2011.

HB 708 by Rep. Kelly Hancock, HB 915 by Rep. Wayne Christian, and HB 1266 by Rep. Garnet Coleman would each have allowed advanced practice nurses to practice independently of physician supervision. The bills would apply to nurse practitioners, nurse anesthetists, and clinical nurse specialists, and all would be allowed to prescribe, diagnose, and order therapeutic care independently of physician supervision.

HB 637 by Representative Craig Eiland would have allowed physical therapists (PTs) direct access to treat patients without referral from a physician. It would leave the decision to the PT when and if to refer to "an appropriate health care practitioner" if there is not a "significant functional improvement in the patient’s condition within a reasonable and predictable time."

SB 1056 by Senator Carona would have greatly expanded the scope of practice for optometrists. The bill would have allowed optometrists to perform certain surgeries, prescribe or administer any oral or parenteral drugs, and use the title "optometric physician."

SB 1084 by Sen. Jeff Wentworth would have established a definition of "complementary and alternative health care services" in state law, and defined which acts practitioners of these services are prohibited from doing (such as surgery, diagnostic testing, the exercise of prescriptive authority, and medical diagnosis) but allow them to perform all other services.

HB 680 by Rep. Charles Schwertner extends TMB's deadline for completing a preliminary investigation of a complaint from 30 to 45 days after receipt of complaint. The new law also extends TMB's deadline for notifying physician named in complaint of an informal meeting; must notify physician of time and place of meeting not later than 45 (rather than 30) days before date of meeting.

SB 190 by Senator Nelson will do the following:

• Allow all physicians to tape the proceedings of a TMB informal settlement conference;

• Increase the time for a physician to respond to a notice from 30 days to 45 days;

• Eliminate anonymous complaints;

• Institute a statute of limitations on bringing a disciplinary action; and

• Prohibit the granting of a license to an applicant who has had a medical license suspended or revoked by another state.

SB 190 was woven into HB 680 as a floor amendment and was signed by the governor.

SB 191 by Senator Nelson, which will bind TMB to the ruling of an administrative law judge in a proceeding supervised by the State Office of Administrative Hearings.

SB 227 by Senator Nelson, which will provide discretion for TMB to waive a fine in lieu of a remedial action plan for a minor administrative violation.

CSHB 1013 by Rep. Brown would have increased all physicians’ licensing fees to pay for more bureaucratic requirements from TMB, which could advantage physicians that potentially have quality of patient care issues. A floor amendment eliminated a number of concerning elements in bill, but the bill ultimately did not pass.

HB 15 by Rep. Sid Miller will require women to have a sonogram before terminating a pregnancy. This bill was designated as an emergency item by Gov. Perry, and has already been signed into law.

During special session, the legislature adopted Senate Bill 6, an education bill that broadens the way districts can use funding for textbooks, as well as Senate Bill 8, which will permit school districts to achieve savings by furloughing teachers, reducing contract termination notification and minimum salary requirements and expanding the Texas Education Agency's authority to grant waivers for the 22:1 student teacher size ratio.

The provisions in SB 8 were hotly contest all year. Education leaders in the state legislature characterized the bills as "job savers" by giving more flexibility to school district officials. Teacher groups were very critical of the new law, which passed largely along party lines.

Once each decade, the legislature is required to use new U.S. Census data to reapportion the number of U.S. congressional districts in each state, and draw new districts for Congress and the Legislature. Maps for the Texas Senate and the House of Representatives were passed during the regular session, and largely protect the status quo. Sen. Wendy Davis was the most obvious victim on the Senate side – her marginally Democratic district is now strongly Republican. The House map largely protects tenured incumbents of both parties, and will likely yield a House of Representatives controlled by the GOP, albeit with somewhat fewer than the two-thirds majority the Republicans currently enjoy.

Congressional redistricting was addressed during the special session by enacting Senate Bill 4. The bill preserves the GOP’s overwhelming majority in the state’s congressional delegation, despite vocal objections from Democrats that the bill would improperly undermine minority representation in Washington. Lawmakers on both sides of the aisle acknowledge that all redistricting maps will likely be settled by a court or the U.S. Department of Justice in any event.

House Bill 3, passed during the special session, will overhaul the claims process for homeowners along the coast whose properties are damaged by hurricanes and to ensure that TWIA, the state's insurer of last resort, remains solvent. Lawmakers argued over how much to limit a homeowner’s ability to sue TWIA if the agency fails to honor their policies. Ultimately, a compromise was struck on that issue, as well as proposed limits on what lawyers can collect when suing over mishandled and inadequate claim settlements.

This was the other "must pass" bill considered during the special session. The legislation was a priority for Gov. Perry, and judicial interest groups such as Texans for Lawsuit Reform and the Texas Trial Lawyer Association monitored legislative activities closely. Partisan sensitivities were also heightened due to the involvement of prominent plaintiffs' attorney Steve Mostyn, who has made a specialty of TWIA claims and was Gov. Perry’s most vocal antagonist during the 2010 election cycle.　

A hot button topic among Tea Party circles, "sanctuary cities" references any local unit of government which adopts explicit policies prohibiting law enforcement personnel from inquiring about the immigration status of people they detain or arrest. Under bills being considered by the legislature in special session, any local entity that refuses to allow its peace officers to do so would be denied state funding.

Each chamber passed a version of the bill at some point, but the legislation was objected to by local governments, law enforcement officials, and the business community. The bills stalled in committee last week, and efforts to attach provisions to SB 1 failed when author Senator Robert Duncan refused to accept language on that fiscal matters bill. This bill is dead for the session.

