ARIZONA HOUSE OF REPRESENTATIVES
Forty-ninth Legislature –First Regular Session
Minutes of Special Meeting
House Hearing Room 4 -- 9:00 a.m.
Chairman Barto called the meeting to order at 9:04 a.m. and attendance was noted by the secretary.
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Mr. Ableser |
Mrs. Goodale |
Mr. Court, Vice-Chairman |
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Mr. Antenori |
Mr. Lopes |
Mrs. Barto, Chairman |
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Mr. Bradley |
Mr. Murphy |
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Mr. Boone (excused) |
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SB1018 – DP (5-2-0-2) |
SB1246 – DP (6-0-0-3) |
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SB1052 – NOT ASSIGNED |
SB1264 – NOT ASSIGNED |
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SB1097 – DP (7-0-0-2) |
SB1285 – DP (8-0-0-1) |
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SB1100 – DP (7-0-0-2) |
SB1310 – NOT ASSIGNED |
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SB1104 – DPA S/E (7-0-0-2) |
SB1326 – NOT ASSIGNED |
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SB1105 – DP (7-0-0-2) |
SB1336 – NOT ASSIGNED |
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SB1209 – NOT ASSIGNED |
SB1400 – DP (6-1-0-2) |
CONSIDERATION OF BILLS
SB1018 – burden of proof; emergency treatment. – DO PASS
Vice-Chairman Court moved that SB1018 do pass.
Dan Brown, Majority Research Analyst, explained that SB1018 raises the burden of proof in medical malpractice civil actions against health care providers and hospitals to clear and convincing evidence in connection with certain emergency medical services (Attachment 1).
Senator Carolyn Allen, sponsor, stated that clear and convincing evidence is already in statute for obstetricians. Specialty doctors are needed in emergency rooms (ER), which is what this bill is intended to promote. In response to a question, she noted that some doctors already left the state because they are not comfortable without this extra protection.
H. Micheal Wright, Attorney, Arizona Association of Justice (Arizona Trial Lawyers Association), opposed SB1018. He opined that doctors considering whether or not to move to Arizona take into account items like the climate and school system rather than how easy it is to be sued. There is no research showing if there has been a decrease in the number of ER physicians willing to practice in Arizona, and all this bill will do is help the insurance companies of the physicians make more money. During the last four years this bill was offered, $66 million in dividends was paid to Mutual Insurance Company of Arizona (MICA) to insured providers (physicians), there was an eight percent drop in premiums for MICA in 2008 and there has been an unprecedented drop in the number of claims. At the same time, medical errors have not dropped, and many say they have increased, which means fewer people had access to their constitutional remedy to recover damages.
He said there has been an unprecedented wave of hospital expansions in Phoenix, the East Valley and Tucson. University Medical Center has a new ER, the Tucson Medical Center has expanded, etc., so while there has been progress in the health care industry in expanding business operations there is no concomitant research showing that ER physicians are not willing to go to work because of the potential liability situation in Arizona. He added that not only is this bill intended to protect ER physicians from burden of proof in lawsuits; it also protects nurses and staff members in ERs. Unless there is evidence this will truly make a difference in ER care or the availability of physicians to work in ERs, this bill should not pass.
Mr. Antenori noted that according
to the Wall Street Journal, about 150 doctors per year moved to Texas
prior to 2004 when Texas passed tort reform bills. Within the first three
years of passage, 7,000 physicians moved to Texas at such a rate that the state
had difficulty keeping up with requests for licenses. There were 2,000 medical
malpractice lawsuits per year in
Dallas County prior to 2004; after tort reform, the number dropped to 184.
Mr. Wright responded that Texas passed a series of drastic tort reform measures, not just this measure, and reducing the availability of people to sue reduces lawsuits. The question is what claims were not brought because of the drastic tort reform measures that could have been brought under more consumer-friendly laws. A number of tort reform measures were passed in Arizona, some similar to those in Texas, so lawsuits for medical malpractice also decreased in Arizona. The question is whether this additional measure will make any difference. He stated that this bill will increase the burden of proof beyond those of other states and the federal courts.
Mr. Lopes noted that he has documentation showing what happened to the number of emergency room physicians in Texas as the result of the 2003 reforms. From 1997 to 1998 the number increased and continues to increase, but it is not increasing necessarily any faster post-1993 than it was before, so something else is going on in terms of ER doctors in Texas.
