Saturday, March 28, 2020

March 28, 2020 Legislative Update


It seems almost inconceivable that my last update was only two weeks ago, because our world has changed so radically since then. That Saturday morning, I wrote:
“As I stood up on the House floor early Friday evening to report the emergency response bill from my Health Care Committee, I shared that it felt a bit odd to talk about a crisis based on two people being sick in all of Vermont. But I pointed out that the time to make sure the lifejackets are on hand is when the boat springs a leak, not when it is sinking.”
That evening, we closed the legislature for a week. This past Wednesday, we declared a legislative emergency in effect through May 1. We also voted to pass our COVID-19 emergency legislation, which had finally arrived back from the Senate with its recommended changes. The Governor is expected to sign it Monday.
The interim two weeks have been a blur of lost days, with countless hours listening in on phone conferences and hardly ever getting out of the chair in my home office. I’ve never been much of a Facebook user, but suddenly I was on it constantly, trying to pass on updates from the various state agencies on school closings, business closings, unemployment, and health care.
I’m grateful to Front Porch Forum, which eliminated its monthly cap on postings for legislators providing information to their towns. It has really expanded its vital role as a communications base for many folks.
This past week, my House Health Care Committee began to meet remotely to assess what essential work needs to continue, and what bills should be abandoned for now. It’s a learning curve to watch oneself and one’s colleagues on a laptop screen, gallery-style, knowing that same screen is live streaming on YouTube.
It feels more public and transparent to be sitting in a room surrounded by chairs occupied by any member of the public that walks in. Yet now, anyone can turn on a computer and watch the proceedings; we just can’t see them.
(If you want to try it, go to the legislative web site – legislature.vermont.gov – and choose the “committee” drop-down tab. Pick a Senate of House committee and check its agenda to see when it meets. The “live stream” link is right on the committee page.)
We can’t meet as often, because the IT capacity only allows for a certain number of committees to function at the same time, so we are tightly scheduled.
Our first two meetings this week were focused on getting updates from the administration on the efforts to increase health care access during the pandemic, and to prepare for the near-certain surge to come.
One of the most important updates was about the new “open enrollment” period for Vermont Health Connect: the ability to sign up between now and April 17 if you do not currently have insurance (usually, it would require waiting for the annual enrollment period in the fall.)
If you lose health insurance because of job loss – or even if your premium is now far too expensive because of reduced income – there is never a waiting period, so it’s important to check your options on Vermont Health Connect.
Your new eligibility could include Medicaid or a very substantial premium reduction. Call 855-899-9600 or (particularly because there may be a phone backlog that develops) go to https://portal.healthconnect.vermont.gov/VTHBELand/welcome.action.
***
Non-spoiler alert: this next section is going to get deep into the weeds of inner workings of House processes, so unless you are a person fascinated by process, you might want to stop reading now. The big explosion last week in the House made for splashy news coverage, but the real story was far murkier than the headlines suggested.
But if detailed machinations of politics intrigue you, then I wrote this for you.
As a member of the House Rules Committee, I was deeply involved in the challenging discussions about shifting our entire legislative process from the House chamber to a system of remote participation and voting for 150 members.
Once it became clear that we would not be able to return to Montpelier and go about business as usual in a week, or even a month, conversations began about those alternatives.
Our state constitution itself says that the General Assembly shall not reconvene “to any other place than that in which the two Houses shall be sitting,” and that, “The doors of the House in which the General Assembly of this Commonwealth shall sit, shall be open for the admission of all persons who behave decently, except only when the welfare of the State may require them to be shut.”
In order to meet through remote technology, we had to temporarily amend our House operating rules, and do so in a way that upheld not only the words of the constitution, but also our own oaths taken as stewards of a representative democracy.
Would it even be possible to debate bills, question other members, offer amendments, and vote – in short, to do our jobs representing our constituents -- from a computer screen?
Within the Rules Committee, a divide emerged. The four Democrats, headed by the House Speaker, believed that technology was more than adequate to the challenge, and we should be able to handle any business at hand. We would be “conducting our business” from the House floor, as required, but participating from afar.
The three Republicans believed that debate and representation would be seriously impaired. We agreed that there were critical bills that had to be addressed, and that it would be a public health issue to meet in person, but felt that remote proceedings should be regarded as a limited emergency response only to address essential bills.
The phone conference on Tuesday last more than five hours, and at one point, it seemed that we were stalemated, because the Speaker was not willing for the resolution effectuating an emergency rules change to be limited in any way in terms of the number or type of bills that would be voted on remotely.
So why not just outvote the Republicans, and push the change through on a 4-3 committee vote to bring it to the House floor?
The problem was that we needed to reach consensus: 100% consensus among the entire 150-member House.
No one wanted the entire House to reconvene for a vote on the two issues that were in front of us (the rules change, and the COVID-19 bill), given the status of the coronavirus spread. Yet we could not change the rules to vote remotely without a vote to do it, on the House floor.
