Re: PA needs help passing Lyme legislation

From: A_Weisman (a_weisman_at_yahoo.com)
Date: 11/19/04 

Date: 19 Nov 2004 15:46:23 -0800

GregGerber@hotmail.com (Greg Gerber) wrote in message news:<146041df.0411181224.271b9859@posting.google.com>...
> a_weisman@yahoo.com (A_Weisman) wrote in message news:<e55e6d97.0411172330.600f47e1@posting.google.com>...
> > Don't need to do so. I KNOW what the situation is...
>
> with all due respect, if you know what the situation is, why not just
> say so? I agree with you re: NY bill, but don't you think that if the
> PA bill passes unscathed it will be helpful to the people of PA? Or is
> there some part of the language that is tricky? Again, if so, why not
> say so. You'll note I am asking a question in response to your
> comments, and my question is not rhetorical. GG

Here are a few quick comments on the specifics of the bill. It is not
the worst bill ever but it has a lot of problems. And this is a quick
review I'm not going to waste more time than this on this crap. Life
is too freaking short.

Beyond the specifics of "tricky language" as you call it Greg, there
is a larger point. It really won't make a difference. Changes in
attitudes will.

By the way, the PA legislature has two year sessions. I think it is
obvious that there was no attempt to legislate this (pass it into law)
until the very end of a lame duck session when logistically it COULD
NOT POSSIBLY be enacted.

In my opinion it was lip service. It was a bone thrown and that is it.
A meaningless bone. Chits were called in for nothing. Lymies were
manipulated again.

*****************************************************************
HB 1977 By Representatives PHILLIPS, JAMES, LEH, BARD, BELFANTI,
BROWNE,
CAPPELLI, CREIGHTON, DALEY, HENNESSEY, MAITLAND, McNAUGHTON, ROSS,
SATHER, E.
Z. TAYLOR, HESS, GOOD, DENLINGER and SCAVELLO.Prior Printer's Nos.
2582, 3595.
Printer's No. 4687. An Act providing for lyme and
related tick-borne disease diagnosis andtreatment, for denial,
revocation or
suspension of license or discipline oftreating physicians and doctors
of
osteopathy and for professionalmisconduct proceedings. Referred to
HEALTH AND
HUMAN SERVICES, Sept. 11, 2003 Reported as amended, March 30, 2004
First
consideration, March 30, 2004 Laid on the table, March 30, 2004
Removed
from table, June 7, 2004 Laid on the table, June 7, 2004 Removed from
table, Oct. 18, 2004 Second consideration, Oct. 18, 2004 Re-referred
to
APPROPRIATIONS, Oct. 18, 2004 Re-reported as committed, Nov. 8, 2004
Third
consideration, with amendments, Nov. 10, 2004 Final passage,
Nov. 10, 2004 (117-68) Vote on final passage reconsidered, Nov. 10,
2004
(195-0) Final passage, Nov. 10, 2004 (109-84) (Remarks see House
Journal),
Nov. 10, 2004

--------------------------------------------------------

PRIOR PRINTER'S NOS. 2582, 3595 PRIOR PRINTER'S NO. 4687

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No. 1977

Session of

2003

INTRODUCED BY PHILLIPS, JAMES, LEH, BARD, BELFANTI, BROWNE,

CAPPELLI, CREIGHTON, DALEY, HENNESSEY, MAITLAND, McNAUGHTON,

ROSS, SATHER, E. Z. TAYLOR, HESS, GOOD, DENLINGER AND

SCAVELLO, SEPTEMBER 11, 2003

AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,

NOVEMBER 10, 2004

AN ACT

1 Providing for lyme LYME and related tick-borne disease diagnosis <

2 and treatment, for denial, revocation or suspension of

3 license or discipline of treating physicians and doctors of

4 osteopathy and for professional misconduct proceedings.

5 The General Assembly of the Commonwealth of Pennsylvania

6 hereby enacts as follows:

7 Section 1. Short title.

8 This act shall be known and may be cited as the Lyme and

9 Related Tick-borne Disease Diagnosis and Treatment Act.

10 Section 2. Definitions.

11 The following words and phrases when used in this act shall

12 have the meanings given to them in this section unless the

13 context clearly indicates otherwise:

14 "Board." The State Board of Medicine or the State Board of

15 Osteopathy.

16 "Licensee." A licensed physician or doctor of osteopathy.

17 "Long-term antibiotic or antimicrobial therapy."

1 Administration of oral, intramuscular or intravenous antibiotics

2 or antimicrobial medications, singly or in combination, for

3 periods of greater than four weeks.

