SmartTranscript of Senate Judiciary 2025-04-25 - 10:50AM

[Chair Nader Hashim]: There are I'm informed there are some pieces that are paying to judiciary, so we are going to hear from ledge council about those pieces and, Katie, we'll see if there's any discussion. [Speaker 1 ]: Of course, it is. [Michelle Childs]: So great. Good to be back. Michelle Chaz, for the record, office of legislative council and joint Oh, nice. Jim Garvey, office of legislative council. So I'm gonna just start a little bit, and I think you're just taking a look at sections one, five, six, and eleven. Okay. Thirteen. And and we'll go through those with you, but I just wanted to kind of refresh your memory as the senator mentioned to me earlier because didn't we is this what we did a couple years ago? And you are correct. And so in twenty twenty three, their the legislature passed act thirteen and act fourteen with respect to legally protected health care. Remember, legally protected health care is in title one, and it's defined as reproductive health care services and gender of primary care health care. Those are there's several places in law where it's the state of policy of Vermont to be protecting access to and provision of that type of health care in Vermont. There those two bills, you'll recall, there was one that lives primarily in the health and welfare committees that was around regulated professions and and medical data. And then there was the other one the other bill having to do with civil and criminal procedures that was in the judiciary. So that's why we both kind of work on the legal Wow. It's a different representation. Issue. Of the bill. So remember that one of the big things that came up in enacting those bills was the issue of interplay between the states in terms of recognizing the laws and judgments in other states. And so I just wanna start out just kind of reminding folks about full fake credit positive constitution and that generally, there is common tea, not common tea, but common tea between the states and recognizing the statutes, the public acts and the judicial orders in other states. When it comes to court orders, there's very little room for a state to assert that there's a reason to testify, you know, complying the order. So, generally, if it is a judicial order, you must comply with the judicial order. There's few little exceptions around if they're if the court didn't have proper jurisdiction or the person did not have to process. But other than that, you have to follow your court orders. But when it comes to recognizing the laws of other states, there's more room for states if they have adopted a certain public policy that is Good. Contrary to the other states, then Vermont can say this other state's policy policy and laws are contrary to how we did stare, and [Chair Nader Hashim]: we don't have to recognize it or apply them when there [Michelle Childs]: is a situation here in Vermont. And so that's kind of the underpinning of the the machine laws. Right? Vermont can only control what goes on in Vermont. Right? We can't tell New Hampshire what to do. We can't tell the feds what to do, but we can control this legislature to adopt the law, say this is the state policy, and the state has chosen to protect either, you know, seeking, providing, or facilitating and someone getting a legal consultant health care. So section one is an amendment to the definition. Section of legally protected health care. You wanna talk about it? [Chair Nader Hashim]: Sure. [Michelle Childs]: So this is adding a permission to the existing definition in title one of legally protected health care activity to say that the protections that apply to people who engage in legally protected health care activity Also apply to a person who has previously undertaken one or more acts or omissions while in another US jurisdiction too. And then this is using some language that just repeats what's in earlier in the definition. To aid or encourage or attempt to aid or encourage any person in the exercise and enjoyment or attempted exercise and enjoyment of rights to reproductive public care services or gender affirming health care services that would have been protected by the state that they had been undertaken in this state, provided that the acts or omissions were permissible under the laws of the violation which the person is located at the time they were undertaken. Basically, if it was allowed in the state where the person was when they were helping somebody or engaging or performing services related to reproductive health care or gender affirming care, if it was legal where they were and would have been legal if they were in Vermont, Then if they come to Vermont, Vermont will protect them from adverse actions relating to their their participation in the legally protected health care. Yeah. [Speaker 1 ]: So so if it's legal in state a, it's legal in the law, what do we need to say? [Michelle Childs]: So so, again, so so in New York so if the if the provider engaged in conduct that was legal in New York, right, again, New York can only control what's within the borders of New York. Right? Once that person leaves the states, then they're susceptible to the other state's laws. Right? So so that person, let's say, in the case of the New York provider, being a