March 25, 2017 Legislative Update

Legislative Update

Rep. Anne Donahue

March 25, 2017

We are hitting the meat of the session in the coming week, as we take up the House version of the state budget.

It appears that for the first time in many years, it will match our actual revenues instead of requiring new taxes to support it. That is thanks to our Appropriations Committee acting under the threat of a governor’s veto.

A good example of how it is possible to address urgent needs without increasing overall spending is the proposal developed by my Health Care Committee to address the psychiatric care crisis that is backing up our emergency rooms. I described that in detail in my last regular report.

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Marijuana

A long debate on the House floor this week will be on the marijuana legalization bill.

In contrast to the Senate’s “tax and regulate” sales bill that failed a year ago, this bill is about legalizing the possession of an ounce or less, and the growing of a few plants.

I’m not interested in seeing the state go after personal use or cultivation of small amounts of marijuana, so in theory I could support the approach. But there are a number of key caveats for me, and the bill does not include many of them.

Unless floor amendments address those concerns – and there will be plenty of amendments offered and debated – I would be hard pressed to support it.

First, kids: the bill does include some aggressive prohibitions against persons allowing access to anyone under age 21. Does enabling “consumption” include prohibiting parents from exposing their kids to inhaling second-hand smoke? Not clear.

Does the bill include an assumption of child abuse or neglect if children are exposed? No.

The bill also promotes an attitude that marijuana isn’t all that bad a thing for young people, despite all the medical evidence that it is particularly harmful to developing brains, because it establishes possession of up to two ounces by youth as exactly equivalent to possession of alcohol.

Second, safety on our roads. We can’t test for “under the influence” in the same way we can for alcohol. Those who say that is no change from what exists today are kidding themselves if they don’t think there will be more use – and thus more driving while impaired – if use is legalized.

We could, however, enact stringent prohibitions on any use (by a passenger or driver) or even presence of marijuana in a motor vehicle. The bill does not do even that.

Third, public use. My view about personal use doesn’t extend to subjecting me to use by other persons. There are minor fines for public use; I think it needs to be illegal.

That was a flaw in decriminalization several years ago. An amendment I offered then to have a higher fine for public use, failed.

Even “private property” creates issues, because it includes apartments. Unlike alcohol, marijuana intoxicants are carried in the air. Don’t apartment dwellers have the right to be free from exposure to their neighbors’ use of pot?

Yet to make that distinction would create a fundamental inequity between wealthier (home owning) and less wealthy (apartment dwelling) users.

It’s a good demonstration of how difficult it becomes to draw clear lines among levels of how legal marijuana could be restricted to “personal use only.”

I’m not sure why leaving it all at our decriminalization approach (just a fine for small amounts) does not remain workable. There are enough others who feel the same way that a close vote is expected.

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School Finance

Also coming up is a bill to restructure how we set tax rates within our statewide education property tax. It would create a clear connection that would benefit districts that spend less than the statewide average per student, and create a disadvantage for those that spend more.

This makes sense, BUT… it would be retroactive to the current budget year, with budgets already voted on. I have always fought retroactive bills, and will oppose this.

Regretfully, it appears that – having already rejected the Governor’s proposal – we will again do nothing this year to actually address the escalation of education costs.

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Guns

It sounds reasonable on the surface to say that a person who commits domestic assault should have his or her guns removed from the home; that was the premise of the gun bill last week.

But there is a total illogic to say that a person who is an immediate threat to another person, and has been charged with an assault, should be left there with the victim -- just take any guns away and the victim will be safe?

If the person presents that kind of danger, he/she should be kept in custody until a bail hearing, and at that hearing, a judge can decide whether to order that weapons be confiscated. That way, both safety and due process rights are protected.

To merely confiscate all guns in a home, with no court review and only an allegation of abuse, violates a person’s right to their own property without the “due process of law” that is guaranteed by our constitution. It also violates the presumption of innocence when we act based only on charges being filed, without even immediate judicial review. I voted no; the bill passed on a 78-67 vote, very much closer than the often party line divisions on controversial issues.