****************************************************************************

AW: Since many treatment recommendatins call for as little as 10 days
to 2 weeks, or three weeks, this definition leaves doctors vulnerable
for prescribing for less than four weeks but more than ten days.

In fact, since current recommendations call for two doses of
Doxycycline on tick bite (though the actual article discusses limited
circumstances where there is a rash and presentation to doctor and
prescription within three days--but this has already been
misinterpreted and misused), the gap and vulnerability might be even
larger.

And before anyone makes the lame argument that this would violate the
"SPIRIT" of the law, the way laws work is not based on "spirit" or
anything ethereal but based on the actual words of the law.

Not a HUGE thing but one sloppy point.

*******************************************************************
4 "Lyme disease." The clinical diagnosis of the presence in a

5 patient of signs and symptoms compatible with acute infection

6 with Borrelia burgdorferi or related Borrelioses, or with late

7 stage or chronic infection with Borrelia burgdorferi, or with

8 complications related to such an infection.

*********************************************************************************

"Clinical diagnosis" means different things to different people. The
more conservative approach rejects a clinical diagnosis on the basis
of symptoms and differential alone but requires some positive testing
too--though this is not how "clinical diagnosis" is usually defined in
medicine.

Why not say the diagnosis by symptoms and/or serological testing but
may include diagnosis without positive testing.

*********************************************************************

 The term includes

9 infection which meets the surveillance criteria set forth by the

10 United States Centers for Disease Control and Prevention and

11 also includes other acute and chronic manifestations of such an

12 infection as determined by the physician.

***********************************************************************

The above is problematic. First, the surveillance criteria are not
appropriate for diagnosis. More important, the phrase "acute and
chronic manifestations" is problematic in that there is no agreement
as to what these manifestations are.

Some of the Burrascanoites use a long and varied symptom list. The
more mainstream (and I don't mean to imply that they are correct by
calling them "mainstream") doctors use a very limited list.

And the mainstream folks don't recognize chronic illness caused by
Lyme.

******************************************************************************

13 "Related tick-borne illnesses." Cases of Bartonellosis,

14 Babesiosis/Piroplasmosis and other tick-transmissible illnesses

15 as may be empirically associated with lyme LYME disease.

********************************************************************

What does this even mean "empirically associated with Lyme disease"?
Again there is a lack of agreement between the mainstream and the
Burrascanoites. And there is no agreement what is "Tick transmissible"
either.

*******************************************************************************

16 "Therapeutic purpose." The use of antibiotics to control a

17 patient's symptoms determined by the physician as reasonably

18 related to lyme LYME disease and its sequelae or related tick- <

19 borne illnesses.

**********************************************************************************

Well this is a lousy definition of the words "therapeutic purpose."
The PURPOSE would be treatment/symptom relief/infection control/cure.
What they're trying to define is "Therapy" and this is too limited for
burrascano style treatment. Is Mepron an antibiotic? NO. It is an
antimalarial. What about other treatments utilized such as plaquenil,
amantadine, antivirals etc?

*************************************************************************************

20 Section 3. Long-term antibiotic and microbial treatment.

21 A licensee may prescribe, administer or dispense antibiotic

22 or antimicrobial therapy for therapeutic purposes to a person

23 diagnosed with and having symptoms of lyme LYME disease or <

24 related tick-borne illnesses

**************************************************************************8

What is a "related tickborne illness"?

What if Lyme is transmitted by some other vector? What if the others
are? Does this protect for long term treatment of cases transmitted by
other vectors? Congenitally/transplacentally? By blood transfusion or
sexually (if that occurs)?

***************************************************************************

if this diagnosis and treatment

25 plan have been documented in the licensee's medical record for

26 that patient. No licensee shall be subject to professional

27 misconduct proceedings or to disciplinary action by the board

28 solely for prescribing, administering or dispensing long-term

29 antibiotic or antimicrobial therapy for a therapeutic purpose

30 for a patient clinically diagnosed with lyme LYME disease or <

20030H1977B4687 - 2 -

1 related tick-borne illnesses if this diagnosis and treatment

2 plan have been documented in the licensee's medical record for

3 that patient.

********************************************************************

Emphasize the word "solely" above. If they want to get you, they will.
They got Al Capone for taxes. In many cases the charges against the
"llmds" that have been brought have not been "solely" for Lyme
treatment.

Squeeze the balloon...

Give THEM some credit. They're pretty clever and if they want to get
you, they want to get you.

In many cases the investigation itself has been enough.

This prohibits the bringing of charges but not the investigation.

How to make this better? In some ways you can but ultimately you can't
unless and until attitudes are changed. And that won''t happen
legislatively.

**************************************************************************
4 Section 4. Denial, revocation or suspension of license or

5 discipline of licensee.