patient that had been a patient there as New York but was in Texas at the time, and they, you know, prescribed medication or such. And then it was against Texas law if Texas was gonna go after that provider, and that but that provider was at home in New York. When they provided that care, New York would protect them. But once they leave the jurisdiction of New York, they're subject to the laws of another state. The way that ours our current definition is set up is that it is focused on people who either provide the care in Vermont, obtain the care care in Vermont, or they're helping someone obtain that care in Vermont. So that New York doctor doesn't have a nexus with Vermont. But if they were to travel here so, you know, we gotta a they're our neighbors. Right? Somebody comes across the the lake and goes to their friend's camp for the weekend. They would not be currently under the provisions of the law currently covered by our Vermont by Vermont law because they didn't provide those services here. But New York law and Vermont law are very similar, and it it and it was legal in New York and that conduct is legal in Vermont, then they would have that protection in Vermont. So if you have a situation where, let's say, the New York doctor, let's say, Texas has charged that doctor with a crime. Right. They have issued a fugitive warrant. There's one circumstance, like, you know, there's a provision what we did in the shared law a few years ago that says that in cases of extradition, we are not going to extradite someone to the demanding state unless that person is a fugitive from justice and was physically present in the demanding state at the time of the alleged offense because that's like a space where states have some discretion about whether or not to comply with an extradition warrant. Generally, states are required to comply with extradition warrants. But if the person is not a fugitive, as in the sense that they have literally fled the demanding state, they committed the crime in the demanding state and fled the demanding state, but the New York doctor was in New York when they provided the care. Right. So if there was a warrant that was out, right, and so that let's say the New York doctor comes over to to Vermont and, gets stopped for speeding or something like that, and they pull up and they see that there's a warrant for that, they would still get the protections in Vermont that they would get if they were in New York. [Speaker 1 ]: That's the longest this law and Correct. [Michelle Childs]: Yes. If it was legal if if if what they engaged in was legal in New York and protected in Vermont and certainly would have been legal if they had engaged in that activity here, we're allowing them to have the same protections as the state of Vermont. Like, this So [Chair Nader Hashim]: so, basically, it's getting a [Michelle Childs]: You know what it was for? [Chair Nader Hashim]: If a third state is trying to get involved, it protects against that. So instead of a [Michelle Childs]: So I think I I'm pretty sure I understand, and I think I have sort of a simple way of framing it, and that is basically to say, if that Thursday was just waiting for the person to leave New York to actually wrap them, this means that they would still be protected and from up. That would not be possible. Correct. Yeah. [Speaker 1 ]: Yeah. Really. [Michelle Childs]: No. It's fine. It's not that it's within one state. So it's just providing reciprocity to the other states that have shield bonds. Because it terms of the protections, whether it's patient or providers among themselves. [Speaker 1 ]: Stuff. Yes. [Michelle Childs]: So the next section, it is section five. That's [Speaker 1 ]: it. Page ten. Yeah. [Michelle Childs]: Alright. Noncooperation. I think y'all have me talking about this idea a little bit. I don't know. So there's a provision in title twelve that was part of your one of your shield bills in twenty twenty three on noncooperation. And, essentially, what it says is that you know, it's identifying the fact that, in several places you've said, you know, this type of health care is protected in Vermont. It's the state policy. Therefore, if there is any action from outside of the state to infringe upon legally protected health care on the, you know, infringe on the rights of somebody who's a provider or seeking care or facilitating someone getting the care, then the state's not gonna devote any resources to helping. Doesn't mean they're gonna interfere. Doesn't mean, you know, whatever, but they are not going to assist in another state's match of what's called, like, tortious interference with legally protected health care. He has some provisions in title twelve around that. The state is not gonna assist with that type of of prosecution of the person. The change here that you see other than changing from person to individuals, you'll see on line thirteen, there's the addition of federal. So when this issue was before the general assembly in twenty twenty three, it was focused on interstate interaction. This is adding federal there. So, again, if there were some type of circumstances where the federal administration was seeking to punish someone who is protected in Vermont for seeking or providing care, legally protected health care, then Vermont would