2017 VMS Legislative Wrap Up

Welcome to the Vermont’ Medical Society’s 2017 Legislative Wrap-up.  Below you’ll find summaries of major pieces of legislative that VMS engaged in on behalf of the state’s physicians during this year's session, grouped into five categories:  

Bills that have passed but do not yet have an Act number have not yet been signed into law.  VMS expects all passed bills other than those specifically noted to be enacted.  Bills that have passed one body or are still in committee will remain in consideration in 2018, the second year of the legislative biennium.

Thank you to all members who testified, attended press conferences, and reached out to lawmakers this session.  Your dedication to your patients and profession is clear and apparent.  Your voice has a real and profound effect on the lives of all Vermonters.

For more information, please contact:

Paul Harrington, VMS EVP, pharrington@vtmd.org

Jessa Barnard, VMS VP for Policy, jbarnard@vtmd.org

Stephanie Winters, VMS Public Health Policy, swinters@vtmd.org

 

Health Financing/Health Reform

H. 507/Act 25 - Next Generation Medicaid ACO Pilot Project Reporting Requirements (Passed)

The act requires DVHA to provide updates to the legislature on implementation of the Next Generation Medicaid ACO pilot project. It requires the Green Mountain Care Board to report on the Board’s progress in meeting benchmarks for implementing the all-payer model and the Board’s preparations for regulating accountable care organizations.

H.518 - The BIG BILL – Fiscal Year 2018 Appropriations Act (Passed, Veto Expected)

Within the 210 pages of H.518 as passed by the House and Senate are a number of health care reform initiatives as outlined below.  While the Governor has indicated he will veto H.518, the health care provisions should remain in the final version of the bill.  

The state’s Director of Health Care Reform is transferred from the Agency of Administration to the Agency of Human Services where Director Kate Mohlman will now work under Secretary of Human Services Al Gobeille. The director’s duties include coordination of health care system reform efforts among Executive Branch agencies and coordinating with the Green Mountain Care Board.  The director of also oversees the development of a current health care workforce development strategic plan to ensure that Vermont has the health care workforce necessary to provide care to all Vermont residents.

The Secretary of Human Services is also directed to conduct a comprehensive review of the Agency’s care coordination efforts, including the Vermont Chronic Care Initiative, the Blueprint for Health, the pediatric High Tech Home Care program, and Community Rehabilitation and Treatment, in order to align care coordination services and reduce duplication of efforts. 

The bill calls for DVHA to align Medicaid provider payments in order to further support access to primary care, including access to independent primary care practices and mental health services statewide. In order to accomplish this, DHVA is authorized to adjust the total Disproportionate Share Hospital (DSH) amount to a level no lower than $27,488,781; set a specific limit for annual DSH payments to UVMMC within the DSH formula; and, review and adjust current facility-based payments, and specifically evaluate any Medicaid payments that are above the payment from Medicare for the same service in order to further enhance primary care payments in fiscal year 2018.  DVHA will report to the Joint Fiscal Committee in September and November 2017 on any payment adjustments and transfers made.

The Green Mountain Care Board will use $2,567,518 in Global Commitment Funds to encourage the formation of public-private partnerships to improve the health care delivery system. The Green Mountain Care Board is also directed to report to the Health Reform Oversight Committee by October 1, 2017 describing what substantial changes have been put into effect to achieve site-neutral, fair reimbursements for medical services. The Board has formed the Pay Parity Work Group to advise it in these efforts and VMS General Counsel Jessa Barnard has been appointed as a member of the group.

S. 53/H. 248, Universal Primary Care (Still in Committee)

The Senate Health & Welfare Committee took several mornings of testimony regarding a proposal to create a system of universal primary care for all Vermonters.  The Committee specifically asked for testimony from physicians regarding how the proposal could change the bottom line for primary care practices, how it could affect the amount of paperwork for practices and whether either of the above would serve as a recruiting incentive for primary care.   The legislature has commissioned several studies of the issue in past years, including a review of the costs and savings associated with the model.  The Committee did not advance the proposal this year.  

