Lawmaking in the COVID Era
The legislature adjourned Friday June 26 at 8:41 p.m. Sort of. After holding what was nearly the longest and certainly the strangest session in history – half of it remotely – the legislature has really only recessed, with a scheduled return date of August 25.
The adjournment/recess could not come soon enough. Lawmakers, staff and lobbyists were frazzled by the end, suffering from endless 12-hour days and the newly discovered Zoom Fatigue syndrome. Following an unusual testy exchange with a Senate committee chair on Thursday, a legislative staff attorney complained about being beaten down and tired. Another appeared utterly defeated as he tried to guide a committee with a wailing child in his lap.
The Vermont legislature was one of the most agile in the nation in “pivoting” (the favored COVID cliché) in March to the remote environment. Given the conditions, the legislature’s Zoom/YouTube process worked reasonably well. But like democracy, that’s just because it was better than the alternatives. Compared to normal times, it was awful.
Many committees avoided meaningful public participation, while some lawmakers found it far easier to ignore entreaties made via text, email or cell phone than personal appeals made in Statehouse hallways.
Committees regularly referred to bill drafts and memos that were not publicly available, even as they dealt with sums of money that would have been unimaginable just six months ago.
The technology itself created a barrier to participation that was perhaps unavoidable. By necessity, it required a computer and some understanding of technology (Zoom to get in, YouTube to watch). Pre-approved Zoom access was required to speak.
Most significantly, the technology frequently broke down and meetings were simply unavailable. At the direction of House Speaker Mitzi Johnson, House committees would stop meeting when that happened. But Senate committees plowed ahead with the apparent approval of the leadership. The tortured reasoning was that if the proceedings could be watched later, that satisfied the Open Meeting Law. The Senate’s cramped interpretation of the statute finally changed after the Vermont Press Association publicly complained.
Ironically, the legislature was more transparent than ever. Before the coronavirus, the legislature had refused to allow universal broadcasting of committee hearings. Now their meetings are ubiquitous, a change that will likely be permanent.
There is the final irony that while lawmakers were busy spending about $750 million in federal funds, they were facing an FY 2021 budget shortfall of $250-300 million. It was like leaving your house to go on a spending spree while the garage is on fire.
Again, it’s a terrible process but probably better than the alternative since the CARES Act funds have to be spent or returned; they can’t be used to fix the burning garage.
The legislature has set aside $140 million in the unlikely event that Congress changes its mind to allow federal money to be used to backfill state budgets. In reality, they will almost certainly have to figure out how to balance the budget through a combination of reserves, cuts and tax increases.
They’ve already made a few decisions that will make that process more difficult. The General Assembly passed a partial budget that fully funds state government for one-quarter of the year. So when they come back, they’ll only have three-quarter of the year to either raise the revenue or cut spending to cover the full-year shortfall.
They’ve also taken some big items off the table. The legislature fully funded the education system for the entire year. The education fund is expected to run a deficit of $100 million, so that money will have to come from somewhere other than property taxes. Lawmakers decided they did not want to see any reductions in any education spending, period.
It’s noteworthy that there has been virtually no pushback on these budget decisions from Republicans or the Scott administration, and little mention by the press.
In an indication of how sacred the cows are, some lawmakers got emotional just talking about whether to fund state employee pay raises for next year. They funded a part of the year, putting off until later a decision about the remainder.
A handful of senators even suggested that the state issue bonds to fill the operating fund shortfall. That idea seems to have been shot down, but it gives an indication of how far many will go to avoid making budget cuts.
Vermont is the only state with no balanced budget requirement. The legislature has always avoided the temptation to accrue deficits to avoid paying the state’s annual bills, but that discipline could be tested when they return in August.
COVID-19 RELATED LEGISLATION
CARES Act Coronavirus Relief Fund Deployment
The Vermont legislature appropriated about $1 billion of the $1.25 billion CRF dollars allocated to the state under CARES prior to adjourning on June 26. When accounting for the funds already utilized by the Scott administration and the Joint Fiscal Committee, it reserves approximately $140 million for when the legislature reconvenes in August. The spending can be tracked on the Joint Fiscal Office web page.
The Joint Fiscal Committee approved the Conditions for the Acceptance of the Coronavirus Relief Fund Grant into three levels of expenditures. This includes:
- Up to $75 million is available to the Governor to spend at his discretion to cover the allocations already made and future imminent allocations needed to respond to COVID-19.
