The 444th Legislative Session of the Maryland General Assembly adjourned on April 11, 2022, in a more traditional in person fashion with parties, a balloon drop, and other fanfare. This session, members of the Maryland General Assembly introduced 2,495 bills and 19 Joint Resolutions, 2 Senate Simple Resolutions, and 1 House Simple Resolution. The joint legislative committee of the Maryland Psychiatric Society (MPS) was very engaged once again this session. MPS reviewed 104 pieces of legislation, includes the cross-filed bills, and actively worked 58 of those bills. The ensuing synopsis highlights some of the proposed legislation MPS worked this session.
Clinical Nurse Specialist Prescribing Authority
Citing a need for more nurses in the field, especially during the ongoing labor shortage and pandemic, Senator Adelaide Eckardt (R – Caroline, Dorchester, Talbot, & Wicomico) and Delegate Bonnie Cullison (D – Montgomery County) introduced Senate Bill 513/House Bill 276 to authorize a “clinical nurse specialist” (CNS) to prescribe drugs and durable medical equipment under the Maryland Pharmacy Act. The bill specifies that an advanced practice registered nurse (APRN) with prescriptive authority working with a physician in the same office setting is not prohibited from prescribing specified drugs. A CNS is a Master or Doctorate prepared APRN whose role is to improve outcomes in patient care. The CNS is educated in clinical practice, patient education, research, evidence-based practice, consultation, and influences the three spheres of impact: patient care, nursing, and systems. The opposition to the bill was concerned with a CNS’s lack of pharmacological education. Furthermore, the opposition argued that patients needing more than one drug at a time for comorbid physical conditions, such as heart disease or diabetes and mental illness, are at risk for potentially serious drug interactions. More than half of all patients with a mental disorder also have one or more physical ailments. The opposition said that CNSs needed to work in a health care team that includes a physician for patient safety purposes. The Senate bill passed the House but failed to progress beyond the House Health & Government Operations Committee.
Maryland Suicide Fatality Review Committee
Senator Adelaide Eckardt (R – Caroline, Dorchester, Talbot, & Wicomico Counties) and Delegate Lisa Belcastro (D – Baltimore County) reintroduced legislation establishing the Maryland Suicide Fatality Review Committee (State Team) in Senate Bill 94/House Bill 48 . Under the bill, the State Team will meet quarterly to identify and address the factors contributing to suicide deaths and facilitate system changes in the State to prevent suicide deaths. The State Team will meet at least quarterly to review suicide deaths; make determinations regarding issues related to individuals at risk for suicide, specifically trends, risk factors, current best practices in suicide prevention, lapses in systemic responses, and barriers to safety and well-being, and strategies for the prevention of suicide deaths; report at least annually to the Governor and the MGA on its activities and its recommendations; undertake annual statistical studies; and disseminate findings and recommendations based on the studies conducted to policymakers, health care providers, health care facilities, and the public. The legislation also includes confidentiality requirements and specifications for appointments to the State Team. MPS has been pushing for this bill for three straight sessions and it was truly wonderful to see this cross the finish line. The bill becomes effective October 1, 2022.
9-8-8: Suicide Prevention Lifeline
In October 2020, the federal government passed the National Suicide Hotline Designation Act. The Act designates 9-8-8 as the three-digit dialing code for the National Suicide Prevention Lifeline. Senate Bill 241/House Bill 293, introduced by Senator Malcolm Augustine (D – Prince George’s County) Delegate Karen Lewis Young (D – Frederick County), in turn, creates the necessary framework and funding to ensure 9-8-8 is available to all Marylanders. Proponents of the bill contend that 9-8-8, when effectively resourced and promoted, will be able to connect an individual in a mental health crisis to a trained counselor who can address his/her immediate needs and help connect him/her to ongoing care. This diversionary approach will reduce health care spending with more cost-effective early intervention, reduce unnecessary interactions with law enforcement for those in a mental health crisis while increasing access to those who need meaningful mental health care. Put another way, quick access to appropriate care in a crisis can reverse suicidal ideation and save lives. Under the new bill, the Maryland Department of Health (MDH) must designate 9-8-8 as the State’s behavioral health crisis hotline by July 16, 2022. In fiscal year 2024, the bill requires the Governor to include a mandated appropriation of $5.5 million in the annual budget bill for the 9-8-8 Trust Fund. In addition to designating and maintaining 9-8-8, the trust fund created under the bill may be used for behavioral health crisis response services in the State, including crisis call centers, mobile crisis team services, crisis stabilization centers, and other acute behavioral health care services. The bill takes effect July 1, 2022.
