From the Dome – March 22, 2012 – An Update on Legislative Priorities Affecting Your Business

An Article in the From the Dome Series for the Greater Concord Chamber of Commerce. Originally published March 22, 2012.

By: Martin P. Honigberg and Jay Surdukowski

This legislative alert focuses on the unusual fate of the Health Service Planning and Review Board (popularly known as the “Certificate of Need Board”) in the House, Right to Work’s new lease on life, insurance exchange politics, and the latest installment of Gov Watch.

I. House Overrides Committee on Certificate of Need; Votes to Abolish CON Board

In a dramatic turn of events, the New Hampshire House of Representatives reversed a unanimous 18-0 committee vote and voted to abolish the Certificate of Need Board. The Board is charged with reviewing all applications by health care providers for purchases of major medical equipment or significant new hospital construction. The purpose of the Board is to ensure that consumers are protected by controlling the supply of health care facilities in the State.

Both opponents and proponents of the Board concede that the current board has problems. One issue is that the Board is made up for the most part by members of the very healthcare organizations the Board is charged with regulating. Another criticism is that the Board lack meaningful participation by consumers of healthcare services. Three seats for members of the public currently sit vacant. Critics of the current Board configuration note that it is difficult to attract members for the Board which can have a heavy docket and doesn’t pay its members.

The House Health, Human Services and Elderly Affairs Committee had voted unanimously for a bipartisan proposal to preserve and reform the Board which was authored by Representatives Neal Kurk, Republican of Weare, and Cindy Rosenwald, Democrat of Nashua. It didn’t help those who sought to save the Board that one of the Board’s chief critics and supporters of abolishing it is the current Chair, Nick Vailles, an owner of ambulatory surgery centers and a former State Health and Human Services Commissioner.

Proponents of abolishing the Board see it is a needless intrusion on free market principles and would prefer a system where hospitals and other health care facilities are freely permitted to grow and expand their businesses in ways that other, less-regulated industries are able to do.

In the background of the Certificate of Need debate is the effort of Republican leaders to court a “luxury” cancer hospital which would be sited near the Manchester airport and would be advertised as a premiere facility in order to attract a majority of out-of-state patients. A separate bill in the Legislature which passed today would exempt the proposed cancer hospital from the Certificate of Need process. Cancer Treatment Centers of America promises to create 500 jobs in New Hampshire and pump 5 million into the economy within five years.

II. Right to Work Gets a New Lease on Life

The House recently passed a second Right to Work bill in as many years.

Regular readers of these alerts know that New Hampshire narrowly missed becoming the 23rd “Right to Work” state in the nation in December of 2011. Briefly, Right to Work laws excuse non-union members from paying dues or “agency” fees to a union to cover the costs of the benefits that unions negotiate for all employees, regardless of whether they are members of a union or not.

Governor Lynch vetoed the 2011 Right to Work bill and House Speaker Bill O’Brien waited months for the right moment to try to override the Governor’s veto. His effort fell short by twelve votes in December, thanks, in no small measure, to Republican union members or sympathizers and a handful of Democrats who had been elected to replace Republicans in special elections.

Typically, when a bill is killed in the first year of a session it cannot be considered again. But Right to Work is back for a vote in the House tomorrow. How? The bill is different enough that the legislature may consider it afresh. HB 1677 – “The Employee Freedom of Choice Act” would affect only public sector workers at the State and local level, instead of all workers. The proposed law contains a “Statement of Public Policy” which reads: “It is hereby declared to be the public policy of this state in order to maximize individual freedom of choice in the pursuit of employment and to encourage an employment climate conducive to economic growth, that all persons shall have, and shall be protected in the exercise of, the right freely, and without fear of penalty or reprise, to form, join, or assist labor organizations, or to refrain from any such activity.” This Statement of Policy unambiguously focuses on the “liberty” aspect of the debate – that individuals should not be forced to pay for union activities if they do not want to do so. Why such a broad policy should then be applied only to those who work in the public sector is not explained in the bill.

After a raucous hearing last month where opponents once again filled Representatives Hall to the rafters, the bill passed the House Labor, Industrial, and Rehabilitative Services Committee on an 11-6 vote. The margin in the full House in favor of passage was 198 -139.