- Up to $150 million is available to spend at the approval of the Joint Fiscal Committee to cover time-sensitive, critical needs.
- The remaining $1.2 billion is subject to appropriations by the legislature.
Of the $1.2 billion available to the legislature in CRF dollars, most of it was appropriated across a few bills:
- 115/S.350 – $93 million for economic and housing stabilization. The bill was signed on June 19 and the grant program was created to help businesses.
- 966 – $213.2 million for funding and assistance for broadband connectivity, housing, and economic relief.
- 965 – $326.8 million directed to healthcare and human services. The largest portion of this bill is $275 million in grants for the healthcare providers eligible for the funding including hospitals, independent doctors, dentists, mental health providers, rural health clinics, federally qualified health centers, medical labs and pharmacies. The rest of this tranche provides funds for childcare, food assistance, and other services.
- 961 – $116 million in the first quarter fiscal year 2021 for the support of State government, federal CRF appropriations, and pay act appropriations. (The total appropriation in the bill is $3.3 billion and includes fully funding the Education Fund and higher support for the agencies of Natural Resources and Transportation since many of its core activities happen in the summer.)
- 351 – $35.7 million for agricultural and forestry provisions.
Budget Adjustment Act (Act 88/H.760)
Before the COVID-19 impact became apparent to the legislature, lawmakers passed the FY 2020 Budget Adjustment Act, and it was signed into law by Gov. Phil Scott on March 4, 2020. The BAA was supported with an additional $18 million in revenue from the July 2019 revenue update.
- Transferred funds to address deficits in the Workers’ Compensation and State Liability Insurance funds;
- Provided funding to the Department of Corrections for out-of-state beds, medication assisted treatment, and Hepatitis C treatment;
- Addressed the gap in the Vermont Technical College National Guard tuition program;
- Provided for a rate increase to the Brattleboro Retreat;
- Funded increased costs in Judiciary; and
- Provided funds to the Department of Disabilities, Aging and Independent Living for increased costs of serving higher acute needs patients at nursing homes.
Budget Adjustment Act 2 (Act 109/H.953)
The FY 2020 supplemental Budget Adjustment Act (BAA2) reflects three major impacts from the COVID-19 crisis: an erosion of $52 million in projected revenue; a $143 million in deferred tax collection pushed out to July; and an appropriation from the Federal Coronavirus Relief Fund for expenses incurred in FY 2020. In order to balance the lost revenue, the BAA2 used $38 million in enhanced Federal Medical Assistance Percentages funds (the percentage rates used to determine the matching funds rate allocated annually to certain medical and social service programs), $8.7 million in Medicaid claims savings, and additional state savings and bond investment earnings. It also provided CRF money to the Vermont State Colleges, the University of Vermont, the Defender General, the State’s Attorneys, the Emergency Medical Service providers, and the Agency of Natural Resources.
First Quarter Budget (H.961)
The first quarter budget bill passed by the legislature and signed into law by the Governor looks different than a “typical” budget bill and relies on language rather than the usual money sections to describe the appropriations. The $3.3 billion bill relies on $116 million of Coronavirus Relief Funds to “keep the lights on” in state government until the legislature re-convenes in late August to complete a budget for the remainder of the year after revenue forecasts are updated.
The bill funds state government at 25 percent of the adjusted FY2020 budget across all of state government, with some notable exceptions. The agencies of Natural Resources and Transportation are funded at higher levels because many of their core activities happen in the summer. The Education Fund was filled at 100 percent after the legislature made a commitment to hold property tax payers harmless for the COVID-related revenue losses to sales and use tax and other dedicated funding streams. The bill focuses on building fiscal capacity wherever possible, through a non-essential position hiring freeze, identifying and carrying forward balances from FY 2020 to FY 2021, and allowing for a greater degree of interagency transfer. It also allows the Emergency Board to authorize special emergency appropriations during the time when the legislature is not in session. Reversions are set for December 20 so that if Coronavirus Relief Funds are not spent by then, the money can be reallocated before the final end-date of December 30.
Health Care and Human Services-Related Coronavirus Relief Funds (H.965)
The legislature approved and the Governor has signed into law a $329 million health and human services Coronavirus Relief Fund appropriations bill to cover necessary health care and human services-related expenses incurred due to, or as a result of, the COVID-19 pandemic.
