‘A lot of little things’: Incremental health policy changes favored over sweeping reform in 2019 legislative session
Lawmakers this session took patients out of the middle of negotiations between providers and insurance companies over out-of-network hospital bills in a landmark bill decades in the making and codified the Affordable Care Act’s protections for people with pre-existing conditions amid ongoing threats at the federal level.
But, by and large, the changes that the Legislature pursued this year to improve health care in the state weren’t big or flashy. Instead, lawmakers passed a number of incremental changes — such as establishing a maternal mortality review panel, allocating additional state dollars for family planning services and commissioning studies on prescription drugs and a state public option — that experts say will slowly begin to move the needle on health care.
“There were some little tweaks that were made that are going to have a big impact,” said Catherine O’Mara, executive director of the Nevada State Medical Association. “I think sometimes it doesn’t seem that exciting because there’s not these huge reform bills but, in the aggregate, there were a lot of little things that were done that are actually going to positively impact people.”
Part of that emphasis on smaller health policy items over the sweeping change that had seemed possible when a Medicaid buy-in proposal was the subject of conversations between the 2017 and 2019 legislative sessions was signaled early on by Gov. Steve Sisolak, who during his campaign promised the creation of a Patient Protection Commission charged with a top-to-bottom review of health care in the Silver State.
When Sisolak first proposed it last year, the commission was framed as a blue-ribbon panel that would bring together patients, doctors and other policymakers and, after convening for 100 days, recommend changes to be implemented by the Legislature.
In light of that, there was initially some speculation that the panel would operate similarly to an advisory panel that Sisolak established in January to map out sweeping regulatory changes to the marijuana industry. But Sisolak took a different tack with the Patient Protection Commission, proposing legislation, SB544, to create that body in mid-May and charging the body to return to the 2021 legislative session with its recommendations in the form of two bill draft requests.
“For a first-session governor to create a Patient Protection Commission I think is really prudent,” O’Mara said. “The administration didn’t just jump in and say, ‘We’re going to change health care.’ He said, ‘We’re going to jump in and hear from everybody and figure out where all the pain points are and go from there.’”
Some in the industry see a model for the commission in the success of the landmark surprise emergency room billing legislation that passed this session, which was a byproduct of extensive conversations between insurers, hospitals and doctors between sessions and a mandate from Assembly Speaker Jason Frierson that they reach a compromise. Industry representatives who were a part of those conversations said they weren’t completely happy with the end result, but it was something that they were willing to live with.
“The surprise billing issue has been around and hasn’t come to any level of resolution for years, and a giant step was taken in that bill passed,” said Tom Clark, a lobbyist for the Nevada Association of Health Plans. “Kudos to Assemblyman Frierson, the speaker, for taking that bull by the horns and really making sure that all of the stakeholders got together and figured that out.”
Similarly, Sisolak has made it clear that the commission, an 11-member panel made up of industry and patient representatives, will be a working body. He warned at an industry briefing before the legislation was introduced that the overall goal is compromise, and anyone not working toward that could those their seat at the table.
“I think the way it’s being structured is going to give all sides of the issue a chance to be at the table and facilitate the development of good regulation and good legislation, whichever the case may be,” said Bill Welch, president and CEO of the Nevada Hospital Association.
Questions still remain about how the body will work with the interim health committee, a panel of lawmakers that studies issues between sessions to develop policy to bring forward when the Legislature meets again and with two health-care studies that have been commissioned. But industry representatives — from doctors and hospitals to insurers and pharmaceutical companies — are optimistic about the commission’s potential.
“For our part, we want to come to the table with proposed solutions and ideas and an openness to address the challenges Nevada’s health-care system is facing,” said Priscilla VanderVeer, a spokeswoman for the national drug lobbying association Pharmaceutical Research and Manufacturers of America, in an email. “We believe this is a real opportunity to work together across the broader health-care system and the political spectrum to enact real change and we look forward to being a part of it.”
Part of that optimism comes from the hope that the commission will look at the root cause of some of the state’s health-care ills with an eye toward prevention and mitigation early on to prevent poor health-care outcomes down the line. For instance, lawmakers approved rate bumps for hospitals providing intensive care to some of the state’s sickest babies, but the broader question of how to expand access to prenatal care so those babies are born healthy remains.
