VAHHS Legislative Report

For the week ending January 13, 2006

Political Overview
Governor Douglas and legislative leaders received positive news this week on Vermont’s economy with taxes $11 million above projections. The Emergency Board, made of up of the Governor’s office, the Chairs of both the House and Senate Appropriations Committees, the Chair of Senate Finance and the Chair of House Ways and Means, received the news on Wednesday. One reason for the increase in tax revenue is due to a large estate tax payment. Corporate receipts were also strong, showing a vital economy. One area of concern is the price of gasoline and the affect that had on tourism. The revenue forecast will help shape the Governor’s Budget Address scheduled for Tuesday, January 17, 2006.

The Senate Democratic Caucus met for the first time this week. Senator John Campbell (D-Windsor), stated that the structure of the caucus meetings will be slightly different than in past years. In the past every committee chair would give a brief update on committee activities. This year they are asking one committee chair to give a thorough briefing at each caucus meeting. This week the Chair of the Senate Health & Welfare, Jim Leddy, gave an update on what the strategy will be on dealing with health care. House and Senate committees have tentatively divvied up the health care reform work-load, with the general intention that committee legislative products may merge at or near the end of the session. Senator Leddy’s committee is focused on potential consensus items. His committee’s bill dubbed “Common Sense Initiatives” (now affectionately known as “CSI – Montpelier”) will likely be marked up by the end of the month. Until the Governor releases his budget later this month however, it remains unclear how many consensus priorities will actually remain as part of this draft bill.

Meanwhile, the House Health Care Committee is back at work taking testimony and assessing the current positions of various interest groups. Their focus will be a basic benefit plan and financing. The Committee plans to introduce a new health reform bill before the end of the month. Judging from committee member comments, it appears that they will continue along the same ideological path as the bill passed last June, H. 524, Green Mountain Health. This committee’s product is most likely headed for the Governor’s veto, which will then become fodder for the democratic platform.

Senate Judiciary will focus on medical malpractice reform and adverse event reporting, while Senate Finance will address prescription drug reform.

The House passed the FY05 budget adjustment bill this week. Health care-related items in the bill include: implementation of the Medicaid Global Commitment, $7 million for the Medicare pharmacy Part D assistance; increases Medicaid program expenditures by $8.4 million for higher caseload and cost per case, creates the new Global Commitment Fund to be the single source to finance health care coverage for all state health care assistance and fully funds the Medicaid program through FY2006. Also included is retroactive payment based on Jan. 1, 2005 payment rates for the Brattleboro Retreat. The Senate will begin their work on the bill next week.

Human services items include: $9.6 million additional funding for fuel assistance from the weatherization fund surplus and general funds; $170,000 for the Area Agencies on Aging to support Meals on Wheels volunteers; unspecified funds for the Vermont State Hospital Futures Staffing Plan as well as costs for additional nursing, recording keeping and psychiatric services; funds new contract for mental health services and position reclassification; and increased funding for caseload in the Aid to the Aged, Blind or Disabled programs.

Other areas receiving adjustments include education and transportation. It appropriates federal and local match of $24.4 million for new transportation projects and appropriates $2.6 for spring paving and bridge projects.

VAHHS Issues

Health Reform
The Senate Health & Welfare continued taking testimony this week on the draft health care bill. This week’s testimony focused on the healthy lifestyles discounts section of the bill. Harvey Yorke, President and CEO at Southwestern Vermont Medical Center, testified on the WellPro Program. The program was developed to help employees achieve healthier lifestyles and correlate the amount of employer contribution made to the employee’s health insurance premium to the extent of that employee’s success in achieving a healthier lifestyle. The Committee also heard from Herb Olsen, legal counsel for the Department of Banking, Insurance, Securities and Health Care Administration (BISHCA).

The committee will focus on administrative standardization next week.

