Special Section -- Legislative Preview

On February 21, 2001, Marian Wright Edelman, founder and President of the Children's Defense Fund (CDF) will present "Children's Health Needs for the Coming Years" at the Health Law & Policy Institute's Jenkens & Gilchrist Lecture 2001 Ms. Edelman has been an advocate for disadvantaged Americans for her entire professional career. Under her leadership, the Washington-based CDF has become a strong national voice for children and families. CDF’s mission is to "Leave No Child Behind."

The Jenkens & Gilchrist Lecture 2001will be held at the Park Plaza Warwick and will begin at 9:00 a.m. The lecture is provided through the generous support of the law firm of Jenkens & Gilchrist. The lecture is also sponsored by the Children's Museum of Houston and Texas Children's Hospital. For information, call 713-743-2106.

Boozang Will Teach Intersession Course

Kathleen M. Boozang will teach the Health Law & Policy Institute's annual Intersession course on Alternative and Complementary Medicine in January 2001 at the University of Houston Law Center. The course, which will run from January 2nd to 12^th, will examine the ways in which alternative and complementary medicine are subject to regulation, along with the medical, ethical, economic, and policy implications of popular, if unproven, health interventions.

Professor Boozang is Associate Dean for Academic Affairs, Professor of Law, and Director of the Health Law & Policy Program at Seton Hall University. She received her B.S. at Boston College, her J.D. at Washington University, and her LL.M. at St. Louis University.

Barbara Williams Joins Institute as Assistant Director

The Health Law & Policy Institute is pleased to announce that Barbara Williams has joined the Institute as Assistant Director. Ms. Williams will be the administrator of all programs for the Health Law & Policy Institute, including the J.D./M.P.H. program, Semester in Houston program, J.D./Ph.D. program, LL.M. program, publications, conferences, clinic placements, and student affairs.

Ms. Williams received an A.A. from Stephens College and a B.A. from the University of Illinois. She earned her J.D. at Rutgers School of Law in Camden, New Jersey. She expects to receive her LL.M. in Health Law in December of 2000 at the University of Houston Law Center. While in the Health Law Masters Program, Ms. Williams served as an Adjunct Professor of Research and Writing at the Law Center, and she completed the National Association of Legal Placement employment survey for the Law Center's Career Services Office.

Prior to attending the LL.M. Program, she practiced insurance law in New York City. Her background also includes practicing education law and commercial litigation in New Jersey. She also taught litigation skills to law students at the Constitutional Litigation Clinic of Rutgers School of Law in Newark, New Jersey. She is a member of the state bars of Texas, New York, and New Jersey.

Rupf and Anderlik Leave Institute

Cathy Rupf, long-time Assistant Director of the Institute, and Mary R. Anderlik, Research Professor at the Institute, will be moving to the University of Louisville School of Medicine effective January 1, 2001. Ms. Rupf will be Assistant Director of the Institute for Bioethics, Health Policy and Law. Dr. Anderlik will become Associate Professor of Medicine in the Department of Internal Medicine and a faculty member of the Institute for Bioethics, Health Policy and Law.

Institute Involved in Legislative Work

The Health Law & Policy Institute has been involved in a variety of legislative matters this year. Mary R. Anderlik, assisted the House Committee on Public Health in reviewing the role of the pharmaceutical industry in the delivery of health care in Texas. The review will identify pharmaceutical cost-drivers and opportunities to reduce costs, assess the role of pharmacy benefit managers and pharmacies, and address patient-specific issues, as well as other issues identified by the committee. On January 31, 2000, she testified in Austin before the House Committee on Public Health on the rising cost of pharmaceuticals. From February through May 2000, she participated in the Pharmaceutical Workgroup of the House Committee on Public Health (chaired by Representative Gray).

Ronald L. Scott is a member of the legislative working group on telemedicine and the legislative working group on e-Health. The working groups are assisting the committee in reviewing issues related to the increased use of new technologies in the delivery of health care. The review will identify opportunities and risks associated with the sale of medical devices and drugs over the Internet, the feasibility of expanding telemedicine to improve care in underserved areas, and regulatory and privacy issues presented by these new technologies. He has also worked on issues related to outpatient civil commitment for a member of the legislature.

The Institute has also worked on the following projects and issues at the request of members of the legislature:

• Phyllis Griffin Epps updated the statistical information the Institute had prepared in the February 1995 report to the Texas Legislature entitled Non-Financial Barriers to Health Care in Texas at the request of Representative Garnet Coleman;

• Mary Anderlik attended a meeting of the Harris County Hospital District Review Commission at the request of Representative Garnet Coleman;

• Joe Wang completed a 50-state survey of genetics discrimination laws in health insurance for Senator Mike Moncrief.

At a special reception following the October 11th meeting of the advisory board of the Health Law & Policy Institute, Susan Valka, President of the Health Law Organization (HLO), presented the 4^th Annual HLO Health Law Alumnus/Alumna of the Year Award. Susan Feigin Harris received the award for her service to the HLO and the Institute.

Also, the HLO has held monthly meetings. On September 27, 2000, the HLO met to hear Mark Rothstein speak on the topic of Behavioral Genetics. On October 18^th, the HLO held an open meeting to provide information to students about law school programs, including the JD/MPH Program, the JD/PHD Program, health law externships, and the new Houston Journal of Health Law & Policy. On November 13, 2000, the HLO co-sponsored the presentation "Inside the Texas Legislature," featuring Texas Representative Glen Maxey.