“When I hear from hospitals or skilled nursing facilities or certain provider types, their messaging is very good, but we need to be looking at the whole landscape of health care and where we need to move the dial and where the opportunity is,” said Richard Whitley, director of the Department of Health and Human Services. “If it can be prevented, if we can intervene early, we ought to intervene.”
Here’s a look at some of the other health policies that passed this session, and others that didn’t:
Studying (again) a state public option
A last-minute bill, SCR10, introduced by Senate Majority Leader Nicole Cannizzaro is tasking the Legislative Commission with studying the feasibility of allowing Nevadans to buy into the Public Employee Benefits Plan, or PEBP, which provides health insurance to state workers.
Cheryl Bruce, executive director of the Nevada Senate Democratic Caucus, framed the legislation as a way for the Legislature to continue to explore the idea of a public option. Conversations on the topic waned following the resignation of Democratic Assemblyman Mike Sprinkle, who had led the interim conversations on a Medicaid buy-in proposal.
“We think this is a good first step to get more information before moving forward with any future legislation,” Bruce said in a text message.
Some in the industry have raised concerns that the legislation is too narrow because it specifically targets the interim study to the feasibility of a PEBP buy-in and that it focuses on access to insurance without also targeting access to care.
“I did talk with the sponsor of the bill, and they assured me that some of the things I wanted to amend into the bill and include the bill are generically incorporated in the bill already,” Welch, the hospital association CEO, said. “I want to make sure they are focusing on the full picture.”
The overarching question that the study will have to address is who a public option plan aims to help. Conversations about increasing access to health insurance in Nevada have generally centered around increasing access to rural residents who only have one plan available to them for purchase on the exchange, improving access to residents across the state who are increasingly priced out of exchange plans or targeting the state’s undocumented population, which faces severe barriers to accessing insurance and care.
Before Sprinkle’s resignation, some of the conversations around Medicaid buy-in focused on how the proposal could help the state’s rural residents and possibly other populations on a limited basis.
“At the end of the day I will be shocked if this study shows much more than that again. I only say that because if you bring all of this uninsured population to the state’s health benefit plan it will change your actuarial mix of who are insured,” Welch said. “You’re going to be bringing in individuals potentially who have chronic medical conditions that will change how you actually set your premiums.”
Codification and stabilization of the Affordable Care Act
The most sweeping bill related to the Affordable Care Act that passed this session was AB170, which codified the federal health-care law’s protections for people with pre-existing conditions into state law. A similar measure last session was vetoed by former Gov. Brian Sandoval, who said at the time that it would have locked into law “requirements that may be unnecessary, imprudent, or simply unaffordable in the years to come.”
Approval of the legislation comes amid an ongoing legal challenge to the Affordable Care Act on the federal level that could strike down the law entirely, including its popular pre-existing condition protections.
“Who knows if the federal administration is ever going to actually overturn the Affordable Care Act, but they certainly are chipping away pieces of it,” said Elisa Cafferata, lobbyist for Planned Parenthood. “It’s good to have those protections in place because what everybody really liked about the Affordable Health Care was the preventative health care and pre-existing conditions.”
The compromise pre-existing condition language was first crafted a different bill spearheaded by Democratic Sen. Julia Ratti who, as chair of the Senate Health and Human Services Committee, worked to ensure the legislation would codify the protections in the Affordable Care Act as they stand now — no more and no less. The work on that bill, SB235, was then folded into Democratic Assemblywoman Ellen Spiegel’s AB170.
The legislation also requires health insurance plans to provide to the Governor’s Office for Consumer Health Assistance the phone number of a navigator or case manager who can help patients make an appointment with a doctor in a timely fashion. The bill had initially proposed requiring insurance companies to cover out-of-network doctor’s visits at no additional cost to patients if no in-network physician was readily accessible, but was amended down in a compromise with insurance companies.
Though it’s a small change, those in the health-care industry say it stands to improve access to care for patients.
“Our take is that AB170 is a very simple little bill that will actually have a practical impact in helping patients,” O’Mara said. “It’s one of those bills that isn’t flashy but will make a difference.”