not would not assist in in those actions. So I also wanna draw your attention to the there are exceptions there. The first one, you see at the top of page eleven under subsection b. One is that if there's some type of investigation or proceeding where the conduct that's subject to potential liability under investigation would be subject to liability or investigation in Vermont, then that's not gonna apply. So if it has you know, if there's something that you know? So it basically it's like it it has to be clearly legal in Vermont. Right? If there's a question as to that, then the state is not barred from participating in that. The second instance is if there's a court order. Right? So, like, when I talked about before, when it comes to bulking in credit and also looking at federal judicial orders, you have to comply with a court order. I mean, there's maybe options for appeal there, but you don't have the option of not complying with a court order. And and so this is just tweaking the language a little bit. I think originally, I had because we were doing back working on with the shield laws and some of the states were sharing language back and forth, and I had in there any action taken by judicial branch, judicial proceedings. And I think it's just clear to say an order issued by a Vermont state court or a federal court. So if it is if there's a federal court order that is saying that, you know, the state has to provide information or cooperate with the rights and some circumstances, even if it would be in violation of our state law, you still have to comply with that. [Speaker 1 ]: So it isn't a goer. It's not a sport order? [Michelle Childs]: So on the you're talking about the extradition Yeah. Issue. So for extradition, you know, generally, you have to comply with all of that, but there's a provision in the law that y'all passed in twenty twenty three that says that you don't comply with a demand for extradition from the demanding states if it concerns legally protected health care and the person who was sought was not present in the demanding state at the time of the alleged offense. [Speaker 1 ]: But it is a court order. Is that judicial review. Right? [Michelle Childs]: But it's issued by the governor. It's not a court order. Yeah. I just want to Right. So I I just wanna mention on three. That's the language you might recall was that when you guys were working on it before, there was a question of what if a law enforcement officer is looking at a warrant and it's not apparent? Like, there's a process for being able to kind of vet those and determine whether it's a valid warrant. But if they are acting on it, even if the basis is for legally protected health care and they would otherwise be unprotected, then you wouldn't recognize the warrant. That's to just kind of address the situation that there's no liability on the part of, like, a a lock or two months or or a same employee or somebody who is, you know, basically, here's the information I'm acting on this based on the based on the information that I have. [Speaker 1 ]: Okay. [Michelle Childs]: Section do you section six, amends HCBSA section eighteen eighty one. This is around some limitations on disclosure of protected health information And this is building on some of the language that was done in two years ago. So starts out with just some existing definitions, many of which all the federal law ones come from HIPAA. And under existing law, not changed in subsection b, a covered entity, which is an entity that is, required that is covered by HIPAA that is required to be applied with HIPAA or their business associate is not allowed to disclose protective health information unless the disclosure permitted under HIPAA. But HIPAA is a floor, not a ceiling. So in subsection c, we've added on some additional state state level prohibitions on disclosure of protected health information. So notwithstanding any provision of subsection b to the contrary, in order to protect patients and providers who engage in legally protected health care activity and accept as set forth in some exceptions in subdivision two, A covered entity or business associate shall not disclose protected health information that is identifiable or susceptible to reidentification and related to legally potential health care activity. And first, to any government entity other than the state of Vermont or its political subdivisions or instrumentalities, if the covered entity or business associate has reason to believe the information you can use either to conduct a criminal, civil, administrative, or professional disciplinary investigation Right. Into any individual for the mere act of seeking, obtaining, providing, or facilitating a legally protected health care activity or to impose liability or to in their action on the again, for a mere act of seeking, obtaining, providing, facilitating a legally protected health care activity or to identify someone for any of those reasons or for use in a in this existing law, in a civil or criminal action of preliminary proceeding or probate legislative or administrative proceeding. And then an existing law, it goes into unless is the same idea, but it's just restructured a bit because of some of the changes we made in the first subdivision. So now it's not withstanding