Legislative
Hotline
2005 SESSION OF THE
MARYLAND GENERAL ASSEMBLY
Volume
13, Number 6 March 2, 2005
Here are some of the hot issues as the 2005
Legislative Session develops:
Medical Liability Corrective
Bill
BILLS
INTRODUCED
STAFF CONTACT INFORMATION
Today, the Maryland House of
Delegates passed a slot machine bill by a close vote of 71 to 66. The bill now goes to a joint conference
committee, composed of both Senators and Delegates, to negotiate the
differences in the two bills. The House
version authorizes 9,500 slot machines at four locations in Anne Arundel,
Harford and
For more Information please
contact Bret Schreiber.
Medical Liability Corrective Bill
On Wednesday, both the
Senate and the House held hearings on SB 836/HB 1359 - Maryland Patients'
Access to Quality Health Care Act of 2004, which is the corrective bill for to
HB 2, the medical liability reform legislation passed during the 2004 Special
Session. The Bill contains several important provisions including eliminating
excessive reporting requirements and creating environment in which insurers
will continue in the
For more information please
contact Jim Kaufman.
BILLS INTRODUCED
Budget - Capital
HB1475 Creation of a State Debt -
The bill creates a $2.0 million state grant for
the construction of a replacement psychiatric hospital building on the Towson Campus
of the Sheppard Pratt Health System.
Effective
Date: June 1, 2005
For more
information, please contact: Jim Kaufman
Business Operations
SB0755 Procurement
- Minority Business Participation Program - Impact of Goals on Nonprofit
Entities
Senate Bill 755 requires that a certification
agency designated by the Board of Public Works, together with the Special
Secretary for the Office of Minority Affairs, examine the State procurement
law's Minority Business Participation Program as it relates to participation by
nonprofit entities. The bill requires
the certification agency and the Special Secretary to assess the impact of the
goals of the Minority Business Participation Program on nonprofit entities and
to submit a report to the Governor and the General Assembly by December 1,
2005. They particularly want to see the impact on
nonprofits ability to compete for and be awarded contracts valued at less than
$200,000.
Effective
Date: July 1, 2005
For more
information, please contact: Bret
Schreiber
Environment Health
HB1203 Environment - Construction on Golf Course Property - Soil Samples
This bill amends §4-105 of the Environment
Article. A person may not begin or
perform any construction on a property that has been previously utilized as a
golf course unless the person engages an independent environmental consultant,
to be chosen jointly by the person and any community association affected by
the construction, for the taking of soil samples. The independent environmental consultant
shall take a total of at least 10 soil samples from the property, each at a depth
of at least 4 feet, from the following locations:
- Two from the greens;
- Two from the pesticide or
herbicide storage area;
- One from a wooded area; and
- The remainder from random
locations on the property.
Each sample
shall be tested for arsenic, lead, cadmium, mercury, chlordane, and ddt. At
least one of the 10 samples shall be duplicated, as appropriate, to confirm
laboratory results. The independent
environmental consultant shall make available to any community association
affected by the construction the results of all samples, including a projected
environmental impact for each substance that is found. If a detrimental public health or
environmental impact is projected for any substance found, the person shall
engage an independent environmental consultant, to be chosen jointly by the person
and any community association affected by the construction, to perform a
site-specific risk assessment.
Effective
Date: October 1, 2005
For more
information, please contact: Heather
Barthel
General Education
HB0929 Education - Baltimore City Public Schools - Facilities
House Bill 929 repeals a provision of law
requiring the transfer of public school buildings from the Mayor and City Council
of Baltimore to the Baltimore City Board of School Commissioners. The bill also repeals a requirement that
prohibits the State from funding capital improvements to public school
buildings in
Effective
Date: October 1, 2005
For more
information, please contact: Bret
Schreiber
HB1297 Education - Public Schools - Funding
House Bill 1297 requires the State to provide
not less than $30,000,000 in fiscal year 2006 and each fiscal year thereafter
to the Baltimore City Board of School Commissioners. The bill requires that the funds be used for
access to pre-kindergarten and early childhood education programs, smaller
class sizes, student enrichment programs, including art and education, purchase
of classroom supplies and textbooks, and the recruitment and retention of
qualified teachers.
Effective
Date: July 1, 2005
For more
information, please contact: Bret
Schreiber
General Health Care
hb1358 State Police Helicopter Replacement Fund and Volunteer Company
Assistance Fund - Moving Violations - Surcharges
This bill establishes the State Police
Helicopter Replacement Fund. A police
officer issuing a traffic citation for a violation in which points may be
assessed shall add a $50 surcharge to the amount of the total fine before
presenting the citation to the driver being charged. In a traffic case in which points may be
assessed,after conviction, the court shall add a $50 surcharge to any fine
imposed by the court. In fiscal years
2006 and 2007, the first $20 million in surcharges collected shall be credited
to the Volunteer Company Assistance Fund.
