2005 Legislative Report

For the week ending March 11, 2005

Political Overview
Health Care once again took center stage at the statehouse this week. On non-health care matters, legislators held a hearing on a bill that proposes to define ancient town and county highways and set forth a procedure for determining the legal status of town and county highways. The legislation would discontinue all old roads not worked or open during the past 40 years. Opponents of the bill state that passage of this bill could be the biggest loss of public access in history for snowmobilers and maple syrup producers, two huge economic drivers for the state. They are asking lawmakers to give communities time to research and map ancient roads and to allow them more than one year to do this.

The Senate Judiciary Committee revealed the outline of a massive prison system reform bill that is expected to pass the full Senate next week. The bill includes a series of changes, including the return of "good time" or reduced sentences for good behavior into state statutes. The bill will likely include graduated sanctions for some who violate conditions of their probation or parole but do not commit new crimes, so they are not returned to prison for the remainder of their sentences for minor infractions. Lawmakers hope that this will reduce the prison overcrowding, sending prisoners out of state and also reduce the corrections budget. There is general consensus from lawmakers that correctional facilities are being over utilized. Advocates worry that the return of good time for prisoners who have not yet served their minimum sentences will result in uncertainty for crime victims, who will not know when those who perpetrated the crimes against them will get out.

Lots of testimony was taken in a number of health care committees this week on a book released by former Secretary of the Agency of Human Services Cornelius Hogan and family physician Debra Richter, M.D. The book “At the Crossroads: The Future of Health Care in Vermont” aims to offer ideas on how Vermont can provide leadership by developing a new statewide funding system for health care. Lawmakers have taken a keen interest in the book. A key proposal involves creating a publicly funded health care trust to pay for all hospital care and to manage costs through hospital global budgets.

VAHHS Issues

Medicaid:
The weekly meeting of the joint Senate and House Medicaid working group started working on a Medicaid budget proposal that would not rely on the Medicaid Global Commitment proposed by the Administration. The committee feels that there are too many questions about the proposal that the administration has been unable or unwilling to answer and they need to do the state budget now. The committee identified areas that could generate approximately $75 million by using some surplus funds, greater savings on prescription drugs, enticing hospitals to accept less money for their services, and charging beneficiaries more. Several senators also discussed the potential need for bridge funding for this year and next.

The Administration summoned all providers to a meeting on Wednesday. The meeting was convened to tell providers their magnitude of provider cuts. For hospitals the amount has now increased to $18.68 million, physicians are slated for cuts of $5.46 million, nursing home cuts of $4.48 million, home health cuts of $2.0 million and dental by $800,000. The Administration, represented by Banking, Insurance, Securities, and Health Care Administration (BISHCA) Commissioner John Crowley, Agency of Human Services Secretary Mike Smith, Office of Vermont Health Access Commissioner Josh Slen, and Health Department Commissioner Paul Jarris reiterated their "no cost-shifting" pledge and stated that hospitals could absorb the losses through their non-operating reserves. Immediately following the meeting, the board of the Vermont Assembly of Home Health Agencies approved increasing their provider tax to come up with their portion of cuts. This is not an option for hospitals.

VAHHS Hospital Day was held on Wednesday and it was a great success. Approximately 30 hospital CEOs, trustees and senior management attended to get out the word on the Association’s 5 year plan for health care reform. Our message was heard by legislators and the media. The group met with the Governor and he and his staff listened to our message, but does not believe additional taxes are an option. The Association is advocating for bridge funding to fill the Medicaid gap while reform efforts are undertaken during the 5-year period and a defined funding source that would sunset after 5-years. VAHHS continues to advocate for Medicaid cost-of-living increases to physicians and nursing homes, and a freeze on hospital reimbursement. Harvey Yorke also testified before the House Health Care Committee on insurance reform issues.

The House Health Care and Senate Health &Welfare Committees held a joint hearing Thursday evening to hear from Vermonters on their views on the health care system. Hundreds of Vermonters filled the well of the House with many speakers urging lawmakers to fix rather than tinker with the system. Legislators heard many personal stories on coverage and access issues, financial issues facing nursing homes and general advice about the system.

