The 439th Legislative Session of the Maryland General Assembly adjourned on April 8, 2019, on a sorrowful note with the passing of the Honorable Michael Erin Busch, Maryland’s longest-serving Speaker of the House of Delegates. The Maryland General Assembly will reconvene on May 1, 2019, in a Special Session to name a new Speaker of the House.
As for the 2019 session, itself, members of the Maryland General Assembly, which saw 17 new Senators and 43 new Delegates, introduced 2,480 bills, 16 Joint Resolutions, and 2 House Simple Resolutions in 2019. The Maryland Psychiatric Society (MPS) was very engaged once again this session. MPS reviewed 85 pieces of legislation and actively worked 56 of those bills. The ensuing synopsis highlights some of the proposed legislation MPS worked this session.
Criminal Penalties for Failing to Report Child Abuse or Neglect
Under current law, health care practitioners, police officers, educators, and human service workers who are acting in a professional capacity and have reason to believe that a child has been subjected to abuse or neglect must notify the local department of social services or the appropriate law enforcement agency. These individuals are referred to as “mandatory reporters.” Senate Bill 568/House Bill 787, sponsored by Senator Susan Lee (D – Montgomery County) and Delegate Vanessa Atterbeary (D – Howard County), establishes criminal penalties of up to three years in jail and/or $10,000 fine for a mandatory reporter who knowingly fails to provide a required notice or make a required report of suspected child abuse or neglect if the mandatory reporter has actual knowledge of the abuse or neglect. Proponents of the bill highlighted the fact that Maryland is an outlier on this issue as 48 States and the District of Columbia impose penalties on mandatory reporters who knowingly or willfully fail to report suspected child abuse or neglect. Wyoming is the only other state that does not. Proponents believe that demanding greater accountability from mandatory reporters through exposure to criminal penalties will provide additional protections to children who are victims of abuse and neglect. Opponents including MPS, on the other hand, argued that health care practitioners and educators who are currently required to report instances of child abuse and/or neglect as a condition of their employment do not fail to do so as a matter of malpractice, criminal intent, or depraved indifference. Instead, instances of failure to report arise when a health care practitioner or an educator is not provided the requisite information necessary to determine if and when child abuse or neglect has occurred. For opponents, the bill represented the criminalization of professional judgment. Additionally, opponents argued that practitioners stand to lose their license to practice medicine as well as incur hefty fines if they knowingly fail to report child abuse. Thus, individuals who are now subject to mandatory reporting requirements will not fail to report in cases where they are aware that an individual has been abused or is in danger of being abused because the practitioner’s livelihood, which took years of education and expense to earn, is indeed at stake. In the end and in the spirit of compromise, the potential for criminal penalties arises only when a mandatory reporter has actual knowledge of child abuse or neglect and fails to report as opposed to inferred knowledge from the circumstances or willful blindness thresholds that were initially in the bill. The bill takes effect on October 1, 2019.
Prohibition on Electroconvulsive Therapy for Minors
Senator Joanne Benson (D – Prince George’s County) introduced Senate Bill 302 that would have prohibited the use of “electroconvulsive therapy” (ECT) on minors. If enacted, a practitioner of ECT could have received a felony conviction, a maximum of 2 years imprisonment and/or a fine of $100,000. In addition, an individual who received ECT in violation of the bill’s prohibition may recover civil damages from the person who performed the therapy and the facility where the therapy was performed. Senator Benson argued that California, Colorado, Tennessee, and Texas have already enacted laws prohibiting the use of ECT for children of various ages and it’s time for Maryland to join those states in “the fight to protect our children’s health.” The groups supporting the bill included the Citizens Commission on Human Rights and the Maryland Public Defenders Office. The Maryland Department of Health simply provided a letter of information on the bill. MPS and Dr. Irvnig Reti of JHU filed the only opposition on the bill. MPS argued that ECT is reserved for adolescents with “treatment-resistant” conditions. MPS also noted that medical literature supports ECT as being an effective treatment in adolescents. Finally, MPS stressed that the lack of access to ECT as a treatment option for adolescents would be harmful and potentially fatal. Ultimately, the bill did not receive a vote from the Senate Finance Committee, which Senator Benson is a member. Senator Benson, however, appears committed to reintroducing this bill next session.