The remainder of the surcharges collected shall be credited to the State
Police Helicopter Replacement Fund. The
Fund may be used only for the procurement of new helicopters and auxiliary
helicopter equipment, ground support equipment, and other capital equipment
related to helicopters for the Maryland State Police.
Effective
Date: July 1, 2005
For more
information, please contact: Heather
Barthel
Health Care Facilities
SB0688 Environment - Stormwater Management - Inspections and Water Quality
Standards
This bill amends §4-203 of the Environment
Article – Stormwater Management.
The purpose of the bill is to establish specific post-development water
quality standards. The bill stipulates
that at the conclusion of any land clearing, construction, development,
drainage, or soil movement, the Department shall inspect the site where the
activity occurred for compliance with the subtitle.
As part of
the required inspection, the Department may test stormwater runoff and any
downstream water that the Department reasonably determines may be affected by
the land clearing, construction, development, drainage, or soil movement.
The section
applies regardless of whether it is done in compliance with a stormwater
management plan. A person may not cause
or contribute to a violation of water quality standards, including any increase
in turbidity that causes a substantial visible contrast to predevelopment
conditions, any increase in suspended, colloidal, or settleable solids that
causes deposition of the solids or impairs the waters for their best uses, and
any residue or visible film from oil, grease, or any other substance insoluble
in water.
Effective
Date: October 1, 2005
For more
information, please contact: Heather
Barthel
Health Care Practitioners
HB0630 Baltimore
County - Speed Monitoring Systems - Liberty Road, Route 26
This bill requires Baltimore County to place
speed monitoring systems along Liberty Road (Route 26) that is within the
boundaries of Baltimore County. It
requires
Effective
Date: October 1, 2005
For more
information, please contact: Heather
Barthel
Health Insurance
sb0779 Health Insurance - Annual Human Papillomavirus Screening Test -
Coverage
The bill requires insurers and non profit health
service plans to provide coverage for an annual human papillomavirus screening
test to women who are under the age of 20 years if they are sexually active;
and at least 20 years old if they have multiple risk factors, and men who have
multiple risk factors. Insurers and non
profit health service plans must also provide educational material to
enrollees, members, or subscribers on the health risks associated with the
human papillomavirus and the availability of coverage for the screening test.
Effective
Date: October 1, 2005
For more
information, please contact: Sheila Higdon
SB0918 Health Insurance - Mandated Benefits - In Vitro Fertilization -
Coverage
The bill alters the circumstance under which
health insurance carriers may refuse to issue a policy. The bill prevents a carrier from denying
coverage to an applicant that was tested for infertility or a test performed
resulted in a diagnosis of unexplained infertility.
Effective
Date: June 1, 2005
For more
information, please contact: Jim Kaufman
Higher Education
HB1064 Constitutional
Amendment - Higher Education - System and Funding
House Bill 1064 adds a new section to the
Maryland Constitution to require the funding necessary to support and maintain
the public institutions of higher education in Maryland. This bill will be submitted as an amendment
to the voters of the State of
Effective
Date: Constitutional Amendment
For more
information, please contact: Bret
Schreiber
HB1286 Access to Quality in Higher Education Act of 2005
House Bill 1286 requires the Governor to include
in the fiscal 2007 State budget submission specific appropriations for the
University System of Maryland (USM), Morgan State University (MSU), and St.
Mary’s College of Maryland (SMCM).
The bill also mandates annual increases for the institutions of at least
5% per full-time equivalent (FTE) resident student beginning in fiscal
2008. USM, MSU, and SMCM would also
receive additional fiscal 2006 funding if a supplementary appropriation bill is
enacted or a supplemental budget submitted by the Governor includes the
funding. The bill also reduces tuition
rates for the 2005-2006 academic year and limits future tuition increases to 4%
annually.
Effective
Date: July 1, 2005
For more
information, please contact: Bret
Schreiber
HB1308 Higher Education - Tuition Limitation Based on Adequate Funding
House Bill 1308 limits the amount of the annual
increase in tuition that may be charged each academic year to a resident
undergraduate student at University System of Maryland institutions and Morgan
State University to no more than 5% for academic years 2006 and 2007 so long as
adequate funding is provided for in the General Fund budget.
Effective
Date: July 1, 2005
For more
information, please contact: Bret
Schreiber
Long Term Care/Nursing Homes
HB1423 Assisted
Living Programs - Services and Facilities Search Engine
The bill requires the Office of Health Care
Quality (OHCQ) to develop a web page with a search engine that aids a consumer
of assisted living services in finding an assisted living program in the State
that meets the needs of the consumer.
OHCQ must model the search engine on the information provided in the
Federal GAO-04-684 report.
