Health and Human ServicesSession Review 2023

Session Review: Health and Human Services

Measures intended to restrict abortion and gender affirming care for minors, address the state’s health care workforce shortage and increase access to behavioral health services were among the proposals considered by the Health and Human Services Committee.

Gender affirming care, abortion restrictions

Two bills advanced by the committee dominated the legislative session and ultimately were combined into one measure.

An effort by Thurston Sen. Joni Albrecht to effectively ban abortion at six weeks under her LB626 stalled on the second round of consideration following a failed attempt to force a vote on the bill’s advancement.

Under Albrecht’s bill, a physician would be required to test for “steady and repetitive rhythmic contractions” within the gestational sac before inducing an abortion by estimating gestational age, performing an ultrasound and making a medical record of methods used. If such activity were detected, a physician would be prohibited from performing an abortion except in cases of sexual assault, incest or medical emergency.

Ralston Sen. Merv Riepe attempted to amend LB626 during select file debate to narrow the state’s 20-week post-fertilization ban to a 12-week ban. His proposal included an exception for a fetal anomaly incompatible with life — defined as one diagnosed before birth that cannot be treated and would, with all reasonable certainty, result in the death of an unborn child within three months.

Riepe’s proposal also would have repealed sections of existing state law outlining criminal penalties for providing unauthorized abortion care. A cloture motion on LB626 fell one vote short, failing 32-15, ending debate before lawmakers could consider Riepe’s amendment.

Later in the session, Blair Sen. Ben Hansen offered a revised version of the proposal as an amendment to another bill heard by the committee this session, LB574.

That measure, sponsored by Omaha Sen. Kathleen Kauth, was successfully amended to create the Let Them Grow Act and the Preborn Child Protection Act.

The Preborn Child Protection Act narrows Nebraska’s 20-week post-fertilization abortion ban to instead ban the procedure after the gestational age of 12 weeks. Gestational age calculates a pregnancy from the first day of a pregnant individual’s last menstrual cycle rather than from the moment of fertilization.

The act retains exceptions for sexual assault, incest and medical emergencies outlined in LB626, but does not include exceptions for fetal anomalies. The bill also does not repeal sections of existing state law outlining penalties for providing unauthorized abortion care.

The following are excluded from the definition of an abortion under the bill:
• removal of an ectopic pregnancy;
• removal of the remains of an unborn child who already has died;
• an act done with the intention of saving the life or preserving the health of an unborn child; and
• termination or loss of life of an unborn child who is not being carried inside an individual’s body during the practice of vitro fertilization or other assisted reproductive technology.

Also included in LB574 is the Let Them Grow Act.

Beginning Oct. 1, 2023, the bill prohibits physicians from performing “gender-altering” surgical procedures on individuals under age 19. The bill grants the state’s chief medical officer the authority to establish regulations regarding non-surgical gender-altering procedures for minors in Nebraska, including the use of hormone therapy and puberty blockers.

At minimum, the regulations must state that a health care practitioner may prescribe or approve puberty-blocking drugs and/or cross-sex hormones for a patient younger than 19 only if the individual has a “long-lasting and intense pattern of gender nonconformity or gender dysphoria” that began or worsened at the start of puberty.

Other minimum requirements include a minimum number of gender-identity focused therapeutic hours and a waiting period between the time a health care practitioner obtains informed patient consent and the prescribing of hormone therapy or puberty blockers.

The state Department of Health and Human Services may adopt rules and regulations consistent with those established by the chief medical officer.

Under LB574, individuals who began receiving care prior to the ban’s effective date will be able to continue treatment.

A physician who knowingly violates the bill’s provisions is subject to review by the state’s medical licensing board. An individual who received a gender-altering procedure while under the age of 19, or their parent or guardian, could bring a civil action against the physician within two years of discovery.

The bill also prohibits the distribution or use of state funds for any entity, organization or individual that provides gender-altering surgery for minors in Nebraska.

LB574 passed on a vote of 33-15 and took effect immediately.

