09/2002: State Legislative Update

Published August 30, 2002

Managing Editor’s note: Information here on legislative activity regarding MEHPA was provided by Andrew Schlafly, Esq., general counsel for the Association of American Physicians and Surgeons (AAPS). He can be reached at 908/719-8608.


Under the Model Emergency Health Powers Act (MEHPA) legislation passed this session, Arizona’s governor may declare an emergency only if there is a substantial risk of a significant number of human fatalities or permanent or long-term disability. The governor may quarantine only if it is the least-restrictive means available to address the risk. The governor’s quarantine power expressly includes the possibility of detention in one’s residence.


According to MEHPA law, the Florida public health department or the governor may declare a health emergency based on an incident resulting in substantial risk of harm to public health. The health department has the power to use law enforcement to forcibly quarantine or by “any means necessary” vaccinate residents. No exceptions are recognized in the measure.


Under new MEHPA rules, Georgia’s governor must call a special session of the legislature to approve or reject a declaration of a public health emergency, which requires a “high probability” of harm to a “large number” of people.

The vaccination rules must permit “consideration of the opinion of a person’s personal physician as to whether the vaccination is medically appropriate or advisable for such person.” Unless there is “an epidemic or immediate threat thereof, the vaccination requirement shall not apply to any person who objects in writing thereto on grounds that such immunization conflicts with his religious beliefs.”


Maine’s MEHPA will sunset in 2003. The health department must prove by clear and convincing evidence at a hearing, within 48 hours of detaining someone, the “person has been exposed to or is at significant medical risk of transmitting a communicable disease that poses a serious imminent risk to public health or safety and there are no less restrictive alternatives available to protect the public health and safety.” The court must rule within 24 hours of the hearing to release the person or detain him for a period no longer than 30 days.


Using provisions in the new state MEHPA, Maryland’s governor may declare a “catastrophic health emergency,” limited to an imminent threat of extensive loss of life or of serious disability caused by exposure to a deadly agent, which is explicitly defined in the measure. Among the deadly agents identified are Anthrax, Ebola, plague, Smallpox, mustard or nerve gas, or deadly radiation.


Under rules established in MEHPA, the Minnesota commissioner of health must apply for a court order within 24 hours after detaining someone, and must then release the detainee if a court order is not received within 48 hours. The sun sets on MEHPA in 2004.


On July 23, Nebraska Governor Mike Johanns (R) said he plans to cut approximately $20 million from the state budget by eliminating what he called “loopholes” in the state’s Medicaid eligibility requirements. The state expects income from taxes to be $255 million less than the $5.2 billion projected earlier in the current two-year budget cycle.

Under a plan expected to save $11.7 million this fiscal year, which ends June 30, 2003, and $17.6 million during a 12-month period, Johanns has proposed to end a mathematical formula called “stacking,” which the state uses to determine Medicaid eligibility. Through stacking, the state breaks families into smaller units and assigns each unit a portion of the family’s annual income. The practice allows some middle-income families, who otherwise would have incomes too high to qualify for Medicaid, to receive benefits.

Johanns also would reduce the amount of income the state disregards when determining eligibility, a move expected to save $2.7 million this fiscal year and $4 million over a 12-month period. His proposal also would freeze payment levels to Medicaid providers to save the state about $7 million per year and would begin to alter some payment rules for hospitals and pharmacies.


At least one orthopedic surgeon has agreed to return to work at the trauma center at Las Vegas-based University Medical Center, and several others are reconsidering their resignations following a decision by the state attorney general to temporarily cap legal damages in malpractice cases at $50,000 if physicians return to the center.

The only trauma center serving southern Nevada closed July 3 after all but one of its 58 orthopedic surgeons quit, citing escalating medical malpractice insurance premiums.

The cap, issued by the state attorney general on July 9, will be in effect for 45 days until the state legislature can address tort reform. Governor Kenny Guinn (R) has said he will call a special legislative session.

Orthopedic surgeon Dr. Michael Daubs, president of the Nevada Orthopedic Society, said he is “willing to go back to work” and is “comfortable that [he] will be protected under the cap.” Daubs said he has been encouraging other doctors to return as well.

New Hampshire

MEHPA gives New Hampshire’s governor the power to declare an emergency, which the legislature may revoke. The initial period of emergency is only 21 days; a court order is required to quarantine.

South Dakota

South Dakota is one state where the Senate impasse over prescription drug legislation has become an important issue.

In a hotly contested U.S. Senate race, Rep. John Thune (R) has said incumbent Sen. Tim Johnson (D) “offers no real solution” to the problem of increased prescription drug costs. “Johnson has spent an enormous amount of his congressional career talking about prescription drugs, but he has never voted for a bill that’s passed.”

The issue is thought to be critical since many seniors reside in rural areas and cannot afford to purchase prescription drugs. The Senate began debate on prescription drug legislation, including two Medicare prescription drug benefit bills, in late July. In June, the House passed a Republican-sponsored bill (HR 4954), which Thune supports. The bill would allow Medicare beneficiaries to purchase prescription drug coverage directly from private insurance companies. The Senate bill did not pass the Democrat-controlled Senate.

West Virginia

Officials are working to address a $187 million budget deficit in West Virginia’s Medicaid program for this fiscal year. The program faces a $47 million loss because of an increase in beneficiaries and costs and a decrease in revenues. It risks losing $140 million in federal matching funds.

To help trim Medicaid costs, the state Department of Health and Human Resources is working to negotiate discounts with drug companies under a law approved by the state legislature earlier this year. The law also allows the state to establish a “preferred drug list,” which would offer doctors incentives to prescribe Medicaid beneficiaries lower-cost medications on the list.

The State Legislative Update is compiled from a wide range of news sources, including the Council for Affordable Health (CAHI) http://www.cahi.org; the National Association of Health Underwriters (NAHU) http://nahu.org; Bizjournals http://bizjournals.com; Stateline http://stateline.org; and Lexis/Nexis research.