Legislative Update 04-14-2017
An analysis from DRM's Government & Public Affairs Team
Vermont Legislative Update Quick Links
House Approves Expansion of Mental Health Workers’ Comp Benefits
After a surprisingly contentious debate over two days, the House approved by voice vote H.143, a two-part bill that 1) creates a presumption that post-traumatic stress disorder claims by emergency responders are work related; and 2) expands the eligibility of all workers for work-related mental health claims.
The approval of coverage for emergency responders was never really in doubt given their political clout. But business groups raised significant concerns about the second provision, which as introduced would likely have had a major impact on rates. The bill would have eliminated the requirement from the Vermont Supreme Court’s decision in Crosby v. City of Burlington which requires workers, in order to claim mental health benefits, to show that their stress is greater than that experienced by other employees in the same occupation.
The bill as passed revises the so-called Crosby standard to require that employees demonstrate that their workplace stress is greater than that experienced by employees across all occupations. The bill also disallows stress claims based on adverse personnel actions. Despite these modifications, the bill is likely to increase costs and therefore is still opposed by business groups.
The bill’s passage comes long after the legislature’s crossover deadline, but it is a priority for Senate President Pro Tem Tim Ashe, D/P-Chittenden, so that deadline will be waived.
Senate Judiciary Committee Bill Likely to Send Uber Packing
The Senate Judiciary Committee passed a bill on Friday that, if approved by the legislature, will almost certainly cause Uber to cease operations in the few Vermont communities where it provides services. The bill as passed by the House, H.143, established minimum insurance standards for Uber and other ride-sharing services that largely mirror those adopted by 43 other states. The Judiciary Committee, in a reversal of an earlier decision, voted to significantly increase those standards. The committee also added a unique background check requirement and eliminated provisions that would have allowed Uber to claim that its drivers are independent contractors.
The bill includes a provision that grandfathers a City of Burlington ordinance that was negotiated with Uber. But that provision is unlikely to mean much to Uber, since the lower insurance limits established by the Burlington ordinance would be of dubious validity as drivers cross municipal boundaries.
The bill is expected to be referred to the Senate Finance and Appropriations Committees before going to the floor.
Commerce Considers Omnibus Consumer Protection Bill
In a surprisingly unorthodox move in a committee known for its deliberative process, House Commerce and Economic Development Committee Chairman Bill Botzow, D-Pownal, combined seven separate House consumer protection bills with three Senate-passed bills in a 61-page tome that was the subject of many hours of hearings this week. Among other things, the bill would:
• Impose new standards for residential construction contracts;
• Create new requirements for lenders to periodically analyze escrow accounts;
• Regulate fantasy sports;
• Create new regulations for automobile advertising;
• Establish new warranty obligations for motorboat dealers;
• Impose new standards for automatic renewal provisions in consumer contracts;
• Create credit protections for vulnerable adults and minors;
• Adopt standards for the use of credit reports by insurers; and
• Adopt significant new standards limiting credit card debt collection activities.
The latter provision gained much of the attention in the committee this week, with lenders raising major objections. The committee is likely to pare back or strike that section of the bill. Most of the other sections will also be up for discussion next week.
Private Company Seeks Subsidy from Universal Service Fund
Former state senator and gubernatorial candidate Matt Dunne appeared before several legislative committees this week to ask the legislature to subsidize CoverageCo, a private company that is seeking to expand cell coverage in unserved Vermont regions through the use of microcells that are installed on utility poles.
Dunne told the committees that the company has found that Vermonters use cell service in cars at dramatically lower levels than drivers nationally, and that has undermined the company’s business case. Dunne said the company has asked Green Mountain Power Corp. to reduce the fees it charges to provide power to each of its sites, and it is asking the legislature to cover the cost of connecting to the E-911 system by appropriating money from the Universal Service Fund. The USF is collected as a tax on telephone users to help subsidize service for low-income Vermonters. CoverageCo is asking to receive about $120,000 per year from the USF.
The Department of Public Service is expected to oppose the transfer, as are the state’s telephone wireless and wireline companies whose customers pay the tax.
Merger of Labor and Commerce Off the Table for This Year
The Senate Economic Development, Housing and General Affairs Committee this week pulled the plug on Gov. Phil Scott’s proposal to merge parts of the Department of Labor and Agency of Commerce and Community Development. The committee decided instead to ask for recommendations from a special task force convened by the Workforce Development Board.
In a hearing Tuesday in the committee, Greater Burlington Investment Corporation President Frank Cioffi described the work on the 61-member WDB and accepted the task of convening a new working group to recommend changes to the current system. Cioffi chairs the board. The new group will include a subset of the full board and the heads of state agencies. The committee approved language for the work in a new draft of S.137 on Friday.
Liquor-Lottery Merger On Again, Off Again
Hours after the full House nullified an Executive Order that would merge the Department of Liquor Control with the Vermont State Lottery Commission, a Senate committee approved language that would create the same merger by law.
