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Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.
Legislative interference in the operation of your medical practice is evident across the U.S. Here are some examples.
More than ever before, state governments are introducing legislation impacting healthcare and the interaction between physicians and patients. This trend has been deemed “alarming” by five professional societies representing the majority of U.S. physicians providing clinical care: the American Academy of Family Physicians; the American Academy of Pediatrics; the American College of Obstetrician & Gynecologists; the American College of Physicians; and the American College of Surgeons.
According to these medical societies, in an editorial published in the New England Journal of Medicine in October 2012, inappropriate legislative interference with the physician-patient relationship is evidence of political agendas and ignores established, evidence-based guidelines for care.
Across the country, there are numerous examples of legislative interference in healthcare. Here are some examples:
1. In 2011, the Florida Legislature enacted the Firearm Owners Privacy Act. This law prohibits practitioners from routinely inquiring about whether patients own firearms and recording this information in the patient’s medical record. Violation of this law can subject providers to severe disciplinary action. A permanent injunction against this law was issued on June 29, 2012, by a U.S. District Judge, barring the law’s enforcement. The State of Florida is continuing to push this issue and submitted an appeal of the ruling.
2. In Virginia, a bill was introduced that would have mandated that women undergo ultrasonography before having an abortion. The American College of Physicians opposed the bill, arguing that the legislation represented a “dangerous and unprecedented intrusion by the Commonwealth of Virginia into a patient’s privacy and that it encroaches on the doctor-patient relationship.” A modified bill requiring women to undergo transabdominal ultrasonography (and not transvaginal ultrasonography) was signed by the governor in March 2012.
3. In New York, physicians and other healthcare practitioners must offer to discuss end-of-life options and palliative care services with terminally ill patients, without discretion as to how and when to raise the issues. Non-compliance can result in fines of $5,000 and up to a year in jail.
4. A few months ago, the U.S. Court of Appeals for the Sixth Circuit upheld a 2004 Ohio law limiting a woman’s right to choose to have a first-trimester abortion with the drug mifepristone. The law leaves women who might safely opt for a medically induced abortion between 49 days and 63 days of pregnancy with only a surgical option. Additionally, the law states that mifepristone can only be administered in the exact dosage accepted by the FDA12 years ago, forcing women to consume three times more medication than needed.
5. Recently, Alaska proposed legislation dealing with the withholding of life-sustaining treatments. The law would allow a family to override a physician’s do-not-resuscitate (DNR) order.
6. All but two states allow parents to skip immunizing their children if it contradicts with their religious beliefs, and an additional 20 states allow exemptions based on parents’ philosophical or personal beliefs. These laws are in place despite evidence showing that such exemptions lead to more children remaining unvaccinated and, consequently, contributing to outbreaks of preventable diseases.
7. At least four states have enacted laws restricting the information physicians can disclose to patients regarding exposure to certain chemicals used in the process of hydraulic fracturing (“fracking”).
8. In Connecticut, a 2009 law was passed requiring physicians to notify women of other screening options if their mammograms show they have high breast density. This notification is required whether or not such additional testing is believed necessary by the physician and regardless of whether insurance coverage is available.
9. In Wisconsin, a recent law included language requiring a physician to have three office visits (two before and one after) prescribing a drug-induced abortion for any patient.
These are only examples of the types of laws proliferating across the country. Some of the laws are well-intentioned and will certainly help protect patients. Others appear to clearly be driven by lobbying interests and political agendas. Regardless, physicians must be cognizant of state mandates impacting the practice of medicine, particularly if there are legal consequences for non-compliance.
Have you been impacted by legal mandates that affect your relationship with patients? Please share your experience in the comments section below.