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.

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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.

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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)

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.”

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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.

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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)

Legislative Update, February 15, 2020

We’re approaching the major shift when the detailed work of committees begins to emerge as proposed bills to be debated on the House floor to send on to the Senate. (Per the old saying: it is not the beginning of the end, but it is the end of the beginning.)

This means that the thinking on some of the big priorities for this year are becoming visible; in particular this past week, the responses to climate change.

The first stage of budget review in the Appropriations Committee is also ending. The committee has walked through all of the governor’s proposals and identified the gaps and areas for discussion and potential disagreement.

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Budget Issues

In the opinion of the Appropriations Committee, the legislature has not been presented with a balanced budget proposal. That response is pretty typical in any given year.

When the “squishy” numbers involved in trying to get to a bottom line are removed, revenues and expenditures don’t align. Ultimately, what we pass will have squishy numbers of our own, with a budget partially based on hoped-for outcomes.

Each committee evaluates the portions of the budget within its policy domain, and what the budget gap means at this stage is that House Democratic leadership is telling committee chairs that their recommendations back to Appropriations in response to the governor’s proposals need to identify priorities (meaning, what they least object to being cut.)

Committees also cannot be asking for their own new projects unless they identify an existing source of revenue, such as eliminating a currently existing budget item.

Within those constraints are embedded the money that House leadership believes needs to be reserved for its own priorities. (See climate change bill discussion, below.)

In my Health Care Committee, there are only a few new budget proposals we have to review, but it will be tough to not be able to tell Appropriations that each one is equally essential, because they all directly relate to the state’s mental health crisis and rising rates of suicide.

They include further investments (about $400,000) in education and training within the health care system for identification and response to suicidality under a program that has proven to be highly effective when implemented in other states, and which has already been initiated in three Vermont counties.

They also include the start of a mobile response program for families in crisis in Rutland County (at a cost of $600,000) which, if successful, would be rolled out in other counties in future years.

We have two committee priorities of our own. First is to keep chipping away at the subgroups of Vermonters who face the greatest barriers and inequities to health access.

We’d like to invest some money for just a small amount in premium support for the “cliff” that occurs when low-moderate income working families who must buy their own insurance are just over the financial threshold for eligibility for any assistance.

These are folks who are paying more than $5,000 per person for policies that have deductibles of more than $6,000, amounting to more than 20 percent of their income.

I just needed cataract surgery; the successful surgery has restored my ability to read normal size print. The bill will exceed $5,000 but my out-of-pocket cap is $1,350.

That’s still a lot to come up with, but if I had to pay for the whole thing, I’m not sure if I could have swung it without taking it out of retirement savings.

That makes me pretty lucky, and even as a low-moderate income person I’m willing to chip in for those who don’t have that level of access.

We are also working together with the Commerce and Economic Development Committee on mechanisms to help bring more health care workforce to Vermont.

We have a growing shortfall in all levels of nursing and in rural primary care doctors, and must compete with states that have strong incentive programs such as educational loan repayments.

That takes money. But we don’t do it, it increasingly raises our health care costs, such as the need for hospitals to use high-cost “temp agency” providers.

We are working on several bills that may help in ways that don’t cost money, by expanding access to tele-health, increasing the scope of practice for providers like physician assistants, and easing the barriers for licensure for those already licensed in other states.

In the coming weeks we’ll see the wish lists from other committees, and it’s likely that none of them will be frivolous – whether childcare, afterschool programs, tourism development (i.e., investments to bolster state revenues), or state support for local roads and bridges, just as a sampling.

One investment recommended by the governor that is not getting much legislative traction is a particular frustration for me, because I’ve been pushing for it for so long. That’s the tax break for veteran pensions.

It is an investment because anything that reduces state revenue is, in reality, something that costs the same money as if it was a new appropriation, yet it is highly likely that it will raise more revenue than what it may cost.

Retired military are a middle-aged, skilled workforce with families that are still young. They are exactly the folks we desperately need to attract to Vermont to reverse our sharply aging demographics. The taxes they will pay on the income they make in their new jobs will increase state revenues.

The problem is that nearly every other state gives tax breaks on their pensions. Why would they move (or stay) here, in the face of that?

Compare that investment to our current scheme of offering $10,000 to remote workers willing to relocate here. Yet it’s perceived as something that will be a benefit to higher income earners, which doesn’t sell well.

