Physicians face challenges and opportunities in 2021 through legislation, regulation, and other marketplace and community initiatives. Below are key public policy issues of concern to Colorado physicians. Many of these are the result of consensus of CMS members over the years and collected in CMS policies. COMPAC, the bipartisan political action committee of the Colorado Medical Society, and the CMS advocacy team are committed to dialogue and collaboration with all stakeholders. We strive to address policy differences so we may approach legislators with mutually agreed-upon solutions -- minimizing battles after bills have been introduced and mitigating the need for legislators to choose between friends on controversial issues.
Key issue #1: Medical Liability
Colorado has long enjoyed one of the most stable medical liability climates in the country. Colorado's Health Care Availability Act (HCAA), caps damages in medical liability cases as a means of staunching skyrocketing medical malpractice premiums and thus increasing the cost of health care. In this state there is a $300,000 cap on non-economic damages, including damages for pain, suffering, loss of enjoyment of life, loss of consortium, physical impairment, and disfigurement. There is a one million dollar cap on total damages. A judge may award more than the one million cap if there is good cause for doing so, but any amount in excess of the one million cap will be limited to future medical care and future earnings; this is a "soft" cap, meaning that these awards can be larger. The HCAA ensures stable malpractice premiums for physicians and, as a result, a relatively stable pool of physicians, especially in high-risk specialties such as obstetrics, emergency care, and surgery.
As an alternative to raising noneconomic damage caps, plaintiff attorneys argue that adding a cost of living adjustment (COLA) is an appropriate policy – but “pain and suffering” is unrelated to the cost of living drivers, which do increase over time. Living costs are economic damages for which the court can exceed the one million dollar cap under current law.
The maintenance of the HCAA prevents:
- Reduced access to health care as physicians stop providing high-risk services. In rural Colorado, the decision by a doctor to stop delivering babies, for example, could mean that women have to drive hours for OB services.
- Increased costs of care as physicians practice defensive medicine, ordering tests or services that aren't medically necessary but protect them from lawsuits. PricewaterhouseCoopers estimates that defensive medicine accounts for 10% of overall health care spending in the U.S.
For these reasons, CMS will always advocate strongly to maintain or lower the current caps on noneconomic damages, oppose COLAs and be vigilant against legislative efforts that could undermine Colorado's stable liability environment.
Key issue #2: Cost of Health Care/State Affordable Option
The cost of health care is a dominant issue and a critical one to approach carefully. Measures to reduce cost should never neglect considering and promoting quality health care. The state affordable health insurance option is a form of government-provided health insurance that Colorado citizens could purchase as their health care plan. CMS’s Council on Legislation took a neutral position on the legislation introduced in 2020 before the COVID-19 public health emergency forced the legislature into an extended recess. Because of the abbreviated legislative session, the sponsors pulled this issue off the table for 2020, but announced that it will be a priority bill in 2021.
This is a divisive but important issue for CMS members. Therefore, we are committed to being at the table for this discussion. CMS has communicated to HCPF and the DOI that an effective state affordable option would consider the following:
- Increase competition in the multi-payer system utilizing current commercial payers.
- Fund public option through reduction of waste and taxes on goods known to damage health.
- Standardize benefit package utilizing value-based insurance design principles across all carriers selling in the individual and small group market.
- Standardize formularies, provider contracting, prior authorization, utilization & claims management, guidelines, and cost & quality metrics across carriers.
- Benefits offered on Exchange with subsidies to be determined by affordability criteria across income levels.
- Continue to include physicians in the conversation.
Key issue #3: Scope of Practice
Each year, in nearly every state including Colorado, non-physician health care professionals lobby state legislatures and regulatory boards to expand their scope of practice (SOP). While some scope expansions may be appropriate, others definitely are not. Non-physician health care providers (e.g., nurse practitioners, chiropractors, podiatrists, physical therapists, etc.) are highly valued by physicians (MD/DOs). Physicians work side-by-side with these health care providers every day and greatly value their unique contributions to patient care. We believe that patients benefit from coordinated, integrated care provided in a team setting led by physicians.
Discussions about scope often go hand-in-hand with discussions about ensuring an adequate workforce to meet our citizens' needs. CMS advocates for measures to expand the pipeline of all health care professionals, not only physicians, in our state. We also support the efforts of rural communities to recruit and retain professionals of all types. We maintain, however, that Coloradans are best and most safely served when health professionals practice within their education and training, in a team setting led by physicians.
Key issue #4: Administrative Burdens
CMS opposes barriers to care and administrative burdens that raise the cost of health care, negatively impact patient care, and contribute to physician burnout. Administrative tasks should be regularly reviewed to ensure they are not having negative effects on patient care; those that are deemed necessary should be streamlined in a transparent manner, with a goal to minimize burden. In order to achieve streamlined processes, stakeholders should be encouraged to make better use of existing health information technologies and develop more innovative standards.
