Vermont Health Care Update 02-17-2020 - An analysis from DRM's Health Law Team

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Push to end surprise medical billing

The Senate Finance Committee heard from providers and health insurers on S.309, a bill that prohibits certain provisions in contracts between health insurers and health care providers. It would also limit a patient’s out-of-pockets exposure for emergency services delivered at out-of-network health care facilities and for nonemergency services delivered by out-of-network providers at in-network facilities.

Independent providers and hospitals support the bill, saying it will protect Vermonters from surprise medical bills without penalizing referring providers for recommending the care that they think is best for their patient. In the summer of 2019, Blue Cross Blue Shield of Vermont implemented a payment policy that has negatively impacted providers. In certain circumstances, providers who refer their patients for out-of-network services can now be held financially liable for fees charged to patients by those providers. MVP does not have a similar policy.

Blue Cross Blue Shield Director of Government and Media Relations Sara Teachout said the policy was adopted because they had noticed a cost increase for nonparticipating providers. She said this policy is directed at patients who are referred to an out-of-network provider by a participating provider without first obtaining a prior approval. Teachout said the problem is not as prevalent as in other states, but highlighted that they have had significant issues with out-of-network labs charging excessive fees. She is also opposed to extending the practice for nonemergency services, saying this protects patients and providers from out-of-network charges that are egregious.  

The committee will take more testimony this week.

Strong opposition to health care reform bill

Representatives from the Vermont Association of Hospitals and Health Systems, Bi-State Primary Care Association, and Blue Cross Blue Shield of Vermont appeared before the Senate Health and Welfare Committee on Wednesday to oppose S.290, a bill that expands the Green Mountain Care Board’s regulatory authority. The entities referenced Act 113 of 2016 and Act 52 of 2019, which already requires extensive regulatory oversight of hospitals, insurance companies and OneCare Vermont (the state’s accountable care organization), and provides a comprehensive framework for health care reform.

BSPCA Vermont Director of Public Policy Helen Labun said providers have hit maximum regulation. She said the resource cost of implementing these new requirements, the idea that the proposal collects a lot of data without necessarily providing new insight into the health care system, and the disruption to health care reform efforts are reasons why her members oppose the bill. She said it is unclear how the GMCB will build the capacity to effectively manage and fund everything in this bill, but clearly it will be expensive.

Vermont Association of Hospitals and Health System Vice President of Government Relations Devon Green said instead of helping rural hospitals, this bill adds further burden and expense. She said, “Hospitals are participating in health care reform because it’s an opportunity for providers and patients to work together to determine how to provide the optimal health care through evidence-based initiatives and coordinated care. It’s also the future for rural hospitals. Prospective payments provide hospitals with the predictability they need to better serve their community instead of balancing their budgets on a bad flu season.” Green said the legislative process is breaking that promise of predictability by reopening and threatening the status of the accountable care organization and health care reform year after year.

OneCare Vermont Chief Executive Officer Vicki Loner said that the preponderance of the reporting, certification, and budgeting requirements for OneCare Vermont already exist through the ACO certification and budget process required under Act 113 of 2016. OneCare undergoes a voluntary annual financial audit by a nationally recognized external evaluator, is currently performing an assessment of its internal compliance plan, and is subject to an annual evaluation by the federal government on Vermont’s success, including the success of the ACO. Loner said it is important to not add additional administrative and financial burden to an already taxed workforce and hospital system and to allow providers to focus on delivery system transformation. The cost of ACO regulation through billback, which is financed by the hospitals, is projected to double from 2018 to 2019. She does support efforts to realign the certification and budget processes and to explore the feasibility of a two year budget cycle.

Blue Cross Blue Shield of Vermont is also opposed to the bill stating that the state cannot regulate its way to reform or affordability. She said the legislation is focused on the old model of fee-for-service and should be focused on value-based payments.

Senate overrides veto of minimum wage bill

Gov. Phil Scott vetoed S.23 a bill that would have raised the minimum wage to $12.55 over the next two years citing the impact on employers in rural parts of the state. Senate President Tim Ashe brought the bill to the Senate floor for a vote on Thursday, overriding the veto by a vote of 24-6. It is unclear when the bill will come to a vote in the House, but it could be as early as Wednesday.

