Vermont Health Care Update | Week 18

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Downs Rachlin Martin PLLCHouse committees consider Interstate Nurse Licensure Compact  

The House Health Care and Government Operations Committees held separate hearings on Tuesday on S.125, a bill that allows Vermont to join the Interstate Nurse Licensure Compact.

Office of Professional Regulation Director Lauren Hibbert said the bill 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. Thirty four states are signatories to the Compact and several other states are actively pursuing it. She said 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, reduces red-tape when nurses change employers along state lines, enables the continuation of care to patients across state lines, and resolves telehealth concerns. OPR, the Board of Nursing, and several health care organizations are supportive of the bill as a means to address the nursing shortage.

Vermont Health Care Association and Rural Health Task Force member Laura Pelosi told the committees that the health care workforce shortage was identified as one of the single biggest threats to the sustainability of our rural health care system. Pelosi said data collected as part of the Rural Health Services Task Force report shows that by the Spring of 2020 the state would need 3900 nursing-related positions. That survey was incomplete at the time so the task force surveyed providers who did not participate and the Task Force believes that today, under normal operating circumstances (not pandemic), conservatively the state needs approximately 5000. Pelosi said passage and adoption of the Interstate Nurse Licensure Compact was a key priority area for the Task Force. Many states are adopting the Compact and Vermont will be an outlier if it doesn’t join and will less attractive for newer graduates.

Vermont Federation of Nurses and Health Professionals President Deb Snell was the lone dissenter of the bill and expressed concerns saying the Compact imposes regulatory standards and mechanisms each Compact state must abide by and limits our ability over the regulation of the nursing profession will. It will also result in additional costs due to the creation of the commission and an increase in licensing fees for nurses.

The Senate Health and Welfare Committee passed the bill in early March. Impacting the revenues of the state, the bill was then referred to the Senate Finance Committee. The Senate Finance Committee took testimony on the bill Thursday and will likely schedule a vote for early next week. The House Health Care Committee will have possession of the bill once passed by the full Senate and plans to move forward with the bill. The House Government Operations Committee will also provide its recommendations to the House Health Care Committee.

Panel considers modernizing physician assistants law

The House Health Care Committee took testimony on S.128, a bill that modernizes 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. The proposed changes would bring the law into alignment with current practice, and would not change the scope of practice of PA’s.

Physician Assistant Academy of Vermont President Christine O’Neill said the bill removes barriers to PA practice in Vermont in several ways. It removes physician liability for PA practice making each member of physician-PA teams responsible for their own practice and clinical decision making. It reduces administrative burden and streamlines the licensure process by proposing that the relationship between physicians and PA’s be changed from supervisory to collaborative, reflecting the removal of physician legal liability for PA practice. It allows PA’s to be named primary care provider of record, increasing access to primary care services and reducing potentially duplicative services. Finally, the bill allows PA’s to receive direct reimbursement for their services under Medicaid and private health insurance plans.

Vermont Medical Society Executive Director Jessa Barnard spoke in support of the bill and said that the practice of medicine for physicians and PA’s has changed greatly in the past few decades and this change has had impacts on the relationships between physicians and PAs. Physicians are likely no longer responsible for day-to-day oversight of PA’s. This reality has made physicians more wary to take on the legal liability that currently attaches to the PA supervision requirement and also means that the currently regulatory structure for PA’s in Vermont does not reflect the changes in PA practice over time.

Physician Assistant Academy of Vermont President-elect Sarah Bushweller said the bill remove barriers to PA employment and practice in Vermont and is more reflective of how PAs actually practice. She said collaboration works well for the patients as then they get to know two providers in the office and we can provide a type of team-based collaborative care. Bushweller provided the committee with a chart highlighting the differences between current state law and the bill as passed by the Senate.

The committee will take more testimony on the bill in the coming weeks.