In 2019 CMS passed HB19-1211 Prior Authorization Requirements Health Care Services, which required insurance carriers to streamline and simplify their process for determining whether a particular health care service prescribed by a health care provider is a covered benefit under the patient’s health benefit plan. The Act required transparency of carrier requirements, reasonable response deadlines, and authorized carriers to exempt providers with an 80% or higher prior authorization request approval rating. While this was a strong start to addressing the administrative burden caused by prior authorization, CMS believes there is still significant work to be done to address administrative burdens.
Key issue #5: Opioids
CMS is committed to tackling opioid and other substance use disorders (SUD) head-on and, according to our own physician surveys, providers acknowledge the need for their involvement in long-term strategies. Physicians have been participating in the Interim Study Committee on Opioids and Other Substance Use Disorders since its formation in 2017 and have also worked to address the issue outside of legislation. For example, CMS has worked closely with the Colorado Consortium for Prescription Drug Abuse Prevention and the Colorado Hospital Association on the CO’s CURE (Colorado’s Opioid Solution: Clinicians United to Resolve the Epidemic) initiative.
In the years since the formation of the Interim Committee, CMS has consistently been a proponent of opioid-related legislation and members of our Prescription Drug Abuse Committee – dedicated exclusively to this issue – are frequent testifiers and resources on Colorado’s opioid and SUD work.
CMS strongly supports a multi-pronged approach that focuses on prevention, treatment, harm reduction, recovery, and criminal justice. A key tool for prevention is the increased use of alternatives to opioids (ALTOs). The term ALTOs encompasses physical therapy, non-opioid pain medications, atypical opioids, trigger point injections, and pain psychology, among other therapies. These have been clinically proven as a safe, effective alternative to prescribing opioids. CMS is strongly advocating that insurance companies cover ALTOs on the same tier as opioids or otherwise at an adequate level in order to improve access.
CMS also strongly supports improving the Prescription Drug Monitoring Program (PDMP) to make it more user-friendly and more easily interfaced with electronic health records. Physicians use the PDMP as a resource to monitor previous patient opioid prescriptions and identify individuals with possible substance use disorders. CMS urges the legislature to focus on system improvements and integration rather than more arbitrary query mandates.
Finally, CMS stresses the importance of maintaining access to needed therapies for those patients suffering from chronic pain. There is real concern in the chronic pain community that well-intentioned but overzealous approaches to addressing the opioid crisis are making long-term opioid prescriptions for those who need them most burdensome – or sometimes impossible – to obtain. CMS strongly urges the legislature to consider chronic pain patients and the implications all opioid-related policy has on that community.
Key issue #6: Confidential Counseling Services
CMS is dedicated to protecting the use of confidential counseling services by Colorado physicians who voluntarily self-refer. There is substantial evidence that lack of access to confidential care increases physician stress, burnout and depression, and is a leading cause of physicians leaving practice before retirement age. Without assurances of confidentiality, many physicians will not voluntarily seek services. One study for the Mayo Clinic found: “Nearly 40 percent of physicians reported that they would be reluctant to seek formal medical care for treatment of a mental health condition because of concerns about repercussions to their medical licensure.”
In Colorado, physician peer assistance has been traditionally provided by the Colorado Physician Health Program (CPHP) under the state-awarded Peer Assistance Contract RFP-SJA2020-52. For 30 years, CPHP has provided confidential counseling for self-referring Colorado physicians. While there are circumstances in which the identity of physicians who voluntarily self-refer must be disclosed, such as cases where the physician poses a threat to themselves and others, CPHP has worked directly with the Colorado Medical Board (CMB) to promise the highest level of confidentiality possible to those who voluntarily access their services. As of June 2020, however, the Colorado Division of Regulatory Agencies (DORA) has recommended that the Peer Assistance Contract be awarded to Peer Assistance Services instead of CPHP. Under this contract, all physicians who access PAS services, even voluntarily, must be reported to the Colorado Medical Board. CMS opposes this recommendation, since it would remove the critical confidentiality protections for physicians that voluntarily self-refer and undermine their’ willingness to seek care themselves.
Assuring the health, wellness, and ability of physicians to seek confidential support and treatment has been repeatedly proven to improve the quality of patient care. The safety of Colorado patients will be compromised if physicians’ ability to seek confidential, effective support and treatment is removed. CMS encourages legislators to consider the stress that doctors are undertaking treating patients during the COVID-19 pandemic and to support policies that protect their access to confidential counseling so they can better cope with that stress.