Conscience Protection and Reproductive Liberty

 

The importance of conscience protection for health care workers, most often in the context of permitting hospital staff to request to be excused from participation in abortions, has broad public support and is endorsed by the Vermont Medical Society.

Yet few have addressed the current risks of erosion of those rights of conscience in Vermont if Proposal 5, the “reproductive liberty amendment,” were to become a part of our state’s constitution.

There should be deep concern about the impact that Proposal 5 could have on our state’s hospitals, health care delivery and workforce crisis through overturning such protections.

There are inaccurate perceptions about the scope and intent of this constitutional amendment, as reflected in a November article in VT Digger which described its purpose as to “protect the abortion rights spelled out in the U.S. Supreme Court’s 1973 Roe v. Wade decision.”

In fact, the unusual wording of the constitutional amendment would do three key things: it would protect any abortion for any reason until the moment of birth (unlike the balance of state interests created in Roe for third trimester pregnancies), likely rendering null any individual hospital’s abortion policies including Conflict of Care policies; it would extend protection to any health care service that relates to 'personal reproductive autonomy' with no known definition of how far that concept might extend; and it would turn any debate over that high bar of what constitutes a “compelling state interest” over to the Vermont courts.

It offers no final word, but rather would be subjected to any number of future court interpretations.

I have again introduced a bill – H. 497 -- for conscience protection for health care providers this year. Vermont is one of only two states that does not provide it by law.

Given the breadth of Proposal 5, there is a significant risk that hospitals could not independently choose to assure such protection. Extant shortages in medical professionals, particularly in ob/gyn practice and in nursing, would worsen as some providers decide to leave their chosen professions. In fact, it might be deemed discriminatory to permit conscience protections – or even for any hospital to fail to perform abortions.

If the legislature fails to act on conscience protection before voting to move forward with Proposal 5 this year, it will form an explicit legislative intent in the record that could inform the court to rule that a future-passed conscience protection bill would be unconstitutional. Even if such a bill passes, it is not clear that it will withstand the breadth of the amendment, but I think it is still worth the effort.

I hope that Vermonters will actively support this legislation.

The issues buried within Proposal 5 warrant consideration of the impacts on quality health care before making decisions about the constitutional change. Conscience protections and the impact on the workforce are a prime example of unforeseen consequences.

Full consideration of the implications – and the ways in which they go far beyond the instinctive appeal that “protect Roe v. Wade” has for many people – is crucial.

Eugenics and Abortion

 This September 28 is the 100th anniversary of the conference in New York that solidified the theory and social policies of eugenics: the concept that genetics control the quality of future generations, and therefore, sterilization (or later, killing) of society’s “degenerates” or less socially valued lives could improve the human stock.

The anniversary has been marked with a program of events around the world that reflect on the history of white supremacy that led to eugenics and continue to infect us today. 

Thus, it is fitting that this is the year Vermont’s legislature passed its apology to Vermonters who were injured by eugenics.

The policies targeted mostly the poor and those with mental or physical disabilities as well as those documented as French Canadian, French-Indian, or of other mixed ethnic or racial composition. In other states, targeting was focused on Black women on the claimed basis of reducing poverty and burdens on public support.

Our nation continues to be torn apart by two social traumas that are in confluence in this same year: systemic racism and abortion.

Documents from the Anti-Eugenics Congress program series reflect upon the roots of eugenics as being within longstanding European racialized classification systems, colonial imperialism, dispossession of indigenous peoples, policies of segregation, and immigration exclusion.

This is our ugly history of defining the fit and the unfit; those lives that are worthy versus not as worthy.

We fail to recognize that it is those same beliefs that influence arguments in support of racism, ableism, sexism, anti-immigrant xenophobia, and homophobia – and abortion.

Margaret Sanger, founder of Planned Parenthood, was a leader in the eugenics movement. 

Planned Parenthood removed her name from its New York affiliate building last year acknowledging that it was “both a necessary and overdue step to reckon with our legacy and acknowledge Planned Parenthood’s contributions to historical reproductive harm within communities of color.” In other words, the planning of parenthood was part of the agenda to curtail the growth of people identified as of lesser value. 

The implicit desire to encourage curtailment of growth in disproportionately Black communities through contraception and access to abortion – the citing of the cycle of poverty often being a pseudo-reference to race – was most blatant in those same communities of color disproportionately affected by eugenic sterilization in the South.  

Part of the abortion debate today focuses on the fact that women can become trapped by an unwanted pregnancy, and men cannot. Although the fact that only some people have uteruses and can give birth is based neither on governmental nor social policy, it is the basis for asserting discrimination endorsed by government if abortion access is curtailed.

That ignores any bodily integrity of the new life developing as an integral part of, yet genetically distinct from, that woman’s body.

It grieves me when the pro-life movement acts as though only that yet-to-be-born child has life and equity to consider, for its mother is experiencing a radical imposition on her body that was not an intentional choice. Few women want to become pregnant and then to abort a healthy child who poses them no grievous health threat.

But it also grieves me when pro-choice advocates act as though abortion is solely about women’s health care, without regard to any intrinsic human value of that life being sustained solely through a human womb. Roe v. Wade explicitly stated that a privacy right was not absolute when a mother carried a developing child.

