Updates
May 22, 2020

Vermont Health Care Update 05-22-2020

An analysis from DRM's Health Law Team

Appropriations committee reviews health care workforce bill  

The House Appropriations committee reviewed H.607 on Tuesday, a bill aimed at increasing the health care workforce in Vermont. The bill requires the Vermont Department of Health, in collaboration with the Office of Primary Care and the Area Health Education Centers at the University of Vermont College of Medicine, to establish a rural primary care physician scholarship program. This scholarship would provide medical school tuition for up to five third-year and up to five fourth-year medical students annually who commit to practicing primary care in a rural, health professional shortage or medically underserved area of Vermont. Recipients must incur two-years of full-time service or four-years of half-time service for each academic year of tuition covered by the scholarship. The bill appropriates $811,226 in Global Commitment investment funds to VDH in FY 2021 for this scholarship program.

The bill also appropriates $1.3 million in Global Commitment investment funds to VDH for additional scholarships for nursing students through the Health Care Educational Loan Repayment Fund. The bill also sets up priorities for how the funds should be administered.

Legislative counsel confirmed that the state would likely be unable to use Coronavirus Relief Funds for the programs, as the funds would have to be used by the recipients by the end of this calendar year, and the program need is not completely COVID-19 related.

Committee members were generally supportive of the proposed scholarship programs, but did question whether the state funds would be supplanting private sector funds (such as hospital scholarships). House Health Care committee member Rep. Annmarie Christensen, D- Perkinsville, said that the state program would complement, not replace private funding. Committee Chair Kitty Toll, D-Danville, also referenced the number of traveling nurses employed in Vermont and questioned if an increasing number of nurses were becoming traveling nurses due to the flexibility and freedom. She said that the committee would like to take testimony from traveling nurses as they examine the bill further in the coming week.

Committee delays vote on physician assistants modernization bill

On Tuesday, 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 PAs, and substitutes it with a practice agreement requirement. The proposal also makes PAs 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 PAs.

The Physician Assistant Academy of Vermont and other stakeholders had offered minor amendments to the proposal, which were all accepted by the committee on a straw vote. The most substantive change eliminates the requirement that the supervisory physician be available “at all times,” for consultation by telephone or electronic means when the PA is practicing.

Committee Chair Bill Lippert, D-Hinesburg, was ready to vote the bill out, but Rep. Lucy Rogers, D-Waterville, requested more time to craft an amendment that would make the practice agreements more prescriptive. She said that she uncomfortable with the lack of requirements for the agreements and fellow committee members agreed to delay the vote. Lippert said that the committee would bring closure to the bill at the beginning of next week to give members time to come forward with a specific amendment.

Senate panel advances nurse licensure compact bill

On Wednesday, the Senate Finance committee advanced S.125, a bill that allows Vermont to join the Interstate Nurse Licensure Compact. The bill now moves to the Senate floor. 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.

Appropriations panel shifts attention to FY2021 budget

The House Committee on Appropriations shifted its focus to FY 2021 budgets this week. Department of Finance and Management Commissioner Adam Greshin presented the Governor's Proposed FY 2021 First Quarter Budget, suggesting that policy changes should be avoided until the consensus revenue forecast is released at the end of July or beginning of August. In the FY 2021 First Quarter Budget, the General Fund will receive 23 percent of its FY 2020 budget, the Education Fund will receive 34 percent of the FY 2020 budget, and all other remaining appropriations will receive 25 percent of the FY 2020 appropriations. The proposal did not include any Coronavirus Relief Fund appropriations, but Chair Kitty Toll, D-Danville, would like to include any expenses that come to the committee’s attention within the seven days the committee has to work on the quarter budget.

Agency of Human Services Chief Financial Officer Sarah Clark explained the agency’s first quarter budget proposal reflects a two percent cut of all budget across the board – a $32 million reduction for AHS. AHS will be leveraging CRF funds where appropriate, banking vacancy savings due to the hiring freeze, and leveraging excess receipts in order to meet the budget cut. The federal guidance states that the 6.2 percent Federal Medical Assistance Percentages bump will last through the end of this fiscal quarter or to the end of the U.S. Department of Health and Humans Service’s declared public health emergency. The FMAP are the percentage rates used to determine the matching funds rate allocated annually to certain medical and social service programs. Clark said if the emergency extends beyond July 1, Vermont will receive another fiscal quarter of the bump. The FMAP bump resulted in an additional $38 million in federal funding for Vermont this quarter.

