Vermont Legislative Update 02-08-2019 - An analysis from DRM's Government & Public Affairs Team

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Vermont Legislative Update Quick Links

Paid family leave moves into the spotlight

Lawmakers reject cuts to sheriff’s contracts for hospital emergency rooms

House begins work on Capital Construction bill

Panel considers impact of association health plans on insurance market

House Natural debates new regulations in Act 250 bill

Cannabis legislation nears approval in Senate Judiciary Committee

Toxic chemical bill stalls in Senate Judiciary

Vermont’s Health Information Exchange back on track


Paid family leave moves into the spotlight

The House General, Housing, and Military Affairs Committee dedicated most of its time this week to the issue of paid family leave. The committee heard from administration officials, advocates for a mandatory program, and an administrator of Rhode Island’s program.

Administration officials promoted the governor’s proposal to combine with New Hampshire and offer a voluntary program for employers. They stressed the costs to employers of creating a mandatory program. Representatives from the Departments of Tax and Labor cited staffing, information technology, and start-up costs as challenges to the bill under consideration by the committee. They were opposed to the dual administration of the mandatory version, which gives the two departments responsibilities in administering the program.

Despite the administration’s opposition, the committee continued to work on H.107, the mandatory program bill. Questions from committee members focused on the scope of the bill, including whether bereavement or mental health leave would be included, who counts as “family,” and whether $150,000 is a suitable wage cap.

The committee also discussed changing the name of the bill, because its scope has grown to include personal medical leave. The question now is not if the bill will pass the committee, but how expansive it will be.


Lawmakers reject cuts to sheriff’s contracts for hospital emergency rooms

The Senate Appropriations and Health and Welfare committees this week rejected a provision in the Governor’s Budget Adjustment Act to cut funding for sheriff’s deputies to supervise psychiatric patients in hospital emergency rooms. After hearing testimony from Lamoille County Sheriff Roger Marcoux and the Vermont Association of Hospitals and Health Systems, the committees reinstated $145,508.

The Department of Mental Health argued that a large portion of the money the department pays under the sheriffs’ contracts is for supervision of patients in emergency departments versus transportation. Squirrel said the state is legally required to provide transport, but not supervision. Squirrel said it is a cost pressure for the department and the practice of supervision runs afoul of federal regulation.

Standards set by the Centers for Medicare and Medicaid Services, the accrediting organization for hospitals, prohibit non-hospital personnel from placing their hands on, restraining, or stopping a person from leaving an emergency department. The standards also state that patients are the sole responsibility of the hospital.

Squirrel said at least two hospitals have had findings against them and one is working on a corrective action plan to avoid losing its CMS certification. But Marcoux said, “This is not about guns or tasers; this is about taking care of people.” He said hospitals, especially the smaller ones, are much more challenged with these patients and need the assistance of sheriffs.


House begins work on Capital Construction bill

Lawmakers are reviewing a two-year capital construction and state-bonding bill that would appropriate $123.8 million. Of this, no more than $61 million would be spent in fiscal year 2020. The legislature moved to a two-year biennial capital bill budgeting cycle in 2011 to accelerate the construction of larger projects.

The governor’s proposal for fiscal year 2020 includes:

  • $22 million in state building renovations and enhancements;
  • $1 million to the Agency of Human Services to evaluate a suitable site for the proposed replacement of the current seven-bed Middlesex Therapeutic Community Residence to a sixteen-bed secure residential facility;
  • $4.5 million to AHS to continue the replacement of the state’s antiquated integrated eligibility program to a system that will allow individuals one-stop shopping for state benefits;
  • $1 million to the University of Vermont and $2 million to the Vermont State Colleges for renovation and major maintenance projects;
  • $12 million for clean water initiatives; and
  • $400,000 to the Department of Labor for the adult Career and Technical Education Equipment Grant program to purchase equipment at Vermont’s Career and Technical Education Centers.


Panel considers impact of association health plans on insurance market

The House Health Care Committee continues to consider the impact of association health plans on the health insurance market. AHPs are designed to allow small employers and sole proprietors to join together and access health insurance plans.

Vermont Legal Aid Chief Health Care Advocate Mike Fisher said AHPs threaten Vermont’s health insurance marketplace by splitting a larger risk pool into smaller pools. He said segmented pools are more volatile and could allow for adverse selection. Fisher said states have the authority to regulate AHPs, and he would like Vermont to enact the look-through doctrine—the concept that the size of each individual employer participating in the association determines whether that employer’s coverage is subject to small group or large group market rules.

Vermont Chamber of Commerce President Betsy Bishop said AHPs allow small businesses greater choice in plan design and price. She said if these plans are eliminated it is likely that premiums for these businesses and their employees will increase significantly for the 2020 enrollment year.


