March 4, 2011

The legislature is in full mode with committee hearings in full “swing” and the Senate has already started morning and afternoon sessions.

The House voted on Monday to repeal over 5 years a state tax on business assets in an effort to boost economic development.

The House legislation would reduce Missouri’s franchise tax rate and repeal the levy for the 2016 tax year. This bill would exempt business with less than $10 million in assets. The House further endorsed capping states minimum wage at the federal rate. This effort is promoted for economic development to compete with other states.

In the meantime, Senator Mayer will allow the nuclear power plant bill to progress that have rate payers reimburse their electric utility for costs involved after applying successfully for a Federal Nuclear Regulatory Commission site plan are moving forward.

News this week includes:

Employment Law
The Senate debate at length Senator Lager’s SB 188 on Tuesday evening in a filibuster by Senator Crowell.

The bill currently, under the Missouri Human Rights Act (MHRA), a practice is unlawful when the protected trait is a contributing factor in the decision to discriminate. This act changes that standard to a motivating factor standard. The plaintiffs in employment discrimination cases have the burden of proving this standard.

Currently, persons acting in the interest of employers are considered employers under the MHRA and are liable for discriminatory practices. This act modifies the definition of employer to exclude those individuals. The act similarly excludes the United States government, corporations owned by the United States, individuals employed by employers, Indian tribes, certain departments or agencies of the District of Columbia, and private membership clubs from the definition.

The act abrogates McBryde v. Ritenour School District to require courts to allow a business judgment jury instruction whenever offered by the defendant.

The act recommends two methods to the courts for analyzing employment discrimination cases as a basis for granting summary judgment. The mixed motive and burden shifting analysis are based on court rulings interpreting federal law and the act abrogates numerous Missouri cases in urging the courts to consider the methods highly persuasive.

Parties to a discrimination case under the MHRA may demand a jury trial.

Motorcycle Helmet Law
The exemption to wearing a helmet for those riders over 21 is on the Senate Calendar for debate. This is obviously a high priority of the Republican Senate.

Tax Amnesty
Representative Flanigan’s HB 116 supported Tax Amnesty bill is on the House calendar  for debate.

HB 116 authorizes an amnesty from the assessment or payment of all penalties, addition to tax and interest on delinquencies of unpaid taxes which occurred prior to December 31, 2010.

House Professional Licensing Registration
House Bill 591 (Gatschenberger) presented by Representative Donna Lichtenberger.

UMKC wants limited teaching license for dentists employed as instructors to address the dental instructors shortage. MDA and Dental Board are in Favor. Potentially more instructors will help with the dental shortage.

House Bill 347 (Kirkton) Prompt Credentialing Act. This bill establishes the Prompt Credentialing Act which requires a health carrier to credential a health care professional within 60 days of receiving a completed application.  Once credentialed, a health carrier must retroactively compensate a health care professional for services rendered from the date of his or her application.

For: Nebert Clinic Poplar Bluff, MONA, MSMA, MHA and clinic managers

Against: Anthem Blue Cross Blue Shield, Associated Health Plan (Shannon Cooper)

The committee appeared favorable. Insurors said the state was interfering with private businesses.

Exec: None

House Workforce Development
House bill 319 was voted out of committee on Monday.

The bill Currently, contracts for public construction projects cannot contain provisions that require or prohibit the parties from entering into agreements with labor unions or that discriminate against parties for doing so when the project is funded by more than 50% of state funds.  This bill specifies that "public funds" means funds belonging to the state, any agency of the state, or any instrumentality of the state and that the same requirements must apply to contracts funded in any amount with public funds instead of only a project funded by more than 50% of state funds. A "project labor agreement" will be an agreement by or between an employer and one or more labor unions to systemize labor relations at a construction site required by the state, any state agency, or any instrumentality or political subdivision of the state.

The bill also specifies that any person submitting a bid will have standing to seek equitable relief and monetary damages for a violation of the provisions regarding state purchasing including, but not limited to, setting aside award of a contract, ordering a contract to be rebid, requiring award of a contract to a different bidder, and awarding monetary damages.