The Senate eliminated much of the prescriptive language proposed by the House and provided more flexibility to the Agency of Human Services to respond to changing federal guidance and data from providers.
The bill includes $275 million for a Healthcare Provider Stabilization Fund which AHS will use to provide grants to health care service providers. Factors considered in determining awards include:
- The impact of the grant amount on the applicant’s sustainability;
- The degree to which the grant will provide or support services that would otherwise likely become limited or unavailable as a result of business disruptions caused by the pandemic; and
- The degree to which the applicant would use the grant funds to support existing patient financial assistance programs or would enable the applicant to continue providing services to Medicaid beneficiaries, or both.
AHS will release guidelines for the grant application process in the coming weeks.
Essential Employees Hazard Grant Program (H.965/S.346)
The health and human services Coronavirus Relief Fund bill incorporates an amended version of S.346, and appropriates $28 million for the Front-Line Employees Hazard Pay Grant Program. The program will award grants to certain public safety, public health, health care, and human services employers whose employees were engaged in activities substantially dedicated to mitigating or responding to the COVID-19 public health emergency during the initial months of the pandemic.
The optional program allows for employers to apply for a lump sum grant to provide hazard pay to eligible employees working in hospitals, nursing homes, home health agencies, and other health-related organizations that performed a job that had an elevated risk of exposure to COVID-19 between March 13, 2020 and May 15, 2020. The number of hours worked by an eligible employee does not include any hours of remote or telework performed by the eligible employee, including providing health care or other services by telephone, videoconference, or telehealth. The grant will provide $2000 to an employee who worked at least 216 hours in a job with an elevated risk of exposure to COVID-19 during the eligible period, and $1200 for an employee who worked at least 68 hours and less than 216 hours in a job with an elevated risk. The payments will not be considered for calculation of state benefits, but are subject to income tax.
Capital Construction and State Bonding (H.955)
The House and Senate came to agreement on H.955, the capital and state bonding bill. The bill includes the $1.5 million to finish the construction of the new 12 Level I beds at the Brattleboro Retreat to serve the most high acuity mental health patients. It also includes language for the Brattleboro Retreat to provide detailed financial reporting to the Agency of Human Services.
The bill also extends to June 2021 the requirement for the Department of Disabilities, Aging and Independent Living to amend their rules pertaining to therapeutic community residences to allow secure residential recovery facilities to utilize emergency involuntary procedures. These rules will be identical to the rules adopted by the Department of Mental Health that govern the use of emergency involuntary procedures in psychiatric inpatient units.
Gov. Scott signed H.955 on July 6, 2020.
Broadband Connectivity, Housing, and Economic Relief (H.966)
The Governor has signed into law a $213.2 million comprehensive broadband connectivity, economic recovery and housing bill. The law appropriates $17.4 million for a new COVID-Response Accelerated Broadband Connectivity Program. The Department of Public Service has broad latitude to allocate the money within four separate categories:
- Line Extensions. Up to $2 million is allocated to subsidize customer line extensions in areas without 25/3 Mbps service. Health care providers may apply for assistance on behalf of a patient residing in Vermont for a line extension so that the patient can receive telehealth or telemedicine services from the health care provider.
- Get Vermonters Connected Now Initiative. Funding is directed to subsidize fiber-to-the-home installations, with prioritization for underground conduit that will provide broadband access to low-income households.
- Temporary Broadband Lifeline Program. The Department is authorized to subsidize monthly subscriptions for low-income Vermonters until December 31, 2020.
- Wi-Fi Hotspots. Up to $50,000 may be used to deploy Wi-Fi hotspots.
The law also funds three other telecommunications-related categories:
- $800,000 for planning by Communications Union Districts, which are newly created, largely volunteer organizations that promote local and regional broadband expansion.
- $500,000 to the Department of Public Service to hire a consultant to draft a telecommunications plan.
- $800,000 to the Vermont Program for Quality in Health Care, Inc. to fund telehealth services.
Finally, it appropriates $8 million to utility ratepayers to cover the account arrearages of ratepayers who are likely to face disconnection when the moratorium ends.
Workers Compensation (S.342)
The legislature approved a bill that creates a presumption of workers’ compensation coverage for front-line workers who become infected with COVID-19. Front-line workers include emergency medical personnel, workers in health care facilities and long term care facilities and home health care workers or personal care attendants. If a front-line worker becomes infected with COVID-19, an employer can overcome the claim by showing that it is more likely than not that the employee contracted the virus outside of the workplace.