House Bill 4, which is intended to ban invasive pat-downs by TSA agents during security screenings at airports, was a late addition to the call for this special session. A similar proposal was pulled down during floor debate in the regular session after the U.S. Department of Justice warned that its passage could violate federal law and disrupt commercial flights in Texas. More recently, House Speaker Joe Straus referred to the bill as a "publicity stunt," and said its passage would make the Texas Legislature a "laughingstock." The bill was strongly supported by radio host Alex Jones, who has made a career of criticizing what he perceives as federal attacks on personal liberties.

When negotiations over the bill broke down toward the end of the special session, in a bold move, the Senate passed a version of the bill and adjourned Sine Die, meaning the House would either need to adopt the Senate version as written or the bill would die. The House rushed the bill through committee and to the floor, but end of session rules required the house to adopt the bill with a four-fifths vote. Ultimately the votes were not there, and the bill died for the session.

The 82^nd Legislature was one of the most contentious meetings of the House and Senate in recent memory, but ultimately, very few bills passed which will adversely impact the practice of medicine in Texas. With regards to state spending, while major budget cuts across the spectrum of health care and education make it difficult to call the session "a success," Federation priorities fared much better than many other areas of state government.

If you have any questions about these bills or any other legislation that was considered during the 82^nd Legislature, please don’t hesitate to contact the Federation.

HB 732 (W. Hartnett/J. Huffman)- In the annual update of a physician’s profile, the Board must remove any record of a formal complaint if the complaint was dismissed more than 5 years before the date of the update and the complaint was dismissed as baseless, unfounded, or no action was taken against a physician’s license as a result of the complaint.

SB 292 (J. Nelson/S. King)- Each license holder shall submit to the Texas Medial Board telephone numbers, fax numbers and email addresses that the Board may use to contact the license holder in an emergency.

Perhaps, the bills that failed to pass may be more news-worthy, as follows:

HB 3127 (S. Turner) - Prohibits the administration of a psychoactive or psychotropic medication to a child younger than 11 years of age if the medication is not listed as approved for use with a person of the child’s age. The list of acceptable medications will include psychoactive or psychotropic medications approved by the FDA.

HB 3662 (S. Turner)- If a child in the managing conservatorship of the state is prescribed three or more psychotropic drugs, the state will refer the child’s case to HHSC to be reviewed by a physician to determine whether or not the child medical treatment is consistent with standards of care for a patient diagnosed with the child’s mental disorder or documented symptoms.

SB 750 (J. Zaffirini)- Addresses consent procedures for psychoactive medications in residential care facilities.

SB 1627 (J. Wentworth)- Requires that all patients committed to temporary or extended inpatient health services provide fingerprints for retention by the bureau of identification and records. Also requires the collection of a DNA sample from persons found manifestly dangerous in an order the person to extended mental health services or is committed to a maximum security unit.

SB 1665 (J. Wentworth)- Allows a judge to find a person who is committed for extended mental health services as "manifestly dangerous" if the judge or jury finds the proposed patient is likely to cause serious harm to others. It also establishes procedures for post-commitment treatment and supervision of persons with mental illness who are found to be manifestly dangerous.

SB 2247 (J. Zaffirini)- Prohibits a health care practitioner from issuing a prescription drug order for a PRN psychoactive medication administered by injection to a person who is in a residential treatment center unless the drug is administered in a psychiatric emergency or under court order.

HB 1150 (S. Thompson)/ SB 168 (R. Ellis)- Changes to standard not guilty by reason of insanity from "did not know that the conduct was wrong," to "did not appreciate that the conduct was legally or morally wrong."

SB 1626 (J. Wentworth)- A professional is required to report to a law enforcement agency any threat a patient communicates against a reasonably identifiable person if the professional determines in good faith that disclosure of the threat is necessary to protect the health or safety of a person.

SB 1623 (J. Wentworth)- Establishes a procedure to provide "federal prohibited person" information to the FBI for use with the National Instant Criminal Background Check System. "Federal prohibited person" includes persons ordered by a court to receive inpatient mental health services.

SB 1257 (K. Averitt)/HB 2750 (C. Eiland)- TMA’s centerpiece for its health insurance reform agenda. Provides accountability and transparency in the way health insurance companies conduct business.

SB 586 (J. Carona)/HB 1442 (K. Hancock)- Health insurers may not prohibit, penalize, terminate or restrict a preferred provider from communicating with a patient about the availability of out-of-network providers for the provision of the insured’s medical or health care services.

HB 3465 (J. Keffer)- Includes in the definition of "practitioner," licensed allied health professions in Texas of psychology, professional counselors and chiropractors and licensed by other states and Canada, such licenses allowing for the prescribing of dangerous drugs.

HB 696 (R.Orr)/SB 680 (G. Hegar)- Replaces physician-delegated model of care with an open-ended and loosely structured "prescriptive authority agreement" between a physician and a advanced practice nurse or physician assistant. There are no requirements for supervision and unclear responsibilities for the Texas Medical Board.

HB 858 (J. Laubenberg)/SB 484 (R. Deuell)- Requires a psychological associate to practice under the supervision of a psychologist in order to practice psychology.

HB 2023 (J. Laubenberg)- Establishes criteria under which a psychologist may delegate authority.

SB 1500 (R. Duncan)- Allows hospitals in counties of 50,000 or less population to employ physicians and retain all or part of the professional income generated by the physician for medical services provided at the hospital.

HB 3816 (F. Brown)- Proposes significant changes in the operation and procedures of the Texas Medical Board, including: 1) creation of an advisory panel to receive and investigate complaints concerning the operations and disciplinary actions taken by the Board; 2) a person filing a complaint against a physician must swear under oath to the truth of the statements in the complaint; 3) a physician who is subject of a complaint is to receive a copy of the complaint without redaction; 4) the physician who is subject of the complaint is to be given the identity and qualifications of each expert physician who reviewed the complaint; and 5) the Board may not require a physician to practice medicine in any particular manner.