The new Texas law, in targeting anyone who tries to exercise compassion towards a woman in that situation and thus ignoring the agony of a woman struggling with something outside of her own control within her body, is utterly the wrong direction. 

But Vermont’s new law that blocks interference with any abortion at any time is also utterly wrong, because it denies the validity of society having any interest in the value of a developing independent life, since it is considered not yet fully human. 

Not fully human. Where have we heard that before in our history, as a reason to dismiss the centrality of equity among human lives? 

We look back on eugenics in horror. We look back at slavery in horror. 

Neither eugenics leaders nor slaveholders were violating the social standards of their time. They were sanctioned by constitutional interpretation. But history is not kind to that rationalization. 

The day may come when we express our apology for the disregard of the human lives that are in utero in the same way we did this year for those lives we devalued 70 and 80 years ago in Vermont’s eugenics policies. 

We should not have the hubris to be so certain that our current views on which rights have supremacy are not simple rationalizations. 

The current effort trying to lock them into our constitution with a demand that any future social interest in those nascent lives bear the burden of proof of their fitness would be the worst of such hubris.

Pre-Session Update

 Pre-Session Update

Rep. Anne Donahue

December 11, 2021

Every year before the new session begins, legislators have an opportunity for a preview of the state of the state from our contracted fiscal experts. (Copies of the power points for the briefing can be found at ljfo.vermont.gov/publications/legislative-briefing.)

The picture is more optimistic this year than it has been in many years, which may sound like a surprise. The economy is roaring back faster than expected, with the state gross domestic product “poised to grow at its fastest rate in 30 years… (a) growth of nearly 10 percent, the highest since 1989.”

This year’s revenues came it at 3.5 percent above projections, with some $188 million available for base budget expenditures. Inflation is increasing but expected to readjust and level off. Education property taxes are actually going down, not just rates, but actual taxes to be paid. Still more federal money is projected to be coming. Because of small state minimums, we get more per person than almost any other state.

So what’s to worry about?

There are a lot of embedded “ifs,” and also a stark warning for where our budget will be just a year from now. The economic growth prediction has the biggest “if” of all:  that “poised to grow” is conditioned on “if the pandemic recedes.” The experts told us that “the path of the pandemic will largely determine the path of the economy in 2022,” and right now we’re not doing so hot in curbing the pandemic. 

And although they predict that inflation rates will recede as the markets adjust to supply and demand imbalances, markets can’t turn on a dime, and inflationary pressures – as well as price swings caused by consumer behavior in response -- will last well into 2022. When demand plummeted, gas went to an all-time record low (looking as far back to 1969) and is now spiking with the surge in demand, though still lower than half the peak level reached in 2009. That increased demand includes the robust tourist revenue we’ve been seeing from folks from nearby states who are driving for vacations since air flight is still seen as more risky. Contrast that with consumer items that actually have dropped significantly in price. Should be no surprise; it’s men’s suits followed by women’s dresses. All those jokes about appearing on Zoom in sweat pants aren’t jokes.

The current housing price boom is our third “bubble” in the past 40 years, and the prior two both ended in a bust. Our fiscal experts predict a leveling of the increases in 2022 and an end by 2025. In the meanwhile, although the housing values increase the grand list (thus property tax revenues), they also price many people out of the market, and our shortage of affordable housing is dramatic. The overall growth in home prices the past year was 17 percent – though spread very unevenly around the state. The recommended budget balance for individuals is to spend not more than 30 percent of income on housing. Fifty percent of Vermonters spend more than that, and of them, a staggering 50 percent (25 percent of all renters) are paying 50 percent of their income or more on housing.

The lack of housing contributes to our workforce shortage, which in turn remains the largest ongoing threat to our economy and to vital services, like health care and childcare, and the costs of them. Wages are increasing as a result of that workforce shortage, but not enough to fill the workforce gap, which has increased due to mismatches, to high “quit rates” as people see more options in a buyers’ market, and to moves towards earlier retirement.

Property taxes – the actual amount paid, not just the rate – are only going down because of a surplus from last year due to unusual factors. As the grand list increases and is averaged over three years, rates will go down but actual taxes will go up as your house increases in a valuation that you cannot convert to cash. Increases in education spending have not changed. The impacts of this will vary greatly by town, depending both on the common level of appraisal -- the differences in increased values – and local spending.

Finally, the stark warning that I referenced earlier.

We have a long history of an “alligator’s mouth” in annual budgeting. Revenues increase, but so do costs, the costs at a faster rate; the mouth gets bigger. We scramble to fill in the gap, but the cycle simply returns. It’s gone for this year, thanks to the federal funds and the surpluses. Our general fund base budget carryover balance is $188 million (some will be used in the January mid-year budget adjustment), plus there are $528 million remaining in the existing federal relief funds.

The alligator will be back by next year, however, with base revenue projected at a 2.2 percent increase and a typical spending growth rate of 3.5 percent. Because of some significant needs, there will be strong pressure to spend this year’s revenue surplus, but if it is added to base funding, it will worsen next year’s pressures. It is very difficult politically to cut a program once it’s been started. Those needs will mean major competition for funds between the different committees in the legislature.

As the vice-chair of the House Health Care Committee, I’ve been part of years of efforts to increase workforce incentives and to increase affordability for health care for years. We have almost 97 percent of Vermonters covered by insurance, but for many folks, health care is unattainable because of high deductibles or co-pays. And affordable healthcare is worthless if providers aren’t available.

