Legislature Jabs Healthcare Facility Employees in Special Session

Under new legislation passed by the Senate in the first special session of the Texas legislature, healthcare facilities, including hospitals, nursing homes, assisted living facilities, ESRD facilities and ambulatory surgery centers will be required to develop and implement policies to vaccinate their workers to protect patients from vaccine-preventable diseases.

The healthcare facility's policy must (1) require all employees, persons with privileges and persons providing direct patient care under contract, from housekeepers to physicians, to receive vaccines for vaccine-preventable diseases specified by the facility, based on the person's level of risk resulting from the individual's exposure to patients; (2) include procedures for persons to be exempted for certain medical conditions or for reasons of conscience, including a religious belief; (3) provide procedures a person who is exempt from the vaccinations must follow to protect facility patients from exposure, as in the use of protective medical equipment, such as gloves and masks; (4) prohibit discrimination or retaliatory action against someone who is exempt from the required vaccines, except that required use of protective medical equipment, such as gloves and masks, may not be considered retaliatory action, and during a public health disaster the person may be prohibited from having contact with facility patients; (5) include procedures for verifying whether a person has complied, and maintenance of a written or electronic record of such person's compliance with or exemption from the policy; and (6) include disciplinary actions for failure to comply with the policy.

Policies are required to be in place by September 2012.

Standardized Patient Risk Identification System to Protect Healthcare Workers

The legislation also required that the Texas Department of State Health Services develop a standardized patient risk identification system to readily identify patients with specific medical risks. Once developed, hospitals will be required to utilize the statewide standardized patient risk identification system, subject to certain limited exceptions.

Medicaid Emergency Room Cost Sharing

The Texas legislation also contains a provision requiring Medicaid beneficiaries, to the extent permitted under the federal Medicaid program, to share the cost of nonemergency medical care received through a hospital emergency room, to encourage personal responsibility. The legislation also authorized, to the extent that it is cost effective, a physician incentive program designed to reduce the use of hospital emergency room services for nonemergency conditions by Medicaid recipients.

Texas Value-Based Purchasing

The Texas Senate also authorized the development of quality-based outcome and process measures and quality-based payment systems for compensating physicians, healthcare providers and facilities participating in the child health plan or Medicaid program. The measures will be designed to (1) align payment incentives with high-quality, cost-effective healthcare; (2) reward the use of evidence-based best practices; (3) promote the coordination of healthcare; (4) encourage appropriate physician and other healthcare provider collaboration; (5) promote effective healthcare delivery models; and (6) take into account the specific needs of the child health plan program enrollee and Medicaid recipient populations.

Alien Sponsors Liable for Public Hospital Care

The legislation provides that a public hospital or hospital district that provides healthcare services to certain sponsored aliens may recover, from the person who executed an affidavit of support on behalf of the alien, the costs of the healthcare services provided to the alien.

Certified Healthcare Collaboratives (because we can't call them ACOs)

Finally, the Senate developed a form of accountable care organization, known as a certified healthcare collaborative (Texas ACO), to provide or arrange for healthcare services through contracts with physicians and healthcare providers or with entities contracting on behalf of participating physicians and healthcare providers. A Texas ACO, however, generally may not prohibit a physician or other healthcare provider from participating in another healthcare collaborative. Texas ACOs must obtain a certificate of authority under the Texas Insurance Code.

Texas ACOs are required to establish policies to improve the quality and control the cost of healthcare services. A Texas ACO's policies must include standards and procedures relating to (1) the selection and credentialing of physicians and healthcare providers; (2) the development, implementation, monitoring and evaluation of evidence-based best practices and other processes to improve the quality and control the cost of healthcare services, including practices or processes to reduce the occurrence of potentially preventable events, and processes to improve patient engagement and coordination of healthcare services; and (3) patient and provider complaints.

The legislation exempted Texas ACOs from Texas' antitrust laws and enacted provisions designed to provide ACOs with immunity from federal antitrust laws through the state action doctrine. The legislation, however, does not protect anyone from the penalties associated with activities that would constitute per se violations under federal antitrust laws. The Federal Trade Commission, however, has expressed its concern that the immunity from federal antitrust laws will have adverse consequences for consumers.

The legislation also permits Texas ACOs to contract for and accept payments from governmental and third party payors based on alternative payment mechanisms, including bundled or global payments and quality-based payments, without violating state laws, such as the corporate practice of medicine doctrine.