Mental Health

S. 3, Duty to Warn (Passed)

This session, the legislature passed S.3, a bill that addresses the duty to warn that applies to psychiatrists and other mental health professionals if a patient poses a threat to a third party.  The legislature adopted the standard that has been in effect since a 1986 Vermont Supreme Court decision called Peck v Counseling Service of Addison County and states that Peck establishes the duty to warn in Vermont: “a mental health professional who knows or, based upon the standards of the mental health profession, should know that his or her patient poses a serious risk of danger to an identifiable victim has a duty to exercise reasonable care to protect him or her from that danger.”  S.3 was needed in response to a Vermont Supreme Court decision called Kuligoski v. Brattleboro Retreat that expended the duty to warn far beyond the Peck standard.  VMS was integral to creating and leading the coalition of organizations supporting the bill, including hospitals, mental health professional associations, patient advocacy organizations and the Agency of Human Services.

H. 230/Act 35, Minor Consent for Mental Health Care  (Passed)

H. 230 will allow minors to give consent to receive any legally authorized outpatient treatment from a mental health professional, including psychiatrists, psychologists and other licensed mental health providers.  The minor will be able to consent to psychotherapy and other counseling services without the consent of a parent or legal guardian, but not to receive prescription drugs.  Previously, Vermont law only allowed minors 14 or older to consent to in-patient mental health treatment.  The law takes effect on January 1, 2018.

S. 133, Mental Health Care & Care Coordination (Passed)

The Senate and House spent significant time this session working on S. 133, a bill aimed at addressing the needs and capacity of the mental health system.  The bill creates a number of studies of the mental health system including: 

  • An analysis and action plan from the Secretary of Human Services that addresses the overarching structure of the mental health system and gaps in services; patterns of use, referrals to, and wait times in the emergency department; the need for regional navigation and resource centers; the need for additional crisis diversion services; the extent to which additional services or facilities are needed for geriatric or forensic patients; and how crisis response teams and crisis beds are funded (Sections 3 & 4);
  • An analysis by the Secretary of Human Services of the use of involuntary treatment and psychiatric medication, including the role they play in inpatient emergency department wait times and concerns stemming from the existing judicial timelines and processes (Sec 5);
  • A review by the Green Mountain Care Board of how accountable care organizations integrate community mental health care providers and promote coordination of care (Sec 6);
  • The creation by the Secretary of Human Services of a plan to integrate the multiple sources of payments for mental and substance abuse services to designated agencies (Sec 7);
  • The creation of a Mental Health, Developmental Disability and Substance Use Disorder Workforce Study Committee to examine best practices for training, recruiting and retaining mental health and service providers (Sec 9);
  • A review by the Director of Professional Regulation of interstate licensing compacts or other methods for coordinating the regulation and licensing of mental health professionals (Sec 10);  
  • Charging the Secretary of Human Services with responsibility for ensuring rates paid to designated agencies are adequate (Sec 11); and
  • A review by the Commissioner of Human Resources regarding the operational feasibility of including designated agency staff in the State employees’ health benefit plan (Sec 12).  

H. 184/Act 34, Evaluation of Suicide Profiles (Passed)

This Act requires the Secretary of Human Services to report what methods the Agency currently uses or plans to use to determine trends and patterns of suicide deaths; risk factors for preventable deaths; gaps in systematic responses and how data will inform the implementation and prioritization of suicide prevention activities.

Practice of Medicine

S. 14/Act 39, Expanding the Vermont Practitioner Health Program (Passed)

As VMS’s request, the legislature took up and adopted S. 14.  The bill has been signed by the Governor and goes into effect July 1.  The law will expand the Vermont Practitioner Health Program (VPHP) to allow it to serve all Board of Medical Practice licensees who are, or are potentially, unable to practice medicine with reasonable skill and safety.  Currently the program is limited to serving licensees with substance use disorder.  VPHP provides evaluation, coordination of care and monitoring services for licensees, including physicians, physician assistants, podiatrists, anesthesiologist assistants and radiologist assistants.  VMS, the Board of Medical Practice, the PA Association of Vermont and the Vermont Podiatric Medical Association all supported the bill. 