It’s a real issue for recruitment for Norwich, and I’ve convinced the chair of the Commerce Committee to hear testimony from several Northfield families to explain its importance.

My hope is that if that committee “gets it,” it will push the Ways and Means (tax) Committee to be more receptive. Right now, it remains a very uphill battle.

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Every Vote Counts

If anyone doubted the importance of every legislator’s vote, it was proven last week in the single vote that sustained the governor’s veto of paid family leave. (The coming vote on the minimum wage supplemental increase will be equally close.)

Democrats were not able to rally all of their members in support of a veto override, which was what made the difference. There were some ugly public statements made, unfortunately, by party leadership about one of their own who stuck to her opposition to the bill despite a good deal of pressure from them.

The thing that has enabled me to stay a Republican in the face of the pretty horrible national scene has been that in our caucus here, I have never faced approbation when I have voted my own conscience contrary to a party position.

It’s a commitment of our leadership that has always held true. I am not lock step on every issue, and when my views differ, they are respected by my peers.

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Climate Change

That segues well into the climate change bill, where I may well find myself at odds with many Republicans.

The first major bill has come out from the Energy and Technology Committee, titled the “Vermont Global Warming Solutions Act.”

“Solution” is undoubtably an exaggeration, but some will still find it quite overbearing. It changes our greenhouse gas reduction goals from goals to mandates and creates a Vermont Climate Council that will create an action plan to reach them. The Agency of Natural Resources would be empowered to adopt rules to enforce the plan.

That last piece is worrisome to me. Delegating major decision-making powers that are usually the responsibility of the elected legislature into the hands of an administrative agency threatens to disenfranchise the public.

On the other hand, such a statute isn’t written in stone, because no law ever is. If an agency ran amuck, a future legislature could change the law. But it’s harder to reign something back in once it’s been let loose.

The two Republicans on the 9-member committee voted against it; the one Independent, one Progressive, and five Democrats voted for it.

It includes almost one million in new appropriations to implement, so it has been sent to the Appropriations Committee to be vetted before coming to the floor.

That is one of the new money items that will push others off the table. (See budget discussion, above.)

Incidentally, if you sometimes worry about the quality of education today, you should see the set of letters I received from Northfield students who recently took a marine biology course and learned about impacts of pollution and climate change.

They thanked me for last year’s vote for the plastic bag ban and asked me to support climate change legislation this year.

They were thoughtful, articulate, well-written, respectful letters that showed independent thinking skills. They were obviously part of a class assignment, but so much the better; they are being taught how to make use of their voices in a democracy.

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And One Tidbit

I’m getting a lot of reaction to a brief bill I just introduced that would require car rental companies to place prominent notices on contracts if they ban use of their cars on dirt roads – reaction from folks saying, “Is this an issue in Vermont?”

Yup; I’ll bet you didn’t know it either. It’s in part of the tiny print on those multi-page contracts: no driving on dirt roads. On cars being rented in Vermont?!! The fact that they aren’t equipped with snow tires is a related issue.

Within a day I got a visit from the lobbyist for Enterprise (and the bill doesn’t even demand that they allow driving on dirt roads; it’s just a notice as a consumer protection issue.)

I explained the issue; she is going back to discuss it with her client; fingers crossed that it may be one of those bills that won’t even have to be taken up because the mere threat of it solves the problem.

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Feel free to get in touch any time during the session with Rep. Goslant and me. There is a lot going on, so if you have questions about something – ask. We are buried in committee work and don’t always know what is happening in other committees, but we can find out for you. It is an honor to serve you. (kgoslant@leg.state.vt.us; adonahue@leg.state.vt.us)

Legislative Update, Feb 1, 2020

Legislative Update

Rep. Anne Donahue

Feb. 1, 2020

In my last report, I tried to drill down into explaining OneCare, Vermont’s accountable care organization, created by hospitals and doctors to be able to accept lump sums to provide all of a person’s care instead of getting paid for each separate service they provide.

The important thing to understand is that this is payment reform, not financing reform.

When most people think about health care reform, they think about the financing issues: affordability and equity for those who pay for care, rather than how providers are being paid.

The amount of money people pay for their health insurance ranges from zero to 15 percent of their income or more. That is obviously not equitable.

What are we doing about that? Last year, we asked for a report on the disparities and how we might address them.

