May 20, 2017 Legislative Update

House members were called in on scattered days for brief spurts of action on the floor over the past two weeks before adjournment, mostly waiting for news that there was actually a budget to be voted on. The rank-and-file were never really privy to the efforts to resolve the teacher’s health insurance negotiation issue, but were on stand-by for whether Education Fund language would, or would not, be added to a bill.

There was so much focus on the $26 million that might be saved in the Education Fund that there was no attention at all to the actual budget. By the time we were hearing the conference committee report at about 11:30 p.m. Thursday, no one asked any questions.

Even I, who has acquired a reputation for being someone who actually reads every bill, did not rise to ask for clarifications on some of the “squishy” numbers that are part of the annual budget-balancing game. We were already two weeks past the targeted adjournment; people were anxious to have it come to an end, and I feared my head being bitten off.

It’s not as if we ever actually build an entire budget. Government lurches forward at an annual cost of (this current year) $5.75 billion, and we battle over the nickels and dimes (or less) that represent the changes from the prior year. In fact, the entire difference in negotiating between the House and Senate version of next year’s $5.82 billion budget was $14.5 million, settled with a reduction of $4.9 million. Literally pennies, within the overall scope.

But it is part of a much big picture of how we juggle money in the budget, not because a specific nickel here or nickel there impacts the budget on its own, but because, as they say, “after a while it adds up to real money.”

So it is with the teacher’s health insurance debate.

The potential $26 million in savings isn’t actually an amount to be worth the level of the fight over it, compared to the size of the Education Fund as a whole. But it is about a trajectory of spending, and about a principle: if there is a sound way to save real money, do we ignore it? Or do we recognize that every penny matters, and pursue it?

One of the “detail” issues on the teacher insurance question – and there are many, beneath the short sound bites -- is how it can be that we have new health plans that save $26 million, yet assure that the recipients get the same coverage than they do now. (Can I buy that plan, please?)

That’s a question I haven’t heard discussed very much, so here’s the basic explanation:

It goes back to the Affordable Care Act, and what was often referred to as the “Cadillac Tax.” When I first found out what that was, I actually though it was one of the few brilliant pieces of the ACA. What it recognized was the well-researched fact that one significant component of our high health care costs in the U.S. is over-utilization: we get care that we don’t need. And if enough of your health care is fully covered by insurance, you are more likely to over-utilize care. It is human nature. We feel we paid for it, so we have a right to use it.

So the ACA put an upper limit on what it called the “actuarial values” – the percentage of the average person’s costs that a plan covers – at 90 percent. Plans at higher values get a heavy tax placed on them, to discourage them. The current teacher’s plans run at about 96 percent.

The “grandfathering” for old Cadillac-level plans is now over, and teachers will be moving to plans that cover less, at a much lower premium price. (That is a fait accompli that has nothing to do with the controversy over who does the negotiating.)  This is a once-only moment in time for this changeover.

The total savings for the new plans across the state will be about $75 million, on an ongoing basis.

If all stays at status quo, each school board will have to figure out how to negotiate what happens to those savings within each district. Increased salaries to offset lower health insurance value? Reduce the local budget (which ends up helping the statewide Ed Fund, perhaps more than the local property taxpayer)? There are many options.

The proposal developed by the School Board Association and then endorsed by the Governor was to take $49 million of the $75 and put it back into teacher’s health care in the form of health savings accounts. That amount gives teachers the same as current levels of coverage, or even slightly better – in terms of co-pays, and so forth – but the education system as a whole saves the remaining $26 million.

How could that be, that $49 million buys a $75 million equivalence in coverage?

That’s the difference, on a very large scale, in the actual utilization rates when the payment is coming from a health savings account (where you keep the leftovers) versus an insurance company pocket.

But none of the numbers compute very well if they are being broken into different plan packages with different percentages of cost-sharing, district-by-district. If left individually negotiated, the odds aren’t good that the optimal savings will occur; they certainly won’t occur evenly across the state; and the savings might be invested in many ways other than reducing property taxes.