any provision of subdivision one to the contrary. Disclosure is permitted of information protected health information that is identifiable or susceptible to reidentification and related to clinically protected health care activity if it meets any of these conditions. Under existing law and maintained here, the disclosure is authorized by the patient or their representative. Striking out disclosure is specifically required by federal law, Vermont law, or rules adopted by the Vermont Supreme Court. Some of that will fall under some of these other exceptions. The court is I'm sorry. The disclosure is ordered by court of competent jurisdiction. This is a just a law pursuant to federal law, Vermont law, or rules adopted by the Munster Report. So court ordered it must be disclosed. And then this clarifies that a finding must only be made by a state court. Compelling disclosure must include the court's determination under existing law. It's that good cause exists to require disclosure. This would change that to say the information will not be used to impose criminal, civil, or administrative liability or professional disciplinary action on anyone based solely on care the fact that they sought, obtained, provided, or facilitated a legally protected health care activity. The exception in the subdivision, what this would now be c, is mainly just some clarification and that the disclosure will be made to, in this case, a business associate, not just any person designated by the covered entity or their business associate for use in defense against them against in a in a legal proceeding or otherwise. Otherwise, no changes there. No changes to required disclosures to Vermont's Board of Medical Practice or Office of Professional Regulation. If they're doing a bona fide investigation of a Vermont provider or of whether someone who is not licensed here engaged in unauthorized practice. Also, no changes in the next one, which is a disclosure to one of our regulatory bodies in connection with a bona fide investigation of a licensed health care facility in the state. Then a new exception for disclosure that is required in the ordinary course of business of Vermont's Medicaid program, subject to that noncooperation provision that we looked at in previous section. And then finally, there's some protection for the covered entity or business associate from any liability or disciplinary action for refusing to disclose protected and held information in accordance with what is permitted or required in this section. Basically, just trying to make it harder for a a covered entity or business associate in the state to be compelled to disclose protected health information related to legal and protective health care activity. And that's just really to go and look at this section primarily just because it was talking about, you know, disclosure specifically required by federal law, And there's a provision. They did make a a small change to what came out of HouseHealthcare on subdivision c to b, and that's where there's a requirement that the disclosures were by court and competent jurisdiction pursuant to federal law, Vermont law, or court rule. And the language originally said that in order compelling disclosure, that has to include the court's determination, that the information will not be used to impose criminal, civil, or administrative liability or disciplinary action on any any individual based solely on the fact that the person sought a team provided for facilitated legally protected health care activity. And because that said, any court that's doing that, the house judiciary that they even, floor amendment on that and we're shipping it to a state court. So it's, like, compelling in saying that if the court is gonna say, you have to release this protected health care information pursuant to to law, you can't tell Vermont can't tell the federal court what it must include in its federal order. We can only do that with regards to the state court. So there was just that very small little technical tweak to that that was clarifying that it's only state courts that would have that requirement to make that contract. Ready for sections thirteen? Yep. It's just unfortunately labeled as eleven. That's why it's alright. But when I was doing it, I had a first and then I was Yeah. When I was doing the set markup version, like, a lot of changes, and I didn't know if you could update the section numbers, but it's right in the actual bill. So we're on page twenty five. Just the label is eleven to the assumption thirteen. And this has to do with the confidentiality of prescriber and pharmacist information on medications for legal protective health care. So in the bill as it left the senate, there was a requirement that if a prescriber requested and it wasn't specifically prohibited by federal law, pharmacist must not list the name of the prescriber on the billed medication for gender affirming health care services or reproductive health care services, but would instead list the name of the facility where the practitioner is employed. After some additional work and discussion by some of the stakeholders, including the pharmacy community. There were some concerns about how to operationalize that. And so the revised version would say, upon request of a prescriber and practitioner