Legislative Bulletin January 14, 2016

Marijuana/Cannabis Legalization Under Consideration in the Senate

Two bills are being reviewed in the Senate Judiciary committee that would effectively legalize marijuana/cannabis for Vermonters 21 and over.


With minor variations in the bill language, S.95 would create an excise tax and distribute funds generated by marijuana taxes to initiatives focusing on public education about the safety risks of alcohol, tobacco, and marijuana, evidence-based criminal justice programs and substance-abuse treatment services, law enforcement, municipalities that have marijuana establishments in their jurisdictions, the Youth Substance Abuse Safety Program, and academic and medical research on marijuana. The bills propose to:

  • Permit a person who is 21 years of age or older to possess and cultivate limited amounts of marijuana/cannabis for personal use; establish civil penalties for possession and cultivation above the limits; and criminal penalties for unauthorized dispensing or sale of marijuana/cannabis.
  • Provide civil penalties for a person who is under 21 years of age who possesses marijuana/cannabis or attempts to procure marijuana/cannabis from a registered marijuana/cannabis establishment and criminal penalties for a person who furnishes or sells marijuana/cannabis to a person who is under 21 years of age.
  • Establish a Marijuana/Cannabis Control Board within the Department of Public Safety. The Board would be responsible for rulemaking, administration, and enforcement concerning registered commercial cannabis establishments.
  • Establish a regulatory structure for commercial cannabis, including six types of marijuana/cannabis establishments that may be registered to operate in this State: marijuana/cannabis cultivator; marijuana/cannabis transporter; marijuana/cannabis-infused product manufacturer; marijuana/cannabis testing laboratory; marijuana/cannabis retailer; and cannabis lounge.
  • Permit commercial manufacture and sale of marijuana/cannabis-infused products that are intended for topical use only and that are nonedible, while directing further study of commercial production and sale of edible marijuana/cannabis products.
  • Permit municipalities to regulate or prohibit marijuana/cannabis establishments, but not personal possession and cultivation.
  • Prohibit consumption of marijuana/cannabis in a public place and any other location in which smoking a tobacco product is prohibited.
  • Establish a fund for depositing all monies collected by the State related to commercial marijuana/cannabis establishments and allocate monies first toward implementation, administration, and enforcement of the act and youth access prevention and education.
  • Establish the temporary Marijuana/Cannabis Program Review Commission for the purpose of facilitating efficient and lawful implementation of this act and making recommendations to the General Assembly and the Governor concerning issues such as drugged driving and advisability of permitting the manufacture and sale of edible marijuana/cannabis products.

The Vermont Medical Society will review its current policy on legalization of marijuana/cannabis at the January 23rd Council Meeting.

To read to entire bills, click on S.95 or S.241.

Senate Committee Deletes New Private Right of Action and Punitive Damages for HIPAA Non-Compliance

On January 7th, the Senate Judiciary Committee voted unanimously to delete from S. 155 the section creating a new private right of action for inappropriate HIPAA disclosures. This important vote was greatly facilitated by VMS members contacting their Senators over the holidays and the thoughtful testimony provided by VMS President James Hebert, MD.

Dr. Hebert, a general surgeon at the University of Vermont Medical Center, described being in crowded rooms with patients and their relatives and opening up a computer to review medical records. "It is hard to find a nook where only you can see it," he told the Senate Judiciary Committee. "One of the unintended consequences of electronic medical records is that it makes privacy very difficult," Hebert said.

VMS testified several times in opposition to Section 1 of S.155. The provision would have created a new state-based private right of action against physicians and other covered entities for HIPAA violations. This would enable patients who believe that their health information was disclosed inappropriately to file a lawsuit in Vermont Superior Court.

The bill provided for damages - including automatic damages and punitive damages - and for costs and attorney’s fees for inappropriate disclosures. It authorized the court to award actual damages to patients or automatic damages of $500.00 for the first violation, and $1000.00 for any subsequent violation, whichever is greater. With attorney’s fees, punitive damages, and automatic damages, this bill created incentives for patients and lawyers to take cases for HIPAA violations to court, regardless of whether the violation is small or large, or caused harm to the patient.

HIPAA is a federal law and the Office of Civil Rights (OCR) within HHS enforces it. Federal law includes very significant penalties, which increase dramatically when inappropriate disclosures are willful, intentional or made with the intent to sell the health care information. Also, State Attorneys General have the authority to enforce HIPAA rules by bringing civil actions on behalf of state residents in federal district court. Vermont Attorney General Sorrell has been quoted as saying: “[W]e’re not at all reluctant to bring an enforcement.”

In its testimony, VMS stated the current joint federal and state enforcement structure is sufficient and it believes working to obtain voluntary compliance before moving to penalties is the best way to enforce a highly complex and detailed law like HIPAA.

VMS also indicated that creating a new private right of action against physicians and other covered entities for HIPAA violations would add to an already stressful practice environment for physicians in Vermont and send exactly the wrong message as the state seeks to recruit and retain physicians to care for an aging population.

Vermont, unlike its neighbors, does not have any meaningful tort reform, a factor seriously considered by physicians who are deciding whether to come to Vermont or whether to leave Vermont. Maine, New Hampshire and Massachusetts all have malpractice screening panels that reduce the time needed to resolve cases.

