Vermont Health Care Update 01-27-20 - An analysis from DRM's Health Law Team

Downs Rachlin Martin PLLC
Contact

Downs Rachlin Martin PLLC

Governor delivers budget address

Gov. Phil Scott delivered his budget address on Tuesday, focusing on the demographic crisis and a shrinking workforce as the state’s biggest challenges. The budget totals $6.3 billion, with $4.2 billion of state revenue sources. This is an increase of two percent over the current year. The legislature will review the Governor’s budget and make changes it deems necessary.

The Governor’s budget addresses the following health care initiatives:

  • Invests $1 million in incentives to retain graduates with nursing degrees to fill critical openings in the state’s healthcare sector;  
  • Invests $1 million more in the newborn home visiting program that improves the health of babies and moms, reduces costs of child protection, special education, substance abuse and criminal justice services down the road, and put families on a path to economic self-sufficiency;
  • Expands mental health services in schools;
  • Invests over $1 million more in suicide prevention and mental health services by strengthening our Prevention Lifeline network and increased investments in proven programs like the Zero Suicide initiative;
  • Proposes to pilot a new mental health Mobile Response Unit in order to reduce emergency room visits and hospital admissions;
  • Supports the work of OneCare Vermont and authorizes $5.7 million for delivery system reforms on the condition that the ACO operate as a non-profit or meet those same transparency ;
  • Provides resources for the Scott administration to move forward with the design of a prescription importation program and pursuing federal authorization; and
  • Provides $3 million for childcare assistance.

AHS prepares for future loss of IMD Funds

Representatives from the Agency of Human Services appeared before the House Health Care Committee on Wednesday regarding the state’s plan to address the federal Institutes for Mental Disease exclusion, a federal rule that bars payment for treatment in mental health facilities for more than 16 beds for individuals between the ages of 21 and 64.

Department of Mental Health Commissioner Sarah Squirrell said the state was required by the Centers for Medicaid and Medicare Services to submit a phase-down schedule of funding for Vermont IMDs as part of the Global Commitment to Health Demonstration Waiver. Vermont is awaiting approval from CMS for the 2021 phasedown target of 95 percent. CMS indicated that future decreases will be discussed and formalized during negotiations with the state for renewal of its waiver to occur throughout 2021.

Director of Health Care Reform Ena Backus said the Global Commitment waiver was amended in December to enable the state to receive federal financial participation for short-term (60 days or fewer) inpatient services provided to eligible Medicaid beneficiaries while residing in IMDs for diagnosis of serious mental illness. The waiver will ease Vermont’s burden of phase-down planning and allow AHS and its partners the time necessary to prepare for the elimination of IMD funding.

Backus noted that IMD waivers through CMS do not provide federal financial participation for forensic mental health patients. Following phase-down of investment authority, any individual who has a forensic status – currently making up close to half the census at Vermont Psychiatric Care Hospital and accounting for several beds at Brattleboro Retreat –will have to be paid for exclusively with state dollars. This equates to a loss of approximately $6.1 million in federal funding.

Health providers weigh in on competency to stand trial legislation

The Senate Judiciary Committee continued to take testimony on Wednesday on S.183, a bill to extend the time in which a person remains in state custody if the person is adjudicated not guilty by reason of insanity for homicide or attempted homicide. Sen. Dick Sears, D-Bennington, said he expects significant changes to the bill. He continues to advocate for a victim and public notification if an individual is to be released in the community.

Department of Mental Health Deputy Commissioner Mourning Fox and General Counsel Karen Barber said a mandatory three-year initial commitment period takes away clinicians’ ability to treat individuals in the least restrictive setting. It also puts DMH in an untenable situation – either they violate this legislation or they violate the Centers for Medicaid and Medicare Services and Joint Commission accreditation requirements.

Fox said DMH must adhere to laws governing protected health information and are prohibited from disclosing information about patients. There is no general HIPAA exemption that would allow DMH to notify people in the event of discharge from custody where a serious and imminent risk of danger to an identifiable victim is not present. The DMH presentation can be found here.

Vermont Medical Society President-elect Forensic Psychiatrist Simha Ravven advises against extending any period of mandatory commitment for insanity acquittals. The need for inpatient psychiatric hospital care needs to be determined clinically and is highly individual. She said an extended period of commitment makes physicians and hospitals into “jailers” when its treatments are not determined by an individual’s clinical needs. She said the area of greatest need is monitoring for those individuals who transition from hospital to the community in a manner that protects the community from risk of violence and provides the individual with robust treatment.

