The Texas ASC Society, along with Congress Avenue Partners, spoke up and out on important industry topics during this year’s legislative session.

Throughout the year, the Texas Ambulatory Surgery Center Society’s (TASCS) advocacy and regulatory efforts are enhanced, thanks to its lobby team, Congress Avenue Partners (CAP). A large part of the government relations and public affairs firm’s strategies come into play during the Texas legislative session. This year alone, the team tracked approximately 300 bills for TASCS, due in large part because members filed a record number of bills after coming off the pandemic session in 2021.  In addition, the budget surplus added to the increase in bill filing, as members saw this session as a once-in-a-lifetime opportunity to make investments in new and existing programs.  

Prior to session, TASCS and CAP anticipated the legislature’s intent in addressing big health care issues, and how ambulatory surgery centers could be caught up in blanket legislation, with broad definitions of health care facility or health care provider, and this is exactly what happened. The legislature was laser focused on transparency related to health care facilities, physicians, and providers in a way that we have not seen before. Members filed bills to restrict physician/provider authority, eliminate fees, mandate price controls, and require specific payment methods. While claiming these changes would lower health care costs and provide greater consumer protections, the practical outcome would have distorted the health care marketplace, jeopardized the livelihood of providers, resulted in significant financial losses or increased costs for providers, and/or contributed to the rising prices of health care for the consumer.  

TASCS fought these efforts throughout session and was the only organization willing to testify in  opposition to a significant piece of legislation, SB 945; TASCS’ past president, Susan Cheek, carried the banner when she testified against SB 945 before the Senate Committee on Health & Human Services, which is chaired by Sen. Lois Kolkhorst (who filed the legislation). TASCS Board Member Adam Hornback also testified this session against another impactful bill, HB 633 by Rep. James Frank.  

While traveling to and testifying at the Capitol, TASCS hosted an outstanding Capitol Day on March 8. More than 25 TASCS members were in attendance, meeting with legislators and staff in more than 30 offices and leading campaigns that resulted in emailing, calling, and/or writing in support of or opposition to specific legislation. Furthermore, for the third consecutive session, TASCS and CAP coordinated legislative efforts to recognize March 8 as Ambulatory Surgery Day, with resolutions laid out in both chambers to note the celebratory day.  

While it was a challenging session, and one that called for all-hands-on-deck advocacy, TASCS had a successful session on many fronts. Below is more detail on legislation noted above and additional bills of significance. 

HB 1, General Appropriations Bill:

One lingering obligation from the 2021 session, SB 809 reporting requirements regarding COVID-19 payments, are now included in Rider 150 in the new state budget, but only applies to nursing facilities and hospitals.  It no longer applies to ambulatory surgery centers.

Rider 150. Reporting Requirement: COVID-19 Funding to Nursing Facilities and Hospitals. Out of funds appropriated above in Strategy B.1.1, Medicaid & CHIP Contracts & Administration, the Health and Human Services Commission (HHSC) shall develop a report detailing the total value and uses of COVID-19-related Federal Funds, including Provider Relief Funds, provided directly to nursing facilities and hospitals contracting with HHSC since the beginning of the public health emergency. The report should include any temporary rate increases provided to nursing facilities related to the COVID-19 pandemic. Any facilities that do not provide information requested by the commission necessary to complete the report shall be identified in the report. The first submission of the report shall also include a description of any requirements implemented for nursing facilities in response to the COVID-19 pandemic, the cost to nursing facilities to implement the requirements, and recommendations on whether or not the requirements should be continued after the end of the public health emergency. HHSC shall submit the report to the Office of the Governor, Legislative Budget Board, and any appropriate standing committee in the Legislature on December 1st and June 1st of each fiscal year. The format and content of the report shall be specified by the Legislative Budget Board and posted on the HHSC website. Appropriations in Strategy A.2.4, Nursing Facility Payments, for fiscal year 2025 are contingent on the submission of the report due June 1, 2024 

Workforce Violence:

SB 240 by Sen. Campbell/Rep. Howard:

Rep. Donna Howard has fought for several sessions to pass legislation related to workplace violence in health care facility-based settings.  Rep. Howard and Sen. Donna Campbell partnered this session filing companion legislation, HB 112 and SB 240.  The legislation initially saw momentum in both chambers, but SB 240 was the bill that passed.  The legislation requires the creation of a workplace violence committee in specified health care facilities that will adopt, implement, and enforce policies and plans for protecting employees from workplace violence.  Signed by the Governor, and is effective 9.1.23.

