Vermont Legislative Update 2-16-2018
An analysis from DRM's Government & Public Affairs Team
Vermont Legislative Update Quick Links
Judiciary Committee Begins Markup of Strict Liability Bill
The Senate Judiciary Committee on Friday began narrowing the scope of a broad-ranging bill creating Superfund-like liability for anyone who releases a harmful substance into the environment. Under S.197, a responsible party would be held strictly, jointly and severally liable for any damage to a person’s health or property resulting from the release. The harmed person would also have a private right of action to require payments for medical monitoring.
Concerns were raised by the Vermont Department of Economic Development, the Vermont Agency of Agriculture and the Vermont Department of Financial Regulation over the breadth of the proposal, its impact on insurance rates and the lack of any defense for the potentially responsible party. With the permission of Committee Chair Sen. Dick Sears, D-Bennington, Legislative Counsel Attorney Michael O’Grady has begun to draft changes to the bill that narrow its focus. The committee expects to see the next draft on Tuesday and will continue working on it over the next two weeks. In order to advance this session the bill will need to be voted out of this committee on or before March 2.
Government Operations Split over Association Membership Disclosure
The members of the Senate Government Operations Committee are divided about whether to pursue legislation, S.132, that would require trade associations that register as lobbyist employers to disclose the names and addresses of their members.
Matt Cota testified against the bill this week on behalf of the Vermont Association of Society Executives, a small non-profit comprised of most of the state’s trade associations. Cota argued that non-profits are already required to disclose the names of board members and number of members on federal IRS 990 forms. He said the membership disclosure is unnecessary. Other witnesses echoed Cota’s testimony.
Assistant Attorney General Eve Jacobs Carnahan described some of the potential constitutional pitfalls of the legislation. According to Carnahan, the legislature would need to articulate a rational basis for requiring the disclosure of business members, but not of individuals. Sen. Chris Pearson, P-Chittenden, responded that the committee had been advised that it couldn’t constitutionally require individual disclosures. Carnahan suggested that the law was not so clear, but she added that if only business names were required, the legislature would have to have a reason for making the distinction.
That advice appeared to put the committee in a box: The bill as drafted is constitutionally suspect, but requiring the disclosure of individual names and addresses is politically untenable. Pearson agreed to work on a revised bill, but at least two, and perhaps three of the committee’s five members seemed to have little interest in pursuing the issue further.
Committee Decides Not to Pursue “Right to Repair” Legislation
The Senate Economic Development, Housing and General Affairs Committee decided this week to abandon work on a bill that would have required manufacturers of electronic products to make the same product repair information available to independent repair providers that it provides to authorized repair providers. This would have included proprietary software and schematic diagrams.
The bill, S.180, was strongly opposed by many electronics manufacturers. Sen. Philip Baruth, D-Chittenden, said the issue is too complicated for the committee to pass a bill this year. Sen. Alison Clarkson, D-Windsor, objected to the notion of abandoning work on the bill. She complained about her inability to obtain a local repair of a high-end digital camera.
The committee agreed to create an advisory group to study the issue and come back to the legislature with recommendations next year. The committee will need to pass a bill to create the advisory committee.
Action Likely on Regulation of Credit Card Swipe Machine Leases
The Senate Economic Development, Housing and General Affairs Committee decided this week to continue work on legislation, S.206, that would regulate lease agreements for credit card terminals. The committee heard testimony two weeks ago from small business owners who complained about the unfairness of the lease terms.
The committee is focused primarily on requiring that the lease agreements contain adequate disclosure of their terms. It is considering similar legislation that was approved in Tennessee.
What remains to be decided is whether the new draft bill will include a cap on total lease prices. The bill as introduced would provide that the total cost of a lease not exceed 300 percent of the lessor’s original purchase price for the equipment. Committee members appear to be divided over this provision, although the Office of the Attorney General has advocated strongly that it be included.
Committee Considers Workforce Development Bill
The House Commerce and Economic Development Committee took up a new draft this week of the administration’s workforce development proposal. Sarah Buxton and Tristan Toleno testified on behalf of the administration. They also submitted the governor’s Interagency Workforce Plan and his ThinkVermont/MOVE proposal.