Commerce committee skeptical of incentive pay bill  

The House Commerce and Economic Development Committee met Tuesday to discuss S.346, a bill that  establishes an optional essential employees hazard grant program. Legislative Counsel Damien Leonard said the latest Coronavirus Relief Fund Guidance indicates using the CRF to fund the grant program is likely permissible, but not explicitly so. The Joint Fiscal Office does believe that it is a permissible use. The federal guidance states that money from the CRF can be used to cover payroll expenses for public health and similar employees—but not all the employees outlined in S.346. The guidance does not explicitly allow for grants to private sector workers. Leonard’s concern is that S.346 is providing grants and not necessarily payroll support. Another concern is that the guidance states “workforce bonuses other than hazard pay or overtime” are not eligible uses of CRF. Both Rep. Bob Bancroft, R-Westford, and Rep. Mike Marcotte, R-Coventry, expressed concern that this grant may look more like a bonus because it applies retroactively and is not used to incentivize employees to stay on the frontline.

Leonard said when Treasury was asked about this program, the employee contact said some assessment of the level of risk incurred by the employee would be advisable. The Treasury said there is a difference between an emergency medical technician and a frontline retail employee. Leonard provided the Breakdown of Risk of Occupational Exposure to COVID-19 under VOSHA-OSHA. Leonard said the bill needs to address at least the medium risk group and above because the medium risk includes the retail workers and some home care providers. However, he warned that to set up a system that would determine the level of risk for each employee could result in a backlog similar to what the unemployment system faced.

The $60 million appropriated to the program includes the administrative costs as well. The projected uptake for both months of the program is $30 million. But Leonard said that if more is used in the first month, then the reward for the second month will be reduced so that everyone eligible receives something. Rep. Jean O’Sullivan, D-Burlington, was concerned that is not what people will be expecting.

The committee may wait for input from Vermont’s federal delegation before moving forward.

Committee considers creating a strategic state health plan

The Senate Health and Welfare committee held a joint meeting with the House Human Services committee on Tuesday to review their proposal to require the Secretary of administration to establish a task force for the purpose of creating a strategic state plan to address any future statewide health care emergencies. The Senate committee reviewed the proposal at length last week, and legislative counsel conducted an abbreviated review with the House committee on Tuesday afternoon. Senate Health and Welfare committee chair Sen. Ginny Lyons, D-Chittenden, requested the drafting of the proposal over concern that the current emergency state plan has “health care low on the list.” House Human Service committee members were receptive to the idea but questioned the timing of the proposal and suggested that committee work should be focused on child care issues right now. Lyons said that “it’s important for us to look at it while we’re in the middle of it – but it may be something that gets put off until the fall” and would like to continue building testimony on the issue.

Committee advances capital bill

The House Corrections and Institutions Committee advanced the Capital Bill on Thursday. The bill includes the $1.5 million to finish the construction of the new 12 Level I beds at the Brattleboro Retreat to serve the most high acuity mental health patients. It also includes language for the Brattleboro Retreat to provide detailed financial reporting to the Agency of Human Services.

The bill also extends to June 2021 the requirement for the Department of Disabilities, Aging and Independent Living to amend their rules pertaining to therapeutic community residences to allow secure residential recovery facilities to utilize emergency involuntary procedures. These rules will be identical to the rules adopted by the Department of Mental Health that govern the use of emergency involuntary procedures in psychiatric inpatient units.

Senate advances climate change response plan

The Senate advanced S.185 on Thursday, a bill that adopts a climate change response plan and requires regional planning commission involvement in identifying health care-related needs. It directs the Vermont Department of Health to develop a climate change response plan for the state and to develop a communication plan that establishes responses to climate change related health risks with the regional planning commissions. It directs regional planning commissions to identify health care related needs in each region. Finally, the bill requires hospitals, in consultation with regional planning commissions, to have a protocol for meaningful public participation in its strategic planning process for identifying and addressing health care needs that the hospital provides or could provide in its service area.

House passes supplemental budget adjustment

The House approved on Friday H.953, the 2020 supplemental budget adjustment (BAA2). The bill reflects three major impacts from the COVID-19 crisis: an erosion of $52 million in projected revenue; $143 million in deferred tax collection pushed out to July; and appropriations from the Federal Coronavirus Relief Fund for expenses incurred in FY 2020. In order to balance the lost revenue, the BAA2 uses $38 million in Federal enhanced Federal Medical Assistance Percentages funds (the percentage rates used to determine the matching funds rate allocated annually to certain medical and social service programs), $8.7 million in Medicaid claims savings, and additional state savings and bond investment earnings.

