by Tom Banning 

In 1940, as war raged in Europe, Sir Winston Churchill was sworn in as the newly appointed Prime Minister of Britain. In his first address to Parliament he spoke of the country’s policy and aim toward the German threat facing Europe. “You ask, what is our policy? I will say it is to wage war, by sea, land and air, with all our might and with all the strength that God can give us ... You ask, what is our aim? I can answer with one word: Victory … victory however long and hard the road may be; for without victory there is no survival.”

At the time of this speech, Churchill, Britain and for that matter all of Europe were facing an enemy force that threatened their very existence. Applied to the struggle for Proposition 12, Texas physicians read Churchill's speech in a new light. Confronted with increased litigation and skyrocketing medical liability premiums, doctors found themselves fighting to save their practices and access to care for their patients. Like Britain, for Texas physicians the battle was about one thing, survival. 

Heavily outspent by the trial lawyers, Prop 12 was pounded on the airwaves across Texas with an aggressive misinformation campaign designed to confuse voters on the amendment’s purpose. The trial lawyers were also able to garner broad anti-Prop 12 editorial support, as well as extensive anti-Prop 12 endorsements from groups like Mothers Against Drunk Driving, AARP, and the Eagle Forum among others. Texas physicians clearly faced a well-funded, well-healed campaign to derail Prop 12. 

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But Texas physicians struck back with an all-out, get-out-the-vote ground attack of their own by replicating the enormously successful grassroots campaigns of recent years that have helped elect conservative judges to the Texas Supreme Court. Physicians provided their patients, staff, family and friends with slate cards, office posters, and bumper stickers urging them to vote “Yes on 12.” A “21 for 12” campaign was started to challenge physicians to identify 21 individuals to commit to vote for Prop 12. This was coupled with media events across the state highlighting the urgency of the crisis and need for Prop 12.

In the end, the people of Texas approved Proposition 12 by 33,000 votes, giving the Texas Legislature the authority to cap non-economic damages in health care liability cases. The margin was close, but as Vince Lombardi said, “winning is not everything, it is the only thing,” and Prop 12 carried the day. The early vote proved critical to its passage with more than 57 percent casting their vote in support. Also, turnout in the Rio Grande Valley and Nueces County (Corpus Christi) – two areas of the state disproportionately effected by the medical liability crisis – provided much needed votes to pass Prop 12.

Family physicians should see the benefits of Prop 12 in the near future. Texas Medical Liability Trust, the state’s largest medical liability carrier, has already announced it will reduce premiums 12 percent effective January 2004. It is unclear, however, whether or not the other carriers remaining in the market will follow suit and decrease premiums. And only time will tell whether Prop 12 will create a competitive insurance market for medical liability insurers in Texas.

Over the legislative interim TAFP will be closely monitoring the effects HB 4 and Prop 12 to ensure family physicians see the benefit of these reforms through decreased premiums. TAFP will also be examining the insurance market to identify barriers to increasing competition in Texas.

You should be extremely proud of what you accomplished with the passage of HB 4 and Prop 12. It will no doubt be used as a yard stick for other states, but more importantly it will help provide a stable practice environment for generations of physicians to come as it helps ensure access to medical care for Texas patients.

Contact the TAFP Legislative Department:

 Tom Banning, Director of Legislative Affairs

Final Prompt Pay Rules – Finally!!

After what some would argue was a rancorous rule making process before the Texas Department of Insurance, Texas will have a new set of prompt pay rules effective Oct. 5, 2003. Thanks in a large part to physicians’ comments and testimony, TDI significantly changed several proposed rules to more clearly reflect the intent of the Legislature and statute.

The Final rules apply to contracts between providers and carriers that are written or renewed, and services provided under those contracts, and to certain non-contracted providers who provide services, on and after Oct 5. Some of the highlights of the new rules include:

• The number of items of information required of a physician who requests a verification was changed from 18 to 13, and some of the items were made contingent upon inclusion of the information on an identification card issued by a carrier.

• The time for requesting additional information from a physician who has requested verification was reduced from three days, to one day, from receipt of the request, and the requirement that the request be in writing was eliminated.

• The time limits for providing verifications or declinations was changed as follows:

1. for post-stabilization care and life-threatening conditions, without delay and not later than one hour from receipt of request (rather than without delay, but not later than 72 hours);

2. for concurrent hospitalizations, without delay and not later than 24 hours from receipt of request (instead of without delay, but not later than 72 hours); and

3. for all other requests, without delay and as appropriate to the circumstances for the particular request, but not later than five days after date of receipt (rather than without delay but not later than 15 days).

• The new rules replace the bulk of the emergency rules that went into effect on Aug. 16, the effective date of most of SB 418s provisions.

• Emergency rules remain in effect until Oct. 5, and apply to contracts written or renewed on and after Aug. 16, 2003.

• TDI states that providers and their carriers may amend any contracts entered into between Aug. 16 and Oct. 5, to ensure that as many contracts as possible are subject to the same rules.

• Emergency rule sections concerning ID cards issued by carriers and waiver of requirements under the Medicaid programs and CHIP, will remain in effect until new rules are proposed and adopted.

• Billed charges are defined as the charges for medical or health care services included on a claim submitted by a physician or provider. The definition also provides that billed charges must comply with all applicable requirements of law, including the requirement that a provider may not submit a bill for treatment it knows was not provided or was improper, unreasonable, or medically or clinically unnecessary.