Connecticut Health Law Legislative Update
CT HEALTH LAW LEGISLATIVE UPDATEConnecticut Health Law Legislative UpdateFollowing the close of the Connecticut General Assembly’s 2016 legislative session, Governor Dannel P. Malloysigned into law a number of bills that affect health care providers in Connecticut. Below is a summary of significant,newly enacted health care laws.Public Act 16-95: An Act Concerning Matters Affecting Physicians, Health Care Facilitiesand Medical Foundations.PHYSICIAN NONCOMPETESEffective July 1, 2016As previously published in the Health Law Pulse, Public Act 16-95 (P.A. 16-95) places significant restrictions oncovenants not to compete that involve physicians.MEDICAL FOUNDATIONSEffective October 1, 2016Current law permits a hospital, health system, or medical school to organize and become a member of a medicalfoundation, which can practice medicine through its employees or agents who are physicians, chiropractors,optometrists, or podiatrists (collectively, providers). Current law prohibits a medical foundation from operating as afor-profit entity.P.A. 16-95 authorizes independent practice associations (IPAs) and certain “other business entities” to organize andjoin for-profit or nonprofit medical foundations. IPAs are organizations (1) that have only independent providers asowners or members or that are owned by a tax-exempt, statewide professional medical membership association andcontrolled by independent providers and (2) that provide services to and on behalf of its members or owners. OnlyConnecticut-licensed physicians may own, control, or be a member in an IPA.The “other business entities” permitted to join or form a medical foundation must be registered to do business andhave their principal place of business in Connecticut and have at least 60 percent of their ownership or control held,individually or jointly, by (1) an IPA; (2) a provider; or (3) a professional medical partnership, professional corporation(PC), or limited liability company (LLC) (other than a “captive professional entity” as defined below) in which allpartners, shareholders, or members are Connecticut-licensed physicians. The inclusion of the term “provider” in thedefinition of other business entities arguably creates a conflict with Connecticut’s corporate practice of medicinedoctrine. It remains to be seen how courts will resolve this potential conflict.An IPA or other business entity forming a medical foundation cannot be owned or controlled by a hospital, healthsystem, medical school, or medical foundation organized by a hospital, health system, or medical school. P.A. 16-95prohibits employees and representatives of hospitals, health systems medical schools, or any entity controlling theforegoing from serving on the board of a medical foundation formed by an IPA or other business entity. Thislegislation also restricts anyone from simultaneously serving on the board of more than one medical foundation.1
CT HEALTH LAW LEGISLATIVE UPDATEMedical foundations formed or joined by hospitals, health systems, or medical schools must continue to be organizedas nonprofit entities.Current law requires all medical foundations to annually report certain information to the Office of Health CareAccess. This legislation expands the reporting obligations to include (1) the names and addresses of the medicalfoundation’s organizing members; (2) the name and employer of each board member; (3) the name, specialty,practice location, and description of services provided at such location for each physician employee or agent of themedical foundation; and (4) a copy of the medical foundation’s governing documents and bylaws.OTHER RELEVANT PROVISIONS OF P.A. 16-95 This legislation expands the definition of “captive professional entity” for purposes of the medical foundationlaw described above and physician group practice reporting requirements. Under the revised definition, acaptive professional entity is a partnership, PC, LLC, or other professional services entity in which aphysician is a beneficial owner and is directly or indirectly employed by, controlled by, or subject to thedirection of (1) a hospital, health system, medical school, or medical foundation or (2) an entity that controls,is controlled by, or is under common control with any such organization. Effective October 1, 2016 When a health care provider refers a patient to an affiliated health care provider that is not a member of thereferring provider’s partnership, PC, or LLC, existing law requires the health care provider to provide thepatient with certain information. Under this legislation, health care providers must notify the patient that thereferred-to providers are affiliated providers and that the patient may seek care from an alternate provider ofhis choice. The provider must also advise the patient to contact his health carrier to receive informationconcerning in-network services. Effective July 1, 2016 Under P.A. 16-95, hospitals must include its cost-to-charge ratio on all bills to patients and third-partypayors. Effective October 1, 2016Public Act 16-39: An Act Concerning the Authority and Responsibilities of AdvancedPractice Registered Nurses.Effective October 1, 2016, except as noted otherwise belowPublic Act 16-39 (P.A. 16-39) extends to advance practice registered nurses (APRNs) authority that, under currentlaw, is generally held only by physicians. Highlights of certain significant sections of P.A. 16-39 are as follows: P.A. 16-39 revises the patient’s bill of rights for residents of nursing homes, residential care homes, andchronic disease hospitals by, among other things, (1) granting patients the right to choose not only theirphysician but also their APRN, (2) allowing APRNs to order physical or chemical restraints of patients,(3) permitting APRNs to order administration of psychopharmacologic drugs, and (4) allowing the patient’sAPRN to consult with the facility regarding certain proposals to transfer a patient to another room.2
CT HEALTH LAW LEGISLATIVE UPDATE This legislation allows APRNs to document the basis for transferring or discharging a resident from aMedicaid-certified nursing facility, Medicare-certified skilled nursing facility, chronic or convalescent nursinghome, or a rest home with nursing supervision. Under the new law, APRNs may also develop a resident’sdischarge plan prior to transfer or discharge. Current law allows only the resident’s personal physician or thefacility’s medical director, in conjunction with a social worker, nursing director, or other health care provider,to develop a resident’s discharge plan. Current law requires the attending physician to make reasonable efforts to notify a patient’s health carerepresentative, next of kin, legal guardian, conservator, or other designated person within a reasonable timeprior to withholding or removing the patient’s life support system. This legislation places the foregoingnotification obligations on either the attending physician or APRN. P.A. 16-39 provides APRNs with the same civil and criminal immunity afforded to physicians for removing apatient’s life support. As with physicians, to qualify for this immunity, APRNs must exercise their bestmedical judgment, the patient must be in a terminal condition, and APRNs must consider the patient’swishes. APRNs must also comply with federal regulations concerning removal of life support from infants. This legislation permits APRNs to issue “do not resuscitate” orders. P.A. 16-39 authorizes APRNs to direct the care of and issue written protocols for respiratory care. This legislation allows APRNs to authorize paramedics to administer drugs and intravenous solutions and toorder paramedics to administer controlled substances. P.A. 16-39 authorizes APRNs to issue written certifications to qualifying patients (except those withglaucoma as the qualifying condition) authorizing the palliative use of marijuana. This legislation alsoprovides APRNs with the same civil, criminal, and disciplinary liability protections as physicians related toproviding certifications for the palliative use of marijuana. The new law also permits the Department ofConsumer Protection (DCP) to issue APRNs licenses to possess and supply marijuana to treatchemotherapy side effects. These medical marijuana-related provisions of P.A. 16-39 are effective January1, 2017.Public Act 16-25: An Act Concerning Telehealth Providers.Effective October 1, 2016Current law permits physicians, physician assistants, advance practice registered nurses, and numerous othercategories of health care providers to provide health care services using telehealth. Under Public Act 16-25 (P.A. 1625), licensed speech and language pathologists, respiratory care practitioners, and audiologists are added to the listof health care providers permitted to provide telehealth services.The existing telehealth rules do not restrict “health care providers” from providing on-call coverage, consulting withother providers regarding a patient’s care, and issuing orders for hospital patients. P.A. 16-25 expands the definition3
CT HEALTH LAW LEGISLATIVE UPDATEof “health care providers” for these purposes to include a number of new categories of providers, including, but notlimited to, licensed speech and language pathologists, respiratory care practitioners, and audiologists.Public Act 16-77: An Act Concerning Patient Notices, Designation of a Health InformationTechnology Officer, Assets Purchased for the State-Wide Health Information Exchangeand Membership of the State Health Information Technology Advisory Council.Effective upon passageThis legislation (P.A. 16-77) makes substantive and technical changes related to Public Act 15-146, a major publichealth and health care bill passed by the Connecticut legislature during its 2015 legislative session.CONNECTICUT HEALTH INSURANCE EXCHANGE CONSUMER INFORMATION WEBSITEUnder current law, Connecticut’s Health Insurance Exchange (HIX) is required, within available resources, toestablish and maintain a consumer health information website by July 1, 2016. The HIX website must include priceand cost information for the most common inpatient diagnoses and procedures, outpatient