Health Care Compact
House Bill 423 was heard by a House committee. The measure would authorize Missouri’s participation in an interstate compact that, subject to congressional approval, would give the participating states primary responsibility to regulate health care in those states, allow them to supersede federal regulation of health care and grant them a right to a share of federal funds appropriated to provide health services in the compact states.

House Budget Committee
FY 2012 Appropriations Committees Reports to House Budget Committee.

Below are my notes on the discussion.

Rep. Kelly requested that each department director stand before the Budget Committee and commit to informing the House Budget Chair and the Senate Appropriations chair of all flexibility use prior to use.

Appropriations Health, Mental Health and Social Services, Rep. Flannigan

HB 10: Dept. Mental Health: Changes to Governor’s recommendations:

• Reduction to Overtime: $1,123,000
• Partial restoration to CPS Youth Community Programs $360,000
• Rep. Lampe: Does the reduction in overtime affect direct patient care?  A: No, this is just vacation time.

Dept. of Health & Senior Services: Changes to Governor’s recommendations:

• 15% restoration to Core Public Health; total restoration of $1,352,842
• 2% restoration to In Home Provider; total restoration of $12,328,893;
• Eliminate MO Quality Home Care Council NDI; decrease of $360,000.

HB 11: Dept of Social Services: Changes to Governor’s recommendations:

• Increase of Case management System & Provider Enrollment System of $2,000,000;
• Increase of $5,000,000 to Medicaid Payment Prevention Measures (Recovery Audit & Compliance Fund);
• 15% restoration to Domestic Violence Program $712,500;
• Decrease of $10,000,000 to MO HealthNet- Pharmacy Caseload growth and cost to continue NDI;
• Decrease of$2,645,919 to MO HealthNet-Managed Care Caseload growth and cost to continue NDI;
• Decrease of $7,712,500 to MO HealthNet-Hospital Caseload growth and cost to continue NDI.
• Rep. Sater: Are the decreases to caseload growth and cost to continue decision items based on new data from the department? A: No.
• Rep. Sater: We had to do a supplemental this year for the pharmacy.
• Question: How much was the supplemental for pharmacy? A: $35M. All funds for pharmacy supplemental last year was cut by half which caused the need for supplemental this year.

Senate-Commerce, Energy and the Environment
The Senate Commerce, Energy and the Environment Committee met on Tuesday, to discuss a worker’s compensation legislation.

SB 221   Establishes damage caps for Human Rights Act cases and workers' compensation discrimination cases. - Hearing conducted

The final bill heard during the committee meeting was Senate Bill 221, sponsored by Sen. Jane Cunningham, R-Chesterfield. SB 221 would establish damage caps for Human Rights Act cases and workers' compensation discrimination cases.

Speaking in favor of the legislation, Dan O'Keefe, an attorney with the Bryan Cave Law Firm, said these changes are necessary because of costly rulings made by Missouri courts. "Employers can be pulled into court on very thin allegations," O'Keefe said. SB 221 seeks to align Missouri law with standards used on the federal level.

Also speaking in favor were: Rich AuBuchon, Missouri Chamber of Commerce and Industry; Bert Kimble, Cooperating School Districts of Greater Kansas City; Ray McCarty, Associated Industries of Missouri; David Overfelt, Missouri Retailers' Association and Missouri Grocers' Association; and Shannon Cooper, Greater Kansas City Chamber of Commerce.

Opponents believe SB 221 would have serious implications on how discrimination cases are handled in Missouri and could result in the loss of federal funds to the state.

Testifying against the bill were: Lynne Bratcher, Missouri Association of Trial Attorneys; Alisa Warren, Missouri Commission on Human Rights; and Shawn D'Abreu, Paraquad Inc.

Pharmacy Benefits Managers
The pharmacy industry was in top form with numerous direct script industry supporters in attendance. The insurance industry was present in support.

Individuals testified in support of the bill. Express Scripts, CVS, and Walgreens are against the legislation.

SB 236 establishes provisions relating to pharmacy services.