Workforce Shortages:

SB 25 by Sen. Kolkhorst/Rep. Klick:

Texas like many other states is facing a nursing shortage crisis, and Lt. Governor Dan Patrick made this issue one of 30 priorities prior to session.  SB 25 provides new scholarship opportunities and increases funding for nursing education and training programs.  The bill also seeks to address faculty shortages by allowing part-time faculty to be part of the loan repayment program.   SB 25 also expands the nursing innovation grant program until 2027. Signed by the Governor, and is effective 6.18.23.

HB 1755 by Rep. Button/Sen. Alvarado:

HB 1755 created the Lone Star Workforce of the Future Fund to help meet the demand for a skilled workforce through increased training opportunities. It also establishes a grant program to fund workforce training programs. It creates a six-member advisory board to assist the Texas Workforce Commission, consisting of the TWC chair, who serves as the presiding officer, and one member each appointed by the governor, the lieutenant governor, the speaker of the house of representatives, the Texas Higher Education Coordinating Board, and TWC.  

The bill provides grants from the fund to public junior colleges, public technical institutes, and nonprofit organizations based on the work and industries identified by the Tri-Agency Workgroup.  HB 1755 has been signed and is effective 9.1.23. 

Surgical Smoke:

For the third consecutive session, surgical smoke legislation was filed. HB 4365 by Rep.  Ann Johnson and SB 707 by Sen. Boris Miles would have required health care facilities to mitigate the exposure of surgical smoke using an evacuation system during procedures that generate surgical smoke.  We worked with Rep. Johnson on the legislation, and it did make to a House Calendar set for May 11th. However, the bill was not considered by the midnight deadline and died. 

Itemized Billing:

This was the second session where we saw a bill filing related to itemized billing. HB 1973 by Rep. Caroline Harris and SB 490 by Sen. Bryan Hughes requires providers to issue an itemized bill before attempting to collect any money from the patient.  The provider must provide the patient a list of medical services provided, the amount of payment for each service, and a plain language description of the service.  If providers fail to comply, they will be restricted from debt collection and may face disciplinary action from the respective licensing authority.  While many different provider groups expressed significant opposition to the filed versions of the bill, there were a number of modifications during the process to address many of the concerns.  With more than 100 House co-authors, some version of the bill was very likely to pass.  SB 490 is effective on 9.1.23.

Facility Fees:

Rep. James Frank filed, HB 1692, and Sen. Kelly Hancock filed SB 1275, related to facility fees charged by health care providers and providing a penalty.  This was one of TASCS’ top bills of concern.  It restricted facilities and providers from charging facility fees for services not performed in facilities or that could have been done outside a hospital setting.  We worked with Rep. Frank and Sen. Hancock to remove ASCs from the legislation.  The legislation faced significant opposition and did not move out of the House Committee on Health Care Reform.  The legislation died in Committee.

Reporting Negotiated Rates:

SB 945 by Sen. Kolkhorst would have required ASCs to disclose pricing information that currently only impacted hospitals. The bill’s requirements for disclosing this information placed ASCs in a vulnerable position in relation to insurance companies due to releasing of negotiated rates, but also imposed unnecessary costs for ASCs due to the technology needed for compliance.  SB 945 passed the Senate and was referred to the House Public Health Committee, but no action was taken, and it died.  