Senate passes physician assistant licensure bill

The Senate unanimously passed S.128 on Thursday, a bill to modernize state law regarding the licensure of physician assistants. The bill removes the requirement of a delegation agreement between supervisory physicians and PA’s, and substitutes it with a practice agreement requirement. The proposal also makes PA’s responsible for their own decision making, shifting liability from the participating physician.

Concern from the Vermont Association for Justice and the Vermont Trial Lawyers Association prompted Senate Judiciary Chair Dick Sears, D-Bennington, to amend the bill on the floor to add language affirming that the current system of medical liability remains the same for participating physicians, protecting a patient’s right to sue. As introduced, the bill stated that the mere existence of the practice agreement does not make a participating physician legally liable for the actions or inactions of the physician assistant. Sears’ amendment, unanimously approved by the Senate, adds that the liability of the participating physician is not otherwise limited.

Panel reviews new draft of insanity defense bill

The Senate Judiciary Committee took testimony on Wednesday on a new draft of S.183, a bill addressing competency to stand trial and insanity as a defense. The current draft separates the competency to stand trial evaluation and the person’s sanity at the time of the alleged offense evaluation. Vermont Legal Aid Mental Health Law Project Jack McCullough offered an amendment that had broad support to require the court to appoint counsel from legal aid to represent the person in court proceedings and allows the Department of Mental Health to appear and be represented in proceedings by the Office of Attorney General.

The bill requires the Departments of Corrections and Mental Health to submit an inventory and evaluation of the mental health services provided by the DOC contractor for health care services to include type, frequency, and timeliness of mental health services provided in a correctional setting differ from services available in the community. It creates a Forensic Care Working Group to identify gaps in the current mental health and criminal justice system to improve public safety and coordination of treatment for individuals incompetent to stand trial or who are adjudicated not guilty by reason of insanity. The group will review and report on competency restoration models used in other states, the availability of psychiatric support services during the criminal process, and forensic models used in other states.

The bill requires DMH to notify state’s attorneys and crime victims before a person is released in the community. This provision is of particular importance to Sen. Dick Sears, D-Bennington.

After hearing from health care providers, a provision that would have established a three-year initial commitment period for a person adjudicated not guilty by reason of insanity for a homicide or attempted homicide was removed from the bill.

Panel continues discussion on Older Vermonters Act

The House Human Services Committee continued to take testimony on Wednesday on H.611, a bill that establishes an Older Vermonter Act that describes a system of services, supports, and protections for Vermont residents 60 years of age or older. The bill also establishes annual inflationary increases to Medicaid reimbursement rates for home- and community-based services in the Choices for Care program.

Department of Vermont Health Access Director of Payment Reform Alicia Cooper highlighted DVHA’s reimbursement goals to be a reliable and predictable payer partner, to continually professionalize Medicaid reimbursement methodologies, to efficiently allocate resources to ensure access to cost-effective care for Medicaid members, and to identify opportunities to pay for value and enable delivery system transformation. Cooper detailed the rates that are being reviewed under this process. Moving forward they will include the rates for skilled home health and hospice services. She confirmed that the Choices for Care program is managed by the Department of Disabilities, Aging and Independent Living; the DVHA reimbursement goals and rate review process are not applied to Choices for Care services. Finally, she reminded the committee that any methodologies that contemplate annual rate increases would also require annual budgetary appropriations.

VNAs of Vermont Executive Director Jill Mazza Olson supports the bill and the inclusion of the annual inflation increase. Olson explained that the increase in the Governor’s FY 2021 budget does not include the long term care services provided under the Choices for Care program and reinforced the distinction between long-term care services and skilled home health and hospice services, all of which are provided by home health agencies.

Olson asked the committee consider two specific changes to the bill. She would like to codify that the planning duties of the area agencies on aging under the Older Vermonters Act be in consultation with local home and community-based providers. The language makes explicit that this is a community-wide planning effort, under the leadership of the AAAs. Olson also requested the elimination of current law (33 V.S.A § 6303(b)) which requires home health agencies to develop a local community services plan. Olson said the provision is now redundant with other state and federal regulatory and planning processes in which the home health agencies participate including the Health Resource Allocation Plan led by the Green Mountain Care Board, IRS-required community needs assessments led by hospitals, and the planning duties of the AAAs envisioned under this bill and required under the Older Americans Act.