Houston Journal of Health Law & Policy Board Works on Premiere Issue

Editors at the Houston Journal of Health Law & Policy at the University of Houston Law Center have moved into their new offices and begun meticulously fine tuning the articles slated for its inaugural issue. The issue, dealing with children’s health care concerns, will feature articles from leading child and health law advocates from across the country. Unlike most law reviews and journals, issues of the Journal will be hardbound books. In addition, the professional articles included in each hardbound volume will be selected by a peer review advisory board rather than by students. "This peer review process from health law experts and professionals throughout the nation will allow the Journal to be on the cutting edge of health law issues and an asset to those practicing health law," explained UH Law Professor Mary Anne Bobinski, director-designate of the Health Law & Policy Institute and editor of the Journal.

Created during the 1999-2000 academic year, the Journal was the brainchild of four founding student editors who worked with Professor Mark A. Rothstein, former director of the Institute, to secure the necessary approvals, funding, and the selection of the inaugural editorial board.

Currently, the Journal consists of Professor Bobinski, the faculty editor, 14 student editors, 11 student candidates and an alumni advisory committee. Because the bylaws limit membership to 25 students, those vying for membership must complete a competitive process. Selection for membership on the Journal can be achieved from either achieving a class rank in the top 20 percent after completing the first year of courses, or through the UH Law Center’s annual writing competition. The majority of Journal members are ranked in the top 20 percent and many have graduate degrees, are registered nurses or are business professionals in the health care field.

The Journal will publish two hard-bound issues per year. In collaboration with the Institute’s symposium on "Children’s Health" in February 2001, the inaugural issue will spotlight articles from speakers including Marian Wright Edelman, J.D., founder and president of the Children’s Defense Fund; Ellen Wright Clayton, M.D., J.D., associate professor of Pediatrics & Law, Vanderbilt University; Sara Rosenbaum, J.D., Harold & Jane Hirsch Professor of Health Law & Policy, George Washington School of Public Health; Lisa Simpson, M.B., B.Ch., M.P.H., deputy director of the Agency for Healthcare Research and Quality, and Abigail English, J.D., director of the Center for Adolescent Health & the Law.

Institute's Graduates Work for Legislature

Three recent University of Houston Law Center graduates are working for the Texas Legislature in Austin. Elizabeth Goins, Tam T. Le, and Tariq A. Zafar began working in August and will continue through the Legislative Session.

Ms. Goins is working for Senator Judith Zaffirini, Chair of the Senate Human Services Committee. Ms. Goins received a B.A. in Economics magna cum laude at the University of Texas at Austin in may 1997. She received a J.D. at the University of Houston Law Center in May of 2000. Prior to completing law school, she served as a law clerk at Hilgers & Watkins, P.C. in Austin, a legal affairs intern at the University of Texas Health Science Center in Houston, a public policy research assistant at the AIDS Foundation in Houston, and an intern for Congressman E. (Kika) de la Garza in Washington, D.C.

Ms. Le is working for Representative Patty Gray, Chair of the House Public Health Committee. Ms. Le graduated cum laude from Long Beach State University with a B.A. in Political Science in December of 1996 and received her J.D. at the University of Houston Law Center in May of 2000. She was a legal assistant in the Business Practices Office of the Methodist Health Care System in Houston, Texas while in law school. She has also worked as a clerk at Fizer, Beck, Bentley & Scroggins, P.C. in Houston and Fulwider, Patton, Lee & Utrecht, L.L.P. in Long Beach, California.

Mr. Zafar is working for State Representative Garnet F. Coleman, Vice Chair of the House Committee on Public Health. Mr. Zafar graduated from the University of Texas in Austin with a B.A. in Psychology in June 1997 and received a J.D. at the University of Houston Law Center in May of 2000. He has worked as an Intern in the Office of the Attorney General in Sugar Land, Texas, a law clerk at Haque & Jones, and a research assistant at Sahara Lab Research Group.

Focus on an Adjunct Professor
David L. Ralston

David L. Ralston teaches Health Care Fraud and Abuse at the University of Houston Law Center. He is an associate attorney at Jenkens & Gilchrist in Houston. His health law practice emphasizes pharmacy issues, physician employment contracts, medical staff bylaws, and Federal Tort Claims Act coverage for the Texas Association of Community Health Centers.

Mr. Ralston has served as Chief Clerk of the Public Health Committee of the Texas House of Representatives, acted as a Consultant to the M.D. Anderson Texas Cancer Pain Initiative, and served as a Law Clerk to U.S. Senate Labor and Human Resources Committee.

Mr. Ralston graduated from the University of Texas Plan II Honors Program in 1990. He received his J.D. at the University of Houston in 1994 and his M.P.H. from the University of Texas in 1995. He is a member of the State Bar of Texas.

Book Review

Of Two Minds: The Growing Disorder in American Psychiatry
By Tanya M. Luhrmann
Alfred A. Knopf (2000)
Reviewed by Phyllis Griffin Epps
Research Professor
Health Law & Policy Institute

The last fifty years in American psychiatry are characterized in part by a schism into two models which co-exist, but uneasily. The maturation of psychopharmacology has offset the dominance of psychoanalysis in treatment methods. Likewise, the growth of managed care has effectively forced reliance on drug therapy that many practitioners feel is unwarranted and unwise. Over several years, anthropologist Tanya Luhrmann visited public and private hospitals and treatment settings to observe teaching methods, practice styles, and the culture of psychiatry in America. The result, Of Two Minds: The Growing Disorder in American Psychiatry, is a fascinating and often sobering account of the tension between two fundamentally different but equally important approaches to mental illness and how managed care has undermined one approach to the ultimate detriment of practitioners and patients alike.