Proposal would push up store-and-forward implementation

The Senate and House Health Care committees met jointly on Thursday to review a draft bill that proposes to move up the effective date for health insurance reimbursement for health care services delivered by store-and-forward means. Store-and-forward is an asynchronous transmission of medical information by a health care provider at a different site by another provider without the patient present. Additionally, the bill directs the Department of Financial Regulation 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.

Confusion dominated the beginning of the meeting as legislators grappled with understanding current store-and-forward coverage requirements for Medicaid and private insurers. Department of Vermont Health Access Health Care Director Nissa James asked that the proposal that pushed up the effective date for health insurance reimbursement for store-and-forward delivered health care services not apply to Medicaid. Act 91of 2020 set the effective date of the policy expansion as Jan. 1, 2021, and the proposal before the committee pushes it up to May 1, 2020. James said that DVHA required time to bring the policy change before to the Medicaid and Exchange Advisory Committee, the Clinical Utilization Review Board and to coordinate with OneCare Vermont.  

Rep. Bill Lippert, D-Hinesburg, responded that he thought that DVHA was implementing the DFR rules authorized by Act 91 that required broad coverage of store-and-forward effective May 1. James replied that the DFR rule applied only to commercial insurers, but DVHA was following current law allowing for store-and-forward reimbursement for teledermatology and teleophthalmology consults. DVHA has also turned on additional triage codes that allows for patient initiated store-and-forward reimbursement.

Lippert was joined by other House Health Care committee members in voicing frustration that Medicaid was unable to execute the quick policy change that the private insurers were able to implement to provide expanded store-and-forward coverage by May 1. When pushed, James said that DVHA may be able to comply with a date earlier than Jan. 1, 2021.

James also told the legislators that DVHA is looking at shifting payments from fee-for-service to value based payments as Medicaid expands e-consults to other specialties. DVHA will “coordinate” with OneCare Vermont but the department is investigating contracting with a firm in Connecticut that would provide a value based option for broad coverage of store-and-forward.

The second part of the proposal directs 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. Responding to the proposed workgroup, James said that any recommendations submitted by DVHA would be “as permitted by federal policy.” Currently, any audio-only Medicaid coverage is tied to the duration of the state of emergency, and likely to end at the end of the state of emergency. James said that consumer choice will need to be examined as well as different considerations for standard care within and without a state of emergency.

Panel examines child care center re-opening plans

The House Human Services Committee met on Thursday to discuss the reopening of childcare centers. The committee heard from the Department of Children and Family Services Child Development Division Deputy Commissioner Steven Berbeco and Policy Director Melissa Riegel-Garrett on the restart grant. They said Restart grant guidelines and information will be released Friday and that providers will be expected to submit an intent to access by the following May 22. $6 million in grants will be allocated to child care and summer program providers, in part, based on the number of children expected to be served. Once they know the total number of children served, DCF will calculate the “per child” amount. Berbeco said the restart money is designed for flexibility and can be used for payroll, supplies, and other needs. A program is not obligated to open precisely on June 1. Vermont Department of Health Maternal and Child Health Deputy Director Ilisa Stalberg said the department issued a thirteen-page health guidance for child care, after school, and summer camp providers on Wednesday.

Vermont has had no known cases of infection in a child care setting and no child under the age of nine in the state has had the disease. CDD is in frequent talks with the state emergency operations center to figure out supply issues for face masks, gloves, thermometers, cleaning supplies and other necessities that may be difficult for individual businesses to obtain, although it is not known if the state will provide funds to cover the cost of those goods.

Green Mountain Care Board

The Green Mountain Care Board met on Wednesday and received presentations on national trends in state affordability, the 2020 hospital budget guidance, and a discussion on the establishments of a prescription drug technical advisory group.