Omnibus health services

A bill intended to cover a Medicaid reimbursement gap in Nebraska became an omnibus health services measure.

LB227, introduced by Hansen, requires that the state Department of Health and Human Services provide Medicaid reimbursement to a hospital at 100 percent of the statewide average nursing facility per diem rate if a Medicaid enrollee:
• has been admitted as an inpatient to the hospital;
• no longer requires acute inpatient care and discharge planning;
• requires nursing facility level of care upon discharge; and
• is unable to be transferred to a nursing facility due to a lack of available beds or requires a public guardian but one is unable to be appointed.

Lawmakers amended LB227 to include provisions of more than 20 other measures related to health care licensure, practice and programs.

Among those measures is LB84, introduced by Omaha Sen. Jen Day, which extends eligibility for Supplemental Nutrition Assistance Program benefits. SNAP eligibility in Nebraska currently is set at 165 percent of the federal poverty level, but was scheduled to drop to 135 percent of FPL on Oct. 1, 2023.

LB84 extends the sunset date for expanded SNAP eligibility to Oct. 1, 2025.

The provisions of LB570 also are included. Originally introduced by Omaha Sen. Tony Vargas, LB570 creates the Overdose Fatality Review Teams Act to design a regulatory framework for establishing county level multidisciplinary teams to collect data related to opioid overdose deaths in Nebraska.

DHHS is responsible for developing regulations to carry out the act and teams will begin providing annual de-identified data on local incidents, causes and contributing factors of opioid deaths by June 1, 2024.

Other measures included in the omnibus package are:
• LB35, introduced by Bennington Sen. Wendy DeBoer, which extends the sunset date for transitional child care assistance under the federal Child Care Subsidy program and cash assistance to families who have not achieved economic self-sufficiency to Oct. 1, 2026;
• LB75, introduced by Vargas, which grants the state’s Child and Maternal Death Review Team the authority to conduct reviews of the rates, trends and causes of severe maternal morbidity in the state;
• LB123, introduced by Sen. John Fredrickson of Omaha, which requires behavior analysts to obtain a credential under the Uniform Credentialing Act and creates a Board of Behavior Analysts to establish licensure standards and adopt a code of conduct;
• LB181, introduced by Hansen, which specifies that a prescription remains valid despite the prescribing practitioner’s subsequent death or retirement, or the suspension or revocation of the prescribing practioner’s credential, and allows a pharmacist to use their professional judgment to fill or refill a prescription which has sufficient fills remaining;
• LB202, introduced by Fremont Sen. Lynne Walz, which allows certified and trained pharmacy technicians to administer vaccines to individuals over 3 years of age if the vaccine is verified by a supervising pharmacist on site;
• LB219, introduced by Sen. Teresa Ibach of Sumner, which requires DHHS to rebase inpatient interim per diem rates for critical access hospitals every two years using the most recent audited Medicare cost report;
• LB245, introduced by Walz, which increases the per diem reimbursement for members of the Board of Barber Examiners from $75 to $150;
• LB261, introduced by Ralston Sen. Merv Riepe, which changes the requirements of a split apprenticeship for individuals studying mortuary science by allowing the apprentice license to be completed while attending a mortuary science school;
• LB286, introduced by Walz, which provides confidentiality to physicians who participate in a wellness program unless a peer coach determines that the physician’s condition constitutes a danger to public health and safety;
• LB345, introduced by Omaha Sen. Christy Armendariz, which defines palliative care as specialized medical care for people living with a serious illness that carries a high risk of mortality or negatively impacts quality of life;
• LB357, introduced by Walz, which increases the maximum monthly support allowable under the Disabled Persons and Family Support Act from $300 to a maximum of $400 for eligible individuals and from $150 to $200 for an additional disabled family member;
• LB402, introduced by Sen. Beau Ballard of Lincoln, which specifies that the definition of a home health agency does not include a person or entity that engages only in social work practice;
• LB419, introduced by Lincoln Sen. Anna Wishart, which expands Medicaid coverage for postpartum women from 60 days to at least six months. DHHS may submit a state plan amendment for 12 months;
• LB431, sponsored by Hastings Sen. Steve Halloran, which authorizes the Nebraska State Patrol to submit health professional licensure applicants’ fingerprints to the F.B.I. for national criminal history record information checks;
• LB434, introduced by North Platte Sen. Mike Jacobson, which requires that long-term acute care hospitals enroll as Medicaid providers and directs DHHS to adopt a state plan amendment or federal Medicaid waiver;
• LB458, introduced by Ballard, which allows a fill pharmacy to deliver to a patient on behalf of a dispensing pharmacy if both pharmacies are under common ownership;
• LB517, introduced by Walz, which requires DHHS to implement a pilot program to facilitate the transfer of patients with complex health needs from eligible acute care hospitals to appropriate post-acute care settings and appropriates $1 million to carry out the pilot program;
• LB572, introduced by Riepe, which updates the Medical Nutrition Therapy Act by making terminology consistent and providing a pathway to licensure for certified nutrition specialists;
• LB586, introduced by Seward Sen. Jana Hughes, which provides $3 million in general funds in fiscal year 2023-24 and $3 million in FY2024-25 to expand clinical training sites for nurses throughout the state;
• LB590, introduced by Sen. Rick Holdcroft of Bellevue, which increases the standard of need for eligible aged, blind and disabled persons from at least $60 to $75 per month for personal needs allowance if the individual resides in an alternative living arrangement;
• LB611, introduced by Riepe, which changes drug administration requirements for a hospital, ambulatory surgical center or health care practitioner facility to allow any unused portion of certain topical medications be offered to a patient upon discharge if required for continued treatment; and
• LB765, introduced by Niobrara Sen. Barry DeKay, which eliminates regional trauma advisory boards and replaces them with regional trauma committees and updates definitions.