H. 115 – An Act Relating to Advance Directives
The House Human Services finished its work on H. 115 – An Act Relating to Advance Directives and passed the bill out on a vote of 11-0-0. VAHHS was successful in persuading the committee to change the section of the bill that stated that an advance directive could be done by video or digitally. The bill now states that the advance directive must be a written document. Our recommended change to add the words “when medically necessary” on the Patient Bill of Rights section that hospice information be provided to all patients was rejected. An amendment offered by Rep. Tom Koch, R-Barre Town, adds language under reciprocity that states “Nothing in this chapter limits the enforceability of an advance directive or similar instrument executed in another state or jurisdiction in compliance with the law of that state or jurisdiction. Advance directives executed in Vermont shall be governed and interpreted by this chapter; advance directives executed in another state or jurisdiction shall be governed and interpreted by the laws of that state or jurisdiction.” We will advocate that the last sentence of this be removed when this bill is taken up in House Judiciary. Hospitals currently try to do this whenever possible. The link to the bill as passed House Human Services can be viewed at: http://www.leg.state.vt.us/docs/legdoc.cfm?URL=/docs/2006/calendar/hc050311.htm

House Health Care
Harvey Yorke, CEO & President of Southwestern Vermont Health Care, testified on the hospital’s WellPro Program. The program incentive is to decrease the amount that the employee contributes to the cost of the health insurance premium as the employee’s level of compliance with WellPro criteria increases. The program promotes self-responsibility for practicing healthy behaviors. The hospital contributes a percentage for full compliance; a reduced amount for partial compliance; and a further reduction for no compliance. The reward for the employee is seen in every paycheck.

The committee also took brief testimony from Con Hogan, former AHS Secretary and Trish Riley, Director of the DIRIGO Program in Maine. Due to time constraints the committee will touch base with Riley at a later date to get more details on the program.

S. 113, An Act Authorizing Nonprofit Hospitals to Convert Charitable Assets
The Senate Finance committee will take testimony on S. 113 on Tuesday, March 15. VAHHS Legal Counsel, BISHCA and the Attorney General’s office are scheduled to testify. This bill proposes to codify standards and a procedure when a nonprofit hospital service corporation seeks to convert or to sell, transfer, lease, exchange, option, commit, convey, or otherwise dispose of charitable assets of the nonprofit hospital service corporation. Any conversion of a qualifying amount of such assets must be approved by the attorney general and the commissioner of banking, insurance, securities, and health care administration as a transaction that will promote the public good of the state. VAHHS will testify in opposition to this bill as long as it applies to transfers or control changes to another nonprofit entity, as that is not a "conversion" and contains the "catchall" provision at the end of the bill which applies to transactions below the threshold. The AG's office is concerned with transfers to non-regional nonprofits and situations where assets devoted to healthcare would be used for an unrelated, but still nonprofit, purpose.

Senate Health & Welfare

Senator Leddy, Chair, stated that the intent of Friday’s testimony on the home health industry was not to make a decision or draft legislative language related to the Department of Justice investigation. It is an opportunity to get an understanding of the issue. Legislative Counsel began by reviewing antitrust and certificate of need laws. Antitrust laws promote competition and CON laws serve as a check on the free market system. Federal law and state regulations have common goals, but have different approaches of getting there.

Peter Cobb, Executive Director of the Vermont Assembly of Home Health Agencies, testified that current state law leaves room for interpretation and that they are hopeful for legislation that will codify the existing home health system in Vermont and outline geographic territories in the state. It is also VAHHA’s hope that legislation will ease some of the scrutiny they are facing by the federal government for possible antitrust violations and allegations of conspiring to keep other firms from providing similar care. The wide-ranging federal probe is part of the U.S. Justice Department’s effort to examine certificate of need laws and see if they are being used as a way to curb competition in health care. These laws allow certain health care providers to do business only when they make a case to state regulators that they are not duplicating services offered by other providers. There is a provision in current CON laws that carves out any home-health service other than those non-profit agencies in existence at the time of the law would need to undergo a CON review.

Elliot Fisher, M.D., Professor of Medicine and Community & Family Medicine, from Dartmouth Medical School, testified in front of Senate Health and Welfare and the House Health Care Committee in a joint hearing. Dr. Fisher discussed his and Dr. Wennberg’s research on the causes of utilization. He also gave some very general suggestions on reform models.

Items of Interest for Next Week

House Democratic Caucus: This week the Caucus will hear from legislators that have introduced health care bills.

Public Hearing: The Agency of Human Services will be hosting three public hearings on the state’s Global Commitment to Health concept paper that describes a working proposal to restructure the Medicaid program under a single section 1115a federal waiver demonstration. The public hearings are scheduled Tuesday, March 15, from 4:00 to 6:00 PM at the Holiday Inn in Rutland, Wednesday, March 16, from 4:00 to 6:00 PM at the Sheraton Hotel and Conference Center in Burlington, and by VT Interactive TV at the following sites on Thursday, March 17 from 5:00 p.m. to 7:00 p.m.: Bennington, Brattleboro, Castleton, Johnson, Lyndonville, Randolph Center, Rutland, Waterbury, and Williston. The deadline for written comments is March 23, 2005 at 4:30 PM. Written comments should be sent via e-mail to candiy@ahs.state.vt.us mailed to Candi Young, Planning Division, Agency of Human Services, 103 South Main Street, Waterbury, VT 05671-1201. Copies of the concept paper are available at http://www.ovha.state.vt.us/or by contacting Candi Young at 241-2234.