In response to questions, Mr. Wright opined that the bill applies to any licensed, professional hospital staff and the hospital. The bill can be interpreted not to extend to post-emergency room care, but clever lawyers may argue that it does in the sense that the care was initiated by whatever happened in the ER.
Barry Halpern, Legal Counsel, Arizona Medical Association, spoke in favor of SB1018. He stated that this bill provides protection and encourages health care providers to provide emergency service. It does not impede a worthy case or block access to the courthouse. It increases access to care and quality care. There has been physician testimony throughout the years on this topic as to why doctors are reluctant to place themselves in the path of legal hazard in ERs, and doctors have left the state rather than tolerate that exposure. Arizona is well below the national average in doctors per population, and as a lawyer who has represented doctors and hospitals for more than 10 years, he said he can say with considerable confidence that Arizona, because of its tort system, is viewed as a rather hostile environment. People who want evidence have only to look at statistics on the departure of residents in residency programs.
Mr. Halpern submitted that this bill will not solve every problem, but it is an important step to encourage better staffing and better care in ERs. Doctors called to the ER or even doctors who work in the ER every day often have no access to pertinent records and are confronted with myriad challenges, and in this day and age, there are even language barriers that make it a very challenging environment. He added that this bill mirrors the prior statute on labor and delivery emergency services, which has been held constitutional by appellate courts in Arizona. It will also be good for the economy because every doctor that locates in Arizona produces three to four high-paying, high-benefit jobs for other Arizonans.
In response to a question about empirical evidence that this bill will increase the number of specialty doctors in ERs, Mr. Halpern stated that this is one step in addressing a serious and ongoing problem. Arizona ranks 48th in ER care and this bill will not solve the problem, but it is a step in the right direction. Mr. Lopes stated that rankings are done all the time and he has no idea if they are empirically based so he would not put a lot of stock in that ranking.
When asked how ER lawsuits compare to other areas of care, Mr. Halpern responded that the best evidence is that insurance companies rate ER physicians higher than any other type of physician.
Mr. Lopes questioned why not wait to see the impact of litigation reform legislation passed in 2005, specifically the expert witness piece, so no one is kept from seeking redress of a grievance. Mr. Halpern stated that this bill does not prohibit anyone from seeking redress. Also, Mr. Wright stated that the litigation reforms passed a few years ago have had an influence on the number of cases that has had a concomitant influence on insurance refunds, so the cause and effect seems to be proven even in the arguments of opponents of the bill. Additionally, unless this bill passes, the effect will not be known.
Mr. Lopes contended that Mr. Wright did not state that the downward spiral in premiums necessarily had to do with the 2005 efforts. There has not been time to see the effect of the expert witness piece so he is not sure that would be the case, but premiums are going down and have been going down since 2003.
Mr. Halpern responded that in the 33 years he practiced trial law, the number of cases of malpractice ebbed and flowed in a cyclical fashion. He does not know why, but he does know the expert qualification bill and certificate of merit bill are believed by prosecution and defense lawyers to result in fewer marginal cases filed. The idea that MICA’s dividend this year is related to one thing or another is very hypothetical. The actuarial decisions upon which rates were set were made years ago in a worst case basis, and happily for doctors, this time a dividend was received; however, next year it may be the opposite.
