July 2020, Volume XXXIV, Number 4
The 2020 legislative wrapup
Pandemic impacts deliberations
s the 2020 Minnesota legislative session gaveled in on Feb. 11, it was largely expected to be a quiet term. A balanced, two-year budget had passed the year before, the economy was humming, and, with an anticipated $1.3 billion surplus, there was no must-pass legislation. Passage of a bonding bill for infrastructure projects across the state was expected to be the highlight of the session. The Democratic majority in the House indicated interest in spending the budget surplus on affordable housing and homelessness issues, while the Republican-controlled Senate had hoped to use some of the budget surplus for tax relief. However, with Minnesota remaining the only split-party Legislature in the country and all 201 legislative seats up for election in the fall, many expected agreement would prove elusive on any controversial issues, as each caucus would push its own priorities and see no reason to compromise mere months prior to an important nationwide election.
Suffice it to say, the legislative session did not go as expected. By March 17, exactly five weeks into the session, a new reality set in due to extraordinary measures undertaken by the Legislature in response to the COVID-19 pandemic. The House and Senate both met briefly to pass a $20 million COVID-19 response package, followed seven days later with an additional $200 million COVID-19 response package. After those bills passed, the Legislature began an unprecedented extended recess until April 14.
Five weeks into the session, a new reality set in … the COVID-19 pandemic.
From March 17 to April 14, the Legislature met just twice, each day passing a single COVID-19 response bill. The first of these bills was more comprehensive in nature, including various funding and policy provisions, while the second established a rebuttable presumption that those who work in certain occupations and contracted COVID-19 had acquired it on the job, and were therefore eligible for workers’ compensation.
The Legislature eventually resumed relatively normal functions after moving to a virtual environment. Committee meetings via Zoom videoconferencing became the norm, and new rules were passed to allow for legislators to participate in floor sessions from various remote locations. As a result, both the House and Senate engaged in regularly scheduled committee meetings, and each met in floor session several times a week. The issues moved beyond only dealing with the COVID-19 response, and bills began advancing through the new, much slower, process. Eventually, nearly 50 bills were passed and signed into law in the last month of the regular session. The Legislature adjourned the 2020 regular session on the constitutionally required date of May 18.
Concurrently, Gov. Tim Walz declared a peacetime emergency on March 13, which afforded him broad authority under state law to address the COVID-19 pandemic through executive order. Each peacetime emergency declaration is in effect for 30 days and can be renewed as many times deemed necessary by the Governor. Subsequently, Gov. Walz has continually renewed the peacetime emergency, issuing more than 75 Executive Orders, which is an unprecedented number.
The peacetime emergency declaration added a wrinkle to the Governor’s relationship with the Legislature during the legislative interim. In a normal year, House and Senate members would all be back in their districts campaigning. However, state law requires that if the Governor issues, or in this case renews, a peacetime emergency and the Legislature is not in session, then the Governor must call a Special Session to allow the Legislature to review the Governor’s actions. Under state law, the Legislature may vote to terminate the peacetime emergency but does not have to approve it.
Legislation of interest
Outside of the efforts to address the COVID-19 pandemic, health care policy was not a big focus during the 2020 legislative session. As we discussed in Minnesota Physician after the 2019 session closed, there were major policy and funding changes included in the 2019-2020 budget. As a result, the 2020 session was largely focused on policy.
Highlights of legislation that passed this year:
H.F. 3398 (Morrison)/S.F. (Rosen): Prior authorization. The Legislature modified the utilization review and prior authorization requirements used by Minnesota’s health insurance companies to medically manage health care benefits. Among other provisions, the revised law shortens deadlines for both standard review authorizing decisions and expedited review decisions; states that utilization review organizations will not be able to revoke or change a prior authorization, absent evidence of fraud, misinformation, or conflicts with state or federal law; requires the review to be done by a physician within the same or similar specialty; mandates a continuity of care of 60 days if the individual changes health plans; and requires annual posting on the health plans’ public website of the number of prior authorizations that were authorized or denied.
