Updates
January 27, 2017

Legislative Update 01-27-2017

An Analysis from DRM’s Government & Public Affairs Team

Vermont Legislative Update Quick Links

Treasurer Will Build Public Pension Plan for Small Business

Successful Apprenticeship Program Needs More Publicity

ANR Unveils Report of Chemical Working Group

Limited Number of Prescribers Using Prescription Drug Monitoring System

Mental Health Services for Children and Elderly Subject to Hearing

Providers Seek Duty To Warn Legislation

Administration Officials Promote Consolidation Plan

Public Service Department Begins Work on 10-Year Telecommunications Plan

House Committee Agrees to Unusual Recount in Contested Race

Treasurer Will Build Public Pension Plan for Small Business

State Treasurer Beth Pearce on Wednesday asked the Senate Economic Development, Housing and General Affairs Committee to create the framework for a retirement investment program for businesses with 15 employees or less. Once the program is established, Pearce said, it will be extended to individual employees.  

"The baby boomer generation has done a lousy job saving for retirement," Pearce told the committee. "Many small businesses just don't have the administrative capacity to manage a retirement plan, even if they want to."

Pearce said 104,000 working Vermonters, or roughly 40 percent of the active workforce, lack retirement plans. The voluntary program would allow small employers to opt their employees into the plan but not require an employer contribution. Since it is aimed at very small businesses, Pearce said, it will be able to compete with private sector providers. The measure is expected to be offered as part of an omnibus economic development bill under construction in the committee.  

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Successful Apprenticeship Program Needs More Publicity

Department of Labor Apprenticeship Supervisor Judy Bourbeau told the House Commerce and Economic Development Committee on Thursday that the department has a robust apprenticeship program that yields significant numbers of licensed electricians and licensed plumbers, but the program needs to be better known. Her presentation was another in a series of hearings in the committee to focus on workforce training and development.

The program grew to an all-time high of 1,301 apprentices in 2016 and is adding trainees at the rate of about 250 per year. Besides electric and plumbing jobs, the program has also led to careers as a State Trooper, child care worker, sheet metal worker and HVAC technician, among many others.

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ANR Unveils Report of Chemical Working Group

Agency of Natural Resources General Counsel Jen Duggan presented the findings of the Act 154 Chemical Use Working Group before the Senate Natural Resources and Energy Committee on Thursday. The report is one element requested under a bill that was passed last session to respond to the discovery of PFOA contamination in Bennington County and across the state. The agency was also charged with proposing rules to recover lost value for damage to natural resources by groundwater contamination, which are expected by Feb. 15.

The study was the result of eight meetings over six months by 20 members recruited by the agency. Participants ranged from state officials to environmental and health advocates to business groups.  

Many of the recommendations in the study will be strongly opposed by business groups and strongly supported by environmental groups. Duggan emphasized that the ideas included in the report were agreed to by a majority of the group, but that some of the decisions passed by as few as 11of the 20 voting members. A group of businesses and associations filed a minority opinion opposing many of the proposals.

The recommendations range from adopting an inventory-based tracking system of all chemicals used in the state to adding all consumer products to the Chemicals of High Concern to Children program and authorizing citizen enforcement of environmental laws. ANR Deputy Secretary Peter Walke told the committee that Duggan had done a good job of presenting the report and answering questions, but the Scott Administration has not yet decided which proposals to support. Walke will return on Tuesday with the recommendations.

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Limited Number of Prescribers Using Prescription Drug Monitoring System

Hannah Hauser, Vermont Prescription Drug Monitoring System Manager for the Vermont Department of Health, presented an overview of the VPMS to the House Human Services Committee on Thursday. The legislature authorized the Health Department to establish the registry in 2006 and it became operational in 2009. The VPMS is a statewide electronic database of controlled substance prescriptions dispensed from Vermont-licensed pharmacies.

