Texas Legislative Update

April 2021


Theresa Q. Tran, MD, MBA, FACEP
Chair, Government Relations Committee

This session started with major uncertainty related to how to functionally conduct the state’s business during a global pandemic. Pandemic protocols and Covid-19 testing tents on the Capitol grounds have drastically changed the way legislators, staff, and advocates access the Capitol and policymakers. Legislators came to Austin focused pandemic response, and ways to restart the Texas economy. Many offices were closed to maintain social distance with most staff working remotely. At the time, access to legislators and staff was primarily limited to digital means of communication. To characterize it as a slow start would be an understatement.

In mid-February Texas was hit by a historic winter storm which exposed major vulnerabilities in the Texas electric grid. The urgency associated with that event prompted legislators to file hundreds of bills related to the electricity market. By early-March vaccine distribution was in full-swing, and the workload at the Capitol shifted into high-gear. The Senate has passed their budget and it set to be debated on the House floor next week.

Now, there are less than 50 days left before the 87th Regular Legislative Session is scheduled to adjourn Sine Die. When you factor in the procedural deadlines that start in early-May there is less than a month of viability for most of the bills being considered. More than 6,800 bills have been filed, and at this point none of them have been sent to the governor to become law. While the total number of bills isn’t too far off the normal range the number of bills that will end up being signed into law will be significantly lower than years past. The clock is ticking, and everyone knows it.

Despite the many challenges we’ve faced over the last year, TCEP’s advocacy team has been hard at work to advance the priorities of emergency medicine and defend against those that seek to make it harder for you to provide life-saving patient care.

Major Legislation & Status

Taxation:

HB 1445 by Dr. Tom Oliverson (R-Cypress)
This bill would clarify that certain medical or dental billing services were not insurance services subject to sales and use taxes. From 2002 to 2019, the comptroller held that claims processing did not begin until an insurance company received a claim, so these billing services were exempt from taxation. However, upon further review, it was determined there was not a statutory provision strictly excluding those services from sales and use taxes. HB 1445 would codify the sales tax exemption for certain insurance billing services, preventing an increased tax burden from being imposed on medical practices. This bill is the result of careful negotiations with the Comptroller’s office over the interim. It passed the House and has been placed on the Senate’s local and uncontested calendar for Monday, April 19.

87(R) HB 1445 Author: Oliverson | et al. Sponsor: Nichols
Last Action 04/19/2021 S Placed on local & uncontested calendar
Caption Version: Senate Committee Report
Caption: Relating to the applicability of the sales and use tax to medical or dental billing services.
House Committee: Ways & Means (Out)
Senate Committee: Finance (Out)
Comment: Medical Billing Tax - Support

Liability Protections:

SB 6 by Kelly Hancock (R-North Richland Hills) and HB 3659 by Jeff Leach (R-Plano)
The bill provides retroactive civil liability protections for large and small businesses, religious institutions, non-profit entities, healthcare providers, first responders, and educational institutions. The bill also extends current immunity that healthcare volunteers have during a man-made or natural disaster to include a health care provider that is getting paid during a man-made disaster, natural disaster, or a health care emergency. SB 6 is the vehicle; it has passed the Senate and is currently in the House Judiciary and Civil Jurisprudence Committee.

87(R) SB 6 Author: Hancock | et al.
Last Action 04/13/2021 H Referred to Judiciary & Civil Jurisprudence
Caption Version: Engrossed
Caption: Relating to liability for certain claims arising during a pandemic or other disaster or emergency.
House Committee: Judiciary & Civil Jurisprudence (In)
Senate Committee: Business & Commerce (Out)
Comment: Covid 19 Liability Protections - Support

Prudent Layperson:

HB 2241 by Dr. Tom Oliverson (R-Cypress) and SB 1037 by John Whitmire (D-Houston)
HB 2035 by Julie Johnson (D-Dallas)
These bills seek to strengthen the prudent layperson standard. In recent years, health plans have been subjecting certain emergency care claims to increased scrutiny through retroactive reviews. These types of reviews (and their promotion) may deter a patient from seeking needed emergency care, potentially creating adverse outcomes.  A patient does not have the medical knowledge to know whether the condition he or she is experiencing is a true medical emergency.  Thus, as stated in existing law (i.e., Sections 1301.155 and 843.002 (7) of the Insurance Code), the patient’s emergency care coverage is supposed to be assessed using the prudent layperson standard. Both of the House bills have received hearings in the Insurance Committee. Dr. Diana Fite, Dr. JR Ford and Dr. Carrie de Moor delivered excellent testimony in support of the legislation. HB 2241 was favorably voted out of the Insurance committee on April 13 and is on its way to the Calendars Committee before it can be set on the House floor.