Tolena described some of the problems with the existing Workforce Development Board, saying it hasn’t met as often as required and is not prepared to do the work that it needs to do. While the size of the board is not necessarily a problem, the administration wants to repurpose it to focus on a few strategic objectives. The “grunt work” would be done by six or seven committees.
Buxton said the legislature’s role is to decide where the investments of federal funds will be made. She said they want to create a mechanism that allows the state to be flexible and that reflects the economic and political realities in Vermont.
The draft bill requires the board to conduct a public engagement process to create “a vision and shared goals for meeting Vermont’s 21st century workforce education, training, recruitment, and retention needs.” The board is required to adopt a vision and goals by Feb. 1, 2020.
The bill requires the Agency of Education, in partnership with the board, to ensure that middle school students are introduced to Career Technical Education programs of study, and that high school students in all grades are able to participate in CTE classes.
The board is required to support apprenticeship programs, internships and other on-the-job opportunities that lead to industry certificates and credentials.
Finally, the bill recognizes the importance of the Vermont Business Roundtable’s Talent Pipeline Management Program.
Committee Chairman Rep. Bill Botzow, D-Pownal, said his goal is to pass a bill out of the committee by the middle of next week.
Public Hearing Planned on New Ways and Means Tax Plan
The House Ways and Means Committee will hold a public hearing on Wednesday to hear comments on a plan to make significant changes to the way Vermont residents pay for primary and secondary education. The plan has been quietly vetted in the committee over the past week and a half, but few details have been shared with the public.
Under existing law, Vermont residents and non-residents pay an education property tax based on the value of the property they own. The rates paid are independent of one another, and a portion of the tax many residents pay is discounted based upon their income.
Under the proposed plan, residents would pay a much lower education property tax, and the difference would be made up by an income tax dedicated to education. Details are still vague, and the committee will begin to seriously consider the moving parts after Wednesday’s public hearing.
Governor Proposes to Hold Vermonters Harmless From State Implications of Federal Tax Changes
The Vermont Department of Taxes and the legislature’s Joint Fiscal Office estimate that the state would collect an additional $30 million per year in personal income tax as a result of the federal Tax Cuts and Jobs Act passed in the waning days of 2017. Now Gov. Phil Scott and the Tax Department have proposed a plan to keep Vermont taxes as they are.
Under the proposal, individual taxpayers would begin with the relatively untouched Adjusted Gross Income from their federal tax form and then make a series of new adjustments. Those include reintroducing personal exemptions, creating a new standard deduction, lowering all of the state tax rates and introducing a five percent tax credit for charitable contributions. The plan has been submitted to the House Ways and Means Committee.
Panel Receives Progress Report on Vermont Information Technology Leaders
A comprehensive and independent review of the Vermont Health Information Exchange found that it is suffering from serious financial and administrative issues and failing at its core mission – to make patient information available to providers. But Vermont Health Access Deputy Commissioner Michael Costa told the House Health Care and Ways and Means Committees this week that the state and VITL are working together on short- and long-term fixes that will make the patient record database usable and sustainable.
The two committees received a progress report on VHIE from Costa on Wednesday. The VHIE is operated by Vermont Information Technology Leaders, a nonprofit organization that collects and manages patient data with the goal of improving quality of care and patient safety.
Costa said lawmakers should require a work plan to be delivered by May that clearly defines the goals that DVHA and VITL must achieve as a requirement for continued funding. He recommended progress updates that would address developing a statewide Health Information Technology Plan, improving the health information exchange and partnering with VITL as it works to fulfill its prescribed mission. He also recommended that a contingency plan be triggered if DVHA and VITL cannot implement the recommendations outlined in the work plan.
Both committees discussed whether Vermont should change from an “opt-in” state requiring patients to affirmatively agree to allow their records to be included in the health information exchange, to an “opt-out” state that automatically adds records to the exchange unless a patient objects. Most states that operate a successful exchange are “opt-out.” Rep. Anne Donahue, R-Northfield, is adamantly opposed to this change.
House Ways and Means Committee Chair Rep. Janet Acel, D-Calais, said that the committee would look closely at the current VITL contract and asked DVHA for further information on what would be required to run the system “in-house.” Ancel also said the committee would examine declines in the health care claims tax that funds VITL, and whether administration-suggested guard rails need to be put on the fund.
