2005 Legislative Report

For the week ending February 18th, 2004

Political Overview
Tension continues to grow this week as lawmakers question the administrative changes announced last Friday afternoon. Governor Douglas retorted that “The legislature needs to enact the laws. The executive branch needs to carry them out.” The voters elected me to run state government and the Legislators should worry about passing laws.” This wintry tone is not likely to thaw anytime soon as the parties prepare for Town Meeting week.

The Administration made another switch this week with the transfer of Dr. Susan Wehry from her position as Commissioner of Mental Health to managing the mental health program at the Department of Corrections. This additional change has lawmakers and mental advocates very concerned about patient care issues and the immediate future of the Vermont State Hospital.

At his weekly press conference the Governor signed the drug reimportation bill that will allow a small number of Vermonters access to pharmaceuticals from Canada and other nations. Passage of this bill will only help a handful of Vermonters. The Governor strongly believes that Congress needs to act on increasing competition and the use of generic drugs.

VAHHS Issues

Medicaid
The Medicaid Working Group met again on Wednesday where OVHA Commissioner Josh Slen who gave an overview of the Administration’s 23 Medicaid items of “restraints and modifications.” He noted that the global commitment may require federal statutory revisions to the 1115 waiver since it remains if the state Federal Medical Assistance Percentage (FMAP) can be waived.

At the State house on Thursday, the Democratic leadership of the House and Senate proposed several strategies for negotiating with the federal government on the global commitment. One suggestion is to include Medicare funding in the block grant in order to give the state more bargaining power and flexibility on allocating health care funds. They also asked the Administration to ensure that the state is protected from inflation in the cost of providing health coverage. The Administration will take a serious look at the strategies recommended, but expect the “global commitment” discussions to continue well into this Spring.

This informal House/Senate committee plans to meet on Wednesdays from 3:30 p.m. – 5:00 p.m.

House Appropriations
The House Appropriations Committee continues to work on the FY2006 agency budgets. This week Agency of Human Services Secretary Charlie Smith, Department of Aging and Independent Living Commissioner Patrick Flood, and Vermont Department of Health Commissioner Paul Jarris presented their budgets.

Secretary Smith gave an overview of the Agency. It is comprised of 4 departments, one office and the Secretary’s office. The total spending for 06’ is $1.395 billion. Funding sources include $336.2 million in general funds (this is an increase from the 05’ amount of $309 million or an increase of 8.8%), $249.6 in the Health Access Trust Fund, and $810 million in Federal receipts. Total agency upward pressures include Medicaid at $44.6 million of $76.5 million, which includes caseload growth, inflation, annualized 05’ costs, decrease in Federal financial participation, PAYACT and other issues.

Commissioner Flood gave an overview of his department. Currently there are 5 divisions that will be condensed to 4. The Division of Aging & Independent Living (DAIL) and the Division of Developmental Services will be merged to one division that will be called Division of Advocacy and Independent Living. The big area of concern for VAHHS is in the DAIL budget related to nursing homes. In order to help reduce the $70 million Medicaid deficit, the department is proposing $5.9 million in reductions by eliminating the statutory required inflation factor. The department estimates that this will save approximately $3 million of which $1.2 million will be in general funds. The department is also proposing raising the threshold of occupancy in the rate setting calculations recognized costs. The current threshold is 90% and the department is proposing that this be raised to 95%. The department estimates that this will save $2.5 million of which $1 million will be in general funds. The department also hopes to save $400,000 by closing some loopholes in financial eligibility for long term care Medicaid and improving the determination process.

Commissioner Paul Jarris gave an overview of the Vermont Department of Health 06’ budget. Jarris stated that the Public Health increases are limited to non-discretionary expenditures such as payroll and fee-for-space. The exception is $182,000 allocated to the Fit & Healthy Kids. AIDS Drugs Assistant Program includes general fund growth for provider increases. The mental health/VSH includes general fund growth for provider increases of $1.2 million, caseload increase of $400,000, loss of federal funds of $3.2 million at VSH and $1 million in Federal financial participation (FFP), $800,000 in improvements at VSH, and $700,000 in non-discretionary expenditures. The commissioner took considerable time describing the Chronic Care Initiative and how supporting this initiative now will save in the long run.

House Human Services
The House Human Services committee continued its work on the H. 115, An Act Relating to Advanced Directives. One area of controversy continues to be how the notice of hospice would work. Wendy Morgan from the Attorney General’s office testified that the Pain Committee would like a separate notice or that the information be included in a patient handbook. The committee began committee discussion and markup today.

The committee also held a joint hearing with the Government Operations Committee on the Vermont State Hospital. There is a lot of concern on behalf of lawmakers and mental health advocates on the speed the Administration is taking on reducing the census at VSH. Secretary Charlie Smith stated that Dave Cote, Principal Assistant to the Commissioner of Health and Tommie Murray, Project Manager at the Health Department, will be the two point contacts related to VSH.

