News from the Vermont State House - An analysis from DRM's Government & Public Affairs Team - February 2017 #3

by Downs Rachlin Martin PLLC
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Act 188 Plans On Hold as New Chemical Bill is Introduced

Nearly three years after the legislature passed a law to regulate children’s products containing chemicals of high concern, a web site intended to inform the public of those dangers has not been activated and there are no plans to do so.

David Englander, senior policy and legal advisor of the Vermont Department of Health, told the Senate Natural Resources and Energy Committee on Thursday that its database of records from manufacturers contains 3.5 million records of hazardous chemicals in children’s products, but the department "does not yet have a forward-facing web site" nor the funding to make the site functional.

Englander’s admission came as the committee was poised to take up a new bill that would expand the reporting requirements to all consumer products, allow citizens to file law suits to enforce environmental laws, and require anyone who leaks hazardous materials into the environment to pay for medical monitoring of potentially effected people. The draft bill is the result of a six-month working group process that produced a report to the legislature under Act 154 of the 2016 session.

In testimony this week, General Counsel Jen Duggan and Deputy Secretary Peter Walke of the Agency of Natural Resources urged lawmakers to focus on identifying and coordinating existing chemical reporting systems across all agencies, rather than enacting some of the bolder ideas contained in the report and the draft bill.

Committee member Sen. Chris Pearson, P-Chittenden, seemed to agree, suggesting that states that are enacting different strategies and requirements for chemical reporting should coordinate their efforts so there is one program rather than 50. The committee plans to spend a significant amount of time on the bill.

Senate Committee Advances Bill to Promote Workforce Housing

A Senate committee has taken the first step toward enacting one of the policies advocated by Gov. Phil Scott in his January budget address. On Wednesday, the Senate Economic Development, Housing and General Affairs Committee approved a bill, S.100, that is aimed at workforce housing.  

The bill, if approved by both houses, would enable the Vermont Housing Finance Agency to issue bonds totalling up to $35 million, which would be repaid over 20 years with a $2.5 million share of annual income received under the 1.4 percent property transfer tax. Under the plan, the Vermont Housing and Conservation Board would use the money to fund the construction and improvement of owner-occupied and rental housing for persons with low to middle income in areas targeted for growth, such as village centers.

A 2015 needs assessment by Bowen National Research found the largest need for affordable housing in the state is among households below 30 percent, and between 85-120 percent, of median household income. The bill requires housing for those two sectors to comprise at least 25 percent of any approved project.

The bill would also create exemptions from Act 250 review for certain housing projects in areas targeted for growth. The bill will be reviewed by the Senate Finance Committee next.

Woman’s Groups Support Proposed Pregnancy Accommodations Law

The March of Dimes, the Vermont Commission on Women, and Vermont Businesses for Social Responsibility on Thursday all supported H.136, a bill that would impose new state requirements for employers to accommodate pregnant and lactating women in the workplace.

Although there is a federal law that prohibits discrimination against pregnant women, witnesses said it requires a woman to prove that the protections she seeks are routinely provided to other disadvantaged persons. They said this law would set clear standards for employers and employees relating specifically to pregnancy.  

Witnesses cited employer prohibitions against eating and drinking in the workplace and a lack of isolated lactation space as situations that the new law would address. They said women often feel vulnerable and intimidated when negotiating with employers for pregnancy and lactation rights.

Speaking for the Vermont Retail and Grocers Association, President Erin Sigrist said existing law is sufficient to support pregnant women. If the bill is enacted, she said, it should not apply to businesses with 15 employees or fewer.

Chairman Helen Head, D-So. Burlington, said additional hearings will be held and invited employers to testify before the group.

Senate Bill Would Authorize More Than 20 New TIF Districts

A bill introduced and advanced by the Senate Economic Development, Housing and General Affairs Committee would allow the creation of more than 20 tax increment financing districts across the state. The districts, limited to two per county, would allow cities and towns to bond for municipal infrastructure that would attract private investment in areas targeted for growth.

The bill, S.99, would open a seven-year window for municipalities to act. The districts, which allow municipalities to retire infrastructure bonds with a share of new tax revenue gained from growth in the Grand List, would be approved by the Vermont Economic Progress Council.

Eleven communities in the state have invested in growth through TIF districts since 2004, but the legislature has been reluctant to approve new ones. Some legislators believe the investments would happen anyway and the diverted tax revenue robs money from the state’s education fund. Supporters say development would not occur but for the TIF.

