CO ACEP From the Capitol – February 2024

Dan Jablan
CO ACEP Lobbyist

Suzanne Hamilton
Executive Director

 

 

 

 

 

 

 

 

 

 

To say you need to buckle down and hold on for this Legislative Session is an understatement, to begin, while not unexpected, the House of Representatives was forced to halt activity less than 30 minutes into opening day, as groups of pro-Palestinian protestors shouted from the House gallery and unfurled flags. Activists also shut down the House during the November special session. Protestors say they will continue their demonstrations throughout the session.

One controversial legislator has been frozen out of office and committees. Since her November 2022 election to House District 6, Elisabeth Epps (D-Denver) has repeatedly bucked her own leadership, from filibustering a Democrat bill to filing a lawsuit against legislative leadership. During the November 2023 special session, she sat in the House gallery with pro-Palestinian protestors, yelled “fascists” to her colleagues, and refused to clear the balcony when ordered to do so.

Historically, we have had 4 caucuses in the Colorado General Assembly.  Republican and Democratic caucuses in each chamber.  In this 2024 session, we will need to navigate upwards of 10 caucuses.  The House republicans have the MAGA republicans, the conservative republicans, and moderate.  On the Democratic side of the isle there are moderates, liberals, progressives, socialists, and those from both sides of the aisle that just do not fit into any caucus.

It is this wild political atmosphere, coupled with it being an election year that we must navigate numerous legislative proposals with significant impacts on emergency medicine physicians.  There are bills already introduced and some still anticipated ranging from those that continue the state’s work on battling the opioid epidemic to the bill prohibiting the use of the term “excited delirium” in training law enforcement personnel, first responders as well as one increasing patient access to and reducing the waiting period and eliminating residency requirements persons choosing to end their lives through medical aid-in dying.

We should highlight a few proposals of directly impacting your practice. First, CO ACEP is pursuing a bill which will allow for the batching of out-of-network claims for arbitration as is allowed for in the federal No Surprises Act.  This will decrease costs for EM groups while streamlining the arbitrations process for both physician and insurance carriers while not increasing costs.

A legislative interim committee has recommended HB24-1079 which prohibits law enforcement personnel from detaining an individual in a jail if that individual is experiencing a behavioral health disorder. Instead, that individual must be taken to an approved treatment facility or an ED depending on availability.  The bill also requires annual reporting from law enforcement, emergency departments and treatment facilities.

With the many expanding scopes of practice by APPs, there is a need for patients to understand the credentials of their health care provider. SB24-082 will require health care providers to disclose their credentials without abbreviations or acronyms in writing when gaining informed consent and by a photo identification badge (unless precluded by isolation or sterilization protocols.)

And a legislative session would not be complete without a trial lawyer battle.  This year that battle will carry over onto the 2024 November ballot.  In mid-January the Colorado Trial Lawyers Association (CTLA) filed two ballot initiatives.  The Colorado Title Board will hold a hearing to determine if the initiatives qualify to appear on the November 2024 ballot.

Initiative #149 will pierce peer review granting patients and their lawyers’ access to all medical information or medical communication made or received by a health-care institution or health-care professional if it related to an adverse medical incident that could have caused injury or death to the patient.  This is an expansion to rights currently awarded to patients in state law.

Initiative #150 will eliminate caps not only on medical liability (as awarded under the Colorado Health Care Availability Act) but industry wide.  It will award unlimited damages in any case where the lawyers claim catastrophic injury or wrongful death.  The only exclusion to these unlimited damages for claims against ski area operators, claims against sellers or servers of alcoholic beverages, or claims brought pursuant to the Colorado Governmental Immunity Act.

These ballot initiatives, if passed, will have a catastrophic impact on Colorado’s stable medical-legal environment.  Medical liability insurance premiums could skyrocket with high jury awards and an increase in the volume of suits.

Your CO ACEP leadership has taken proactive steps to fight to ensure Colorado remains a stable place to practice medicine.  We have joined and are active with the Coloradans Protecting Patient Access (CPPA).  A coalition formed just for this purpose.  In response to the CLTA initiative filings, two additional ballot initiatives have been filed. The first initiative caps contingency fees in cases of personal injury and wrongful death at no more than 25%. Contingency fees are based on a percentage, set by lawyers, of the money damages awarded to the client. According to the Colorado Bar Association, current contingency guidelines do not include a recommended percentage, allowing lawyers to determine whatever fee they see fit.

The 25% cap takes the guesswork out of contingency cases and guarantees that most of the money awarded in verdicts goes directly to the clients. The second initiative requires lawyers in personal injury and wrongful death cases to proactively and transparently disclose litigation costs to be borne by clients in civil cases. Like the contingency fees, the CBA rules of conduct only offer vague guidance regarding what fees lawyers can charge clients, leaving impacted clients open to hidden fees and surprise billing at the end of their cases.

The disclosure initiative offers a legal “sunshine law,” forcing lawyers to provide a written estimate of fees at the outset of an engagement, so that clients are not surprised to be billed for these items after a favorable verdict.

Both measures ensure that those impacted by negligence or wrongful death cases are compensated fairly, rather than attorneys taking inflated contingency fees and bills with added hidden expenses. “Attorneys shouldn’t exploit the process — it should be about what’s best for the injured party” said Gil Rudawsky,

In addition to this battle on the ballot, legislation is expected to be introduced which will call for modest increases to non-economic damage caps in medical malpractice cases.  This approach will ensure injured patients are cared for while providing predictable increases, which allows for actuarially sound insurance premiums. These initiatives protect our communities and individuals against inflated lawyer fees and hidden expenses.

It will likely be a long 120-day legislative session and a long, slow campaign leading up to the 2024 elections.  We encourage you to engage in this process.  Your ability to maintain a successful practice in Colorado is at risk.  If you are unable to give your time to the cause, please consider donating to the CO ACEP Small Donor Committee.  This committee was formed to maximize CO ACEP’s voice at the Capitol.  A $50 contribution is all it takes to make an impact.