On Thursday, the Scan Foundation presented recommendations for a Vermont Master Plan on Aging to a joint hearing of the Senate Health and Welfare and House Human Services committees. The report concluded that “Vermont has developed multiple strategy and framing documents with key ingredients that could be woven into a Master Plan on Aging…(Vermont should) craft a highly visible, public facing platform that incorporates and communicates vision, goals, strategies and outcomes to support aging well in Vermont.” Rep. Topper McFaun, R-Barre, suggested setting up a Master Plan infrastructure in H.611. Sen. Ginny Lyons, D-Chittenden, agreed that the bill is a good vehicle to for some of the report’s recommendations, and said that she looks forward to receiving the bill from the House.

Committee discusses Woodside closing

The House Human Services Committee continued to take testimony on the pending decision to close Woodside, the state facility that currently houses youth in the juvenile justice system. Brattleboro Retreat President Louis Josephson, told the committee that the Brattleboro Retreat does provide medically necessary mental health services for justice involved youth, but the youths involvement in the justice system is not the factor that brings them to the Retreat. If a youth’s mental illness symptoms have been resolved after treatment at the Retreat, the youth cannot be kept at the facility, even if there are continued concerning behaviors. Josephson told the committee that he is in favor of a facility for youths that are justice involved that is not a hospital setting.

The committee will continue to take testimony on the Woodside issue this week in preparation for making a recommendation on the closing of the facility for their budget letter to the House Appropriations Committee. Several members of the committee expressed doubt that a Woodside alternative would be ready to serve youths by the proposed July 1 closing date.

Suicide Prevention Day at the State House

In honor of Suicide Prevention Day, the House Health Care Committee spent Thursday hearing from the Department of Mental Health, OneCare Vermont, provider groups and families on suicide preventions efforts in the state. Chair Bill Lippert, D-Hinesburg, said the committee has been asked to prioritize funding and his committee needs to understand how state agencies and OneCare Vermont are working in tandem to advance the all payer model goal to reduce deaths by suicide and not duplicating efforts. He said that are many priorities with insufficient funding and lawmakers will need to make some very tough decisions.

Department of Mental Health Commissioner Sarah Squirrell said Vermont continues to grapple with the impact of suicide. Vermont’s suicide death rates are higher than US rates and is the second leading cause of death in Vermont for ages 15-34. To address this, Gov. Phil Scott’s budget proposal invests $1 million more in suicide prevention and mental health services to include the Prevention Lifeline network, the Zero Suicides initiative, and services for veterans and elders. Squirrell said the Department has implemented a number of strategies to improve care for those identified with needing help with suicidal thoughts and other related problems and referenced the Umatter program that focuses on empowering teens to shatter stigma surrounding mental health challenges and suicide. The state has also implemented a crisis text line.

OneCare Vermont Chief Operating Officer Sara Barry addressed how they are attempting to integrate and align physical and mental health. She described the delivery system reform investment proposal for emergency department navigators that will attempt to reduce the use of the emergency department for urgent mental health needs. Barry also highlighted other projects such as the “Sheds model” to reduce social isolation and build resiliency in older Vermonters and the Psychiatric Urgent Care for Kids, a home-like environment stocked with kid-friendly activities and sensory tools. Funded by OneCare, this is a partnership between United Counseling Service and Southern Vermont Medical Center and has shown a 40 percent reduction in emergency department utilization for elementary aged children in Bennington County.

Department of Disabilities, Aging and Independent Living Substance Use and Aging Coordinator Charles Gurney told the committee that suicide prevention for older adults is critical because one in every five deaths by suicides in Vermont is an older Vermonter. He said that older adults are ten times more likely to die by suicide because they tend to be more determined. Older men are six times more likely than older women to die by suicide, and that men are more likely to use firearms. He did note that improving social circumstance and reducing isolation is key for the older population.