procedures, and surgicaland imaging procedures, listed by health care provider and categorized by third-party payer, based on a list publishedby the Department of Public Health (DPH) and the Insurance Department (CID) on their websites (Joint Report).Current law provides that, starting January 1, 2017, hospitals will be required to inform a patient of the patient’s rightto request cost and quality information at the time of scheduling a diagnosis or procedure for nonemergency carelisted on the Joint Report. If the patient requests such information regarding the diagnosis or procedure, a hospitalmust, within three business days, provide the patient information on (1) the amount the patient will be charged ifuninsured, including the amount of a facility fee; (2) the Medicare reimbursement amount; (3) if the patient is insured,the allowed amount and the insurer’s contact information so that the patient may obtain additional informationregarding charges and out-of-pocket costs; (4) the hospital’s Joint Commission composite accountability rating andMedicare star rating; and (5) the website addresses for the Joint Commission and Medicare hospital compare tool. Ifthe patient is insured and the hospital is out-of-network under the insurance policy, the hospital’s notice must alsostate that out-of-network rates may apply.P.A. 16-77 delays the implementation date for requiring hospitals to provide patients with notice of their right torequest cost and quality information. Under this legislation, hospitals will not be required to provide such notices until180 days after the CID and the DPH issue the Joint Report on their websites. Additionally, in the event a patient’sdiagnosis or procedure has no corresponding Medicare reimbursement amount, this legislation requires a hospital toinstead notify the patient of either the approximate amount or the percentage of the hospital’s charges that Medicarewould have paid for the services. P.A. 16-77 also clarifies that the location or setting of scheduled nonemergencycare is immaterial for purposes of implicating the notice requirement.FACILITY FEE NOTIFIC ATIONCurrently, billing statements that include a facility fee must clearly identify the facility fee and provide certainadditional information, including the Medicare facility fee reimbursement rate for the same service and notice topatients of their right to request a reduction in the facility fee or any other portion of their bill. Under P.A. 16-77, therequirement to provide this information is limited to the initial billing statement. In addition, if there is no correspondingMedicare facility fee for the service, the hospital must provide either the approximate amount, or the percentage of4
CT HEALTH LAW LEGISLATIVE UPDATEthe hospital’s charges, that Medicare would have paid the hospital for the facility fee. This legislation also clarifies thathospitals are required to notify patients of their right to request a reduction in the facility fee or any other portion oftheir bill without regard to whether such patient qualifies for, or is likely to be granted, a reduction.Under current law, hospitals, health systems, and hospital-based facilities are prohibited, as of January 1, 2017, fromcollecting a facility fee (1) for outpatient services provided at an off-campus hospital-based facility, other than ahospital emergency department, that uses a current procedural terminology evaluation and management code or(2) from uninsured patients in excess of the Medicare rate for outpatient services unless such services were providedin an emergency department not located on a hospital campus; however, if a contract providing for payment of facilityfees was in effect on July 1, 2016, between a health insurer and a hospital, health system, or hospital-based facility,then such a provider may continue to collect reimbursement for facility fees from the health insurer until the expirationof such contract. P.A. 16-77 exempts application of these facility fee prohibitions if a patient is insured by Medicare orMedicaid or is receiving services under a workers’ compensation medical plan.HEALTH INSURER CONSUMER INFORMATION WEBSITESCurrent law requires health insurance carriers in Connecticut to maintain a website and toll-free telephone number toallow consumers to obtain insurance cost and network information related to specific procedures and providers byJuly 1, 2016. P.A. 16-77 delays the deadline for establishing this website until January 1, 2017, and also exempts allhealth insurance carriers with less than 40,000 covered lives in Connecticut from having to maintain such a website.Public Act 16-43: An Act Concerning Opioids and Access to Overdose Reversal Drugs.Public Act 16-43 (P.A. 16-43) implements new restrictions on the prescription of opioid drugs and makes certainrevisions to Connecticut’s controlled substance laws as part of Connecticut’s efforts to curb opioid drug abuse. Theprovisions of P.A. 16-43 are effective as of the dates noted below.OPIOID DRUG PRESCRIBING RESTRICTIONSEffective July 1, 2016P.A. 16-43 implements new