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Pregnancy

Another seemingly good proposal: require reasonable accommodations (you don’t have to wear the otherwise-required staff uniform; you can have a stool to sit on) so that pregnant employees can continue to maintain their jobs.

Unfortunately, it wasn’t written that way. It includes unlimited amounts of unpaid leave beyond existing family leave laws and “job restructuring” without the employee necessarily being able to perform even the core functions of the job.

We were assured on the floor that the requirement that the accommodation not present “undue hardship” to employers means “they can say no” if, after a discussion with the employee, they feel the request creates an undue hardship.

That turned out to not be accurate. It is a mandate. The Attorney General or Human Rights Commission that would resolve disputes.

If put into practice as written, it could cost the state (as an employer) a great deal of money, so I moved (unsuccessfully) to have it sent for review by the Appropriations Committee.

I hope the Senate addresses some of the overly-broad language, so that I can support this bill when it returns to the House.

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Mental Health

I reported two bills on the House floor. The first creates a review committee for interactions between police and persons who appear to be having a mental health crisis when it results in the use of force with death or serious injury.

The genesis of the bill was the death of Phil Grenon in Burlington last year. Consensus among all parties emerged that we need a way to review such incidents without trying to assess blame (the State’s Attorney review for wrongdoing already addresses that).

So the commission would do an in-depth analysis, determine if there were ways that could have resulted in a better outcome, and make recommendations for the future.

The second bill was part of our effort to address Vermont’s high rate of suicide. (It is the second leading cause of death for young people in Vermont; overall annual deaths exceed those from motor vehicle accidents, murder, and drowning combined.)

One group of teens has six times the rate of suicide attempts of the rest of our kids. These are the kids who identify under the Youth Risk Behavior Survey as “lesbian, gay, bisexual or questioning.”

Some of them, knowing that parents must consent to counselling, will not ask for help in addressing their confusion or mental health crises – even if that support is specifically to enable them to feel able to talk to their parents.

This bill allows minors to get counselling on these issues without parental consent.

It is certainly not an easy thing to allow parents to be excluded in this process, but the need is obvious and urgent. I was gratified by the House support of my report with a 125-12 roll call vote.

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I’ve recent a flurry of constituent messages about the bill to create a Racial Justice Oversight Board in Vermont. Most have urged support, a few have said we don’t need it. Sometimes the fact that we think we don’t need something (we’re Vermonters, after all; we can’t have any prejudices!)  is precisely the evidence that we do. I support this bill.

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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, at the statehouse at 828-2228, or at this email at counterp@tds.net

March 10, 2017 Legislative Update

Special Legislative Update: the Health Care Bill in Congress

Rep. Anne Donahue

March 10, 2017

Our Health Care Committee in the House has been waiting anxiously for information on what shape the “repeal and replace” of the Affordable Care Act might take. We’re on town meeting break this week as the news is breaking in Washington on the bill that has been introduced, so I went and sat in as Governor Phil Scott’s staff did a special media briefing Friday.

It’s obviously still very early to know much, but the Scott administration drilled down to make best estimates of what impact it would have on Vermont if the current bill passes. About the only good news is that the major financial impacts would not hit until 2020.

But as feared, it would be a very big hit: potentially a $200 million shortfall in our Medicaid – and therefore our state – budget.

For many of the 26,000 low-income Vermonters who currently receive subsidies to help buy insurance, it would mean a significant drop in assistance. However assistance would be newly available to the next higher income bracket.

Vermonters who get insurance through work as part of the “large group market” would see the least change, but rates might increase more rapidly than they do now, because of what was called “market destabilization.”

There is nothing in the bill that addresses ways to contain cost or reform payment structures. In theory, that will come in a later, “Part 2,” of the repeal and replace.

One of the first things to be repealed would be the individual mandate: the requirement that you buy insurance or face a federal penalty.