The vast majority of Vermonters have their care paid for through three avenues: either Medicaid (24 %) (very low income), Medicare (21%) (elders and those with disabilities), or an employer buying a commercial product in what we call the “large group” or self-insured market (32%.)

Only a small share – 7% -- of folks receive their insurance through the small group (employers with fewer than 100 employees) or individual markets (5%), which are combined under what we call the Vermont Health Exchange. No one else is on that infamous Exchange.

Insurance is generally more expensive for individuals because they are not mixed into a larger pool of people, so they present greatest risk for an insurer. Vermont has tried to help address that by combining individuals into the same pool with small employer groups.

We learned from the new report that if this market was split, small employers on the Exchange would be paying 5% less for insurance, and individuals would be paying 7% more.

We don’t want people who have to buy their own insurance to have an even greater cost burden, but it’s only a small slice of small employers who end up paying to help with that burden.

Even larger inequities come in two other places. Folks who are low income and buy individual plans get a lot of help with subsidies. At a certain tipping point, however, they lose all subsidies.

In 2019, the federally defined poverty level for a couple was $16,910. Because of subsidies, a couple earning 300% of poverty (each making slightly under minimum wage) would pay nothing for the lowest-cost Exchange plan and at 400% of poverty they would pay less than 3% of their income.

However, the same couple at just over 400% (that is, $67,600) would have to pay more than 15% (more than $10,000) of their annual income to pay the premiums in the lowest-coverage Exchange plan.

This is the cost for the premium only, and these numbers are for plans with a $6,000 deductible before coverage begins, with a $7,900 out-of-pocket cap, per person, so if either had any significant medical event, they’d be into well over 25% of family income.

The hidden group (the state doesn’t know what plans employers provide) are those who receive insurance from employers, but have plans that have those same very high co-pays and deductibles.

When we look at the cost of housing and other basic needs, the high costs and the variation in what people have to pay out of their income in order to get access to health care is profoundly inequitable.

It is because I think that this is a greater inequity and a greater need to address that I oppose both the family leave act. Family leave would be creation of a new social benefit when we haven’t invested yet in fixing access to a more essential social benefit.

What would it cost to help address some of these disparities – the question we asked for the report this year?

If we divided the individual and small markets, giving a boost to small employers to provide more affordable coverage, we could protect individuals who need to buy their own insurance by increasing subsidies for those who have to pay more than a certain amount of their income.

The study we requested tells us that for $2.2 million, we could reduce premiums by 10% for those between 400% to 500% of poverty (the “cliff”). For $10m, we could reduce all Exchange premiums by10% via state back-up insurance for high claims.

Where would money for market reforms or support like this come from? It would need to come in from others of us, in order to bring more equitable access for everyone.

For example, if we didn’t implement the family leave act but imposed the same tax that it is going to cost, $29 million would be raised for health access equity.

Another example could be an increase in the rate of the penalty we impose on employers who do not provide insurance for employers; that would level the playing field among those who do and don’t.

I’m hoping we can put together some concrete options for detailed fiscal analysis that could result in a plan to enact next year.

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Drug Pricing

We’ve heard two pieces of hopeful news regarding the ever-increasing costs of drugs.

The effort to create a multi-state buying pool for Canadian drugs that we initiated last year is moving from pie-in-the-sky to serious potential.  The feds are moving forward on rulemaking, and Vermont has submitted a concept paper.

And Blue Cross/Blue Shield has just formed a partnership with a non-profit pharmaceutical company that is going to begin producing several lower cost generic drugs.

Yes, you read that right. A non-profit pharmaceutical company. (It you’re interested in details, look up this company at CivicaRx.org)

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Data Sharing

Last year, we approved the change from an “opt-in” to “opt-out” system for Vermont’s Health Information Exchange. That’s the information data base that allows statewide health provider access to your medical information.

Opt-in meant you had to give affirmative consent, and because people weren’t being asked, not enough people were consenting to make it a useful tool for providers. Opt-out means your records are accessible unless you initiate the contact to say, “no.”

We approved this change only with insistence on an aggressive public information campaign and very easy and accessible ways for people to exercise the right to opt out. We have now received the report on how that is being done.

I admit to being pleased and impressed, because government doesn’t always do a great job with this sort of thing.

If you haven’t already seen the information on Front Porch Forum or elsewhere, go to this website for a highly consumer friendly explanation and a direct link for opting out: vthealthinfo.com

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Marijuana

The bill on a “tax and regulate” sales market for marijuana – which is currently legal to possess but illegal to buy or sell – is moving through evaluation on the House side, and came to my committee for input on health issues.

