The 445th Session of the Maryland General Assembly (MGA) concluded on April 10, 2023, capping the historic first Session of a new term with a newly elected legislature, Governor, Attorney General, Comptroller and Treasurer. The MGA introduced 2,275 bills and 8 Joint Resolutions in 2023. Mental health was a stated concern of those in leadership in Annapolis. As such, the joint legislative committee of the Maryland Psychiatric Society (MPS) and Washington Psychiatric Society (WPS) were very engaged once again this session. MPS/WPS reviewed 92 pieces of legislation, including the cross-filed bills, and actively worked 70 of those bills. Except for our prior authorization legislation, this legislative wrap-up will highlight the bills that passed this session.
Senate Bill 308/House Bill 305, sponsored by Senator Kathy Klausmeier (D – Baltimore County) and Delegate Ken Kerr (D – Frederick County) looked to lessen the burden both on patients and the providers in multiple ways by bringing much-needed reform to prior authorization as it pertained to prescription medications and the appeals of denials.
Regarding prescriptions, the bill sought to reduce the volume of medications subject to prior authorization. The bill would have allowed a patient to stay on a prescription drug without another prior authorization if the insurer previously approved the drug and the patient continued to be successfully treated by the drug. The bill would have also exempted prescription drugs from requiring prior authorization for dosage changes, provided that the change is consistent with federal FDA-labeled dosages. Finally, the bill would have eliminated prior authorization for generic drugs or the need for multiple prescriptions due to formulation differences.
Turning to the appeals process, the bill sought to reduce the delays that occur when the patient appeals a denial or when the insurer questions the medical necessity. As such, the bill would have required that the physician making or involved in making the denial is knowledgeable of and experienced in the diagnosis and the treatment under review. The bill also would have required insurance companies to use criteria that is based on known and accepted standards of care. Finally, the bill would have required the carriers to reach out to the treating provider prior to issuing a denial and not just be available for a discussion on the medical necessity of the requested treatment after the fact.
The bill also looked for ways to improve this system through two studies. The first study is the feasibility of implementing a “gold card” standard in Maryland, which would exempt health care practitioners who meet certain criteria from prior authorization standards. The second study is how to create better standardization and uniformity across the electronic prior authorization systems to make them more user friendly. This study authorizes CRISP to conduct a pilot program to create a single-entry portal rather than each carrier having its own portal or system.
The bill received immense pushback from insurance carriers. Despite numerous stakeholder meetings, the bill was shelved for this Session with a promise to study the issue in the interim from the Chairs of the Senate Finance and House Health and Government Operations Committee.
Senator Clarence Lam (D – Anne Arundel and Howard Counties) and Delegate Steve Johnson (D – Harford County) introduced Senate Bill 515/House Bill 785 to revamp Maryland’s stature on step therapy and fail-first protocols implemented by health insurers. The bill takes effect January 1, 2024, and applies to all policies, contracts, and health benefit plans issued, delivered, or renewed in the State on or after that date.
Under the bill, an insurer, nonprofit health service plan, and health maintenance organization (collectively known as carriers), including those that provide prescription drug coverage through a pharmacy benefits manager (PBM), are required to establish a process for requesting an exception to “a step therapy or fail-first protocol” that is clearly described, easily accessible to the prescriber, and posted on the carrier’s or PBM’s website. A “step therapy exception request” must be granted if, based on the professional judgment of the prescriber and any required information and documentation required to be submitted with the request to be considered a complete request if:
(1) the step therapy drug is contraindicated or will likely cause an adverse reaction to the insured or enrollee;
(2) the step therapy drug is expected to be ineffective based on the known clinical characteristics of the insured or enrollee and the known characteristics of the prescription drug regimen;
(3) the insured or enrollee is stable on a prescription drug for the medical condition under consideration under the current or a previous source of coverage; or
(4) the insured or enrollee, while covered by a current or previous source of coverage, has tried a prescription drug that is in the same pharmacologic class or uses the same mechanism of action as the step therapy drug and was discontinued by the prescriber due to lack of efficacy, diminished effect, or an adverse event.