As a medical discipline, psychiatry is relatively disconcerting because it begs questions regarding free will, individuality, and personhood. The possibility that we are each reducible to personality types or, worse, descriptions in a medical textbook is depersonalizing and frightening. Through case studies and analyses, Luhrmann captures the medical student’s struggle to accept the intense self-examination required of practitioners. A psychiatrist must question what relationships, chemical and interpersonal, drive his or her personality in order to relate effectively to others as a caregiver. Luhrmann depicts this incessant navel gazing in a way that captures the frustration and fear of medical students entering psychiatric training as well as seasoned practitioners.

Psychiatry in America is marked by two approaches to mental illness and care. Biomedical psychiatry treats mental illness as a biological illness of the body comparable to other physical illnesses. Under this model, the aim of treatment is to repair the flaw in the biology. The increasing popularity of psychopharmacology is associated with a growing prevalence in the biomedical approach. By contrast, under the model of psychodynamic psychiatry, mental illness is in the "mind" and in emotional reactions to other people. Treatment takes the form of psychoanalysis: multiple, intensive discussions and exercises designed to benefit the patient by facilitating an understanding of which emotional reactions are less than healthy and the basis for the unhealthy reactions. The patient then becomes able to accommodate or avoid future negative emotional reactions. As an anthropologist, Luhrmann wanted not to declare one school better or right but to consider how the two schools worked together to create a culture for psychiatrists and patients.

Luhrmann is most effective when she contrasts the culture of the biomedical, public hospital setting with that of the psychodynamic, private treatment facility. The public hospital, which serves as a safety net of services for the surrounding community, is overwhelmed by the large volume of patients who are rejected by other hospitals for lack of medical insurance or other resources. Budgetary pressures created by the need to deliver expensive medical care to the many who can not afford it constrain decisions regarding treatment strategies. Perpetually filled to capacity with the poorest and often sickest people, the psychiatric ward in the public hospital gradually adopted the biomedical model over the psychodynamic model. Psychiatric patients are treated as rational adults with medical problems like brain dysfunction or "heart attacks in the brain." Without the time or money to administer extensive and perhaps necessary care, the staff stabilizes the patient through medication before releasing him or her into the care of family or the streets. The setting is notable on one level for the humanization of relations with psychiatric patients, many of whom are frequent visitors and familiar to the staff. On another level, the results are absurd. Many of the patients are schizophrenic or suffer from other debilitating mental illnesses. As Luhrmann writes, "[t]he problem, then, was that the staff essentially had to treat patients as rational adults capable of making reasonable and informed choices about their illnesses, and most of them obviously were not."

One of the psychodynamic settings observed by Luhrmann was a small, open, private hospital. Somewhat contrary to the public hospital ward, a patient was "ill because he [had] learned to interpret and respond to other people in maladaptive ways." The objective was not simply to keep patients safe but to cure them with significant emphasis on psychoanalysis of both patient and physician. The emotions and feelings of patients and psychiatrists were the constant focus of discussion, yet the hospital’s public culture often defused strong feelings in either party. The result was a slightly greater emphasis on roles and hierarchy, and a stronger inclination to view patients as "cases."

Luhrmann documents correctly how managed care has decimated traditional approaches to educating would-be psychiatrists and treating medical illness. The needs of insurers and institutions have contaminated the doctor’s relationship to her patient. Policymakers wanted to increase competition between medical institutions as a way to reduce costs but underestimated the difficulty of designing meaningful quality and outcome measures, particularly in psychiatry. The old system, with its greater use of psychoanalysis, fostered regression into dependency and was therefore subject to abuses. The current system focuses on treatment protocols and outcomes; the availability of psychotherapy is curtailed by limiting access and increasing bureaucracy. The unforeseen result is that today’s psychiatric residents receive less training in psychoanalysis, despite its value to psychiatric care. Luhrmann also comments on the morality of administering unequal and insufficient psychiatric care to persons based on income. Her conclusions, while delivered in heavy-handed fashion, form a solid base for further debate on the subject.

Books Received
Branding Health Services: Defining Yourself in the Marketplace by Gil Bashe and Nancy J. Hicks (Aspen Publishers 2000)
Managed Health Care Handbook 4^th ed. By Peter R. Kongstvedt (Aspen Publishers 2001)
Measuring and Improving Patient Satisfaction by Patrick Shelton (Aspen Publishers 2000)
Medicine and Business: Bridging the Gap by Sheldon Rovin, DDS, MS (Aspen Publishers 2001)
Organizational Ethics in the Compliance Context by John Abbott Worthley (Health Administration Press 1999)
Physician Empowerment through Capitation by Clifford R. Frank and I. David Kibbe (Aspen Publishers 2000)
Primary Care Provider's Guide to Compensation and Quality: How to Get Paid and Not Get Sued by Carolyn Buppert (Aspen Publishers 2000)
Stalkers and Their Victims by Paul E. Mullin, Michele Pathé, Rosemary Purcell (Cambridge University Press 2000)

Lex Frieden Named President of Rehab International

Lex Frieden was elected President of Rehabilitation International (RI) at its quadrennial World Congress in Rio de Janiero, Brazil. He is only the second person with a severe disability to head the organization. Mr. Frieden, a disability rights advocate, is Senior Vice President of TIRR (The Institute for Rehabilitation and Research) and Professor of Physical Medicine and Rehabilitation at the Baylor College of Medicine. He is also a member of the advisory board of the Health Law & Policy Institute.

RI is a federation of 200 national and international organizations and agencies in 90 countries. It focuses on the rehabilitation of people with disabilities, and equalization of opportunities for persons with disabilities and their families within society. Founded in 1922, RI is one of only five disability-focused organizations to have consultative status with the United Nations.