For non-frontline workers, death or disability from COVID-19 is presumed to be compensable if the employee received a positive test not more than 14 days from when they were in close contact with an infected person in the workplace or if they have performed services where someone was diagnosed within 14 days of exposure. An employer can rebut the claim by showing they followed safety guidelines.
The legislature rejected the strong opposition from insurers, business trade associations and the health care industry, who argued that it will impose new costs when many are struggling to recover and continue operating and employing Vermonters. State and federal laws and regulations already address the healthcare costs and wage replacement needs of those who become ill with COVID-19 and cannot work.
The miscellaneous health care bill, H.960, extends several provisions in Act 91 of 2020 beyond the State of Emergency.
The bill extends the following provisions to March 31, 2021:
- Grants employee protections for those individuals who are not licensed health care professionals from the risks associated with COVID-19, including protective equipment;
- Allows the Secretary of Human Services to waive or permit variances from specified rules and standards governing providers of health care services;
- Permits a pharmacist to, with the informed consent of the patient, substitute an available drug or insulin product for an unavailable one;
- Allows a health care professional authorized to prescribe buprenorphine for treatment of substance use disorder to authorize renewal of a patient’s existing buprenorphine prescription without requiring an in-person visit;
- Deems out-of- state licensed health care professionals licensed in Vermont;
- Waives certain telehealth requirements during the state of emergency;
- Allows AHS to reimburse Medicaid-funded long-term care facilities and other programs providing 24-hour per day services for their bed hold days;
- Allows recently retired health care professionals to practice under certain requirements;
- Allows the Director of Professional Regulation the power to act on behalf of a regulatory body attached to the Office of Professional Regulation if necessary;
- Grants the Director of Professional Regulation and the Commissioner of Health power to give orders governing regulated professional activities and practices as may be necessary to protect the public health, safety, and welfare;
- Waives telemedicine and store-and-forward requirements;
- Gives OPR the power to issue a temporary license to an individual who is a graduate of an approved education program if the required licensing examination is not reasonably available; and
- Allows the Board of Medical Practice or its Executive Director to issue a temporary license to an individual who is licensed to practice as a health care provider in another jurisdiction.
The bill extends the following provisions to June 30, 2021:
- Permits early refills and extensions of prescription maintenance medications.
- Permits Department of Financial Regulation emergency rules, rulemaking and extensions.
Gov. Scott signed H.960 on July 6, 2020.
Advance Directives (Act 107/H.950)
Gov. Phil Scott signed into law Act 107, a bill that allows for the remote witnessing of advance directives during the COVID-19 pandemic. Under the law, any advance directives created between Feb. 15, 2020 and the effective date of the bill are deemed valid until June 30, 2021 unless it is amended, revoked, or suspended by the principal.
Before Act 107 an individual or principal was required to sign and date the advance directive in the presence of two or more witnesses in order to execute an advance directive. The Vermont Ethics Network and Vermont Legal Aid raised concerns that the new social distancing orders have made it unsafe to fulfill that witness requirement, especially for at-risk individuals. The legislation requires that the principal and the remote witness to know each other, the remote witness was informed about their role as a witness to the execution of the advance directive, and the advance directive must include the contact information for the remote witness. Finally, the witness must attest that the principal seemed to understand the nature of the document and was free from duress or undue influence at the time the advance directive was signed.
Emergency medical services and public safety response to COVID-19 (Act 100/S.182)
The Governor has signed into law a bill related to emergency medical services and public safety in response to COVID-19.
- Eliminates the need for EMS credentialing;
- Extends licensing from one to three years;
- Requires health insurers to reimburse ambulance services directly; and
- Allows for sheriffs to access emergency needs fund for COVID-19 needs.
Professional Regulation (S.220)
The Senate passed S.220 in mid-June, after approving an amendment offered by the Senate Government Operations Committee that allows pharmacists to administer tests for COVID-19 and related SARS associated viruses. The amendment language states that pursuant to state protocol, pharmacists may prescribe, administer or order “tests for SARS-CoV and SARS-associated viruses for asymptomatic individuals and antibodies consistent with recommendations for testing of individuals made by the state Serology Working Group.”