Sustained home visiting services funding subject to hearing

The House Human Services Committee took testimony on Thursday on H.778, a bill that would expand access to sustained home visiting under the existing Strong Families Vermont program.  The committee wrestled with questions about the different funding sources from the state’s Children Integrated Services program and federal funding known as Maternal, Infant and Early Childhood Home Visiting Program, as well as the different programmatic services of sustained home visiting versus responsive home visiting. 

Chloe Learey, Executive Director of Winston Prouty Center for Child and Family Development in Brattleboro, testified in favor of using any available dollars to improve CIS funding before adding more resources to the sustained home visiting model. She also described the services offered by her agency under the CIS model.

Jill Mazza Olson and Magdalene Miller testified on behalf of the VNAs of Vermont. They described the sustained home model known as Maternal Early Childhood Sustained Home Visiting Program, funded under federal Maternal, Infant and Early Childhood Home Visiting Program dollars. Olson supports passage of the language in the bill which would create the policy foundation for expansion of sustained home visiting under Medicaid, with a federal match. She urged the committee to create the policy foundation for the service, even if no dollars are appropriated. She declined to weigh in on whether it was better to fund CIS or sustained home visiting.

Heather Wilson, Early Childhood Support Team Leader at the Parent Child Center at Northwestern Counseling and Support Services, talked about a collaboration in St. Albans to create universal home visiting in their community. She described the collaboration between the home health agency and the parent child center on mental health support for postpartum mothers. Wilson also took the opportunity to express support for another bill that would create a funding formula for parent-child centers and increase their master grant by $4 million over three years.

Should Vermont join the interstate Nurse Licensure Compact to address nursing shortages?

The Senate Health and Welfare Committee heard testimony on S.125 on Wednesday from Legislative Counsel BetsyAnn Wrask. Sen. Ginny Lyons, D-Chittenden, asked the cost to join the compact and how to withdraw. Wrask stated that Vermont would enter the compact via legislation and withdraw from the repeal of that legislation. Office of Professional Regulation Lauren Hibbert said the annual fee is $6000 Hibbert added that the compact was not the solution to the nursing workforce issue but one tool in the toolbox. Sen. Debbie Ingram, D-Chittenden, asked if the cost of individual licenses would increase and Hibbert said not this year, but may need to at some point.

Deb Snell, President of both VFNHP and AFT Vermont raised concerns her members have on the compact. She noted research from other states show this compact is not effective and that there are still nursing shortages in the states that are participating. Snell is concerned this would result in two licensing systems: in-state nurses and out-of-state nurses with a compact license. Sen. Richard Westman, R-Lamoille, said he did not know whether the compact was the right solution, but that he is concerned that the state needs 7400 nurses and that one in five of current nurses are traveling nurses. “We can do all we want for graduation reimbursement, but I only see that as piece, a small piece,” said Westman.

Meredith Roberts, RN, PhD, the Executive Director of the American Nurses Association Vermont Chapter testified in support of the compact saying in spite of the risks it will attract nurses to Vermont. She highlighted the issue of nurses only being able to hold one compact license at a time and that it could get complicated when nurses move to states that are not part of the Compact, as well as discrete state laws and regulations that apply to that nurse.

Lyons said that the committee will schedule mark up and vote time on S.125 next week.

Insulin proposal has insurer support

The Senate Finance Committee continued deliberating a proposed amendment that Chief Health Care Advocate Mike Fisher offered last week to S.296, a bill that proposes to limit the amount of a beneficiary’s out-of-pocket expenses for prescription insulin drugs under a health insurance plan. Fisher’s proposal would require 340B eligible health care entities to sell insulin to their patients at 150 percent of the 340B reference price, plus a reasonable dispensing fee. Although Fisher said that it would not have a “material impact” on hospitals, the retail price cap would cut into needed 340B revenue for potentially financially fragile hospitals.

Department of Vermont Health Access Director of Pharmacy Nancy Hogue confirmed that the proposal could be implemented, but the qualifications of the Medicaid 340B drug plan would have to be met. Patients could only purchase the insulin at the reduced price if they have an established relationship with a provider that is associated with 340B qualified entity.