Senate Committee Turns to Economic Development Bill

With its housing and TIF bills on their way to the Senate Finance Committee, the Senate Economic Development, Housing and General Affairs Committee has turned its attention to other forms of economic development. Late this week, the committee began a slow walk through a draft bill that contains widely divergent ideas from increasing the angel investor and research and development tax credits to hiking the minimum wage to $15 per hour by 2022.

Some provisions in the bill will win easy passage, such as a proposal endorsed by the Vermont Economic Progress Council to make recipients of Vermont Economic Growth Incentives swear that they are in compliance with environmental laws. Some are much more controversial, such as a plan to fund a sales tax holiday for energy star appliances by taking money raised through the existing energy efficiency charge on electric bills. The bill will be the focus of committee work next week.

Press Comes Together for Source Shield Law

News reporters stepped off of the sidelines and into the limelight this week when they appeared before the Senate Government Operations Committee to ask for a media shield law. Led by Seven Days reporter Paul Heintz for the Vermont Press Association, the news media asked for protections similar to the confidentiality accorded under attorney-client privilege and between the clergy and a parishioner.

Heintz said the press was not comfortable stepping out of its role as an observer and questioner and into the role of asking legislators for help. But, he said, recent experiences have highlighted the need to allow reporters to keep their sources confidential. Heintz cited a subpoena he received in the case against former state senator Norm McAllister. His testimony was backed up by Seven Days reporter Mark Davis, who said the paper had “spiked” a story recently for fear that law enforcement would attempt to pursue his sources, who are disadvantaged and down and out, but accused of harboring drug dealers.  

The print and broadcast media have formed a broad coalition to argue for the law. Reporters testifying at the hearing also included Anne Galloway of vtdigger.org, former Associated Press reporter David Gram and freelancer writer Hilary Niles. The draft bill, S.96, was introduced in the Senate on Friday.

Health Care Committee Examines Medicaid Pilot and ACO Structure

On the heels of the recent Medicaid All Payer Model pilot announcement, the House Health Care committee is continuing to explore payment reform and examine the development and structure of Vermont’s accountable care organizations. This week, the committee took testimony from OneCare Vermont, the ACO that will be responsible for the health of 30,000 of Vermont’s Medicaid enrollees under the pilot project.

The Medicaid pilot is Vermont’s first full step away from the traditional fee-for-service health care payment model. OneCare Vermont CEO Todd Moore told the committee that not only will the new, value-based All Payer Model provide cost-containment and increased quality in patient care, but also a system shift is required by the Affordable Care Act and federal government policy changes. Committee members responded with concern that the short, one-year Medicaid pilot project contract would not provide enough outcome information to make informed decisions about next health care reform steps.

Assuming continued movement towards an All Payer Model and responding to provider support for a unified ACO, OneCare Vermont and the two other operating ACO’s will officially merge by 2018 into a unified enterprise named Vermont Care Organization. Within the coordinated enterprise, two of the three ACO’s -- OneCare Vermont and Community Health Accountable Care -- will shoulder divided provider responsibilities. One Care Vermont will serve as the ACO for providers ready for a the full shift to assumed risk programs (including the Medicaid Pilot Program), and CHAC will serve as the non-risk ACO for providers that are still preparing for the shift to risk. The third ACO, Healthfirst, will end its ACO program contracts but will serve in VCO governance. As directed by legislation passed last year, the Green Mountain Care Board will assume oversight of the organization. The board is in the midst of rule-making for ACO Oversight.

Committee Questions Proposed Reductions in Payments to Hospitals

Department of Vermont Health Access Deputy Commissioner Michael Costa told the House Health Care Committee this week that the state can gain needed savings by reducing Disproportionate Share Hospital (DSH) payments to hospitals by 10 percent. The state makes the federally matched payments to hospitals to cover their uncompensated patient costs.  The payments are made proportionately to bring all hospitals to a level playing field.

Costa said the reduction is appropriate in light of significant investment in reducing uncompensated care via the Affordable Care Act and related states’ investments. The ACA also requires a step-down reduction in DSH payments to states, although the reduction timeline has been delayed and it is unclear what methodology will be used to calculate the reductions.

Vermont Association of Hospitals and Health Systems Senior Vice President Michael Del Trecco testified that VAHHS member hospitals don’t support the proposal. He said that the reduction in DSH payments will squeeze the revenue used to provide patient care and will increase premium costs to insurance customers. ACA changes could also increase the uninsured rate from four percent to as much as 10 percent, putting even more pressure on hospital budgets. Del Trecco also told the committee that hospitals need to have healthy balance sheets as they transition into an all-payer model system.