The School Boards and Superintendent’s proposal was to move the collective bargaining (move it, not end it) from local districts (local school boards) to a statewide contract, for health insurance purposes only. Other benefits would remain locally negotiated, but there would be a single health care plan that would be equitable across the state.

The need to do it on a statewide basis is where the “everyone wins” fell apart, with the teacher’s union taking the position that negotiating at the state level was taking away collective bargaining rights, because the state is not the direct employer. Collective bargaining, they are saying, is destroyed if it is not a direct employer-employee relationship, regardless of who is paying the bills. (As we are all painfully aware, the creation of a statewide Education Fund turned us into taxpayer-employers acting through the state, instead of acting locally, in collecting the money and paying the bills.)

Herein lies the irony of that position: I’ve been in the legislature long enough to have seen two different initiatives – both successful – to have the state pass a law to allow a union to form, among a group of workers, for the purpose of bargaining with the state-as-funder rather than with their actual employers.

Take the example of child care workers, employed by local daycare centers that receive a significant amount of funding through state subsidies for children attending the centers. They lobbied for and won the right to form a union for collective bargaining with the state for establishing the subsidy rates.

So I can’t buy the concept that having health care negotiated on a state-level basis is hurting the integrity of collective bargaining. We are the employers (represented by our school boards), but we are already, virtually speaking, state-level employers –far more so than the state role with day care workers.

The bottom line is that this is a “draw-a-line-in-the-sand” power struggle between a governor who wants to set a direction about affordability and maximizing savings for taxpayers, versus a union that wants to demonstrate its ability to control legislators votes, and exploiting its own members in the process.

I am opting to stand behind the governor. We’ll find out where it all ends sometime after the veto override vote on June 21.

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Thank you for the honor of representing you. Please contact me with your questions and your opinions. You can reach me by message at home at 485-6431 or at this email at counterp@tds.net

Legislative Update on the Marijuana Vote

Legislative Update: Bill to Legalize Marijuana

May 12, 2017

 A lot has happened in just the few days since I originally wrote this draft to discuss my “no” vote on the marijuana legalization bill in the House. After the 75-71 vote to pass the bill, it went back to the Senate, which has consistently opposed the House approach. If our session had ended last week, as expected, the issue would have been left there, to be taken up next January.

Instead, the budget stalemate extended our session and we received a counter-proposal from the Senate which accepted our language but delayed implementation by a year (to July 1, 2018) and added a Commission to develop a proposal for January for the Senate’s much broader “tax and regulate” approach. That means that if the Senate can build support, its approach could replace the House’s, for implementation next July.

The House voted to support the Senate’s counter-proposal, so it now goes to the Governor’s desk, where he is mulling on his action. If he decides to veto it (which is not a clear outcome), we will likely be re-voting in June on whether to override the veto, which requires a two-thirds majority. Since the Senate proposal passed the House on a 79-66 vote, that means there would need to be roughly 15 members to change positions, for an override to occur.

My discussion explaining the position I ended up taking remains relevant, so I will pick up here with what I drafted to send out last week:

I could have accepted legalizing adult possession and cultivation of small amounts of marijuana, if we were aggressive with the stated premise that it would not harm others. My preference was to retain a small civil penalty for both using and growing – simply to avoid a public message of normalizing use of what still is, after all, a federal crime – but that approach was rejected on the first day of debate.

So were the sponsors serious about protecting children and protecting safety on our highways, given that legalization will undoubtedly end up creating some degree of increase in overall use?

I introduced a series of amendments targeting those issues.

First was to have the misdemeanor crime that was created for providing marijuana to minors include use in the presence of minors; in other words, providing it via second-hand smoke. I don’t think it’s OK to make it legal for adults to be using pot with their kids in the room. 

I also wanted to add it as grounds for a child abuse/neglect investigation if a parent provided marijuana to a child under age 16.

In terms of marijuana and driving on our highways: Given that there is no means for an immediate test that demonstrates a blood level for impaired driving, I think there is a need for some extra thresholds of protection .