The House Health Care Committee took testimony this week from organizations that have come forward with a health care reform package. Jim Hester, Vice President at MVP, testified on the insurance portion of the Williston Group proposal. The committee heard from the Vermont Medical Society (VMS) on their reform package. Paul Harrington stated that VMS will actively work to improve the health care system by promoting universal coverage, eliminating under-reimbursement for physicians, maximizing the percent of health dollars for direct patient care, support evidence based care, aligning payment policy with quality, support of the chronic care initiative and medical malpractice reform. The committee also heard from Leigh Tofferi from Blue Cross/Blue Shield of Vermont. Tofferi stated that an economic analysis concluded that low-income Vermonters earning 150 percent to 300 percent of the federal poverty level can afford about $150 per month, or $1,800 per year, for health insurance. To provide coverage at that price several constraints are necessary, including limiting people to basic primary care services or offering plans with a $5,000 annual deductible. According to the analysis, if all 65,000 of Vermont's uninsured residents were mandated to purchase coverage insurance companies could provide low-cost insurance that offers either primary-care coverage or catastrophic coverage.

The committee briefly heard from Dr. Kenneth Thorpe, consultant to the Health Care Commission, on Thursday. Dr. Thorpe spent quite some time discussing charity care, including a matrix used in New York for determining uninsured patient contributions for hospitalization based on family income and size of bill.

On Thursday, the Health Care Reform Commission met with Dr. Kenneth Thorpe to present the results of the study requested by the Commission (Sec. 277d of Act 71). Dr. Thorpe outlined four alternatives in addressing health care reform that would build on the current system in Vermont: (1) No reform, (2) Chronic Care & Uninsured Combination, (3) Employer and Individual Mandate, (4) Individual Mandate to purchase health insurance. Each alternative was addressed including a discussion of implications on coverage/insurance, health care utilization, economic impact (employer contributions, premiums, total health care expenditures, etc.) and use of such strategies in other states. Particular emphasis was placed on the second alternative outlining a Green Mountain Health benefits package for the uninsured that proposed coverage of primary, preventive and hospital care for chronic episodes. Payment of acute hospitalizations would be based on patient's ability to pay and the hospital's charity care policy. A discussion of charity care funding strategies followed including discussion of state funded pools and methods of assessing patient contributions. The presentation concluded with an outline of funding options for the state's share of the proposed reform including anticipated revenues from various taxations and/or elimination of exemptions. Questions followed on topics such as the implications on total health care expenditures in Vermont, anticipated enrollment, large employer and consumer responses to various alternatives.

Prescription Drug Monitoring
The Senate Judiciary Committee on Tuesday unanimously passed S. 90, the prescription drug monitoring bill. This bill creates an electronic database that will be maintained by the Vermont Department of Health that would include the names and addresses of Vermonters who buy narcotics and other addictive substances. The bill grants physicians automatic access to the electronic list to check who else is prescribing their patients medication. Under certain circumstances records could also be turned over to police who are investigating drug dealing. Commissioner Paul Jarris stated that Vermont is taking more of a public health and clinical approach than most states with this bill.

S. 198, Act Relating to Reporting Medical Errors and Establishing a Sorry Works Program

The Senate Judiciary Committee took testimony on S. 198, Act Relating to Reporting Medical Errors and Establishing a Sorry Works Program. The Committee will hold its next hearing on Wednesday, January 18 at day at 9a.m.

Eric Fitzpatrick, legislative counsel, provided a line by line walk through of the legislation. It was his opinion and the Committee seemed to concur that the definition of health care provider should include hospitals. It currently does not specifically cite hospitals and felt it was just overlooked while drafting. He stated that he obtained the model language for the Expression of Apology from Colorado law, which he obtained from the Sorry Works website. The model legislation for the adverse outcome/reporting to patients was taken from Pennsylvania law.

According to legislative counsel, the expression of apology is inadmissible in court and the Sorry Works Program is a voluntary program. He noted that whistleblower protection is provided, but that the protection is not intended to limit an employee’s traditional rights with respect to hiring and firing. He reiterated a few times that the apology itself cannot be used against the individual.

The Sorry Works Program is meant to be voluntary and if a health care provider decides to go forward with the program, there needs to be funding set aside to help with the implementation. A facility would need to look at hiring a Patient Safety Specialist and provide error statistics to a statewide database. One unanswered question was can an individual or health care provider stop participating in the program, after participating in the program for a period of time. There was also a question regarding the definition of “medical error”, and if a physician needs to deviate from a standard practice in care, if this would allow for that or hinder it.

