Vermont Health Care Update | Week 17

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Downs Rachlin Martin PLLCHouse passes advance directives legislation

The House passed H.950 on Friday, a bill that allows for the remote witnessing of advance directives during the COVID-19 pandemic. Any advance directives created between Feb. 15, 2020 and the effective date are deemed valid until June 30, 2021 unless it is amended, revoked, or suspended by the principal. The bill will be effective upon passage.

In order to execute an advance directive, current law requires the individual or principal to sign and date the advance directive in the presence of two or more witnesses. The Vermont Ethics Network and Vermont Legal Aid raised concerns that the new social distancing orders have made it unsafe to fulfill that witness requirement, especially for at-risk individuals. The committee amended a section of the bill on Friday. The legislation requires principals and the remote witness to know each other, the remote witness was informed about their role as a witness to the execution of the advance directive, and the advance directive must include the contact information for the remote witness. Finally, the witness must attest that the principal seemed to understand the nature of the document and was free from duress or undue influence at the time the advance directive was signed.

Senate creates transition challenges task force

The Senate President appointed a nine member Senate Transition Challenges Task Force and the group met twice this week to determine their scope of work. Committee chairs will be providing a list of priorities to the task force. The priorities will be divided into the following categories: economic development, health care, governance and education. Two members of the task force will be assigned to each category. Ashe has asked for the task force to submit recommendations in two weeks. The task force members said that they will be “feeding information” to the committees of jurisdiction, the Senate finance and appropriations committees. Senators agree that the group will be active over the next year. The Task Force will meet again on May 11.

Senate panel looks at emergency response planning

The Senate Health and Welfare committee began looking at legislative solutions to emergency response planning on Wednesday. Committee chair Sen. Ginny Lyons, D-Chittenden, asked legislative counsel Katie McLinn to draft a bill that requires departments and agencies involved in Vermont’s response to the COVID-19 pandemic to submit data to the Secretary of the Administration pertaining to their respective responses to the pandemic. The bill also requires the Secretary of the Administration to establish a task force for the purpose of creating a strategic State plan to address any future statewide health care emergencies that may arise.

Secretary of Administration Susanne Young directed the committee to the State Emergency Plan and said that once crisis recovery begins “there is an after emergency process built into the Emergency Operations construct, and built into the Emergency Plan called plan maintenance.” Young said that it appeared that the committee’s proposal was very compatible with the work that’s already going to happen. Lyons responded that she had looked at the State Plan and health related issues are “very low on the totem pole.” As noted by Abby Fuist, an University of Vermont student speaking to the committee about health impacts of climate change, state plans are set up for natural disaster response, rather than pandemic response.

The committee agreed that this issue does not need to be addressed immediately as the crisis is ongoing, but would like to take it up in the next six months.

Legislators review telehealth expansion

Joint meetings of the House and Senate health care committees took place this week to review how telehealth and telephone delivered health care services are being utilized during the COVID-19 crisis. Department of Vermont Health Access Health Care Director Nissa James reviewed the changes that Vermont’s Medicaid program has made to ensure access to care for patients and reimbursement for providers. DVHA has urged providers to use telehealth to access health care services where clinically appropriate and possible, and has turned on codes to allow for temporary coverage of audio only (telephonic) delivery of services.

The three major Vermont insurers – BlueCross BlueShield of Vermont, Cigna, and MVP Healthcare – all reported that they are in compliance with the Department of Financial Regulation’s emergency rule requiring reimbursement and no cost-sharing for telehealth and telephonic delivered health care services related to COVID-19 during the state of emergency. MVP Healthcare told the committee that they will likely continue telephone coverage but will need to evaluate what services are clinically appropriate to be delivered only through audio-only means. BCBSVT will retain some of their expanded telehealth services after the crises, but stressed that they want to balance access to care with clinical appropriateness. They are uncertain how long they will cover telephone triage calls, and don’t believe that telephone delivered services deliver the same quality of care as telemedicine or in person visits and therefore may not warrant the same level of reimbursement.

