Vermont Legislative Update 01-10-2020 - An analysis from DRM's Government & Public Affairs Team

Downs Rachlin Martin PLLC[co-author: Danielle Bradtmiller]

Vermont Legislative Update Quick Links

Lawmakers rally behind Brattleboro Retreat

Court decision scrambles medical monitoring debate

Act 250 compromise brings strange bedfellows together

Paid family leave heads to conference committee

Minimum wage moves to conference committee

Education committees prepare for a busy session

Non-compete agreements up for discussion

Public records ruling debated

Older Vermonters Act

Revenue committees hear bleak demographic report

Lawmakers rally behind Brattleboro Retreat

News about severe financial difficulties at the Brattleboro Retreat quickly spread throughout the State House this week, and just as quickly legislators rallied to throw their support behind the venerable institution. Low patient census, a high Medicaid payer mix, and a tight labor market requiring the use of expensive contract labor has exacerbated the Retreat’s financial challenges.

Brattleboro Retreat CEO Dr. Louis Josephson told the House Health Care Committee that like many other hospitals in the state, the Retreat has been working hard to address financial sustainability. Since Tropical Storm Irene forced the closure of the Vermont State Hospital, the Retreat has stepped up to back-fill needed services. He said Medicaid patients occupy more than 50 percent of the Retreat’s inpatient beds today and stressed that the Retreat cannot continue to function as an arm of the state mental health system without appropriate financial support.

Agency of Human Services Secretary Mike Smith told a number of committees that the state has invested significant dollars at the Retreat in the last two years. Smith said that after receiving a letter from the Retreat last week about its plans to explore closure or potential sale of the facility, it was prudent for the agency to begin contingency planning.

Additional meetings have taken place throughout the week and both sides agree that finding a path to make the Retreat financially stable is the goal. Gov. Phil Scott said in his State-of-the-State address, the Retreat “is simply too critical for us to let fail.”

Court decision scrambles medical monitoring debate

A pending Senate vote on whether to override Gov. Phil Scott’s veto of S.37, a medical monitoring bill from last session, was complicated two weeks ago when Vermont federal court Judge Geoffrey Crawford issued a decision in a PFOA contamination case in Bennington that medical monitoring claims can be brought in Vermont. Judge Crawford’s decision led many business groups to argue that S.37 is no longer needed.

The Senate Judiciary Committee considered the issue this week, and by a 3-2 vote recommended to the full Senate that the veto be overridden. The majority argued that S.37 includes important provisions that are not included in the Crawford decision. If the override vote fails, they reasoned, they can come back and work on a compromise bill.

The committee largely followed the recommendation of Vermont Law School Professor Ken Rumelt, who has taken the unusual position of acting solely as an advocate for environmental organizations. Rumelt presented a chart claiming that the medical monitoring test that Judge Crawford adopted – which business groups generally support – is not materially different than S.37. But Rumelt then strenuously argued against substituting Crawford’s test for that of S.37, saying that the court’s decision lacks important consumer protections. The committee largely overlooked the contradictions in Rumelt’s testimony.

Act 250 compromise brings strange bedfellows together

In a rare demonstration of compromise on Act 250, the Scott administration and Vermont’s environmental groups have agreed on a comprehensive package of changes to the state’s iconic land use law. On the first day of the 2020 session, the House Committee on Natural Resources, Fish, and Wildlife heard a joint presentation by Peter Walke, Deputy Secretary, Agency of Natural Resources, and Brian Shupe, Executive Director, Vermont Natural Resources Council, representing environmental groups.

Of the two dozen changes outlined in the testimony, an exemption from review of development in designated downtowns and neighborhood development areas and the proposed elimination of regional district commissions drew the most attention. The Scott administration has pushed for the elimination of Act 250 jurisdiction in Vermont’s downtowns that currently have zoning and planning regulations that meet the criteria of Act 250.

Some lawmakers pushed back on the proposal to eliminate the regional district commissions, which would be replaced by a professional three member Enhanced Natural Resources Board that would rule on all major Act 250 applications. Appeals would go directly to the Vermont Supreme Court. Several committee members felt that the deal struck between the administration and environmental groups had left them out of the process. “This is presented as a fait accompli,” said Rep. Paul Lefebvre, R-Newark. “The district level is where local issues are solved. We’ve been left out of this!”

Other areas of agreement include a jurisdictional trigger for lands defined as ridgelines above 1500 ft. and a commitment to address trails as a critical component of the package of changes.

Lawmakers generally avoided commenting on the plan, preferring instead to wait for the weeks of testimony that are certain to come. The committee expects to receive draft language on the joint changes early next week.

Paid family leave heads to conference committee

The paid family leave bill, H.107, was pulled off the legislative calendar on the first day of the session and sent back to the House General, Housing, and Military Affairs Committee. After a fairly short conversation, the committee voted to move the bill to a conference committee where the House and Senate will likely agree to a compromise. H.107 will then move through the legislature and on to the Governor’s desk. A veto is expected. A detailed summary of the current version of H.107 can be found here.