An insured or enrollee may appeal the denial of a “step therapy exception request.”
The legislation also included an amendment that was initially part of MPS/WPS’s prior authorization reform bill. Under the amendment, a carrier or PBM may not require more than one prior authorization if two or more tablets of different dosage strengths of the same prescription drug are (1) prescribed at the same time as part of an insured’s treatment plan and (2) manufactured by the same manufacturer. This prohibition does not apply if the prescription drug is an opioid that is not an opioid partial agonist.
Senate Bill 213/House Bill 278 authorizes a “clinical nurse specialist” (CNS) to “practice as a clinical nurse specialist.” The bill defines “clinical nurse specialist” as an individual who is (1) licensed by the Maryland Board of Nursing (MBON) to practice registered nursing or has a multistate licensure privilege to practice registered nursing under the Nurse Licensure Compact and (2) certified by MBON to practice as a CNS. Once licensed and certified, an individual may “practice as a clinical nurse specialist” to
(1) provide direct care to patients with complex needs;
(2) act as a consultant to another health care provider as needed;
(3) conduct health-related research; and
(4) provide education and guidance for staff nurses.
Practice as a CNS includes (1) ordering, performing, and interpreting laboratory tests; (2) ordering diagnostic tests and using the findings or results in the care of patients; (3) prescribing drugs and durable medical equipment; (4) ordering home health and hospice care; and (5) initiating, monitoring, and altering appropriate therapies or treatments. In addition, a licensed physician may personally prepare and dispense a prescription written by an advanced practice registered nurse (APRN) working with the physician in the same office setting. After an unsuccessful attempt at passing this bill last session, the sponsors, Senator Arthur Ellis (D – Charles County) and Delegate Bonnie Cullison (D – Montgomery County), and the proponents prevailed this session. The bill becomes effective on October 1, 2023.
Behavioral Health Workforce
Senate Bill 283/House Bill 418, sponsored by Senator Malcolm Augustine (D – Prince George’s County) and Delegate Heather Bagnall (D – Anne Arundel County), establishes the Behavioral Health Workforce Investment Fund to provide reimbursement for costs associated with educating, training, certifying, recruiting, placing, and retaining behavioral health professionals and paraprofessionals. The Maryland Health Care Commission (MHCC), in coordination with the Behavioral Health Administration, the Maryland Higher Education Commission, the Maryland Department of Labor, the Career and Technical Education Committee, and other interested stakeholders, must conduct a comprehensive behavioral health workforce needs assessment. MHCC then must recommend an initial allocation to the fund and identify which programs the allocation will support. MHCC must submit the assessment to the MGA by October 15, 2024.
The Workgroup on Black, Latino, Asian American Pacific Islander, and Other Underrepresented Behavioral Health Professionals is tasked with identifying and studying the shortage of behavioral health professionals in the State who are Black, Latino, Asian American Pacific Islander, or otherwise underrepresented in behavioral health professions. Sponsoered by Delegate Marlon Amprey (D – Baltimore City), House Bill 615 extends the reporting and termination dates for the work group by one year. The workgroup must report its findings and recommendations by July 1, 2024. The workgroup terminates on June 30, 2025.
Treatment Plans for Individuals in Facilities and Residence Grievance System
Senator Malcolm Augustine (D – Prince George’s County) and Delegate Lorig Charkoudian (D – Montgomery County) introduced Senate Bill 8/House Bill 121 to codify existing regulatory requirements that a plan of treatment must include a long-range discharge goal and an estimate of the probable length of inpatient stay the patient requires before becoming eligible for transfer to a less restrictive or less intensive setting. The bill will also codify the regulatory requirement that facility staff who work directly with and provide treatment to a patient must review and reassess the plan of treatment for the patient to determine progress and any need for plan adjustments at least (1) once every 15 days during the first two months of the inpatient stay and (2) once every 60 days for the remainder of the inpatient stay.