Hauser told the committee that Vermont-licensed pharmacies are legally obligated to upload data to VPMS on all dispensed Schedule II, III, and IV controlled substances weekly. The data includes information on the drug, the recipient, the health care provider who wrote the prescription and the pharmacy that dispensed it. The data is used as a clinical tool to promote the appropriate use of controlled substances for legitimate medical purposes while deterring their misuse, abuse, and diversion.

Hauser said 24 percent of Vermont prescribers and 26 percent of dispensers have active accounts on VPMS. Rep. Topper McFaun, R-Barre Town, said he is extremely concerned at the low number of participants after the many years the system has been in place and asked for information about the barriers that prevent more participation.

Hauser said that in June the registry will move to the AWARxE system – a program that helps states promote drug safety while mitigating drug diversion. The department will also provide training and prescriber insight reports that show individual prescribing patterns.

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Mental Health Services for Children and Elderly Subject to Hearing

The Senate Health and Welfare Committee spent time this week reviewing mental health services for children and the elderly. On Thursday, the Department Mental Health, the Department for Children and Families, and the Howard Center appeared before the committee to present an overview of mental health services for children in Vermont. Both departments and the Howard Center stressed that children are receiving more comprehensive and non-duplicate services due to coordinated service planning. DMH Commissioner Melissa Bailey presented an update to the committee detailing the ways in which DMH and DCF have served more than 10,000 children in the past year. She explained the importance of determining risk and health outcomes to the youth population, and how the agencies are using data collected to provide predictive information to help plan when and where services are needed.

DCF Commissioner Kenneth Schatz spoke about the department’s newly instituted policy to enhance community-based services and reduce the use, and therefore expense, of residential facilities. Schatz said that residential facilities are not the preferred approach, and the department would prefer to have services and funding in place to help children in crises stay at home. He explained that the department would like to move away from a “reactive fee-for- service” model, and said that if providers can get better determine where and when families need intense support, the legislature could create a funding model that allows communities to respond. The department is also working to create a hospital diversion program as a viable option to the waiting list at the Brattleboro Retreat.

The committee also heard from the Department of Disabilities, Aging and Independent Living Director of State Unit of Aging Angela Smith-Dieng on the program’s collaboration with the Department of Mental Health on the ElderCare Clinician Program. The goal of the program is to provide mental health services to vulnerable and homebound elders who would otherwise not be able to receive treatment via an office-based setting. Created in 2000, the program is funded by a combination of Medicaid, Medicare, and commercial insurance and a state general fund appropriation. Smith-Dieng said given the aging population and limited funding, community resources have not kept pace with demand, making it difficult for the program to carry out its purpose.

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Providers Seek Duty To Warn Legislation

Mental health providers appeared before the Senate Judiciary Committee on Friday to support S.3, a bill that would respond to the Vermont Supreme Court’s decision in the Kuligoski v. Brattleboro Retreat and Northeast Kingdom Human Services. The Kuligoski decision requires 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 and to enable caretakers to fulfill their role in keeping a patient safe. Supporters favor a return to the standard adopted previously by the Vermont Supreme Court that limited the duty to warn to serious and imminent threats communicated by patients concerning identifiable victims.

National Association of Social Workers Executive Director Darlene Furey said the court’s decision in the Kuligoski case does not properly balance between protecting public safety, providing effective treatment, and safeguarding individual rights. Furey said, “That case imposes an unfair – and unclear – burden on social workers and other mental health providers to warn an ill-defined set of potential victims and caregivers. As a result, providers will be subject to unjustifiable negligence actions – and the privacy interests of patients, as well as their rights to receive care in non-restrictive settings, will be compromised.”

Providers testified that confidentiality is crucial to a mental health professional’s ability to treat clients. Providers strongly believe that therapy is not effective if patients cannot trust that their records are confidential. Providers also recognize that forecasting dangerous behavior is extremely difficult. “Mental health professionals are dedicated to giving effective treatment to those who pose a risk of violence, but they cannot accurately predict whether and when any particular patient will have a violent outburst, much less who will be the target of the violence,” said Furey.

