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Phantom rule could leave special needs kids, parents in limbo

State officials thought they’d had a rule in place since 2013 requiring school officials to respond within 15 days when a parent requests that a child be evaluated for special education services.

Now it turns out the rule was never filed properly with the Vermont Secretary of State’s office. Some parent advocates saying that means families have no recourse when school officials drag their feet.

Because some of the rules passed by the Vermont Board of Education are not the same as those posted on the Secretary of State’s website a new rule-making process must take place in order for the 15-day standard to go in effect, officials said.

The state Board of Education and Agency of Education say they are swamped with implementing Vermont’s Act 46 school district consolidation law, and don’t have time to deal the special education rules.

Now they’re asking local school districts to meet the 15-day response time as a “best practice.” But parent advocates say that gives them less power to challenge inaction by schools.

“The difference between best practice and a rule is that a rule is a procedural safeguard for parents’ rights,” said Karen Price, the family support director with Vermont Family Network.

With a rules violation, parents could enter a formal complaint process, Price said. When looking to cure a deviation from best practice, “a parent is relying on the good faith on the part of the school,” she said.

When a parent suspects their child may need special education services, the first step is to ask for an evaluation to see if the child is eligible. Price said that before the state board added the 15-day rule there was no defined timeline for schools to respond to parents’ requests.

“It has been a long-standing problem that parents that suspect their child has a disability and they make a request then never hear back,” Price said. “It happened a lot.”

Price said she knows of one parent who has since learned she cannot file an administrative complaint based on the 15-day rule.

“Now that it’s no longer a rule, she has no right to complain,” she said.

One parent in the Franklin-Northwest district said she had planned to file a formal complaint after becoming frustrated about the school’s lackluster response to her request for a special education evaluation for her child.

“I was going to lodge a complaint about the 15-day rule, but now I’m stuck with not knowing if it makes sense because the rules are changing,” said the parent, who asked for anonymity because being publicly identified could harm her own employment situation. She said she had been notified of the change to the rule by staff at Vermont Legal Aid.

“I believed the information I was finding online was correct. I’m really disappointed that they could make this type of mistake,” she said, adding that guidance is not good enough.

“If a child needs special services, it can’t wait. It needs to be addressed as soon as possible. In the meantime, while we are waiting, a child is suffering,” she said.

The agency has strongly advised school districts to use the 15-day rule until officials have a chance to update it, according to an agency memo released in August.

Haley Jones, spokesperson for the agency, said school districts have been using the 15-day rule since 2013 and everyone is used to it. “We have not heard that anyone intends not to continue to use it,” she added.

In 2013, the state Board of Education made a number of changes to the special education rules, mostly to bring them into compliance with new federal laws. Most of the changes did show up in the official rules posted by the Secretary of State’s office, but a few did not.

“This is the kind of thing that happens when you are short-handed and the state board also has no staff,” said William Mathis, vice chair of the board.

Recent years have been marked by increasing responsibilities for the state board and Agency of Education, including the implementation of the Act 46 school district consolidation law, without long-promised increases in staff, officials said.

The federal government requires schools to respond to parents within 60 days and the state has remained in compliance.

Mathis said the state board added the 15-day rule because members wanted to be more responsive and responsible to parents.

“But through a huge foul-up and a lack of staff to check and double check the work, it didn’t happen,” he said, adding that it will be put back in when the state board goes through the rules process again.

But that is little comfort to Vermont families, said Price. “It is the Agency of Education’s job to have these regulations be correct and protect parents’ rights. As a parents rights organization this is not a response we are happy with – they are short of people? Short of time? They can’t get to this? It isn’t right for parents of children with disabilities for this to remain unfixed.”

Mathis said he isn’t sure when they can start it up since the board and the agency have to deal first with Act 46 and the private school rules series 2200. “It is a matter of the workload for the Agency and for the board. We don’t have any staff.”

UPDATED: Blue Cross will get to raise premiums 9.2 percent

Health care regulators will let Blue Cross Blue Shield of Vermont raise insurance premiums on Vermont Health Connect by 9.2 percent.

The allowed increase is nearly a third less than the 12.7 percent the company originally requested in May. That was the most the company had asked to increase prices since Vermont Health Connect started offering plans in 2014.

The board said the company withheld important information during the regulatory process about the “financial stability” of the company. Once the board got a fuller picture, it said, there was room to cut back the increase for calendar year 2018.

The approved rate increase represents a balancing act, according to the board. “In issuing this decision and order, we first acknowledge the tension between two of our standards for review,” the board wrote in its unanimous decision issued Thursday.

