State Legislation: Truth-in-advertising proposals for physicians continue to gain momentum
Legislation that requires physicians who use the term "board certified" to do so only after meeting very specific criteria was enacted in Maryland and Utah. H.B. 126 was signed by Utah Gov. Gary Herbert on March 19, while companion measures S.B. 395/H.B. 957 were signed in Maryland by Gov. Martin O'Malley on May 2. Efforts in New York (A.B. 8410) to pass similar requirements have picked up steam. Legislation was favorably amended to incorporate specific criteria for physician advertising of board certification.
ASPS has worked closely with state medical associations and other physician specialty groups to champion these efforts and advocate for specific disclosures regarding medical specialty board certification. The passage of the Maryland and Utah measures is a great victory for all involved.
Meanwhile, similar legislation in Arizona (H.B. 2054) to increase transparency in health-care provider advertising of board certification died in the Senate despite unanimous passage by the House. ASPS worked with the Arizona Medical Association to strengthen the proposal and incorporate specific requirements for physicians who use the term "board certified."
On April 18, Mississippi Gov. Haley Barbour signed legislation that provides general protections to ensure patients understand the qualifications of their treating health care providers. The law will take effect July 1. Similar legislation in Nebraska (Neb. L.B. 1032) died when the legislative session adjourned in April.
The Oklahoma State Board of Medical Licensure and Supervision in March adopted specific criteria to be considered by the Board when determining if a certifying board is equivalent to boards certified by the American Board of Medical Specialties (ABMS) for purposes of physician advertising of board certification. Existing law in Oklahoma requires physicians who claim board certification to be either certified by an ABMS member board or certified by an organization whose program for certification has been deemed equivalent by the state medical board.
A round-up of additional, current state legislation impacting multiple areas of the specialty is listed below.
Cosmetic taxes
Cosmetic tax proposals in the California Assembly (A.B. 1963/A.B. 2540) were favorably amended in late April to remove provisions that would have extended the state sales-and-use tax to elective cosmetic medical services. A.B. 1963, which remains under consideration in the Committee on Revenue and Taxation, was amended to require the Legislative Analyst's Office to assess the changes proposed in the introduced version of the bill, and to make specified recommendations to the Legislature. ASPS and the Stop Medical Taxes Coalition actively supported efforts by the California Society of Plastic Surgeons to defeat the proposals.
Office-based surgery
Florida Gov. Rich Scott on April 27 signed legislation (H.B. 1263) that requires physician offices performing liposuction procedures in which more than 1,000 cc's of supernatant fat is removed to register with the state's Health Department. ASPS supported the efforts of the Florida Society of Plastic Surgeons to pass stronger liposuction safety requirements this session.
Legislation (H.B. 458) to clarify the definition of ambulatory surgical centers (ASC) in Kentucky passed both chambers of the Legislature and was signed by Gov. Steve Beshear on April 11. Under the new law, health care facilities providing outpatient surgical services - and that seek recognition and reimbursement as such from any federal, state or third-party insurer - would be deemed an ASC and would then be subject to the state licensure and certificate-of-need requirements.
After several months of review and consideration, the Oregon Medical Board has filed proposed changes to its office-based surgery (OBS) rules. The proposal will strengthen existing regulations and improve patient safety by expanding the definition of OBS to include fat reduction in excess of 250 cc's of supernatant fat and abdominoplasty regardless of sedation or analgesic, further regulating such procedures in the office-based setting, and ensuring greater provider qualifications. The Oregon Society of Plastic Surgeons and ASPS have been working closely with the Board during the rule-making process and have offered comments and recommendations for the Board's consideration. ASPS will continue to monitor ongoing developments and weigh-in when necessary as extensive revisions and several public comment periods are anticipated before the rules are finalized.
Scope of practice: dentistry
A Massachusetts carry-over bill (H.B. 1490) that would have allowed dentists who are not licensed to practice medicine, to use the term "oral physician" was sent to study in March. ASPS advocates for clarity in health-care provider advertising and opposes legislation that would mislead or confuse patients with regard to the education, training or qualifications of their health care provider.