Medical Cannabis and Opioid Use Disorder
Senator Bobby Zirkin (D – Baltimore County) and Delegate Cheryl Glenn (D – Baltimore City) introduced Senate Bill 893/House Bill 33, encouraging the Maryland Medical Cannabis Commission to approve certifying provider applications that include the treatment for an opioid use disorder (OUD). The Senate Judicial Proceedings Committee amended the bill by adding language to limit approval to patients who (1) have tried all other traditional treatments and were unsuccessful and (2) will use the medical cannabis in conjunction with conventional therapies. The amended version of the bill passed successfully out of the Senate but stalled along with HB 33 in the House Health and Government Operations Committee. MPS opposed this bill as due to a lack of evidence for the effectiveness of medical cannabis in treating OUD and because substituting unproven cannabis for life-saving FDA-approved OUD drugs will likely result in preventable deaths.
Medical Cannabis – Certifying Providers
House Bill 18, introduced by Delegate Cheryl Glenn, would have authorized physician assistants to be “certifying providers” under the State’s medical cannabis program. This designation would have afforded physicians assistants the legal right to prescribe medical cannabis. As originally drafted and opposed by MPS, the bill would have also allowed physical therapists and psychologists to be deemed certifying providers for medical cannabis as well. For MPS, designating a psychologist as a certifying provider was illogical as psychologists are legally prohibited from prescribing medications; if medical cannabis is truly medicine, it should be treated no differently. MPS convinced members of the House Health and Government Operations Committee that psychologists have no training in pharmacology especially psychopharmacology or pharmacotherapy for a highly psychoactive substance that has profound effects, many unknown, on the brain. These arguments led to the limited version of the bill that passed both the House and the Senate but then failed to make it back to the House before midnight on April 8th to be enrolled and officially passed. With the legislature’s desire to expand the medical cannabis industry, MPS should expect to see this bill again next session.
Physician Assisted Suicide
After taking the year before the election off, the End-of-Life Options Act, a bill to legalize physician assisted suicide in Maryland, was once again presented to the legislature by Senator Will Smith (D – Montgomery County) and Delegate Shane Pendergrass (D – Howard County). If passed, Maryland would have joined seven other states – California, Colorado, Hawaii, Montana, Oregon, Vermont and Washington – and the District of Columbia in permitting medical aid in dying. Senate Bill 311/House Bill 399 as introduced would have allowed an attending physician licensed to practice medicine in the State of Maryland and who follows procedural safeguards to prescribe self-administered medication to a qualified individual to bring about the individual’s death. The bill defined the medical practice of prescribing such medication as “aid in dying.” The bill also defined a “qualified individual” as an adult who (1) has the capacity to make medical decisions; (2) is a resident of the State; (3) has a terminal illness with a prognosis of death within six months; and (4) has the ability to self-administer medications. Proponents for the bill believe that this option allows individuals to have autonomy over their lives when faced with an uncertain and often painful ending to their lives. Furthermore, proponents think that the medications used are efficacious and almost always allow for the peaceful death of the suffering person. Beyond the traditional moral and faith-based arguments advanced against the legislation, many opponents argued that the bill lacked adequate protections for people with mental illness or people who may be manipulated into asking for the drugs either by those who do not want to carry the burden the patient presents or from those who stand to gain a financial benefit from the patient’s death. The bill passed the House of Delegates unamended and, in a posture, favored by proponents. However, the proposal met significantly more resistance in the Senate’s Judicial Proceedings Committee, which was poised only to advance the bill with the inclusion of additional safeguards. The Senate Judicial Proceedings Committee sent the legislation to the Senate floor with extensive amendments. Ultimately, the End-of-Life Options Act failed in the Senate after a rare and dramatic deadlock vote on the second reader that saw one Senator refuse to cast the deciding ballot.