“On the one hand, there is an undeniable need for health insurance coverage that is affordable for all Vermonters. On the other, we cannot reasonably expect our insurers to continue to voluntarily participate in the health benefit exchange if it imperils their financial stability.”

“If health insurance is not affordable, access to it will be restricted; if it is no longer financially viable for an insurer to remain in the marketplace, however, access will also be restricted,” the board wrote. “Our decision today seeks to strike a balance and achieve the leanest rates feasible, while protecting the insurer’s financial health.”

The board’s actuaries had said, upon review as part of the regulatory process, that the premiums should go up 12.6 percent — slightly less than the original request. Blue Cross then agreed with the board’s actuaries and reduced its request to 12.6 percent.

The Office of the Health Care Advocate brought in an actuary who argued that the company was using “conservatism” in its math, and that the increase should be just 8.7 percent.

In the end, the board largely went with the calculations by Blue Cross and its own actuaries. However, the board told the company to decrease the amount of premiums that go into its reserve funds to 0.5 percent, from 2 percent, because it has requested $10.3 million from the state to cover unpaid premiums in calendar year 2016. [...]

Mike Fisher, the chief health care advocate for Vermont Legal Aid, said he supports the reduction in how much Blue Cross can send to reserve funds. “I think that Blue Cross has a number of levers that they can use in the course of a year to manage expenditures,” he said.

The Office of the Health Care Advocate at Vermont Legal Aid had argued that Blue Cross should put 0.8 percent of premiums into reserves — which is slightly higher than what the board ordered.

Fisher said the board’s decision “definitely moved in the right direction, but, “at the same time, I can’t celebrate a 9.2 percent rate increase when I’m so aware that average-income Vermonters with real health care challenges have a real crisis in their ability to afford the care they need.” [...]

Nurse Shortage Puts Vermont Parents on the Hook for Kids' Care

Natalie Briggs spent the first six months of her life in hospitals. Born at 30 weeks with an extra chromosome, she couldn't breathe or swallow on her own. She was deaf. Doctors predicted she'd be permanently confined to a hospital bed.

Now nearly 8 years old, Natalie has short brown hair and a big grin. She is walking, learning sign language and living at home with her parents in Shelburne, although she still breathes through a tube in her throat. Another tube delivers food and water directly to her stomach.

"She has to have eyes on her 24 hours a day to maintain her airway, monitor her for seizures," explained her mother, Amelia Briggs.

Amelia and her husband, Will, rely on nurses to help care for their daughter. The state determined that the family needed 112 hours of home nursing a week — and that Medicaid, the federal insurance program for those with low incomes and disabilities, should pay for it.

But the young couple says they receive only 70 hours of care a week. They take turns monitoring their daughter at night, each picking up a four-hour shift. On July 26, Amelia was on duty from 3 a.m. to 10 p.m., while Will, a software engineer, worked.

The Briggs' plight isn't unique.

For the last 20 years, the United States has suffered a nursing shortage, a problem that's expected to worsen as baby boomers age. The crisis is especially acute for home health agencies that provide nurses for families such as the Briggs, because they compete for employees with higher-paying hospitals and doctors' offices. [...]

"The problem is that we're not compensating home health nurses at a rate that allows there to be enough of them to meet the needs of these kids with high needs, and so there's a shortage of nursing, particularly in the home and particularly nights and weekends," said Barbara Prine, an attorney with Vermont Legal Aid's Disability Law Project. "What that creates for these families who are dealing with really medically complicated kids is a tremendous amount of stress." [...]

In the meantime, families continue to pick up the slack.

"The consequence of not having someone alert, ready to take care of the kids, is really dire," said Prine of Vermont Legal Aid. "Part of the problem is we have this expectation that parents can go above and beyond. These parents are going above and beyond night after night, week after week, month after month, year after year, and that is a huge toll on them and their families."

The issue is not just about providing relief for overextended parents. "They are saving Vermont money by keeping these kids home," Prine noted. [...]

Regulators deny Blue Cross request to strike public comments

Health care regulators say public comments and statistics on wage growth must be part of the case in which Blue Cross Blue Shield of Vermont is seeking to raise premiums on Vermont Health Connect by more than 12 percent.

The Green Mountain Care Board made the ruling Thursday, in response to the company’s effort to strike information that Vermont Legal Aid’s Office of the Health Care Advocate put in a legal argument Wednesday.

The state of Vermont pays the advocacy office to represent the public during legal proceedings, such as Vermont Health Connect premium cases, in front of the Green Mountain Care Board.