Previous amendments to the bill by the Senate Health and Welfare Committee would allow pharmacists to prescribe, order, or administer in an influenza vaccine or vaccine to mitigate a significant public health risk, or, another vaccine pursuant to a collaborative practice agreement. In the event of a significant public health risk, the bill also allows pharmacists to administer an appropriate vaccine to mitigate the effects on public health after finding that existing channels for vaccine administration are insufficient to meet the public health need. The bill also includes changes to pharmacy scope of practice, some of which were adopted with Act 91 of 2020, but will be repealed at the end of the Governor’s state of emergency if no action is taken.
NON COVID-19 RELATED LEGISLATION
Regulation of Long-Term Care Facilities (H.635)
The Governor has signed into law a bill that clarifies and provides parameters for long-term care facilities. The bill includes a definition for insolvent that is in line with the definition provided in the Uniform Commercial Code. It also adds mental harm in addition to physical harm as an enforcement action. It also includes a provision that any facility owner being charged would not be able to benefit from the remedial actions of the temporary receiver.
Interstate Nurse Licensure Compact (S.125)
At the end of May, the Senate advanced S.125, a bill that allows Vermont to join the Interstate Nurse Licensure Compact. The compact will enable a licensed practical nurse or a registered nurse to obtain a compact license in a compact state, allowing them to practice without obtaining an additional license to practice in that other state. Thirty four states are signatories to the Compact and several other states are actively pursuing it. Proponents of the bill say that joining the Compact will help ameliorate Vermont’s nursing workforce shortages as the Compact would be an additional means of making it easier and more appealing for nurses to come to Vermont. The bill was referred to the House Health Care Committee, who will likely take it up when the legislature resumes business in late August.
Licensure of Physicians and Podiatrists (H.438)
A bill that clarifies board procedures around disciplinary investigations and hospital disciplinary reporting has been signed into law by the Governor. It clarifies that providers being investigated by the board of medical practice have a right to view their investigation file and have the opportunity to depose witnesses. The legislation also creates a framework to ensure hospital reporting of a disciplinary action even if the provider has voluntarily left the hospital.
Physician Assistant Licensure (S.128)
A bill that removes the requirement of a delegation agreement between supervisory physicians and PA’s, and substitutes it with a practice agreement requirement has been signed into law by the Governor. H.438 requires that the practice agreement include a plan to have a physician available for consultation at all times when the physician assistant is practicing medicine. The changes bring the law into alignment with current practice, and does not change the scope of practice of PA’s.
Increasing Supply of Nurses and Primary Care Providers in Vermont (H.607)
The bill includes a requirement for the Director of Health Care Reform to maintain a current health care workforce development strategic plan, with the help of an advisory group. The plan must continue efforts to ensure that Vermont has the health care workforce necessary to provide care to all Vermont residents. A draft of the plan must be submitted for review and approval to the Green Mountain Care Board by December 1, 2020, and after approval, the plan will be provided to the legislature.
The bill also requires the Vermont Department of Health, in collaboration with the Office of Primary Care and the Area Health Education Centers at the University of Vermont College of Medicine, to establish a rural primary care physician scholarship program. This scholarship would provide medical school tuition for up to five third-year and up to five fourth-year medical students who commit to practicing primary care in a rural, health professional shortage or medically underserved area of Vermont. Recipients must incur two-years of full-time service or four-years of half-time service for each academic year of tuition covered by the scholarship. The bill also appropriates money to VDH for additional scholarships for nursing students through the Health Care Educational Loan Repayment Fund and sets up priorities for how the funds should be administered. The House Appropriations Committee pulled $1 million from the Substance Use Disorder fund to match Global Commitment dollars to fund the scholarships.
Minimum Wage (Act 86/S.23)
Lawmakers successfully voted to override Gov. Phil Scott’s veto of a bill that will raise the minimum wage over the next two years. On Jan. 1, 2021 the minimum wage will increase to $11.75 and on Jan. 1, 2022 it will increase to $12.55. On each subsequent Jan. 1, barring further legislation increasing the minimum wage, the rate will to continue to increase.
The law also requires the Office of Legislative Council and the Joint Fiscal Office to submit two reports on or before January 15, 2021 regarding:
- The potential effects of altering or eliminating the basic wage rate for tipped employees in Vermont and eliminating the subminimum wage for secondary school students during the school year; and
- The overlapping legal requirements of Vermont’s wage and hour laws, the federal Fair Labor Standards Act, and other federal employment laws with respect to agricultural employees and employers; and summarize how other states’ wage and hour laws address agricultural employees and employer.