The Senate Appropriations Committee voted in favor of H.953, the FY 2020 supplemental budget adjustment act, appropriating $18.3 million more from the CRF than the House. The $18.3 million included appropriations to the Vermont State Colleges, the University of Vermont, the Defender General, State’s Attorneys, Emergency Medical Services, and the Agency of Natural Resources.

Panel considers Older Vermonters Act bill  

Members of the House Human Services committee presented their strike all amendment to H.611, the Older Vermonters Act, to the House Appropriations committee on Friday. The bill was referred to the appropriations committee after deliberation because the bill compels the Director of Rate Setting to establish by rule procedures for determining an annual inflation factor to be applied to the Medicaid rates for providers of home- and community-based services. The  inflation rate would be applied annually to the committee’s appropriated funds.

The Joint Fiscal Office’s fiscal note said that the bill “ would not increase spending in FY 2021, (but) there would be an increase in base spending beginning FY 2022. However, the increase cannot be determined at this time since the Division of Rate-Setting has not yet calculated an inflation factor. JFO analyst Nolan Langweil said every one percent increase to the rate is a roughly $900,000 gross increase to the base budget.” Rep. Dave Yacovone, D-Morrisville, along with other committee members, disagreed with the Langweil’s fiscal note assertion that the language in the bill compels the appropriations committee to apply the rate, and said that it appears that the language only requires the Division of Rate Setting to come up with a rate.

Chair Rep. Kitty Toll, D-Danville said that the committee had four options with the bill: leave it as is; re-write that section of the bill to clarify that there will be an increase so that there is no ambiguity; re-write it to make the rate-setting informational only; or remove it from the bill.

Rep. Theresa Wood, D-Waterbury, said that the Human Services committee had a discussion about removing that section to avoid referral to the appropriations committee, but committee members wanted to support the home health agencies, especially with the impact of the crisis. The entirety of the committee, including more fiscally conservative members, felt strongly that the inflator should be put in place. Wood further stated that by supporting home health services, the state will avoid added costly nursing home expenditures. Toll asked the appropriations committee members to review the bill and potential options, and they will come back to it next week.

Toll said that the state has a $265 million budget gap that needs to be closed in August, and that “anything that the legislature passes right now that has ongoing expenses would have to be a priority over all current government spending. It would be considered against anything else that we would have to reduce or do in system reform and change to get to balance…it’s likely that there will be systems reform, and I’m wondering if there’s work that can be done between now and that bill coming out that would find things that are less of a priority and substitute this in for ongoing dollars.”

Additionally, the House Human Services committee’s amendment makes the Department of Disabilities, Aging and Independent Living the subject matter expert on the “public health crisis and emergency preparedness planning” for older Vermonters and requires that those needs are addressed in the Vermont Action Plan for Aging Well and the State Plan on Again. The amendment also pushes the deadline for Community-Based Service Provider Rate Study Report to April 15, 2021, the Self-Neglect Working Group’s first meeting to July 1, 2021, and the Self-Neglect Working Group’s Report deadline to July 1, 2022.

House health care unveils miscellaneous health care bill

The House Health Care Committee unveiled its draft miscellaneous health care bill on Thursday. The 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.

The bill would require the Brattleboro Retreat to fall under the Green Mountain Care Board hospital budget review process gradually, but requires a full review by hospital FY 2024. In determining whether and to what extent to exercise its discretion, the GMCB will consider any existing fiscal oversight by the Agency of Human Services and the fiscal pressures on the hospital as a result of the COVID-19 pandemic. As a condition of further state funding, it requires quality oversight measures be implemented by the Brattleboro Retreat under the oversight of the Department of Mental Health.

The 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, will identify ways to overcome those barriers, and will propose legislation where current law is either inadequate to achieve full integration. DMH will report on its progress by March 15, 2022 to the Health Reform Oversight Committee, with a final report due Jan. 15, 2023.

The bill includes several provisions related to health insurance prior authorizations requirements that was agreed to by stakeholders, and:

  • Requires health plans to review procedures and tests for which it requires prior authorization at least annually and eliminate the prior authorization requirements for those procedures and tests for which the requirement is no longer justified or for which requests are routinely approved;
  • 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 realtime decision support tools embedded in electronic health records to complete prior authorization requests for imaging and pharmacy services;
  • 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, as well as potential opportunities to waive additional Medicare administrative requirements in the future;
  • 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, some of whom must be primary care providers and report on results of pilot program in 2023; 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.

The committee will take more testimony next week.

Panels consider store-and-forward and telephone delivered services reimbursement changes

The Senate and House Health Care committees held a joint meeting on Thursday to review a proposal to move up the effective date for health insurance reimbursement for health care services delivered by store-and-forward means. It would also direct 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.

