NH’s pandemic-scarred legislative session

NH House in session at the Whittemore Center at UNH. (Photo courtesy of Rep. Debra Altschiller)

What happens when the house is burning? Grab what you can — the rest will be left in the ashes.

Of course, New Hampshire‘s House of Representatives didn’t burn, but it was infected by the pandemic and partisanship. And, after members fled the University of New Hampshire’s hockey arena, the Senate tried to salvage what they could … or wanted to.

To put the 2020 session in perspective, the Legislature passed 61 bills this year. In 2018, the last non-budget year, 385 bills were passed.

Of course, that comparison is a bit misleading. Dozens of formerly dead bills were gathered up off the floor and packaged into huge omnibus bills, with some last-minute goodies stuffed in. The biggest of them — House Bill 1234 — was a package of 40 different measures.

But that left a lot on the table, to disappointment or relief, depending on who you’re talking to.

“A lot of what happened didn’t happen,” said David Juvet, senior vice president of public policy at the Business & Industry Association of New Hampshire. “It was kind of a screwy session. Everybody is trying to lick their wounds and come back in January to try to fix it.”

But the BIA isn’t necessarily waiting. It is urging the governor to veto some of the end results.

This session, New Hampshire lawmakers were overpowered. While it was trying to reorganize remotely, Gov. Chris Sununu was taking charge, issuing emergency orders to deal with the pandemic’s fallout. Eviction and foreclosure laws were suspended. Covid-related paid family and medical leave was instituted though unemployment benefits. Nonessential businesses, defined by the governor, were shut down.

Legislators normally hold the power of the purse, but this year $1.25 billion of federal CARES Act funds fell into the governor’s lap, with eight months to spend it.

Even as the Legislature mounted a court challenge, Sununu was already spending money on many of the things the Democratic-controlled Legislature wanted anyway. This was evident when the Senate tried to pass a bill to include $50 million of those CARES Act funds to assist renters after the eviction ban expires at the end of July. The same afternoon of that committee vote, Sununu allocated $35 million for the same purpose, adding that he could always add more. The full Senate meekly dropped the provision.

This go-round, the governor’s office has been where the action is, and lobbyists were paying more attention to (and indeed were sometimes on) various boards advising Sununu on how to spend that money or reopen the economy.

But slowly, lawmakers pieced together some legislation, with many provisions that could profoundly affect the state’s businesses, if they aren’t vetoed.

Here are the highlights.

Healthcare

The prescription drug package — HB 1280 — might have the best chance of avoiding a veto, since Sununu himself testified in favor of two of its provisions, including a bill that would allow wholesale importation of cheaper prescription drugs from Canada. It’s a concept supported by both U.S. Sen. Bernie Sanders and President Trump, though the bill could be symbolic, since Canada has thus far been reluctant to agree to such an arrangement.

Despite that, Rick Newman, a lobbyist for the New Hampshire Independent Pharmacists Association, said if the measure is enacted it would be “huge. It may not work, but at least we have the tools, if it does.”

The package also includes a provision — also supported by Sununu — that would create a prescription drug affordability board to determine annual public payor spending targets. It also includes measures aimed at capping the price of insulin at $100 a month and not subjecting it to a deductible, and requiring insurers to cover EpiPens, which are for people with hyper allergic reactions.

“No other state would dare to remove the deductible,” said Rep. John Hunt, R-Rindge. “It will give pharmaceutical companies a blank check to charge whatever they want.”

But Rep. Ed Butler, D-Hart’s Location, called it a “good powerful bill that impacts the price of prescription drugs.” It passed the House by a veto-proof 225-104 vote.

Two other prescription drug bills were passed: one dealing with drug rebates and the other, requiring notices of big price increases, has already been signed by Gov. Sununu.

For the New Hampshire Medical Society, the most crucial package was HB 1623, which focuses on telemedicine — its importance enhanced by the need to deliver services remotely during the pandemic. The bill creates parity, meaning that doctors would get paid the same for an office, video or audio visit.

The legislation still leaves some gray areas, such as whether a provider can charge for a facility that neither doctor nor patient was located in during the visit. “That will be a hotly debated topic for some time to come,” said James Potter, executive vice president of the New Hampshire Medical Society.

The pandemic also put a spotlight on nursing homes, since that’s where 80% of the state’s Covid-19 deaths have occurred, and that led to passage of HB 1246.

It includes $25 million of CARES Act money for enhanced stipends for workers, sets up federal reimbursement of costs of training nursing assistants (currently the nurses can get reimbursed, but the institution that trains them can’t), and sets up an independent review of nursing homes and long-term care in the wake of Covid-19.

Brendan Williams, president of the New Hampshire Health Care Association, which represents long-term care facilities, said that while the training law and the stipend are helpful — given the acute labor shortage — he is ambivalent about the study.

“The Legislature loves to study things,” he said. “But rather than second-guessing, if they wanted to reimburse nursing homes more so we can pay more than poverty wages permanently — not just a one-time grant — that would be nice.”

