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Final VAHHS Legislative Report
2004 Session
The
Vermont General Assembly adjourned on
VAHHS Issues
Bills of interest to VAHHS that were enacted into
law (or are awaiting the Governor’s signature) in 2004:
Medicaid Budget (H.768)
The FY05 budget bill appropriates
$581 million to Medicaid, including all state and federal matching funds.
The budget contains a $1.5 million increase (total state and federal
funds) in FY05 for hospital inpatient rates. Physicians received an increase
of $250,000 general fund ($632,000 net state and federal matching funds), specifically
recognizing that increasing malpractice insurance premium costs are jeopardizing
access to physician services for Medicaid beneficiaries.
Dentists received a one percent increase in Medicaid reimbursement rates
($60,000 general fund, plus $90,000 federal matching funds). Mental health advocates received a 2.75 percent increase
in funding for community mental health providers ($2.5 million net state and
federal matching funds). The community mental health budget as passed also includes
$535,469 to replace federal funds lost due to a decline in
With regard to nursing homes,
funds for rebasing and inflation are included in the FY05 budget (which runs
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/calendar/sc040520a.htm
Fee Bill –Hospital Licensing Fees/ Hospital & Nursing
Home Provider Tax (H.772)
H.772, the miscellaneous
fee bill, revises the hospital licensing fees as well as hospital and nursing
home provider taxes as follows:
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/bills/passed/H-772.HTM
Prescription Drugs (H.768)
The FY05 budget bill contains
nearly all of the provisions of the Senate-passed prescription drug bill, S.288,
with the exception of price controls and most regulation of pharmacy benefit
managers. Some provisions in the
law that passed are as follows: requires pharmacies to disclose the retail drug
prices to consumers; requires that when pharmaceutical marketers disclose gifts
to health care providers or facilities they disclose the name of the recipient
and requires that the disclosures be made to the Attorney General’s Office as
opposed to the pharmacy board; requires
that pharmaceutical marketers disclose to a physician the average wholesale
price of the drug being marketed; includes coverage for public assistance programs
for over-the-counter drugs on the state's drug list; permits retail pharmacies
to offer the same quantity supply of prescription drugs as mail order pharmacies;
requires the state to set up a website describing Canadian drug purchasing;
requires health insurance plans to cover drugs purchased legally in Canada;
and expands the Healthy Vermonters prescription drug program to increase access
to lower priced drugs to non-Medicaid eligible Vermonters only if a federal
waiver is secured by the state, among other things. (H.768, Sec.128a – 128o.)
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/calendar/sc040520a.htm
Mental Health Studies/Licensing Vermont State Hospital/Transportation
(H.768)
The FY05 budget bill establishes
three mental health study groups and a mental health legislative oversight committee
(see separate summary of health care related studies) and authorizes the Commissioner
of Health to develop interim licensing standards for the Vermont State Hospital
until the hospital achieves recertification by CMS or January 31, 2005, whichever
occurs first. (Sec. 141d).
The bill also includes a provision that sets standards with respect to
transporting or moving a patient under the care and custody of the Commissioner
of the Department of Developmental and Mental Health Services within a designated
hospital or the Vermont State Hospital. The
commissioner may designate by rule the professionals that may transport patients
under the commissioner’s care and custody. (Sec. 141a-e.) http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/calendar/sc040520a.htm
Workers’ Compensation (H.632)
This
bill requires the Commissioner of the Department of Labor and Industry, with
assistance from BISHCA, to establish a medical fee schedule and other “cost
containment mechanisms,” with a goal
of four percent cost reductions in medical services. The services included in this requirement are "medical,
surgical, hospital, and nursing services and supplies, prescription drugs, and
durable medical equipment." An expedited
rulemaking process to implement the fee schedule is called for in the statute.
For
hospitals in the role of employers, this
bill will have only marginal impact on the cost of workers’ compensation coverage.
The bill tinkers with the program’s administrative mechanisms (for example,
redefining the way a worker’s wages are computed) and orders the Department
of Labor and Industry and BISHCA to study the issue again and report back to
the next session of the General Assembly. Specific
provisions of H.632 include:
-
A new penalty on insurers for late payment
of claims.
-
Reduction of the statute of limitations for
initiating a claim from six to three years.
-
Vocational Rehabilitation services changed
from mandatory to voluntary at the 90 day point of the injury, with screening
substituted for the mandatory services.
