Vermont Legislative Update 1-12-18 - An analysis from DRM's Government & Public Affairs Team

Downs Rachlin Martin PLLC

Downs Rachlin Martin PLLC

Vermont Legislative Update Quick Links

Committee Approves Holdover Consumer Protection Bill

Finance Takes Up Broadband Privacy Bill

Panel Considers Regulation of Medical Assistants

Committee Begins Prescription Drug Discussion

GMCB Outlines Legislative Priorities

Vermont Information Technology Leaders at a Crossroads

Secretary of State Proposes Update to Rulemaking Law

Waste Districts Seek Funding from Makers of Household Products

Quick Hearing Advances Extension of Petroleum Cleanup Fund

DPS and GMP Explain Drivers of Five Percent Electric Rate Increase

Senate Committee Begins Hard Look at Minimum Wage


Committee Approves Holdover Consumer Protection Bill

The House Commerce and Economic Development Committee unanimously approved a bill this week, H.593, that includes a variety of consumer protection provisions that were considered but not approved last year. A similar bill passed the Senate last year.

The bill’s provisions include:

  • A ban on the automatic renewal of contracts longer than one month unless a consumer affirmatively opts in to the automatic renewal provision;
  • Prohibits a contractor from holding retainage for contracted materials that have been delivered by a materialman and accepted by the contractor and are covered by a manufacturer’s warranty or graded to meet industry standards;
  • Makes a variety of changes in Vermont’s credit freeze statute;
  • Establishes credit report protections for minors and vulnerable adults; and
  • Creates standards for the use of credit scores by insurers.


Finance Takes Up Broadband Privacy Bill

The Senate Finance Committee took preliminary testimony on Friday on the Vermont Broadband Internet Privacy Act, S.289. The bill is intended to incorporate into statute an internet privacy rule that was adopted by the Federal Communications Commission under the Obama Administration, but which was subsequently repealed by Congress.

Under the bill, broadband providers would generally be prohibited from using, disclosing, or permitting access to consumer proprietary information without the approval of a customer. The bill includes a variety of exceptions related to the provision of services by a broadband provider.

The committee is likely to take additional testimony. The bill raises a host of technical issues and challenges relating to the transmission of personal data over the Internet.


Panel Considers Regulation of Medical Assistants

The House Government Operations Committee took testimony on Wednesday on H.496, a bill that calls for the regulation of medical assistants. Medical assistants work alongside physicians, mainly in medical offices, and assist with patient care by conducting patient history, taking and recording vital signs and assisting with documentation. They are currently not regulated.

Introduced by Rep. Betsy Dunn, D-Essex Junction, the bill would require the Office of Professional Regulation to assess whether the profession should be regulated. Vermont Medical Society Executive Vice President Jessa Barnard said her organization worries that regulation of medical assistants will increase costs and decrease the flexibility available to medical practices without improving patient safety. She said rather than regulating the practice, physicians should be encouraged to delegate appropriately. As well, under the state’s All Payer Model and payment reform goals, practices are being encouraged to use staff in new and innovative ways, freeing up physicians to treat patients.

Colin Benjamin of the OPR said he agrees with the Vermont Medical Society. OPR will typically receive a request from an organization that its profession be regulated. If the committee decides to move forward he would like it to be at the request of medical assistants or another organized group.

The committee will take additional testimony on Jan. 16.


Committee Begins Prescription Drug Discussion

Senate leaders have identified prescription drug pricing as a priority for this session, and on Wednesday the Senate Health and Welfare Committee reviewed four proposals – S.146, S.164S.163 and S.223 – with a goal to develop an omnibus prescription drug bill.

A majority of the committee supports S.164, a bill that would establish an unused prescription drug repository program. Vermont Department of Health Senior Health Policy Advisor David Englander said VDH supports the concept but has concerns with the current language. He requested and the committee agreed that he work with a group of stakeholders and legislative counsel to develop consensus language.

Department of Vermont Health Access Pharmacy Director Nancy Hogue testified on S.163, a bill that would create a multistate public pharmacy benefit management program. Hogue said the Medicaid program is already part of the Sovereign States Drug Consortium. In contrast to vendor-administered pools, which are owned by the vendor, the SSDC is a federally-approved program owned by the participating states. Each state is allowed flexibility to negotiate rebates to lower the overall costs of prescription drugs.