I though the best testimony came from a physician with the Department of Mental Health, who said, in effect, that the problem is not that marijuana presents extreme dangers but rather, that there is such casual dismissal of the health risks that actually do exist, in particular when it involves heavy use or use by youth.

We recommended that the required health warnings on packaging be provided directly by the Department of Health rather than – as the bill had proposed – listed information set by the (not-well-educated) legislature or a lay oversight board.

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Bill Sponsorships

I’ve had longstanding concerns about transparency and a lack of public confidence in how we review the use of lethal force by law enforcement. Last spring, California enacted a law that created a new standard of review, and I asked for a bill that proposes that Vermont look at that approach.

I think our law enforcement community is highly professional, but there is a lot of public misunderstanding about how these deaths are reviewed, based solely on the seconds before the use of force rather than any broader context.

We also look at whether the lethal force was “justified” rather than whether it was “necessary” to protect the police and public.

The bill was taken up for initial testimony last week, and our state Attorney General strongly urged that Vermont look at these potential revisions.

He is the one who has made most of the findings over the past decade that these deaths in Vermont were justified, and he said he is deeply concerned about the need for greater public trust in how we review them.

On other bills, I’ve co-sponsored new efforts to eliminate state taxation on social security and on military retirement pay, and for increasing hospital price transparency and ownership of medical data.

I missed the sponsorship sign-on but am supporting a bill introduced by Topper McFaun of Barre to eliminate co-pays and to significantly increase access to contraception.

This should be an area whether “pro-life” and “pro-choice” can unite. Preventing unwanted pregnancy prevents the need for a choice to end a life.

I have also co-sponsored a resolution stating apology for our state-sponsored eugenics movement in the 1930’s, under which we created a system of sterilization for society’s unwanted: the Abenaki people, immigrants, and people with disabilities.

I first brought this resolution forward some 10 years ago, but now others are helping to lead the effort and there is momentum to move forward.

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Feel free to get in touch any time during the session with Rep. Goslant and me. There is a lot more going on than we can summarize, so if you have questions about something – ask. We are buried in committee work and don’t always know what is happening in other committees, but we can find out for you. It is an honor to serve you. (kgoslant@leg.state.vt.us; adonahue@leg.state.vt.us) You can see my archives of legislative updates at www.representativeannedonahue.blogspot.com, and can sign up directly with me to receive them by email.

Legislative Update, January 19, 2020

After just two weeks, it feels as though a month has gone by in the legislature and that there is only a month to go before the close of the biennium. It’s not far from true: there are only six weeks before “crossover” – the deadline for bills to be finished in one body if the other is to take it up this session. Unlike last year, when unfinished work could be picked up this year, all bills in progress die at the end of a biennium.

That makes it particularly surprising to see such a huge volume of new bills still being introduced by individual legislators. Although the media picks out some of them for headlines about what the legislature is “considering,” that isn’t accurate. Most will not get considered at all.

Our agenda (like most committees) is packed with ongoing state public policy priorities, follow-up on issues we tackled last year, the need to review the health care sections of the governor’s budget proposals, and the review of bills passed by other committees that have health care impacts.

After crossover, more and more time will be taken up with House floor action, and the scattered bits of committee time will be needed to review bills the Senate sent over.

In these first two weeks, part of our committee time was taken up by reviewing health care issues in the budget adjustment bill: that’s the bill every January that adjusts the current year budget based on actual expenditures and revenues.

We also needed to be brought up to speed on the newly exploding issue of the Brattleboro Retreat’s urgent request for additional state funds (and threat of closing without them) and the administration’s refusal to add more to the two increases already provided in the past year unless there were fiscal reforms there.

We heard an overview of the recommendations of the Rural Health Care Task Force we established last year, and a primary care work group. Both underscored our urgent need to address the losses in the health care work force at a time when our needs – as an aging population – will be increasing.

We attended a presentation by primary care health care experts before the Green Mountain Care Board, It was heartening to see members of the Commerce Committee also in attendance. This is a joint challenge.

We also heard reports about our health care insurance market, and whether there were opportunities to address cost burdens by changes in how it is organized – another report we requested last year.

We spent two mornings hearing from OneCare, the Vermont Accountable Care Organization that is implementing our All Payer Model for reforming how providers are paid.

