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AzAHRM
LEGISLATIVE UPDATE
September 10, 2010
Elizabeth Petersen
111 W. Monroe Street
Suite 1000
Phoenix, AZ 85003
602-507-6100
Overview
– What was passed this session?
– What bills did not get passed?
– What will be decided on November ballot?
– Positive impact of past litigation.

What was passed this session?
SB 1043 – Kids Care
– Restores the Children’s Health
Insurance Program (CHIP) known as
KidsCare and the Proposition 204
programs. Extends state employee
health coverage for dependents up to
their 26th birthday and makes a variety
of changes to the 2010 Seventh Special
Session health budget reconciliation bill.
KidsCare
Faced with losing $9 billion in Medicare Funds,
the state managed to find $7 million to fund the
program.
 In the same bill, lawmakers also reversed cuts to
AHCCCS, that threatened to pull health coverage
of 310,000 low-income adults. That reversal is
contingent on Arizona receiving about $400
million in federal stimulus dollars.

SB 1189 –Admissibility of
expert opinion testimony

Changes the standard used in civil and
criminal trials relating to the admissibility
of expert testimony from the Frye to the
Daubert standard.
Frye v. Daubert

Frye – generally accepted and leave other
considerations to cross-examination.
 According to a 2002 RAND study, post Daubert,
the percentage of expert testimony by scientists
that was excluded from the courtroom
significantly rose.
 Daubert has made it more difficult for plaintiffs
to litigate successfully.
Frye

Weaker Frye standard –
– Judges merely had to ensure that an expert’s
proposed testimony was relevant and in some cases
was of a nature that was “generally accepted” in a
particular field when it applied.
– Not even applicable to experts who purportedly
reached opinions “by inductive reasoning based on
his or her own experience, observation, or research.”
Daubert

.
It requires
that judges take an active role
in determining that an expert reached
opinions in a reliable, scientific manner
and that the opinions fit the facts of the
case before the jury hears the expert
evidence.
Daubert

Evidence must be reliable and scientifically
valid.

Trial court is gatekeeper to prevent "junk
science" from entering the courtroom.
Daubert

Daubert outlined four considerations:
testing, peer review, error rates, and
acceptability in the relevant scientific
community.
HB 2425 - Vulnerable adult
attorneys fees

Specifies a court may order the payment
of reasonable attorney fees not to exceed
the amount of compensatory damages in
a civil action involving a vulnerable adult.
– Limits the maximum amount of attorney fees from
two times the amount of compensatory damages.
HB 2124 outpatient
treatment; urgent care
– Establishes procedures that allow the Arizona
Department of Health Services to issue
temporary licenses to outpatient treatment
centers.
 Except for outpatient treatment centers that
provide dialysis services or abortion procedures.
HB 2124 outpatient
treatment; urgent care
– Requires DHS to issue a temporary license within seven
days after receiving the application materials, but prohibits
DHS from issuing the temporary license before the
anticipated operation date.
– The temporary license must include the following
information:
 Name of the facility;
 Name of the licensee;
 Facility’s class or subclass;
 Effective date of the temporary license; and
 Location of the licensed premises.
HB 2124 outpatient
treatment; urgent care
Must submit to apply for a temporary license:
 The initial application;
 All application and license fees; and
 A written request for a temporary license.
– Written request must include:
 Anticipated date of operation
 Attestation signed by the applicant that the
applicant and facility will comply with and continue
to comply with applicable licensing statutes and
rules.
HB 2124 outpatient
treatment; urgent care
– Permits a facility to begin operating on the
effective date of the temporary license.
– Allows the Director of DHS to stop issuing
temporary licenses at any time if the Director
believes the public health and safety is
endangered.
HB 2150 Uniform Patient Reporting
System
– Requires hospitals that provide primarily
psychiatric services to comply with the uniform
patient reporting system. Exempts the Arizona
State Hospital from the uniform patient reporting
system requirements.
– Currently, hospitals that provide primarily
psychiatric services are exempt from the system
reporting requirements.
HB 2150 Uniform Patient Reporting
System
– The uniform patient reporting system was instituted in
Arizona in 1983. The system requires hospitals to report
inpatient and outpatient statistical data to the Arizona
Department of Health Services twice a year. Requirements
for reporting are substantially the same as the uniform
billing requirements prescribed by the U.S. Department of
Health and Human Services for Medicare and
Medicaid. DHS is responsible for implementing and
managing the system (A.R.S. § 36-125.05). Statute
specifies that reported information and data are designed
to promote cost containment, and DHS uses the reported
information to publish a semiannual comparative report of
patient charges (A.R.S. § 36-125.06).
HB 2150 Uniform Patient Reporting
System
–
– For inpatient statistical data, statute requires the reported data to
include the number of confinements, average length of stay, average
charge per day, average charge per confinement and the average
charge per confinement for each attending physician. Each of these
categories must be further categorized by discharge diagnosis,
groupings of related diagnoses, groupings of diagnoses that typically
have similar lengths of stay, and any other similar categories as DHS
determines.
– For outpatient service statistical data, hospital emergency departments
are required to report the date of service, surgical procedures, related
diagnosis and charges for service. DHS may also require hospitals and
emergency departments to report other clinical and demographic data,
such as patient age, sex or insurance coverage information.
HB 2545 – Board Information on
Website