Vermont Association of Hospitals and Health Systems Director of Policy Analysis and Development Emma Harrigan said that extending commitment orders to three years will impact access to care for individuals waiting for inpatient mental health services. For every patient that stays in an inpatient bed for the entire year, it means there are 30-61 people seeking care that hospitals cannot accommodate. She stressed that care that is custodial in nature—not driven by the need for treatment—is not covered by Medicaid or Medicare. Additionally, Vermont is no longer allowed to use Medicaid funds to support mental health inpatient stays in freestanding psychiatric hospitals that exceeds 60 days or for mental health inpatient stays for forensically committed individuals. Each three-year stay will cost Vermont $1.3-2.7 million in general fund dollars.

Harrigan also supports the need for more transparency, accountability, and resources for Vermont’s forensic mental health system. VAHHS supports the evaluation of psychiatric support services and the formation of a working group to identify gaps and opportunities to improve the forensic mental health system. It also supports the development of a formal competency restoration program, recognizing that more resources will be needed to develop the appropriate settings for providing these services

House Passes Budget Adjustment Act

The House passed the annual budget adjustment for FY2019 on Thursday, approving $3.9 million in delivery system reform investments and a rate increase for the Brattleboro Retreat.

The DSR payments proposed by the administration were half of what OneCare Vermont had initially proposed in its budget submission to the Green Mountain Care Board, and a small portion of the federal funds that could be drawn down with a state match. The funds are needed to help implement the All Payer Model, Vermont’s plan to achieve the triple aim in health care of access, quality and containing cost. With a lower level of DSR funding, OneCare would not begin new programming, but would continue to fund current programs, including a longitudinal care pilot program, an expansion of RiseVT, and the embedding of mental health counselors in Supports and Services at Home congregate housing sites.

Although legislative committees agreed last year that the short-term funding was best included in the Budget Adjustment Act, rather than as part of the Department of Vermont Health Access base budget, this year legislators expressed concern that the timing of the BAA gave them little time to review DSR programming. To address the issue, the House Appropriations Committee approved language that requires OneCare  to collaborate with the Agency of Human Services in designing and prioritizing proposed DSR projects. Additionally, in order to receive the DSR dollars, Agency of Human Services Secretary Mike Smith is requiring OneCare to apply for non-profit status, and if the IRS denies the application, to operate as a non-profit in terms of transparency.

The BAA also includes a rate increase for the Brattleboro Retreat to its base inpatient rate for adult and children served at the facility. This change increases the base per diem rate from $1,425 to $1,493 (4.8 percent increase), effective Nov. 1, 2019.

The bill now moves to the Senate.

Health and Welfare begins review of omnibus health care bill

The Senate Health and Welfare Committee did a walk-through of S.290, a bill related to health care reform implementation. Committee chair Sen. Ginny Lyons, D-Chittenden, noted that three of the five committee members sponsored the bill, excluding Sens. Dick McCormack, D-Windsor, and Debbie Ingram, D-Chittenden. Not many questions followed the walk-through, knowing the committee will be spending a lot of time on this bill this session. Lyons tagged the rate setting piece as a topic for further discussion. “I think we need to look at what the Green Mountain Care Board currently does and how this compares. I think that the rate setting piece has certain financial implications. So, I think we will have to look at that. I think there are reasons that this has not been in place,” said Lyons.  She also stated, “I do know the concerns we have around having more attributed lives around the Accountable Care Organization. I think that will be an easy discussion to have.”

Finally, Lyons said “The bill is not polished, so there will be a lot of testimony that we will take. I have no preconceptions that the way the bill is currently written will be how it turns out.” After commenting on the concerned faces in the room, Lyons then invited everyone in the room to contact the committee assistant, if they would like to testify on this bill. “I encourage conversation inside and outside of the room. I think it is very important we move forward with health care reform. We did not have enough time last year to do that, so this is our time now to do that.”

The meeting ended with an analogy by McCormack illustrating his take on the bill. He said, “Five members are packed into a car and we are on a road trip. We are trying to figure out how to go to NY, but I don’t want to go to NY I want to go to Boston. If the committee is the dead set on going to NY, I guess I should try to do what I can to make it work.”