Members of the committee, led by its chair Rep. Bill Lippert, D-Hinesburg, expressed frustration that they weren’t presented with full hospital budget information in order to see how the DSH payments fit into their revenues.

The committee will continue to take testimony and examine the issue before recommending the proposal for inclusion in the DVHA budget.

Insurance Carriers Concerned Bill-back Will Increase Premiums

Vermont insurance carriers MVP Healthcare and Blue Cross and Blue Shield of Vermont told the House Health Care Committee this week that the increase in bill-backs that are assumed by the Green Mountain Care Board’s proposed fiscal year 2018 budget will cause direct and substantial increases in premium costs to insurance consumers. The GMCB was given statutory authority in 2012 to bill back the costs of certain hospital and insurer oversight and regulatory activities.

GMCB Financial Director Kate Slocum told the committee that the proposed 80 percent increase in bill-backs was due partly to a request by the administration to use the revenue mechanism more heavily to support GMCB’s oversight activities. The bill-back increase also compensates for a shift in funding from the Global Commitment Fund to the General Fund to better leverage federal matching funds. Slocum noted that bill-back authority hasn’t been fully used in the past and if the proposal is approved, 100 percent of bill-back authority would be reached.

After the carriers’ initial testimony on Thursday, Slocum submitted a memo to the committee on Friday, detailing the bill-back increase’s projected premium impact. The memo concludes that there is going to be some rate impact, but because GMCB and the carriers have different data available to them, the estimates differ. Slocum told the committee that the impact will be larger for MVP Healthcare because BCBS can spread the increased cost across their larger insured pool. The statutorily required allocations to insurers are not tied to the number of covered lives.

Lippert suggested that the committee look at the statutory bill-back percentage allocations between hospitals, insurance companies and others to determine if a more equitable allocation is necessary. Both Lippert and the board discussed requiring Accountable Care Organizations to contribute bill-back to help pay for their regulatory oversight, but want to ensure that hospital-based providers that are part of ACO’s are not double billed. The GMCB will examine the issue over the next two weeks and report back to the committee before the House Appropriations Committee completes review of its budget.

Panel Passes Duty To Warn

On a 4-1 vote, the Senate Judiciary Committee on Tuesday passed S.3, a bill that clarifies when mental health professionals must disclose information concerning a client or patient. The full Senate gave initial approval to the bill on Friday.

The bill states that a mental health professional has a duty to exercise reasonable care to protect an identifiable victim or property if he or she knows or should know that the patient poses an imminent risk of serious danger to an identifiable victim or could cause a lethal threat to a person in the vicinity. It also states that if a patient is released from an inpatient setting, a discharge plan must include necessary information, consistent with state and federal privacy law, to enable a person or persons named in the plan to carry out their duties.  

S.3 was introduced in response to the Vermont Supreme Court decision Kuligoski v. Brattleboro Retreat and Northeast Kingdom Human Services, which expanded the duty to warn. Providers believe the Kuligoski decision is difficult to interpret – leaving clinicians unclear over how to meet the duty and reluctant to release patients to less restrictive settings. The prior standard required a mental health professional who knew that a patient posed a risk of danger to an identifiable victim to exercise reasonable care to protect him or her from the danger by informing the identified victim or law enforcement of the risk.

Broad Support for Mental Health Crisis Commission

The House Health Care Committee took testimony on Tuesday on H.145, a bill that would establish a Mental Health Crisis Response Commission. The commission would review fatalities and serious bodily injuries that occur during interactions between law enforcement and persons demonstrating symptoms of mental illness. The bill was introduced in response to an incident in Burlington in which police fatally shot an individual experiencing a psychiatric crisis.

Burlington Police Department Deputy Chief of Administration Jannine Wright testified in support of the bill. She said her department responds to numerous incidents involving mental health patients. She believes that having police respond to an incident involving a mental health patient is a failure in itself. However, responses to mental health situations are increasing and her department has invested in training for interacting with people experiencing mental health crises and have updated their policies and procedures. They now have the tools to sequester individuals until the situation has de-escalated.

The committee has identified the bill as a priority.

Evaluation of Suicide Profiles Considered

The House Health Care Committee took testimony on Tuesday on H.184, a bill that requires the department of mental health to evaluate the profile and factors related to each suicide in the state and report the findings annually to the legislative committees of jurisdiction.

