May 2, 2005

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Medical Liability Reform Bills Tentatively Scheduled for 5/13
The Coalition for Health Care Access & Liability Reform urges you to discuss your concerns about our medical liability system with your legislators and to plan to attend the public hearing in mid-May!

The MMA understands that the Judiciary Committee will hold a day of public hearings on the medical liability bill offered by the Coalition for Health Care Access & Liability Reform (L.D. 1378) and bills offered by the Maine Trial Lawyers Association in mid-May, perhaps in the morning of Friday, May 13, 2005. 

You can find contact information for members of the Judiciary Committee on the web at:

The following are some talking points on medical liability reform:

  • Medical liability remains a top concern of Maine’s physicians (and physician assistants, dentists, podiatrists, chiropractors, and virtually all of Maine’s health professionals).Premiums are going up significantly because of an increasing amount of dollars being paid out per claim
  • The $250,000 limit on non-economic damages is the same amount as the limit in California, enacted more than 20 years ago. Numerous studies have established that a reasonable limit on non-economic damages is the most effective legal reform in terms of moderating premiums.
  • The vast majority of Maine physicians are insured by mutual insurance companies, which operate more like self-insurance than for-profit commercial companies. A mutual company is owned by its policyholders. If too much premium is collected in a year, the money is refunded to the policyholders through a dividend or credit.
  • A reasonable liability climate in Maine is essential in recruiting and retaining physicians. Maine continues to have a serious shortage with the ratio of physicians per one thousand patients being significantly below the national average.
  • Serious access problems are occurring in high-risk specialties such as neurosurgery, trauma, and obstetrics. A combination of high insurance premiums and low reimbursement in Maine threaten these specialties. Liability reform is essential if Maine is to remain attractive to physicians and other health professionals.
  • As other states enact meaningful reforms (recently the states of Texas and Georgia enacted caps on non-economic damages) these states will become more attractive to practice in and Maine will fall further behind.
  • Non-economic damages, the so-called “pain and suffering” part of a verdict are inherently unquantifiable and are awarded inconsistently. The result is a lottery system that makes insuring against these losses an unpredictable business.
  • Ultimately, consumers (patients) and employers pay the cost of medical liability premiums, and they cannot afford to pay more than all of the economic loss plus a quarter of a million dollars.
  • Liability risk leads to the wasteful practice of “defensive medicine” where additional tests and procedures are conducted primarily out of concern for the liability risk if the test or procedure isn’t done. The costs associated with defensive medicine are difficult to calculate, but have been estimated at approximately $50 billion a year nationally.
  • LD 1378 gives Maine a chance to avoid a full-blown crisis. Twenty states are in crisis and another twenty-five, including Maine are showing warning signs. As any legislation passed will impact only cases filed alleging negligence in care after the effective date of the law, and because it takes five to seven years to get to a jury, enactment is essential now in order to begin the move to an improved climate.
  • The medical liability problem threatens the ability of the health care community to improve quality because the system makes the decision to come forward to disclose errors more difficult.
  • The influence of the medical liability crisis upon future generations of physicians is of great concern. In March 2004, the American Osteopathic Association surveyed osteopathic medical students to determine the impact of the crisis upon their career decisions. The results were startling. Eighty-two percent stated that the crisis would influence the type of practice they would pursue while eighty-six percent stated that it would influence practice location. Ninety-eight percent indicated that they were very concerned about the medical liability crisis.
  • The citizens of Maine strongly support this type of legislation. More than three quarters of Mainers indicated in a public opinion survey less than two months ago that they were supportive of the bill with over fifty percent strongly supporting the legislation.