Paul Harrington testified that Sorry Works was currently being used by the VA System, but that the liability was born by the federal government. He noted the Illinois Pilot program and liked the brevity of the Illinois law. He also noted that for Evidence of Admission that Colorado law has the strongest acknowledgement of fault.

The Vermont Medical Society strongly endorses the concepts in Section 2 (expression of apology) and Section 4 (assuming that Section 4 – Sorry Works - remains voluntary). He believes that Section 3, the mandatory reporting, is in conflict with the voluntary program in Section 4 (Sorry Works) and that the number of medical liability claims will rise in Vermont, which is not desirable. There are no protections regarding confidentiality. The Massachusetts law contains a confidentiality provision. He does not believe that the Pennsylvania law does.

With respect to written notification to patients, there is currently no language regarding admissibility and believes that Section 3 undercuts Sections 2 and 4. Senator Leddy was concerned with and asked “where was the remedy for the patient” and didn’t want to lose sight of that.

He deferred to VAHHS the confidentiality/privilege issue. VAHHS will be testifying on this Wednesday, January 18.

Staffing Ratios
The House Human Services had committee discussion on the reporting and posting of nurse staffing ratios. Last week Fletcher Allen Health Care (FAHC) and Southwestern Vermont Medical Center were asked to supply information to the committee on data currently compiled at hospitals. FAHC shared with the committee a sample unit report. Jill Olson, Vice President for Operations at VAHHS, answered questions for the committee. The committee also expressed an interest in requiring hospitals to post which nurses were assigned to each unit, each shift each day and what their levels of training are. After much discussion Rep Clint Martin, D-Springfield, recommended that the Act 53 committee be tasked at developing a process that makes sense. This process was successful with infection reporting. The committee will take up this bill again next week.

Long Term Care
Patrick Flood, Commissioner of the Department of Aging and Independent Living, gave an overview of the current view at nursing homes. Commissioner Flood stated that nursing home admission are down, home and community based care is up. There is a waiting list of 52 in the high needs group. Commissioner Flood stated it is too soon to have the financial picture.

Health Care Financing
Steve Kappel from the Joint Fiscal Office gave an overview of how financing occurs within the Vermont health care system. Incorporated into the presentation were the various sources and uses of funds within the State. Dian Kahn, Director of Analysis and Data management at BISHCA, provided introductory background information about health care spending in Vermont. Kahn focused on types of health insurance in Vermont (i.e. payors) and described economic and demographic characteristics of uninsured Vermonters

Emergency Preparedness
House Government Operations began its review of Title 20, the statute that deals with internal security and public safety. The draft bill will amend the emergency procedures in Vermont. Vermont Emergency Management is in charge of any natural disaster, accident, civil insurrection, weapons of mass destruction, terrorist or criminal incident, significant events, and designated special events, any of which may occur individually, simultaneously, or in combination. Title 20 is where volunteer groups, such as the medical reserve corps or individuals, when deployed by Vermont Emergency Management, previously had become temporary agents of the state and thereby covered by the state’s workers compensation and liability protections. Recommended language change will be to consider these groups or individuals as volunteers within the scope of Title 31, sections 601-710. The committee will continue to review the proposed changes.

On Thursday U.S. Health and Human Services Secretary Michael Leavitt came to Vermont to discuss what could happen if a full-fledged avian flu pandemic were to occur. The summit brought together more than 200 physicians, hospital executives, transportation workers, business owners, town officials, police officers, rescue squad volunteers and other first responders to help the state prepare for how it would protect its citizens. Secretary Leavitt was very clear in his message that states would be on their own and not to expect help from the federal government. Secretary Leavitt also told the group that the federal government will be giving the state $650,000 to help fund its planning efforts and stated that additional funding of approximately $1.3 million would be coming over the next several months. On the legislative side, the House Agriculture committee took testimony from the state veterinarian Dr. Kerry Rood. Dr. Rood gave the committee a quick lesson on the bird flu.

Program for All Inclusive Care for the Elderly (PACE)
The House Commerce committee took up H. 567, An Act Relating to Exemption from certificate of need (CON) and Health Maintenance Organization (HMO) Requirements for PACE. BISHCA offered a strike- all amendment that would allow BISHCA the flexibility or option to exempt PACE from the CON requirements if appropriate and the HMO reserve requirements. The committee voted out the bill on a 10-1 vote. It is on the House notice calendar.