In a recently released position statement, the Indiana State Board of Dentistry stated that the Dental Practice Act does not prohibit the use of Botox® and other dermal fillers administered by a licensed dentist. The Board position allows dentists with specific education and training for providing such services to use these materials in the oral and maxillofacial area within the scope of dentistry.
ASPS continues to closely monitor ongoing discussions by dental boards in Arizona, Massachusetts, Minnesota, Oregon and Pennsylvania, regarding whether certain minimally invasive procedures such as the administration of Botox or dermal fillers are within the scope of the practice of dentistry.
Breast reconstruction education
Alabama legislation (H.B. 769) introduced May 1 would require any hospital that provides mastectomy surgery, lymph node dissection or a lumpectomy to provide breast cancer patients with information concerning their options in breast reconstruction. The information would need to be provided prior to obtaining informed consent. The proposal awaits consideration in the House Committee on Health. Similar legislation in Massachusetts (H.B. 3645) was recommended for further study by the Joint Committee on Public Health, and companion measures in Washington (Wash. S.B. 5262/H.B. 1101) died when its Legislature adjourned.
Breast reconstruction coverage
Legislation (H.B. 768) to require all individual health benefit plans to include coverage for breast reconstruction surgery after mastectomy was introduced in Alabama in early May and awaits Committee on Health consideration. California legislation (S.B. 255) to clarify existing mandates for such coverage also awaits further action after the measure was referred to the Committee on Health in April. Similar efforts in Massachusetts and Wisconsin (Mass. S.B. 467; Wis. A.B. 312/S.B. 206) were halted: The Massachusetts bill was held for further study, and the Wisconsin measures died when the Legislature adjourned.
Cosmetic procedures
Arizona legislation (H.B. 2762) that would have singled-out breast augmentation procedures and amended the definition of "unprofessional conduct" under the Medical Board to include: the failure by a physician to inform a patient that although breast implants are not a primary cause of cancer, they can interfere with the detection of and delay a cancer diagnosis, died when the legislative session adjourned in early May.
Medical spas
California legislation (A.B. 1548) that would stiffen penalties for corporate-owned chain medical-spa operators who are practicing medicine without proper licensure or ownership structure passed the Assembly and currently awaits consideration in the Senate Business, Professions and Economic Development Committee. ASPS submitted comments in support of this legislation, which would improve patient safety by making it tougher for corporate entities to practice medicine illegally in California.
Legislation introduced by the Utah Medical Association (UMA) (S.B. 40) to provide requirements for the supervision and performance of certain non-ablative and ablative cosmetic medical procedures was signed into law March 23 by Gov. Gary Herbert. Late revisions to the bill also prohibit a facility performing such procedures from including the term "medical" in any advertisements or representations unless certain supervision requirements are met. ASPS worked with UMA to safeguard plastic surgery's interests, as the proposal was amended several times.
In mid-April, the Tennessee Senate adopted a resolution (S.R. 94) urging the Tennessee Medical Board to promulgate - by no later than Jan. 1 - rules prescribing standards for the provision of cosmetic and aesthetic procedures. The resolution was signed by Speaker Jamie Woodson on April 18. ASPS will monitor the Board's response to this call for action and weigh-in when appropriate.
Companion legislation in Minnesota (Minn. H.F. 3026/S.F. 2617) to regulate the use, delegation and supervision of laser treatments was introduced in late April and awaits consideration by the Health and Human Services Committee. ASPS is monitoring the bills and will work with stakeholders to ensure plastic surgery's perspective is considered.
Massachusetts legislation (S.B. 1140) that would implement new restrictions on the Commonwealth's medical spas was recommended for further study by the Joint Committee on Health. ASPS and the Massachusetts Medical Society opposed elements of the bill that would have inappropriately restricted physicians' ability to practice, while also enabling non-physician providers to operate medical spas without adequate physician oversight.
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