FROM THE WEB

The following articles appeared in Health Law Perspectives on the Health Law & Policy Institute's Web site between August 18, 2000 and November 15, 2000:

Lawmakers Run to Prefile Bills for 77th Texas Legislative Session

Public Access to the National Practitioner Data Bank?

Genetically Engineered Foods: Should We Be Concerned?

Legal Liability for Bioethicists Involved in Research

Can the Texas Board of Medical Examiners Discipline Medical Directors for Denial of Care?

FDA Finalizes Policy on Reprocessing Single-Use Medical Devices for Reuse

The Entwined Destinies of Roe v. Wade and Assisted Reproductive Technology

Organ Shortage Creates Opportunities for Heroism, Raises Ethical Questions

Laser Eye Surgery Referral Fees Raise Ethical Concern

State-Mandated External Review: Panacea, Empty Promise, or Modest Policy Success?

Publications

Mary R. Anderlik

"Genetic Information, Legal, Genetic Privacy Laws," in Encyclopedia of Ethical, Legal, and Policy Issues in Biotechnology, edited by Thomas J. Murray and Maxwell J. Mehlman, New York: John Wiley & Sons, 2000 (with Rebecca D. Pentz)

"Genetic Information, Legal, Genetics and the Americans with Disabilities Act," in Encyclopedia of Ethical, Legal, and Policy Issues in Biotechnology, edited by Thomas J. Murray and Maxwell J. Mehlman, New York: John Wiley & Sons, 2000.

"Debates Over Death" (Review of The Definition of Death: Contemporary Controversies), Medical Humanities Review, Vol. 14, no. 1 (2000): 49-55.

Mary Anne Bobinski

Medical Ethics: Codes, Opinions, and Statements (editor, with M. Rothstein, et al. 2000)(Volume One of two)

"Genetic Information, Legal, ERISA Preemption, and HIPAA Protection," in The Encyclopedia of Ethical, Legal, and Policy Issues in Biotechnology (Thomas H. Murray, et al., eds. 2000).

HIV Law & Policy (Carolina Academic Press, forthcoming 2001).

Mark A. Rothstein

Occupational Safety and Health Law (West Group, 4^th ed.), 2001 Supplement

Employment Law (West Group, 2d ed.), 2001 Supplement (with Craver, Schroeder, Shoben)

"The Use of Genetic Testing for Predisposition to Alzheimer's Disease in Long-Term Care Insurance," 35 Ga. L. Rev. ___ (2001)

"Some Ethical and Legal Implications of Pharmacogenomics," 1 Nature Revs. Genetics ___ (2001)(with Phyllis Griffin Epps)

"Ethical Guidelines for Medical Research on Workers," 42 J. Occup. & Env'l Med. ___ (2000)

"Genetics and the Work Force of the Next Hundred Years," 2000 Colum. Bus. L. Rev. ___ (2000)

"War Over Genetic Privacy Fought on Many Fronts," 40 The Sciences No. 6 (Nov.-Dec. 2000)(with Mary R. Anderlik)

Book Review, "Genetics and Public Health in the 21^st Century: Using Genetic Information to Improve Health and Prevent Disease," 343 New Eng. J. Med. ___ (2000)

Presentations

Mary R. Anderlik

"Legal Issues in Mental Health and Substance Abuse Treatment," Houston International Community Health Summit, Houston, Texas, September 21, 2000.

Mary Anne Bobinski

"Legal Aspects of Health Care" at St. Lukes Hospital with Professor Richard Alderman, Houston, Texas, October 10, 2000

"Women, Poverty, and Access to Health Care," University of Iowa's Journal of Gender, Race, and Justice symposium, Iowa City Iowa, October 13, 2000

Mark A. Rothstein

"New Developments in Genetics and Their Implications for the Federal Courts," Eighth and Tenth Circuits Judicial Conference, Colorado Springs, Colorado, October 26, 2000

"Privacy, Confidentiality, and Liability Concerns from the New Genetics," American Medical Association, Orlando, Florida, December 4, 2000

Ronald L. Scott

"Emerging Issues in e-Health," CLE presentation, Winstead Sechrest & Minick, Houston, Texas, October 9, 2000

William J. Winslade

"Personal, Professional, and Organizational Ethics: Common Themes and Variations," National Association for Healthcare Quality 25th Annual Educational Conference, Dallas, Texas, September 17, 2000

"Facing the Inevitable: Aging and the End of Life," UTMB Founder's Day Weekend, Galveston, Texas, October 14, 2000

"International Guidelines in Genetics: Obstacles, Options, and Opportunities," International Guidelines in Genetics Conference, Lutherstadt-Wittenberg, Germany, October 26-30, 2000

Faculty Appointments

Mary R. Anderlik has been appointed to the Animal Welfare Committee at the University of Texas-Houston Health Science Center.

Mary Anne Bobinski was appointed to two national committees: the ABA Section on Legal Education's Committee on Curriculum and the AALS Committee on Curriculum and Research. Professor Bobinski continues to serve on the University of Houston's Commission on Women and as a board member of the Montrose Clinic.

Phyllis Griffin Epps has joined the Public Policy Committee of the Texas Council on Family Violence.

Mark A. Rothstein received grant of $736,808 to study "Genetic Information and Life Insurance Underwriting," National Human Genome Research Institute, National Institutes of Health and was appointed member of the Genetic Testing Task Force of the Clinical Laboratories Improvements Act Advisory Committee, Centers for Disease Control and Prevention. He has also been appointed to the editorial board of the Pharmacogenomics Journal and has been named editor of Research Ethics/Clinical Ethics, Journal of Law, Medicine, and Ethics.