Workforce

The pandemic also spotlighted paid family and medical leave, mandated for Covid-related reasons by Sununu, who ordered that taking time off to care for a family member or oneself are legitimate reasons for collecting unemployment benefits. The federal government, which also required it of employers, is reimbursing them through payroll tax reductions.

HB 1116 would make the governor’s family and medical leave order permanent as well as extend unpaid federal Family and Medical Leave Act requirements for Covid-related reasons to businesses with more than 15 employees — the current threshold is 50.

It would also provide personal protective equipment to workers and small businesses, waive coronavirus testing copays and earmark $50 million of federal CARES Act funds to the Department of Employment Security.

The bill also includes a severability clause, in response to criticism that it could endanger millions of dollars in federal funding for the state’s unemployment trust fund. That could drive up unemployment insurance costs, which are already set to rise because of the massive drain on the fund.

Sununu has maintained the measure would “destroy” the state’s unemployment system. The BIA, irked by a provision that would allow workers to collect benefits if they think the workplace is unsafe, is urging the governor to veto it. Such a veto is likely to be sustained, since it only passed the House by a 24-vote margin.

Another measure, HB 712, would allow workers to take up to 12 weeks off in order to care for themselves or a family member suffering from any major illness, to care for a new child or care for an elderly family member. To do this, it would impose a 0.5% payroll deduction on all private employees.

Sununu, who has vetoed similar bills in the past, has denounced the deduction as an income tax, but advocates are hoping the pandemic changed Sununu’s mind or heart.

The bill went to his desk July 8, and the BIA is asking for another veto, arguing that “employers are best equipped to make decisions about employee benefits programs that allow them to attract and retain individuals best suited for their enterprises, not state government.”

Then there’s the minimum wage. The House debate over the wage was framed, like so many others, by the current crisis.

HB 731 would increase the minimum — currently $7.25 an hour, the lowest by far in New England — to $10 per hour in 2021 and $12 per hour in 2023. Sununu has vetoed similar bills in the past, but this bill is different because it sets a fixed $4-an-hour minimum for tipped workers, as opposed to a percentage of the standard minimum. It’s a provision that the New Hampshire Lodging and Restaurant Association had testified for.

“Now, in the time of Covid-19, businesses are all suffering. Costs related to payroll are going up. They can barely survive. Some of them will close if this bill passes,” said Rep. Jack Flanagan, R-Brookline.

“It is the perfect time to raise the minimum wage,” countered Rep. Brian Sullivan, D-Grantham. “All those folks working the front lines will benefit.”

Environment

Bills dealing with water pollution — also targeted by BIA for a veto — might have a better chance of surviving.

HB 1264 — passed 23-1 by the Senate — sets maximum levels for perfluorochemicals, or PFAS, for drinking water. It also sets up a $50 million, low-interest loan fund for municipal waste systems affected by PFAS, to be forgiven if the chemical’s manufacturer either settles or loses a multistate suit.

But who knows when and if that will be settled, said opponents. If there is none, that would increase the state’s long-term debt by 7%, jeopardizing its bond rating, said Rep. William Marsh, R-Wolfeboro.

“There is nothing more precious than having the ability to drink clean water,” replied Rep. Renny Cushing, D-Hampton. “Bonding capacity doesn’t equate with human life.”

The House passed the bill, 210-115, still short of a veto-proof majority, but not by much.

The House did OK HB 1375 by more than a two-thirds vote, however it fell short of that threshold in the Senate. That bill would force manufacturers to pay the cost of medical monitoring of those exposed to toxic chemicals — including, but not limited to, PFAS.

Energy

The Legislature passed a trio of leftover major energy bills. One of them, Senate Bill 159, was already vetoed and overridden. Another two, SB 122 and SB 124, were passed at the end of the Senate’s session and likely to be vetoed again.

SB 122 would end the Regional Greenhouse Gas Initiative rebate for residential customers, fully expending it on low-income and municipal energy-efficiency programs. But commercial customers would still get a full rebate. SB 124 would increase the state’s renewable energy goal, currently 25%, to 56% by 2040.

SB 159 would have raised the net metering cap for renewable energy systems from one megawatt to five, allowing political subdivisions and large businesses to participate. But opponents, led by the utilities, argued that the reimbursement rate set by the Public Utilities Commission would increase power rates. The renewable energy industry argued just the opposite.

The Senate voted to override a veto in early March, but the House has yet to vote on it.

“These are the same bills that were vetoed [last year]. Nothing has changed, and we don’t expect the result to change,” said Madeleine Mineau, executive director of Clean Energy NH. She was particularly upset that lawmakers did not come up with a compromise, particularly since Sununu had backed a bill that would have expanded net metering for municipalities, though with conditions not to the organization’s liking.

“It was a small step, but it was better than nothing. I don’t understand why it didn’t move forward,” said Mineau.

Other measures did move forward.

There were two bills tucked into HB 1234, including a provision negotiated with utilities that set the rules for energy storage systems. The omnibus bill also upped the maximum alternative compliance rate that utilities have to pay if they failed to meet renewable energy standards.