One impact of that is an expected increase among those who do not get insurance, and since those people tend to be healthier individuals, it increases insurance premiums for everyone else who remains. Those without insurance still get care if they end up in a hospital, so that cost also gets shifted to everyone else.

The new tax credits would be based on age groupings, up to $75,000 in annual income – the same rate regardless of whether you earn $20,000 or $75,000.

Here are the contrasts that were presented between current subsidies and the proposed law:

An individual earning $20,000 currently can receive a subsidy of $4,920 for a “silver” plan that costs $6,251. That leaves them with $1,331 to pay – still pretty steep at that income, and that is just the premium. A silver plan still leaves some pretty high co-pays and deductibles.

Under the new proposal, that individual would receive a $2,000 credit if they are age 27, a $3,000 subsidy if they are age 40, and a $4,000 subsidy at age 60. Part of the premise is that insurance is more expensive as you get older, but that isn’t true in Vermont, where insurers are not allowed to charge different rates based on age.

For someone at a $40,000 income level, the current subsidy is $2,016. So it would stay about the same for the 27-year-old, who would get the $2,000 subsidy. The 40-year-old would do better, with the new $3,000 subsidy, and the 60-year-old would receive almost double the current subsidy.

At $75,000, no one currently gets a subsidy, so regardless of age it would be a bonus for those folks.

It gets more complicated when you introduce families, but one sample family of four, including two children, gives the basic picture:

At a family income of $51,020, with two children eligible for Dr. Dynasaur, the cost for a health care for the family is $14,060. The current subsidy under the Affordable Care Act is $9,110, leaving the family with $4,950 to pay in premiums.

Under the new proposal, the subsidy would drop to $5,000, so the family’s cost would be $9,060.

So what happens if you can’t afford insurance, and drop your coverage, and then realize it was a mistake, and sign back up? If you allowed more than two months to lapse, you get hit with a penalty of 30 percent of the cost of the plan: a major disincentive to buy insurance.

As Vermont’s new Secretary of the Agency of Human Services said, one of the problems with the Affordable Care Act was that for most individuals, health care was still unaffordable. If the bill before Congress passes, it will become more so.

Vermont prides itself as the state with the second-highest level of persons with health insurance coverage – about 97 percent have coverage. That rate would certainly fall.

There are a lot more details yet to dig through, and a lot of uncertainties, including what changes the bill might undergo in Washington. So it will continue to be a waiting and watching game, but in this first iteration, the picture is as ugly for Vermont as has been feared.

March 3, 2017 Legislative Update

Legislative Update

Rep. Anne Donahue

March 3, 2017

Town meeting week break: it means we are almost half way through the session. The week we return, known as “crossover,” is the deadline for policy bills to be voted out of committees in order to be voted on and cross over from House to Senate, or vice-versa. It will be a packed week with committees working late to finish work on proposed changes in laws.

One week after that is the deadline for the money bills, which are required to start in the House. That includes the annual state budget and the 2-year capital budget, along with any tax or fee bills.

The budget dynamics are all new this year, because we have a governor who has drawn a line in the sand: he will not sign a budget if it requires new taxes or fees to balance it.

I have heard no talk in the House this year, thus far, about trying to challenge that and attempt to override a veto. The Appropriations Committee is chewing through budget details to look for savings and cuts – and asking for policy committees to weigh in.

In Health Care, my committee, we grappled with two subjects that Appropriations asked us to review: analyzing the savings proposed in the governor’s budget, and looking at what we could do this year, on an urgent basis, to respond to the crisis in meeting mental health care needs.

Mental Health

The issues that have led to days of waiting for psychiatric patients in the emergency rooms of our hospitals are many-layered. This backlog has been ongoing for several years now. The prior administration kept saying that the “flow” of the new, post-Irene system just hadn’t fully calibrated itself yet, and needed some time. It is clear now that the problem is deeper.