Nowhere has the crisis existed longer or worsened more dramatically than in mental health services.  Our committee held a special off-session hearing this past week to get an update, and everything is worse than it was when we left in May.

Rooted in historic discrimination, services still suffer from reimbursement disparities. Emergency room backlogs are only a symptom. If you have to wait two or three months for a referral to a psychiatrist, is it any surprise that your condition worsens? Or that emergency departments are seeing more patients and more acute illness? Unlike other health care, we have no “urgent care” system for mental health. If you can’t access outpatient help when you need it, your only option is the ED.

Having half the emergency department beds in our hospitals filled with people awaiting an inpatient psychiatry bed is not sustainable. And it is fundamentally wrong to leave people waiting for days in an emergency room cubicle before they can access a hospital bed. A majority of those seeking care wait more than 24 hours, and some wait more than a week, including children.

The entire budget surplus is not enough to resolve the chronic short funding of mental health care. And then that need will compete with the housing needs, childcare access needs and more, with each committee fighting to meet their pressing funding gaps.

And then…

The urgency of addressing climate change looms before us. The Climate Council created two years ago has released its initial Climate Action Plan, with 234 specific action steps it says are all necessary to meet our carbon reduction goals. I’ll be honest; I haven’t read all 273 pages. But I’ve seen the highlights and part of our fiscal briefing included a review of it. (For the outline from the legislative briefing, see ljfo.vermont.gov/publications/legislative-briefing; for an initial analysis of what the legislature needs to consider, see the issues brief on the home page of the Joint Fiscal Office at ljfo.vermont.gov; for the full report, go to climatechange.vermont.gov/)

The Plan includes recommendations for aggressive action. It needs to. I support a significant majority of it, in concept. And I regret my vote against the bill two years ago, which was not a vote against the goals but a vote against the over-delegation of decision-making – and ergo lack of public accountability – from the legislature to the new council. Based on the report, that is not happening. It will all be back on our lap because the majority of the plan requires funding, and only the legislature can appropriate money.

Before the Plan even went to press, one key component had a hole blown in it. It recommended joining the regional Transportation and Climate Initiative Program, something I have long supported. The economic impact of a single, small state taking on an issue like carbon assessment makes it a non-starter. It requires a significant group of states to work together. That was the thinking behind the TCI-P, under development with the collaboration of 13 northeast and mid-Atlantic states. Although a few states had bowed out early on, it was still viable. As of the end of November, though, Massachusetts and Connecticut had dropped out. 

Thus, the Plan itself notes, “As of the date of adoption of [the Plan], the future of the TCI-P is uncertain, and it is not immediately clear how Vermont’s adoption of the action to participate in the TCI-P would be implemented without partnership from other states in the region.” (There is a strong analogy here to health care reform. Despite what some people want to believe, Vermont could never create a go-it-alone single payer system. This is uniformly understood by all those – of all parties – on our current Joint Task Force on Affordable, Accessible Health Care. Yet we are still getting emails from folks urging us to pursue a single-payer system for Vermont.)

The costs of the Climate Plan will be staggering. To say nothing of the workforce needed to implement it. All our overlapping needs cascade together on that one.

The first follow-up step is a required analysis by our Joint Fiscal Office to identify what the actual costs are likely to be: “an analysis of the economic, budgetary, and fiscal costs and benefits of the Plan.” I’m glad that we will get a (somewhat) clear picture of that up front and be able to enter the discussion with clear eyes.

I’ve seen some estimates that suggest in the end it will save money, based on lower energy costs and the like. The problem is that it is a pay first, reap benefits afterwards, process. And if you are paying for all these new initiatives, what happens to the costs you are already bearing for housing, health care or childcare?

So how do we juggle this critical need against others?

So much for the rosy fiscal picture for our state that I opened this update with.

***

Anne Donahue is the state representative for Northfield and Berlin along with Representative Ken Goslant. Please reach out to us at any time with questions or input at adonahue@leg.state.vt.us or kgoslant@leg.state.vt.us. It is an honor to represent you.

May 22, 2021 Legislative Update

 

Well, for better or for worse, we’re finished for this year. The final action was, as usual, next year’s budget which begins July 1. It appears to show a staggering increase from two years ago, by more than a billion dollars – an increase of more than 16%.

But that number should sound familiar – it’s roughly the amount we’re received each of the past two years in emergency federal funds. So, the “real number” is much lower, and it’s important to understand the difference between our base budget and what we call “one-time” funds.

The base budget funds all of our ongoing budget for the operations of government. It increases based upon inflationary costs, pay increases, and any new programs intended to continue in future years. One-time appropriations are those that are for single-year expenses. They can create a future pressure because people want them to continue (at an increase to the base budget), but they come with no promise that will happen.

The base budget of state funds increased by 4.5 percent this year and 5.4 percent last year, so a 10% increase in the past two years -- from $4 billion to $4.2 billion to $4.4 billion. This includes the transportation and education budgets. The full base budget also includes hefty annual federal support, much of that coming through Medicaid funding. That has increased over the past two years from $2 billion to $2.2 billion to $2.3 billion. So federal funding is about a third of our total annual budget.