-
Benefits for on premise recreational injuries
will be harder to get.
-
“Reasonably necessary” home and vehicle modification
costs are added to benefits.
-
A requirement that workplaces with poor safety
records create workplace safety committees.
-
An increase in the criminal penalties for
workers’ compensation fraud.
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/bills/passed/H-632.HTM
Whistleblower (S.154)
S.154,
the whistleblower bill, creates a new cause of action for a hospital or nursing
home worker to sue his or her employer in the event the employee is retaliated
against for reporting any activity that
the employee reasonably believes is a violation of any law or that the employee
reasonably believes constitutes improper quality of patient care, among other things.
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/bills/passed/S-154.HTM
Licensing Respiratory Therapists (H.609)
This bill requires that
the approximately 150 respiratory therapists currently practicing in Vermont
and any new respiratory therapists entering the state obtain a license from
the Office of Professional Regulation within the Secretary of State’s Office. http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/bills/passed/H-609.HTM
Pain Management/Advance Directives (H.752)
This bill amends sections
of Vermont’s law related to advance directives, including living wills and durable
powers of attorney for health care. Significantly
for hospitals and nursing homes, the bill requires that every health care provider develop systems to ensure that a
patient’s advance directive is promptly available when the patient is to receive
services from the provider, including that the existence of an advance directive
is prominently noted on the file jacket or folder, if any, and that a note is
entered into the provider’s electronic database, if any. The bill also amends the Nursing Home Bill of
Rights to require that nursing homes provide patients with professional assessment of pain and its management.
The bill contains a provision that would require a study of whether or
not medical marijuana should be included as part of the curriculum in medical
and nursing schools in Vermont. http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/bills/passed/H-752.HTM
Long Term Care 1115 Waiver (H.735)
This bill relates to the
federal Medicaid 1115 waiver application that the Department of Aging and Disabilities
(DAD) submitted to the federal government to enable home and community-based
services to be an entitlement the same way that nursing home care is today.
The bill authorizes the legislative Health Access Oversight Committee
to oversee the 1115 waiver implementation. It
also requires the commissioner of DAD to convene a task force to assist in developing
a protocol to ensure hospital discharges are not delayed by the implementation
of the waiver. The bill also includes
a definition of “home and community based services” and a provision that requires
that all savings realized from the 1115 waiver be retained by the department
and reinvested into providing home and community based services, among other
things. As an aside, there is also a
provision in the FY05 Budget Bill (H.768) that requires that the Department
of Aging and Disabilities to seek approval from the General Assembly or the
Joint Fiscal Office (if the legislature is not in session) before implementing
any new programs or expanding existing programs if the 1115 long term care waiver
is approved. The analysis must consider
the impact of any new programs on nursing homes. (H.768, Sec. 146(d).)
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/bills/passed/H-735.HTM
Long Term Care Insurance/Vermont Partnership for Long Term
Care
(H.737)
This bill brings Vermont
law in line with the National Association of Insurance Commissioners (NAIC)
model law on long term care insurance. This bill also requires the Commissioner of PATH
to establish by rule the “Vermont Partnership for Long Term Care Program” in
order to provide an incentive to Vermonters with assets to purchase long term
care insurance to cover a portion of long term care services rather than rely
on Medicaid. http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/bills/passed/H-737.HTM
Civil Monetary Penalties (H.566)
This bill imposes civil
monetary penalties for provider fraud related to public benefit programs, including
Medicaid, and authorizes the Vermont Attorney General’s Office to bring these
actions in state court. The federal False
Claims Act already provides for federal actions related to provider fraud in
these areas. Lawmakers decided to approve the more limited Senate-passed version
of the bill that covers provider fraud only when it is done with “actual knowledge”
(as opposed to the House-passed bill that also contained a section making unintentional
acts actionable). The final version does not authorize the Attorney
General’s Office to collect attorney’s fees from a defendant. http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/bills/senate/H-566.HTM
Capital Construction Bill (H.767)
The Capital Construction
Bill funds capital projects for state government. The bill contains a number of provisions of
interest to hospitals and nursing homes. The
bill includes a $485,000 appropriation to the Vermont
Economic Development Authority (VEDA) for the North Country Hospital to assist
with the creation of a nine-station hemodialysis center within the hospital
(See Sec. 3(c)). The appropriation requires
that North Country Hospital repay the funds to the state, without interest,
in 20 equal annual payments commencing one year after the funds are received.