Paid Family Leave (H.107)
The paid family leave bill moved quickly in January, but was vetoed by the governor on Jan. 31. The Scott administration had proposed a compromise that would enable businesses to voluntarily participate in an expanded leave program.
In an ironic twist, the federal government passed the Families First Coronavirus Response Act in response to the pandemic which expands access to paid leave from work between April 1 and December 31, 2020. It is likely the legislature will once again have a paid family leave bill on its agenda in January.
Uniform Licensing Standards (S.233)
The Senate passed a bill that imposes various reforms to all licensing entities in the state including the Office of Professional Regulation, the Agency of Education, the Department of Public Safety (plumbers and electricians) and the Board of Medical Practice. The bill attempts to apply uniform standards across the board. Foreign credential verification, endorsements from other states, military credential verification, and continuing education are some of the key approaches proposed in the bill. The bill is supported by OPR and the Scott administration. OPR alone licenses about 75,000 professionals a year. Streamlining the criteria would make it easier for people to work in the state.
The bill was referred to the House Government Operations Committee.
Older Vermonters Act (H.611)
The House has passed H.611, a bill that aims to help aging Vermonters live independently and describes the principals for a comprehensive and coordinated system of services and supports for older Vermonters.
The bill requires annual reports to the legislature by the Department of Disabilities, Aging and Independent Living regarding the Adult Protective Services Program. It establishes a Strategic Action Plan on Aging to be developed by the Secretary of Administration, in collaboration with DAIL and the Vermont Department of Health. The Strategic Plan would be implemented across state government, local government, the private sector, and philanthropies. It will provide strategies and cultivate partnerships for implementation across sectors to promote aging with health, choice, and dignity in order to establish and maintain an age-friendly state for all Vermonters.
The bill also requires DAIL and the Department of Vermont Health Access to develop criteria and a process for calculating an annual inflation factor for potential application to the Medicaid rates for providers of home- and community-based services in future fiscal years. The departments will be required to submit a report on the criteria and process by April 15, 2021.
The bill is now in the Senate Health and Welfare Committee.
Brattleboro Retreat Oversight (H.960)
Provisions adopted in H.960 will require increased regulatory oversight for the Brattleboro Retreat. The legislation will require the Brattleboro Retreat to fall under the Green Mountain Care Board hospital budget review process gradually, requiring a full review by FY 2024. In developing the process for full review of the budget, the GMCB will collaborate with the Brattleboro Retreat and the Agency of Human Services to prevent duplication of efforts and reporting requirements. The GMCB and AHS will jointly determine which documents submitted by the Brattleboro Retreat are appropriate to share with the GMCB.
As a condition of further state funding, the legislation requires quality oversight measures be implemented by the Brattleboro Retreat under the direction of the Department of Mental Health. It requires the Department of Mental Health and the Brattleboro Retreat to meet jointly each month with the mental health patient representative (an independent, peer-run organization contracted with DMH) and the mental health care ombudsman to review patient experiences of care, to discuss quality issues, and to review other patient care and safety topics.
Finally, as part of the Sustainability Report between AHS and the Brattleboro Retreat, they must submit an interim and final report to the Joint Fiscal Committee and the legislative health committees describing the steps that the Brattleboro Retreat is taking to improve communication and relations with its employees.
Mental Health Integration Council (H.960)
A provision in the miscellaneous health care bill creates the Mental Health Integration Council for the purpose of ensuring that all sectors of the health care system actively participate in the state’s principle for mental health integration as envisioned in the Department of Mental Health’s 2020 report “Vision 2030: A 10-year plan for an Integrated and Holistic System of Care.” The council will address the integration of mental health in the health care system and will identify obstacles for full integration. The legislation requires the Council to submit a final report on Jan. 15, 2023, on its findings and any recommendations for legislative action, including a recommendation as to whether the term of the Council should be extended.
Prior Authorization Requirements (H.960)
The miscellaneous health care bill includes several provisions related to health insurance prior authorization requirements.