The most important question to many folks is whether the full budget reflects increases in our existing taxes, or requires an increase in tax rates or through new taxes. As has been true for several years back, this year’s budget does not require additional revenues; it reflects increased revenues from our existing tax base – including the “January surprise” -- a much healthier revenue flow than what was expected with the economic impact of COVID.

We added some 19 permanent state positions this year, and despite the fact that it did not require new taxes to cover them, it does concern me. This is the first time in many years that we have added this many new permanent positions. While the costs of these are included in the final, balanced budget, it locks in that cost. If we hit future tight budgets, it adds to the angst involved in potentially laying off staff.

***

The competing needs in the state are always very difficult to balance, because there are many. No one can get every piece they want; compromises are necessary. I was comfortable with the bottom line, despite some choices I didn’t support, and I voted yes; the overall vote was unanimous. In a follow-up year-end update, I’ll list some of the key investments made through the federal rescue act funds along with other budget highlights.

I recognize some folks don’t believe any increases in the base budget should be considered, so I’m going to drill down on one example of need. The budget includes a 3% increase for our community mental health agencies. At the same time, the budget includes a 4.1% average increase to state staff. This difference happens year over year, so the disparity continues to grow more extreme. The result is that staff leave the community agencies in order to try to make a better living, and by most recent count, the agencies have 780 vacant positions.

One result is that children in mental health distress currently have a six-month wait to access counseling. Is it any surprise that their conditions get much worse? We are seeing increased numbers of children who live in our hospital emergency rooms for days, or occasionally even more than a week. The term used is “boarding.” They have a mental health crisis so severe that it needs inpatient care, and there are not enough beds. It many cases, it would have been avoided if they got care sooner.

Now there is a new impact as well. Private, for-profit businesses are opening up shop to compete for contracts with our schools for the mental health supports needed for students. Those businesses are pilfering community agency staff by paying higher salaries. They are turning around and offering contracts to schools that have less robust services, yet are more expensive.

Why would a school system choose a higher cost contract rather than through the local community agency (in our case, Washington County Mental Health)? Because the agencies have too many vacancies to supply the staff that the schools need. This downward spiral will cost more in school budgets while offering less support to students and increasing fiscal instability for our community agencies.

Salaries at community mental health agencies not eligible for federal rescue act funding. They are part of our competing base budget priorities.

***

The budget isn’t the only place with competing interests in the same bill.

Three examples from last week: The housing bill includes crucial investments in affordable housing. It also creates a state rental housing registry (with five new state positions to run it) -- onerous because the cost would be borne by landlord fees that will be passed on in rent increases. I voted against the registry but when it was merged into one bill, I voted for the bill as a whole. The housing investments were too important. That bill remains awaiting Senate action.

Similarly, the unemployment bill made essential changes to how to maintain the Trust Fund but also prevent radical increases for business. It did this by discounting last year’s layoffs from the rating system that penalizes high layoff rates. It also included important investments to build our workforce. The same bill added $100 a month to unemployment benefits once the federal supplements end. There are a number of arguments against doing this as the crisis comes to an end, but for me the other parts of the bill outweighed the dispute over that issue, so I voted in support.

In terms of the cannabis bill, last year the House unanimously accepted my proposal that we not permit advertising when the new legal market begins. Legal sales with regulation are supposed to be about reducing the illicit market and increasing user safety through having potency and product purity standards. Identified priorities in the statute include not supporting increases in use. The Senate blocked the ban and we ended up with a bill with no advertising oversight at all, instead putting the issue off for negotiation this year.

When the advertising limits bill came out this year, I proposed a narrower addition that would prohibit advertising that was specifically targeted at increasing cannabis use. This time – in fear of Senate rejection of even that – the committee voted against it and it thus lost on the House floor, even though a number of Democrats joined Republicans in support. Despite that, I voted for the bill; without it, we would move ahead with no advertising restrictions at all.

***

When off-season committees meet this summer and fall and the legislature returns next January, it will be in person. The only exception would be a return of emergency restrictions on capacity or distancing.

The resolution making that change added authority for the Joint Rules Committee to place limits on public access when legislative committees begin meeting back in the statehouse. I’m on the House Rules committee, and I objected vociferously. If we are in the statehouse, I will not abide by limits on public access.

So, it was revised into two parts. There can be conditions on public access if needed for safety, such as a face mask requirement. (Our air-handling equipment provides seriously inadequate ventilation.) However, access itself cannot be limited.

For indoor spaces, we have always had capacity limits. Public hearings, for example, often draw a large crowd that cannot safely enter the House chamber. An “overflow room” is set up, with audio-visual access. Thus, with my support, authority for limiting access for inside spaces remained in the resolution.

***

As Rep. Goslant and I return to our regular “day jobs,” we remain available for questions or assistance. You can contact me at adonahue@leg.state.vt.us or Ken at kgoslant@leg.state.vt.us. All of my legislative updates for this year – and years past – can be accessed at representativeannedonahue.blogspot.com.

May 9, 2021 Legislative Update

 Let’s see if I can “write tight” and touch on a number of the items in play in the final two weeks of the session.

I am on the House Rules Committee, and we are in the middle of grappling with how to safely return to the statehouse next January. There are a number of competing interests. If we are in person, public access must be fully open as well. We are committed to that. But long before the pandemic, it was well known that the statehouse was an unhealthy place to be – and not just because of the bills being discussed!