Blue Cross [originally requested] to increase premiums on Vermont Health Connect an average of 12.7 percent. After some legal and mathematical processes, the company [now says] the increase should be 12.6 percent.

The Office of the Health Care Advocate argued in a hearing July 20 that the premium increase should be just 8.7 percent. The advocate then argued in a document submitted after a July 20 hearing that health insurance premiums are already unaffordable.

“If the proposed 12.7 percent increase is approved, between 2014 and 2018,” Blue Cross will have raised premiums by a cumulative 37.9 percent, the document said, more than twice as much as Vermont’s economy grew in that period, and nearly three times what Vermonters’ wages grew in that period.

The health care advocate said rates are unaffordable based on a standard in the Affordable Care Act saying premiums should not cost more than 9.69 percent of someone’s income, and a standard from the Department of Financial Regulation saying that a person’s deductible should not be more than 5 percent of their income.

The advocate then included comments from people who had submitted public comments to the Green Mountain Care Board. In the comments, people generally told personal stories about how they struggle to afford health insurance.

“As a self-employed clinical social worker I am paying almost $600/month for coverage for myself,” one person who was quoted wrote. “This is already outrageous. If the rates rise I will be forced to go without insurance, taking another healthy Vermonter (who supports the unhealthy population) out of the system.”

Another who was quoted wrote: “Last week, I cancelled an MRI that my neurologist ordered because I just can’t afford it, even with insurance. It is outrageous that an insurance plan that already costs 10% of my income doesn’t provide the coverage I need to make important procedures affordable.”

A third person said: “Though I do not make much and work two jobs, I don’t qualify for much of a subsidy and currently pay a lot for health insurance—one-quarter of my monthly mortgage. A rate hike would make it impossible for me to continue to have health insurance.”

A spokesperson for Blue Cross declined to comment on the issue.

Blue Cross argued in legal documents on Wednesday that the board should disregard “new evidence” in six pages of the health care advocate’s 15-page legal argument, and that to do otherwise “would be plain, reversible error.”

Blue Cross said the arguments about affordability are “without proper evidentiary foundation, not substantiated and … not subject to cross-examination.”

The public comments, meanwhile, were “not under oath,” “not subject to direct or cross-examination,” and “cannot be offered as evidence of the truth of what was said,” according to Blue Cross.

The board ruled against Blue Cross.

A hearing officer wrote on behalf of the board that the Office of the Health Care Advocate’s comments are “appropriately sourced” and “reasonably reliable,” and that the evidence “as a whole speaks to the statutory criteria of affordability, equity, and fairness to policyholders.”

The hearing officer also said the information, “stands for the incontestably true proposition that (Blue Cross’) proposed average 12.7 percent rate increase dramatically outpaces Vermont wage growth or any other reasonably selected index of inflation.”

The hearing officer also said the board has to review public comments as part of the case, anyway: “The Board is required by statute to take public comments before, during, and after rate hearings, and repeatedly makes clear at every opportunity that these are accepted by any available medium.”

“It would be excessive legalism to strike the (Health Care Advocate’s) memo in whole or in part over the presence of public comments that Board members are, in any event, required by law to read prior to rendering a decision,” the hearing officer wrote.

The board has not yet issued a decision on how much Blue Cross will be able to charge customers. Such decisions usually come out sometime in August.

Fine Landlord Violators

To the Editor:

I am very grateful for the work that the Town of St. Johnsbury is doing to improve the quality of rental housing in Town. I understand that some landlords object to paying a fee to fund code enforcement. I wonder if a better solution would be to collect fines from the landlords who operate unsafe housing. In that way, the few landlords who choose not to keep up their properties would pay at least some of the costs of that choice.

It seems to me that the great majority of landlords in St. Johnsbury maintain their properties in compliance with our housing ordinance. Only a minority of landlords rent out substandard housing.

The Town already has a Civil Ordinance, Section 6-9, which allows landlords to be fined up to $100 per day for violating the housing ordinance. However, it is my understanding that such fines are rarely imposed. It does not seem fair – or good policy – for landlords who routinely violate the housing code to do so without penalty, while the costs of such violations are imposed on others.

Take, for example, a bedbug infested building in town. The brunt of the suffering from those bedbugs is borne by the tenants and their children. Families suffer bites, secondary infections, sleeplessness, the costs of having to throw away much of their stuff, and often the costs of moving to get away from the bugs.

Moreover, bedbugs can easily and unwittingly be carried from one building to another. So the law abiding landlords bear the costs of having to pay for exterminations that could have been avoided had the other landlord exterminated promptly and properly.