Behavioral Health Crisis Response
The State’s 9-1-1 system operates primarily through public safety answering points (PSAPs), which are generally owned and operated by local governments. Senate Bill 12/House Bill 129 , introduced by Senator Malcolm Augustine (D – Prince George’s County) and Delegate Lorig Charkoudian (D – Montgomery County) will require that each PSAP develop a written policy on the procedures to be followed when a call is received that involves an individual suffering an active mental health crisis. The policy must include:
- the procedures to triage a call involving an individual suffering an active mental health crisis;
- the resources that are available for dispatch;
- the procedures for making a dispatch decision; and
- training for applicable staff on implementing the procedures.
Uncodified language requires that each PSAP submit its written policy to MDH and make the policy available to the public by December 1, 2022. The bill will become effective on October 1, 2022.
Petitions for Emergency Evaluation – Electronic Record
Senate Bill 2/House Bill 32, introduced by Senator Malcolm Augustine (D – Prince George’s County) and Delegate Heather Bagnall (D – Anne Arundel County), will authorize a petition for emergency evaluation to be provided as an “electronic record” and transmitted and received electronically. Under this new legislation, a peace officer may use an emergency petition in the form of an electronic record that is transmitted and received electronically, and an emergency facility must accept an emergency evaluee if the petition is properly executed. The Fiscal Note provided by the Department of Legislative Services mentions that the procedural change is expected to expedite the ability of local law enforcement to receive and serve emergency petitions. The bill becomes effective October 1, 2022.
Senator Jill Carter (D – Baltimore City) and Delegate Sandy Bartlett (D – Anne Arundel County) reintroduced the Child Interrogation Protection Act to ensure safeguards against false confessions from children in police custody. Senate Bill 53/House Bill 269 specifies that if a law enforcement officer takes a child into custody, the officer must immediately notify, or cause to be notified, the child’s parents, guardian, or custodian in a manner reasonably calculated to give actual notice of the action. The notice must include the child’s location, provide the reason for the child being taken into custody, and instruct the parent, guardian, or custodian on how to make immediate in-person contact with the child.
A law enforcement agency conducting an interrogation must maintain a record of the notification or attempted notification, including:
- a signed statement by a duly authorized law enforcement officer employed by the agency that an attempt to notify a parent, guardian, or custodian was made;
- the name of the person sought to be notified; and
- the method of attempted notification.
A law enforcement agency must also maintain a record of the name of the attorney contacted and the county or counties in which the attorney provided the consultation.
The bill further specifies that regardless of the above requirements, a law enforcement officer may conduct an otherwise lawful custodial interrogation of a child if the law enforcement officer reasonably believes that the information sought is necessary to protect against a threat to public safety and the questions posed to the child by the law enforcement officer are limited to those questions reasonably necessary to obtain the information necessary to protect against the threat to public safety. Unless it is impossible, impracticable, or unsafe to do so, interrogations under these circumstances must be recorded.
In a jurisdiction that has adopted the use of body-worn digital recording devices by law enforcement officers, the interrogation may be recorded using such a device in a manner consistent with applicable policies. In a jurisdiction that has not adopted the use of body-worn digital recording devices, the interrogation may be recorded using other video and audio recording technology, consistent with any applicable policies. A child being interrogated under such circumstances must be informed if the interrogation is being recorded.
Finally, the bill specifies that a law enforcement officer who charges a minor with a criminal offense must make a reasonable attempt to provide actual notice to the parent or guardian of the minor. The bill was vetoed by the Governor, but summarily overridden by the legislature along the same party lines as it was passed in the MGA. The bill takes effect October 1, 2022.