There is a technical way to proceed – assuming complete consensus. A quorum is assumed to exist if no member rises to challenge whether there is a quorum. But if it is challenged, then members must be counted, and at least 76 of 150 must be present.
We have never, in my years there, actually taken action without a quorum. We sometimes have what is termed a “token session.” We schedule to meet on a Monday (when the legislature is usually closed) in order to move the notice calendar and not lose a day. The House is gaveled to order, and is immediately gaveled out. Only the one person gaveling needs to be there, but it results in moving the bills from the notice calendar to the action calendar for Tuesday.
By longstanding tradition, one other person always attends: a representative of the minority party for that session. That is because if there was no one present to ask the magic question – “Madam/Mister Speaker, do we have a quorum?” – then in fact, that single presiding member could pass a whole stack of bills. The quorum, unchallenged, is assumed and the actions are valid.
In the extraordinary circumstances we faced this past week, we needed to take a vote about changing the rule to permit remote voting, yet wanted to act without an actual quorum in order to avoid having a large group of people gathering in Montpelier to vote. Thus, the only way to achieve it was that full degree of consensus.
So, we kept looking for a way to reach agreement. The Speaker remained adamant about not limiting what bills could be addressed by remote vote, and I knew we had members who would never support an unrestricted rule change. (And I was among them.)
The Speaker was convinced that after some trial runs, in a few weeks when we had the first of our new bills ready for a vote, members would become comfortable with the technology and feel confident in their ability to meet their constitutional obligations.
Voting to make the change this week, however, would in effect make it irreversible on the part of any minority members who remained unpersuaded. Yet not voting this week would mean having to convene again, even if only a few people.
I proposed a compromise: vote this week with the members “in person” (unofficially present, for the non-quorum vote) to authorize a later vote in which everyone could participate remotely, and which would ratify the rule change as long as ¾ of the members agreed.
In that way, the Speaker would have the opportunity to have practice sessions proceed but not have to return for a vote later, because the ratification vote would be authorized to be, itself, a remote vote.
Even though the resolution would still have no limitations on the type of bills that might be addressed by remote voting, I felt the ¾ vote would protect those who were most worried about the ability to function fully, because it would require far more than a simple majority to force the change upon them later.
There was pushback to make it a 2/3rds vote, but I was not willing to go further.
I knew that left me with having to convince those members in my caucus that this was enough protection for them that they would agree to proceed with passing the resolution this week. Otherwise, any one person could block the compromise by showing up and asking whether there was a quorum.
(I warned you that this report was deep into the weeds of process. But it was more than process. Core constitutional principles were also at stake.)
It was now Tuesday evening, and in fact the Speaker’s email to all members to explain this brand-new proposal did not go out until just after midnight, with the House scheduled to convene (without a quorum) and vote at 1 p.m. on Wednesday.
We had, of course, ended up with a proposal to enact a resolution that would authorize a remote vote on the issue of whether we could vote remotely. I didn’t think of it in exactly that way, but it was the actual effect.
For one member, this whole series of events crossed a line of any acceptable or constitutional process.
So, when the dozen or so of us gathered in the House chambers to vote – acting on the faith of those who accepted what we were going to do on their behalf – that member stood up and asked, “Madam Speaker, do we have a quorum?”
It stunned everyone, because there was no warning that someone was planning to not collaborate in the staged process. It was also a surprise because the objector was a member of the Speaker’s own party.
But I know that if I had felt as she did, that we were about to enact a rule that violated my constitutional oath, and to do it without even having a quorum present, I would have done the same thing. In fact, if we had not reached the ¾ vote compromise, it could well have been me, standing there.
This member was publicly lambasted and later penalized (she was demoted from her committee) for placing the public health at risk by forcing a quorum of legislators to come from across the state to gather in the chamber and vote.
What she did, the Speaker said, was to “put principle above public health.”
Perhaps. But then again, maybe the health risk was not overwhelming given that the 80 or so members that quickly assembled were able to spread across all points of the large chamber and then leave again quickly after the vote.
The day before, the Senate gathered a 17-member quorum in its much smaller chamber to vote on our COVID-19 bills and chose not to authorize remote voting. They will have to return again to vote out any other bills, or for any future rules change.
We also did not have to vote for that resolution, at that time or even that day. The Speaker could have reconsidered whether the member’s objections were sound; we could have looked for further compromise. It was her decision to move forward by calling in the troops.
And principle, especially constitutional principle, actually matters, a lot. As someone else noted later, “All too often in times of crisis we are willing to allow our rights to be diminished in the name of safety or expediency.”
Finally, achieving the vote Wednesday did not actually bring about a full solution. The Speaker still will have to convince ¾ of the membership that they can effectively represent their constituents using remote technology.
Otherwise, it will be back to square one to hammer out a new agreement – which will itself require a new, in-person vote.
***
Feel free to get in touch any time with Rep. Goslant and me. There is a lot going on, so if you have questions about something – ask. If we don’t know, we can find out for you. It is an honor to serve you. (kgoslant@leg.state.vt.us; adonahue@leg.state.vt.us)