State Preparing to Welcome Autonomous Vehicles
The Vermont Agency of Transportation has begun to look at the impact of self-driving vehicles on the state’s transportation system and the people who will occupy them. A first look at the topic and the issues it raises was presented to the House Transportation committees Tuesday by Joe Segale, director of the Planning and Research Bureau at the DMV.
The evolution of self-driving cars ranges from vehicles that have no “smart” features at all, such as lane and blind spot warnings, to completely driverless cars. A number of states already have legislation regarding AVs. Vermont is one of only 20 that do not, including most of the New England states, but AOT will form a working group over the summer and offer a proposed bill next session.
Oversight of vehicle design and testing is largely a federal matter, but states will have a say over authorized travel routes, insurance, liability and infrastructure. Segale wants authority to regulate performance testing and hopes that automobile manufacturers will test vehicle performance in northern New England weather and road conditions in the near future. Segale says AOT wants people to be comfortable with the vehicles and predicted that there will be a long period when both types of vehicles share the road, since a full fleet turnover typically requires up to 20 years. One optimistic study predicts that 95 percent of the vehicles on road in Vermont will be autonomous by 2030.
Senate Advances Minimum Wage Hike
The minimum wage in Vermont would increase by 75 cents an hour over the current rate of $10.50 per hour each year for six years under a bill that reached final passage in the Senate on Friday. The federal minimum wage is set at $7.25 per hour and is not scheduled to change.
Under the bill, the minimum wage would increase each year until 2024 when it will reach $15 per hour. The wages of “tipped” employees, which are currently half the rate of the minimum, would also increase proportionally. Before passing the bill the Senate also adopted provisions that would disallow a change proposed at the federal level to allow redistribution of tipping receipts by the owner of a business.
The bill, S.40, will now move to the House for consideration. Gov. Phil Scott opposes the increase, but has not yet promised a veto.
Green Mountain Care Board Proposes Changes to Bill-Back
The Green Mountain Care Board appeared before the House Health Care Committee on Wednesday with proposed changes to the board’s authority to bill back the costs of certain regulatory activities to the entities it regulates. After extensive meetings this fall with stakeholders, the GMCB has recommended that allocations be shifted and accountable care organizations participate in the assessment now that the board has oversight over ACO budgets.
The proposed allocations are as follows:
- 40 percent by the state;
- 30 percent by hospitals;
- 24 percent by insurers; and
- Six percent by ACOs.
The committee will take further testimony next week.
Bill Would Expand Category of Providers to Provide Health Screenings
The Senate Health and Welfare Committee took preliminary testimony on Wednesday on S.165, a bill that would expand the categories of licensed health care professionals who can perform pre-employment health screenings for hospital employees. Pre-employment screenings are used to screen individuals for risk factors that may limit their ability to perform a job safely and effectively. The Board of Medical Practice supports the legislation.
Senate Panel Advances Childhood Trauma Bill
On Thursday, the Senate Health and Welfare Committee advanced S.261, a bill that is intended to address trauma and toxic stress in childhood, build resiliency among children and families, and create systems to support individuals who have experienced trauma.
- Expands support services in pediatric primary care and requires the Commissioner of the Department of Children and Families to select one new county annually to implement a program based on regional need and available pediatric and parent-child center partners.
- Creates a director of prevention position within the Agency of Human Services for six years to coordinate the agency’s response to individuals who have experienced childhood trauma and toxic stress. It requires a report to the committees of jurisdictions by January 2024 summarizing achievements, existing gaps in trauma-informed services, and recommendations for future action.
- Requires trauma-informed training for child care providers that builds resilience among children and students.
- Requires the director of prevention to develop a framework for evaluating the workforce, payment streams and real costs associated with the state’s child care system and community-based family support system.
- Requires the director of prevention to coordinate with the Agency of Education to support local schools to ensure that all health appraisal forms are completed annually to enable school nurses to identify students’ health-related barriers to learning.
- Expands the use of the evidence-based education and advertising fund to include evidence-based opioid-related programming.
Senate Panel Passes Mental Health Bill
On Thursday, the Senate Health and Welfare Committee advanced 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 must follow or face hospitalization or re-hospitalization. The bill calls for a limited-time study committee that will look at the strengths and weaknesses of ONHs and consider a pilot project to address any weaknesses and build upon existing strengths.