Bills of interest introduced this week:

H. 376 - AN ACT RELATING TO THE VERMONT HEALTH ACCESS BUY-IN PROGRAM FOR DAY CARE FACILITIES AND FAMILY DAY CARE HOMES: This bill would establish a Vermont health access buy-in program to offer health care coverage to employees of day care facilities and family day care homes.

H. 404 - AN ACT RELATING TO ACCESS TO MENTAL HEALTH AND SUBSTANCE ABUSE PROVIDERS: This bill proposes to support mental health parity by ensuring broader access to licensed mental health and substance abuse providers.

H. 411 - AN ACT RELATING TO MENTAL HEALTH PARITY: This bill proposes to enhance Vermont’s mental health parity laws.

H. 415 - AN ACT RELATING TO THE DISCLOSURE OF THE RESULTS OF CLINICAL TRIALS: This bill proposes to establish minimum standards for the approval of clinical trials within Vermont, including a requirement that drug manufacturers publicly disclose the results of clinical trials.

H. 428 - AN ACT RELATING TO FUNDING THE MEDICAID PROGRAM AND ENGAGING IN OVERALL HEALTH CARE REFORM: This bill proposes to establish a plan that would allow Vermont to maintain the benefits and services currently covered in the Medicaid program and at the same time set a reasonable time frame within which comprehensive health care reform could take place. First, it would require all Vermonters to share the burden of the immediate Medicaid shortfall by raising taxes. Specifically, this bill would raise $95 million through a variety of tax changes, including extending the six percent sales tax to professional, scientific, and technical services; an increase in the marginal income tax rate from 9.5 percent to 10.5 percent and a reduction in the threshold for the income bracket subject to that marginal rate; and eliminating the 40 percent capital gains exclusion. These taxes, however, would sunset in four years. As a result, the general assembly would have three years to fund Medicaid with the revenue raised by the new taxes and, during that time, design and implement comprehensive health care reform which would promote the financial sustainability of the Medicaid program, specifically, and the broader health care system, more generally.

H. 440 - AN ACT RELATING TO CHIROPRACTIC SERVICES FOR MEDICAID BENEFICIARIES: This bill proposes to ensure that Medicaid beneficiaries may receive medically necessary chiropractic services.

H. 441 - AN ACT RELATING TO MEDICAL MARIJUANA: This bill proposes to change the name of the medical marijuana program to “marijuana for medical use,” move the program from the department of public safety to the department of health, broaden the range of medical conditions which may qualify a patient for the program, and lower the registration fee for the program from $100.00 to $50.00.

H. 446 - AN ACT RELATING TO THE USE OF SOCIAL SECURITY NUMBERS: This bill proposes to prohibit the following uses of Social Security numbers (SSNs): publicly posting or displaying SSNs; printing an SSN on an identification card used by a consumer to access goods or services; requiring the transmission of an SSN over the internet, unless the internet connection is secure; requiring the use of an SSN to access an internet website, unless a password or unique identification number is also required; printing an individual’s SSN on any materials mailed to the individual unless state or federal law requires the document to include an SSN, or the SSN is included in an application for or revocation of an enrollment process; and embedding or encoding an SSN on a magnetic strip of an identification card. A person or entity using an SSN in a manner prohibited by the bill may continue to use the SSN if certain conditions are met. The bill does not prohibit the collection, use, or release of an SSN as authorized by state or federal law or for internal administrative or verification purposes. In addition, the bill provides that if a federal law requires implementation of a national unique patient identifier program, any person who complies with the federal law shall be deemed in compliance with the state requirements for the use of an SSN. The bill does not apply to the collection, use, or release of SSNs by the state, a subdivision of the state, or in connection with the official duties of an individual in the employ of the state. However, state agencies must examine their use and collection of SSNs and, to the extent possible, limit or not require the use or collection of SSNs. A violation of the prohibitions on the use of SSNs shall be deemed a violation of the state’s consumer protection requirements, and the attorney general’s office may investigate and prosecute an alleged violation as consumer fraud. In addition, the bill requires the continuation of an agency of administration study regarding the collection and use of Social Security numbers by state agencies.

H. 450 - AN ACT RELATING TO CERTIFICATE OF NEED REFORM: This bill proposes to reform Vermont’s certificate of need laws.

H. 465 - AN ACT RELATING TO DISCLOSURE OF HEALTH CARE STAFFING LEVELS: This bill proposes to require health care facilities to disclose the facilities’ staffing levels and the facilities’ plan to provide sufficient staffing levels for patients.

H. 466 - AN ACT RELATING TO PROHIBITING MANDATORY OVERTIME: This bill proposes to prohibit mandatory overtime for hospital employees.