Human Services Committee begins review of ACO

The House Human Services Committee received an overview of OneCare Vermont from Chief Executive Officer Vicki Loner on Thursday. The all-payer accountable care organization serves as a mechanism for a group of providers to come together to take care of a patient population for a fixed price. The goals of the provider-led All Payer Model are to improve access to primary care, reduce deaths from suicide and drug overdose, and reduce the prevalence and morbidity of chronic disease.

Loner said hospitals and providers are increasing investments in primary prevention. With advances in data analytics, OneCare is able to identify high-risk patients who benefit most from early intervention and complex care coordination to reduce unnecessary spending. Loner said through OneCare, providers have more flexibility with payment waivers. She said the skilled nursing facility three-day rule waives the requirement for a three-day inpatient hospital stay prior to a Medicare-covered, post-hospital, extended-care service for eligible beneficiaries. This provides greater patient experience.

Committee Chair Ann Pugh, D-South Burlington, focused on the budget and the investments to community providers. Loner said that the OneCare budget grows every year because there are more lives attributed to the model and more accountability. She said the federal government and the state are moving away from fee-for-service payments because it is not predictable or sustainable. She also stressed that delivery system reform dollars go into communities, and not towards administrative costs.

Minimum wage conference committee finds agreement 

A conference committee on minimum wage legislation, S.23, reached a compromise this week. The Committee of Conference Report passed the House on Friday by a vote of 93-54 and is expected to easily pass the Senate.

The agreed-upon bill would increase the minimum wage to $11.75 on Jan. 1, 2021 and $12.55 on Jan. 1, 2022. Increases in subsequent years will be linked to the consumer price index. The cost to employers is estimated to be over $50 million in 2021 and $142 million in 2022.

Some employees who receive a higher minimum wage stand to lose a significant portion of this new income due to losing low-income benefits. The benefits cliff continues to be a challenge to lawmakers. The general consensus in the State House on Friday was that Gov. Phil Scott will not veto the bill. 

Paid family leave on its way to the governor

The Paid Family Leave bill Committee of Conference Report, H.107, was voted on in the House on Thursday and passed on an 89-58 vote. Conservatives who opposed the bill objected to the fact that a payroll tax will be imposed on people who may never be able to use the benefit. They also believe that the 0.2 percent payroll tax will increase quickly, further burdening workers.

A handful of liberal legislators who opposed the bill were frustrated that a temporary disability insurance program was not mandatory. The opt-in cost for those who choose this coverage will be an additional 0.38 percent.

The governor is expected to veto the bill. Democratic leaders will need two-thirds of both bodies to override the veto. It is expected that many of the Democrats and Progressives who voted against this bill will switch their votes when it comes to a veto so it is unclear whether Gov. Phil Scott will prevail. 

Committee moves to ban flavored tobacco

A group of African-American Burlington high school students gave compelling testimony this week before the Senate Health & Welfare Committee in support of a ban on all flavored tobacco products, including menthol cigarettes. The students spoke of the personal family hardships they have endured as a result of flavored tobacco consumption. They also described the targeted marketing that tobacco companies have used towards youth and African Americans.

Their testimony was reinforced by a heavily research-based presentation by Dr. Philip Gardiner of the University of California.

The committee is likely to approve the bill within the next week or so.

The Older Vermonters Act: a start to making Vermont a great place to age

The House Committee on Human Services heard testimony this week from the Department of Disabilities, Aging and Independent Living, Vermont Association of the Area Agencies on Aging, and Community of Vermont Elders on the Older Vermonters Act. The legislation aims to help aging Vermonters live independently, and is intended to work in tandem with the federal Older Americans Act, the Vermont State Plan on Aging, and the Choices for Care program.

DAIL Commissioner Monica Hutt and Director of State Unit of Aging Angela Smith-Dieng recommended changes to the bill.  DAIL’s main concern is not having the staff or resources to take on some of the tasks outlined in the bill. DAIL suggested that existing reports already assembled each year by the department could be used for the reporting the bill requires.

Ruby Baker, Executive Director of the Coalition of Vermont Elders, recommended that more support be provided for kinship caregivers. Baker said that for every one child in foster care there are twenty children in kinship care, and that there are 1500 children in foster care in Vermont. Finally, she said the committee should try to better understand which older Vermonters are using adult protective services and long-term healthcare services.

House health panel turns attention to prescription drugs

Prescription drugs were the focus of several legislative hearings at the end of the week in the House Health Care Committee. Committee Chair Bill Lippert, D-Hinesburg, told the committee that he “intends to continue to press forward to find every avenue we can at the state level to find any way to make prescription drugs as affordable as we can for Vermonters.”