Effective
Date: October 1, 2005
For more
information, please contact: Sheila
Higdon
HB1424 Assisted
Living Programs - Services Disclosure Statement
The bill requires DHMH to develop a standard assisted
living program services disclosure statement to provide potential consumers
with information about the actual services that an assisted living program
provides to aid consumers in selecting the most appropriate program for their
needs.
The bill
also requires each assisted living program providing services to 5 or more
individuals to file an assisted living program services disclosure statement
with OHCQ as part of their application for licensure. If a program has a change in the services it
provides, the program must file an amended statement within 30 days of the
change. OHCQ will also be required to provide a paper
copy of the assisted living program services disclosure statement of any
licensed assisted living program to any person the requires a copy, and develop
a website for access to service disclosure statements of any licensed assisted
living program.
Effective
Date: October 1, 2005
For more
information, please contact: Sheila
Higdon
HB1425 Assisted
Living Facilities - Adult Family Homes - Evaluation of Care Provided
The bill requires the OHCQ Assisted Living Forum
within DHMH to conduct an evaluation of the effectiveness of care provided by
Adult Family Homes in Maryland and report to the General Assembly by January 1,
2006. The report shall address and make
recommendations relating to the competency of the caregivers, the care of the
residents, quality of life and access to community services of the residents,
safety of the facility and liability insurance status of the facility.
Effective
Date: June 1, 2005
For more
information, please contact: Sheila
Higdon
Medicaid
HB1499 Maryland
Medical Assistance Program - Atypical Antipsychotic Medications
The bill prevents the Secretary from requiring
prescriptions for atypical antipsychotic medications receive prior
authorizations for beneficiates enrolled in all state pharmacy assistance
programs with the exception of HealthChoice Managed Care Organizations.
Effective
Date: October 1, 2005
For more
information, please contact: Jim Kaufman
SB0895 Department
of Health and Mental Hygiene - Maryland Health Insurance Plan - Computerized
Eligibility System
The bill authorizes the Maryland Health
Insurance Program to spend up to $15 million to develop a computerized
eligibility system for the Medicaid Program.
The system will enroll eligible individuals, refer eligible individuals
to MHIP, and make referrals to other state and federal programs providing
inpatient hospitalization for uninsured patients.
The bill
requires that before an RFP is issued, MHIP must submit a report to DHMH that
will enumerate the specifications of the new system, demonstrate how the system
will be more efficient and effective than the current system, and estimate the
reduction on hospital uncompensated care.
The bill takes effect when the federal Centers for Medicare and Medicaid
Services approve a waiver regarding the proposed funding of the computer
system.
Effective
Date: October 1, 2005
For more
information, please contact: Jim Kaufman
SB0899
The bill establishes the Rare and Expensive Case
Management Program within Medicaid. Individuals
who are diagnosed with Rare and Expensive conditions may choose to participate
in the REM Program, with their healthcare providers being paid on a
fee-for-service basis, or may elect to participate in a Managed Care
Organization (MCO). The bill requires
the Secretary to create a workgroup to evaluate the REM program to ensure its
efficiency and make recommendations about the utilization of the Program.
Effective
Date: June 1, 2005
For more
information, please contact: Jim Kaufman
Medical Liability
Sb0836 Maryland
Patients' Access to Quality Health Care Act of 2004 - Implementation and
Corrective Provisions
The emergency bill makes substantive and
technical changes to HB 2 - Maryland Patients’ Access to Quality Health
Care Act of 2004 (adopted during the special session). The bill adjusts the actuarially soundness
test for the MCOs capitation payments to include expenses and taxes, allowed
under federal law, that are incurred by MCOs in providing care. In addition to this change, the bill moves
the effective date of the MCO tax from January 1, 2005 to April 1, 2005. As a result of this delay in the MCO tax, the
bill alters the funding for the Maryland Health Care Provider Rate
Stabilization Fund to:
FY 2005 -
$3.5 million for the Medicaid,
FY 2006 -
$52.0 million to the Rate Stabilization Account and $30.0 million for Medicaid,
FY 2007 -
$45.0 million for the Rate Stabilization Account and $45.0 million for
Medicaid,
FY 2008 -
$35.0 million for the Rate Stabilization Account and $65.0 million for
Medicaid,
FY 2009 -
$25.0 million for the Rate Stabilization Account and the remaining amount to
Medicaid, and
FY 2010 and
thereafter, the entire amount is dedicated to Medicaid.
The bill
clarifies that the purpose of the fund is to retain health care provides by
allowing liability insurers to charge lower rates, increase the FFS rates paid
by Medicaid, pay specified MCO providers consistent with the FFS rates paid by
Medicaid, and increase capitation rates paid to MCOs.
The bill
requires the Insurance Commissioner to deny an application or refuse to renew a
certificate if the insurer fails to pay the assessment for the People’s
Counsel Division in the Office of the Attorney General. The bill also modifies the information
included in reports from a medical professional liability insurer to include
any proprietary information and the information to be filed on specific claims
be filed for each claim filed with the Director of Health Care Alternative
Dispute Resolution office. The Insurance
Commissioner must adopt regulations on the submission of the reports and impose
a civil penalty up to $5,000 for facility to report.