Decriminalization of Attempted Suicide
The common law crime of attempted suicide has been charged 10 times at the District Court level statewide over the past five years; convictions are rarely obtained in these cases. In February 2018, however, a Caroline County man was convicted of attempted suicide and sentenced to a three-year suspended jail sentence and two years of probation. According to the Caroline County State’s Attorney’s Office, the case was an attempt to get the man into mental health treatment. This case shocked the conscience of many, including Senator Jeff Waldstriecher and Delegate David Moon (both D – Montgomery County), who introduced and passed Senate Bill 935/House Bill 77 as a response to what they saw as “criminalizing mental illness”. Beginning October 1, 2019, the act of attempting to commit suicide may not form the basis of a criminal charge against the person who attempted to commit suicide. The person who attempts suicide may still be charged with other crime(s) that may arise during his/her attempt. MPS supported the bill, arguing that this common law crime has not and will not prevent suicide or suicide attempts. In addition, MPS further argued that convicting a person of the crime of attempted suicide could further destabilize that person’s life and mental health as such a conviction will not only further stigmatize the person’s actions but also make it harder for him/her to find gainful employment, safe and affordable housing, or even to seek meaningful mental health services.
Nurse Practitioners as Medical Directors for Outpatient Mental Health Centers
In Maryland, an outpatient mental health center as a condition of licensure must employ a medical director who (1) is a psychiatrist; (2) has overall responsibility for clinical services; and (3) is on-site for at least 20 hours per week. Additionally, an outpatient mental health center must provide regularly scheduled outpatient mental health treatment services in a community-based setting, including, at a minimum, medication management and individual, group, and family therapy. Citing the shortage of psychiatrists, especially in rural areas, Senator Addie Eckhardt (R – Caroline, Dorchester, Talbot, & Wicomico) and Delegate Kevin Hornberger (R – Cecil County), passed Senate Bill 944/House Bill 1122, which requires the COMAR regulations governing behavioral health programs to include a provision authorizing a psychiatric nurse practitioner to serve as a medical director of an accredited outpatient mental health center, either onsite or through the use of telehealth. MPS and Medchi both opposed this legislation to no avail. The bill takes effect on October 1, 2019.
Medical Directors of Outpatient Mental Health Presence Though Telehealth
Senator Addie Eckardt and Delegate Sheree Sample-Hughes (D – Dorchester & Wicomico) introduced Senate Bill 178/House Bill 570, which requires regulations governing behavioral health programs to include a provision authorizing an outpatient mental health center to satisfy any regulatory requirement that the medical director, a psychiatrist under current law until October 1st, be on site through the use of telehealth by the director. Unlike Senate Bill 944/House Bill 1122, MPS supported this legislation as the proper way to address the shortages of physicians in Maryland, particularly on the Eastern Shore and in Western Maryland. This bill also takes effect on October 1, 2019.
Behavioral Health Disorders – Short-Term Insurance
The Governor has already signed Senate Bill 28, introduced at the request of the Maryland Insurance Administration (MIA), which alters the definition of “health benefit plan” to ensure that the State’s mental health parity law applies to short-term limited duration insurance. Both MPS and the American Psychiatric Association supported the bill because short-term disability plans should cover a robust set of mental health and substance use disorder benefits, while also meeting the requirements of Mental Health Parity and Addiction Equity Act (MHPAEA). MPS noted in its written testimony, “The General Assembly took an important step last session by limiting the likelihood that junk health insurance plans would be purchased by consumers confusing them for legitimate policies with a full array of benefits. Now, the General Assembly must take the next step as presented in SB 28 to ensure that even if consumers do purchase short-term limited duration insurance plans, those plans will have the same level of mental health and substance use disorder benefits as any other plan sold in the state. “SB 28 will become effective on October 1, 2019.