Saturday, March 14, 2020

March 14, 2020 Legislative Update


As I stood up on the House floor early Friday evening to report the emergency response bill from my Health Care Committee, I shared that it felt a bit odd to talk about a crisis based on two people being sick in all of Vermont.

But I pointed out that the time to make sure the lifejackets are on hand is when the boat springs a leak, not when it is sinking.

That is what the governor was saying at his press conference at almost the precise moment that I was speaking.

Getting ahead of this can reduce how severely we might be affected. The more we learn how quickly the novel coronavirus can spread without detection, the more we recognize that steps taken to reduce that hidden spread now, are essential.

That was as I spoke, Friday; now, as I write, the news has just broken of three new cases in Vermont, including the first in Washington County. That will undoubtedly continue to grow.

And would widespread illness with COVID-19 be all that bad for most of us? No; we might never even show symptoms, or just have mild ones. It is far less severe than epidemics we have faced in the past.

For highest risk individuals, however, the death rate may be as high as 12 to 17 percent, Vermont’s Health Commissioner told us at a special hearing earlier this week. All of us, as a community, need to take the steps we can to protect our friends and neighbors.

Up until midweek, my committee was working hard at finishing important bill for this session, since the “crossover” deadline was Friday. Anything not out of a House committee and en route to the Senate by then would be dead for this year.

We reversed course on Thursday, with all hands on deck to identify the kinds of steps that should be in place, if needed, to keep Vermonters as safe as possible.

Knowing that we, too, needed to close down operations indefinitely to prevent spread of the virus meant that we had to have in place the tools that might be needed under an assumption that we would not be there to pass further emergency bills.

(We officially closed for only a week. We will only know on a week by week basis, however, whether that will need to be extended.)

So what did our 25-page bill propose? This is an outline of the types of steps it would establish. (The trigger for the authority it gives was an emergency declaration by the governor, and by the time we passed the bill, that trigger had just been pulled.)

Provider Solvency

Taking care of Vermonters means taking financial care of those who care for us. Much of our health care system operates on fairly slim margins.

If a health clinic is suddenly seeing many fewer patients because they are staying at home, it loses its billable revenue. With only a few weeks cash on hand, that could result in closure.

So, the bill includes giving our state Medicaid agency authority for steps such as prepaying claims or providing other advance payments, when deemed necessary.

Empty beds at a nursing home because multiple patients are hospitalized? Reimbursement for the empty beds could be continued.

These are just a few examples of the emergency provisions in this category.

Access to Care

Our state’s insurance oversight agency would have authority to direct insurers to waive or reduce co-pays and deductibles related not just to testing (no-cost access is already in place for anyone who requires testing), but for treatment of COVID-19, and to modify or suspend deductibles for any prescription drugs.

Insurers could also be required to reimburse for services provided by telephone. If your doctor was herself quarantined, we need her to be able to function providing patient support.

Medicaid and private insurers would need to permit pharmacy refills in advance of the usual time frame, so that patients can get refills early enough to have what they need on hand if they are quarantined.

Pharmacies would be permitted to extend maintenance prescriptions without a prescription renewal. (If your doctor is swamped with COVID-19 patient care, we don’t want him to be distracted by paperwork to renew the prescription you’ve been on for 10 years already.)

It is worth noting that some of these steps have already been taken by many insurance companies on their own initiative.

Licensing and Regulation

The Board of Medical Practice and Office of Professional Responsibility helped us to identify where they might need emergency authorities.