and to the extent not expressly required as opposed prohibited because of better workplace under federal law. And then this would have a pharmacist or other licensed member of the pharmacy staff must read back or otherwise remove the practitioner's name or initials from a fulfilled prescription for a noncontrolled, so medication that is not a controlled substance. We don't have, authority to to dictate what's on the label for a controlled substance. The vets dictate that. So for a noncontrolled medication or gender affirming health care services or reproduction health care services and from any accompanying printed materials. The provider requests for pharmacist has to redact or remove the their the prescriber's name from the bottle or other container of medication and from any accompanying paperwork. It might be snuggled in the swine bags, otherwise going with it. Similar language is added in two and three. Two allows the pharmacist to remove their own redact remove their own name or initials, or as the pharmacist requests, another member of their staff would remove redact or remove their name or initials from, again, a noncontrolled medication and accompanying printed materials. And then number three, if a prescribing practitioner dispenses medication directly to patients, then the practitioner can redact or otherwise remove their own name Right. And it'll it allows subsection c, specifies that it's okay for the pharmacist to do this. Subsection d is really, I think, why, in particular, if you are looking at this, this provides immunity from civil and administrative liability if a pharmacist or other member of their staff fails to redact or remove the name of a prescriber or pharmacist when requested to do so, provided, however, the immunity does not apply to gross negligence, recklessness, or intentional misconduct by a pharmacist or their staff. So there's ordinary negligence. There's some concern, from the pharmacist about what this will look like in practice and how easy it might be for them with different we prescribe any technology, you know, the other ways that prescriptions come in. How easy it might be for them to miss a request and concern about there being similar administrative liability if it was just ordinary negligence, but not providing that everybody to higher levels of misconduct. [Chair Nader Hashim]: But that negligence would have to cause harm in some way to the person who receives that medication? [Michelle Childs]: For them to yes. For them to succeed. Not to the person who received the medication, but to the prescriber. It's really about the prescriber or pharmacist who you didn't want their name on the packaging. If there was some harm that came to the first the pharmacist or prescriber as a result of that request for redaction removal not being followed. [Chair Nader Hashim]: I'm I'm confused how must be missing something. So how is it that they would be immune from liability if they harm themselves? [Michelle Childs]: No. It's more so the it's a we'll we'll take the pharmacist's name out of it. So if the prescriber says, please take my name off this pill bottle before you give it to my patient [Chair Nader Hashim]: Like the doctor. Okay. Right. [Michelle Childs]: Right. And then the pharmacist misses that request, and the name the bottle goes out with the the doctor's name on it. And then and the patient brings the medication to another state, and it's there's action that taken or that that state is seeking to take action against the Vermont prescriber. Prescriber's name shouldn't because they found the bottle, and there's harm to the Vermont physician as a result. [Speaker 1 ]: Got it. Makes sense. Absolutely. [Michelle Childs]: There's no question. I have I have to say I also got caught in a circle of, like, wait a minute. What? [Chair Nader Hashim]: I think I was explaining pharmacist and prescriber. [Michelle Childs]: Yes. Right. Sorry. Yeah. Prescriber is like the in most cases, it's the doctors. Pharmacy prescribing is outside of the context of this. [Speaker 1 ]: Yeah. So I can't say to finger it back in my hand. Cool. What we're saying is, like, simply removing the the doctor's name is a perfect case. The doctor's no way to retrieve this. There's no record of this. There's no pharmaceutical number on this which which is gonna attach somebody's name to this prescription that this one has. [Michelle Childs]: So they're still I mean, in the in the pharmacy system, it is still there. The prescriber's name is there. If anything bad happens with the patient, then they need to be able to identify the prescriber. That information is still available. It's just not literally on the the materials that are leaving the pharmacy, leave the patient. Okay. Great. [Chair Nader Hashim]: Anything further, Mitch? Anything [Speaker 1 ]: further from me, folks? [Chair Nader Hashim]: Well, especially to ask, if you may, are there any thoughts on this, concerns, those changes that they want to discuss? [Michelle Childs]: The additions make sense. Okay? [Chair Nader Hashim]: Great. Thank you for coming in, especially on short notice. Appreciate it. We are

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SmartTranscript of Senate Judiciary 2025-04-25 - 10:50AM

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