MaineCare Advisory Committee Recommends Drug PDL/PA Improvements
At a public hearing before the HHS Committee on Thursday, April 28, 2005, patient and provider advocacy organizations, including the MMA, turned out to support L.D. 1404, An Act to Increase the Quality of Care and Reduce Administrative Burdens in the Pharmacy Prior Approval Process, sponsored by Senator Michael Brennan (D-Cumberland).  The bill includes some of the recommendations of a MaineCare Advisory Committee subgroup that worked through issues with the MaineCare drug management program throughout last summer and fall as a result of language in a budget bill last spring.  The bill proposes the following:

  • PA process.  Reduce the administrative burden in the prior authorization process by, for example, eliminating the medical record documentation requirement.
  • DUR Committee.  Allowing participation by the public in more of the work of the DUR Committee.
  • MaineCare Handbook.  Drafting a handbook containing current basic information about the drug management program for beneficiaries.
  • APA rules.  Requiring the Department to develop administrative rules governing the major elements of the drug management program to ensure an opportunity for public input.
  • Study of the impact of the program on patient care.  Requires the Department to contract with an independent entity to conduct a study of the efficacy and impact of the PA process on program benefits and costs and conduct a survey of MaineCare members.

The consumer and provider advocacy organizations continue to negotiate improvements to the program with DHHS representatives. [return to top]

GAO Team Coming to Maine to Study 2004-2005 Flu Vaccine Shortage
The MMA is hosting a meeting with representatives of the U.S. Government Accountability Office who are coming to Maine to conduct interviews about the 2004-2005 flu vaccine shortage.  The meeting will be held at the MMA office in Manchester from 3:30 - 5:00 p.m. on Tuesday, May 10, 2005 and any interested physician is welcome.

The GAO is conducting work in the area of the response to the recent flu vaccine shortage.  Specifically, the GAO has been asked by the House Committee on Government Reform and the Senate Committee on Homeland Security & Governmental Affairs to review the actions taken at federal, state, and local levels to ensure that high-risk individuals had access to flu vaccine during the 2004-2005 shortage; the lessons learned from the strategies implemented at the federal, state, and local levels to ensure that high-risk individuals had access to flu vaccine; and that extent that information on the 2004-2005 flu vaccine supply was made available to health care providers and the public.

The GAO team is seeking responses to the following questions:

1.  Please describe the populations your medical association physicians typically serve, especially pertaining to flu immunization.

2.  Please comment on whether you felt the following actions worked well at the provider level to help ensure access to vaccine by high-risk individuals:

  • ACIP created priority recommendations for vaccinating high-risk individuals
  • CDC's flu vaccine allocation plan
  • CDC referred people looking for flu vaccine to contact their local public health department to find out who had vaccine in their area
  • Use of vaccines for children (VFC) vaccine for non-VFC use (also called VFC transfers)
  • CDC's purchase of Investigational New Drug (IND) vaccine
  • CDC's release of stockpiled doses back to the manufacturer for sale and distribution to providers
  • State or locality invoked an emergency order to vaccinate high-risk individuals
  • Provider surveys to see if you had vaccine or to estimate your need
  • Other actions at federal, state, and local levels

3.  What was your primary source of information on vaccine availability?  In general, were you satisfied with the quality and frequency of information received from federal, state, and local levels?  Why or why not?

4.  Where did providers who did not have flu vaccine refer their patients who were seeking it?

5.  Were the prices providers paid for flu vaccine this year (2004-2005) different from the prices that they had expected to pay (by pre-booking, for example)?

6.  How, if at all, has the shortage affected the provider outlook on immunization programs in general, and will they do anything differently for the 2005-2006 flu season?

7.  What actions taken specifically by providers were most effective to help ensure that high-risk individuals had access to vaccine?  What was the biggest challenge providers faced?

8.  Are there any other shortage-related federal, state, or local actions affecting your department you would like to discuss?

If you would like to attend the meeting, please RSVP to Charyl Smith, Legislative Assistant, at 622-3374 or  If you cannot attend, but would like to respond to one or more of the questions mentioned above, please send your responses to Charyl at the email address listed above. [return to top]

Governor Baldacci Announces Dirigo MaineCare Eligibility Expansion
At a noon press conference today, Governor Baldacci and leaders of the 122nd Maine Legislature announced the effective date of one of the MaineCare eligibility expansions passed as part of the Dirigo health care reform legislation - covering the parents of eligible children up to 200% of the FPL.  The Governor noted that this expansion could result in an additional 10,000 parents being covered.  The Governor also pointed out that DirigoChoice enrollment as of May 1, 2005 stands at 6369 members.