American Society of Addiction Medicine Treatment Criteria
Senate Bill 631/House Bill 599, introduced by freshman Senator Malcolm Augustine (D – Prince George’s County) and Delegate Ariana Kelly (D – Montgomery County), requires insurers, nonprofit health service plans, and health maintenance organizations to use the American Society of Addiction Medicine (ASAM) criteria for all medical necessity and utilization management determinations for substance use disorder benefits. The bill also repeals the limitation on a carrier charging a copayment for methadone maintenance treatment that is greater than 50% of the daily cost for methadone maintenance treatment. The bill takes effect January 1, 2020, and applies to all policies, contracts, and health benefit plans issued, delivered, or renewed in the State on or after that date. It should be noted that what pass was not what originally presented by the sponsors and what MPS originally supported. As initially drafted, the bill would have required carriers to submit annual parity compliance reports for MIA review. The original bill then authorized the MIA to impose any necessary remedial measures as well as publish summary reports of the submitted parity compliance reports for public scrutiny. Unfortunately, carriers and the MIA strongly opposed the initial form of the bill, which gutted the bill of these reporting requirements.
Prior Authorization Requirements
Delegate Terri Hill (D – Howard County), a physician, introduced and passed House Bill 751 that address the shortfalls related to prior authorization. First and foremost, HB 751 applies to an insurer, nonprofit health service plan, or health maintenance organization that provides coverage for prescription drugs through a pharmacy benefit, including coverage provided through a pharmacy benefits manager (PBM) or a private review agent; the bill does not apply to a Medicaid managed care organization. Under the bill, if an entity requires a prior authorization for a prescription drug, the prior authorization request must allow a provider to indicate whether the prescription is for a chronic condition. If a provider indicates that the prescription is for a chronic condition, an entity may not request a reauthorization for a repeat prescription for one year or for the standard course of treatment for the chronic condition, whichever is less. In addition, if an entity denies coverage for a prescription drug, the entity must provide a detailed written explanation, including whether the denial was based on a requirement for prior authorization. Furthermore, if an entity implements a new prior authorization requirement for a prescription drug, the entity must provide notice of the new requirement at least 30 days before implementation. Notice must be provided (1) in writing to any insured who is prescribed the prescription drug and (2) in writing or electronically to all contracted health care providers. The bill takes effect on January 1, 2020, and applies to all policies, contracts, and health benefit plans issued, delivered, or renewed in the State on or after that date.
Medicaid Financial Carve-In for Behavioral Health Services
Senate Bill 482/House Bill 846 attempted to move the current system of Medicaid behavioral health funding out of the Administrative Service Organization (ASO) and into Managed Care Organizations (MCOs), which would have represented a significant shift in managing and dispersing public behavioral health dollars. While MPS strongly supports the concept of integrated care at the heart of this bill, MPS opposed the passage of this legislation. MPS argued that clinical integration must occur before the State takes on administrative and/or financial integration. To that end, MPS noted that one of the most effective models to integrate mental health and physical healthcare is the Collaborative Care Model, which has proven effective by over 100 published, peer-reviewed articles, but has been rejected by Maryland’s MCOs. MPS pointed to its own Policy Statement from 2012 that it previously provided to the legislature, where the society outlined 16 features of a fully integrated healthcare system — features that included data transparency, parity compliance, and integration at all levels of care. MPS argued that these features must be hard-wired into the contractual requirements, with rigorous oversight and painful penalties for failure, if the State is to move forward with this shift from the ASO to the MCOs. In the end, the bill’s sponsors, Senator Deloris Kelley (D – Baltimore County) and Delegate Robbyn Lewis (D – Baltimore City) withdrew their legislation in order to further study the issue.
In closing, the MPS Legislative Committee stayed very busy this year reviewing bills every Wednesday evening to develop positions that represent the best interests of psychiatrists across the state. The committee was especially helpful in amending “bad” bills to make them more palatable in practice. Click here for a complete list of the bills that the MPS considered. With the help of MPS’ lobbying team at Harris Jones & Malone, MPS conducted numerous in-person meetings with legislators, drafted testimony, offered oral testimony at bill hearings, and in the end had a very meaningful impact on health care policy in Maryland.
Thomas R. Tompsett Jr., Esq.
Harris Jones & Malone