The old air handling system is not adequate and in fact a few years ago a major mold problem developed in one wing, which had to be vacated for repairs. Because our processes are open, small committee rooms became stuffed with people – sometimes standing room only, clearly violating fire codes. It was a running joke about these rooms being winter virus incubators, and indeed, one bug or another often spread through a committee. So even if the state as a whole is “back to normal,” we need a new normal in the statehouse that is more health-conscious.

During our “Zoom” interim, there has also been an awareness of the increased transparency of live-streaming on YouTube and having those proceeding archived for later access. It has created greater access for public testimony without folks having to drive long distances. In returning to in-person, we don’t want to lose that, but it means IT system upgrades.

Though we’ve always had open meetings, the broader access and the archives have squelched some levels of committee interaction. Casual conversation or friendly jibing in front of 10 members of the public is one thing; it is more easily misinterpreted in the harsh light of video and people feel more compelled to be circumspect in what they say. Watching what you say isn’t a good thing for brainstorming and the free flow of ideas. Forgetting to watch what you say – something easy to do when the audience is invisible – can get you in trouble.

There is now a planning report that recommends some interim knocking down of walls for more committee space but less flow space in the building, thus restrictions on in-person public access. Most people agree that this would be totally not OK. An expanded building, however, would be several years away in planning and construction.

Should we stay on Zoom longer? It really does impair many levels of the lawmaking process, and it would not be a good public message, once the state of emergency ends, to be saying “everyone can go back to work, but we aren’t safe enough to do it ourselves yet.” This debate will extend over the next months.

***

Voting

Coming up next week on the House floor will be the Senate-passed bill on making universal mail-in balloting permanent. While I do support the concept for maximizing easy voting for folks, I’m concerned about the cost trade-off. At a million dollars a pop so that people don’t have to put in a request for an absentee ballot – something that’s incredibly easy to do – it doesn’t feel like a good investment.

However, the part of the bill I’m most concerned about is the ballot correction process. The cover forms for mail-in ballots are sometimes filled out incorrectly. Some other states have a process to inform someone and allow them to correct the error instead of the ballot being trashed. This is a new work layer for town clerks, but if there is enough advance time and it just means sending out a postcard, it seems pretty reasonable.

But as often happens, our bill takes it too far. If there isn’t enough time left, the clerk is supposed to look for other ways to track the person down. And if the ballot then is sent back in with another error, the person must be contacted again, with a new chance to correct it. That last piece crosses the line of reasonableness for me, and I will be trying to get it removed from the bill. Two bites at the apple should be enough.

***

‘Juveniles’

On the same day that the House approved Brattleboro’s charter change to allow 16- and 17-year-olds to vote on local budgets and hold office, we also approved a bill to re-enforce confidentiality protections for the newly created class of juveniles who go to Family Court: those up through age 19 if it isn’t a seriously violent crime. Does this seem, er, a little bit inconsistent?

The same teens whose arrests are confidential could run for office; voters would be shielded from the information that the youth had been stealing money from the store till when voting them onto the select board. It scares me to think of select board members or voters who are mostly completely protected from increased tax rates making decisions on increasing town services. (It is solely property taxes supporting town budgets, and you can’t even sign a lease before turning 18.) The ability to consider the balance between benefits and costs to the pocketbook is seriously impaired. Bad precedent; I voted no.

As far as extending the law to increase the number of secret arrests: there was a highly troubling aspect. Police can choose to disclose the information if they believe there is a public safety issue. There are absolutely no guidelines in the bill about what that means, so Berlin and Northfield could choose to set very different standards. It also creates a huge new loophole for actions based on unrecognized implicit bias. I fought this vigorously on the House floor and it was dispiriting to have to get legislative counsel to correct multiple errors that the member reporting the bill was making. He simply wasn’t prepared to explain it. But it passed.

***

Equity and Past Harms

My committee’s health equity bill was revised slightly by the Senate but we signed off this past week and it is on its way to the governor. We used the recommended data from Vermont’s Health Department to create a new Commission to identify ways to increase equity for groups that are suffering worse outcomes because of historic biases in health care. That includes racial and ethnic groups, but also those with disabilities and those with differences in sexual orientation or gender affiliation. I am very conscious of some of these disparities as a person with a psychiatric disability. In this category, unconscious bias is called “diagnostic overshadowing.” A provider sees a medical history record, and looses focus on an unbiased assessment of the meaning of physical health symptoms. People have died from this.

Also last week, a Senate Committee passed the House resolution of apology for the state’s role in supporting eugenics in the first half of the 1900’s. It included sterilization for those deemed “unfit to procreate.” Those included people of diverse racial and ethnic backgrounds, in particular members of Abenacki tribes, as well as those in institutions for developmental or mental health disabilities. I first introduced this 10 years ago, so it was gratifying to see it finally pass.

***

Budget Issues

The budget will be a mess this year. The House and Senate have started work on aligning our two versions, and the governor is being very public about his displeasure. Members like me are on the sidelines, waiting to see what the final package looks like.

It’s a demonstration of how having too much money to spend can be more difficult to address than having too little. There are some broad disagreements on the ways to decide on the investments we should make with the one-time bonanza of federal coronavirus relief funds – even though there is a lot of conceptual agreement on most of places where it should be invested. Those include housing, broadband and small business supports.