National Trends in State Affordability: Bailit Health President Michael Bailit presented current national trends on health care affordability and sustainability, the mechanisms other states are using to achieve affordability and sustainability, and the potential considerations for Vermont. Bailit said politically health care costs have been a big deal for governor’s across the country with 42 state governors addressing health care and prescription drug costs in the their State of the State addresses in 2020. He said health care provider financial sustainability and the ability to remain financially solvent has been a concern for rural hospitals in Vermont. Financial sustainability concerns intensified and spread rapidly with COVID-19, as dramatic drops in service utilization created an immediate financial crisis for health care providers, especially those with little funds reserve. Among many other things, COVID-19 has laid bare another deleterious effect of fee-for-service payment. By linking payment to service delivery places health care providers are in the same position as restaurants, movie theaters and bowling alleys. While we tolerate the prospect of those businesses going under during an economic downturn, most don’t want the same to befall physicians, therapists, hospitals and nursing facilities.

Bailit described several payment-based models being utilized in other states designed to improve quality and reduce costs. Models include growth caps, global budgets, prospective payment, rate setting, cost growth targets, and public options. Bailit said hospital global budgets are attractive from a sustainability perspective, especially if they involve prospective payments because they untether volume and payment in the short term. He said OneCare Vermont has utilized prospective payments with hospitals and with some primary care practices. OneCare currently pays each hospital a fixed prospective monthly amount per attributed life associated with historical hospital and hospital-based physician spending for residents in the hospital’s service area. Bailit suggested that Vermont pursue a “data use strategy” for deeper analyses into costs, cost growth drivers, and cost variation; and to develop measures of cost accountability at the provider level (below the total cost of care) to look at price and utilization variation across specialists. He said some states have pursued additional strategies to advance affordability and sustainability objectives, including market stabilization and prescription drug policies, which Vermont has already addressed.

Draft Hospital Budget Guidance: The budget staff for the GMCB presented its recommendations for a streamlined and simplified budget review process for hospitals FY2021. Director of Health Systems Finances Patrick Rooney said staff took into consideration the current situation for hospitals and through a collaborative and thoughtful process developed an abbreviated budget guide. Hospitals will now be required to submit an abbreviated budget by July 31. Non-financial reporting has been eliminated and questions will be limited to those of a technical or clarifying nature. The board will continue to consider information related to change in charge requests, the net patient revenue growth target, and the enforcement policy. The board will also require hospitals to provide details on the impact of COVID-19 as it relates to staffing, liabilities and stimulus and grant funding. Hospitals will also have to report on its participation in OneCare Vermont and what payer programs, the projected dues, and the value of the risk liability by payer.

Public comment will be open until May 19.

Prescription Drug Technical Advisory Group: GMCB Health Policy Analyst Christina McLaughlin and Vermont Retail Druggist President Jeff Hochberg presented language that was under consideration by the House Health Care Committee pre-COVID that would establish a Prescription Drug Technical Advisory Group. McLaughlin said the Board has the authority to establish additional advisory groups as needed to carry out its duties under current law. The proposal presented to the House Health Care Committee in March was to establish an advisory group that would provide input and recommendations to the General Assembly by Jan. 15, 2022 on the following:

  • Models that enhance the Board’s ability to analyze, monitor, or report the pricing of prescription drug products or the relationship between prescription drug pricing and consumer prescription drug costs;
  • The effectiveness of prescription drug initiatives on prescription drug costs; or
  • Other mechanisms for increasing prescription drug price transparency at one or more levels of the prescription drug supply chain.

Hochberg said Vermont needs to position itself to best obtain and evaluate accurate pharmacy data in order to effectively administer rates regarding or related to prescription drugs and Vermonters’ access to them. He said the state needs to first have a full understanding of the mechanics and economics behind pharmaceutical distribution. Hochberg said the impact of COVID has been felt by pharmacies. At the end of March pharmacies across the country saw a huge uptick in volume – large amounts of prescriptions going out the door and supplies being quickly depleted in central warehouses across the country. Hochberg predicts shortages will continue.

GMCB Chair Kevin Mullin expressed strong interest in moving forward with establishing an advisory group, but did not seek a vote of the board. He said the board currently has three vacancies and received additional budget guidance from the Scott administration that questions general fund dollars for the board. He does not want to put in the board in the position of promising too much and under delivering. He said prescription drugs, specifically specialty drugs, are a major component of the qualified health plan filings recently submitted by the commercial payers. He did not rule out moving forward sometime in the future.

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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