restrictions on the prescription of opioid drugs. This legislation specifically includes thefollowing: In accordance with the recommendations set forth in the National Centers for Disease Control andPrevention’s Guideline for Prescribing Opioids for Chronic Pain, prescribing practitioners issuing an opioidprescription for the first time to an adult patient for outpatient use are prohibited from issuing a prescriptionfor more than a seven-day supply of such drug except in limited circumstances. Prescribing practitioners are prohibited from issuing a prescription to a minor patient for more than a sevenday supply of an opioid drug at any time except in limited circumstances. If a practitioner prescribes lessthan a seven-day supply of an opioid drug to a minor patient, then at the time of prescribing the practitionermust discuss the prescription with the minor patient and, if present, the patient’s custodial parent, guardian,or other person having legal custody of the minor. This discussion must cover the reasons why theprescription is necessary, risks associated with opioid drug use (including addiction and overdose), and thedangers of taking opioids with alcohol, benzodiazepines, and other central nervous system depressants.5
CT HEALTH LAW LEGISLATIVE UPDATE The seven-day supply restrictions described above do not apply if, in the professional medical judgment ofthe prescribing practitioner, more than a seven-day supply is required to treat a patient’s acute medicalcondition or is necessary for treatment of the patient’s chronic pain, pain associated with a cancer diagnosis,or pain related to palliative care. In such event, the triggering condition must be documented in the patient’smedical record, and the practitioner must indicate that an alternative to the opioid drug was not appropriateto address the patient’s condition.P.A. 16-43 defines “opioid drug” by reference to federal controlled substance regulations, which define opioid drug as“any drug having an addiction-forming or addiction-sustaining liability similar to morphine or being capable ofconversion into a drug having such addiction-forming or addiction-sustaining liability.” This legislation also stipulatesthat the opioid prescribing and documentation requirements set forth above do not apply to medications designed fortreatment of abuse of, or dependence on, an opioid drug, including without limitation opioid agonists and opioidantagonists. “Opioid antagonist” is defined to include naloxone hydrochloride (a/k/a Narcan) or any “similarly actingand equally safe” drug approved by the Food and Drug Administration (FDA) for treatment of a drug overdose, and“opioid agonist” refers to any medication that binds to opiate receptors and provides relief for opioid abuse ordependence.ADMINISTRATION OF OPIOID ANTAGONISTS BY LICENSED HEALTH CARE PROFESSIONALSEffective upon passageUnder current law, only a licensed health care professional who is legally authorized to prescribe an opioid antagonistis permitted to administer an opioid antagonist to treat or prevent a drug overdose. Under P.A. 16-43, all licensedhealth care professionals are permitted to administer an opioid antagonist to treat or prevent an opioid-related drugoverdose; however, the legislation does not expand the types of health care professionals authorized to prescribe ordispense opioid antagonists. Consistent with existing law, this legislation states that all licensed health careprofessionals who administer opioid antagonists to prevent or treat an overdose are immune from criminal or civilliability or professional discipline under such circumstances.HIPAA NONCOMPLIANCE GROUNDS FOR DISCIPLINARY ACTION AGAINST CONTROLLED SUBSTANCEREGISTRANTSEffective October 1, 2016Current law allows DCP to take certain disciplinary actions, including suspension, revocation or nonrenewal of aregistration, or imposition of civil penalties, against registered practitioners who distribute, administer, or dispensecontrolled substances in the event of certain prohibited occurrences. P.A. 16-43 expands the bases on whichdisciplinary action may be imposed against a registrant to include (1) failure to establish and implement administrativesafeguards for the protection of electronic protected health information in accordance with the Security Standards ofthe Health Insurance Portability and Accountability Act of 1996 (HIPAA) and (2) breach of any such safeguards by aprescribing practitioner’s authorized agent.6
CT HEALTH LAW LEGISLATIVE UPDATEREVISIONS TO ELECTRONIC PRESCRIPTION DRUG MONITORING PROGRAMEffective July 1, 2016Current law requires DCP to operate an electronic prescription drug monitoring program to collect prescriptioninform
CT HEALTH LAW LEGISLATIVE UPDATE Connecticut Health Law Legislative Update Following the close of the Connecticut General Assembly’s 2016 legislative session, Governor Dannel P. Malloy signed into law a number of bills that affect health care providers in Connecticut. Below is a summary of significant, newly enacted health care laws.
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