You can read the Governor's press release on the web at: [return to top]

Federal Budget Resolution Passes Along Party Lines Last Thursday
Last Thursday night, the Congress passed a $2.56 trillion 2006 federal budget that cuts $10 billion from the Medicaid program over 5 years and includes a commission to study the future of the program and to issue a report within 18 months.  The votes were 214-211 in the House and 52-47 in the Senate with both of Maine's Senators voting in favor of the measure.

Thank you for all of your efforts to oppose these cuts and the MMA will keep you informed about how these cuts may be achieved.  In her role on the Senate Finance Committee, Senator Snowe will be a key participant in these discussions. [return to top]

Androscoggin/St. Croix River Water Quality Bill Set for Hearing on 5/4
Maine physicians are called upon to help improve the water quality of the Androscoggin and St. Croix rivers.  Last year, legislation backed by the paper industry exempted the two rivers from meeting water quality standards that apply to all other Maine rivers.  A specific portion of the Androscoggin River that was exempted from water quality standards, Gulf Island Pond, has never met the lowest standards of the 30-year old federal Clean Water Act - making it one of Maine's dirtiest rivers. 

The Gulf Island Pond segment of the Androscoggin River has been the focal point of numerous efforts to require the paper industry to stop polluting the river.  According to the state Department of Environmental Protection, the Androscoggin River's pulp mills account for 83% of the oxygen-depleting pollution entering the Gulf Island Pond.  Each effort to require the mills to meet higher standards has failed because of the political power of Maine's paper industry.  The Clean Water Act requires rivers to be clean enough for activities like swimming and fishing, among others.  Although the Androscoggin is much cleaner than it used to be, swimming and fishing remain prohibited because of pollution.

On Wednesday, May 4, 2005 at 10 a.m. in room 214 of the Cross State Office Building, the Joint Standing Committee on Natural Resources will hold a public hearing on L.D. 99, An Act to Include Specific Bodies of Water within Class C Standards, sponsored by Representative Elaine Makas (D-Lewiston).  This bill is designed to improve water quality on the Androscoggin and St. Croix rivers and to stop the second-class treatment of these rivers and their surrounding communities.

At the 2004 Annual Session in Kennebunkport, the MMA membership adopted a resolution that "the Maine Medical Association promote the passage of legislation and support other efforts designed to quickly improve water quality in the Androscoggin and St. Croix rivers so that they meet or exceed Class C standards."  MMA Executive Committee member Greg D'Augustine, M.D. and MMA member Ted Walworth, M.D. have been very active in the community effort to improve the water quality of these two rivers.  MMA President Lawrence B. Mutty, M.D., M.P.H. will represent the MMA at the public hearing on Wednesday.  Other interested MMA members are welcome to attend. 

You can find more background information on the web at:

You can find contact information for the members of the Natural Resources Committee on the web at: [return to top]

HHS Committee Reviews Health Data Bills
On Monday, April 25, 2005, the Health & Human Services Committee held a public hearing on 3 bills dealing with health care data issues.  The first bill was L.D. 1359, An Act to Amend the Maine Health Data Organization Statutes and to Extend the Operation of the Maine Health Data Processing Center, a bill that would extend the statutory authority of the Maine Health Data Processing Center from September 1, 2005 to September 1, 2010 and would eliminate the requirement that administrative rules governing enforcement and quality at the MHDO would be "major substantive rules," meaning that they would have to go before the legislature before final approval.  Al Prysunka, Executive Director of the MHDO and Dennis Shubert, M.D., Ph.D., M.H.A., Executive Director of the Maine Quality Forum, supported the bill.  David Winslow of the MHA opposed the bill and Jim Harnar, Executive Director of the Maine Health Information Center, spoke "neither for nor against" the bill.

The HHS Committee also heard L.D. 1390, Resolve, Regarding Legislative Review of Chapter 120:   Release of Data to the Public, a Major Substantive Rule of the Maine Health Data Organization.  Al Prysunka and Dr. Shubert supported the bill.  No one opposed it.  Representative Anne Perry (D-Calais) spoke "neither for nor against" the bill and expressed concern about certain nurse indicators.  This rule creates a health care quality exception to the confidentiality of MHDO data.  It allows the release to the MQF data that identifies individual health care practitioners and imposes some conditions:

  • Prior to release MQF must prepare a written protocol regarding the use of the data and requires signatures of all persons who will have access to the data.
  • The data may only be used for the disclosed purposes.
  • The data may be disclosed only to persons who agree to protect confidentiality and only with MHDO supervision of confidentiality requirements.