Method of Payment:

HB 663 by Rep. Frank required health care facilities to accept a cash payment from patients including the uninsured at the lowest commercial negotiated rate.  Adam Hornback testified on behalf of TASCS, explaining the implications on ASCs including the possibility of ASC closures.  The author ultimately modified the legislation to remove ambulatory surgery centers.  Nonetheless, HB 633 was defeated on a point of order when it came to the House floor and died. 

Non-Compete:

Sen. Charles Schwertner filed SB 1534, which addressed physician non-compete clauses with a focus of imposed geographic restrictions around a particular practice thus limiting a patient’s choice to continue with their provider of choice.  The bill limited permissible non-compete clauses allowing for a buyout, limiting the duration to one year, and confining the geographical area.  The legislation passed the Senate and was voted favorably from House Public Health but was never set on a House Calendar and died.

Provider Networks and Network Adequacy:

Two bills addressed network adequacy that we were monitoring closely for TASCS.  Rep. Greg Bonnen filed HB 3359 relating to the network adequacy standards and other requirements for preferred benefit plans; and Sen. Schwertner filed SB 1140, relating to the adequacy and effectiveness of managed care networks.  

HB 3359 establishes a framework to address concerns about network adequacy in healthcare plans. The bill sets distance limitations for in-network care, ensuring that patients do not have to travel excessively for services covered under their plan. It also necessitates that the Texas Department of Insurance (TDI) certifies these plans before they can be marketed within the state. To improve network accessibility, the legislation restricts the repeated use of waivers when there are insufficient in-network physicians, providers, and facilities in a service area. To bolster transparency, it mandates a public hearing to confirm that the carrier is making a genuine effort to meet network standards. The bill strengthens TDI's data collection and enforcement capabilities, prevents health plans from independently implementing adverse contract changes, and ensures adherence to state surprise billing laws. HB 3359 establishes crucial definitions for time and distance. Signed by the Governor, and is effective 9.1.23.

SB 1140 granted the Office of Public Insurance Council (OPIC) the authority to monitor the adequacy of Texas Department of Insurance (TDI) regulated health plan networks. This includes monitoring TDI approval of managed care organization network adequacy waivers and allowing OPIC to intervene in proceedings related to network adequacy on behalf of consumers. Additionally, the bill would have required OPIC to create report cards for EPO and PPO plans, in addition to the existing ones for HMO plans. This bill passed in the Senate but died in the House.

Rep. Frank filed HB 711 which outlined that insurers and providers may not agree to a network contract that includes an all-or-nothing, anti-steering, anti-tiering, gag, or most favored nation clauses.  Signed by the Governor, and is effective 6.12.23.

Bundled Pricing:

Rep. Gary Gates filed his bundling pricing bill again this session, but it was not the same language as filed in 2021. HB 840 establishes a bundled-pricing program to reduce certain health care costs in the state employees group benefits program.  The bill is an attempt to get price transparency for medical procedures.   The bill was set on the House Calendar for May 11th, but it was not considered before the midnight deadline.  The bill died in the House.  

Scope of Practice:

As in the past, Rep. Stephanie Klick filed legislation related to advanced practice registered nurses (APRN) and scope of practice. HB 1190 and HB 4071.  HB 1190 related to the prescribing and ordering of Schedule II controlled substances by APRNs and physician assistants (PA).  The bill would have allowed a physician to delegate the prescribing and ordering of a schedule II controlled substance as part of a narcotic treatment program.  The bill passed the House but died in the Senate.  HB 4071 would give certain APRNs the ability to practice independently in specific settings.  The legislation was referred to House Public Health, but no action was taken, and it died in Committee.