Effective
Date: Emergency Measure
For more
information, please contact: Jim Kaufman
HB0823 Circuit Courts - Medical Injury - Medical Malpractice Review Panel
The bill amends § 3-2A-06E of the Courts &
Judicial Proceedings Article. An action
filed under this subtitle shall be submitted to a medical malpractice review
panel for its review and decision. The
circuit administrative judge shall appoint a circuit court judge or a retired
circuit court judge of the circuit to chair the panel. All time limits under this subtitle or the
Within 15
days of the appointment of the panel, the chair shall notify the parties of the
membership of the panel and convene the panel in an initial conference. At the
initial conference, the chair shall establish a schedule for the filing of all
relevant records and reasonable discovery which shall be filed at least 30 days
before the hearing date. A hearing on
the action shall be held no later than 60 days from the date of initial
conference. The
A panel
shall determine, after holding a hearing, if the evidence presented, if
properly substantiated, is sufficient to raise a legitimate question that the
defendant's actions or omissions were a departure from the appropriate standard
of care as charged in the plaintiff's complaint and if the defendant's actions
or omissions proximately caused the plaintiff's alleged injury. A panel shall issue its written decision
within 30 days of the hearing. The decision shall answer the following
questions: 1. whether there is a reasonable medical or professional probability
that the acts or omissions complained of or found by the panel to exist
constitute a departure from the applicable standard of care by the health care
provider charged with that care; and 2. whether there is a reasonable medical
or professional probability that the acts or omissions complained or as found
by the panel.
The panel's
decision, signed by the panel members, shall be served by certified mail on the
court and the parties within 5 days of the date of issuance of the
decision. Unless otherwise agreed by the
parties, the costs of the hearing and reasonable expenses of review shall be
divided equally between the parties. A
party may reject the decision of the panel issued for any reason. The party rejecting the decision shall file a
notice of rejection with the chair and the circuit administrative judge of the
circuit in which the action was filed or the United States District Court and
serve the notice on the other party within 30 days of receiving the decision.
On receiving the notice of rejection, the court shall reinstate the complaint
to the active trial list and lift the suspension of time limits. Both parties
may accept the decision of the panel issued.
If both parties accept the decision, both parties shall move to dismiss
the complaint filed in court within 30 days of receiving the decision. The panel's decision is admissible as
evidence in a subsequent trial. An
individual who serves as a member of a panel under this section shall have the
immunity from suit.
Effective
Date: June 1, 2005
For more
information, please contact: Heather
Barthel
HB1193 Health Care Malpractice - Medical Experts - Maintaining or
Defending Claim or Action in Bad Faith or Without Substantial Justification
This bill amends §3-2A-04 of the Courts and
Judicial Proceedings Article. It
provides that a claim or action shall be dismissed if a certificate of a
qualified expert is not filed with 90 days from the date of the complaint and
that the expert's opinion is expressed to a reasonable degree of medical
certainty, is scientifically valid and has been tested for validity, has been
objectively examined for error, and has been subject to peer review. It also provides that a claim or action filed
may be adjudicated in favor of the claimant or plaintiff on the issue of
liability, if the defendant disputes liability and fails to file, within 120
days from the date the claimant or plaintiff served the certificate of a
qualified expert on the defendant, a certificate of a qualified expert
attesting to compliance with standards of care, or that the departure from
standards of care is not the proximate cause of the alleged injury and that the
expert's opinion is expressed to a reasonable degree of medical certainty, is
scientifically valid and has been tested for validity, has been objectively
examined for error, and has been subject to peer review.
If a panel
chairman or court finds that the conduct of a party in maintaining or defending
a proceeding was in bad faith or without substantial justification, the panel
chairman or court shall order the offending party or the attorney advising the
conduct or both to pay to the adverse party the costs of the proceeding and the
reasonable expenses, including reasonable attorney's fees, incurred by the
adverse party in opposing it. If a
court, in a claim or action subject, determines that scientific, technical, or
other specialized knowledge will assist the trier of fact in understanding the
evidence or determining a fact in issue, a witness determined by the court to
be qualified as an expert by knowledge, skill, experience, training, or
education may testify concerning the evidence or fact in issue in the form of an
opinion or otherwise only if the following criteria are met: the testimony is
based on sufficient facts or data; the testimony is the product of reliable
principles and methods; the witness has applied the principles and methods
reliably to the facts of the case; and if the expert's testimony is in the form
of an opinion, the opinion is expressed to a reasonable degree of medical
certainty, is scientifically valid and has been tested for validity, has been
objectively examined for error, and has been subject to peer review.