Vice-Chairman Court announced the names of those who signed up in support of the strike-everything amendment to SB1018 but did not speak:
Allison Bell, Arizona Chamber of Commerce & Industry
Farrell Quinlan, West Valley Chambers of Commerce Alliance
David Landrith, Vice President of Policy & Political Affairs, Arizona Medical Association Elizabeth Baskett, Arizona Hospital and Healthcare Association
Steve Barclay, Lobbyist, CIGNA HealthCare of Arizona; Mayo Clinic Arizona
Don Isaacson, Aging Services of Arizona; Arizona Optometric Association
Jason Bezozo, System Director, Government Relations, Banner Health
Courtney Gilstrap Levinus, Central Arizona Chamber Coalition
Rory Hays, Lobbyist, Arizona Nurses Association
Michelle Pabis, Assistant Government Relations Director, Scottsdale Healthcare
Dale Wiebusch, Legislative Associate, League of Arizona Cities and Towns
Michelle Bolton, State Director, National Federation of Independent Business
Pete Wertheim, Chief Legislative Liaison, IASIS Healthcare
Kathleen Pagels, Executive Director, Arizona Health Care Association
Joseph Abate, Counsel, Arizona Osteopathic Medical Association; Arizona Podiatric Medical Association; Arizona Psychiatric Society; Pharmaceutical Research and Manufacturers of America; Arizona Homeopathic & Integrative Medical Association
Susan Cannata, Attorney, Arizona Academy of Family Physicians
Heather Bernacki, Government Relations Associate, East Valley Chambers of Commerce Alliance
Kathryn Busby, Arizona Association of Health Plans
Stuart Goodman, Lobbyist, Catholic Healthcare West
Richard Bitner, Legislative Counsel, Arizona College of Emergency Physicians
Catherine Mayorga, Vice President, Public Affairs, Tempe Chamber of Commerce
Amanda Weaver, Executive Director, Arizona Osteopathic Medical Association
Russell Smoldon, Lobbyist, Salt River Project
Kathi Beranek, Government Relations Coordinator, Blue Cross Blue Shield of Arizona
Laura Hahn, Executive Vice President, Arizona Academy of Family Physicians
Marcus Osborn, Manager of Government and Public Affairs, Arizona Manufacturers Council Mary Griffith, registered nurse, Director, Legislation, Arizona Nurses Association
Jeffrey Kros, Legislative Director, League of Cities and Towns
Kelsey Lundy, Lobbyist, Arizona Association of Nurse Anesthetists
Mitch Menlove, Arizona Health Care Association
Tara Plese, Arizona Association of Community Health Centers
John Wayne Gonzales, Legislative Liaison, City of Phoenix
Susie Stevens, Lobbyist, Ambulatory & Urgent Care Association of Arizona
Elaine Arena, Southwest Ambulance
Gabriel Rushing, Public Affairs & Economic Development Representative, Greater Phoenix Chamber of Commerce
Anna Gaines, educator, representing self
Helena Whitney, Director, Government Relations & Legislative Affairs, Maricopa Integrated Health Systems
Jake Logan, Vice President, United Health Group; United Healthcare of Arizona
Vice-Chairman Court announced the names of those who signed up in opposition to the strike-everything amendment to SB1018 but did not speak:
Jon Hinz, Director, Fairness and Accountability in Insurance Reform
Vice-Chairman Court announced the names of those who signed up as neutral on the strike-everything amendment to SB1018 but did not speak:
Holland Hines, representing self
Don Hughes, Mutual Insurance Company of Arizona (MICA), in response to a question concerning premiums, stated that MICA is a well-run insurance company which is why premiums decreased, stabilized and then decreased and billions were paid out to MICA policyholders. MICA is a neutral insurance company owned by policyholders so any profit is returned to the policyholders, which reduces the premiums. He pointed out that this bill is not about insurance premiums but access to care.
Chairman Barto noted that the focus of the Governor’s Task Force was to address the shortage of physicians in Arizona, and this particular piece of legislation was chosen to address that issue, not necessarily the premium issue.
Mr. Lopes countered that this was one of four or five suggestions about health care providers. The remaining suggestions related to premiums because of the connection between premiums and availability of health care providers.
Question was called on the motion that SB1018 do pass. The motion carried by a roll call vote of 5-2-0-2 (Attachment 2).
SB1097 – emergency medical services; records; confidentiality(now: records; emergency medical services; confidentiality) – DO PASS
Vice-Chairman Court moved that SB1097 do pass.
Dan Brown, Majority Research Analyst, explained that SB1097 allows emergency medical personnel under investigation by the Department of Health Services (DHS) to request certain information related to a complaint with certain restrictions (Attachment 3).
Senator Carolyn Allen, sponsor, stated that SB1097 gives emergency services personnel the ability to request the name of the person making the complaint and any documents relevant to the investigation. She asked for the Members’ support.
Mitch Menlove, Arizona Ambulance Association, testified in support of SB1097. He conveyed that current statute narrows the ability to provide any information so he worked with DHS and the Attorney General’s Office to strike a proper balance. There are Health Insurance Portability and Accountability Act (HIPAA) rules so DHS is given the flexibility to use good judgment about which information should not be provided. He said he believes there are enough checks and balances, but the intent is to provide an emergency medical technician the opportunity to have some information about what is going on in relation to a complaint or investigation.