Pharmacy Benefit Managers – Regulation
The 2022 Legislative Session, once again, saw the introduction of a significant package of legislation aimed at regulating pharmacy benefit managers (PBMs) operating in the State, including Senate Bill 689/House Bill 755, Senate Bill 690/House Bill 1014, House Bill 1006, House Bill 1007, House Bill 1008, House Bill 1009, House Bill 1015, House Bill 1274, and House Bill 1275. Sponsored by a bipartisan coalition of legislators, bills were introduced to set parameters around how PBMs operate in regard to the following operations:
- Specialty prescription drugs;
- Mail-order prescription drugs;
- Pharmacy network adequacy;
- Reimbursement costs for pharmacies not affiliated with a PBM; and
- Scope of state regulation on PBMs association with ERISA-regulation and other non-state regulated insurance plans;
Due to objections from the PBMs and the insurance carriers and legislator concerns about costs, all the PBM bills failed to progress in either the Senate or House. However, support is mounting for additional PBM regulation from patient advocates and healthcare providers, setting the stage for potential interim work on the matter and future legislation.
MPS also introduced legislation in this space, Senate Bill 688: Health Insurance – Utilization Review for Coverage of Prescription Drugs and Devices – Expedited Appeals to accomplish the following:
- Eliminate prior authorization for generic medications that are not controlled substances. These medications are cheap and not addictive; therefore, prior authorization provides no benefit to costs or patient safety.
- Eliminate prior authorization for dosage strength changes of the same medication. Patients may often require a dosage adjustment, and prescribers should not be constricted by administrative barriers to use their professional judgment.
- Eliminate prior authorization for generic and brand drugs after patients have been on the medication for six months without interruption. Once a patient has demonstrated a stable adherence to their treatment plan, his or her prescriber should not be subjected to additional prior authorizations.
- Require insurers and PBMS to adhere to a 48-hour appeal process to ensure timely access to medications for patients. Too often, patients may suffer serious harm without access to their medication while they wait for insurers or PBMs to approve their medication coverage. For those medications still subject to review, it is imperative that insurers and PBMs provide a timely response to ensure continuity of care;
- Prohibit plans from denying medication on the grounds of therapeutic duplication if the patient has already been subject to review for the same dosage and it was previously approved. When a patient requires a certain dosage of medication that is not manufactured in that specific dosage, prescribers may write two corresponding prescriptions to create a unique dose for the patient. Patients are often denied coverage of this medication based on “therapeutic duplication” without recognizing the patient’s dosing needs.
- Require denials and denial reviews to be conducted by physicians in the same profession or similar specialty as the health care provider whose recommended treatment is under review. Insurers and PBMs have been empowered to practice medicine without a license to make coverage denials. Even when a physician is conducting utilization reviews, a psychiatrist may receive a denial from a cardiologist, who lacks the clinical expertise. This change would ensure that denial and denial reviews are overseen by an expert who is familiar with the treatment plan and type of patient under review.
Unfortunately, the PBMs and insurance carriers strenuously opposed the bill. The Maryland Insurance Administration, however, was helpful to our cause and gave us positive feedback on how we may be able to address some of these issues under currently law and where we should amend the law in the future. MPS will work with the MIA and other stakeholders in the interim to reintroduce legislation on this topic that can hopefully withstand the dissent of the opposition.
Juvenile Substance Use Disorder Treatment – Network Adequacy
Delegate Nic Kipke (R – Anne Arundel County) introduced and passed House Bill 971: Maryland Medical Assistance Program – Substance Abuse Treatment – Network Adequacy. This bill requires the Maryland Department of Health and the Behavioral Health Administration to ensure that the specialty mental health system has an adequate network of providers available to provide alcohol and drug abuse treatment for children younger than age 18. The bill would require a review of the medical assistance’s provider directory to ensure that it is accurate and large enough to provide substance use disorder treatment for juveniles. The State has made similar efforts for adult mental health access, but is now pivoting to meet the needs of a different population. The bill becomes effective October 1, 2022