The rule requires MHDO to notify interested parties when MHDO has received a request for data that identifies individual health care practitioners.  MHDO may also seek input from persons with expertise in the area of research data protection.

The rule authorizes MHDO to release data that identifies health care practitioners with specific protective conditions if MHDO finds:

  • That the protocol complies with all the requirements of the rule.
  • That the identification of practitioners will not violate state or federal law or diminish patient confidentiality.
  • That the MQF data analysis will result in a public benefit.
  • That MQF and all persons with access to the data agree in writing to guard confidentiality.
  • That MQF has the capacity to safeguard the data.

Finally, the committee heard L.D. 1389, Resolve, Regarding Legislative Review of Chapter 100:  Enforcement Procedures, a Major Substantive Rule of the Maine Health Data Organization.  The only witness speaking on this bill was Al Prysunka who spoke in favor of the bill on behalf of the MHDO. [return to top]

HHS Committee Considers Confidentiality of Sentinel Event Reports
At a public hearing on Friday, April 29, 2005, the Health & Human Services Committee heard testimony on L.D. 1411, An Act to Require Standardized Reporting of the Prices for Certain Health Care Services and to Repeal the Confidentiality of Sentinel Events, sponsored by Representative Marilyn Canavan (D-Waterville).  As a result of discussions with representatives of local hospitals prior to the hearing, Rep. Canavan stated when she presented the bill that she would be comfortable with amending the bill to study lifting the confidentiality protections for sentinel event reports pursuant to legislation passed during the 120th Maine Legislature (L.D. 1363, An Act to Reduce Medical Errors and Improve Patient Health, P.L. 2001, Chapter 678).

Proponents of the bill included:

  • David White, MDI Import Auto Service
  • Cathy Gavin, Executive Director, Maine Health Care Purchasing Collaborative
  • Sara Stallman, M.D., Maine People's Alliance

Opponents of the bill were:

  • Representative David Trahan, the prime sponsor of L.D. 1363 in the 120th Legislature
  • Mary Mayhew, Maine Hospital Association
  • Mary Finnegan, Goodall Hospital
  • Roger Renfrew, M.D., Redington-Fairview Hospital
  • David Bachman, M.D., VPMA, Mercy Hospital
  • Ann Sands, York Hospital
  • Robert McArtor, M.D., MaineHealth
  • Andrew MacLean, MMA & Maine Ambulatory Surgical Center Coalition

The following individuals spoke "neither for nor against" the bill:

  • Dennis Shubert, M.D., Ph.D., M.H.A., Executive Director, Maine Quality Forum
  • Peter Kraut, Governor's Office of Health Policy & Finance

Opponents of the bill pointed out that the current law has been in effect for a very short time and that the response from hospitals has been very good.  All opponents expressed concern that lifting the confidentiality protections would undermine the sentinel event reporting system.  Dr. Shubert recommended maintaining the confidentiality of hospitals in the sentinel event reports for the short term to avoid misleading the public.  He also made 4 suggestions for strengthening the sentinel event reporting system:

  • That serious events be reported immediately by hospital peer group as defined by the Maine Hospital Association.
  • That the reporting requirement should be expanded to all 27 national consensus standard serious events.
  • Maine should adopt the National Patient Safety Taxonomy that is close to final approval as a national voluntary consensus standard.  The taxonomy for the first time allows all of us to describe and discuss patient safety events within a common framework.
  • Maine should require that the Division of Licensure & Certification report by provider, within peer groups, a rolling 5 years experience of recorded serious events starting in 2009.  Serious events in part reflect the complexity of services offered by each provider.  When serious events are reported publicly, the context of the report is important.  Providers of similar service profile should be reported together.  The report should be in plain language and easily accessible.