VMS also worked with the Board of Medical Practice and House Health Care Committee to add a provision that will now allow physicians to receive a license fee waiver if they limit their practice to volunteering with the Vermont Medical Reserve Corps. 

S. 50, Telemedicine (Passed)

The legislature passed S. 50, a bill that will expand insurance coverage for telemedicine services, no longer requiring that a patient be located in a facility to participate.  Current law limited the requirement for health insurers to cover telemedicine - other than primary care - to situations when the patient was located in a health care facility.  This bill will expand coverage to telemedicine provided to patients who are not located in a facility and will include locations such as a medical office or the patient’s home, school or workplace.  In addition, the bill expands the types of clinicians who are eligible for reimbursement for telemedicine services to any licensed or certified health care provider that is in the health insurance plan’s network.

The House-passed version of the bill also required informed consent with detailed items that must be covered with the patient in the consent process.  VMS partnered with other health care organizations to urge the Senate to reject a number of the detailed consent requirements, as they would not apply in all contexts.  In the end, the law requires written or oral informed consent that covers: the opportunities and limitations or delivering health care services through telemedicine; informing the patient of any other individual participating in or observing the session and obtaining the patient’s permission for that participation; and assurance that the services are being provided in a HIPAA-compliant manner.  

H. 111/Act 46, Vital Records  (Passed)

H. 111 makes a number of updates to Vermont’s vital records laws, for example, creating one Statewide Registration System to be the repository for all birth and death certificates and requiring, for the first time, identification to be presented by someone requesting a copy of a vital record.  Most notable for VMS members, the requirement for submitting reports of birth (Sec. 20) clarifies that the attending physician or designee have five business days to submit a report of birth (rather than five calendar days) and the report will be submitted to the State Registrar in the Department of Health Office of Vital Records.  Section 47, related to reports of death, clarifies that the licensed health professional has 24 hours after a death to submit the medical portion of a report of death.  VMS weighed in primarily in response to a penalties section of the bill as introduced, which would have increased the penalties for certain violations of the law, including failing to submit a birth or death certificate in a timely manner.  VMS successfully modified the language in the House, and the penalties section was removed entirely in the Senate.

S. 16, Medical Marijuana (Passed)

The bill makes numerous changes to the state’s medical marijuana program, including the addition of post-traumatic stress disorder, Crohn’s disease and Parkinson’s disease to the list of debilitating medical conditions of diseases or medical conditions.

PTSD was added over VMS and Department of Health objection. However, as a compromise, the bill requires that the Department of Public Safety confirm that patients with PTSD are also in counseling or psychotherapy with a licensed mental health provider, as the House Human Services Committee acknowledged that marijuana does not treat the underlying condition. 

The bill also:

  • Eliminates the three-month health care professional-patient relationship if the patient is referred to a specialist in treating one of the specific debilitating medical conditions listed in the law;
  • Eliminates the requirement that the patient’s application for registration to the Department Public Safety be notarized;
  • Eliminates the requirement that the health care professional attest that reasonable medical efforts have been made over time without success to relieve the symptoms;
  • Adds to the medical verification form a statement that the form is not considered a prescription and the only purpose of the form is to confirm that the applicant has a debilitating medical condition;
  • Allows each dispensary to serve patients at two locations (rather than one) and allows the Department of Public Safety to increase from 4 to 6 the number of dispensaries statewide if the registry reaches 7,000 patients; and
  • Directs the Agency of Agriculture and Department of Public Safety to study how best to test marijuana-infused products to verify proper labeling.

As introduced, the legislation required that all physicians (MDs and DOs) take one hour of continuing medical education every two years specifically devoted to the Medical Marijuana Registry. Following VMS’ testimony in opposition to the new CME requirement, the provision was deleted from S.16.

S. 45, Gift Ban Bill  (Passed Senate, Still in Committee in House)

S. 45 makes changes to Vermont Prescribed Products Gift Ban.  As passed the Senate, the bill will allow physicians and other clinicians to accept food paid for by a pharmaceutical company provided at a continuing education conference, as long as any accompanying content is CME-accredited or otherwise objective and free from industry influence.  The bill would also exempt from reporting to the Vermont Attorney General the value of food generally available to all conference participants such as buffet meals, snacks and beverages.  The bill received unanimous support from the Senate Health & Welfare Committee and passed the Senate by voice vote early in the session.  The House Health Care Committee did not take up the bill this year.  VMS remains committed to ensuring that Vermont’s Prescribed Products Gift law not unnecessarily impede access to CME courses while recognizing the impact that gifts can have on prescribing practices.

