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SENATE JOURNAL 4 JANUARY 2006 1 HOUSE MESSAGE The House ofRepresentatives, meetingin session on November 16, 2005, has voted to sustain the Governor's veto on the following entitled Bill(s): HB 354, relative to the review, approval, and adoption ofagency rules. Out of Recess. LATE SESSION Senator Clegg moved that the Senate adjourn from the late session. Adopted. Adjournment. STATE OF NEW HAMPSHIRE CONVENING DAY January 2006 4, The Senate met at 10:00 a.m. A quorum was present. The Reverend David R Jones, chaplain to the Senate, offered the prayer. Good morning. Good morning, everybody. Happy NewYear! We remem- ber this day, those families in West Virginia who lost loved ones in the accident in the unfortunate way that it was reported, because of the change in the mood. And it's a good day to think about everybody who does work for us that costs them something, includingyou. So thankyou for what you do. I would remind you that in your tool kit, as you begin phase II ofthis session, you have three important things that it is very important to use this time around, and I invite you to cultivate them in whatever way works for you. First of all, there are your convictions, which is the root system ofyour service. Mayyour roots hold firmly, but may the top ofyour trees be able to bend in the wind so you don't break off. Convictions. Secondly, there is perception. The gift ofunderstand- ing when you are right and when you are wrong, which comes through careful, patient, deep listening, especially to the voices that you don't agree with. And so I invite you to nourish the gift ofperception because it is the seed bed ofwisdom. And then lastly, there is the gift ofrespect. You can hate somebody's ideas, butifthey thinkyou hate them, you have lostthe battle and don't deserve to be sittinghere or anywhere else.And it is the challenge that all ofus wrestle with. And so I invite you to take 2 SENATE JOURNAL 4 JANUARY 2006 your tool kit out and use your three tools this session of "conviction", don't give up; "perception", don't quit listening; and "dignity" and "respect", don't quit caring. Let us pray: Gracious God, You invite all of us to risk. Thank You for those who share their lives in ways that cost something, our soldiers, our servants, ourcoal miners and ourselves. Andgive us Yourgifts and strength ofcon- viction and perception and respect, that we will serve You in ways that make You smile. Amen Senator Gallus led the Pledge ofAllegiance. Senators Burling, D'Allesandro, Fuller Clark and Kenney are excused for the day. INTRODUCTION OF GUESTS NEW STAFF FOR THE 2006 LEGISLATIVE SESSION Samantha Piatt Chiefof Staff Erin Hass Majority Policy Director Kenneth Murphy Legal Counsel William G. Gardner "Chip" Senate Clerk's Office Patrick Murphy Legislative Aide Deborah Chroniak Secretary Rachel Durazzani Secretary Barbara Harwood Secretary Jennifer Perry Secretary Angela Spradling Correspondence Secretary SUSPENSION OF THE RULES Senator Clegg moved that the rules ofthe New Hampshire Senate be so far suspended as to allow introduction, and consideration at the present time ofSenate Bill 392-FN-A, and by this motion, to allow a third reading motion in the early session. First and Second Reading 06-3035 SB 392-FN-A, relative to the payment ofMedicare Part D phased down state contribution, known as "clawback". (Sen. Morse, Dist 22; Sen. Clegg, Dist 14; Sen. Larsen Dist 15; Rep. King, Coos 1; Rep. O'Neil, Rock 15; Rep. Craig, Hills 9) Adopted by the necessary 2/3 vote. SB 392-FN-A, relative to the payment ofMedicare Part D phased down state contribution, known as "clawback". Senator Morse moved ought to pass. SENATOR MORSE: Thank you, Mr. President. I move ought to pass on Senate Bill 392, relative to the payment ofMedicare Part D phase down ofstate contribution, known as "clawback and wish to speak to my motion. Mr. President, as we presented yesterday, there was no appropriation made to the department on Medicare clawback, it was made to the "rainy day fund" of$43 million. Since we've done that in the budget pro- cess, we've received documentation from the federal government, that that $43 million is going to be due to the federal government in the '06 and '07 budget, which we were well aware of the fact that that might happen. I honestly don't believe that the state ofNew Hampshire agrees with the fact that we're going to be making these payments and that became clearyesterday, in the proceedings thatwe had overinthe House. SENATE JOURNAL 4 JANUARY 2006 3 And I think that will proceed along in the session, that will make it very clear to the federal government about our position on that. Having said that, it was very clear that these payments are going to be due. We're asking foryour support so that we do make those payments on time and avoid any penalties at the federal level, and we need to pass this legislation here in the Senate body today. We're fast tracking it to the House right after this and then to the Governor, so that we can have it in place for the end ofthe month. Thank you very much for your support. SENATOR LARSEN: Thank you, Mr. President. I rise to point out that this bill is being passed under duress. As we know, the penalties for not makingthis payment can be as much as 12 percent due in February and continuing on as an obligation ofthe state. But I think everyone here recognizes and in fact, we prepared a resolution, to point out the problems with this required payment ofmonies, kind ofappropriately named "clawback". It has kind ofthat sense