87(R) HB 2241 Author: Oliverson
Last Action 04/13/2021 H Reported favorably as substituted
Caption Version: Introduced
Caption: Relating to the definition of emergency care for purposes of certain health benefit plans.
House Committee: Insurance (In)
Senate Committee:
Comment: Strengthens Prudent Layperson – Support

87(R) HB 2035 Author: Johnson, Julie
Last Action 04/13/2021 H Left pending in committee
Caption Version: Introduced
Caption: Relating to utilization review of emergency care claims under health benefit plans.
House Committee: Insurance (In)
Senate Committee:
Comment: Strengthens Prudent Layperson - Support

Scope of Practice

There were several bills filed this session to expanding the scope of practice for various mid-level providers: nurse practitioners, optometrists, and physician assistants. Currently, all of these bills remain in the committee of origin in either chamber. We continue to stay close to members of the House Public Health and the Senate Business and Commerce Committees to reinforce medicine’s perspective that scope expansions are unnecessary and unwarranted.

87(R) HB 2029 Author: Klick
Last Action 03/24/2021 H Left pending in committee
Caption Version: Introduced
Caption: Relating to the licensing and authority of advanced practice registered nurses.
House Committee: Public Health (In)
Senate Committee:
Comment: Scope Expansion for NPs – Oppose

87(R) HB 2340 Author: Klick | et al.
Last Action 03/31/2021 H Left pending in committee
Caption Version: Introduced
Caption: Relating to the practice of therapeutic optometry; requiring an occupational certificate to perform certain surgical procedures.
House Committee: Public Health (In)
Senate Committee:
Comment: Scope Expansion for Optometry – Oppose

87(R) HB 4352 Author: Beckley
Last Action 03/29/2021 H Referred to Public Health
Caption Version: Introduced
Caption: Relating to the scope of practice of physician assistants.
House Committee: Public Health (In)
Senate Committee:
Comment: Scope expansion for PAs

87(R) HB 4362 Author: Klick
Last Action 03/29/2021 H Referred to Public Health
Caption Version: Introduced
Caption: Relating to the licensing and regulation of certain health professions; requiring an occupational certificate to perform certain surgical procedures.
House Committee: Public Health (In)
Senate Committee:
Comment: Scope Omnibus – Oppose

87(R) SB 915 Author: Hancock | et al.
Last Action 03/11/2021 S Referred to Business & Commerce
Caption Version: Introduced
Caption: Relating to the licensing and authority of advanced practice registered nurses.
House Committee:
Senate Committee: Business & Commerce (In)
Comment: Scope Expansion for NPs – Oppose

87(R) SB 993 Author: Hancock
Last Action 03/23/2021 S Left pending in committee
Caption Version: Introduced
Caption: Relating to the practice of therapeutic optometry; requiring an occupational certificate to perform certain surgical procedures.
House Committee:
Senate Committee: Business & Commerce (In)
Comment: Scope Expansion for Optometry - Oppose

Opioids

There were less bills filed related to opioids as compared to the 2019 legislative session. However, we have still had to deal with legislation (HB 2117) that would require onerous informed consent and documentation requirements when physicians prescribe any type of painkiller for acute pain. The good news is that this bill has not received a hearing in the House and it does not have a Senate companion.

87(R) HB 2117 Author: Price
Last Action 03/15/2021 H Referred to Public Health
Caption Version: Introduced
Caption: Relating to the prescribing of controlled substances and dangerous drugs for acute pain.
House Committee: Public Health (In)
Senate Committee:
Comment: Informed Consent – Oppose

One messaging point we have been utilizing is clarifying the difference between the regulated market and the illicit market related to opioids and the effects of substance abuse. To that end, TCEP was asked to support Sen. Huffman’s legislation to enhance criminal penalties for those that illicitly manufacture and/or distribute fentanyl. Dr. Jessica Best presented in-person testimony on behalf of TCEP in support of the legislation. This bill has passed the Senate and has been referred to the House Criminal Jurisprudence Committee.

87(R) SB 768 Author: Huffman | et al.
Last Action 04/07/2021 H Referred to Criminal Jurisprudence
Caption Version: Engrossed
Caption: Relating to increasing the criminal penalties for manufacture or delivery of fentanyl and related substances; creating a criminal offense.
House Committee: Criminal Jurisprudence (In)
Senate Committee: Jurisprudence (Out)
Comment: Increases criminal penalties for illicit manuf. or dist. of fentanyl - Support

We have been advocating for the State to fully fund the Prescription Monitoring Program with electronic health record integration. This item is a priority for House leadership and the Appropriations chair, Dr. Greg Bonnen. The Senate has passed its budget bill, SB 1, and the House will debate its version this upcoming Thursday. While the funding does not appear in the Senate bill, it is included in the House version. Next steps are to protect the funding when the bill is debated on the House floor and then work members of the budget conference committee when they are named in the coming weeks. We have also included language in a number of bills to state that the prescription monitoring program is an acceptable use for funds received from the opioid settlement agreements with the opioid manufacturers.

87(R) SB 1827 Author: Huffman | et al.
Last Action 04/12/2021 S Left pending in committee
Caption Version: Introduced
Caption: Relating to the creation of the opioid abatement account.
House Committee:
Senate Committee: Finance (In)
Comment: Opioid Abatement Account - Support - PMP funding as acceptable use of funds