The court,
on its own motion or a motion by a party, may hear evidence, including
testimony from the proposed expert witness.
If the court decides to hear evidence, the court shall hear the evidence
out of the presence of a jury before deciding whether the testimony is
admissible or inadmissible. The bill
adds testifying as or offering an opinion as a medical expert witness in the
course of a legal proceeding to the definition of “practice
medicine.” A physician licensed by
and residing in another jurisdiction, while testifying in a civil action or
attesting to compliance with or departure from standards of care for purposes
of a certificate of a qualified expert is subject to the rules, regulations,
and orders of the Board of Physicians.
Subject to
the hearing provisions of this subtitle and appropriate peer review, the Board,
on the affirmative vote of a majority of the quorum, may issue findings and a
report concerning an individual who falsely testifies or falsely offers an
opinion as a medical expert regarding medical diagnosis, healing, treatment, or
surgery.
Effective
Date: October 1, 2005
For more
information, please contact: Heather
Barthel
HB1200 Civil
Proceedings and Medical Injury Claims - Venue, Witnesses, and Evidence
This bill adds to §6-201 of the Courts and Judicial
Proceedings Article stating that the venue of a claim, suit, or action filed
must be in the county where the cause of action arose. The bill adds to §9-124 that in a civil
action, if a court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact in understanding the evidence or
determining a fact in issue, a witness determined by the court to be qualified
as an expert by knowledge, skill, experience, training, or education may
testify concerning the evidence or fact in issue in the form of an opinion or
otherwise only if the testimony is based on sufficient facts or data, the
testimony is the product of reliable principles and methods, and the witness
has applied the principles and methods reliably to the facts of the case.
If a court
considers it necessary or on motion by a party, the court may, as a preliminary
matter and out of the presence of a jury, hear evidence, including testimony
from the proposed expert witness. The
bill protects an apology made by or on behalf of a health care provider and
deletes an admission of liability or fault as admissible as evidence. The bill adds testifying as or offering an
opinion as a medical expert witness in the course of a legal proceeding to the
definition of the “practice medicine.” A physician licensed by and residing in
another jurisdiction, while testifying in a civil action or attesting to
compliance with or departures from standards of care for purposes of a
certificate of qualified expert, is subject to the rules, regulations, and
orders of the Board of Physicians.
Subject to
the hearing provisions of this subtitle and appropriate peer review, the Board,
on the affirmative vote of a majority of the quorum, may issue findings and a
report concerning an individual who falsely testifies or falsely offers an
opinion as a medical expert witness regarding medical diagnosis, healing,
treatment, or surgery.
HB1200 Civil
Proceedings and Medical Injury Claims - Venue, Witnesses, and Evidence
This bill adds to §6-201 of the Courts and
Judicial Proceedings Article stating that the venue of a claim, suit, or action
filed must be in the county where the cause of action arose. The bill adds to §9-124 that in a civil
action, if a court determines that scientific, technical, or other specialized
knowledge will assist the trier of fact in understanding the evidence or
determining a fact in issue, a witness determined by the court to be qualified
as an expert by knowledge, skill, experience, training, or education may testify
concerning the evidence or fact in issue in the form of an opinion or otherwise
only if the testimony is based on sufficient facts or data, the testimony is
the product of reliable principles and methods, and the witness has applied the
principles and methods reliably to the facts of the case.
If a court
considers it necessary or on motion by a party, the court may, as a preliminary
matter and out of the presence of a jury, hear evidence, including testimony
from the proposed expert witness. The
bill protects an apology made by or on behalf of a health care provider and
deletes an admission of liability or fault as admissible as evidence. The bill adds testifying as or offering an
opinion as a medical expert witness in the course of a legal proceeding to the
definition of the “practice medicine.” A physician licensed by and residing in
another jurisdiction, while testifying in a civil action or attesting to
compliance with or departures from standards of care for purposes of a
certificate of qualified expert, is subject to the rules, regulations, and
orders of the Board of Physicians.
Subject to
the hearing provisions of this subtitle and appropriate peer review, the Board,
on the affirmative vote of a majority of the quorum, may issue findings and a
report concerning an individual who falsely testifies or falsely offers an
opinion as a medical expert witness regarding medical diagnosis, healing,
treatment, or surgery.
Effective
Date: June 1, 2005
For more
information, please contact: Heather
Barthel
HB1212 Courts - Medical Injury Claims - Damages
This bill amends §3-2A-06 of the Courts &
Judicial Proceedings Article. It states
that on a motion by a party, damages for past medical expenses in a verdict
shall be reduced on the ground that the claimant will be paid, reimbursed, or
indemnified under statute, insurance, or contract for all or part of the
damages assessed. The court shall hold a
hearing and receive evidence on the motion.
