Legislative Update February 16, 2019

Rep. Anne Donahue

Legislative Update

Feb. 16, 2019

The Appropriations Committees (House and Senate combined) will be holding hearings on this year’s budget proposals. Unfortunately, the “community-based” hearings aren’t very accessible to Northfield and Berlin residents. Presumably that’s because those nearer Montpelier can come in person to the “advocate hearings,” although those are being hosted only by the House.

The joint hearings across the state are scheduled for Monday, Feb. 25 from 6 to 7 p.m. in Morrisville, Rutland, St. Johnsbury, St. Albans, Winooski, and Springfield.

The House hearings in Room 11 at the state house are this Wednesday, Feb. 20 from 1 to 2:30 p.m. regarding budget sections for the Agency of Human Services, and Thursday, Feb. 21, 8:30 to 10 a.m. on all non-AHS sections. Although these are listed as “advocate hearings,” meaning for advocacy group testimony, they are open to any members of the public.

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Budget and Health Care

My committee has the responsibility of making recommendations to the Appropriations Committee on the budget areas related to health care. There are no real “headliners” in these areas this year, but that absence is creating concerns for us.

The governor’s budget proposes no major program cuts, but also does little to help address health care access and affordability or to respond to the crisis in access to mental health care. This crisis has received a great deal of attention because of the resulting burdens on emergency rooms that have patients waiting for days for care, to say nothing of what it does to those patients.

As I discussed in my last update, we are wading our way through many sticky, technical issues affecting the health insurance marketplace: the factors that can impact how quickly rates can rise.

Staff from the governor’s office presented testimony last week on some insurance affordability ideas that could be explored over the next several years, but would have no immediate impact.

There is a really striking graphic that shows how unequal the current cost burdens are. The concept that people should not have to pay more than certain percentages of their income for health insurance falls apart rapidly for those who are just a little bit above the level of eligibility for a subsidy.

The subsidies are also only available to those who do not receive “affordable” employer-sponsored coverage – but strikingly, affordable under that federal definition can actually translate into as much as 15 percent of family income.

Single parents or individuals can end up having to pay a higher percentage of their income than couples if they receive a subsidy, while couples with the same household income pay a vastly higher percentage after they are no longer eligible. At the “cliff” when reaching 400 percent of the poverty level ($66,000 for two people), the very cheapest coverage cost $11,000 for two people, without counting the very high co-pays included in those plans.

We are clearly not achieving equity principles. There are at least two interesting ideas in bills that other members have submitted and I hope we’ll take a look at them. One would require small co-pays from those who get full coverage under Medicaid and transfer the money for more equitable subsidies; the other would look at what we might be able to do by teaming up with a regional multi-state effort.

The one budget proposal that does affect costs is one that could drive them up. Our state regulators of hospital budgets and insurance rates get their budget funded partially through billing those who get regulated (the hospitals and insurance companies) and partially through state funds that are matched with federal funds.

We’ve got a big problem with the goose that lays our golden eggs for health care. (We get a lot more for health care from the feds than we pay in with all our taxes – in other words, other states subsidize us.)

We have a deal with the federal government that allows us flexible use of matching federal Medicaid money for a wide range of investments, as long as it stays under a cap. The cap is based on the federal money we would have been entitled to for regular Medicaid spending if it was not for the creative improvements we make with that flexibility.

We’re almost at the cap. The goose is running out of eggs. We have to prioritize where we spend them.

So the budget for the Green Mountain Care Board (the regulators) proposes to reduce the state and federal funds used, and replace them by billing more to the hospitals and insurers. The problem: our non-profit hospitals and insurance companies don’t actually pay those bills; we do, through higher prices.

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Turning to Mental Health

The Department of Mental Health issued a report to us in mid-January stressing the need for both expansion of psychiatric inpatient beds and for more community services to help prevent people from reaching that level of need.

The University of Vermont Health Network is looking at a 25-bed inpatient expansion at Central Vermont Medical Center. The DMH budget proposes only a 6-bed expansion of supported community residences. That’s a disconnect.

There was a lot of media last week about DMH investing $17 million more into school-based mental health supports to help prevent later, more severe problems. That’s false accounting. That money simply funnels through DMH from local school budgets in order to obtain federal matching funds (part of that “flexibility” deal we have.)

