Vermont Health Care Update | Week 22

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The Vermont legislature is expected to adjourn after approving about $750 million in federal Coronavirus Relief Fund spending. They have passed a budget covering the first quarter of the fiscal year (July-Sept.) and will return in mid-August to complete a full-year budget. It’s unclear how long they will stay and what the agenda will be beyond the budget.

Senate advances omnibus health care bill

The Senate passed H.960 on Friday, the miscellaneous health care bill. The wide ranging bill addresses several areas including mental health, hospital budget review, expansion of the VPharm prescription drug coverage for certain Medicare beneficiaries, and review and modification of prior authorization requirements. As part of an amendment from the Senate Health and Welfare Committee, the bill also extends important COVID-19 related provisions that were included in Act 91 of 2020. The House is expected to concur. Topic summaries are provided below.

Mental health integration council created

A provision in H.960, the miscellaneous health care bill, creates the Mental Health Integration Council for the purpose of ensuring that all sectors of the health care system actively participate in the state’s principle for mental health integration as envisioned in the Department of Mental Health’s 2020 report “Vision 2030: A 10-year plan for an Integrated and Holistic System of Care.” The council will address the integration of mental health in the health care system and will identify obstacles for full integration. The legislation requires the Council to submit a final report on Jan. 15, 2023, on its findings and any recommendations for legislative action, including a recommendation as to whether the term of the Council should be extended.

Legislature increases Brattleboro Retreat oversight

Provisions adopted in H.960 will require increased regulatory oversight for the Brattleboro Retreat. The legislation will require the Brattleboro Retreat to fall under the Green Mountain Care Board hospital budget review process gradually, requiring a full review by FY 2024. In developing the process for full review of the budget, the GMCB will collaborate with the Brattleboro Retreat and the Agency of Human Services to prevent duplication of efforts and reporting requirements. The GMCB and AHS will jointly determine which documents submitted by the Brattleboro Retreat are appropriate to share with the GMCB.

As a condition of further state funding, the bill requires quality oversight measures be implemented by the Brattleboro Retreat under the direction of the Department of Mental Health. It requires the Department of Mental Health and the Brattleboro Retreat to meet jointly each month with the mental health patient representative (an independent, peer-run organization contracted with DMH) and the mental health care ombudsman to review patient experiences of care, to discuss quality issues, and to review other patient care and safety topics.

Finally, as part of the Sustainability Report between AHS and the Brattleboro Retreat, they must submit an interim and final report to the Joint Fiscal Committee and the legislative health committees describing the steps that the Brattleboro Retreat is taking to improve communication and relations with its employees.

Review and reductions of prior authorization requirements

The miscellaneous health care bill, H.960, includes several provisions related to health insurance prior authorization requirements.

The bill:

  • Eliminates prior authorization requirements for those procedures and tests for which the requirement is no longer justified or for which requests are routinely approved. It also requires the health plans to attest to the Department of Financial Regulation and the Green Mountain Care Board annually on or before Sept. 15 that it has completed the review and appropriate elimination of prior authorizations;
  • Requires the Department of Financial Regulation, in consultation with health insurers and health care provider associations, to report on opportunities to increase the use of real-time decision support tools embedded in electronic health records to complete prior authorization requests for imaging and pharmacy services, including options that minimize cost for both health care providers and health insurers;
  • Compels the GMCB, in consultation with DVHA and stakeholders, to evaluate opportunities for and obstacles to aligning and reducing prior authorization requirements under the All-Payer Accountable Care Organization Model as an incentive to increase scale;
  • Requires major medical health insurers to implement a pilot program by January 2022 that automatically exempts from or streamlines certain prior authorization requirements for a subset of participating health care providers; and
  • Directs DVHA to report on clinical prior authorization requirements in the Vermont Medicaid program to include denial rates, the potential harm in the absence of a prior authorization requirement, and based on the information received to consider waiving prior authorizations and exempting prior authorization requests that are routinely granted.

Legislature extends Act 91 COVID-19 emergency measures

The miscellaneous health care bill, H.960, extends several provisions in Act 91 of 2020 beyond the State of Emergency to up to July 1 of 2021.

The bill:

  • Extends provisions to March 31, 2021 language that:
    • Grants employee protections for those individuals who are not licensed health care professionals from the risks associated with COVID-19, including protective equipment;
    • Allows the Secretary of Human Services to waive or permit variances from specified rules and standards governing providers of health care services;
    • Permits a pharmacist to, with the informed consent of the patient, substitute an available drug or insulin product for an unavailable one;
    • Allows a health care professional authorized to prescribe buprenorphine for treatment of substance use disorder to authorize renewal of a patient’s existing buprenorphine prescription without requiring an in-person visit;
    • Deems out-of- state licensed health care professionals licensed in Vermont;
    • Waives certain telehealth requirements during the state of emergency;
    • Allows AHS to reimburse Medicaid-funded long-term care facilities and other programs providing 24-hour per day services for their bed hold days;
    • Allows recently retired health care professionals to practice under certain requirements;
    • Allows the Director of Professional Regulation the power to act on behalf of a regulatory body attached to the Office of Professional if necessary;
    • Grants the Director of Professional Regulation and the Commissioner of Health power to give orders governing regulated professional activities and practices as may be necessary to protect the public health, safety, and welfare;
    • Waives telemedicine and store-and-forward requirements;
    • Gives OPR the power to issue a temporary license to an individual who is a graduate of an approved education program if the required licensing examination is not reasonably available; and
    • Allows the Board of Medical Practice or its Executive Director to issue a temporary license to an individual who is licensed to practice as a health care provider in another jurisdiction.
  • Extends to June 30, 2021 language that:
    • Permits early refills and extensions of prescription maintenance medications.
  • Extends to July 1, 2020 language that:
    • Permits Department of Financial Regulation emergency rules, rulemaking and extensions.