Brian Murphy, the Director of Pharmacy and Vendor Management for Blue Cross and Blue Shield of Vermont, testified that Blue Cross Shield supports Fisher’s proposal. He proposed a five year sunset to the program due to the upcoming introduction of biosimilar products to the market that will drive insulin prices down. Prior to the expected competition, Murphy predicts that the current insulin manufacturers will continue to increase prices to capture revenue.

Murphy also has concerns with the current law on prescription drug transparency. He said the formula for creating the list of drugs for review by the Attorney General is flawed. He prefers a process where the AG identifies concerns for follow up with the manufacturers. He highlighted the similar percentage increases in the prices of two specialty drugs as an indication of an area where the AG should investigate further.

Vermont Association of Hospitals and Health Systems Vice President of Government Relations Devon Green told the committee that VAHHS supports reducing the cost of insulin for consumers, but is opposed to using 340B revenue that hospitals rely upon to fund financial assistance programs and pay for uncompensated care. For some of the hospitals in Vermont, the revenue from the program is their operating margin. Green told the committee that this may appear to be a small reduction in the 340B revenue, but “it feels like a slippery slope.”

The Senate Finance and House Health Care committees will continue to explore the issue.

Senate committee approves ban on flavored tobacco products

The Senate Health and Welfare Committee voted 5-0 on Friday morning in favor of S.288, a bill to ban all flavored tobacco products. The unanimous vote came as a surprise, as several members had expressed doubts about the bill in the face of a strong lobbying effort by the tobacco industry. The bill bans flavored vaping products as well as menthol cigarettes. The tobacco industry has argued that the bill would unfairly ban an adult product, despite the fact that cigarettes would, of course, continue to be legally available for adults.

The Economic Development, Housing and General Affairs Committee also took testimony on the bill this week. Jennifer Costa, American Cancer Society Vermont Government Relations Director, testified about the tremendous growth in youth usage of flavored tobacco products. Costa’s presentation is here. More than one-half of youth smokers use menthol cigarettes, which would be banned under the bill. The number is vastly higher for African American smokers.

The bill will be reviewed by several other Senate committees before going to the floor. 

Telehealth workgroup proposal reviewed

On Friday, the House Health Care Committee reviewed a new draft of H.723, a bill that requires health insurance reimbursement for expanded telehealth services. The proposal offered by the telehealth workgroup (made up of members of the committee), would require a health insurance plan to reimburse for a category of telehealth services, store-and-forward, which is commonly used for provider-to-provider consultations, also known as eConsults.

The committee will take more testimony this week.    

Committee considers amending licensing standards for professionals in the state

Director of the Office of Professional Regulation Lauren Hibbert and Legislative Counsel BetsyAnn Wrask testified to the Senate Committee on Government Operations on the substantive changes made to the OPR bill. Hibbert said when disciplinary charges are pending concurrently against a single individual or entity, in one profession or multiple, the Office is authorized to order that the matters be consolidated in a single proceeding. Unless a disciplinary order expressly provides to the contrary, discipline against any license or credential to an individual or entity will now apply to all licenses issued to the entity.

The standards for nursing education programs and clinical facilities will be waivable, allowing Vermont to conform with the forty-four states that provide this option. Hibbert stated that nurse educator programs are competing for a very small number of qualified people and the waiver process will allow someone who has tried all the feasible work arounds to acquire a license. Pharmacists will also be able to prescribe in limited circumstances. Hibbert noted that if there is a collaborative agreement between the physician and pharmacist, the pharmacist would only prescribe within the scope that the health provider sets out.

Hibbert noted that OPR has continually been asked scope of practice questions and that is why this section was added. If anyone wanted to amend a scope of practice for a profession they will have to provide the office a preliminary assessment, ensuring the request is backed by evidence. Anyone impacted by the change in scope would have the opportunity to comment. Hibbert said that Vermont is not the only state to have done this. Both Wrask and Hibbert said this is an area of the bill the committee should anticipate future testimony on.

