2017 Final Vermont Legislative Update: Health Care
An analysis from DRM's Government & Public Affairs Team
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Access to Cannabidiol Medication
Lawmakers approved language that ensures patients immediate access to any Food and Drug Administration cannabidiol prescription medication being developed for the treatment of intractable childhood epilepsies. The provision will allow a provider to prescribe and a pharmacist to dispense the product upon FDA approval. The amendment was added to H.503 and was ratified by lawmakers in the waning days of the session.
Accountable Care Organization Open Board Meetings
The legislature approved a bill to require the governing board meetings of an accountable care organization or an organization acting on behalf of two or more ACOs be open to the public. An ACO is a group of providers who voluntarily come together to provide coordinated care to their patients. The bill allows a board to convene executive sessions when considering contracts, personnel matters, trade secrets, confidential attorney-client communications, and information prohibited from public disclosure by a data use contract. The bill also requires the ACO governing board to provide public notice of its meetings.
The Department of Vermont Health Access will be required to provide periodic reports on the implementation of the Next Generation Medicaid Accountable Care Organization pilot contract with OneCare Vermont, the state’s largest ACO, under Act 25. An ACO is a group of providers who voluntarily come together to give coordinated care to their patients. The act also requires the Green Mountain Care Board to provide a progress report on benchmarks identified for implementing the all-payer model and its preparations for regulating ACOs.
The act extends for two years the deadline for the administration to apply for a federal waiver of certain federal exchange plan requirements as they relate to bronze plans. It also extends through the 2019 plan year the authority for exchange-plan carriers to offer one or more bronze plans with a higher out-of-pocket prescription drug limit than the limit in Vermont law. It extends the duration of an advisory group through the 2019 plan year and directs the group to look at whether there should be flexibility in bronze plan design after plan year 2019 and to provide recommendations for providing flexibility while still offering protection from high out-of-pocket prescription drug costs.
Since implementation of the out-of-pocket limit, health insurers have claimed that it has become increasingly difficult to develop bronze exchange policies that include the state-mandated prescription drug cap while also meeting federal guidelines.
Adverse Childhood Experiences
House and Senate health care committees spent significant time on legislation addressing the impact of adverse childhood experiences on the ability of Vermont children to flourish. The Department of Mental Health, the Department of Children and Family Services, and mental health service representatives told the committees that increased ACEs such as separated or divorced parents, substance abuse, mental health issues, and food and housing insecurity are affecting children’s ability to succeed in school and is increasing DCF caseload.
As a result, the legislature passed a bill that adopts principles to strengthen Vermont’s response to trauma and toxic stress during childhood, sets up an ACE Working Group to survey and report on current state practices and needs and recommend legislation, and calls upon the Agency of Human Services to create an action plan based upon the working group report. The bill also recommends that the Vermont State Colleges and the University of Vermont include ACE information in their health program curricula.
Age 21 for Tobacco Purchases
The Senate was deeply divided this session over whether to increase the legal age for purchase of tobacco products from 18 to 21. The bill was unanimously approved by the Senate Health and Welfare Committee, but was opposed by members of the Appropriations Committee, who feared a revenue loss from the change, and by an odd coalition of Republicans and Progressives who believe that 18 should consistently be the age of majority. The bill was defeated by a vote of 13-16.
The Senate later in the session approved age 21 as the lawful age for purchase of marijuana, but the inconsistency went largely unnoticed.
The Senate passed a bill to require a circulating nurse to be present in hospital operating rooms during invasive or surgical procedures. Federal regulations do not require a circulating nurse to be present in the operating room, but require one to be immediately available. Vermont hospitals generally have one present in the room. This bill incorporates model language that has been proposed across the country by the Association of Perioperative Registered Nurses. The bill was referred to the House Committee on Health Care, which opted not to act on the bill before the end of the session.