Legislature approves health and human services-related CRF proposal

At publication time, the Senate had approved and the House was poised to approve a $329 million Coronavirus Relief Fund health and human services appropriations bill. H.965 aims to cover necessary health care- and human services related expenses incurred due to, or as a result of, the COVID-19 pandemic. 

The Senate Health and Welfare Committee spent considerable time reviewing the House proposal. Members of the Senate Appropriations and Health and Welfare Committees deconstructed the House version of the bill, eliminating much of the prescriptive language, and some of the more “lofty rhetoric” deferring to the system that the Agency of Human Services already has in place. The committees believe that there needs to be flexibility built into the Healthcare Provider Stabilization Fund to be responsive to changing federal guidance and data from providers.

The Senate increased the Provider Stabilization Fund appropriation to $275 million, moving carve outs for community health investments and adult days into the fund for quicker deployment. They also amended the grant evaluation language and set up a prioritization methodology that requires consideration of the impact of the grant amount on the applicant's sustainability. A side-by-side of the two proposals can be found here.

Grant funding will support front line workers

The health and human services Coronavirus Relief Fund bill also incorporates an amended version of S.346, appropriating $31 million into the Front-Line Employees Hazard Pay Grant Program. The program will award grants to certain public safety, public health, health care, and human services employers whose employees were engaged in activities substantially dedicated to mitigating or responding to the COVID-19 public health emergency during the initial months of the pandemic.

The optional program grants employers fund to pay full time eligible employees a one-time payment of $2000 and eligible part-time employees $1200. The payments will not be considered for calculation of state benefits, but are subject to income tax.

Concern over employers opting not to participate due to a requirement to pay payroll taxes on the payments led the Senate Appropriations Committee to add language allowing the employer to deduct the cost of the tax from the payment to the employee.

There is additional language in the bill that expands the program to cover additional front line workers, including retail and grocery store workers, if appropriate funds become available. The current federal guidelines for the disbursement of CRF money prohibits those workers from inclusion in the program.

Workers Compensation bill addresses COVID-19

The legislature approved a bill on Friday, S.342, that creates a presumption of workers’ compensation coverage for front line workers who become infected with COVID-19. Front line workers include emergency medical personnel, workers in health care facilities and long term care facilities and home health care workers or personal care attendants. If a front line worker becomes infected with COVID-19, an employer can overcome the claim if they can show that it is more likely than not that the employee contracted the virus outside of the workplace.

For non-frontline workers, death or disability from COVID-19 is presumed to be compensable if the employee received a positive test not more than 14 days from when they were in close contact with an infected person in the workplace or if they have performed services where someone was diagnosed within 14 days of exposure. The employer can rebut the claim if they can show that they took appropriate steps to protect the employee by following safety guidelines.

The bill requires the Department of Financial Regulation to examine whether a “special fund” could be created to pay for these claims in an effort to lessen the burden on employers.

Representatives from insurers, businesses and the health care industry strongly opposed the bill, arguing that it will create increased costs for private and public employers when many are struggling to recover and continue operating and employing Vermonters. State and federal laws and regulations have already been enacted to address both healthcare costs and wage replacement needs for those who become ill with COVID-19 and cannot work.

House and Senate reach agreement on Capital bill

The House and Senate came to agreement on the Capital Bill, H.955 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.

CRF money to be spent on broadband connectivity

Completing their Coronavirus Relief Fund appropriation work, the Senate approved H.966 on Friday, the broadband connectivity, economic recovery and housing bill. The $209 million bill provides $17.4 million for a COVID related response accelerated broadband connectivity program, designed to help Vermont’s student and telehealth needs. The various programs are aimed at connecting broadband in difficult to access areas of rural Vermont, and for lower income Vermonters. Up to $2 million of the broadband funding is appropriated to the COVID-Response Line Assistance Customer Program, under which a health care provider may apply for assistance on behalf of a patient residing in Vermont for a line extension so that the patient can receive telehealth or telemedicine services from the health care provider. The House is poised to concur.

Green Mountain Care Board

OneCare Vermont presented its final FY2020 budget to the Green Mountain Care Board on Wednesday. Before reviewing budget specifics, OneCare Vermont CEO Vicki Loner told the board that the pandemic has given the state “deep insight into the flaws in the fee-for service system.” The current system supports volume and does not incentivize prevention and population health management. Loner pointed to a recent issue brief from Seema Verma, Administrator for the Centers for Medicare and Medicaid Services, that stressed that this is a time to accelerate what we’re doing in the payment reform system. The provider led effort can provide predictability and future resiliency to our health care system.

In response to the COVID-19 crisis, OneCare Vermont accelerated cash flow to primary care and continuum of care to provide support during the pandemic, delayed changes in care coordination payment structure, and removed variability components in independent primary care comprehensive payment programs. The ACO is also returning Medicare Value Base Incentive Fund funds to providers to allow value-based incentive fund to flow sooner, and allowing Innovation Fund grantees to pause participation without loss of income.

Loner said that the revised budget “balances the need for hospital dues relief with consistent funding to the provider community.” Despite significant hospital dues and Delivery System Reform funding reductions, the budget sustains $20 million of planned investments in primary care, provides $16 million of planned investments in community providers, advances $2.1 million to network providers during the past few months, and distributes approximately $38 million in fixed funding to hospitals through June. Population Health Management Program spending was reduced in strategic areas to sustain existing OneCare programs and committed funding to network participants. Programs such as the Blueprint for Health and Support and Services at Home, longitudinal care and funding for designated mental health agencies were funded at planned levels, but the Developmental Understanding and Legal Collaborations for Everyone and RiseVT were not expanded, and the Zero Suicide and Pharmacy programs were paused.

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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