Representatives of the Vermont State Employees Association testified that the solution to VSH is to build a new and larger state-of-the-art hospital in the central Vermont area. VSEA is the only group advocating for one central new facility. Representative Tom Koch challenged how building a new hospital would advance the integration of mental health care with medical care?

House Health Care
This committee continues to take background testimony from a number of individuals. This week the committee heard from Meg O’Donnell of Fletcher Allen Health Care. O’Donnell gave an overview of the health reform efforts in the early 90’s and the Health Care Authority. The committee also heard testimony from Richard Davis and Dr. Deborah Richter, single payer advocates; Kevin Goddard of Blue Cross/Blue Shield of Vermont; and Jeanne Keller of Keller-Fuller on reform history.

House Judiciary
House Judiciary continued to take testimony on the H. 163, An Act Relating to Criminal Abuse, Neglect, and Exploitation of Vulnerable Adults. The committee heard testimony from Linda Purdy who responded to the testimony of previous witnesses. She again supported the use of the term "unnecessary" in the sections on abuse and restraint, noting that the term is used in current statute in title 33. Some witnesses testified the term was too vague. She also clarified that the current bill still allows for a misdemeanor level of neglect in addition to creating a felony level of neglect. She supported a change recommended by Commissioner Patrick Flood to the definition of vulnerable adult. Purdy also distributed a new definition of abuse by restraint in response to testimony by patient advocates. She will be distributing that to interested parties, including VAHHS, in the hope of coming to consensus outside the committee room. Matt Valerio, Defender General, also testified. He raised concerns that the legislation creates the same penalty for intentional acts (willfully, knowingly) and unintentional acts (recklessly) in the sections on abuse, restraint and neglect. Finally, the committee debated whether the language on sexual abuse makes sex with a vulnerable adult a crime, even went the vulnerable adult consents, with certain caregivers.

We continue to watch this bill very carefully.

Senate Finance
Senate Finance heard from legislative counsel on legal issues around Medicare, Medicaid and ERISA as they continue to look at the Governor’s health care bill. Bea Grause, President and CEO of VAHHS, is scheduled to present to this committee next week on VAHHS’ Five Year reform proposal.

Senate Economic Development, Housing & General Affairs

The committee took up workers compensation this week. In order to achieve a 4% reduction in workers, Ingenix discussed their proposals for payment methodology changes. There is data available for inpatient services and physicians, but not for outpatient and durable medical equipment. To achieve a 4% reduction, inpatient services will need to be reduced by 14% to offset the estimated 9% fee increase to physicians. Maintaining the current percentage of charge system is not perceived as a viable option.

Senate Health & Welfare
Senate Health & Welfare heard from Health Care Administration Deputy Commissioner Administration Paulette Thabault and Office of Vermont Health Access Commissioner Joshua Slen, on the premium assistance and employer-sponsored insurance program offered in the Governor’s health care bill. This committee quickly got confused on a chart distributed by Thabault that showed the federal poverty level (FPL) and amount of premium and subsidy that would be offered based on the FPL. The committee will continue to hear testimony from both witnesses.

On Wednesday the committee scheduled an emergency hearing on VSH. The committee heard from Health Commissioner Paul Jarris, Secretary Charlie Smith and Dr. Andrew Pomerantz, Chief of Psychiatry at the VA. The discussion started poorly with Senator Jim Leddy expressing his angst that “there is no one in charge of mental health.” Commissioner Jarris shot back that he totally disagreed and that he is in charge as Commissioner of Health. Senator Leddy stated that he stood by his original statement. In the same hearing Senator Leddy praised the work of Secretary Smith and his concern with changes in Administration in the middle of two major crises, VSH and the Medicaid deficit. Secretary Smith stated that in his new position he would continue to have input in what occurs with VSH.

Dr. Pomerantz reported on the findings of the team of 6 that reviewed the treatment plans of the patients at VSH. Pomerantz stated that the team does not feel that the patients are in immediate danger, but that the patients were not receiving an acceptable level of treatment. Some of the findings include: staffing levels, insufficient training of staff, poor working conditions, poor living conditions for patients that do not foster recovery, physical plant risks and a number of other issues.

Lawmakers and mental advocates continue to express their concerns on the speed in which downsizing of the state hospital is occurring, especially since the patients are not in immediate danger according to the report providing by Dr. Pomerantz. Notably, Dr. Pomerantz has requested that his staff at the VA find ways to keep from sending patients to the state hospital and find alternative locations.

The committee took discussion on H. 6, An Act Relating to Clinical Trial for Cancer Patients. The committee is discussing expanding clinical trials to providers in other states. Currently the language states “approved cancer clinical trials conducted under the auspices of the following cancer care providers ("cancer care providers"): Vermont Cancer Center at Fletcher Allen Health Care, the Norris Cotton Cancer Center at Dartmouth-Hitchcock Medical Center, and approved clinical trials being administered by a Vermont hospital and its affiliated, qualified Vermont cancer care providers; a Vermont hospital and its affiliated, qualified Vermont cancer care providers…” The committee will need to finalize and pass this bill out early next week so it can be brought to the Senate floor. The sunset date for this bill is March 1, 2005.