6 Nothing in this section shall diminish the right of the board

7 to deny, revoke or suspend the license of a licensee or

8 discipline a licensee who prescribes, administers or dispenses

9 long-term antibiotic or antimicrobial therapy for a

10 nontherapeutic purpose, who fails to monitor the ongoing care of

11 a patient receiving long-term antibiotic or antimicrobial

12 therapy or who fails to keep complete and accurate ongoing

13 records of the diagnosis and treatment of a patient receiving

14 long-term antibiotic or antimicrobial therapy.

**************************************************************************

See the above. If they want to get you there are still many ways. And
no doctor should get a false sense of protection from this even if it
passed. The attitudinal problem remains.

*************************************************************************

15 Section 5. Professional misconduct proceedings.

16 (a) General rule.--Whenever the board initiates or has

17 initiated professional misconduct proceedings against a licensee

18 as a result of a complaint filed by an insurance company,

19 pharmacy benefit manager or comprehensive health services plan

20 pursuant to this act, which in whole or in part concerns the

21 licensee's diagnosis or treatment of lyme LYME disease or any <

22 related tick-borne illness, a copy of the complaint shall be

23 disclosed to the licensee within ten days after the licensee's

24 request.

**********************************************************************

First, this language is sloppy. It requires a disclosure of the
complaint which might be interpreted to mean the formal complaint
brought by the board NOT the report filed by whoever files it.

Also why limit this to the categories above?

Also: this is a total red herring anyway. The source of the complaint
is really irrelevant. The question is whether the complaint has merit
or not. So if an HMO makes the report, but the issue is valid, then it
is no defense nor mitigation that it was made by an HMO. The
motivation of the reporter is totally irrelevant, no defense, makes no
difference.

How does this benefit the "llmd"?

********************************************************************************

25 (b) Requirements of charges.--Whenever charges are made

26 which, in whole or in part, concern a licensee's diagnosis or

27 treatment of lyme LYME disease or any related tick-borne <

28 illness, the charges shall contain a statement of facts

29 sufficient to allow a judicial determination as to whether the

30 charges are proper under this section.

****************************************************************************

First the word "Section" is unclear here as the bill contains various
sections and this refers self referentially to section 5 which it is a
part of. That's a fair interpretation. If what is meant is "under this
law" well it should say that.

And this adds nothing since one could always file objections/motions
to dismiss etc.

*****************************************************************************************

20030H1977B4687 - 3 -

1 (c) Notice of hearing.--Whenever a notice of hearing is

2 served in which the charges or allegations against the licensee

3 in whole or in part concern the licensee's diagnosis or

4 treatment of lyme LYME disease or any related tick-borne illness <

5 or the administration of long-term antibiotic or antimicrobial

6 therapy or concern any patient who has been diagnosed with lyme <

7 LYME disease or any related tick-borne illness, the notice shall <

8 contain the identity of any experts consulted by the board or to

9 be called to testify by the board and the substance of the

10 opinion of each such expert.

***********************************************************************

This adds nothing to the existing protections of due process under PA
law. No harm in it but it adds nothing.

********************************************************************************

11 Section 6. Required coverage.

12 Every (A) TICK-BORNE ILLNESS.--EXCEPT AS PROVIDED IN <

13 SUBSECTION (B), EVERY health care policy which is delivered,

14 issued for delivery, renewed, extended or modified in this

15 Commonwealth by a health insurer must cover prescribed treatment

16 for lyme LYME disease or related tick-borne illness

**************************************************************************

HUGE LOOPHOLE: The plan must contain coverage. However it does not
mandate coverage for whatever the LLMD Burrascano type prescribes. So
if the "coverage" provided says "30 days of IV if first degree heart
block, positive spinal tap" etc or "10-21 days of orals (in other
words provides for the IDSA guidelines for treatment) then it complies
with this section.

Not only that but in doing so the minimum WILL inevitablly be the
maximum.

Again don't make me laugh about the "spirit" or "intent" of the law
(as its advocates would think it was spirited or intended).

**************************************************************************************
 if the <

17 diagnosis and treatment plan are documented in the patient's

18 medical record. This shall include long-term therapies and

19 treatment as prescribed by the patient's attending physician.

*****************************************************************************

"Attending physician" what does this mean? Does this mean a PCP under
one's health plan? This should say prescribing doctor.

"Health insurer" believe it or not HMOs are not considered "health
insurers" nor are many types of medical plans. Self insurers don't
count. Others are not included. Not to mention the ERISA preemption
problem.