Finally, DMH is proposing to eliminate the funding for supervision in emergency rooms that it started supplying when the ER delays began after Irene.

I firmly believe that all health care costs belong within our health care reimbursement system, including Medicaid, but not funded through separate state money that doesn’t include other insurers. That includes for mental health care.

However, there is one small subset of mental health care that carries a unique cost. For about 10 percent of psychiatric admissions, the state has stepped in and mandated health care that individuals do not request or want: involuntary care based upon “danger to self or others.”

(Sometimes the focus on this small number obscures the fact that most people with a mental health care need want help, just like people with any other health care need.)

Because it is state law that is requiring involuntary care, I think that the costs attributed to forcing people into care – such as staffing to prevent them from leaving the emergency room – is a uniquely state obligation. We should not be transferring this cost to our hospitals.

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Paid Leave, Minimum Wage

Major bills working through House and Senate are those to increase the minimum wage and to create a mandatory paid leave insurance program. Balancing factor questions: will these help attract and retain our workforce and improve financial stability for families? Or will they stall economic growth, increase tax burdens, reduce jobs and hurt the people they intend to help?

Those are the debates on the imminent horizon. I am looking to what those bills will look like when they reach the House floor, any new insights since we debated them a year ago, and constituent input in considering what direction is in the best interest of Vermonters.

Speaking of “what they look like when they reach the House floor,” it is worth noting that 800-plus bills get introduced each year, 100 or so end up being passed, and many are never even taken up. So when you hear in the media that such-and-such has been proposed in the legislature, it is usually premature to either panic or rejoice.

Even when there are reports that a bill has been passed, it usually means it has passed either the House or the Senate – but not yet both. The deadline this year to get through at least one body, in order to even be considered by the other, is March 15. There are always exceptions, but generally speaking the failure to meet this “crossover” deadline means continuation of the bill’s path forward will be delayed at least until next year.

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Word Games

Despite all the weightier subjects before us, much attention this week will be on the debate of H. 57, the abortion bill, which passed the Judiciary Committee on Friday and is expected for debate on the House floor on Wednesday and Thursday.

It’s had a lot of rewording, and the final version makes even more explicit what I described previously. The bill creates no new law (or expansion of legal access) than what has existed before; it also creates no new protection that does not currently exist, regardless of whether Roe v Wade were to be overturned.

Does that include the right to abortion until the moment of at least partial birth? Yes, that’s the current status in Vermont, since we have no limitations in law. Some argue that since such late abortions never actually happen currently, it doesn’t matter that we are passing a law that says there is a right to access them – a somewhat curious perspective on the rationale for passing laws.

Ultimately, it isn’t a bill that changes anything, but it is a bill that forces legislators to endorse the current status, or to oppose it. Since I do not endorse the current status, I will vote no.

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It is truly an honor to represent you. Please contact me with your concerns and thoughts; I’m best reached via email at adonahue@leg.state.vt.us.

Legislative Update, February 2, 2019

Rep. Anne Donahue

Legislative Update

Feb. 2, 2019

There is a public hearing scheduled this week (Wed., Feb. 6) on the subject of H. 57, a bill titled as “relating to preserving the right to abortion” that is now being reviewed in the House Human Services Committee. It’s set from 4:30 to 6:30 p.m. in the House chambers.

An abortion bill controversy in Vermont? Why in the world at this point in time?

The sponsors are saying that we need to protect a woman’s right to choose, given the current makeup of the US Supreme Court and the fear that Roe v Wade might be overturned.

Roe v Wade and the decisions after it identified what can, or cannot, be restricted in terms of access to abortion. There are restrictions that are constitutionally permitted (but not required); for example, after a developing fetus reaches the age at which they could survive outside the womb, termed “viability.” If Roe v Wade were partially or fully overturned, more restrictions might be permitted by different states’ laws.

However, Vermont currently has no restrictions. Thus a change in US Supreme Court rulings would have no effect whatsoever on the laws of Vermont. The only restriction Vermont law ever had was thrown out by the Vermont Supreme Court in 1972, a year before Roe v Wade.