H. 92, Interchangeable Biologics (Passed Senate, Still in Committee in House)

H. 92 would allow pharmacists to substitute biological products deemed “interchangeable” by the FDA, similar to Vermont’s law on generic substitution for drugs.  VMS testified as neutral on the bill, but worked to ensure that physicians would be notified of substitutions, including if they do not have electronic record systems.  The final version of the bill approved by the Senate Health and Welfare Committee requires that prescribers request on a prescription if they want to be notified of a substitution in a non-electronic form.  The bill remains in the House Health Care Committee and VMS will continue to work on the language in the House to find a less administratively burdensome way for prescribers to be notified of substitutions. 

Professional Regulation / Scope of Practice

H. 506/Act 48, Office of Professional Regulation -  APRN Scope in Nursing Homes, Move of Board of Medical Practice  (Passed, in part)

H. 506 was this session’s bill presented by the Office of Professional Regulation (OPR) to make any necessary changes to the laws regulating the professions overseen by OPR.   In general, VMS did not have concerns with the content of the bill, which largely made technical and noncontroversial changes to the various laws related to OPR.   Some of the changes noted by VMS include making the unprofessional conduct standards for professions licensed by OPR more consistent to those used by the Board of Medical Practice (Sec 4); clarifying that the certification required for physicians, podiatrists and naturopaths before applying ionizing radiation also applies to chiropractors (Sec 19); allowing APRNs and PAs to refer to athletic trainers (Sec 31); and putting into statute an existing requirement that the Director of OPR monitor nonacupuncturists employing acupuncture as a therapy (Sec 25).

Section 34 of the bill relates to the scope of practice of Advanced Practice Registered Nurses working in the nursing home setting.   This provision was initially found in a stand-alone bill, H. 345, but was rolled into H. 506.  This section allows APRNs to fill the role of providing certain state- and federally-defined “physician services,” in the nursing home setting, namely reviewing the resident’s care plan and performing periodic in-person visits.  These are tasks that are within the APRN scope in other settings, but Vermont Department of Disabilities, Aging and Independent Living regulations have to-date not allowed APRNs to provide these services in nursing homes.  Federal regulations give states the flexibility to define who can fill this role.  Federal law would still require the nursing home medical director to be a physician and that the nurse practitioner work in collaboration with a physician.   This effort was led by the Vermont Health Care Association (representing nursing homes).

The Senate Government Operations Committee held a number of discussions on the topic of which professions should move from being regulated by other agencies or departments to be under the umbrella of the Office of Professional Regulation.  Both Committee members and OPR have consistently stated that it would lead to efficiencies and less duplication of services if all licensing was done under the auspices of OPR.  VMS stated that the Board of Medical Practice’s ability to protect the public through its licensing and disciplinary functions can best be assured by maintaining oversight authority by the Vermont Department of Health. The Government Operations Committee ended the session without naming specific professions that must move to OPR but did include in Sec. 35 of H. 506 a directive that the OPR and leaders of the relevant other State agencies and departments continue to analyze all professions that are located outside the jurisdiction of OPR, and members of the Committee have stated that they believe the Board of Medical Practice should eventually move, as well.  VMS will continue to actively monitor these activities over the summer and fall.  

H. 496, Regulation of Medical Assistants (Still in Committee)

H. 496 would require the Office of Professional Regulation (OPR) to regulate the practice of medical assistants.  The House Government Operations Committee asked several witnesses to discuss the bill.  Under H. 496, OPR would first have to complete a “sunrise review,” or a preliminary assessment and recommendation as to whether or not the profession should be regulated.  Medical assistants are currently not regulated in Vermont and physicians must only ensure that they are not violating the unprofessional conduct provision of delegating “professional responsibilities to a person whom the licensed professional knows, or has reason to know, is not qualified by training, experience, education, or licensing credentials to perform them.”  18 VSA § 1354 (a)(29).  In the vast majority of states, medical assistants may perform basic clinical tasks and procedures under the direct supervision of a clinician.  However, the framework governing the delegation of clinical tasks varies widely from state to state – some, for example, state specific tasks that can be delegated to unlicensed assistive personnel, while a small minority require MAs to be certified or registered with the state. 