If the court finds from the evidence that the damages for past medical
expenses have been or will be paid, reimbursed, or indemnified the court shall
modify the damages for the past medical expenses in the verdict.The verdict for
past or future loss of earnings shall exclude any amount for federal, state, or
local income taxes or payroll taxes, including Social Security and Medicare,
that the plaintiff would have paid on these earnings, determined at the tax
rates in effect for the plaintiff at the time the verdict is entered. There is
a rebuttable presumption that the Medicare reimbursement rates in effect on the
date of the verdict for the locality in which the care is to be provided,
adjusted for inflation, are fair and reasonable amounts for future medical
expenses.
If on the
date of the verdict, the Medicare waiver under § 1814(b) of the Federal Social
Security Act is in effect, there is a rebuttable presumption that the rates
approved by the Health Services Cost Review Commission (HSCRC) in effect on the
date of the verdict for the hospital facility in which services are to be
provided, adjusted for inflation as provided in the annual rate updates
approved by the HSCRC, are fair and reasonable amounts for future medical
expenses. There is a rebuttable presumption that the statewide average payment
rate for the Medical Assistance Program determined by the Department of Health
and Mental Hygiene in effect on the date of the verdict, adjusted for
inflation, and is a fair and reasonable amount for future medical expenses for
nursing home facilities.
A verdict for
future medical expenses for which there is no Medicare reimbursement rate,
hospital facility rate, or statewide average payment rate shall be based on
actual cost on the date of the verdict, adjusted for inflation. Future medical expenses shall be adjusted for
inflation for the expenditure category of the Consumer Price Index published by
the Bureau Of Labor Statistics to which the expense applies. The adjustment for
inflation shall be based on the average rate of inflation for the 5 years
immediately preceding the award or verdict.
A defendant
shall pay an award or verdict for noneconomic damages and future economic
damages of $250,000 or less as a lump sum with payments for past economic
damages. For an award or verdict for
noneconomic damages and future economic damages of more than $250,000, the
arbitration panel or court shall:
- Order the defendant to pay
$100,000 of the future economic damages and noneconomic damages as a lump
sum with past economic damages,
- Order the defendant to pay
future economic damages and noneconomic damages of more than $100,000
periodically to the claimant or plaintiff in the form of an annuity, and
- Enter as the amount of the
award or verdict for future economic damages and noneconomic damages of
more than $100,000, the purchase price of an annuity purchased by the
defendant or the defendant's insurer.
To fully
fund future economic damages and noneconomic damages in excess of $250,000, the
defendant or the defendant's insurer shall purchase an annuity for the amount
of the future economic damages and noneconomic damages less the $100,000 paid,
which produces periodic payments for:
- Future medical expenses and
noneconomic damages, divided by the lesser of the number of years for
which the claimant or plaintiff will need medical treatment or the life
expectancy of the claimant or plaintiff, and
- Future loss of earnings,
divided by the lesser of the number of years for which the claimant or
plaintiff will suffer a loss of earnings or the working life of the
claimant or plaintiff. The periodic
payments for future loss of earnings may not commence until the
commencement date of the working life of the claimant or plaintiff. The life expectancy of the claimant or
plaintiff, the working life of the claimant or plaintiff, the commencement
date of the working life of the claimant or plaintiff, or the duration of
the medical expenses and lost wages shall be those asserted by the
claimant or plaintiff to the arbitration panel or at trial in support of
the claim for future economic damages. In an action subject to this
subtitle, the defendant may introduce evidence of the life expectancy of
the claimant or plaintiff, the working life of the claimant or plaintiff,
and the commencement of the working life of the claimant or plaintiff, or the
duration of the medical expenses and lost wages.
For a
survival or wrongful death action, noneconomic damages shall be paid at the
same time as past economic damages and apply only to future economic damages
exceeding $250,000.The defendant or the defendant's insurer may purchase
multiple annuities if, in the aggregate, the annuities fully fund the portion
of the award or verdict for future economic damages and noneconomic damages in
excess of $100,000.
An annuity
purchased shall have a guaranteed term equal to the lesser of the life
expectancy of the claimant or plaintiff as asserted by the claimant or
plaintiff to the arbitration panel or at trial in support of the claim for
future economic damages or for future medical expenses, the number of years for
which the claimant or plaintiff will need medical treatment and for future loss
of earnings, and the number of years for which the claimant or plaintiff will
suffer a loss of earnings.
The
defendant's insurer shall be obligated to purchase an annuity under this
section only to the extent of the coverage the insurer is obligated to provide
under the insurance policy issued to the defendant. The defendant or the defendant's insurer
shall purchase an annuity from an insurer that has one of the following ratings
from two of the following rating organizations:
- A.M. Best Company: A++ or A+
- Fitch Inc.: AAA, AA+, AA, or
AA-
- Moody's Investors Service
Claims Paying Rating: AAA, AA1, AA2, or AA3
- Standard & Poor's
Corporation Insurer Claims Paying Rating: AAA, AA+, AA, or AA-
- If agreed to by the claimant or
plaintiff, a rating from another national rating organization if the
rating and the rating organization are found to be appropriate by the
court.