As former Vermont Law School Professor Cheryl Hanna wrote in a Seven Days column in 2005, “If Roe is overturned, the Vermont State Legislature could arguably criminalize abortion for both women and the professionals who perform them. If such a law came to pass, it would be instantly appealed to our Vermont Supreme Court. Given the … [1972 Vermont case] it's likely the Court would rule such a law unconstitutional.”

If the newly proposed bill passes, it would create no new rights that do not already exist in Vermont, but also would do nothing to prevent a different, future legislature from making a change such as Hanna was referencing, because a future legislature can always change any existing law.

The flag-waving over this bill reminds me a bit of the parent who “rescues” their child from a monster under the bed, and becomes a hero to the child. The monster that this bill would save us from -- a threat to abortion rights in Vermont – doesn’t exist, but plenty of legislators want to be the hero that vanquishes it.

The bill is actually having a different effect. It making some people realize for the first time that in Vermont, abortion is legal at any time during pregnancy, right up until the moment of birth. It goes far beyond the requirements of Roe v Wade, and there are many who are generally pro-choice who are uncomfortable with that extreme.

That’s what is creating new controversy. A law that would actually change nothing at all is being vigorously supported under the false belief that is it necessary for protecting women’s rights, and is being vigorously opposed under the false belief that defeating it would protect against third trimester, post-viability abortions.

It is, however, a warm-up debate for something much more significant. It is generally expected that a proposal is imminent for a constitutional amendment in Vermont that would explicitly say that human personhood does not begin until birth and that abortion is a right up until birth.

That would begin a multi-year process. A constitutional amendment requires a bill in the legislature then re-affirmation in the following legislative biennium, followed by a statewide referendum.

What has long disturbed me in this debate is the way that both sides ignore the truths that exist from the opposing perspective, as if those truths would defeat their own position.

The fact is that a developing child in the womb is not like any other life, because its continued growth depends upon the body of a woman for its sustenance. It is, in the truest sense, encroaching upon that woman’s own bodily integrity. That issue cannot be tossed aside.

On the other hand, this is not the same as cancer cells that are invading a body. They are the cells of a genetically distinct human life, which is wholly vulnerable for its survival though the safety and nourishment provided by being attached to its mother.

That becomes the true debate: at what point is a person obligated to sustain the life of another person against their will?

If we focused on that question, there might be a better understanding of the competing values at stake, regardless of which value each of us placed first.

I don’t think criminalizing the actions of a person wants to reclaim their body will ever be a solution, but I also strongly oppose the characterization of abortion as being merely an issue of “reproductive rights.”

And I would never vote for any law that establishes – as H. 57 does – that “a fertilized egg, embryo, or fetus shall not have independent rights under Vermont law.”

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This Year’s Budget

The presentation of the Governor’s budget doesn’t mean legislators know much about what’s in it yet beyond the same headlines the public read. That will take many committee hearings of drilling down into budget line details: what areas are proposed for cuts? Where are the “upward pressures”?

I was struck by the absence of any mention of health care in this year’s address. I buttonholed the Governor later to ask about it. He explained that he felt the focus needed to be the issue of our workforce crisis, but that there are, indeed, health care initiatives that he will be bringing to my committee.

We are facing two ongoing issues.

The first is access, which translates mostly into affordability but also includes the issue of shortages in the health care workforce. While we can all agree that everyone should be able to access the health care they need, the “how to” menu is far-reaching.

The proposal for a tax-supported universal system for primary care is back this year (the bill died in House Appropriations last year), but there are also complex, interconnected issues regarding health insurance products.

The core concept of health insurance is, of course, that we all spread the risks of serious illness. Only some of us will get cancer; no one can afford to pay for cancer treatment on their own; if we all contribute to a pool of money, it will be possible for those who get cancer to afford to get the treatment.

One of the tricky pieces is the question of who is in which pool of risk. If everyone is in, the cost is spread evenly. But if you are 30, you have a much lower risk of getting cancer – or of almost any of the highest cost illnesses.

So if you are paying into the same insurance pool as a 60-year-old – both of you are paying the same price for insurance – your insurance is going to be much more costly than if you were in a pool with only those who were 30 or younger.

