Meetings
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[Sen. Christopher Mattos (Clerk)]: We're live. We're back
[Sen. Nader Hashim (Chair)]: in the center this year on February 10 at 11:48 with Katie McLean from Leg Council to talk about, I believe, the the immunity piece on page seven, draft 2.1, based on a request from Senator Lyons about having us take a look at this. Floor is all yours.
[Katie McLennan, Office of Legislative Counsel]: Thank you. Good morning, Katie McLennan, Office of Legislative Counsel. This may be back up briefly and give you a thousand foot view of what this bill does. So this bill looks intimidating at 23 pages. It puts provisions in place. Currently, many of our laws are tied to recommendations from the CDC for immunizations. This sort of decouples that tie with CDC and instead authorizes the commissioner the Vermont Commissioner of Health to make recommendations on immunizations. And so the first half of the bill makes these changes, and the second half of the bill, as of 07/01/2023, reverts back to the status quo of the law as it is now, meaning, again, relying on CDC recommendations.
[Sen. Nader Hashim (Chair)]: And
[Katie McLennan, Office of Legislative Counsel]: so what this does is it allows the health department to purchase immunizations that maybe the CDC has not recommended, but the commissioner of health does recommend. It allows insurance coverage for those immunizations, and it allows pharmacists and pharmacy technicians to administer recommendations that may not be on the federal CDC schedule but recommended by the Commissioner of Health. So to the language you're most interested in, let's see. There is a new section in title section two. This section, again, would take effect on passage, and it would be sunset on 07/01/2031. So this is temporary language. This section in A sort of gives the scope of the type of recommendations that the commissioner could make. In subsection B, are instructions about who the commissioner would have to consult with in making its recommendations. The commissioner would have to consult with the Vermont Immunization Advisory Council, which is an existing group, and it would have to consider recommendations from various professional organizations, including the CDC. And then in C, top of page seven, this is the language that falls within this committee's jurisdiction. So it states that a health care professional who prescribes, dispenses, or administers an immunization in accordance with the recommendations issued pursuant to subsection a of this section shall be immune from civil and administrative liability for immunization caused adverse events unless the health care professional's actions regarding prescribing dispensing or administering an immunization constituted gross negligence, recklessness, or intentional misconduct. So this language basically says that if there is a health care professional who's acting within their scope of practice, and they're following the Commissioner of Health guidelines, and there is an adverse event, this would be not allow civil and administrative liability unless that professional was acting inappropriately. They're acting with gross negligence, recklessness, or intentional misconduct.
[Sen. Christopher Mattos (Clerk)]: Okay. Can I ask a couple of questions here? So
[Sen. Nader Hashim (Chair)]: I guess, I know there's a million variables to a hypothetical, but in this circumstance, let's say a pharmaceutical company comes out with a vaccine that does cause problems, that company is still it is
[Katie McLennan, Office of Legislative Counsel]: not immune from being sued. Under this language, correct. But there is another layer that we need to think about. So right now there's a federal program, it's the vaccine injury prevention program. And it's a program that circumvents kind of the current tort practice to go to court. And instead, it's a process where you hire an attorney, you pay a fee, and there is a designated amount of money. And if you have had a certain immunization and you have a certain reaction within a certain period of time, you could petition to have compensation from this program instead of going through the tort process. Right now, it's my understanding that all of the immunizations that were previously covered by the CDC recommendations are still covered by this program. The testimony from the health department has been that they could foresee that some of those immunizations that the CDC is no longer recommending may no longer be covered under this federal vaccine injury program. So right now, pharmaceutical companies would be prevented from liability under this federal program. If the program were to be rolled back, that's something Vermont has no control over, but potentially a pharmaceutical company that is currently covered under this federal program for certain immunizations, there wouldn't be a liability shield anymore, potentially. So when we're looking at this state language, is this would protect Vermont providers who are acting within the Vermont recommendations as determined by the Commissioner of Health. This would not provide any coverage or liability protections from pharmaceutical companies. But if the particular vaccine in question is still covered by this federal program at the federal level, then a pharmaceutical company could still have a shield on their liability.