***

Health Care

My committee is addressing policy language that the Senate included in its budget, and what recommendations we should give to our House Appropriations Committee in response.

One is easy. You may have never heard of Pharmacy Benefits Managers, PBMs for short, because they operate completely behind the scenes. They get contracts from insurance companies to negotiate deals with drug companies to save money, often in ways very damaging to independent pharmacies, such as Northfield’s. Cutting pharmacies’ tiny profit margin is where the PBMs make most of their money, and the non-negotiable contracts they create include “gag clauses” so that pharmacies are not able to tell anyone about the practices. One PBM began requiring a major new bureaucratic requirement on pharmacies this year. We – along with a number of other states – are jumping in to ban the practice.

We are also reviewing how the legislature should be involved in oversight of the state’s renegotiation of two special arrangements we have with federal health care funding. One is called the “global commitment,” a five-year agreement now up for renewal. It allows us to use Medicaid funding for new initiatives as long as we can show it is resulting in lower-than-otherwise-projected spending.

The second is the “All Payer Model,” which allows us to join the same accountable care organizations that were established through federal law to reform payment systems for Medicare, with our Medicaid program and with voluntary involvement of commercial payers. The concept is solid: if we all use the same mechanisms, we create a more uniform system and we save money. It hasn’t yet really taken off and proven itself yet. It’s a bit of chicken and egg: insurers don’t want to sign on until they see it working, but it won’t really work until enough people are signed on. That agreement is up for renewal next year. We want the two to be aligned, and we want to maximize opportunities that may result from new Biden administration policies.

***

Forensic System

I will be reporting a bill on the floor next week that will initiative a deep dive into potential reforms to our current system for addressing people who may have committed violent crimes but can’t go to trial (or are found not guilty) because of a severe mental illness. We haven’t updated it in years, and other states are well ahead of us in best practices.

There is a great deal of public fear to contend with on the subject because of public misperceptions. First, people with a mental illness do not commit violent crimes at a higher rate than any other group. There is a different perception because of how these situations are publicly reported. In fact, of all psychiatric hospital admissions in Vermont, about one half of one percent are of people accused of a crime.

When fear drives reactions, however, the second factor is that policy is sometimes based on fear and we forget we are addressing people who have not been convicted of a crime and are constitutionally entitled to the presumption of innocence.

That doesn’t mean our system doesn’t need reform, or that we can disregard public safety in regards to individuals being held in a hospital instead of prison. But it is a complex area of law that can’t be undertaken hastily. That is what will be assessed, with an eye towards revising our current laws over the next several years.

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  It is an honor to represent you. Please contact me (adonahue@leg.state.vt.us) or Ken (kgoslant@leg.state.vt.us) anytime to share your input, ask questions, or raise concerns. My full archive of legislative updates can be found at representativeannedonahue.blogspot.com.

April 24 2021 Legislative Update

We are entering what has been promised to be the last four weeks of the session. Senate committees have passed (or will, by Monday) the big money bills for the state budget and the capital construction budget. Those will be debated in conference committees for alignment and this is the sign that the end is in sight.

I was very happy to see that the Senate made no changes to the language my health care committee wrote for the capital bill. The administration sought, and received, the authority to begin construction of a 16-bed locked facility for individuals who no longer need inpatient psychiatric care but are not yet ready – for safety reasons – to return home. While we agreed to that, our concern was the severe shortfalls in other parts of our health care system for mental health needs. We added a requirement to the bill that a statewide assessment be made for those needs along with review of whether the emergency federal infrastructure funds could be used for the highest priorities identified.

It was prescient. If you saw the WCAX report this past week, it turns out that the longstanding issue of waits in the emergency room because of a log jam in diversion programs and inpatient beds has worsened significantly. We held a hearing to focus on children caught in this limbo, bringing the administration, hospitals and parents to the table.

The update we received was staggering. Last week, there were 19 children stranded in emergency rooms across the state. Fourteen of them had been waiting between one and six days. Three had been waiting seven or more days. Yes, days – not hours.

Children in a mental health crisis so severe that they need inpatient hospitalization, waiting an average of three days each, confined to a single emergency room bay without treatment, without anywhere to go. Four hospitals reported that between 20 and 35 percent of their ER beds were being occupied by patients waiting for a transfer for admission.

I’m going to copy an excerpt from a letter I received as a submission to Counterpoint, the mental health newspaper I edit as my “day job,” because it was that letter that was the red flag that led to our committee’s hearing: “[W]hile I walked through the ER to my own room waiting for [lab] results, I could see the lines of safety workers in front of doors to other patients. The doors were half open and I could see the children, the young teens, the lost blank stares of ones who had been waiting too long for help and were instead locked in as boarders of the ER. A young girl about ten sat on a bed, her eyes wet with tears, the safety worker at the door plugged into the internet, the young girl's gaze settling on me for just a moment. She knew I was just walking by, no lift of hope, no realized dream that I could help her out of the limbo she was in.”

The language we placed in the capital bill can help ensure that the need for crisis beds for kids rise to the top of the future priority list, but it does nothing for the children waiting next week or next month. We have directed the Department of Mental Health to come back this week with an emergency response plan. If we can put up emergency hospital wings for COVID standby in two weeks’ time, surely, we can do better for our children.