In at least one case, a landlord testified about bedbugs in his rental property when he appealed for a lower tax appraisal– and his appraisal was, in fact, lowered. This is an even more direct cost to the Town and taxpayers. It seems wrong that a landlord could testify about a long term bedbug infestation in his rental property and walk out with a lower tax appraisal rather than a big fine.

The town could limit fines to the most serious problems — like lack of heat or water – and situations where the landlord refused to make repairs after being ordered to by the Town Health Officer. Even that could raise a good chunk of the money needed for a part time code enforcement officer – and probably get some buildings fixed up in the bargain.

I talked about this with one landlord who told me that he has never paid a fine in forty years of landlording and that if the Town started imposing fines, it would raise his costs of doing business. I am not sure this is a bad thing. If we make it less profitable for landlords to operate bedbug infested or otherwise substandard housing, perhaps unscrupulous landlords will choose to bring their buildings up to code or sell them to someone who will.

 

Maryellen Griffin

Staff Attorney, Vermont Legal Aid

St. Johnsbury, Vermont

Should Vermonters Pay $50 Million More In Health Insurance Premiums? Regulators To Decide

State regulators will have to weigh conflicting testimony as they decide whether to approve a proposal that would increase Vermonters’ health insurance premiums by more than $50 million next year. 

Blue Cross and Blue Shield of Vermont, the state’s largest private health insurance company, is seeking asking the Green Mountain Care Board to approve a 12.6 percent increase in health insurance premiums.

Whether or not that rate increase is warranted depends on who you talk to.

According to Mike Fisher, chief of the Office of the Health Care Advocate, the request well overshoots the amount of money Blue Cross will need in 2018 to cover its policyholders health care expenses.

“Our expert witness evaluated the entire filing from Blue Cross and found four areas where we thought their predictions were too high,” Fisher says.

Fisher’s state-funded office was created to protect consumer interests in Vermont’s nearly $6 billion medical industry, and it hired an independent actuary to vet Blue Cross’ proposed rate.

Fisher says Blue Cross assumes higher utilization trends in 2016 will continue unabated, a conclusion his office now challenges. Fisher also says Blue Cross has overestimated the impact of Vermont’s aging population on overall health care expenditures that will be incurred by Blue Cross’ policyholders.

“And ultimately, [we] recommended to the Green Mountain Care Board that Blue Cross’ proposal was about 4 percent too high,” Fisher says.

That 4 percent translates into real money.

Blue Cross’ proposal would increase Vermonters’ premiums by more than $50 million next year. If the Green Mountain Care Board sides with Fisher’s office, then than number would drop by about $15 million.

But that’s only if they side with the Office of the Health Care Advocate. And Sara Teachout, director of public relations at Blue Cross, says the weight of the evidence lies in favor of Blue Cross. [...]

Public Advocates Take Aim at Blue Cross Rake Hike Request

A public advocate told regulators Thursday that the state’s largest health insurance company does not need to increase premiums 12.7 percent on Vermont Health Connect in 2018.

The advocate from Vermont Legal Aid’s Office of the Health Care Advocate brought in an actuary who said the company could afford to reduce its premium request by about a third — to an 8.7 percent increase.

The actuary testified in front of the Green Mountain Care Board, which regulates hospital budgets and health insurance premiums. The case being considered Thursday affects about 70,000 people who get Vermont Health Connect insurance from Blue Cross Blue Shield of Vermont either on the exchange or through an employer.

Blue Cross is seeking the highest increase it has requested since the company started offering plans on Vermont Health Connect in 2014.

The company originally sought to increase premiums an average of 12.7 percent. The company updated that request to 12.9 percent based on new data. Actuaries for the Green Mountain Care Board said the number should be 12.6 percent, and the company agreed with that analysis.

Blue Cross has cited several reasons for the premium increase, including Vermont’s aging population.

Kaili Kuiper, a lawyer for Vermont Legal Aid’s Office of the Health Care Advocate, said that if the insurer is allowed to raise its premiums that much, customers’ premiums would have increased a cumulative 38 percent since 2014.

She said that while “many factors” in the increase are outside the company’s control, the company’s actuaries have not “applied sound actuarial methodology” and could shrink that premium increase “by increasing the scientific rigor” of their analysis.

Peter Horman, an actuary and the expert witness for the Office of the Health Care Advocate, described several ways that he did the math differently from Blue Cross and arrived at the conclusion the company could cut the increase by 4 percentage points.