I proposed three amendments on this issue. First was that allowing active smoking of pot by a passenger while a car is being driven should be banned in the same way as smoking pot by the driver (or drinking by the driver, which is a $500 fine in current law.)

Second was a fine for possession of marijuana in a motor vehicle unless in locked container. It’s a message about having a bright line: marijuana and driving don’t mix; it should not be easily accessible.

Third was allowing active use of marijuana in a car while driving to be used as one element of evidence in an impaired driving prosecution.

Finally, I wanted to see my rights better protected. The legalization for cultivation requires that it be on property that a person is “lawfully in possession” of, or with permission from the person with lawful possession. I proposed that it require written consent.

I also believe that legalization should be restricted to use on one’s own property (or with permission of the owner.) That was my final proposed amendment.

The major “push-back” on my proposals was that they violated the concept that we should treat pot in the same way that we treat tobacco and alcohol, which are seen as being as bad, or worse, than marijuana. To me, that is a bizarre concept. We have two substances that are addictive and harmful, so we should add a third and not add precautions?

There is also voluminous medical evidence of harms that go beyond alcohol or cigarettes, including, for example, the risk of bringing on psychosis.

We have also been working over some time to increase protections to others for tobacco and alcohol use, becoming much more aggressive about second hand smoke and about drunk driving, for example. Those experiences demonstrate how hard it is to push back on something that is already legal. It’s far better to start with more protection – and ease off if demonstrated to be not necessary.

That concept of “equal treatment” also ignores the reality – for better or worse – that marijuana is still illegal under federal law!

The most amazing responses to my proposals came from the Judiciary Committee.  A member of the committee – the committee that considered the bill for months – said that the committee agreed with my concern about protecting children, but needed to look for a better means to achieve it. “We’d like to find a way to do that,” he said. He concluded that, “If we pass the bill, we should come back to these issues”

What? Fix them after passing the bill? That’s totally backwards, and is not the way we deal with any other legislation.

My proposals to add protections for children were both rejected. The proposals for locking up pot when it’s in a motor vehicle, and for smoking in the car being admissible evidence when prosecuting for impaired driving, were rejected. Limiting use to one’s private property was rejected.

A final issue raised by others was the question of whether we had done due diligence on evaluating health impacts. Our MD member of the House strongly opposed the bill, and cited a major review of research by the National Academy of Sciences.

However the bill had never been reviewed by our Health Care Committee. A motion to send it there, also failed.

So I voted “no” on the bill as a whole. The very closeness of the vote – it passed by only four votes, 75-71 – was certainly an indication that I was not the only one with these concerns.

[As an addendum I would note that when the House bill we passed came back from the Senate, it was in its original form, so it did not include the two minor amendments I offered that were endorsed by the full House. Those were to ban driving a car while pot is being smoked by a passenger in the same way as smoking by the driver (or drinking by a driver), and to require that consent to grow pot on someone else’s property be in writing.]

May 6 2017 Legislative Update

In typical end-of-session fashion, we worked several nights until midnight last week and were prepared to meet Saturday. Then the Speaker surprised us Friday evening with the announcement that budget negotiations had reached a stalemate.

We will return next Wednesday to allow a “cooling off” period before trying to wrap up the last few days of work.  So instead of a session-end budget-and-tax-bill report, this update will follow up on some of the other issues that played out in the past week.

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Pregnancy accommodations

I reported on my previous objections to the provisions in a House bill on work accommodations for pregnancy, based on the way it was drafted. I know that sometimes there is a perception that opposition to the way a bill is constructed is just an excuse to oppose it. So I’m happy to report that the Senate sent us the bill back in almost exactly the way I suggested the bill should be structured, and I voted fully in support. 

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Family leave

I did hear back from a number of folks after expressing my uncertainty about the family leave proposal; the response was almost 2-to-1 in opposition. I proposed an amendment in support of establishing the program as an “opt-in” model to start.