DVHA Commissioner Cory Gustafson said that one-tenth of total health care spending is on pharmaceuticals. “Overall spending is growing, but not at the rate that people think…the rate of growth in pharmacy is three to five percent including specialty drugs and one to three percent without,” said Gustafson. He urged the committee to allow DVHA to focus on other priorities and not a new program.

The committee also heard from Bi-State Primary Care Association Director of Public Policy Georgia Maheras on the 340B federal drug program. The 340B Drug Discount Program requires drug manufacturers who participate in Medicaid to provide outpatient drugs to eligible health care organizations and covered entities at reduced prices. Patients must have an established relationship with the covered entity, receive care from a provider associated with the covered entity, and receive a range of health services beyond prescription drugs in order to receive 340B-purchased drugs. A bill being reviewed by the committee next week, S.175, could put the 340B program in Vermont in jeopardy.


GMCB Outlines Legislative Priorities

Green Mountain Care Board Chairman Kevin Mullin presented the Board’s priorities to the House Health Care Committee on Friday. The priorities include streamlining the certificate of need law, revising and clarifying the services and actions GMCB employees may perform on behalf of the board based on the Vermont Supreme Court Path Decision, and updating the Health Resource Allocation Plan to allow flexibility for the GMCB over analysis and decision-making around CONs, hospital budgets, and accountable care organization budgets.

Mullin and GMCB Executive Director Susan Barrett said additional proposals will be forthcoming to expand the role of the Primary Care Advisory Group given there is no provider on the board. A revision to the board’s bill-back authority is also planned. The board would also like to make permanent the Medicaid Advisory Rate Case Authority to review reimbursement rates to providers.


Vermont Information Technology Leaders at a Crossroads

Lawmakers during the last session adopted a provision in the tax bill that required the state to conduct a comprehensive review of Vermont’s Health Information Exchange and Vermont Information Technology Leaders. The state contracted with Health Tech Solutions to evaluate the Health Information Technology Fund, the state’s health information technology plan, the health information exchange, and the structure of VITL.

HTS Senior Consultant Dawn Gallagher said the review found the exchange, operated by VITL, is suffering from serious financial and administrative issues and is failing at its core mission – to make patient information available – and the data that is available has quality issues. Gallagher said the VHIE has received a total of $44 million in state and federal funding. She said state exchanges have struggled to become financially self-sustaining, but added Vermont’s problems go well beyond that. Vermont has a much higher dependence on public funding than other successful exchanges.

HTS provided the state with several recommendations:

  • Ensure VHIE activities are formally structured and governed and roles are clearly defined. There is no individual person accountable in the state.
  • Require and manage to the HIT plan goals and objectives. (The last plan was written in 2010).
  • Establish an effective governance model. Using existing state entities and private sector leaders, establish across-the-board governance committee to align projects and initiatives.
  • Analyze sources of funding to the HIT fund. Since 2008, the state has assessed a 0.199 percent tax on all health insurance claims to support technology infrastructure to help doctors and hospitals share electronic medical records. The HIT fund is scheduled to sunset on June 30. There is strong support among stakeholders for the HIT fund to continue with the condition of improved oversight and priority setting.
  • Make VHIE operations accountable to all customers, including the state.
  • Use state contract funds to improve core functions with payments tied to specific deliverables and timelines. Ensure financial decisions are transparent and can be traced back to program goals.
  • Increase the number of Vermonters who consent to have their data accessible (only 19.5 percent of Vermonters have been asked to provide consent).
  • Adopt financial reporting and transparency best practices, establish an audit committee, and conduct an operational audit of VITL’s financial controls and management practices.


Secretary of State Proposes Update to Rulemaking Law

The cloudy and arcane process by which Vermont statutes are turned into published rules with the force of law is targeted for an update. The House Government Operations Committee got its first look at the new proposal on Thursday.

According to Deputy Secretary of State Chris Winters, the current system of promulgating rules is labor intensive and costly and the process wastes a lot of paper. The system is hard to track and records are difficult to find, even for the lawyer from the Office of Legislative Counsel who staffs the Legislative Committee on Administrative Rules, which usually signs off on a final rule.

The proposed revision, which is based on a model published by the Uniform Law Commission, would create a single source for rules, proposed rules and old rules, as well as any documents related to the promulgation of a rule, such as public comments.

Most of the rulemaking process would remain largely unchanged, but the new system would also formalize the process used by state agencies to adopt procedures and guidance documents that often govern regulatory behavior, but which do not have the force of law.


