Legislative Update 04-28-2017
An Analysis from DRM’s Government & Public Affairs Team
Vermont Legislative Update Quick Links
Senate Committee Rejects Anti-Uber Amendment
The Senate Finance Committee on Friday afternoon unanimously rejected a proposal from the Senate Judiciary Committee to impose high automobile liability insurance limits on ride-sharing companies like Lyft and Uber. The Judiciary Committee’s amendments to H.143 would have required limits of $100,000 for death/bodily injury per person, $300,000 per incident, and $25,000 for property damage. Those limits are dramatically higher than the 46 other states that have adopted insurance limits.
The Judiciary Committee adopted several other amendments that are opposed by the ride-sharing companies. The Finance Committee plans to take additional testimony on this issue next week.
Legislature Sends Emergency Responder Bill to Governor
The Senate on Thursday approved a House-passed bill, H.197, that will expand mental health benefits for workers’ compensation claimants. This afternoon the House sent the proposal to the governor.
Political support for the bill was almost entirely driven by first responders, who argued the bill was necessary to ensure that emergency service workers who suffer from PTSD are eligible for benefits.
Business groups and insurers argued that other provisions of the bill – which will expand mental health benefits for all employees – will increase employer costs. Those provisions received virtually no attention from the legislature.
Senate Approves Access to Cannabidiol Medication
The Senate unanimously approved an amendment 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 S.22, a bill related to fentanyl, and was approved by the full Senate on Tuesday. The full House approved the measure on Friday.
Senate Advances Appropriations Bill
The Senate unanimously approved a $5.8 billion budget on Thursday that closes a $72 million projected gap between revenues and expenditures in the 2018 fiscal year. The bill, H.518, increases spending over fiscal year 2017 levels by one percent, taking into account federal, transportation and education funds.
Senate Appropriations Committee Chair Jane Kitchel, D-Caledonia, said the bill funds priorities to promote rural economic development, stabilize the mental health system, and provide financial sustainability for the state colleges.
Among its provisions the bill:
- Restores proposed reductions in Agency of Human Services grants to nonprofit organizations;
- Provides $3 million to child care facilities in additional funding for centers and home-based programs for infants and toddlers with high-subsidy client populations;
- Reduces Disproportionate Share Hospital payments by $10 million (payments to hospitals that serve a large number of Medicaid and uninsured individuals) to fund designated mental health agencies salaries as part of a multiyear funding plan;
- Rejects $1 million requested by the governor to help pay for a $35 million bond for affordable housing;
- Transfers $8 million in teachers’ retirement payments obligations to the state education fund;
- Establishes a plan to close the Windsor prison and repurpose it to provide the facility for transitional housing for inmates preparing to reenter the community;
- Increases funding for the Vermont State Colleges by $3.8 million; and
- Removes funding for the Vermont EB5 Regional Center, but requires the Agency of Commerce and Community Development to provide a plan and detailed assessment of how the center will successfully connect Vermont businesses with investors.
A committee of conference will be appointed to work out the differences between the two bodies.
Committee Approves Expansion of Medical Marijuana Program
The House Human Services Committee gave its approval this week to a Senate-passed bill that will expand the state’s medical marijuana program. As passed by the committee, the bill (S.16) would:
- Expand eligible conditions to include Crohn’s disease, Parkinson’s disease and PTSD;
- Allow dispensaries to convert from non-profit to for-profit status; and
- Allow each of the state’s four dispensaries to add two new dispensing sites, subject to the approval of the Department of Public Safety.
The committee rejected Senate proposals to increase the monthly allowable allotment of marijuana from two to three ounces; to allow dispensary advertising; and to authorize four new dispensary licenses.
The bill will be considered by the full House early next week.
Independent Contractor Bill Meets a Fiery End
House Commerce Committee Chair Rep. Bill Botzow, D-Pownal, pulled the plug this week on the ongoing efforts by several committee members to salvage a bill to clarify the definition of independent contractor. Those efforts were led by Rep. Paul Poirier, I-Barre, and he was outraged about the chairman’s decision.
His response was chronicled by VT Digger under a headline that is likely a first for Vermont’s news media.
Ways and Means Takes Extreme Position on TIFs
The chair of the House Ways and Means Committee on Thursday unveiled a rewrite of the tax increment financing section of S.135 that would move the proposed expansion of TIF districts in a dramatically different direction from proposals vetted in other committees of the House and Senate. The move caused a major kerfuffle among supporters of municipal economic development but nonetheless was approved by the committee.
The Senate's original language, which has survived review by several House committees, would allow the creation of as many as 14 new TIFs, require municipalities to dedicate up to 80 percent of incremental local tax revenue growth to retiring the bonds and finance the state portion of the TIF out of growth in the statewide education fund property tax liability. The Ways and Means Committee amendment would limit the number of additional TIFs to two, require municipalities to dedicate 100 percent of their share of the tax revenue and require the state to contribute through an appropriation from the state’s General Fund. The use of General Fund monies would be a difficult provision for future legislatures to meet.
