Senate Health & Welfare reviews S.28 to extend shield protections, tighten patient-data limits and pharmacy redaction rules

The Senate Health & Welfare Committee reviewed S.28, a bill returned from the House that would expand Vermont's definition of "legally protected health care activity" to cover some acts or omissions undertaken in other U.S. jurisdictions and add new confidentiality and noncooperation protections for patients and providers.

The discussion centered on reciprocity for out-of-state care (including telemedicine), a broadened noncooperation provision that includes some federal inquiries, limits on disclosure of protected health information to government entities outside Vermont, and new pharmacy redaction requirements for certain noncontrolled medications.

Jen Harvey, counsel in the Office of Legislative Counsel, walked the committee through the House markup. She said the bill's new definition would extend protections "to a person who has previously undertaken 1 or more acts or omissions while in another U.S. jurisdiction" so long as those acts were lawful in the jurisdiction where they occurred and "would have been protected by this state if they were undertaken in this state." Harvey described the change as a form of reciprocity aimed at situations such as telemedicine: "This could be a physician performing telemedicine services," she said.

Harvey told senators the measure is intended to protect providers and patients when Vermont's public policy aligns with the other jurisdiction's policy. She noted approximately 18 states have some form of shield law for legally protected health care activity and said the new language is intended to clarify when Vermont would extend its protections to conduct that occurred elsewhere.

The bill would also expand an existing noncooperation provision originally adopted in the 2023 shield legislation. Under the change, a Vermont public agency or individual acting on its behalf would be prohibited from knowingly providing information, personnel, equipment, time, money or other resources in furtherance of an investigation or proceeding'including a federal investigation'seeking to impose civil or criminal liability for the provision, seeking or receipt of, or inquiry about, legally protected health care activity that is lawful in Vermont. Committee members emphasized that court orders remain an exception: the bill clarifies it does not allow noncompliance with an order issued by a Vermont state court or a federal court.

On confidentiality, Harvey summarized a new or clarified restriction tied to HIPAA: "a covered entity or business associate shall not disclose protected health information that is identifiable or susceptible to reidentification and is related to a legally protected health care activity to any governmental entity other than the state of Vermont," if the covered entity has reason to believe the information will be used to investigate or to impose liability on an individual for seeking, obtaining, providing or facilitating legally protected care. The bill lists exceptions such as disclosures authorized by the patient, disclosures required by federal or Vermont law or court order (subject to a court determination described in the bill), disclosures needed to defend the covered entity in litigation, disclosures to Vermont licensing or health regulators in bona fide investigations, and disclosures required for ordinary administration of Vermont's Medicaid program (subject to the bill's noncooperation limitations).

Harvey and other speakers described practical limits. For example, the shield would not protect conduct that would be illegal if committed in Vermont. Committee members asked how protections would apply when prescriptions are written via telemedicine and filled out of state; Harvey noted Vermont protections would not extend to a pharmacy or jurisdiction that is outside Vermont's regulatory reach.

The bill also contains new, more detailed pharmacy confidentiality provisions. For noncontrolled medications tied to reproductive or gender-affirming health care, the revised language would require a pharmacist or pharmacy staff, upon the prescriber's request and where not expressly required by federal law, to redact or otherwise remove the prescriber's name or initials from a filled prescription container and accompanying printed materials. Similar redaction is allowed when a prescribing practitioner dispenses medication directly to a patient. The measure would provide pharmacies immunity from civil or administrative liability for ordinary negligence in failing to redact, but not for gross negligence, recklessness or intentional misconduct; committee members discussed concerns about different e-prescribing systems and how inadvertent failures might occur.

Other changes noted in committee included clarifications in the Office of Professional Regulation statutes and a requirement that any adaptive questionnaire used when prescribing a medication to terminate a pregnancy be developed by or in consultation with health care providers with appropriate clinical expertise.

Committee members discussed next steps; no formal vote was recorded in the transcript. A senator stated willingness to present the bill on the Senate floor and the committee agreed some sections would also proceed to Judiciary for review.

Background: the bill incorporates language added in the shield bills of 2023 (Act 13 and Act 14), multiple cross-references to Title 1 (including the broad statutory definition of health care services), and HIPAA definitions for covered entities and business associates.

The committee's discussion emphasized the limited scope of the reciprocity (protected only where the out-of-state conduct would also be lawful in Vermont), the inability to ignore valid court orders, and operational questions about telemedicine, mail-order pharmacies and out-of-state dispensing.

No formal committee action on S.28 is recorded in the transcript provided; staff indicated some sections would proceed to Judiciary for additional review and a senator volunteered to present the amended bill on the floor.