Bill of Interest Introduced

H. 582 - An Act Relating to Medicare Part D Prescription Drug Benefit and VPHARM: This bill proposes to ensure that Vermonters eligible for Medicare and Medicaid or VPharm receive needed pharmaceuticals in a timely fashion. This bill was introduced and passed in one day by both bodies of the legislature and signed by the Governor.

H. 591 – An Act Relating to Teen Consent for Tobacco Cessation Programs: This bill proposes to allow teens over age 12 to enter a state-approved tobacco cessation program without parental consent.

H. 607 – An Act Relating to Uniform Provider Credentialing: This bill proposes to require BISHCA to impose uniform requirements and forms for insurance companies to credential providers.

H. 617 - An Act Relating to Fiscal year 2006 Budget Adjustments: This bill proposes to make adjustments in the fiscal year 2006 omnibus appropriations act.

H. 634 – An Act Relating to Health Care For High School Students Under Dr. Dynasaur: This bill proposes to provide health care coverage for 19-year-old high school students under Dr. Dynasaur.

H. 635 – An Act Relating to Retroactive Coverage under the Vermont Health Access Plan.

H. 636 – An Act Relating to Health Care Coverage for Uninsured Individuals Through the Vermont Health Access Plan: This bill proposes to establish a premium-funded program for uninsured individuals to receive health care coverage and to allow individuals eligible for the Vermont health access plan to receive subsidies for employer-sponsored insurance.

H. 638 – An Act Relating to Mercury Exposure Reduction: This bill proposes to: (1) prohibit the use of mercury‑containing vaccines for children and require coverage for mercury‑free vaccines for those under 18 and over 65 when insurance coverage for vaccines is provided; (2) prohibit dentists from using mercury amalgam dental fillings in pregnant women except in an emergency; (3) require use of non-mercury filling materials for children unless otherwise medically indicated; (4) require coverage for mercury-free dental fillings when insurance coverage for dental fillings is provided; (5) require the state to ensure that the state employees’ dental insurance contract provides coverage for non-mercury dental fillings at no greater expense than for mercury‑containing dental fillings; (6) require the commissioner of health to develop a poster and a brochure related to dental procedures involving mercury amalgam and other dental filling materials; (7) require dentists to make such information available to their patients; (8) direct the commissioner of health to develop and distribute to grocery stores where fish is sold an advisory on contaminated fish; and (9) require grocery stores to place consumer advisories where fish is displayed for sale.

S. 275 – An Act Relating to the Practice of Chiropractic: This bill proposes to amend the definition of chiropractic.

S. 278 – An Act Relating to Affordable Health Insurance for Vermonters: This bill proposes to: (1) require nongroup insurers to provide a health insurance plan for Vermonters which covers basic health benefits at an affordable cost; (2) require every Vermonter to have health coverage and show proof when requesting a state income tax refund or a driver’s license; (3) ensure affordability through a reinsurance pool for the individual and small group markets and through premium subsidies for low income Vermonters; (4) reform the medical malpractice system by 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 making compliance with facility medical practice guidelines admissible in court; (5) require health care providers to report medical errors to patients and the department of health and do root cause analysis of an adverse event; (6) require the department of health to establish a medical error reporting and analysis system, to look for systemic errors and suggest corrective action plans, and to sanction health care facilities that do not report as required; (7) improve Medicaid reimbursement rates to health care professionals; and (8) require the office of Vermont health access to study and report on an efficient and effective means of covering Medicaid recipients through private insurance plans.

S. 284 – An Act Relating to the Protection of Personal Information: This bill proposes to require any data collector of personal information to disclose to an individual if there was an unauthorized acquisition or access to the individual’s personal information that the collector owns or is using. Notice would not be required if the data collector establishes that the misuse of the personal information is not reasonably possible, and the data collector notifies the attorney general or the department of banking, insurance, securities, and health care administration. The bill would also prohibit certain business or state agency use of an individual’s Social Security number. In addition, the bill would require any business in the state that maintains or otherwise possesses personal information of Vermont residents to take all reasonable measures to protect against unauthorized access to or use of the information. Such measures shall include document destruction and electronic media policies.