Furthermore, the bill requires that a facility must ask a patient upon admission whether the patient consents to family or any other individuals being informed of and given the opportunity to participate in meetings with the treatment team regarding the development, review, and reassessment of the patient’s plan of treatment. If consent is given, at least every seven days afterward, the facility must reconfirm the consent and provide the patient at a clinical visit with an opportunity to consent to additional individuals being informed of and given the opportunity to participate in meetings with the treatment team. If a patient agrees to have others participate, the facility must
(1) provide a schedule of routine treatment team meetings where the plan of treatment is discussed;
(2) establish a process for the authorized individuals to participate in treatment team meetings;
(3) inform the authorized individuals as soon as a treatment team meeting is scheduled if the meeting is being held outside the regular schedule; and
(4) inform the authorized individuals of the outcome of an emergency treatment team meeting as soon as practicable.
Under the bill , a patient can withdraw consent to have others participate at any time either orally or in writing.
A treating provider may withhold information on a patient’s plan of treatment from a family member or other authorized individual if (1) in the treating provider’s clinical judgment, the given consent was provided through coercive means; (2) the treating provider believes it is in the best clinical interest of the patient; or (3) the patient requests that a specific piece of the plan of treatment be withheld.
Furthermore, the bill establishes a process by which a patient or an authorized individual may request that a facility review and reassess the plan of treatment if it is believed that the plan is not meeting the needs of the patient. Upon the receipt of a request for review and reassessment, specified facility staff must (1) conduct a review and reassessment of the plan of treatment; (2) communicate the results of the review and reassessment of the plan of treatment to the patient and individual who requested the review and reassessment, including an explanation of how all issues raised in the request were considered; and (3) include the request for the review and reassessment of the plan of treatment and the outcome of the review and assessment, including the explanation for that outcome, in the patient’s medical records
If a State facility does not change a plan of treatment following a request for review and reassessment, the State facility must provide referral information for the Resident Grievance System. The patient or an authorized individual may (1) request a reconsideration of the review and reassessment by filing a grievance with the Resident Grievance System and (2) may appeal the reconsideration by filing a request with MDH’s Healthcare System’s Chief Medical Officer.
Finally, if a State facility is unable to provide the treatment necessary to address the rehabilitation needs of a patient pursuant to a plan of treatment, the State facility must make arrangements for the patient to receive necessary treatment from another facility or health care provider outside the State facility and ensure that treatment for the patient is coordinated between the State facility and any other provider. Resident Grievance System Report By January 1 of each year beginning in 2024, MDH must report on the Resident Grievance System and the grievances that were received by the system related to State facilities during the immediately preceding fiscal year.
Corporal Punishment Ban for Private Primary & Secondary Education
House Bill 185 prohibits the State Board of Education from issuing a certificate of approval to any noncollegiate educational institution (nonpublic primary or secondary school) that does not have a policy prohibiting any employee from administering corporal punishment to discipline a student.
Certified Community Behavioral Health Clinics
Certified Community Behavioral Health Clinics (CCBHCs) are a type of healthcare facility that provides mental health and substance abuse services to communities. CCBHCs are certified by the federal government and are intended to serve as a model for delivering high-quality, accessible, and cost-effective behavioral health care. CCBHCs aim to provide comprehensive, coordinated, and effective behavioral health care to individuals in need. CCBHCs are designed to address different communities’ unique needs and help improve the overall quality of behavioral health care. Senate Bill 362 requires the Maryland Department of Health to apply for federal planning, development, and implementation grant funds related to CCBHCs and inclusion in the state CCBHC demonstration program
Commission on Behavioral Health Care Treatment and Access
Senate Bill 582/House Bill 1148 establishes a Commission on Behavioral Health Care Treatment and Access to make recommendations to provide appropriate, accessible, and comprehensive behavioral health services available on demand to individuals in the State across the behavioral health continuum. Among other duties, the commission must assess behavioral health services in the State to identify needs and gaps in services across the continuum and report the needs assessment findings to the Governor and General Assembly by January 1, 2024.