Horman said that’s because the company showed “conservatism” in calculating rates. He described the issue like this: “It seems that if they have a concern of something increasing, they’ll reflect it in the rates, but if they have a concern with decreasing, they’ll hold it steady.”

Horman also questioned the company’s methodology to estimate Vermont’s aging population, which he said should be an entire “demographic modeling exercise.” To model the issue accurately, said Blue Cross would need to account for the fact that most people use Medicare when they get to age 65.

Horman said the company’s decision to account for the aging population is simply a concern, not justification for raising premiums.

Additionally, Horman said a premium increase as high as Blue Cross has requested would lead to an “adverse selection spiral,” in which young, healthy customers choose to go without insurance, in turn driving up insurance prices further when older, sicker people remain in the market.

Board members did not ask Horman any questions.

During a tense cross-examination, Jacqueline Hughes, the lawyer for Blue Cross, asked Horman how much money the Office of the Health Care Advocate was paying him for his services.

Horman said he had made $20,000 through June and will bill at least $12,000 more for his services since then. He said he charges about $300 an hour for his time.

Hughes also questioned the financial stability of a company he worked for previously, the Neighborhood Health Plan in Boston. She also asked him about whether the company took losses big enough to require them to raise premiums by large amounts.

Horman said he was working for a financially challenged company at the time. “I’m not sitting here saying I’ve never given a high rate increase,” he said, but “given the high increase, Blue Cross is not incredibly financially challenged.”

Paul Schultz, the chief actuary for Blue Cross, said during his testimony that he did not agree with any of Horman’s results and that the board should not impose the lower premium increase.

“I don’t think Blue Cross is in any danger of an adverse selection spiral,” Schultz said.

The board will hold a special public comment period July 27 and continues to accept public comment through its website, before making a decision at the end of the summer.

Attorney General to hold forum on health care costs

Attorney General TJ Donovan will hold a public forum on health care costs Tuesday at 5:30 p.m. in Contois Auditorium at Burlington City Hall.

Donovan’s office runs a Public Protection Division dedicated to consumer affairs and enforcing antitrust laws.

Amy Cooper, the executive director of HealthFirst, a group that represents independent doctors, is one of the scheduled speakers. Another is Judy Henkin, the general counsel for the Green Mountain Care Board, which regulates hospital budgets and insurance premiums.

Mike Fisher, the chief health care advocate for Vermont Legal Aid, will also speak. Additional speakers will be announced closer to the event, according to Natalie Silver, a spokesperson for Donovan.

“The cost of health care is a consumer protection issue,” Donovan said in a news release. “Consumers have questions. We are trying to give Vermont consumers access to information and the opportunity to ask questions on this topic.”

Scott Administration: Outside Audit of Vermont Health Connect Tells ‘Story of Improvement’

A recently released external audit of Vermont Health Connect says the state-run insurance exchange has met all requirements set forth by the federal government.

Consumers of Vermont Health Connect have endured a host of troubles since the program launched three and a half years ago. Public perception had run so sour that Republican Gov. Phil Scott ran on a promise of doing away with a state-run exchange altogether.

But a new audit, which examined exchange operations during the last fiscal year, yielded an “unqualified opinion” from the independent firm that conducted the analysis. Cory Gustafson, commissioner of the Department of Vermont Health Access, says that’s “as good as it gets when it comes to audits.”

“The report to me really speaks to a story of continuous improvement at Vermont Health Connect,” Gustafson says.

Two years ago, results of a similar audit were far worse.

Due to a laundry list of operational shortcomings, auditors at the time deemed Vermont Health Connect to be out of compliance with federal regulations.

“The big problems that were seen in 2014 and early 2015 are less and less and less and the service levels are higher and higher and higher,” Gustafson says. [...]

Mike Fisher is the chief of the Office of the Health Care Advocate, a consumer advocacy organization run by Vermont Legal Aid. Fisher says measures of consumer satisfaction continue to rise.

“The numbers continue to get better,” Fisher says. “The number of Vermonters who are caught up in real challenges are smaller and smaller.”

Fisher, however, says those improvements mean little to the Vermonters who still struggle with billing errors, lapses in coverage, or extended delays making changes to their policies.

“For those Vermonters who have a real challenge, that story that the numbers are getting smaller doesn’t matter. They’re still frustrated as can be,” Fisher says. “I both want to congratulate the exchange team for doing some good work and also continue to communicate to Vermonters that more work needs to be done.” [...]

On June 6, Eric Clemons of Comcast Newsmakers interviewed Vermont Legal Aid Mental Health Law Project Director Jack McCullough. Watch the video below for more information about the work of the Mental Health Law Project:

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