Any plan to completely restructure a system on a crisis time frame – the crisis being the sudden loss of the Vermont State Hospital due to flooding from Irene in 2011 – is likely to run into trouble. The plan was inadequate from the start.

Our work to make revisions needs to be more careful, yet there is huge urgency. Last fall, for example, an 11-year-old boy from Northfield was held in an emergency department room at Central Vermont Medical Center for six days while waiting for an inpatient bed to become available in Brattleboro.

The task before my committee was to identify targeted actions – and the money to achieve them – that might help allay the worst of waits like that while longer-term system solutions are developed and take hold.

In keeping with the governor’s line, however, “the money to achieve them” meant finding resources that could be shifted based on priorities, rather than increasing the budget (often referred to as a “budget neutral” proposal.)

I led a work group from our committee, and by Friday, we had achieved that goal. It doesn’t mean everyone will like it or that the Appropriations Committee will agree.

Here is what we recommended:

Inject $2.5 million into the crisis intervention system to steer patients away from emergency rooms if they don’t need to be there. We have mobile crisis teams throughout the state, but they often can’t stay staffed because salaries aren’t competitive, and there aren’t enough clinicians to meet the need.

Add $.5 million into new initiatives to create nursing home capacity and supports for elderly patients who are stuck in psychiatric inpatient beds solely because there are no nursing home beds available to meet their needs.

When people stay in the hospital after they are stable and ready for discharge, it uses a space that could otherwise be for a new admission; instead, the person waiting for admission sits in the ER.

Another set of persons who are delayed in discharge are those who are homeless. The last piece of our proposal is to add $.4 million into specially-supported housing for such individuals.

Where’s the Money?

That’s $3.4 million in total… from where?

One part of the governor’s budget proposes cutting 10 percent of special payments to hospitals called “DISH” payments. It is federal money, matched with state funds, that is intended to help hospitals with the costs of free care they provide to persons without insurance.

Over the past five years, the amount of that unreimbursed care has dropped significantly, because our rate of uninsured persons has dropped. The governor felt it was reasonable to reduce those payments.

We looked at that and considered: if we cut the payments even further, but reallocated the additional money to help address the emergency room crisis, it was actually shifting the money to a different category of need at the hospitals: the need to relieve the backlog.

Cutting a second 10 percent of the DISH payments but reallocating it to the targeted mental health responses seems like a better way of using the same money. Ten percent equals $3.4 million, which became the basis for the recommended levels of emergency new funding.

Elsewhere in the Budget

Other health-related budget items we reviewed included the governor’s proposed savings in Vermont Health Connect and in the administrative functions of the Green Mountain Care Board, which oversees health insurance and hospitals in the state.

The governor expects to save $2.8 million by re-directing individuals who are not receiving subsidies to get their insurance directly from the insurance carriers, rather than signing up through the Vermont Health Connect exchange.

We started allowing people to use direct enrollment just a few years ago, when Vermont Health Connect was failing rather catastrophically to meet enrollment needs. Now, we realize we can save money if they all opt to do it.

The problem we found it that the amount of the savings projected is highly optimistic. We warned the Appropriations Committee to use caution in booking the full savings.

On the second issue: The Green Mountain Care Board is partially funded through billing the insurance companies and hospitals they regulate. It is a common funding mechanism for regulated entities.

The governor’s budget identifies a savings by increasing the amount of the Board’s budget being billed to insurers and hospitals, and decreasing the amount being paid for out of the state’s budget.

That sounds rational, but there is a glitch. The state budget money is matched by federal money, at least for now. The costs that are billed to insurers end up being paid by individual purchasers of insurance, in their rates, and there is no federal match. Depending on the insurer, this could mean up to $72 per person a year as a rate increase.

So by shifting the source of the funding, we are losing out on the ability to get federal money to help pay, and instead placing the full cost on the purchasers. In cash terms, to balance it out means we would no longer be using $1.2 million in federal matched money; we would be billing $1.7 million more to insurers (purchasers); and the grand sum of the desired savings for our state general fund budget would be $180,000.