The bill also prohibits any portion of this appropriation to be disbursed until
evidence is provided to VEDA that federal, community, or other non-state funds
are available to complete the project and that a CON has been obtained.
The bill also earmarks a total of $550,000 to the Agency of Human Services to
make renovations to the Vermont State Hospital. $150,000 is appropriated to the Department of
Corrections to make modifications to existing space to be used as a secure mental
health and medical unit for women incarcerated in the Dale II facility (See
Sec. 3). Finally, the bill includes language
related to the history and corporate status of the Vermont Veteran’s Home. (See.
Secs. 78-81.) http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/bills/passed/H-767.HTM
Medical Marijuana (S.76)
S.76
allows individuals with certain incurable terminal illnesses to cultivate, possess
and use small quantities of marijuana for relief from debilitating symptoms
of their diseases. The measure would insure that those individuals would not
be prosecuted by the state and local police. However, since the substance is considered illegal
by the federal government, the bill cannot protect those same individuals from
federal prosecution.
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/bills/passed/S-076.HTM
BISHCA Housekeeping Bill
(S.247)
S.247,
a bill that contains miscellaneous housekeeping provisions related to BISHCA,
was enacted into law. The provision of
interest to hospitals is a change to last year’s hospital regulation bill (Act
53) whereby the various CON thresholds for both hospital and non-hospital projects
involving the purchase or lease of a single piece of “durable medical equipment”
will be changed to the purchase or lease to a single piece of “diagnostic and
therapeutic equipment.” This is to clarify
the intent of Act 53 to ensure that these thresholds apply to diagnostic equipment
such as MRIs and not just pieces of durable medical equipment such as wheelchairs.
This provision will apply retroactively to all health care projects on
or after July 1, 2003 (the effective date of the CON statutory revisions in
Act 53).
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/bills/passed/S-247.HTM
Agency of Human Services
Reorganization (H.768)
Sections
of the FY05 Budget Bill formally change the names of various departments within
the Agency of Human Services, effective July 1, 2004, pursuant to the agency
reorganization plan approved earlier this year. (H.768, Sec. 161, 161a-161g).
Medical Reserve Corps (H.768)
The FY05 budget bill contains
a provision that authorizes the Department of Public Safety to execute a memorandum
of understanding (MOU) with the Medical Reserve Corps of Southwestern Vermont.
The MOU shall specify the responsibilities and protections, such as liability
and workers’ compensation, offered to members of the Medical Reserve Corps under
current Vermont law while performing emergency duties at the direction of the
Department of Public Safety. Similar
MOUs may be executed in other areas of the state in the future. (H.768, Sec.
87a.)
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/calendar/sc040520a.htm
Optometry (S.54)
S.54,
a bill that revises the scope of practice of optometry, was enacted into law.
http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2004/acts/ACT108.HTM
Bills of interest to VAHHS that are dead include:
Health
Insurance Market Reform (H.759)
Abuse
of Vulnerable Adults (S.17)
Phosphorus
Ban (S.284)
Naturopathic Physicians
(S.184)
Opiate
treatment (S.279) (Note: The existing
law requiring methadone clinics to be based only in a hospital sunsets this
year so the Department of Health will be able to move forward with its plan
for a mobile treatment unit, among other things, without the passage of this
bill.)
Political
Overview
With final adjournment
of the Vermont General Assembly on the evening of May 20, 2004, public officials
who must get voter approval next November to keep their jobs will soon be turning
to the business of electoral politics. It is the broad messages that will count for
the next several months, in sharp contrast to the attention to detail that is
required during a legislative session. Vermont’s
career civil servants will now be entrusted with implementing new laws and keeping
the day-to-day functions of state government on an even keel while the politicians
spend much of their time chasing votes.
All statewide offices
and all 180 seats in the General Assembly will be up for grabs on November 2,
2004. Health care (cost and access), job creation, and deterioration of the
state’s roads and bridges will be the major issues addressed by the candidates.
State Treasurer Jeb
Spaulding, Secretary of State Deb Markowitz, Attorney General Bill Sorrell and
State Auditor Elizabeth Ready all are expected to seek re-election and none
are expected to face serious opposition.
Lt. Governor Brian
Dubie has not yet announced his plans but indications are that he will seek
election to a second term. He will be
challenged by Representative Steve Hingtgen, P-Burlington, and by the winner
of the Democratic primary in September between former state Senators Jan Backus
of Winooski and Cheryl Rivers of Bridgewater.