Helen Labun, Director of Vermont Public Policy for Bi-State Primary Care Association, said expanded telehealth use during the crisis has allowed providers to reduce barriers to care for patients. Telephone services are unique in telehealth because it can be provider initiated and allows providers to check in on patients with chronic conditions or are uniquely at risk during the crisis. Providers would prefer to use an interactive audio-visual platform, but support its use if  patients otherwise would forego care. Labun said that the telephonic service “provides a bridge to healthcare for people that might not otherwise have a bridge.”

Some home health services are lending themselves well to remote services, such as case management for Choices for Care, and much of the care is happening by telephone due to the lack of broadband in different areas. Jill Mazza Olson, Executive Director of VNA’s of Vermont, told the committee that many of the services that they are providing now are a blend of in-person and telehealth services. In person visits will initiate care, with subsequent visits done remotely. Olson said that there has been plenty of flexibility for coding and billing with Medicaid and commercial payers, but Medicare does not pay for remote visits – an issue that they are working on at the federal level.

The coalition of health care providers led by Olson submitted a letter in support of permanent telephonic service delivery and recommending the extension of many of the emergency provisions from Act 91 of 2020, regardless of state of emergency designation.

On Thursday, the committee briefly reviewed two pieces of legislation aimed a telehealth expansion. The first proposal moves up the date for health insurance reimbursement for health care services delivered by store-and-forward means. Act 91 of 2020 had set the effective date for reimbursement of store-and-forward as January 1, 2021. In response to the state of emergency, and under the authority of Act 91, the Department of Financial Regulation enacted emergency rules requiring the coverage of store-and-forward during the state of emergency. If the state of emergency ends before January 1, 2021, there would be a reimbursement requirement gap. The proposal would eliminate the gap by moving the legislative effective date back to May 1, 2020. A straw poll of legislators confirmed support for the proposal, pending confirmation that DVHA can meet the May 1 date. The proposal would also direct DFR to convene a working group to develop recommendations regarding health insurance and Medicaid coverage of health care services delivered by telephone after the COVID-19 state of emergency ends.

The second proposal that the committees is considering would require the Vermont Program for Quality in Health Care to consult with its Statewide Telehealth Workgroup, the Department of Public Service, and organizations representing health care providers and health care consumers to conduct a patient connectivity needs assessment in the context of telehealth implementation, and cost estimates for providing connectivity services, network equipment, and end-user devices to patients who currently lack them. VPQHC would also be given the tasks of identifying areas of the state that do not have access to broadband service that are also medically underserved or have high concentrations of high-risk or vulnerable patients, identifying federal funding sources that could be used to expand access to telehealth services, and helping providers access those funds. Committee members acknowledged that in the present crisis, provider and professional organizations may be best suited to provide funding guidance in an efficient manner to providers.

Panel begins work on budget adjustment

The House Committee on Appropriations met every day this week for budget discussions, focusing largely on the FY 2020 Supplemental Budget Adjustment Act (BAA2).

Department of Finance & Management Commissioner Adam Greshin proposed a plan to offset the general fund FY 2020 deficit of $194.50 million by using $56.07 million saved from various adjustments. The remainder of the deficit would be addressed with state reserves.

The administration has proposed using the deferred tax payments from FY 2020 that will be collected in July to replenish the reserves. Instead of using the reserves, State Treasurer Beth Pearce proposed to keep FY 2020 open and change Vermont’s accounting basis to allow the FY 2020 deferred revenue collected in July to be counted as FY 2020 revenue. The committee may include language in the BAA2 to allow for either option.

The committee learned the administration has spent around $179 million on COVID-19 needs that could be included in the BAA2. It is likely to move forward with most of the proposal.  

On Friday, the committee voted partially in favor of Greshin’s request for administration authority to transfer funds across state government to balance the budget. Under current law, transfers cannot exceed $50,000 and generally must be within the same agency, department, or unit. The committee voted to keep the administration’s transfer authority as is but increased the amount that can be transferred to $250,000. It hopes to wrap up BAA2 discussions next week. Greshin anticipates the FY 2021 first quarter budget should also be ready for review next week.