LB227 passed on a vote of 47-0 and certain sections took effect immediately.

Other measures

A new statewide delivery model for behavioral health service provision in Nebraska also was approved by lawmakers this session.

LB276, introduced by Wishart, adopts the Certified Community Behavioral Health Clinic Act in an attempt to increase access to outpatient mental health and substance abuse treatment through service delivery coordination with community partners.

The CCBHC program requires that DHHS develop a prospective payment system through which providers will be reimbursed based on the anticipated cost of providing required services to Medicaid recipients on either a daily or monthly basis, rather than on a fee-for-service basis.

Under LB276, DHHS will apply for a Medicaid state plan amendment through the federal Centers for Medicare and Medicaid Services to implement the bill’s provisions by Jan. 1, 2026.

The measure also states legislative intent to cap general fund appropriations to the program at $4.5 million annually, which will be matched by federal funds.

The bill passed on a 46-0 vote and took effect immediately.

LB358, introduced by Walz, would increase the reimbursement rate for dental services provided under Medicaid by 25 percent. The bill was placed on general file by the committee but was not scheduled for debate.

LB792, introduced by Omaha Sen. Justin Wayne, would require DHHS to create a pilot program located in a metropolitan class city to assess and treat individuals with PTSD resulting from community gun violence.

Omaha currently is the state’s only metropolitan class city.

An amended version of LB792 was included in the state’s budget proposal this session and approved by lawmakers. The proposal subsequently was vetoed by Gov. Jim Pillen and no override motion was offered.

LB88, sponsored by Omaha Sen Megan Hunt, would remove the state’s lifetime ban on Supplemental Nutrition Assistance Program eligibility for individuals with certain drug-related convictions.

Also considered this session was LB179, sponsored by Omaha Sen. John Fredrickson, which would prohibit credentialed health care professionals from providing conversion therapy to anyone under the age of 19 in Nebraska. The ban would not apply to a clergy member or religious counselor providing conversion therapy in a pastoral capacity rather than as a health care provider.

Both bills remain in committee.

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