Focus on our Graduates

Crystal Moffett James (J.D. '98) worked for Morehouse College and the State of Georgia until her recent transition to the Council of State and Territorial Epidemiologist (CSTE), where her title is program director. She is responsible for programs in infectious diseases and environmental/occupational/injury. She will be working with the membership on projects such as updating the Model State Public Health Privacy Project, drafting and commenting on the "Guidelines for National Human Immunodeficiency Virus Case Surveillance" and assisting with lobbying efforts for the organization.

Howard Stone ( LL.M. '95 ) has been appointed Associate Professor of Medicine in the Department of Family and Community Medicine at the University of Louisville School of Medicine and a faculty member of the Institute for Bioethics, Health Policy and Law.

Special Section -- Legislative Preview
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Introduction

Melanie R. Margolis
Research Professor
Health Law & Policy Institute

When the 77^th Texas Legislature convenes on January 9, 2001, health care promises to be a major focus. Prefiling of bills began on November 13, 2000 with a number of bills addressing health care among the first to be filed.

This Legislative Preview issue of the Health Law News brings the reader insightful comments from key legislators and state officials discussing aspects of health care that will be considered by the 77^th Texas Legislature. Senator Jane Nelson, Senator Judith Zaffirini, Representative Garnet F. Coleman, Executive Deputy Commissioner of Health Charles E. Bell, M.D., and Commissioner of Insurance Jose Montemayor share their thoughts on the upcoming session.

Senator Jane Nelson chairs the Senate Health Services Committee, which has been studying medical privacy. She discusses the importance of maintaining privacy in the information age. Senator Nelson details her plans to file legislation this session that seeks to protect the privacy of medical records.

Senator Judith Zaffirini chairs the Senate Human Services Committee. This Committee has been busily evaluating the effectiveness of state regulatory efforts to ensure quality services in long-term care, analyzing the long-term care business climate, and making recommendations to the 77^th Legislature. The Committee adopted more than 30 recommendations related to long-term care.

Representative Patricia Gray, Chair of the House Public Health Committee, mentions the interim charges studied by the committee, including: pharmaceuticals; telemedicine; disease management; hospital conversions and charity care; emergency medical services in rural areas; and oversight of Medicaid managed care, the Children's Health Insurance Program, and agencies under the committee's jurisdiction. She discusses her emphasis on a number of legislative approaches to controlling the rising costs of prescription drugs to the state and to its senior citizens.

Representative Garnet F. Coleman, Vice Chair of the House Public Health Committee, emphasizes the need to focus on the uninsured because a high rate of uninsured promotes inefficiency in health care delivery and compromises the health of the general population. Specifically, he discusses the work of the Blue Ribbon Task Force on the Uninsured and changes that are needed in Medicaid and the Children's Health Insurance Program (CHIP).

Charles E. Bell, M.D., the Executive Deputy Commissioner of the Texas Department of Health (TDH), categorizes TDH's legislative initiatives as those that ensure essential public health services to protect and promote the public’s health and those that maintain a health care safety net for the medically indigent and individuals with special health care needs. According to Dr. Bell, children's health issues promise to be a major emphasis for the 77^th Legislature. TDH will seek legislation and funding to: remove the current limit on prescription drugs for Medicaid recipients, expand tobacco use prevention activities; provide greater access to dental care for children; supply new immunizations for children; continue direct health care services for children; update systems used to collect vital statistics and by improving data collection on trauma, cancer, and birth defects; and health disparities in our minority populations.

Commissioner of Insurance Jose Montemayor notes that important health insurance issues are likely to be considered during the 77^th Legislature. Legislation may attempt to encourage more small employers to purchase insurance for their employees or to establish a review process for all newly proposed mandated benefits. Other legislation would focus on Medicaid, CHIP, the Texas Health Insurance Risk Pool, and long term care insurance.

Texans Have the Right to Expect Medical Privacy

Senator Jane Nelson
Chair
Senate Health Services Committee

In this information age, certain entities have been allowed to rummage through our private medical and prescription drug records unfettered. But during the past year, these entities have learned what it feels like to be on the other end of the magnifying glass as the Senate Health Services Committee scrutinized these practices as part of its interim study.

The lesson is clear. No one likes to have their privacy invaded. And when it comes to our medical records, privacy is something we expect and deserve.

The right to privacy is both Constitutional and fundamental. Patients should be able to go to the doctor, buy prescriptions and have lab work performed with the understanding that this information is strictly confidential. It's a pretty simple idea.

Unfortunately, legislative solutions are more complicated. Our medical history has scant protection from a patchwork of laws and regulations that are often vague and without any real enforcement provisions. The privacy of our prescription drug records is even less secure. And there are practical business reasons that must be a factor.

Last session, the Legislature approved two of my proposals to protect the privacy of mental health records and to prohibit our prescription drug records from being sold for profit or shared with an employer. While important, these steps do not provide the framework necessary to halt those entities who stand to profit by sorting through the contents of our medical files.

I plan to file legislation in the coming legislative session that will:
 

• Establish a blue ribbon panel to monitor trends and recommend additional legislative initiatives.
• Establish an opt-in/opt-out structure so health care consumers will have greater control over the use of their medical information.
• Allow patients to review and revise their health care data.
• Authorize the Attorney General to set consistent enforcement mechanisms.
• Prohibit employers from having access to individually identifiable medical data of their employees.
• Establish consistent laws and regulations that encourage medical research.
• Establish consistent and fair laws and regulations regardless of the medium in which the medical information is stored, both electronically or on paper.
• Compel corporations to adopt a binding privacy statement as to how information will be used and stored.