It’s no surprise that while our rate of uninsured folks in Vermont is almost down to a mere 3%, by age group, the 25-to-35-olds are at 11%. They look at the odds of getting sick and the cost of chipping in for everyone else, and some decide it isn’t worth it.

The result of that, of course, is that everyone left in the pool has to pay a little bit more. In addition, if those gamblers do get sick, they are likely to still end up getting care with costs borne by the rest of us.

Because of changes in federal law, my committee is going to be sorting our some very technical issues that relate to whether certain healthier groups can form their own pols, making insurance more affordable for their group, but stranding others.

Saying it that way might make it sound easy (why would we let some people strand others?), but part of the problem is that federal law already allows many groups to carve themselves out. Who gets to be in or out? And what happens to the remainders?

And as costs rise, even if more people are now insured, there are also more who are getting insurance that only helps pay for care at very high costs. That leaves those folks with most of their care still being unaffordable.

Our second big health care issue needs little introduction by now: it’s the question of access to mental health services. The key symptom of our crisis in this area is the fact that Vermonters often waits days, or sometimes weeks, in an emergency room waiting for a needed inpatient admission.

The administration reported to our committee a week ago that it is clear that we need both an expansion of the capacity for inpatient care in Vermont as well as an expansion of community supports. (Community services can prevent a crisis that lands someone in an emergency room, and also enable people to be discharged from a hospital sooner.)

Planning for adding inpatient beds – a multi-year process -- is underway by the University of Vermont Health Network; community capacity is usually overseen by the Department of Mental Health.

Since no new initiatives were announced as part of the Governor’s budget address, our committee will be waiting for more information on how the state plans to increase those services in the budget year ahead.

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Drugs and Guns

Most of the work of the legislature is on intricate details of laws that affect our lives in multiple ways: how is health care financed and delivered? Which government services should be funded? How do we create equitable tax laws? What do we expect of our education system?

Every one of our large, public policy issues break down into literally hundreds of smaller questions that must be translated, word by word, into legislation. Very few of them make for good headline news.

But abortion – guns – drugs – those capture our attention.

Marijuana will be back this year. Last year we made it legal for individuals to possess and grow small amounts for personal use. Now the question is whether we should allow it to be sold as a regulated substance, like alcohol, with taxes to offset the costs of both regulation and public protection.

In concept, I supported the idea that it should not be illegal to make private use of pot, and in concept, I don’t support turning it into an industry of sales and profits.

But I voted against legalization, because we didn’t develop a law that kept use truly limited to private possession. Proposals I made to prevent use around kids were rejected; there were gaps for highway safety issues; and of course, no money to address areas of concern.

I find myself more likely to vote in support of a “tax-and-regulate” system, because now that we have chosen to make it legal, it is likely the only we can improve the oversight and control of uses.

A lot will still depend upon what a final bill looks like when, and if, it makes it to the House floor. The Senate is currently working on the details of what it will propose to us.

Guns will be back again this year, as well.

Last year’s focus was on reacting to a very specific issue: a perceived mass shooting threat in our own state. Now, other proposals that did not get attention in past years are re-surfacing.

I do not struggle with either the concept that we hold a constitutional right to own guns, regardless of personal tastes or fears, or that there are circumstances where that right can be restricted. It’s easy to conclude that the state has the right to take away a gun from someone aiming it at someone else.

Last year’s bills ran the range from those that rationally restricted rights based on a demonstrated risk of harm, to those that proposed restrictions based more on fear alone. I supported “extreme risk” orders that remove gun rights from persons who show a direct risk, as well as domestic violence restrictions.

I did not support age restrictions, magazine limits, and private sales restrictions where there was no demonstrated connection to actual increases in public safety that outweighed the burden on individual rights.

Some of this year’s proposals appear easy to assess. To my technologically-unrefined mind, creation of guns that cannot be traced by using a 3-D printer seem like fantasy-world, but certainly should not be legal.

Others are much tougher. Where does the balance fall when assessing “waiting period” laws that bar purchases in the interest of protecting against impetuous actions?

Your input on tax-and-regulate marijuana and on assorted gun restriction proposals, as they emerge into specific bills this year, will be welcomed.

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It is truly an honor to represent you. Please contact me with your concerns and thoughts; I’m best reached via email at adonahue@leg.state.vt.us.