The legislature will consider several other bills seeking to lift the confidentiality provisions applicable to peer review before the end of the session. [return to top]

Lead Poisoning Prevention Advocates Push for More Public Outreach
At a public hearing on Tuesday, April 26. 2005, lead poisoning prevention advocates spoke out favor of L.D. 1034, An Act to Prevent Lead Poisoning of Children and Adults before the Health & Human Services Committee.  The bill would create the Lead Poisoning Prevention Fund to support grants, contracts, and programs for educational outreach to prevent lead poisoning in children and adults to be funded through assessments on manufacturers of paint and other coatings and fuels that contribute to our environmental lead problem.

The MMA and the Maine Chapter of the American Academy of Pediatrics spoke in favor of the bill.  Other proponents included Dr. Dora Mills for the Bureau of Health, Mike Beliveau for the Environmental Health Strategy Center,  Sid Sewall, M.D., M.P.H. for Maine Physicians for Social Responsibility, Peter Crockett for the Maine Labor Group on Health, Sandra Court for the Learning Disabilities Association of Maine, the Natural Resources Council of Maine, the Autism Association of Maine, and a number of parents and grassroots organizations. 

Opponents included David Lloyd, V.P. for Governmental Affairs for the National Paint & Coatings Association, Patti Aho for the Maine Oil Dealers Association, Jim McGregor for the Maine Merchants Association,  and Bruce Gerrity for the Maine Auto Dealers Association.

The HHS Committee has a work session scheduled for Tuesday, May 3, 2005 at 1 p.m.  Please contact members of the HHS Committee to urge their support for L.D. 1034.  You can find contact information for the HHS Committee on the web at:[return to top]

BRED Committee Hears Bills on CV Techs, FMG Residency Requirements
On Friday, April 29, 2005, the Business, Research & Economic Development Committee held public hearings on bills dealing with the scope of practice of Registered Cardiovascular Invasive Specialists, a proposed exception to residency requirements for certain foreign trained physicians, and the practice of optometry in "big box" stores such as Wal-Mart.

The MMA testified in favor of L.D. 1427, An Act Regarding the Scope of Practice of Registered Cardiovascular Invasive Specialists, a bill to clarify the tasks these health care professionals can perform under the supervision of a cardiologist.  In addition to a number of registered cardiovascular invasive specialists who came to support the bill, cardiologists Tom Ryan, M.D. and Josh Cutler, M.D. supported the bill.  Nursing organizations opposed the bill.  MaineHealth took no position, though the bill emerged from the RCIS staff at the Maine Medical Center.

The MMA joined BOLIM Board Chair Edward David, M.D., J.D. in opposing L.D. 1261, An Act to Allow Physicians Licensed in Other States but Trained Outside the United States to Practice Medicine in Maine, sponsored by Senator Elizabeth Schneider (D-Penobscot) because of concerns about physician shortages in northern and eastern Maine.  The bill would require the Board of Licensure in Medicine to develop a process to waive the residency requirement for certain foreign trained physicians who meet certain requirements.  James Raczek, M.D. spoke in favor of the bill.  The MMA and the BOLIM expressed concern about diluting the quality of medical education in Maine, particularly since this committee already took steps to strengthen the residency requirements in L.D. 398.

Finally, the Maine Society of Eye Physicians & Surgeons (MSEPS) submitted a memo in opposition to L.D. 832, An Act to Amend the Laws Regulating the Practice of Optometry, a bill intended to permit large commercial retailers such as Wal-Mart and Sears to employ optometrists and have them in their stores.  The Maine Optometric Association turned out its members in force for this hearing. [return to top]

HHS Committee Hears Another Key Smoking Bill
On Friday, April 29, 2005, the Health & Human Services Committee heard L.D. 1156, An Act to Protect Public Health by Clarifying the Laws Regarding Smoking in Public Places, one of several bills submitted this session by the Maine Coalition on Smoking OR Health to strengthen Maine's workplace and public places smoking laws.  This bill would:

  • Better protect children from exposure to second-hand smoke by making smoking-related restrictions for all day care and child care facilities consistent, clear and easy to follow;
  • Close a variety of loopholes in the public places smoking law that are being misused;
  • Provide better protection from retaliation for individuals who report violations of the law.