Our committee looked at this issue from all sides. In our recommendations to the next Legislature, we have taken an approach that is sensitive to the practical concerns of businesses without compromising our chief objective: to restore our fundamental right to medical privacy.

Legislative Preview

Senator Judith Zaffirini
Chair
Senate Human Services Committee

Texas is growing older, but in many ways older Texans are better off than ever before. According to the Texas Department on Aging, the population age 60 or older is projected to swell to 7.5 million by 2030, an increase of 176 percent from the year 2000, and will represent 22 percent of the total state population. Contrary to popular belief, the older population is relatively young and healthy, with two-thirds of older Texans below the age of 75 and the vast majority free of disability.

Despite this good news, the health and safety of our most frail and vulnerable citizens remains a vital concern. In July, the federal Health Care Financing Administration reported that 54 percent of nursing homes fall below the minimum levels of nursing staff needed to maintain health and safety. The study found that this understaffing has contributed to an increase in the incidence of severe bedsores, malnutrition and abnormal weight loss among nursing home residents.

In 1997, I authored Senate Bill 190, legislation that significantly increased the state's authority to enforce health and safety regulations and affirmed the fundamental rights of nursing home residents to be free from abuse and exploitation and to live in safe, decent and clean conditions. While the legislation placed Texas in the vanguard of state nursing home enforcement, Texas' long-term care system remains fraught with problems.

The Texas Department of Human Services reports, for example, that positions for nurse aides, who provide the bulk of direct care in nursing homes, turn over at a rate of 180 percent. Competition for wages is the chief culprit, a by-product of Texas' robust economy combined with one of the nation's lowest Medicaid nursing home reimbursement levels (45^th among the states).

Likewise, nearly one-quarter of the state's nursing facilities currently are in Chapter 11 bankruptcy. Although reasons for the bankruptcies vary and include risky borrowing decisions by many large chains, their fragile financial state places their residents at increased risk of poor care.

Last September Lieutenant Governor Rick Perry charged the Texas Senate Committee on Human Services, which I chair, with evaluating the effectiveness of state regulatory efforts to ensure quality services in long-term care, analyzing the long-term care business climate and making recommendations to the 77^th Legislature, which will convene on January 9. The Committee adopted more than 30 recommendations related to long-term care, including proposals to:

• Increase Medicaid reimbursement rates, ensuring that the increases are utilized for increased direct care staffing;

• Improve protection of residents from abuse and neglect by requiring all facility employees to undergo criminal background checks and speeding the availability of criminal history information through the use of Internet-based background checks;

• Encourage the development of a long-term care career ladder through the creation of a licensed vocational nursing scholarship program for nurse aides and others who agree to practice in long-term care settings;

• Increase resources for the Department of Human Services to investigate the financial viability of nursing facilities; and

• Encourage good nursing home operators to take over the operation of troubled facilities by establishing a temporary license for facility operators going through the change of ownership process.

In the words of a popular song, "time waits for no one." The number of Texans with a severe disability will grow to 4.3 million in the next 30 years, a 119 percent increase. Many of us are likely to face the daunting prospect of seeking long-term care for a loved one, including the possibility of placement in a nursing facility. Safe and effective care options may not be available later should we fail to invest wisely in our long-term care system today

Controlling Prescription Drug Costs

Repesentative Patty Gray
Chair
House Public Health Committee

Health care is one of the most fascinating and complex issue areas that I've had the privilege to work on as a state legislator. As chair of the House Public Health committee last session, I dealt with issues ranging from the regulation of hospitals and health care providers to access to and quality of care. This interim, Speaker of the House James E. "Pete" Laney charged the committee with several interim study areas including: pharmaceuticals, telemedicine, disease management, hospital conversions and charity care, emergency medical services in rural areas, and oversight of Medicaid managed care, the Children's Health Insurance Program and agencies under the committee's jurisdiction. While all the interim charges offer great potential for the advancement of heath care in Texas, I plan to focus on ways to control the rising costs of prescription drugs to the state and to the senior citizens of Texas.

Prescription drugs have become an important part of medical practice as well as most Americans' lives. According to a recent Kaiser Family Foundation survey, more than 9 in 10 Americans report taking prescription drugs, over half take them on a regular basis, and one-third have more than five prescription drugs in their medicine cabinet. They help to save and extend lives, shorten hospital stays and improve the quality of life by treating everything from heart disease to hair loss. However, rising costs have become a major concern not only for consumers, but also for employers, private insurers, and government programs. National spending on prescription drugs has increased at double digit rates in each of the past two years and is expected to continue to increase at this rate. Drug expenditures are the fastest growing component of health care in the nation.

The elderly population has most acutely felt the increase. According to the same survey, those over 65 are significantly more likely to be regular users of prescription drugs, to have more than five prescriptions in their medicine cabinet, and to spend more out-of-pocket on prescription drugs. Conversely, older Americans are more likely to report that they lack prescription drug coverage and that paying for prescription drugs is a serious problem.

The cost of prescription drugs has attracted widespread attention from the federal and state governments and the national and local media. Consumer awareness of the issue has increased accordingly and many Americans, as they near retirement age, while pleased with the opportunities for extending and improving their quality of life that prescription drugs may be able to offer them, are worried about how to pay for them.

As seniors and others without prescription drug coverage struggle to absorb the rising costs of pharmaceuticals, so do Texas state agencies, and, therefore, Texas taxpayers. Prescription drug coverage will be an important issue not only from a public health policy perspective, but also from an appropriations and financial perspective as well. As Texas prepares for the 77th Legislative Session it is important for us as elected officials to recognize the needs of our constituents and to understand the limits of our resources. Options I want to explore next session include compiling better data about how and at what price the state purchases prescription drugs and developing a bulk purchasing program for state agencies to use and negotiate lower prices. Additionally, I want Texas to look at developing a pharmaceutical assistance program for elderly Texans who do not qualify for Medicaid but have trouble paying for their monthly pharmacy bill. No elderly Texan should ever have to make a choice between paying for heart medicine or paying the rent.

