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State Legislative Trends in 2021

Many return to considering non-COVID-19 issues after 2020

BY STEPHEN ABRESCH | OCTOBER 2021

After state legislatures spent 2020 grappling with the COVID-19 pandemic, 2021 saw states dedicating more time to addressing issues not directly related to the pandemic, though legislation related to the pandemic still featured heavily on dockets. States considered and passed legislation on a variety of topics impacting ASCs during 2021, including issues like surgical smoke evacuation, scope of practice for optometrists, provider taxes, price transparency, universal health insurance coverage and oversight of mergers and acquisitions of health systems.

Surgical Smoke

Connecticut, Georgia, Illinois, Iowa, Kentucky, New Jersey, Ohio, Oregon and Texas considered surgical smoke evacuation legislation this year, with Illinois, Kentucky and Oregon passing their bills into law. This brings the number of states with surgical smoke laws on the books to five: Colorado, Illinois, Kentucky, Oregon and Rhode Island. The new laws direct facilities to implement policies to mitigate staff exposure to surgical smoke with surgical smoke evacuation devices.

Optometry Scope of Practice

Eight states—Alabama, California, Florida, Massachusetts, Mississippi, Oregon, Texas and Wyoming—considered legislation addressing the scope of practice of optometrists. California, Mississippi and Wyoming enacted their legislation, while Massachusetts’ legislation will carry over to 2022. The new laws allow optometrists to perform a number of new procedures, including YAG laser posterior capsulotomies in Mississippi and a range of laser procedures in Wyoming.

Mergers and Acquisitions

Legislation increasing state oversight of mergers and acquisitions of health facilities and health systems gained traction in a handful of states during the 2020 legislative session and saw sustained attention in 2021. California, Oregon, Nevada and Washington considered legislation, with Nevada and Oregon passing their bills into law. Oregon’s law requires transactions to be reviewed and approved by the Oregon Health Authority (OHA) if both parties meet specified financial thresholds. In contrast, the Nevada law requires hospitals and physician groups to provide only notification to the state Department of Health and Human Services about any merger, acquisition or joint venture they are party to within 60 days after finalization.

Price Transparency

Twenty-nine states considered legislation on price transparency during the 2021 session, with 13 states enacting legislation. Of those, new laws in Indiana, Oklahoma, South Dakota and West Virginia impact ASCs. Indiana revisited price transparency requirements imposed on ASCs during its 2020 session, amending the current law through three separate measures to subject ASCs to the same federal price transparency requirements that hospitals must comply with and tweak existing good-faith estimate requirements. Oklahoma enacted legislation requiring healthcare facilities to make available healthcare prices for at least the 20 most used outpatient CPT codes or healthcare services procedure codes per specialty service line used for billing.

South Dakota’s legislation took a different tack than either Indiana or Oklahoma or most states' legislation that touches on the issue. Instead of forcing providers to disclose prices, the law requires health insurers to make disclosures to patients regarding estimates of their cost-sharing liability for a requested covered item or service. West Virginia’s law, which at introduction had required healthcare facilities, including ASCs, to post on their website the information including the health benefit plans they participate in, was ultimately signed into law with language authorizing the state insurance commissioner to enforce the provisions of the federal No Surprises Act with a fine of $10,000 per violation of the act.

Universal Coverage

Colorado, Maine and Oregon enacted legislation aimed at expanding insurance coverage, with Colorado’s law generating significant headlines. Colorado’s legislation, which would have originally created a true public option for state residents, ultimately created a “standardized benefit plan” that insurance carriers must offer and that must have annual reductions in the premium rate. Maine’s law establishes the Maine Health Care Plan to provide for all medically necessary healthcare services for residents of the state and directs the Maine Health Care Board, also established in this new legislation, to design the plan. Similarly, Oregon’s law requires the state health authority to create an implementation plan for a public health plan that will be made available to individuals and families in the state’s individual health insurance market and to small employers.

Write Stephen Abresch with any questions.