House Natural debates new regulations in Act 250 bill

The House Committee on Natural Resources, Fish and Wildlife heard testimony all week on a committee bill that proposes to update and modernize Vermont’s Act 250 law. The bill includes new protections for sensitive resources such as forest blocks, which connect habitat, and critical resource areas such as wetlands, river corridors, and land above 2,000 feet in elevation.

Representatives of the University of Vermont’s School of Forestry, the Gund Institute, and the Nature Conservancy praised the legislation’s goal to identify, map, and protect resources in a more concrete and focused manner than previously achieved under Act 250. The bill would also ease regulations in downtowns and village centers if communities agreed to stricter regulations for flood control and habitat protection.

The Scott administration and conservative members of the committee made clear that more work is needed to understand the impact on development and rural enterprises, as well as how the enhanced designation process would work, before they can support any expansion of jurisdiction under the bill. Further testimony is expected next week from the administration, as well as representatives of the development and business community.


Cannabis legislation nears approval in Senate Judiciary Committee

The Senate Judiciary Committee wrapped up testimony this week on legislation, S.54, to create a system for the taxation and regulation of cannabis. Although representatives of Vermont’s medical community continue to oppose commercialization, the committee is almost certain to pass a bill within the next week or so.

The committee decided not to allow home delivery, to allow towns to opt out of retail sales (but not to use zoning to preclude sales), and to remove language in the bill that would have expanded who is eligible for medical marijuana.

The committee approved a provision allowing medical dispensaries to provide retail sales prior to the creation of a statewide market. Existing dispensaries will be able to apply for temporary licenses as soon as August 1, 2019 and begin selling to the public on January 1, 2020.

The Judiciary Committee agreed to raise the recommended local option tax to two percent, which, combined with a 10 percent excise tax and the state six percent sales tax, will result in an 18 percent combined tax rate, in addition to fees imposed on retailers and cultivators. The bill is expected to be approved by the Judiciary Committee next week, and will be considered by several other Senate Committees.


Toxic chemical bill stalls in Senate Judiciary

Members of the Senate Judiciary Committee made clear this week that they weren’t prepared to vote on a bill, S.37, that would create strict liability for toxic chemical releases. The bill also would create a new cause of action for medical monitoring.

Vermont Natural Resources Commission attorney Jon Groveman focused his testimony on the bill’s medical monitoring provisions, which passed both the House and Senate last year. Groveman seemed to ignore its plain language when he argued that the bill would not allow for medical monitoring based on expanded strict liability claims. That assertion confused several senators, who pointed to language that contradicted his assertion.

Groveman argued that sixteen states have authorized medical monitoring claims, and that it has not resulted in a drastic increase in suits. He said that a medical monitoring claim requires 1) exposure to toxic substance, 2) through tortious conduct, 3) causing an increased risk of disease, and 4) requiring testing that will show if the disease progresses.

The committee has requested proposed language from the bill’s opponents that would narrow the scope of the medical monitoring provisions. The bill is expected to be taken up again next week, with a final vote scheduled for Feb. 15.


Vermont’s Health Information Exchange back on track

After years of reported poor progress towards a functional Health Information Exchange, the Department of Vermont Health Access reported this week to a joint hearing of the House Energy and Technology and House Health Care committees that legislative prompting and stakeholder efforts have helped the program get back on track. The goal of the HIE is to collect health information electronically and make it available across the health system, allowing providers to access patients’ longitudinal records regardless of location.

In 2017, the legislature called for a comprehensive study of the HIE and the non-profit organization that contracted with the state – Vermont Information Technology Leaders – to build it. The following session, the legislature used the report resulting from the study and stakeholder input to enact legislation requiring DVHA and VITL to follow a work plan to improve the failing system and submit a contingency plan if they are unable to meet the recommendations of the report.

Michael Costa, Deputy Commissioner of DVHA, reported to lawmakers that the requirements of the work plan have been met, a strategic state-wide plan was approved by the Green Mountain Care Board in November, and progress is being made in improving the HIE. Daniel Smith of the legislature’s Joint Fiscal Office confirmed that DVHA and VITL had met their obligations, and he recommended continuing on the current path rather than executing a contingency plan which would likely result in the termination of VITL’s contract.

DVHA has proposed changes to the consent policy for patient health record inclusion in the HIE to increase participation. Currently, Vermont is one of the few states that has an opt-in policy for a health records exchange, resulting in a low participation rate of 35 percent. Although VITL and Costa have both concluded that a change in consent policy would require only GMCB action, Sen. Chris Pearson, P/D-Chittenden, introduced S.80 this week, a proposal to change the policy

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