“Gold Carding” (Prior Authorizations):

HB 4343 by Rep. Bonnen was the second round of “gold carding” legislation from 2021.  Last session, Health Maintenance Organizations (HMOs) were required to exempt frequently performed, or "gold card status," procedures from prior authorization requirements, on the condition that physicians achieved a 90% approval rate for the requested procedure or service. HB 4343 aimed to refine this process further. This bill would have empowered the Texas Medical Board (TMB) to initiate proceedings against a physician if they receive a complaint alleging the arbitrary direction of a utilization review or a lack of sound medical basis. In serious cases where a review results in significant injury or death, the TMB could penalize the physician involved, ensuring greater accountability in healthcare. The bill received a hearing in the House Committee on Public Health, where it stayed and eventually died.

Staffing and Employment Services:

SB 401 by Sen. Kolkhorst

In response to the pandemic, and the perceived price gouging for nursing and other health care staff, Sen. Kolkhorst passed SB 401 which addresses the issue when there is a public health disaster.  SB 401 allows the attorney general’s office to determine and interpret what constitutes 'exorbitant' or 'excessive' prices.  SB 401 is awaiting action by the Governor.  

Another bill, HB 4146 by Rep. Travis Clardy looked at the larger picture on staffing and employment services.  It would have required an agency to register annually with HHSC and pay a $500 fee. It also addressed employee misrepresentation and background checks.  HB 4146 was voted favorably from House Public Health, but no further action was taken.

Pandemic Response & Vaccination Policies:

Members continued to file bills this session that addressed lingering pandemic issues and governmental overreach and mandates.  Sen. Brian Birdwell carried SB 29 relating to the prohibition of governmental entities implementing or enforcing a vaccine mandate, mask requirement, or private business or school closure to prevent the spread of COVID-19. The bill prevents any state or local governmental entity from imposing restrictive COVID-19 mandates.  SB 29 is effective 9.1.23.  

HB 44 by Rep. Valoree Swanson/Sen. Mayes Middleton related to provider discrimination against a Medicaid recipient or child health plan program enrollee based on immunization status.  In sum, the bill prohibits a provider who participates in Medicaid or the Children’s Health Insurance Program (CHIP), including providers who participated in the provider network of a managed care organization, from refusing to provide health care services to Medicaid or CHIP recipients based solely on their refusal or failure to obtain a vaccine or immunization for a particular infectious or communicable disease. This bill does not apply to providers of oncology or organ transplant services. Signed by the Governor, and is effective 9.1.23.

Rep. Harrison and Sen. Middleton filed bills, HB 81 and SB 177, related to inform consent before the provision of certain medical treatments involving COVID-19 vaccination.  These bills were called the Texas COVID-19 Vaccine Freedom Act, and basically required informed consent before the administration of a COVID-19 vaccine to an individual, but also held providers liable for.  Both bills died in the House.

Rep. Vasut passed HB 609 relating to the liability of a business owner or operator arising from the exposure of an individual to a pandemic disease.  HB 609 builds on the legislation passed in 2021, SB 6, by protecting businesses who choose not to require employees or contractors of their businesses to be vaccinated against a pandemic disease by exempting these owners from liability for injury or death caused by exposure. HB 609 is effective 9.1.23.

SB 1024 by Sen. Kolkhorst is a prohibition on COVID-19 mandates. It prohibited governmental entities from requiring individuals to wear masks or mandate vaccinations. These entities included schools, counties, cities, higher education institutions, and public hospitals.  It also prohibited COVID-19 vaccines and related booster shots from being added to the mandatory Texas school immunization schedule and restricted the authority of the Department of State Health Services and the Health and Human Services Commission (HHSC) from adding vaccines to the Texas school immunization schedule without the legislature's approval.  

It also prohibited a licensed healthcare facility from refusing to provide healthcare services to an individual based on the individual's vaccination status with exceptions for cancer and organ transplants. Lastly, prohibited employers from refusing to hire, discharging, or otherwise discriminating against an individual because the individual has not been vaccinated against COVID-19.  It was referred to House State Affairs, but no further action was taken, and it died in Committee.