Agency of Human Services Director of Health Care Reform reported to the committee that AHS is working on an application to the U.S. Department of Health and Human Services to implement a wholesale prescription drug importation program with Canada. In accordance with Act 72 of 2019, the application will be submitted by July 1, 2020.

Backus told the committee that an importation program would result in significant savings to consumers, but several committee members questioned the program’s potential overall price impact and Canada’s willingness to participate and provide adequate supply. Trisha Riley, the Executive Director of the National Academy of State Health Care Policy, said that manufacturers in Canada will not have the authority to export wholesale prescription drugs until there is a program, but said that she is confident that willing partners will be found. The application for the program must include details of those proposed partners.

The Office of Professional Regulation recommends the General Assembly amend 26 V.S.A. §2061 to provide the Board of Pharmacy the authority to issue licenses to both wholesale-distributor-exporters and wholesale-distributor-importers to drug outlets to facilitate this importation program Lippert said that he would like to move this amendment along, and that “this is likely to become a priority.

”The committee is also considering amending the drug price transparency reporting statute that requires Department of Vermont Health Access and health insurers to provide certain information annually about the increase in the price of prescription drugs. Jill Abrams, Director of the Consumer Protection Division of the Vermont Attorney General’s Office, presented the report to the committee on Friday.

Abrams told the committee that the flexibility allowed in the reporting statute results in insurers reporting over different year lengths:  MVP reports drugs that have increased 15 percent or more in the insurance plan’s net cost during the previous calendar year, while BCBS reports drugs that have increased by 50 percent or more in cost over the past five years. The resulting data provides a skewed cost view. Insurers have said that they can come up with reporting requirements that could provide better data.

Abrams also said that this year’s report doesn’t include required manufacturer explanations for increases due to confidentiality laws. 

Lippert questioned whether information required by the current reporting requirements are gathering data of value and wants “to work with NASHP to see how we might strengthen what we are doing in Vermont and see what other states are doing.”

Committee considers buprenorphrine decriminalization

The House Human Services Committee is evaluating H.162, a bill that proposes to remove buprenorphrine from the misdemeanor crime of possession of a narcotic. Buprenorphrine is an opioid used to treat opioid use disorder, acute pain, and chronic pain. The bill was passed out of the House Judiciary Committee last year without amendment, and when it reached the House floor, Committee Chair Ann Pugh, D-S. Burlington, requested that it be sent to her committee for review. There was “mixed feelings” in the committee about the bill by the end of last session, so Pugh held the bill for further review this session.

Kate O’Neill, who wrote a series on the opioid crisis for Seven Days after her sister died of a drug overdose, told the committee this week that barriers to treatment mean that people who need medically assisted treatment can’t access needed buprenorphrine. Drug users and family members often resort to purchasing it illegally. Steve Leffler M.D., President of the University of Vermont Medical Center, and Grace Keller, Safe Recovery Program Coordinator of the Howard Center, agreed that legal buprenorphrine is a valid risk mitigation strategy, but both took a neutral position on the bill.

Rep. Sandy Haas, P-Rochester, proposed a strike-all amendment that would legalize the possession of 480 mg or less of buprenorphrine. Any minors in possession of the drug would be referred to the Court Diversion Program for enrollment in the Youth Substance Abuse Safety Program. The proposal had luke-warm support from most committee members, and Pugh said that it would added to their priority list of bills.

Finance reviews health care bills

The Senate Finance Committee did bill reviews on S.245 and S.296 on Friday. The first bill, S.245, would eliminate cost-sharing requirements for primary care services. Sen. Chris Pearson, P- Chittenden, introduced the bill on behalf of the Vermont Alliance for Health Care Reform. He said the bill is aimed at helping the uninsured and lowering overall health care costs by reducing the use of the emergency room. S.296 would limit the amount of an individual’s out-of-pocket expenses for prescription insulin drugs. The committee heard from the American Diabetes Association and a consumer that the drugs are cost prohibitive requiring people to seek care in emergency rooms or not at all.

Bill would give limited prescribing authority to pharmacists

On Pharmacy Day in the State House, Lauren Bode, Assistant Professor of Pharmacy Practice at the Albany College of Pharmacy and Health Sciences, requested that the House Health Care Committee consider giving limited prescriber authority to pharmacists. She told the committee that it’s an initiative that jurisdictions in Canada have instituted with positive results.