77th Legislature to Address Issues of the Uninsured

Representative Garnet F. Coleman
Vice Chair
House Public Health Committee

One of the major problems facing policymakers in the State of Texas today is a lack of health insurance for a significant part of the population. At any given time, about one out of every four Texans (24 percent) lacks health insurance, which ranks us 49th out of the 50 states.

Having a large uninsured population is a problem because it promotes inefficiency in the delivery of health care and results in a less healthy population. People who are uninsured do not have a regular doctor, so they delay needed medical care until their conditions become serious, then seek care in expensive emergency rooms. Recent studies show, in fact, that the uninsured are four times more likely to report going without needed care compared to the insured. This is an inefficient use of resources. In addition, lack of health insurance means a less healthy population. People without health insurance tend not to receive regular check-ups, preventative care or immunizations, which means the safety net ends up treating many illnesses that could have been prevented or managed in a doctor’s office. Recent studies in this area show the uninsured to be twice as likely to be hospitalized for diabetes, hypertension, and other "immunizable conditions." The lack of health insurance is having a direct negative impact on the health of the population.

The 77th Legislature will tackle the issue of the uninsured head-on from several angles. The first is through the work of the Blue Ribbon Task Force on the Uninsured. This panel, composed of three members of the House, three members of the Senate, and three members of the general public, is charged with developing "a market-based improvement plan, including financing tools and models, to ensure that Texans have access to affordable health care coverage." The Task Force held several public hearings around the state during the interim and is now in the process of writing a report to the Legislature, which will be completed by January 2001. Legislation will be developed from the report that addresses issues of affordability and accessibility of private health insurance, and explores coverage options for adults through the Medicaid and Children’s Health Insurance Program (CHIP).

The second angle of attack on the uninsured problem is maximizing children’s enrollment in current public health insurance programs. A look at the statistics suggests that if all uninsured children who are income-eligible for Medicaid or CHIP actually enrolled in these programs, the rate of uninsurance among children could drop dramatically, to a little more than five percent. But while CHIP enrollment is increasing at a steady clip, with almost 150,000 of the estimated 450,000 CHIP-eligible kids enrolled as of October 2000, children’s Medicaid enrollment has remained practically flat. In fact, only 9,000 of the estimated 600,000 Texas children potentially eligible for Medicaid have enrolled in Medicaid as a result of the TexCare Partnership outreach campaign. Why? Because of the bureaucratic hoops that families must jump through in the Medicaid program that do not exist in CHIP.

The 77th Legislature will look to remove these barriers to enrolling in Medicaid and making the Medicaid and CHIP programs more equal. For example, applications for CHIP may be completed over the phone in a few minutes, whereas an application for Medicaid must take place face-to-face with a social worker with many pieces of documentation. Also, CHIP eligibility is guaranteed for a full year, whereas Medicaid parents must schedule interviews with case workers every six months to determine if they are still eligible and report any changes in income within 10 days. None of these bureaucratic barriers to enrolling in Medicaid and staying on Medicaid are required by the federal government, and the Legislature will look to remove them next session.

By making private health insurance more affordable and accessible, and eliminating barriers to enrolling in public health insurance programs, the 77th Legislature can and will make significant headway towards addressing the problem of the uninsured.

Public Health Focus on Texas Children

Charles E. Bell, M.D.
Executive Deputy Commissioner
Texas Department of Health

Texas children are a major funding priority for the Texas Department of Health (TDH) as we prepare for the 77th Legislative Session. Child health insurance remains a primary focus, and TDH will request funds to expand tobacco use prevention activities, provide greater access to dental care for children, and supply new immunizations for young Texans. We will ask to continue direct health care services for children and remove the current limit on prescription drugs for Medicaid recipients.

TDH will seek support for building local public health infrastructure by updating systems used to collect vital statistics and by improving data collection on trauma, cancer and birth defects. We also will ask for funding to better understand the health disparities in our minority populations.

Our legislative initiatives fall into two basic categories: first, we are responsible for ensuring essential public health services to protect and promote the public’s health, and second, we maintain a health care safety net for the medically indigent and those with special health care needs. Let’s take a closer look at our priorities:

Health Registries and Vital Statistics – Quality birth and death data gathered by TDH are critical to nearly every public health program. TDH maintains registries for these data, plus other registries on birth defects, cancer and trauma. These are essential for assessing the burden of disease and injury on Texans. We need to expand our registries and do a better job of linking databases. This will help us better understand existing data and improve data dissemination. We want to make data available on a timely basis in order to help state and local policymakers diagnose community health problems and develop intervention strategies. This information is also important to Texas research centers as they look for new ways to manage and treat diseases.

Reducing Health Disparities -- Improvements in health status for minority populations have lagged behind the general population. We are requesting funds to reduce the incidence of specific diseases among minority populations in Texas. This funding will support local prevention efforts along the border, increase educational campaigns for the treatment and prevention of cardiovascular disease and prostate cancer, and implement efforts to reduce HIV and sexually transmitted diseases. Resources will also be available to link private providers with local public health entities to improve community health status.

Comprehensive Women’s and Children’s Health (Title V) -- This initiative aims to ensure access to community-based direct health services for women and children not eligible for Medicaid. Funding will help maintain the current level of services and will compensate for additional services.