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Pensions

It isn’t news for me to tell you that our state employee and teacher’s pension funds are in crisis. This past week the House passed a bill that will begin to address it. I wasn’t happy with the bill, because it, once again, delays real action while the shortfall grows exponentially every month that it is not addressed. The bill creates a legislative task force to report back for legislative recommendations for action next January. However, because we failed to achieve any consensus on how to move forward immediately, it became the necessary next step, and I voted for it. As far as I was concerned, the one proposal that was placed on the table earlier was unacceptable. You don’t renege on commitments already made. You fix it going forward.

There was one improvement made, because a significant part of the problem has been that the investment decisions over the past decade have returned only about half the average returns in the market. The bill makes the investment board an independent commission and adds two financial experts to its ranks.

There was quite a kerfuffle over whether the task force was “stacked” against labor, and I heard concern from several constituents on this issue. It’s important to know what that argument was. The task force has six members from employee union groups (state workers, teachers, and state police), two members from the administration, one member from the Treasurer’s office, and six legislators. The only way that is “stacked” is if you count it as six versus nine, in other words, the legislators are a part of management. But they aren’t, and neither is the state Treasurer. This also is not a bargaining group. It’s a brainstorming group, to bring a proposal back to the legislature, and the overall public interest – employees and taxpayers alike, represented by the legislators – needs to be fully present.

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Bottle Bill

I was all in favor of the bottle bill expansion until I found out what it actually included. I think most folks thought – like I – that we were expanding the deposits to include the other single-serve beverages (water, iced tea, and so forth) so often littering our byways. Come to Green Up Day on Saturday and see for yourself.

The bill passed by the House last week goes way outside of those lines. If the Senate agrees, you’ll be paying the nickel deposit on any size beverage bottle – everything but milk or local cider. That includes a gallon of OJ or the 3-quart fruit juices; wine is added in as well. The large sizes will be a nightmare for our redemption centers, but an amendment to remove the large containers failed. Ironically, the local cider exemption was added in for local farmers who would be challenged in collecting and returning those nickels, but without a thought to include other local farm-produced beverages such as iced tea or lemonade.

The other problem is that we passed our universal mandatory recycling law since the original bottle bill. Waste haulers invested in new infrastructure to handle it all. It has been so highly successful that Vermont is now the state with the highest rate of recycling in the country. If the more valuable plastics now are diverted from that recycling stream, the waste haulers can’t offset the costs of all the less cost-efficient ones, such as paper. The result will be increases in charges for recycling from your local transfer station or your pick-up service. So, you’ll pay a lot more for groceries unless you separately bring them in for redemption, and you’ll pay more for your regular recycling as well.

Taken as a whole, this could well result in a reduction in recycling -- the very opposite of the well-intended goal. That is why I ended up voting against it.

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Literacy

It was good to be passing a bill that invests some of our federal emergency dollars in literacy education. Our kids have suffered from a year of remote learning, and literacy skills were already a problem area. But one line in the bill caught my eye: it discussed educator training in “five key areas of literacy instruction as identified by the National Reading Panel, which are phonics, phonemic awareness, vocabulary, fluency, and reading comprehension.”

I’m really hoping that the idea that phonics is a key to literacy isn’t being identified as a new idea! I went to kindergarten and first grade in the D.C. public system at a magnet school that was experimenting with a return to phonics. They found that it worked. That was 60 years ago!

I hope we’re not just returning to phonics as a key to literacy now.

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It is an honor to represent you. Please contact me (adonahue@leg.state.vt.us) or Ken (kgoslant@leg.state.vt.us) any time for questions; you can also ask to get on my direct mailing list for these updates. Remember that you can access any of my updates from the past on my blog at representativeannedonahue.blogspot.com.

April 11, 2021 Update

The House Health Care Committee is looking at the question right now about when it is right to do something to help a whole lot of people, knowing that your action will negatively impact a few. There is very little that we can do to directly influence how people must pay for health insurance, because it is so heavily regulated by federal law. A specific part of the new American Rescue Plan Act gives us a window of opportunity, however, to help ease health care premium increases for small businesses, non-profits and municipalities next year. Understanding the opportunity gives a glimpse into the complexities of our current system of paying for health care.

I should begin by saying the most important part of ARPA for many individuals is that you stand to benefit tremendously from the increase in premium tax credits. If you currently buy health insurance as an individual, rather than through work, should be checking immediately at Vermont Health Connect to see whether you should change your plan. This is most important if you are buying a plan directly from Blue Cross/Blue Shield or MVP and receiving no tax credits.

It is highly likely that you are now eligible for some help, but it requires that you buy your plan directly through Vermont Health Connect. VHC is open right now for new enrollment in part for this reason. In addition, if you are going without insurance because it was simply unaffordable to you at full price, you may now be eligible for help. Please check!

The Deeper Dive

The first background piece about our opportunity to help small business groups is these new, increased tax credits. Regardless of my angst over the huge deficits we are taking on as a nation through the economic stimulus efforts, I strongly support the aspect regarding the new investments to help people with health care.

Another “regardless”: whether moving to some sort of universal coverage system would be a wise solution in the future or not, I think our current gross disparities in the ability of people to get coverage – which means getting access to health care itself – is unconscionable. Hardworking people making the same amount of money may pay virtually nothing, or huge percentages of their income, to get insurance. If you are very poor and eligible for Medicaid, you are in great shape. If you have a job that provides excellent benefits, you are in great shape. If for reasons outside of your control you are working for an employer who offers minimal coverage, or you are self-employed, you are in a highly inequitable position.