Universal Primary Care Funding Questioned
Vermont Association of Hospitals and Health Systems Vice President of Government Affairs Devon Green told the Senate Health and Welfare Committee on Wednesday that the major issue with the committee’s proposal to use hospital “excess funds” to pay for universal primary care is that they are betting against health care reform – either hospitals exceed their budget targets or universal primary care loses its funding. “This funding mechanism for UPC will disrupt the health care reform efforts that the legislature has built – that the GMCB is overseeing – and that is currently working for hospitals,” said Green.
Department of Financial Regulation Director of Insurance Regulation Phil Keller said that he has operational and legal concerns with S.53. The major operational concern is that the bill would make state government the largest health insurer in the state in terms of covered lives with the responsibility for ensuring the payment of primary care services for Vermont residents.
Keller said the legislation needs to state clearly the kinds of services that would be covered, for three important reasons. First, knowing the universe of covered services is essential to determining the plan’s projected claims and funding needs each year. Second, health care consumers need to know what services will be covered. Third, if the line between primary care and major medical care isn’t clearly defined, there is likely to be a coordination of benefits problem with both the state and major medical insurers being uncertain as to who is responsible for paying a claim.
The committee will take additional testimony next week.
Ayer Seeks Regulation of Ambulatory Surgical Centers
The Senate Health and Welfare Committee took preliminary testimony on Friday on S.278, a bill that would impose new regulations on ambulatory surgical centers. ASCs are medical facilities that specialize in elective same-day or outpatient surgical procedures. Introduced by Committee Chair Sen. Claire Ayer, D-Addison, the bill would essentially add ASCs to all state regulations for hospitals including budget and certificate of need reviews and the assessment of the provider tax. Providers pay a tax to the state government, which then uses the money as the state’s necessary matching funds to bring in additional federal Medicaid money.
Green Mountain Surgical Center Executive Director Amy Cooper is opposed to the legislation. She said ASCs are not hospitals and therefore should be regulated differently. They are already regulated through a certificate of need process and the requirements under the bill go far beyond the current CON conditions put in place by the Green Mountain Care Board. The bill would require ASCs to undertake an extensive community health needs assessment and long-term planning process with annual progress reporting. It would also subject ASCs to the full annual budget review and GMCB approval process that general hospitals are subject to. She estimates the fees in the bill would add at least $500,000 per year in operating costs to the GMSC.
Cooper said ASCs have a restricted license to offer only outpatient surgical procedures with no overnight stay. She said unlike hospitals, no distinct ASC entity is allowed to mix functions with, or offer, physician office services, independent imaging services, labs, or other services per federal law and CON license. Because of these differences she does not believe they should be subject to the same regulations as hospitals. Cooper’s presentation can be found here.
The committee will take additional testimony next Wednesday.
House Panel Continues Review Of APRN Requirements
The House Committee on Government Operations has taken extensive testimony over the past several weeks on a section of H.684, that would amend two requirements for Advanced Practice Registered Nurses intending to engage in clinical practice. The bill proposes to remove the current requirements that 1) APRNs submit individual practice guidelines to the Nursing Board for approval and 2) APRNs with limited experience have a formal agreement with a collaborating provider and be restricted in the engagement of solo practice. Proponents of the bill say that the eased requirements would reduce unnecessary barriers to practice and increase access to care for Vermonters.
The Vermont Medical Society and others expressed concern that repeal of the collaborative agreement requirement was too broad and may allow APRN’s with insufficient experience to enter clinical practice without sufficient guidance and oversight. VMS and the Office of Professional Regulation crafted a compromise that retains but narrows the collaborative agreement requirement. The new proposal would require collaborative agreements only for solo APRNs or APRNs working with small practices. APRN’s in larger practices would be relieved of the requirement if they document and file details of the larger practice with which the practitioner works. Both OPR and VMS also proposed to strike the individual practice guideline requirements.
David Herlihy, executive director of the Vermont Board of Medical Practice, testified that the board opposes the compromise proposal because current requirements are “plenty flexible.” Herlily also refuted claims that collaborative agreements are burdensome or anti-competitive, pointing to FTC opinions stating that they are allowable.
The committee will continue consideration of the bill in the next two weeks.
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