Child Health Insurance Program (CHIP) -- This session, legislators will decide how much funding to allocate for CHIP outreach and medical and dental services. Related issues include creation of the State Kids Insurance Program (SKIP), a substitute program for state employees who don’t qualify for CHIP, and managing the increased enrollment of children in Medicaid as a secondary result of CHIP outreach efforts. There also is legislative interest in simplifying the process for determining Medicaid eligibility and adjusting the basic CHIP program design.

Tobacco Prevention Efforts – TDH estimates that more than 400,000 Texas children in middle and high schools use tobacco, increasing their risk for chronic disease and early mortality. In an effort to change this trend, the legislature asked TDH to conduct a pilot study of tobacco interventions. Working with the University of Texas, the University of Texas School of Public Health in Houston, and the Centers for Disease Control, this project is underway at 16 intervention sites. TDH will request that this pilot initiative be expanded.

Local Health Department Support – Community involvement is necessary to provide effective public health protection throughout the state. We will ask for funds to create a public health practice team of experts to support the performance of essential public health functions. This group will assist local communities in using public health assessment instruments, developing community health improvement plans to address deficiencies and supporting development of local boards of health to ensure sustainable public health systems.

Childhood Immunizations -- We are requesting critical support to provide hepatitis A vaccine for children 2 to 18 years old in the state’s 32 border area counties and in 22 other high-risk counties. We also will ask for funds to provide two newly licensed vaccines: DtaP/IPV/HepB vaccine and pneumoccoccal conjugate vaccine. The first, a combination vaccine, reduces the number of shots children receive from ten to five. Texas ranks 47th in the U.S. for children who have completed scheduled diphtheria, tetanus, pertussis (whooping cough), polio, and measles vaccines. Fewer injections may translate to more fully immunized children.

Access to Dental Health -- Tooth decay is the single most common chronic disease of childhood, occurring five to eight times as frequently as asthma. Unless it is stopped early, children may require expensive, avoidable and painful dental care. TDH will ask the legislature to increase reimbursement rates as a way to keep and add dentists who care for Medicaid patients, and thereby expand access to care for children on Medicaid who are in need of dental care.

Medicaid -- This federal health care entitlement program is the core of our health care safety net, providing coverage for 1.7 million Texans every month. The majority covered are children. To keep pace with rising costs, TDH will ask for additional funds to bolster Medicaid and cover a projected budget shortfall. More resources are needed for the Texas Health Steps Program that covers early screening and diagnosis for children and for the Comprehensive Care Program that pays for required medical treatment. Medicaid is TDH’s largest, most expensive, and most important safety net program. Together, we must find ways to keep it working.

TDH stands ready to provide the support that legislators need to be successful. Their motivation is the same as ours – to improve the health of Texans.

Potential Health Insurance Initiatives

Jose Montemayor
Insurance Commissioner
Texas Department of Insurance

Health insurance issues have played a prominent role in several recent sessions of the Texas Legislature. The 2001 session probably won’t see anything of the magnitude of the Patient Protection Act adopted in 1997, but several important health insurance issues are likely to be considered.

The Texas Department of Insurance (TDI) works closely with various committees and work panels that have been charged by the Legislature with evaluating the insurance marketplace. Several committees have studied health insurance this year, including the Senate Committee on Health Services, the Senate Committee on Human Services, the Senate Special Committee on Border Affairs, the Blue Ribbon Task Force on Uninsured Texans and the Joint Interim Committee on Health Care Benefit Mandates.

The following health-related items are neither TDI recommendations nor issues that are necessarily TDI concerns, but rather issues that we have heard discussed and which will probably be considered in the upcoming 77^th legislative session:

• Privacy -- Several legislators have indicated they intend to file legislation related to the privacy and confidentiality of medical records and related insurance information. This issue is a likely one because of the Gramm-Leach-Bliley Act of 1999, which tore down the legal walls between banking, insurance, and other financial services.

Gramm-Leach-Bliley has left us with some issues that need to be addressed at the state level, including privacy concerns for customers of the mega-financial service institutions that are now possible. The federal privacy rules are out now, but legislation also is likely when the Texas Legislature meets.

Some of the other health insurance issues likely to be discussed are:

• Small employer issues – A number of proposals to address small employer insurance are likely to be considered. Both the Blue Ribbon Task Force on the Uninsured and the Joint Interim Committee on Health Benefit Mandates have discussed recommendations to encourage more small employers to purchase insurance for their employees. Legislators may propose changes related to the benefits provided under the current small employer plans; premium rating requirements; payment of agent commissions by insurers and marketing of the basic and catastrophic plans required to be offered to all small employers.
• Mandated benefits – Though at this writing the Joint Interim Committee on Health Benefit Mandates has not issued a final report with recommendations, one of the legislative suggestions being considered is establishing a review process for all newly proposed mandated benefits.
• Blue Ribbon Task Force on the Uninsured – Though the Task Force is still working on its final report, we can expect a number of legislative proposals as a result of its work. The legislation may cover a number of different programs, including Medicaid, Children's Health Insurance Program (CHIP) and the Texas Health Insurance Risk Pool. There also may be some proposals that would affect insurance offered by commercial carriers and HMOs. However, the details of those recommendations are unknown at this time.
• Long-term Care Insurance – The Senate Committee on Human Services Committee has developed legislative recommendations addressing a wide range of issues pertaining to long-term care services. Those recommendations include having TDI produce and disseminate a consumer guide to long-term care insurance that includes insurance companies’ rate information and amending the Insurance Code to allow for-profit nursing homes to purchase liability insurance from the Joint Underwriting Association (JUA).