Specifies that complaints, non-disciplinary
orders, or actions and advisory letters or
letters of concern issued by a health or
non-health regulatory board be available
to the board and the public at all times
but NOT available on the board’s website.
HB 2545 – Board Information on
Website

Effective December 2012.
– However, the Board in June directed its staff to begin
implementation.
Non-disciplinary actions may not be posted to
the internet, they would be available through a
written public records request.
 Practice Limitations would remain posted to the
Board’s website.

SB 1255 – Truth in
Advertising

Requires all licensed health professionals
to disclose their title, type of professional
license held, and field of practice on all
advertisements in which they are named.
ARS §32-3213 – Truth in
Advertising
A. An advertisement for health care services that
includes a health professional's name shall
identify the title and type of license the health
professional holds and under which the health
professional is practicing.
 B. A health professional who violates this section
commits an act of unprofessional conduct.

ARS §32-3213 – Truth in
Advertising

C. For the purposes of this section, "advertisement"
includes billboards, brochures, pamphlets, radio and
television scripts, electronic media, printed telephone
directories, telephone and direct mail solicitations and
any other means of promotion intended to directly or
indirectly induce any person to enter into an agreement
for services with the health professional. Advertisement
does not include materials that provide information
about network providers and that are created by an
entity regulated under title 20.
HB 2187 – Osteopathic Board
 Allows the President of the Board of Osteopathic
Examiners in Medicine and Surgery to establish
committees and committee duties.
– Exempts committee members from civil liability
 Allows the Board to develop and publish standards
and opinions governing the profession of
osteopathy.
 Amends ARS §32-1802
HB 2172 – Dental Board
Complaints

Sets forth provisions that allow the
executive director, if delegated by the
SBDE, to terminate a complaint filed
against a licensee if the investigative
staff’s review indicates the complaint is
meritless.
HB 2172 – Dental Board
Complaints
– Prohibits the Director from terminating a complaint if
a court has entered a medical malpractice judgment
against a licensee.
– Requires the Director to provide to the Board, at each
regularly scheduled Board meeting, a list of each
complaint the Director has dismissed since the
preceding Board meeting.
– Permits a person who disagrees with the Director’s
dismissal of a complaint to file a written request that
the Board review the Director’s action.
HB 2172 – Dental Board
Complaints
– Specifies that the person must file the request
within 30 days after receiving notice of the
Director’s action by personal delivery or within
35 days after the date the notification was
mailed to the person’s last known residential
or business address.
– Requires the Board, upon receiving a written
request, to review the action and approve,
modify or reject the Director’s action.
HB 2125 – DENTAL BOARD
MEMBERSHIP

Changes the composition of the
membership of the SBDE by removing one
public member and adding one business
entity member. Stipulates that the
business entity member may not be a
licensed dentist, dental hygienist or
denturist.
HB 2149 – PT BOARD
Allows the Board of Physical Therapy to
establish committees to assist in carrying
out its duties.
 Additionally outlines the procedures for
licensure, suspension and reinstatement of
licenses or certificates.

