Health Care Update: Midway Through The 2020 Legislative Session

By: Tyler S. Lemen

This month marked the halfway point of the 2020 legislative session and there are several health care related Bills to watch as the Legislature resumes work this week.  These Bills were heard within the first half of the session and now have a better chance of being signed into law as any Bill not heard in the first half of the session is now unlikely to be referred for consideration to either Indiana’s House of Representatives or Senate. Some Bills that are worth noting currently are: HB1317, which refines the Health Care Advance Directive statute; HB1008, which lessens the requirements to transfer a professional license to Indiana; SB3and HB1004, which address health care provider billing practices; and SB101, which increases the aggregate damages cap for an adult wrongful death action from $300,000 to $700,000. 

HB1317 – Advance Health Care Directives

HB1317 revises the recently passed health care advance directives statutes codified in Ind. Code § 16-36-1.  A notable change is the inclusion of a “good faith exception” allowing medical providers to use their best judgment when complying with advance directives.  In short, medical providers could rely upon any written advance directive, signed by the adult patient not declared incompetent upon execution of the advanced directive.  This is a welcome change as the health care advance directives statute created guidelines that could confuse health care providers not well versed in the specific statutory requirements of a valid advanced directive.  In other words, this can be viewed as a good faith way of attempting to honor a patient’s medical wishes, even if the specific requirements of the health care advance directives statute have not been followed.  In addition, the Bill also invalidates any advance directive if a health care provider or probate court declares the individual incompetent prior to the creation of the advanced directive. 

Further, this Bill would change the definition of “life prolonging procedure” to mean “any medical procedure, treatment, or intervention that does the following: (1) uses mechanical or other artificial means to sustain, restore, or supplant a vital function; (2) serves to prolong the dying process.” Further, this Bill clarifies that “life prolonging procedure” does not mean “the performance or provision of any medical procedure or medication necessary to provide comfort care or to alleviate pain.” The full version of the Bill can be found here.

HB1008 – Transferring Professional Licenses to Indiana

This Bill seeks to require a professional licensing board to license an individual who: (1) is licensed in another state or jurisdiction in the regulated occupation; (2) has established residency; (3) has passed a substantially equivalent examination as determined by the appropriate board; (4) is and has been in good standing; (5) pays a fee; and (6) completes the licensure application form.  It is not entirely clear whether this Bill would be effective in easing the process of transferring a professional license to Indiana as this Bill preconditions the requirement to grant a professional license upon the appropriate Board’s determination that the individual has “passed a substantially equivalent examination.” However, this Bill may be aimed not so much at compelling licensure, but signaling the Legislature’s wish for professional licensing boards to ease the requirements for transferring professional licenses between states. Many professional licensing boards already accomplish this through compacts or other arrangements and this Bill has no effect on these prior arrangements.  This is an interesting Bill to watch as its passing could result in attracting more licensed professionals to Indiana through the lowered threshold for licensure transfer. The full version of the Bill can be found here.

SB3 and HB1004 – Medical Billing Practices

It seems both the Indiana House of Representatives and Senate have billing practices within their sights during this session.  The fact that both have proposed Bills addressing billing practices increases the likelihood that some version of one or both could get passed into law.

SB3 “prohibits billing a patient who receives emergency services: (1) from an out of network provider; and (2) at specified facilities that are in-network, for amounts that exceed the cost paid by the patient’s insurance plus any deductibles, copayments, and coinsurance amounts.” This text is a bit confusing and could be rewritten before the Bill’s final version.  It appears the Bill is aimed at stopping out-of-network physicians from rendering emergency health care services at an in-network hospital, ambulatory outpatient surgical center, or birthing center from charging more than the patient would normally pay to see an in-patient physician at that location.  From a public policy standpoint, the Legislature apparently intends to eliminate the extra financial cost of serendipitously seeing an out-of-network physician during a trip to the local in-network hospital for emergency services.

In addition, this Bill allows patients to request an estimate of non-emergency health care costs prior to agreeing to receive the health care.  This estimate must be a good faith attempt to provide the patient with an estimate of costs more than five business days prior to the scheduled appointment.  The full version of the Bill can be found here.

HB1004 also addresses health care provider billing practices but from a slightly different angle.  Instead of obligating a patient to request a cost estimate for services to be performed, this Bill prohibits an in-network provider, who provides health care at an in-network location, from charging more than the rate of compensation set by the patient’s health care plan, unless five days prior to the scheduled health care services the provider informs the patient of the intent to charge more than the agreed-to compensation, provides an estimate of the charges, and the patient signs a consent form.  The full version of the Bill can be found here.

SB101 – Increase in Adult Wrongful Death Damages Cap

This Bill would increase the aggregate cap on wrongful death damages from $300,000 to $700,000. This has the potential to affect health care providers involved in litigation since wrongful death claims are frequently alleged by litigants as a means to recover damages following a loved one’s death.  The current $300,000 cap has been in place since January 1, 2000.  Without an increase in the cap for the past twenty years, the Plaintiffs’ bar is likely to begin challenging this cap as unconstitutional. Similar legislation occurred in 2016 when the statutory cap on damages awarded in a medical malpractice action was increased. 

At first blush, it can be difficult to discern to which litigants this damages cap would apply and whether total damages are limited to $700,000.  However, the Bill is aimed only at one portion of Indiana’s Wrongful Death Act, the Adult Wrongful Death Statute.  The original Wrongful Death Act created a cause of action for a personal representative to maintain civil actions on behalf of a deceased individual against the one responsible for causing the death. Ind. Code § 34-23-1-1.  This code section is still in effect and covers many of the wrongful death cases against health care providers. SB101 would have no effect on this section since the Legislature never placed any aggregate cap on damages for litigants pursuing wrongful death claims pursuant to this statute.

However, in an effort to clarify the unruly text of the original statute, the Legislature left the original Wrongful Death Act untouched and carved out two groups of people upon which it placed restrictions for pursuing wrongful death actions.  This resulted in the Legislature limiting the non-pecuniary damages that could be awarded to the personal representative of an unmarried individual, who has no dependents, and is over the age of twenty (or 23 if certain conditions are met).  For many elderly or unmarried individuals, this “carve-out” resulted in new limitations on “loss of love” damages.  Namely, the aggregate amount of damages that could be awarded by a court for loss of the adult person’s love and companionship–to his or her family or personal representative–could not exceed $300,000. Ind. Code § 34-23-1-2.  SB101 would increase the amount of non-pecuniary “loss of love” damages from $300,000 to $700,000.  The full version of the Bill can be found here.