- Eliminates prior authorization requirements for those procedures and tests for which the requirement is no longer justified or for which requests are routinely approved. It also requires the health plans to attest to the Department of Financial Regulation and the Green Mountain Care Board annually on or before Sept. 15 that it has completed the review and appropriate elimination of prior authorizations;
- Requires the Department of Financial Regulation, in consultation with health insurers and health care provider associations, to report on opportunities to increase the use of real-time decision support tools embedded in electronic health records to complete prior authorization requests for imaging and pharmacy services, including options that minimize cost for both health care providers and health insurers;
- Compels the GMCB, in consultation with DVHA and stakeholders, to evaluate opportunities for and obstacles to aligning and reducing prior authorization requirements under the All-Payer Accountable Care Organization Model as an incentive to increase scale;
- Requires major medical health insurers to implement a pilot program by January 2022 that automatically exempts from or streamlines certain prior authorization requirements for a subset of participating health care providers; and
- Directs DVHA to report on clinical prior authorization requirements in the Vermont Medicaid program to include denial rates, the potential harm in the absence of a prior authorization requirement, and based on the information received to consider waiving prior authorizations and exempting prior authorization requests that are routinely granted.
Climate Change Response (S.185)
The Senate advanced S.185, a bill that adopts a climate change response plan and requires regional planning commission involvement in identifying health care-related needs. It directs the Vermont Department of Health to develop a climate change response plan for the state and to develop a communication plan that establishes responses to climate change related health risks with the regional planning commissions. It directs regional planning commissions to identify health care related needs in each region. Finally, the bill requires hospitals, in consultation with regional planning commissions, to have a protocol for meaningful public participation in its strategic planning process for identifying and addressing health care needs that the hospital provides or could provide in its service area. The bill was referred to the House Human Services Committee where it may be taken up in August.
Hospital Price Transparency (H.795)
A bill that proposes to require hospitals to report to the Green Mountain Care Board its actual charges for health care services delivered to patients without health insurance or other health coverage passed the House, but stalled in the Senate.
The bill as passed by the House requires the GMCB to take the information reported by hospitals along with Vermont Health Care Uniform Reporting and Evaluation System claims data and make public the average charge for each health care service at each Vermont hospital for insured patients and for private-pay patients. It also directs the GMCB to develop an interactive price transparency dashboard in order for the public to have easy access to the required information. The dashboard must be available for public use as soon as it is operational, but no later than Feb. 15, 2022.
Limiting Out-of-Pocket Expenses for Prescription Insulin Drugs (S.296)
A bill that limits a beneficiary’s total out-of-pocket expenses for insulin medications to not more than $100 per 30-day supply, regardless of the amount or type of insulin needed passed the Senate, but was not taken up by the House Health Care committee. The bill will likely be taken up in August.
Maternal Mortality Review Panel (H.572)
The legislature approved a bill related to the Maternal Mortality Review Panel. The panel will conduct comprehensive multi-disciplinary review of maternal deaths in Vermont for the purpose of identifying factors associated with those deaths and making recommendations to system changes to improve health care services in Vermont. The final version of the bill exempts Panel meetings from the Open Meeting Law. Records produced or acquired by the Panel are currently exempt from public inspection and copying under the Public Records Act.
AHS Reorganization Study (S.297)
The Senate Health and Welfare and Government Operations committees advanced S.297, a bill that creates a working group to develop proposals for reorganizing the Agency of Human Services and will take into consideration options for reorganizing, restructuring, or reconfiguring the AHS to best serve Vermonters. The workgroup will report its findings to the General Assembly by Jan. 15, 2021. The bill remains on the Senate Calendar for action.
Stem Cell Products (S.252)
The Senate Health and Welfare advanced S.252, a bill that proposes to require health care providers who administer stem cell products that are not approved by the U.S. Food and Drug Administration to provide notice of this fact to their patients and in their advertisements, and to obtain specific informed consent prior to performing an unapproved therapy. The bill remains on the Senate Calendar for action.
Expanding Access to Contraceptives (H.663)
A bill that would expand access to contraceptives and require health insurance to cover at least one drug without cost-sharing passed the House, but stalled in the Senate. The Senate Health and Welfare Committee discussed an amendment to include a new Advisory Council on Wellness and Comprehensive Health and a provision to ensure that females students attending public or approved independent schools have access to menstrual hygiene products at no cost. The committee will likely take this up in August.