HB 2123 –PT Records

Specifies that a business entity that
provides physical therapy services must
establish a written protocol for patient
records.
ARS §32-2501 – PA
Practice Act

Updates the Arizona Physician Assistant
Practice Act by making numerous changes
to existing statute regarding the Arizona
Regulatory Board of Physician Assistants,
supervising physician responsibilities, and
the licensing and initiation of practice of
physician assistants.
– Amends ARS §32-2501
HB 2021 – PA Practice Act
Changes “supervising physician” notification
process to Board– assumes responsibility
 Broadens the ability of a physician to supervise
from a remote location by allowing the physician
to supervise by any means of
telecommunication, not just radio or telephone.
 Eliminates the requirement for a PA and a
supervising physician to meet in person.

HB 2021 – PA Practice Act

Requires the supervising physician to maintain a
written agreement with the PA, stating that the
physician will exercise supervision over the PA
and retain professional and legal responsibility
for the care provided by the PA. Requires the
supervising physician and the PA to sign the
agreement.
– Updated annually, kept on file at the practice site and
made available to the Board on request.
HB 2021 – PA Practice Act

May now supervise four PAs (from two).
Can perform any duties and
responsibilities that are delegated by the
supervising physician, including ordering,
prescribing, dispensing and administering
drugs and medical devices.
 Can pronounce death.

HB 2021 – PA Practice Act





Specifies that an approved program is any PA
educational program accredited by one of the following:
The Accreditation Review Commission on Education for
Physician Assistants or one of its predecessor agencies;
The Committee on Allied Health Education and
Accreditation; or
The Commission on the Accreditation of Allied Health
Educational Program.
Clarifies that the applicant must have specifically
graduated from, rather than attended and completed
training in, an approved program.
HB 2021 – PA Practice Act
If delegated by the physician, to sign any form
that would otherwise require authentication by a
physician’s signature.
 Prohibiting performing surgical abortions.


PA is the supervising physician’s agent in the
performance of all practice related activities,
including the ordering of diagnostic, therapeutic
and other medical services.
HB 2469 – Certified MAs
and Students

Allows Certified Medication Assistants or
nursing students to dispense medications
under the supervision of a licensed
nursing staff member in a nursing care
institution.
– Implements pilot program
HB 2025 – Chiropractors

Updates the language specifying what
types of treatment a chiropractor may
engage in and establishes requirements
regarding the maintenance of patients’
records for business entities that provide
chiropractic services.
HB 2499 - Prescriptions
Allows prescriptions to be dispensed when
the patient submits the written
prescription by fax or email.
 The patient must presents the original
signed prescription when picking up.

SB 1182 – Psychiatric Mental
Health NP

Authorizes the practice of certified
psychiatric and mental health nurse
practitioners and incorporates references
to psychiatric and mental health nurse
practitioners in court-ordered mental
health evaluation and treatment
procedures.
SB 1182 – Psychiatric Mental
Health NP

Defines psychiatric and mental health nurse
practitioner as:
– Licensed registered nurse practitioner who has
completed an adult or family psychiatric and mental
health nurse practitioner program.
– And is certified as an adult or family psychiatric and
mental health nurse practitioner by the Arizona State
Board of Nursing.
SB 1419 – Contract Dentists
Prevents dental service corporations and
prepaid dental plans from entering into
contracts with dentists that require noncovered services to be provided to
subscribers at a set rate.
 Prohibits dental hygienists from
performing any diagnostic procedures that
are required to be performed by a dentist.

SB 1304 – Abortion reporting
requirements

Requires a hospital or facility that
performs abortions and health
professionals that treat women with
complications due to an abortion to submit
a report to DHS detailing non patient
identifiable information so that DHS can
prepare an annual statistical report based
on the data gathered in the reports.
SB 1307 – Human Embryos

Prohibits a person from knowingly or
intentionally creating or attempting to
create an in vitro human embryo by any
means other than fertilization of a human
egg by a human sperm.
SB 1306 – Human Egg

Sets forth requirements for human egg
donations and prohibits the purchase or
sale of human eggs for purposes other
than treatment of human infertility and
clinical investigation.
SB 1181 – Autism Spectrum
Disorder Task Force.