Disproportionate Share Hospital Payments
A provision adopted in the state appropriations bill reduces Disproportionate Share Hospital payments by $10 million. DSH payments are made to hospitals that serve a large number of Medicaid and uninsured individuals. The reduction was made to cover a gap in the state budget and to increase Medicaid payments to designated mental health agencies and specialized service agencies. Lawmakers made it clear that it is the responsibility of each agency to use the increases to raise the hourly wages of its workforce and the salaries of crisis response teams.
The total amount of DSH funds available to the state is $37 million. The governor proposed in his budget reducing DSH payments by 10 percent, saying that the reduction is appropriate in light of significant investment in reducing uncompensated care through the Affordable Care Act and related state investments. The House proposed a 20 percent reduction to fund a number of mental health priorities. The final agreement reduced payments by $10 million.
Duty to Warn
The legislature approved a bill that clarifies when mental health professionals must disclose information concerning a dangerous client or patient. The bill, S.3, states that a mental health professionals’ duty to warn is established as provided in common law by Peck v. Counseling Service of Addison County. That case held that a mental health professional who knows that his or her patient poses a serious risk of danger to an identifiable victim has a duty to exercise reasonable care to protect him or her from that danger by informing the identified victim or law enforcement of the risk.
S.3 was passed in response to the Vermont Supreme Court decision Kuligoski v. Brattleboro Retreat and Northeast Kingdom Human Services, which expanded the duty to warn. The Kuligoski decision required mental health providers to give “reasonable information” to those in the “zone of danger,” including caretakers, to warn them of a patient’s risk of violence. Since the ruling in September 2016, emergency department wait times have increased, residential programs have taken longer to release patients, and community providers have been less likely to take on challenging clients, creating a backlog in care.
The language approved:
- Explicitly negates Kuligoski and establishes Peck as the only standard applicable to a duty to warn;
- Affirms that a mental health professionals’ duty to warn is established in common law by Peck;
- References the comprehensive regulatory process and federal rules that apply to all discharge plans; and
- States that people who are diagnosed with mental illness are no more likely to be violent than any other person.
Evaluation of Suicide Profiles
The Agency of Human Services will be required to evaluate and report to the legislature the factors related to each suicide in the state under Act 34. The new law requires reporting on the trends and patterns of suicide deaths, the prevalence of risk factors for preventable deaths, and the risk factors or gaps in systematic responses that create barriers to safety for individuals at risk of suicide. The agency is in the first year of a five-year Centers for Disease Control grant that requires much of the same reporting. The agency is required to report annually on its progress and how relevant data will be continued once the grant expires.
Suicide was the eighth leading cause of death among Vermont residents in 2013 and the tenth leading cause of death in the United States. Vermont has seen an increase in suicides from 75 in 2005 to 114 in 2014. Lawmakers believe the state needs to identify the gaps and barriers for suicide prevention activities.
GMCB Bill-Back Authority
The miscellaneous tax bill adopts a new allocation methodology for the insurer portion of the Green Mountain Care Board’s bill-back authority. The GMCB has the authority to bill certain costs to the entities it regulates. Presently, the bill-back is spread across four industry categories: hospitals, nonprofit hospitals, medical service corporations and health insurance companies. At the request of MVP, lawmakers agreed to create only two categories – hospitals and insurers. The allocation will be for one year only and will be as follows: 40 percent by the State, 15 percent by the hospitals, and 45 percent by health insurance companies based on market share.
The GMCB’s fiscal year 2018 budget called for an 80 percent increase in bill-backs due partly to a request by the administration to use the revenue mechanism more heavily to support the board’s oversight activities. After pushback from hospitals and insurers on the significant increase, lawmakers agreed to let the GMCB convene a workgroup to review the entire bill-back mechanism and make a legislative proposal next session.
A bill to allow pharmacists to substitute a lower-cost interchangeable biologic product for another biologic passed the Senate but was not acted on by the House. The language as passed by the Senate states that any product under consideration for substitution must be approved by the U.S. Food and Drug Administration as interchangeable. It details that when a pharmacist receives a prescription he or she must select the lowest-cost product that is listed as interchangeable unless otherwise instructed by the prescriber or by the purchaser.