Joint Fiscal Committee receives update from Department of Labor on unemployment insurance

The Joint Fiscal Committee met on Monday and received an update from Department of Labor Interim Commissioner Michael Harrington on unemployment insurance and to approve two grants. Harrington reported that 59,000 eligible UI claims are in process and 52,000 claimants have been paid. Eleven thousand eligible applicants for the Pandemic Unemployment Assistance program have filed claims, and 8623 have been paid.  The department continues efforts to expand call center capacity and will have 200 call agents soon, with plans to expand to up to 400 agents if necessary. Rep. Bill Lippert, D-Hinesburg, asked if the form that legislators have been given to fill out to help constituents with UI issues is actually helpful for constituents, or if it just provides false hope and an additional layer of complexity. Harrington replied that it creates efficiency by creating one method of intake, rather than hundreds of e-mails going to various staff.  

The committee next approved amendments for their conditions of acceptance for the $1.25 billion from the federal Coronavirus Relief Fund and approved the administration’s request for the grant acceptance form. The amendments increased the administrations discretionary Level One fund from $60 million to $75 million and added language to clarify that spending allowed within the Level One category, which is subsequently reimbursed or covered by another funding source does not create more room in the total category cap. Although the committee expressed concern about the administration’s changes to the language in the grant acceptance form, the committee approved the grant after clarifying that the committees conditions of approval control if there is inconsistency between the grant form and the conditions of approval.  

The committee also approved a $150,000 grant from the National Association of State Mental Health Program Directors to the Vermont Department of Mental Health for  the of support individuals experiencing homelessness who have mental health needs by providing small stipends to encourage attendance to outpatient mental health appointments.

The Joint Fiscal Committee will next meet on Monday, May 11 at 9 am.

DCF presents supplemental budget adjustment request

The House Appropriations Committee met on Wednesday to hear testimony on the Department for Children and Families FY 2020 Supplemental Budget Adjustment Act and FY 2021 budget needs from DCF Commissioner Ken Schatz, DCF Economic Services Deputy Commissioner Sean Brown, and DCF Child Development Division Director of Operations Sarah Truckle. Schatz said that the $4.4 million in federal funds from Child Care Development Block Grant has been used to stabilize the system and pay for the essential worker childcare. Truckle said that DCF has been issuing about $2.2 to $2.3 million each week on the child care system for stabilization payments, essential care payments, and Child Care Financial Assistance Program subsidy payments. Schatz also said they have reserved 20 percent of the budget to allow child integrated service providers to requests funds from as needed to stabilize that system.

Brown said that DCF saw about a 10 percent uptick in the use of both 3SquaresVT and Reach Up programs. These programs offer assistance to low income individuals and families. For the month of April, around $11 million in 3SquaresVT funds and $14 million in Reach up benefits were distributed, along with another $14 million from the Pandemic Electronic Benefit Transfer program that provides assistance to all families in the free and reduced lunch program. However, Brown said that the delay in the unemployment benefits did impact the program because unemployment insurance benefits do count as income and often disqualify people from the program. Schatz said that regardless of what Gov. Phil Scott announced for the stay home order, DCF will be extending the general housing assistance rules to continue to serve those being housed in motels. DCF is working on a housing recovery plan. Rep. Kitty Toll, D-Danville, said that this will be addressed in one of the FY 2021 budget bills. Schatz plans to return to the committee later with funding requests for the recovery plan.

Additionally, Rep. Bob Helm, R-Fair Haven, heard that the $10,000 is not needed for the Boys’ and Girls’ State programs this year, but a request has been made to reserve it for next year. Rep. Peter Fagan, R-Rutland City, is recommending appropriating $5.1 million in Corona Relief Funds to the Vermont State College system and $5.5 million to the University of Vermont in the supplemental BAA to assist with room and board reimbursements.

EMS providers seek additional funding for training

The Senate Government Operations Committee heard testimony this week on emergency medical services funding from Rescue Inc. Chief of Operations and Emergency Medical Services Advisory Committee Chair Drew Hazelton, Vermont Department of Health Emergency Medical Services Chief Dan Batsie, and VDH Public Health Policy Advisor Shayla Livingston. Hazelton said the EMS fund has approximately a $200,000 balance and that the Advisory Committee decided to leverage that balance towards workforce development. Hazelton said typically around 400 EMS providers need to be replaced on a good year, but there have been additional losses due to COVID-19. He said that there are approximately 12 open paramedic positions statewide, but he said they could use more.