ofclawing back money that in fact is rightfully kept in the state, money that should be used for covering those who are low income, elderly, frail, who have mental health needs, that in fact, under our having to send as much as $43 million to the federal government, we will be less able to cover those in need. The resolution we prepared also pointed out what we heardyesterday, were problems with the so-called "clawback" legislation. Problems that cause us to require co-pajrments oflong-term care Medicaid patients, in home and community based settings. New Hampshire's never had to make a co- payment, a required co-payment ofthese low income and frailer seniors, yet, now we're going to have to require what is a $5 co-pay. As some of us know, $5 to someone in long-term care is the difference between a hair cut or none, or a birthday card to their grandchildren. It means a lot, and we have not so recently increased the personal allotment to the folks, but now we're going to require co-pays of them because the federal government's requiring this. We also have issues with dual eligible cli- ents, those who receive mental health services now have to make co- payments that they've never had to make before. And issues relating to medications that won't be covered, that the state will have to now cover through its own general funds. A further issue we heard yesterday in Joint Finance hearings that was pointed out by the commissioner of Health and Human Services here in this state, which relates to dual eligible individuals who will now have to...or who were advised to seek a ninety-day prescription filling. We will have to pay...we are in essence, sending some ofour own state general funds in payback for this ninety- day prescription, because their ninety days extended into the year 2006. These are complicated issues obviously, and technical in nature, but the real issue is Medicaid and Medicare have in essence, been programs run by the federal government, and operated in cooperation with the state, and this is a first time that we are being under duress required to make a payment back to the federal government for a program that should be, in fact, covered through Medicaid and Medicare fully, and leave our general funds where they belong in serving those most in need. So I raise these issues. I know we will bring it forward as a resolution on the 18*, which is when we will bring that resolution as well as have more com- plete Senate attendance. But I did want to raise those issues because they may get lost in what will be a busy day on January 18"", but they are important issues which I believe this resolution will ask each ofyou to sign onto. It was in fact, drafted through the help ofthe Department of Health and Human Services and highlights the problems with our beingrequired to make this kind of$43 million payment at a time when 4 SENATE JOURNAL 4 JANUARY 2006 we know our Medicaid, Medicare costs in this state will be rising dra- matically. So with that, I urge each member to pass this, but I person- ally would say that I'm doing it under the duress ofpenalties required from the federal government and not one which I think most ofus would willingly do ifit weren't with...coming with retribution ifwe didn't do it. So, thank you, Mr. President. Adopted. Senator Cleggmoved that SB 392-FN-A, relativeto the payment ofMedi- care Part D phased down state contribution, known as "clawback", be by this motion, read a third time, the title be the same as adopted and or- dered to third readingin the early session andbe passed at presenttime. Adopted. Third Reading and Final Passage SB 392-FN-A, relative to the payment ofMedicare Part D phased down state contribution, known as "clawback." RESOLUTION Senator Clegg moved that all bills laid on the table from session year 2005 shall be by this resolution made inexpedient to legislate. SENATOR LARSEN: In doing this tabling motion, it was my under- standing, and I'd like to have perhaps SenatorCleggreiterate, thatitdoes not in fact indicate that future bills for the year 2006 will receive a kill- ing motion because this...those laid on the table were killed. So my question to Senator Clegg is, ifwe lay these bills on the table and there is a similar or identical issue brought forward in 2006 legislation, can we be certain that it will receive a fair hearing and it will not be used as an argument that these bills were...these bills on the table were killed at that point? SENATOR CLEGG: It's my beliefthat the next motion coming up will be one to allow all the bills in and, once the Senate has voted to allow the bills into first and second reading, there is no more discussion on whether or not something is or isn't in here properly. We all know what's up there, we all know what we're doing if we allow a bill in, it's there and it gets a hearing. SENATOR LARSEN: Thank you. Adopted. SB 29, relative to processing absentee ballots. SB 34-FN, relative to reimbursement rates for child care. SB 71, relative to amendingwarrant articles in towns thathave adopted the official ballot form oftown meeting. SB 109-FN, relative to catastrophic special education funding. SB 116, relative to payment procedures for the utility property tax. SB 133-FN, relative to mooring permits. SB 134, relative to medical decision making for those adults without capacity to make health care decisions for themselves and establishing procedures for Do Not Resuscitate Orders. SB 162-FN-A, increasingthe appropriation to the firemen's relieffund. SB 197-FN, relative to captive insurance companies and reciprocal insurers.