After adopting the proposal on an 8-3 vote on Friday afternoon, the committee approved the underlying bill, 9-2. The proposal will likely lead to an active bargaining session with the Senate next week.
Paid Leave Advances to House Floor
On a 6-5 vote, the House Appropriations Committee on Thursday voted to send to the full House a bill, H.196, that would create a state-run insurance program to provide paid family and parental leave. The measure will be debated early next week, but is unlikely to be enacted this session.
The Appropriations Committee made changes aimed at shoring up the financial integrity of the program but did not change the substantive provisions that were crafted in the House Ways and Means Committee. Under that proposal, employees would be entitled to as many as six weeks of leave paid at a maximum of 80 percent of normal wages and an additional six weeks of unpaid leave. The program would be funded by an employee payroll tax of 0.141 percent of wages up to $150,000. Tax collection would begin on July 1, 2018, and the benefit would be first available on Oct. 1, 2019.
Rural Economic Development Bill Advances in House
On Friday, the House Ways and Means Committee gave its approval to S.34, a bill that originated in the Senate Appropriations Committee and was aimed at improving economic development opportunities in rural communities. The committee made no changes from the bill endorsed earlier by the House Commerce and Economic Development Committee.
The Senate-passed bill would create new positions at the Vermont Housing and Conservation Board to help rural communities apply and qualify for federal grants. It would relieve the owners of methane digesters from air quality fees, exempt forestry equipment from the state sales tax and require the Public Service Board to recommend ways to improve participation in self-managed energy efficiency programs by entities appointed as energy efficiency utilities.
The House version, if adopted, deletes all funding allocations and replaces them with “intent to fund” provisions. It also makes changes in the criteria considered by the board when it approves funding for energy efficiency, requests recommendations from the Department of Public Service for ways to change the program, and authorizes the design of a pilot project that would allow the energy efficiency utility to operate a total energy conservation program from the funds paid by a single large vendor. The differences will be considered by a joint House-Senate Committee.
House Advances Duty to Warn Bill
The House advanced a bill on Friday that clarifies when mental health professionals must disclose information concerning a client or patient. The bill, S.3, states that a mental health professionals’ duty to warn is established 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 introduced in response to the Vermont Supreme Court decision Kuligoski v. Brattleboro Retreat and Northeast Kingdom Human Services,which expanded the duty to warn. The House Judiciary Committee approved a stakeholder-proposed amendment that addresses concerns of the Kuligoski decision in the following ways:
- Explicitly negates the Kuligoski Supreme Court decision 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 v. Counseling Service of Addison County;
- References the comprehensive regulatory process and federal rules that apply to all discharge plans; and
- Acknowledges that people who are diagnosed with mental illness are no more likely to be violent than any other person.
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.
House Advances ACO Open Board Meeting Bill
The House this week approved S.4, a bill requiring that governing board meetings of an accountable care organization be open to the public. The House amended the language to include board meetings of the Vermont Care Organization, an entity that may one day encompass the three accountable care organizations in the state. The proposal 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.
House Approves Mental Health Coordination
The House approved on Friday S.133, a bill that seeks to reduce emergency waiting times at hospitals through a comprehensive review of Vermont’s mental health system and the creation of an action plan and long term vision. The House has reached an agreement with the Senate in order to avoid a conference committee.
- Requires a review of involuntary medication treatment and psychiatric medication and their role in inpatient emergency department wait times;
- Directs hospital emergency departments to examine the use of restraints (including chemical restraints) and any criminal charges filed against an individual during emergency department waits;
- Compels the Agency of Human Services to establish a long-term evaluation of the structure for delivery of mental health services within a holistic health care system;
- Requires the Agency of Human Services and the Chief Superior Judge to report to the committees of jurisdiction on the role of involuntary treatment and medication in emergency department wait times, including concerns arising from judicial timelines and processes and the interplay between staff and patient rights;
- Directs the Secretary of the Agency of Human Services and hospitals with psychiatric facilities, 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.
House Supports the Evaluation of Suicide Profiles
The House this week agreed to Senate changes to H.184, a bill that requires the Agency of Human Services to annually evaluate the profile of and factors related to each suicide in the state. The bill 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.
Suicide was the eighth leading cause of death among Vermont residents in 2013 and the tenth leading cause of death in the United States in 2013. Vermont has seen an increase in suicides from 75 in 2005 to 114 in 2014. Lawmakers believe the state needs to go beyond demographic data and identify the gaps and barriers for suicide prevention activities.