Vice-Chairman Court announced the names of those who signed up in support of SB1097 but did not speak:
Don Isaacson, Rural Metro
Kathleen Pagels, Executive Director, Arizona Health Care Association
Elaine Arena, Rural Metro
Tara Plese, Arizona Association of Community Health Centers
John Wayne Gonzales, Legislative Liaison, City of Phoenix
Mark Young, Senior Management Assistant, Intergovernmental Liaison, Town of Queen Creek Anna Gaines, educator, representing self
Question was called on the motion that SB1097 do pass. The motion carried by a roll call vote of 7-0-0-2 (Attachment 4).
SB1100 – biomedical research commission; continuation – DO PASS
Vice-Chairman Court moved that SB1100 do pass.
Dan Brown, Majority Research Analyst, explained that SB1100 continues the Biomedical Research Commission for 10 years (Attachment 5).
Senator Carolyn Allen, sponsor, asked for the Members’ support of SB1100.
Chairman Barto remarked that she was on the Committee of Reference (COR) last fall and learned a lot about the Commission and its duties. The COR recommended continuation of the Commission, which does a lot of research for the general welfare of Arizona and specific treatments for Arizonans in particular, such as Valley fever.
Vice-Chairman Court announced the names of those who signed up in support of SB1100 but did not speak:
David Landrith, Vice President of Policy & Political Affairs, Arizona Biomedical Research Commission
Dawn Schroeder, Executive Director, Arizona Disease Control Research Commission; Arizona Biomedical Research Commission
Steve Barclay, Lobbyist, Mayo Clinic Arizona
Question was called on the motion that SB1100 do pass. The motion carried by a roll call vote of 7-0-0-2 (Attachment 6).
SB1104 – AHCCCS; SCHIP; application process – DO PASS AMENDED S/E
S/E: assisted living managers; nursing administrators
Vice-Chairman Court moved that SB1104 do pass.
Vice-Chairman Court moved that the Barto four-page strike-everything amendment to SB1104 dated 6/22/09 (Attachment 7) be adopted.
Dan Brown, Majority Research Analyst, explained that the strike-everything amendment to SB1104 allows the Board of Nursing Care Institution Administrators and Assisted Living Facility Managers to set fees by rule (Attachment 8).
Senator Carolyn Allen, sponsor, agreed with Mr. Brown’s explanation.
Stuart Goodman, Nursing Care Administrators Board, spoke in favor of SB1104. He indicated that an Auditor General’s report in 2004 identified that the Board needs to revisit the fee structure in order to maintain the ability to regulate managers and administrators of nursing care facilities and assisted living facilities. The Board will become insolvent in January 2010 because the fee structure cannot support increased responsibilities. A 1975 federal requirement for Medicaid is directly tied to licensing of administrators and there is concern that if regulation of these people is stopped because of insolvency of the Board, it would jeopardize not only families that benefit from residing at the facilities, but owners and operators of the facilities, as well as licensees and their livelihood. This is a health issue as well as a commerce issue.
Vice-Chairman Court announced the names of those who signed up in support of the strike-everything amendment to SB1104 but did not speak:
Don Isaacson, Aging Services of Arizona
Allen Imig, Executive Director, Nursing Care Board
Mitch Menlove, Arizona Health Care Association
Question was called on the motion that the Barto four-page strike-everything amendment to SB1104 dated 6/22/09 (Attachment 7) be adopted. The motion carried.
Vice-Chairman Court moved that SB1104 as amended do pass. The motion carried by a roll call vote of 7-0-0-2 (Attachment 9).
SB1105 – nursing board; omnibus – DO PASS
Vice-Chairman Court moved that SB1105 do pass.
Dan Brown, Majority Research Analyst, explained that SB1105 makes a variety of changes to the Board of Nursing statutes (Attachment 10).
Senator Carolyn Allen, sponsor, stated that this is truly an omnibus bill that was worked on by many people.