In addition, passing the section could create great inconvenience for Vermont patients. As one family physician wrote: “[O]ne of the consequences will be patient care issues cannot be discussed over the phone. Patients would be informed this is no longer possible as information could be overheard by others. Patients will have to come to the office to discuss any issues in a room, face-to-face, only with the exam door closed.”

If you have the opportunity, please thank Senators Dick Sears, Alice Nitka, Jeanette White, Tim Ashe and Joe Benning for their vote to delete the section in S.155 establishing a private right of action for HIPAA violations.

VMS feels it is possible that the proposed private right of action may resurface when the bill moves to the House of Representatives and will continue to strongly oppose its adoption.

VMS to Establish Task Force to Review Governor Shumlin Proposals: Two Opioid Prescribing Bills Introduced

In his State of the State message, Governor Shumlin described new initiatives to address prescribing controlled substances. First he proposed limiting opioid prescriptions for minor procedures to a maximum of 10 pills and said that his administration is also looking at “reasonable limits for more major procedures that provide pain relief without filling up our medicine cabinets with unused opiates.”

Two opioid prescribing bills have been introduced in the Senate so far – S. 201 and S. 243. VMS will establish a task force of interested physicians to review these bills and any other related proposals with respect to prescribing controlled substances and develop a position for VMS.

Please let Madeleine or Paul know if you have comments on these two bills, or are interested in participating on this task force.

S. 201 – Limitations on Opioid Prescriptions

Section 1 – Limitations of Opioid Prescriptions
S. 201 would limit opioid prescriptions for acute pain to no more than a 72-hour supply, unless an opioid is required to stabilize the patient’s emergency medical condition. The bill would also prohibit physicians from prescribing more than a 30-day supply of an opioid for patients with chronic pain. It prohibits refills and future fill dates for any opioid prescriptions and requires prescribers to check the Vermont Prescription Monitoring System (VPMS) prior to prescribing a subsequent 30-day prescription.

Section 2 – Amendments to VPMS
This section requires prescribers to check the VMPS when they start a patient on a controlled substance for non-palliative long-term pain therapy of 90 days or more for a non-opioid, or long-term pain therapy of 30 days or more for an opioid. Also, as noted above, the bill would require physicians to check the VPMS once every 30 days, prior to prescribing a refill.

S. 243 – Regulation of Controlled Substances

Vermont Prescription Monitoring System
S. 243 would require physicians to check the VPMS every time they issue a new prescription or renew a prescription for an opioid on Schedule II, III, of IV to a patient. Physicians would also be required to check the VPMS when starting a patient on a non-opioid schedule II, III, or IV controlled substance for non-palliative pain therapy of 90 days or more. The bill classifies failure to register for the VPMS and failure to check the VPMS as required by law or the Department of Health rules as unprofessional conduct.

Drug Disposal Program
The bill would require the Commissioners of Health and of Public Safety to move forward on a requirement created in 2013 that they establish a statewide prescription drug disposal program. The bill notes that the commissioners have identified options for drug disposal in a 2014 report, but have not implemented any of the options. The bill requires the drug disposal program to be fully operational statewide on or before January 2, 2017.

Sections 3 and 4 – Treatment of Opioid Addiction
To improve care for patients receiving buprenorphine, the bill encourages care coordination among primary care providers, addiction medicine physicians or nurse practitioners, and other medication-assisted treatment team members and asks the Director of the Blueprint (currently Dr. Craig Jones) to consider increasing payments for primary care clinicians prescribing buprenorphine who engage in care coordination for patients. The bill also asks the Green Mountain Care Board and the Department of Health Access to develop a pilot program that would enable a patient taking buprenorphine to receive treatment from an addiction medicine specialist through telemedicine.

Section 5 – Pill Counts
The bill requires health insurers to reimburse pharmacists for conducting opioid pill counts that are ordered by the prescribing physician. Pharmacists must report the results of the pill count to the ordering physician promptly.

Section 6. – Continuing Medical Education
H. 243 would also increase the amount of continuing medical education that physicians “who prescribe or are likely to prescribe opioid controlled substances” must complete by requiring them to have one additional hour on “the appropriate use of opioids, including the use of complementary and alternative therapies instead of opioid controlled substances to treat chronic pain.” This requirement would start with the 2016 license renewal and would be reported at the time of the 2018 license renewal.

Pharmacists Plan to Seek “Provider Status” in Order to be Reimbursed for Services

The independent pharmacists’ association contacted VMS to discuss their proposal to request “provider status,” so that services within their scope of practice can be reimbursed by Medicaid and insurers.

Currently in Vermont, pharmacists’ scope of practice includes providing immunizations to adults, dispensing emergency contraception under a collaborative agreement and performing medication therapy management. Pharmacists also serve on community health teams for the Blueprint for Health. They believe having provider status would help them participate in payment reform initiatives and health care reform initiatives, such as accountable care organizations (ACOs). The pharmacy association said they do not intend to try to expand their scope of practice at this time.

As a model, the pharmacists are looking at a law enacted in Oregon last year that defines the “practice of clinical pharmacy,” and permits, but does not require, the Oregon Medicaid agency and insurers to reimburse a pharmacist for these health services. The practice of clinical pharmacy described in the Oregon law, includes “providing patient care to optimize medication therapy and to promote disease prevention” in conjunction with the patient’s other practitioners. It also includes “post-diagnostic disease state management service and the practice of pharmacy by a pharmacist pursuant to a clinical pharmacy agreement.”

Please let VMS know your thoughts about this proposal.

View the Oregon law here.