Establishes the Autism Disorder Task
Force.
SB 1161 – Death certificate
deadline

Requires local registrars, deputy local
registrars or state registrars to register
death certificates within 72 hours after
receiving a medical certification of death.
Instructs the medical examiner to sign the
medical certification of death within 72
hours, excluding weekends and holidays.
HB 2116 ambulance services
rates for AHCCCS
Codifies the AHCCCS reimbursement rate for
ambulance services to be set at 80% of DHS’s
approved ambulance service rates.
 Establishes a voluntary process for hospitals and
local entities to provide a state match for
graduate medical education and
disproportionate share payments.

Housekeeping Measures
HB 2027 Continues the State Board of
Psychologist Examiners for ten years.
 HB 2026 Continues the Governor’s
Advisory Council on Aging for ten years.

More housekeeping
– HB 2028 - Continues the Arizona Commission
for the Deaf and Hard of Hearing for ten
years.
– HB 2406 - An emergency measure that
reinstated the Emergency Medical Services
Council in the Arizona Department of Health
Services for ten years.

What bills did not get passed?
BILLS THAT DIED IN COMMITTE
FMLA Insurance.
 Allowing naturopathic physician as a
specialist under the supervision of a
licensed physician to submit to AHCCCS.
 Requiring Medicare supplemental
insurance that covers patients over 65 to
cover patients under 65 due to disability
or end-state renal disease.
 Mental health insurance parity.

BILLS THAT DIED
Hospital requirement to report cancer
screening claims.
 Change the OB, ED and ED on-call
standard to preponderance of evidence
but with “wanton and willful”.
 60 day notice of claim for medical
malpractice actions with authorization for
medical records.

BILLS THAT DIED
Medical screening committee – to decide
which medical treatments and surgical
procedures require disclosures of risks and
hazards.
 Jury instructions on failure to disclose
risks.
 Consent for hysterectomy.


What will be decided in November?
November Propositions

Health Care Freedom Act (Prop 106). Will
constitutionally override any law, rule or
regulation that requires individuals or
employers to participate in any particular
health care system
November Propositions
Prop 106, if approved by voters, also would
prohibit any fine or penalty on anyone or any
company for deciding to purchase health care
directly. Doctors and health care providers
would remain free to accept those funds and
provide those services.
 Finally, it would overrule anything that prohibits
the sale of private health insurance in Arizona.

November Propositions

Constitutional issue –
– Requiring an insurance purchase goes far
beyond the federal government's current role
of regulating interstate commerce.
November Propositions

To prohibit the issuance of any civil or
criminal complaint, notice, charge or
citation for an alleged violation of a state,
county, city or town traffic law if the
alleged violation was detected through the
use of a photo enforcement device that
records a vehicle's license plate or
operator, reads a vehicle's license plate or
otherwise identifies a vehicle.
Positive Legislative Change

I’m Sorry Legislation
– Health care providers admissions of
cannot be used in a medical malpractice
case.
I’m sorry statute

In any civil action that is brought against a health care provider as
defined in section 12-561 or in any arbitration proceeding that
relates to the civil action, any statement, affirmation, gesture or
conduct expressing apology, responsibility, liability, sympathy,
commiseration, condolence, compassion or a general sense of
benevolence that was made by a health care provider or an
employee of a health care provider to the patient, a relative of the
patient, the patient's survivors or a health care decision maker for
the patient and that relates to the discomfort, pain, suffering, injury
or death of the patient as the result of the unanticipated outcome of
medical care is inadmissible as evidence of an admission of liability
or as evidence of an admission against interest.
Expert Affidavit

Plaintiff must have expert at beginning of
case
– Affidavit required with initial disclosures

Setting for breach in standard of care and
how caused claimed injury.
Expert Witness Qualifications
Same specialty
 Same board certification

Expert Witness Qualifications

During the year immediately preceding the occurrence
giving rise to the lawsuit, devoted a majority of the
person's professional time to either or both of the
following:
– (a) The active clinical practice of the same health
profession and specialty.
– (b) The instruction of students in an accredited health
professional school or accredited residency or clinical
research program in the same health profession and
specialty.
Expert Witness Affidavit
If the defendant is a health care institution that
employs a health professional against whom or
on whose behalf the testimony is offered, the
provisions above apply.
 Does not limit the power of the trial court to
disqualify an expert witness other grounds.
 Expert witness not be permitted to testify if the
fee of the witness is in any way contingent on
the outcome of the case.