Proponents of the bill included the AG's office, the Maine Coalition on Smoking OR Health, the Bureau of Health, the Maine Child Care Directors Association, the American Lung Association of Maine, the MMA and the Maine Chapter of the American Academy of Pediatrics, MaineHealth, the Maine Children's Alliance, and the Maine Nurse Practitioners Association.  No one opposed the bill.  Jo Linder, M.D., Chair of the Maine Coalition on Smoking OR Health, spoke in favor of the bill on behalf of the Coalition.

The Coalition opposed the following two bills that would weaken our smoking laws:

  • L.D. 1417, An Act to Amend the Law Banning Smoking in Buildings Where Bingo or Beano is Played
  • L.D. 1186, An Act to Clarify the Smoking Ban for Off-track Betting Facilities
[return to top]

Rep. Tom Shields, M.D. Seeks Repeal of CON Law
On Tuesday, April 26, 2005, Representative Thomas Shields, M.D. (R-Auburn) presented L.D. 1487, An Act to Repeal Certificate of Need as it Applies to Hospitals, Ambulatory Surgical Units and Physician Offices for consideration by the Health & Human Services Committee.

Proponents of the bill were:

  • Christine Burke, Maine Ambulatory Surgical Center Coalition
  • Wayne Moody, M.D., Central Maine Orthopaedics
  • Tarren Bragdon, Maine Heritage Policy Center
  • Andrew MacLean, MMA

Opponents were:

  • Mary Mayhew, MHA
  • Hilary Schneider, Consumers for Affordable Health Care
  • Mike Hall, DHHS Deputy Commissioner

In the current legislative environment, this bill is unlikely to be successful, but the hearing was an opportunity to present an alternative view to the current regulatory trend.  A similar bill in the 120th Legislature (L.D. 1545, An Act to Increase the Supply of Medical Services to Consumers) received 2 votes in the Senate. [return to top]

Death Penalty Bill Receives Support of Sponsor Only
On Wednesday, April 27, 2005, the Judiciary Committee held a public hearing on L.D. 1501, An Act to Prevent Domestic Abuse by Reinstating the Death Penalty for Persons Who Murder Family or Household Members, sponsored by Senator Jonathan Courtney (R-York).  Other than Senator Courtney, no one spoke in favor of the bill.  Opponents included representatives of the NAACP, the Maine Council of Churches, the Friends Committee, the Roman Catholic Diocese of Portland, Amnesty International, the Maine Civil Liberties Union, and the Coalition to End Domestic Violence.  An Episcopal priest also opposed the bill.

The MMA expressed no position on the bill, but pointed out that a physician would be ethically prohibited from participating in an execution.  You can read Opinion 2.06, Capital Punishment from the AMA Code of Medical Ethics on the web here. [return to top]

MMA, MHA Join Bureau of Health in Supporting Emergency Preparedness Bill
On Friday, April 29, 2005, the Judiciary Committee held a public hearing on L.D. 1405, An Act to Prepare Maine for Public Health Emergencies.  The BOH Office of Public Health Emergency Preparedness has been working with consultants from the University of New England and representatives of the medical community to update a law passed by the 120th Legislature in the aftermath of the events of 9/11/01 (L.D. 2164, An Act to Provide Government with the Necessary Authority to Respond to a Public Health Emergency Caused by an Act of Bioterrorism, P.L. 2001, Chapter 694).  Several of the revisions are based on the lessons learned from SARS and other emerging infections, as well as the Bureau of Health's experience with public health emergency preparedness and training health care workers throughout the state.  Dr. Dora Ann Mills, the State Health Officer, spoke in favor of the bill as did the MMA and the MHA.  There were no opponents.  The Maine State Chamber of Commerce and the Maine Municipal Association expressed some concerns about the workplace leave provisions of the bill. [return to top]

First Friday Seminar Cancelled

The seminar scheduled to take place this Friday, May 6, 2005 has been cancelled due to lack of registrants. Advertised speakers may be rescheduled for a future seminar.

The next First Friday Seminar "Improving End of Life Care: Advance Directives, DNR and Other Issues" is scheduled for June 3. Please contact Chandra Leister at 622-3374 for more information.

[return to top]

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