Next week we will be getting updated on our pharmaceutical cost initiatives and where they stand: the cost transparency law, and our effort to help create a multi-state importation buying pool.

We will also be hearing the plan that has been created – on our directive from last year – on how to educate Vermonters about their rights under the health care information database.

There are several other major reports pending on mental health integration with health care and the needs for community-based residential services.

Each of those lead to a need for a “deeper dive” if we are going to try to address the challenges they raise. By the end of next week, and knocking off at least one week for budget work, that leaves four weeks for those deeper dives, which makes it clear that we cannot expect to be able to try to address all of them.

Here’s a review of a few of the key issues:

OneCare and BAA

The budget adjustment proposals from the governor brought OneCare to the forefront in the first week. The recommendation was to add money for half of the new projects OneCare asked to fund for the current year, for 3.9 million (1.8 in state funds and the rest in federal match.)

Lots of folks have been getting pretty antsy over whether the All Payer Model is going to pay off or not. It certainly hasn’t yet, but it is very early. When and how will we know whether to cut our losses and try something different?

The history matters. Several years back, the federal administration made the decision to change the way Medicare pays the providers who deliver care. Instead of paying for each service that a beneficiary receives, Medicare is shifting to paying based on the value of services received.

One of the mechanisms for doing that is through accountable care organizations. These are providers who get together and agree to be responsible for all the care a person needs for one set price. If they save money, they keep some of it, but they also take the risk of losing money.

The idea is to increase the incentive to focus on keeping people healthy instead of just paying for services after they are sick. Obviously, quality of care needs to be closely monitored, so that the savings don’t come by cutting corners on care when people do get sick.

Because of the financial risks, these provider organizations tend to be headed up by hospitals, which have more ability to absorb it than a medical practice would.

In Vermont, given our small size, we have only one accountable care organization that survived the initial federal trial years, and although it has broad provider membership, our biggest hospital network has the biggest part of running it.

All of this is still only a discussion of federal policy regarding Medicare.

About five years ago, Vermont looked at this emerging new federal plan and asked, wouldn’t it create greater efficiency and bring payment reform about more comprehensively if accountable care organizations took on state-run Medicaid and commercial insurers as well?

That would enable those payers to take advantage of the provider network that was assuming an “all care” payment instead of a fee for each separate service.

That required agreement by the federal government, since some of the standard Medicare rules would need to be more flexibility in order to pay for things that Vermont wanted to add. This agreement is the “All Payer Model.” All payer means available to all types of payers (insurers).

The federal agreement included the addition of extra federal money made available for start-up costs, which include new data analysis systems for the ACO (OneCare) finances and quality measures, creating the systems for managing the care of patients, and trying out new projects that stress prevention.

Although I have been chomping at the bit as much as anyone to see whether these investments are actually going to meet the promise of reducing cost and improving quality, we were reminded this week that we are just starting the third year of a rather momentous changeover in how health care is paid for. We can’t expect a quick turnaround. The data review for year one – 2018 – is not yet out, though it should be shortly.

Although there have been headlines about the huge increases in the OneCare budget, most of it is because they are taking responsibility for more patients and paying for their care. That isn’t a cost increase; it’s a shift in where the money is being funneled.

The OneCare administrative overhead costs have been going down each year on a per person basis (as well they should, based on economies of scale.)

Its year three budget does not show cost savings in health care delivery, but that is based on the investment money being put into creating the new systems. In addition, there are the costs of paddling two canoes with one foot in each.

If health costs were being paid “the old way” the costs of care for everyone OneCare is responsible for this year (250,000 Vermonters) would be $1.363 billion. The actual cost budgeted by OneCare is $1.425 billion. So there is a way to go.

The $62 million difference is in OneCare administration ($7 million) and the reform investments ($55 million.)

There is a chicken-and-egg element. Overall savings are not likely until getting to full scale – in other words, most people in Vermont receiving care coordinated by OneCare. But that takes enough health care providers agreeing to be paid this way, and health care buyers (the insurers) agreeing to pay for their members’ care this way. Both take on risk.

So far, providers have been joining more rapidly. By this year, every hospital (with all of their provider networks) will be participating. Commercial insurers have been more cautious. The vast majority of private insurance in Vermont is sold to large employer groups, and those groups, not the insurance company, make the decisions (sometimes through a bargaining agreement with their employees.)