The
arbitration panel or court shall approve an annuity purchased by the defendant
or the defendant's insurer if the annuity meets the requirements of this
subsection and will at all times be fully secured by assets held in a validly
established separate account that may not be chargeable with liabilities
arising out of any other business that the insurer may conduct or in which the
claimant or plaintiff has a perfected security interest.
The
purchase of an annuity by the defendant or the defendant's insurer in accordance
with the terms of this section shall be deemed to have fully satisfied the
portion of the award or verdict for future economic damages and noneconomic
damages in excess of $100,000. The
provisions of this article do not apply to an award or verdict for damages
under this subtitle in which the cause of action arises on or after June 1,
2005.
The bill
also provides that an individual is not civilly liable for any act or omission
in providing assistance or medical aid to a victim in a medical facility, if
the victim initially visited the emergency department of a medical facility
requesting examination or treatment for an emergency medical condition, the
individual is a health care provider, the act or omission is not one of gross
negligence, the timing and type of diagnosis and treatment are not affected by
financial considerations, and the individual is acting in full compliance with
the Federal Emergency Medical Treatment And Active Labor Act (EMTALA), and the
regulations adopted under that Act.
The bill
also establishes a Task Force on Administrative Compensation for Patient Injury
Claims composed of the following members:
- one member of the Senate,
appointed by the President of the Senate;
- one member of the House of
Delegates, appointed by the Speaker of the House;
- the Attorney General, or the
Attorney General's designee;
- a circuit court judge,
appointed by the Chief Judge of the Court of Appeals;
- the Secretary of the Department
of Health and Mental Hygiene, or the Secretary's designee;
- the Chairman of the State Board
of Physicians, or the Chairman's designee;
- the State Insurance
Commissioner, or the Commissioner's designee;
- the Chairman of the State
Workers' Compensation Commission, or the Chairman's designee; and the
following members appointed by the Governor, in consultation with the
President of the Senate and the Speaker of the House:
1. one representative of the Medical
and Chirurgical Faculty of
2. one representative of the Medical
Mutual Liability Insurance Society of Maryland;
3. one representative of the Maryland
Hospital Association;
4. one representative of the Maryland
State Bar Association;
5. one representative of the Maryland
Defense Council, Inc.;
6. one representative of the Maryland
Trial Lawyers Association; and
7. one representative of the health
insurance industry.
The Task
Force shall study the feasibility of developing a statewide administrative
compensation system, based on a workers' compensation model that would
compensate medically injured patients administratively instead of through the
courts by creating a quasi-governmental entity that would be the sole remedy
for injured patients. The Task Force
shall gather and analyze data on the cost of compensating medical injuries
through the existing tort system and compare the cost of an administrative
compensation system with that of the existing tort system and investigate the
financial, policy, and legal issues critical to the design of an administrative
compensation system. It shall also study
other medical administrative compensation systems such as in Sweden, New
Zealand, and the states of Virginia and Florida, and other medical
administrative compensation pilot programs as proposed in Utah, Colorado, and
Massachusetts; and study the feasibility of developing a pilot program, based
on a workers' compensation model, that would be conducted in a selected
community-based hospital and a hospital affiliated with an academic
institution, with a second community-based hospital and second hospital
affiliated with an academic institution serving as the control group. The pilot would be limited to a high-risk
medical specialty such as the practice of obstetrics, would use an
administrative tribunal to hear medical injury claims instead of a jury, with the
tribunal's decision being the exclusive remedy for the claim, and with the
claimant having a limited right of appeal of the tribunal's decision to an
administrative law judge, and would compensate injured patients according to a
schedule of damages for specific injuries.The Task Force shall report its
findings and recommendations to the Governor and the General Assembly, on or
before June 30, 2007. The Task Force in
effect for 2 years.
Effective
Date: June 1, 2005
For more
information, please contact: Heather
Barthel
HB1215 Courts - Medical Injury Recoveries - Attorney's Fees
This bill adds a new §3-2A-07A to the Court and
Judicial Proceedings Article. In this
section, “recovered” means the net sum recovered by the claimant
after deducting any disbursements or costs incurred in connection with
prosecution or settlement of the claim.
The attorney's office-overhead costs or charges are not deductible
disbursements or costs. An attorney may not contract for or collect a
contingency fee for representing a person having a claim against a health care
provider for damages due to a medical injury occurring on or after June 1,
2005, in excess of the following limits:
- 40% of the first $100,000
recovered,
- 33 1/3% of the next $100,000
recovered,
- 25% of the next $100,000
recovered, and
- 15% of any amount recovered in
excess of $300,000.