DMH Policy Director Nick Nichols said conceptually the department supports the intent of the legislation but has concern with the language around essential information to be reviewed in each individual case. DMH would encourage a broader stakeholder group to be the review body. He said that additional resources may be needed depending on the level of information that will be reviewed. Lippert would like DMH to provide alternative language to the committee which does not require an appropriation.

This bill is a priority for the committee.

Support for Modest Meals at Conferences for Medical Professionals

On an unanimous vote Wednesday, the Senate Health and Welfare Committee passed S.45, a bill that allows health care providers to accept modest meals at conferences that offer a significant educational, medical, scientific, or policymaking benefit as long as any content accompanying the meal does not promote specific products. The full Senate gave initial support for the bill on Friday.  

Legislation was passed in 2009 that banned drug manufacturers from paying for gifts, including meals and travel, to health providers. Legislators say that they have heard from providers that they are not welcome to attend dinners because they are considered gifts.

The bill is supported by the Vermont Medical Society, the member organization for physicians in the state.

Access to Treatment For Patients with a Terminal Illness on Life Support

The Senate Health and Welfare Committee has tabled S.37, the “Right to Try” bill that would provide access to experimental medical treatment for patients with terminal illnesses. It was apparent in the hearing on Wednesday that the bill is viewed unfavorably by the committee. Committee Chair Sen. Claire Ayer, D-Addison, said that in 2013 the legislature enacted the Patient Choice at the End of Life legislation. She fears S.37 would put current law in jeopardy if this bill were to pass.

Ayer offered the bill sponsor, Sen. Dick McCormack, D-Windsor, time to come up with alternative language for the committee to consider.

Panel Releases Draft Mental Health Bill

The Senate Health and Welfare Committee on Friday released a draft bill that examines various aspects of the mental health system in order to improve access to care and care coordination throughout the mental health system. Committee members feel strongly that before moving ahead with any changes to the system, an analysis is necessary to take stock of how it is functioning and what steps are necessary to achieve cost-efficient improvements. The bill includes ten studies and includes these requirements:

  • Analyze patient movement through the system, including voluntary and involuntary admissions, that identifies barriers to medically-necessary patient transitions between levels of care;
  • Expand staffing for the peer-run hotline twenty-four hours per day and seven days a week – this requires a $240,000 appropriation;
  • Identify programs and models nationally that provide the best outcomes for moving individuals with substance abuse disorders or psychiatric disabilities into employment as part of their recovery;
  • Analyze the role of involuntary treatment and medication in hospital emergency departments and the wait times for inpatient beds on psychiatric units;
  • Examine best practices for training, recruiting, and retaining health care providers;
  • Engage other states in a discussion on the creation of national standards to foster greater interstate mobility among providers;
  • Explore the need for an inpatient geriatric and forensic psychiatric facility and develop a plan for the design, siting and funding for the facility;
  • Develop a plan to integrate multiple sources of payments to designated mental health agencies to increase efficiency and prevent administrative burdens;
  • Establish a fiscal year 2019 pay scale that includes a minimum hourly wage of $15 for direct care workers; and
  • Evaluate opportunities for employees of the designated mental health agencies to purchase health insurance through the State employees’ health benefit plan.

Administration of Immunizations by Pharmacists Considered

The Senate Health and Welfare Committee has postponed action on a bill, S.71, that would enable pharmacists to administer immunizations to individuals seven years of age or older. The current age is 18 or older. Introduced by Sen. Kevin Mullin, R-Rutland, the goal of the bill is to increase vaccination rates for young Vermonters.

Many providers and the Vermont Medical Society oppose the bill because it would interfere with the doctor-patient relationship. VMS Operations Director Stephanie Winters said it would undermine the concept of the patient-centered medical home, a team-based health care delivery model that is intended to provide comprehensive care to patients.

Colin Benjamin, director of the Office of Professional Regulation, told the committee that the Board of Pharmacy also has concerns with the bill. The board lacks confidence that the immunization registry administered by the Vermont Department of Health is working as well as needed, that there will not be uniformity in orders if there is not a standing order from a physician, and that booster shots children receive are much more complex to administer. He stressed that childhood vaccines are much different from adult vaccines.

Vermont Association of Chain Drug Stores lobbyist Heather Shouldice supports the bill and said community pharmacists are ideally situated to have a significant role in improving vaccination rates since they are readily accessible for patients and pharmacists on days, nights, and weekends.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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