ELECTRONIC PRESCRIBING
This act provides that all prescription drug orders communicated by way of electronic transmission shall be transmitted directly to a pharmacist or pharmacy technician in a licensed pharmacy of the patient's choice with no intervening person having access to the prescription drug order. The electronic transmission shall be deemed the original prescription drug order so long as it meets the requirements under the act. The act delineates the procedure for the electronic transmission, including how such transmission devices shall be used to communicate a prescription to a pharmacist or pharmacy technician. Nothing in this act shall preclude the use of paper prescriptions. SECTION 338.098

PHARMACY BENEFIT AND PHARMACY BENEFIT MANAGERS
This act prohibits pharmacy benefit managers(PBMs) from automatically enrolling a pharmacy in a contract, modifying an existing contract without affirmation from the pharmacy, or requiring a pharmacy or pharmacist to participate in one PBM contract in order to participate in another contract. Nor shall a PBM discriminate between in-network pharmacies or pharmacists on the basis of copayments or days of supply unless such pharmacy declines to fill such prescriptions at the price allowed to other in-network pharmacies for such prescription.

A PBM is also prohibited from reassigning a prescription that has been presented in one pharmacy to another pharmacy in the PBM's network. When the PBM contacts the prescribing health care practitioner to affirm or modify the original prescription, the affirmed or modified prescription shall be filled at the in-network pharmacy of the patient's choice to which the insured presented the original prescription. This provision is not applicable to any prescribed specialty drug with a specific formulation. SECTION 376.388

SWITCH COMMUNICATIONS
This act establishes procedures for governing switch communications. A switch communication is defined as a communication from a health insurance carrier or PBM to a patient or the patient's physician that recommends a patient's medication be switched by the original prescribing practitioner to a different medication than the medication originally prescribed.

PHYSICIAN OVERRIDE OF MEDICATION RESTRICTIONS
This act governs the practice by health carriers and pharmacy benefit managers of restricting medications for the treatment of any medical condition by requiring step therapy or a fail first protocol. A prescribing practitioner may override such restrictions if the prescriber can demonstrate, based on sound clinical evidence, that the step therapy or fail first protocol treatment has been ineffective in treating the patient's disease or medical condition, is expected to be ineffective, or is likely to cause an adverse reaction. The duration of any step therapy or fail first protocol cannot last longer than 14 days when such treatment is deemed clinically ineffective by the prescribing physician. However, when the health carrier or PBM can show, through sound clinical evidence, the originally prescribed medication is likely to require more than two weeks to provide any relief to the patient, the step therapy or fail first protocol may be extended up to seven additional days.

Nothing in the act shall require coverage for a condition specifically excluded by the policy which is not otherwise mandated by law. SECTION 376.1464

This act also requires PBMs and health carriers to provide a website with a list of medications which require preauthorizations and the process required to comply with the PBM's or health carrier's policies. SECTION 376.1466

Portions of this act are identical to SB 918 (2010).

The hearing was not finished and will be continued next week.

Prescription Drug Fees
A Senate committee approved a substitute bill for Senate Bill 122. The measure would require each insurer to have a website by July 2012 that provides enrollees with estimates of total cost and out-of-pocket costs for procedures or services by each contracted provider or facility. Provider contracts with insurers could not prohibit disclosure of this information.

Public Bidding
HB 566 (Denison) The legislation that proved to be an extended fight last session has resurfaced this year.

The bill changes bidding procedures for public entities. The legislation as introduced allows for legal procedures for  bidders that do not bid on projects to seek damages.

A substitute bill was introduced and is being reviewed. The sponsor said it is designed for small municipalities, sets a standard and strengthens current statute. Thereby eliminating “good  ole boy” bidding. Municipal utilities, Springfield City Utilities and MAC opposed the bill. Association of General Contractors, Missouri Press and a cement firm supported.

Next Week
Two weeks remain before the legislative spring recess. The Senate has dramatically increased the number of bills filed as the last filing date for the Senate was March 1st.

The House budget committee has received appropriations committee suggestions and will begin markup next week on the 2012 budget.

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