Ever since the Affordable Care Act passed, one such moderate income group was the folks buying their own insurance who fell “off the cliff.” Tax credits go up to 400 percent of the poverty level, and up to that point, the ACA standard was that someone should not have to pay more than about 10 percent of their income for insurance. Tax credits (and at lower incomes, premium subsidies) filled in the rest. At 400 percent, the supports were cut off, and those individuals could end up having to pay 15 or 17 or even a higher percentage of their income. You fell off a cliff.

Under ARPA (the new federal rescue plan), those credits have no cutoff. It sets about 8.5 percent of income as the “affordable” standard, and as long as the basic plan exceeds that based on your income, you can get help. That puts many folks on a more equitable footing, and the cliff is eliminated.

Small Groups

The individual market is always the most expensive. The smaller the market the higher the cost, because the risk cannot be spread out over as many individuals. The next market group is the small business market, those with fewer than 100 employees. There is a large group market as well, but very few employers are in it in Vermont (about 3% of Vermonters) because at that size, they flee to the “self-insured” market, because that is regulated solely by federal law. None of Vermont’s requirements and protections apply to that category.

Since the ACA, there has been a 40% shift of large employers to becoming self-insured, and that market is now 33% of private insurance in Vermont. Dividing the other biggest pieces of pie up, Vermont has about 25% under Medicaid, 22% under Medicare, 15% in the combined small group and individual market, and about 3% uninsured. The 15% is split about 55/45 between small group and individual.

I mentioned that the individual market is the most expensive. Vermont made a controversial policy decision at the start of the ACA, requiring small business to be combined with the individual market, called a “merged market.” This helped individuals save some money because the market was bigger.

Continued in part 2

 

Continued from Part

The savings comes at the expense of the small business group, which had to pay rates that are higher. Small business is subsidizing people who have to buy as individuals. When we did an analysis from 2018, we found that this saved about 7% of the premium cost for individuals, and cost small businesses about 5% extra. The numbers may have shifted since, but that’s the ballpark we have, to work with. It has always been unfair to do this – but the dilemma was that it would strand individuals if we “unmerged” this market, and we were blocked by federal law from spreading the cost further by including larger employers.

What Changed?

The increase in federal tax credits has changed this picture. If the individual market cost increases by 7%, the vast majority of those people will be 100% shielded from that increase because of the new credits. We can unmerge the market and reduce premiums for small businesses, non-profits, and municipalities and their employees without a negative impact on the individual market.

Wow! A win-win. Well, not 100 percent.

First, this tax credit boost only lasts for two years; it can only help small business without hurting individuals for one insurance coverage year. It does seem likely that public pressure across the country will prevent Congress from repealing this, and the small business community has testified to us that even if it is only a one-year break, it is still worth it for them.

Second, not quite everyone wins. People in the individual market who have an income high enough that results in a plan costing less than 8.5% of their income would see that 7% increase. That actually represents the actual cost within that market, but it would be a change from existing cost for them. That is estimated to be fewer than 10% of folks currently in the individual market, because most folks at this income level have robust employer coverage. (Currently, about 32% in the individual market do not receive credits or subsidies; the drop would represent the impact of the ARPA increases.)

An even smaller number of people could be hurt in a more complicated scenario from something called the “family glitch.” This is an inequity that was unintentionally created by the ACA. People cannot go to the individual market and get subsidies if they are offered employer insurance, unless that insurance is deemed “unaffordable.” Unaffordable is defined as basic coverage that would cost more than about 10% of the employee’s household income.

The glitch is that the percentage is based upon full household income, but in relation to the cost of an individual (single-person) plan. The federal administration is trying to find a way to address this glitch, but it is not clear whether it will get resolved. Thus, those folks may remain not eligible for tax credits if they go to the individual market, but might still want to, if it provides better coverage than their employer plan. If we “unmerge” the markets, that market plan would cost them that estimated 7% increase in premium. This is fewer than 300 people in Vermont, but it still means we cannot say that this change would only benefit people, and cost no one.

These two sub-groups would have to pay the actual cost of the very small individual market, without the current benefit of being subsidized by small businesses. It is still the right thing to do. The estimate is that the small group and its employees could save about $17 million in this one year. But we have to have our eyes open, and acknowledge that there will be some individuals whose premiums would go up as a result.

Other Bits of Action

A bill requiring anyone who does any project valued at more than $3,500 to sign up on a new state registry as a contractor passed the House last week. The registry ties into a slew of requirements. Picture a college kid doing a summer project for a neighbor who fails to keep the records for seven years, or doesn’t provide her email change within 30 days.

The potential penalty? A $5,000 fine. It that likely to ever happen? Of course not. But we ought not to put things in statute that we do not intend to ever happen on the premise that it’s “not likely.” I can claim direct credit for one thing. I pointed out that the bill also had a cross-citation that allowed up to a one-year jail term for failure to register. As a result, the committee amended the bill to remove that penalty.

It is an honor to represent you. Please contact me (adonahue@leg.state.vt.us) or Ken (kgoslant@leg.state.vt.us) any time for questions; you can also ask to get on my direct mailing list for these updates.