The idea of combining the two functions has been proposed before by Rep. Tom Stevens, D-Waterbury, and had attracted interest in the House General, Housing and Military Affairs Committee, of which he is the vice chair. On Tuesday, however, the House voted to disapprove the merger, claiming that the idea needs more thought. Republicans claim it was rejected because it was proposed by Gov. Phil Scott.
The next day, as it was reviewing a House-passed bill that would modernize the department, H.238, the Senate Economic Development, Housing and Military Affairs Committee modified its language to include the merger. If approved by the full Senate, the matter will be resolved in a conference committee.
Two Workplace Bills Approved by Senate Committee
The Senate Economic Development, Housing and General Affairs Committee has approved a pair of workplace regulation bills. Both have received prior approval in the House.
Workers would be assured of privacy in their social media accounts under H.462, which was approved by the committee on Friday. It made only one minor amendment to the version that passed the House.
Under H.136, employers will be required to make "reasonable accommodations" for a person whose abilities are limited by pregnancy, childbirth or a related condition. The Senate's version of the bill clarifies that the rights of the individual would be similar to those of a person with a disability. Both bills now go to the full Senate.
Natural Resources Committee Considers Toxic Chemicals Bill
The House Natural Resources, Fish and Wildlife Committee began testimony late this week on S.103, a bill relating to the use of toxic chemicals, but after a half-day of testimony on Thursday, a late floor session bumped the scheduled testimony for the rest of the week.
In testimony on Thursday, lawmakers heard from Agency of Natural Resources General Counsel Jen Duggan, Vermont Public Interest Research Group Executive Director Paul Burns and Associated Industries of Vermont Vice President Bill Driscoll. None of the witnesses suggested expanding the bill into the controversial issues contained in the original draft, including citizens suits and medical monitoring, but Burns asked the committee to make changes in the Chemicals of High Concern to Children program, which was enacted in a hard-fought compromise two years ago. The committee will devote most of next week to the bill.
House Members Propose New Series of Carbon Tax Bills
Four members of the House have introduced "short form" bills that would replace a number of different taxes with a tax on the carbon content of fuels. The proposals range from cutting the income and sales and use tax to issuing dividend checks to all state residents.
The four sponsors are Rep. Johannah Leddy Donovan, D-Burlington, Rep. Sarah Copeland Hanzas, D-Bradford, Rep. Martin LaLonde, D-South Burlington and Rep. Diana Gonzalez, P/D-Winooski. The four held a news conference on Monday in downtown Barre to promote their bills.
Short form bills are devoid of details, which are added later if a committee takes them up. There has been little legislative attention to carbon tax proposals this session, but opposition to the tax was considered a key part of candidate Phil Scott's gubernatorial campaign. He opposed the bills on Tuesday.
Hospitals Stress Need for Data to Address Mental Health Crisis
Representatives of the Brattleboro Retreat and hospitals with inpatient psychiatric units appeared before the House Health Care Committee on Wednesday to give their perspectives on S.133, a bill that addresses resource challenges at designated mental health agencies and emergency wait times at hospitals. Rutland Regional Medical Center Vice President of Community and Behavioral Health Services Dr. Jeffrey McKee said hospitals are committed to helping solve the crisis of patients waiting in hospital emergency rooms and to providing patients with quality treatment, and helping them thrive.
McKee said to create an operational mental health system, the emphasis needs to be on the development of a system-wide patient flow monitoring system with clear metrics that can establish shared accountability at all levels of care. He said emergency department waiting times are the most visible symptoms of the crisis, but there are multiple causes. He stressed the need for comprehensive and comparable statewide data across all providers. According to McKee, average length of stay data is the most important metric for examining system functionality related to patient flow in hospitals, and this flow data should drive solutions on statewide capacity issues.
Brattleboro Retreat President Louis Josephson said many patients who are clinically cleared for release to another setting are “stuck” in the hospital because there are no appropriate step- down facilities. He believes the system should work toward more integration of primary care and psychiatric care to reduce redundancy and increase points of access for those in need of mental health treatment. He doesn’t believe there is a shortage of inpatient beds, but cited underfunded services and chronic workforce and bed shortages as barriers to care.
Josephson also stressed the need for crisis beds, mobile crisis units and other community-based alternatives to emergency departments, as well as increased capacity of residential or “assisted living” options in the community for people with persistent mental illness that provides minimally necessary support and preserves dignity and autonomy.
Group Advances Mental Health Crisis Response Commission
The Senate Health and Welfare Committee unanimously approved H.145 on Thursday, a bill that would establish a Mental Health Crisis Response Commission within the Office of Attorney General. The commission would review fatalities and serious bodily injuries that occur during interactions between law enforcement officers and persons demonstrating symptoms of mental illness. The bill was introduced in response to an incident in Burlington in which police fatally shot an individual who was experiencing a psychiatric crisis.