Gregory Harris, Arizona State Board of Nursing, in favor of SB1105, related that it represents a comprehensive effort involving a number of stakeholders. The changes are aimed at making sure the Board is equipped to do the job it needs to do. In response to questions, he provided the following information:
Pamela Randolph, Nurse Practice/Education Consultant, Board of Nursing, spoke in favor of SB1105. She indicated that the Board tracks disciplinary data. For certified nursing assistants (CNA) the highest disciplinary action is due to criminal complaints; secondary is substance abuse. For Registered Nurses (RN)/Licensed Practical Nurses (LPN) the highest is substance abuse and criminal is also somewhat high. There are practice complaints, and the Board is engaging in a research project with the National Council of State Boards of Nursing to look at the cause analysis of practice errors. When that data is obtained, the Board will be better able to address disciplinary options. The Board is also in the process of, hopefully, receiving a grant to measure nursing competency using simulation from which data will be obtained. She added that outreach efforts include a website where there is a nurse practice test that is free to take, Power Points about application processes, common errors of graduates, etc. She also does a lot of speaking about unprofessional conduct and how to avoid getting in those kinds of situations.
In response to a question, she advised that most of the RN/LPN programs drug screen students. Most have for-cause drug screening whereby a drug screen can be requested if a student demonstrates impaired behavior, so some people are caught before entering nursing school and receive treatment before being allowed back into the school. As far as comparison with other states, the Board is unique in that it also regulates CNAs, so that population skews the numbers, but the numbers are probably fairly typical.
Chairman Court announced the names of those who signed up in support of SB1105 but did not speak:
Elizabeth Baskett, Arizona Hospital and Healthcare Association
Don Isaacson, Aging Services of Arizona; Independent Colleges & Universities of Arizona
Rory Hays, Lobbyist, Arizona Nurses Association
Kathleen Pagels, Executive Director, Arizona Health Care Association
Mary Griffith, R.N., Director, Legislation, Arizona Nurses Association
Mitch Menlove, Arizona Health Care Association
Question was called on the motion that SB1105 do pass. The motion carried by a roll call vote of 7-0-0-2 (Attachment 11).
SB1246 – CPS information – DO PASS
Vice-Chairman Court moved that SB1246 do pass.
Dan Brown, Majority Research Analyst, explained that SB1246 stipulates that court proceedings relating to child abuse, abandonment or neglect that resulted in a fatality or near fatality are open to the public unless closed for good cause shown by the court (Attachment 12).
Senator Jonathan Paton, sponsor, remarked that there will be an amendment on the floor to address concerns by CPS to make the bill consistent with previous reforms so the names of witnesses and others will be redacted. The purpose of this bill is to make the reforms about openness and transparency with CPS records apply in cases of fatalities and dependency hearings with the court only in cases that result in a fatality or near fatality. This was brought about because a local news station in Tucson, KVOA, attempted to obtain records from the court for a child who died. The judge was unable to release the records by law, but said she would if she could, and this bill will allow that to happen. He said he believes there are protections for privacy issues.
Vice-Chairman Court assumed the Chair.
Chris Moeser, Attorney, Phoenix Newspapers, Incorporated, in favor of SB1246, testified that this bill makes minor changes to the CPS reforms that Senator Paton and Speaker Kirk Adams supported last year. It basically clarifies that the court proceedings relating to child abuse cases that resulted in fatalities or near fatalities shall be open to the public. The Department of Economic Security proposed some changes that he hopes will be addressed on the floor. He asked for the members’ support.
Vice-Chairman Court announced the names of those who signed up as neutral on SB1246 but did not speak:
Amy Love, Legislative Intern, Administrative Office of the Courts
Vice-Chairman Court announced the names of those who signed up in support of SB1246 but did not speak:
Beth Rosenberg, Lobbyist, Children's Action Alliance
John Moody, Attorney, Arizona Newspapers Association
Question was called on the motion that SB1246 do pass. The motion carried by a roll call vote of 6-0-0-3 (Attachment 13).
SB1285 – CPS information; redactions; challenges – DO PASS
Mrs. Goodale moved that SB1285 do pass.
Dan Brown, Majority Research Analyst, explained that SB1285 stipulates that a legislator has standing to bring or join a special action regarding the release of Child Protective Services (CPS) information or to challenge the redaction of released CPS information (Attachment 14).
Senator Jonathan Paton, sponsor, advised that legislators are the only specific class that currently does not have standing to bring a special action, so this bill gives legislators the same standing as any other citizen. It does not change current statute relating to legislators requesting confidential information. He was told by attorneys who are experts in privacy law that anyone else can bring a special action but not legislators.