Bode said that “when pharmacists get more closely involved in a patient’s health care team, the quality of care improves, care costs less, and patients are more satisfied with their care.” She recommended that prescribing authority be given to pharmacists for tobacco cessation treatments, hormonal contraception, and ancillary supplies to medications already prescribed by a treating physician. Sandra Rosa, President of the Vermont Pharmacists' Association and Director of Pharmacy Practice Experience at the Albany College of Pharmacy and Health Sciences, added that pharmacists are fully qualified and trained to serve the unmet needs of Vermonters.

H.752, a bill authorizing pharmacists to dispense hormonal contraceptives without a prescription, is in the House Committee on Human Services, but there is currently no proposal introduced that includes all of Bode’s recommendations. Committee Chair Bill Lippert, D-Hinesburg, said that his committee could draft a committee bill or incorporate the proposals into another bill that they are working on. 

Proposals direct the Green Mountain Care Board to look at drug costs

Recently introduced bills in the House and the Senate authorize and direct the Green Mountain Care Board to evaluate the costs of certain high-cost prescription drugs. H.785 and S.246  also direct the Board to recommend methods for addressing those costs, including setting limits on what Vermonters would be expected to pay for some high-cost drugs. Committees are likely to take testimony on the bills in the coming weeks.

Board of Medical Practice and licensure changes sought

This week, the House Health Care Committee briefly reviewed H.438, a bill that proposes to amend the laws of the Board of Medical Practice and the licensure of physicians and podiatrists. David Herlihy, Executive Director of the Vermont Board of Medical Practice, reviewed the bill for the committee, saying that the current proposal is the result of stakeholder discussions throughout the summer. The bill contains what Herlihy characterized as minor housekeeping changes to the statutory section governing the powers and duties of the Board, as well as a more controversial change in the reporting of unprofessional conduct. Chair Bill Lippert, D-Hinesburg, said that he would like to take further testimony on the issue from the stakeholders.

Green Mountain Care Board Meeting - 1.22.2020

The Department of Vermont Health Access presented the Act 53 Health Information Exchange Consent Implementation Report to the Green Mountain Care Board on Wednesday. The new opt-out policy education campaign has been launched, and the mechanisms are in place to manage the change in policy that will be implemented on March 1. To align the HIE plan with the Act 53 consent change, GMCB staff proposed an HIE amendment which will be open to public comment until February 2.

Vermont Information Technology Leaders executives and directors also presented the FY 2020 VITL budget adjustment and quarterly review. They reported a $183,000 deficit, due in part to an increase in work scope, the implementation of the new consent policy, and phase one and two of the Collaborative Services Initiative. There has been a continued increase in chart access and Vermonters providing consent for inclusion in the HIE ahead of the implementation of the opt-out policy. GMCB staff recommended to the Board that the budget adjustment be approved with the condition that VITL present quarterly to the Board for the duration of FY 2020. VITL’s quarterly presentations will include updated information regarding governance and operations; finances;  technology; and the Collaborative Services Initiative. The public may submit comments on the proposed budget adjustment until February 2.

Health Care Bills

H.795  An act relating to increasing hospital price transparency

H.796  An act relating to recommendations regarding ownership of medical data in electronic health records

H.816 An act relating to establishing a mental health mobile response unit pilot program in the city of Rutland 

H.822 An act relating to limiting out-of-pocket expenses for prescription insulin drugs

H.823 An act relating to banning flavored tobacco products and e-liquids 

H.824 An act relating to required medical personnel for dental procedures using sedation or anesthesia

H.825 An act relating to limitations on health care contract provisions and surprise medical bills 

H.826 An act relating to authorized professional use of regulated drugs  

H.859 An act relating to licensure of freestanding birth centers

H.860 An act relating to next steps for implementation of Green Mountain Care

H.861 An act relating to prohibiting medical examinations under anesthesia without informed consent

H.869 An act relating to planning for the care and treatment of patients with cognitive impairments

H.878 An act relating to decriminalizing certain drugs commonly used for medicinal, spiritual, religious, or entheogenic purposes

S.319 An act relating to providing the State Auditor with access to accountable care organization records

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Downs Rachlin Martin PLLC | Attorney Advertising

Written by:

Downs Rachlin Martin PLLC
Contact
more
less

Downs Rachlin Martin PLLC on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.