Despite broad support from a number of organizations, the House did not see a need for the bill since there currently are no products available on the market.
Meals for Health Care Providers at Conferences
A bill that would allow health care providers to accept modest meals at conferences that offer a significant educational, medical, scientific, or policymaking benefit that does not promote specific products quickly passed the Senate but stalled in the House.
Legislation was passed in 2009 that banned drug manufacturers from paying for gifts, including meals and travel, to health providers. Some providers have said that they are not welcome to attend dinners at conferences because of current Vermont law.
The state’s four medical marijuana dispensaries will each be allowed to add one new retail operation under a bill that was approved by the legislature. The bill also authorizes the Department of Public Safety to license one new dispensary effective immediately, and another when the state’s registered patient population reaches 7,000.
The bill also allows dispensaries to convert from non-profit to for-profit entities, and expands the conditions for which medical marijuana may be authorized to include Crohn’s disease, Parkinson’s disease and post-traumatic stress disorder.
Mental Health Crisis Response Commission
Lawmakers approved a bill that establishes a Mental Health Crisis Response Commission within the Office of Attorney General. H.145 requires the commission to review fatalities and serious bodily injuries that occur during interactions between law enforcement officers and persons demonstrating symptoms of mental illness. The commission may also conduct reviews of interactions not resulting in death or serious bodily injuries. The bill was introduced in response to an incident in Burlington in which police fatally shot an individual who was experiencing a psychiatric crisis.
Mental Health Coordination
Lawmakers approved a bill that seeks to reduce emergency room waiting times at hospitals through a comprehensive examination of Vermont’s mental health system and the development of an action plan by the Agency of Human Services. The legislation attempts to reduce the number of individuals with a psychiatric condition waiting in emergency rooms for voluntary and involuntary inpatient psychiatric placement, to ease the shortage of mental health professionals at designated mental health agencies and specialized service agencies, and to develop a plan to increase payment rates to direct care workers at designated mental health agencies and specialized service agencies.
- Requires an analysis of the role of involuntary medication treatment and psychiatric medication play in inpatient emergency department wait times;
- Requires the AHS and the Chief Superior Judge to report the role of involuntary treatment and medication in emergency department wait times, including concerns arising from judicial timelines and processes;
- Charges the Department of Mental Health to collect and analyze data on why a person is being referred to a hospital emergency department, the rates at which patients brought to an emergency department for an emergency evaluation are in need of inpatient hospitalization, and the trends in inpatient length of stay and admission rates (data for persons under 18 will be analyzed separately);
- Compels the AHS to develop a plan to integrate multiple sources of payments for designated mental health agencies and specialized service agencies and to increase efficiencies and reduce administrative burdens;
- Requires the AHS to evaluate the potential benefits and costs to develop regional navigation and resource centers to improve access to appropriate levels of care;
- Directs the Secretary of the AHS and hospitals with psychiatric units to evaluate opportunities for achieving parity for individuals presenting at hospitals regardless of whether for a psychiatric or physical condition; and
- Requires the examination of facility options, such as nursing homes, forensic facilities, and a 23-hour bed evaluation center to prevent or divert individuals from the need to access the emergency department.
Mental Health Treatment for Minors
Effective Jan. 1, 2018, minors will be allowed to consent to psychotherapy and other supportive counseling from a mental health professional without the consent of a parent or legal guardian. Act 35 was signed by the governor on May 22. The House had limited counseling services to LGBTQ minors. The Senate expanded it to include all minors.
After a late push in the Senate, the House did not move forward with legislation that would have equalized payments among hospital-employed physicians and independent physicians. Led by Sen. Michael Sirotkin, D-Chittenden, and fully supported by Senate President Pro Tem Tim Ashe, D/P-Chittenden, the Senate proposal would have required insurance companies to reimburse medical practices the same amount of money for a given office visit or procedure, regardless of whether the doctor is self-employed or works for a hospital. It also would have prohibited insurance companies from increasing reimbursement rates to physician practices that are newly acquired by a hospital.