H.F. 3100 (Howard)/S.F. 3164 (Jensen): Insulin pricing. Minnesota’s Alec Smith Emergency Insulin Act creates an emergency supply of insulin for 30 days for diabetics who cannot afford the medication. It also sets up a longer-term program for those under certain income limits and for those who don’t have insurance (or have insurance with large co-pays). The legislation requires manufacturers to supply the drug, either by resupplying pharmacists or sending insulin directly to patients, and imposes fines on companies that fail to participate. Those fines increase as non-participation continues—$200,000 per month for six months, increasing to $400,000 per month for the next six months. After a year of non-participation, fines go to $600,000 a month. The Pharmaceutical Research and Manufacturers of America (PhRMA) has filed a lawsuit in federal court charging that requiring drug makers to turn over insulin at little or no cost or face fines represents a violation of the Fifth and Fourteenth amendments to the Constitution. Gov. Walz stated that the law would remain in force pending what is likely to be a protracted court battle.
Committee meetings via Zoom videoconferencing became the norm.
H.F. 3028 (Morrison)/S.F. 2939 (Nelson): Criminal background check fee. This bill strikes the $32 health board fee covering a criminal background check related to physician licensing fees, makes technical changes to the governing statute, and makes similar changes to other occupational boards.
S.F. 4458 (Howe)/H.F. 4537 (Wolgamott): Worker’s compensation claims. This bill creates a rebuttable presumption that an employee who contracts COVID-19 is presumed to have an occupational disease arising out of and in the course of employment. Eligible employees include police officers; firefighters; nurses or health care workers; corrections officers or security counselors employed by the state or a public body at a corrections facility; EMTs; health care providers, nurses, or assistive employees employed in a health care, home care, or long-term care setting with direct COVID-19 patient care or ancillary work in COVID-19 patient units; and child care workers required to provide child care to first responders and other health care workers. The employees contracting COVID-19 must provide positive test results, or, if a test is not available, must be diagnosed and documented by the employee’s licensed physician, licensed physician’s assistant, or licensed advanced practice registered nurse. A copy of the test or written documentation by the employee’s health care provider must be provided to the employer or insurer.
S.F. 1098 (Rosen)/H.F. 1246 (Morrison): Prescription Drug Price Transparency Act. This legislation requires drug manufacturers to submit certain pricing data to the Minnesota Department of Health (MDH) and requires MDH to publicly post certain data. Specifically, a manufacturer of a brand name drug whose price increases by 10% or more in a 12-month period or 16% or more in a 24-month period, and/or a generic drug whose price increases by 50% or more in a 12-month period, must submit information related to the increase, including the net yearly increase over the introductory price, total sales revenue for the drug during the previous 12-month period, the manufacturer’s net profit attributable to the drug during the previous 12-month period, and other pricing information. A drug manufacturer that does not comply may be subject to a civil penalty not to exceed $10,000 per day. Lastly, MDH must issue an annual report to the Legislature on implementation.
These bills will be compiled at the website of the state’s Office of the Revisor of Statutes (www.revisor.mn.gov). To learn more about an individual House or Senate bill, or to track bills that may carry forward during the 2021 session, visit www.leg.state.mn.us/leg/legis.
Tom Hanson, JD, an attorney with Winthrop & Weinstine, represents clients before the Legislature and regulatory bodies. Prior to joining the firm, he worked for the Republican Caucus in the Minnesota House of Representatives for eight years and served for eight years in Gov. Pawlenty’s administration, including four years as the Commissioner of Minnesota Management and Budget.
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John Reich, director of government relations at Winthrop & Weinstine, has extensive experience in lobbying and strategy management. Prior to joining the firm, he worked for the DFL Caucus in the Minnesota House of Representatives for five years and served for four years in Gov. Dayton’s administration.