H. 467 - AN ACT RELATING TO NONAFFORDABILITY OF EMPLOYER-SPONSORED HEALTH INSURANCE: This bill proposes to determine which employers have a significant number of employees who receive health insurance through the Vermont health access plan.

H. 471 - AN ACT RELATING TO SMALL BUSINESS HEALTH INSURANCE PREMIUM TAX CREDIT: This bill proposes to provide an income tax credit for small business employers who provide employee health insurance and for individuals who purchase their own health insurance.

H. 473 - AN ACT RELATING TO HEALTH INSURANCE TAX CREDIT: This bill proposes to provide an income tax credit for the cost of health insurance premiums.

H. 480 - AN ACT RELATING TO PRECURSOR DRUGS OF METHAMPHETAMINE: This bill proposes to place limits on selling, dispensing, and possessing precursor drugs of methamphetamine such as ephedrine and pseudoephedrine.

H. 485 - AN ACT RELATING TO UNIVERSAL HOSPITAL ACCESS FOR VERMONTERS: This bill proposes to provide hospital coverage for all Vermonters.

H. 497 - AN ACT RELATING TO COMPREHENSIVE MANAGEMENT OF EXPOSURE TO MERCURY: This bill proposes to establish a comprehensive approach to reducing the exposure of citizens to mercury released in the environment through mercury-added product use and disposal. This bill proposes to authorize the agency of natural resources to participate in regional efforts to coordinate mercury product regulation with other states and entities in the Northeast. It proposes to require that manufacturers of mercury-added products provide certain notice to the agency and report on total mercury contained in certain products. It proposes to ban the distribution or offering for sale of mercury-added novelties, fever thermometers, thermostats, and dairy manometers after a certain date and to restrict the use of elemental mercury. It proposes to restrict the distribution and sale of other mercury-added measuring devices and mercury switches and relays after a certain date unless an exemption is granted by the agency under specified criteria, including lack of technically feasible alternatives at a reasonable cost. It proposes to modify the existing labeling requirements for mercury-added products and packaging by expanding the types of products subject to labeling, including formulated mercury-added chemical products. It proposes to allow alternative product labeling methods and specifies labeling methods that are approved for appliances, motor vehicles, and products containing mercury-added lamps as backlighting. It proposes to require manufacturers of mercury-added products to submit certified labeling plans to the agency for approval. It proposes that mercury-added button cell batteries and photographic film are not subject to labeling requirements. It proposes to ban disposal of mercury-added products in landfills and incinerators, to require source separation of discarded mercury-added products, and to require solid waste management facilities to inform customers of disposal bans and collection programs for mercury-added products. It proposes to require the agency of natural resources to conduct a study of methods to remove effectively and feasibly mercury-added components from automobiles, appliances, and other equipment at solid waste management facilities and metal salvaging businesses. It proposes to prohibit the purchase and use of mercury-added products and elemental mercury in primary and secondary schools. It proposes that dental offices be required to follow mercury waste management practices as established by the agency and to install dental amalgam separators on the wastewater discharge by a certain date if mercury-added dental amalgam is used in or removed from patients. It proposes to require hospitals to submit a mercury reduction plan to the agency every three years and to exempt hospitals that achieve 95 percent reduction in mercury-added product use. It proposes to continue a mercury public education and outreach program in the agency of natural resources and the department of health. It proposes to continue an advisory committee on mercury pollution to report annually to the legislature with recommendations on reducing mercury contamination and risk. It proposes that the agency and the department of health develop a research plan to understand better current trends of mercury contaminant levels in fish and water bodies and report to the legislature on matters, including the cost to implement the plan.

H. 505 - AN ACT RELATING TO STATEWIDE HOSPITAL PERFORMANCE REPORTS: This bill proposes to require the commissioner of banking, insurance, securities, and health care administration to prepare a statewide hospital performance report.

S. 131 - AN ACT RELATING TO RETAIL SALES LIMITS FOR PSEUDOEPHEDRINE: This bill proposes to place limits on the amount of pseudoephedrine which can be sold at retail and to require retail sellers of pseudoephedrine to obtain signatures and photographic identifications from buyers.

S. 143 - AN ACT RELATING TO MERCURY EXPOSURE REDUCTION: This bill proposes to require the labeling of health care products that contain mercury and that are offered for sale, sold at final sale, or distributed within the state. The bill proposes that this labeling take place by no later than July 1, 2007, and that it be in accordance with a manufacturer’s plan that shall be submitted by October 1, 2006. In addition, this bill proposes to prohibit in certain circumstances mercury-containing vaccines and to require insurers to cover mercury-free vaccines. It also requires the commissioner of health to develop a poster and brochure related to dental procedures involving mercury or a mercury amalgam and further requires that dentists make such information available to their patients. Finally, it directs the commissioner of health to reevaluate the existing Vermont fish consumption advisory.