Provider workforce shortages are a very real threat in an epidemic. The bill allows for actions such as expediting licenses for health providers who are retired, to come back to work, or to allow provider “scope of practice” to be wider than normal.

 Across the board, the Agency of Human Services would have the authority to waive regulations if needed to allow necessary services to continue under a reduced workforce and a need for flexibility.

A crisis is not the time to fine facilities that fail to maintain a particular record keeping requirement when it needs all available staff to be providing direct care.

Human Services

Rather than drafting separate bills, our committee incorporated issues that other committees brought to us. The authority to waive aspects of credentialing or facility regulations, for example, extends to teacher licensure requirements and child development providers.

The authority to waive other regulations extends to all areas of the Agency of Human Services.

Food support programs that are funded based on specific regulatory criteria, such as senior center-based or school meals, or that are limited to certain eligibility groups, can be adapted to meet needs.

We even slipped some motor vehicle law pieces into our bill – it has all become public health related. Those involve flexibility on license renewals and a “free pass” for expired inspections.

Immigrants

The state has no authority to suspend immigration law, but we wanted to underscore the need to ensure that no one feel a barrier to being tested or treated to prevent further spread of the virus.

Legal immigrants who are subject to rules that could have their status revoked because of using public services, or undocumented immigrants who could fear that federal authorities might use the crisis to have agents stationed at health care facilities, need assurances that our nation’s priority right now is public health.

I headed up the drafting of a resolution requesting that the federal administration repeat its actions at the time of the water crisis in Flynt, Michigan and in several recent hurricane emergencies by declaring that health care facilities are protected zones from immigration enforcement.

This, like our overall health emergency bill, passed unanimously.

Employee Protections

We passed a separate bill brought by our Commerce and Economic Development Committee to try to intercept some issues with unemployment law to help protect employees, who face potential financial crises if they lose work or work hours.

The bill would amend unemployment laws so that an employee who needs to leave to take care of an ill family member is not counted as “voluntarily” leaving and thereby disqualified from unemployment benefits.

It also ensures that an employer does not have its “experience rating” impacted (rates increased) because of payouts resulting from COVID-19 due to quarantines or illnesses. Such experience rate increases could devastate a small business if there are widespread outages.

In addition, banking institutions met with that committee to ask legislators to pass the message on to our constituents: your banks and credit unions will stay open. That is federal law. You will have access to them.

They encourage anyone facing an issue such potential late mortgage payments due to lost income to get in touch with your financial institution as early as possible.

A Symbolic Bill?

Despite the intense work of those two days, some of it may just appear duplicative of authority the governor already has in an emergency.

In addition – something that stunned House members – the Senate went home long before we passed our bill. It cannot move forward or become law until the Senate returns to act upon it.

There were a number of important reasons for the House to move forward.

First, waiting to call back our body of 150 to pass emergency legislation at a future point is far more difficult (from the health safety perspective) than reconvening the 30-member Senate to finish up on our completed work.

When the Senate reconvenes, potentially by next week and still before implementation is needed, these measures will be prepped and ready for its action.

In addition, although the governor’s authorities when an emergency declaration has been called are very broad, they are not unlimited. We want to make sure there isn’t a missing piece that ties his hands for necessary steps.

In some ways, one of the most important aspects is in reassuring the governor that we’ve got his back. He takes on massive direct authority, essentially usurping the democratic process during the course of an emergency.

We voted Friday night to say, “We believe you need the clearest of authority to act where needed, and as the legislative body, we endorse and support your actions.”

Having all hands on deck – or rowing in the same direction – really matters in both the efforts to head off the worst potential outcomes and to be ready to act if needed.

I’m proud to live in a state where we recognize that. A massively Democratic legislative body told our Republican governor, “We’ve got your back.”

***

Back to the Basics

For up-to-date and accurate information – state and national – the place to go is healthvermont.gov/covid19. If you have specific questions, call 211.

If you feel you may have been exposed or have the key symptoms (fever and cough), stay home and call your health provider. If you are short of breath, go to the emergency room but call ahead first.

Wash your hands often, counting off a full 20 seconds. Avoid travelling to congested areas. You can be carrying the virus and passing it on to others, completely unawares.

This is the time for us, in our individual actions, to be acting on behalf of our whole community.

***

Feel free to get in touch any time with Rep. Goslant and me. It is an honor to serve you, and we want to help in any way we are able during this public health emergency. (kgoslant@leg.state.vt.us; adonahue@leg.state.vt.us)