In order to get to full scale, those groups will have to be convinced that it is in their interest to participate.

All this comes full circle back to the budget adjustment question of new state funds to help support OneCare projects on behalf of the state’s Medicaid members. Right now, Vermont provider hospitals are paying about 74 percent of delivery system reform investments, the feds are paying $16 percent, and the state is paying 10.5 percent.

In the usual course of Medicaid budgeting, the legislature does a careful review of new program proposals before funding them.

The $3.9 million in projects OneCare is proposing are not well fleshed out yet, and because the money is coming in the budget adjustment bill, we don’t have the time to do much of a review. There is some public policy power that is being turned over to this private provider entity.

The projects will still have to be approved by the state, so we recommended that language be added to the bill to direct the state Agency of Human Services to be fully engaged in project development. But we still weren’t happy about the timeline, and we told the Appropriations Committee that.

The Other Stuff

It’s taken so long to try to explain the status of OneCare that I’m going to have to postpone what I wanted to share about new changes in the health care market and a number of the other issues listed up top.

Other future topics: an overview of the one bill I introduced this session and the few others I signed on to as co-sponsor, and a brief list of key new bills that are being considered this session.

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Feel free to get in touch any time during the session with Rep. Goslant and me. There is a lot more going on than we can summarize, so if you have questions about something – ask. We are buried in committee work and don’t always know what is happening in other committees, but we can find out for you. It is an honor to serve you. (kgoslant@leg.state.vt.us; adonahue@leg.state.vt.us)

You can also contact me to receive these updates by email.

2020 Legislative Preview

Legislative Preview

Rep. Anne Donahue

January 6, 2020

A new legislative session is beginning, and it will be tough to provide any kind of succinct overview of what to expect when so much is already underway halfway through the biennium. The most prominent economic issues are the debates on a minimum wage increase and paid family leave, plus our aging and shrinking population and its impact on our state budget. (Read: the affordability crisis.) Climate change will be high on the list of other issues. Controversies are also likely on marijuana and criminal justice initiatives.

So to start: the economic ones.

As Vice-Chair of the Health Care Committee, I can’t help but see the deep interconnections between wages, the family leave proposal, and access to health care. The deepest economic inequity we face is the huge variations in that access, yet our focus is on two areas that increase the risks of economic disparities.

What good is a minimum wage increase if someone gets minimal or no health coverage at work and can’t afford coverage or must pay premiums that far exceed that wage increase? Note that those least likely to have insurance via their job are those employed at small businesses, where employers struggle the most with costs and wages. Some will certainly reduce health coverage support to meet a higher minimum wage; some will cut jobs.

What good is family leave if it is paid out of one’s own salary?  Smaller employers with lower wage earners are least likely to be able to voluntarily contribute to the cost, particularly if they have just also been hit with a minimum wage increase.

And what good is the family leave  a person is required to pay for if they are not able to take advantage of it because their job is not protected when they want to return to work, because their small employer is exempt from holding their job open?

What good is the ability to stay home with an ill spouse if the spouse cannot get adequate medical treatment? What good is either a wage increase or family leave if it results in losing a benefit that provides greater support to the family, such as food stamps or health care subsidies?

I think it is critical is to focus first on equalizing access to health care before new benefits, and to support that focus by tying minimum wages to employer health care support. The creation of the job-health insurance link for financing health care was the fundamental accident of history that we are now so challenged in reversing. Let’s not make it worse by creating a new and similar program. And note that a voluntary paid family leave program is even worse because it further expands inequity based on employee bargaining power.

Our very poorest get Medicaid; the wealthy get health coverage through their jobs, or at minimum, it’s much lower as percentage of income; it is the lower middle to middle wage earners that are hit hardest. They may be getting more than minimum wage, but real earnings are hurt far more by health care costs. That’s why the earning “cliff” is so steep: lost benefits exceed wage increases. So despite good intentions, family paid leave and minimum wage increases without addressing financial access to health care potentially contributes to the very thing they seek to reverse:  the rich get richer, the poor get poorer.

Equity and affordability. Overly simplistic, but if, in concept, we took the net economic cost of minimum wage increases and paid family leave, and put it all into health care access, it would go a huge way towards greater financial equity. I want, at a minimum, to see greater connection between minimum wages and existing employer contributions to health care before supporting a blanket minimum wage increase.

