By Barbara J. Greenwood*
November 24, 2008
Legislative Session 2008
SB 540, Governor Lynch's HealthFirst initiative, became effective in July. It is part of the Governor's comprehensive plan to introduce affordable healthcare, which focuses on lowering costs for the small-employer market. Beginning in October 2009, insurance carriers who cover more than 1,000 lives in the small-group market must offer a new insurance product to small groups in New Hampshire that contains wellness features and programs. Insurance carriers are "reasonably expected" to price the policy at or below a target rate of 10% of the prior year's median statewide wage for the prior year. This is substantially below the cost of small-group coverage being sold today.
HB 1484 creates a Retail Health Clinic Commission to study and develop legislation regulating health clinics and limited-service clinics. This bill was signed by the Governor and was effective immediately.
SB 420 requires every applicant for a healthcare facility license to submit with the application the results of criminal background checks for the applicant, the licensee or certificate holder, the administrator, and each individual over age seventeen who will be residing at the licensed facility. The bill takes effect January 1, 2009.
Prescription Information Law
One of the most interesting healthcare reform developments in New Hampshire involves the state's first-in-the-nation Prescription Information Law, which was passed in June 2006. The Law prohibits pharmacy benefit managers, insurance companies, pharmacies, and similar entities from selling or using prescription information that identifies patients or prescribers for commercial purposes. The Law was designed to protect the confidentiality of physicians' prescribing habits and to prevent inappropriate marketing of drugs to prescribing physicians. Shortly after its passage, the Law was challenged as unconstitutional by two companies that collect, analyze, and sell prescription information, and the U.S. District Court in Concord, NH, threw out the law in April 2007. Now, in a decision released November 18, 2008, the First Circuit Court of Appeals in Boston has upheld the constitutionality of the Prescription Information Law (RSA 328:1, amending RSA 318). IMS Health Inc. v. Ayotte, No. 07-1945 (1st Cir.).
Legislative Session 2009
New Hampshire's 2009 legislative session does not start until January. Members of the House and Senate are currently submitting requests for bills (called Legislative Service Requests or LSRs). A total of some 1200 LSRs is expected. So far, LSRs relating to a number of healthcare issues—including disclosure of the estimated costs of home healthcare services, health insurance access, medical records, rulemaking authority of governing boards of allied health professionals, and Medicaid pharmacy benefits management—have been filed, but no detailed information is available.
In addition, there are a couple of important healthcare bills from last year that were recommended for future legislation in the upcoming legislative session.
One is HB 1587-FN, which gives individuals the right to control access to their protected health information and to obtain an audit trail showing who has accessed their protected health information. These rights go beyond the rights provided in HIPAA. The Bill permits a healthcare provider to disclose an individual's protected health information for treatment, payment, or essential healthcare operations, unless the individual has elected to restrict disclosure of the information. There are certain exceptions to the prohibition on disclosure. For example, the exception for medical emergencies permits disclosure, but only when the provider is unable to obtain the individual's authorization due to the individual's condition or the nature of the medical emergency. Critics of the bill are concerned that permitting patients to restrict access to their health information could make it difficult or impossible for subsequent providers to properly assess and treat the patient. The right to obtain an audit trail extends to all access to an individual's electronic medical record for any period within the three years prior to the request for the audit trail, and critics charge that that this could be hugely time-consuming and expensive for providers.
SB 541 directs the Health Services Planning and Review Board to promulgate administrative rules that create an expedited certificate of need (CON) review process, designate projects eligible for such review, and provide the process for such review.
*We would like to thank Barbara J. Greenwood, Esquire (Rath Young & Pignatelli PC, Concord, NH) for providing this email alert.