The
limitations apply regardless of whether the amount recovered is by settlement,
award, or verdict or the person for whom the amount is recovered is a
responsible adult, a minor, or a person who is mentally incompetent. A division
of fees between an attorney who contracts for or collects a contingency fee and
a referring attorney may be made only if the attorneys are in the same firm or
the division is in proportion to the services performed by each attorney, the
claimant is advised in writing of and does not object to the participation of
the referring attorney, the total undivided fee is within the limits
established by this section, and the claimant's attorney files with the
director as a public record within 90 days from the date of the complaint, all
written communications or agreements relating to the division of fees,
including all written communications or agreements between the attorneys or
with the claimant and before the fee is divided, written certification
describing in detail the services performed by each attorney, the amount of
time expended on the claim by each attorney, and the fee to be paid to each
attorney. An attorney who violates this
section is subject to disbarment, suspension, or other disciplinary action.
Effective
Date: June 1, 2005
For more
information, please contact: Heather
Barthel
HB1230 Courts -
Health Care Injuries - Standard of Proof for Liability for Emergency Care
Unless the factual findings of an act or
omission are supported by clear and convincing evidence, an individual is not
civilly liable for any act or omission in providing assistance or medical aid
to a victim in a medical facility, if the victim initially visited the medical
facility requesting examination or treatment for an emergency medical
condition, the individual is a health care provider, the treatment is given to
the patient before the patient's condition is stabilized, the timing and type
of diagnosis and treatment are not affected by financial considerations, and
the individual is acting in full compliance with the Federal Emergency Medical
Treatment And Active Labor Act (EMTALA) and the regulations adopted under that
Act.
Effective
Date: June 1, 2005
For more
information, please contact: Heather Barthel
HB1001 Emergency Medical Services Board - Commercial Air Ambulance Service
This bill adds § 13-515.1 to the Education
Article –
The
regulations shall specify that when aeromedical transport is the indicated
method for transporting an individual, a licensed commercial air ambulance
service may collect an amount less than or equal to the amount the individual's
insurance carrier has agreed to reimburse for aeromedical transport; the
individual transported may submit an insurance claim for an amount less than or
equal to the amount the individual's insurance carrier has agreed to reimburse
for aeromedical transport; and a licensed commercial air ambulance service may
not discriminate against the individual based on the individual's insurance or
the amount the individual's insurance company has agreed to reimburse for
aeromedical transport.
Effective
Date: October 1, 2005
For more
information, please contact: Heather
Barthel
HB1085 Uninsured Employers'
Fund - Liability of Corporate Officers and Limited Liability Company Members
This bill adds to §§9-1003, 9-1005, and 9-1007
of the Labor and Employment Article that states notwithstanding any other
provision of law, if an uninsured employer is a corporation and the assets of
which are not sufficient to satisfy an award, any officer of the corporation
who has responsibility for the general management of the corporation is jointly
and severally liable for payment of the award.
Notwithstanding
any other provision of law, if an uninsured employer is a limited liability
company and the assets of which are not sufficient to satisfy an award, any
member of the company who has responsibility for the general management of the
limited liability company is jointly and severally liable for payment of the
award.
Effective
Date: October 1, 2005
For more
information, please contact: Heather
Barthel
HB1163 Labor and
Employment - Subsequent Injury Fund - Renaming
This bill renames the Subsequent Injury Fund to
the Prior Injury Fund throughout Title 9 of the Labor and Employment Article.
Effective
Date: October 1, 2005
For more
information, please contact: Heather
Barthel
HB1289 Workers' Compensation - Evaluation of Permanent Impairments - Social
Workers
This bill amends § 9-721 of the Labor and
Employment Article. This subsection
applies only to a licensed certified social worker-clinical. For a mental, emotional, or behavioral
disorder, a licensed certified social worker-clinical, within the specialized
knowledge and scope of practice of a social worker-clinical, may evaluate a
permanent impairment and report the evaluation to the Commission in accordance
with the regulations of the Commission.
Effective
Date: October 1, 2005
For more
information, please contact: Heather
Barthel
STAFF CONTACT INFORMATION
Please contact Government Relations if you have concerns or would like
additional information. Your input assists us greatly in evaluating and
formulating the position of Johns Hopkins on all legislation.
Legislative Session Office
410-269-0057
fax 410-269-1574
Heather Barthel hbarthel@jhmi.edu
Mickey Geisler mgeisler@jhu.edu
Matt Greenwood gcpa2@jhu.edu
Sheila Higdon shigdon@jhmi.edu
Jim Kaufman jkaufma@jhmi.edu
John Safapour ssafapou@jhsph.edu
Bret Schreiber bschreiber@jhu.edu
Cathy Ximenez cximenez@jhmi.edu
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© 2005 The Johns
Office of Government, Community and Public Affairs.
Legislative Hotline is a service of Johns Hopkins Government Affairs.
© 2005 The Johns
Office of Government, Community and Public Affairs.