When it comes to affordability, we hit broader topics as well. As we face a shrinking tax base both through an aging demographic and out-migration, we will have an ongoing battle to keep Vermont affordable while meeting our needs, for everything from roads to schools. As with so many subjects, our small size as a state dictates that we be compared with states around us. No amount of cash enticements will draw in new folks if they will lose out in relative income for years thereafter because of our high tax burden.

We have to stop ignoring the fact that we are outliers in taxing Social Security benefits and veterans’ retirement benefits. (We exempted low income Social Security from taxation two years ago, which was a good thing, but which ignores the fact that we need to help high income beneficiaries opt to stay in Vermont, as they still pay taxes on other income.) Taxing veterans’ retirement is a barrier to recruiting these highly trained folks to come to work here.

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On climate change, which will be front and center in many minds in Montpelier this year: I don’t think the debates much matter as to why the world’s climate is changing, or even how fast  or by how much it is or is not happening. The most minimalist outlook has to recognize that there will be significant impacts, and that we have an obligation to protect our environment for future generations.

The question is, how much we want to do to try to shift course – recognizing both our small role but also our responsibility to do our share. What are we willing to contribute – how much a priority? I have always fiercely opposed a “carbon tax,” primarily because – like with single payer health care, or even minimum wage – we are too small a state to take on the economic impact of a major change standing alone.

We now have the potential for a major regional collaborative among northeastern states to address transportation-based emissions. We do a lot already in Vermont on addressing heating fuel consumption through efficiencies, but not so much on the leading cause of CO2, which is from transportation. Electric car purchases aren’t going to put much of a dent in that, at least not for a while.The importance of a regional collaborative is that it doesn’t place us as a huge economic disadvantage with our competing neighbor states, adding to unaffordability on a comparative scale (which is where it most matters.)

The regional collaborative is already being attacked as “just another carbon tax” in a package that makes it look like something different. I don’t know enough about it yet to assess that, but I do note that we already use a “carbon tax” for heating efficiency: it’s the surcharge on our electric bills that pays for all the home heating incentives and supports provided through Efficiency Vermont.

So regardless of how it gets labeled, what will need to be assessed is what the cost-benefit trade-offs will be, and how equitably the costs will be shared. I will be looking forward to learning the details. I think it may be a very positive opportunity.

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Other issues on the immediate horizon include marijuana (whether to move from unregulated legal possession, to regulated legal sales and possession), and responses to concerns about the outcome when people are found not guilty of a crime based on insanity.

In concept, my feelings about marijuana have been to leave people alone when they are using small amounts of pot in private. Despite that conceptual support, I didn’t vote for our legalization bill a few years ago because it was too weak on protections against increased impaired driving and exposure to children. I’ve come to recognize that this “libertarian” perspective may not make sense on this issue. Legal possession without legal sales maintains the illegal market with all of its negative implications and doesn’t allow for state oversight. But the devil will still be in the details when it comes to a final proposal.

A second lurking issue is legislative response to the outrage regarding three individuals accused of murder or attempted murder who had charges dismissed last year in Chittenden County because the state’s attorney believed they had clearly established insanity defenses. I have always hated reactive law – laws passed to address a narrow issue based on a suddenly perceived crisis. Such laws tend to be debated out of context of broader public policy; they isolate one issue in a way that may be unwisely disconnected from other laws.

We have significant challenges in the ways we currently address the overlap of systems when someone is involved in serious crimes and is also in need of psychiatric treatment. I have a bill sitting “on the wall” that looks at this issue. (Sitting on the wall, in our jargon, means it’s been introduced but not taken up in committee.) It is a very complex area of law that needs attention. What it doesn’t need is a quick-fix approach that addresses only one narrow piece, based on one set of facts.

In whatever way we attempt to go forward, it bothers me deeply when I hear people say that we need to have automatic minimum stays in a locked psychiatric hospital for people who are not in prison because of being found not guilty by insanity. Pardon me? Lock people up when they were never convicted of a crime? “We know they did it” doesn’t work for me as a basis for depriving people of their freedom. We need to respect the constitution.

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Feel free to get in touch any time during the session with Rep. Goslant and me. There is a lot more going on than we can summarize, so if you have questions about something – ask. We are buried in committee work and don’t always know what is happening in other committees, but we can find out for you. It is an honor to serve you. (kgoslant@leg.state.vt.us; adonahue@leg.state.vt.us)