Senate committee reviews S.28 to expand consumer protections for health-care advertising and tighten provider oversight

A February meeting of the Vermont Senate Health and Welfare Committee on S.28 focused on expanding existing consumer-protection rules for health-care advertising and adding uniform oversight duties across licensed professions.

The bill, sponsored in committee discussion by Senator Ruth Hardy (Addison District), would extend language now applied to limited-service pregnancy centers to ‘‘health care services’’ more broadly, revise definitions used across titles of state law, and add or align unprofessional-conduct provisions in multiple licensing statutes for physicians, advanced practice registered nurses, physician assistants, osteopathic physicians, naturopathic physicians and pharmacists. "This is a bill...that updates some work that we did here in this room and in the legislature 2 years ago related to legally protected health care," Senator Ruth Hardy said.

Support staff and counsel walked the committee through S.28's principal elements. Jen Hardy, legislative counsel, said S.28 "starts out in Title 9 in the Consumer Protection Act" and would make disseminating advertising about health-care services that is "untrue or clearly designed to mislead the public" an unfair or deceptive practice under the Consumer Protection Act. She summarized that the bill narrows multiple long definition lists into a consistent definition of "health care services" and moves some oversight duties from a provision tied to pregnancy service centers into each profession's unprofessional-conduct sections.

Key provisions detailed by legislative counsel and in committee discussion:

- Consumer-protection expansion: The bill would treat advertising about health-care services that is untrue or clearly designed to mislead as an unfair and deceptive act in commerce, subject to enforcement under the Consumer Protection Act. Advertising would include direct-to-consumer representations, print and broadcast media, web advertisements and social media.

- Professional oversight and unprofessional conduct: S.28 adds or clarifies prohibitions across multiple licensing statutes, including permitting a licensee's name or license to be used only when the licensee is actually in charge of, and responsible for, treatment or other health-care services; requiring active oversight of care delivered under a licensee's name; monitoring the education, training and experience of individuals providing care under that license; and requiring review and approval of public information about services provided under a license.

- Telehealth/prescribing carve-out: The bill preserves existing prohibitions on prescribing solely on electronic questionnaires in many contexts but adds a explicit carve-out for prescribing medication to terminate a pregnancy when the licensee uses an "adaptive questionnaire" that allows follow-up questions and collection of additional medical history, in furtherance of the state's reproductive-rights chapter as referenced in the draft language.

- Pharmacy confidentiality for certain prescriptions: S.28 would allow, "upon request of a prescribing practitioner and to the extent not expressly prohibited under federal law," a pharmacist not to list the prescriber's individual name on a fulfilled prescription for medications used in legally protected reproductive or gender-affirming health care. Instead, the prescription could list the facility name where the practitioner is employed or contracted.

- Fetal-death reporting: The bill clarifies that certain fetal-death reports submitted to the Department of Health are for statistical purposes only, are not public records, shall be kept confidential and shall be destroyed after five years.

Committee members asked clarifying and constitutional questions. One committee member asked who would set the standard for whether advertising "confuses" a consumer, calling the term "very, subjective." The member added, "I don't like subjectivity in law," and urged clearer standards or intent elements. Legislative counsel replied that, as drafted, such determinations would generally be made by a regulatory board and, if reviewed, a court would apply a reasonable-person standard in enforcement or appeals.

Several members raised practical concerns about oversight duties when licensees supervise services remotely. A committee member representing a provider setting described situations in which the license-holder may never meet a patient in person and said the proposed requirement to "actively monitor" training, review information and provide ongoing oversight could create ambiguity for facilities that rely on a license-holder's remote supervision.

Members also discussed enforcement mechanics. Legislative counsel reviewed civil remedies referenced in existing consumer-protection law: civil investigations and rules by the attorney general, injunctive relief, civil penalties (including a cited figure of up to $10,000 per violation for injunction violations), and private rights of action that can include recovery of damages and attorney fees; the counsel suggested the Office of the Attorney General would be the primary enforcer and could give additional guidance on practice and penalties.

Next steps: The committee agreed to schedule testimony from licensing boards, practitioners and the Office of the Attorney General and indicated it may take public testimony and consider action as soon as the next committee meeting. The chair said the committee would add S.28 to the agenda for additional testimony and drafting review.

Why it matters: If enacted, S.28 would broaden the reach of Vermont's consumer-protection framework for health-care advertising beyond pregnancy-service centers to a wide array of medical services, create consistent oversight obligations across multiple licensed professions and add confidentiality protections for certain prescription records and fetal-death reports. Committee members signaled interest in tightening language on standards such as "confuse" and building clarity about intent and enforcement to reduce constitutional and practical risks.

Closing: The committee paused the walkthrough for a week of additional testimony and drafting work; no formal vote on S.28 took place during the recorded meeting.