Legislators and stakeholders support moving up the date of reimbursement of services delivered by store-and-forward means and all commercial insurers are complying with the Department of Financial Regulation’s emergency rule requiring reimbursement for the service during the state of emergency. The initial effective date for the requirement, set in Act 91 of 2020, is Jan. 1, 2021, and a lack of legislative action would have created a regulatory gap if the state of emergency expires before that date. The Department of Vermont Health Access will be putting forth a proposal to turn on store-and-forward codes for inter-professional consultation on July 1 for Medicaid. DVHA is also proposing to report on claims paid data to the legislature when they reconvene in January 2021. News of the proposal was received positively from the committees, after a tense and confusing discussion of the topic last week.

There is also broad support for the proposed working group to develop recommendations for of health care services delivered by telephone after the state of emergency ends, and for extending the services required by DFR’s rule until the working group reports its recommendations. If there is no extension, required coverage for telephone delivered services will end at the expiration of the state of emergency. Bi-State Primary Care Association Vermont Public Policy Director Helen Labun said that providers are currently worried that people are delaying care due to concern about face-to-face visits and the providers would like to ensure that they have the tools necessary to reach patients. Labun said at the federal level, there has been a lot of switching back and forth between reimbursement situations, and leaving the current Vermont system in place would give security and stability to providers. Jill Mazza Olson, Executive Director of VNA’s of Vermont, added that there are a lot of vulnerable Vermonter’s without the capability to access video visits, and allowing a gap in telephone delivered services reimbursement would restrict their access to health care. Legislators agreed and will be working on a proposal to extend the entirety of the DFR rule.

The committee also reviewed the proposal that 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 to expand access to telehealth services, and helping providers access those funds.

VPQHC will be submitting a recommendation to clarify and narrow their required tasks under the legislation. Although the committees are intending the submit the proposal as a stand-alone bill, there was a brief discussion about adding it to the store-and-forward, but House Health Care committee chair Rep. Bill Lippert, D-Hinesburg, is concerned that it would make the bill get bogged down in the appropriations committee.

Justice-involved youth back at Woodside   

Department of Children and Families Services Commissioner Ken Schatz explained that the youth located at the residential facility in Middlesex have been moved back to Woodside Juvenile Rehabilitation Center after experiencing several escapes. The plan is to keep the youth at Woodside while they determine where to relocate them. Schatz says currently there is no alternative to the Woodside facility, but DCF hopes to find something as soon as possible (and is currently preoccupied with other matters).

Woodside Youth Counselor Carol Ruggles explained she has never felt unsafe at Woodside like she did during the recent incidents at the Middlesex facility. Ruggles expressed how important it is for the treatment of these youth to have a truly secure facility. The Department of Buildings and General Services Commissioner Chris Cole said it could take a year to find a new building and up to half year to retrofit it. Cole said BGS still has the money in the budget to move forward with the search.

Green Mountain Care Board

The Green Mountain Care Board met on Wednesday to discuss the proposed FY2021 Hospital Budget Guidance. An updated draft will be posted that will incorporate suggestions made at the meeting and public comment will be open until May 26. The board will tentatively hold a vote on the guidance on May 27 or 29.

At the beginning of the hearing, Board Chair Kevin Mullin raised the Vermont Association of Hospitals and Health Systems proposal to eliminate the budget process for this year. Although the board had agreed to push back the budget submission date to July 31, they will be proceeding with a streamlined budget submission and approval process and will be looking into the possibility of mid-year adjustments.

The board previously agreed to a FY 2021 net patient revenue increase of 3.5 percent, but has not yet made decisions on enforcement and changes in charge. Board members Dr. Jessica Holmes and Tom Pelham support waiving enforcement for FY2020, but Maureen Usifer said that she did not support giving up enforcement at this point. Board member Robin Lunge questioned how a decision to forgo enforcement would be implemented (if FY 2020 guidance needed to be amended) so Mullin delayed further discussion until May 27. Mullin then suggested adding FY 2020 and FY 2021 together and adding on an additional 3.5 percent for FY 2021. A draft of the proposal will be posted online for public comment.

Board members agreed that there should be a bifurcated change in charge for the upcoming fiscal year – one for a permanent change in based on historical data and a temporary change for COVID-19.  After FY 2020, any temporary increases in the change in charge would have to revert back in order to align with the 3.5 percent two-year NPR increase. Although Mullin preferred a set number or formula for each change, board members Usifer and Holmes disagreed. Board counsel will be drafting a proposal for comment based on the (very confusing) conversation of the board.

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