The committee agreed to an amendment offered by the Attorney General’s Office that the review process for fatalities or serious bodily injuries not begin until any criminal prosecution arising from the incident is concluded or until the AG or state’s attorney provides written notification to the commission that no charges will be filed in the case.
Committee Passes Mental Health Treatment for Minors
On a vote of 5-0, the Senate Health and Welfare Committee on Thursday passed H.230, a bill that allows minors to consent to receive psychotherapy and counseling from a mental health professional without the consent of a parent or legal guardian. The committee heard from numerous individuals that some minors need a supportive environment to talk about their thoughts and emotions before sharing information with their families. Approximately 30 states have a similar law.
Vermont Federation of Families for Children’s Mental Health Executive Director Kathleen Holsopple expressed concern that the legislation could further divide families by suggesting that parents will not be supportive. Although the committee found the concern valid, the members believe that providing youths with a safe environment and supporting adult is more important. Ideally, the parents should be these adults, but that isn’t always possible.
Bill to Evaluate Deaths by Suicide Advances
The Senate Health and Welfare Committee on Friday unanimously approved H.184, a bill that requires the Agency of Human Services to evaluate the profile and factors related to each suicide in the state and report the findings annually. The committee heard from Agency of Human Services Director of Policy and Program Integration Paul Dragon that the agency is in the first year of a five-year Centers for Disease Control grant that 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 supports the language that requires them to provide at least annually a report on the progress and a plan on how relevant data will be continued once the grant expires.
Panel Approves ACO Reporting Bill With Prescription Drug Provision
On Wednesday, the Senate Health and Welfare committee approved H.507, a bill that requires the Department of Vermont Health Access to provide periodic reports on the implementation of the Next Generation Medicaid Accountable Care Organization pilot contract with OneCare Vermont, the state’s largest Accountable Care Organization. The bill also would require the Green Mountain Care Board to provide a written update on its progress towards meeting the benchmarks identified in the first year of the All-Payer ACO Model Timeline and its preparations for regulating ACOs.
The bill would delay a requirement that DVHA apply for a federal waiver to ensure the continued availability of Bronze-level exchange plans that meet Vermont’s out-of-pocket prescription drug cost limit until March 2019. At the request of insurers, a provision was included that any alternative Bronze plan designs approved by the Green Mountain Care Board for open enrollment in 2018 be extended to plan year 2019 to limit disruption in the market.
In an attempt to limit consumer cost-sharing for expensive prescription medications, the legislature in 2012 required health insurance plans to cap prescription drug out-of-pocket expenses. Since the implementation of this requirement, health insurers have claimed that it has become increasingly difficult for them to develop Bronze exchange policies that not only contain the state-mandated prescription drug cap, but also meet federal guidelines.
Sen. Michael Sirotkin, D-Chittenden, and others will offer an amendment next week on the alternative Bronze plans that will authorize a one-year extension as long as there is consideration for ensuring the maximum out-of-pocket costs for prescription drugs is not eliminated across the board.
Telemedicine Bill Headed to the House Floor
The House Health Care Committee on Thursday approved S.50, a bill that allows telemedicine services performed by providers (other than primary care providers) who are outside of a health care facility to be reimbursed just as they would for an in-person appointment. After lengthy discussion, the committee agreed to prohibit the recording of telemedicine sessions.
The committee also included a provision on informed consent, which would require that the provider inform the patient that he or she may experience a difference in care in terms of a therapeutic rapport with the provider and that telemedicine may give the provider a different degree of visual observation of the patient. It also allows for a more flexible approach for providers working through a third party vendor contract by allowing the use of the vendor’s own informed consent document.
The committee amendment can be found here.
Panel Reviews Health Information Technology Assessment
Department of Vermont Health Access Commissioner Cory Gustafson appeared before the Senate Finance Committee on Thursday to support the extension of the sunset on the health care claims tax for the health information technology fund for one year to July 1, 2018. The provision is included in H.516, the miscellaneous tax bill. 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 funds are directed to Vermont Information Technology Leaders, a private organization that receives state funds.
Gustafson said the administration also supports accompanying language that requires the administration to conduct a comprehensive review of the HIT fund in order to evaluate how payments from the fund have promoted advancement of heath information technology adoption, whether to continue the HIT fund with its current revenue source, and to recommend any changes to the structure of VITL, including whether it should be a public or private entity.
Former VRGA Director Named State Representative
Former Vermont Retail and Grocers Association Executive Director James F. Harrison has been appointed to the legislature, replacing Rep. Job Tate, R-Mendon, who resigned because of a pending military deployment. Harrison was chosen over Green Mountain National Golf Professional David Soucy by Gov. Phil Scott. He was sworn in Tuesday and assigned to the House General, Housing and Military Affairs Committee.
Harrison headed the Vermont Grocers Association for more than 29 years, adding the Vermont Petroleum Association as a subdivision in 1999 and merging with the Vermont Retail Association in 2014. He recently retired. A resident of Chittenden, Harrison plans for run for election in 2018 as a Republican.