In a similar contest two years ago, Dubie won with 41 percent of the
vote when Progressive Anthony Pollina and Democrat Peter Shumlin split the other
59 percent. Dubie will have to do better
this time because Hingtgen is less well known than was Pollina and will have
trouble topping 10 percent of the vote.
The race for governor
between incumbent Jim Douglas and challenger Peter Clavelle will be hotly contested.
Both candidates will spend about $1 million and the media, knowing that
most political power in Vermont resides in the governor’s office (ignoring federal
office holders for now), will cover the campaign in detail.
The rhetoric in the
governor’s race at the end of the legislative session tends to be about the
accomplishments or failures of the session, because that is what is on the minds
of people and the press. By late next
fall, the 2004 legislative session will be a dim memory and the candidates’
messages and current events of that time will drive voters’ decisions.
The challenge for both campaigns is to judge accurately what the public
mood will be next fall and to tailor their messages to fit that mood.
Jim Douglas has the
early edge in this race for several reasons.
He has run a statewide campaign many times and knows how to do it. He will have been in office only 22 months when
the votes are cast. It is hard to blame
someone for not fixing large and difficult problems when they have not had enough
time to do it. Douglas is a disciplined
politician who will stick to his core message of improving the economy while
at the same time protecting the environment. Finally, he is a nice man.
This last factor will make attacking Douglas’ record more difficult than
would otherwise be the case. Peter Clavelle’s early strategy seems to be
to attack the Douglas record. For the
reasons noted above, this probably will not work very well. At some point, Clavelle needs to lay out detailed
policy directions that he will pursue as governor and contrast them with those
that have been proposed by Jim Douglas. The issues are complex and doing this part of
the campaign right is difficult. External
factors that may affect this race include party building money that will be
pumped into the state by Senator Patrick J. Leahy in his all but uncontested
re-election bid and the extent of the spillover of the anti-Bush vote in Vermont.
The General
Assembly
Democrats now control the Vermont Senate
by a 19 to 11 margin. So far, one Democrat
and one Republican have announced that they will not seek re-election.
With the right candidate, Republicans could pick up the seat being vacated
by Senator Gerry Gossens, D-Addison. It
would be unusual, however, for a Democrat to pick up the seat being vacated
by Senator Jim Greenwood, R-Essex-Orleans. With
good candidates, Republicans also will be competitive in the single seat senate
districts of Orange and Lamoille Counties. The
Democratic incumbents, Senator Mark MacDonald of Williamstown and Senator Susan
Bartlett of Morrisville are hard working and popular, but usually win by only
a few hundred votes out of the ten or eleven thousand cast in their senate districts.
The strength of Democratic incumbents
and the political makeup of the remaining senate districts will make it difficult
for Republicans to pick up seats other than those described above.
Even if all of the possibilities described above break the Republican
way, Democrats still would hold a 16 to 14 majority during the next biennium.
Republicans currently control the Vermont
House by a narrow margin, holding 74 seats to 69 for the Democrats, with 4 Progressives
and 3 Independents holding the remaining seats in the 150 member body.
In Vermont’s small House districts
(each member represents about four thousand residents) it is the local stature
of the candidates rather than political party affiliation that usually determines
the winners. This fact makes the recruiting
of candidates done by party leaders in the first year of every biennium very
important in determining control of the House of Representatives.
At least twelve Republican House members have announced their retirements
while only two Democrats have made similar announcements.
These numbers will change between now and the July 17 filing deadline
for candidates, but it appears the Democrats will have significantly more vacant
seats to go after than will Republicans.
The retirement of House Speaker Walt Freed, R-Dorset, may have hurt Republican
chances of maintaining control of the House.
Freed and his leadership team have done everything possible to provide
for a smooth transition, announcing early that Representative Richard Westman,
R-Cambridge, will succeed Freed as Speaker, but unexpected leadership changes
inevitably create uncertainty in the ranks, no matter how well they are managed.
The local nature of House races and the relative lack of
importance of party affiliation in those races make accurate predictions about
control of the House in 2005 very difficult.
The momentum suggested by Democratic gains in the 2002 elections and
the relatively large number of Republican retirements from the House, including
that of the Speaker, suggest that Democrats have a better than even chance of
regaining the control of the House that they lost when Freed was elected Speaker
in 2001.