Funding the 9-8-8 Trust Fund
Senate Bill 3/House Bill 271 require the Governor to include an appropriation of $12.0 million to the 9-8-8 Trust Fund in the annual budget bill for fiscal 2025. Under state legislation from last session and the federal National Suicide Hotline Designation Act of 2020, the Maryland Department of Health designated 9-8-8 as the State’s behavioral health crisis hotline. In addition, the MGA established the 9-8-8 Trust Fund to provide reimbursement for costs associated with designating and maintaining 9-8-8 and implementing a statewide initiative for coordinating and delivering the continuum of behavioral health crisis response services. The Governor included $5.5 million for the fund in the annual budget bill for FY24.
Value-Based Purchasing Pilot Program
Senate Bill 581/Senate Bill 582/House Bill 1148 establish a three-year Behavioral Health Care Coordination Value-Based Purchasing Pilot Program, administered by the MDH, to develop and implement an intensive care coordination model using value-based purchasing in the specialty behavioral health system
Mental Health Advance Directives
Senate Bill 154 requires MDH to develop and implement a public awareness campaign to encourage the use of mental health advance directives in the State. The Behavioral Health Administration and the Maryland Health Care Commission must jointly study how first responders and behavioral health crisis providers can access the advance directives database when responding to a behavioral health crisis. Senator Pam Beidle (D – Anne Arundel County) was the sponsor of this legislation that becomes law on July 1, 2023.
Sponsored freshman Senator Dawn Gile (D – Anne Arundel County), Senate Bill 534 extends, through June 30, 2025, provisions of law that specify that (1) “telehealth” includes an audio-only telephone conversation between a health care provider and a patient that results in the delivery of a billable, covered health care service and (2) a carrier (and Medicaid) must continue to reimburse for a health care service appropriately provided through telehealth on the same basis and at the same rate as if the service were delivered in person. MHCC must study and make recommendations regarding the delivery of health care services through telehealth, as specified, and report to the General Assembly by December 1, 2024.
Firearm Storage Requirements & Youth Suicide Prevention (Jaelynn’s Law)
Senate Bill 858/House Bill 307, sponsored by Senator Smith (D – Mpontgomery County)and Delegate Bartlett (D – Anne Arundel County), initially sought to modify and expand the reckless endangerment provisions of the Criminal Law Article 47 by establishing that a person may not recklessly (1) leave or store a loaded firearm in a location where the person knows or reasonably should know that an unsupervised minor or a person prohibited from possessing a firearm under State or federal law has access to the firearm or (2) leave or store a firearm in a location where the person knows or reasonably should know that an unsupervised minor or a person prohibited from possessing a firearm under State or federal law has ready access to the firearm and ammunition for the firearm. A minor could have still accessed a firearm for self-defense or the defense of others against a trespasser. In addition, a minor could have possessed a firearm if the minor has a certificate of firearm and hunter safety issued under § 10-301.1 of the Natural Resources Article or permission from the minor’s parent or guardian to access a shotgun or rifle. A violator would have been guilty of a misdemeanor punishable by imprisonment for up to five years and/or a $5,000 maximum fine. The MGA amended the above out of the bill.
They maintained a modification to the deadly weapon provisions of the Criminal Law Article by expanding the prohibition on access to a firearm by an unsupervised child younger than 16 years of age by establishing that a person may not store or leave (1) a loaded firearm in a location where the person knew or should have known that an unsupervised individual younger than the age of 18 or a person prohibited from possessing a firearm under State or federal law has access to the firearm or (2) a firearm in a location where the person knew or should have known that an unsupervised minor or person prohibited from possessing a firearm under State or federal law has ready access to the firearm and ammunition for the firearm. These changes to the deadly weapon provisions become effective July 1, 2023.
In addition to the criminal law changes above, the bill mandates the Deputy Secretary for Public Health Services establish a stakeholder advisory committee. The advisory committee will make recommendations regarding the development of a youth suicide prevention and firearm safe storage guide. On or before December 31, 2024, the Deputy Secretary of Public Health Services must develop a guide that (1) provides a description of the firearm and ammunition requirements for safely storing firearms under State law; (2) identifies the risks associated with unsafe firearm storage for minors, including suicide, death, or serious bodily injury from accidental discharge, and shooting incidents involving minors; and (3) incorporates best practices for firearm and ammunition safe storage.