House Accepts Changes to Mental Health Treatment for Minors Bill
The House this week agreed to Senate changes to H.230, a bill that would allow any minor to consent to psychotherapy and other supportive counseling from a mental health professional without the consent of a parent or legal guardian. Lawmakers from both bodies believe that some minors need a supportive environment to talk about their thoughts and emotions before sharing information with their families.
Changes to Mental Health Crisis Response Commission Approved
The House this week agreed to Senate changes to H.145, a bill that establishes a Mental Health Crisis Response Commission within the Office of Attorney General. The commission will 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 House Health Care Committee offered a minor amendment on the floor that allows interactions not resulting in death or serious bodily injuries to be referred for optional review by the commission. This also includes positive interactions that have occurred.
House Advances ACO Pilot Bill
The House this week accepted Senate changes to 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 ACO. The bill also requires 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 requires a health insurer to notify an individual of its intent to automatically re-enroll the person in a bronze level health insurance plan in 2018 with an out-of-pocket prescription drug limit of $1300, unless the individual contacts the insurer to select a different plan. Since implementation of the out-of-pocket limit, 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.
Conference Committee Requested for Telemedicine Bill
The House on Tuesday approved S.50, a bill that allows telemedicine services performed by providers who are outside of a health care facility to be reimbursed just as they would for an in-person appointment. The bill requires the provider to inform the patient that he or she may experience a difference in care in terms of therapeutic rapport with the provider and that telemedicine may give the provider a different degree of visual observation of the patient. Finally, it 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 House made substantial changes to the bill and on Wednesday the Senate Health and Welfare Committee requested that a conference committee be appointed. On Wednesday, the committee heard from provider groups over their concerns with the informed consent provision. The committee considered an amendment offered by providers that would allow clinicians to modify their method of discussing telemedicine with a patient based on the actual clinical situation at hand. If new technology or other new opportunities arise in telemedicine that create differences in how patients and providers utilize telemedicine, providers should have the flexibility to stay abreast of best practices and not be limited by statute.
Bill Would Change the Name of Vermont Public Service Board
To address confusion caused by a Department of Public Service that appears as a party before the Public Service Board, a bill that has now passed both Houses that would change the name of the quasi-judicial body that oversees electric and telecommunications utilities to the Vermont Public Utilities Commission. The bill, S.52, also would make a number of changes recommended by a committee that looked into ways to make the utility regulatory process more user-friendly.
Local citizens battling the siting of both renewable and non-renewable energy projects have complained that the system is complex, that much of the work is done in secret and the method of intervention is too difficult for the average citizen. The House version of the bill requires the board to meet in locations that can accommodate an adequate number of participants and to provide remote access. Another provision added to the bill requires the DPS to report on strategies to install and use energy storage facilities as part of the electrical grid.
An issue that arose when the board promulgated new rules that reduce the amount an entity is paid for renewable energy sold back to a utility (net metering) has stalled the bill in the Senate. The rule has been passed over several times by the Legislative Committee on Administrative Rules. Late this week it was passed over again after LCAR Chair Sen. Mark MacDonald told the committee the Senate would deal with the issue by an additional amendment to S.52. The amendment has not been presented. MacDonald is a vocal opponent of the net metering rule.
New Agency of Digital Services Seeks to Improve State IT Management
John Quinn appeared before the House Committee on Energy and Technology this week as the freshly appointed Chief Information Officer of the new Agency of Digital Services. The agency was created by executive order and replaces the Department of Information and Innovation, which Quinn has been heading since the departure of Commissioner Richard Boes in January.
Gov. Phil Scott’s stated purposes for ADS’s creation are:
- Improved coordination of technology procurements;
- Improved project management practices and standards;
- Improved communication among state agency and department technology resources;
Improved information technology governance;
- Enhanced utilization of technology skills and resources across departments for the benefit of all agencies and departments;
- Increased understanding of IT spending;
- Support of results-based accountability; and
- Realignment of IT resources with state priorities.
Quinn told the committee that he has already set core goals for the agency that will affect purchases, spur potential consolidation and enhance the accessibility of digital services. He stressed the need to have a cohesive IT portfolio and governance, which currently isn’t in place, and his hope to reduce redundancy in procurement of systems. The agency intends to implement more mobile technology and online capability for government services, as well as engage college interns to build cyber security programs.
End of Session Anticipated
The House and Senate will conduct "token" sessions on Saturday in a maneuver to speed up the adjournment process. The unusual weekend session also allows the majority party to avoid some tactics often used by the minority party to delay or defeat pending legislation.
Lawmakers will return to the Statehouse on Monday in the hope of wrapping up work for the year sometime on Saturday, May 6. There is a chance that they will return to Montpelier in October to deal with unanticipated issues created by changes at the federal level.
The 2017 session is the first half of a two-year biennial session. When legislators return in January they will pick up where they left off, except that any bill that has been delayed for failing to make the “crossover date” will be available again for immediate action.