The committee will take additional testimony in two weeks.

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Administration Officials Promote Consolidation Plan

Commerce Secretary Michael Schirling and Labor Commissioner Lindsay Kurrle testified before a joint meeting of the Senate Government Operations and Finance committees on Thursday to promote Gov. Phil Scott’s proposal to merge the two agencies into a new Agency of Economic Opportunity.

Schirling said the proposal is to create a new agency, not to subsume the Labor Department within the Agency of Commerce. Anticipating objections from Democratic committee members, Kurrle emphasized that the merged entity would not impede her department’s ability to enforce the state’s labor laws.

Schirling described the goals of the proposal:

•    Increase collaboration. Workforce development is now in separate agencies.
•    Identify data gaps and collect and use data in better ways. Leverage ACCD capacity.
•    Increase education opportunities. There will be reduced regulatory obligations if employers are educated about requirements.
•    More closely align efforts to bring businesses and potential workers together.

Echoing concerns expressed elsewhere, committee members focused on what they said was the potential conflict of placing employment recruiting and workplace regulation within the same agency. Sen. Michael Sirotkin, D-Chittenden, asked Kurrle if there was any legitimacy to concerns expressed by organized labor. Kurrle responded, “If you polled Vermonters they would tell you it is time for change. They trust that the Department of Labor will protect labor and enforce the law.”

Schirling also responded to the concerns about consolidating business development and workers rights by reminding senators of his law enforcement background:  “I’ve had 27 years of community building and holding people accountable. They aren’t mutually exclusive,” he said.

Schirling and Kurrle presented, but did not discuss a Project Management Plan to merge Agency of Commerce and Department of Labor into Agency of Economic Opportunity. Schirling told the senators that the administration has just started the engagement process with stakeholders, and the legislature is seeing a two-day-old draft of an organization chart. He assured them there will be further discussion about creating a firewall of sorts between the two departments.  

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Public Service Department Begins Work on 10-Year Telecommunications Plan

The newly formed House Committee on Energy and Technology began exploring the process of the statutorily required update of the 10-Year State Telecommunications plan this week. Jim Porter, director of telecommunications at the Public Service Department, appeared before the committee on Thursday to discuss the requirements of the plan and begin review of the 2014 Telecommunications Plan.

Porter said the plan establishes the basis for state telecommunications policy and must be updated every two to three years by the department, but it does not carry legal weight (with one minor exception). Additionally, the department is required to update the minimum technical service characteristic objectives every three years beginning in 2017. Porter told the committee that an important part of the plan includes an independently conducted public telephone survey that helps determine the current telecommunications needs of Vermonters.  

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House Committee Agrees to Unusual Recount in Contested Race

The House Government Operations Committee voted 7-4 on party lines this week to recount the ballots in the Orange 1 House District where incumbent Susan Hatch Davis, a Progressive, finished third in a race for two House seats in November. The two winners, Reps. Rodney Graham and Robert Frenier, are both Republicans and were sworn into office on Jan. 4.

On election night, Frenier held a seven-vote lead over Hatch-Davis for the second seat in the district. Hatch Davis asked for a recount, and a machine recount reduced the lead to six votes. Hatch Davis claimed town clerks had interpreted “spoiled ballots” differently at different polling locations and asked for a hand count, but Judge Mary Miles Teachout declared Frenier the winner.

Hatch-Davis appealed to the House committee, which is allowed under the Vermont Constitution. Six Democrats and one Progressive voted to conduct a recount while all four Republicans on the committee opposed it, calling it blatantly partisan. If the full House approves the committee’s recommendation, a hand recount will be conducted by the committee at the Statehouse under rules it must yet approve.  

According to House Clerk William Magill, such recounts have been held several times in the state’s history and in at least one case a recount overturned a certified election.

The Public Service Department has begun work on the plan, which is due at the end of this calendar year, and will again visit the committee to further discuss the plan’s direction. 

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