[Sen. Nader Hashim (Chair)]: And is there immunity for the Department of Health and the commissioner?
[Katie McLennan, Office of Legislative Counsel]: Is there sovereign immunity? That is not my
[Sen. Nader Hashim (Chair)]: Just I'm just confirming. I mean, understanding is if somebody wanted to sue the Department of Health and they would name the commissioner in that suit if they did something allegedly that the plaintiff was injured by. And so I don't suspect I don't see anything that suggests the Department of Health would be immune.
[Katie McLennan, Office of Legislative Counsel]: So I'm not the attorney, but I have reached out to the gov office attorney. So I could if it's helpful, I could read some of the information that I received from my colleague Tucker Anderson on this point, if that would be helpful. Says that with regard to the action of state officers, the state maintains immunity for lawsuits arising from harms caused by the state or state officers, except those that arise from an expressly granted right of action. For example, a statute authorizing a member of the public to file suit against the state or state officer in a particular circumstance. The Vermont Court Claims Act provides any person with a right of action for negligent or wrongful acts of employees while acting within the scope of employment. However, these claims are capped at 500,000 per individual and 2,000,000 to all persons arising out of each occurrence of negligence. And the claims can't be brought by insurers, they have to be brought by the injured person themselves. But below there's an important exception to the Vermont Tort Claims Act for discretionary policy decisions like the decisions the commissioner would be making under h five forty five. And that is that any claim based upon an act or a mission of an employee of the state exercising due care and the execution of a statute valid or based upon the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of the state agency or an employee of the state, whether or not the discretion is abused.
[Sen. Nader Hashim (Chair)]: Where where is that statement?
[Katie McLennan, Office of Legislative Counsel]: That is from the Vermont Court claims that.
[Sen. Nader Hashim (Chair)]: Vermont Court. Yeah.
[Katie McLennan, Office of Legislative Counsel]: So taken together, it would be a heavy burden on the petitioner to recover from a state officer who's acting in accordance with the scope of the statute as assuming they're acting with due diligence and not misconduct. I think that's sort of the takeaway from that.
[Sen. Nader Hashim (Chair)]: Committee, any questions? Yeah. I got a quick one.
[Sen. Robert Norris (Vice Chair)]: Kate, does this same language appear for health care professionals who prescribe dispensable whatever else that's recommended by the CDC?
[Katie McLennan, Office of Legislative Counsel]: Can you ask me that again?
[Sen. Robert Norris (Vice Chair)]: Does the same language appear if in fact a health care professional is doing the immunization with prescriptions or immunizations from the CDC?
[Katie McLennan, Office of Legislative Counsel]: What do you mean up here?
[Sen. Robert Norris (Vice Chair)]: Right now we're make right now we're making exceptions for Vermont physicians because they may go along with the commissioner's recommendation for vaccines. Right? So if they if this wasn't here, does the same language appear any worse if they're following immunizations through the CDC?
[Katie McLennan, Office of Legislative Counsel]: I see. So if that language wasn't in the bill at all, if the immunization was covered under the federal vaccine injury program, there could be a a liability protection for providers who are acting within their scope of practice. If the federal government decided to remove vaccines from that prevention program, then potentially providers would no longer have that protection. I will also say that the the vaccines that are covered under the program, it's pretty specific about which vaccine it is, the how long ago the vaccine was administered, what the types of symptoms they were. So I don't wanna say it's sort of like a a big list of all these immunizations and you had an immunization on the list, therefore you get compensation. It's still a a process by which you hire an attorney and you see if you have an immunization that was listed within a particular and you received the vaccine within a particular time period and had a certain reaction to the vaccine. Does that answer your question? Can
[Sen. Christopher Mattos (Clerk)]: I ask it another way? Please. So prior to the Trump administration this time around when the CDC was recommending and the state was recommending within the state's borders that we follow the CDC recommendations. Did this apply to immunize people from liability if they were following the CDC recommendations, or is this new language?
[Katie McLennan, Office of Legislative Counsel]: This is new language. Okay.