Department of Mental Health expanding programs and services for Vermonters

The House Health Care Committee heard testimony from the Department of Mental Health Commissioner Sarah Squirrell and Director of the Children and Families Unit Laurel Omland on state needs related to mental health. Omland testified on the pilot program proposed for Rutland, the Mobile Response and Stabilization Services. She said DMH does not want this to be a service only available to Medicaid, but that DMH needs to determine whether this is an effective service before expanding to private payers. If funding is approved, DMH would hope to start services by Oct. 1.

Squirrell provided testimony on the Analysis of Need: Residential Mental Health Beds Report. Concerning expanding the physically secure sites, Squirrell noted that the DMH’s preferred  option is to rebuild a therapeutic site at Woodside, in part because it is zoned accordingly and likely will not incur community resistance. A map detailed the number of adult residential beds, Community Rehabilitation and Treatments individuals, and group homes per county. Per the committee’s request, the overall population per county will be added to this map to help the committee better understand how these resources overlay the general population.

Squirrell noted the decline in admissions to intensive recovery residences, but not the number of people in IRRs, indicating people do not have another place to go. Rep. Anne Donahue, R-Northfield, said, “We are putting a lot of money in the high level of care, but if we are able to put money in the lower levels of care it begs the question if we will really need that high level care.” Chair Rep. Bill Lippert, D-Hinesburg, questioned how the Brattleboro Retreat Level 1 beds (highest level of acuity patients) could be “flexible.” Squirrell replied that the DMH has had conversations with the Retreat about what they see for the future of those beds. The conversation ended with a comment from Donahue, “If the Vermont hospital comes online, then the Retreat’s future may look very different.”

Streamlining procedures for Vital Records

The House Committee on Government Operations heard testimony on the Vital Records committee bill. The bill proposes to authorize state agencies to request certified copies of birth and death certificates from State Registrar once it is determined the agency has a bona fide need for a certified copy.

State Archivist and Chief Records Officer Tanya Marshall said that it is very difficult to verify vital records. She said records are out there for people to find so it would be better to consider them a non-certified copy. Barre City Clerk and Treasurer Carol Dawes expressed concern of fraud with the older documents that are missing certified copy aspects. Rep. Sarah Copeland Hanzas, D-Bradford, asked if she was seeking a death certificate for her great aunt, how would they currently verify she was related to her. Dawes stated they would have her sign a document that identifies what the relationship is and verify that it is true—using the honor system.

Marshall said there is a provision of law that requires town clerks to dispose of an original document that was amended and recommended against that practice. Dawes agreed and also expressed frustrations on the current protocol for submitting corrections. She was told corrections should only come from the birth town copy, but noticed that sometimes the resident town copy is more intact and should be able to be used.

The committee will continue to take testimony on the bill.

Administration of stem cell products subject to hearing

The Senate Health and Welfare took testimony on Friday on S.252, a bill that proposes to require health care providers who administer stem cell products that are not approved by the U.S. Food and Drug Administration to provide notice of this fact to their patients and in their advertisements, and to obtain specific informed consent prior to performing an unapproved therapy.

University of Vermont Medical Center Professor of Medicine and Researcher Dr. Daniel Weiss described the different stem cells, the current FDA-approved use of stem cells, and the unproven and unauthorized use of stem cells. Weiss said the worldwide proliferation of “stem cell” clinics are putting patients at risk with these unproven, untested and potentially dangerous stem cell treatments. It is estimated that 60,000 patients are treated every year with unproven stem cell therapies. Between $300 million and $2.4 billion is spent every year on such treatments.

Over the past few years, a growing number of stem cell clinics have opened, which offer treatments that are not yet scientifically proven or reliable and that have not been rigorously studied in clinical trials. The clinics do this by utilizing loopholes in current FDA regulations, something the FDA is actively working to prohibit. These clinics unfortunately take advantage of these situations and charge very high prices; stem cell treatments can cost upwards of thousands of dollars out of pocket since the treatment is not typically covered by health insurance. Further, these clinics offer misleading information about potential efficacy that is confusing to patients and to caregivers.

Weiss said the FDA and the US Department of Justice has stepped up its game to target these clinics from marketing stem cell products without FDA approval and for significant deviations from current good manufacturing practice requirements.

The committee will take more testimony next week.

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.

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