It’s all in the interest of a balanced state budget, but it isn’t a true savings in costs. It is simply shifting the costs from taxpayer to ratepayer. They (we) are often the same people.

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On the House Floor

The hottest topic of debate last week in the House was a bill to shorten the length of time after a sentence is served that a person can apply to have a criminal record wiped clean.

I support the concept of expungement: that if you have paid for your crime and have then proven yourself in staying clean for long enough, you should be able to get a new chance at a clean record.

The issue was how long is “staying clean for long enough.” Our expungement law is fairly new, and this bill reduces the waiting in one category from 20 years to five, and another from 10 years to three. I think that too much, too soon, so I voted “no.”

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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, at the statehouse at 828-2228, or at this email at counterp@tds.net

Feb. 17, 2017 Legislative Update

Rep. Anne Donahue

Legislative Update

February 17, 2017

Vermont is moving forward with efforts at health care reform at the same time as watching and waiting to see how Washington will address the future of the Affordable Care Act.

Those monitoring tasks are among the priorities that my Health Care Committee has identified for this session, along with review and input on the state’s budget and addressing the crisis-level pressures on our mental health system. They will dominate our committee work, although we are also taking up some specific bills.

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Medicaid pilot

The payment reform plan known as the “all payer” model (it doesn’t actually include all payers, but it has the big three: Medicare, Medicaid and Vermont commercial) is in what is called “year zero.” That is the planning year; year one will be when it goes into effect next year.

The insurers will be paying a group of medical providers, called an accountable care organization (ACO), which will reimburse doctors for all care to patients who see a primary doctor who is a member of the ACO.

Vermont’s Medicaid program will be giving it a trial run this year with providers of patients in the northwest and northcentral parts of the state (including ours). Hospitals in those counties and the primary care doctors working for them will get money up front each month for meeting patient needs and helping them to avoid higher cost care.

During the pilot, Medicaid will be tracking all the actual services patients get, and what those services would have cost if they were being paid per-service. Quality measures will also be tracked.

Will it actually bring good results?

Here is what Vermont’s Medicaid administrators told us:

“Like any new program, we cannot guarantee that it will succeed.”

“Financial Projections: Numbers are being developed without experience. Not clear whether number will be too little or too much. Missing the mark may impact program performance and perceptions of the program.”

“Operations: Implementation challenges are likely to occur in the first months of any new program. Such challenges can affect public perception of the program, and may poison the well for other statewide readiness activities during Year 0 of the All Payer Model agreement.”

What incredibly refreshing honesty!

In fact, it is a more refined way of saying what I have said for a while about the All Payer Model. There are clear possibilities that it will not result in the hoped-for savings. But it is something that seems rational to try, and certainly better than doing nothing while the costs of healthcare skyrocket beyond reach.

The governor’s decision to do this test run first will allow us to back out if it does not demonstrate good outcomes.

Our committee will also be watching the implementation process closely.

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Affordable Care Act

Major changes to – or total repeal of – “Obamacare” would have a profound impact on health care in Vermont. Our uninsured rate dropped from eight to four percent under expanded eligibility for Medicaid and with the premium assistance for Vermont Health Connect insurance plans.

If that rate moved back up, we would see the impact in areas such as “free care” provided by hospitals; it’s not actually free, as the cost is shifted to other payers, so it would show up in insurance rates.

Some key provisions that could come to an end would be the ban on annual and lifetime limits on essential health care and the ban on copays for preventive care. It could also bring an end to the annual maximum amount that someone has to pay in co-pays or deductibles. Those protections do not exist in Vermont law.

One well-known (and popular) part of the ACA is its ban on excluding coverage of pre-existing conditions. When you enroll in an insurance plan, it can’t tell you, “no coverage for your diabetes; you already have it.”

There is a rational reason for this traditional exclusion. Expecting coverage is sort of like saying you should be able to buy car insurance and have it pay for the fender you crumpled the week before.