The Legislature also passed two Affordable Care Act stabilization bills — SB481 and SB482 — that place additional restrictions on two types of health insurance plans with potentially skimpier coverage than that required under the federal health-care law and direct the state to apply for a federal innovation waiver to allow the state to explore other options to stabilize the individual health insurance market.
Heather Korbulic, executive director of the Silver State Health Insurance Exchange, said that together the bills “could have a dramatic impact on getting people connected to plans that are right for their needs.”
Lawmakers additionally approved the exchange’s budget, which included the funding necessary to become an entirely state-based exchange instead of the hybrid model that the exchange has been operating under now. Exchange officials have said that a Nevada-run platform will both save the state money and allow them to know who is actually purchasing individual plans through the exchange and better target their outreach.
“That itself lends a lot of autonomy and control,” Korbulic said. “Lawmakers were cognizant of that potential flexibility.”
Changes for hospitals
Lawmakers passed two bills this session that strike at the core of what it means to be a hospital and what services those facilities should and ought to provide.
One of them, Democratic Assemblywoman Maggie Carlton’s AB317, shifts the responsibility of determining whether to establish any additional trauma centers from the local level to the state. It comes amid renewed discussions over Southern Nevada’s trauma need and whether to approve additional trauma centers. Welch said that the change “might potentially create some additional time to make those determinations going forward” but that “overall the approach is a balanced approach.”
The legislation also requires every off campus facility that a hospital operates — such as a microhospital or freestanding emergency department — to have a unique national provider identifier number. The goal is to help the state better track and understand how those facilities are utilized compared to traditional hospitals.
Another bill advocated for by the hospital association, Democratic Assemblywoman Rochelle Nguyen’s AB232, requires all hospitals in the state to be certified by the federal Centers for Medicare and Medicaid Services (CMS). The legislation specifically targets a tourist-focused microhospital near the Strip, Elite Medical Center, which doesn’t bill Medicaid or Medicare.
In hearings on the bill, Elite argued that its business model isn’t based around providing care to Medicaid and Medicare patients and that it would rather write off the cost of uncompensated care it provides to those individuals than go through the onerous process to become Medicaid and Medicare participating. But lawmakers sided with the hospital association, which argued that hospitals should have the responsibility of taking care of all patients.
“We’re not opposed to microhospitals,” Welch said. “We’re supportive of microhospitals, but we’re supportive of them coming in and being a part of the integrated health-care delivery system.”
The legislation gives Elite until July 1, 2021 to be certified by CMS.
The Legislature also took steps to address the financial needs of the state’s hospitals, which have long argued that they are increasingly strained by the number of Medicaid patients they treat. Lawmakers approved a 25 percent bump in the per diem Medicaid rate to care for babies in the neonatal intensive care unit (NICU) and a 15 percent bump in pediatric intensive care unit (PICU) rates to ensure that hospitals are able to maintain the current level of services that they are providing to the community.
Welch said the hospitals are “ecstatic” about the increases.
“What it is going to do is ensure that those beds that we do have are not going to close, because there has been a lot of discussion over the last 18 months about whether certain hospitals were going to be able to continue providing services at that rate,” Welch said.
Hospitals also got a last-minute boost in the form of SB528, an appropriations bill passed in the final two hours of the legislative session that included a 2.5 percent increase to the state’s acute care per diem rate for Medicaid. Welch said that he had asked for a 20 percent increase at the beginning of the session but didn’t know whether hospitals would get any rate bump until those final minutes.
“Between those three things, that will help us immensely,” Welch said. “It won’t get us anywhere near cost, but at least it’s moving us in the right direction and hopefully will help us be able to sustain the services.”
After negotiation between proponents and the hospitals, lawmakers also passed SB364, Democratic Sen. David Parks’s bill requiring hospitals to identify patients by their preferred name and pronouns, representing a significant victory for the state’s transgender community.
Drilling down on drug costs
At the beginning of the session, there were several sweeping proposals to tackle the high cost of prescription drugs, including a mandate that the middlemen in the drug pricing process pass along rebates they negotiate with drug manufacturers to consumers and a Prescription Drug Affordability Board with the ability to examine high cost prescription drugs and limit what payers can spend on them.
