Vermont Legislative Update 4-6-18 - An analysis from DRM's Government & Public Affairs Team

Downs Rachlin Martin PLLC

Downs Rachlin Martin PLLC

Utilities, DPS Raise Concerns about Electric Grid Congestion

A surplus of renewable electric generation, coupled with low demand, in northern Vermont has created constraints on the electric grid and caused ripple effects throughout the state’s electric generation industry.

ISO New England, the entity responsible for managing the grid, has had to curtail generation in that area, known as the Sheffield Highgate Export Interface, to ensure reliability of the electric system. Despite the surplus of generation, energy projects in the area have continued to be built due to renewable energy production incentives and relatively low-cost land. 

Sen. John Rodgers, D-Essex-Orleans, has proposed legislation, S.115, that would prohibit the approval of new electric generation facilities that would connect to a transmission line if existing generation connected to that line has been curtailed due to load constraints.

Several utilities and the Department of Public Service testified before the Senate Natural Resources Committee in general support of the proposal. Representatives of Washington Electric Coop and Vermont Electric Coop argued that the current situation is costing their ratepayers significantly as they are forced to curtail generation even though they have contracts that require them to pay for the foregone power.

An upgrade of the region’s transmission system is likely not a feasible solution since – unlike upgrades to ensure reliability – Vermont would be responsible for all of the cost. It would also raise questions about cost allocations within the state, since an upgrade would only benefit some utilities and their customers.

The committee is likely to adopt some form of a moratorium on new generation in the area while the parties study a long-term solution to the problem.


Dam Safety Bill Likely to Move in Senate

A bill that could require registration and inspection of structures of any size that impound any amount of water is likely to pass this session after failing to gain approval for many years. The bill, H.554, has passed the House and is pending before the Senate Natural Resources and Energy Committee. It has succeeded where others have failed because it gives broad discretion to the Agency of Natural Resources to answer questions during rulemaking that have torpedoed earlier versions where such decisions were more explicit.

The committee held a hearing on the bill on Thursday and the basic premise met with little opposition. Once listed on the state list, all dams would be inspected on a schedule proposed by ANR and they would be placed in one of four hazard categories. If the dams are deemed unsafe the owner may be required to make repairs. The rulemaking authority also would allow the agency to specify which dams are exempt from registration and inspection.


House Judiciary Committee Takes Up Strict Liability Bill

The House Judiciary Committee on Wednesday received an overview of S.197, a bill that would establish strict, joint and several liability for property damage and damage to human health resulting from the release of a harmful substance. It would also create a new private right of action for medical monitoring for persons who may be harmed by such a release. The bill passed the Senate on March 21 by a roll call vote of 17-13, which is unusually close for that body.

After a run-through of the elements of the bill that included an explanation of tort law by Legislative Council Attorney Michael O’Grady, Committee Chair Rep. Maxine Grad, D-Moretown, invited potential witnesses to contact the committee’s clerk, Michael Bailey, to be placed on the list. Testimony is scheduled to begin next Thursday. 


Net Neutrality Bill Nears Approval

The House Energy and Technology Committee continued to work this week on amendments to a Senate-passed bill that would require telecom companies to certify that they maintain “net neutrality” policies in order to be eligible to contract with the state. By Jan. 1, 2019, all Internet broadband service providers operating in Vermont would be required to disclose their Internet management policies, regardless of whether they enter into state contracts.

Internet service providers oppose the legislation (S.289), arguing that it is preempted by federal law and unnecessary, since none of them engage in content management or discrimination.

On Friday, the committee considered a revised draft of the bill that would require companies to maintain net neutral policies as a condition for the receipt of state funds for expanded broadband Internet access.

The legislation is largely redundant to an executive order issued by Gov. Scott in February that requires net neutrality as a condition of state procurement contracts.

The committee is expected to approve the bill as amended next week.


Program Hopes For Seventy Percent Credentialing by 2025

A new program funded primarily by private foundations hopes at least 70 percent of work-eligible Vermonters will have some form of professional credential by 2025. The program, sponsored by the Lumina Foundation State Policy Working Group and supported by the Vermont Student Assistance Corporation, was launched in December. The credential would include post-secondary degrees and certifications and other measures of competency adopted by the program.

The effort is governed by a 23-member council that includes leaders in business, education and government. It was the subject of a presentation on Tuesday by Director Tom Cheney before the Senate Economic Development, Housing and General Affairs Committee, which is considering how economic and workforce development programs might fit together under H.919.

Committee Chair Michael Sirotkin, D-Chittenden, expressed concerns about the broad range of efforts in the bill that are aimed at similar goals, but Cheney countered that the program hopes to facilitate the goal by working in cooperation with existing programs. For example, he said, Vermont Business Roundtable President Lisa Ventriss serves on the council, and the 70x2025VT program is supporting  VBR’s work on the Vermont Talent Pipeline Project.