If the report that 70 percent of Vermonters want this insurance is accurate, that would be enough participation to sustain it. However my amendment was rejected, so I voted against it the underlying bill, which mandates participation (and a payroll tax to fund it) for everyone.

The bill did pass but is now in the Senate, so there will be no action on it before next year. It amounts to roughly a $17 million new tax on Vermonters, which makes it likely that if a bill does eventually pass, the governor will veto it.

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Marijuana

After many postponements, the House narrowly (74-68) passed a bill to legalize possession and use of an ounce or less of marijuana (currently it’s a $200 fine) and cultivation of several plants (currently illegal.)

The Senate has sent a bill to the House several times to establish a “tax and regulate” open market for marijuana, an approach the House has soundly rejected every time.

The House bill was so different, it would have died for this year if the session had ended on Saturday. But on Friday, the Senate offered a compromise that would adopt the House plan, and create a Commission to study the tax and regulate option. With the extra days next week, there may be time for the House to decide to accept this compromise.

My own vote was dependent upon some key amendments that failed to pass – thus I voted “no.” I will share a separate update with the details.

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Forest fragmentation

This addition to Act 250 was problematic because it could add even more to the cumbersome and time-consuming process for getting development approvals in Vermont. (Most projects are eventually approved, but the administrative burdens are lengthy, expensive, and an economic development barrier.)

However, ensuring that our forestlands are protected is incredibly important, and can’t wait. I heard from several of you encouraging support, and none objecting, which helped influence my “yes” vote.

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Toxic chemicals

On the other hand, as much as protection against toxic chemicals in children’s products is also critically important, this bill – after changes were made to the original Senate bill by the House – went way, way overboard, ditching the use of a science base as the criteria for placing substances on a “banned” list.

It also turned total control of these decisions to a single person, removing the requirement for recommendations by a panel of experts.

Paul Poirier, a liberal Independent from Barre, offered an amendment that retained that recommendation, but it was rejected. Without that, I could not support the House version of this bill.

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Teacher’s health care coverage

I heard from more constituents on the issue of a statewide contract for teacher’s health insurance than on any other issue this year. The majority of messages were from teachers, and almost all of them were in opposition. Everyone else who contacted me, including our district superintendent, supported the change.

Although the money at stake is important ($26 million a year), there is more to it. It also involves equity for educators statewide for health coverage, and relieving volunteer school boards of the complexity of negotiating health coverage packages.

There seemed to be misinformation about an effect of eliminating teacher bargaining, which it would not do. Salaries and other benefits would remain the subject of local negotiations; health coverage would be under a statewide contract, but still a union negotiation issue.

We’ve long eliminated local control over spending by creating a statewide pool of funding that means even if our district saves on costs, our taxes go up when others around the state do not. This was a huge opportunity to make a step forward in long term improvement in how we address school funding issues.

The $26 million in savings were estimated after putting aside all the resources needed to ensure educators had fully equivalent coverage and cost-sharing to the excellent coverage they have currently.

The reason it is a single window of opportunity which will not repeat is because of the fact that all healthcare policies for schools are being re-negotiated right now, at the same time, as a side effect of the affordable care act. We can’t give it more thought and come back next year to act on it.

A number of Democrats “crossed the aisle” to join Republicans and Independents in support of this eminently logical, fair, and cost-savings measure. It actually passed by a single vote, but rules allow the House Speaker (who is also a representative, after all) to vote in case of a tie – or if a vote will create a tie. The Speaker exercised that option, creating a tie, meaning that it was rejected by the House.

What remains to be seen is the impact on the state budget negotiations.

The Senate passed a budget that increased spending over the House proposal, and shifted $8 million in costs onto the Education Fund (in other words, onto property taxes.) However, like the House, the Senate rejected seeking the $26 million in Ed Fund savings through a teacher’s health contract change.

The governor wants to see that savings happen, and is using the budget discussion as his leverage. Thus… the stalemate, and our delayed adjournment.

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Thank you for the honor of representing you. Please contact me with your questions and your opinions. You can reach me by message at 485-6431or at this email at counterp@tds.net