Neither of those ambitious proposals moved forward this session, but lawmakers did vote to expand a diabetes drug transparency bill passed in 2017 to require manufacturers of asthma drugs and drug pricing middlemen, or pharmacy benefit managers (PBMs), disclose certain costs and profits to the state.
The bill, Democratic Sen. Yvanna Cancela’s SB262, requires manufacturers of asthma drugs whose prices have increased significantly in the past year or two to report specific data to the state for each drug including the cost of producing it, administrative expenditures such as marketing and advertising costs, profit earned, financial assistance provided to help patients, and coupons and rebates offered. PBMs are also required to report any rebates they negotiated and any profits they retained associated with asthma drugs that experienced significant price increases.
“The hundreds of thousands of Nevadans living with asthma deserve to know that the price they’re paying for their medication they need to breathe is fair, and this bill will help shed some light on factors affecting these drug prices,” Sisolak said at a bill signing last month.
But drug manufacturers, who sued over the diabetes drug transparency legislation two years ago, raised concerns during hearings on the bill that regulations adopted by the state in 2018 to keep confidential information companies deem to be trade-secret protected would only apply to diabetes drug reporting and not the new asthma drug reporting.
VanderVeer, the PhRMA spokeswoman, said that she couldn’t speculate on whether there will be litigation related to the new asthma drug transparency law.
“We will be closely monitoring and engaging in the regulatory process,” VanderVeer said.
Another bill, Republican Assemblywoman Melissa Hardy’s AB141, builds on some of the prohibitions on gag rules inserted by PBMs into contracts with pharmacists — preventing them from disclosing certain information to patients — passed in the 2017 session. The legislation prevents PBMs from stopping a pharmacist from providing information to patients about the availability of a less expensive drug and from penalizing a pharmacist for selling a less expensive generic drug to a person.
Lawmakers, in passing Cancela’s SB276, have also directed the Legislative Commission to appoint a committee to conduct an interim study concerning the issue of the costs of prescription drugs, including the impact the PBM rebates have on prices.
VanderVeer said that PhRMA was “glad to see a discussion about the broader pharmaceutical supply chain taking place in Nevada this year,” though the association still believes it was unfairly targeted in 2019.
“While we continued to see a one-sided political attack that took place in 2017, we are glad that there was some recognition of the broader pharmaceutical supply chain and the importance of protecting patients’ access to needed medicines and the future development of new treatments and cures,” VanderVeer said.
Access to care
Lawmakers tackled a number of broader access to care issues this session, too, including patients’ ability to access mental health, dental and family planning services.
One bill, which emerged from one of the regional behavioral health policy boards created by the Legislature in 2017, establishes a new endorsement for psychiatric hospitals to be deemed a crisis stabilization facility and mandates that those stabilization services be covered under Medicaid. The need for crisis mental health services in the state was brought into sharp focus in 2018 when WestCare abruptly closed its crisis triage center in Reno and Clark County had to shell out additional funding to keep the doors of the company’s Las Vegas crisis triage center open.
“These could be game changers from the impact they could have on reducing emergency room and jail holds on patients,” said Chuck Duarte, CEO of Community Health Alliance and chair of the Washoe Regional Behavioral Health Policy Board. “I’m hopeful we’ll see some of these facilities developing in Nevada. I think they’ll have a significant impact on unwanted institutionalization.”
The bill, AB66, also requires the state to adopt regulations to license and regulate providers of nonemergency secure behavioral health transportation services to transport people experiencing a mental health crisis. Right now, a significant portion of the burden of transporting individuals undergoing a mental health crisis falls on law enforcement, particularly in rural Nevada.
Another piece of legislation passed, Cannizzaro’s SB425, requires Medicaid to provide additional home and community-based services, including tenancy support services. Under federal law, states are allowed to implement tenancy support services for people who are elderly or disabled.
“It doesn’t solve the housing problem” Duarte said. “But this establishes the sustainable revenue stream.”
Other bills drilled down into the issue of access to dental care. One of them, Ratti’s SB366, establishes a new mid-level dental provider type, known as dental therapists, who will be allowed to perform a number of routine dental procedures currently performed only by dentists, including extracting loose teeth, filling cavities and applying sealants.