Waste Districts Seek Funding from Makers of Household Products

Manufacturers of household cleaners and other hazardous consumer products would have to pay a fee to sell their products in Vermont and the money would be given to solid waste districts for hazardous waste collection programs if H.560 is enacted as written. The House Natural Resources, Fish and Wildlife Committee held two hearings this week on the bill.

Commercial users are required to dispose of hazardous wastes under a strict set of rules, but homeowners are not subject to the rules. Solid waste districts across the state hold special collection events where local residents can bring small amounts of leftover compounds from used motor oil to drain cleaners for safe disposal, but managers complain that only a small fraction of households take advantage of the service. Under the bill, manufacturers would pay an annual fee of $100 per product sold. The names of legal products would be listed on a state web site, and the money collected would go the solid waste districts for additional collection events.

Cathy Jamieson of the Department of Environmental Conservation said the proposal for “extended producer responsibility” across hazardous substance product lines is a good idea, but the agency needs more time to try and reach consensus among the affected parties. The fate of the proposal is unclear.


Quick Hearing Advances Extension of Petroleum Cleanup Fund

After 30 years of quietly providing money for the cleanup of leaks and spills from above-ground and underground petroleum fuel storage tanks, the Petroleum Cleanup Fund is up for renewal this year. Lawmakers on the House Natural Resources, Fish and Wildlife Committee spent little time on Thursday listening to testimony and debating the merits before acting favorably on the bill, H.548, on a rare 9-0-0 vote.

The PCF collects money from a penny-per-gallon fee on gasoline, diesel fuel and home heating oil, along with annual fees paid by the owners of commercial facilities storing fuel in underground storage tanks. After sliding scale deductibles, the money is used to clean up environmental damage, provide loans and grants to owners and mitigate the damage to affected third parties. The proposal approved by the committee would extend the program for 10 years beyond the current July 1, 2019 expiration date and was unchanged from the bill as introduced by Rep. Michael Marcotte, R-Coventry.


DPS and GMP Explain Drivers of Five Percent Electric Rate Increase

Department of Public Service Consumer Advocate James Porter warned lawmakers on Thursday that the same cost factors that led to a 5.02 percent increase in electric rates charged by Green Mountain Power in December would prevail again when the company comes to the Public Utilities Commission in April for another rate analysis. Of the three primary drivers, he said, all three were beyond the company’s control.

Porter told the committee that one percentage point of the five percent increase was due to the cost of net metering and standard offer renewable energy projects, two points were due to increased transmission costs across New England and two were due to increased costs in New England’s Forward Capacity Market, a financial exchange that supports the development of new resources to meet future electricity needs.

Porter said the impact of Vermont’s aggressive renewable energy development programs were just beginning to affect electric rates. He said the PUC will be reviewing net metering rates this spring, and the department would be advocating for lower rates.

GMP Vice President of Stakeholder Relations Robert Dostis answered questions about various aspects of the business, but also said the company had worked hard to keep the increase to around five percent. “Our original cost pressures for this last year were much higher than five percent,” he said, “but we were able to find savings.” Dostis promised that any savings that accrue to the company due to lower corporate tax rates because of federal tax reform would be returned to ratepayers.


Senate Committee Begins Hard Look at Minimum Wage

On Thursday, the Senate Committee on Economic Development, Housing and General Affairs reviewed the Report of the Minimum Wage and Benefits Cliff Study Committee. Authorized by Act 69 of 2017, the committee was charged with examining the minimum wage in Vermont, the livable wage in relation to the real cost of living, and the full economic effects of small to large increases in the Vermont minimum wage, including in relation the minimum wage in other states. The study did not fully examine changes in tipped wage policy.

Committee Chair Sen. Mike Sirotkin, D-Chittenden, also chaired the study committee. The committee met five times over the summer and concluded by making the following recommendations on a vote of 4-2:

  • The General Assembly should enact legislation to increase the minimum wage up to $15.00 per hour considering the five issues that were outlined in the report:

1. cost to the state;
2. cross border impacts;
3. inflation adjustments;
4. timetable and amount; and
5. the Benefits Cliff.

  • The legislation should include a provision that, within available funding, will shift the point at which benefits provided through the Child Care Financial Assistance Program begin to decline by the same percentage as the increase in the minimum wage to ensure that affected families continue to receive the same child care subsidy.

Sirotkin told the committee that he’d like to move quickly on the bill, and announced that next Wednesday he will take up S.40, the minimum wage bill he introduced last session. The bill proposes a $15 per hour minimum wage by 2022, but it may be amended in committee based on the study committee’s recommendations.

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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