Buprenorphine Decriminalization (H.162)
A bill that proposes to remove buprenorphrine from the misdemeanor crime of possession of a narcotic was ‘ordered to lie’ by the Chair of the House Judiciary Committee. Buprenorphrine is an opioid used to treat opioid use disorder, acute pain, and chronic pain. It is unclear if this bill will advance in August.
Provider Wellness Commission (S.243)
A bill that would establish an Emergency Service Provider Wellness Commission passed the Senate, but was not taken up in the House. The large commission, established within the Agency of Human Services, would confidentially report health and wellness data on emergency service providers and recommend policies, training, legislation and services that increase support for the providers to improve health outcomes, job performance and personal well-being.
A provision that would expand the Emergency Services Fund to pay all emergency service providers licensure and certification costs was removed from the bill, but the legislature appropriated $3 million in Coronavirus Relief Funds in the First Quarter Budget (amending a BAA2 appropriation) for emergency medical and ambulance services costs and financial assistance during the pandemic. Of those funds, $900,000 can be used for the necessary training and support of Emergency Medical Technicians.
Flavored Tobacco Products and E-Cigarettes (S.288)
The Senate Health and Welfare Committee unanimously approved legislation that would ban all flavored tobacco products, including menthol cigarettes and flavored e-cigarettes. Many senators were uncomfortable, however, with the ban on menthol cigarettes, so the bill has stalled in the Senate Finance Committee. Progress on the bill was also delayed due the legislature’s reluctance to take up non-COVID measures.
The House Ways and Means Committee gave preliminary approval in February to a bill that would have imposed a sales tax on vendor-hosted prewritten computer software (the so-called “cloud tax”) effective June 1, 2020. The bill also called for a study committee to deliver a report by Jan. 15, 2021. The legislature left the Statehouse shortly after the bill’s approval and it was not taken up by the committee when it began meeting remotely. The Senate has shown little interest in the tax. However, with the legislature facing a large budget shortfall when it reconvenes in August, the proposal will likely get renewed attention.
Medical Monitoring (S.37)
In June 2019, Gov. Phil Scott vetoed legislation that would have established an explicit right for Vermonters to sue companies for medical monitoring costs resulting from exposure to toxic chemicals. Scott said that concerns that companies would not choose Vermont as a place of business, due to potential legal exposure, outweighed the health benefits of the bill. In December, U.S. District Court Judge Geoffrey Crawford granted medical monitoring to a class of plaintiffs in a case in southern Vermont alleging PFOA emissions polluted the town’s drinking water. This decision effectively created medical monitoring law in the State of Vermont.
The bill had passed the House easily with a veto-proof majority, but passed the Senate 19-11 – one vote shy of the two-thirds necessary to override. As the 2020 legislative session began, S.37 appeared at the top of the Senate’s daily unfinished business calendar, awaiting action. And there it stayed until the legislature recessed last week, in this case, awaiting one senator to change his or her mind.
Senate President Pro Tem Tim Ashe, D/P-Burlington, has indicated that should one more “yes” vote materialize, he will give plenty of warning for an override vote. That prospect seems unlikely by the end of this legislative biennium, though he may get his wish when the next biennium begins in January. Sen. John Rodgers, D-Essex-Orleans, a strong “no” on override, made his reelection to a fifth term more difficult by missing the filing deadline to appear on the August 11 Democratic primary ballot. Rodgers plans to organize a write-in campaign for the primary, and if that fails, to run as an Independent in the Fall elections.
Even if Rodgers’ reelection efforts fail, the medical monitoring language would need to be reintroduced as a new bill, and the make-up of a new Senate would need to fall along similar lines. Given the razor-thin margin on this bill, it is almost certain to resurface next year.
Regulation of Cannabis (S.54)
Legislation to move cannabis to a taxed and regulated market passed both the House and the Senate and remains in a conference committee. It is expected to be taken up when the legislature returns in August.
The bill establishes a five-member cannabis control board and taxes the products at a 20 percent tax rate for cannabis products comprised of a 14 percent excise tax and a six percent sales tax. The revenues from the regulated market are expected to be about $13 million over the first fours years of a legalized market; about $8.9 million of that would go to the state’s general fund and about $3.8 million to the education fund. Revenues from the sales will be directed to education and prevention while fees will cover the cost of regulation. The bill also sets up labeling and testing standards.
The Governor has stated that he cannot support a bill without a provision that allows roadside saliva testing without a warrant.