Chris Moeser, Attorney, Phoenix Newspapers, Incorporated, spoke in favor of SB1285. He indicated that A.R.S. Section 807(J) states that the department or a person who is not specifically authorized to obtain CPS information may petition a judge of the superior court to order the department to release CPS information. Because legislators are authorized under a different part of the statute to obtain CPS information they cannot also use Subsection J to bring a special action to ask a judge to order records to be released. This is his interpretation and the courts’ interpretation.
Senator Paton related that he was told information was redacted in a set of CPS records that was not consistent with the provisions delineating items to be redacted. He wanted to petition the court for the information, but he was told he cannot do so, which did not seem fair because he would have to find someone else then to petition the court to open those records.
Amy Love, Legislative Intern, Administrative Office of the Courts, neutral on SB1285, clarified that she spoke to a judge who said if he received the request to open the information and the person was not a party to the case, the request would not be granted, which is why Senator Paton was not able to access the information.
Senator Paton remarked that his understanding of the public records law is that reforms passed last year opened this up for any member of the public.
Chairman Barto resumed the Chair.
Question was called on the motion that SB1285 do pass. The motion carried by a roll call vote of 8-0-0-1 (Attachment 15).
SB1400 – dental assistants; community oral health – DO PASS
Vice-Chairman Court moved that SB1400 do pass.
Dan Brown, Majority Research Analyst, explained that SB1400 makes changes to the statutes that govern affiliated dental practice settings (Attachment 16).
Kelsey Lundy, Lobbyist, Arizona State Dental Hygienists Association, spoke in favor of SB1400. In response to a question, she related that there are currently 38 affiliated practice (AP) dental hygienists. She does not know the number of contracts, but it is probably less than 38 because a practiced dentist can have a contract with more than one hygienist. She stated that this measure is the result of lengthy negotiations with the Arizona Dental Association (ADA) and explained the provisions relating to children and persons 65 and older, noting that if there is any restriction of access to care as a result of this legislation, changes can be made in the future in consultation with the ADA.
She added that hospital-based models surfaced since AP practice came into law. At Catholic Healthcare West at Chandler Regional the hospital licensed a room at the school and turned it into a dental clinic to provide care to low-income children in the area so they are very excited about this law passing because the intent is to expand the facility to treat adults in the community. Portable equipment was also purchased to take out into the community to provide care. Scottsdale Healthcare Osborn has a site at Palomino Elementary School where children in the area are treated at a side-by-side medical center and health care clinic. The medical center treats people of all ages, and with passage of this bill, adults as well as children can be seen at the dental clinic. Many AP hygienists work with the Head Start Program, which has health fairs all over the state. AP hygienists go out into those areas and provide volunteer care.
Mr. Lopes referred to page 3, lines 6 through 19, and said it is not clear if AP dental hygienists can treat patients without first seeing a dentist. Ms. Lundy responded that the purpose of an AP dental hygienist is to see patients prior to the patient seeing the dentist.
Mr. Lopes stated that he is concerned about the language requiring a patient to be seen by a licensed dentist within 12 months of initial treatment by the AP dental hygienist. For example, if a dental hygienist sees someone and there is no other problem, the person cannot go back to the AP dental hygienist a year later unless the patient has seen a dentist. Ms. Lundy stated that concern was expressed to the ADA, which believes that even though a dental hygienist may not see something in a patient’s mouth, there could be a problem. There are some concerns, but it is very important to allow this for all populations because there are so many at-risk groups other than children. This is a promising first step.
Vice-Chairman Court announced the names of those who signed up in support of SB1400 but did not speak:
John MacDonald, Arizona Dental Association
Kathleen Pagels, Executive Director, Arizona Health Care Association
Mitch Menlove, Arizona Health Care Association
Tara Plese, Arizona Association of Community Health Centers
Question was called on the motion that SB1400 do pass. The motion carried by a roll call vote of 6-1-0-2 (Attachment 17).
Without objection, the meeting adjourned at 11:14 a.m.
_______________________________
Linda Taylor, Committee Secretary
July 1, 2009
(Original minutes, attachments and audio on file in the Chief Clerk’s Office; video archives available at http://www.azleg.gov)
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COMMITTEE ON HEALTH
AND HUMAN SERVICES
12
June 24, 2009
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