Sirotkin and Ashe voiced frustration that the legislature has passed pay parity bills three years in a row tasking the Green Mountain Care Board to address disparities, but no action has been taken. The state appropriations bill includes language requiring the GMCB to report to the Health Reform Oversight Committee in October on substantial changes to achieve payment parity.
Prescription Drug Pricing Resolution
The Senate passed JRS 19, a resolution that calls upon Vermont’s Congressional delegation to propose and seek passage of legislation that would require any pharmaceutical company that receives or benefits from any federal funding for pharmaceutical research and development to amortize all of the company’s research and development costs over the entire world market for prescription drugs. The House did not take up the resolution.
The resolution calls for the Centers for Medicare and Medicaid to negotiate with pharmaceutical companies for rebates and discounts in the Medicare Part D program. It also calls on the Food and Drug Administration to institute a moratorium on the promotion of prescription drugs directly to consumers and to promulgate more effective regulations to address prescription drug advertisements directed at consumers.
Sexual Assault Nurse Examiners
Lawmakers approved a bill to create a Sexual Assault Nurse Examiners Board that will oversee the administration of a statewide SANE Program. The board will address standards of care for sexual assault patients, will develop and offer annual training regarding standards of care and forensic evidence collection, and will manage a system to ensure best practices. The legislation also requires the Vermont Association of Hospitals and Health Systems and the Vermont SANE Program to enter into a memorandum of understanding to ensure improved access to SANE for victims of sexual assault in underserved areas.
The bill also creates a Sexual Assault Evidence Kits Study Committee that will address:
- the current practice for kit tracking;
- the effectiveness and cost of a system allowing online completion of sexual assault evidence kit documentation;
- the feasibility and cost of a web-based tracking system to allow agencies involved in the response and prosecution of sexual assault to track sexual assault evidence kits;
- the effectiveness and challenges of the current system of police transport of evidence kits form hospitals to Vermont Forensic Lab; and
- The feasibility and cost of alternative methods of transport of sexual assault evidence kits such as mail, delivery service, or courier.
Telemedicine services performed by health care providers who are outside of a health care facility will be reimbursed just as they would for an in-person appointment under the terms of S.50. The legislation states that health insurance plans cannot impose limitations on the number of telemedicine consultations that a person could receive in-person. It also prohibits a provider from recording a telemedicine consultation.
The bill requires providers to inform and obtain consent for the use of telemedicine prior to delivering services to patients. Providers must explain to patients the opportunities and limitations of delivering services through telemedicine. Providers must also inform patients if another individual will be observing a consultation. Finally, all services must be medically necessary and clinically appropriate to be delivered through telemedicine, and must be delivered over a secure connection that complies with patient privacy laws.
Universal Primary Care
After extensive consideration, the Senate Health and Welfare Committee decided a bill to guarantee universal primary care for all Vermonters would be tabled until next session. Committee Chair Sen. Claire Ayer, D-Addison, recognized that with the advent of accountable care organizations and the potential progression of the All Payer Model, implementation of universal primary care would not garner the dedication and attention needed for success.
In an attempt to continue the conversation, the chair asked Agency of Human Services Secretary Al Gobeille to provide a feasibility plan for a government-run primary care clinic accessible to all state employees. With the State of Montana as a successful model, Ayer believes this is an impactful first step towards improving access to primary care.
Vermont Practitioner Recovery Network
The legislature enacted legislation to expand the Vermont Practitioner Recovery Network to offer support services to any Board of Medical Practice licensee who is experiencing an impaired ability to practice medicine with reasonable skill or safety. Previously, the program only evaluated and treated health care professionals who were impaired or at risk for impairment by the excessive use of drugs, including alcohol. The program will now also serve professionals needing help with a broader range of concerns, including depression, anxiety and cognitive decline due to aging.