Bills of interest introduced this week:

H. 237 - AN ACT RELATING TO EMERGENCY CONTRACEPTION: This bill proposes to permit a pharmacist to dispense emergency contraception in accordance with a protocol developed by the pharmacist and a physician or other prescriber.

H. 241 - AN ACT RELATING TO PROHIBITION OF SMOKING IN ALL PUBLIC PLACES: This bill proposes to prohibit smoking in all public places, including bars and private clubs.

H. 244 - AN ACT RELATING TO CHRONIC FATIGUE SYNDROME: This bill proposes to increase public awareness of chronic fatigue syndrome by education through the distribution of information.

H. 248 - AN ACT RELATING TO REGISTRATION OF LOBBYISTS: This bill proposes to: (1) expand the definition of “gift” in the chapter relating to registration of lobbyists; (2) permit lobbyists and their employers to register with the secretary of state electronically; (3) increase registration fees for lobbyists and lobbyist employers; (4) require the secretary of state to provide internet access to lobbyist and lobbyist employer information; and (5) expand the information required for disclosure by lobbyists and lobbyist employers.

H. 257 - AN ACT RELATING TO HEALTH CARE BARGAINING GROUPS: This bill proposes to expand the bargaining power of health care providers.

H. 258 - AN ACT RELATING TO THE DISCLOSURE OF RATES OF HOSPITAL-ACQUIRED INFECTIONS: This bill proposes to require hospitals to report the rates of hospital-acquired infections to the commissioner of banking, insurance, securities, and health care administration.

H. 268 - AN ACT RELATING TO DRUG UTILIZATION REVIEW BOARD OPEN MEETINGS: This bill proposes to allow the drug utilization review board to go into executive session for the purpose of discussing proprietary pharmaceutical pricing information.

H. 281 - AN ACT RELATING TO MEDICAL MALPRACTICE: This bill proposes the following provisions for medical malpractice actions: (1) Requiring the plaintiff to file a certificate of qualified expert, stating the applicable standard of care, the alleged departure from the standard of care by the defendant, and how the departure from the standard of care proximately caused the plaintiff’s injury; (2) Requiring damage awards to be reduced by any amount the plaintiff receives in compensation for his or her special damages under a contract, insurance agreement, or statute; (3) Making an expression of regret or apology made by or on behalf of a health care provider inadmissible in any civil or administrative proceeding against the provider; and (4) Establishing a mandatory mediation process.

H. 282 - AN ACT RELATING TO A DOMESTIC AND SEXUAL VIOLENCE VICTIMS SERVICES SPECIAL FUND: This bill would establish a domestic and sexual violence victim services special fund to support programs of the network against domestic and sexual violence.

H. 283 - AN ACT RELATING TO ORGAN AND TISSUE DONATIONS: This bill proposes to honor a decedent's wishes regarding organ and tissue donations.

H. 284 - AN ACT RELATING TO DEFENDANTS’ LIABILITY BEING PROPORTIONAL TO DAMAGES CAUSED: This bill proposes, for negligence cases involving multiple defendants, that each defendant may only be liable for the proportion of damages caused by that defendant, whether or not the plaintiff was also negligent.

H. 287 - AN ACT RELATING TO LONG-TERM CARE INSURANCE: This bill proposes to disclose to applicants for long-term care insurance that the premium rates may increase, the effect those rate increases will have on the cost of the policy, and the history of rate changes for long-term care insurance.

H. 298 - AN ACT RELATING TO TREATMENT FOR PHENYLKETONURIA: This bill proposes to ensure that Vermonters with phenylketonuria are able to access treatment within the state of Vermont.

S. 99 - AN ACT RELATING TO SMOKING IN BARS AND CLUBS: This bill proposes to prohibit smoking in public buildings, including bars and clubs.

S. 108 – AN ACT RELATING TO THE PRESCRIPTION FOR A HEALTHY VERMONT: This bill proposes to: (1) offer premium and deductible assistance to uninsured low and moderate income Vermonters; (2) create a reinsurance program to lower nongroup health insurance premiums; (3) establish a health insurance tax credit to enable small businesses to offer health insurance to their employees; (4) permit health insurance companies to offer discounts to members and subscribers who make healthy choices; and (5) establish a consumer health care price and quality information system to empower individuals to make economically sound and medically appropriate decisions.

S. 110 - AN ACT RELATING TO MEDICAID AUDIT: This bill proposes to require an audit of Medicaid cases which represent the highest ten percent of Medicaid program expenditures.

Other items of interest:

PUBLIC HEARINGS: Thursday, February 24, 2005 – House Chamber – 6 PM – 8:30 PM – House Committees on General, Housing and Military Affairs and Human Services – H. 91 and H. 241 – Prohibiting smoking in all public places.