Additional Legislation of Note:

HB 1599 by Rep. Bucy was to expedite the eligibility for Medicaid and CHIP recipients with the end of the Public Health Emergency.  It provided for an express lane to eligibility by allowing HHSC to use already verified eligibility information from another program the recipient is enrolled.  The legislation was referred to the Senate Health and Human Services Committee, but no further action was taken, and it died.

HB 3218 by Rep. Klick related to price estimates and billing requirements for certain health care facilities.  Rep Klick was building on legislation last session that required certain medical facilities to disclose their medical prices with the purpose of enabling patients to shop around for the best prices. This bill requires certain medical facilities to provide a cost estimate for certain procedures within 24 hours of a given medical order.  The legislation was heard by House Public Health Committee, but no further action was taken, and it died.

HB 3414  by Rep. Oliverson related to the statewide all payor claims database.  The legislation addressed provisions in statute for access to the database information by requesting entities.  Signed by the Governor, and is effective 6.11.23.

HB 4300 by Rep. Guillen addressed expedited credentialing of certain physician assistants and nurse practitioners by managed care plan issuers.  The credentialing process takes time, possibly up to a year.  During this time, providers are considered out of network.  The legislation specifically focused on physician assistants and advanced practice nurses, offering an expedited credentialing process, requiring insurers to grant in-network status of an eligible provider under existing contracting provisions with the provider’s medical group.  The legislation was referred to the Senate Health and Human Services Committee, but no further action was taken, and it died.

HB 4500 by Rep. Harris related to electronic verification of health benefits by health benefit plan issuers for certain physicians and health care providers.  Addressing the necessity to verify patients’ insurance information, and the difficulties in doing so, the legislation requires certain health benefit plan issuers to maintain and make available a secure online system through which certain physicians and health care providers may access certain insurance coverage information for a patient.  Signed by the Governor, and is effective 1.1.24.

HB 5186 by Rep. Bonnen was the legislation giving the legislature authority to set the reimbursement rates for the Employee Retirement System and Teacher Retirement System.  This bill was met with considerable opposition, and while it was heard by the House Pensions, Investments, and Financial Services Committee, no further action was taken.  The bill died in Committee.  

Of note, HB 1, General Appropriations Act, contains the following rider within the Employee Retirement System’s part of the budget regarding the state’s contribution to group health insurance that could be used at a future date to accomplish what HB 5186 had in mind.

Rider 7. State Contribution to Group Insurance for General State Employees. Funds identified above for group insurance are intended to fund:

a. the total cost of the basic life and health coverage for all active and retired employees;

b. fifty percent of the total cost of health coverage for the spouses and dependent children of all active and retired employees who enroll in coverage categories which include a spouse and/or dependent children; and

c. the incentive program to waive participation in the Group Benefits Plan (Opt-Out).

In no event shall the total amount of state contributions allocated to fund coverage in an optional health plan exceed the actuarially determined total amount of state contributions that would be required to fund basic health coverage for those active employees and retirees who have elected to participate in that optional health plan.

During each fiscal year, the state's monthly contribution shall be determined by multiplying (1) the per capita monthly contribution as certified herein by (2) the total number of full-time active and retired employees, subject to any adjustment required by statute, enrolled for coverage during that month.

For each employee or retiree that waives participation in the Group Benefit Program and enrolls in allowable optional coverage, the Employees Retirement System shall receive $60 per month in lieu of the "employee-only" state contribution amount, and such amounts are included above in Strategy B.1.1, Group Benefits Program. The waived participant may apply up to $60 per month towards the cost of the optional coverage.

Each year, upon adoption of group insurance rates by the Board of Trustees, the Employees Retirement System must notify the Comptroller, the Legislative Budget Board, and the Governor of the per capita monthly contribution required in accordance with this rider for each full-time active and retired employee enrolled for coverage during the fiscal year.

It is the intent of the Legislature that the Employees Retirement System control the cost of the group insurance program by not providing rate increases to health care providers participating in HealthSelect during the 2024-25 biennium.

See the Congress Avenue Partners' full end-of-session report here.