[Sen. Christopher Mattos (Clerk)]: So there were protections for health care professionals prior to this, but they depended on the CDC.
[Katie McLennan, Office of Legislative Counsel]: Well, it depends on the federal vaccine and then injury program, what is listed there.
[Sen. Christopher Mattos (Clerk)]: So this is creating our own separate version of Yes. Liability
[Katie McLennan, Office of Legislative Counsel]: Okay. Thank you. Thank you.
[Sen. Nader Hashim (Chair)]: Anything else? Any discussion on this? Do we need to make any changes? And these are just recommended immunizations, not required, not Correct.
[Katie McLennan, Office of Legislative Counsel]: This is
[Sen. Tanya Vyhovsky (Member)]: Are they making
[Sen. Nader Hashim (Chair)]: somebody do something No. They don't want.
[Katie McLennan, Office of Legislative Counsel]: This is the child and adult recommended schedule, but they're not mandated.
[Sen. Nader Hashim (Chair)]: Any any issues? Is it is it kinda like the what was it two three years ago we passed the shield law on gender affirming care.
[Katie McLennan, Office of Legislative Counsel]: I did not work on that so I would feel uncomfortable making a comparison. It
[Sen. Nader Hashim (Chair)]: sounds
[Katie McLennan, Office of Legislative Counsel]: There is similar language to this. This language in part was based on in our opioid antagonist statute. If somebody is providing an opioid antagonist and they're acting with due diligence, there's a similar liability shield. So that's in part where this language was drawn from. Wow.
[Sen. Nader Hashim (Chair)]: Okay. There's time too.
[Sen. Robert Norris (Vice Chair)]: Are there any other any other states that have this language or similar language to this?
[Katie McLennan, Office of Legislative Counsel]: I would have to research that and get back to you. I don't know off the top of my head. You do have the health department here. I don't know if the health department has an answer to that there. They they brought the language.
[Sen. Nader Hashim (Chair)]: Does the health department wanna provide any
[Jessica Chittenden, Policy Director, Vermont Department of Health]: Good morning. This is Jessica Chittenden. I'm a policy director at the Department of Health. And there are several states that are working on very similar language that we brought forward. I'm not sure that there's an exact replication of the liability protection language, but many states are considering giving more authority to their health department to make recommendations based on other authoritative sources in addition to the federal government.
[Sen. Christopher Mattos (Clerk)]: So does our Department of
[Sen. Nader Hashim (Chair)]: Health currently make any recommendations for immunizations?
[Katie McLennan, Office of Legislative Counsel]: We do. And to date,
[Jessica Chittenden, Policy Director, Vermont Department of Health]: we have followed data recommendations, the CDC recommendations.
[Sen. Tanya Vyhovsky (Member)]: Yeah. Okay. Thank you.
[Sen. Nader Hashim (Chair)]: Committee, anything else? Any other witnesses we wanna hear from or any concerns, or are we fine with this? I'm fine with this.
[Sen. Robert Norris (Vice Chair)]: I I'm not an expert in this field, obviously. Here we are again, being the tip of the spear. I just wanna make sure that our spear is sharpened here because we're forward on this, but you've taken a straw poll, I guess. I'll I'll say yes.
[Sen. Nader Hashim (Chair)]: And we don't have to give a definitive answer today. Mean, if there's wanna sleep on it and do some additional research, I mean, it is just a straw poll. So I told Sarah Lyons we'd get an answer from the committee this week at some point.
[Sen. Christopher Mattos (Clerk)]: Oh, I'm not sure who
[Sen. Robert Norris (Vice Chair)]: else would
[Sen. Tanya Vyhovsky (Member)]: hear. It's part of our health. It's part of health. I don't know. They brought forward the Yeah. Language? Yeah. That's.
[Sen. Robert Norris (Vice Chair)]: Great.
[Sen. Nader Hashim (Chair)]: Thank you.
[Katie McLennan, Office of Legislative Counsel]: Yep. You're
[Sen. Tanya Vyhovsky (Member)]: welcome. Thank you. You're