Senate Looking at Paid Family Leave Proposal

According to a study done for the Vermont Commission on Women, 20,000 people in Vermont are taking leaves of absence from work annually to care for a newborn or other family member, and only 3,500 more would take advantage of a paid family leave program if one is created. The testimony from Executive Director Cary Brown supported H.196, which has passed the House and is now pending in the Senate Economic Development, Housing and General Affairs Committee.

Under the current draft, employees would pay 1.41 percent of their pay into a state fund, and they would be entitled to 80 percent of wage replacement up to $1,042 per week for six weeks. It would require a new tracking system in the Vermont Department of Labor which would cost $2.5 million. Analysts have not compared the income and benefit costs, but an estimate of some of the fiscal impacts was provided by the legislature’s Joint Fiscal Office in 2017.


Committee Considers More Changes to Ride-sharing Bill

Despite the fact that the bill has already passed the House and Senate, the House Commerce and Economic Development Committee is considering making additional changes to legislation that would impose minimum insurance and other requirements on ride-sharing companies like Lyft and Uber.

The bill as originally passed by the House adopted a uniform law that has been approved with only minor variation in 48 states. The Commerce Committee is now considering a proposal suggested by the Vermont association for plaintiffs’ lawyers that would increase the minimum insurance limits for drivers to a level higher than that adopted by any other state.

The proposed amendment is opposed by Lyft and Uber as well as the insurers that offer policies to these companies. If adopted, it’s doubtful the bill will make it through the legislature, since it would apparently have no support from any organization.


Labor Data Shows Job Loss; Hint of Coming Recession?

There are hints that a recession is coming, according to Matthew Barewicz, the economic and labor market information chief in the Vermont Department of Labor. Reviewing recent labor market data with the House Appropriations Committee this week, Barewicz reported that the Burlington labor market area has lost 1200 jobs this year. Acknowledging that some of the loss may be due to unfilled positions and automation, he said that Vermont showed similar recession signs three to six months before the last recession began to be felt nationally. He noted that the U.S. is experiencing the second longest period of economic expansion in its history, and although recession and recovery periods have grown longer, the country may be overdue for another recession.

Barewicz shared the labor market information as part of a discussion on S.40, a proposal to increase the minimum wage to $15 per hour by 2024. The bill received testimony in several legislative committees this week, in addition to a public hearing at the Statehouse on Wednesday. Barewicz, an observer of the Minimum Wage Workgroup meetings that took place last year, expressed concern that the effects of recent increases in the minimum wage have not been deeply examined and included in the discussions around S.40. He said that although the minimum wage has increased over recent years, poverty has grown and participation in the labor market has not increased. He urged legislators to focus on annual income rather than hourly wages.

Additional testimony on S.40 will continue next week in several House committees.


Major Shift in Mental Health Care Proposed

Agency of Human Services Secretary Al Gobeille appeared before the Senate Institutions Committee on Wednesday to address a proposal by the University of Vermont Health Network to increase inpatient mental health beds by building a new acute inpatient mental health facility in central Vermont. The same proposal was unveiled at the same time at the Green Mountain Care Board by representatives of the University of Vermont Medical Center and the Department of Mental Health. UVMMC and Central Vermont Medical Center are recommending that the hospital be allowed to set aside $21 million of the revenue received over their GMCB approved budgets to fund the project.

Gobeille endorsed the proposal, saying that UVMMC is large enough to take on the task of running a large mental health unit, and it would allow for the integration of acute mental health care in a community hospital. The current Vermont Psychiatric Care Hospital in Berlin would become a secure residential facility. Secure residential facilities are a place for mental health patients to go when they are ready for discharge from a psychiatric hospital, but still require support and supervision.

Gobeille said it could be three to four years before these facilities are operational and encouraged the committee to take immediate steps now. “If you don’t do the temporary facility, I think we have failed this session,” said Gobeille. He offered three potential options for the temporary facility: 1) revamp a unit at the Northwest Regional Correctional Facility in Swanton, 2) build a new facility in Chittenden County or in central Vermont, or 3) partner with the Brattleboro Retreat. Gobeille believes partnering with the Brattleboro Retreat is the best option.

Discussions continue to evolve as some lawmakers support investments in the Northwest Regional Correctional Facility with the thought that it can be repurposed to correction beds once the new UVMMC/CVMC unit is built. Others prefer a partnership with a private mental health treatment facility such as the Brattleboro Retreat. Gobeille said lawmakers need to take into consideration that the Brattleboro Retreat would be eligible for Medicaid payments, whereas the Northwest Correctional Facility would be paid with general fund dollars. Committee Chair Peg Flory, R-Rutland, asked Gobeille to provide the committee with a comparison of the state’s current mental health system with the proposal and all associated costs.