If you could get health coverage for an expensive illness after you get the illness, why would anyone bother to buy insurance until they are already sick? And if the only people buying insurance are already sick, that insurance is going to be extremely expensive. It defeats the whole point of sharing risk by having a large group pay into a pool for those who end up needing it.

The Affordable Care Act addressed that problem through the (very unpopular) insurance mandate. If everyone is required to have insurance, there is no longer the problem of having people only get coverage after they are sick, so “pre-existing conditions” are no longer a problem to cover. So these two provisions really need to go hand-in-hand.

President Trump has already directed the IRS to stop enforcing the individual mandate. (It is enforced through the health insurance coverage form required with your tax return.) That places the ban on exclusion of pre-existing conditions in jeopardy.

That is one feature Vermont had in place, in part, before the ACA, so we could restore it. We required a new insurance plan to cover pre-existing conditions as long as a person had been maintaining insurance coverage at least up to six months prior.

That protected people who did have coverage, but needed to change plans, for example as a result of a job change.

What remains unclear for now is what other protections we could, as a state, preserve.

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Budget Pressures

A major budget pressure this year is the crisis in our mental health system. Patients often wait for days – yes, multiple days – in emergency rooms because no hospital beds are available.

We held a joint hearing with the Senate Health and Welfare Committee last week to hear from front line workers about the severity of the problems, which includes the lack of capacity for geriatric psychiatry for elders, lack of adequate staffing, and lack of resources for mobile crisis services.

Some of the most compelling testimony came from staff at Central Vermont Medical Center and the Vermont Psychiatric Care Hospital.

Our committee will be making recommendations to the Appropriations Committee for the budget that is currently in development, as well as in further review later during the session.

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Bills in Committee

We have identified five bill proposals that are priorities for testimony and consideration in our committee:

-          Copays for physical therapy. A proposal to limit insurance copays for physical therapy to the same as primary care. The theory is that encouraging the use of physical therapy may prevent higher-end health care costs, such as surgery.

-          Worker’s comp coverage for PTSD. If a person has a diagnosed condition of post traumatic stress disorder that resulted from an occupational hazard, why would it not be covered in the same way as other work related injuries or illnesses? A first responder coping with having intervened in a horrific tragedy comes to mind, and this is not currently covered.

-          A commission for in-depth post-incident reviews of mental health crisis responses that result in death or serious injury. This review of law enforcement and mental health crisis worker efforts would focus on the background and causes of such outcomes. We can learn a lot when, instead of pointing fingers, we look at what might be done differently in the future. We already heard testimony from law enforcement agencies and advocates very supportive of this bill.

-          Allowing consent by a minor for mental health counselling about sexual orientation issues. This waiver already exists for getting treatment for substance abuse or sexually transmitted diseases. If a teen would avoid getting help rather than allowing parents to know the situation, likely even the youngster’s parents would prefer that getting treatment came first.

-          Suicide data review. This bill would direct the Department of Mental Health to review suicide deaths in Vermont to look for causes, similarities, or trends -- something not currently done. Our rate of death by suicide is 30 percent higher than the national average. It is hard to address a problem without knowing, “Why?”

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On the House Floor

Last week, the Judiciary Committee presented a bill on a new crime that bans “open and gross lewdness.” It is being created as a lesser offense than the current crime of “open and gross lewdness and lascivious behavior.”

Problem: we have no definition in current law for the existing, “lewd and lascivious” conduct, let alone segmenting out when it is merely lewd, but not lascivious. According to the legislator reporting on the bill, it is simply recognized based on social norms.

(Dare I say it comes under the standard, “I know it when I see it?”)

That hardly gives a fair warning about what conduct might get you arrested for a crime.

My questions brought a round of “no” votes, but the bill still passed.

Afterwards, new legislator and retired judge Ben Joseph, who sits adjacent to me, leaned across the aisle both literally and figuratively to tell me that he thought my points were exactly correct.

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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, at the statehouse at 828-2228, or at this email at counterp@tds.net