Minimum wage moves to conference committee

Legislation to increase the state’s minimum wage, S.23, was taken off the House Calendar this week and moved back to the General, Housing, and Military Affairs Committee for further action. House and Senate versions of minimum wage proposals can be found here. This week the committee reviewed an issue brief on the cost of increasing minimum wages for healthcare workers that are paid through Medicaid. The financial impact, when considering compression costs, is anticipated to be about $4 million. Compression costs are the higher wages that employers may pay to those who are currently earning just above the higher minimum wage.

The committee voted to send the bill to a conference committee. A group of liberal Democrats is aligning with Progressives to vote against any changes that would have a lesser impact on businesses. This could make a compromise more challenging. Should the liberal Democrats, Progressives and Republicans vote against this bill, there may not be enough votes for passage. S.23 is headed down a bumpy road.

Education committees prepare for a busy session

The House Education Committee has begun reviewing a Student Weighting Study Report, that if followed, would require an overhaul of Vermont’s education funding system. That isn’t likely to happen in the foreseeable future.

The committee is expected again to try to address the many problems within the state’s Pre-K system. This would require a concerted effort by the Agency of Education working in collaboration with the Agency of Human Services, and this has proven to be a Gordian knot that has yet to be untangled. The Senate Education Committee is considering changes to the State Board of Education’s jurisdiction, garnering a lot of attention in the committee.

Non-compete agreements up for discussion

H.1 is a bill to limit the use of agreements that prohibit individuals from competing with former employers. This bill was considered last session but no action was taken. The House Commerce and Economic Development Committee will again be discussing this issue on January 17. There appears to be some agreement in the committee that existing court-imposed standards could be improved by creating more clarity in statute. Among other things, the committee is expected to consider an income threshold that would have to be reached in order to trigger eligibility for a non-compete agreement.

Public records ruling debated

The House Committee on Government Operations began a review of the public records law this week in response to a recent Supreme Court ruling that it provides for free and open examination of records. The Office of Attorney General is at odds with the Scott administration and Secretary of State Jim Condos over whether members of the public should be allowed to use personal devices to copy government records at no charge.

Subsequent to the ruling, the Scott administration advised state agencies that members of the public may use a personal device to copy records without charge. Attorney General TJ Donovan has a different view. He believes that anyone who uses their own device to take photos of a public record should be assessed a charge for staff time and other resources expended to get those records ready for inspection.

Condos told the committee on Thursday that although there may be “a burden in preparing records for inspection, the burden appropriately falls on government” since the public has a right to access the records that belong to them. Anne Galloway, Executive Director of, added that fees limit access to records that the taxpayers have already paid for. State Archivist Tanya Marshall also said that proper records management plans reduce the burdens on agencies of providing public access to documents.

Condos suggested that the committee create an open government ombudsperson and clarify that there is no charge for inspecting public records. Both the House and Senate Government Operations committees will take further testimony on the issue next week.

Older Vermonters Act

Legislation to help aging Vermonters live independently was introduced this week based on recommendations contained in the Older Vermonters Act Working Group Report. H.611 is drafted to work in tandem with the federal Older Americans Act, the Vermont State Plan on Aging, and the Choices for Care program. It calls for regular funding increases for health care and long-term care providers who serve older Vermonters. Vermont’s population is growing older, and that shift in demographics is expected to continue. This will have implications for the state’s workforce, economy, and community system of supports and services.

Members of the House Committee on Human Services, who reviewed the report this week, , said that it’s their desire to make Vermont a good place to age. The committee will continue to work on aging issues this session.

Revenue committees hear bleak demographic report

The legislative revenue committees - House Ways and Means and Senate Finance committees – heard a presentation this week on Population Changes and Effects on Vermont State Revenue from Tax Structure Commission Staff Director Sean Sheehan. The report shows that Vermont’s aging and shrinking demographic will negatively affect all three of the state’s largest revenue sources: personal income tax, consumption taxes, and education property taxes.

Sheehan described three trends affecting Vermont demographics. First, Vermont’s total population has barely changed over the last dozen years. Within that larger trend are three components of population changes with major impact on the state’s ability to raise revenue. There are more seniors, fewer children, and fewer working-age adults. By 2030, one in four New Englanders will be 65 or older, up from one in seven in 2010.

Second, Vermonters are more metropolitan and less rural. Only three of Vermont’s counties have grown from 2000 to 2018.

Third, Vermont has more households, with fewer people in them. The average Vermont household is five percent smaller than it was in 2000. Married couples with or without children households are down as are single-parent family households.

All three major revenue sources will be impacted by these trends. Income tax revenues will fall due to fewer workers and lower income by seniors. Over the next decade, Vermont will see a decrease of peak earners and increase of retirees and workers in their early years. Counties outside of the Burlington metro area are losing working age adults and children at a more dramatic pace.

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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