Panel Advances Expanded Mental Health Bill

The House Health Care Committee on Friday approved S.203, a bill that creates a study committee to look at current law governing orders of non-hospitalization. These are court orders that contain conditions that a person named in the order must abide by or face the possibility of  hospitalization or re-hospitalization.

The committee, led by Committee Vice Chair Anne Donahue, R-Northfield, expanded the bill significantly. The bill as approved:

  • Creates a study committee to look at orders of non-hospitalization;
  • Waives the certificate of need requirement for the secure residential recovery facility as authorized in the 2019 capital bill;
  • Requires the Agency of Human Services to partner with Institutes for Mental Disease  entities to report on federal IMD spending on persons with serious mental illness or substance use disorders and possible solutions in response to the Center for Medicare and Medicaid Services’ requirement to reduce federal Medicaid spending for IMDs;
  • Allows the Department of Disabilities, Aging and Independent Living to amend its rules to allow secure residential care facilities to perform emergency involuntary procedures;
  • Requires the Agency of Human Services to report on the transporting of patients to facilities and to provide data from each sheriff department on the use of restraints during patient transports;
  • Compels the Department of Mental Health to collect the following information from hospitals: data on individuals seeking care voluntarily and involuntarily with corresponding lengths of stay, the length of stay in emergency departments for voluntary and involuntary patients; and the types of emergency involuntary procedures performed in emergency departments and report back to the committees of jurisdiction on or before Jan. 15 of each year between 2019 and 2021;
  • Adds consideration of mental health parity to a number of existing laws including community health needs assessments, certificates of need and hospital budgets; and
  • Requires the Agency of Human Services to report on the payment rates to designated and specialized service agencies.


House Approves Interstate Medical Licensure Bill

The House on Friday approved S.253, a bill that would allow the state to join the Interstate Medical Licensure Compact in January, 2020. The compact makes it easier for physicians to obtain licenses in multiple states and strengthens public protection by allowing states to share investigative and disciplinary information. It will expand access to care, streamline the licensing process for physicians, and facilitate multi-state practice and telemedicine for those physicians and states that choose to participate.

The bill requires an applicant to submit fingerprints so the Board of Medical Practice can conduct state and federal criminal background checks. It also allows the Department of Public Safety to exchange fingerprint data with the Federal Bureau of Investigation.


House Panel Focuses on Drug Transparency

The House Health Care Committee spent time this week on its version of S.175, a bill related to prescription drugs. The bill as passed by the Senate would allow the state to import prescription drugs from Canada, create a state bulk purchasing program, and require manufacturers to notify the Attorney General’s Office if it is introducing a new prescription drug at a wholesale acquisition cost that exceeds the threshold set for specialty drugs under the Medicare Part D program. The House is considering maintaining those provisions and focused their attention on enhancing the prescription drug transparency law passed in 2016.

The bill:

  • Requires health insurance companies to provide information to the Green Mountain Care Board about the impact of prescription drug spending on premium rates;
  • Requires the Medicaid office and health insurers to provide to the Green Mountain Care Board a list of 15 drugs annually on which significant amounts are spent and for which the cost, net rebates, have increased by 50 percent or more over the past five years or by 15 percent or more over the past 12 months;
  • Mandates that for each drug reported to the Attorney General’s Office, a manufacturer provide to the AG justification for the increase in cost of the drug, all factors that created the cost increase, the percentage of the total increase attributable to each factor, and an explanation of the role of each factor. Manufacturers must provide a version of the information submitted to the AG in a format that is easily understood by the public (proprietary and confidential information will be redacted); and
  • Requires the Department of Vermont Health Access to determine the feasibility of identifying all or a subset of prescription drugs the cost of which have increased by 30 percent or more over the past 12 months or by 50 percent or more over the past 24 months and report back to the committees of jurisdiction by Jan. 15, 2019.

The committee considered but ultimately withdrew provisions that would have prohibited price gouging by manufacturers and limited their ability to offer discounts or coupons to reduce consumer out-of-pocket costs. 

The committee will finalize its work on this bill next week.


Provider Enrollment Bill Advances

On Wednesday, the House Health Care Committee unanimously approved S.282, a bill that requires the Department of Vermont Health Access to complete the screening and enrollment of applicants seeking to become participating providers in the Medicaid program within 60 days after receiving an application. The bill would go into effect July 1, 2019.  The House amended the language to state if the department is not able to meet the 60-day timeframe, DVHA will convene stakeholders before Feb. 1, 2019 to provide an update on the status of provider screening and enrollment efforts, including the barriers and any additional resources that may be needed by DVHA to proceed.

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