The committee is writing a letter to the appropriations committee to request $900,000to cover both EMT and paramedic training. Hazelton said that EMS districts have requests for proposals out for vendors with existing online education programs that could be used for EMT training. Sen. Jeanette White, D-Windham, plans to request an additional $3 million from the appropriations committee to be allocated to the EMS fund to cover costs and losses related to the COVID-19 crisis.

The committee would like save the following bills that were passed out of the committee but did not make it to the floor: S.233, S.220, and S.124, or what is left of S.124. White said that the committee will work on the technical changes of H.788, that she is waiting to hear if H.793 should be taken up, and that H.438 is a must pass bill.

House panel reviews professional regulations bills

The House Government Operations Committee met on Tuesday to hear introductions of three bills related to professional regulation. Committee Chair Sarah Copeland-Hanzas,D-Bradford, asked the committee to think about the bills in terms of if they will make it easier for Vermonters to go back to work. Each of the three bills has made their way through the Senate committees of jurisdiction, but have not been voted out of the full Senate. Office of Professional Regulation Director Lauren Hibbert summarized each of the bills.

S.125:  Allows Vermont to join the Interstate Nurse Licensure Compact. The compact will enable a licensed practical nurse or a registered nurse to obtain a compact license in a compact state, allowing them to practice without obtaining an additional license to practice in that other state. 34 states are signatories to the compact and several other states are actively pursuing it. Much of the bill is immutable compact contract language. Disciplinary actions or investigations by any one compact state become part of a searchable database.  Hibbert said with Vermont’s nursing workforce shortages, the compact would be an additional means of making it easier and more appealing for nurses to come to Vermont. OPR, the Board of Nursing, and several health care organizations are supportive of the bill as a means to address the nursing shortage.

S.233 is offers various reforms to all licensing entities in the state including OPR, the Agency of Education, the Department of Public Safety (plumbers and electricians) and the Board of Medical Practice. The bill attempts to apply uniform standards across the board. Foreign credential verification, endorsements from other states, military credential verification, and continuing education are some of the key approaches proposed in the bill. The bill is supported by OPR and the Scott administration. Hibbert said that OPR alone licenses about 75,000 professionals a year. Streamlining the criteria would make it easier for people to work in the state.

Hibbert described S.220 as “the OPR bill” that has become a bit of a  patchwork quilt. It contains OPR’s original technical changes and also adds green energy continuing education requirements for various professionals tied to land or property such as realtors, appraisers, and architects. It also proposes to license massage therapists. Hibbert said OPR already strongly felt that massage therapists should be regulated but after COVID-19 the need for government to be able to reach and communicate with them uniformly only makes that regulation more important. The bill also includes changes to pharmacy scope of practice, some of which were adopted with H.742, but will be repealed at the end of the Governor’s state of emergency if no action is taken.

While the committee did not expressly state whether they would or would not take each of these bills up, the chair commented that each of them would require a lot of testimony and time to accomplish remotely if they were to decide to do so.

Green Mountain Care Board

The Green Mountain Care Board met on Monday and unanimously voted to reject Northwestern Medical Center’s 2020 budget amendment request. NMC requested a 14.9 percent rate increase to the August approved 5.9 percent rate increase, resulting in a compounding rate change of 21.7 percent, effective May 1. Board members were sympathetic to the request, but could not support the request at this time. The rate increase would have been funded entirely by commercial health insurers and would have been passed on to Vermonters through increased insurance premiums.

Board member Maureen Usifer began the discussion by saying that NMC is projected to lose $10 million this year after suffering losses in past years, and a rate increase is not the solution. Usifer, along with other board members, said that the hospital needs to put together a sustainability plan that does not rely on rate increases. Board member Dr. Jessica Holmes pointed out that that increase reflects a zero percent rate increase to ambulatory care, which results in an annualized increase of over 25 percent for other hospital services. Holmes wanted more details on spending, saying that she wanted see that spending had decreased and that options for reducing expenses were thoroughly reviewed.

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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