The dental therapists will only be allowed to practice in underserved areas, including federally qualified health centers, rural health clinics, tribal health clinics, and any other clinics that primarily serve Medicaid patients or other low-income, uninsured individuals.
Duarte said that it “makes a lot of sense” for federally qualified health centers, including Community Health Alliance, to be able to lean on dental therapists to provide services, particularly when non-emergency adult dental services are not covered by Medicaid in Nevada.
“Right now with Medicaid not covering adult dental services, it’s hard to provide comprehensive care to adults without insurance,” Duarte said.
Lawmakers also approved AB223, sponsored by Democratic Assemblywoman Dina Neal, requiring the Department of Health and Human Services to seek permission from the federal government to establish a pilot program to provide dental care to adults with diabetes.
Women’s reproductive rights were another key focus for lawmakers this session with the passage of SB179, a bill sponsored by Cancela that removes longstanding criminal penalties on abortion and removes requirements that doctors explain to women the emotional implications of undergoing the procedure, and SB94, which clarifies how state family planning dollars can be spent. Sisolak also allocated and lawmakers approved $6 million in state family planning funds this session.
“It’s going to significantly increase the access to family planning services around the state,” Cafferata, the Planned Parenthood lobbyist, said. “Especially for rural Nevada that bill is going to be significant.”
One family planning bill that did not advance last-minute was Cannizzaro’s SB361, which would have required the state’s chief medical officer to issue a standing order allowing for self-administered birth control, essentially allowing patients to skip a doctor’s visit and go straight to the pharmacy for their medication. Those involved with the legislation said there were some last-minute tweaks to the bill and that lawmakers ran out of time to get the bill finalized.
But Whitley, the director of the Department of Health and Human Services, said it may be possible for the state to take action on the issue in the interim, particularly to increase access to birth control in communities where it’s difficult to get in to see a doctor.
“The Board of Pharmacy has authority to explore their existing authority through regulation for that,” Whitley said. “I’d like to work with them to see if there is something we can do since we do know that much of our state is a health-care workforce shortage area.”
Public health solutions
Beyond the industry-specific changes they made, lawmakers also signaled their interest in focusing on public health issues, from maternal mortality to vaping.
AB169, sponsored by Democratic Assemblywoman Daniele Monroe-Moreno, established a maternal mortality review panel amid rising concerns nationally over the recent rise of maternal deaths and complications. To fund the board, Nevada is applying to the federal government for a slice of a $43.5 million grant from the Centers for Disease Control and Prevention dedicated to investigating the causes of pregnancy-related deaths and complications.
“It wasn’t controversial at all but the Maternal Mortality Review Board, which actually passed quite early, was a really an important step for the state to take,” Cafferata said. “It was one of those quieter bills, because it didn’t have a lot of controversy around it, but I think it will be a significant bill for all of us.”
Lawmakers also made changes to an opioid prescribing law passed in 2017 that was aimed at tamping down on the overprescription of opioids but that doctors said was unduly burdensome and harmful to patient care. The new bill, AB239, allows providers more discretion when writing prescriptions for controlled substances to treat acute pain.
Another bill, Ratti’s SB263, places a 30 percent tax on e-cigarettes and their accessories and directs a significant portion of the $8 million a year in revenue it is projected to generate back to vaping prevention activities. Whitley said the legislation puts Nevada ahead of the curve when it comes to prevention in this area.
“[It] is really a first in our state for taking a behavior and not waiting” for the FDA to take action, Whitley said. “If you look at the history of tobacco use or alcohol use or gambling or other behaviors that can in excess cause harm, really the response in vaping, we’re with the group of states that are ahead in starting to tackle this.”
A final public health-focused bill to establish an all-payer health insurance claims database, SB472, failed to move forward in the final minutes of the session. The bill would have required the state to compile a database of billing information from insurance companies to better understand health-care costs.
Whitley said that he believes it was another case where lawmakers ran out of time, but that he’s already exploring options for the department to pursue such a database on its own in the interim in conjunction with the UNLV School of Public Health.
“An all-payer database would allow us to actually see where services are occurring and where maybe we need to give focus,” Whitley said. “We’re going to continue to work with community partners and the university to see if we can do it as a voluntary database to build the system.”