OPR Director Colin Benjamin testified that he was unaware of any harm due to unlicensed medical assistants and that OPR did not have the capacity to complete a sunrise review of the issue this summer.  In response, the Government Operations Committee did not ask OPR to undertake a full sunrise review but did ask for a report back next session regarding how other states regulate MAs.   VMS will continue to gather feedback on the proposal, recognizing that regulation could provide more clarity for physicians and physician practices regarding appropriate delegation but downsides could include less flexibility for the tasks that can be assigned or increased costs for hiring MAs who meet any educational or training requirements established.

S. 71, Pharmacist Administration of Vaccinations (Still in Committee)

The Senate Health & Welfare Committee scheduled a morning of testimony on S. 71, a bill that would allow pharmacists to administer all CDC-recommended immunizations to individuals seven years of age or older.  Under current law, pharmacists can only administer vaccinations to adults age 18 or older pursuant to collaborative practice agreements or patient-specific prescriptions.   VMS, AAPVT, Vermont Department of Health and the Board of Pharmacy testified in opposition to the change and the Committee has not taken up the bill for further consideration.

H. 280, Prescribing by Psychologists (Still in Committee)  

This bill proposes to allow the Board of Psychological Examiners to grant prescribing authority to doctoral-level psychologists who have completed specific educational and training requirements.  The bill was referred to the House Health Care Committee and was not taken up this session.

Public Health

H. 508/Act 43 – Adverse Childhood Experiences (Passed)

Act 43 creates the Adverse Childhood Experiences Working Group for the purpose of investigating, cataloguing and analyzing existing resources to mitigate childhood trauma, identify the populations served, and examine structures to build resiliency.  The Working Group is comprised of members of the legislature and will begin meeting by September 1.   The Group is charged with presenting any recommended legislation by November 1.

H. 170/H. 167/S.22, Marijuana Legalization (Vetoed)

Marijuana legalization took many twists and turns this session, starting out as a stand-alone bill (H.170), tacked on to a bill that would create a study commission on decriminalization of small amounts of illicit drugs (H.167) and finally in the last days of the session added to a fentanyl bill (S.22), which ultimately passed both the House and Senate.  However, the Governor chose to veto S.22, citing concern over highway safety, youth access and receiving many communications from law enforcement, educators and physicians in the state.  The VMS along with the AAPVT and University of Vermont Children’s Hospital sent Governor Scott a letter urging him to consider the ramifications of a bill that would legalize a large amount of marijuana that would be easily accessible to youth in the home.

It remains unclear whether the legislature will take this bill up again during the special session June 21st & 22nd where they will try to reconcile differences on the budget.  There are a number of factors in play that could determine if it will be discussed during this short session.  If you would like to contact your representative to let them know your thoughts, their information can be found here.

S. 88, Increasing Smoking Age from 18 – 21 (Failed)

After a seesaw legislative session, the effort to raise the age for purchase of tobacco products from 18 to 21 ultimately failed, suffering defeat in the Vermont Senate by a vote of 13 (in favor of raising the age) to 16.   To view how each senator voted, click here.  The VMS is part of a coalition including the AAPVT, VTAFP, Cancer Society, Lung Association and Heart Association that worked on this bill and will continue to work together to educate on this important topic and advocate strongly next session for its passage. 

H. 34, Baby Bumper Pads (Still in Committee)

H.34 proposes to prohibit the manufacture, sale, or transfer of crib bumper pads in the state.  This bill was introduced by Rep. George Till, M.D. at the request of the American Academy of Pediatrics Vermont Chapter citing deaths directly attributed to bumper pads (suffocation) and injury-incidents (babies pull to stand and the pad allows them to step-up to climb out of the crib).  AAPVT & VMS will advocate for this bill to be discussed in House Human Services next session.

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