**********************************************************************************

20 (B) EXCEPTION.--SUBSECTION (A) SHALL NOT APPLY TO ANY OF THE <

21 FOLLOWING TYPES OF INSURANCE:

22 (1) HOSPITAL INDEMNITY.

23 (2) ACCIDENT.

24 (3) SPECIFIED DISEASE.

25 (4) DISABILITY INCOME.

26 (5) DENTAL.

27 (6) VISION.

28 (7) CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED

29 SERVICES (CHAMPUS) SUPPLEMENT.

30 (8) MEDICARE SUPPLEMENT.

20030H1977B4687 - 4 -

1 (9) LONG-TERM CARE.

2 (10) OTHER LIMITED INSURANCE BENEFIT PLANS.

**********************************************************************

The above exceptions are big enough to pretty much swallow the entire
coverage section of the rule.

Not to mention the extremely dubious enforceability of all of this
coverage language due to ERISA preemption. And MOST people who have
health insurance, have it as part of an ERISA governed plan.

And Medicare supplements are excluded and now that there are medicare
drug benefits, and many medicare supplements also offer Prescription
coverage this is a big issue. Many Lymies sick enough to need "long
term therapy" are on Medicare. And don't carry major medical or
prescription coverage beyond that and whatever their medicare
supplement provides. If they have a medicare supplement with
additional drug coverage they probably can't afford more insurance or
a seperate additional drug plan. And they don't think they need it.

This is a huge loophole big enough to drive a cruise ship full of
denials through.

In fact though I'm sure some will think I'm being picayune, I
guarantee you that insurance company lawyers defending denials will be
even more picayune.

ALSO: There is absolutely no enforcement mechanism provided. How is
this enforced? By whom? A private cause of action? By the PA Attorney
General? Or someone else? The INsurance department?

You cannot assume that because there is a law there is a way to
enforce it. No remedy is provided. What if the plan delivered fails to
enclude this? Is the remedy reformation? (of the contract, not in the
religious sense). Or is there a fine? Or can one sue? If so can one
recover attorney's fees? Punitive damages? Or simply the benefit
itself? Or is there no way to enforce it. Seriously believe it or not
if the remedy and enforcement mechanism aren't provided the courts may
reject a private cause of action or any enforcement mechanisms not
included in the statute.

****************************************************************************************

3 Section 7. Applicability.

4 This act shall apply to all applicable proceedings pending on

5 the effective date of this act.

6 Section 8. Effective date.

7 This act shall take effect immediately.

F17L35MRD/20030H1977B4687 - 5 -

****************************************************************************
        
More problems:

1. As I said before this will NOT create more doctors willing to
diagnose or treat.

2. This will NOT change attitudes and beliefs which is a much bigger
part of the problem.

3. Please please please don't tell me "This is the best we can do,
we'll amend it later" this is one of the MOST INCREDIBLY naive things
these folks say. Once you finally get a law passed, it is harder still
to get it amended.

4. I saw another naive and uninformed suggestion that the way to get
this passed is by attaching it to the pay raise or some other bill.
Well that's fine in the US Congress or Senate but not in PA where a
law must reasonably be related to its title otherwise it is
unconstitutional.

5. Greg you suggest that we simply need to pass a law saying that
there's more than one opinion and both are valid. What the hell would
that mean or achieve?
        
6. Though it appears quite clear that the PA Legislature is about to
adjourn from its lame duck session tonight or tomorrow E L continues
to push people to FAX email call hire skywriting planes pester
initmidate bully annoy barrage insult demand of PA legislators that
the bill be passed.

Which is completely impossible in that it just cannot be done between
now and tomorrow.

I think you should ask her WHY? Is it that she doesn't know? Or does
and has chosen to give people false hopes for some hidden agenda?
Don't leaders owe HONESTY to those they seek to lead (particularly
those who are self appointed and not elected and by the way I'm not
counting the LIES of the Bushies as to why we "had" to go to war in
Iraq, in my opinion they are despicable war criminals). Is it smart or
considerate to use up people's limited energies in futile quixotic
pursuits? I mean the bill was DOA. There was no chance that if it was
"assigned" monday that it was going to be reported out due to the
mechanics of legislation (rules committee, other committes it might
have to be referred to, the arcane requirement of three presentations
in the PA legislature, the possibility of ANY amendment which would
require that the House act again etc).

Hold E L accountable on this. Ask her why she's telling people to urge
Pataki to sign a bill that he doesn't have for signature since it
never was sent to him by the NYS assembly.

Ask her what freaking gives.

Or not. And keep executing her "action alerts." If she says "jump"
jump if you want. Don't look either. Maybe she's telling you to jump
off a freaking cliff. But don't worry. Don't ask her. Just trust her.
LOL

Whatever.

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