Right to Work has been a very high priority for House Leadership – it will be interesting to see how the bill fares in the Senate where last-time it enjoyed a veto-proof majority.

III. No Insurance Exchange for New Hampshire?

After unsuccessful attempts to force the State’s Attorney General to sue the federal government over the constitutionality of health care reform, the House approved a new line of attack against health care reform recently: HB 1297 prohibits the State of New Hampshire from setting up the health insurance exchange that is mandated by the Patient Protection and Affordable Care Act (the Act). In a nutshell, insurance exchanges are organizations that will be established in each state to organize the market for health insurance and provide certifications and consumer information to individuals and small companies seeking to purchase health plans. Such exchanges are meant to bring down health care costs.

Critics of a state health exchange see it as a highly-intrusive layer of regulation over a significant private industry. Proponents of the bill also note that the constitutionality of the Act is currently pending before the United States Supreme Court in to a lawsuit filed by 28 States. In addition, backers of HB 1297 note that only a handful of states are actively setting-up exchanges, and even those states aren’t likely to meet the 2014 deadline. Finally, opponents of setting up an exchange believe it is an unfunded mandate that will cost New Hampshire anywhere from $10 million to $30 million to establish and maintain.

Supporters of setting up an exchange believe HB 1297 is an irresponsible abdication of the State’s authority. They note that the federal government intends to establish exchanges if states fail to do so, thus creating the potential for a loss of local control. Opponents of HB 1297 also note that with the outcome of the Supreme Court fight uncertain, it would be imprudent not to be prepared should health care reform proceed as congress and the president intended when the Act passed in 2009.

Love it or hate it, health care reform is an issue that has dominated the airwaves of the still unsettled Republican presidential contest, where Mitt Romney and his three remaining foes have tussled over to what degree Romney opened the door to “Obamacare” with Massachusetts health reform which Romney presided over. Accordingly, with health care reform a hot button issue nationally, it should be no surprise that the GOP supermajority at the State House continues to brainstorm legislative ways to block the Act’s implementation in the Granite State. The House has not been entirely unsuccessful, a State Insurance Department spokesperson noted this week in The Lobby that “it’s pretty clear that New Hampshire has decided not to adopt its own exchange.” The comments were made in response to an Executive Council vote last spring turning down $660,000 in federal planning funds and another House bill which would forgo additional planning funds from the federal government to create an exchange. Utah is the only other state thus far that has affirmatively rejected such money.

IV. Gov. Watch

Since our last alert, two potential gubernatorial candidates have taken themselves out of the running for the corner office. A few weeks ago Chuck Rolecek, the Republican proprietor of Hanover Street Chophouse and a leading gambling proponent announced to WMUR Political Reporter James Pindell that he would not toss his hat in the ring for Governor. Mayor Ted Gatsas also declined to make a bid for the corner office in a move that stunned many political observers. His path to the nomination would have been to the left of the hard-line conservative candidates already in the race: Manchester Attorney Ovide Lamontagne and conservative lobbyist Kevin Smith, formally of the conservative think tank Cornerstone Action.

So at present the number of declared candidates remains at four: Lamontagne and Smith for the Republicans; former State Senators Jackie Cilley and Maggie Hassan for the Democrats. Activists on both sides will be watching closely to see if any other big names emerge. Remember, Governor John Lynch didn’t jump in to challenge Craig Benson until May of 2004. Unlike the current crop of declared candidates, however, Lynch had the ability to self-fund his race in a dramatic way, pumping millions of his own fortune into television ads to introduce himself to the voters of New Hampshire.

One new name that is making the rounds like wildfire in the wake of Manchester Mayor Ted Gatsas’ decision not to run is Senate Finance Chairman Chuck Morse of Salem. Another name, perhaps less serious but no less newsworthy is Kevin Clayton – the longtime author of the Union Leader’s In the City column and a host of New Hampshire Crossroads. Mr. Clayton is being recruited by Democrats. Stay tuned to see if either Morse or Clayton – or another candidate – takes the plunge.

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This article was initially prepared for the Greater Concord Chamber of Commerce “From the Dome” series.